United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Caldwell, NJ, Employer
__________________________________________

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

Docket No. 18-1005
Issued: February 1, 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 April 18, 2018 appellant, through counsel, filed a timely appeal from a December 20,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 20, 2017 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
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that acceptance of
her claim should be expanded to include a left shoulder condition causally related to her accepted
May 22, 2015 employment injury.
FACTUAL HISTORY
On May 26, 2015 appellant, then a 62-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on May 22, 2015 she slipped and fell on a waxed floor while in the
performance of duty. She indicated that she injured her left wrist. Appellant stopped work on the
date of injury. On July 10, 2015 OWCP accepted the claim for left distal radial fracture.
Subsequently, on November 29, 2016, it expanded acceptance of the claim to include left carpal
tunnel syndrome.
On May 22, 2015 Dr. Michael Benke, an orthopedic surgeon, treated appellant and noted
that she had slipped and fallen at work onto her outstretched left upper extremity. He diagnosed a
displaced distal radius fracture.
Hospital treatment notes dated May 22, 2015, from
Dr. Viswanathan Subbhash, Board-certified in emergency medicine, related that appellant denied
head injury, shoulder pain, back pain, hip pain, and neck pain. He reported that her left shoulder
examination was normal.
Dr. Frank Capecci, a Board-certified orthopedic surgeon, examined appellant on
May 26, 2015 and noted that she injured her left wrist when she fell and that she reported no other
injuries with the fall. He diagnosed a displaced metaphysical fracture of the distal radius with
persistent angular deformity and an ulnar steroid fracture. Dr. Richard Kim, a Board-certified
internist, also saw appellant on May 26, 2015. He indicated that she slipped and fell onto her left
wrist. Dr. Kim performed left wrist surgery to repair the distal radius fracture on May 28, 2015.
Dr. Capecci examined appellant on July 22, 2015 and noted that she related that she
sustained a left shoulder injury at the same time as the wrist injury, but she became more aware of
the shoulder overtime. He reported findings of tenderness to palpation, nearly full range of motion,
no muscle atrophy, no deformity of shoulder girdle, no skin changes, no swelling, and x-rays
showed degenerative changes and cystic changes, otherwise negative. Dr. Capecci noted that he
was only providing an opinion regarding the left shoulder. He recommended a magnetic resonance
imaging (MRI) scan to rule out a rotator cuff tear.
An August 5, 2015 left shoulder MRI scan read by Dr. Hsiu Su, a Board-certified
diagnostic radiologist, revealed a partial thickness tear of the supraspinatus tendon and a partial
thickness tear at the infraspinatus insertion.
On September 22, 2015 counsel requested that the claim be expanded to include a left
shoulder condition.
In a report dated October 13, 2015, Dr. Capecci related that, at the time of the injury, he
focused his attention on the painful left wrist because the left distal fracture was so severe that the
injury to the left shoulder did not become apparent until a week or so later. He explained the focus
of the visit was appellant’s ongoing problems with her left shoulder. Dr. Capecci examined

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her and found no deformity or swelling of the left shoulder, tenderness to palpation near the rotator
cuff insertion, and tenderness anteriorly in the region of the biceps and some tenderness over the
acromioclavicular joint as well. He found no instability on mechanical testing, palpable crepitus
with active range of motion and severe pain, and limited range of motion. Dr. Capecci opined that
“within a reasonable degree of medical probability that [appellant’s] current symptoms of left
shoulder pain as well as the MRI [scan] ﬁndings of a moderate to high grade partial thickness tear
of the rotator cuff is directly related to the slip and fall at work that occurred [five] months ago.”
On November 20, 2015 OWCP referred appellant for a second opinion examination with
Dr. Jeffery Lakin, a Board-certified orthopedic surgeon, and requested that he respond to questions
relative to left distal radius fracture. It inquired as to whether the fracture was present and active
and, if so, explain any current disability or residuals causally related to the accepted employment
injury of May 22, 2015.4
In a December 8, 2015 report, Dr. Lakin noted appellant’s history of injury and treatment.
He explained that she developed a left wrist fracture and developed carpal tunnel syndrome as a
result of her fall. Dr. Lakin noted that appellant was also noted to have had left shoulder pain and
treatment for that condition with Dr. Capecci, but she had not yet had physical therapy or injections
of the left shoulder. Examination of the left shoulder revealed some tenderness anteriorly; motor
strength of 5/5 in all planes tested; and range of motion of 130 degrees of abduction, 145 degrees
of forward flexion, and internal and external rotation to 80 degrees compared to appellant’s right
shoulder which had 170 degrees of forward flexion, 165 degrees of abduction, and internal and
external rotation to 80 degrees. Dr. Lakin noted that a left shoulder MRI scan revealed a 9
millimeter (mm) moderate grade partial thickness tear of the anterior fibers of the distal
supraspinatus tendon, a 5 mm moderate to high partial thickness articular sided tear of the superior
fibers of the infraspinatus insertion superimposed with mild supraspinatus and mild infraspinatus
tendinosis. He responded to OWCP’s questions which were limited to questions regarding
appellant’s left distal radius fracture and carpal tunnel syndrome.
On December 31, 2015 OWCP requested that Dr. Lakin provide an opinion with regard to
whether appellant had any work-related left shoulder conditions. Dr. Lakin was provided with the
August 5, 2015 left shoulder MRI scan.
In a January 5, 2016 addendum, Dr. Lakin explained that the MRI scan ﬁndings were agerelated and due to degeneration, rather than trauma. He added that the examination of the left
shoulder was consistent with arthroplasty and arthritic changes. Dr. Lakin opined that the shoulder
problem was preexisting and unrelated to the work injury of May 22, 2015. He noted that surgery
might be necessary for future subacromial decompression and rotator cuff repair.
By decision dated April 7, 2016, OWCP denied expansion of appellant’s claim to include
a left shoulder condition.
On April 12, 2016 appellant, through counsel, requested an oral hearing before a hearing
representative with OWCP’s Branch of Hearings and Review. The hearing was held on
September 28, 2016.

