United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Salem, NJ, Employer
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___________________________________________ )
W.M., Appellant

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

Docket No. 10-605
Issued: January 7, 2011

Case Submitted on the Record

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

JURISDICTION
On January 4, 2009 appellant, through counsel, filed a timely appeal from the Office of
Workers’ Compensation Programs’ decision dated October 14, 2009, which affirmed the
Office’s March 5, 2009 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained more
than a 10 percent permanent impairment of his right lower extremity or more than a 10 percent
permanent impairment of his left lower extremity, for which he received a schedule award.
FACTUAL HISTORY
On March 15, 2005 appellant, then a 48-year-old letter carrier, filed an occupational
disease claim alleging that he sustained bilateral knee conditions in the performance of duty. He

did not stop work. On September 7, 2006 the Office accepted the claim for acceleration of
bilateral knee degenerative joint disease.1
In a November 9, 2006 report, Dr. Nicholas Diamond, an osteopath, noted appellant’s
history of injury and treatment and utilized the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (5th ed. 2001) (hereinafter A.M.A., Guides). He
determined that appellant had 30 percent permanent impairment of the right and left legs.
On February 6, 2007 appellant filed a (Form CA-7) claim for a schedule award.
In an October 15, 2007 report, an Office medical adviser noted the history of injury and
treatment, reviewed Dr. Diamond’s report and utilized the A.M.A., Guides. The Office medical
adviser concluded that appellant had 27 percent permanent impairment of each leg.
On April 10, 2008 the Office referred appellant to Dr. George P. Glenn, Jr., a Boardcertified orthopedic surgeon, to resolve the conflict in medical opinion.2 In an April 29, 2008
report, Dr. Glenn noted appellant’s history of injury and treatment. He referred to Table 17-1
and advised that atrophy and arthritis of the knee joint was the “pertinent subject with respect to
knee problems.”3 Dr. Glenn explained that pursuant to Table 17-2, page 526, these two could
not be combined and that range of motion and muscle strength could not be combined.
Regarding arthritis, he utilized the roentgenographic grading method and determined that the
tibiofemoral cartilage on the left measured nine millimeters medially and six millimeters
laterally. For the right, appellant’s cartilage measured eight millimeters medially and seven
millimeters laterally. Dr. Glenn noted that for the upright position, the patellofemoral interval on
the left measured three millimeters and on the right five millimeters. He referred to Table 17-31
at page 544 and explained that none of the intervals qualified for an impairment. Dr. Glenn also
noted that while both Dr. Diamond and the Office medical adviser referred to muscle strength
testing, his examination of all muscle groups revealed no gait abnormalities or zero percent
under Table 17-7 at page 531. He also explained that muscle atrophy could not be utilized
because it applied to unilateral involvement and both extremities were involved.4 Dr. Glenn
applied the range of motion method and noted that, while both Dr. Diamond and the Office
medical adviser found no impairment, he found limited range of motion involving the right knee
of 105 degrees and 3 to 5 degrees of flexion contracture in the left knee. Under Table 17-10 at
page 537, flexion of less than 110 degrees resulted in a 10 percent permanent impairment of the
right knee and flexion contracture was in the 5 to 9 degree range, which equated to 10 percent
1

The record reflects that on June 20, 2003, appellant underwent arthroscopic debridement of the medial femoral
condyle and partial lateral meniscectomy of the right knee.
2

On January 22, 2008 the Office referred appellant to Dr. Gerald Packman, a Board-certified orthopedic surgeon,
for an impartial medical evaluation to resolve the conflict in opinion between Dr. Diamond and the Office medical
adviser regarding the extent of his permanent impairment. On April 1, 2008 it bypassed Dr. Packman as he required
payment in advance. The Office also noted that he did not perform impartial medical examinations. The Office also
bypassed Dr. Seth Silver, a Board-certified orthopedic surgeon, as an impartial specialist. On the bypass sheet, it
noted that there was “[n]o phone number and 411 has no more information.”
3

A.M.A., Guides 525.

4

Id. at 530.

2

impairment of the left knee. He explained that appellant exhibited nothing unusual in the pain
presentation which would allow for consideration of the pain chapter.5 Dr. Glenn noted that
appellant had no evidence of weakness in any of the muscle groups in spite of the muscle
atrophy. He opined that appellant’s condition would have occurred at some point in time as the
natural progression of the degenerative process without the added stimulus of his occupation.
Dr. Glenn noted that the five percent impairment rating for both the right and left knees that the
Office medical adviser included for patellofemoral compression producing pain and crepitus
pursuant to Table 17-36 would not apply because there was no history of direct trauma.
In an August 20, 2008 report, an Office medical adviser concurred with Dr. Glenn. He
advised that appellant reached maximum medical improvement on April 29, 2008.
On March 5, 2009 the Office granted appellant a schedule award for 10 percent
permanent impairment of the right knee and 10 percent permanent impairment of the left knee.
The award covered a period of 57.60 weeks from April 29, 2008 to June 6, 2009.
On March 10, 2009 counsel requested a hearing, which was held via video conference on
July 29, 2009. During the hearing, he alleged that the Office improperly bypassed Dr. Silver
before selecting Dr. Glenn. Counsel alleged that Dr. Silver was accessible and practiced
medicine in the area for 22 years. He also alleged that Dr. Glenn’s report was not entitled to
special weight. In a letter dated July 31, 2009, counsel reiterated that Dr. Silver was improperly
bypassed as he was readily available and had practiced medicine for over 22 years.
By decision dated October 14, 2009, the hearing representative affirmed the March 5,
2009 decision. She found that the Office properly selected Dr. Glenn as the impartial specialist
and that his report was entitled to special weight.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act7 and its
implementing regulations8 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner by which the percentage loss of a
member, function or organ shall be determined. To ensure consistent results and equal justice
for all claimants under the law, good administrative practice requires the use of uniform
standards applicable to all claimants.9 The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.10
5

Id. at 571.

6

Id. at 544.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404 (1999).

9

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

10

Supra note 8.

3

The A.M.A., Guides provides for three separate methods for calculating the lower
extremity permanent impairment of an individual: anatomic, functional and diagnosis based.11
The anatomic method involves noting changes, including muscle atrophy, nerve impairment and
vascular derangement, as found during physical examination.12 The diagnosis-based method
may be used to evaluate impairments caused by specific fractures and deformities, as well as
ligamentous instability, bursitis and various surgical procedures, including joint replacements
and meniscectomies.13 The functional method is used for conditions when anatomic changes are
difficult to categorize or when functional implications have been documented and includes range
of motion, gait derangement and muscle strength.14 The evaluating physician must determine
which method best describes the impairment of a specific individual based on patient history and
physical examination.15 When uncertain about which method to use, the evaluator should
calculate the impairment using different alternatives and choose the method or combination of
methods that gives the most clinically accurate impairment rating.16 If more than one method
can be used, the method that provides the higher impairment rating should be adopted.17
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.18 Where a case is referred to an
impartial medical specialist for the purpose of resolving a conflict, the opinion of such specialist,
if sufficiently well rationalized and based on a proper factual and medical background, must be
given special weight.19
It is well established that Office procedures provide that an impartial medical specialist
must be selected from a rotational list of qualified Board-certified specialists, including those
certified by the American Medical Association and American Osteopathic Association.20 The
physician selected as the impartial specialist must be one wholly free to make an independent
evaluation and judgment. To achieve this end, the Office has developed procedures for the
selection of the impartial medical specialist designed to provide adequate safeguards against the

11

Supra note 3.

12

Id.

13

Id.

14

Id. at 525, Table 17-1.

15

Id. at 548, 555.

16

Id. at 526.

17

Id. at 527, 555.

18

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).
19

See Roger Dingess, 47 ECAB 123 (1995); Glenn C. Chasteen, 42 ECAB 493 (1991).

20

See LaDonna M. Andrews, 55 ECAB 301 (2004).

