United States Department of Labor
Employees’ Compensation Appeals Board
_______________________________________________
A.W., Appellant
and
DEPARTMENT OF HOUSING & DEVELOPMENT,
REGION III, PHILADELPHIA, C/O LIFECARE
MANAGEMENT PARTNERS, Alexandria, VA,
Employer
_______________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
) Docket No. 09-2129
) Issued: August 24, 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 August 18, 2009 appellant filed a timely appeal from a May 19, 2009 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of her claim.
ISSUE
The issue is whether appellant has established that she sustained bilateral upper extremity
and cervical conditions causally related to her federal employment.
On appeal appellant’s representative contends that the treating physician submitted
sufficient evidence to establish appellant’s claim. In the alternative, the medical evidence of
record is in conflict and requires further development.

FACTUAL HISTORY
On January 3, 2007 appellant, a 54-year-old secretary, filed an occupational disease claim
(Form CA-2) for right shoulder, arm, wrist and neck injuries as well as left arm, wrist and hand
injuries. These conditions produced pain, a burning sensation as well as arm and wrist weakness
which she alleges prevented her from lifting her arm, typing and writing.1 Appellant attributed
her condition to reaching, pulling and lifting activities she performs in furtherance of her
employment duties. She also relates that because her computer workstation is not at a proper
height she sustained shoulder and neck pain. Appellant first recognized her condition and that it
was caused by her federal employment on August 23, 2004.
Appellant submitted a December 7, 2005 report in which Dr. Scott M. Fried, an
orthopedic surgeon, reported findings on examination and diagnosed right ulnar and median
neuropathy, right brachial plexopathy, right cervical radiculopathy, right shoulder capsulitis and
right rotator cuff tear as well as a repetitive stress injury. Dr. Fried reviewed appellant’s
employment duties and course of treatment. He opined that repetitive reaching and an awkward
typing posture produced a tear in appellant’s rotator cuff, brachial plexus nerve injury and ulnar
and medial nerve injury. Dr. Fried explained that inflammation of the shoulder and involvement
of the surrounding nerve structures as they passed above the shoulder and axilla resulted in a
fixed brachial plexus nerve injury. He also noted that repetitive reaching and lifting involved the
ulnar and median nerves on a secondary basis. Dr. Fried recommended that appellant’s job be
modified so that reaching and lifting were no longer performed.
By decision dated April 3, 2007, the Office accepted that appellant identified
employment factors she considered responsible for her condition but denied the claim, finding
the evidence of record did not demonstrate that her claimed medical condition was caused by the
established employment factors.
On April 5, 2007 appellant, through her attorney, requested an oral hearing.
On April 9, 2007 Dr. Fried again diagnosed right ulnar and median neuropathy, right
brachial plexopathy and cervical radiculopathy, right neuritis, repetitive strain injury and
possible bilateral median nerve carpal tunnel. He opined that appellant’s condition is “directly
and causally related to her work activity.” Dr. Fried related that appellant’s work injuries
disabled her from work to the point that she “exacerbated with respect to her right shoulder and
brachial plexus symptoms and had to leave work.” He noted that appellant’s repetitive
employment activities “worsened her symptomology and also progressed her repetitive strain or
cumulative traumas.” Appellant continued to submit additional reports from Dr. Fried.
Following a hearing conducted on July 27, 2007 the Office, by decision dated October 2,
2007, vacated its April 3, 2007 decision and remanded appellant’s claim for further development.
It found Dr. Fried’s opinion, particularly those contained in his December 7, 2005 and April 9,
2007 reports, sufficient to require the further development, including examination by an Office
physician. On remand, the Office referred appellant, together with a list of questions and
1

Appellant has another claim, No. xxxxxx429, that the Office accepted for right shoulder repetitive strain injury
and right shoulder torn rotator cuff.

2

statement of accepted facts for examination by Dr. Kevin F. Hanley, a Board-certified orthopedic
surgeon.
On November 30, 2007 Dr. Hanley diagnosed chronic pain syndrome “of unknown
etiology.” He opined that appellant “is not suffering from a condition directly related to work
activities” and that her chronic pain syndrome has a psychophysiological basis. In an addendum
to this report dated February 25, 2008, Dr. Hanley opines that there is “no way in my mind that
work exposure has led to the diagnosis I have outlined.”
On February 14, 2008 Dr. Steven J. Valentino, an orthopedic surgeon, reported that
magnetic resonance imaging (MRI) scans of appellant’s right shoulder revealed hypertrophic
changes of the supraspinatous tendon and a possible ganglion cyst, but no evidence of a rotator
cuff tear. An MRI scan of appellant’s cervical spine revealed disc bulges at the C6-7, C7-T1 and
T1-2 levels. Also present was an osteophyte complex at the C5-6 level. Dr. Valentino opined
that findings from a cervical MRI scan were consistent with a syrinx. In a February 26, 2008
note, he reiterated the findings from his February 14, 2008 report.
By decision dated March 30, 2008, the Office denied the claim, finding that, based on
Dr. Hanley’s November 30, 2007 report and subsequent addendum, the evidence of record did
not demonstrate that the claimed medical conditions were caused by the identified employment
factors.
On March 24, 2008 appellant, through her attorney, requested an oral hearing.
On May 14, 2008 Dr. Valentino reviewed appellant’s medical history, presented findings
on examination and diagnosed right rotator cuff tear, brachial plexopathy, thoracic outlet
syndrome, multiple peripheral neuropathies and aggravation of degenerative disc disease with
facet syndrome.
By decision dated June 17, 2008, the Office found the case not in posture for decision
because Dr. Hanley’s opinion was not sufficiently rationalized such that it could be afforded the
weight of the medical opinion evidence. It vacated its March 30, 2008 decision and remanded
appellant’s claim for further development, including a new second opinion evaluation.
The Office referred appellant for examination by Dr. Zohar Stark, a Board-certified
orthopedic surgeon. On September 23, 2008 Dr. Stark reviewed appellant’s history of injury,
presented findings on examination noting that he found no objective findings which
demonstrated appellant sustained any condition associated with her cervical spine or bilateral
upper extremities. He reported that examination of appellant’s cervical spine revealed no
tenderness over the spinous process of the cervical vertebrae, no tenderness over the supramedial
aspect of the right trapezius with no spasm, normal range of motion of the cervical spine.
Regarding appellant’s upper extremities, Dr. Stark found no apparent sensory or motor deficit,
and no tenderness of the left shoulder or loss of range of motion. He did find a scar over the
proximal aspect of appellant’s right shoulder and provided range of motion findings for the right
shoulder. Dr. Stark found no aggravation, either permanent or temporary, of appellant’s
accepted employment injuries. He found no basis for appellant’s claim that she has a cervical
and bilateral upper extremity condition that was caused or aggravated by her federal employment

