United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.N., Appellant
and
U.S. POSTAL SERVICE, KENTUCKIANA
PERFORMANCE CLUSTER, Louisville, KY,
Employer
__________________________________________

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

Docket No. 10-1884
Issued: May 24, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 12, 2010 appellant filed a timely appeal from the June 29, 2010 merit decision of
the Office of Workers’ Compensation Programs reducing her compensation based on her
capacity to earn wages as a sales clerk. She also timely appealed a June 30, 2010 merit decision
of the Office finding an overpayment of compensation. Pursuant to the Federal Employees’
Compensation Act1 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 the Office properly reduced appellant’s compensation
effective July 4, 2010 based on her capacity to earn wages as a sales clerk; (2) whether appellant
received a $2,290.09 overpayment of compensation; (3) whether the Office abused its discretion
by refusing to waive recovery of the overpayment; and (4) whether the Office properly required

1

5 U.S.C. § 8108 et seq.

repayment of the overpayment by deducting $100.00 from appellant’s compensation payments
every four weeks.
FACTUAL HISTORY
The Office accepted that on August 14, 2006 appellant, then a 51-year-old rural mail
carrier, sustained displacement of a cervical intervertebral disc at C5-6 without myelopathy and
left brachial neuritis/radiculitis after she lifted her left arm to place a magazine in a mail case.
She stopped work on August 14, 2006 and received compensation for periods of disability. On
December 7, 2007 Dr. Sean P. McDonald, an attending Board-certified orthopedic surgeon,
performed a discectomy and fusion surgery at C5-6 which was authorized by the Office.
Dr. McDonald treated appellant during her recovery from the December 7, 2007 surgery.
Appellant reported experiencing chronic headaches and she was treated with Topamax and other
medications. Dr. McDonald found her to be totally disabled.
The findings of a December 3, 2008 magnetic resonance imaging (MRI) scan showed a
prior anterior cervical disc fusion at C5-6 and left paracentral spurring at C4-5 producing thecal
sac compression but no cord compression. There was no significant spinal canal or foraminal
stenosis.
On January 7, 2009 Dr. Deborah St. Clair, a Board-certified orthopedic surgeon serving
as an Office referral physician, stated that appellant’s problems at C5-6 had not fully resolved
and she still experienced pain. She could find no objective evidence of myopathy or
radiculopathy related to the cervical condition. Dr. St. Clair posited that, despite her pain
complaints, appellant could return to work as a mail carrier.2
The Office determined that a conflict in the medical opinion arose between
Dr. McDonald and Dr. St. Clair regarding appellant’s ability to work. In order to resolve the
conflict, it referred appellant, pursuant to section 8123(a) of the Act, to Dr. Charles Barlow, a
Board-certified orthopedic surgeon, for an impartial medical examination and an opinion on the
matter.
In an undated report received by the Office on June 4, 2009, Dr. Barlow stated that his
physical examination of appellant showed cervical range of motion that was minimally limited in
lateral flexion and rotation. There was light touch sensory deficit in the left thumb, index finger
and dorsolateral forearm, but deep tendon reflexes and motor function were normal. Dr. Barlow
found that appellant’s right shoulder was subjectively tender over the biceps groove and
posterior at the insertion of the infraspinatus, but noted that there was no tenderness at the
supraspinatus insertion. Rotator cuff strength was excellent when significant force was applied
downward with the shoulders abducted to 90 degrees. Dr. Barlow diagnosed postoperative
anterior cervical fusion at C5-6, widespread cervical spondylosis and right shoulder degenerative
joint disease and determined that appellant could perform light-duty work for eight hours a day.3
2

Dr. St. Clair indicated that appellant had some continuing right shoulder problems.

3

A functional capacity evaluation performed on May 12, 2009 showed that appellant could lift 30 pounds from
floor to waist height and 15 pounds from waist to crown height and could front carry 30 pounds.

2

In a June 2, 2009 work restrictions form, he stated that appellant could push or pull up to
30 pounds for four hours a day and lift up to 30 pounds for six hours a day. Appellant could
engage in repetitive wrist and elbow motion for four hours a day, but could not reach above her
shoulders.4
In June 2009, the Office referred appellant for participation in a vocational rehabilitation
program designed to return her to work. Attempts to place appellant in several retail positions
were unsuccessful. Her rehabilitation counselor, Wes Cox, found that state labor market surveys
from early 2010 showed that the position of sales clerk was reasonably available in appellant’s
commuting area at an average salary of $290.00 per week. The sale clerk position involved such
duties as taking payment for items and restocking inventory. It required occasionally lifting,
pushing, pulling or carrying up to 20 pounds and frequently lifting, pushing, pulling or carrying
up to 10 pounds.
In a May 21, 2010 notice, the Office advised appellant of its proposed reduction of her
compensation based on its determination that she was capable of earning wages in the
constructed position of sales clerk at a rate of $290.00 per week. The opinion of Dr. Barlow
established that she was physically capable of performing the position and noted that Mr. Cox
had approved the sales clerk position and found it to be reasonably available in her commuting
area. The Office provided appellant an opportunity to contest the proposed action.
Appellant submitted the findings of a May 3, 2010 MRI scan of her cervical spine. It
showed no evidence of a herniated nucleus pulposus, spinal stenosis or neural foraminal stenosis
at any level. There was evidence of multilevel degenerative arthrosis of the facet joints and
small uncinate spurs and a prior anterior spinal fusion at C5-6 with good alignment.
The record contains payment records and worksheets showing that appellant earned
$804.35 per month on August 14, 2006, the date that she sustained her work injury. Calculations
show that, when using this pay rate for the period October 17, 2006 to May 10, 2010, she should
have received $115,212.67 in wage-loss compensation. Other records show that appellant
actually received $117,502.76 in monetary compensation.
In a May 28, 2010 notice, the Office advised appellant of its preliminary determination
that she received a $2,290.09 overpayment of compensation for the period October 17, 2006 to
May 10, 2010. It made a preliminary determination that she was not at fault in the creation of
the overpayment. The Office advised appellant that she could submit evidence challenging the
fact, amount or finding of fault and request waiver of the overpayment. It requested that she
complete and return an enclosed financial information questionnaire within 30 days even if she
was not requesting waiver of the overpayment.
In several letters dated in June 2010, appellant argued that her compensation should not
be adjusted because she could not perform the lifting requirements of the sales clerk position.
4

On November 13, 2009 Dr. McDonald recommended similar restrictions. He stated that appellant was restricted
from reaching above the shoulders and noted that repetitive movements of wrists and elbows and pushing and
pulling were limited to four hours per day for each action. Appellant could push or pull a maximum of 30 pounds
and lift up to 30 pounds for 6 hours a day.

3

She also claimed that her unsuccessful job search and her headache problems showed that she
could not work. Appellant asserted that she was paid at a proper pay rate due to her entitlement
to cost-of-living increases. In a May 27, 2010 report, Dr. McDonald indicated that appellant was
tolerating her pain medication. Appellant submitted a financial information questionnaire
completed on June 9, 2010 in which she reported $2,442.98 in income every four weeks,5
$2,401.09 in monthly expenses and $67.50 in assets.
In a June 29, 2010 decision, the Office reduced appellant’s compensation effective July 4,
2010 based on her capacity to earn wages in the constructed position of sales clerk. It found that
the evidence established that she was medically and vocationally capable of earning wages as a
sales clerk.
In a June 30, 2010 decision, the Office determined that appellant received a $2,290.09
overpayment of compensation. It found that she was not at fault in the creation of the
overpayment but that the overpayment was not subject to waiver. The Office noted that the
record showed that appellant’s monthly income exceeded her monthly expenses.6 It required
repayment of the overpayment by deducting $100.00 from appellant’s compensation payments
every four weeks.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.7 Its
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.8
Under section 8115(a) of the Act, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity or
if the employee has no actual earnings, her wage-earning capacity is determined with due regard
to the nature of her injury, her degree of physical impairment, her usual employment, her age,
her qualifications for other employment, the availability of suitable employment and other
factors and circumstances which may affect her wage-earning capacity in her disabled
condition.9 Wage-earning capacity is a measure of the employee’s ability to earn wages in the
open labor market under normal employment conditions.10 The job selected for determining
5

This figure included $2,213.98 in Office compensation received every four weeks.

