United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Dallas, TX, Employer
__________________________________________

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Appearances:
Michael E. Woods, for the appellant
Office of Solicitor, for the Director

Docket No. 15-203
Issued: March 12, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 6, 2014 appellant, through his representative, filed a timely appeal from
the October 7, 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 appellant met his burden of proof to establish an injury in the
performance of duty on May 7, 2013.
FACTUAL HISTORY
On May 24, 2013 appellant, then a 59-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on May 7, 2013 he was walking up stairs and slipped on coffee on the
1

5 U.S.C. §§ 8101-8193.

steps, causing him to fall forward and strike his head. He stated that he then grabbed the handrail
and fell backwards. Appellant indicated that the coworker who found him stated that appellant
had been unconscious. He claimed that he sustained a closed head injury and injuries to the left
side of his neck, shoulder, back, and left leg due to this fall. The employing establishment
challenged the claim because two witnesses stated there was no coffee or liquid on the stairs and
the investigation of the incident did not support appellant’s statement. It noted that appellant was
aware of pending disciplinary action prior to the event.
In a June 6, 2013 letter, the employing establishment continued to challenge the claim. It
noted that appellant’s supervisor, Annette Couchenour, had met with appellant on May 6, 2013
to discuss his performance. The employing establishment stated that it could not be
substantiated that an actual slip occurred due to coffee on the stairs based on witness reports and
noted that no report of a spill in the area had been made. Statements from Ms. Couchenour and
Mildred Aday, a coworker, were provided.
Ms. Couchenour stated that at approximately 7:45 a.m. on May 7, 2013 she was notified
that appellant was found in the stairwell and emergency services transported him to the
emergency room. She noted that on May 21, 2013 she contacted appellant who advised that he
was unable to return to work pending an evaluation on May 29, 2013. Ms. Couchenour stated
that appellant told her that he was walking up the second set of stairs and noted coffee on the
floor. Appellant thought that he needed to come back and wipe it up and then he stepped over
the coffee and slipped and fell forward, putting his arm up to protect himself. However, he hit
his head on the step, and then grabbed the rail with his right hand, stood up, and then fell
backwards. Ms. Couchenour stated that appellant denied a loss of consciousness. She noted
that she met with him on April 30 and May 6, 2013 regarding his performance which could lead
to discipline. Ms. Couchenour enclosed statements from the staff members initially on the scene,
Mildred Aday, Napoleon Washington, and Lisa Williams.
Ms. Aday stated that on May 7, 2013 at approximately 8:00 a.m. she opened the door to
go upstairs, but saw appellant lying flat on his back and not moving on the lower platform, with
both heels laying on the second step. She stated that she did not see blood or liquid on the
staircase and did not actually see him fall. Ms. Aday indicated that Ms. Williams and another
coworker Edwina Tellis, were the first to make contact with appellant and remained with him
until 911 arrived.
Mr. Washington stated that Ms. Aday was standing at the entrance door yelling that
appellant was on the floor and several staff went to the stairs. He stated that he observed
appellant lying on his back in the middle part of the stairs with both feet on the stairs and that he
was not responsive when the staff tried to rouse him. Mr. Washington noted that he got wet
paper towels and, after squeezing the water out three times, appellant finally responded, but he
was confused and did not answer questions properly. He stated that he did not recall if there was
any liquid on the stairs where appellant was found, but noted that there were several staff in that
area and he left the area when the paramedics arrived. Mr. Washington noted that he did not
look for fluids on the stairs when he reentered the building.
Ms. Williams stated on May 7, 2013 that she ran down the stairs when she heard
Ms. Aday yelling for help and she met Rita Plata and Mr. Washington by appellant. She stated

2

that appellant was lying in the second landing of the stairwell and that his lower extremities were
up against the second and third step leading upstairs. Ms. Williams stated that appellant was
lethargic, but arousable to verbal stimuli and oriented to self, but not place.
By letter dated June 21, 2013, OWCP advised appellant of the medical evidence needed
to support his claim. It did not ask him to address the employing establishment’s challenge of
the claim.
In a May 29, 2013 report, Dr. David Isradisaikul, an attending Board-certified
neurologist, stated that appellant had been hospitalized from May 7 to 10, 2013 at Methodist
Hospital. He noted that appellant recalled walking up a staircase and falling forward and then
supposedly falling backwards. Dr. Isradisaikul stated that appellant lost consciousness for 10 to
15 minutes and had been foaming at the mouth. He noted that appellant had issues remembering
answers to questions ever since. Dr. Isradisaikul stated that appellant reported left-sided neck
pain, left shoulder pain, and pain in his upper and lower back, but that diagnostic testing was
negative. He stated that appellant feels his speech was slurred and he had been occasionally
vertiginous. Dr. Isradisaikul assessed appellant with what appeared to be a postconcussion
syndrome, as appellant struggled with speech, nausea, vertigo, headaches, mood, and mentation,
and also developed several areas of pain since his fall. He indicated that appellant was unable to
return to work.
Dr. Isradisaikul noted in a June 26, 2013 report that he had reviewed the Methodist
Hospital records and noted it was felt on initial evaluation that appellant had a concussion. He
stated that appellant supposedly fell approximately three feet. Dr. Isradisaikul noted that the
speech pathologist found moderate impairments and inconsistent performance that was atypical
at times. He recommended that appellant remain off work due to his self-reporting of difficulty
with his mentation.
By decision dated July 30, 2013, OWCP denied appellant’s claim on the basis that fact of
injury had not been established. It stated:
“Specifically your case is denied because the evidence is not sufficient to
establish that the event(s) occurred as you described. The reason for this finding
is that the facts stated by you in your claim are conflicting and found to be untrue.
You claimed that while going up stairs you slipped and fell on some spilled coffee
which was present on the steps of the stairs. We have received a witness
statement that on May 7, 2013 at approximately 8:00 a.m. they opened the
upstairs with plans of going down stairs. However, when they opened the door,
they saw you [lying] flat on your back with your eyes closed and not moving on
the platform. Both your heels were resting on the second step…. There was no
evidence of blood or liquid on the staircase nor did they see you fall.”
On August 18, 2013 appellant’s representative requested an oral hearing.
changed this to a request for a review of the written record.

He later

By report dated August 19, 2013, Dr. Edward Wolski, an attending family practitioner,
described the claimed work injury, the results of appellant’s diagnostic testing at the hospital,