4

appearance that the selected physician’s opinion was biased or prejudiced.21 These procedures
contemplate selection on a strict rotating basis in order to negate any appearance that preferential
treatment exists between a physician and the Office.22 Moreover, the reasons for the selection
made must be documented in the case record.23
ANALYSIS
Dr. Diamond, the attending physician, found that appellant had 30 percent permanent
impairment of the right and left legs. An Office medical adviser reviewed Dr. Diamond’s report
and determined that appellant had 27 percent impairment of each leg. As a conflict existed in the
medical opinion evidence between Dr. Diamond and the Office medical adviser, the Office
properly referred appellant to Dr. Glenn for an impartial medical examination.
The Board finds that the thorough and well-documented report of Dr. Glenn, the
impartial medical specialist selected to resolve the conflict in the medical evidence, is based
upon correct application of the A.M.A., Guides and is entitled to special weight. Dr. Glenn took
measurements, referred to pages and tables in the A.M.A., Guides and explained his calculations.
In an April 29, 2008 report, Dr. Glenn noted appellant’s history and utilized the A.M.A.,
Guides. He considered the various methods of assessment to determine appellant’s impairment
and explained which methods could not be combined. In particular Dr. Glenn properly noted
that atrophy and arthritis of the knee joint could not be combined. He also explained that the
A.M.A., Guides at Table 17-2 at page 526 precluded the combination of range of motion and
muscle strength. For arthritis, Dr. Glenn appropriately utilized the roentgenographic grading
method to measure the cartilage and joint spaces of the “medial and lateral tibiotalar joints in AP
projection and the patellofemoral joint in lateral projection.” He determined that the
measurements of the left leg of nine millimeters medially and six millimeters laterally and the
right leg of eight millimeters medially and seven millimeters laterally or the patellofemoral
interval measurements on the left of three millimeters and the right of five millimeters, did not
qualify for an impairment according to Table 17-31 of the A.M.A., Guides. Dr. Glenn advised
that under Table 17-6 muscle atrophy could not be utilized because it was specifically intended
for a unilateral involvement and both legs were involved in appellant’s case. Regarding muscle
strength, he noted that appellant had no gait abnormalities and thus, zero percent impairment
according to Table 17-7. For range of motion, Dr. Glenn found limited range of motion
involving the right knee of 105 degrees and 3 to 5 degrees of flexion contracture in the left knee.
Dr. Glenn referred to Table 17-10 and explained that flexion of less than 110 degrees resulted in
a 10 percent impairment of the right leg and that left leg flexion contracture was in the 5 to 9
degree range, resulting in 10 percent permanent impairment. He found no unusual pain
presentation which would allow for consideration of the pain chapter.24 Dr. Glenn also explained
21

See Raymond J. Brown, 52 ECAB 192 (2001).

22

Id. See also Miguel A. Muniz, 54 ECAB 217 (2002).

23

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b)
(May 2003).
24

A.M.A., Guides 571.

5

that under Table 17-31, an additional impairment of five percent for both the right and left knees
as a result patellofemoral compression producing pain and crepitus would not apply because
there was no history of direct trauma.
The Board finds that Dr. Glenn’s opinion is entitled to special weight as his reports are
sufficiently well rationalized, based upon a proper factual background and properly apply the
A.M.A, Guides to the facts. The Office properly relied upon his reports in finding that appellant
had a permanent impairment of 10 percent of his right lower extremity and 10 percent of his left
lower extremity. Therefore, Dr. Glenn’s report resolved the medical conflict and establishes
that, under the A.M.A., Guides, appellant has no more than 10 percent impairment of the right
leg and 10 percent impairment of the left leg.
Counsel asserted during the hearing and on appeal that Dr. Silver was improperly
bypassed during the selection of the impartial specialist such that Dr. Glenn was not chosen in
accordance with proper procedures.25 He argued that Dr. Silver was bypassed for no telephone
number or further information. Counsel noted that Dr. Silver was available and had been a
practicing physician for over 22 years. The Board notes that the Office properly documented its
reason for bypassing Dr. Silver prior to selecting Dr. Glenn. The fact that appellant disagrees
with the Office’s reason is not sufficient to defeat the Office selection of Dr. Glenn.26 There is
no showing that the use of Dr. Glenn’s medical opinion would undermine the appearance of
impartiality or compromise the integrity of the system for selecting impartial medical specialists.
Consequently, the Office properly found that Dr. Glenn’s opinion represented the special
weight of the medical evidence and resolved the medical conflict regarding the extent of
permanent impairment of appellant’s lower extremities.
CONCLUSION
The Board finds that the evidence does not establish that appellant has more than 10
percent permanent impairment of his right lower extremity or more than 10 percent permanent
impairment of his left lower extremity, for which he received a schedule award.

25

To ensure the complete independence of physicians that are selected as impartial medical specialists, the Office
developed specific procedures to safeguard against any possible appearance that the selected physician’s opinion is
biased or prejudiced. Impartial medical specialists are selected from the Board-certified specialists in the
appropriate geographical area on a strict rotating basis to negate the appearance that any preferential treatment exists
between a particular physician and the Office. Office procedures provide that the selection of an impartial medical
specialist is made through a strict rotational system using appropriate medical directories. The procedure manual
provides that the PDS should be used for this purpose wherever possible. See Federal (FECA) Procedure Manual,
Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (May 2003). See also Willie M. Miller, 53 ECAB
697 (2002).
26

G.E., Docket No. 10-81 (issued September 17, 2010); see R.B., 61 ECAB ___ (Docket No. 09-1786, issued
July 1, 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 14, 2009 is affirmed.
Issued: January 7, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, PHOENIX AREA INDIAN
HEALTH SERVICE, Phoenix, AZ, Employer
__________________________________________

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

Docket No. 15-262
Issued: May 19, 2015

Case Submitted on the Record

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

JURISDICTION
On November 17, 2014 appellant filed a timely appeal from a November 5, 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.
ISSUE
The issue is whether OWCP met its burden of proof to justify termination of appellant’s
medical and wage-loss compensation benefits for his accepted injury effective
November 5, 2014.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 26, 2012 appellant, then a 55-year-old maintenance mechanic, filed a
traumatic injury claim (Form CA-1) alleging that, on November 19, 2012, he was cleaning grass
from cracks in a ramp area when he fell forward and struck the top of his head on a pole. He
stated that, as a result of this event, he suffered head trauma and a concussion. OWCP accepted
the claim for a concussion without loss of consciousness on December 4, 2012. On February 14,
2013 it accepted the additional condition of postconcussion syndrome.
In a medical record dated November 19, 2012, Dr. Roy Teramoto, Board-certified in
pediatrics, stated that he was called to see appellant at 10:30 a.m. on the date of injury.
Appellant was sitting in a chair, had his head down with his eyes closed, and had clear mucous
dripping from his nose. He would respond to verbal questions but did not consistently provide a
coherent response. Appellant did not reportedly lose consciousness, but complained of a
headache and stumbling. Dr. Teramoto noted that appellant was a diabetic, on seizure
medication, and had previous surgery for a brain tumor in 2010.
In a radiological report dated November 19, 2012, Dr. Barbara E. Carr, a Board-certified
diagnostic radiologist, interpreted the results of a computerized tomography (CT) scan of
appellant’s brain. She stated an impression of postoperative changes with a craniotomy defect of
the right parietal bone, with no acute intracranial findings, and minimal inflammatory changes of
the paranasal sinuses.
On November 19, 2012 Dr. John B. Carson, Board-certified in emergency medicine,
stated that appellant was bending over at work and struck his head on a pipe. He noted that
appellant was not knocked out, but was stunned. Dr. Carson stated that appellant did not fall but
was struck on the top of his head. Appellant complained of headache and photophobia.
Dr. Carson noted, “[Appellant] was medicated for pain. Laboratory studies were checked. There
was no contraindication at discharge. [His] CT scan was negative except for postoperative
changes with a craniotomy defect. [Appellant] had a meningioma some years ago.” He assessed
appellant with a post-traumatic migraine.
In progress notes dated November 27, 2012, Dr. Antonio Rivera diagnosed appellant with
a concussion with residual symptoms and recommended that he rest at home for the next eight
days.2 He noted that appellant had postconcussion symptoms with no apparent neurological
deficit, but that he was still dizzy and had intense left shoulder pain. On December 5, 2012
Dr. Rivera stated that appellant should not work until December 10, 2012 unless cleared by a
neurologist.
By letter dated December 6, 2012, OWCP stated:
“The available medical records show that [appellant] currently takes nine
prescription medications for conditions including epilepsy, hypertension, type II
diabetes, hyperlipidemia, and depression. Because you hit an intervening object
2

Dr. Rivera’s certification in a medical specialty could not be confirmed with the American Board of Medical
Specialties or the American Osteopathic Association.