6

The Office indicated that the income figure reported by appellant ($2,442.98) was for income she received every
four weeks, but calculated that her actual monthly income equaled $2,626.41. It indicated that appellant’s monthly
expenses were $2,011.07 and that her monthly income exceeded her monthly expenses by about $615.00.
7

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

8

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

10

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

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wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.11 The fact that an employee has been unsuccessful
in obtaining work in the selected position does not establish that the work is not reasonably
available in her commuting area.12
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to her physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.13
Section 8123(a) of the 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 examination.”14 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.15 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.16
ANALYSIS -- ISSUE 1
The Office accepted that on August 14, 2006 appellant sustained displacement of a
cervical intervertebral disc at C5-6 without myelopathy and left brachial neuritis/radiculitis after
she lifted her left arm to place a magazine in a mail case. Appellant stopped work on August 14,
2006 and received monetary compensation for periods of disability. In a June 29, 2010 decision,

11

Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See
Glen L. Sinclair, 36 ECAB 664, 669 (1985).
12

See Leo A. Chartier, 32 ECAB 652, 657 (1981).

13

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953).
14

5 U.S.C. § 8123(a).

15

William C. Bush, 40 ECAB 1064, 1975 (1989).

16

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

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the Office reduced her wage-loss compensation effective July 4, 2010 based on her capacity to
earn wages in the constructed position of sales clerk.17
The Office determined that there was a conflict in medical opinion between
Dr. McDonald, an attending Board-certified orthopedic surgeon, and Dr. St. Clair, a Boardcertified orthopedic surgeon serving as an Office referral physician, regarding appellant’s ability
to work. In order to resolve the conflict, it properly referred appellant, pursuant to section
8123(a) of the Act, to Dr. Barlow, a Board-certified orthopedic surgeon, for an impartial medical
examination and an opinion on the matter.18
Dr. Barlow determined that appellant could perform light-duty work for eight hours per
day. Appellant could push or pull up to 30 pounds for four hours a day and lift up to 30 pounds
for six hours a day. She could engage in repetitive wrist and elbow motion for four hours a day,
but could not reach above her shoulders. The Board finds that this well-rationalized opinion
constitutes the weight of the medical evidence with respect to appellant’s ability to work.19 The
Board further finds that the physical requirements of the sales clerk position are within the work
restrictions recommended by Dr. Barlow and therefore appellant was capable of performing the
sales clerk position.
On appeal, appellant claimed that she could not carry 20 pounds of weight as required by
the sales clerk job. However, Dr. Barlow provided an opinion that she could lift, push or pull up
to 30 pounds and there is no medical evidence of record to show that she could not carry the
lesser weight of 20 pounds. On appeal, appellant also claimed that her headache condition
prevented her from working as a sales clerk, but Dr. Barlow took into account her headache
problems in arriving at his work restrictions.20
Appellant’s vocational rehabilitation counselor determined that appellant was able to
perform the position of sales clerk and that state employment services showed the position was
available in sufficient numbers so as to make it reasonably available within her commuting area.
The Office properly relied on the opinion of the rehabilitation counselor that appellant was
vocationally capable of performing the sales clerk position. Appellant claimed that the fact that
17

The sales clerk position involved such duties as taking payment for items and restocking inventory. It required
occasionally lifting, pushing, pulling or carrying up to 20 pounds and frequently lifting, pushing, pulling or carrying
up to 10 pounds.
18

See supra notes 13 and 14.

19

See supra note 15. Dr. Barlow explained that appellant still had residuals of the August 14, 2006 work injury
but posited that the limited objective findings on examination and diagnostic testing meant that appellant could
perform light-duty work for eight hours a day.
20

Appellant claimed that the fact that Dr. Barlow placed limits on the amount of time per day that she could
perform certain duties (such as lifting, pushing, pulling and engaging in wrist and elbow motion) showed that she
could only work on a part-time basis. However, Dr. Barlow explicitly indicated that she could work eight hours a
day and there is no evidence in the record that the sales clerk position required lifting, pushing, pulling or engaging
in wrist and elbow motion beyond the time limitations delineated by Dr. Barlow. Appellant claimed that the sales
clerk position would require her to engage in the prohibited action of reaching above her shoulders, but there is no
indication that the position would require lifting above her shoulders.

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her job search in the retail field was unsuccessful showed that she could not work as a sales
clerk, but the Board has held that the fact that an employee has been unsuccessful in obtaining
work in a given position does not establish that the work was not reasonably available in her
commuting area.21 She did not submit evidence or argument establishing that she could not
vocationally or physically perform the sales clerk position.
The Office considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the position of sales clerk represented appellant’s wage-earning capacity.22 The
weight of the evidence of record establishes that she had the requisite physical ability, skill and
experience to perform the position of sales clerk and that such a position was reasonably
available within the general labor market of her commuting area. Therefore, the Office properly
reduced appellant’s compensation effective July 4, 2010 based on her capacity to earn wages as a
sales clerk.
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of the Act provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of her duty.23 Section 8129(a) of the Act provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”24
Section 8105(a) of the Act provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his
monthly pay, which is known as his basic compensation for total disability.”25 Section
8101(4) of the Act defines “monthly pay” for purposes of computing compensation benefits as
follows: “[T]he monthly pay at the time of injury, or the monthly pay at the time disability
begins, or the monthly pay at the time compensable disability recurs, if the recurrence begins
more than six months after the injured employee resumes regular full-time employment with the
United States, whichever is greater....”26
21

See supra note 11. On appeal, appellant claimed that she did not have computer skills in programs such as
Excel to perform the sales clerk position, but there is no indication in the record that she would have to possess such
skills.
22

See Clayton Varner, 37 ECAB 248, 256 (1985).

23

5 U.S.C. § 8102(a).

24

Id. at § 8129(a).

25

Id. at § 8105(a). Section 8110(b) of the Act provides that total disability compensation will equal three fourths
of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).
26

5 U.S.C. § 8101(4).

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ANALYSIS -- ISSUE 2
The Board finds that appellant received a $2,290.09 overpayment of compensation. In
the present case, appellant received compensation for the period October 17, 2006 to May 10,
2010 at an improper pay rate. The record contains payment records and worksheets showing that
she earned $804.35 per month on August 14, 2006, the date that she sustained her work injury.
When using this pay rate for the period October 17, 2006 to May 10, 2010, appellant should have
received $115,212.67 in Office compensation, but evidence of record shows that she actually
received $117,502.76 in Office compensation for the period October 17, 2006 to May 10, 2010.
The Board notes that it was appropriate for the Office to base appellant’s pay rate calculations on
her date-of-injury pay. Appellant would not qualify for a recurrent pay rate as she did not sustain
a recurrence of disability for pay rate purposes under the Act.27 For these reasons, the Office
properly determined that she received a $2,290.09 overpayment.
LEGAL PRECEDENT -- ISSUE 3
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.28 These statutory
guidelines are found in section 8129(b) of the Act which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”29 If the Office finds a claimant
to be without fault in the matter of an overpayment, then, in accordance with section 8129(b), the
Office may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of the Act nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of the Act if recovery would cause hardship because the beneficiary needs substantially all of her
income (including compensation benefits) to meet current ordinary and necessary living
expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined by
the Office from data provided by the Bureau of Labor Statistics.30 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
27

See supra note 25. Appellant asserted that her entitlement to cost-of-living increases meant that she was
entitled to the amount of compensation she received during the period in question. However, she did not explain the
basis for this argument.
28

See Robert Atchison, 41 ECAB 83, 87 (1989).