3

and his prior medical history. He indicated that appellant’s current symptoms were anxiety,
headaches, double vision, left-sided hearing loss, forgetfulness, poor concentration, crying, loss
of balance, dizziness, difficulty walking, weakness, photophobia, poor appetite, vomiting, and
trouble controlling the bowels. Dr. Wolski diagnosed postconcussion syndrome, cervical and
lumbar radiculitis, and cervical, thoracic, lumbar, and left shoulder sprains. He opined that
appellant sustained these injuries due to his May 7, 2013 fall.
In a September 17, 2013 statement, Anthony McIntyre, a coworker, stated that on the
date of the alleged incident, at approximately 8:00 a.m., he was sitting at his desk in the
Community Home Care office at the Veterans Resource Center at the Herzog Building. He
noted his desk faces west and that his office was about 10 to 12 feet from the stairwell and door.
Mr. McIntyre stated that one of the nurses was about to leave and that, when she opened the door
to go downstairs, she yelled out that appellant was lying on the floor in the stairwell. He stated
that he went behind her to find appellant lying on his back on the landing of the stairwell of the
building with his arms out to his side with his head turned to the right with some saliva coming
from his mouth and running down his cheek. Mr. McIntyre stated that appellant seemed groggy
and did not immediately respond. He stated that they shook appellant and called his name and
appellant stated that his “head hurt.” Appellant’s glasses and other personal items were found
next to him. Mr. McIntyre applied an ice bag to appellant’s groin and appellant did not get up
during this time. He stated that, after more nurses arrived, he moved out of the way and they
called 911 and then the paramedics came and transported appellant to the hospital.
In a March 10, 2014 brief, appellant’s representative argued that appellant’s claim should
be accepted as it was a simple traumatic injury and there is no evidence to support the link
between appellant’s fall and his disciplinary actions. He contended that the witness statements
supported that appellant actually experienced the employment incident on May 7, 2013. Counsel
stated that while the employing establishment challenged the claim because no coffee was found
on the steps, it was unclear whether any of the witnesses were looking for liquid on the steps. He
noted an injury does not have to be witnessed in order to be accepted and that the employing
establishment’s challenge was insufficient to refute appellant’s statement.
By decision dated April 14, 2014, OWCP hearing representative affirmed OWCP’s
July 30, 2013 decision. She found that the fact of injury on May 7, 2013 had not been
established due to inconsistencies in the case record and stated:
“In the present claim, I find there are still unexplained discrepancies regarding the
fact of injury in the claim. While the claimant very clearly stated he saw coffee
on the stairs that he had to step over at work on May 7, 2013, there is no
corroborative evidence to support there was coffee, or any type of liquid on the
stairs. This is a serious discrepancy, considering there were several witnesses to
the condition of the stairs at the time they found the claimant, and none stated
they saw any liquid or hazard on the stairs….
“Another significant discrepancy is that there are no medical records from the
May 7, 2013 emergency department visit submitted to the case record. Such
records would be crucial to document any objective findings on examination,
which would be helpful, as the claimant’s May 7, 2013 diagnostic test results

4

were negative for any signs of a traumatic injury. Another discrepancy is that
although the claimant claimed he sustained multiple serious injuries, he did not
seek further medical attention after May 7, 2013 for over two weeks….”
Appellant’s representative requested reconsideration on behalf of appellant and submitted
a July 10, 2014 brief arguing that appellant’s claimed May 7, 2013 work injury should be
evaluated under the idiopathic fall line of cases. Additional medical evidence was submitted to
OWCP.
In an October 7, 2014 decision, OWCP affirmed its April 14, 2014 decision denying
appellant’s claim for a work-related injury on May 7, 2013. It continued to find that the fact of
injury had not been established due to inconsistencies that cast doubt upon the validity of
appellant’s claim.
LEGAL PRECEDENT
An employee who claims benefits under FECA has the burden of establishing the
occurrence of an injury at the time, place, and in the manner alleged, by a preponderance of the
reliable, probative, and substantial evidence.2 An injury does not have to be confirmed by
eyewitnesses in order to establish the fact that an employee sustained an injury in the
performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his or her subsequent course of action.3 An employee has not met
his or her burden of proof of establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.4 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury, and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining
whether a prima facie case has been established.5 However, an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.6
ANALYSIS
On May 24, 2013 appellant filed a traumatic injury claim alleging that on May 7, 2013 he
was walking upstairs and slipped on coffee on the steps, causing him to fall forward and strike
his head. OWCP denied appellant’s claim finding that he did not establish the incident on
May 7, 2013 due to inconsistencies in the case record regarding the claimed injury.

2

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

3

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

4

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

5

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

6

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

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The Board finds that there are not sufficient inconsistencies in the case record regarding
appellant’s claimed May 7, 2013 injury to cast doubt on that fact that a work incident occurred
on that date as alleged. Appellant’s claim of a May 7, 2013 fall has not been refuted by strong or
persuasive evidence. Therefore, he has established that he sustained a work incident on May 7,
2013 when he fell on stairs at work.
The Board notes that appellant has consistently described the nature of the fall that he
sustained on May 7, 2013. Although he alleged that he slipped on coffee on the stairs and
witnesses indicated that they did not observe liquid on the stairs on May 7, 2013, this does not
pose a serious inconsistency because it remains unclear to what extent the witnesses were
looking for liquids. In fact, the testimony of several witnesses adds credence to appellant’s claim
that he sustained a fall on May 7, 2013 as they observed appellant in a prone position on the
stairs and in a dazed condition around the time of the claimed fall. Moreover, it appears that
appellant sought prompt care for his claimed injury and any apparent gaps in his treatment were
not so great as to cast doubt on his claim. The symptoms observed by attending physicians were
consistent with appellant suffering a fall.
Given that appellant has established a work incident in the form of a fall at work on
May 7, 2103, the case shall be remanded to OWCP to consider whether the medical evidence of
record shows that he sustained a medical condition due to that incident. After carrying out this
development, OWCP shall issue an appropriate decision regarding appellant’s claimed May 7,
2013 work injury.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty on May 7, 2013. Appellant has established a
work incident on May 7, 2013 but the case is remanded to OWCP to determine whether he
sustained a medical condition due to that incident.

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ORDER
IT IS HEREBY ORDERED THAT the October 7, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for proceedings
consistent with this decision of the Board.
Issued: March 12, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
U.S. POSTAL SERVICE, MATTESON POST
OFFICE, Matteson, IL, Employer
__________________________________________

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

Docket No. 20-1199
Issued: February 8, 2021

Case Submitted on the Record

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

JURISDICTION
On May 12, 2020 appellant filed a timely appeal from a May 7, 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the May 7, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 10
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On June 13, 2018 appellant, then a 39-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on that day he sustained a right knee sprain when he stepped into
an unseen hole while in the performance of duty. He initially stopped work on June 13, 2018.
On July 11, 2018 OWCP accepted appellant’s claim for right knee sprain and right ankle
sprain. On April 12, 2019 it expanded acceptance of the claim to include right knee anterior
cruciate ligament (ACL) tear. OWCP paid appellant wage-loss compensation on the supplemental
rolls beginning August 18, 2018.
Appellant underwent OWCP-authorized right knee arthroscopic surgery with ACL
reconstruction and partial medial meniscectomy on February 19, 2019.
In a March 8, 2019 report, Thomas Prokop, a physician assistant, noted that appellant’s
range of motion (ROM) was improving following his ACL reconstruction. He examined appellant
and found that his ROM of the right knee revealed 0 to105 degrees of flexion.
In a report dated April 5, 2019, Dr. George Branovacki, a Board-certified orthopedic
surgeon, noted that appellant was experiencing pain in his right hamstring area. He examined
appellant and found that his right knee showed no deformity, erythema, swelling, or instability.
Appellant’s ROM of his right knee revealed 0 to 110 degrees of flexion.
On May 17, 2019 Dr. Branovacki noted that appellant experienced no changes in his right
knee symptoms. He examined appellant and found no changes in his right knee.
In a June 21, 2019 report, Mr. Prokop noted that appellant experienced some swelling in
his right knee. He examined appellant and found no swelling, ecchymosis, deformity, tenderness,
or palpation in his right knee. Mr. Prokop indicated that appellant had full ROM in his right knee.
In a report dated August 9, 2019, Dr. Branovacki noted that appellant reported increased
pain and effusion in his right knee. He examined appellant and found moderate effusion of his
right knee. Appellant’s ROM of his right knee revealed 0 to 120 degrees of flexion.
Appellant resigned from the employing establishment, effective August 21, 2019.
On August 26, 2019 appellant filed a claim for a schedule award (Form CA-7), and
submitted a magnetic resonance imaging (MRI) scan report of his right knee of even date, which
revealed mucinous degeneration of the ACL graft, abnormal signal within the posterior horn of
the medial meniscus, mild degenerative changes with chondromalacia, joint effusion, and soft
tissue edema.