2

when you fell, we will not be required to determine the cause of the fall.
However, the claim is accepted only for a concussion without loss of
consciousness and not any of his preexisting conditions.”
On December 10, 2012 Dr. Rawinson D. Fernando, Board-certified in psychiatry and
neurology, stated:
“This is a 55-year-old male with multiple problems who has had meningioma
removed from the right parietal head region and has had seizures during this time
and it is unsure whether the seizure disorder is proceeding or after the surgical
evacuation [of] the meningioma.
“[Appellant] is on Keppra for the seizure disorder. On November 19, 2012 he
apparently had an accidental fall and hit his head on a pipe but no loss of
consciousness per [emergency room] notes.... [Appellant] apparently did not have
a seizure during this episode.”
He diagnosed appellant with a seizure disorder. Dr. Fernando noted:
“[Appellant] is having chronic headaches, dizziness, and other multiple
complaints which are not new to him. [He] should not be working on heights on
view of the history of seizure disorder. Seizure precautions need to be taken,
working with heavy machinery as he has a history of seizure disorder.
“Regarding [appellant’s] present injury, which made him go to the emergency
room, he has had no residual effect on him.”
In a note dated December 11, 2012, Dr. Rivera recommended that appellant return to
work the next day, with restrictions of working at ground level and no operation of machinery.
Additionally, he noted that, due to appellant’s left shoulder disability, he should do only clerical
or supervisory work, with no physical work as before.
Appellant was not working as of December 14, 2012 because the employing
establishment did not have work available within his restrictions.
By letter dated December 20, 2012, OWCP noted that claim number xxxxxx094 was
accepted for an August 2010 left shoulder rotator cuff sprain and arthropathy. On December 13,
2012 it denied a claim for recurrence under claim number xxxxxx094. Claim number
xxxxxx185 was accepted for a collapse due to heat exhaustion on September 17, 2012. OWCP
stated, “Please note that the claim is not accepted for any left shoulder condition as the medical
evidence in claims xxxxxx185 and xxxxxx094 do not demonstrate that a new condition or
material change of the left shoulder occurred when [appellant] collapsed due to heat exhaustion
on September 17, 2012.”
On December 28, 2012 OWCP referred appellant for a second opinion examination with
Dr. Thomas A. Schweller, Board-certified in psychiatry and neurology.

3

In a duty status report dated January 3, 2013, Dr. Rivera recommended that appellant
return to work with permanent restrictions of no more than 6 hours of continuous pulling/pushing
per day, 4 hours of continuous walking per day, 15 minutes of intermittent kneeling or twisting,
and no climbing, bending, stooping, or operating machinery. He also noted that appellant should
not continuously lift or carry more than 15 pounds or intermittently lift or carry 30 pounds.
On January 17, 2013 Dr. Schweller examined appellant and diagnosed him with a closed
head injury with concussion; postconcussion syndrome with balance impairment, cognitive
impairment, and headaches; cervical strain; and left shoulder strain with partial ankyloses. He
noted, “This gentleman has clear residual injuries from his work accident.... There continues to
be post[-]traumatic head syndrome associated with cognitive impairment, mood impairment,
dizziness, and headaches.... The findings are due to concussion.”
By letter dated February 15, 2013, OWCP informed appellant that he was to be placed on
the periodic rolls for compensation, effective January 4, 2013.
In a work capacity evaluation dated March 23, 2013, Dr. Rivera stated that appellant was
unable to work due to his postconcussion syndrome.
On July 26, 2013 appellant was seen by Drs. Paul E. Bendheim and Joshua A. Tobin,
Board-certified neurologists. They diagnosed appellant with postconcussive syndrome with
severe headaches and memory impairment; migraine headaches without aura; obstructive sleep
apnea treated with continuous positive airway pressure; status post meningioma; a single seizure
postsurgery in 2010; and diabetic distal sensory neuropathy. Drs. Bendheim and Tobin noted
that it was conceivable that a seizure could have been responsible for his fall in November 2012.
They recommended a magnetic resonance imaging (MRI) scan, an electroencephalogram (EEG),
laboratory evaluation, and a neuropsychological evaluation.
In a diagnostic report dated August 12, 2013, Dr. Tadesse Eshetu, a Board-certified
radiologist, interpreted the results of an MRI scan of appellant’s brain. He found no acute
intracranial process and no evidence of a traumatic brain injury or acute blood; mild sequale of
migrainous angiopathy versus chronic microangiopathic changes; minimal paranasal sinus
mucosal inflammation without evidence of acute sinusitis; and a status post right frontolateral
craniotomy with no residual mass identified.
In a report dated October 1, 2013, Dr. Tobin reiterated that appellant was off work status.
He noted that appellant was having trouble sleeping and depression. On December 4, 2013
Dr. Tobin reported that appellant had a sensation of déjà vu while driving, when he pulled over
to the side of the road and passed out. Appellant also had high levels of emotional distress. On
January 27, 2014 Dr. Tobin noted that appellant told him that he had no headaches prior to being
hit on the back of the head in August 2012. He further noted that when an opiate such as
hydrocodone is used, taking pain medications more than eight days per month tends to cause
headaches, and that this could be part of appellant’s problem as he was taking pain medication
daily. In a report dated February 17, 2014, Dr. Tobin stated that it was reasonable to attribute
appellant’s headaches to his injury and that it was not an aggravation of a preexisting condition.
Appellant remained disabled from work.

4

On June 19, 2014 OWCP referred appellant to Dr. Kenneth Stover, a neurosurgeon, for a
second opinion evaluation as to whether appellant was capable of some type of work or whether
he was at maximum medical improvement.3 Dr. Stover examined appellant on July 17, 2014.
He diagnosed appellant with postconcussion syndrome by history; cognitive and emotional
findings by history; and a status post right frontal convexity meningioma by history. Dr. Stover
stated, “At the present time, after review of [appellant’s] medical records and taking of his
history and performing neurologic exam[ination] it is difficult for me to arrive at the diagnosis of
postconcussive syndrome clearly. [His] headaches are not continuous which is not consistent
with the postconcussion syndrome, but are usually other cognitive and emotional changes are
associated. I am also not in favor of pseudotumor cerebri and not clear as to removal of spinal
fluid would produce much of an effect. I have no objective findings in [appellant] at the present
time.” He stated that appellant’s headaches were of unknown origin and therefore appellant was
not at maximum medical improvement because it was not known how they could be properly
managed.
On May 20, 2014 appellant underwent a successful lumbar puncture. There were no
complications.
On September 4, 2014 OWCP proposed to terminate appellant’s compensation for
medical benefits and wage loss, finding that the weight of the medical evidence established no
continuing residuals from postconcussion syndrome.
In a report dated September 29, 2014, Dr. Tobin responded to Dr. Stover’s second
opinion evaluation. He summarized his previous reports and examinations of appellant and
diagnosed him with pseudotumor cerebri and postconcussive syndrome. Dr. Tobin stated:
“I respectfully disagree with the conclusions that [appellant’s] headaches are
unrelated to is ICA injury and that he has no objective evidence of any disabling
condition in the report dated September 4, 2014. First, Dr. Stover argues that,
since his head pain is continuous, his head pain cannot be from postconcussive
syndrome. While postconcussive headaches can be intermittent, they can also be
continuous, as nowhere in the International Headache Society’s International
Classification of Headache Disorders ... is post-traumatic headache required to be
intermittent.... Dr. Stover also notes ... that the reason for his headaches has not
been established. In reality, it has ... the report never mentions any of my own
office notes ... in which [appellant] consistently reports disabling head pain. Two
different neurologists, myself and Dr. Bendheim, have opined that he has posttraumatic headaches. Finally, it is entirely reasonable that [appellant’s] headaches
are a direct result of his injury. First, he meets the IHS criteria for
post[-]traumatic headaches. Second, [appellant’s] head injury could have
specifically caused his pseudotumor pathology by way of causing increased
protein deposition on the arachnoid villi which reabsorb CSF fluid. Since the villi
would therefore be less efficient at absorbing CSF fluid, [stated] fluid would tend
to build up, increasing the pressure in his head. Also, because being overweight
3

Dr. Stover’s certification in a medical specialty could not be confirmed with the American Board of Medical
Specialties or the American Osteopathic Association.