29

5 U.S.C. § 8129(b).

30

20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio
Martinez, 55 ECAB 245 (2004). Office procedure provides that assets must not exceed a resource base of $4,800.00
for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (October 2004).

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that such payments would be made, gives up a valuable right or changes her position for the
worse.31 To establish that a valuable right has been relinquished, it must be shown that the right
was in fact valuable, that it cannot be regained and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment.32
ANALYSIS -- ISSUE 3
Appellant has not established that recovery of the overpayment would defeat the purpose
of the Act because she has not shown both that she needs substantially all of her current income
to meet ordinary and necessary living expenses and that her assets do not exceed the allowable
resource base. Her monthly income exceeds her monthly ordinary and necessary expenses by
approximately $225.00.33 As appellant’s current income exceeds her current ordinary and
necessary living expenses by more than $50.00 she has not shown that she needs substantially all
of her current income to meet current ordinary and necessary living expenses.34 On appeal, she
submitted additional information on her finances, but the Board cannot review such information
for the first time on appeal.35 Because appellant has not met the first prong of the two-prong test
of whether recovery of the overpayment would defeat the purpose of the Act, it is not necessary
for the Office to consider the second prong of the test, i.e., whether appellant’s assets do not
exceed the allowable resource base.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she
would experience severe financial hardship in attempting to repay the debt or that she
relinquished a valuable right or changed her position for the worse in reliance on the payment
which created the overpayment.36
Because appellant has failed to establish that, recovery of the overpayment would defeat
the purpose of the Act or be against equity and good conscience, she has failed to show that the
Office abused its discretion by refusing to waive the overpayment.

31

20 C.F.R. § 10.437(a), (b).

32

Id. at § 10.437(b)(1).

33

The record reveals that appellant had monthly income of $2,626.41 and monthly expenses of $2,401.29. The
Office properly indicated that appellant’s income of $2,442.98 every four weeks was equivalent to income of
$2,626.41 every month. It indicated that appellant’s monthly expenses were $2,011.07, rather than $2,401.29, but
even when using the higher monthly expenses figure, appellant’s monthly income still exceeded monthly expenses
by more than $50.00.
34

See supra note 29 and accompanying text.

35

See 20 C.F.R. § 501.2(c)(1).

36

See William J. Murphy, 41 ECAB 569, 571-72 (1989).

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LEGAL PRECEDENT -- ISSUE 4
Section 10.441 of Title 20 of the Code of Federal Regulations provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
the same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”37
ANALYSIS -- ISSUE 4
The record supports that, in requiring repayment of the overpayment by deducting
$100.00 from appellant’s compensation payments every four weeks, the Office took into
consideration the financial information submitted by appellant as well as the factors set forth in
section 10.441 and found that this method of recovery would minimize any resulting hardship on
appellant. Therefore, the Office properly required repayment of the overpayment by deducting
from appellant’s compensation payments every four weeks.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
July 4, 2010 based on her capacity to earn wages as a sales clerk. The Board further finds that
she received a $2,290.09 overpayment of compensation, that the Office did not abuse its
discretion by refusing to waive recovery of the overpayment and that the Office properly
required repayment of the overpayment by deducting $100.00 from her compensation payments
every four weeks.

37

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

10

ORDER
IT IS HEREBY ORDERED THAT the June 30 and 29, 2010 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: May 24, 2011
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Panorama City, CA, Employer
__________________________________________

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

Docket No. 20-0846
Issued: November 2, 2021

Case Submitted on the Record

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

JURISDICTION
On March 9, 2020 appellant filed a timely appeal from a February 2, 2020 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 a medical condition
causally related to the accepted factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 1, 2017 appellant, then a 52-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that after 29 years in his position, he developed bilateral foot and left
ankle conditions as a result of factors of his federal employment, including standing and walking
while carrying a mail satchel weighing between 15 to 45 pounds for eight hours a day. He did not
stop work.
In a June 8, 2017 development letter, OWCP informed appellant of the deficiencies of his
claim. It advised him of the type of factual and medical evidence needed to establish his claim
and afforded him 30 days to submit the necessary evidence.
On April 24, 2017 Dr. Song M. Yoo, a podiatrist, noted that he first examined appellant in
January 2013 due to foot and ankle pain. He provided the results of magnetic resonance imaging
(MRI) scans of his ankles dated August 23, 2016. On the right the scan demonstrated
metatarsophalangeal (MTP) degenerative changes with joint effusion, bursitis, chronic pressure
lesion to the fifth MTP joint, and tarsometatarsal joint degenerative changes without acute fracture
or dislocation. On the left the MRI scan demonstrated first MTP degenerative changes with joint
effusion, bursitis, chronic pressure lesion on the fifth MTP joint, and tarsometatarsal joint
degenerative changes without acute fracture or dislocation. Dr. Yoo opined that appellant’s
conditions were directly related to his work, noting that appellant was required to walk all day as
a function of his job duties. He concluded, “It is my opinion that regardless of when the initial
time of complaint for his foot and ankles started, his job duties for the [employing establishment]
has slowly contributed to the progressive nature of his conditions over the past few years. ”
By decision dated August 23, 2017, OWCP denied appellant’s claim, finding that he had
not submitted medical evidence containing a diagnosis in connection with the accepted
employment factors.
On October 25, 2017 appellant requested reconsideration of the August 23, 2017 decision.
He submitted a September 23, 2017 report from Dr. Yoo in which he diagnosed arthritis of the
ankle and foot, degenerative tear at the plantar plate, and bursitis of the left forefoot. Dr. Woo
opined that appellant’s diagnosed conditions were directly related to work, which required him to
walk or stand all day.
By decision dated January 12, 2018, OWCP denied appellant’s request for reconsideration
of the merits of his claim.

2

Docket No. 18-1263 (issued February 7, 2019).

2

Appellant appealed to the Board. By decision dated February 7, 2019,3 the Board found
that OWCP had improperly denied appellant’s request for reconsideration of the merits of his
claim. The Board remanded the case for OWCP to conduct a merit review and issue an appropriate
decision.
By decision dated March 12, 2019, OWCP affirmed, as modified, the August 23, 2017
decision, finding that the medical evidence of record was sufficient to establish diagnoses of
bilateral ankle and foot arthritis, degenerative tear at the plantar plate, and bursitis of the left
forefoot. The claim remained denied, however, because the medical evidence of record was
insufficient to establish causal relationship between appellant’s diagnosed conditions and the
accepted factors of his federal employment.
On November 22, 2019 appellant requested reconsideration. He provided an October 26,
2019 report from Dr. Yoo where he diagnosed anterior talofibular ligament damage, deltoid
ligament injury with old avulsion injury, peroneal tendons and posterior tibial tend initis, Achilles
tendinitis, and chronic plantar fasciitis on the right. In appellant’s left foot, Dr. Yoo diagnosed
conditions including arthritic changes to the first metatarsal phalangeal joint, degenerative plantar
plate tear of the first metatarsal phalangeal joint, Morton’s neuroma in the second interspace with
bursitis, and tarsometartarsal joint degenerative changes. He opined that appellant’s right ankle
and left foot conditions were exacerbated by his duties as a mail carrier.
Dr. Yoo explained that he took appellant off work to decrease biomechanical
forces/stresses on the joints, ligaments, and tendons for proper healing. He further explained that
the biomechanics of basic wear and tear of appellant’s foot and ankle, including walking 8 to 10
miles carrying a mail satchel weighing an average of 20 to 25 pounds, added stresses to his foot
and ankle that were repeated over three decades, resulting in the progression of his conditions.
By decision dated February 19, 2020, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 period of FECA, 4 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

3

Id.

