United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 09-2071
Issued: July 21, 2010

Case Submitted on the Record

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

JURISDICTION
On August 11, 2009 appellant filed a timely appeal from the July 15, 2009 decision of the
Office of Workers’ Compensation Programs that terminated his compensation benefits. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits.
On appeal, appellant, through his attorney, contends that the Office decisions are contrary
to fact and law.
FACTUAL HISTORY
On December 7, 2005 appellant, then a 57-year-old letter carrier, injured his right leg
when he slid on icy snow while delivering mail. He did not stop work but began a modified-duty
assignment. On February 6, 2006 the Office accepted that he sustained a right medial-collateral
ligament strain. On August 7, 2006 Dr. John H. Wilber, a Board-certified orthopedic surgeon,
performed right knee arthroscopy with a partial meniscectomy. Appellant was placed on the

periodic rolls in receipt of wage-loss compensation. A November 27, 2006 functional capacity
evaluation demonstrated that he did not have the ambulatory endurance required to perform his
duties as a letter carrier.
On February 2, 2007 the Office referred him to Dr. Sheldon Kaffen, Board-certified in
orthopedic surgery, for a second opinion evaluation. The statement of accepted facts provided to
Dr. Kaffen described the duties and physical requirements of a letter carrier and advised that the
claim was accepted for a right knee collateral ligament strain.
On March 22, 2007 Dr. Wilber found that appellant could return to restricted duty. He
reported that, when he performed appellant’s right knee surgery, there was significant
chondromalacia of the patella and the patellar groove in addition to a complex tear of the medial
meniscus. The record indicates that appellant returned to light duty.
In an April 12, 2007 report, Dr. Kaffen noted the history of injury and reviewed
appellant’s medical treatment records. On examination, appellant complained of intermittent
right knee pain. Dr. Kaffen advised that the only positive finding was tenderness in the anterior
medial soft spot of the right knee. He diagnosed a medial meniscus tear of the right knee caused
by the December 7, 2007 employment injury and found that there were no residuals of the
condition on physical examination following surgery. Dr. Kaffen noted that neither the surgical
report nor magnetic resonance imaging (MRI) scan were in the records forwarded to him;
however, he concluded that appellant was capable of performing his full duties as a letter carrier
as described in the statement of accepted facts.
On May 10, 2007 Dr. Wilber reiterated that appellant should remain on light duty.
The Office found a conflict in medical opinion between Dr. Wilber and Dr. Kaffen as to
whether appellant had residuals of his accepted condition and his capacity for work. On
August 1, 2007 appellant was referred to Dr. Robert Corn, a Board-certified orthopedic surgeon,
selected as the impartial specialist. An amended statement of accepted facts indicated that the
accepted condition was right knee collateral ligament strain.
In an August 23, 2007 report, Dr. Corn reviewed the history of injury and medical
treatment and listed appellant’s complaint of right knee pain and swelling, aggravated by stair
climbing. He noted that the conditions of right knee sprain and a complex tear of the medial
meniscus were accepted conditions. On examination, Dr. Corn found tenderness along the
medial joint line and +2 effusion. Apley grind test yielded pain along the medial aspect of the
right knee. Dr. Corn reviewed the duties of a letter carrier with appellant and stated that there
was still definite objective evidence that he had not completely recovered from the right knee
surgery. He listed effusion, thickening of the medial synovium, tenderness along the knee joint
line and persistent weakness in the right lower extremity. Dr. Corn found that appellant could
not return to his regular duties as a letter carrier. He advised that a new MRI scan should be
obtained to determine the extent of any residual injury or meniscal damage that had either
recurred or subsequently developed and that a functional capacity evaluation would be
appropriate to objectively assess appellant’s recovery.

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On February 26, 2008 the employing establishment informed the Office that appellant
stopped work for a nonwork-related procedure. On February 28, 2008 appellant advised the
Office that he was off work to undergo a back procedure. He noted that Dr. Corn’s office had
contacted him for testing but he had not responded and the tests were not performed. Appellant
returned to limited duty on March 6, 2008.
On March 27, 2008 Dr. Wilber noted that physical examination demonstrated mild
effusion over the patellofemoral joint. He advised that appellant should continue limited-duty
work with the restrictions previously recommended. Dr. Wilber noted that he was trying to
amend the claim to include traumatic chondromalacia of the patella.1
The record documents that prior to July 2, 2008 the MRI scan test and functional capacity
evaluation recommended by Dr. Corn were not scheduled. A March 4, 2008 message stated that
“per Carol, [physician] will give an assessment based on medical record.” A July 2, 2008 note
advised that Dr. Corn’s August 23, 2007 referee examination was no longer valid because “the
referee examiner has failed to provide an addendum to his report since September 19, 2007, after
numerous requests, thus leaving the report incomplete.”
The Office determined that the conflict in medical opinion between Dr. Wilber, and
Dr. Kaffen remained unresolved. On August 20, 2008 it referred appellant to Dr. Ralph J.
Kovach, a Board-certified orthopedic surgeon, for an impartial evaluation. In a September 3,
2008 report, Dr. Kovach reported that the accepted condition was collateral ligament strain of the
right knee. He reviewed the medical record and advised that the surgical report was not found.
Examination of the right knee revealed no swelling or effusion and full extension and 130
degrees of flexion, no sign of valgus, varus, anterior or posterior instability and no angular
deformity on weight bearing. Strength was 5/5 and McMurray’s test negative. Dr. Kovach
found minimal crepitation on flexion and extension of both knees and advised that appellant had
reached maximum medical improvement. In response to Office questions, Dr. Kovach advised
that the torn medial meniscus was work related but the chondromalacia was not. He stated that
the accepted right collateral ligament strain had resolved and, because the torn meniscus had
been surgically repaired, it no longer contributed to appellant’s knee problems. Dr. Kovach
advised that the chondromalacia was a preexisting condition. He found that the residuals of the
December 7, 2005 work injury did not preclude appellant from performing the regular duties of
his date-of-injury job as a letter carrier. Appellant had minimal objective findings on
examination, a negative McMurray’s test, no instability or joint tenderness to the right knee, no
atrophy of the thigh or gross weakness in flexion and extension of his knee. Dr. Kovach
concluded that appellant did not require any ongoing medical treatment for the accepted
conditions.
In an August 26, 2008 report, Dr. Todd S. Hochman, Board-certified in internal medicine
and pediatrics, provided an impairment rating for appellant’s right knee. He advised that, under
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment2 (A.M.A., Guides), appellant had 12 percent impairment to his right leg.
1

On May 27, 2008 appellant filed a claim for a schedule award.

2

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

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The Office obtained a copy of the August 7, 2006 surgical report, which it forwarded to
Dr. Kovach together with medical evidence. It asked him to address whether appellant had
chondromalacia of the patella and, if so, whether it was caused, aggravated, accelerated or
precipitated by the December 7, 2005 employment injury. On October 29, 2008 Dr. Kovach
reviewed the additional evidence, including the surgical report which showed that there was
evaluation of the trochlea, the patella, medial joint space, the cruciate ligaments, the lateral joint
space and lateral gutter of the right knee. The specific findings noted were a tear of the medial
meniscus longus posterior horn, a small cartilage defect in the trochlea and a small cartilage
defect on the right posterior lateral tibial plateau. Dr. Kovach advised that there was no mention
of any specific pathology to the patella in the report and that surgery consisted of a resection of
the torn medial meniscus. Based on his review of the report from surgery and other medical
records, there was no description of chondromalacia patella such that the diagnosis of right
chondromalacia patella was not substantiated and did not exist.
On November 21, 2008 the Office proposed to terminate appellant’s compensation
benefits on the grounds that the weight of medical opinion was represented by Dr. Kovach and
established that he no longer had disability or residuals due to the accepted condition. It noted
that several requests were made for Dr. Corn to provide further evaluation based on the
information of file but that an addendum report was not received.
On December 4, 2008 Dr. Wilber advised that appellant’s knee was slowly improving
and that his ongoing problem was with chondromalacia of the patellofemoral joint. He reviewed
the surgical report and noted that it mentioned a lesion involving the trochlear groove, which is
part of the patellofemoral joint. Dr. Wilber stated that appellant had a clear intraoperative
picture in his chart that showed chondromalacia of the patellofemoral joint, especially in the area
of the trochlear groove.
By decision dated December 29, 2008, the Office terminated appellant’s compensation
benefits finding that the accepted right knee collateral ligament strain had resolved and that the
weight of medical opinion established that he could resume full duty as a letter carrier.
On January 4, 2009 appellant, through his attorney, requested a hearing. On February 19,
2009 counsel contended that an additional accepted condition was a complex tear of the right
knee medial meniscus. Therefore, an incorrect statement of accepted facts had been provided to
Dr. Kovach and his report was of reduced probative value. In reports dated January 8 to April 9,
2009, Dr. Wilber advised that appellant continued to have occasional pain and swelling of the
right knee but could continue work with his restrictions.
At the May 12, 2009 hearing, counsel reiterated that the statement of accepted facts did
not include a correct list of accepted conditions such that a new impartial examiner should be
selected. He also contended that Dr. Kovach’s opinion was not well rationalized concerning the
condition of chondromalacia patella and that appellant was entitled to a schedule award.
In a July 15, 2009 decision, an Office hearing representative affirmed the December 29,
2008 decision. The hearing representative noted that, although the statement of accepted facts
did not list the torn meniscus as an accepted condition, the second opinion and referee examiners