5

is a significant risk factor for pseudotumor cerebri, it is possible that [appellant’s]
head injury led to depressed physical activity, that in turn led to weight gain.”
By letter dated October 8, 2014, OWCP informed appellant that it had determined a
conflict in the medical evidence existed between Drs. Tobin and Stover, and scheduled a referee
examination with a neurologist. The proposed termination would be reviewed once the referee
report had been received. The case record reveals that OWCP began the process of scheduling a
referee examination but did not receive a report from a referee examiner before terminating
appellant’s benefits.
OWCP finalized its termination of appellant’s medical benefits and wage-loss
compensation on November 5, 2014 without reference to a referee report. Instead, it based its
finalization of termination on Dr. Stover’s July 17, 2014 report, finding that the weight of
medical evidence rested with him.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.4 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.5 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.6
FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.7 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee or impartial examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.8

4

Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000).

5

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

6

Id.; Leonard M. Burger, 51 ECAB 369, 369 (2000).

7

5 U.S.C. § 8123(a).

8

20 C.F.R. § 10.321.

6

To be of probative value, a medical opinion must be based on a complete factual and
medical background, must be of reasonable medical certainty, and be supported by medical
rationale.9 Medical rationale is a medically sound explanation for the opinion offered.10
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.11
ANALYSIS
The Board finds that OWCP did not meet its burden to justify termination of benefits, as
there is an unresolved conflict in medical opinion between Dr. Stover and Dr. Tobin.12 For a
conflict to arise, the opposing physicians’ viewpoints must be virtually equal weight and
rationale.13 It is OWCP that bears the burden to justify modification or termination of benefits.14
OWCP based its decision to terminate appellant’s benefits on a July 17, 2014 report by
Dr. Stover, the second opinion physician, who conducted a physical examination and reviewed
his medical history. Dr. Stover concluded that the origin of appellant’s headaches were unknown
but that they were not consistent with the accepted condition of postconcussion syndrome.
In a September 29, 2014 report, Dr. Tobin indicated that appellant’s symptoms were in
fact consistent with postconcussion syndrome and that Dr. Stover’s July 17, 2014 report was
flawed. He additionally diagnosed appellant with pseudotumor cerebri, noting that his head
injury could have caused this pathology.
OWCP itself determined that a conflict in medical opinion existed between Drs. Stover
and Tobin and advised appellant as such in a letter dated October 8, 2014. Drs. Stover and Tobin
both reviewed appellant’s medical history and conducted physical examinations. However, their
findings are significantly divergent. Dr. Stover opines that appellant’s postconcussive syndrome
has resolved and is not currently the cause of his symptoms, whereas Dr. Tobin opines that
postconcussive syndrome and pseudotumor cerebri, both caused by the November 19, 2012
work-related injury, continued to be present. Thus, the Board finds that OWCP did not meet its
burden of proof to terminate appellant’s compensation benefits effective November 5, 2014. As
of that date a conflict in medical opinion existed between Dr. Stover and Dr. Tobin. Each
9

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

10

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound, and logical).
11

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

12

FECA provides that, if there is disagreement between the physician making the examination for OWCP and the
employee’s physician, OWCP shall appoint a third physician who shall make an examination. See 5 U.S.C.
§ 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).
13

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

14

See Curtis Hall, 45 ECAB 316 (1994).

7

physician had the opportunity to examine appellant and review the diagnostic studies of record.
With respect to the existence and extent of any ongoing employment-related residuals, the Board
finds that the relevant and probative medical evidence is in equipoise.
As OWCP failed to base its decision on resolution of the opinion evidence, the Board
finds that it did not meet its burden of proof to terminate appellant’s benefits. Referral to an
impartial medical specialist is warranted. Accordingly, OWCP’s decision to terminate
appellant’s compensation and medical benefits is reversed.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective November 5, 2014.
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 19, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, MEDICAL CENTER
STATION, Houston, TX, Employer
__________________________________________

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

Docket No. 10-1586
Issued: February 18, 2011

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 May 24, 2010 appellant filed a timely appeal from a December 14, 2009 merit
decision of the Office of Workers’ Compensation Programs granting him a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
schedule award decision.
ISSUE
The issue is whether appellant has more than eight percent permanent impairment of the
right upper extremity.
FACTUAL HISTORY
The Office accepted that on May 21, 2008 appellant, then a 55-year-old city carrier,
sustained a sprain of the acromioclavicular (AC) joint of the right shoulder and a sprain of the
upper arm and right rotator cuff in the performance of duty. On August 13, 2008 appellant
underwent authorized surgery to repair a full-thickness tear of the right rotator cuff. He returned
to work full time on February 13, 2009.

On April 30, 2009 appellant filed a claim for a schedule award. In a July 14, 2009
impairment evaluation, Dr. Wright W. Singleton, who specializes in occupational medicine,
diagnosed internal derangement of the right shoulder. On examination, he noted moderate
crepitus with full strength in the right shoulder. He found that appellant had reached maximum
medical improvement. Applying the fourth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment, (4th ed. 1993) (A.M.A., Guides),
Dr. Singleton concluded that appellant had 8 percent impairment due to loss of range of motion
and 12 percent impairment due to moderate crepitus of the right shoulder. He selected the higher
value to find a total right upper extremity impairment of 12 percent.
On August 20, 2009 the Office referred appellant to Dr. James Hood, a Board-certified
orthopedic surgeon, for an impairment evaluation under the sixth edition of the A.M.A., Guides.
In a September 17, 2009 report, Dr. Hood found some right arm atrophy, scapular winging and
impingement. He measured range of motion for the right shoulder of 30 degrees extension, 90
degrees flexion, 90 degrees abduction, 40 degree adduction, 60 degrees internal rotation and 70
degrees external rotation. Dr. Hood discussed the diagnosis-based impairment ratings set forth
in the sixth edition of the A.M.A., Guides. He found, however, that he could not use the
diagnosis-based impairments because of the abnormal motion. Applying Table 15-34 on page
475 of the A.M.A., Guides, Dr. Hood determined that 50 degrees extension yielded no
impairment, 90 degrees flexion yielded three percent impairment, 90 degrees abduction yielded
three percent impairment, 40 degrees adduction yielded no impairment, 70 degrees external
rotation yielded no impairment and 60 degrees internal rotation yielded two percent impairment.1
He added the impairments due to loss of range of motion to find an eight percent right arm
impairment.
On October 20, 2009 the Office medical adviser concurred with Dr. Hood’s finding that
appellant had eight percent right shoulder impairment due to loss of range of motion.
By decision dated December 14, 2009, the Office granted appellant a schedule award for
an eight percent impairment of the right arm. The period of the award ran for 24.96 weeks from
September 9, 2009 to March 2, 2010.
On appeal appellant contends that Dr. Hood’s examination lacked the thoroughness of
Dr. Singleton’s examination, whose impairment rating should be given greater weight.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,2 and its
implementing federal regulations,3 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
1

Dr. Hood measured range of motion for extension as 30 percent rather than 50 percent.

