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

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-207
Issued: October 6, 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 October 26, 2009 appellant, through his attorney, filed a timely appeal of a July 30,
2009 Office of Workers’ Compensation Programs’ merit decision denying fact of injury.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUE
The issue is whether appellant developed bilateral knee conditions in the performance of
his federal employment.
FACTUAL HISTORY
This case has previously been before the Board. On February 3, 2004 appellant, then a
52-year-old postal inspector, alleged that he developed degenerative joint disease in both knees

due to factors of his federal employment. Appellant stated that his position required him to
spend long hours standing, bending, stooping and carrying heavy weights.1
Appellant had a prior medial and lateral arthrotomy of the right knee in 1972 due to a
college baseball injury, a lateral arthrotomy of the left knee in 1977 following a family football
game and a second left knee surgery on February 16, 2001 due to increased symptoms with no
specific cause.
The Office referred appellant to Dr. Ronald Gerson, a Board-certified orthopedic
surgeon, for an impartial medical examination. In reports dated June 12, August 20, 2007
Dr. Gerson determined that appellant’s knee osteoarthritis was not work related as his
employment duties were not physically stressful beyond that which would be noted in the
general population. He concluded, that the required job duties as a U.S. Postal Inspector did not
result in osteoarthritis of the knees or aggravation of a preexisting osteoarthritis condition.
In an October 7, 2008 decision,2 the Board found that Dr. Gerson did not resolve whether
there was any aggravation of appellant’s underlying degenerative condition by work, and if so,
whether the aggravation was temporary or permanent. The Board remanded the case for
selection of a new impartial medical examiner. The facts of the case as set out in the Board’s
prior decision are incorporated herein by reference.
On remand the Office referred appellant, a statement of accepted facts and list of
questions to Dr. George P. Glenn, Jr., a Board-certified orthopedic surgeon. The statement of
accepted facts included a copy of the physical requirements for appellant’s position, noting that
his duties were moderate to arduous, that the employee must be active in good health and sound
physical condition. The statement of accepted facts noted that he was required to drive, sit,
stand, walk and lift up to 25 pounds on a daily basis as well as heavier lifting on an occasional
basis. Appellant was rarely required to perform prolonged walking, standing or rigorous
physical activity while conducting surveillance and field investigations.
In a December 9, 2008 report, Dr. Glenn described appellant’s employment duties
chronologically, noting that for the first two years at the employing establishment appellant was
required to climb ladders, conduct surveillance from vehicles and carry heavy files. Beginning
in September 1977, his job activities were not as physically demanding and only required him to
carry heavy files, perform surveillance and remove all the files from an office three or four times
a year. Dr. Glenn performed a physical examination and found that appellant had five to seven
degrees of flexion contracture in both knees, with no effusion and normal flexion. Appellant
demonstrated patellofemoral crepitus and positive patellar grind test.

1

The employing establishment submitted a copy of appellant’s position description which included “moderate to
arduous physical exertion” in the form of climbing ladders, occupying cramped crowded spaces for extended
periods, physical force in arrests, search, pursuit and restraint of persons and the capacity to perform vigorous
physical activities on a sustained basis.
2

Docket No. 08-921 (issued October 7, 2008).

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Dr. Glenn advised that appellant developed traumatic osteoarthritis due to the
prior multiple surgeries as well as his nonemployment-related traumatic injuries. He
reviewed appellant’s oral history as well as the duties listed in the statement of accepted
facts and stated that his employment activities would not in any way be a causal factor in
the development of bilateral knee osteoarthritis. Dr. Glenn stated:
“This statement is all inclusive from the time of his employment and the
approximately two and a half years of reported more strenuous activity in contrast
to the less strenuous activity of his later years of employment. This opinion is
based upon my knowledge of the literature and more importantly based upon my
fifty years experience as a practicing orthopedic surgeon.”
As to whether appellant’s underlying osteoarthritis was aggravated by his
employment, either his initial strenuous activities or later less strenuous duties, Dr. Glenn
stated:
“It has been clearly shown repetitive persistent joint loading activities such as
jogging, running, repetitive use of exercise equipment, which tends to abnormally
load the joint, will cause an aggravation of an underlying osteoarthritic problem in
a weight[-]bearing joint. It is furthermore well recognized that there is no need to
restrict lesser degrees of these activities because these less strenuous activities
have no effect on the involved joint and as a consequence are not considered an
aggravating factor. The key causal factors in aggravation are the frequency of the
activity, the duration of the activity and the excessive weight loading of the joint.”
Dr. Glenn opined that appellant’s stated history and the physical requirements for
his position as listed in the statement of accepted facts did not rise to the level which
would cause an aggravation to any degree to the preexisting, nonwork-related
osteoarthritis in appellant’s knees.
In a decision dated January 29, 2009, the Office found Dr. Glenn’s report constituted the
weight of medical opinion. Therefore, appellant had not established any causal relationship
between his diagnosed bilateral knee osteoarthritis and his employment duties.
Appellant, through his attorney, requested an oral hearing that was held on May 27, 2009.
Counsel contended that the statement of accepted facts was not accurate in the description of
appellant’s employment duties. Appellant alleged that Dr. Glenn incorrectly understood that his,
position was sedentary after the first two years. Following the oral hearing he submitted a
June 22, 2009 statement from T.P. Anderson, Jr., a retired postal inspector, who worked with
appellant and opined that he spent 25 to 35 percent of his time in the office setting while the
remainder of the time was spent in vigorous physical activities.
By decision dated July 30, 2009, an Office hearing representative affirmed the
January 29, 2009 decision, finding that the statement of accepted facts was accurate and that
Dr. Glenn allowed appellant ample time to describe his employment duties.

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LEGAL PRECEDENT
To establish whether an injury was sustained in the performance of duty in an
occupational disease claim, a claimant must submit the following: (1) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; (2) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; and (3) medical evidence
establishing that the employment factors identified by the claimant were the proximate cause of
the condition for which compensation is claimed or stated differently, medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant. The evidence required to establish causal relationship is rationalized medical
opinion evidence, based upon a complete factual and medical background, showing a causal
relationship between the claimed condition and identified factors. The belief of a claimant that a
condition was caused or aggravated by the employment is not sufficient to establish causal
relation.3
In situations were there are opposing medical reports of virtually equal weight and
rationale and 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.4
ANALYSIS
As noted, the Board remanded the case to the Office for referral of appellant for a new
impartial medical examiner to resolve whether the osteoarthritis of both knees had any
relationship to his employment duties. The Office referred appellant, a statement of accepted
facts and a list of specific questions, to Dr. Glenn, a Board-certified orthopedic surgeon, to
resolve the existing conflict of medical opinion evidence.
Dr. Glenn provided a thorough and detailed report dated December 9, 2008 which
included appellant’s description of his employment duties. Appellant related that for the first
two years at the employing establishment he climbed ladders, conducted surveillance from
vehicles and carried heavy files. He noted that beginning in September 1977 his job activities
were not as physically demanding, but still required him to carry heavy files, perform
surveillance and remove all the files from an office three or four times a year. Dr. Glenn also
reviewed the statement of accepted facts which described appellant’s job duties as
moderate-to-arduous, requiring that he must be active, in good health and sound physical
condition. The statement of accepted facts noted that appellant was required to drive, sit, stand,
walk and lift up to 25 pounds on a daily basis as well perform heavier lifting on an occasional
basis. The statement of accepted facts noted that he was rarely required to perform prolonged
walking, standing or rigorous physical activity while conducting surveillance and field
investigations.