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both found that the condition was work related but no longer disabling. Dr. Kovach found that,
while the tear was work related, it had been repaired with surgery and was no longer disabling.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
Section 8123(a) of the Federal Employees’ Compensation Act5 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.6 When the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.7
ANALYSIS
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits. The accepted conditions in this case are right knee medial collateral
ligament strain and tear.
The Office found a conflict in medical evidence between appellant’s attending physician,
Dr. Wilber, and an Office referral physician, Dr. Kaffen as to whether there were continuing
residuals and disability due to the employment injury. It initially referred appellant to Dr. Corn
selected as the impartial medical specialist. In an August 23, 2007 report, Dr. Corn provided
positive physical findings and advised that appellant had continuing residuals of his right knee
injury. He noted, however, that to answer the questions posed he recommended that a functional
capacity evaluation be obtained together with an MRI scan to further assess appellant’s accepted
knee condition. Although the record contains several e-mail messages and a memorandum of a
telephone call with appellant, there is no evidence to establish that the Office authorized
Dr. Corn to obtain the functional capacity evaluation or additional diagnostic testing or that
scheduling was obtained. The Office’s procedure manual provides that, if clarification or
additional information is necessary from the impartial specialist, the claims examiner will write
to the specialist to obtain the information.8 There is no evidence of record to establish that the
3

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

4

Id.

5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

7

Manuel Gill, 52 ECAB 282 (2001).

8

Federal (FECA) Procedure Manual, Part 3 -- Claims, Medical Examinations, Chapter 3.500.5(b)(2)
(March 1994).

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claims examiner followed this procedure prior to referring appellant to Dr. Kovach for an
impartial medical examination. The e-mails of record are not sufficient to establish that the
Office conformed to its procedure manual in obtaining the additional information or tests
recommended by Dr. Corn.
The Office’s procedures provide that, when a second referee specialist’s report is
requested before the Office has attempted to clarify an original referee specialist’s report, the
second report must be excluded.9 The Board finds that Dr. Kovach’s report should be excluded
from the record because the Office did not follow it procedures. The Office failed to write to
Dr. Corn to authorize the requested functional capacity evaluation or diagnostic test and request
that he provide a supplemental report.10 For this reason, the Board finds that the Office did not
meet its burden of proof to terminate appellant’s compensation benefits.11
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits.

9

Id. at Chapter 3.500.6.

10

Id.

11

Jaja K. Asaramo, supra note 3.

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ORDER
IT IS HEREBY ORDERED THAT the decision July 15, 2009 decision of the Office of
Workers’ Compensation Programs be reversed.
Issued: July 21, 2010
Washington, DC

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

Michael E. Groom, Alternate 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
__________________________________________
T.B., Appellant
and
U.S. CUSTOMS SERVICE, OFFICE OF
INVESTIGATIONS, New York, NY, Employer
__________________________________________

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Appearances:
Thomas Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-866
Issued: September 25, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 13, 2012 appellant, through his attorney, filed a timely appeal from a
December 16, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate compensation for wage
loss effective September 29, 2010 pursuant to 5 U.S.C. § 8106(c)(2) on the grounds that
appellant refused an offer of suitable work.
FACTUAL HISTORY
On May 8, 2002 appellant, then a 49-year-old special agent, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a right calf injury on that date while pushing an
1

5 U.S.C. § 8101 et seq.

employing establishment motor vehicle off the road. The reverse of the claim form indicated
that he stopped working on May 8, 2002. On May 22, 2002 OWCP accepted the claim for a
right calf muscle sprain. In a magnetic resonance imaging (MRI) scan report dated May 23,
2002, Dr. Alan Greenfield, a radiologist, diagnosed a tear of the distal aspect of the medial head
of the gastrocnemius tendon.
Appellant remained off work and continued to receive compensation for wage loss.
Dr. Henry Marano, the treating Board-certified orthopedic surgeon, submitted periodic treatment
notes. OWCP referred appellant for a second opinion evaluation to Dr. Andrew Weiss, a
Board-certified orthopedic surgeon. In a report dated June 2, 2005, Dr. Weiss provided a history
and results on examination. He diagnosed a tear of the gastrocnemius tendon causally related to
the May 8, 2002 employment injury, by appellant’s history. Dr. Weiss opined that, based on his
examination, appellant’s condition had resolved and he was able to return to his former
employment. In a treatment note dated April 19, 2007, Dr. Marano stated that appellant still had
obvious atrophy and deformity to his right gastrocnemius muscle. He indicated that appellant
had a permanent partial disability.
OWCP again referred appellant for a second opinion evaluation. In a report dated May 8,
2008, Dr. Michael Katz, a Board-certified orthopedic surgeon, provided a history and results on
examination. He diagnosed status post right gastrocnemius tear. Dr. Katz stated that there was a
degree of partial disability related to the work injury. In an addendum, he indicated that he had
reviewed a June 11, 2008 electromyogram (EMG), showing chronic lumbar L4-5 and L5-S1
radiculopathy. Dr. Katz stated there was no further treatment needed for the right gastrocnemius
and appellant had reached maximum medical improvement with respect to this injury. He
opined that appellant could work with restrictions of 20-pound lifting, with limited standing,
stooping and bending.
In a report dated May 28, 2009, Dr. Marano stated that appellant was seen for his annual
examination. He provided results on examination, and diagnosed chronic medial gastrocnemius
tear with atrophy to the right leg. Dr. Marano stated that appellant had a permanent partial
disability, with no prolonged sitting, standing, walking, climbing, kneeling or pushing.
OWCP determined that a conflict in the medical evidence existed and selected
Dr. Sanford Wert, a Board-certified orthopedic surgeon, as a referee physician. In a report dated
December 27, 2009, Dr. Wert provided a history, review of medical records and results on
examination. He indicated in his history that appellant had a 1984 lumbar injury. Dr. Wert
opined that appellant had a permanent mild partial disability, based on a positive Thompson’s
test exhibited on clinical examination, diminished muscle strength of the right lower extremity in
conjunction with the right leg MRI scan findings of tear of the medial head of the gastrocnemius
tendon. He also stated that the May 8, 2002 injury had aggravated the prior lumbar condition
due to an altered gait, but the current back examination was within normal limits and the
aggravation had resolved. Dr. Wert completed a work capacity evaluation (OWCP-5c)
indicating appellant could work eight hours with restrictions. The specific restrictions were four
hours walking, standing and squatting and one hour kneeling and climbing.
By letter dated June 1, 2010, the employing establishment offered appellant a position as
an investigative assistant. It noted that Dr. Wert had provided work restrictions and included a

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job description of the offered position. The investigative assistant position was described as a
sedentary position, which may involve some walking, standing, bending and carrying of light
items such as papers or books.
In a letter dated June 16, 2010, OWCP advised appellant that it found the offered position
to be a suitable job. Appellant was advised that, under 5 U.S.C. § 8106(c)(2), an employee who
refuses an offer of suitable work is not entitled to compensation for wage loss. OWCP stated
that, if he did not accept the position, he must provide written explanation within 30 days.
By letter dated July 12, 2010, appellant, through his representative, stated that he was
unable to perform the duties of the offered position. He submitted a report dated June 4, 2010
from Dr. Marano, who stated that appellant had right hip and groin pain from an altered gait and
the symptoms were worsening. Dr. Marano provided results on examination.
In a letter dated August 2, 2010, OWCP advised appellant that the reasons offered for
declining the position were insufficient and the job remained suitable. Appellant was advised to
accept the position within 15 days or his compensation for wage loss would be terminated.
By decision dated September 29, 2010, OWCP terminated compensation for wage loss on
the grounds appellant had refused an offer of suitable work. It found Dr. Wert represented the
weight of the medical evidence.
In a letter dated September 22, 2011, appellant requested reconsideration. He argued that
Dr. Wert’s opinion was not based on a complete history, as the only accepted injury was reported
as the right calf sprain. Appellant submitted a November 17, 2010 report from Dr. Marano, who
reviewed appellant’s medical history. Dr. Marano stated that appellant was last seen on June 4,
2010 with an antalgic limping gate and at that time remained disabled from his occupation.
By decision dated December 16, 2011, OWCP reviewed the case on its merits. It denied
modification of the suitable work termination.
LEGAL PRECEDENT
Section 8106(c) provides in pertinent part, “A partially disabled employee who …
(2) refuses or neglects to work after suitable work is offered... is not entitled to compensation.”
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.2 To justify such a termination, OWCP
must show that the work offered was suitable.3 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.4
With respect to the procedural requirements of termination under 5 U.S.C. § 8106(c), the
Board has held that OWCP must inform appellant of the consequences of refusal to accept
2

Henry P. Gilmore, 46 ECAB 709 (1995).