4

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

3

to the employment injury. 5 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. 6
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 o f 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 To
establish causal relationship between the condition, as well as any attendant disability claimed and
the employment event or incident, the employee must submit rationalized medical opinion
evidence.8 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 factor(s) identified by the employee. 9 The weight of the medical evidence
is determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.10
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his claim, appellant submitted Dr. Yoo’s October 26, 2019 narrative report in
which he opined that the physical demands of appellant’s federal employment caused his
diagnosed medical conditions. Dr. Yoo explained that he took appellant off work to decrease
biomechanical forces/stresses on the joints, ligaments, and tendons for proper healing. He further
explained that the biomechanics of basic wear and tear of appellant’s foot and ankle, including
walking 8 to 10 miles carrying a mail satchel weighing an average of 20 to 25 pounds, added
stresses to his foot and ankle that were repeated over three decades, resulting in the progression of
his conditions.

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

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).
7

T.D., Docket No. 20-0921 (issued November 12, 2020); M.S., Docket No. 18-1554 (issued February 8, 2019). 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).
8

S.A., Docket No. 18-0399 (issued October 16, 2018); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra
note 7.
10

D.R., Docket No. 19-0954 (issued October 25, 2019); James Mack, 43 ECAB 321 (1991).

4

The Board finds that, while Dr. Yoo’s October 26, 2019 report is not fully rationalized, he
provided a mechanism of injury, referenced objective diagnosis reports, identified employment
factors, and opined that the diagnosed conditions are causally related to the accepted employment
factors. Thus, the Board finds that Dr. Yoo’s opinion is sufficient to require OWCP to further
develop the medical evidence.11
It is well established that proceedings under FECA are not adversarial in nature, and that
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.12 OWCP has an obligation to see that justice is
done.13
The Board will, therefore, remand the case for further development of the medical
evidence. On remand OWCP shall refer appellant, along with the case record and a statement of
accepted facts, for a rationalized opinion from a physician in the appropriate field of medicine as
to whether the accepted work factors caused or aggravated appellant’s diagnosed medical
conditions. If the physician opines that the diagnosed conditions are not causally related, he or she
must provide rationale explaining how or why the opinion differs from that of Dr. Yoo. Following
this and any other such further development as may be deemed necessary, OWCP shall issue a
de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

E.P., Docket No. 19-1703 (issued April 16, 2021); C.W., Docket No. 19-0322 (issued July 18, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); D.W., Docket No. 17-1884 (issued November 8, 2018); John J. Carlone,
41 ECAB 354 (1989).
12

A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
13

R.B., Docket No. 18-0162 (issued July 24, 2019); K.P., Docket No. 18-0041 (issued May 24, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the February 2, 2020 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: November 2, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

6


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

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Appearances:
John P. Lutseck, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-2045
Issued: December 13, 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 September 5, 2006 appellant, through his attorney, filed a timely appeal from a
June 20, 2006 merit decision of a hearing representative of the Office of Workers’ Compensation
Programs denying his emotional condition 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 has established that he sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
On March 31, 2005 appellant, then a 46-year-old mail carrier, filed an occupational
disease claim alleging that he sustained stress, depression and anger because his supervisor

followed him, harassed him and ridiculed his performance.1 He further asserted that
management refused his leave requests and issued unwarranted letters of warning.
An inspector with the employing establishment interviewed appellant on April 6, 2005.
Appellant maintained that his supervisor, Ryan Rozycki, constantly told him to work faster and
joked that he took too long on his route. Mr. Rozycki disciplined him when he witnessed him
returning to work from his home. He refused a form from appellant when he “forgot to clock
out.” Mr. Rozycki assigned appellant work outside his restrictions. Appellant indicated that he
and Mr. Rozycki might have a personality conflict.
In an interview with an inspector on April 6, 2005, Mr. Rozycki described appellant’s
work as below average but he was treated the same as all the carriers. He began monitoring him
after he went home while taking mail to other carriers. Mr. Rozycki did not refuse to give
appellant forms or discipline him without cause. He forwarded all requests for leave without pay
to the postmaster. Mr. Rozycki noted that requests for leave without pay were denied if other
forms of leave were available. He based appellant’s restrictions on a September 23, 2003 work
restriction evaluation.
By letter dated April 6, 2005, the Office requested that appellant submit additional
medical and factual information, including a description of his required work duties and the
specific incidents which he believed caused his emotional condition.
In a statement dated April 15, 2005, Rosanne Gerchak, appellant’s supervisor, discussed
his work restrictions. She noted that, on September 18, 2004, management was unable to locate
him. In a September 21, 2004 predisciplinary interview, appellant became angry with
Mr. Rozycki and loudly accused him of joking with another carrier about finishing early and
going home to watch sports at appellant’s house. He alleged that he sustained a new
employment injury on September 23, 2004 and had additional work restrictions. On March 13,
2005 appellant told Ms. Gerchak that the employing establishment “constantly violated his
restrictions” but did not specify how his restrictions were exceeded. Ms. Gerchak did not harass
appellant and had not witnessed any instances of harassment.
An October 16, 2004 duty status report listed work restrictions for appellant, including
standing for two to three hours. A duty status report dated March 7, 2005 listed work restrictions
which included sitting one hour per day and standing one to one and a half hours per day. A
November 22, 2004 limited-duty job offer from the employing establishment required sitting two
hours per day with a change in position every half hour and standing two to three hours per day.
Appellant filed a November 18, 2004 Equal Employment Opportunity (EEO) complaint
of discrimination based on age and disability. In a letter from his representative dated May 4,
2005, he asserted that the employing establishment harassed him at work and required him “to
work outside of his restrictions on a consistent basis.” Appellant maintained that supervisors
Veronica Rice, Richard Russ and Mr. Rozycki “constantly indicate they do not understand the
restrictions” and harassed him both when he could case mail and when he worked limited duty.
1

Appellant initially filed a claim for a traumatic injury but noted on his occupational disease claim that he had
filed the wrong claim form.

2

The employing establishment “refused to provide limited duty which they were required to do,
refused to provide light duty and complained to me about the extraordinary amount of leave I
was taking as a result. This caused me to fear for the safety of my job and to believe I was in a
hostile work environment.” Appellant attributed his job insecurity to the employing
establishment’s refusing to adhere to his work restrictions or refusing to allow him to work.2
By decision dated May 13, 2005, the Office denied appellant’s claim on the grounds that
he did not establish an emotional condition in the performance of duty. The Office determined
that he had not established any compensable employment factors. The Office found that
appellant did not specify how the employing establishment violated his work restrictions or
provide specific dates in which he worked outside his restrictions. The Office noted that, if he
was unable to work due to an employment injury, he should file a claim for compensation under
the applicable claim.
On May 17, 2005 appellant requested an oral hearing. On March 30, 2006 the Office
hearing representative denied his request for postponement and informed him that he would
receive a review of the written record in lieu of an oral hearing. By decision dated June 20,
2006, the hearing representative affirmed the May 13, 2005 decision after finding that appellant
had not established any compensable employment factors.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.4
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.5 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.6
2

Appellant also submitted medical evidence in support of his claim.

