United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Iron Mountain, MI, Employer
__________________________________________

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Appearances:
Benjamin Balkum, Esq., for the appellant
No appearance, for the Director

Docket No. 07-1249
Issued: April 9, 2008

Oral Argument February 13, 2008

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

JURISDICTION
On April 5, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated February 26, 2007, which found that she received an
overpayment of compensation in the amount of $8,188.00. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$8,188.00 overpayment of compensation; and (2) whether the Office properly determined that
appellant was at fault in creating the overpayment.
FACTUAL HISTORY
On March 3, 1999 appellant, then a 37-year-old registered nurse, sustained injury when
she fell forward and cracked her front teeth in the performance of duty. She did not stop work.
The Office accepted appellant’s claim for “fracture two front upper teeth.” She was advised that

bills for medical expenses related to the accepted conditions would be processed for payment by
the Office.
In a June 17, 1999 report, Dr. Joseph W. Lasnoski, a treating dentist, advised that
appellant presented with a fracture of the porcelain on the bridge for tooth numbers 6 through 10,
which she related occurred at work. He noted that appellant was referred to Dr. Patrick
Laughlin, a surgeon specializing in periodontics and dental implants, for the evaluation of tooth
number 6 and it was determined that this tooth was fractured. Dr. Lasnoski opined that appellant
needed extensive treatment to repair the injury. He indicated that he would have to extract the
teeth numbered 6 and 10 and place implants in the region of teeth numbered 6, 7 and 10 and 13.
Dr. Lasnoski also indicated that the oral surgeon would have to do this under a separate fee for
$2,266.00 dollars. He advised that appellant would need a temporary bridge for teeth 2 through
12 and plastic crowns for teeth 2, 3, 5, 11, 12 and a plastic pontic for teeth 4, 6, 7, 8, 9, 10.
Dr. Lasnoski advised that appellant needed to have an osseointegrated bridge (OIB) for teeth 6
through 10, which would be comprised of an osseointegrated crown (OIC) for teeth 6, 7 and 10
and an osseointegrated pontic (OIP) for teeth 8 and 9. He opined that this would cost $6,169.00.
Dr. Lasnoski opined that an OIC was needed for tooth 13 and that would equate to $1,545.00.
He noted that this work would cost approximately $9,980.00. Dr. Lasnoski explained that
because tooth number 6 was fractured, it had to be extracted and that tooth number 10 had to be
removed. He recommended placing three dental implants in the anterior portion of appellant’s
mouth, in the number 6, 7 and 10 regions and then restoring this with a fixed bridge attached to
the implants at number 6, 7 and 10. Dr. Lasnoski opined that he would need the services of a
prosthodontist and a Board-certified oral surgeon to extract the teeth numbered 6 and 10 and to
place the implants in the number 6, 7 and 10 regions. He also explained that the post in tooth
number 4 had fallen out and could not be restored, so it would be extracted by the dental
surgeon. Dr. Lasnoski advised that tooth number 13 was lost and extracted and implants would
need to be placed in the number 4 and 13 region. He opined that the cost to replace tooth 4 and
the permanent crowns on teeth 2, 3, 4, 11 and 12 would cost $1,545.00 for the OIC at tooth
number 4 and $3,835.00 for the porcelain veneer crown to teeth 2, 3, 5, 11 and 12 or a total of
$5,380.00. Dr. Lasnoski advised that the total cost of treating the maxillary arch was
$15,360.00.
In an October 14, 1999 follow-up report, Dr. Lasnoski noted that appellant’s “upper
anterior region [number] 6 through 10” was fractured in the work-related accident on
March 3, 1999. He reiterated his prior estimate, but did not include the cost for the OIC for tooth
13, which he previously noted would cost $1,545.00. Dr. Lasnoski opined that the treatment that
had been recommended was “directly related to the March 3, 1999 accident” and that the total
cost for appellant’s treatment would equate to $8,435.00. He did not include the costs for
implant number 4, as he noted it was a separate fee. Dr. Lasnoski had previously indicated that
this would cost $5,380.00.
In an October 18, 1999 statement, appellant alleged that on the day of the injury she went
to answer the telephone, when she slipped and her mouth and face slammed on the telephone
while falling. She alleged that she broke two front teeth and a third was loosened. Appellant
later indicated that she was informed that it was broken in the root canal post.