3

John E. Lemker, 45 ECAB 258 (1993).

4

Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

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suitable work, and allow him an opportunity to provide reasons for refusing the offered position.5
If appellant presents reasons for refusing the offered position, OWCP must inform the employee
if it finds the reasons inadequate to justify the refusal of the offered position and afford appellant
a final opportunity to accept the position.6
FECA provides that, if there is a 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 the examination.7 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.8
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.9
ANALYSIS
In the present case, OWCP found that the offered position of investigative assistant was
medically suitable. Appellant argued that he could not physically perform the offered position.
With respect to his work restrictions, there was a conflict in the medical evidence as to the
specific restrictions. The second opinion physician, Dr. Katz, indicated that appellant was
limited only in standing, stooping and bending, with a 20-pound lifting restriction. Attending
Physician Dr. Marano offered further restrictions, including restrictions of prolonged sitting,
standing, walking, climbing, kneeling and pushing.
To resolve the issue as to the specific work restrictions, Dr. Wert was selected as a
referee physician. His report provided a detailed history and results on examination. Dr. Wert
noted that appellant had sustained a gastrocnemius tendon tear and also noted an aggravation of a
prior lumbar condition that had resolved. He provided specific work restrictions limiting
appellant to four hours a day of walking, standing and squatting and one hour of kneeling and
climbing. The Board finds Dr. Wert’s report is entitled to special weight and represents the
weight of the medical evidence.
Prior to the September 29, 2010 decision, appellant submitted a June 4, 2010 report from
Dr. Marano, stating that appellant had worsening symptoms. He did not address the offered
5

Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

6

Id.

7

5 U.S.C. § 8123.

8

20 C.F.R. § 10.321 (1999).

9

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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position. The Board notes that Dr. Marano was on one side of the conflict created and resolved
pursuant to 5 U.S.C. § 8123(a) and his additional report does not create a new conflict.
Additional reports from a physician on one side of the conflict that is properly resolved by a
referee are generally insufficient overcome the weight accorded the referee’s report or create a
new conflict.10
The next question is whether the offered position was within the stated work restrictions.
The offered position of investigative assistant was described as a sedentary position, with
occasional standing, walking and light lifting. The evidence indicates that the offered position
was within the restrictions offered by Dr. Wert and appellant does not offer any contrary
argument.
Having found that the position offered was medically suitable, the Board will consider
whether the procedural requirements of 5 U.S.C. § 8106(c)(2) were met. In this regard, OWCP
sent appellant notification that the position offered was found to be suitable and advised him of
the provisions of 5 U.S.C. § 8106(c)(2). Appellant submitted additional evidence, which was
considered by OWCP and found to be insufficient, and he was provided an additional 15 days to
accept the position. The Board finds OWCP properly adhered to the procedural requirements of
termination under 5 U.S.C. § 8106(c)(2).
On appeal, appellant argues that Dr. Wert did not have an adequate background because
the statement of accepted facts only reported the accepted condition as a right calf sprain, while
there were other conditions that should have been accepted. The Board notes that the only
condition accepted by OWCP was the right calf sprain. However in evaluation of suitability of
an offered position, OWCP procedures as well as Board precedent require that not only
employment related, but also preexisting and subsequently acquired conditions be considered as
part of the suitability evaluation.11 Dr. Wert clearly considered the gastrocnemius tear,
discussing the medical history of the condition and basing the work restrictions on residuals of
the gastrocnemius tear. He also found there was an aggravation of a lumbar condition that had
resolved. With regards to Dr. Wert’s factual and medical background, there is no indication that
he was unaware of any relevant condition. The December 27, 2009 report was based on a
complete background and the current examination results and there is no evidence that his report
was of diminished probative value.
Appellant also argued that the November 17, 2010 report from Dr. Marano shows that
appellant could not perform the position. In this report, Dr. Marano reviews the medical history
and states that appellant could not perform “his occupation.” He did not discuss the offered
position. As noted above, Dr. Marano was on one side of the conflict resolved by Dr. Wert. The
November 17, 2010 report is not sufficient to create a new conflict.
For the above reasons, the Board finds that OWCP properly terminated appellant’s
compensation on the grounds that he refused an offer of suitable work. Appellant may submit

10

See Harrison Combs, Jr., 45 ECAB 716 (1994); Dorothy Sidwell, 41 ECAB 857 (1990).

11

Richard P. Cortes, 56 ECAB 200 (2004); Gayle Harris, 52 ECAB 319 (2001).

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new evidence or argument with a written request for reconsideration to OWCP within one year
of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate compensation for wage
loss effective September 29, 2010 on the grounds that appellant refused an offer of suitable
work.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 16, 2011 is affirmed.
Issued: September 25, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

Alec J. Koromilas, Alternate 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
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-562
Issued: May 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 21, 2015 appellant, through counsel, filed a timely appeal from an Office of
Workers’ Compensation Programs’ (OWCP) decision dated November 17, 2014. 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 sustained a low back injury in the performance of duty on
September 7, 2010.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 55-year-old supervisor, filed a
claim for traumatic injury on September 15, 2010, alleging that he sustained a ruptured disc at
1

5 U.S.C. § 8101 et seq.

L4-5 while lifting mail containers on September 7, 2010. The record indicates that he had prior
claims which were denied by OWCP. In OWCP file number xxxxxx935, appellant claimed a
back injury caused by occupational disease on or before May 28, 2010. In OWCP file number
xxxxxx738, he claimed an occupational disease on or before September 8, 2010.
In a report dated October 7, 2010, Dr. Sameh Yonan, Board-certified in pain medicine,
stated that appellant had been off work since September 7, 2010 due to back and leg pain. He
advised that appellant had increased low back pain radiating down his left buttocks and leg, and
numbness in his right foot.
On February 25, 2011 Dr. Randy B. Reed, a chiropractor, stated that he began treating
appellant on June 1, 2010 for complaints of severe low back pain and pain with numbness and
tingling radiating down his left leg. Appellant had been doing repetitive lifting at work and
began experiencing increasing, severe pain in his back on May 28, 2010. Dr. Reed stated that
the pain had progressed to the extent that he could barely walk at the time of his initial visit.
Appellant attempted to return to work after being off and allegedly injured his lower back again
at work on September 7, 2010. Dr. Reed determined that appellant had sustained a severe disc
injury along with lumbar misalignments; i.e., subluxation, with fixations. He stated that
appellant underwent a magnetic resonance imaging (MRI) scan on June 10, 2010 which
confirmed that he had a lumbar disc protrusion into the lateral recess of L4-5. Dr. Reed opined
based on appellant’s history, examination findings and MRI scan results that this injury was
directly caused by the repetitive lifting at work.
In a February 25, 2011 report, Dr. Anthony F. Berardino, a chiropractor, stated that
appellant had complaints of lumbar pain radiating to the left leg, thigh and buttocks. He advised
that appellant had alleged that he sustained an injury on May 28, 2010 while loading mail for the
letter carriers. This job required constant stooping and lifting mail sacks and buckets. Appellant
underwent an MRI scan, which showed bulging discs in his lumbar spine, most prominently at
L4-5. He was treated with epidural shots and medication and his condition slightly improved.
Appellant attempted to return to work on September 7, 2010 but again experienced shooting
pain. The pain returned and increased to the extent that he could not continue his work.
Dr. Berardino stated that appellant’s job with the employing establishment required constant
bending and lifting of mail sacks which occasionally weighed more than 50 pounds. He advised
that this persistent, constant stress to the spine could cause the microfibers in the disc to
asymptomatically tear until a significant disc bulge produced the signs and symptoms appellant
was currently experiencing. Based on these facts, Dr. Berardino opined that appellant’s signs
and symptoms were causally related to the May 28, 2010 work incident.
By decision dated March 18, 2011, OWCP denied appellant’s claim, finding that he failed
to submit sufficient medical evidence in support of his claim that he sustained a lower back
injury in the performance of duty on September 7, 2010. By decision dated August 5, 2011, an
OWCP hearing representative affirmed the March 18, 2011 decision. Appellant requested
reconsideration on March 14, 2012. By decision dated November 6, 2012, OWCP denied
modification of the August 14, 2011 decision. In an April 1, 2013 decision,2 the Board affirmed
2

Docket No. 13-308 (issued April 1, 2013).