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

2

loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.4 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate
schedule awards.5
ANALYSIS
The Office accepted that appellant sustained a sprain of the AC joint of the right shoulder
and a sprain of the upper arm and right rotator cuff on May 21, 2008. It authorized surgery to
repair a full-thickness tear of the right rotator cuff.
On April 30, 2009 appellant filed a claim for a schedule award. He submitted an
impairment evaluation dated July 14, 2009 from Dr. Singleton. Utilizing the fourth edition of the
A.M.A., Guides, Dr. Singleton found that appellant had 12 percent impairment of the right upper
extremity due to moderate crepitus. The applicable edition of the A.M.A., Guides for
determining impairments subsequent to May 1, 2009, however, is the sixth edition.
Dr. Singleton based his impairment determination on the fourth edition of the A.M.A., Guides.
A medical opinion not based on the appropriate edition of the A.M.A., Guides has diminished
probative value in determining the extent of a claimant’s permanent impairment.6
The Office referred appellant to Dr. Hood for a second opinion examination. On
September 17, 2009 Dr. Hood measured range of motion for the right shoulder and concluded
that appellant had eight percent impairment due to loss of range of motion. He noted that the
sixth edition of the A.M.A., Guides provided a diagnosis-based evaluation method but found that
this method was not applicable given the loss of range of motion. The Shoulder Regional Grid
set forth in Table 15-5 of the sixth edition of the A.M.A., Guides indicates that a full thickness
rotator cuff tear yields from a one to seven percent shoulder impairment, depending on the class
of impairment and grade modifiers. Table 15-5 marks the shoulder impairment due to a rotator
cuff tear with an asterisk. The asterisk provides that, if motion loss is present, the shoulder
impairment may alternatively be assessed using loss of range of motion.7 The impairment due to
loss of range of motion stands alone and is not combined with a diagnosis-based impairment.8
Dr. Hood thus properly applied Table 15-34, relevant to determining impairments of the shoulder
due to loss of range of motion, to his findings on examination. He determined that 50 degrees
extension yielded no impairment, 90 degrees flexion yielded three percent impairment, 90
degrees abduction yielded three percent impairment, 40 degrees adduction yielded no
impairment, 70 degrees external rotation yielded no impairment and 60 degrees internal rotation
4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

Fritz A. Klein, 53 ECAB 642 (2002).

7

A.M.A., Guides 403, 405, Table 15-5.

8

Id. at 405, Table 15-5.

3

yielded two percent impairment, which he added to find a total right arm impairment of eight
percent. An Office medical adviser concurred with Dr. Hood’s finding. The Board notes,
however, that Dr. Hood measured extension of 30 degrees rather than 50 degrees, which yields
an addition one percent impairment of the shoulder.9
On appeal appellant argues that the opinion of Dr. Singleton should be given greater
weight because he provided a more thorough examination. As noted, however, he based his
impairment rating on the fourth edition of the A.M.A., Guides, which is no longer used by the
Office for schedule award determinations. Consequently, Dr. Singleton’s opinion is of
diminished probative value.10
CONCLUSION
The Board finds that appellant has a nine percent impairment of the right arm.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed as modified to reflect that appellant has a nine
percent right arm impairment.
Issued: February 18, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9

Id. at 475, Table 15-34.

10

Fritz A. Klein, supra note 6.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 13-1965
Issued: February 11, 2014

Case Submitted on the Record

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

JURISDICTION
On August 26, 2013 appellant, through her attorney, filed a timely appeal from the
July 22, 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 to review this decision.
ISSUE
The issue is whether appellant’s knee and low back conditions are causally related to her
federal employment.
FACTUAL HISTORY
On April 8, 2011 appellant, a 54-year-old mail handler, filed an occupational disease
claim alleging that her knee pain, back pain and arthritis were a result of her federal employment.
She stated: “I never had these symptoms prior to employment with U.S. Postal Service.”
1

5 U.S.C. § 8101 et seq.

Appellant noted that on a daily basis she walked on concrete floors, twisted and lifted,
strenuously lifted heavy equipment and threw the weight of parcels over her head. She added
that her injury was becoming progressively worse. Appellant first became aware of her
condition on December 11, 2010.
A March 2007 study of the right knee showed mild degenerative disease at the medial
joint space and suprapatellar effusion with no obvious fracture. The following month appellant
was restricted to light duty.2 In 2009, she was noted to have long-standing bilateral knee pain.
Appellant had back pain every two to three months lasting four to five days. In 2010, it was
noted that her condition would cause episodic flare-ups periodically preventing her from
performing her job functions.
Appellant attributed the lack of cartilage in her knee joints to wear and tear when pushing
equipment and walking on concrete without a mat for 8 to 12 hours a day, sometimes 7 days a
week during holiday season. Effective April 1, 2011, she was prescribed light duty.
On April 6, 2011 Dr. Lance D. Atkinson, Board-certified in occupational medicine,
completed an attending physician’s form report. He noted a traumatic injury on December 11,
2010. At 9:50 a.m. appellant injured her left low back and right knee while pulling on a rope to
pull up a deck plate. Dr. Atkinson noted that appellant had a right knee contusion in 2007,
preexisting degenerative disc disease in the lumbar spine and preexisting degenerative arthritis to
the lumbar spine and right knee. He diagnosed lumbar back strain, complicated by degenerative
disc disease and osteoarthritis and right knee strain, complicated by degenerative osteoarthritis.
With an affirmative mark, Dr. Atkinson indicated that these conditions were caused or
aggravated by employment activity: “But, not the degenerative disc disease or osteoarthritis.”
Appellant was given work restrictions because of her bilateral knee pain, severe
osteoarthritis and instability.
In a July 28, 2011, decision, OWCP denied appellant’s occupational disease claim. It
found that the medical evidence did not demonstrate that the claimed medical conditions were
causally related to the accepted work events. OWCP stated: “Your physician must explain how
the work event(s) caused or affected your condition, based upon an accurate factual and medical
history, citing objective findings in support of the opinion.”
The record indicates that appellant underwent a total right knee replacement in June 2011
and was kept off work. OWCP received work capacity evaluations and other medical
documentation pertaining to her condition.
In a February 2, 2012, decision, an OWCP hearing representative affirmed the denial of
appellant’s occupational disease claim. The hearing representative found that she failed to
provide a medical opinion supporting that her current knee condition was causally related to the
implicated employment duties. She explained that the treatment notes that OWCP received did
not provide a well-reasoned opinion supporting that appellant sustained a worsening of her
preexisting right knee condition causally related to her postal employment. The record contained
2

It appears the front of a general purpose container struck her knee on March 28, 2007.

