United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, HATO REY
STATION, San Juan, PR, Employer
__________________________________________

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Appearances:
Richard Schell-Asad, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0243
Issued: April 26, 2016

Case Submitted on the Record

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

JURISDICTION
On November 12, 2014 appellant, through counsel, filed a timely appeal from a
September 23, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly issued a decision terminating appellant’s
wage-loss compensation benefits, effective September 23, 2014 as he had no further
employment-related disability; and (2) whether OWCP properly terminated his authorization for
medical benefits.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On July 23, 2009 appellant, then a 44year-old customer service supervisor, filed an occupational disease claim (Form CA-2) for a
severe anxiety disorder which he attributed to his federal employment. He stopped work on
July 8, 2009.
On November 17, 2009 appellant filed a claim for compensation (Form CA-7) beginning
October 24, 2009. OWCP denied the emotional condition claim by decision dated July 20, 2010.
The decision was appealed to the Board and by decision dated July 20, 2011 the Board set aside
the July 20, 2010 OWCP decision. The Board found that appellant had not established as
compensable work factors that he worked an irregular schedule with long hours or experienced
harassment or discrimination. It further determined that appellant had not shown that the
employing establishment erroneously reassigned him, issued disciplinary action, or failed to
provide reasonable accommodation. The Board found, however, that appellant had established
as compensable work factors that he was present at the scene of an accident where a customer
died in the parking lot of appellant’s work location on July 14, 2008 and that his supervisor had
instructed him to direct traffic in that parking lot following the death of the customer. The Board
remanded the case for OWCP to evaluate the medical evidence and determine whether appellant
sustained an emotional condition as a result of the compensable employment factors. The facts
and circumstances as set forth in the Board’s prior decision are incorporated herein by reference.
OWCP then prepared an updated statement of accepted facts (SOAF), which included the
newly accepted employment factors, and forwarded it to appellant with a request to have his
treating physician prepare a medical report on causal relationship. Counsel for appellant
subsequently submitted a report dated June 25, 2012, Dr. Fernando J. Cabrera, Jr., a Boardcertified psychiatrist. Dr. Cabrera related that on July 14, 2008 appellant sustained trauma after
“a customer was killed by another customer with his vehicle.” He noted that the incident
reminded him of his son’s death in August 2007.2 Dr. Cabrera diagnosed panic disorder
aggravated by the events of July 17, 2008. He indicated that appellant stopped work in
July 2009 because of ongoing problems and remained disabled from employment. Dr. Cabrera
attributed the aggravation of his condition to problems with coworkers, his son’s death, and the
customer’s death at the employing establishment. He diagnosed post-traumatic stress disorder
(PTSD), recurrent major depression and recurrent panic disorder, all of which were in partial
remission. Dr. Cabrera found that the death of the customer on July 14, 2008 resulted in
appellant’s PTSD and that he was totally disabled. He opined that he required “psychiatric
treatment indefinitely.”
On September 7, 2012 OWCP referred appellant to Dr. Jose Rios-Robles, a Boardcertified psychiatrist and internist, for a second opinion examination. In a report dated
September 25, 2012, Dr. Rios-Robles discussed appellant’s history of PTSD and trauma when
his son was killed and when he saw a person killed at work. He diagnosed PTSD in remission.
Dr. Rios-Robles determined that it did “not appear that [appellant] was suffering from disabling
2

In a report dated June 18, 2012, Dr. Miguel Angel Rivera-Cuadrado, an attending psychologist, noted that
appellant’s supervisor told him “to deal with the accident in the surroundings of the [building] even though he had
recently lost a son. He diagnosed major depression.

2

residuals of the accepted condition. Even though he has a history of PTSD, from my evaluation
it appears that it is well controlled under Dr. Cabrera’s care.” Dr. Rios-Robles opined that
appellant “may benefit from continued treatment for the alleged employment-related condition”
but determined that he had no current disability from a psychological standpoint. He concluded
that his witnessing of a customer being killed caused a temporary aggravation of PTSD but that
with treatment his condition “appears to be ameliorating….”
On November 14, 2012 OWCP accepted a temporary aggravation of PTSD that had
resolved no later than September 25, 2012. Appellant was advised that if he had any wage loss
due to the accepted condition, he should file a claim for disability compensation (Form CA-7).
In a decision dated November 16, 2012, it terminated appellant’s eligibility for wage-loss
compensation, effective that date, finding that Dr. Rios-Robles’ opinion constituted the weight of
the evidence and established no further disability due to his accepted work injury.
On November 16, 2012 OWCP requested pay rate information from the employing
establishment to process claims for wage-loss compensation (Forms CA-7) for the period
October 24 to December 11, 2009. On November 20, 2012 appellant elected to receive FECA
benefits rather than his Social Security Administration disability benefits.3
On December 4, 2012 appellant requested an oral hearing before an OWCP hearing
representative regarding the November 16, 2012 termination decision. Counsel argued that
OWCP had failed to consider the reports of his attending physicians when terminating
appellant’s eligibility for wage-loss benefits.
On January 22, 2013 appellant filed a claim for compensation (Form CA-7) for the period
December 16 to 31, 2012. In a January 25, 2013 response, OWCP advised him that as it had
terminated his wage-loss compensation, effective November 16, 2012, and as appellant was not
currently receiving compensation from OWCP, it would not take any action on his claim for
compensation. By letter dated February 4, 2013, appellant contended that as OWCP had
accepted his claim for temporary aggravation of PTSD, he should have been eligible to receive
disability compensation from July 7, 2009 (the date he stopped working) through November 16,
2012 (the date of the termination).
By decision dated March 5, 2013, an OWCP hearing representative vacated the
November 16, 2012 termination decision, finding that a conflict existed between Dr. Cabrera and
Dr. Rios-Robles regarding whether appellant had continued employment-related PTSD and
disability. The hearing representative instructed OWCP to obtain a referee opinion regarding
whether he had ongoing residuals of the accepted temporary aggravation of PTSD, his current
work status, whether he had depression or panic disorder due to the accepted work factor, and, if
so, whether it continued.

3

The Social Security Administration had awarded appellant benefits for disability beginning January 2010.

3

On November 19, 2013 OWCP referred appellant to Dr. Rafael Perez-Espejo, a Boardcertified psychiatrist, for an impartial medical examination.4 In a report dated December 13,
2013, Dr. Perez-Espejo found that appellant “continues to report symptoms that seemingly
started after the death of his son and were exacerbated by the incident in the [employing
establishment] and his allegations of harassment and discrimination, as well as working long
hours and an irregular schedule.” He noted that appellant related severe anxiety on the airplane
ride to the appointment. Dr. Perez-Espejo found that appellant’s symptoms were consistent with
major depression and PTSD and that there was “also a significant component of character
pathology,” specifically borderline and histrionic traits. He stated, “It is clear during the
interview [appellant’s] intense desire to present as an extremely ill individual, exaggerating
symptoms to the point of lacking credibility, having to take an extra dose of sedatives before
seeing me, alleging to have soiled himself during the airplane ride, [and] his pitiful
appearance….” Dr. Perez-Espejo related, “I have no doubt of his suffering after losing his son
and the possible aggravation of symptoms following the accidental death of the customer in the
parking lot. However, after so many years of treatment, including psychotherapy and medication
management, his presentation, in my opinion, is artificially exaggerated for the obvious
secondary gain.”
Regarding whether appellant’s temporary aggravation of PTSD ceased, Dr. Perez-Espejo
stated:
“In my opinion [appellant] does not currently show any symptoms of PTSD,
admitting that if he takes his medication he does not suffer nightmares or
flashbacks. I have to add that his presentation is muddled by his symptom
embellishing, which reduces his credibility further. Therefore, it is my opinion
that his temporary aggravation of PTSD has resolved.” (Emphasis in the
original.)
Dr. Perez-Espejo opined that appellant did not sustain depression and anxiety due to the
compensable work factors but instead due to the death of his son and alleged harassment and
discrimination at work. He found that appellant did not have panic disorder. Dr. Perez-Espejo
opined that he was not capable of performing his usual employment. He stated, “In view of how
heavily medicated he is and his alleged need to continue these medications -- or else his
symptoms rapidly resurface -- he would be unable to perform those duties.”
On July 31, 2014 OWCP notified appellant that it proposed termination of his
compensation and authorization for medical treatment.
In a report dated August 13, 2014, Dr. Cabrera discussed his treatment of appellant
beginning in 2001 for mild anxiety. He disagreed with Dr. Perez-Espejo’s finding that he had
borderline and histrionic personality traits. Dr. Cabrera also disagreed with Dr. Perez-Espejo’s
finding that appellant sustained only a temporary aggravation of PTSD, noting that it had lasted
4

From March to August 2013 OWCP attempted to locate a physician to perform a referee examination in
appellant’s geographical area. On August 28, 2013 it advised his counsel that it could not find a local physician to
perform the evaluation and indicated that it might have to refer him to a physician in Florida. On November 21,
2013 appellant noted that he did not object to an examination in Florida if his expenses were paid.