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

4

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

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Dr. Glenn opined that appellant had developed traumatic osteoarthritis and attributed this
condition to his nonemployment-related traumatic injuries and resulting surgeries. He indicated
that he had reviewed appellant’s description of his job duties as well as the duties listed in the
statement of accepted facts. Dr. Glenn concluded that his employment activities did not result in
the development of bilateral knee osteoarthritis. He stated that he had considered all appellant’s
employment activities including the early more strenuous activities and the less demanding
activities after the first two years as described by appellant. Dr. Glenn stated:
“It has been clearly shown repetitive persistent joint loading activities such as
jogging, running, repetitive use of exercise equipment, which tends to abnormally
load the joint, will cause an aggravation of an underlying osteoarthritic problem in
a weight[-]bearing joint. It is furthermore well recognized that there is no need to
restrict lesser degrees of these activities because these less strenuous activities
have no effect on the involved joint and as a consequence are not considered an
aggravating factor. The key causal factors in aggravation are the frequency of the
activity, the duration of the activity and the excessive weight loading of the joint.”
Dr. Glenn concluded that appellant’s stated history and the physical requirements for his
position as listed in the statement of accepted facts did not rise to the level which would cause
“any aggravation to any degree to the preexisting, nonwork related osteoarthritis” in his knees.
The Board finds that Dr. Glenn’s report was based on a proper factual background.
Dr. Glenn clearly considered job duties described in the statement of accepted facts which were
based on the employing establishment’s position description. He also gave credence to
appellant’s statements regarding the duration and intensity of specific job activities. There is
nothing in the record to suggest that appellant’s position required constant repetitive activities
although, as noted by Dr. Glenn, he was required to climb ladders, move heavy boxes and
conduct surveillance to some degree throughout his career. Based on the factual evidence,
Dr. Glenn determined that appellant’s employment activities did not cause or aggravate his
osteoarthritis. He noted that repetitive persistent joint loading activities such as jogging, running
or repetitive use of exercise equipment tended to abnormally load the joint and would cause an
aggravation of an underlying osteoarthritic problem in a weight-bearing joint, but as appellant’s
position description did not require such repetitive persistent joint loading activities, there was no
reason to attributed his diagnosed condition to his employment activities. This medical
reasoning supports Dr. Glenn’s conclusions. The Board finds that Dr. Glenn’s report is
sufficiently detailed and offers medical reasoning in support of the conclusion that appellant’s
bilateral knee condition was not causally related to his employment. Therefore, Dr. Glenn’s
report represents the special weight of the medical evidence and negates appellant’s occupational
disease claim.
On appeal, counsel contends that the description of appellant’s job duties was not
accurate and that Dr. Glenn stated that he relied solely on the statement of accepted facts rather
than appellant’s statements. As noted, the statement of accepted facts was based on appellant’s
position description and included the specific duties and the description of the position as
moderate-to-arduous. Dr. Glenn noted that he reviewed this statement and included appellant’s
description of the specific duties that he was required to carry out within the general position
description offered by the statement of accepted facts. The Board finds that the impartial referee

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provided an accurate review of the duties performed and his report is entitled to the special
weight of the medical evidence.
CONCLUSION
The Board finds that the weight of the medical evidence establishes that appellant’s
bilateral knee osteoarthritis was not caused or aggravated by his employment activities.
ORDER
IT IS HEREBY ORDERED THAT the July 30, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 6, 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
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Raleigh, NC, Employer
__________________________________________

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

Docket No. 20-1291
Issued: September 14, 2021

Case Submitted on the Record

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

JURISDICTION
On April 21, 2020 appellant filed a timely appeal from an October 25, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3

1
Appellant died after the filing of this appeal. As such, a substitute appellant is required to carry the appeal forward
as the Board’s jurisdiction was invoked during her lifetime. See N.D., Docket No. 14-1757 (issued June 2, 2015);
Albert F. Kimbrell, 4 ECAB 662, 666 (1952). Accordingly, appellant’s next-of-kin, T.R., is recognized by the Board
as the substitute appellant for the purposes of carrying the appeal forward.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the October 25, 2019 decision. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $5,359.78, for which she was without fault,
because she concurrently received FECA wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits for the period March 1, 2018 through
August 17, 2019, without an appropriate offset; (2) whether OWCP properly denied waiver of
recovery of the overpayment; and (3) whether OWCP properly required recovery of the
overpayment by deducting $578.80 from her continuing compensation payments every 28 days.
FACTUAL HISTORY
On February 20, 2007 appellant, then a 54-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 9, 2007 she sustained a concussion, headaches, and
injuries to her neck, back, and legs when her postal vehicle was rear-ended while she was servicing
a mail box in the performance of duty. She noted that her retirement coverage was under the
Federal Employees’ Retirement System (FERS). OWCP accepted the claim for headaches, neck
sprain, lumbar sprain, concussion without loss of consciousness, anxiety state, and adjustment
disorder with depressed mood. It paid appellant wage-loss compensation on the supplemental
rolls, effective February 9, 2007, and on the periodic rolls, effective March 16, 2008.
On June 26, 2019 OWCP provided SSA with a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form. On July 9, 2019 SSA submitted the completed form,
which showed SSA benefit rates with a FERS offset and without a FERS offset from March 2018
through December 2018. Beginning March 2018, the SSA rate with FERS was $1,086.00 and
without FERS was $786.00. Beginning December 2018, the SSA rate with FERS was $1,116.50
and without FERS was $808.50.
OWCP completed a FERS offset calculation worksheet on August 13, 2019. It calculated
the overpayment amount by determining the daily FERS offset amount and multiplying that
amount by the number of days in each period March 1, 2018 through August 17, 2019, for a total
overpayment amount of $5,359.78. OWCP determined that during the period March 1 through
November 30, 2018, an overpayment of compensation had been created in the amount of
$2,719.78, and for the period December 1, 2018 through August 17, 2019, an overpayment of
compensation had been created in the amount of $2,640.00 for a total of $5,359.78.
In a letter dated August 22, 2019, OWCP advised appellant that she had been receiving a
prohibited dual benefit. It noted that the portion of SSA benefits earned as a federal employee was
part of her retirement and that the receipt of wage-loss compensation under FECA and federal
retirement was prohibited. OWCP noted that it would adjust appellant’s FECA wage-loss
compensation to account for her SSA offset, and the 28-day offset of $284.31 would reduce her
net compensation payment every 28 days to $2,351.21.
On August 22, 2019 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $5,359.78, because she received FECA wage-loss
compensation benefits concurrently with SSA age-related retirement benefits from March 1, 2018
through August 17, 2019. It found her without fault in the creation of the overpayment because

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she was not aware, nor could she reasonably have been expected to know, that it had paid
compensation incorrectly. OWCP requested that appellant submit a completed overpayment
recovery questionnaire (Form OWCP-20) to determine a fair repayment method. It requested
financial information, including copies of income tax returns, bank account statements, bills, pay
slips, and any other records to support income and expenses. OWCP advised appellant that it
would deny waiver if she failed to furnish the requested financial information within 30 days. It
also noted that she could request waiver of recovery of the overpayment. OWCP provided
appellant with appeal rights and afforded her 30 days to respond. No additional evidence relevant
to the preliminary overpayment was received.
By decision dated October 25, 2019, OWCP made a final determined that appellant had
received an overpayment of compensation in the amount of $5,359.78, because a portion of her
SSA age-related retirement benefits was based on credits earned while working in the Federal
Government and that this portion of her SSA benefit was a prohibited dual benefit. It further found
that she was not at fault in the creation of the overpayment, but denied waiver of recovery of the
overpayment. OWCP noted that no response had been received following the preliminary
determination. It required recovery of the overpayment of $5,359.78 by deducting $578.80 every
28 days from appellant’s continuing wage-loss compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment. 4 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States. 5 When an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations prescribed
by the Secretary of Labor by decreasing later payments to which the individual is entitled.6
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA age-related retirement benefits that are attributable to
federal service of the employee. 7 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit. 8

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); see T.B., Docket No. 18-1449
(issued March 19, 2019); L.J., 59 ECAB 264 (2007).
8

FECA Bulletin No. 97-09 (February 3, 1997).

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ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $5,359.78, because she concurrently received SSA age-related
retirement benefits and FECA wage-loss compensation for the period March 1, 2018 through
August 17, 2019.
The record indicates that, while appellant was receiving compensation for disability under
FECA, she also was receiving SSA age-related retirement benefits during the applicable period.
A claimant cannot receive both compensation for wage-loss and SSA age-related retirement
benefits attributable to federal service for the same period. 9 Consequently, the fact of overpayment
has been established.
To determine the amount of overpayment, the SSA provided appellant’s SSA rates with
FERS and without FERS during the applicable period noting that appellant had received agerelated retirement benefits, from March 1, 2018 through August 17, 2019. Based on the
information provided by SSA, OWCP calculated that an overpayment of compensation in the
amount of $5,359.78 had occurred during the applicable period. The Board has reviewed OWCP’s
calculation of the dual benefits that appellant received and finds that it properly determined that
she received a $5,359.78 overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA states: “Adjustment or recovery [of an overpayment] 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.”10
Section 10.437 provides that recovery of an overpayment is considered to be against equity
and good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt, and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his
or her position for the worse. 11
Section 10.438 of OWCP’s regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. The

9

See supra note 5.

10

5 U.S.C. § 8129(b).

11

20 C.F.R. § 10.437.

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information is also used to determine the repayment schedule, if necessary. 12 Failure to submit
the requested information within 30 days of the request shall result in denial of waiver. 13
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 14 Appellant,
however, had the responsibility to provide the appropriate financial information to OWCP. 15
In its preliminary determination dated August 22, 2019, OWCP explained the importance
of providing the completed overpayment questionnaire and financial information, including copies
of income tax returns, bank account statements, bills, pay slips, and any other records to support
income and expenses. It advised appellant that it would deny waiver if she failed to furnish the
requested financial information within 30 days. Appellant, however, did not submit a completed
Form OWCP-20 or submit any financial information necessary for OWCP to determine if recovery
of the overpayment would defeat the purpose of FECA, or if recovery would be against equity and
good conscience.
Consequently, as appellant did not submit the information required under section 10.438
of OWCP’s regulations, which was necessary to determine her eligibility for waiver, the Board
finds that OWCP properly denied waiver of recovery of the overpayment. 16
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. 17 Section
10.441(a) of the regulations18 provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
12

Id. at § 10.438(a); see T.B., supra note 7; Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

13

Id. at § 10.438.