3

duties. Dr. Stark opined that appellant is not disabled from performing her work as a secretary
and does not require any further medical treatment for her accepted medical conditions.
By decision dated October 16, 2008, the Office denied the claim, finding that the
evidence of record did not demonstrate appellant’s claimed medical condition was caused by the
established employment factors.
On October 22, 2008 Dr. Valentino presented findings on examination and diagnosed
right rotator cuff tear.
On October 22, 2008 appellant, through her attorney, requested an oral hearing.
Following a hearing, conducted February 25, 2009, the Office, by decision dated May 19,
2009, affirmed its October 16, 2008 decision, finding the evidence of record did not demonstrate
that appellant’s claimed medical condition was caused by the established employment factors.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (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 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.7

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

4

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.8
Section 8123 (a) of the Federal Employees’ Compensation Act9 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.
ANALYSIS
The Board finds this case not in a posture for decision because an unresolved conflict of
medical opinion exists between appellant’s attending physician, Dr. Fried, on one side, and the
Office’s examination physician, Dr. Stark, on the other.
Dr. Fried, in his multiple reports over the years, reviewed appellant’s medical history and
employment activities, and based upon his examination findings diagnosed right ulnar and
median neuropathy, right brachial plexopathy and cervical radiculopathy, right neuritis,
repetitive strain injury, possible bilateral median nerve carpal tunnel, right shoulder capsulitis
and partial thickness of the right rotator cuff. He opined that repetitive reaching and an awkward
typing posture produced a tear in appellant’s rotator cuff, brachial plexus nerve injury and ulnar
and medial nerve injury. Dr. Fried opined that appellant’s condition is “directly and causally
related to her work activity.” He related that appellant’s work injuries disabled her from work to
the point that she “exacerbated with respect to her right shoulder and brachial plexus symptoms
and had to leave work.” Dr. Fried noted that appellant’s repetitive employment activities
worsened her symptomatology and also progressed her repetitive strain or cumulative traumas.
Dr. Stark reviewed appellant’s history of injury, presented findings on examination and
reported he found no objective findings that appellant has any problem with her cervical or
bilateral upper extremities. He further found no aggravation, either permanent or temporary, of
appellant’s accepted employment injuries. Dr. Stark found no basis for appellant’s claim that she
has a cervical and bilateral upper extremity condition caused or aggravated by her federal
employment duties. He opined that appellant was not disabled from performing her work as a
secretary and does not require any further medical treatment for her accepted medical conditions.
The Board finds that the opinion of Dr. Stark, the Office’s examining physician, conflicts
with that of appellant’s attending physician, Dr. Fried, concerning the existence and extent of
8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
9

5 U.S.C. § 8123(a).

5

appellant’s condition. Accordingly, the case will be remanded for further medical development.
On remand, the Office should refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. After such development of the case record as the
Office deems necessary, a de novo decision shall be issued.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the May 19, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: August 24, 2010
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1274
Issued: May 11, 2009

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 April 1, 2008 appellant timely appealed a January 25, 2008 merit decision of the
Office of Workers’ Compensation Programs that affirmed the termination her compensation.
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 the Office properly terminated appellant’s compensation benefits on
August 5, 2006 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On November 21, 2002 appellant, then a 47-year-old letter carrier, sustained injury when
a pit bull bit her as she was delivering mail. The Office accepted a dog bite to the right forearm
with cellulitis and adhesive capsulitis of the right shoulder.1 Appellant stopped work on
1

The Office previously accepted that appellant sustained dog bites to both legs on June 28, 2002. Appellant was
released to full duty on August 29, 2002.

November 21, 2002 and did not return. On November 25, 2003 she underwent right shoulder
surgery, which included procedures for noninjury-related degenerative conditions. Due to
complications from the surgery and the adhesive capsulitis, the Office placed appellant on the
periodic rolls in October 2003.
In a September 20, 2005 report, Dr. William C. Boeck, Jr., a Board-certified orthopedic
surgeon and Office referral physician, diagnosed dog bite to right forearm with consequential
cellulitis, right shoulder adhesive capsulitis requiring surgical release and right subacromial
impingement syndrome status post surgical treatment. He opined that the subacromial
impingement syndrome and the resulting surgical procedure were not related to the
November 21, 2002 work injury. Dr. Boeck opined that aggravation was not a consideration in
this case. He advised that appellant was disabled from her usual letter carrier duties because of
limited motion in her right shoulder. Although there were no limitations as to the number of
hours appellant could push, pull or lift, she could perform no more than three hours of reaching
with the right arm, no reaching above the shoulder on the right side, was restricted on operating a
motor vehicle and had a 20-pound pushing, pulling and lifting limitation.
In a January 9, 2006 report, Dr. Oscar J. Moore, an internist, disagreed with Dr. Boeck.
He began treating appellant on August 28, 1989 and reported that there was no evidence of any
skeletal disease until her work injury on November 21, 2002. Dr. Moore noted that appellant
was initially treated for forearm injuries resulting from the dog bite. Subsequently, appellant had
complaints of increasing pain in the right shoulder, which arose from having to wrestle her arm
free of the dog’s grip and twisted her shoulder. Dr. Moore advised that there was no evidence,
history or reference to any previous injury to the right shoulder in appellant’s medical records.
He stated that Dr. Boeck contradicted himself in assigning work restrictions, noting that
appellant continued to have painful range of motion in her right shoulder, difficulty lifting over
10 pounds and reaching above her shoulder without reactivating her painful syndrome.
The Office found a conflict in medical opinion arose between Dr. Boeck, the second
opinion physician, and Dr. Moore, appellant’s treating physician, regarding her capacity for
work. On February 28, 2006 it referred appellant, together with a statement of accepted facts, a
list of questions and the medical record, to Dr. Gerald M. Paul, a Board-certified orthopedic
surgeon, for an impartial evaluation.
In a report dated April 12, 2006, Dr. Paul diagnosed right shoulder subacromial
decompression, status post right shoulder subacromial decompression and right forearm cellulitis
secondary to dog bite. He advised that appellant’s right shoulder and right forearm problems
were related to the November 21, 2002 work incident. Dr. Paul noted that a right shoulder x-ray
revealed minimal degenerative changes involving the acromioclavicular joint as well as a slight
spur by the greater humeral tuberosity. He noted residuals of a slight restriction of right shoulder
range of motion, slight right forearm tenderness and marked loss of right arm grip strength. In
commenting on an investigative report, Dr. Paul noted that appellant did not appear to be
favoring her right shoulder and exhibited a normal range of motion without strain or discomfort.
He opined that appellant should be permanently precluded from activities requiring frequent
strenuous use of the right upper extremity at or above shoulder level. Dr. Paul opined that
appellant did not need additional medical treatment.