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more than two years since July 14, 2008. He noted that Dr. Perez-Espejo determined that
appellant did not have nightmares due to PTSD because he was taking medication and also found
that he could not perform his usual employment because of medication usage. Dr. Cabrera
diagnosed chronic PTSD, chronic major depression, and panic disorder, all in partial remission.
He opined that appellant was disabled from employment beginning July 2009 due to the July 14,
2008 work incident and stated, “I cannot understand Dr. Perez when he stated that [appellant] is
overly medicated and in no condition to work, but at the same time he stated that [appellant] is
under remission of symptoms.”
In a statement dated August 22, 2014, appellant’s counsel contended that Dr. PerezEspejo concluded without explanation that his symptoms were due to secondary gain. He further
alleged that the physician’s report was contradictory as he found the PTSD was in remission but
that appellant had nightmares without medication. Counsel also noted that Dr. Perez-Espejo
opined that appellant was unable to work due to his medication use.
By decision dated September 23, 2014, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date. It determined that Dr. Perez-Espejo’s
opinion constituted the weight of the evidence and established that he had no further residuals of
his accepted employment injury.
On appeal appellant describes the events of July 14, 2008 and the employing
establishment’s denial of his request for reasonable accommodation. He stopped work on
July 23, 2009. Appellant asserts that the opinion of Dr. Perez-Espejo is contradictory and
contrary to established diagnostic criteria.
LEGAL PRECEDENT -- ISSUE 1
The term disability as used in FECA5 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.6 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not properly adjudicate the issue presented. By decision
dated November 14, 2012, OWCP accepted appellant’s July 23, 2009 occupational disease claim
for a temporary aggravation of PTSD. Appellant stopped work on July 8, 2009 and did not
return. On November 17, 2009 he filed a claim for compensation for the period October 24 to
November 16, 2009. Appellant also filed claims for compensation for the period November 8
to 27, 2009. On February 4, 2013 he questioned why he had not received compensation from
July 7, 2009 through November 16, 2012.
5

5 U.S.C. § 8101 et seq.; 20 C.F.R. § 10.5(f).

6

Paul E. Thams, 56 ECAB 503 (2005).

7

Id.

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OWCP terminated appellant’s compensation effective September 23, 2014 after finding
that the opinion of Dr. Perez-Espejo, the impartial medical examiner, established that he had no
further disability after that date due to his accepted employment injury. As it was not paying him
wage-loss compensation, however, it improperly characterized the issue as a termination of
wage-loss compensation and medical benefits.8 The issue was whether appellant met his burden
of proof to establish wage-loss compensation beginning October 24, 2009 due to his accepted
employment injury. OWCP regulations provide that compensation for wage loss due to
disability is available for any period during which an employee’s work-related medical condition
prevented him or her from earning the wages earned before the work-related injury.9 It must
evaluate the evidence and determine whether appellant has met his burden of proof to show that
he was unable to work during the claimed period. OWCP relied upon the opinion of Dr. PerezEspejo to find that appellant’s eligibility for wage-loss compensation was terminated after
September 23, 2014. In his December 13, 2013 report, however, Dr. Perez-Espejo did not
provide an opinion regarding whether appellant had sustained any periods of disability from
work due to his accepted employment injury. Instead, he found no current symptoms of PTSD,
though he further noted that this was based in part on appellant’s indication that had no
symptoms as long as he took his medication. Dr. Perez-Espejo did not address whether appellant
was disabled at any time beginning October 24, 2009. As OWCP failed to issue an appropriate
decision adjudicating appellant’s claim for compensation beginning October 24, 2009, the case
will be remanded for this purpose.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.10 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.11
ANALYSIS -- ISSUE 2
OWCP determined that a conflict existed between Dr. Cabrera, appellant’s attending
physician, and Dr. Rio-Robles, an OWCP referral physician, regarding whether he had continued
residuals of his temporary aggravation of PTSD requiring further medical treatment. It referred
him to Dr. Perez-Espejo to resolve the conflict and, based on his opinion as the impartial medical
examiner, terminated appellant’s entitlement to medical benefits effective September 23, 2014.
The Board finds, however, that the record did not contain a conflict in medical opinion at the
time of OWCP’s referral of appellant to Dr. Perez-Espejo. Dr. Cabrera diagnosed PTSD due to
the compensable work factor and found that appellant required additional psychiatrist treatment.
In a report dated September 25, 2012, Dr. Rios-Robles diagnosed PTSD “well controlled under
8

G.U., Docket No. 12-1725 (issued March 14, 2013); see also L.E., Docket No. 09-1855 (issued July 2, 2010).

9

See 20 C.F.R. §§ 10.401(a), 10.403; Judith A. Cardiddo, 55 ECAB 348 (2004).

10

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

11

Id.

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Dr. Cabrera’s care” and found that appellant was not disabled from a psychological standpoint.
He opined that appellant might benefit from continued medical treatment. As neither physician
determined that he no longer required treatment for his accepted work injury, there was no
conflict on the issue at the time OWCP referred him to Dr. Perez-Espejo.12 Consequently,
Dr. Perez-Espejo is an OWCP referral physician rather than an impartial medical examiner.13
The Board finds that the opinion of Dr. Perez-Espejo is insufficient to establish that
appellant has no further need for medical treatment due to his accepted temporary aggravation of
PTSD. In a report dated December 13, 2013, Dr. Perez-Espejo indicated that his symptoms were
consistent with PTSD and major depression and that he also had borderline and histrionic traits.
He found that appellant exaggerated his symptoms for secondary gain. In answer to the question
of whether appellant’s temporary aggravation of PTSD had ended, Dr. Perez-Espejo opined that
he had no further employment-related aggravation of PTSD as he related that he did not have
nightmares or flashbacks when he took his medication and as his presentation showed symptom
magnification. It is unclear from Dr. Perez-Espejo’s report, however, whether he found that
appellant had no further symptoms of his accepted temporary aggravation of PTSD because he
was being adequately medicated or because the condition had resolved. Further, as discussed,
the remaining evidence of record from Dr. Cabrera and Dr. Rios-Robles is insufficient to show
that he does not require further medical treatment for his accepted temporary aggravation of
PTSD. Consequently, OWCP did not meet its burden of proof to terminate appellant’s
entitlement to medical benefits.
CONCLUSION
The Board finds that OWCP improperly issued a decision terminating appellant’s wageloss compensation, effective September 23, 2014 on the grounds that he had no further
employment-related disability. The Board further finds that OWCP improperly terminated his
authorization for medical benefits.

12

A conflict in medical opinion exists when there are opposing reports of virtually equal weight and rationale
between a physician making the examination for the United States and a physician of the employee. See 5 U.S.C.
§ 8123; Darlene R. Kennedy, 57 ECAB 414 (2006).
13

See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (standing for the proposition that if there is no conflict
with respect to the specific issue considered, the physician is considered a second opinion physician and the report is
considered for its probative value).

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ORDER
IT IS HEREBY ORDERED THAT the September 23, 2014 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this opinion of the Board.14
Issued: April 26, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

14

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF AGRICULTURE, RURAL
DEVELOPMENT ADMINISTRATION,
Johnstown, NY, Employer
__________________________________________