2

work restrictions and disability slips but no formal discussion of whether appellant’s job duties
caused a worsening of the condition resulting in knee surgery.
Appellant requested reconsideration and submitted various physical therapy records from
a rehabilitation clinic. She also submitted treatment notes.
On July 5, 2012 Dr. R. David Heekin, a Board-certified orthopedic surgeon, completed a
form report entitled “Rationalized Medical Opinion Form to establish Causal Relationship.”
Appellant complained of moderate pain at times and occasional aching and throbbing. X-rays
showed her prosthesis to be in stable position with good alignment and no loosening. Dr. Heekin
stated: “Current job can/may aggravate symptoms.” The bottom of the page read: “In my
medical opinion, the facts of injury are the direct and proximate cause of the diagnosis that I
cited above. This is based on reasonable medical probability. There may be other causes for this
medical problem, but one of the causes is clearly the activities of work described [by] the patient
and described above.”
In a July 30, 2012, decision, OWCP reviewed the merits of appellant’s case and denied
modification of its prior decision. It found that Dr. Heekin’s opinion was speculative and not
based on a detailed history of what she did at work. OWCP found more generally that the
medical evidence did not support that appellant’s bilateral knee and lumbar conditions were
caused or aggravated by her day-to-day duties.
Appellant again requested reconsideration. She submitted medical documents from
April 2006 to October 2008, including treatment notes, a radiology report and an epidural
procedure.
On May 31, 2013 Dr. Heekin completed another “Rationalized Medical Opinion Form to
establish Causal Relationship.” He again stated that appellant’s current job “can/may aggravate
symptoms.”
In a July 22, 2013, decision, OWCP reviewed the merits of appellant’s case and denied
modification of its prior decision. It found that none of the newly submitted medical evidence
presented a reasoned opinion explaining whether specific employment duties caused or
aggravated appellant’s back or knee conditions.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or

3

5 U.S.C. § 8102(a).

3

exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.4
Causal relationship is a medical issue5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,6 must be
one of reasonable medical certainty7 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.8
ANALYSIS
OWCP does not dispute the duties appellant performed as a mail handler and accepts that
she performed her duties as alleged. Appellant has thus met her burden to establish that she
experienced a specific event, incident or exposure occurring at the time, place and in the manner
alleged. The question that remains is whether her duties caused an occupational disease.
To discharge her burden of proof, appellant must submit a well-reasoned medical opinion
explaining how her duties caused a diagnosed medical condition. There are only three
documents in the record that address this issue. Dr. Atkinson, the specialist in occupational
medicine, completed a form report in April 2011. He diagnosed a lumbar back strain and right
knee strain and he indicated with an affirmative mark that these conditions were caused or
aggravated by an incident on December 11, 2010. Dr. Atkinson did not explain. He stated only
that the incident did not cause or aggravate appellant’s degenerative disc disease or osteoarthritis.
Medical conclusions unsupported by rationale are of little probative value.9 Because
Dr. Atkinson offered no rationale to support his opinion on causal relationship, his opinion has
little probative value and does not discharge appellant’s burden of proof. Further, the issue
raised by appellant’s occupational disease claim is whether her duties as a mailhandler -- she
describes walking on concrete floors, twisting and lifting, lifting heavy equipment, throwing the
weight of parcels over her head -- caused or aggravated any of her diagnosed medical conditions.
Dr. Atkinson did not address this. Instead, he noted an incident on December 11, 2010, which is
not the subject of appellant’s occupational disease claim.
Dr. Heekin, the orthopedic surgeon, completed two form reports entitled “Rationalized
Medical Opinion Form to establish Causal Relationship,” in which he stated: “Current job
can/may aggravate symptoms.” He did not describe appellant’s current job or any of the duties
4

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

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

9

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

4

she performed and he did not explain how work activities caused any diagnosed medical
condition.
Medical conclusions based on inaccurate or incomplete histories are also of little
probative value.10 The boilerplate language at the bottom of these forms is nonspecific. It is
meant to cover any patient, any work activity and any medical problem. For that reason, it does
not supply the medical rationale necessary to establish that appellant’s particular medical
conditions are causally related to her particular employment factors. Further, Dr. Heekin’s
opinion that appellant’s current job “can/may” aggravate symptoms is speculative. It does not
state that an aggravation occurred.11
The Board finds that appellant has not met her burden of proof. The medical opinion
evidence is insufficient to establish the critical element of causal relationship. The Board will
therefore affirm OWCP’s July 22, 2013 decision.
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 not met her burden of proof to establish that her knee
and low back conditions are causally related to her federal employment.

10

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
11

See Philip J. Deroo, 39 ECAB 1294 (1988) (although the medical opinion of a physician supporting causal
relationship does not have to reduce the cause or etiology of a disease or condition to an absolute medical certainty,
neither can such opinion be speculative or equivocal); Jennifer Beville, 33 ECAB 1970 (1982) (statement of a Boardcertified internist that the employee’s complaints “could have been” related to her work injury was speculative and of
limited probative value).

5

ORDER
IT IS HEREBY ORDERED THAT the July 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BOARD OF VETERANS APPEALS,
Washington, DC, Employer
__________________________________________

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

Docket No. 19-0087
Issued: June 26, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 16, 2018 appellant filed a timely appeal from an April 19, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he developed
hearing loss and tinnitus causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On September 15, 2015 appellant, then a 38-year-old associate attorney, filed an
occupational disease claim (Form CA-2) alleging that he sustained hearing loss and tinnitus due
to noise exposure in the course of his federal employment. He stated that, for the period
1

5 U.S.C. § 8101 et seq.

November 2014 to February 2015, extensive work was done on the sub-level garages at the
employing establishment. The work was done from 9:00 a.m. to 5:00 p.m., Monday through
Friday, while appellant was working on the first level of the building. He indicated that the noise
was “exceedingly loud inside, 170 [decibels].”
On February 24, 2016 OWCP referred appellant to Dr. Stephen Bane, a Board-certified
otolaryngologist, for a second opinion evaluation to determine the nature and extent of his hearing
loss and tinnitus. It scheduled the examination for March 10, 2016.
By decision dated March 28, 2016, OWCP denied appellant’s claim finding that the
medical evidence of record failed to establish causal relationship between his hearing loss and
tinnitus and his accepted employment exposure to noise.
OWCP received Dr. Bane’s March 10, 2016 report on March 29, 2016. Dr. Bane reviewed
a statement of accepted facts, history of the injury, and the medical evidence of record. He
conducted a physical examination and found that appellant’s ear canals and drums were normal.
Drum motility was normal and the results of basic tuning fork testing was normal. Dr. Bane
diagnosed mild high-frequency hearing loss in the left ear, but opined that the sensorineural
hearing loss was not causally related to the noise exposure encountered in appellant’s federal
employment. He explained that most people start to lose hearing in their 40s and if appellant’s
hearing loss was secondary to noise exposure, both ears would have been expected to have loss.
Dr. Bane noted that appellant only had mild hearing loss on the left side and concluded that “noise
exposure from construction in a garage below the building [was] most likely not significant enough
to have caused a hearing loss, let alone the loss in question.” He reiterated that if appellant did
have hearing loss, it should have been symmetrical.
On April 29, 2016 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. A telephonic hearing was held on August 10, 2016. Appellant
provided testimony and the hearing representative held the case record open for 30 days for the
submission of additional evidence. OWCP did not receive additional evidence.
By decision dated September 27, 2016, OWCP’s hearing representative affirmed the
March 28, 2016 decision.
On August 25, 2017 appellant requested reconsideration and submitted new medical
evidence in support of his claim, including a June 21, 2017 report from Dr. Timothy J. O’Brien, a
Board-certified otolaryngologist. Dr. O’Brien opined that “the only reasonable explanation is that
[appellant’s] hearing loss and tinnitus [were], more likely than not, caused by or aggravated by the
noise [he] was exposed to at 425 I.”
In a letter dated January 30, 2018, appellant informed OWCP of a change of address from
Manassas to Bristow, Virginia. OWCP received his request on February 2, 2018
By letter dated February 6, 2018, OWCP acknowledged receipt of appellant’s change of
address request and noted that action had been taken to change his address for the purposes of case
management and compensation payments. This letter was sent to his updated address in Bristow,
Virginia.

2

In a memorandum dated February 15, 2018, OWCP indicated that it had requested an
addendum report from its second opinion examiner, Dr. Bane, with regard to appellant’s hearing
loss claim.
In a letter dated March 29, 2018, OWCP indicated that it had scheduled an appointment on
April 10, 2018 at 1:00 p.m. for appellant to be reexamined by Dr. Bane for a supplemental second
opinion examination. It noted that he was to refrain from exposure to loud noises for at least 16
hours prior to his examination. This letter was sent to appellant’s former address in Manassas,
Virginia.
In a subsequent letter dated April 4, 2018, OWCP indicated that it had scheduled an
appointment on April 19, 2018 at 9:30 a.m. for appellant to be reexamined by Dr. Bane for a
supplemental second opinion examination. This letter was also sent to appellant’s former address
in Manassas, Virginia.
In an e-mail message dated April 19, 2018, OWCP’s medical referral group advised the
claims examiner that appellant had not appeared for the appointment that was scheduled for that
day at 9:30 a.m.
By decision dated April 19, 2018, OWCP denied modification of its prior decision. It noted
that appellant was scheduled to be reevaluated by a second opinion specialist, Dr. Bane, on
April 19, 2018 at 9:30 a.m. and appellant had not shown up for the examination.”
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or

2

Id.