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In an October 21, 1999 statement of accepted facts, the Office noted that appellant’s
claim was accepted for fracture, two front upper teeth. The Office determined that appellant
would need to be examined in order to determine if the dental work was medically necessary.
The Office referred appellant to Dr. Robert E. Vraney, a dentist, for a second opinion. In
a February 1, 2000 report, Dr. Vraney noted examining appellant on January 24, 2000 and
opined that he was “somewhat shocked to see all the dental work that has been completed.
Everything relating to her injury is mostly finished. Only the cementation of the permanent
crown and bridgework is left.” From the information that Dr. Vraney had received, he was
assuming that appellant not only chipped her anterior bridge, but also fractured the root on tooth
10 and opined that perhaps it would require extraction of these two teeth and fabrication of a new
bridge. He added that, while there were other methods of replacing the teeth, the “devised
treatment plan that has been used is certainly the best that modern dental science has to offer.”
Dr. Vraney noted that he could understand the extractions of teeth 13 and 10 and possibly 6 and
4, as a bridge of that length was often “double abutted,” which meant that two teeth on either
side of the missing teeth were in good condition. He advised that a bridge of this type would go
from teeth 4, 5, 11 and 12. Dr. Vraney indicated that the work done on appellant was “master
work.” He opined that he did not think that teeth 2, 3 and 13 had any relationship to the injury.
By letter dated February 22, 2000, the Office requested clarification from Dr. Vraney
regarding other methods that could have been used to replace the damaged teeth.
In a March 6, 2000 report, Dr. Vraney opined that he was “acting as a ‘Monday Morning
Quarterback,’ as the ‘game’ is essentially over-but I guess under potential protest.” He opined
that he did “not know EXACTLY what happened.” Dr. Vraney opined that there were two other
possible plans that might have occurred in the case provided the “suspect teeth” did not have root
fractures. One possibility was that he could have extracted teeth 6, 10 and 13. Dr. Vraney also
advised that regarding the anterior bridge, for teeth 6 through 10, they could have sectioned and
removed a semi-permanent upper partial denture fabricated to replace upper missing teeth for a
cost of $972.00. He opined that the second option would be to extract tooth 13, section a bridge
and remove pontics at teeth 7, 8 and 9 and make a full cast crown for teeth 3 and 4 out of gold
and a porcelain veneer crown for tooth 12. Dr. Vraney also added that a upper partial removable
bridge would be needed to replace teeth 7, 8, 9, 13, 14 and 15 for a cost of $1,376.00. He
indicated that he could not see where a minor accident involving the front part of the mouth
could have any effect on the back part of the mouth. Dr. Vraney further noted that, in addition to
being a member of the American College of Prosthodontics, he was a past faculty member of the
Prosthodontic Department of Loyola University in Chicago for five years. If you will please
excuse the slang: “I know from whence I speak.”
By letter dated May 9, 2000, the Office provided appellant’s treating dentist,
Dr. Lasnoski, with a copy of Dr. Vraney’s report and requested his comments regarding the need
for the dental work performed on appellant.
In a May 16, 2000 response, Dr. Lasnoski explained that he performed a temporary
bridge for teeth 2 through 12, made plastic crowns for teeth 2, 3, 5, 11 and 12 and made plastic
pontics for teeth 4, 6, 8, 9, 10 and 10. He also indicated that he made an OIB for teeth 6 through
10, an OIC for teeth 6, 7 and 10 and an OIP for teeth 8 and 9. Dr. Lasnoski advised that the total

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cost for the temporary bridge for teeth 2 through 12 and the permanent OIB for teeth 6 to 10 was
equal to $8,435.00.
By letter dated August 8, 2000, the Office requested that appellant provide additional
information regarding the extent of her injuries and the necessity for the services she received.
On July 24, 2003 appellant’s congressional representative contacted the Office regarding
reimbursement for her dental expenses.
On August 26, 2003 the Office advised appellant’s congressional representative that her
claims for reimbursement needed to be submitted with the “ADA Form J 510 which is a
universal form used for billing dental work.” He noted that the expenses would be reviewed to
determine whether they were work related. The Office subsequently received confirmation from
appellant’s dental office, that the forms had been completed and submitted. On August 9, 2004
the Office informed appellant’s congressional representative that her payment was processed.
The record reflects that appellant was subsequently provided two checks in the amount of
$2,467.60 and $8,188.00.
In an August 26, 2004 telephone memorandum, the Office indicated that a congressional
representative had contacted it regarding receipt of compensation checks. The congressional
representative was advised that the $8,188.00 check was issued in error and that appellant should
return it. In a March 22, 2005 e-mail correspondence, the Office noted that appellant had
received an overpayment and had not returned the check.
On August 9, 2005 the Office issued a preliminary determination that appellant was
overpaid in the amount of $8,188.00, because she was overcompensated for medical expenses.
The Office made a preliminary finding that appellant was at fault because she was advised of the
error and the need to return the check, but the money was not returned. Appellant was further
informed of her options to challenge the amount of the overpayment or request a waiver of the
overpayment. If she disputed fault and desired waiver of the overpayment, she was specifically
directed to submit financial information by completing an overpayment recovery questionnaire.
No response was received.
In a February 26, 2007 decision, the Office finalized the preliminary overpayment finding
and found that appellant was at fault because she was paid for dental repairs and services beyond
those related to the accepted work-related condition for which she knew or should have known
that she was not entitled.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides that the United States shall pay
compensation for the disability or death of an employee resulting from personal injury sustained
while in the performance of his duty.1 When an overpayment has been made to an individual

1

5 U.S.C. § 8102(a).

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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.2
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision. In this case, the Office found
that appellant received an overpayment of compensation in the amount of $8,188.00, because she
received a payment for dental repairs which she knew or should have known that she was not
entitled to receive. However, the Board finds that the record is unclear as to how the Office fact
of overpayment.
In this case, the Office accepted appellant’s claim for fracture of two front upper teeth.
However, the Office did not identify which front teeth were accepted or explain why only two
teeth were accepted. This is particularly important in light of the fact that appellant explained
that not only did she break her two front teeth, but she also alleged that a third tooth was
loosened and broken in its root post. The Board notes that the statement of accepted facts in the
record does not contain information regarding these conditions.3 Office procedures provide that
a statement of accepted facts must contain the date of injury, claimant’s age, the job held on the
date of injury, the employer, the mechanism of injury and the claimed or accepted conditions.
The Office may also include additional elements, including appellant’s prior medical history,
depending on the nature of the condition claimed and the issues to be resolved.4 In this case, the
record also establishes that appellant had a bridge in her mouth and her treating dentists indicated
that it was damaged in the fall. Dr. Lasnoski opined that various teeth would need to be
extracted in order to fabricate a new bridge. The statement of facts does not note or describe
appellant’s dental condition. It is well established that, when a factor of employment aggravates,
accelerates or otherwise combines with a preexisting, nonoccupational pathology, the employee
is entitled to compensation.5
Moreover, Dr. Vraney, the second opinion physician, provided a report that is
speculative, at best.6 On February 1, 2000 he opined that he was “somewhat shocked to see all
the dental work that has been completed.” Dr. Vraney indicated that he was assuming that
appellant not only chipped her anterior bridge, but also fractured the root on tooth 10. While he
opined that the “devised treatment plan that has been used is certainly the best that modern dental
science has to offer,” he opined that he did not think that teeth 2, 3 and 13 had any relationship to
the injury. However, Dr. Vraney did not explain how he arrived at his conclusion. On his
2

Id. at § 8129(a).

3

See Bertha J. Soule, 48 ECAB 314 (1997) (noting the importance of an accurate and up-to-date statement of
accepted facts).
4

Darletha Coleman, 55 ECAB 143 (2003).