14

Id. at § 10.436.

15

Supra note 12.

16

See S.B., Docket No. 16-1795 (issued March 2, 2017).

17

See E.F., Docket No. 18-1320 (issued March 13, 2019); C.H., Docket No. 18-0772 (issued November 14, 2018);
Albert Pineiro, 51 ECAB 310 (2000); Lorenzo Rodriguez, 51 ECAB 295 (2000).
18

20 C.F.R. § 10.441(a).

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is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”19
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment amount by
deducting $578.80 from appellant’s continuing compensation payments every 28 days.
The record reflects that appellant received wage-loss compensation payments in the
amount of $2,351.21 under FECA. Appellant, as noted, did not provide any relevant information
for OWCP to consider in determining the amount to be withheld from her continuing
compensation. OWCP gave this factor due regard to the relevant factors noted above in setting
the rate of recovery.
The Board finds that OWCP properly denied waiver of recovery of the overpayment and
properly required recovery of the overpayment by deducting $578.80 from her continuing
compensation payments every 28 days.
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $5,359.78 because she concurrently received SSA age-related
retirement benefits and FECA wage-loss compensation for the period March 1, 2018 through
August 17, 2019. The Board also finds that OWCP properly denied waiver of recovery of the
overpayment and properly required recovery of the overpayment by deducting $578.80 from her
continuing compensation payments every 28 days.

19

Id.

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ORDER
IT IS HEREBY ORDERED THAT the October 25, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
FAIRCHILD AIR FORCE BASE, WA, Employer
__________________________________________

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Appearances:
Norman R. McNulty, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1956
Issued: January 24, 2007

Case Submitted on the Record

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

JURISDICTION
On August 22, 2006 appellant filed a timely appeal from the July 12, 2006 decision of the
Office of Workers’ Compensation Programs, which terminated his compensation benefits
effective May 26, 2005. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(1), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits on
the grounds that he had no residuals or disability causally related to his accepted employmentrelated condition. In his appeal, appellant argued that the Office did not meet its burden of proof
because the medical opinion of the impartial medical specialist was not adequately rationalized.
FACTUAL HISTORY
On May 8, 2002 appellant, then a 54-year-old training manager, filed an occupational
disease claim, Form CA-2, alleging that polluted air in his building at the employing

establishment had caused upper respiratory and breathing ailments and ear, nose and
throat-related illnesses. He stopped working on August 9, 2002. The Office accepted the claim
on December 5, 2002 for allergic rhinitis.
On June 6, 2003 the Office scheduled an appointment for appellant with Dr. Charles F.
Benage, a Board-certified otolaryngologist, to get a second medical opinion on appellant’s
condition. It provided Dr. Benage a statement of accepted facts (SOAF) indicating that appellant
had worked in a converted warehouse with poor air circulation and no air filtration system. Air
quality testing at the facility showed a wide variety of dust materials, including paper and
clothing fibers, wood, ink toner, pollen, glass fiber, insect debris, plant hairs, bird debris and
other irritants. The SOAF also stated that appellant had a history of smoking and had stopped
smoking intermittently since 1978.
Dr. Benage reported the results of his examination on July 8, 2003. He diagnosed
appellant with rhinitis medicamentosa, which he believed was caused by excessive use of Afrin,
an over-the-counter nasal decongestant spray appellant used in conjunction with a continuous
positive airway pressure devise prescribed for sleep apnea. Dr. Benage also indicated that
appellant had significant inhalant allergies that were likely due to exposure to allergens in the
workplace. He opined that appellant would be able to return to work without restriction if he
stopped using Afrin and continued getting shots to control his inhalant allergies.
Appellant’s treating physician, Dr. Edgar A. Figueroa, a Board-certified family
practitioner, stated in a July 29, 2003 letter that his condition would not allow him to return to his
employment because of his need for continuous therapy and medication. Dr. Figueroa stated that
appellant’s health showed no signs of improvement and that his frequent episodes of severe
allergic reactions, ear and sinus infections, bronchitis, internal hemorrhoids, extreme fatigue and
prostatic hyperplasia complicated his treatment. He incorporated the findings of an earlier
report, in which he diagnosed appellant with chronic sinusitis, chronic rhinitis, chronic
obstructive pulmonary disease, chronic ear infections, sleep apnea and depression. Dr. Figueroa
stated that there was no cure for appellant’s condition.
Based on the reports of Drs. Benage and Figueroa, the Office determined that there was a
conflict in the medical evidence and referred appellant to a referee physician. Dr. Reynold Karr,
Jr., a Board-certified rheumatologist, examined appellant on October 27, 2003. He provided a
report of the same date answering the specific questions posed by the Office and a supplemental
report containing the results of diagnostic tests. Dr. Karr diagnosed appellant with allergic
rhinitis, which was “accepted as being medically connected to the federal employment,” and
with rhinitis medicamentosa, which he stated was more probably than not unrelated to federal
employment. He stated that appellant’s obstructive sleep apnea was related to both forms of
rhinitis, as well as obesity. Dr. Karr also diagnosed appellant with chronic frontal and ethmoidal
sinusitis, which he believed was equally related to both forms of rhinitis and with infrequent
otitis media (inflammation of the inner ear), which he found to be related to the sinusitis. He
indicated that appellant’s smoking most likely contributed to his rhinitis and sinusitis. Dr. Karr
did not find appellant’s depression to be related to federal employment factors.

2

Dr. Karr stated that he was of the opinion that appellant did continue to suffer from
allergic rhinitis, but that it was unrelated to the federal employment, as appellant’s symptoms had
not changed after a year of absence from the federal workplace and there was no objective
evidence of a causal link. He stated that “the presence of only a temporal relationship is
insufficient to prove causality.” Dr. Karr believed that it was more likely than not that the
symptoms were related to infrequent cigarette smoking, regular use of Afrin and possibly
exposure to dander from appellant’s two dogs. He found appellant’s physical limitations to be
frequent disruption of activity because of coughing, sneezing and nasal congestion and fatigue
arising out of these symptoms and sleep apnea. Dr. Karr stated that appellant needed to work in
a clean air environment. He indicated that appellant would be employable on a part-time basis in
his current condition and on a full-time basis once his condition had been thoroughly evaluated
and properly managed.
On November 10, 2003 Dr. Karr reported that the results of the in vitro allergy test were
uniformly negative for the specific IgE antibodies tested, including dog and cat dander, dust mite
species, seasonal pollens and mold. The test indicated that appellant was within the normal
range of IgE antibodies. Dr. Karr also stated that he had reviewed some factual information he
received about the building in which appellant worked. Dr. Karr concluded that none of the
additional information provided objective evidence that changed the opinion in his October 28,
2003 report.
In a December 29, 2003 letter, the Office informed appellant that it proposed termination
of his wage loss and medical benefits based on Dr. Karr’s report. In an attached memorandum,
the Office explained that the weight of the medical evidence supported Dr. Karr’s opinion that
appellant’s current symptoms were not work related.
Appellant responded to the proposed termination on January 25, 2004. He argued that
the medical opinion of the impartial medical specialist was insufficient to terminate
compensation because it was not properly rationalized. Specifically, appellant claimed that
Dr. Karr did not explain why the accepted condition of allergic rhinitis was temporally limited
and could not have created a permanent condition. He also argued that the Office should
continue medical and lost wages benefits because the impartial medical specialist indicated that
appellant was still at least partially disabled because of allergic rhinitis, a condition the Office
had accepted as being employment related.
On April 7, 2004 the Office requested that Dr. Karr supplement his report by clarifying
his opinions on appellant’s disability status, the recommended work restrictions, the causal
relationship between appellant’s current condition and his federal employment and what he
meant by the term “temporal relationship” in his initial report. It also asked how he would alter
his opinions on appellant’s disability if he discontinued use of Afrin.
In his supplemental report dated May 12, 2004, Dr. Karr stated that appellant would be
able to work four hours per day in his current condition and eight hours per day when his rhinitis
had been adequately treated. He opined that discontinued use of Afrin was unlikely to have a
significant effect without other interventions, such as smoking cessation. Dr. Karr indicated that
appellant would need to work in an environment without strong smells, smoke, dust or mold
growth. He explained that his opinion about the relationship between appellant’s rhinitis and his