2

In a September 6, 2019 report, Dr. Branovacki noted that appellant was improving since
his last visit. He examined appellant and found no swelling, ecchymosis, deformity, crepitus,
effusion, or tenderness in his right knee. Dr. Branovacki indicated that appellant had full ROM in
his right knee. He diagnosed right knee pain.
On September 25, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record to Dr. Steven Chandler, an osteopath specializing in orthopedic
surgery, for a second-opinion examination to determine whether appellant suffered residuals from
his accepted conditions.
In a report dated November 7, 2019, Dr. Branovacki noted that appellant experienced only
mild pain in his right knee. He examined appellant and found no changes in his right knee.
Dr. Branovacki diagnosed right knee pain.
In a February 5, 2020 report, Dr. Chandler indicated that he had reviewed the SOAF and
related appellant’s medical history. He examined appellant and diagnosed peripheral tear of the
medial meniscus of the right knee, ACL sprain of the right knee, right ankle sprain, and right knee
sprain. Dr. Chandler opined that appellant’s conditions were causally related to his employment
injury. He indicated that appellant’s right knee and ankle sprains had resolved and that his
meniscus and ACL tears had improved following right knee surgery. Dr. Chandler noted that
appellant had reached maximum medical improvement (MMI) and that he had some permanent
impairment in his right knee due to laxity, pain, and weakness. He opined that appellant could not
experience full recovery in his right knee and found that he could not return to full-duty work as a
city carrier assistant. Dr. Chandler noted that with the type of injury he suffered, that he would
never get 100 percent full recovery of the knee. In an accompanying work capacity evaluation
(Form OWCP-5c), he listed appellant’s work restrictions.
On February 19, 2020 OWCP expanded acceptance of appellant’s claim to include
peripheral tear of the medial meniscus of the right knee.
On February 19, 2020 OWCP referred the case to Dr. Roy Bardwell, a Board-certified
osteopath specializing in osteopathic manipulative treatment, for a second-opinion examination to
determine the percentage of permanent functional loss of the right lower extremity and the date of
MMI for schedule award purposes.
In an April 9, 2020 report, Dr. Bardwell noted that appellant had reached MMI. He
examined appellant and diagnosed right medial meniscus tear, ACL tear, and right ankle sprain.
Dr. Bardwell noted that appellant had chronic pain and swelling in the right knee and had
tenderness with palpation over the medial meniscus. He indicated that appellant had crepitus in
the right knee and passive ROM. Dr. Bardwell provided an impairment rating based on the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).3 He determined that based on his diagnoses, appellant had a grade 3 whole
body impairment with 25 percent lower right extremity impairment.

3

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

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On April 10, 2020 OWCP referred appellant’s medical records, along with the SOAF, for
a schedule award impairment evaluation with Dr. Michael M. Katz, a Board-certified orthopedic
surgeon serving as the district medical adviser (DMA). In an April 15, 2020 report, Dr. Katz
reviewed the medical record and SOAF. Utilizing the diagnosis-based impairment (DBI) method
of the A.M.A., Guides, he identified the class of diagnosis (CDX) as a class 1 impairment for the
diagnosis of cruciate or collateral ligament injury with mild laxity under Table 16-3, page 510.
Dr. Katz assigned a grade modifier for functional history (GMFH) of 1, a grade modifier for
clinical studies (GMCS) of 1, and cited to Table 16-6 and Table 16-8. He found that a grade
modifier for physical examination (GMPE) was not applicable and calculated that appellant had a
net adjustment of zero, resulting in no movement from the default value of C. Dr. Katz found 10
percent lower extremity impairment. He found that appellant’s diagnosed conditions did not meet
the criteria to allow impairment to be calculated by the ROM methodology and concluded that
appellant reached MMI on February 3, 2020. Dr. Katz disagreed with Dr. Bardwell’s impairment
rating of 25 percent as he did not provide any worksheets, narrative, or calculations to explain how
he reached his determination.
By decision dated May 7, 2020, OWCP granted appellant a schedule award for 10 percent
permanent impairment of his right lower extremity based on the DMA’s report, to which it afforded
the weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provisions of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA, does not specify the manner in which the percentage loss of a member shall be determined.
The method used in making such a determination is a matter which rests in the discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified
edition of the A.M.A., Guides.6 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.7
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning Disability and Health

4

Supra note 1.

5

20 C.F.R. § 10.404.

6
For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Chapter 3.700, Exhibit 1 (January 2010).
7
See C.N., Docket No. 20-0543 (issued November 30, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018);
Isidoro Rivera, 12 ECAB 348 (1961).

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(ICF).8 Under the sixth edition, the evaluator identifies the CDX, which is then adjusted by the
GMFH, GMPE, and GMCS.9 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).10 Evaluators are directed to provide reasons for their impairment rating, including
the choice of diagnoses from regional grids, and the calculation of the modifier score.11
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of permanent
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.12
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted appellant’s claim for right knee sprain, right ankle sprain, right knee ACL
tear, and peripheral tear of the medial meniscus of the right knee.
In an April 9, 2020 report, Dr. Bardwell examined appellant and diagnosed right medial
meniscus tear, ACL tear, and right ankle sprain. He determined that under the sixth edition of the
A.M.A., Guides, appellant had a grade 3 whole body impairment with 25 percent lower extremity
impairment, but did not explain the basis of his determination. Consistent with its procedures,13
OWCP properly referred the matter to a DMA for an opinion regarding appellant’s permanent
impairment in accordance with the sixth edition of the A.M.A., Guides.14
In an April 15, 2020 report, Dr. Katz, serving as the DMA, determined that appellant had
10 percent lower extremity impairment. Utilizing the DBI method of the sixth edition of the
A.M.A., Guides, he identified the CDX as a class 1 impairment for the diagnosis of cruciate or
collateral ligament injury with mild laxity under Table 16-3, page 510. Dr. Katz assigned a GMFH
and GMCS with reference to Table 16-6 and Table 16-8. He calculated a net adjustment of zero
and found that appellant’s diagnosed conditions did not meet the criteria to allow impairment to
be calculated by the ROM methodology. Dr. Katz disagreed with Dr. Bardwell’s impairment
rating of 25 percent as he did not provide any explanation or calculations to explain how he reached
his rating.
8
A.M.A., Guides, page 3, section 1.3, The International Classification of Functioning, Disability, and Health (ICF):
A Contemporary Model of Disablement.
9

Id. at 493-556.

10

Id. at 521.

11
E.W., Docket No. 19-1720 (issued November 25, 2020); R.R., Docket No. 17-1947 (issued December 19, 2018);
R.V., Docket No. 10-1827 (issued April 1, 2011).
12

See supra note 6 at Chapter 2.808.6(f) (March 2017).

13

Id.

14

See E.W., supra note 11.

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The Board finds that Dr. Katz disagreed with Dr. Bardwell’s impairment rating of 25
percent as he did not provide any explanation to support his rating. However, the Board finds that
Dr. Katz also failed to adequately explain his opinion in accordance with the relevant standards.
Although he identified the CDX, Dr. Katz did not sufficiently explain how he classified appellant’s
cruciate or collateral ligament injury based on severity.15 Further, as noted, GMFH, GMPE, and
GMCS should be considered.16 Dr. Katz did not provide a GMPE. While he cited to Table 16-6
and Table 16-8, he did not explain the application of GMFH and GMCS.17 The Board also finds
that, while Dr. Katz evaluated appellant’s permanent impairment rating utilizing the DBI
methodology, he did not sufficiently explain why the ROM methodology should not have been
used as a basis for the rating.18 Consequently, the Board finds that Dr. Katz’s report requires
clarification.
It is well established that proceedings under FECA are not adversarial in nature, and while
the employee has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.19 Once OWCP undertook development of the
evidence by referring appellant’s case file to an OWCP medical adviser, it had an obligation to do
a complete job and obtain a proper evaluation and report that would resolve the issue in this case.20
The case is therefore remanded to OWCP for referral of the case record and a SOAF to the DMA
for a proper analysis under the A.M.A., Guides in order to determine if appellant has greater than
10 percent permanent impairment of his right lower extremity. After this and such other further
development as deemed necessary, OWCP shall issue a de novo decision on appellant’s schedule
award claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

15

See D.O., Docket No. 19-1729 (issued November 3, 2020); R.O., Docket No. 10-2143 (issued August 15, 2011).