5

Chris Wells, 52 ECAB 445 (2001). See also Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical
Services and Supplies, Chapter 3.400.5(d) (April 1993) (provides for repair or replacement of injured natural and
fixed artificial teeth).
6

The Board has held that an opinion which is speculative in nature has limited probative value in determining the
issue of causal relationship. Arthur P. Vliet, 31 ECAB 366 (1979).

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March 6, 2000 he stated that he was “acting as a ‘Monday Morning Quarterback,’ as the ‘game’
is essentially over-but I guess under potential protest.” Additionally, Dr. Vraney indicated that
he did “not know EXACTLY what happened.” He provided an explanation regarding two other
possible plans that might have occurred provided the suspect teeth were not root fractured.
Again, the Board notes that Dr. Vraney’s opinion is speculative. He did not appear to be aware
of the circumstances surrounding the injury or of appellant’s preexiting dentals condition.
Dr. Vraney provided an opinion that basically stated that he did not know what happened to
appellant’s teeth. Without an accurate description of her preexisting conditions, the Board finds
that this opinion is not based on an accurate statement of accepted facts and is not sufficient to
establish that appellant knew that she was received incorrect payment for the dental services that
she received. This lack of proper factual background deprived Dr. Vraney of a proper factual
basis on which to form a medical opinion and rendered his opinion of diminished probative
value.7 The record is unclear with regard to what specific dental services were required. The
Board finds that the case is not in posture for a decision on fact of overpayment of compensation.
Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence to see that justice is done.8 It will
remand the case to the Office for further development of the medical evidence. On remand, the
Office shall prepare a statement of accepted facts to include appellant’s preexisting and accepted
conditions. The Office should refer appellant for a second opinion examination to determine the
extent of appellant’s work-related dental injuries. Following this and such further development
as the Office deems necessary, an appropriate decision should be issued.
CONCLUSION
The Board finds that this case is not in posture for decision.9

7

Gwendolyn Merriweather, 50 ECAB 411 (1999).

8

Claudio Vazquez, 52 ECAB 496 (2001).

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In light of the Board’s findings on the first issue, the second issue is moot.

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ORDER
IT IS HEREBY ORDERED THAT the February 26, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision.
Issued: April 9, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND, San Diego, CA,
Employer
__________________________________________

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

Docket No. 09-1987
Issued: April 1, 2010

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 July 31, 2009 appellant filed a timely appeal from Office of Workers’ Compensation
Programs’ decisions dated October 21, 2008 and June 15, 2009. Under 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 met its burden of proof to terminate appellant’s
compensation benefits; and (2) whether appellant has established continuing disability after
October 21, 2008, causally related to the accepted employment injury.
FACTUAL HISTORY
Appellant, a 58-year-old aircraft mechanic, filed a Form CA-2 claim for benefits on
June 28, 2005, alleging that he developed a lower back condition causally related to factors of

employment.1 The Office accepted the claim for temporary aggravation of lumbar/lumbosacral
degenerative disc disease.2
On September 10, 2007 appellant filed a Form CA-7 claim for a schedule award.
In order to determine whether appellant had any impairment stemming from his accepted
condition and the nature and extent of his current disability, the Office referred appellant to
Dr. Thomas J. Sabourin, Board-certified in orthopedic surgery, for a second opinion
examination.
In a May 5, 2008 report, Dr. Sabourin stated that appellant sustained a temporary
aggravation of his underlying condition, which apparently had ceased. He noted that a magnetic
resonance imaging (MRI) scan showed changes at the L4-L5 level. Dr. Sabourin stated,
however, that appellant had severe subjective complaints of lower back pain which were unlikely
to have been caused by his accepted condition. He noted no neurological deficit on examination
and advised that there was apparently some exaggeration of his symptoms. Dr. Sabourin advised
that the severity and duration of appellant’s symptoms were disproportionate to the accepted
condition, which had resolved. He did not indicate that appellant had any ratable permanent
impairment of his lower extremities stemming from his accepted condition.3
On September 15, 2008 the Office issued a notice of proposed termination of
compensation to appellant. It found that the weight of the medical evidence, as represented by
the opinion of Dr. Sabourin, the second opinion physician, established that his accepted,
employment-related temporary aggravation of lumbosacral degenerative disc disease had
resolved and that he had no residuals from the work injury.4 The Office allowed appellant
30 days to submit additional evidence or legal argument in opposition to the proposed
termination. Appellant did not submit any additional medical evidence.
By decision dated October 21, 2008, the Office terminated appellant’s compensation,
finding that Dr. Sabourin’s opinion represented the weight of the medical evidence.
On October 30, 2008 appellant requested an oral hearing, which was held on
March 20, 2009.5

1

The Office indicated that appellant also filed a Form CA-1 claim for traumatic injury in which he alleged that he
sustained a lower back injury on March 17, 2004. However, the form is not contained in the instant record.
2

Appellant continued to work on light duty with restrictions.

3

In a July 16, 2008 report, an Office medical adviser rated a three percent permanent impairment of appellant’s
left and right lower extremities based on Dr. Sabourin’s findings. However, the record contains no documentation
indicating that any further development of a schedule award was undertaken.
4

The Office noted that it had requested additional medical evidence from appellant in support of his schedule
award claim, but that it had not received such evidence.
5

As noted above, appellant stated that he did not miss any time from work due to his accepted employment
injury.