2

the November 6, 2012 decision. The complete facts of this case are set forth in the Board’s
April 1, 2013 decision and are herein incorporated by reference.
In a January 2, 2014 report, Dr. Robert Reppy, an osteopath, stated the history of injury.
He advised that appellant began to experience burning pain in his back, left leg, left buttock and
thigh which was accompanied by severe tingling in the entire left leg, including the foot and toes.
Dr. Reppy diagnosed bulging discs at L2-3, L3-4, and L4-5, as shown by a June 10, 2010 lumbar
MRI scan.
On January 29, 2014 Dr. Ramon Berenguer, an internist, stated that he had undertaken a
review of all the patient’s medical records, including all office visits by different doctors, all
diagnoses, all diagnostic tests, and the interpretation of these tests, and all other medical records
brought by appellant from other medical providers. He advised that appellant had complaints of
low back pain radiating down to the left leg and left foot. Dr. Berenguer rated the pain as
typically a 3 or 4 on a scale of 1 to 10; this increased to 9 or 10 on occasion. He advised that an
examination of the lumbar spine revealed tenderness on palpation from L2 to S1, with some
muscle spasms bilaterally. Dr. Berenguer stated that appellant’s range of motion was reduced on
flexion from 90 to 45 degrees.
In a February 26, 2014 report, Dr. Berenguer stated that examination of the lumbar spine
showed midline tenderness and paravertebral muscles, bilaterally. Appellant continued to show
reduced range of motion and was intact neurovascularly at the distally lower extremities.
Dr. Berenguer stated that the results of lumbar x-rays showed no acute fracture or dislocation.
He diagnosed lumbar disc disease at L2-3, L3-4, L4-5, and left lower extremity radiculopathy.
Dr. Berenguer stated that he would continue with the current plan of care. He advised that
appellant was improving slowly but was still unable to work due to his injuries. Dr. Berenguer
opined that appellant’s low back injury, taking into consideration his job and role, were a direct
result of the stress caused on his back in the performance of his job.
By letter dated March 14, 2014, appellant, through counsel, requested reconsideration.
By decision dated June 6, 2014, OWCP denied appellant’s request for modification.
In a July 24, 2014 report, Dr. Reppy stated that, after appellant was injured in May 2008,
he made one attempt to return to work on September 7, 2010; however, this caused the shooting
pain down the legs to return with a vengeance, which was sufficiently severe that he became
unable to work. Dr. Reppy advised that appellant underwent an MRI scan of the lumbar spine on
January 15, 2014 which showed degenerative changes at multiple disc levels and facet
arthropathy at L5-S1, with bulging discs at L2-3, L3-4, and L4-5. He diagnosed lumbar disc
syndrome and facet arthropathy; he did not believe that appellant had a lumbar sprain/strain.
Dr. Reppy stated:
“The chain of causation and mechanism of injury by which the work actions
described (stooping and lifting heavy mail sacks) can cause the diagnoses listed
above are well known and unfortunately, all too common. The intervertebral
discs at all levels of the spine consist of a soft and pliable inner core called the
nucleus pulposus which is contained by a ring of more sturdy material called the
3

annulus. Prolonged stress applied to one of these annulus rings can create small
tears within it, disrupting its integrity. Repetitive episodes of the same stress tend
to be applied to the same point, resulting in these small tears and cracks enlarging,
rather like working a soft piece of metal back- and-forth until it breaks.
Eventually the network of cracks in an annulus can link up to create a path of least
resistance which lacks the tensile strength of the rest of the ring. At that point the
stage is set for just one more, relatively small stressor to “break of the dam” so to
speak, and allow the nucleus pulposus to bulge out, rupture, or even herniate.
This is precisely what happened in the lumbar spine at the L2-3, L3-4, and L4-5.
“The facet arthropathy is a wear and tear phenomenon that probably developed
gradually during the years of appellant worked for the post office. Although the
specific lifting incident of May 28, 2010 was not likely to have originated the
arthropathy, the repetitive nature and duration of the work actions required by
appellant’s occupation were sufficient to have produced the facet arthropathy as a
preexisting condition, and thereupon the lifting injury of May 28, 2010
aggravated it.
“It is my medical opinion, within reasonable medical certainty, that appellant’s
conditions i.e., the disc disease and the facet arthropathy, were caused by an
aggravation or direct result of the strain on the patient’s back as he constantly had
to stoop and lift heavy mail sacks as part of his job functions with the [employing
establishment] on May 28, 2010.”
By decision dated November 17, 2014, OWCP denied appellant’s request for
modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

4

First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place, and in the manner alleged.6 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish that
the employment incident caused a personal injury.7
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
It is uncontested that appellant experienced pain in his lower back while lifting mail
containers on September 7, 2010. OWCP has accepted that the incident occurred as alleged. The
question of whether an employment incident caused a personal injury can only be established by
probative medical evidence.10 Appellant has not submitted rationalized, probative medical
evidence to establish that the September 7, 2010 employment incident would have been competent
to cause the claimed injury.
Following the Board’s last review of this case, appellant submitted reports from
Drs. Reppy and Berenguer, who diagnosed lumbar disc disease at L2-3, L3-4, L4-5, left lower
extremity radiculopathy and facet arthropathy which they generally attributed to employment
factors. These physicians, however, did not provide a probative, rationalized opinion regarding
whether the September 7, 2010 work incident caused a personal injury. The weight of medical
opinion is determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated
conclusions.11 Most of the medical evidence appellant submitted pertained to appellant’s alleged
May 28, 2010 injury.
Although Drs. Reppy and Berenguer provided diagnosis of lumbar disc disease at L2-3,
L3-4, L4-5, left lower extremity radiculopathy and facet arthropathy they did not submit a report
6

John J. Carlone, 41 ECAB 354 (1989).

7

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(e)(e).

8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

10

Supra note 6.

11

See Anna C. Leanza, 48 ECAB 115 (1996).

5

which related these diagnoses to appellant’s claimed lower back and sufficiently address how the
diagnosed condition was causally related to the September 7, 2010 work incident. In his
January 2, 2014 report, Dr. Reppy diagnosed bulging discs at L2-3, L3-4, and L4-5, as shown by
a June 10, 2010 an MRI scan. In his January 29, 2014 report, Dr. Berenguer stated that appellant
had complaints of low back pain radiating down to the left leg and left foot. He advised in a
February 26, 2014 report that the results of lumbar x-rays showed no acute fracture or
dislocation. Dr. Berenguer diagnosed lumbar disc disease at L2-3, L3-4, L4-5, and left lower
extremity radiculopathy. He stated that appellant’s low back injury, taking into consideration his
job and role, were a direct result of the stress caused on his back in the performance of his job.
In his July 24, 2014 report, Dr. Reppy primarily focused on whether the May 28, 2010
incident and appellant’s lumbar disc syndrome and facet L5-S1 arthropathy were caused or
aggravated by work factors, as opposed to whether the September 7, 2010 container lifting
incident resulted in a herniated disc injury. He advised that appellant underwent an MRI scan of
the lumbar spine on January 15, 2014 which showed degenerative changes at multiple disc levels
and facet arthropathy at L5-S1, with bulging discs at L2-3, L3-4, and L4-5. Dr. Reppy
diagnosed lumbar disc syndrome and facet arthropathy; he did not believe that appellant had
sustained a lumbar sprain/strain injury. He stated that when appellant attempted to return to
work on September 7, 2010 he experienced pain down his legs which caused him to be unable to
work. Dr. Reppy stated that the facet arthropathy was a wear and tear phenomenon that probably
developed gradually during the years he spent working for the employing establishment. He
advised that, although the specific lifting incident of May 28, 2010 was not likely to have
originated the arthropathy, the repetitive nature and duration of the work actions required by
appellant’s job were sufficient to have produced the facet arthropathy as a preexisting condition,
and consequently the lifting injury of May 28, 2010 aggravated it. Dr. Reppy opined that disc
disease and the facet arthropathy were caused by an aggravation or direct result of the strain on
the patient’s back as he constantly had to stoop and lift heavy mail sacks as part of his job
functions with the employing establishment on May 28, 2010.
The reports from Drs. Berenguer and Reppy did not sufficiently explain how, medically,
appellant would have sustained a low back injury while lifting containers on September 7, 2010.
They did not adequately describe appellant’s September 7, 2010 incident and how it would have
been competent to cause the claimed conditions. The opinions of Drs. Berenguer and Reppy
regarding causal relationship are of limited probative value for the further reason that they did
not provide adequate medical rationale in support of their conclusions.12 It is unclear if
Dr. Reppy had an accurate history as he attributed appellant’s low back symptoms to years of
stooping and lifting heavy mail sacks in his job with the employing establishment and his
previous May 28, 2008 injury, not the alleged September 7, 2010 work incident.13 He stated that
appellant did not sustain a sprain or strain injury but opined that he developed disc disease and
facet arthropathy caused by an aggravation or direct result of the strain on the patient’s back; this
was the accumulation of constant stooping and lifting heavy mail sacks as part of his job
functions with the employing establishment, which resulted in the May 28, 2010 injury.
12

William C. Thomas, 45 ECAB 591 (1994).