2

In a May 2, 2006 letter, the Office requested Dr. Paul to clarify his opinion in light of the
investigative report and his examination findings. It also requested that he clarify appellant’s
work restrictions. In a June 1, 2006 supplemental report, Dr. Paul advised that appellant
sustained 10 percent upper extremity impairment. After viewing the videotape evidence, he
amended appellant’s work restrictions to preclude frequent strenuous use of her right upper
extremity above shoulder level. Dr. Paul advised the remainder of his opinion remained
unchanged.
On June 28, 2006 the employing establishment offered appellant modified duty as a letter
carrier based on Dr. Paul’s work restrictions. The modified position involved casing and mail
delivery. Appellant would be required to case mail for up to three hours. She would be provided
a platform, to avoid reaching above shoulder level more than 75 percent of casing activities.
Appellant would also make mail deliveries for between four to six hours per day. The work
restrictions would not require frequent strenuous use of her right upper extremity above the
shoulder level.
On June 29, 2006 the Office advised appellant that the offered position was suitable.
Appellant was notified that, if she failed to accept the position or demonstrate that the failure was
justified, her right to wage-loss compensation would be terminated pursuant to section 8106 of
the Federal Employees’ Compensation Act.2 She was given 30 days from the date of this letter
to respond.
On July 7, 2006 appellant telephoned the Office inquiring where to send documentation
from the Social Security Administration (SSA) which had found her totally disabled as of
February 2005. In the memorandum of the telephone conversation, the Office claims examiner
noted that appellant asserted that she remained totally disabled. Appellant was advised that the
workers’ compensation program was different from that under the SSA.
By decision dated July 31, 2006, the Office terminated appellant’s wage-loss schedule
award benefits effective August 5, 2006 on the grounds that she refused an offer of suitable
work. It noted that appellant failed to provide written reasons for refusing the offered position.
The Office received additional evidence from appellant on August 1, 2006. Appellant
submitted a July 26, 2006 provisional acceptance of the modified position offer “pending review
of Social Security letter and pending approval of retirement application.” A February 24, 2005
order from the SSA Office of Hearing and Appeals found appellant disabled since November 21,
2002 under the Social Security Act.
On August 25, 2006 appellant requested reconsideration. In a letter of the same date, she
asserted that she submitted evidence to the Office within 30 days of its June 29, 2006 letter and
provided a copy of an Express Mail receipt dated July 28, 2006. Appellant also contended that a
1996 injury to her feet and ankles, affected her ability to work.
By decision dated October 25, 2006, the Office denied modification of the July 31, 2006
decision.
2

5 U.S.C. §§ 8101-8193; 8106(c).

3

On October 24, 2007 appellant requested reconsideration. She submitted a January 5,
2007 magnetic resonance imaging (MRI) scan of the right shoulder, a December 29, 2006 MRI
scan of the lumbar spine, a January 29, 2007 MRI scan of the right foot, a January 5, 2007 MRI
of the right ankle and a December 29, 2006 MRI scan of the left ankle. In an October 24, 2007
report, Dr. Moore advised that appellant’s right upper extremity condition had not resolved and
was complicated by progressive pain in the lumbosacral spine and shoulders. He indicated that
she had pain in the right lower extremity, including the foot.
By decision dated January 25, 2008, the Office denied modification of its October 25,
2006 decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation, including cases in which the Office terminates compensation
under section 8106(c) for refusal to accept suitable work.3 Section 8106(c)(2) of the Federal
Employees’ Compensation Act, which provides that a partially disabled employee who refuses
or neglects to work after suitable work is offered to, procured by or secured for the employee is
not entitled to compensation.4 To justify termination of compensation, the Office must show that
the work offered was suitable and must inform appellant of the consequences of refusal to accept
such employment.5 Section 8106(c) will be narrowly construed as it serves as a penalty
provision, which may bar an employee’s entitlement to compensation based on a refusal to
accept a suitable offer of employment.6
Section 10.517(a) of the Federal Employees’ Compensation Act implementing
regulations provides that, an employee who refuses or neglects to work after suitable work has
been offered or secured by the employee, has the burden of showing that such refusal or failure
to work was reasonable or justified.7 Pursuant to section 10.516, the Office shall advise the
employee that it has found the offered work to be suitable and afford the employee 30 days to
accept the job or present any reasons to counter the Office’s finding of suitability. If the
employee presents such reasons and it determines such reasons are unacceptable, the Office will
notify the employee of that determination and that he or she has 15 days within which to accept
the offered work without penalty.8
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
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
3

Y.A., 59 ECAB ___ (Docket No. 08-254, issued September 9, 2008).

4

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

5

Ronald M. Jones, 52 ECAB 190 (2000); Arthur C. Reck, 47 ECAB 339, 341-42 (1995).

6

Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

7

20 C.F.R § 10.517(a); see Ronald M. Jones, 52 ECAB 190 (2000).

8

Id. at § 10.516.