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Appearances:
Judy J. Lane, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-381
Issued: September 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 23, 2009 appellant filed an appeal of an October 21, 2009 merit decision
of the Office of Workers’ Compensation Programs denying her claim for compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty on February 18, 2009.
FACTUAL HISTORY
On February 18, 2009 appellant, then a 28-year-old area technician, filed a traumatic
injury claim alleging that on that day she had a low speed motor vehicle accident and was
transported to a local emergency room. She indicated that she was not injured. Appellant

submitted the motor vehicle accident report, which indicated she slowly slid across lanes, off the
road and into a ditch due to inclement weather. No other motor vehicles were involved.
By letter dated March 3, 2009, the Office advised appellant of the factual and medical
evidence necessary to establish her claim and allowed her 30 days to submit additional evidence.
A February 18, 2009 emergency room report noted appellant arrived by ambulance and
had no complaints from a low speed motor vehicle accident. Appellant was released with no
diagnosis of an injury provided.
By decision dated April 8, 2009, the Office denied the claim, finding that the medical
evidence did not establish that appellant sustained an injury due to the February 18, 2009
incident.
On May 7, 2009 appellant requested a telephonic hearing before an Office hearing
representative, which was held on August 10, 2009. She testified she was not disputing the
claim, as she had no injury, but that she wished to be compensated for her $298.00 emergency
room charge. Appellant went to the emergency room by ambulance from the accident scene
because that was the routine procedure, not because she was injured. She stated that, at the time
of the accident, she was doing site visits of foreclosed properties using a government vehicle,
which was part of her assigned duties. Appellant testified that the employing establishment did
not give her a (Form CA-16) claim to authorize medical treatment.
In a March 16, 2009 statement, Patricia A. Snover, area specialist, verified that at the
time of the accident appellant was in a government vehicle and in the performance of her duties.
Additional emergency room notes dated February 18, 2009 provided no diagnosis of injury.
In an undated statement, appellant advised that she had received both a (Form CA-1) and
a CA-16 form by e-mail the day of the accident, but did not get the e-mail until she returned to
work the next day. She was advised to use the CA-16 form if she planned on getting treatment.
Appellant stated that, since she had already been examined and released with no injury from the
emergency room, she did not believe there was any reason to complete the CA-16 form.
By decision dated October 21, 2009, the Office’s hearing representative affirmed the
decision. The hearing representative found that appellant had not met her burden that she was
injured as the result of the February 18, 2009 employment incident. The hearing representative
further found that there was no basis for payment of appellant’s emergency room visit on
February 18, 2009 as appellant did not complete the CA-16 form and give it to her employer to
authorize her hospital visit.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
1

5 U.S.C. § 8101 et seq.

2

was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.2 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.4 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.5
ANALYSIS
On February 18, 2009 appellant was involved in a motor vehicle accident during the
performance of duty. However, the medical evidence does not establish that the accepted
incident caused any injury. Appellant has not alleged any injury and the only medical evidence,
the emergency room reports of February 18, 2009, contain no diagnosis of any injury. As the
record lacks the necessary medical evidence to support appellant’s claim, the Board finds that
she did not meet her burden of proof to establish a traumatic injury on February 18, 2009.
Appellant has contended, before the Office and on appeal, that she filed the claim in
order for her emergency room visit to be paid. However, while she was sent a CA-16 form for
authorization of medical treatment, she did not complete it or give it to her employer. Appellant
did not complete the CA-16 form, the Office hearing representative found there was no basis for
payment of appellant’s emergency room visit on February 18, 2009. Office regulations,
however, provide that in unusual or emergency circumstances the Office may approve payment
for medical expenses incurred otherwise than as authorized in that subpart.6 Office procedures
provide that the Office may approve payment for medical expenses incurred even if a CA-16
form authorizing medical treatment and expenses has not been issued and the claim is
subsequently denied; payment in such situations must be determined on a case-by-case basis.7

2

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

3

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

4

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

5

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

6

20 C.F.R. § 10.304.

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter
3.300.3(a)(3) (October 1990). See Jill Thimmesch, 40 ECAB 572 (1989). See 20 C.F.R. § 10.304 that allows for
payment of medical expenses in emergency or unusual circumstances otherwise than as authorized in that section of
its regulations.

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Appellant was involved in a motor vehicle accident while at work on February 18, 2009.
She was transported by ambulance to a local hospital. In denying appellant’s request for
reimbursement of emergency room charges, the Office only considered whether a CA-16 form
was properly issued and completed. It did not consider whether emergency circumstances or
unusual circumstances were present or whether this was a situation in which reimbursement of
medical expenses was otherwise appropriate. The circumstances of the case warrant additional
development of this issue. The case will be remanded to the Office for further development
consistent with this decision of the Board, followed by an appropriate decision.
CONCLUSION
The Board finds that appellant did not establish that she sustained an injury in the
performance of duty on February 18, 2009. The case is returned to the Office for further
consideration of appellant’s reimbursement of medical expenses related to her emergency room
visit on February 18, 2009.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 21, 2009 is affirmed in part and set aside and remanded for further
development consistent with this decision of the Board.
Issued: September 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

m
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
__________________________________________
B.T., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, METROPOLITAN
DETENTION CENTER, Brooklyn, NY,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1505
Issued: April 2, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 3, 2019 appellant, through counsel, filed a timely appeal from a January 15, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

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
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective June 29, 2018, as he no longer had residuals or
disability causally related to the accepted November 16, 2014 employment injury; and (2) whether
appellant has met his burden of proof to establish continuing employment-related disability or
residuals on or after June 29, 2018.
FACTUAL HISTORY
On November 18, 2014 appellant, then a 43-year-old federal correctional officer, filed a
traumatic injury claim (Form CA-1) alleging that he sustained right elbow, left knee, right
shoulder, back, and neck injuries, as well as an emotional condition on November 16, 2014 when
a fast moving motor vehicle crashed into the guard booth where he was sitting while in the
performance of duty. He stopped work on that date. On January 8, 2015 OWCP accepted
appellant’s claim for sprain of the neck, right bicipital tenosynovitis, and bilateral knee contusions.
On March 3, 2015 appellant underwent right shoulder arthroscopy. On August 13, 2015 he
underwent cervical discectomy, fusion, and instrumentation at C4-5 and C5-6. On June 24, 2015
OWCP expanded acceptance of appellant’s claim to include C2-3 cervical disc herniation, L5-S1
lumbar disc herniation, and cervical radiculitis. On February 18, 2016 appellant underwent
bilateral foraminotomies at L4-5 and L5-S1.
On May 30, 2017 OWCP referred appellant, a statement of accepted facts (SOAF), and a
list of questions to Dr. Stanley Askin, a Board-certified orthopedic surgeon, for a second opinion
evaluation. In his June 16, 2017 report, Dr. Askin reviewed the SOAF and performed a physical
examination. He found that appellant had no objective findings, noting that he was able to bend
greater than 90 degrees at the waist, rise from a bent over position without difficulty, and fully
bend 20 degrees to each side. Dr. Askin further indicated that appellant presented with no muscle
spasm, a negative straight leg raising, bilaterally, and intact sensation to light touch of the lower
extremities. He opined that appellant had no residuals of his accepted conditions and was capable
of performing his date-of-injury position. Dr. Askin noted that the only lingering effects from
appellant’s injuries were surgical scars and recommended no further treatment.
In a June 22, 2017 note, Dr. Rikki Racela, a Board-certified neurologist, diagnosed cervical
radiculopathy and injury of nerve root of the lumbar spine. On September 22 and December 1,
2017 he repeated his findings and diagnoses.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the January 15, 2019 decision, OWCP received additional evidence. 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.

2

On April 16, 2018 OWCP issued a notice of proposed termination of appellant’s wage-loss
compensation and medical benefits because he no longer had residuals or disability due to the
accepted November 16, 2014 employment injury. It found that the weight of the medical evidence
rested with the June 16, 2017 report of Dr. Askin. OWCP afforded appellant 30 days to respond
if he disagreed with the proposed termination.
On April 25, 2018 appellant, through counsel, submitted a statement disagreeing with the
proposed termination and asserted that Dr. Askin’s June 16, 2017 report was not entitled to the
weight of the evidence, arguing that Dr. Askin did not provide a report consistent with the SOAF
as he disagreed that the accepted conditions were employment related and did not review
appellant’s date-of-injury job description.
On May 24, 2018 Dr. Racela diagnosed cervical radiculopathy and found that appellant
could not fully raise his right shoulder overhead. He reported that appellant’s C2-3 disc herniation
remained and was not amenable to surgical correction. Dr. Racela reported that appellant had
severe breakthrough pain requiring medication.
By decision dated June 28, 2018, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective June 29, 2018.
On July 10, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a report dated June 14, 2018, Dr. Racela noted appellant’s history of injury and accepted
cervical and lumbar disc herniations which led to refractory headaches. He noted that surgery
helped decrease the muscle spasms in appellant’s neck, but that the C2-3 disc herniation was not
amenable to surgical correction. Dr. Racela reported that appellant continued to experience
residual pain in his scalp as well as low back pain which continued after surgery. He opined that
due to appellant’s injuries, his pain was chronic and permanent and that appellant’s pain would
affect his ability to perform physical work. Dr. Racela found that appellant had reached maximum
medical improvement and that he required permanent and ongoing pain medication and physical
therapy to control his pain.
On November 16, 2018 counsel appeared at the oral hearing and contended that
Dr. Racela’s report created a conflict with that of Dr. Askin.
In a report dated January 8, 2019, Dr. Racela reviewed Dr. Askin’s June 16, 2017 report
and disagreed with his findings and conclusions. He found that appellant remained disabled due
to chronic pain from his injuries. Dr. Racela opined that appellant’s C2-3 disc herniations could
explain his chronic headaches and neck pain. He further noted that the L5-S1 disc herniations
were causing tingling in appellant’s feet and toes. Dr. Racela found that Dr. Askin’s findings
supported that appellant could not return to work and that the radiological findings of disc
herniations could very well be a result of the employment injury rather than age-related.
By decision dated January 15, 2019, OWCP hearing representative found that the weight
of the medical evidence rested with Dr. Askin, who noted that there were no objective findings
supporting appellant’s continuing disability or medical residuals causally related to his
November 16, 2014 employment injuries.
3