13

See Geraldine H. Johnson, 44 ECAB 745 (1993).

6

Dr. Reppy’s reports do not constitute sufficient medical evidence demonstrating a causal
connection between appellant’s September 7, 2010 work incident and his claimed lower back
injury.
On appeal, appellant’s counsel contends that appellant has provided sufficient factual and
medical evidence to support a causal relationship between appellant’s injuries and his work
duties. He argues that, regardless of whether appellant filed the injury claim as a result of the
May event or the September aggravation, he sustained an injury as a direct result of his
workplace functions with the employing establishment and his claim should not be denied due to
a “technical error.” Counsel notes that appellant began to feel pain while performing the same
duties in late May as he did on September 7, 2010, but did not immediately consider the cause of
the injury.
He contends that, where the relative circumstances, such as repetitive
stooping/bending and heavy lifting, strongly suggest a causal relationship and where the medical
evidence also supports a causal relationship, appellant has met his burden of proof. Counsel
states that because Dr. Reppy referenced a return of appellant’s symptoms in September 2010
which originated from work duties in May 2010, it was possible that appellant could or should
have filed an occupational disease claim, since Dr. Reppy opined that his injuries had worsened
over time due to his long-term work duties. He argues that, while submission of an incorrect
form is a “technical error,” it is improper to deny a case on this basis. Counsel contends that
appellant has presented sufficient evidence to demonstrate that he was injured at the workplace
due to repetitive lifting, which took place in September as well as May and that the evidence he
submitted at least raises an uncontroverted inference of causal relationship. The Board, however,
does not accept his contentions. As noted above, appellant filed a traumatic injury claim for an
alleged September 7, 2010 work injury, and it is his burden to submit rationalized medical
opinion evidence sufficient to establish that the alleged September 7, 2010 employment incident
would have been competent to cause the claimed work injury. His prior claims for May 2010 and
September 2010 occupational disease are separate claims. For the reasons set forth above,
appellant has failed to meet this burden. The Board will affirm OWCP’s November 17, 2014
decision.
OWCP advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Causal relationship must be established by rationalized
medical opinion evidence. Appellant did not provide a medical opinion which describes or
explains the medical process through which the September 7, 2010 work accident would have
caused the claimed injury. Accordingly, he did not establish that he sustained his lower back
injury in the performance of duty. OWCP properly denied appellant’s claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a lower back injury
in the performance of duty on September 7, 2010.

7

ORDER
IT IS HEREBY ORDERED THAT the November 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2015
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Arlington, WA, Employer
__________________________________________
Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-808
Issued: September 27, 2011

Case Submitted on the Record

ORDER GRANTING REQUEST FOR ORAL ARGUMENT
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

By application received on February 11, 2011 appellant filed for review of a
November 16, 2010 decision of the Office of Workers’ Compensation Programs (OWCP). The
appeal was docketed as No. 11-808. On appeal appellant requested an oral argument on his
claim. He stated that he wished to discuss four issues with respect to the termination of
compensation based on refusal of suitable work. Appellant indicated there were both procedural
and substantive issues raised in the November 16, 2010 OWCP decision.
The Board has duly considered the matter and finds that appellant’s timely request for
oral argument should be granted. Appellant has requested an oral argument to address issues
regarding the termination of compensation effective November 15, 2010 pursuant to 5 U.S.C.
§ 8106(c)(2). According to 20 C.F.R. § 501.5(a), oral argument may be held in the discretion of
the Board. The Board, in its discretion, grants oral argument.

IT IS HEREBY ORDERED THAT appellant’s request for oral argument in Docket
No. 11-808 be granted.
Issued: September 27, 2011
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECUIRTY
ADMINISTRATION, Arlington, VA, Employer
__________________________________________

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

Docket No. 06-1743
Issued: April 5, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 24, 2006 appellant filed a timely appeal of a June 13, 2006 merit decision of the
Office of Workers’ Compensation Programs concerning an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
overpayment decision.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment for the period June 21 to July 9, 2004, in the amount of $1,148.28; and (2) whether
the Office properly determined that he was not without fault in the creation of the overpayment
and, therefore, not entitled to waiver.
FACTUAL HISTORY
On August 13, 2003 appellant, then a 42-year-old transportation security screener, filed a
claim for back problems related to lifting passenger baggage in excess of 40 pounds. He did not

initially stop work. By letter dated October 22, 2003, the Office accepted the claim for lumbar
strain/sprain. The Office advised appellant that compensation benefits for total disability were
only payable while he could not perform work because of his injury. He was advised to inform
the Office if he returned to work and to return any payment to the Office to minimize the
possibility of an overpayment. Appellant was also advised of the penalties for accepting
compensation payments to which he was not entitled. The Office paid wage-loss and medical
compensation for all relevant periods. On June 21, 2004 appellant returned to full-time lightduty work at the employing establishment. He also notified the Office of his return to work.
On July 2, 2004 appellant filed a Form CA-7 claim for compensation for wage loss for
the period June 26 to July 2, 2004. The form noted the penalties for accepting compensation to
which a person is not entitled, which appellant acknowledged by his signature. On June 25,
2004 the Office paid $726.71 in wage-loss compensation for the period June 12 to 25, 2004. On
July 16, 2004 the Office paid $726.71 wage-loss compensation for the period June 26 to
July 9, 2004.1 On August 6, 2004 the Office calculated a $1,148.28 wage-loss compensation for
the period June 21 to July 9, 2004.
By decision dated August 31, 2004, the Office terminated appellant’s entitlement to wage
loss and medical compensation benefits effective the same date.
On September 30, 2005 the Office notified appellant of its preliminary determination that
he received an overpayment of compensation in the amount of $1,148.28, because he returned to
full-time duty on June 21, 2004 but received compensation for temporary total disability from
June 26 to July 9, 2004. The Office found that appellant was not without fault in the creation of
the overpayment because he was paid his salary by the employing establishment and received
compensation from the Office after he returned to work. The Office advised him that he had 30
days in which to submit evidence of argument if he disagreed with the preliminary
determination. No response was received from appellant regarding the Office’s preliminary
determination.
By decision dated June 13, 2006, the Office finalized its determination that appellant
received an overpayment of compensation in the amount of $1,148.28. It found that he returned
to full-time duty on June 21, 2004; however, compensation payments for total disability
continued from June 26 to July 9, 2004 as appellant filed a CA-7 claim for time loss after he
returned from work. The Office determined that appellant accepted payments he knew or should
have known to be incorrect, because he received compensation payments for wage loss despite
having returned to full-time duty. It finalized its determination that appellant was not without
fault in the creation of the overpayment and, therefore, not entitled to waiver. Appellant was
advised to either forward a check for the entire amount of the overpayment or to contact the
Office to make arrangements for repayment.

1

The gross amount of compensation is noted to be $820.20.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act defines the limitations on the
right to receive compensation benefits. This section of the Act provides that, while an employee
is receiving compensation, he may not receive salary, pay or remuneration of any type from the
United States, except in limited circumstances.2 The Office regulation, at 20 C.F.R. § 10.500(a),
provides that benefits are available only while the effects of a work-related condition continue.
Compensation for wage loss due to disability is available only for any periods during which an
employee’s work-related medical condition prevents him or her from earning the wages earned
before the work-related injury.3 When a claimant receives a duplicative compensation payment
for a period that he has already received compensation for wage loss, an overpayment of
compensation is created.4
ANALYSIS -- ISSUE 1
The record establishes that appellant returned to full-time duty on June 21, 2004.
However, he received compensation for temporary total disability from June 26 to July 9, 2004.
On June 25 and July 16, 2004 the Office issued compensation checks for the period June 12 to
25 and June 21 to July 9, 2004, respectively. In calculating the overpayment, the Office
determined that for the period June 21 to July 9, 2004 appellant received compensation in the
amount of $1,148.28. This included $820.20, for the entire period June 26 through July 9, 2004
and a portion from the period June 12 to 25, 2004 which reflected the portion paid from June 21
to 25, 2004 while appellant was working at the employing establishment. After he returned to
full-time work on June 21, 2004, he had no entitlement to compensation on or after
June 21, 2004. Thus, an overpayment of compensation was created for the period June 21 to
July 9, 2004. Although appellant advised that he never received payment from the employing
establishment, this is separate from compensation received under the Act. He has not submitted
any evidence showing that he did not receive his regular salary while in receipt of compensation
for the period June 21 to July 9, 2004. The Office properly determined that appellant received an
overpayment of compensation in the amount of $1,148.28 for the period June 21 to July 9, 2004.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act provides as follows: Adjustment or recovery by the United
States may not be made when incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.5 No waiver of an overpayment is possible if the claimant is
at fault in creating the overpayment.6
2

5 U.S.C. § 8116(a).

3

20 C.F.R. § 10.500(a).

4

See Lawrence J. Dubuque, 55 ECAB 667 (2004).