4

examination.9 In situations where there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.10
ANALYSIS
The Office accepted appellant’s conditions of dog bite to the right forearm with right
shoulder cellulitis and adhesive capsulitis. It terminated appellant’s entitlement to wage-loss
compensation and schedule award benefits effective August 5, 2006 on the grounds that she
refused an offer of suitable work. The Board finds the Office properly terminated appellant’s
compensation benefits effective August 5, 2006.
In developing the medical evidence, the Office properly determined that a conflict in
medical opinion arose as to appellant’s ability to work. Dr. Boeck, a second opinion physician,
and Dr. Moore, appellant’s attending physician, disagreed as to her capacity for work.11 It
referred appellant to Dr. Paul for an impartial medical examination.
In an April 12, 2006 report, Dr. Paul diagnosed status post subacromial decompression of
the right shoulder as well as cellulitis of the right forearm. Based on his examination findings,
he found objective residuals of slight restriction of right shoulder range of motion, slight right
forearm tenderness and marked loss of right arm grip strength. Dr. Paul mentioned that appellant
did not seem to favor her right shoulder and appeared to exhibit a normal range of motion on an
investigative videotape. He opined that appellant should be permanently precluded from
activities requiring frequent strenuous use of the right upper extremity at or above shoulder level.
In a June 1, 2006 supplemental report, Dr. Paul addressed the investigative materials and advised
that appellant was precluded from frequent strenuous use of her right upper extremity above
shoulder level.12 No further medical treatment was required. The Board finds that the opinion of
Dr. Paul is entitled to the special weight of the medical evidence because it is sufficiently well
rationalized and based on proper factual background. The Board further notes that the
requirements of the modified letter carrier position are within the work restrictions set by
Dr. Paul. Accordingly, the Board finds that the medical evidence of record establishes that, at
the time the job offer was made, appellant was capable of performing the modified position.13
Prior to terminating compensation under 5 U.S.C. § 8106(c), the Office must first inform
the claimant of the consequences of refusal to accept suitable work and allow the claimant an
9

5 U.S.C. § 8123(a).

10

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

11

See Geraldine Foster, 54 ECAB 435 (2003).

12

It was proper for the Office to secure a supplemental report from Dr. Paul as the Board has held that, when it
obtains an opinion from an impartial medical specialist for the purpose of resolving a conflict in the medical
evidence and the specialist’s opinion requires clarification or elaboration, the Office must secure a supplemental
report from the specialist to correct the defect. V.G., 59 ECAB ___ (Docket No. 07-2179, issued July 14, 2008).
13

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

5

opportunity to provide reasons for refusing the offered position. If the claimant presents reasons
for refusing the offered position, it must inform the claimant if it finds the reasons inadequate to
justify the refusal of the offered position and afford the claimant a final opportunity to accept the
position. If the Office fails to inform appellant of whether or not the reasons offered were
sufficient to justify refusal of the suitable work position, it has failed to meet the procedural
requirements of section 8106(c)(2).14
In a June 29, 2006 letter, the Office advised appellant that the offered position was
suitable work and afforded her the opportunity to either accept the position or provide her
reasons for declining the offer. It did not receive any response from appellant within the 30-day
period allotted. Although appellant contends that she timely responded to the Office’s June 29,
2006 letter, the record reflects it did not receive any evidence until August 1, 2006. On July 7,
2006 she inquired during a telephone call as to where to submit materials to the Office. As
noted, the submitted evidence was not received by the Office until following the July 31, 2006
decision. Thus, the Office complied with its procedures and gave appellant an opportunity to
respond to the proposed termination and properly terminated her monetary benefits when no
response was received within the allotted time.
The Board finds that the Office has established that the modified letter carrier position
offered by the employing establishment was suitable at the time it was offered.
Once the Office has established that a particular position is suitable, an employee who
refuses or neglects to work after suitable work has been offered to him or her has the burden of
showing that such refusal to work was justified.15 The Board has carefully reviewed the medical
evidence and appellant’s arguments in support of her refusal of the modified letter carrier
position and finds that they are not sufficient to support her refusal of the position.
The medical reports received subsequent to the July 31, 2006 decision are insufficient to
either overcome Dr. Paul’s opinion or create a new conflict in the medical evidence.
Dr. Moore reiterated appellant’s right upper extremity had not resolved and that she
experienced pain in other areas. He was on one side of the conflict in medical opinion for which
appellant was referred to Dr. Paul.16 Dr. Moore also did not provide any opinion, that appellant
was unable to perform the limited-duty position during the time period it was offered and
available to her. The other medical evidence submitted by appellant, did not provide any
opinion regarding her capacity to perform the offered position.
Appellant also submitted a copy of a February 24, 2005 decision from the SSA approving
her disability benefits, retroactive to November 21, 2002. She additionally presented a July 26,
14

Howard Y. Miyashiro, 51 ECAB 253 (1999); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon.,
43 ECAB 818 (1992).
15

Brian O. Crane, 56 ECAB 713 (2005).

16

Submitting a report from a physician who was on one side of a medical conflict that an impartial specialist
resolved is, generally, insufficient to overcome the weight accorded to the report of the impartial medical specialist
or to create a new conflict. Jaja K. Asaramo, 55 ECAB 200 (2004).

6

2006 qualified acceptance of the modified position based on the results from the SSA. To the
extent that appellant refused the position because she was pursuing a disability retirement, the
Board notes that retirement is not an acceptable reason for refusing an offer of suitable work.17
Furthermore, a determination of an employee’s rights or remedies under other statutory authority
is not determinative as to her entitlement to benefits under the Federal Employees’
Compensation Act.18
The Board finds that the Office met its burden of proof in terminating appellant’s
compensation benefits effective August 5, 2006 and that appellant did not, thereafter, establish
that her refusal of suitable work was justified.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s
disability compensation under 5 U.S.C. § 8106(c)(2) for refusal of suitable employment effective
August 5, 2006 and that appellant did not, thereafter, establish that her refusal of suitable work
was justified.

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5(c) (July 1997).
18

H.S., 58 ECAB ___ (Docket No. 07-582, issued June 14, 2007).

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated January 25, 2008 is affirmed.
Issued: May 11, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


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

)
)
)
)
)
)
)
)

Appearances:
Brett Elliot Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1251
Issued: March 8, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 18, 2021 appellant, through counsel, filed a timely appeal from a March 4, 2021
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.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective January 13, 2020 as she had no further disability or
residuals causally related to her accepted employment injury; and (2) whether appellant has met
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.