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By decision dated June 15, 2009, an Office hearing representative affirmed the
October 21, 2008 termination decision, finding that the Office met its burden to terminate
compensation.
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.6
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.7
ANALYSIS -- ISSUE 1
In this case, the Office based its decision to terminate appellant’s compensation on the
opinion of Dr. Sabourin, the Office referral physician. In his May 5, 2008 report, Dr. Sabourin
noted that appellant demonstrated subjective complaints of severe lower back pain but advised
that the severity and duration of his symptoms were disproportionate to the accepted condition.
He asserted that appellant’s current symptoms were most likely not attributable to his accepted
condition, a temporary aggravation of lumbosacral degenerative disc disease, which had
resolved. Dr. Sabourin found no neurological deficit on examination and advised that there was
apparently some exaggeration of his symptoms.
The Board finds that the Office properly found that Dr. Sabourin’s referral opinion
represented the weight of the medical evidence and negated a causal relationship between
appellant’s current condition and his accepted condition, a temporary aggravation of lumbosacral
degenerative disc disease. Dr. Sabourin’s report is sufficiently probative, rationalized and based
upon a proper factual background. The Office therefore properly relied on his opinion in its
October 21, 2008 termination decision.
LEGAL PRECEDENT -- ISSUE 2
Once the Office properly terminated appellant’s compensation in its October 21, 2008
decision, the burden of proof shifted to appellant to establish continuing disability.8
ANALYSIS -- ISSUE 2
Appellant did not submit any additional medical evidence. Thus, the Office hearing
representative properly found in his June 15, 2009 decision that appellant had submitted no
evidence sufficient to undermine the Office’s finding in its October 21, 2008 termination
decision that the opinion of Dr. Sabourin represented the weight of the medical evidence. As the
6

Mohamed Yunis, 42 ECAB 325, 334 (1991).

7

Id.

8

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

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record lacks medical evidence establishing continuing disability after October 21, 2008,
appellant did not meet his burden of proof to establish continuing disability. The Board therefore
affirms the October 21, 2008 and June 15, 2009 Office decisions.
CONCLUSION
Under the circumstances described above, the Board finds that the Office met its burden
of proof to terminate appellant’s compensation benefits and appellant has not established an
employment-related continuing disability following the termination of his benefits.
ORDER
IT IS HEREBY ORDERED THAT the June 15, 2009 and October 21, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 1, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 16-0334
Issued: May 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 15, 2015 appellant, through counsel, filed a timely appeal from a
July 24, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish permanent impairment
of his right lower extremity entitling him to a schedule award.
Appellant, through counsel, contends on appeal that OWCP’s decision is contrary to fact
and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 5, 2012 appellant, then a 51-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his right knee, hip, and ankle when he stepped in a
hole while delivering mail on that date. On April 3, 2012 OWCP accepted his claim for sprain of
unspecified sites in the right knee, sprain of hip, right iliofemoral, right ankle sprain, and sprain
of the lumbar region of the back. It paid compensation and medical benefits.
By decision dated January 9, 2014, OWCP terminated appellant’s medical and
compensation benefits, effective January 11, 2013, as appellant no longer had any residuals
related to his January 5, 2012 employment injury. Appellant requested a hearing before an
OWCP hearing representative. In a decision dated September 30, 2014, the hearing
representative affirmed the termination of benefits and found that appellant had not provided
evidence to warrant reinstatement of those benefits or for further development of the evidence.
On April 13, 2015 appellant filed a claim for a schedule award (Form CA-7). In support
of his claim, he submitted a March 13, 2015 note from Dr. Venkat R. Rapuri, a Board-certified
orthopedic surgeon, found that appellant had reached maximum medical improvement.
By letters dated April 20, 2015 (letter returned by post office) and June 24, 2015, OWCP
requested that appellant submit additional medical evidence in support of a schedule award.
Appellant was afforded 30 days to submit this additional evidence. No response was received.
By decision dated July 24, 2015, OWCP denied appellant’s claim for a schedule award,
finding that the submitted evidence was not sufficient to establish permanent impairment to a
scheduled member resulting from the employment injury.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of single set of tables so that here may be uniform standards applicable to all
claimants. The American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th edition 2009) (“A.M.A., Guides”) has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.4 The effective date of the
sixth edition of the A.M.A., Guides is May 1, 2009.5
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id.

5

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

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Not all medical conditions accepted by OWCP result in permanent impairment to a
scheduled member.6 It is the claimant’s burden to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of an employment injury.7 OWCP
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred. An impairment description must be in sufficient detail so the
claims examiner and others reviewing the file will be able to clearly visualize the impairment
with its restrictions and limitations.8
ANALYSIS
OWCP accepted appellant’s claim for sprain of unspecified sites of the right knee; sprain
of the hip, right iliofemoral; right ankle sprain; and sprain of the lumbar region of the back. It
paid compensation and medical benefits, but terminated these benefits effective January 11, 2013
for the reason that appellant no longer had any residuals related to the accepted January 5, 2012
employment injury.
On April 13, 2015 appellant filed a claim for a schedule award. OWCP procedures and
Board precedent provide that termination of a claim for all benefits due to a finding of no
residuals of the accepted condition does not bar a subsequent schedule award. Rather the claims
examiner should consider the schedule award matter separately from the termination of benefits.9
This is because a claimant may have an employment-related condition that results in a permanent
impairment under the A.M.A., Guides without any disability for work or the need for continuing
medical treatment.10 If a claimant applies for a schedule award after termination and submits
sufficient medical evidence reflecting a permanent impairment as a result of the work-related
injury exposure, the claims examiner should develop the claim further, even if a finding of no
residuals has previously been made.11
To support a schedule award, the file must contain competent medical evidence that
shows that the impairment has reached maximum medical improvement and the date this
occurred, describes the impairment in sufficient detail for the claims examiner to visualize the
character and degree of disability, and gives a percentage of impairment based on a specific
diagnosis.12 If a claimant requests a schedule award, but has not submitted such evidence, the
claimant should be requested to submit it.13 If the claimant does not provide an impairment
6

G.E., Docket No. 09-1412 (issued February 17, 2010).

7

Tammy L. Meehan, 53 ECAB 130 (2001).

8

C.A., Docket No. 13-762 (issued April 1, 2014).

9

See B.K., 59 ECAB 228 (2007); Federal (FECA) Procedure Manual Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.11 (February 2013).
10

B.K., id.

11

Supra note 9 at Chapter 2.808.11(a) (February 2013).

12

Id. at Chapter 2.808.5(b).