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it bears the burden of proof to justify
modification or termination of benefits.4 It may not terminate compensation without establishing
either that the disability has ceased or that it is no longer related to the employment.5 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.7 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.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective June 29, 2018, as he no longer had residuals or
continuing disability causally related to his November 18, 2014 employment injury.
OWCP referred appellant to Dr. Askin, a Board-certified orthopedic surgeon, for a second
opinion examination to determine the status of his accepted work conditions and capacity for work.
In his report dated June 16, 2017, Dr. Askin reviewed the SOAF provided by OWCP, noted
the accepted conditions and performed a physical examination. He described the employment
injury and appellant’s continuing complaints. Dr. Askin provided findings from the physical
examination performed that day and noted that appellant had no objective findings to support
continued disability for work and no employment-related residuals. He concluded that appellant
could return to work in his date-of-injury position. Dr. Askin found that appellant’s only lingering
effects from his injuries were surgical scars and that no further treatment was needed.
The Board finds that Dr. Askin’s opinion represents the weight of the medical evidence in
this case. Dr. Askin provided a detailed medical report reviewing the medical records and
evidence of record. He unequivocally opined that appellant did not have residuals or disability
from the accepted employment-related conditions, and he provided a medical explanation

4
D.M., Docket No. 17-1052 (issued January 24, 2019); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003); Curtis Hall, 45 ECAB 316 (1994).
5

D.M., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor,
37 ECAB 541 (1986).
6

L.D., Docket No. 18-1600 (issued April 25, 2019); D.P., Docket No. 18-0038 (issued January 4, 2019); Del K.
Rykert, 40 ECAB 284, 295-96 (1988).
7

T.W., Docket No. 18-1573 (issued July 19, 2019); M.C., Docket No. 18-1374 (issued April 23, 2019); L.H., Docket
No. 17-1859 (issued May 10, 2018); Kathryn E. Demarsh, 56 ECAB 677 (2005).
8

Id.; James F. Weikel, 54 ECAB 660 (2003).

4

supported by objective findings.9 Accordingly, OWCP properly relied on Dr. Askin’s second
opinion report in terminating appellant’s wage-loss compensation and medical benefits.10
Appellant’s attending physician, Dr. Racela, in his May 24, 2018 report, opined that
appellant had residuals and disability from the accepted November 16, 2014 employment injury.
He diagnosed cervical radiculopathy and reported that appellant’s C2-3 disc herniation remained
and was not amenable to surgical correction. Dr. Racela further reported that appellant had severe
breakthrough pain. However, he did not provide objective physical findings of the accepted workrelated conditions nor did he support his findings of continued work-related residuals and disability
with medical reasoning.11 Therefore, this report is insufficient to support continuing work-related
residuals and disability.
The Board thus finds that OWCP properly terminated appellant’s wage-loss compensation
and medical benefits, effective June 29, 2018.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP meets its burden of proof to terminate appellant’s compensation benefits, the
burden shifts to the claimant to establish that he or she has continuing residuals or disability
causally related to the accepted employment injury.12 To establish causal relationship between the
disability claimed and the employment injury, the employee must submit rationalized medical
opinion evidence, based on a complete factual and medical background, establishing such causal
relationship.13 Causal relationship is a medical issue and the medical evidence required to establish
a causal relationship is rationalized medical evidence.14
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish continuing
employment-related disability or residuals on or after June 29, 2018 due to his accepted
employment injury.
Subsequent to the termination of his wage-loss compensation and medical benefits,
appellant submitted reports from Dr. Racela dated June 14, 2018 and January 8, 2019 in which he
again noted that appellant’s C2-3 disc herniation was not amenable to surgical correction.
Dr. Racela reported that appellant experienced residual pain in his scalp as well as low back pain
9

T.W., supra note 7; A.C., Docket No. 16-1670 (issued April 6, 2018).

10

See T.C., Docket No. 19-1383 (issued March 27, 2020); K.W., Docket No. 19-1224 (issued November 15, 2019);
see N.G., Docket No. 18-1340 (issued March 6, 2019); A.F., Docket No. 16-0393 (issued June 24, 2016).
11

T.W., supra note 7; A.G., Docket No. 18-0749 (issued November 7, 2018).

12

Id.; George Servetas, 43 ECAB 424, 430 (1992).

13

Supra note 10.

14
D.M., Docket No. 17-1992 (issued September 12, 2018); C.W., Docket No. 12-1211 (issued November 15, 2012);
Darlene R. Kennedy, 57 ECAB 414 (2006).

5

and tingling in his feet and toes which continued after his spine surgeries. He opined that due to
appellant’s injuries his pain was chronic and permanent and it would affect his ability to perform
physical work. Dr. Racela found that appellant required permanent and ongoing pain medication
and physical therapy to control his pain. He determined that Dr. Askin’s findings supported that
appellant could not return to work. The Board finds that Dr. Racela’s opinions are of limited
probative value because he did not provide medical rationale in support of his conclusions on
continuing work-related residuals. A medical opinion not fortified by medical rationale is of
diminished probative value.15 Because Dr. Racela failed to provide sufficient medical rationale
for his conclusion, his opinion is of diminished probative value.
The Board thus finds that appellant has not submitted sufficient medical evidence to
establish that he has continuing residuals or disability on or after June 29, 2018 causally related to
his November 16, 2014 accepted injury.16 Appellant, therefore has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective June 29, 2018, as he no longer had residuals or disability causally
related to his accepted November 16, 2014 employment injury. The Board further finds that he
has not met his burden of proof to establish continuing disability or residuals on or after June 29,
2018 causally related to his accepted employment injury.

15

T.W., supra note 7; T.L., Docket No. 18-0536 (issued November 27, 2018); W.W., Docket No. 09-1619 (issued
June 2, 2010).
16
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018); Dorothy
Sidwell, 41 ECAB 857 (1990).

6

ORDER
IT IS HEREBY ORDERED THAT the January 15, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 2, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 14-484
Issued: June 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 24, 2013 appellant, through her attorney, filed a timely appeal from a
September 13, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant established that she sustained a left knee injury causally
related to factors of her federal employment.
FACTUAL HISTORY
On December 5, 2012 appellant, then a 35-year-old part-time flexible city carrier, filed an
occupational disease claim alleging that on November 17, 2012 she first became aware of her left
1

5 U.S.C. § 8101 et seq.

knee condition and attributed it to repetitive work duties and falling on ice twice and on uneven
sidewalks two to three times.
In an undated activity/work status report, D. Nordquist, a registered nurse and certified
nurse practitioner, stated that appellant was able to work within restrictions from
December 4, 2012 until her next appointment in four weeks.
A November 21, 2012 activity/work status report contained an illegible signature. It
stated that appellant could work with restrictions through December 5, 2012.
In a November 17, 2012 report, Dr. Sameer Nevile, a Board-certified radiologist, advised
that an x-ray of the left knee was normal.
In reports dated November 17, 2012, Sonya Ommen, a physician’s assistant, obtained a
history that appellant had a stiff left knee for one week. Appellant’s knee gave out at work on
that date. Ms. Ommen noted that appellant delivered mail which involved constant walking.
She listed findings on physical and x-ray examination and diagnosed pain and a possible
meniscal tear of the left knee.
By letter dated December 28, 2012, the employing establishment controverted the claim,
contending that the medical evidence did not support an injury and was not submitted by a
physician.
By letter dated January 14, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested additional factual and medical evidence.
OWCP also requested that the employing establishment submit any medical evidence regarding
treatment appellant received at its medical facility.
In a January 5, 2008 urgent care report, a registered nurse whose signature is illegible
addressed the treatment of lacerations on appellant’s left elbow which occurred when she fell at
work on that date.
In a November 19, 2012 report, Dr. Benjamin M. Howe, a Board-certified radiologist,
stated that x-rays of the left knee were negative.
In a November 21, 2012 report, Dr. Paul M. Robelia, Board-certified in family medicine,
listed a history of appellant’s left knee pain, medical treatment and social and family
background. He provided findings on physical examination and diagnosed left knee injury, rule
out a meniscal tear. Dr. Robelia also diagnosed upper respiratory infection with resolved viral
exanthema. He renewed appellant’s physical restrictions and recommended additional
diagnostic testing. In a February 6, 2013 report, Dr. Robelia provided physical examination
findings and advised that she was status post left knee surgery with findings of chondromalacia
and intact medial and lateral meniscus and cruciates.
On November 23, 2012 Dr. Matthew A. Frick, a Board-certified radiologist, reported that
a magnetic resonance imaging (MRI) scan of the left knee revealed intrasubstance degeneration
of the posterior horn of the lateral meniscus. The examination also revealed an extension of the
abnormal signal intensity to the inferior articular surface on a single image suggesting an oblique
2