her burden of proof to establish continuing disability or residuals on or after January 13, 2020 due
to her accepted employment injury.
FACTUAL HISTORY
On September 25, 1995 appellant, then a 27-year-old part-time flexible letter carrier, filed
an occupational disease claim (Form CA-2) alleging that she sustained bilateral heel pain causally
related to factors of her federal employment, including casing mail and walking. OWCP accepted
the claim for bilateral plantar fibromatosis and a right calcaneal spur. It paid appellant wageintermittent wage-loss compensation for periods of total and partial disability.
By decision dated August 15, 2012, OWCP reduced appellant’s wage-loss compensation,
effective that date, based on its finding that she had the capacity to earn wages in the selected
position of receptionist.
In a report dated March 26, 2014, Dr. Joseph M. Page, an orthopedic surgeon, advised that
he was treating appellant for bilateral plantar fasciitis and planovalgus feet. On examination he
found ligamentous laxity and pain over the plantar fascia. Dr. Page recommended new shoes and
noted that appellant had a collapsed arch. He instructed her to return as needed.
On April 19, 2019 OWCP referred appellant to Dr. Richard A. Rogachefsky, a Boardcertified orthopedic surgeon, for a second opinion examination. In the accompanying statement
of accepted facts (SOAF), it advised that appellant had an episode of bilateral plantar fasciitis
walking on her route and that it had accepted her claim for plantar fibromatosis and calcaneal spur.
In a report dated May 2, 2019, Dr. Rogachefsky discussed appellant’s history of injury and
provided his review of the evidence of record. On examination he found intact sensation and full
strength of the right foot and ankle, mild tenderness of the right heel, negative varus and valgus
stress tests, and a negative anterior drawer test of the right ankle. Dr. Rogachefsky further found
intact sensation and full strength with mild tenderness to palpation of the left foot and plantar heel,
but no swelling, erythema, or ecchymosis. He found a mild pes planus deformity of the bilateral
feet. Dr. Rogachefsky diagnosed bilateral plantar fibromatosis and calcaneal spurs. He indicated
that appellant had objective findings of a “well-healed scar in the right heel and very mild pes
planus deformity on the right and left feet. Subjective findings are mild pain and tenderness in the
right and left plantar heel regions.” Dr. Rogachefsky opined that the accepted employment-related
condition had resolved, noting that appellant had “minimal tenderness to palpation, minimal
discomfort, and minimal subjective complaints and objective findings.” He found that she required
no further medical treatment and could return to her usual employment as a letter carrier without
restrictions.
On December 9, 2019 OWCP notified appellant of its proposed termination of her
compensation as the weight of the evidence established that she no longer had any employmentrelated disability or residuals due to her accepted employment injury. It afforded her 30 days to
submit additional evidence or argument if she disagreed with the proposed termination.
By decision dated January 13, 2020, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that date. It found that Dr. Rogachefsky’s opinion

2

represented the weight of the evidence and established that she had no further disability or residuals
of her accepted employment injury.
In a report dated October 28, 2020, Dr. John B. Dorsey, a Board-certified orthopedic
surgeon, reviewed appellant’s history of injury and noted that she had last worked for the
employing establishment in 2010. He discussed her complaints of bilateral foot pain with
numbness and tingling radiating into the right lower leg and left ankle. On examination Dr. Dorsey
found bilateral pes planus deformity or flat feet, worse on the right. He found tenderness to
palpation bilaterally from the bottom of the foot to the heels and noted that appellant had gait
difficulty because of pain. Dr. Dorsey further found hypersensitivity to pinprick and touch on the
right heel. He noted that x-rays from 2010 revealed bilateral heel spurs and a hallux valgus
deformity. Dr. Dorsey diagnosed bilateral plantar fibromatosis and a right calcaneal spur. He
requested that OWCP expand the acceptance of the claim to include neuropathy of the medial
calcaneus nerve and anxiety and depression as a consequential injury. Dr. Dorsey indicated that
appellant received medication from a psychiatrist, but had not received treatment for her physical
symptoms in four years. He opined that her employment-related conditions had not resolved.
Dr. Dorsey related:
“Over and above that, [appellant] continues to have anxiety and depression related
to the pain in her medial heel, which is a hypersensitivity/neuropathy, which
continues to the present time. There is evidence of hypersensitivity from the
posteromedial heel to the medial malleolus to pinprick and touch as well as pes
planus of both feet, right worse than left. [Appellant] continues to have an unusual
gait (a steppage/neuropathic gait without true foot drop) in which she tries to avoid
striking her heels, and she has a great deal of difficulty trying to squat due to pain
in her heels and in her posterior plantar feet.”
Dr. Dorsey recommended continued treatment. He found that appellant was disabled from
her usual employment, but could work as a clerk.
On December 9, 2020 appellant requested reconsideration.
By decision dated March 4, 2021, OWCP denied modification of its January 13, 2020
decision.
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.3 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

3

R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 3, 2018).

3

the employment. 4 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. 6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment. 7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective January 13, 2020, as she no longer had disability or residuals causally
related to her accepted employment injury.
The Board finds that OWCP properly accorded the weight of the evidence to
Dr. Rogachefsky, who provided a second opinion examination on May 2, 2019. Dr. Rogachefsky
discussed appellant’s history of injury and provided examination findings showing no loss of
sensation or strength and findings of mild tenderness to palpation in the feet and a bilateral mild
pes planus deformity. He diagnosed bilateral plantar fibromatosis and calcaneal spur.
Dr. Rogachefsky asserted that appellant had no residuals of the accepted employment injury based
on the minimal examination findings. He opined that she could resume he r regular employment
duties without restrictions and required no further medical treatment.
Dr. Rogachefsky based his opinion on a proper factual and medical history and findings on
physical examination. He provided medical rationale for his opinion by explaining that the
minimal findings on examination failed to support continued residuals or disability due to the
accepted employment conditions.8 Moreover, there is no contemporaneous medical evidence
demonstrating continued disability or residuals. The Board, therefore, finds that OWCP properly
relied upon the reports of Dr. Rogachefsky in terminating appellant’s wage-loss compensation and
medical benefits.9
LEGAL PRECEDENT -- ISSUE 2
When OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish continuing residuals or disability after that date, causally related to the accepted
employment injury. 10 To establish causal relationship between the condition as well as any
4

A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

5

C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).

6

E.J., Docket No. 20-0013 (issued November 19, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019).

7

A.J., Docket No. 18-1230 (issued June 8, 2020); R.P., Docket No. 18-0900 (issued February 5, 2019).

8

See E.J., supra note 6.

9

See L.S., Docket No. 20-1204 (issued October 4, 2021); L.B., Docket No. 19-1380 (issued February 11, 2020).

10

See S.M., Docket No. 18-0673 (issued January 25, 2019); Manuel Gill, 52 ECAB 282 (2001).