3

employment was based on the record’s lack of a “positive test or provocative challenge” to a
unique occupational allergen. Dr. Karr also stated that by “temporal relationship” he meant a
short time interval between occupational exposure and development of symptoms.
On April 27, 2004 the Office referred appellant to Dr. David D. Bot, a Board-certified
psychiatrist, for a second opinion on his diagnosed depression. Dr. Bot examined appellant on
June 9, 2004. He diagnosed major depression, mild severity and found it was causally related to
the accepted condition of allergic rhinitis. Dr. Bot stated that the rhinitis appeared to have
precipitated the depression and that no nonwork stress situations contributed to it. He also stated
that from a psychiatric standpoint, appellant would be able to perform any job that was within his
physical capacity.
On December 29, 2004 the Office again notified appellant of proposed termination of his
compensation and medical benefits on the grounds that Dr. Karr provided evidence that
appellant’s current disability was unrelated to his federal employment. It found that Dr. Karr’s
opinion was well rationalized and based on objective medical records. The Office stated that
Dr. Karr’s opinion was supported by the fact that appellant had not been exposed to the work
environment for over a year.
On January 17, 2005 appellant opposed the Office’s proposed termination on the grounds
that it did not meet the burden of showing that appellant’s disability was no longer related to his
federal employment. Specifically, appellant noted that the Office did not address Dr. Bot’s
report and argued that it relied unduly on Dr. Karr’s report. Appellant argued that Dr. Karr’s
conclusion that his condition was not work related because exposure to work factors had ceased
the prior year was not supported by reasoned analysis.
By decision dated May 26, 2005, the Office terminated appellant’s wage-loss benefits. It
found that Dr. Karr’s opinion was supported by thorough examinations and diagnostic tests and
the fact that appellant had not been exposed to the work environment in the year prior to his
examination. The Office noted that, according to Dr. Bot’s opinion, appellant’s depression
would not impact his ability to work.
Appellant filed an appeal of this decision on July 14, 2005. By letter dated July 19, 2005,
the Board requested the case record from the Office. Not having received the record, on
March 20, 2006 the Board remanded the case to the Office for reconstruction and proper
assemblage of the case record. The Office reissued its decision terminating appellant’s wageloss benefits on July 12, 2006.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.2
1

Elaine Sneed, 56 ECAB ___ (Docket No. 04-2039, issued March 7, 2005).

2

Mary A. Lowe, 52 ECAB 223, 224 (2001).

4

The Federal Employees’ Compensation Act 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 an examination.3 The
implementing regulation states that if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser or consultant, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has had no prior connection with the case.4
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 proper factual and medical background, must be given special weight.5
ANALYSIS
The Office accepted appellant’s claim of allergic rhinitis in December 2002. Appellant
stopped working in August 2002 and has not worked since that time.
In June 2003, the Office referred appellant to Dr. Benage, a Board-certified
otolaryngologist, to secure an opinion as to the severity and likely duration of appellant’s
disability. Dr. Benage diagnosed appellant with rhinitis medicamentosa, which was completely
unrelated to the accepted employment factors. He stated that appellant would be able to return to
work without restriction once he stopped using the nasal spray Afrin. Appellant’s personal
physician, Dr. Figueroa, a Board-certified family practitioner, disagreed with Dr. Benage’s
report. He stated that appellant’s employment-related condition was chronic and that he was
permanently disabled from work.
Given the disagreement between Drs. Benage and Figueroa regarding appellant’s
diagnosis and level of disability, the Office properly found a conflict of medical opinion
evidence and referred appellant to Dr. Karr, a Board-certified rheumatologist, to act as the
impartial medical specialist and resolve the conflict of medical opinion evidence.
Dr. Karr conducted an examination and diagnosed appellant with allergic rhinitis, which
he accepted as being medically connected to appellant’s federal employment. He stated that
while appellant did “continue to suffer from allergic rhinitis,” in his opinion, appellant’s “current
nasal and sinus symptoms, whether allergic or nonallergic, are unrelated to the workplace
conditions of exposure at the employing establishment on a more probable than not basis. In my
view, the presence of only a temporal relationship is insufficient to prove causality.” This
opinion was based on the facts that the record contained no evidence of a specific allergen in
appellant’s workplace to which he had a negative reaction and that appellant had not been
exposed to his workplace in more than a year. He opined that the persistent nasal and sinus
3

5 U.S.C. §§ 8101-8193, 8123(a).

4

20 C.F.R. § 10.321.

5

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

5

symptoms were more likely related to infrequent cigarette smoking and regular use of an overthe-counter nasal spray. In a supplemental report dated May 12, 2004, Dr. Karr stated that
discontinued use of nasal spray would not have a significant effect on appellant’s condition
without other interventions, including smoking cessation. The results of in vitro allergy testing
indicated that appellant was within the normal range for all allergens tested.
When the report of an impartial medical specialist is not sufficiently well reasoned, it is
not accorded special weight as medical opinion evidence.6 The Board finds that Dr. Karr’s
report is not sufficiently well reasoned to constitute the special weight of the medical opinion
evidence. His report does not provide adequate medical reasoning for the opinion that
appellant’s allergic rhinitis, which he accepted as being related to appellant’s employment, was
not the cause of his ongoing nasal and sinus symptoms.
Dr. Karr opined that appellant’s current symptoms were unrelated to his exposure to
unclean air at the employing establishment and were related instead to cigarette smoke and
overuse of Afrin. He stated that his opinion was based partially on the fact that appellant was
symptomatic, but had not been exposed to the polluted work environment for over a year.
However, Dr. Karr does not indicate the normal duration of allergic rhinitis following removal of
allergens. His report is silent as to whether any residuals of allergic rhinitis could affect or be
affected by subsequent exposure to allergens. Dr. Karr also based his opinion on the fact that no
objective evidence linked the accepted condition of rhinitis to allergens at the employing
establishment. This challenge appears to apply more to the initial acceptance of the claim than
whether or not appellant’s current condition is related to the accepted condition.7
Additionally, Dr. Karr gave no rationalization for his opinion that cigarette smoke and
Afrin were the more likely causes for appellant’s ongoing nasal and sinus symptoms. He did not
explain how he determined that the symptoms he observed were the result of these factors rather
than the result of physical changes initiated by a polluted work environment.
The lack of medical reasoning on the critical issue of whether appellant’s current
condition is causally related to the accepted condition of allergic rhinitis makes Dr. Karr’s report
insufficient to constitute the special weight of the medical opinion evidence. As the record
contains an unresolved conflict of medical opinion evidence, the Board finds that the Office has
not met its burden of proof to terminate appellant’s compensation benefits.
CONCLUSION
The Board finds that the report of the impartial medical specialist Dr. Karr was not
sufficiently rationalized to constitute the special weight of the medical evidence. Therefore,

6

Elaine Sneed, supra note 1; Newton Ky Chung, 39 ECAB 919 (1988).

7

See Willa M. Frazier, 55 ECAB 379, 385 (2004) (“it is a denial of administrative due process to terminate
compensation benefits on the ostensible grounds that a claimant no longer suffers residuals of an accepted condition,
where the record supports that the real reason for the Office’s action was that it had determined that the condition
was not causally related to the claimant’s employment and should not have been accepted as such”).

6

there remains an unresolved conflict of medical opinion evidence preventing the Office from
meeting its burden of proof to terminate appellant’s compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 12, 2006 is reversed.
Issued: January 24, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.C., Appellant
and
DEPARTMENT OF AGRICULTURE, CARSON
NATIONAL FOREST, Taos, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1186
Issued: November 25, 2008

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 March 17, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decisions dated July 31 and December 18, 2007, which found his
wage-earning capacity was represented by the constructed position of cashier. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly reduced appellant’s compensation based
on its determination that the constructed position of cashier represented his wage-earning
capacity; and (2) whether the Office properly denied modification of appellant’s loss of
wage-earning capacity determination.
FACTUAL HISTORY
On June 14, 2000 appellant, then a 53-year-old firefighter, sustained injury to his back
after carrying a bag of water to a fire line. By letter dated January 4, 2001, the Office accepted
his claim for thoracic and lumbar strains. The claim also later accepted for aggravation and

displacement of an intervertebral disc. Appropriate compensation and medical benefits were
paid.
In a January 22, 2004 medical report, Dr. David R. Cesko, an attending Board-certified
family practitioner, opined that appellant’s back condition resulted from his work injury. He
advised that appellant was incapable of pursuing meaningful employment.
By letter dated September 9, 2004, the Office referred appellant to Dr. W. Carlton
Reckling, a Board-certified orthopedic surgeon, for a second opinion. In a September 27, 2004
medical report, Dr. Reckling diagnosed lumbar spondylosis; lumbar disc protrusion at L4-5 and
L5-S1; left leg radiculitis; and chronic low back pain. He opined that the June 14, 2000 injury
caused damage to the L4-5 and L5-S1 discs. Due to his injury appellant had ongoing back and
left leg symptoms. Dr. Reckling opined that appellant’s current condition was directly related to
the accepted injury. He noted that appellant was not capable of returning to his date-of-injury
work position and that he was unable to ascertain whether he could work in any position.
Dr. Reckling recommended that appellant undergo a functional capacities evaluation.
On December 15, 2004 the Office referred appellant to Shriver Therapy Group for a
functional capacity evaluation. On January 18, 2005 a physical therapist stated that the tests
results reviewed that appellant was unable to return to his previous job due to his inability to lift,
carry, stand dynamically or work in a bent or stooped position. The therapist recommended that
appellant enter a formal work conditioning program.
On February 4, 2005 Dr. Reckling reviewed the functional capacity results and advised
that appellant advised that appellant could return to work with physical restrictions. In an
attached form, he found that appellant could work for 4 hours and 12 minutes a day. Appellant
could sit for 57 minutes at a time for a total of 2 hours and 23 minutes a day, could walk for
29 minutes a day and could stand for 43 minutes. Pushing was limited to 36 to 45 pounds,
pulling limited to 40 to 43 pounds and lifting limited to 30 pounds. Dr. Reckling noted that
appellant needed to change positions frequently and to alternate standing and sitting.
In a report dated August 15, 2005,
approximately three years. He advised that
30 minutes at a time, unable to climb ladders,
15 pounds. Dr. Cesko opined that appellant
rehabilitation.