tear. Dr. Frick reported grade 2 chondromalacia patella and moderate chondromalacia involving
the lateral aspect of the medial femoral condyle adjacent to the notch with possible delamination.
A tiny popliteal cyst and benign bone island in the lateral femoral condyle and normal islands of
red marrow in the distal femur were present. Dr. Frick advised that the knee was otherwise
negative. Specifically, the anterior and posterior cruciate ligaments, medial and lateral collateral
ligaments and medial meniscus were intact and normal in appearance.
Dr. Thomas W. Miller, Board-certified in family medicine, reported
November 27, 2012 that an x-ray of the left knee revealed tiny effusion or synovitis.

on

In a November 30, 2012 report, Dr. Shawn C. Oxentenko, a Board-certified physiatrist,
obtained a history that appellant sustained four falls on the ice while delivering mail. Appellant
had suffered from popliteal knee pain over the last year. On November 17, 2012 her knee
hyperextended while walking on an even floor at work. Appellant wore a brace that seemed to
help, although she basically off-loaded the entire left leg. She rated her pain as 10 out of 10
when it was severe. Dr. Oxentenko listed findings on physical examination and diagnosed left
knee pain. He reviewed the November 23, 2012 left knee MRI scan and advised that it showed
what appeared to be a grade 3 posterior horn meniscus tear and degenerative change.
In reports dated December 4, 2012 to January 17, 2013, physical therapists addressed the
treatment of appellant’s left knee.
On January 15, 2013 Dr. Michael G. Rock, a musculoskeletal oncologist, reported that
appellant was scheduled to undergo left knee arthroscopic surgery on January 18, 2013.
In activity/work status reports dated January 17 and 24, 2013, Ms. Nordquist advised that
appellant was unable to work from January 18 through February 10, 2013. She could work with
restrictions from February 11 to 20, 2013. Appellant could work without restrictions as of
February 25, 2013.
A laboratory report dated January 29, 2013 provided blood test results.
In reports dated January 17 and 18, 2013, Dr. Rock addressed appellant’s left knee
condition and related that he performed arthroscopic surgery on January 18, 2013. In a
January 27, 2013 attending physician’s form report, he listed a history that appellant felt
discomfort in her knee in early 2012. Appellant’s pain became worse by November 2012
following a fall at work. She twisted her left knee and felt pain. Dr. Rock diagnosed diffuse
chondromalacia of the left knee. He indicated with an affirmative check mark that the diagnosed
condition was aggravated by an employment activity. Dr. Rock stated that the condition could
have resulted from a twisting injury. He advised that appellant was partially disabled from
December 4, 2012 to February 12, 2013. Appellant could resume her regular work duty on
February 11, 2013. In a February 7, 2013 report, Dr. Rock related that it was difficult to
determine why she had blistering on the articular surface and loss of surface definition of
numerous segments within the same knee joint. He stated that this could be a result of repetitive
subacute injuries over time. Appellant did not remember having any one particular injury except
the one precipitating her being seen by Dr. Rock following a twisting injury at work. She related
that she had discomfort in her left knee during the preceding year, but it was not of the

3

magnitude necessitating medical intervention or assessment. Appellant did not remember having
any previous repetitive knee injuries with the sole exclusion of her singular responsibility as a
postal worker to walk on different terrain and adjust appropriately to walking conditions.
Dr. Rock stated that her responsibility at work included walking considerable distances and
negotiating undulating terrain and uncertain conditions which could have caused micro injuries
to the articular cartilage precipitating in the blistering noted at the time of surgery. He concluded
that there was no other reason that could describe why somebody in a 35-year-old age group
would have the blistering phenomenon that was seen diffusely throughout the knee. In a
February 25, 2013 report, Dr. Rock opined that appellant would be better served by working in a
stationary job involving office activities at the employing establishment to avoid her current
responsibility which involved walking on a delivery route.
In a January 28, 2013 narrative statement, appellant related that she first experienced left
knee symptoms one year prior at work. The week before November 17, 2012 she was sick and
experienced stiffness and swelling in her left knee.
In a March 20, 2013 decision, OWCP denied appellant’s claim. It found that the medical
evidence was insufficient to establish that her left knee condition was causally related to her
work as a city carrier.
By letter dated April 19, 2013, appellant, through her attorney, requested a telephone
hearing with an OWCP hearing representative. She submitted medical evidence.
In reports dated April 2 and 4, 2013, Dr. Jennifer L. Horn, Board-certified in family
medicine, listed a history that appellant had left knee pain for one and a half years. She worked
as a mail carrier, fell on November 17, 2012 and underwent surgery on January 18, 2013.
Dr. Horn also provided a history of appellant’s medical and social background. She listed
findings on physical examination and diagnosed knee pain and functional impairment.2
In a February 7, 2013 report, Dr. Robelia stated that he saw appellant on
November 21, 2013 for a left knee injury and provided a history of her left knee treatment. He
advised that her chondromalacia or roughening/blistering of the cartilage had most likely been
present for some time, but that her occupational activities of November 17, 2012 certainly
exacerbated the condition and clearly escalated her pain based on his review of a document
entitled “duties and requirement of the letter carrier.” Dr. Robelia concluded that appellant’s
postoperative recovery pace had been normal and satisfactory.
A November 17, 2012 urgent care report from K. Meeo, a registered nurse, listed a
history that appellant had stiffness in the knee all week. Suddenly, appellant’s knee gave out and
she experienced pain behind it.
In a September 13, 2013 decision, an OWCP hearing representative affirmed the
March 20, 2013 decision. The hearing representative found that the medical evidence was

2

Reports from physical therapists addressed the treatment of appellant’s left knee pain on January 17 and
April 11 and 22, 2013.

4

insufficient to establish that appellant sustained a left knee condition causally related to the
accepted work duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that 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 medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty and must be supported by
medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.6 Neither the fact that appellant’s
condition became apparent during a period of employment nor his or her belief that, the
condition was caused by his or her employment is sufficient to establish a causal relationship.7
ANALYSIS
OWCP accepted as factual that appellant performed repetitive work duties and fell on
several occasions while working as a part-time flexible city carrier. The Board finds that she
failed to establish a causal relationship between her left knee condition and the accepted
employment factors.
Dr. Rock’s January 27, 2013 attending physician’s form report listed a history that
appellant felt discomfort in her knee in 2012. Appellant’s pain worsened when she twisted her
3

5 U.S.C. §§ 8101-8193.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id. at 351-52.

7

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

5

left knee and fell at work in November 2012. Dr. Rock indicated with an affirmative check mark
that she had diffuse chondromalacia of the left knee that was aggravated by an employment
activity. He stated that appellant’s condition could have resulted from a twisting injury.
Dr. Rock advised that she was partially disabled from December 4, 2012 to February 12, 2013.
He did not adequately explain how the accepted work duties aggravated or contributed to
appellant’s diagnosed left knee condition or caused disability. In a February 7, 2013 report,
Dr. Rock stated that it was difficult to determine why she had blistering on the articular surface
with loss of surface definition of numerous segments within the same knee joint. He advised that
this could have resulted from repetitive subacute injuries over time. Dr. Rock noted that
appellant could only recall one precipitating injury, a twisting injury at work. Appellant did not
remember any previous repetitive knee injuries. Dr. Rock also related that her work duty which
involved walking considerable distances and negotiating undulating terrain and uncertain
conditions could have caused micro injuries to the articular cartilage which precipitated
blistering. He concluded that there was no other reason why appellant who was in a 35-year-old
age group would have the blistering phenomenon that was seen diffusely throughout her knee.
Dr. Rock’s opinion that her left knee condition could have resulted from her repetitive work
duties is speculative.8 None of his reports provided an adequate explanation addressing how
appellant’s work duties caused or aggravated her diagnosed left knee conditions. Dr. Rock
addressed her left knee arthroscopic surgery and his recommendation that she perform a
stationary job. He failed to provide sufficient medical opinion addressing the causal relationship
between appellant’s left knee condition and the accepted employment factors. Medical evidence
which does not offer a rationalized opinion regarding the cause of an employee’s condition is of
limited probative value.9 The Board finds that Dr. Rock’s reports are insufficient to establish
appellant’s claim.
Dr. Robelia’s February 7, 2013 report noted that appellant’s work activities on
November 17, 2012 exacerbated her chondromalacia or roughening/blistering of the cartilage of
her left knee and clearly escalated her pain. He based his opinion on review of a description of
her letter carrier duties. While his opinion is generally supportive of causal relationship,
Dr. Robelia did not provide sufficient explanation of how appellant’s employment duties caused
or contributed to the diagnosed conditions. The Board has found that medical opinion not based
and not fortified by medical rationale is of diminished probative value.10 Dr. Robelia’s
November 21, 2012 and February 6, 2013 reports listed a history of appellant’s left knee
condition and medical treatment and findings on physical examination. He diagnosed left knee
injury, rule out a meniscal tear and upper respiratory infection with resolved viral exanthema.
Dr. Robelia advised that appellant was status post left knee surgery with findings of
chondromalacia and intact medial and lateral meniscus and cruciates. He did not provide an
opinion on whether the diagnosed left knee conditions were caused or aggravated by the
8