16

Supra note 9.

17

See D.O., supra note 15.

18

See M.A., Docket No. 19-1732 (issued September 9, 2020).

19

See W.W., Docket No. 18-0093 (issued October 9, 2018); Donald R. Gervasi, 57 ECAB 281, 286 (2005);
William J. Cantrell, 34 ECAB 1233, 1237 (1983).
20
See G.M., Docket No. 19-1931 (issued May 28, 2020); Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi,
56 ECAB 234 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the May 7, 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: February 8, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bedford Park, IL, Employer
__________________________________________

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)
)
)
)
)
)
)

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

Docket No. 14-1896
Issued: January 15, 2015

Case Submitted on the Record

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

JURISDICTION
On August 25, 2014 appellant filed a timely appeal from the August 14, 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 appellant met her burden of proof to establish more than two percent
permanent impairment of her right arm, for which she received a schedule award.
FACTUAL HISTORY
On May 28, 2008 OWCP accepted that appellant, then a 54-year-old secretary, sustained
temporary aggravation of right carpal tunnel syndrome, temporary aggravation of right
de Quervain’s/radial styloid tenosynovitis, and temporary aggravation of tendinitis of the right
hand and wrist due to the performance of her repetitive work duties. It later accepted that she
1

5 U.S.C. §§ 8101-8193.

sustained additional work injuries including bilateral carpal tunnel syndrome, right lateral
epicondylitis, and disorder of bursae and tendons in the right shoulder.
In a December 29, 2011 report, Dr. Samuel Chmell, an attending Board-certified
orthopedic surgeon, indicated that, under Table 15-23 on page 449 of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009), appellant had a 23 percent left arm impairment due to carpal tunnel syndrome. Under
Table 15-32 through Table 15-34, she had 56 percent right arm impairment due to limited range
of motion of her right wrist, elbow, and shoulder.
In an April 25, 2013 report, Dr. Chmell stated that his prior impairment rating was based
not only on carpal tunnel syndrome but also on tenosynovitis of the right hand and wrist,
disorder bursae/tendons of the right shoulder, and lateral epicondylitis of the right elbow.
Appellant filed a claim for a schedule award and, in a February 7, 2014 decision, OWCP
determined that she had not submitted sufficient medical evidence to establish that she sustained
permanent impairment entitling her to schedule award compensation.2
Dr. Allan Brecher, a Board-certified orthopedic surgeon serving as an OWCP referral
physician, discussed appellant’s medical history and detailed the findings of his physical
examination on June 27, 2014. In his June 30, 2014 report, he stated that, upon examination,
appellant’s right shoulder had full active range of motion and no signs of impingement.
Appellant’s left shoulder demonstrated adhesive capsulitis and she could only flex and abduct to
80 degrees, but had full internal and external rotation and adduction. She reported that she was
tender over the first extensor compartment on the right, but not the left. Dr. Brecher indicated
that sensibility was grossly intact and that appellant had no decreased motion of her fingers and
hands. There was no catching or triggering and a positive Finkelstein test was only found on the
right. Dr. Brecher stated that there was no epicondyle tenderness and that appellant “had full
motion of the elbows, wrists, and fingers with good strength.” He indicated that appellant no
longer had carpal tunnel syndrome and that her last electromyogram (EMG) did not show any
right carpal tunnel syndrome. Therefore, Dr. Brecher determined that appellant had no
permanent impairment due to carpal tunnel syndrome. He concluded that appellant had two
percent permanent impairment of her right arm under the standards of the sixth edition of the
A.M.A., Guides and stated:
“As for [appellant’s] epicondylitis, that has also resolved, as has the right shoulder
tend[i]nitis. Therefore, there is no impairment. [Appellant] does have continuing
de Quervain tenosynovitis only on the right. Therefore, we look at Table 15-5,
she has a class 1, grade D, functional history 2, physical exam[ination] 2, clinical
studies 3, and [QuickDASH] score 52 gives her 2 percent upper extremity
impairment. Therefore, [appellant’s] regional impairment is 2 percent.”3
2

In a February 18, 2014 report, Dr. Chmell again asserted that his method of rating appellant’s permanent
impairment was valid.
3

Regarding Dr. Chmell’s April 25, 2013 report, Dr. Brecher stated that in the past Dr. Chmell had used the range
of motion rating method, but noted that this was “not relevant as we are supposed to us diagnosis-related
impairment.” An attached worksheet indicates that Dr. Brecher used Table 15-5 to rate the diagnosed-based
condition of right shoulder tendinitis.

2

In an August 4, 2014 report, Dr. David H. Garelick, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, indicated that he agreed with Dr. Brecher’s assessment
that appellant had two percent permanent impairment of her right arm under the standards of the
sixth edition of the A.M.A., Guides.
In an August 14, 2014 decision, OWCP granted appellant a schedule award for two
percent permanent impairment of her right arm. The award ran for 6.24 weeks from June 27 to
August 9, 2014 and was based on the impairment rating contained in the June 30, 2014 report of
Dr. Brecher, OWCP referral physician, as affirmed by the August 4, 2014 report of Dr. Garelick,
OWCP medical adviser.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.7
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, reference is made to Table 15-5 (Shoulder
Regional Grid) beginning on page 401. After the Class of Diagnosis (CDX) is determined from
the Shoulder Regional Grid (including identification of a default grade value), the Net
Adjustment Formula is applied using the grade modifier for Functional History (GMFH), grade
modifier for Physical Examination (GMPE) and grade modifier for Clinical Studies (GMCS).
The Net Adjustment Formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8 Under
Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices,
including choices of diagnoses from regional grids and calculations of modifier scores.9
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability, Chapter
2.808.5(a) (February 2013).
8

See A.M.A., Guides (6th ed. 2009) 401-11. Table 15-5 also provides that, if motion loss is present for a claimant
who has certain shoulder diagnoses, impairment may alternatively be assessed using Section 15.7 (range of motion
impairment). Such a range of motion impairment stands alone and is not combined with a diagnosis impairment.
Id. at 405, 475-78. The range of motion method may also be used to evaluate impairment for certain diagnosisbased conditions of the digits, wrists, and elbows. Id. at 391-400, 468-74, 476-78.
9

Id. at 23-28.

3

It is well established that proceedings under FECA are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.10
ANALYSIS
OWCP accepted that appellant sustained temporary aggravation of right carpal tunnel
syndrome, temporary aggravation of right de Quervain’s/radial styloid tenosynovitis, and
temporary aggravation of tendinitis of the right hand and wrist due to the performance of her
repetitive work duties over time. It later accepted that she sustained additional work injuries,
including bilateral carpal tunnel syndrome, right lateral epicondylitis, and disorder of bursae and
tendons in the right shoulder.
In an August 14, 2014 decision, OWCP granted appellant a schedule award for a two
percent permanent impairment of her right arm. The award was based on the impairment rating
contained in the June 30, 2014 report of Dr. Brecher, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, as affirmed by the August 4, 2014 report of Dr. Garelick,
a Board-certified orthopedic surgeon serving as an OWCP medical adviser.
In his June 30, 2014 report, Dr. Brecher detailed his June 27, 2014 examination of
appellant and concluded that she had a two percent permanent impairment of her right arm under
the standards of the sixth edition of the A.M.A., Guides. The Board finds that his second opinion
report is in need of clarification for several reasons.
In his report, Dr. Brecher stated that appellant’s right epicondylitis and right shoulder
tendinitis had resolved, but that her right de Quervain tenosynovitis, a thumb/wrist condition, had
not resolved. He then proceeded to rate the ostensibly resolved right shoulder tendinitis
condition under Table 15-5 on page 402 without explaining why he chose this diagnosis-based
condition as the primary condition for rating. Although Dr. Brecher provided grade modifiers in
rating this condition under Table 15-5, he did not provide adequate explanation for how he chose
the grade modifiers for functional history, physical examination and clinical studies.11 He
indicated that various accepted conditions had resolved, including bilateral carpal tunnel
syndrome, but did not provide adequate discussion as to why he opined they had resolved.
Dr. Brecher commented upon the rating by Dr. Chmell by discounting his use of range of motion
rather than the diagnosis of carpal tunnel syndrome noting such rating is not relevant “as we are
supposed to use diagnosis-related impairment.”12
For these reasons, the case shall be remanded to OWCP for further clarification of
Dr. Brecher’s opinion that appellant only has two percent permanent impairment of her right
10

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

11

See supra note 9.