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
In administering FECA, OWCP must attempt to obtain any evidence which is necessary
for the adjudication of the case which is not received when the notice or claim is submitted. Some
initial claims require full-scale medical development because the nature of exposure is in question,
the diagnosis is not clearly identified, or the relationship of the condition to the exposure is not
obvious. Certain types of conditions, such as hearing loss and asbestosis claims, require OWCP
to refer the claimant for examination by a qualified specialist if the report submitted by the claimant
does not meet all of its requirements for adjudication.7
It is presumed, in the absence of evidence to the contrary, that a notice mailed to an
individual in the ordinary course of business was received by that individual.8 This presumption
arises when it appears from the record that the notice was properly addressed and duly mailed.9
The appearance of a properly addressed copy in the case record, together with the mailing custom
or practice of the sender, will raise a presumption that the original was received by the addressee.
However, as a rebuttable presumption, receipt will not be assumed when there is evidence of
nondelivery.10 Also, it is axiomatic that the presumption of receipt does not apply where a notice
is sent to an incorrect address.11
ANALYSIS
The Board finds that this case is not in posture for decision.
On February 2, 2018 OWCP received a letter dated January 30, 2018 from appellant
informing OWCP of a change of address from Manassas to Bristow, Virginia. It acknowledged
its receipt of his change of address request in a letter dated February 6, 2018. This letter was sent
to appellant’s current address in Bristow, Virginia. However, OWCP sent two notices dated
March 29 and April 4, 2018, informing him that it had scheduled a supplemental second opinion
examination to his former address in Manassas, Virginia before issuing its April 19, 2018 decision
finding that he failed to appear for a reevaluation examination by Dr. Bane scheduled for
April 19, 2019. Because it had not mailed its correspondences to appellant’s current home address,
the presumption of receipt under the mailbox rule is rebutted.12 For this reason, the Board finds
6

D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.9 (June 2011).
See also id. at Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600 (October 1990).
8

George F. Gidicsin, 36 ECAB 175 (1984) (when OWCP sends a letter of notice to a claimant, it must be presumed,
absent any other evidence, that the claimant received the notice).
9

Michelle R. Littlejohn, 42 ECAB 463 (1991).

10

See C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-0526 (issued September 14, 2009).

11

See M.C., Docket No. 17-0613 (issued August 7, 2018); Clara T. Norga, 46 ECAB 473 (1995); see also W.A.,
Docket No. 06-1452 (issued November 27, 2006).
12

Id.

4

that OWCP effectively denied his claim without proper notice and opportunity to attend the
scheduled medical examinations.13
Accordingly, the Board finds that this case is not in posture for decision. The Board will
set aside OWCP’s April 19, 2018 decision denying appellant’s claim. The case is remanded for
issuance of notice to his proper home address detailing the date, time, and location of his
appointment for a supplemental second opinion examination to determine the nature and extent of
his tinnitus and hearing loss.14 After such further development as may be necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 19, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.
Issued: June 26, 2019
Washington, DC

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

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

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

13

L.R., Docket No. 14-0361 (issued June 5, 2014) (remanding a case to OWCP because a development letter was
not sent to the address shown on appellant’s claim form).
14

A.B., Docket No. 15-0290 (issued May 4, 2015).

5


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

)
)
)
)
)
)
)
)

Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0707
Issued: November 30, 2020

Case Submitted on the Record

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

JURISDICTION
On February 7, 2020 appellant, through counsel, filed a timely appeal from an August 22,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
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
3

5 U.S.C. § 8101 et seq.

The Board notes that following the August 22, 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.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective August 22, 2019.
FACTUAL HISTORY
On July 2, 2018 appellant, then a 42-year-old part-time flexible clerk, filed a traumatic
injury claim (Form CA-1) alleging that on June 28, 2018 she sustained a left knee injury when she
attempted to move a mail pallet and put her hand up to stop a package from falling off and twisted
her knee while in the performance of duty. She did not stop work, but began working in a lightduty position on July 2, 2018. OWCP accepted appellant’s claim for left knee sprain. Appellant
stopped work on August 18, 2018 and OWCP paid her wage-loss compensation for disability from
work on the supplemental rolls commencing on the same date.
In a July 12, 2018 report, Dr. Nalan Reibschied, a Board-certified family medicine
physician, discussed appellant’s June 28, 2018 accident at work and diagnosed left knee sprain.
In a September 28, 2018 report, Dr. Edward G. Dempsey, an osteopath and Board-certified
internist, indicated that appellant was undergoing evaluation at a medical facility for chronic left
knee pain. He advised that he would be following up with her in November 2018 to reevaluate
her symptoms and noted that she needed to be off work until that time. On November 2, 2018
Dr. Dempsey advised that appellant should remain off work until December 14, 2018.
On November 20, 2018 OWCP referred appellant for a second opinion examination with
Dr. Robert F. Draper, a Board-certified orthopedic surgeon. It provided a copy of the case record,
including a recent statement of accepted facts (SOAF) and a series of questions, and requested that
he provide an opinion regarding whether she continued to have residuals and disability from work
due to the accepted June 28, 2018 employment injury.
In a December 11, 2018 report, Dr. Draper detailed appellant’s factual and medical history,
noting that she sustained a left knee sprain while moving a pallet at work on June 28, 2018. He
summarized her medical treatment since the injury and indicated that upon examination by her
attending physicians she at times complained of pain upon light touch of the left knee. Dr. Draper
reported the findings of his physical examination on December 11, 2018, noting that her left knee
had full extension and 120 degrees of flexion and that there was no left knee valgus/varus
instability at full extension and 30 degrees of flexion. The Lachman’s, Homan’s, anterior drawer
and posterior signs were all normal, and there was no effusion or crepitus in the left knee.
Dr. Draper noted that he could not detect that appellant’s lower extremities had different
temperatures. He advised that she reported tenderness upon touching of the left knee, but noted
that, with extra care, she did tolerate the examination. Dr. Draper indicated that he looked to see
if there was purplish discoloration or mottling of the left lower extremity, as one would see in
complex regional pain syndrome (CRPS), but he did not see discoloration or mottling. He
diagnosed left knee sprain and rule out unusual presentation for CRPS. Dr. Draper indicated that
appellant’s left knee and lower extremity complaints appeared to be unusual in terms of the degree
of the reported pain. He maintained that the examination did not show signiﬁcant mechanical
pathology of the left knee and that diagnostic testing did not show internal derangement of the
knee. Dr. Draper noted that the physical examination he performed “really does not exactly ﬁt
2