5

5 U.S.C. § 8129(b).

6

Gregg B. Manston, 45 ECAB 344 (1994).

3

On the issue of fault, 20 C.F.R. § 10.433(a) provides in pertinent part:
“An individual is with fault in the creation of an overpayment who: (1) made an
incorrect statement as to a material fact which the individual knew or should have
known to be incorrect; or (2) failed to furnish information which the individual
knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have
been expected to know was incorrect.”7
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“(b) Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”8
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. In order for the Office to establish that appellant was at fault in creating the
overpayment of compensation, the Office must establish that, at the time appellant received the
compensation checks in question he knew or should have known that the payment was
incorrect.9
The overpayment of compensation occurred in this case when appellant accepted two
compensation checks which encompassed periods after he returned to work on June 21, 2004.
These checks covered the period June 12 to 25 and June 26 to July 9, 2004. Consequently, for
appellant to be found at fault in creating the overpayments, the evidence must establish that,
when he accepted these two compensation checks he knew or should have been expected to
know that each check included a payment for a period of wage loss to which he was not
entitled.10
With respect to the June 25, 2004 check which covered the period June 12 to 25, 2004,
the record contains no evidence that appellant was apprised by the Office, as of the time he
accepted the compensation checks, of the specific period the check covered so as to put him on
7

Kenneth E. Rush, 51 ECAB 116 (1999).

8

20 C.F.R. § 10.433(b).

9

See Robin O. Porter, 40 ECAB 421 (1989).

10

Id.; see also Michael R. Nixon, 40 ECAB 398 (1988); Marlene R. Pavlo, 38 ECAB 716 (1987) (where the
Board found that appellant was without fault where the record contained no evidence indicating that she was
apprised by the Office, as of the time she received the compensation check, of the specific period the check covered
so as to put her on notice that she was being paid incorrectly for a period of time during which she worked).

4

notice that he was being paid incorrectly for a period of time during which he worked.11 If such
evidence existed which established that appellant had notice that he was accepting an incorrect
payment, this would establish fault. However, the record does not contain a copy of the
compensation check in question. There is also no evidence in the record that any letter or other
information accompanied the check which would have reasonably put appellant on notice that he
had received an incorrect payment. As noted above, in determining whether an individual is
without fault, the Office must consider an individual’s understanding of the obligation to return
payments which were not due. If there is no evidence which indicates that an individual knew or
should have known at the time the incorrect payment was accepted that the payment was not due,
the Office cannot meet its burden of proof in finding that such individual was at fault in
accepting an incorrect payment. There is no other evidence of record which put appellant on
notice that the June 25, 2004 compensation check was for a period of time to which he was not
entitled to compensation. For this reason, the Office has not met its burden of proof in
establishing that he was at fault in creating the portion of the compensation check issued June 25,
2004 to reflect the portion paid from June 21 to 25, 2004, while appellant was working at the
employing establishment.
With respect to the second check issued July 16, 2004, which covered the period June 26
to July 9, 2004, the Office informed appellant that he must return checks received after he
returned to work in order to avoid an overpayment of compensation. Appellant returned to work
on June 21, 2004. Although he notified the Office that he had returned to work, the Office’s
error in not terminating compensation immediately upon receiving this notice does not excuse
appellant’s acceptance of payment for total disability during a period that he was working full
time.12 Additionally, appellant was advised in both the Office’s acceptance letter of October 22,
2003 and on the CA-7 compensation claim form which he filed on July 2, 2004, of the penalty
provision for accepting compensation for which he was not entitled. He should have been
reasonably aware by this time that he could not receive wage-loss compensation for a period in
which he had also returned to work. The Board finds that appellant knew or should have known
that he was not entitled to the check issued July 16, 2004.13 As appellant was at fault in the
matter of the overpayment for the second check issued on July 16, 2004, the overpayment of
compensation cannot be waived.14
CONCLUSION
The Board finds that an overpayment of $1,148.28, was created for the period June 21
through July 9, 2004. However, the Board finds that the Office did not meet its burden of proof
in establishing that appellant was at fault in creating the overpayment of compensation for the
11

Robin O. Porter, supra note 9.

12

Lynden F. Moser, 37 ECAB 725, 728 (1986).

13

See Claude T. Green, 42 ECAB 274 (1990) (where the Board found that the lapse of time between the return to
work and the continued receipt of compensation is to be considered in determining whether a claimant is at fault in
creating an overpayment).
14

As the Office did not issue a final decision on recovery of the overpayment the Board has no jurisdiction
regarding this matter. 20 C.F.R. § 501.2(c).

5

period paid June 21 to 25, 2004. Thus, the June 13, 2006 decision is reversed as to the finding of
fault for the overpayment of compensation paid for the period June 21 to 25, 2004 and the case is
remanded to the Office for a determination on the issue of whether appellant is entitled to waiver
of the overpayment. The June 13, 2006 decision is affirmed as to the finding of fault for
overpayment of compensation paid for the period June 26 to July 9, 2004.
ORDER
IT IS HEREBY ORDERED THAT the June 13, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part and the case remanded
for further action consistent with this decision.
Issued: April 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
U.S. POSTAL SERVICE, PRIORITY MAIL
CENTER, Romulus, MI, Employer
__________________________________________

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

Docket No. 09-2237
Issued: June 28, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 8, 2009 appellant filed a timely appeal from an August 13, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(e), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established entitlement to wage-loss compensation
from November 21, 2006 to January 16, 2007.
FACTUAL HISTORY
On November 3, 2006 appellant, then a 59-year-old mail sorter, filed a recurrence of
disability claim (Form CA-2a), reporting the date of injury as November 1, 2003, the date of
recurrence as September 28, 2006 and the date she stopped working as October 13, 2006.1 On
1

The record indicates that appellant has an accepted lumbar strain causally related to a November 1, 2003
employment incident, under the Office File No. xxxxxx820.

the claim form she stated that her back pain never went away and became worse after Christmas.
She listed incidents at work on September 28 and 29 and October 4, 2006, when she experienced
back pain.
By letter dated December 7, 2006, the Office advised appellant that, since she had
reported new employment factors, her claim would be developed as an occupational disease
claim. With respect to the medical evidence, appellant submitted an undated Form CA-20
(attending physician’s report) from Dr. Donald Seyfried, a neurosurgeon, who diagnosed lumbar
spondylolisthesis and indicated that she underwent an L4-5 laminectomy with pedicle screw
fusion on October 16, 2006. Dr. Seyfried reported that she was disabled from October 16, 2006
to January 16, 2007. In response to a question as to causal relationship between the diagnosed
condition and employment, he stated, “unknown.” In a report dated December 18, 2006,
Dr. Seyfried advised that appellant was recovering well from surgery. He stated that the L4-5
spondylolisthesis was a degenerative condition, but her occupation “could have exacerbated the
symptoms and pain.”
In a narrative statement dated January 3, 2007, appellant stated that her back pain had
increased in December 2005, noting that she had to move heavy containers. She noted that mail
weighed up to 20 pounds and described her job duties. Appellant indicated that there was
significant bending, turning, lifting and raising above the head.
By decision dated February 26, 2007, the Office denied the claim for compensation. It
found that the medical evidence did not include a well-reasoned medical opinion on the causal
relationship between the diagnosed back condition and her employment-related duties as a mail
sorter.
Appellant requested a telephonic hearing before an Office hearing representative, which
was held on August 13, 2007. In an August 27, 2007 report, Dr. Richard Dryer, an internist,
stated that her specific symptoms started on September 27, 2006. Appellant developed back pain
at work when she lifted her right leg up. Dr. Dryer noted pain the next day and an episode five
days later at work when she picked up her leg to step. He stated, “It is my feeling that
[appellant] had a work-related condition leading to eventual operation and leading to her
disability for a 12-week period of time.”
By decision dated November 6, 2007, an Office hearing representative remanded the case
for further development of the medical evidence on the issue of causal relationship. The Office
referred appellant, together with a statement of accepted facts and medical records, to Dr. Bruce
Abrams, an orthopedic surgeon. In a report dated February 8, 2008, Dr. Abrams provided a
history and results on examination. He diagnosed status post L5 laminectomy. Dr. Abrams
stated appellant’s “symptoms when she bent, twisted, et-cetera,” caused a temporary aggravation
of her preexisting degenerative arthritic condition of the lumbar spine, which was resolved when
she returned to work in January 2007.2

2

Appellant retired in October 2007.