12

It should be noted that Dr. Brecher discounted the range of motion rating method employed by Dr. Chmell, an
attending Board-certified orthopedic surgeon, without fully explaining his opinion. The Board notes that Table 15-5
of the sixth edition provides that the range of motion rating method may, in some cases, be used for certain
diagnosis-based conditions of the digits, wrists, elbows, and shoulders as an alternative rating method. A.M.A.,
Guides 391-405, 468-78.

4

arm. After carrying out this development, OWCP shall issue an appropriate decision regarding
appellant’s entitlement to schedule award compensation.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met her burden of proof to establish more than two percent permanent impairment of her right
arm, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: January 15, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2001
Issued: March 12, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 14, 2008 appellant filed an appeal of a nonmerit June 2, 2008 decision of the
Office of Workers’ Compensation Programs denying her request for reconsideration and
December 10, 2007 and May 14, 2008 merit decisions concerning a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits and the nonmerit
issue in this case.
ISSUES
The issues are: (1) whether appellant has more than a five percent impairment of the left
upper extremity and more than a five percent impairment of the right upper extremity, for which
she received schedule awards; and (2) whether the Office properly refused to reopen appellant’s
claim for merit review pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 4, 1999 appellant, then a 39-year-old letter carrier, filed a claim for carpal
tunnel syndrome, which she alleged was due to her federal employment. The Office accepted

the claim for bilateral carpal tunnel syndrome. It paid appropriate benefits, including left carpal
tunnel release, which appellant underwent March 2001. In May 2004, appellant was placed in a
nonfederal position. By decision dated August 25, 2005, the Office determined that appellant’s
employment with the Hackensack University Medical Center as a medical assistant represented
her wage-earning capacity.
On August 22, 2006 appellant filed a claim for a schedule award. In a November 9, 2005
medical report, Dr. David Weiss, an osteopath, noted that appellant had positive Tinel’s sign,
positive Phalen’s sign and positive compression test for both the left and right wrists as well as
diminished light touch sensibility over the median nerve distribution in the right and left hands.
Grip strength testing via Jamar hand dynamometer at Level 3 revealed 18 kilograms (kg) on both
the right and left sides. Pinch key unit measured 4 kg on the right versus 5 kg on the left.
Semmes-Weinstein monofilament testing revealed a diminished light touch sensibility at
2.83 milligrams over the median nerve distribution in both the right and left hand. Under the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), Dr. Weiss opined that appellant sustained 31 percent right arm
impairment and 13 percent left arm impairment. The 31 percent right arm impairment was
comprised of 10 percent impairment for a Grade 4 in the right median nerve,1 20 percent right
lateral pinch deficit2 and 3 percent for pain.3 The 13 percent left upper extremity impairment
was comprised of 10 percent impairment for a Grade 4 in the left median nerve4 and 3 percent
pain.5 Dr. Weiss concluded that appellant reached maximum medical improvement on
November 9, 2005.
On September 27, 2006 an Office medical adviser reviewed appellant’s case record. He
opined that Dr. Weiss utilized a nonstandard Semmes-Weinstein method for determining sensory
loss under the A.M.A., Guides and recommended reexamination to obtain an accurate reading.
By letter dated April 27, 2007, the Office referred appellant, together with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. Harold H.
Alexander, a Board-certified orthopedic surgeon, for a second opinion examination. In a
May 14, 2007 medical report, Dr. Alexander stated that his examination findings indicated no
atrophy with intact pinprick sensation and full range of motion with normal grip strength. He
opined that appellant sustained 11 percent impairment for each hand under Tables 15-15
and 15-16 of the A.M.A., Guides. For the left side, Dr. Alexander opined that appellant had a
Grade 4 sensory deficit under Table 15-15, which would amount to a 10 percent sensory
impairment. He found that appellant had a Grade 4 or 20 percent bilateral motor deficit under
Table 15-16 on page 424, which, when multiplied by the maximum percent loss of function for
the appropriate nerve root at Table 15-17 resulted in a 7 percent motor deficit on the right
1

A.M.A., Guides 482, Table 16-10 and 492, Table 16-15.

2

Id. at 509, Tables 16-33 and 16-34.

3

Id. at 574, Figure 18-1.

4

Id. at 482, Table 16-10 and 492, Table 16-15.

5

Id. at 574, Figure 18-1.

2

and 7 percent motor deficit on the left. Dr. Alexander also advised that under page 424 and the
same charts, appellant had one percent sensory deficit bilaterally. He indicated that this would
give her a combined motor sensory deficit of 11 percent for each hand.
On August 2, 2007 an Office medical adviser reviewed appellant’s case record and
concluded that clarification was needed to find out how Dr. Alexander determined the
impairment rating. He noted that Dr. Alexander used the tables for nerve root impairment
although the medical examination revealed no atrophy, intact pin prick sensation, full range of
motion and normal grip strength. The Office medical adviser indicated that the impairment
assessment should have been calculated using the instructions for carpal tunnel syndrome
conditions on page 495 of the A.M.A., Guides. He noted that appellant’s impairment applied to
scenario number 2 on page 495 of the A.M.A., Guides, which would entitle her to a five percent
impairment for carpal tunnel syndrome for each upper extremity.
On August 24, 2007 Dr. Alexander reviewed the Office medical adviser’s comments and
agreed that a rating of 5 percent impairment for each upper extremity was warranted. On
August 28, 2007 another Office medical adviser concurred with the impairment assessment of
five percent impairment for each upper extremity.
A copy of appellant’s February 17, 1999 electrodiagnostic studies of the upper
extremities were submitted. Such testing revealed moderate to severe sensorimotor median
neuropathies at the wrists, left greater than right (carpal tunnel syndrome).
By decision dated December 10, 2007, the Office granted appellant a schedule award for
five percent impairment of the right arm and five percent impairment of the left arm. The period
of the award ran from September 9, 2005 to April 15, 2006.
Appellant requested a review of the written record by an Office hearing representative.
In a January 17, 2008 letter, appellant’s attorney noted that the Office put appellant out on
disability because there was no work for her. He referenced Dr. Weiss’ experience and
familiarity with the A.M.A., Guides and referred to Dr. Alexander’s and Dr. Weiss’ disability
assessments.
By decision dated May 14, 2008, an Office hearing representative affirmed the Office’s
December 10, 2007 schedule award.
In a May 22, 2008 letter, appellant’s attorney requested reconsideration. He noted
Dr. Alexander’s and Dr. Weiss’ disability assessments and reiterated appellant was removed
from federal employment due to her severe carpal tunnel syndrome.
By decision dated June 2, 2008, the Office denied appellant’s request for reconsideration
finding that she did not submit new and relevant evidence or legal argument in support of her
claim.