See S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the
condition is probably related, most likely related or could be related are speculative and diminish the probative value
of the medical opinion); Cecilia M. Corley, 56 ECAB 662 (2005) (medical opinions which are speculative or
equivocal are of diminished probative value).
9

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
10

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

6

accepted employment factors.11 The Board finds that Dr. Robelia’s reports are insufficient to
establish appellant’s claim.
Dr. Oxentenko’s November 30, 2012 report listed a history that appellant fell four times
on the ice while delivering mail and that on November 17, 2012 her knee hyperextended while
she was walking on the floor at work. He provided physical examination findings and reviewed
a November 23, 2012 left knee MRI scan. Dr. Oxentenko diagnosed left knee pain and what
appeared to be a grade 3 posterior horn meniscus tear and degenerative change. The Board notes
that his finding that appellant had what appeared to be a grade 3 posterior horn meniscus tear is
speculative.12 Dr. Oxentenko did not provide an opinion on whether appellant’s left knee
conditions were causally related to the accepted employment duties.13
Dr. Horn’s April 2 and 4, 2013 reports listed a history that appellant had suffered from
left knee pain for one and a half years and that on November 17, 2012 she fell at work. She
provided findings on physical examination and diagnosed left knee pain and functional
impairment. It is well established that pain is a description of a symptom and not considered a
compensable medical diagnosis.14 Dr. Horn did not provide an adequate opinion on whether
appellant’s left knee pain and functional impairment were caused or aggravated by the accepted
employment factors.15 The Board finds that appellant’s reports are insufficient to establish her
burden of proof.
The diagnostic test results from Drs. Nevile, Howe, Frick and Miller and laboratory
report dated January 29, 2013 are insufficient to establish appellant’s claim. Drs. Nevile and
Howe found that left knee x-rays were normal. They did not diagnose a left knee condition.
Similarly, the laboratory test results failed to diagnose a left knee condition. Neither Dr. Frick
nor Dr. Miller provided an opinion on whether the diagnosed left knee conditions were caused or
aggravated by the established employment factors.16 The Board finds that these reports are
insufficient to establish appellant’s claim.
The November 21, 2012 activity/work status report which contained an illegible signature
stated that appellant could work with restrictions through December 5, 2012. This evidence has
no probative value, as it is not established that the author is a physician.17

11

See cases cited, supra note 8.

12

Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A.
Kelley, 55 ECAB 206 (2004).
13

See cases cited, supra note 8.

14

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 8, 2008).

15

See cases cited, supra note 8.

16

Id.

17

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

7

The reports from Ms. Nordquist and Ms. Meeo, both registered nurses, the registered
nurse whose signature is illegible; Ms. Ommen, a physician’s assistant; and those from physical
therapists are insufficient to establish appellant’s claim. Healthcare providers such as a
registered nurse, nurse practitioner, physician’s assistant or physical therapist are not a physician
as defined under FECA. These reports do not constitute competent evidence to establish a
medical condition, disability or causal relationship.18
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a left knee condition causally related to the accepted
employment factors. Appellant did not meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a left knee injury
causally related to factors of her federal employment.

18

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by State law. See 5 U.S.C. § 8102(2);
David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as nurses, physician’s assistants and physical
therapists are not competent to render a medical opinion under FECA).

8

ORDER
IT IS HEREBY ORDERED THAT the September 13, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 6, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, VITILAS “VITO”
)
REID POST OFFICE, Normandy, MO, Employer )
__________________________________________ )
D.J., Appellant

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

Docket No. 21-1027
Issued: March 25, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 21, 2021 appellant, through counsel, sought an appeal from a purported June 3,
2021 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-1027.
The Board, having duly considered the matter, notes that it has jurisdiction to review final
adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2 This
jurisdiction encompasses any final decision issued by OWCP within 180 days of the date appellant
filed this appeal. 3 Although the case record does contain a document from OWCP dated June 3,
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
3

2021, it is an informational letter and, thus, does not constitute a final adverse OWCP decision. 4
As there is no final adverse decision over which the Board may properly exercise jurisdiction, the
Board concludes that the appeal docketed as No. 21-1027 must be dismissed. 5 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1027 is dismissed.
Issued: March 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4

See Order Dismissing Appeal, G.T., Docket No. 21-0199 (issued December 1, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020) (correspondence that is purely informational in nature does not
constitute a final adverse decision of OWCP from which appellant may properly appeal).
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).
5

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.Y., Appellant
and
DEPARTMENT OF AGRICULTURE, ANIMAL
& PLANT HEALTH INSPECTION SERVICE,
Miami Springs, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 14-19
Issued: March 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 15, 2013 appellant, through his representative, filed a timely appeal from a
September 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
effective February 20, 2013 on the grounds that he had no further disability causally related to
his March 13, 1980 employment injury; and (2) whether it properly terminated his authorization
for medical treatment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 21, 1980 appellant, then a 33-year-old animal health technician, filed a
traumatic injury claim alleging that on March 13, 1980 he injured his right shoulder while
reading ear tags on a bull. OWCP accepted the claim for a herniated cervical disc at C6-7 with
myelopathy and radiculopathy to the right arm from nerve root damage. Appellant stopped work
on March 14, 1980. On April 3, 1980 he underwent a C6-7 hemilaminectomy, foraminotomy
and discectomy. Appellant returned to limited-duty employment on July 6, 1980 but stopped
work on October 14, 1983 and did not return.2 OWCP paid him wage-loss compensation for
total disability.
By decision dated March 18, 1987, OWCP reduced appellant’s compensation effective
April 12, 1987 based on its finding that he had the capacity to earn wages as a Cashier 2. In a
decision dated October 5, 1987, an OWCP hearing representative affirmed the March 18, 1987
loss of wage-earning capacity determination.3
On December 4, 2012 OWCP referred appellant to Dr. Jonathan D. Black, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated December 18,
2012, Dr. Black discussed appellant’s history of injury and resulting medical treatment. On
examination of the cervical spine, he found normal cervical alignment, mild tenderness on
palpation, full strength and no sensory deficit or weakness. Dr. Black found reduced range of
motion for flexion, extension and rotation that did not cause radiculopathy. He determined that
there were “no objective findings on clinical and examination to support residuals from the
compensable injury as stated in the statement of accepted facts. [Appellant] is completely
neurologically intact.” Dr. Black further asserted, “There are no objective findings to support
disability as a result of the compensable injuries. [Appellant] reports that he has activity-related
neck discomfort, which may preclude his regular job as an animal husbandry technician without
restrictions but these are subjective complaints only.”
On January 9, 2013 OWCP notified appellant of its proposed termination of his
compensation and medical benefits as the medical evidence supported that he had no further
employment-related disability or residual condition.
In a response dated February 4, 2013, appellant disagreed with the proposed termination
of his compensation and asserted that Dr. Black’s examination lasted only five minutes. He
requested another examination.
By decision dated February 20, 2013, OWCP terminated appellant’s compensation and
authorization for medical benefits effective February 20, 2013. It found that Dr. Black’s opinion
represented the weight of the medical evidence and established that he had no further disability
or need for medical treatment as a result of his March 13, 1980 work injury.
2

On March 5, 1984 appellant underwent an excision of a herniated nucleus pulposus at C5-6 and a
hemilaminectomy and foraminotomy at C5-6.
3

By decision dated November 19, 1988, OWCP denied appellant’s request to reopen his case for further review
of the merits under 5 U.S.C. § 8128.