4

attendant disability claimed and the employment injury, an employee must submit rationalized
medical evidence based on a complete medical and factual background, supporting such causal
relationship.11
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination. 12 This is called a referee examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case. 13
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision.
Subsequent to the termination of appellant’s compensation, appellant submitted a report
dated October 28, 2020 from Dr. Dorsey. Dr. Dorsey reviewed the history of injury and her
complaints of bilateral foot pain and numbness. He found a ples planus deformity bilaterally and
hypersensitivity to pinprick on the right heel. Dr. Dorsey diagnosed bilateral plantar fibromatosis
and a right calcaneal spur. He further diagnosed as related to the accepted employment injury
neuropathy of the medial calcaneus nerve and anxiety and depression as a consequential injury.
Dr. Dorsey found that appellant had objective findings of a neuropathic gait and hypersensitivity
in the medial heel. He opined that she was disabled from her usual employment, but could work
as a clerk. Dr. Dorsey advised that appellant required further medical treatment.
Dr. Rogachefsky, the second opinion examiner, found that appellant had no residuals of
her left shoulder condition. Both Dr. Dorsey and Dr. Rogachefsky provided rationale for their
respective opinions based on their review of the medical evidence and findings on examination.
The Board, therefore, finds that a conflict in medical opinion exists regarding whether ap pellant
has established continuing employment-related disability or residuals on or after
January 13, 2020.14
OWCP’s regulations provide that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of a second opinion physician, OWCP shall appoint
a third physician to make an examination. 15 The Board will, thus, remand the case for OWCP to
refer appellant to an impartial medical specialist, pursuant to 5 U.S.C. § 8123(a), to determine
whether she has met her burden of proof to establish continuing employment-related disability or
residuals on or after January 13, 2020 due to her accepted employment injury. The specialist
should further address whether the acceptance of appellant’s claim should be expanded to include
any additional conditions. Additionally, on remand OWCP shall update the SOAF to clarify that
11

Id.

12

5 U.S.C. § 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309,
317 (1994).
13

20 C.F.R. § 10.321.

14

See B.C., Docket No. 16-0978 (issued November 21, 2016).

15

5 U.S.C. § 8123(a); G.K., Docket No. 16-1119 (issued March 16, 2018).

5

it has accepted a calcaneal spur on the right side instead of bilaterally. Following this and other
such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective January 13, 2020, as she no longer had disability or residuals causally
related to her accepted employment injury. The Board further finds that the case is not in posture
for decision on the issue of whether appellant has met her burden of proof to establish continuing
employment-related disability or residuals on or after January 13, 2020 due to her accepted
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: March 8, 2022
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, METROPOLITAN
DETENTION CENTER, Brooklyn, NY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 21-1265
Issued: March 23, 2022

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 August 19, 2021 appellant, through counsel, filed a timely appeal from a July 2, 2021
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 to consider the merits of this case.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than eight
percent permanent impairment of his left small finger for which he previously received a schedule
award.
FACTUAL HISTORY
On March 7, 2017 appellant, then a 47-year-old material handler supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on February 26, 2017 he injured the left side of
his body and broke his left small finger when attempting to move a loaded laundry cart which
tipped over causing him to fall while in the performance of duty. He stopped work on February 26,
2017 and returned to work on March 7, 2017. On October 15, 2018 OWCP accepted the claim for
nondisplaced closed fracture of the distal phalanx of the left little finger and mallet finger of the
left little finger.
On July 13, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In support of his claim, appellant provided an August 3, 2017 report from Dr. John C.
L’Insalata, a Board-certified orthopedic surgeon. Dr. L’Insalata described his history of injury on
February 26, 2017 and diagnosed fracture of the distal phalanx of the left small finger with a bony
mallet component. On physical examination he found prominence over the dorsal aspect of the
distal interphalangeal (DIP) joint of the left small finger, lacking about two degrees of full
extension of the DIP joint, and 75 degrees of flexion with full strength, and intact sensory and
motor examination.
Dr. L’Insalata referred to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides)3 and utilized the diagnosis-based
impairment (DBI) rating method to find that, under Table 15-2 (Digit Regional Grid), page 392,
the class of diagnosis (CDX) for mallet injury including avulsion fracture was a class 1 impairment,
grade C, with a default value of six percent for the digit. He assigned a grade modifier for
functional history (GMFH) of 2 based on pain symptoms with daily activities per Table 15-7, page
406. Dr. L’Insalata assigned a grade modifier for physical examination (GMPE) of 1 due to mild
decreased range of motion (ROM) of the DIP joint, pursuant to Table 15-8, page 408. He assigned
a grade modifier for clinical studies (GMCS) of 2 for associated intra-articular fracture of the distal
phalanx, which healed with prominence and gapping at the articular surface pursuant to Table 159, page 410. Dr. L’Insalata utilized the net adjustment formula (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX) = (2-1) + (1-1) + (2-1) = +2, which resulted in a grade E or eight percent permanent
impairment of the left small finger, which he converted to one percent permanent impairment of
the left hand and one percent impairment of the left upper extremity, pursuant to Table 15-12, page
421.
On July 12, 2019 Dr. Nathan Hammel, a Board-certified orthopedic surgeon, serving as a
district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and the medical
3

A.M.A., Guides (6 th ed. 2009).

2

record, including Dr. L’Insalata’s August 3, 2017 findings. He concurred with Dr. L’Insalata’s
findings. Dr. Hammel indicated that the ROM method result could not be applied due to the lack
of triplicate measurements provided by Dr. L’Insalata. He found that the date of MMI was
August 3, 2017, the evaluation date by Dr. L’Insalata.
On October 28, 2020 OWCP requested that the DMA clarify whether the impairment rating
should be for the digit itself or extend into the adjoining area of the member, the hand or upper
extremity. In a November 17, 2020 report, the DMA found that appellant was entitled to eight
percent permanent impairment of his left small finger. He noted that consistent with OWCP
procedures the general loss of less than one digit should be computed in terms of impairments to
the digit itself and that the loss of two or more digits should be computed in terms of impairment
to the whole hand. 4 The DMA found as only one finger was involved the impairment was best
expressed as eight percent impairment of the left small finger.
By decision dated December 11, 2020, OWCP granted appellant a schedule award for eight
percent permanent impairment of his left small finger. The award ran for 1.2 weeks during the
period August 3 to 11, 2017.
On January 4, 2021 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which took place on April 21, 2021.
By decision dated July 2, 2021, the hearing representative affirmed OWCP’s December 11,
2020 decision. She found that the weight of the medical evidence established that appellant had
no greater than eight percent permanent impairment of his left finger for which he previously
received a schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA 5 and its implementing regulations 6 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, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 7 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved the use
4

Federal (FECA) Procedure Manual, Part 2--Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5.e (March 2017); B.H., Docket No. 16-0252 (issued October 7, 2016); Charles B. Carey, 49 ECAB 528 (1998).
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. See also B.B., Docket No. 20-1187 (issued November 18, 2021); Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Chapter 2.808.5a. (March 2017).