3

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulations7 set forth the number of weeks of compensation to be paid for
permanent loss or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.8 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.9
The fifth edition of the A.M.A., Guides, regarding carpal tunnel syndrome, provides:
“If, after optimal recovery time following surgical decompression, an individual
continues to complain of pain, paresthesias and/or difficulties in performing
certain activities, three possible scenarios can be present -1. Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual [carpal tunnel
syndrome] is rated according to the sensory and/or motor deficits as
described earlier.
2. Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal [electromyogram] testing of the thenar
muscles: a residual [carpal tunnel syndrome] is still present and an
impairment rating not to exceed five percent of the upper extremity may
be justified.
3. Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”10
The Board has found that, in accordance with the fifth edition of the A.M.A., Guides,
impairment arising from carpal tunnel syndrome should be rated on motor and sensory deficits
only.11 The A.M.A., Guides provides that, in compression neuropathies, additional impairment

6

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

7

20 C.F.R. § 10.404.

8

5 U.S.C. § 8107(c)(19).

9

See supra note 7.

10

A.M.A., Guides 495; Silvester DeLuca, 53 ECAB 500 (2002).

11

Id. at 494; Robert V. Disalvatore, 54 ECAB 351 (2003).

4

values are not given for decreased motion in the absence of a complex regional pain syndrome.12
Carpal tunnel syndrome is an entrapment/compression neuropathy of the median nerve.13
ANALYSIS -- ISSUE 1
The Office granted appellant a schedule award for five percent impairment of the right
upper extremity and five percent impairment of the left upper extremity due to her employmentrelated bilateral carpal tunnel syndrome. On appeal, appellant contends that she is entitled to
greater than the schedule award received.
Dr. Weiss provided an impairment rating on November 9, 2005. In considering an
impairment rating for the right and left upper extremities, he included separate ratings for
sensory deficit in the median nerve, lateral pinch deficit and pain. The A.M.A., Guides indicates
that only sensory and motor deficits are to be considered when rating impairment due to carpal
tunnel syndrome.14 As noted, appellant underwent surgery to correct the carpal tunnel syndrome
on the left side and the right side was treated nonsurgically. For the left side, Dr. Weiss provided
a rating for sensory deficit in the median nerve, but did not explain how or why Table 16-10
applied as opposed to the scenarios present after surgical decompression as listed on page 495 of
the A.M.A., Guides. He also provided a pain-related impairment under Chapter 18 of the
A.M.A., Guides for the left side.15 The Board notes, however, that the Office has advised its
staff that Chapter 18 is generally not to be used.16 The A.M.A., Guides warns that examiners
should not use Chapter 18 to rate pain-related impairment for any condition that can be
adequately rated on the basis of the body and organ impairment rating systems given in the other
chapters.17 Dr. Weiss did not adequately explain how any sensory impairment to appellant’s left
arm was not adequately addressed under the other Chapters of the A.M.A., Guides or how her
condition came within one of the several situations identified under Chapter 18.3a.18
For the right arm, he provided an impairment rating for sensory deficit in the median
nerve, lateral pinch deficit and pain. However, Dr. Weiss did not sufficiently explain how he
calculated 10 percent sensory deficit in the median nerve on the right side or provide any
explanation of how or why an additional impairment for pain was necessary. The Board notes
12

Id. at 494; see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 4 (June 2003); Kimberly M. Held, 56 ECAB 670 (2005).
13

Id. at 492.

14

See supra note 11.

15

See A.M.A., Guides 573.

16

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 Exhibit 4
(November 2002).
17

A.M.A., Guides 571.

18

Section 18.3a of the A.M.A., Guides provides that a pain-related impairment can be rated when there is excess
pain in the context of a verifiable medical condition that causes pain, when there are well-established pain
syndromes without significant identifiable organ dysfunction to explain the pain and when there are other associated
pain syndromes. Id. at 570.

5

that Office procedures provide that grip or pinch strength should not be used to calculate upper
extremity impairment caused by a compression neuropathy such as carpal tunnel syndrome.19
Additionally, the Office medical adviser who reviewed Dr. Weiss’ report found that the
physician did not use the standard Semmes-Weinstein method for determining sensory loss under
the A.M.A., Guides. Therefore, the Board finds that Dr. Weiss’ total impairment ratings are
insufficient to form the basis for a schedule award for either upper extremity.
In his May 14, 2007 report, Dr. Alexander provided an impairment rating for the right
and left upper extremities based on sensory and motor deficits arising from unilateral spinal
nerve root, which affects the upper extremity under Tables 15-15, 15-16 and 15-17 of the
A.M.A., Guides. However, he failed to identify the impaired nerve root or provide a clear
description of how his calculations resulted in 11 percent impairment for both the right and left
sides. Additionally, Dr. Alexander failed to explain why Tables 16-10 and 16-11, which relate to
impairment relating from peripheral nerve disorders or Table 16-15, which notes the maximum
impairment allowed for the median nerve, were not used. The Office medical adviser who
reviewed Dr. Alexander’s report correctly noted that the physician’s impairment rating did not
comport to the medical examination findings, which revealed no atrophy, intact pin prick
sensation, full range of motion and normal grip strength. As Dr. Alexander did not adequately
explain his impairment rating, the Office properly provided him an opportunity to explain his
impairment findings under the A.M.A., Guides.20
In his August 24, 2007 report, Dr. Alexander rated impairment of both the right and left
upper extremities as five percent for appellant’s accepted bilateral carpal tunnel syndrome
pursuant to 16.5d entrapment/compression neuropathy, carpal tunnel syndrome, page 495, of the
A.M.A. Guides. As noted, however, the scenarios presented at page 495 pertain to individuals
who have undergone surgical decompression. Appellant underwent surgery to correct her carpal
tunnel syndrome on the left side, not on the right side. Thus, the method for determining residual
impairment due to carpal tunnel syndrome postsurgery is only applicable for the left upper
extremity in this case. In this case, there is no other evidence to indicate a greater impairment
than the five percent left upper extremity impairment awarded appellant.
As appellant did not undergo surgery to correct her right carpal tunnel symptoms, the
schedule award for carpal tunnel syndrome for the right upper extremity in this case should be
based on motor and sensory impairments.21 Dr. Alexander, in his May 14, 2007 report, did not
use provisions in Chapter 16 of the A.M.A., Guides for rating motor and sensory impairments
and his August 24, 2007 supplemental report provided no rationale for his five percent
impairment rating or why he evaluated appellant’s right upper extremity under the scenarios
presented at page 495 of the A.M.A., Guides that pertain to surgical decompression. Therefore,
he did not properly address whether appellant’s right carpal tunnel syndrome resulted in motor or
sensory impairment. Because Dr. Alexander’s rating of permanent impairment for the right arm
19

See supra note 16.

20

See Robert Kirby, 51 ECAB 474 (2000); Mae Z. Hackett, 34 ECAB 1421, 1426 (1983); Richard W. Kinder,
32 ECAB 863, 866 (1981) (where the Board found that the report of the Office referral physician did not resolve the
issue in the case).
21

A.M.A., Guides 494-95; see E.L., 59 ECAB ___ (Docket No. 07-2421, issued March 10, 2008).

6

does not conform to the standards adopted by the Office, it is of diminished probative value. The
Board will set aside the Office’s December 10, 2007 decision in part and remand the case for
proper development of the medical evidence pertaining to appellant’s right arm. After such
further development as may be required, the Office shall issue an appropriate final decision on
appellant’s entitlement to schedule award compensation for the right upper extremity.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.22 Section 10.606(b)(2) of Office regulations provide that a claimant
may obtain review of the merits of the claim by either: (1) showing that the Office erroneously
applied or interpreted a specific point of law; (2) advancing a relevant legal argument not
previously considered by the Office; or (3) constituting relevant and pertinent new evidence not
previously considered by the Office.23 Section 10.608(b) provides that when an application for
reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.24 The Board has held that the submission of evidence which does not
address the particular issue involved does not comprise a basis for reopening a case.25 Likewise,
it is well established that evidence which repeats or duplicates that already of record does not
constitute a basis for reopening a case for merit review.26
ANALYSIS -- ISSUE 2
As noted above, appellant has not established that she has greater than the five percent
impairment to her left upper extremity. On reconsideration, she contended that the Office
considered her disabled and unable to work in her date-of-injury position. Disability, however,
is a separate determination from impairment, which is at issue in this case.27 Thus, appellant’s
argument pertaining to disability is irrelevant to the issue in this case. Her contention does not
represent an argument that the Office erroneously applied a point of law or a new relevant legal
argument. Moreover, appellant did not submit any medical evidence relevant to the issue of the
22

5 U.S.C. § 8128(a).

23

20 C.F.R. § 10.606(b)(2).

24

Id. at § 10.608(b).