2

On March 4, 2013 appellant requested a telephone hearing before an OWCP hearing
representative.
In a report dated April 8, 2013, Dr. Samy F. Bishai, an orthopedic surgeon, discussed
appellant’s history of a 1980 employment injury and his current complaints of neck pain with
radiculopathy into the upper extremities and low back pain with radiculopathy. On examination
of the cervical spine, he found “paraspinal muscle spasm of moderate intensity affecting the
paraspinal muscles of the cervical region of the spine” and muscle spasm of the trapezius
muscles bilaterally. Dr. Bishai further found reduced cervical motion and diminished sensation
in some fingers of the hands. He diagnosed cervical and lumbar disc syndrome with bilateral
radiculopathy, possible bilateral carpal tunnel syndrome, internal derangement of the left
shoulder and status post cervical and lumbar laminectomies. Dr. Bishai requested that appellant
provide him with copies of his medical records, “including the work[-]related accident.”
In a progress report dated May 8, 2013, Dr. Claude Barosy, who specializes in family
medicine, discussed appellant’s complaints of neck, low back and shoulder pain. He diagnosed
cervical and lumbar disc syndrome with radiculopathy bilaterally, internal derangement of the
left shoulder, status post lumbar and cervical laminectomies and to rule out carpal tunnel
syndrome. On May 22, 2013 Dr. Barosy indicated that appellant experienced pain radiating into
his upper and lower extremities. He provided findings on examination and diagnoses, which
included cervical and lumbar disc syndrome with radiculopathy.
At the telephone hearing, held on July 10, 2013, appellant related that Dr. Black only
examined him for five minutes and conducted a minimal physical evaluation. The hearing
representative suggested that appellant have his attending physician review and discuss the report
of the second opinion physician. Appellant’s representative asserted that Dr. Black was
currently the only physician performing evaluations for OWCP in the entire district.
By decision dated September 9, 2013, an OWCP hearing representative affirmed the
February 20, 2013 decision.
On appeal, appellant’s representative argues that he has additional diagnoses that should
be accepted as related to appellant’s work injury. He further asserts that OWCP used Dr. Black
excessively as a medical evaluator and that his examination lasted only five minutes and
consisted of asking appellant to touch his foot and wiggle his fingers. Appellant’s representative
argues that the opinions of Dr. Barosy and Dr. Bishai supported that appellant had consequential
injuries and that his condition had worsened. He maintains that their reports create a conflict in
medical opinion.
LEGAL PRECEDENT -- ISSUE 1
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 that it was no longer related to the employment.4

4

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

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.5
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a herniated disc at C6-7 with myelopathy and
right arm radiculopathy due to nerve damage due to a March 13, 1980 employment injury. After
experiencing intermittent disability, appellant stopped work on October 14, 1983 and did not
return. OWCP paid compensation for total disability until April 12, 1987, when it reduced his
compensation based on its finding that he had the capacity to earn wages in the selected position
of Cashier 2.
On December 4, 2012 OWCP referred appellant to Dr. Black for a second opinion
examination. The Board finds that OWCP met its burden of proof to terminate his compensation
through the opinion of Dr. Black, who determined that appellant had no further disability
causally related to his accepted employment injury. In his December 18, 2012 report, Dr. Black
reviewed the history of injury and listed detailed findings on physical examination. He found
full strength and normal alignment with some loss of range of motion with movement with
radiculopathy. Dr. Black further determined that appellant had no sensory deficit or weakness on
neurological examination. He noted that diagnostic studies revealed possible mild carpal tunnel
syndrome on the right. Dr. Black found no objective findings supporting any residuals or
disability due to appellant’s accepted employment injury. He provided rationale for his opinion
by explaining that appellant had a normal neurological examination. Dr. Black noted that
appellant experienced neck pain with activity that was unsupported by objective findings. He
concluded that appellant could return to his usual employment without limitations. Dr. Black
provided a thorough review of the factual and medical background and accurately summarized
the relevant medical evidence. Moreover, he provided detailed findings on examination and
reached conclusions regarding appellant’s condition, which comported with his findings.6
Consequently, Dr. Black’s report represents the weight of the evidence and establishes that
appellant has no further employment-related disability.7
The remaining evidence of record is insufficient to show that appellant had further
disability due to his employment injury. Dr. Bishai evaluated appellant for neck and low back
pain with radiculopathy into the extremities and reviewed his history of a 1980 work injury. He
diagnosed cervical and lumbar disc syndrome with bilateral radiculopathy, internal derangement
of the left shoulder, status post cervical and lumbar laminectomies and possible carpal tunnel
syndrome. Dr. Bishai did not, however, specifically discuss the cause of the diagnosed
conditions. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of diminished probative value on the issue of causal relationship.8
5

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

6

See Pamela K. Guesford, 53 ECAB 727 (2002).

7

See F.G., Docket No. 13-1676 (issued January 2, 2014); T.M., Docket No. 13-1953 (issued December 11, 2013).

8

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

4

Additionally, Dr. Bishai did not address the relevant issue of whether appellant remained
disability as a result of his employment injury.9
In progress reports dated May 8 and 22, 2013, Dr. Barosy treated appellant for pain in the
neck, low back and shoulder. He diagnosed cervical and lumbar disc syndrome with
radiculopathy and internal derangement of the left shoulder. Dr. Barosy did not, however,
address causation and thus his reports are of little probative value.10
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.11 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.12
ANALYSIS -- ISSUE 2
OWCP met its burden of proof to terminate authorization for medical benefits through
the opinion of Dr. Black, who found that appellant had no residuals of his accepted conditions.
Dr. Black explained that his neurological examination revealed no residuals of the March 13,
1980 employment injury. His opinion, which is detailed and well rationalized, constitutes the
weight of the evidence and establishes that appellant has no further residuals of his accepted
employment injury.
On appeal, appellant’s representative argues that OWCP should accept more conditions
as employment related. He argues that Dr. Barosy and Dr. Bishai found that he had a
consequential injury and that his condition had worsened. Appellant’s representative maintains
that their reports create a conflict in medical opinion. However, where a claimant claims that a
condition not accepted or approved by OWCP was due to his employment injury, he bears the
burden of proof to establish that the condition is causally related to the employment injury
through the submission of rationalized medical evidence.13 As noted, neither Dr. Barosy nor
Dr. Bishai addressed causation and thus their opinions are insufficient to establish a
consequential injury, show appellant’s condition worsened or to create a conflict in medical
opinion with Dr. Black.
Appellant’s representative further asserts that OWCP used Dr. Black excessively as a
medical evaluator and that his examination lasted only five minutes and included only asking
9

Carol A. Lyles, 57 ECAB 265 (2005) (whether a particular injury caused an employee disability from
employment is a medical issue which must be resolved by competent medical evidence).
10

See supra note 8.

11

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, supra note 6.

12

Id.

13

JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

5

appellant to touch his foot and wiggle his fingers. Dr. Black, however, provided thorough
findings on evaluation in his December 18, 2012 report. Appellant has not submitted any
evidence establishing his alleged bias by Dr. Black.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation and
authorization for medical treatment effective February 20, 2013 on the grounds that he had no
further disability or need for medical treatment causally related to his March 13, 1980
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, MANHATTANVILLE
STATION, New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-201
Issued: March 28, 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 October 30, 2006 appellant filed a timely appeal from a schedule award decision of
the Office of Workers’ Compensation Programs dated October 18, 2006. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has greater
than 10 percent impairment of both lower extremities for which she received a schedule award.
FACTUAL HISTORY
On March 12, 1999 appellant, then a 52-year-old letter carrier, sustained employmentrelated low back and right hip strains and contusions to both knees when she fell in the course of
her federal duties. On May 25, 1999 Dr. Malik Akhtar, an orthopedic surgeon, performed
authorized arthroscopic surgery to repair meniscal tears of both knees. Appellant returned to
limited duty on September 13, 1999 and continued under Dr. Akhtar’s care until his death. In
reports dated August 27 and October 22, 2004, Dr. Placido A. Menezes noted the history of