Dr. Cesko reviewed appellant’s treatment of
appellant was unable to stand for more than
unable to stoop, bend or carry more than 10 to
remained disabled and in need of vocational

The Office found a conflict of medical opinion between Drs. Cesko and Reckling with
regard to appellant’s disability and capacity for employment. By letter dated September 9, 2005,
it referred appellant to Dr. Mark Rangitsch, a Board-certified orthopedic surgeon, for an
impartial medical examination. In an October 3, 2005 medical report, Dr. Rangitsch diagnosed
lumbar disc disease with disc injury from the June 14, 2000 injury. He opined that appellant had
preexisting degenerative disc disease, which was aggravated by his accepted injury.

2

Dr. Rangitsch found that appellant had decreased strength in his left lower extremity and
decreased range of motion. He advised that appellant did not have resolution of his symptoms.
With regard to the conflict in medical opinion Dr. Rangitsch stated:
“The only real conflicting medical report is whether [appellant] can lift up to 30
pounds or 10 [to] 15 pounds and whether he can work for an extended period of
time of greater than [eight] hours, etc. On reviewing the functional capacity
evaluation which Dr. Reckling based his restrictions on, it appears that [appellant]
was able to lift up to approximately 30 pounds on an infrequent basis. Dr. Cesko
indicated only 10 [to] 15 pounds. It is likely that [appellant] may be able to lift up
to 25 [to] 30 pounds on a very infrequent basis. As to working an [eight-]hour
workday, on reviewing the functional capacity evaluation, it appears that this
would be difficult for him. [Appellant] is not able to sit for any longer than an
hour at a time. He is not able to walk for more than an hour in an [eight-]hour day
and he is not able to do many things, including kneeling, climbing, squatting,
sitting for prolonged periods and again, carrying or lifting anything with
substantial consistency. It is my opinion that he can do, at best, light to sedentary
type work. Whether or not [appellant] is able to be vocationally retrained for any
type of activity is, in my opinion, not likely. He is now 59[-]years[-]old, obtained
only a GED and has not had any other formal education. Therefore, I think it is
not likely that vocational rehabilitation will find him a job of any substance. It is
likely therefore that [appellant] is permanently disabled and unable to return to the
job force.”
In response to the Office’s December 8, 2005 request for clarification, on December 9,
2005 Dr. Rangitsch stated that appellant could work in a sedentary position for eight hours a day
if he were able to get up and move around. On February 10, 2006 he advised that appellant
could work in a sedentary position for four hours a day and lift up to 30 pounds on an infrequent
basis.
In an October 3, 2006 report, Dr. Cesko advised that appellant was anticipating surgery.
He found that appellant was incapable of going through vocational rehabilitation due to his
frequent visits to the neurosurgeon and pain clinic. Dr. Cesko noted that, following surgery,
appellant would be evaluated with regard to possible rehabilitation. On a January 4, 2007 report
he reiterated that appellant remained totally disabled. Appellant was unable to sit more than
15 to 20 minutes, unable to stand for more than 15 to 20 minutes and unable to walk greater than
half a block. Dr. Cesko opined that appellant was not capable of employment for even one or
two hours a day.
In an April 5, 2007 memorandum, a vocational counselor noted that vocational
rehabilitation efforts were unsuccessful. He listed several jobs as being within the restrictions set
forth by Dr. Rangitsch, including that of cashier. The vocational counselor advised that the
position of cashier was available in high numbers in appellant’s commuting area and that the
lower level of specific vocational preparation and high turnover rate would allow him to obtain
such work. He found that appellant could work as a cashier for a 20-hour week and earn
$136.60. The vocational counselor noted that the position of cashier, Department of Labor,
Dictionary of Occupational Titles (DOT) No. 211.462.010, was responsible for receiving cash

3

from customers or employees in payment for goods and services. Some of the duties of a cashier
involved operating a cash register, making change, operating a ticket-dispensing machine and
verifying cash on hand. The physical demands of this job involved lifting 20 pounds
occasionally and less than 10 pounds frequently.
By letter dated May 23, 2007, the Office referred appellant for a second opinion to
Dr. Hendrick J. Arnold, a Board-certified orthopedic surgeon. In a report dated June 18, 2007,
Dr. Arnold advised that appellant could perform the duties of cashier but that he would need a
period of work hardening. He recommended that appellant start at four hours a day and work up
to six hours and perhaps eight hours a day. Appellant would have to be able to alternate standing
and sitting to stretch and take breaks. Dr. Arnold did not believe that appellant was a good
candidate for surgery and opined that the aggravation of a preexisting degenerative disease was
permanent.
By letter dated June 26, 2007, the Office proposed reducing appellant’s compensation to
reflect his capacity to earn wages as a cashier at a rate of $136.00 per week.
In response, appellant submitted medical reports dated June 26 and July 5, 2007 from
Dr. Jon McMillan, who noted that appellant had low back pain secondary to facet arthrosis and
Grade 1 spondylolisthesis at L4-5.
In a July 31, 2007 decision, the Office reduced appellant’s wage-loss benefits effective
August 5, 2007, based on his capacity to perform work as a cashier. It determined that appellant
had a loss in wage-earning capacity of $229.89 per week or a compensation rate of $199.25 per
week.1
On August 21, 2007 appellant requested a review of the written record by an Office
hearing representative. He submitted medical reports from Dr. McMillan dated July 19 through
October 15, 2007. Dr. McMillan reiterated that appellant had Grade 1 spondylolisthesis at L4-5
and facet degenerative arthrosis at L3-4, L4-5 and L5-S1. He also noted that appellant had
Vitiligo, which appellant attributed to chemical exposure during firefighting.
In an August 5, 2007 letter, Dr. Arnold responded to an injury from appellant noting his
role as an impartial medical examiner. He advised that appellant had back pain but noted that he
could perform the positions listed, which were very flexible and nonmanual. Dr. Arnold
reiterated that appellant could not return to firefighting.
By decision dated December 18, 2007, the hearing representative affirmed the July 31,
2007 decision.

1

The Office noted appellant’s weekly pay rate when injured (June 15, 2000) was $338.08. It noted that the
current pay rate for the job and step when injured is $422.31 (effective April 19, 2007). The Office noted that, as
appellant was capable of earning $136.60 per week, the percentage of new wage-earning capacity was 32 percent
($136.60 divided by $422.31). It then determined that the adjusted wage-earning capacity amount per week was
$108.19 (32 percent of $338.08), which resulted in a loss of wage-earning capacity of $229.89 per week ($338.08
minus $108.19). As appellant was paid at a rate of 75 percent, this resulted in a compensation rate of $172.42 per
week, which the Office increased by applicable cost-of-living adjustments to $199.25 per week.

4

LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.2
Section 8115(a) of the Federal Employees’ Compensation Act3 provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by his actual earnings if his actual earnings fairly and reasonably represent his wageearning capacity.4 Generally, wages actually earned are the best measure of a wage-earning
capacity and in the absence of showing that they do not fairly and reasonably represent the
injured employee’s wage-earning capacity, must be accepted as such a measure.5 If the actual
earnings do not fairly and reasonably represent wage-earning capacity or the employee has no
actual earnings, his wage-earning capacity is determined with due regard to the nature of his
injury, the degree of physical impairment, his usual employment, his age, his qualifications for
other employment, the availability of suitable employment and other factors or circumstances
which may affect his wage-earning capacity in his disabled condition.6 Wage-earning capacity is
a measure of the employee’s ability to earn wages in the open labor market under normal
employment conditions.7 The job selected for determining wage-earning capacity must be a job
reasonably available in the general labor market in the commuting area in which the employee
lives.8 In determining an employee’s wage-earning capacity, the Office may not select a
makeshift or odd lot position or one not reasonably available on the open labor market.9 The
Board has held that the Office must address the issue and explain why a part-time position is
suitable for a wage-earning capacity determination based on the specific circumstances of the
case.10
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s DOT or otherwise available in the open labor market, that fits that
employee’s capabilities with regard to his physical limitations, education, age and prior
2

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

3

5 U.S.C. § 8115(a).

4

Id. Loni J. Cleveland, 52 ECAB 171, 177 (2000).