25

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

26

See Arlesa Gibbs, 53 ECAB 204 (2001).

27

The term disability is defined as an inability, due to an employment injury, to earn the wages the employee was
receiving at the time of the injury, i.e., an impairment resulting in loss of wage-earning capacity. See S.F., 59 ECAB
___ (Docket No. 08-426, issued July 16, 2008); Prince E. Wallace, 52 ECAB 357 (2001). Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn wages. An employee
who has a physical impairment causally related to a federal employment injury, but who nevertheless has the
capacity to earn the wages he or she was receiving at the time of injury, has no disability as that term is used in the
Act. Cheryl L. Decavitch, 50 ECAB 397 (1999).

7

extent of permanent impairment of the left upper extremity. She did not meet any of the
requirements for reopening her case for merit review under section 10.606(b)(2). The Office
properly denied further consideration of appellant’s case on the merits.28
CONCLUSION
The Board finds this case is not in posture for decision regarding appellant’s entitlement
to a schedule award for her right upper extremity. With respect to the left upper extremity, the
Board finds that appellant has no more than five percent impairment and that the Office properly
denied her request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated June 2, 2008 is affirmed and the May 14, 2008 and December 10, 2007 decisions
are affirmed in part and set aside in part and the case remanded for further action consistent with
this decision.
Issued: March 12, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

28

As noted in the analysis of issue one, appellant will receive a merit review regarding her entitlement to a
schedule award for her right upper extremity.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Atlanta, GA, Employer
__________________________________________

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)
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)
)
)
)
)

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

Docket No. 18-1340
Issued: March 6, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 25, 2018 appellant filed a timely appeal from March 23 and May 3, 2018 merit
decisions 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.2
ISSUES
The issues are: (1) whether OWCP abused its discretion by denying authorization for left
knee surgery; and (2) whether OWCP has met its burden of proof to terminate appellant’s wage1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 3, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

loss compensation and medical benefits, effective May 4, 2018, as she no longer had residuals or
disability causally related to her accepted May 16, 2017 left knee injury.
FACTUAL HISTORY
On June 6, 2017 appellant, then a 36-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on May 16, 2017 she experienced sharp pain in
her left knee when she bent down to get a passenger’s shoe that had dropped in the catch tray.3
OWCP accepted appellant’s claim for left knee sprain. Appellant received continuation of
pay beginning June 14, 2017, and OWCP paid wage-loss compensation beginning July 27, 2017.
OWCP placed her on the periodic rolls, effective September 17, 2017.
On July 27, 2017 appellant underwent diagnostic testing. A left knee x-ray examination
showed moderate tricompartment osteoarthritis of the left knee. A left knee magnetic resonance
imaging (MRI) scan report showed markedly degenerated and diminutive appearance of the
anterior horn of the lateral meniscus and diminutive appearance of the lateral meniscus, moderate
lateral compartment osteoarthritis, two-millimeter full-thickness chondral defect of the medial
trochlea, and a small cyst.
Appellant received medical treatment from Dr. Jon Hyman, a Board-certified orthopedic
surgeon. In a November 3, 2017 examination report, Dr. Hyman related that she had failed to note
significant improvement in her left knee pain with nonsurgical management. He indicated that
updated diagnostic testing showed progressive changes in appellant’s knee, including diseased
lateral meniscus, further cartilage erosion to the lateral compartment, and marginal osteophytes.
Examination of appellant’s left knee revealed tenderness to palpation in the medial and lateral joint
lines and trace effusion. Dr. Hyman noted range of motion was full. He diagnosed: status post
left knee arthroscopy, May 7, 2014; status post right knee arthroscopy, chondroplasty, and
synovectomy, June 2, 2016; reaggravation of left knee, May 16, 2017; left knee pain; and chondral
defect. Dr. Hyman noted: “[that] there are appropriate indications for surgery.” He discussed the
risks and benefits of surgery with appellant. Dr. Hyman reported that they decided to proceed with
surgery.
On November 29, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a copy of the record, to Dr. Howard B. Krone, a Board-certified orthopedic surgeon,
for a second-opinion evaluation regarding the status of her work-related May 16, 2017
employment injury and work capacity. In a December 19, 2017 report, Dr. Krone reviewed the
SOAF and the medical evidence of record. He accurately described the May 16, 2017 employment
incident and noted that appellant’s claim had been accepted for a left knee sprain. Dr. Krone also
noted that a July 27, 2017 left knee x-ray examination was indicative of mild degenerative
osteoarthritic changes. Upon physical examination of appellant’s bilateral knees, he observed no
evidence of swelling, effusion, or crepitus. Range of motion of both knees was 0 to 145 degrees

3
The record reveals that appellant was, at that time, working limited duty for a previously accepted claim under
File No. xxxxxx964.

2

with no pain at the extreme of flexion or extension. Dr. Krone reported slight tenderness on
palpation over the anterior lateral aspect of the left knee and positive McMurray’s sign.
In response to OWCP’s questions, Dr. Krone indicated that appellant’s accepted left knee
sprain had resolved. He explained that most sprains reach maximum medical improvement (MMI)
four to six weeks postinjury and related that she was now seven months’ post recurrent injury.
Dr. Krone further reported that, according to appellant’s medical records, she was still
symptomatic with left knee pain following her left knee surgery in 2014. He concluded that she
had recovered completely from her left knee sprain and that her current symptoms were secondary
to her preexisting degenerative arthritis of the lateral compartment of her left knee. Dr. Krone
opined that there was no further need for treatment and completed a work capacity evaluation form
(OWCP-5c) which indicated that appellant could return to work at her usual job.
On February 14, 2018 OWCP received appellant’s request for authorization for left knee
arthroscopic surgery and revision of knee joint.
In a February 15, 2018 development letter, OWCP found that the medical evidence of
record was insufficient to authorize the surgery because the requested treatment did not appear to
be medically necessary for and/or causally related to appellant’s accepted conditions. It requested
a medical narrative from appellant’s physician describing why the procedure was medically
necessary and what future benefits he or she hoped to attain through the surgery. OWCP afforded
appellant 30 days to submit additional evidence and respond to its inquiries.
In a February 23, 2018 report, Dr. Todd Fellars, a Board-certified orthopedic surgeon and
OWCP district medical adviser (DMA), indicated that he reviewed the SOAF and the medical
record, including Dr. Hyman’s November 3, 2017 report. He noted his disagreement with
Dr. Hyman’s recommendation for left knee surgery and opined that there was no causal
relationship between appellant’s accepted condition of left knee sprain and the need for surgery.
Dr. Fellars explained that Dr. Hyman recommended surgery to stage her osteoarthritis and
determine whether osteochondral transfer was viable, but noted that her claim was not accepted
for left knee osteochondral lesion or left knee osteoarthritis. Furthermore, he reported that, based
on the documented information, appellant’s underlying arthritis had progressed to the extent that
the requested surgery would not be beneficial to treat her left knee pain.
By decision dated March 23, 2018, OWCP denied authorization for left knee surgery. It
found that the weight of the medical evidence rested with the February 23, 2018 report of the
DMA, who determined that left knee surgery was not medically necessary to treat appellant’s
accepted left knee sprain condition.
On March 26, 2018 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits because her May 16, 2017 work-related injury had resolved. It found that the
weight of medical evidence rested with the December 19, 2017 medical report of Dr. Krone, who
found that she no longer had any residuals or disability causally related to her accepted left knee
sprain. OWCP afforded appellant 30 days to submit additional evidence or argument, in writing,
if she disagreed with the proposed termination.