3

5 U.S.C. § 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

4

Gregorio E. Conde, 52 ECAB 410 (2001).

5

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon.,
42 ECAB 556 (1991).
6

See William H. Fortner, 49 ECAB 324 (1998).

3

In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.7
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.8 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and EEO complaints, by themselves, do not establish that workplace harassment or
unfair treatment occurred.9 The issue is whether the claimant has submitted sufficient evidence
under the Act to establish a factual basis for the claim by supporting his or her allegations with
probative and reliable evidence.10 The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in
fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may
be fully examined and evaluated by the Office and the Board.11
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.12 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.13
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied appellant’s emotional condition claim
on the grounds that he did not establish any compensable employment factors. The Board must,
therefore, initially review whether these alleged incidents and conditions of employment are
covered employment factors under the terms of the Act.
7

Ruth S. Johnson, 46 ECAB 237 (1994).

8

See Michael Ewanichak, 48 ECAB 364 (1997).

9

See Parley A. Clement, 48 ECAB 302 (1997).

10

See James E. Norris, 52 ECAB 93 (2000).

11

Beverly R. Jones, 55 ECAB 411 (2004).

12

Dennis J. Balogh, 52 ECAB 232 (2001).

13

Id.

4

Appellant asserted that Mr. Rozycki and other supervisors harassed him by repeatedly
requesting clarification of his work restrictions. He further maintained that Mr. Rozycki
ridiculed his performance and informed him that he needed to work faster. Mr. Rozycki and
another carrier joked about finishing early and watching sports at appellant’s residence. He did
not provide appellant with needed forms. If disputes and incidents alleged as constitutes
harassment and discrimination by supervisors and coworkers are established as occurring and
arising from the employee’s performance of his regular duties, these could constitute
employment factors.14 The evidence, however, must establish that the incidents of harassment
and discrimination occurred as alleged.15 In an April 6, 2005 interview, Mr. Rozycki described
appellant’s work as below average but that appellant was treated like all other carriers.
Ms. Gerchak, a supervisor, noted that appellant became angry at Mr. Rozycki in a predisciplinary
interview and shouted that he joked about him finishing work early with another carrier. She
related that she had not harassed appellant or witnessed him harassed by others. Appellant has
submitted no evidence, such as statements from coworkers, corroborating his allegation that his
supervisors repeatedly asked for clarification of his work restrictions or that Mr. Rozycki joked
about him. Thus, he has not established a compensable employment factor.
Regarding appellant’s contention that Mr. Rozycki constantly monitored his work, the
Board has held that an employee’s complaints concerning the manner in which a supervisor
performs his duties as a supervisor or the manner in which a supervisor exercises his supervisory
discretion fall, as a rule, outside the scope of coverage provided by the Act.16 This principle
recognizes that a supervisor or manager must be allowed to perform their duties and that
employees will at times dislike the actions taken; however, mere disagreement or dislike of a
supervisory or management action will not be actionable, absent evidence of error or abuse.17
Mr. Rozycki asserted that he began monitoring appellant after he discovered that he had returned
to work from his home. Appellant has not provided any specific examples of improper
monitoring of his work or provided any evidence that her supervisor acted unreasonably and thus
has not established a compensable employment factor.
Appellant also contended that management wrongly denied his leave requests and issued
unwarranted discipline. Although the handing of leave request and disciplinary actions are
related to employment, they are administrative functions of the employer and not duties of the
employee.18 An administrative or personnel matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment.19
Mr. Rozycki denied that he issued appellant unwarranted discipline and indicated that he
forwarded requests for leave without pay to the postmaster. He noted that such requests were
14

Janice I. Moore, 53 ECAB 777 (2002).

15

Id.

16

See Judy L. Kahn, 53 ECAB 321 (2002).

17

Id.

18

Charles D. Edwards, 55 ECAB 258 (2004); Lori A. Facey, 55 ECAB 217 (2004).

19

Id.

5

denied if the employee had other leave available. Ms. Gerchak indicated that she held a
predisciplinary interview with appellant after management was unable to locate him on
September 18, 2004. Appellant has not submitted any evidence corroborating his allegations that
the employing establishment erred in denying leave requests or issuing discipline. Thus, he has
not established a compensable employment factor.
Appellant generally alleged that the employing establishment forced him to work outside
his restrictions and refused to provide him with limited-duty work. The Board notes that an
emotional condition related to pain and other limitations resulting from an employment injury is
covered under the Act.20 Appellant, however, has not identified any specific violations of his
work restrictions. A claimant must specifically identify the employment factors or incidents
alleged to have caused his condition and establish a factual basis for his allegations with
probative and reliable evidence.21 Appellant has not submitted evidence sufficient to establish
that his physical restrictions were exceeded.
Appellant additionally attributed his emotional condition to job insecurity. The Board
has held that a claimant’s job insecurity is not a compensable factor of employment.22 As
appellant failed to establish any compensable factors of employment, the Office properly denied
his claim.23
CONCLUSION
The Board finds that appellant has not established that he sustained an emotional
condition in the performance of duty.

20

Arnold A. Alley, 44 ECAB 912 (1993).

21

See Charles D. Gregory, 57 ECAB ___ (Docket No. 05-252, issued December 13, 2005) (where an employee
fails to identify specific employment factors believed to be responsible for a claimed condition, the employee does
not meet his or her burden of proof in establishing a claim for compensation).
22

Robert Breeden, 57 ECAB ___ (Docket No. 06-734, issued June 16, 2006).

23

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Hasty P. Foreman, 54 ECAB 427 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 20, 2006 is affirmed.
Issued: December 13, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Burnsville, MN, Employer
__________________________________________

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

Docket No. 15-1126
Issued: August 15, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On April 22, 2015 appellant filed a timely appeal from a December 2, 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 terminate appellant’s wage-loss
compensation benefits.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances outlined in
the prior Board decision are incorporated herein by reference. The facts relevant to the present
appeal are set forth below.

1

5 U.S.C. § 8101 et seq.

On May 26, 1999 appellant, a 49-year-old postmaster, filed a claim alleging an emotional
condition causally related to factors of her federal employment. OWCP accepted as factual and
compensable that she worked 10 to 12 hours a day and weekends due to understaffing and trying
to meet the demands of her job. It found no other compensable employment factor. OWCP
accepted appellant’s claim for major depression with psychotic features and paid compensation
for temporary total disability on the periodic rolls.
On September 11, 2007 OWCP terminated appellant’s wage-loss compensation and
medical benefits, effective that same date.2 It found that, based on the opinion of Dr. Thomas G.
Gratzer, a Board-certified psychiatrist and referee physician, appellant’s current psychiatric
condition and disability were no longer causally related to the one compensable employment
factor that had been accepted. Appellant appealed OWCP’s termination decision to the Board.
In a July 10, 2008 decision,3 the Board affirmed OWCP’s decision to terminate benefits,
finding that Dr. Gratzer’s opinion was well rationalized and carried special weight in resolving
the conflict between appellant’s treating psychologist and OWCP’s referral physician on whether
she had any residual emotional condition causally related to the one compensable employment
factor established in the case.4
On June 25, 2009 OWCP received from appellant a request for reconsideration dated
June 8, 2009. By decision dated September 23, 2009, it denied modification of the Board’s
termination decision.5
Appellant subsequently appealed to the Board and contended that Dr. Gratzer had not
been properly selected as an independent medical examiner. By order dated September 28,
2011, the Board remanded the case finding that OWCP had failed to follow the necessary
selection procedures. Therefore, the Board essentially reversed the September 23, 2009
termination decision.6
On remand OWCP subsequently referred appellant, together with the medical record and
a statement of accepted facts, to Dr. Joseph J. Burgarino, a Board-certified psychiatrist, for an
impartial medical evaluation. Dr. Burgarino evaluated appellant on September 27, 2014. He
related her history and reviewed her medical records, as well as an amended statement of
accepted facts. Dr. Burgarino described his findings on physical and neurologic examination.
He then addressed the questions posed by OWCP. Dr. Burgarino opined that appellant’s
neuropsychiatric diagnosis was depressive disorder with a history of episodic, psychotic, and
psychotiform features not otherwise specified; anxiety disorder with a history of episodic,
psychotiform, and psychotic features not otherwise specified; and histrionic personality traits.
2

This decision followed a notice of proposed termination dated August 10, 2007.