13

Id. at Chapter 2.808.6(a).

3

evaluation form his physician when requested, and there is no indication of permanent
impairment in the medical evidence of file, the claims examiner may proceed with a formal
denial of the award. If in doubt, the claims examiner should obtain an opinion from an OWCP
medical adviser prior to such a denial.14
The only evidence appellant submitted in support of his schedule award claim was a note
wherein Dr. Rapuri found that appellant had reached maximum medical improvement. This
evidence does not address any impairment or give any information to visualize the character and
degree of disability. Accordingly, appellant has not established a schedule award. Thus, has not
met his burden of proof.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish permanent
impairment of his right lower extremity entitling him to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 24, 2015 is affirmed.
Issued: May 11, 2016
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
14

Id. at Chapter 2.808.6(c).

4


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

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 06-1408 &
06-2061
Issued: March 1, 2007

Case Submitted on the Record

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

JURISDICTION
On February 17, 2006 appellant filed a timely appeal from the January 20, 2006 merit
decision of the Office of Workers’ Compensation Programs, which denied modification of wageearning capacity.1 On September 8, 2006 he filed a timely appeal from the Office’s June 27,
2006 merit decision, which denied a recurrence of disability.2 Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction to review the merits of the Office’s January 20 and June 27,
2006 decisions.
ISSUES
The issues are: (1) whether the Office properly determined appellant’s loss of wageearning capacity based on his actual wages in 2001; if so, (2) whether he met his burden of proof
to show a modification of the October 27, 2004 loss of wage-earning capacity determination; and

1

The Board docketed the appeal as Docket No. 06-1408.

2

The Board docketed this appeal as Docket No. 06-2061.

(3) whether the Office properly issued its June 27, 2006 decision denying appellant’s claim of
recurrence beginning August 1, 2003.
FACTUAL HISTORY
On the prior appeal,3 the Board found that the case was not in posture for decision on
whether specific periods of disability were causally related to appellant’s March 13, 1996
employment injury. The Office had accepted that appellant, a 37-year-old letter carrier,
sustained depression and aggravation of heart disease in the performance of duty when someone
left a photograph of male genitalia on his workstation. The Board remanded the case for further
development. The facts of this case as set forth in the Board’s prior decision are hereby
incorporated by reference.
On November 4, 2002 the Office calculated appellant’s wage-earning capacity for 1999,
2000 and 2001 based on his actual earnings in those years. On April 15, 2003 the Office notified
appellant that it was reducing his monetary compensation based on the $30,876.41 he earned as a
counter helper at Bagel Boss Hicksville, Inc. in 2001.
Appellant stopped work on August 1, 2003 to undergo open heart surgery.
On October 27, 2004 the Office issued a formal decision adjusting appellant’s monetary
compensation to reflect his capacity to earn actual wages of $30,876.41 as a counter helper at
Bagel Boss beginning in 2001.
A January 14, 2005 report from Dr. Patrick J. Monteleone, an attending cardiologist,
supported that symptomatology precluded appellant from working after the August 1, 2003
surgery:
“[Appellant’s] level of symptomatology would keep him from functioning as a
letter carrier. He will need to avoid extremes of temperature and prolonged
standing but should be able to work at least on a part time basis in a seated
capacity indoors. At this time it is undetermined whether [appellant] will be able
to make a full enough recovery to allow him to ultimately return to work as a
letter carrier at a later date.”
On October 19, 2005 appellant requested reconsideration of the Office’s October 27,
2004 wage-earning capacity decision, which he argued overstated his wage-earning capacity. He
also filed a claim that he sustained a recurrence of total disability beginning August 1, 2003.
Appellant argued that he was entitled to a reinstatement of compensation because he stopped
work due to a change in the nature and extent of his injury-related condition.
In a decision dated January 20, 2006, the Office denied modification of its October 27,
2004 wage-earning capacity decision. The Office found that appellant submitted no evidence to

3

Docket No. 00-417 (issued August 10, 2001).

2

establish that the October 27, 2004 decision was incorrect concerning his ability to work dating
back to 2001. Appellant filed an appeal to the Board on February 17, 2006.4
In a decision dated June 27, 2006, the Office denied appellant’s claim of recurrence. The
Office found that the record contained absolutely no medical evidence to establish how the
cardiac surgery on August 1, 2003 was in any way related to the 1996 incident in which a
photograph of male genitalia was left at appellant’s workstation.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act provides that the United
States “shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of his duty.”5
Section 8106(a) provides in pertinent part as follows:
“If the disability is partial, the United States shall pay the employee during the
disability monthly monetary compensation equal to 662/3 percent of the difference
between his monthly pay and his monthly wage-earning capacity after the
beginning of the partial disability, which is known as his basic compensation for
partial disability.”6
In determining compensation for partial disability, the wage-earning capacity of an
employee is determined by the employee’s actual earnings if the employee’s actual earnings
fairly and reasonably represent his or her wage-earning capacity.”7 Generally, wages actually
earned are the best measure of a wage-earning capacity and in the absence of evidence showing
that they do not fairly and reasonably represent the injured employee’s wage-earning capacity
must be accepted as such measure.8
ANALYSIS -- ISSUE 1
The record establishes that in 2001 appellant worked as a counter helper at Bagel Boss
Hicksville, Inc. A Form W-2 from 2001 establishes that he earned $30,876.41 in that
employment.9 This evidence, together with the pay history provided by Bagel Boss,
4

Because appellant requested reconsideration of the October 27, 2004 wage-earning capacity decision and
because he also argued a material change in the nature and extent of his injury-related condition, the Office’s
January 20, 2006 decision both affirmed the October 27, 2004 determination and denied appellant’s request for
modification. The Board will address these two issues separately.
5

5 U.S.C. § 8102(a).

6

Id. at § 8106(a).

7

Id. at § 8115(a).

8

Don J. Mazurek, 46 ECAB 447 (1995).

9

The Office’s October 27, 2004 decision misidentified this as appellant’s weekly wage. The decision also noted
that he worked 20 hours a week, while Bagel Boss provided a pay history showing his working 40-hour weeks.