CRPS,” but also advised that “[appellant’s] level of complaints in the left knee is suggestive of
that.” He indicated that a lumbar sympathetic block was sometimes carried out in order to
determine a patient’s response and noted that, in patients with CRPS, a lumbar sympathetic block
could result in signiﬁcant pain relief and serve a diagnostic purpose. Dr. Draper indicated that he
was not at all sure that appellant had CRPS, but he maintained that a lumbar sympathetic block
could be considered in order to conﬁrm the diagnosis of CRPS.4
Dr. Draper indicated that appellant’s objective ﬁndings upon examination did not fully
support her subjective complaints. In response to OWCP’s instruction to provide a list of “all
current diagnoses causally connected to the [June 28, 2018] work injury,” he noted that the current
diagnosis related to the employment injury was the sprain of the left knee as documented in the
SOAF. Dr. Draper noted that, earlier in his report, he had discussed the possibility of appellant
having CRPS and indicated that he did not believe a diagnosis of CRPS had been established.
However, he noted that the issue had also been addressed earlier in his report. In response to a
question about whether appellant’s work-related condition had resolved, Dr. Draper indicated, “I
believe that the contusion for the left knee is not completely resolved. The work-related condition
for the left knee may or may not be related to CRPS. That issue is not related.” With respect to
the need for further treatment, he advised that a diagnostic lumbar sympathetic block could be
carried out. Dr. Draper indicated that appellant could perform light-duty work that did not require
her to lift more than 20 pounds occasionally and 15 pounds frequently and recommended that she
avoid excessive standing, walking, or climbing. He noted that these were temporary restrictions
and indicated that her recovery would determine her work capabilities. In a December 11, 2018
work capacity evaluation report (Form OWCP-5c), Dr. Draper indicated that appellant could not
perform her regular job, but opined that she could work for eight hours per day with restrictions.
He advised that his recommended work restrictions would apply for two months and noted that
she could sit for six hours per day, walk or stand for four hours, squat for one hour, and
push/pull/lift 20 pounds occasionally and 15 pounds frequently. Appellant could not engage in
kneeling or climbing.
Appellant submitted a December 14, 2018 report from Dr. Dempsey who noted that she
continued to report significant left knee/lower leg pain related to her June 28, 2018 employment
injury. Dr. Dempsey diagnosed left knee pain, chronic pain syndrome, and neuralgia/neuritis. In
a December 14, 2018 note, he advised that appellant would not be able to return to work until her
next appointment on February 15, 2019.
On January 23, 2019 OWCP offered appellant a full-time position as a modified part-time
flexible clerk. The job involved casing and distributing mail and contained restrictions on such
activities as walking, standing, pushing, pulling, and lifting. Appellant refused the offered position
on January 29, 2018 citing her continuing left knee pain.
In a January 31, 2019 report, Dr. Dempsey referenced appellant’s June 28, 2018
employment injury and noted that she was unable to work due to persistent severe, sharp pain in
her left knee. He advised that she had numbness and tingling down her left leg into her foot/ankle
4
Dr. Draper noted that appellant had a pain pump which could pose problems if used at the same time she underwent
a lumbar sympathetic block. He advised that, if she were to undergo a lumbar sympathetic block, she should avoid
using the catheter of the pain pump and not carry out additional intrathecal injections as these were already being
received through the pain pump.

3

and that she was unable to stand for more than two minutes at a time. Appellant also was unable
to sit for more than 15 minutes at a time due to experiencing severe pain in that position. In a note
dated February 15, 2019, Dr. Dempsey indicated that she was disabled until March 15, 2019.
In a March 1, 2019 letter, OWCP advised appellant of its determination that the modified
part-time flexible clerk position offered by the employing establishment was suitable. It informed
her that her compensation would be terminated if she did not accept the position or provide good
cause for not doing so within 30 days of the date of the letter.
Appellant subsequently submitted a February 15, 2019 report from Dr. Dempsey who
recommended that she undergo a sympathetic nerve block of her left leg given the severity of her
symptoms. In a February 28, 2019 note, Dr. Brian S. Jacobs, an osteopath Board-certified in
orthopedic surgery, advised that, based on the pain levels observed upon examination, she should
not work until she was seen by a pain management specialist or completed a functional capacity
examination. In a note of even date, Dr. Erik O’Connell, an osteopath Board-certified in
rheumatology, indicated that appellant should not work until she was seen by a pain management
specialist or evaluated by a physical therapist for functional assessment. In March 15, 2019
reports, Dr. Dempsey addressed her left leg condition and found that she was disabled until
April 16, 2019. On May 7, 2019 he recommended that appellant stay off work until June 25, 2019.
In a May 23, 2019 letter, OWCP advised appellant that her reasons for not accepting the
modified part-time flexible clerk position offered by the employing establishment were unjustified.
It advised her that her compensation would be terminated if she did not accept the position within
15 days of the date of the letter.5
In a June 18, 2019 notice, OWCP advised appellant that it proposed to terminate her wageloss compensation and medical benefits, effective August 22, 2019, as she no longer had residuals
or disability causally related to her accepted June 28, 2018 employment injury. It indicated that
the weight of the medical opinion evidence with respect to employment-related residuals/disability
rested with the December 11, 2018 opinion of Dr. Draper, an OWCP referral physician. OWCP
afforded appellant 30 days to submit evidence and argument challenging the proposed termination
action.
Appellant subsequently submitted a May 7, 2019 report from Dr. Dempsey who diagnosed
causalgia of the left lower limb, neuralgia/neuritis, chronic pain syndrome, and left knee pain. On
June 25, 2019 Dr. Dempsey noted that she continued to report left knee/leg pain.
By decision dated August 22, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date, as she no longer had residuals or disability
causally related to her accepted June 28, 2018 employment injury. It found that the weight of the
medical opinion evidence with respect to employment-related residuals/disability rested with the
December 11, 2018 opinion of Dr. Draper, an OWCP referral physician.

5
The Board notes that the case record provides no indication that OWCP pursued the matter of appellant’s refusal
of the modified position offered by the employing establishment after sending her the May 23, 2019 letter.

4

LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.6 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.7 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.8
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective August 22, 2019.
The Board finds that the December 11, 2018 opinion of Dr. Draper, which served as the
basis of OWCP’s termination action, does not provide a well-rationalized, unequivocal opinion
that appellant had no residuals or disability related to the accepted June 28, 2018 employment
injury on or after August 22, 2019.9 In his December 11, 2018 report, Dr. Draper discussed her
history of medical treatment and reported her continuing complaints of left knee symptoms. He
detailed the physical examination findings, which included findings of left knee pain upon
palpation, and diagnosed left knee sprain. In response to OWCP’s instruction to provide a list of
“all current diagnoses causally connected to the [June 28, 2018] work injury,” Dr. Draper noted
that the current diagnosis related to the employment injury was a left knee sprain. The Board notes
he did not provide a clear opinion that the accepted June 28, 2018 employment injury, a left knee
sprain, had resolved. In addition, Dr. Draper indicated in response to a question about whether
appellant’s work-related condition had resolved that “the contusion for the left knee is not
completely resolved.” While it is unclear why, in this portion of his report, he referenced an
employment-related left knee contusion rather than the accepted left knee sprain, he nevertheless
provided an opinion that she continued to have employment-related residuals.
The Board notes that other aspects of Dr. Draper’s December 11, 2018 report render his
opinion on continuing employment-related residuals/disability equivocal in nature and, therefore,
of limited probative value. Dr. Draper provided an extensive discussion regarding whether
appellant had CPRS in her left lower extremity. In parts of his report, he suggested that her
physical examination did not support a diagnosis of CPRS, but he also advised that her “level of
complaints in the left knee is suggestive of that.” Dr. Draper also did not provide a clear opinion
regarding whether, if established, a CPRS condition would have been caused, in total or in part,
by an employment-related cause. For example, he indicated, “The work-related condition for the

6

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
7
See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
8

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9

See id.

5

left knee may or may not be related to CRPS.10 The Board has held that a medical opinion which
is equivocal in nature is of limited probative value regarding a given medical question.11 In addition,
Dr. Draper recommended a number of work restrictions regarding such activities as walking,
standing, squatting, kneeling, climbing, and lifting. However, he did not indicate what medical
conditions, whether employment related or not, would necessitate such restrictions. Moreover,
Dr. Draper advised that the restrictions would only be temporarily in place for two months without
explaining the reason for their temporary nature.
For these reasons, OWCP has not met its burden of proof to terminate her wage-loss
compensation and medical benefits, effective August 22, 2019.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective August 22, 2019.
ORDER
IT IS HEREBY ORDERED THAT the August 22, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10

Dr. Draper also suggested that his evaluation of appellant was incomplete by recommending that she undergo a
lumbar sympathetic block of the left lower extremity to determine whether a diagnosis of CPRS was warranted.
11

See E.B., Docket No. 18-1060 (issued November 1, 2018); Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).

6