3

Docket No. 08-0009 (issued July 10, 2008).

5

In its decision, OWCP noted its “affirmance” of the Board’s July 10, 2008 decision. It is not authorized to
review Board decisions. Although the July 10, 2008 decision was the last merit decision, its September 11, 2007
termination decision was the appropriate subject of possible modification by OWCP. See 20 C.F.R. § 501.6(d).
6

Docket No. 10-0404 (issued September 28, 2011), petition for recon. denied, (issued April 25, 2012).

2

He concluded that a comprehensive review of the medical record did not support a diagnosis of
post-traumatic stress disorder as appellant did not meet the criteria for that diagnosis.
Dr. Burgarino opined, within a reasonable degree of medical certainty, that appellant no
longer suffered from any emotional condition causally related to the one accepted compensable
factor in the case, namely, increased work demands due to expansion, which subjected her to
long hours. He determined that she did not meet, and never met, the criteria for post-traumatic
stress disorder, depressive disorder, and anxiety disorder not otherwise specified with episodic
psychotic and psychotiform features, and these disorders cannot be substantially related to the
one accepted compensable employment factor. The experience of working long hours and
weekends, Dr. Burgarino explained, would not, within a reasonable degree of medical certainty,
produce such disorders. Further, as noted by other medical examiners, appellant did not relate
any of her emotional/psychological/psychiatric symptoms to the experience of working long
hours. Instead, she related her symptoms to being harassed, harangued, and discriminated
against, which was not accepted as factual. Dr. Burgarino therefore concluded that appellant,
within a reasonable degree of medical certainty, never suffered from an emotional/
psychological/psychiatric condition causally related to the one accepted employment factor.
Dr. Burgarino further explained that appellant’s current conditions were conditions
without a single causative factor, but rather a complex interplay of multiple constitutional
neuropsychobiological and experiential antecedents. Given her persistent anger toward the
employing establishment, he found it unlikely that she would desire to return to her postmaster
duties, but that would be a personal choice. There was no compelling substantive
medical/neuropsychiatric evidence to support any inability to return to any full-time position for
which she was qualified.
In a decision dated December 2, 2014, OWCP again affirmed the termination of wageloss compensation and medical benefits. It found that Dr. Burgarino’s opinion carried the weight
of the medical opinion evidence sufficient to support OWCP’s decision to terminate appellant’s
wage-loss compensation and medical benefits as she no longer had disability causally related to
her accepted employment injury.
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.7 Once OWCP accepts a claim,
it has the burden of proof to justify termination or modification of compensation benefits.8
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.9 When there exist opposing medical reports of virtually equal weight and
7

5 U.S.C. § 8102(a).

8

Harold S. McGough, 36 ECAB 332 (1984).

9

5 U.S.C. § 8123(a).

3

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
When OWCP secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence, and the opinion from the specialist requires
clarification or elaboration, OWCP has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report. When the impartial medical
specialist’s statement of clarification or elaboration is not forthcoming, or if the specialist is unable
to clarify or elaborate on the original report, or if the specialist’s supplemental report is also vague,
speculative, or lacks rationale, OWCP must submit the case record together with a detailed
statement of accepted facts to a second impartial specialist for a rationalized medical opinion on
the issue in question.11 Unless this procedure is carried out by OWCP, the intent of section
8123(a) of FECA will be circumvented when the impartial specialist’s medical report is
insufficient to resolve the conflict of medical evidence.12
ANALYSIS
Following the Board’s September 28, 2011 order, OWCP referred appellant to a new
impartial medical specialist, Dr. Burgarino, a Board-certified psychiatrist, to determine whether
appellant had continuing disability causally related to her accepted emotional condition claim.
Dr. Burgarino opined that appellant no longer suffered from an emotional condition
causally related to the one accepted compensable factor in the case. However, his opinion that
she never suffered from an emotional/psychiatric condition conflicts with OWCP’s acceptance of
major depression with psychotic features, which was noted in the statement of accepted facts that
OWCP provided to Dr. Burgarino. While the impartial medical examining psychiatrist is free to
disagree with OWCP’s acceptance of a medical condition, he must offer sound medical
reasoning in support of his view, and thereafter OWCP must properly advise appellant of the
actual basis of its final decision. The Board has held that it is a denial of administrative due
process for OWCP to terminate compensation benefits on the ostensible basis that a claimant no
longer suffers residuals of an accepted condition, where the record supports that the real reason
for OWCP’s action was that it had determined that the condition was not causally related to the
claimant’s employment and should not have been accepted as such.13 OWCP must inform a

10

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

11

See Nathan L. Harrell, 41 ECAB 402 (1990).

12

Harold Travis, 30 ECAB 1071 (1979).

13

See John M. Pittman, 7 ECAB 514 (1955) (where the Bureau, now known as OWCP, denied a claim and
terminated benefits on the ostensible grounds that a claimant was not disabled for work beyond a specific date, when
it appeared from the record that the real reason for denial was that the Bureau had determined that the injuries
alleged had not in fact occurred and that the claimant had never been disabled, but had been guilty of malingering).

4

claimant correctly and accurately of the reasoning on which a decision rests, so as to afford an
opportunity to meet, if they can, any defect appearing therein.14
Dr. Burgarino advised that the experience of working long hours and weekends would
not, within a reasonable degree of medical certainty, produce appellant’s current depressive
disorder, and anxiety disorder, but he failed to provide any medical rationale in support of his
conclusion. As the opinion of the impartial medical specialist lacks sufficient medical rationale
and therefore requires clarification, the Board finds that his opinion is insufficient to carry the
special weight in resolving the outstanding conflict. As OWCP bears the burden of proof to
terminate appellant’s compensation for the accepted condition of depression, the Board will
reverse OWCP’s December 2, 2014 decision.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the December 2, 2014 decision of Office of
Workers’ Compensation Programs is reversed.
Issued: August 15, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

14

E.g., id.; James D. Boller, Jr., 12 ECAB 44 (1960).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.O., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, Madison, WI, Employer
__________________________________________

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

Docket No. 07-1739
Issued: January 29, 2008

Case Submitted on the Record

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

JURISDICTION
On June 21, 2007 appellant filed a timely appeal from an April 18, 2007 merit decision of
the Office of Workers’ Compensation Programs affirming the termination of her compensation
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective June 19, 2006; and (2) whether she established that she had any
continuing disability after June 19, 2006.
FACTUAL HISTORY
On June 3, 2001 appellant, then a 47-year-old voucher examiner, filed an occupational
disease claim alleging that she developed tendinitis of the elbows while performing repetitive
duties. The Office accepted the claim for bilateral elbow tendinitis. Appellant was granted a
disability retirement on May 25, 2002.