2

In a letter dated March 5, 2008, the Office advised appellant that the claim was accepted
for a temporary aggravation of preexisting arthritis. Appellant filed a claim for compensation
(Form CA-7) for the period November 21, 2006 to January 16, 2007.
By letter dated March 21, 2008, the Office asked Dr. Abrams for a supplemental report
addressing the issue of whether the surgery was medically necessary for treatment of the
accepted condition. In a report dated March 27, 2008, Dr. Abrams noted that a July 13, 2006
electrodiagnostic study showed inactive L5, possibly S1 radiculopathies with no ongoing
denervation. He stated that this would mean there was nothing causing compression of the L4-5
nerve root and he questioned whether the disc surgery and fusion was appropriate or necessary
for this condition. In response to a question as to what condition the surgery did treat if not the
accepted condition, Dr. Abrams stated that the surgery probably treated the ongoing degenerative
condition.
The Office referred the medical records to an Office medical adviser for an opinion
regarding the necessity of surgery. In an April 30, 2008 report, the Office medical adviser stated
that Dr. Abrams provided an excellent report and suggested the Office accept his opinion.
By decision dated January 20, 2009, the Office denied appellant’s claim for
compensation from November 21, 2006 to January 16, 2007. It determined that the October 16,
2006 surgery and her subsequent disability was not employment related.
Appellant requested a telephonic hearing, which was held on May 11, 2009. In a CA-20
form dated May 5, 2008, Dr. Dryer indicated that she was disabled from October 10, 2007.
By decision dated August 13, 2009, the hearing representative affirmed the January 20,
2009 decision.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability or aid in
lessening the amount of the monthly compensation.3 The Office has the general objective of
ensuring that an employee recovers from her injury to the fullest extent possible in the shortest
amount of time. It therefore has broad administrative discretion in choosing means to achieve
this goal. The only limitation on the Office’s authority is that of reasonableness.4
While the Office is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for the treatment of the
effects of an employment-related injury or condition.5 To prove that, a surgical procedure is
3

5 U.S.C. § 8103(a).

4

Francis H. Smith, 46 ECAB 392 (1995); Daniel J. Perea, 42 ECAB 214 (1990).

5

See Debra S. King, 44 ECAB 203, 209 (1992).

3

warranted, she must submit evidence to show that the procedure was for a condition causally
related to the employment injury and that the surgery was medically warranted.6
With respect to a claimed period of disability, an employee has the burden of establishing
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.7 The term disability is defined as the incapacity because of an
employment injury to earn the wages the employee was receiving at the time of the injury, i.e., a
physical impairment resulting in loss of wage-earning capacity.8
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.9 The medical evidence required to establish
a period of employment-related disability is rationalized medical evidence.10 Rationalized
medical evidence is medical evidence based on a complete factual and medical background of
the claimant, of reasonable medical certainty, with an opinion supported by medical rationale.11
ANALYSIS
The Office accepted a temporary aggravation of an underlying degenerative lumbar
arthritis condition. As to the employment factors alleged to have caused the condition, appellant
initially noted three episodes at work commencing September 28, 2006. In her January 3, 2007
statement, appellant implicated a range of employment activities over several years, including
bending, pushing containers and lifting parcels. The Office has primarily focused on the
employment incidents since September 28, 2006 but it does not appear to dispute that she
performed the identified work duties.12
Appellant underwent back surgery on October 16, 2006 and she filed a claim for wageloss compensation from November 21, 2006 to January 16, 2007. It is her burden of proof to
establish that the surgery and period of disability claimed were due to the accepted aggravation
of degenerative lumber disease and medically necessary for treatment of that condition.
None of the attending physicians of record offered a rationalized medical opinion on the
issue. Dr. Dryer briefly stated that he believed appellant had a work-related condition leading up
to surgery, without providing medical rationale. He did not provide a complete medical history
6

R.L., 60 ECAB ___ (Docket No. 08-855, issued October 6, 2008).

7

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

8

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
9

See Fereidoon Kharabi, 52 ECAB 291 (2001).

10

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

Leslie C. Moore, 52 ECAB 132 (2000).

12

For example, the March 21, 2008 letter to Dr. Abrams refers to the accepted condition “which resulted from the
work events beginning [September 28, 2006].”

4

of appellant’s back condition or treatment, describe the employment-related condition or explain
why he felt the October 16, 2006 surgery was appropriate to treat the employment-related
condition.
Dr. Abrams questioned whether the October 16, 2006 surgery was appropriate to treat
appellant’s back condition. He stated that the surgery was performed to treat the underlying
degenerative condition, not the accepted aggravation. As noted, the only limitation on the
Office’s authority in authorizing surgery is reasonableness. Based on the evidence, the Office
did not abuse its discretion by relying on Dr. Abrams opinion that the October 16, 2006 surgery
was not causally related to employment or medically necessary.
With respect to the claimed period of disability following the surgery, the Board finds no
rationalized medical opinion from an attending physician supporting an employment-related
disability. Dr. Seyfried referred to disability from October 16, 2006 to January 16, 2007, without
further explanation on causal relationship. He noted in response to a question on causal
relationship that it was “unknown.” Appellant did not meet her burden of proof to establish
employment-related disability for the period following surgery on October 16, 2006 to
January 16, 2007, when she returned to work.
The Board notes that appellant argued before the Office hearing representative that her
referral to Dr. Abrams was inappropriate as he had previously been involved in the case.
Appellant did not identify any specific deficiency in the reports or opinion of the physician.
Dr. Abrams served as a second opinion physician and there is no evidence that requesting a
report on a different issue in a case he had previously reviewed was inappropriate.13
CONCLUSION
The Board finds that appellant has not established entitlement to wage-loss compensation
from November 21, 2006 to January 16, 2007.

13

Contrast Wallace B. Page, 46 ECAB 227 (1994).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 13, 2009 is affirmed.
Issued: June 28, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Fort Worth, TX, Employer
__________________________________________

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

Docket No. 15-179
Issued: March 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 3, 2014 appellant filed a timely appeal from a July 23, 2014 decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than one percent permanent impairment of his
left leg for which he received a schedule award.
FACTUAL HISTORY
On October 3, 2013 appellant, then a 37-year-old cook supervisor, filed a traumatic injury
claim (Form CA-1) alleging that on October 1, 2013 he was moving trays from the rack to the
serving line when he felt a sudden onset of pain in his lower back, causing him to fall to the
1

5 U.S.C. § 8101 et seq.

ground. He complained of lower back pain with numbness, and tingling radiating into his legs
and feet.
By decision dated December 2, 2013, OWCP accepted the claim for herniated lumbar
disc at L4-5. The claim was later expanded to include displacement of lumbar intervertebral disc
without myelopathy.
Appellant sought treatment with various providers and was referred to Dr. Jack M. Klem,
a Board-certified neurosurgeon, for a neurological consultation pertaining to his work-related
injury.
On March 3, 2014 appellant underwent a left lateral L4-5 discectomy and decompressive
foraminotomy to decompress the left L4 and L5 nerve roots. Dr. Klem noted the pre- and
postoperative diagnosis as left L4 and L5 radiculopathy with motor weakness secondary to left
lateral L4-5 disc herniations. The surgery was approved by OWCP.
On April 27, 2014 appellant filed a claim for a schedule award (Form CA-7).
By letter dated May 13, 2013, OWCP requested that appellant submit an impairment
evaluation from his attending physician in accordance with the American Medical Association,
Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides). It provided
him 30 days to submit the requested impairment evaluation.
In a June 17, 2014 report, Dr. Klem reported that appellant had done well postoperatively
with resolution of his lower back pain and radiculopathy. He noted some residual numbness to
the distal left lower extremity. Dr. Klem provided findings on physical examination which
revealed full strength movement of all extremities, well-healed lumbar incision, stable and steady
gait, no observable discomfort upon standing from a sitting position or with ambulation, and
some residual numbness to the distal left lower extremity. He diagnosed post-left lateral L4-5
discectomy with resolution of lower back pain and radiculopathy. Dr. Klem opined that
appellant had reached maximum medical improvement (MMI) and had 12 percent impairment
given his slight residual numbness. He noted that appellant’s impairment had been greater prior
to surgery given the motor weakness to his left foot, which had since improved to symmetrical
strength. Dr. Klem stated that, because the surgical intervention decompressed the affected
nerve root which was causing the sensory and motor changes, appellant only had a slight residual
sensory deficit which accounted for his remaining impairment.
OWCP properly routed Dr. Klem’s report and the case file to Dr. James W. Dyer, a
Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA), for
review and a determination on whether appellant sustained a permanent partial impairment of the
left lower extremity and date of MMI.
In a July 3, 2014 report, Dr. Dyer reported that appellant reached MMI on June 17, 2014,
the date of Dr. Klem’s examination. The DMA noted that, beginning November 1, 2013,
appellant had chronic lower back pain with radiation to the left knee and right thigh. The pain
was described as numbness and stabbing, which increased with lifting trays of mail and
prolonged standing and sitting. Dr. Dyer disagreed with Dr. Klem’s 12 percent left lower
extremity impairment rating, stating that he did not properly utilize the A.M.A., Guides for
2