3

demonstrates appellant’s capacity to earn these wages over a substantial period of time. There is
no evidence that the position was make-shift, temporary, seasonal or otherwise inappropriate for
a wage-earning capacity determination.10 The Board has long recognized that actual earnings are
generally the best measure of wage-earning capacity, as they more reasonably reflect the
claimant’s employment capacity in the open labor market and more reliably gauge that capacity
than such secondary methods as an opinion from a vocational rehabilitation adviser.11 The
Board will, therefore, affirm the January 20, 2006 decision with respect to the determination of
wage-earning capacity.
Appellant argues that he earned less than $30,876.41, but this in itself does not mean that
he did not retain the capacity to earn the wages he received in 2001. Compensation for loss of
wage-earning capacity is based upon loss of one’s capacity to earn, not on wages actually lost.12
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. The burden of proof is on the party
attempting to show modification of the award.13
ANALYSIS -- ISSUE 2
Appellant contends that there was a material change in the nature and extent of his injuryrelated condition. He stopped work to undergo cardiac surgery on August 1, 2003 but he
submitted no medical evidence addressing whether the condition for which he underwent surgery
was injury related, that is, whether it was in any way related to the incident that occurred at work
on March 13, 1996, when someone left a lewd photograph on his case. Dr. Monteleone
submitted a number of follow-up reports, but none of them attempted to connect the 2003
surgery to the 1996 employment incident. On January 14, 2005 the cardiologist reported that
symptomatology following the 2003 surgery precluded appellant from working, but again, he did
not relate the surgery to the 1996 incident. He did not explain how disabling post-surgery
symptomatology represented a material change in appellant’s injury-related condition. Because
the medical evidence does not support appellant’s argument that there was a material change in
the nature and extent of his injury-related condition, the Board will affirm the Office’s
January 20, 2006 decision to deny modification of the October 27, 2004 determination.

10

Linda Thompson, 51 ECAB 694 (2000).

11

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

12

Ronald M. Yokota, 33 ECAB 1629 (1982).

13

Daniel J. Boesen, 38 ECAB 556 (1987).

4

LEGAL PRECEDENT -- ISSUE 3
If a formal decision on loss of wage-earning capacity is issued, the rating should be left in
place unless the claimant requests resumption of compensation for total wage loss, in which
instance the Office will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity determination.14
When appellate procedure is invoked by an appeal, the decision appealed from should not
be changed before the appellate body has had a chance to render its decision. This is an
elementary proposition long recognized. Any other course would nullify the purpose of an
appellate function and create constant confusion in the cases. Any action which disturbs the
status of the case as appealed from must necessarily be regarded as a nullity; otherwise, orderly
appeal process would break down.15
ANALYSIS -- ISSUE 3
With a formal loss of wage-earning capacity determination in place, the proper standard of
review was not whether appellant sustained a recurrence of disability on August 1, 2003, but
whether the Office should modify its October 27, 2004 decision according to the customary
criteria for modifying a formal loss of wage-earning capacity determination. As the Office
already issued its January 20, 2006 decision denying modification, appellant’s claim of
recurrence became superfluous.
There is another reason for setting aside the Office’s June 27, 2006 decision. After the
Office denied modification on January 20, 2006, appellant filed an appeal to the Board. From
that point forward, the Board had jurisdiction over the issue of modification. The Office may not
exercise concurrent jurisdiction over the same issue on appeal. Because appellant’s claim of
recurrence effectively raised the issue of modification, the Office had no jurisdiction to issue a
decision that might affect the issue before the Board. The Office’s June 27, 2006 decision is
therefore null and void.16
CONCLUSION
The Board finds that the Office properly determined appellant’s loss of wage-earning
capacity based on his actual wages in 2001. The Board finds that appellant has not met his
burden of proof to show a modification of the October 27, 2004 loss of wage-earning capacity
determination. The Board also finds that the Office improperly issued its June 27, 2006 decision
denying appellant’s claim of recurrence.
14

Sharon C. Clement, 55 ECAB 552 (2004); Katherine T. Kreger, 55 ECAB 121 (2004); Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.9.a
(December 1995).
15

Douglas E. Billings, 41 ECAB 880 (1990), quoting George H. Thamer, 37 ECAB 88 (1948).

16

See Oren E. Beck, 33 ECAB 1551 (1982) (while appealing the Office’s finding that he had disability or permanent
impairment of the lungs due to his asbestos-related disease, the Office had no jurisdiction to issue a decision denying
review of the decision on appeal).

5

ORDER
IT IS HEREBY ORDERED THAT the January 20, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed. The Office’s June 27, 2006 decision is set aside.
Issued: March 1, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF THE ARMY, HUMAN
RESOURCES COMMAND, St. Louis, MO,
Employer
__________________________________________