5

Lottie M. Williams, 56 ECAB 302 (2005); see Edward Joseph Hanlon, 8 ECAB 599 (1956).

6

5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, 55 ECAB 465, 471 (2004); Robert H. Merritt, 11 ECAB
64, 65 (1959).
7

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

8

M.A., 59 ECAB ____ (Docket No. 07-349, issued July 10, 2008. The commuting area is to be determined by
the employee’s ability to get to and from the worksite. See Glen L. Sinclair, 36 ECAB 664, 669 (1985).
9

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

10

Connie L. Potratz-Watson, 56 ECAB 316, 318 (2005).

5

experience. Once this selection is made, a determination of wage rate and availability in the
open labor market should be made through contact with the states employment service or other
applicable service. Finally, application of the principles set forth in the Shadrick decision will
result in the percentage of the employee’s loss of wage-earning capacity.11
Section 8123(a) of the Act provides that, when here is a disagreement between a
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.12 The opinion
of such specialist, if sufficiently well rationalized and based on a proper factual background,
must be given special weight.13
ANALYSIS -- ISSUE 1
The Office found that appellant was capable of performing the duties of a cashier
effective August 5, 2007. It relied upon the report of the impartial medical examiner,
Dr. Rangitsch. The Board finds that the Office properly determined that appellant could perform
this position.
As appellant’s vocational rehabilitation was unsuccessful, the rehabilitation counselor
determined that he could return to work as a cashier. He found that the position of cashier was
medically and vocationally suitable for appellant and obtained information from a labor market
survey to establish the availability and wage rate of the position.14 Through contact with the
vocational counselor, the Office determined that the constructed position of cashier reasonably
represented appellant’s wage-earning capacity. The vocational counselor identified the cashier
position listed in the Department of Labor, Titles, DOT No. 211.462.010. He provided
appropriate information regarding the position description, the availability of work positions
within appellant’s commuting area and pay ranges within the geographical area. The position
was found within appellant’s physical restrictions as set forth by Dr. Rangitsch, the impartial
medical examiner. The vocational counselor also noted that the position was available in high
numbers with a low level of specific vocational preparation.
A conflict in medical opinion arose between Dr. Cesko, appellant’s physician, and
Dr. Reckling, a second opinion physician, with regard to his disability and capacity for work.
The Office properly referred him to Dr. Rangitsch for an impartial medical examination.
Dr. Rangitsch found that appellant could work in a sedentary position for four hours a day and
lift up to 30 pounds on an infrequent basis. As the opinion of the vocational counselor is well
rationalized and based on a proper factual background, it is entitled to special weight.15 The
11

N.J., 59 ECAB ___ (Docket No. 07-45, issued November 14, 2007); Wilson L. Clow, Jr., 44 ECAB 157, 17175 (1992); Albert C. Shadrick, 5 ECAB 376 (1953).
12

5 U.S.C. § 8123(a); Roger W. Griffith, 51 ECAB 491, 504 (2000); Joseph D. Lee, 42 ECAB 172 (1990).

13

Solomon Polen, 51 ECAB 341, 343 (2000).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(b) (December 1995); see also Dorothy Jett, 52 ECAB 246 (2001).
15

Solomon Polen, supra note 13.

6

position of cashier is within Dr. Rangitsch’s physical restrictions. The vocational counselor
determined that appellant could earn $136.60 per week, during a 20-hour work week.
The Board finds that the Office properly considered the availability of suitable
employment and appellant’s physical limitations, his usual employment and age and employment
qualifications in determining that the position of cashier represented his wage-earning capacity.
The weight of the evidence of record establishes that appellant has the requisite physical ability,
skill and experience to perform the position of cashier. The position is reasonably available
within the general labor market of his commuting area. The Office proper determined that the
position of cashier reflected appellant’s wage-earning capacity. Further, it properly applied the
Shadrick formula16 as codified at use at 20 C.F.R. § 10.403 in determining appellant’s loss of
wage-earning capacity.
LEGAL PRECEDENT -- ISSUE 2
Once the loss of wage-earning capacity is determined, a modification of such
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated,
or the original determination was, in fact, erroneous.17 The burden of proof is on the party
attempting to show modification of the award.18
ANALYSIS -- ISSUE 2
To establish modification of the wage-earning capacity, the issue is whether there has
been a material change in his condition that would render him unable to perform those duties.19
For a physician’s opinion to be relevant on the issue, the physician must address the duties of the
constructed position.20
Appellant submitted medical reports from noting that he had Grade 1 spondylosis, facet
joint arthrosis and Vitiligo. However, Dr. McMillan did not address whether appellant can
perform the position of cashier or whether there had been a material change in his accepted
condition sufficient to overcome the well-rationalized opinion of the impartial medical examiner.
Dr. Arnold’s reports did not find that appellant could not work as a cashier. The medical
evidence does not establish a material change in the nature and extent of the accepted medical
condition. Appellant did not establish a basis for modification of the wage-earning capacity by
submitting evidence establishing that he had been retrained or otherwise vocationally
rehabilitated or that the original determination was, in fact, erroneous. He failed to meet his
burden of proof to establish modification of the wage-earning capacity determination.
16

Albert C. Shadrick, supra note 11.

17

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

18

Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

19

Phillip S. Deering, 47 ECAB 692 (1996).

20

Id.

7

CONCLUSION
The Board finds that the Office properly determined that the position of cashier reflects
appellant’s wage-earning capacity. The Board further finds that the Office properly denied
modification of appellant’s wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 18 and July 31, 2007 are affirmed.
Issued: November 25, 2008
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF AGRICULTURE, FOREST )
SERVICE, WEST FORK RANGER STATION,
)
Darby, MT, Employer
)
___________________________________________ )
J.F., Appellant

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

Docket No. 08-1738
Issued: January 12, 2009

Case Submitted on the Record

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

JURISDICTION
On June 3, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 1, 2008 decision, which affirmed an October 12, 2007 decision
granting him a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.1
ISSUE
The issue is whether appellant has more than three percent permanent impairment of the
right lower extremity, for which he received a schedule award.

1

The record also contains a December 19, 2007 wage-earning capacity decision. Appellant did not appeal this
decision to the Board.

FACTUAL HISTORY
On July 21, 2006 appellant, then a 32-year-old full-time seasonal forestry technician,
sustained a back injury while cutting and removing trees. The Office accepted his claim for
intervertebral disc disorder with myelopathy of the lumbar region and authorized a L3-4
microdiscectomy and a L4 foraminotomy, which was performed on September 15, 2006.
Appellant stopped work on July 22, 2006.
An x-ray of the lumbar spine dated July 27, 2006 revealed no acute bony abnormality. A
magnetic resonance imaging (MRI) scan of the lumbar spine dated August 3, 2006 revealed a
large extruded disc at L3-4, large disc protrusion at L4-5 with a herniated component and
multilevel degenerative disc disease at L3-4, L4-5 and L5-S1. Appellant came under the
treatment of Dr. K.C. Brewington, II, a Board-certified neurosurgeon, diagnosed L3-4, L4-5 and
L5-S1 degenerative disc disease, L4-5 and L5-S1 subarticular recess stenosis and right L4
radiculopathy with weakness, secondary to right L3-4 herniated nucleus pulposus with inferior
migration. Dr. Brewington noted that appellant had progressive paralysis of the right leg
associated with the disc herniation and required urgent decompression surgery. He opined that
appellant’s current lumbar issues were completely and totally related to his occupation as a
forester technician. In an operative report dated September 15, 2006, Dr. Brewington performed
a right L3-4 microdiscectomy, right L4 foraminotomy and diagnosed right L4 radiculopathy
secondary to right L3-4 herniated nucleus pulposus with inferior migration. On October 24,
2006 he noted that appellant was progressing well postoperatively and recommended physical
therapy.
On January 23, 2007 appellant submitted a claim for a schedule award. He submitted a
report from Dr. Dana Headapohl, Board-certified in occupational medicine, dated January 25,
2007, who noted a history of injury and diagnosed chronic low back pain, multilevel
degenerative disc disease, right L4 radiculopathy motor deficits resolved postsurgery with
persistent sensory deficits and status post right L3-4 microdiscectomy and right L4
foraminotomy. Appellant noted findings upon physical examination of normal strength of the
lower extremities, decreased sensation on the right in the anterolateral thigh (L2), decreased
sensation on the right in the anterolateral calf, medial dorsum/plantar foot (L5) and normal
reflexes of the biceps, patellar, ankle and plantar. Dr. Headapohl noted work restrictions of no
lifting over 40 pounds, avoid static trunkal positions and avoid frequent, repetitive or prolonged
trunkal flexion or twisting. He opined 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 whole person impairment, which related to the lumbar spine.3
On June 18, 2007 the Office requested a supplemental report from Dr. Headapohl and
requested that he address whether appellant reached maximum medical improvement and
determine whether he sustained any impairment of the extremities due to neurological deficits
from affected spinal nerve roots due to the accepted work injury. In a July 18, 2007 report, he
noted that appellant reached maximum medical improvement on January 25, 2007.
2

A.M.A., Guides (5th ed. 2001).