3

by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 9
In addressing upper extremity impairments, the sixth edition requires that the evaluator
identify the impairment CDX, which is then adjusted by a GMFH, GMPE, and GMCS. 10 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable. 12 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.13 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable. 14
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.15 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluatio n, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing th e higher
rating should be used.” (Emphasis in the original.)16

9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

A.M.A., Guides 383-492.

11

Id. at 411.

12

Id. at 461.

13

Id. at 473.

14

Id. at 474.

15

FECA Bulletin No. 17-06 (May 8, 2017).

16

A.M.A., Guides 477.

4

The Bulletin further advises: “If the rating physician provided an assessment using the
ROM method and the [A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the
DMA should independently calculate impairment using both the ROM and DBI methods and
identify the higher rating for the CE [clams examiner].”17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.18
ANALYSIS
The Board finds that this case is not in posture for decision.
In his August 3, 2017 report, Dr. L’Insalata provided one set of passive ROM
measurements for the left small finger. OWCP referred Dr. L’Insalata’s report to Dr. Hammel, its
DMA, who found that appellant had eight percent permanent impairment of the left small finger
under the DBI methodology. Dr. Hammel advised that Dr. L’Insalata’s report did not contain three
complete ROM measurements for the left small finger.
Pursuant to FECA Bulletin No. 17-06, if the ROM method of rating permanent impairment
is allowed, after review of the DBI rating, and the ROM findings are incomplete, the DMA should
advise as to the medical evidence necessary to complete the ROM method of rating if the medical
evidence of record is insufficient to rate appellant’s impairment using ROM. 19
Herein, OWCP did not follow the procedures outlined in FECA Bulletin No. 17-06 after
the DMA advised that the measurements for the left finger were incomplete and there was no
documentation to rate appellant’s permanent impairment utilizing the ROM methodology. 20
On remand OWCP shall obtain the necessary evidence as required under FECA Bulletin
No. 17-06 from Dr. L’Insalata.21 After it obtains the evidence necessary to complete the rating as
described above, the case shall be referred to a DMA to independently calculate impairment to the
left small finger using both ROM and DBI methods and identify the higher rating. 22 If
Dr. L’Insalata does not fully comply with the A.M.A., Guides, OWCP shall refer appellant to a
17

FECA Bulletin No. 17-06 (issued May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G.,
Docket No. 18-0329 (issued July 26, 2018).
18

See supra note 8 at Chapter 2.808.6f. (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

19

J.L., Docket No. 19-1684 (issued November 20, 2020); R.L., Docket No. 19-1793 (issued August 7, 2020); E.P.,
Docket No. 19-1708 (issued April 15, 2020).
20

C.H., Docket No. 20-0529 (issued June 16, 2021); J.L., R.L., id.; C.T., Docket No. 18-1716 (issued
May 16, 2019).
21

J.L., id.; J.S., Docket No. 19-0483 (issued October 10, 2019).

22

See J.L., id.; J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued
September 11, 2018).

5

specialist in the appropriate field of medicine for a second opinion evaluation. Following this and
other such further development as deemed 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 July 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 23, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-80
Issued: April 25, 2007

Case Submitted on the Record

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

JURISDICTION
On October 10, 2006 appellant timely appealed a separate September 14, 2006 decision
of the Office of Workers’ Compensation Programs which denied his claim. 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 his burden of proof to establish that he sustained
erectile dysfunction causally related to his February 6, 2001 employment injury. On appeal, his
counsel argues that the Office improperly solicited Dr. Richard A. Bennett, a Board-certified
neurologist, to change his opinion.
FACTUAL HISTORY
This case has previously been before the Board. In a May 2, 2006 decision, the Board
found that appellant was required to make an election of benefits between the 20 percent increase
in his Veterans Administration benefits and compensation benefits under the Federal Employees’
Compensation Act for his accepted major depression. The Board also found that he failed to

meet his burden of proof to establish that dysphagia or any other corticospinal condition was
causally related to the February 6, 2001 employment injury. The Board, however, found that a
conflict in medical evidence remained regarding whether appellant’s erectile dysfunction was
causally related to his accepted depression because the opinion of Dr. Richard A. Bennett, who
provided an impartial evaluation for the Office, was equivocal on this point. The Board
remanded the case to the Office.1 The law and the facts of the previous Board decision are
incorporated herein by reference.
Subsequent to the Board’s May 2, 2006 decision, the Office requested that Dr. Bennett
provide a supplemental report, stating:
“In your report, you opined that you could not identify any relationship between
[appellant’s] subjective complaint of erectile dysfunction and the employment
injury of February 6, 2001. However, you also stated that [appellant’s] erectile
dysfunction could be secondary to depression, an accepted condition. Please
clarify your opinion on whether [his] erectile dysfunction is causally related to
any accepted condition, such as depression. Please phrase your opinion in terms
of reasonable medical certainty.”
In a report dated May 29, 2006, Dr. Bennett advised:
“In regards to my evaluation of [appellant] on August 17, 2004, I would like to
clarify my opinion as to [his] reported erectile dysfunction. I listed a variety of
conditions that may be associated with erectile dysfunction which are nonorganic
in nature and based upon my review of the medical records, none of these
conditions apply to [appellant]. This would pertain, in particular, to the accepted
condition of depression. All the opinions which were stated in my previous report
remain unchanged. The above is rendered within a reasonable degree of medical
certainty.”
Appellant submitted a June 15, 2006 treatment note in which Dr. Robert I. Winer, an
attending Board-certified neurologist, noted symptoms of radiating neck pain. He provided
findings on examination and opined that appellant was “about the same.”
LEGAL PRECEDENT
When an injury is shown to have arisen out of and in the course of employment, every
natural consequence that flows from the injury likewise arises out of the employment, unless it is
the result of an independent intervening cause attributable to a claimant’s own intentional
misconduct.2

1

Docket No. 05-1984 (issued May 2, 2006).