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

Docket No. 11-248
Issued: September 6, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 8, 2010 appellant filed a timely appeal from a September 24, 2010
schedule award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant
to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant has established that she has more than a six percent
impairment of the right upper extremity and a five percent impairment of the left upper extremity
for which she received a schedule award.
On appeal, appellant asserts that OWCP’s medical adviser erred in calculating the degree
of impairment, and that the opinion of her physician should be given greater weight.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 22, 2008 appellant, then a 50-year-old information technology specialist, filed
an occupational disease claim alleging that she sustained employment-related bilateral carpal
tunnel syndrome. A March 7, 2008 electromyographic (EMG) study demonstrated mild carpal
tunnel syndrome bilaterally, worse on the left. OWCP accepted the claimed condition on
July 21, 2008. Appellant underwent left surgical release on April 21, 2009, and release on the
right on June 3, 2009.
On May 19, 2010 appellant filed a schedule award claim and submitted a May 11, 2010
report in which Dr. John W. Ellis, a Board-certified family physician, reported the history of
injury, noted his review of medical records, and provided physical examination findings.
Dr. Ellis diagnosed bilateral carpal tunnel syndrome with median nerve impairment and advised
that she reached maximum medical improvement on July 20, 2009. He attached a number of
worksheets in which he rated appellant’s impairment. Dr. Ellis indicated that she had a
QuickDASH score of 66 for each upper extremity, and that in accordance with the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(hereinafter A.M.A., Guides),2 she had a nine percent impairment of each upper extremity.
In a September 5, 2010 report, Dr. Daniel D. Zimmerman, OWCP’s medical adviser who
is Board-certified in internal medicine, noted his review of Dr. Ellis’ report, who advised that
maximum medical improvement was reached on May 11, 2010, the date of the report. OWCP’s
medical adviser stated that Dr. Ellis did not correctly determine the impairment rating, and
advised that, in accordance with Table 15-23 of the sixth edition of the A.M.A., Guides,
appellant had a six percent impairment of the right upper extremity. He further noted that
appellant had previously received a schedule award for a 14 percent impairment of the left
shoulder which must be combined with the 6 percent to which she was entitled for left wrist
impairment, and this yielded a 19 percent left upper extremity impairment.3 OWCP’s medical
adviser then subtracted the 14 percent previously received, finding that appellant was entitled to
an additional 5 percent impairment of the left upper extremity.
By decision dated September 24, 2010, appellant was granted a schedule award for a six
percent impairment of the right upper extremity and five percent impairment on the left. The
award was for 34.32 weeks, to run from May 11, 2010 to January 6, 2011.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 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,
2

A.M.A., Guides (6th ed. 2008).

3

On June 7, 2007 appellant was granted a schedule award for a 14 percent impairment of the left arm (shoulder).

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

2

FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition will be used.8
Section 15.4 of the sixth edition of the A.M.A., Guides describes the methods used for
evaluation of upper extremity nerve impairments.9 Impairment due to carpal tunnel syndrome is
evaluated under the scheme found in Table 15-23 (Entrapment/Compression Neuropathy
Impairment) and accompanying relevant text.10 In Table 15-23, grade modifiers levels (ranging
from 0 to 4) are described for the categories of test findings, history and physical findings. The
grade modifier levels are averaged to arrive at the appropriate overall grade modifier level and to
identify a default rating value. The default rating value may be modified up or down by one
percent based on functional scale, an assessment of impact on daily living activities.11
Section 8123(a) of FECA provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.12 OWCP procedures provide
that, after obtaining all necessary medical evidence, the file should be routed to OWCP medical
adviser for an opinion concerning the nature and percentage of impairment in accordance with
the A.M.A., Guides, with OWCP’s medical adviser providing rationale for the percentage of
impairment specified.13
ANALYSIS
The Board finds that this case is not in posture for decision as a conflict in medical
evidence has been created between the opinions of Dr. Ellis, appellant’s physician, and
Dr. Zimmerman, OWCP’s medical adviser, regarding the degree of impairment of appellant’s
upper extremities. The claim was accepted for bilateral carpal tunnel syndrome and, as noted
above, Table 15-23 of the sixth edition of the A.M.A., Guides is to be used in rating
entrapment/compression neuropathy impairment.14 Appellant provided a comprehensive report
6

20 C.F.R. § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

A.M.A., Guides, supra note 2 at 419-450.

10

Id. at 449.

11

Id. at 448-50.

12

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
14

Supra note 10.

3

from Dr. Ellis, who reported her complaints of pain in both wrists and fingers with numbness in
the thumb, index and middle fingers. Physical examination findings included diminished grip
strength and diminished wrist range of motion. Dr. Ellis’ report included a number of
worksheets in which he analyzed appellant’s upper extremity impairment. He provided analysis
under 15-32 for wrist range of motion and under Table 15-23 for entrapment neuropathy, finding
a nine percent impairment of each arm under both methods. Regarding Dr. Ellis’ determination
in accordance with Table 15-23, the preferred method for rating entrapment neuropathies such as
carpal tunnel syndrome, he found a grade 2 modifier for test findings, circling “a motor
conduction block” on the worksheet; a grade 3 modifier for history, circling “constant
symptoms;” and a grade 3 modifier for physical findings, circling “weakness” for each wrist. He
then properly averaged the ratings and rounded the finding to three and concluded that appellant
had a nine percent impairment of each arm.
Dr. Zimmerman, OWCP’s medical adviser, did not agree with Dr. Ellis’ conclusion. He
indicated that, in regards to test findings, the March 7, 2008 EMG demonstrated mild findings
for a grade 1 modifier. OWCP’s medical adviser agreed with Dr. Ellis’ conclusion that appellant
had a grade 3 modifier for history but found that a grade modifier of 2 for physical findings was
more appropriate, stating that Dr. Ellis did not report atrophy, and appellant’s grip strength
testing “was better than would be expected in an individual whose job description is sedentary.”
OWCP’s medical adviser then averaged the three modifiers, finding a modifier of two, and
concluded that appellant had a five percent impairment of each upper extremity, in accordance
with Table 15-23. He increased the impairment to a bilateral six percent impairment, based on
appellant’s QuickDASH scores.
As previously noted, if there is disagreement between OWCP physician and the
employee’s physician, OWCP will appoint a third physician who shall make an examination.15
For a conflict to arise, the opposing physician’s viewpoints must be of virtually equal weight and
rationale.16 The Board finds the opinions of Dr. Ellis and Dr. Zimmerman to be of equal weight
and thus a conflict in medical opinion evidence has been created regarding the extent of
appellant’s upper extremity impairments. The Board will set aside the September 24, 2010
schedule award decision and remand the case for OWCP to refer appellant to an impartial
medical specialist to resolve the conflict. After such further development as it deems necessary,
OWCP shall issue a decision regarding the extent of permanent impairment to appellant’s upper
extremities.17
CONCLUSION
The Board finds that this case is not in posture for decision as a conflict in medical
evidence has been created regarding the extent of impairment of appellant’s right and left arms.
15

Supra note 12.

16

Darlene R. Kennedy, 57 ECAB 414 (2006).