impairment due to left L4 slight or mild residual numbness of the left leg. He stated that
Dr. Klem probably used the A.M.A., Guides peripheral nerve impairment grids when calculating
his impairment rating rather than the mandated use of The Guides Newsletter for spinal nerve
root extremity impairment of the left L4 root.2 Dr. Dyer referred to Table 2 of The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment, to determine class 1 grade C severity of
left L4 mild sensory deficit resulting in a schedule award for one percent impairment of the left
lower extremity.3
By decision dated July 23, 2014, OWCP granted appellant a schedule award claim for
one percent permanent impairment of the left leg. It found that the weight of the medical
evidence rested with Dr. Dyer serving as OWCP’s DMA. The date of MMI was noted as
June 17, 2014, the date of Dr. Klem’s examination. The award covered a period of 2.88 weeks
from June 17 to July 7, 2014.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.4 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides (6th ed. 2009) has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5
It is the claimant’s burden to establish that he has sustained a permanent impairment of
the scheduled member or function as a result of any employment injury.6 OWCP procedures
provide that, to support a schedule award, the file must contain competent medical evidence
which shows that the impairment has reached a permanent and fixed state and indicates the date
on which this occurred (date of maximum medical improvement), describes the impairment in
sufficient detail so that it can be visualized on review, and computes the percentage of
impairment in accordance with the A.M.A., Guides.7

2

The Guides Newsletter, 6th edition (July/August 2009).

3

Id. at page 6, Table 2.

4

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

5

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
6

Tammy L. Meehan, 53 ECAB 229 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (February 2013).

3

Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8 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.9
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment.10 For peripheral nerve impairments to the upper
or lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth edition
(July/August 2009) is to be applied.11 FECA-approved methodology is premised on evidence of
radiculopathy affecting the upper and/or lower extremities.12
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment Class of Diagnosis condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH) and if
electrodiagnostic testing were done, Clinical Studies (GMCS).13 The net adjustment formula is
(GMFH - CDX) + (GMCS - CDX).14
ANALYSIS
OWCP accepted appellant’s claim for herniated lumbar disc at L4-5 and displacement of
lumbar intervertebral disc without myelopathy. On March 3, 2014 appellant underwent a left
lateral L4-5 discectomy and decompressive foraminotomy. The Board notes that a schedule
award is not payable under FECA for injury to the spine15 or based on whole person
impairment.16 However, a claimant may be entitled to a schedule award for permanent

8

Pamela J. Darling, 49 ECAB 286 (1998).

9

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

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
11

See G.N., Docket No. 10-850 (issued November 12, 2010); see also id. at Chapter 3.700, Exhibit 1, note 5
(January 2010). The Guides Newsletter is included as Exhibit 4.
12

Supra note 7 at 2.808.5c(3).

13

A.M.A., Guides 533.

14

Id. at 521.

15

Supra note 8.

16

N.M., 58 ECAB 273 (2007).

4

impairment to an extremity even though the cause of the impairment originated in the spine.17
The issue is whether appellant has more than one percent permanent impairment of the left lower
extremity for which he received a schedule award. The Board finds that he has not met his
burden of proof to establish that he has impairment of the left lower extremity greater than the
one percent already awarded.18
In a June 17, 2014 report, Dr. Klem diagnosed post-left lateral L4-5 discectomy with
resolution of lower back pain and radiculopathy. He provided findings on physical examination
which revealed full strength movement of all extremities, well-healed lumbar incision, stable and
steady gait, no observable discomfort upon standing from a sitting position or with ambulation,
and some residual numbness to the distal left lower extremity. Dr. Klem opined that appellant
had 12 percent impairment given his slight residual numbness and had reached MMI. He noted
that appellant’s impairment was much greater prior to surgery given the motor weakness to his
left foot which had since improved to symmetrical strength. Dr. Klem explained that because the
surgical intervention decompressed the affected nerve root which was causing the sensory and
motor changes, appellant only had a slight residual sensory deficit which accounted for his
remaining impairment.
Dr. Dyer, serving as OWCP’s DMA, reviewed Dr. Klem’s report and disagreed with his
12 percent impairment rating, stating that he did not properly utilize the A.M.A., Guides for
impairment due to left L4 slight or mild residual numbness of the left leg. He stated that
Dr. Klem probably used the A.M.A., Guides peripheral nerve impairment grids rather than the
mandated The Guides Newsletter for spinal nerve root extremity impairment of the left L4 root.19
Dr. Dyer referred to Table 2 of The Guides Newsletter, Rating Spinal Nerve Extremity
Impairment, to determine class 1 grade C severity of left L4 mild sensory deficit resulting in a
schedule award for one percent impairment of the left lower extremity.20
The Board finds that the opinion of Dr. Dyer is thorough and well rationalized.21
Dr. Dyer utilized the case record and Dr. Klem’s June 17, 2014 examination to find one percent
impairment of the left lower extremity. The DMA did not disagree with Dr. Klem’s findings and
examination pertaining to appellant’s status post-left lateral L4-5 discectomy such that a conflict
in medical evidence was created.22 Rather he disagreed with Dr. Klem’s use of the A.M.A.,
Guides and properly explained that, in accordance with OWCP procedures, The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment, must be utilized to determine appellant’s
nerve impairment to the left lower extremity resulting from the spinal injury.23 Using Table 2 of
17

Supra note 9.

18

W.R., Docket No. 13-492 (issued June 26, 2013).

19

Supra note 2.

20

Supra note 3.

21

Supra note 18.

22

See J.J., Docket No. 14-1143 (issued December 10, 2014); Mary L. Henninger, 52 ECAB 408 (2001).

23

Supra note 11.

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The Guides Newsletter, Dr. Dyer properly determined class 1 grade C severity of left L4 mild
sensory deficit resulting in a schedule award for one percent impairment of the left lower
extremity.24
The Board notes that Dr. Klem’s report is not sufficient to establish that appellant has
more than one percent permanent impairment of the lower left extremity. While the treating
surgeon provided a 12 percent impairment rating, he did not indicate use of the A.M.A., Guides
in accordance with the schedule award provision of FECA. Moreover, Dr. Klem failed to
provide any explanation as to how he arrived at a 12 percent impairment rating and did not
reference any specific sections, pages, or tables of the A.M.A., Guides or The Guides Newsletter.
Board precedent is well settled that when an attending physician’s report gives an estimate of
impairment but does not address how the estimate is based upon the A.M.A., Guides, OWCP
may follow the advice of its DMA where he or she has properly applied the A.M.A., Guides.25
Thus, Dr. Klem’s rating is not sufficient to establish that appellant has more than one percent
permanent impairment of the left leg for which he was granted a schedule award.26
Accordingly, the Board finds Dr. Dyer correctly applied the A.M.A., Guides and The
Guides Newsletter to find that appellant had one percent permanent impairment of the left leg,
for which he had received a schedule award.27 Appellant has not submitted sufficient evidence
to establish that he has more than one percent impairment to the left lower extremity.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he has more than one percent
permanent impairment of the left lower extremity for which he received a schedule award.

24

Supra note 3.

25

See Ronald J. Pavlik, 33 ECAB 1596 (1982); Robert R. Snow, 33 ECAB 656 (1982); Quincy E. Malone, 31
ECAB 846 (1980).
26

C.S., Docket No. 08-1466 (issued December 1, 2008).

27

Y.K., Docket No. 11-1623 (issued June 25, 2012).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 23, 2014 is affirmed.
Issued: March 24, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7