3

Id. at 384, Table 15-3.

2

Dr. Headapohl indicated that appellant sustained an impairment of the right leg at the L3 and L4
nerve root. He calculated, in accordance with the fourth edition of the A.M.A., Guides,4 that
appellant sustained five percent impairment of the lower extremity pursuant to Table 83, page
130. Dr. Headapohl noted that the fifth edition of the A.M.A., Guides did not have a correlating
table, rather, it calculated nerve root impairment as part of the whole person spine impairment.
He noted that the fifth edition of the A.M.A., Guides provides reduced extremity impairments for
peripheral nerves as compared to the fourth edition. Dr. Headapohl noted that appellant had four
percent lower extremity impairment pursuant to Figure 17-8 and Table 17-37, page 552, of the
fifth edition of the A.M.A., Guides, less than that calculated under the fourth edition.
The Office referred Dr. Headapohl’s report to an Office medical adviser who, in an
August 28, 2007 report, found that appellant had three percent impairment of the right leg. The
medical adviser disagreed with Dr. Headapohl’s assertion that the fifth edition of the A.M.A.,
Guides did not provide a method to rate spinal nerve root impairments and opined that he
incorrectly utilized the fourth edition of the A.M.A., Guides to rate the peripheral nerves. He
indicated that the appropriate method to rate the L4 nerve root impairment was pursuant to Table
15-15, 15-16 and 15-18, page 424 of the A.M.A., Guides which determines spinal nerve root
impairment affecting the lower extremity. The medical adviser calculated that appellant had
three percent impairment of the right leg for sensory deficit or pain in the L4 nerve root
distribution, for reduced light touch and sharp dull sensation and pain which does not limit his
daily activities under Table 15-18 of the A.M.A., Guides.5 He advised that appellant would be
classified as Grade 3, for a 60 percent sensory deficit or pain, in the distribution of the L4 nerve
root under Table 15-15.6 Impairment of 3 percent for sensory loss would be calculated by
multiplying the 60 percent grade with the 5 percent maximum allowed for the L4 nerve. The
medical adviser indicated that Dr. Headapohl found appellant’s right L4 radiculopathy motor
deficits had resolved postsurgery therefore there was no motor loss impairment rating.
In a decision dated October 12, 2007, the Office granted appellant a schedule award for
three percent impairment of the right lower extremity. The period of the award was from
January 25 to March 26, 2007.
On October 31, 2007 appellant requested an oral hearing which was held on
February 14, 2008.
In a decision dated May 1, 2008, the hearing representative affirmed the October 12,
2007 decision.

4

Id. at (4th ed. 1993).

5

Id. at 424, Table 15-18.

6

Id. at 424, Table 15-15.

3

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act7 and its
implementing regulation8 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.9
ANALYSIS
On appeal, appellant contends that he has more than three percent permanent impairment
of the right lower extremity. The Office accepted appellant’s claim for intervertebral disc
disorder with myelopathy in the lumbar region and authorized a L3-4 microdiscectomy and a L4
foraminotomy which was performed on September 15, 2006.
Appellant submitted an impairment rating from Dr. Headapohl dated January 25, 2007,
who diagnosed chronic low back pain, multilevel degenerative disc disease, right L4
radiculopathy, motor deficits resolved postsurgery with persistent sensory deficits and status post
right L3-4 microdiscectomy and right L4 foraminotomy. He noted findings upon physical
examination of normal strength of the lower extremities, decreased sensation on the right in the
anterolateral thigh (L2), decreased sensation on the right in the anterolateral calf and medial
dorsum/plantar foot (L5) and normal reflexes of the biceps, patellar, ankle and plantar.
Dr. Headapohl opined that appellant had a 12 percent whole person impairment, which related to
the lumbar spine10 according to the DRE designation for spine impairment. He referenced Table
15-5 of the A.M.A., Guides, which pertains to impairment for a lumbar spine injury.11 However,
neither the Act nor its regulations provide for the payment of a schedule award for whole body
impairment or for impairment of the lumbar spine, rather an appellant may be entitled to a
schedule award for permanent impairment to an upper or lower extremity due to an injury of the
neck, shoulders or spine.12
On June 18, 2007 the Office requested a supplemental report from Dr. Headapohl
requesting that he provide an impairment rating for the upper or lower extremities in accordance
with the fifth edition of the A.M.A., Guides. On July 18, 2007 Dr. Headapohl opined that
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon., granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
10

A.M.A., Guides, 384, Table 15-3.

11

Id. at 392, Table 15-5.

12

See Thomas J. Engelhart, 50 ECAB 319, 320-21 (1999).

4

appellant sustained a five percent impairment of the lower extremity pursuant to Table 83, page
130 of the fourth edition of the A.M.A., Guides. He calculated appellant’s impairment pursuant
to the fourth edition of the A.M.A., Guides13 and asserted that the fifth edition of the A.M.A.,
Guides did not have a correlating table and provided a lower extremity impairment for peripheral
nerves. However, the Board notes that the fifth edition of the A.M.A., Guides was adopted by
the Office effective February 1, 2001.14 Additionally, the fifth edition of the A.M.A., Guides
provides a method for calculating nerve root and/or spinal cord impairment for the lumbosacral
spine which affects the lower extremities, specifically Tables 15-15, 15-16 and 15-18.15
Therefore, the Board finds that Dr. Headapohl did not properly follow the A.M.A., Guides. An
attending physician’s report is of little probative value where the A.M.A., Guides, are not
properly followed.16
The Office medical adviser utilized the findings in Dr. Headapohl’s July 18, 2007 report
and correlated them to specific provisions in the A.M.A., Guides to determine appellant’s
impairment rating. He opined that appellant had three percent impairment of the right lower
extremity. The medial adviser disagreed with Dr. Headapohl’s assertion that the fifth edition of
the A.M.A., Guides did not provide a method to rate spinal nerve root impairments and noted
that Dr. Headapohl incorrectly utilized the fourth edition of the A.M.A., Guides. He calculated
that appellant had three percent impairment of the right lower extremity for sensory deficit or
pain in the L4 nerve root distribution. In calculating this amount, the medical adviser classified
appellant as Grade 3, for a 60 percent sensory deficit or pain, for decreased light touch and sharp
dull sensation and pain which does not limit daily activities under Table 15-15 of the A.M.A.,
Guides.17 He further indicated that the maximum lower extremity impairment for sensory deficit
in the distribution of the L4 nerve root was five percent under Table 15-18.18 The medial adviser
then multiplied the 60 percent grade by the 5 percent maximum allowed for the L4 nerve to
arrive at three percent impairment. He indicated that Dr. Headapohl found appellant’s right L4
radiculopathy motor deficits had resolved postsurgery therefore there was no motor loss
impairment rating. The Board finds that the Office medical adviser properly applied the A.M.A.,
Guides in calculating appellant’s permanent impairment.
The Board finds that the medical evidence which conforms to the A.M.A., Guides
establishes that appellant has no more than a three percent impairment of the right lower
extremity. There is no other medical evaluation of record explaining how, pursuant to the fifth
edition of the A.M.A., Guides, appellant has impairment than that for which the Office has
issued a schedule award.
13

A.M.A., Guides (4th ed. 1993).

14

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); Joseph Lawrence, Jr., 53 ECAB 331 (2002).
15

A.M.A., Guides, 424, Table 15-15, 15-16, 15-18.

16

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
17

A.M.A., Guides, 424, Table 15-15.

18

Id. at 424, Table 15-18.