injury, appellant’s treatment regimen and diagnosed traumatic arthritis of both knees. X-rays of
the right and left knee on January 5, 2005 demonstrated moderate osteoarthritis on the right and
mild osteoarthritis on the left. In reports dated January 26 and March 2, 2005, Dr. Douglas E.
Padgett advised that appellant’s knee arthritis was caused by the 1999 employment injury. He
opined that she would need knee replacement surgery in the future. Dr. Padgett provided work
limitations. In reports dated May 4 and June 23, 2005, Dr. Steven D. Zaretsky noted the history
of injury, diagnosed knee arthritis and advised that, while there was no need for total knee
replacements at the present time, her prognosis in that regard was guarded.
On September 19, 2005 appellant filed a schedule award claim. In a July 26, 2005 report,
Dr. Norman M. Heyman noted the history of injury, appellant’s complaints of knee pain and
effusion and his review of certain medical records. He made findings on examination and
diagnosed contusion of the right and left knee; postoperation for partial medial and lateral
meniscectomy of the right knee, and questionable partial medial and lateral meniscectomy of the
left knee; tricompartmental osteoarthrosis of the right knee greater than the left knee.
Dr. Heyman advised that in accordance with the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),1
she had no impairment rating for the tricompartmental osteoarthrosis. Under Table 17-7 of the
A.M.A., Guides, she had a Grade 4 muscle function bilaterally, which, under Table 17-8,
provided a knee impairment of 12 percent for knee flexion and 12 percent for knee extension or a
24 percent impairment of each knee. He then advised that, under Table 17-10, a mild degree of
decreased knee range of motion yielded a 10 percent impairment of the right knee, and that under
Table 17-33, her right knee meniscectomy entitled her to a 10 percent impairment. Dr. Heyman
also found that under Table 17-33 she was entitled to a bilateral 12 percent impairment for
articular surface displacement of a patellar fracture more than three millimeters (mm).
Dr. Heyman concluded that appellant had a right knee impairment of 46 percent and a left knee
impairment of 40 percent.
In reports dated November 3 and December 6, 2005, an Office medical adviser stated
that, under Table 17-7 and 17-8, appellant was entitled to a 24 percent impairment for each knee.
He noted that, pursuant to Table 17-2, only one method was to be used for evaluating
impairment, advising that muscle function and diagnosis-based estimates were not to be used
with a strength rating. The Office determined that a conflict in medical evidence was created
between the opinions of Dr. Heyman and the Office medical adviser and referred appellant to
Dr. Alan R. Miller, Board-certified in orthopedic surgery, for an impartial medical evaluation.2
In a March 8, 2006 report, Dr. Miller noted the history of injury, appellant’s complaints and his
review of the medical record. Examination of both knees demonstrated healed arthroscopic scars
with no obvious joint effusion. Right knee range of motion was 5 to 105 degrees and left 0 to
120 degrees. Lachman’s test and anterior drawer sign were negative bilaterally and no lateral or
medial instability was present. Dr. Miller diagnosed right and left knee internal derangement,
status post arthroscopy; bilateral knee osteoarthritis, right greater than left and low back pain.
He concluded that, based on the A.M.A., Guides, using Tables 17-10, 17-7 and 17-33, appellant
had a 41 percent impairment of the right knee and a 34 percent impairment on the left.
1

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

2

Drs. Menezes, Padgett, Zaretsky and Heyman are also Board-certified in orthopedic surgery.

2

By report dated April 27, 2006, an Office medical adviser reviewed Dr. Miller’s report.
He advised that, pursuant to Table 17-10, appellant had a 10 percent right lower extremity
impairment, based on knee flexion of 105 degrees and a 10 percent left lower extremity
impairment, pursuant to Table 17-33, based on a partial medial and lateral meniscectomy. The
Office medical adviser again noted that, under Table 17-2, only one method could be used in
rating impairment. On May 16, 2006 the Office requested that Dr. Miller review the Office
medical adviser’s report and provided a supplementary explanation regarding appellant’s
impairment rating. In a May 18, 2006 report, Dr. Miller advised that his original report
incorrectly calculated the percentage of impairment of appellant’s lower extremities. He agreed
that Table 17-2 of the A.M.A., Guides provides that only one method can be utilized for
determining lower extremity impairments and, using Table 17-33 for a diagnosis-based estimate,
found that appellant had a 10 percent impairment of the left lower extremity. Dr. Miller
determined that, under Table 17-10, her knee range of motion of 5 to 105 degrees on the right
yielded a 10 percent impairment of that lower extremity. He concluded that maximum medical
improvement had been reached on December 1, 1999. Dr. Zaretsky continued to submit reports
in which he noted appellant’s complaints of increased right knee pain and that she used a cane.
On January 26, 2006 he reported that left knee x-rays were taken.
By decision dated October 18, 2006, the Office granted appellant a schedule award for a
10 percent permanent impairment of both lower extremities, for a total of 57.6 weeks, to run
from March 8, 2006 to April 15, 2007.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act3 and section 10.404 of
the implementing federal regulation,4 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for 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 Office, and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.5 Chapter 17 provides the framework
for assessing lower extremity impairments.6
Office procedures indicate that referral to an Office medical adviser is appropriate when a
detailed description of the impairment from the attending physician is obtained.7 When a
diagnosis-based impairment rating is applied, it is generally not appropriate to calculate
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

See Joseph Lawrence, Jr., supra note 1; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
6

A.M.A., Guides, supra note 1 at 523-64.

7

Thomas J. Fragale, 55 ECAB 619 (2004).

3

additional impairment based on anatomic or functional based methods (such as limitations of
strength or range of motion).8
Section 8123(a) of the Act 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.9 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.10 Office procedures indicate that referral to an Office medical adviser is
appropriate when a detailed description of the impairment from a physician is obtained.11
ANALYSIS
The Board finds that appellant has no more than a 10 percent upper impairment of both
lower extremities. The Office found that a conflict had been created regarding appellant’s
degree of impairment between the opinions of Dr. Heyman and the Office medical adviser and
referred her to Dr. Miller for an impartial evaluation. In his March 8, 2006 report, Dr. Miller
noted his physical findings, and in his May 18, 2006 report opined that maximum medical
improvement had been reached on December 1, 1999 and utilized Tables 17-33 and 17-10 to
determine that appellant had 10 percent impairment of the left and the right lower extremities.
Table 17-2 of the A.M.A., Guides describes the types of impairment ratings that cannot
be combined, including that muscle strength cannot be combined with a diagnosis-based
estimate.12 An impairment rating for arthritis, as found in Table 17-31 can, however, be
combined with a diagnosis-based estimate.13 Dr. Akhtar’s operative report of May 25, 1999
provided that appellant had bilateral partial meniscectomies for medial and lateral tears. In
accordance with Table 17-33 appellant would, therefore, be entitled to a 10 percent lower
extremity impairment,14 as found by both the Office medical adviser and Dr. Miller, the referee
examiner. Dr. Miller also found that on examination of appellant’s right knee, flexion was from
5 to 105 degrees, and in his May 18, 2006 report correctly advised that Table 17-10 provides that
knee flexion of less than 110 degrees yields a lower extremity impairment of 10 percent.15
Appellant had no loss of knee flexion on the left and would therefore not be entitled to a
schedule award on that basis. Dr. Miller explained why he assigned separate methods to each
8

A.M.A., Guides, supra note 1, section 17.2j at 545; Derrick C. Miller, 54 ECAB 266 (2002).

9

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

10

Manuel Gill, 52 ECAB 282 (2001).

11

See Thomas J. Fragale, supra note 7.

12

A.M.A., Guides at 526; see Derrick C. Miller, supra note 8.

13

Id.

14

Id. at 544.

15

Id. at 537.

4

extremity. The Board therefore finds that he properly calculated appellant’s left lower extremity
based on her previous meniscectomy under Table 17-33 and her right lower extremity in
accordance with Table 17-10 for loss of knee flexion.
As to cartilage interval narrowing as described in Table 17-31.16 The record does not
support impairment as the January 5, 2005 x-ray report did not describe cartilage intervals.
While appellant submitted additional medical evidence from Drs. Menezes, Padgett and
Zaretsky, none of these physicians provided an impairment analysis. Before the A.M.A., Guides,
can be utilized, a description of impairment must be obtained from the claimant’s physician.
This description must be in sufficient detail so that the claims examiner and others reviewing the
file will be able to clearly visualize the impairment with its resulting restrictions and
limitations.17
The Board finds that Dr. Miller’s impairment evaluation is in accordance with the
A.M.A., Guides. It is entitled to special weight and appellant has not established that she has
greater than a 10 percent impairments to both lower extremities.18
CONCLUSION
The Board finds that appellant has no more than a 10 percent impairment of both lower
extremities.

16

Id. at 544.

17

Vanessa Young, 55 ECAB 575 (2004).

18

The Board notes that there is no provision under the act for bilateral leg impairment. The Office may, as an
administrative convenience, grant a schedule award containing a single impairment rating representing the addition
of left and right leg impairments if it first, as in this case, calculates that two leg impairments separately before
deriving such a figure. See Carl J. Cleary, 57 ECAB ____ (Docket No. 05-1558, issued May 10, 2006).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 18, 2006 be affirmed.
Issued: March 28, 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