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OWCP provided the physician with a statement of accepted facts and copies of medical evidence of record.

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OWCP subsequently received a report from Dr. Capecci dated October 25, 2016.
Regarding the left shoulder, Dr. Capecci explained that, when he examined appellant on July 22,
2015, she advised him that she hurt her left shoulder at the time of the work injury. He repeated
his ﬁndings and noted her course of treatment. Dr. Capecci opined that the left shoulder condition
was causally related to the fall on May 22, 2015. He explained that his examination ﬁndings
differed greatly from those described by Dr. Lakin. Dr. Capecci noted that Dr. Lakin was of the
opinion that the mild arthritic changes of the left shoulder displayed on the August 5, 2015 MRI
scan predated the work-related injury of May 22, 2015. However, he explained that the rotator
cuff tear was acute and directly related to the fall at work on May 22, 2015. Dr. Capecci indicated
that there was bone marrow edema at the insertion site of the supraspinatus tendon which reﬂected
an acute injury rather than a chronic condition. He also noted that there was no atrophy of the
rotator cuff muscles on MRI scan. Dr. Capecci opined that appellant had mild preexisting
osteoarthritis of the left shoulder which was subclinical and asymptomatic. He opined that it was
“the recent tear of the rotator cuff which I attribute to the fall that occurred on May 22, 2015 that
is responsible for [appellant’s] current symptoms of limited function and pain.”
By decision dated November 28, 2016, OWCP’s hearing representative set aside the
April 7, 2016 decision, finding a conﬂict between the opinions of the treating physician,
Dr. Capecci, and the second opinion physician, Dr. Lakin, regarding causal relationship of
appellant’s left shoulder condition and the accepted employment injury. The hearing
representative ordered OWCP to refer her for an impartial medical examination to resolve the
existing conflict as to causal relationship between her left shoulder condition and the accepted
May 22, 2015 employment injury, followed by a de novo decision.
On January 6, 2017 OWCP referred appellant for an impartial medical examination with
Dr. Dean Carlson, a Board-certified orthopedic surgeon, to resolve the conflict as to whether her
left shoulder condition was related to the accepted injury.
In a February 2, 2017 report, Dr. Carlson noted appellant’s history of injury and physical
examination findings. He explained that she was diagnosed with a displaced left distal radius
fracture status post-open reduction and internal fixation, left carpal tunnel syndrome, glenohumeral osteoarthritis left shoulder, partial tear rotator cuff left shoulder of the supraspinatus and
infraspinatus tendons, and degenerative rotator cuff tendinosis of the left shoulder. Dr. Carlson
noted that Dr. Capecci opined that “bone marrow edema in the insertion site of the supraspinatus
tendon” reflected “an acute injury rather than a chronic condition.” However, Dr. Carlson
explained that “this is the usual manner in which bone marrow on an MRI [scan] is seen by the
orthopedic surgeon following trauma such as a bone bruise.” He explained that when it was
“accompanied by subchondral cystic formation at the insertion of the supraspinatus tendon,” it was
a sign of rotator cuff disease. Dr. Carlson also explained that, despite a lack of supra and
infraspinatus atrophy on the MRI scan study, “there was enough intact tendon for the muscle tissue
to remain normal.” He found that appellant had limited range of motion and weakness of the left
shoulder due to glenohumeral osteoarthritis and degenerative partial tearing of the rotator cuff of
her left shoulder. Dr. Carlson further offered that the presence of such conditions was preexisting
in nature and not related to the accepted employment injury of May 22, 2015.
By decision dated March 23, 2017, OWCP again denied expansion of the claim to include
the claimed left shoulder condition.