Appellant came under the care of Dr. Moiya Murphy, a Board-certified internist, who
treated her from June 9, 2000 to October 10, 2001 for pain in her right arm and diagnosed tennis
elbow and paresthesia and weakness of the arm. Dr. Murphy noted that appellant had underlying
fibromyalgia which increased her risk for overuse injuries. She opined that appellant developed
carpal tunnel syndrome and elbow tendinitis as a result of repetitious use of her hands at work.
Dr. Murphy stated that appellant underwent bilateral carpal tunnel releases and her symptoms
resolved.
Appellant submitted an October 9, 2001 attending physician’s report from
Dr. Stewart F. Taylor, Jr., a Board-certified orthopedic surgeon, who noted appellant’s symptoms
of numbness and tingling in the hands, wrists and thumbs and diagnosed bilateral carpal tunnel
syndrome. He indicated that appellant’s condition was caused by repetitive duties at work.
On November 1, 2001 appellant filed a claim for an occupational disease for bilateral
carpal tunnel syndrome. On December 10, 2001 the Office accepted appellant’s claim for
bilateral carpal tunnel syndrome. The Office authorized a right carpal tunnel release which was
performed on September 11, 2001 and a left carpal tunnel release which was performed on
January 25, 2002.1
Treatment notes from Bonnie J. Weigert, Board-certified in physical medicine and
rehabilitation, dated February 18, 2001 to March 12, 2002, listed diagnoses of fibromyalgia,
bilateral epicondylitis and bilateral carpal tunnel syndrome. She noted that appellant was status
post right carpal tunnel release and developed finger flexor tendinitis due to working with a
brace on her hand. On March 12, 2002 Dr. Weigert advised that appellant underwent a left
carpal tunnel release on January 25, 2002 and was progressing well postoperatively. In a duty
status report dated June 7, 2002, she noted that appellant could return to work four hours per day
with restrictions. On August 29, 2003 Dr. Taylor diagnosed triggering of the right middle finger
and noted with a checkmark “yes” that appellant’s condition was caused or aggravated by an
employment activity.2 In a report December 9, 2003, he noted treating appellant since
October 2001 for triggering of the right middle finger caused by splinting of the arm for right
and left carpal tunnel syndrome subsequent to carpal tunnel releases.
On May 25, 2002 appellant applied for a disability retirement on August 7, 2002, the
employing establishment indicated that it was unable to accommodate her work restrictions. She
initially elected to receive retirement benefits but on March 7, 2003 elected compensation
benefits under the Federal Employees’ Compensation Act. On February 25, 2004 the Office
expanded appellant’s claim to include right middle trigger finger and authorized release surgery.
Appellant submitted a work capacity evaluation from Dr. Taylor dated June 30, 2004. He
advised that appellant could return to work full time without restrictions and that she had reached
maximum medical improvement. In a report dated July 6, 2004, Dr. Taylor noted that appellant

1

The operative reports for these procedures are not in the record.

2

On March 26, 2002 the Office combined appellant’s claims for bilateral elbow tendinitis and bilateral carpal
tunnel syndrome, File Nos. A10-2005813 and A10-2003126.

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underwent a right trigger finger release on March 23, 2004 and was discharged from treatment
on March 30, 2004.3
On September 28, 2004 the Office referred appellant to Dr. Bruce Davey, a Boardcertified orthopedic surgeon, for a second opinion. In a November 8, 2004 report, he reviewed
the records provided and examined appellant. Dr. Davey diagnosed chronic pain syndrome,
possibly myofascial pain syndrome, resolved lateral epicondylitis and status post surgery for
carpal tunnel syndrome which was successful. He found a full range of motion of the arms,
shoulders and elbows, no tenderness of the shoulder, mild to moderate tenderness over the lateral
epicondyles, no sign of radial nerve involvement, full pronation and supination, no atrophy of the
forearms and no signs of pronator teres syndrome. Examination of the bilateral wrists and hands
revealed well-healed carpal tunnel incisions, no thenar or phyothenar atrophy was noted, full
range of motion of the wrists and fingers, no signs of swelling or discoloration, good grip
strength bilaterally, no signs of arterial insufficiency in the hands, normal sensory examination of
the hands and no atrophy of the intrinsic muscles of the hands. Dr. Davey noted that appellant’s
subjective symptoms far outweighed her minimal objective findings. He opined that appellant
was capable of performing light work without restrictions and did not recommend further
medical treatment. Dr. Davey prepared a work capacity evaluation and indicated that appellant
was capable of performing her usual job and identified restrictions which were attributed to her
diagnosed myofascial pain syndrome rather than the accepted bilateral epicondylitis or bilateral
carpal tunnel syndrome conditions.
On March 17, 2006 the Office issued a notice of proposed termination of compensation
benefits on the grounds that Dr. Davey’s report dated November 8, 2004 established no residuals
of the work-related employment conditions.
On May 25, 2006 appellant, through her attorney, asserted that Dr. Davey performed no
testing as part of his examination, that the examination of appellant was brief and that he was
unaware of the issues to be addressed in appellant’s claim. Appellant requested that she be
referred to an impartial physician.
By decision dated June 19, 2006, the Office terminated appellant’s compensation benefits
effective that day, finding that the weight of the medical evidence established that she had no
continuing disability resulting from her accepted employment injury.
In a letter dated June 27, 2006, appellant requested an oral hearing before an Office
hearing representative. On February 1, 2007 she withdrew her request for an oral hearing and
requested a review of the written record. In a July 18, 2006 report, Dr. Weigert diagnosed
chronic, recalcitrant, bilateral, lateral epicondylitis and forearm myofascial pain consistent with
repetitive stress syndrome. He indicated that appellant would not benefit from further physical
therapy or injection therapy but recommended botulinum toxin for pain. Dr. Weigert
recommended a functional capacity evaluation and vocational rehabilitation.
By decision dated April 18, 2007, the hearing representative affirmed the June 19, 2006
decision.
3

The operative report is not in the case record.

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LEGAL PRECEDENT -- ISSUE 1
Once the Office 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, the Office 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, the Office must
establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.6
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for bilateral elbow tendinitis, bilateral carpal
tunnel syndrome and right middle trigger finger. It authorized a right carpal tunnel release,
which was performed on September 11, 2001, a left carpal tunnel release, which was performed
on January 25, 2002 and a right middle trigger finger release, which was performed on
March 23, 2004.
On June 30, 2004 Dr. Taylor found that appellant could return to work full time without
restrictions. Therefore, the Office referred appellant for a second opinion evaluation by
Dr. Davey, an orthopedist. In a November 8, 2004 report, he diagnosed chronic pain syndrome,
possibly myofascial pain syndrome, resolved lateral epicondylitis and status post surgery for
carpal tunnel syndrome. Dr. Davey noted full range of motion of the arms, shoulders and
elbows, mild to moderate tenderness over the lateral epicondyles, no sign of radial nerve
involvement, full pronation and supination and well-healed carpal tunnel incisions. No thenar or
phyothenar atrophy was noted with full range of motion of the wrists and fingers, good grip
strength bilaterally. Dr. Davey found a normal sensory examination of the hands and no atrophy
of the intrinsic muscles of the hands. He stated that appellant’s subjective symptoms outweighed
the minimal objective findings, which he attributed to her diagnosed myofascial pain syndrome
rather than the accepted bilateral epicondylitis or bilateral carpal tunnel syndrome conditions.
Dr. Davey advised that appellant could return to her regular job with restrictions attributable to
her myofascial pain syndrome.
The Board finds that the opinion of Dr. Davey represents the weight of the evidence and
establishes that appellant’s work-related conditions have resolved. He found that appellant did
not have ongoing residuals of her accepted conditions. In this report, he agreed with Dr. Taylor
that she could return to her regular duties. There is no contemporaneous medical evidence of
equal weight supporting appellant’s claim of ongoing disability and medical residuals. For these
reasons, the Office met its burden of proof in terminating her benefits for her accepted
conditions.
4