2

Bobbie D. Daly, 53 ECAB 691 (2002).

2

Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.3 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.4 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.5
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.6
ANALYSIS
The Board notes that a conflict in the medical opinion was created between Dr. George L.
Rodriguez, an attending physician, and Dr. Richard Tim Lachman, a neurologist, who
performed a second opinion evaluation for the Office, regarding whether appellant’s erectile
dysfunction was causally related to the February 6, 2001 employment injury. In a July 17, 2003
report, Dr. Rodriguez advised that the condition was secondary to the employment injury. In a
December 3, 2003 report, Dr. Lachman opined that he could not find a causal relationship
between appellant’s complaint of erectile dysfunction and the employment injury. The Office
properly referred appellant to Dr. Bennett for an impartial evaluation.7 The Board, however,
found that Dr. Bennett’s August 17, 2004 opinion regarding whether appellant’s erectile
dysfunction was secondary to the employment injury was equivocal, noting that Dr. Bennett
agreed with Dr. Lachman that diabetes was frequently associated with erectile dysfunction and
opined that he could not identify any relationship between appellant’s subjective complaint of
erectile dysfunction and the employment injury. However, he also stated that appellant’s erectile
dysfunction could be secondary to depression, an accepted condition.
Office procedures provide that, if clarification or additional medical evidence is
necessary from an impartial specialist, the Office will write to obtain it.8 In this case, the Board
3

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

4

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

5

Dennis M. Mascarenas, 49 ECAB 215 (1997).

6

Manuel Gill, 52 ECAB 282 (2001).

7

Id.

8

Federal (FECA) Procedure Manual, Part 5 -- Medical Examination, Actions on Completion of Referral,
Chapter 3.500.5(b)(2) (March 1994); Guiseppe Aversa, 55 ECAB 164 (2003).

3

instructed the Office to obtain a supplementary report from Dr. Bennett.9 In its May 25, 2005
letter, the Office properly followed the Board’s remand instructions. The record, therefore, does
not support that the Office solicited Dr. Bennett to change his opinion.
In a May 29, 2006 report, Dr. Bennett was very clear in his opinion that, while a variety
of nonorganic conditions could be associated with erectile dysfunction, based upon his review of
appellant’s medical records none of these conditions applied to him and, in particular, to the
accepted condition of depression.
Appellant submitted a June 15, 2006 report in which Dr. Winer noted complaints of
radiating neck pain, provided findings on examination and opined that appellant’s condition was
unchanged. However, Dr. Winer did not mention any complaints regarding erectile dysfunction
or provide an opinion regarding its cause. Medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.10 The Board, therefore, finds that Dr. Bennett’s opinion as referee examiner
is entitled to special weight regarding appellant’s erectile dysfunction.11 Appellant failed to
establish that this condition was caused by his accepted employment conditions.12
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
erectile dysfunction condition was causally related to his February 6, 2001 employment injury.

9

See Bobbi D. Daly supra note 2.

10

Willie M. Miller, 53 ECAB 697 (2002).

11

See Manuel Gill, supra note 6.

12

See Leslie C. Moore, supra note 4.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 14, 2006 be affirmed.
Issued: April 25, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
GREATER LOS ANGELES HEALTHCARE
SYSTEM, Los Angeles, CA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 11-297
Issued: September 14, 2011

Case Submitted on the Record

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

On November 17, 2010 appellant filed a timely appeal from a July 28, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational
disease claim filed on December 14, 2009. She also appeals from an October 21, 2010 decision
denying her request for reconsideration without further merit review. The appeal was docketed
as No. 11-297.
The Board has duly considered the matter and finds that OWCP properly denied both of
appellant’s claims and her request for reconsideration. On May 26, 2009 appellant filed an
occupational disease claim alleging that she sustained a bilateral arm and shoulder condition
caused by repetitive typing on the job.1 OWCP accepted the claim on July 27, 2009 for bilateral
lateral epicondylitis and expanded it on May 12, 2010 to include bilateral shoulder adhesive
capsulitis and temporary aggravation of lumbar spinal stenosis.2 On December 14, 2009
appellant filed a second occupational disease claim alleging that she sustained epicondylitis and

1

OWCP File No. xxxxxx664.

2

OWCP later expanded the claim to include psychogenic pain and major depression.

shoulder bursitis due to excessive typing at work.3 By decision dated March 12, 2010, OWCP
denied the claim, finding that appellant did not establish that a new employment factor
contributed to the condition. At a June 1, 2010 telephonic hearing, appellant testified that her
December 14, 2009 claim was based on the same employment factors as her initial claim and
that she filed a new claim because OWCP at the time had not yet accepted a shoulder condition.
Her attorney acknowledged that a duplicate claim was filed. On July 28, 2010 OWCP’s hearing
representative affirmed the March 12, 2010 decision, finding that appellant filed a duplicate
claim for an accepted condition. Appellant thereafter requested reconsideration and submitted a
statement about her work duties. In an October 21, 2010 decision, OWCP denied the
reconsideration request without conducting a merit review of the claim.
The Board finds that the December 14, 2009 occupational disease claim was duplicative
of her May 26, 2009 claim.4 Appellant, as well as her counsel, conceded this at the June 1, 2010
telephonic hearing. She has not alleged a new claim and OWCP properly denied the claim. The
Board also finds that OWCP properly denied appellant’s request for reconsideration. Although
she provided a factual statement that was not previously considered by OWCP, this evidence did
not address the underlying issue: whether the December 14, 2009 claim was a duplicate claim.5
Therefore, the new evidence was not pertinent to the instant case.6

3

OWCP File No. xxxxxx873. This claim and claim number xxxxxx664 have been combined.

4

OWCP procedures contemplate that duplicate cases should not be created and that development should not
occur under the duplicate case. See Federal (FECA) Procedure Manual, Part 1 -- Mail and Files, Duplicate Cases,
Chapter 1.400.7 (February 2000).
5

See Mary Lou Barragy, 46 ECAB 781 (1995) (submission of evidence which does not address the particular
issue involved does not constitute a basis for reopening a case).
6

See 20 C.F.R. § 10.606(b)(2).

2

IT IS HEREBY ORDERED THAT the October 21 and July 28, 2010 decisions of
Office of Workers’ Compensation Programs are affirmed.
Issued: September 14, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3