17

The Board notes that appellant submitted additional evidence with her appeal to the Board. The Board cannot
consider this evidence as its review of the case is limited to the evidence that was before OWCP at the time it issued
its final decision. 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2010 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded to OWCP for proceedings
consistent with this decision of the Board.
Issued: September 6, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Burbank, CA, Employer
__________________________________________

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

Docket No. 11-784
Issued: April 3, 2012

Case Submitted on the Record

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

JURISDICTION
On February 8, 2011 appellant, through her attorney, filed a timely appeal from a
January 11, 2011 merit decision by the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s
compensation and medical benefits.
On appeal, appellant, through her attorney, contends that OWCP’s decision is contrary to
fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has been on appeal previously. On July 18, 2003 appellant, then a 49-year-old
transportation security screener, alleged that she sustained a traumatic injury to her right arm.
She later indicated that the injury had been progressive over a period of months and was caused
by excessive lifting and overexertion of her right arm and shoulder which gradually worked up to
her neck. Appellant stopped working on July 18, 2003 and did not return. On December 10,
2003 OWCP accepted her claim for right elbow lateral epicondylitis and right forearm strain. It
paid wage-loss compensation and medical benefits. OWCP terminated appellant’s benefits
effective July 8, 2008; however, in its decision dated December 14, 2009, the Board reversed the
termination of benefits. The Board found that there was a conflict between the opinions of
appellant’s treating osteopath, Dr. Mark Bernhard, and Board-certified orthopedic surgeon to
whom OWCP referred appellant for a second opinion, Dr. Bunsrie T. Sophon. The Board
determined that, due to the unresolved conflict in the medical evidence, OWCP improperly
terminated appellant’s benefits.2 The facts and the circumstances surrounding the Board’s
previous decision are incorporated herein by reference.
Upon return of the case to OWCP, on March 17, 2010 it referred appellant to
Dr. Kenneth Sabbag, a Board-certified orthopedic surgeon with a subspecialty in surgery of the
hand, to resolve the conflict between Drs. Bernard and Sophon regarding whether appellant had
residuals from her accepted employment injury. Dr. Sabbag reviewed appellant’s medical record
and work history, conducted a physical examination and listed appellant’s diagnoses as right
de Quervain’s tenosynovitis and right flexor carpi radialis (FCR) tendinitis. He stated that there
was currently no clinical signs of lateral epicondylitis and that this accepted condition had
resolved. Dr. Sabbag noted that this was the typical medical outcome for lateral epicondylitis,
noting that lateral epicondylitis was typically a self-limited disease process and was amenable to
treatment. He also noted that appellant did not report pain in her elbow but rather reported pain
in her wrist, which radiated from her wrist up to her forearm. Dr. Sabbag found that pain to be
emanating from tendinitis at her wrist. He further noted that the right wrist tendinitis at the first
dorsal compartment of the Volar Distal Radioulnar tendon was first documented about nine
months after appellant stopped working for the employing establishment. Dr. Sabbag opined
that appellant’s right wrist tendinitis nonindustrial and stated that appellant’s nonindustrial wrist
tendinitis prevented her from returning to work for the employing establishment.
On June 11, 2010 OWCP proposed terminating appellant’s compensation and medical
benefits. Appellant did not submit new evidence.
By decision dated July 19, 2010, OWCP terminated appellant’s compensation and
medical benefits.
On July 30, 2010 appellant, through her attorney, requested an oral hearing before an
OWCP hearing representative. At the hearing held on November 4, 2010, appellant testified that
she is right-handed, that it was difficult for her to pick things up and that her wrists would swell
with the weather or when she overworked them. She stated that she last worked for the
employing establishment in July 2003. Appellant stated that since 2003 she had no other injuries
2

Docket No. 09-815 (issued December 14, 2009).

2

to her right wrist nor had she done any sort of repetitive work or movement that would cause a
new or different problem with her right wrist. She stated that her right wrist had not improved
since July 2003.
In a decision dated January 11, 2011, the hearing representative affirmed the termination
of benefits based on the opinion of the impartial medical examiner, Dr. Sabbag.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or was no longer related to the employment.3
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.6
Section 8123(a) 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.7 In situations where there exist
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 upon a proper factual background, must be
given special weight.8
ANALYSIS
OWCP accepted appellant’s claim for right elbow lateral epicondylitis and right forearm
strain, and paid appropriate benefits. On the prior appeal, the Board reversed OWCP’s prior
termination of appellant’s benefits because it found that there remained an unresolved conflict
between the opinion of appellant’s treating physician, Dr. Bernhard, and the second opinion
physician, Dr. Sophon, with regard to whether appellant had any continuing residuals or
disability related to her accepted work injury.

3

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001); see also C.B., Docket No. 1623
(issued April 11, 2011).
4

Gewin C. Hawkins, 52 ECAB 242 (2001).

5

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

6

Id.

7

5 U.S.C. § 8123(a).

8

R.C., 58 ECAB 524 (2007); Pamela K. Guesford, supra note 5.

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On remand, OWCP properly referred appellant to Dr. Sabbag for an impartial medical
examination. Dr. Sabbag conducted a thorough physical examination and reviewed appellant’s
history. He then concluded that there was no current clinical sign of appellant’s accepted
bilateral epicondylitis and that this condition had resolved. Dr. Sabbag noted that appellant no
longer had pain in her elbow. Although he noted that appellant has considerable issues with
right wrist tendinitis at the first dorsal compartment of the FCR tendon, he stated that the
condition was nonindustrial, noting that this condition was first documented nine months after
appellant ceased to work for the employing establishment. Dr. Sabbag concluded that it was the
nonemployment-related tendinitis of the wrist which precluded appellant from working. Because
he resolved the existing conflict in medical opinion evidence, the Board finds that OWCP
properly gave special weight to the well-rationalized opinion of Dr. Sabbag, the impartial
medical examiner, and terminated appellant’s compensation for wage-loss and medical benefits.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s
compensation and medical benefits.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 11, 2011 is affirmed.
Issued: April 3, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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