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

5

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

6

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

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LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation benefits shifts to the claimant.7
To establish a causal relationship between the condition, as well as any disability claimed
and the employment injury, the employee must submit rationalized medical opinion evidence,
based on a complete factual background, supporting such a causal relationship. Rationalized
medical opinion evidence is medical evidence, which includes a physician’s rationalized 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.
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.8
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that she has any continuing residuals of
her bilateral elbow tendinitis, bilateral carpal tunnel syndrome and right middle trigger finger
causally related to her accepted employment conditions on or after June 19, 2006.
Appellant submitted a report from Dr. Weigert dated July 18, 2006. She diagnosed
chronic, recalcitrant, bilateral, lateral epicondylitis and forearm myofascial pain consistent with
repetitive stress syndrome. Dr. Weigert indicated that appellant would not benefit from further
physical therapy or injection therapy and recommended a functional capacity evaluation,
vocational rehabilitation and work restrictions. However, she did not specifically address how
any continuing condition was causally related to the accepted employment injury. Additionally
Dr. Weigert’s report did not include a rationalized opinion regarding the causal relationship
between appellant’s current condition and her accepted conditions.9 Moreover, the Office never
accepted that appellant sustained forearm myofascial syndrome as a result of her work injury.10
The evidence submitted by appellant after the termination of benefits does not provide a
sufficiently rationalized opinion regarding the causal relationship between her current condition
and her accepted work-related conditions.

7

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

8

See Connie Johns, 44 ECAB 560 (1993); James Mack, 43 ECAB 321 (1991).

9

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
10

See Alice J. Tysinger, supra note 4.

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CONCLUSION
The Board finds that the Office has met its burden of proof to terminate benefits effective
June 19, 2006. The Board further finds that appellant failed to establish that she had any
continuing disability after June 19, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 18, 2007 is affirmed.
Issued: January 29, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 12-416
Issued: July 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 21, 2011 appellant, through his attorney, filed a timely appeal from a
November 10, 2011 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 any employment-related permanent impairment to a
member or function of the body entitling him to a schedule award under 5 U.S.C. § 8107.
FACTUAL HISTORY
On September 30, 2004 appellant, then a 48-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that he sustained a cervical injury causally related to his federal
employment. In an accompanying statement, he identified work duties that included bending,
stooping, reaching and lifting above shoulder. On March 16, 2006 OWCP accepted the claim for
1

5 U.S.C. § 8101 et seq.

cervical strain and temporary aggravation of cervical degenerative disc disease at C4-5 and
C5-6.2
In a report dated July 28, 2009, Dr. Martin Fritzhand, a Board-certified urologist,
provided a history and results on examination. He stated that muscle strength was graded at 4+/5
over the shoulder abductors and rotators bilaterally and pinprick and light touch were diminished
over the radial aspect of the forearms and both thumbs. Dr. Fritzhand opined that appellant had a
10 percent impairment to each arm under the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).
In a report dated August 26, 2009, an OWCP medical adviser recommended a second
opinion evaluation. Appellant was referred to Dr. Theodore Toan Le, an orthopedic surgeon, for
examination. In a November 8, 2010 report, Dr. Toan Le reviewed a history and results on
examination. He found strength of the upper extremities within normal limits and normal
sensation to all peripheral nerves in the upper extremities. Dr. Toan Le opined that under Table
17-2 appellant had a class 1 cervical spine impairment of one to eight percent.
In a report dated November 30, 2010, an OWCP medical adviser stated that a peripheral
nerve impairment was properly determined using The Guides Newsletter July/August 2009
(hereinafter The Guides Newsletter). OWCP’s medical adviser opined that appellant did not
have any sensory or motor impairment.
By report dated April 19, 2011, Dr. Toan Le stated that there was no sensory or motor
deficit in any upper extremity peripheral nerve. He found that appellant had no impairment
under the A.M.A., Guides. Dr. Toan Le noted that appellant did have some limited neck range
of motion and pain with repetitive neck extension or overhead activities.
By decision dated April 27, 2011, OWCP determined that appellant was not entitled to a
schedule award under 5 U.S.C. § 8107.
Appellant, through his representative, requested a telephonic hearing before an OWCP
hearing representative, which was held on August 11, 2011.
In a report dated June 17, 2011, Dr. Fritzhand stated that he did find slight muscle
weakness, as well as diminished sensation, as was noted in his prior report. He stated that, under
The Guides Newsletter, there was a five percent impairment for sensory impairment under
proposed Table 1 for the C6 nerve. Dr. Fritzhand also found a mild motor impairment under the
same table resulted in a nine percent arm impairment bilaterally. He concluded that appellant
had a 14 percent impairment to each arm.
In a decision dated November 10, 2011, an OWCP hearing representative affirmed the
April 27, 2011 decision. The hearing representative found that Dr. Fritzhand’s findings were
inconsistent with other physicians of record and provided insufficient explanation in support of
his impairment estimate.

2

A statement of accepted facts (SOAF) dated October 4, 2010 stated the claim was accepted for cervical disc
degeneration, C4-5 and C5-6, without reference to aggravation.

2

LEGAL PRECEDENT
Section 8017 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.3 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants, OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.5
For peripheral nerve impairments to the upper or lower extremities resulting from spinal
injuries, OWCP procedures indicate that The Guides Newsletter “Rating Spinal Nerve Extremity
Impairment Using the Sixth Edition” (July/August 2009) is to be applied.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 examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.8
ANALYSIS
The Board finds a conflict in medical opinion between appellant’s physician,
Dr. Fritzhand, and the physician selected to perform a second opinion evaluation for OWCP,
Dr. Toan Le. Dr. Fritzhand described results on examination and found motor and sensory
deficits to the upper extremities that he related to the accepted cervical conditions. He applied
The Guides Newsletter for peripheral nerve impairments and found appellant had 14 percent arm
impairment bilaterally. Dr. Toan Le found no sensory or motor deficits or any ratable permanent
impairment.
FECA provides that, when there is a disagreement between an attending physician and a
second opinion physician, the case should be referred for a referee examination. In this case,
3

This section enumerates specific members or functions of the body for which a schedule award is payable and
the maximum number of weeks of compensation to be paid; additional members of the body are found at 20 C.F.R.
§ 10.404(a).
4

A. George Lampo, 45 ECAB 441 (1994).

5

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

6

See P.G., Docket No. 12-30 (issued May 15, 2012); G.N., Docket No. 10-850 (issued November 12, 2010); see
also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010). The
Guides Newsletter is included as Exhibit 4.
7

5 U.S.C. § 8123(a).

8

20 C.F.R. § 10.321 (1999).

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OWCP found that Dr. Fritzhand did not adequately explain his physical examination findings.
But he described his physical examination results and he reported a mild motor deficit and some
sensory deficit. This contrast with the results noted by Dr. Toan Le and necessitates referral to
an impartial physician to resolve the conflict in the medical evidence.
The case will be remanded to OWCP to select a referee physician in accord with
established procedures. The referee physician should provide a rationalized medical opinion as
to any permanent impairment under the sixth edition of the A.M.A., Guides and The Guides
Newsletter. After such further development as OWCP deems necessary, it should issue an
appropriate decision.
CONCLUSION
The Board finds that the case must be remanded to OWCP for further development of the
medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 10, 2011 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: July 2, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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