5

CONCLUSION
The Board finds that the Office properly determined that appellant had no more than a
three percent permanent impairment of the right lower extremity, for which he received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 1, 2008 and October 12, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: January 12, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
WEAPONS STATION, Coltsneck, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 11-1441
Issued: January 12, 2012

Case Submitted on the Record

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

On June 2, 2011 appellant, through his attorney, filed a timely appeal of a February 7,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). The
February 7, 2011 decision affirmed a September 29, 2010 OWCP decision finding that appellant
had a 30 percent permanent impairment to his right arm.
The Board has duly considered the matter and will affirm the February 7, 2011 OWCP
decision. On appeal, appellant’s representative does not express any disagreement with the
schedule award per se. He argues that OWCP delayed adjudication of appellant’s schedule
award claim until the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (2009) became applicable on May 1, 2009.1 Appellant’s
representative argues that appellant has property right in a schedule award benefit under the fifth
edition and a protected property interest cannot be deprived without due process, citing Goldberg
v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge, 424 U.S. 319 (1976). According to the
representative, appellant should have been entitled to a hearing regarding a schedule award under
the fifth edition of the A.M.A., Guides. But the cases cited held only that a claimant who was in
receipt of benefits (in Goldberg public assistance, and in Mathews social security benefits) could
1

For schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition. FECA Bulletin
No. 09-03 (issued March 15, 2009).

not have those benefits terminated without procedural due process. In this case appellant had not
received a schedule award under the fifth edition.
In Harry D. Butler,2 the Board noted that Congress delegated authority to the Director of
OWCP regarding the specific methods by which permanent impairment is to be rated. Pursuant
to this authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.3 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A., Guides.4 The applicable date of the sixth
edition relates to the date of the schedule award decision. It is not determined by either the date
of maximum medical improvement or when the claim for such award was filed.5 The Board
accordingly finds that the arguments presented are without merit regarding the February 7, 2011
OWCP decision on appeal.
IT IS HEREBY ORDERED THAT the February 7, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

43 ECAB 859 (1992).

3

Id. at 866; 20 C.F.R. § 10.404.

4

Supra note 1.

5

See D.O. (Docket No. 11-350, issued October 25, 2011).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fountain, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-0964
Issued: December 28, 2015

Case Submitted on the Record

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

JURISDICTION
On March 27, 2015 appellant, through counsel, filed a timely appeal from a February 20,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from January 31, 2014, the date of the most recent merit decision, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 27, 2013 appellant, then a 59-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on or before November 30, 2010 she sustained a left
1

5 U.S.C. § 8101 et seq.

knee condition requiring total arthroplasty. She attributed her condition to prolonged walking,
standing, mounting and dismounting her postal vehicle, and pushing and pulling a nutting cart to
load and unload her vehicle.
In a December 12, 2013 letter, OWCP advised appellant of the type of additional
evidence needed to establish her claim, including factual corroboration of the identified work
factors, and an opinion from her attending physician supporting that those factors caused the
claimed condition. In an attached questionnaire, it requested that she provide a detailed
description of the work activities which she believed contributed to her condition, and the
frequency and duration of these tasks. OWCP also requested that appellant describe all activities
outside of her federal employment, including sports, hobbies, computer usage, musical
instruments that she played, non-federal employment, volunteer, or recreational activities. It
afforded her 30 days to submit such evidence. Appellant did not respond to the injury.
In a second December 12, 2013 letter, OWCP requested that the employing establishment
provide comments from a knowledgeable supervisor on the accuracy of appellant’s statements.
Appellant’s supervisor responded on January 3, 2014, explaining that appellant’s assigned
delivery route required “entering and exiting a motor vehicle” as many as 500 times a work shift.
Appellant was also required to lift up to 70 pounds, and push and pull equipment loaded with up
to 250 pounds of mail and parcels. The supervisor emphasized that he had “no reason to doubt
[appellant’s] statement relative to this claim.” He provided a position description confirming the
duties appellant described.
By decision dated January 31, 2014, OWCP denied appellant’s claim, finding that she did
not establish the described work factors as factual because she did not respond to the
December 12, 2013 questionnaire. It further found that she failed to submit medical evidence.
In an October 13, 2014 letter, appellant asserted that an enclosed April 7, 2014 report
from Dr. Jack L. Rook, an attending Board-certified physiatrist, addressed “all the requirements
needed by [OWCP].” She did not request reconsideration.
Dr. Rook’s April 7, 2014 report noted that appellant had worked as a letter carrier for the
previous 19 years, assigned to walking routes. As of September 2011, appellant cased and
delivered a route requiring her to dismount her postal vehicle approximately 450 times a work
shift. Dr. Rook related her complaints of progressively worsening bilateral knee pain since
approximately 2004, exacerbated by dismounting her postal vehicle and walking while
delivering mail. Appellant underwent bilateral medial meniscus repairs using her private health
insurance. Her symptoms abated for several years, but eventually returned. A 2010 magnetic
resonance imaging (MRI) scan “demonstrated tricompartmental osteoarthritis with severe
patellofemoral changes and advanced degeneration of the remaining compartments.” Since
2010, appellant underwent bilateral total knee arthroplasties. OWCP accepted her right knee
condition based on the identical work factors and pathophysiologic mechanisms.2 Dr. Rook
opined that casing mail and walking while delivering mail placed “significant stress on
[appellant’s] left knee joint,” causing “a direct impact with the femoral condyles against the
2

Under File No. xxxxxx522, OWCP accepted an aggravation of right knee arthritis, culminating in a total right
knee arthroplasty.

2

menisci and tibial plateaus,” eroding “the cartilage on the opposing surfaces,” and accelerating
the development of osteoarthritis. Entering and dismounting appellant’s postal vehicle
approximately 450 times a work shift required contraction of the quadriceps musculature to
straighten her left leg, forcing the patella into the groove formed by the femoral condyles. This
process led to “progressive erosion of the opposing cartilaginous surfaces which include the
undersurface of the patella and the femoral condyle.” Dr. Rook noted that appellant had no
nonoccupational factors that would cause the left knee condition.
In a January 15, 2015 letter received on January 26, 2015, appellant requested
reconsideration, asking that OWCP review the April 7, 2014 report from Dr. Rook.
By decision dated February 20, 2015, OWCP denied appellant’s request for a review of
the merits of the claim, as the evidence submitted was irrelevant or immaterial to the claim. It
found that as her claim was denied based on fact of injury, Dr. Rook’s medical opinion was
irrelevant and did not warrant a merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) submit relevant and
pertinent new evidence not previously considered by OWCP.4 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.6 Appellant need only
submit relevant, pertinent evidence not previously considered by OWCP.7 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.8

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

6

Helen E. Tschantz, 39 ECAB 1382 (1988).

7

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

8

Annette Louise, 54 ECAB 783 (2003).

3

ANALYSIS
Appellant claimed that she sustained a left knee condition. In her November 27, 2013
claim form, the only document of record containing her direct description of work factors, she
attributed her condition to walking, standing, pushing and pulling a loaded nutting cart, and
entering and exiting her delivery vehicle. On December 12, 2013 OWCP requested that
appellant submit a detailed statement specifying the frequency and duration of the tasks listed on
her claim form. Although appellant’s supervisor provided a job description and generally
corroborated appellant’s remarks on her claim form, appellant did not provide the information
OWCP requested. Due to the lack of appellant’s factual statement, OWCP issued its January 31,
2014 decision denying the claim, finding that appellant failed to establish factual component of
fact of injury, as the claimed work incidents were not established.
Appellant requested a merit review on January 26, 2015, asserting that a medical report
from Dr. Rook, an attending Board-certified physiatrist, was sufficient to establish fact of injury.
However, OWCP denied reconsideration by decision dated February 20, 2015, finding that the
evidence submitted in support of the request was irrelevant to the claim. The issue now before
the Board is whether OWCP properly denied appellant’s January 26, 2015 request for a merit
review. This entails examining the evidence submitted, and determining whether it showed that
OWCP committed a legal error in its January 31, 2014 decision, or whether it constituted new,
relevant evidence or argument on the critical issue of whether the work incidents were
established.
In support of her reconsideration request, appellant submitted Dr. Rook’s April 7, 2014
report, relating her account of prolonged walking, and climbing in and out of her delivery vehicle
approximately 450 times a work shift. However, Dr. Rook is not qualified as a finder of fact in
this case as there is no evidence that he had direct knowledge of her duties. His repetition of
appellant’s account is not competent factual evidence.9 Dr. Rook’s medical opinion is irrelevant
to the underlying factual issue. The Board has held that evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.10
A claimant may be entitled to a merit review by submitting new and relevant evidence or
argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R. § 10.608,
OWCP properly denied her request for a review of the merits of the claim.
On appeal counsel asserts that OWCP improperly rejected appellant’s uncontroverted
explanation of events. As set forth above, appellant failed to provide the detailed description of
her work factors requested by OWCP. Counsel also contends that OWCP improperly rejected
Dr. Rook’s opinion as it relied on him to accept a right knee condition and arthroplasty in one of
appellant’s other claims. However, as OWCP denied the claim based on failure to establish a
factual basis for the claim, Dr. Rook’s medical opinion is irrelevant. Additionally, counsel

9

See Bonnie A. Contreras, 57 ECAB 364 (2006) (where a claimant did not establish an employment incident
alleged to have caused an injury, it was not necessary to consider any medical evidence).
10

E.O., Docket No. 15-0635 (issued June 5, 2015). See also Edward Matthew Diekemper, 31 ECAB 224 (1979).

4

alleges that OWCP did not meet its obligation to assist in the development of the evidence. The
Board finds that OWCP properly developed appellant’s claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the merits
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 20, 2015 is affirmed.
Issued: December 28, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5