3

OWCP received a January 31, 2018 report by Dr. Hyman, who treated appellant for followup of left knee injury. Examination of appellant’s left knee showed tenderness to palpation over
the medial joint and lateral joint lines and crepitance. Dr. Hyman diagnosed left knee pain and
status post left knee arthroscopy. He indicated that appellant could work with restrictions.
By decision dated May 3, 2018, OWCP finalized the termination of appellant’s wage-loss
compensation and medical benefits, effective May 4, 2018. It found that the weight of medical
evidence rested with Dr. Krone, OWCP’s second-opinion examiner, who concluded in a
December 19, 2017 report, that appellant had no residuals or disability due to her work-related left
knee injury.
LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of FECA4 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening in the amount of monthly compensation.5
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA to ensure that an employee recovers from his or her
injury to the fullest extent possible in the shortest amount of time.6 OWCP has broad
administrative discretion in choosing the means to achieve this goal and the only limitation on the
OWCP’s authority is that of reasonableness.7
Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.8
To be entitled to reimbursement of medical expenses, a claimant has the burden of proof
to establish that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.9 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the surgery is for a condition causally related to an

4

Supra note 1.

5

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

6

W.T., Docket No. 08-0812 (issued April 3, 2009); A.O., Docket No. 08-0580 (issued January 28, 2009).

7

D.C., 58 ECAB 629 (2007); Mira R. Adams, 48 ECAB 504 (1997).

8

L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); Daniel J. Perea, 42 ECAB 214 (1990).

9

M.B., 58 ECAB 588 (2007).

4

employment injury and that it is medically warranted. Both of these criteria must be met in order
for OWCP to authorize payment.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not abuse its discretion by denying authorization for left
knee surgery.
OWCP accepted appellant’s traumatic injury claim for left knee sprain. In a November 3,
2017 examination report, Dr. Hyman related that her left knee condition had not improved with
nonsurgical management. He indicated that updated diagnostic testing showed progressive
changes in appellant’s knee, including diseased lateral meniscus, further cartilage erosion to the
lateral compartment, and marginal osteophytes. Examination of appellant’s left knee demonstrated
tenderness to palpation in the medial and lateral joint lines and trace effusion. Dr. Hyman
recommended surgery in order to restore her “to as close to normal function as possible and
reducing the symptoms as much as possible.”
The Board finds that Dr. Hyman’s report does not include a clear rationale explaining the
need for surgery in order to treat appellant’s accepted left knee condition.11 The need for
rationalized medical evidence is particularly important in this case since diagnostic testing showed
progressive degenerative changes in her left knee. As Dr. Hyman failed to provide medical
rationale explaining how the requested surgery was necessary to treat appellant’s work-related left
knee sprain, his report is of diminished probative value.12
In a February 23, 2018 report, Dr. Fellars, a DMA, reviewed appellant’s medical records
and a SOAF. He noted that she had previously undergone left knee arthroscopic surgery and that
diagnostic examination showed progressive changes in her left knee. Dr. Fellars explained that
Dr. Hyman recommended surgery in order to treat appellant’s osteoarthritis and to determine
whether osteochondral transfer was viable, even though her claim was not accepted for those
conditions. Furthermore, he reported that, based on the documented information, her underlying
arthritis had progressed to the extent that the requested surgery would not be beneficial to treat her
continued left knee symptoms.
The Board finds that OWCP properly relied on the report of Dr. Fellars in its decision
denying appellant’s request for authorization for left knee surgery. Dr. Fellars’ opinion was wellrationalized and based upon a complete background, his review of the SOAF, and the medical
record. Accordingly, his opinion that the requested procedure was not medically warranted to treat
appellant’s accepted left knee condition represents the weight of the evidence.13 OWCP, therefore,
did not abuse its discretion in denying authorization for left knee surgery.

10

R.C., 58 ECAB 238 (2006).

11

See V.S., Docket No. 17-0874 (issued December 6, 2017).

12

See J.R., Docket No. 18-0603 (issued November 13, 2018).

13

See E.L., Docket No. 17-1445 (issued December 18, 2018).

5

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
According to FECA, once OWCP accepts a claim and pays compensation, it has the burden
of proof to justify termination or modification of an employee’s benefits.14 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no longer
related to the employment.15 Its burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.16 The right to
medical benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.17 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition, which require further
medical treatment.18
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained left knee sprain as a result of a May 16, 2017
employment injury. By decision dated May 3, 2018, it terminated her wage-loss compensation
and medical benefits based on the opinion of Dr. Krone, the second-opinion examiner, who
concluded in a December 19, 2017 report that she no longer suffered residuals of her May 16, 2017
employment injury and was capable of returning to work at her usual job. The Board finds that
OWCP has met its burden of proof to terminate appellant’s wage-loss compensation and medical
benefits, effective May 4, 2018, as the medical evidence established that she did not have any
residuals or disability causally related to the May 16, 2017 employment injury.
In his December 19, 2017 report, Dr. Krone described the May 16, 2017 employment
incident and noted that appellant’s claim was accepted for a left knee sprain. He also noted that
she had undergone left knee surgery and that a July 27, 2017 left knee x-ray examination was
indicative of mild degenerative osteoarthritic changes. Dr. Krone conducted a physical
examination of appellant’s left knee and noted no evidence of swelling, effusion, or crepitus. He
also observed slight tenderness on palpation over the anterior lateral aspect of the left knee and
positive McMurray’s sign. Dr. Krone opined that appellant’s accepted left knee sprain injury had
resolved. He explained that most sprains reach MMI four to six weeks postinjury and related that
she was then seven months post recurrent injury. Dr. Krone further indicated that appellant’s left
14

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

15
Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB
541 (1986).
16

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

17

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
18

A.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

6

knee was still symptomatic following her left knee surgery. He concluded that she had recovered
completely from her left knee sprain and that her current symptoms were secondary to her
preexisting left knee degenerative arthritis.
The Board finds that OWCP properly accorded the weight of medical opinion with
Dr. Krone who reported that appellant no longer had residuals or disability as a result of the
May 16, 2017 employment injury. Dr. Krone based his opinion on a proper factual and medical
history and physical examination findings and provided medical rationale for his opinion that she
did not have a current residual injury or work limitations. He opined that appellant’s current
symptoms were a result of her preexisting degenerative left knee arthritis. The Board finds that
Dr. Krone provided a well-rationalized opinion based on medical evidence regarding her May 16,
2017 employment injury. Accordingly, OWCP properly relied on his December 19, 2017 secondopinion report in terminating appellant’s wage-loss compensation and medical benefits for the
May 16, 2017 employment injury.19
Following its March 26, 2018 notice of proposed termination, OWCP received a
January 31, 2018 report by Dr. Hyman. Dr. Hyman reported examination findings of tenderness
to palpation over appellant’s left knee medial joint and lateral joint lines and crepitance. He
diagnosed left knee pain. Dr. Hyman did not, however, provide an opinion that appellant
continued to have residuals or disability due to her accepted left knee sprain. The Board finds,
therefore, that the remaining contemporaneous medical evidence is insufficient to overcome the
weight of medical evidence given to his December 19, 2017 second-opinion report in terminating
her wage-loss compensation and medical benefits for the May 16, 2017 employment injury.20
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying authorization for left
knee surgery. The Board also finds that OWCP properly terminated appellant’s wage-loss

19

See A.F., Docket No. 16-0393 (issued June 24, 2016).

20

See J.P., Docket No. 16-1103 (issued November 25, 2016).

7

compensation and medical benefits, effective May 4, 2018, as she no longer had residuals or
disability causally related to her accepted May 16, 2017 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 3 and March 23, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 6, 2019
Washington, DC

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

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

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

8