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On March 30, 2017 counsel requested an oral hearing before a hearing representative with
OWCP’s Branch of Hearings and Review, which was held on May 9, 2017.
By decision dated June 12, 2017, OWCP’s hearing representative affirmed the March 23,
2017 decision. She found that Dr. Carlson’s opinion continued to carry special weight.
On September 28, 2017 appellant, through counsel, requested reconsideration.
OWCP received progress notes from Dr. Capecci dated August 22 and
September 12, 2017. Dr. Capecci diagnosed left rotator cuff tear and recommended arthroscopic
surgery of the left shoulder with subacromial decompression with debridement or repair of the
rotator cuff.
In a September 18, 2017 report, Dr. Capecci diagnosed rotator cuff tear of the left shoulder.
He opined that appellant’s left shoulder condition was causally related to the fall that occurred on
May 22, 2015. Dr. Capecci recommended arthroscopic surgery for a rotator cuff repair.
By decision dated December 20, 2017, OWCP denied modification of its June 12, 2017
decision. It found that Dr. Capecci had provided medical findings without providing a wellrationalized medical opinion explaining how that accepted injury caused or aggravated the
diagnosed condition. OWCP concluded that the impartial medical examiner’s report remained the
special weight of the medical opinion evidence.
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, that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.7 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 employee.8
5

See M.V., Docket No. 18-0884 (issued December 28, 2018); see also T.H., 59 ECAB 388 (2008).

6

See C.W., Docket No. 17-1636 (issued April 25, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

7

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

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

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Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.9
Section 8123(a) of FECA 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.”10 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that acceptance
of her claim should be expanded to include a left shoulder condition causally related to her
accepted May 22, 2015 employment injury.
OWCP properly determined that a conflict in medical opinion evidence arose between
appellant’s attending physician, Dr. Capecci, and OWCP’s second opinion physician, Dr. Lakin
regarding causal relationship between appellant’s left shoulder condition and the May 22, 2015
employment injury.
On January 6, 2017 OWCP referred appellant to Dr. Carlson, a Board-certified orthopedic
surgeon, for an impartial medical examination to resolve the conflict of medical evidence. When
a case is referred to an impartial medical examiner for the purpose of resolving a conflict, the
opinion of such specialist, is sufficiently well rationalized and based on a prior factual and medical
background, must be given special weight.12 The Board finds that Dr. Carlson’s report is entitled
to special weight.
On February 2, 2017 Dr. Carlson examined appellant and provided findings. Regarding
whether her left shoulder condition was work related, he explained why bone marrow edema at
the insertion site did not support an acute injury. Dr. Carlson explained that “this is the usual
manner in which bone marrow on an MRI [scan] is seen by the orthopedic surgeon following
trauma such as a bone bruise.” He further explained that, when it was accompanied by subchondral
cystic formation at the insertion of the supraspinatus tendon, it was a sign of rotator cuff disease.
Dr. Carlson reviewed appellant’s MRI scan study and determined that she had limited range of
motion and weakness of the left shoulder due to glenohumeral osteoarthritis and degenerative
partial tearing of the rotator cuff of her left shoulder. He explained that the presence of such
conditions was preexisting in nature and not related to the work injury of May 22, 2015.
Dr. Carlson concluded that appellant’s left shoulder condition was not work related.

9

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

10

5 U.S.C. § 8123(a).

11

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

12

See M.S., Docket No. 15-1064 (issued June 15, 2016); V.G., 59 ECAB 635 (2008).

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The Board finds that Dr. Carlson’s opinion is well-rationalized and based on a proper
factual and medical history. Dr. Carlson accurately summarized the relevant medical evidence,
provided detailed findings on examination, and reached his conclusion about appellant’s left
shoulder condition which comported with his findings.13 As his report is detailed, well rationalized
and based on a proper factual background, his opinion is entitled to the special weight accorded an
impartial medical examiner.14
Subsequent to the report of Dr. Carlson, Dr. Capecci provided a September 18, 2017 report,
in which he repeated his opinion that appellant’s left distal radius fracture was causally related to
her fall at work on May 22, 2015. Dr. Capecci merely reiterated previous findings and conclusions
regarding her condition. As he had been on one side of the conflict in the medical opinion that the
impartial specialist resolved, the treating physician’s reports are insufficient to overcome the
special weight accorded the impartial specialist or to create a new medical conflict.15
Additionally, because Dr. Capecci’s reports do not address how the May 22, 2015 work
injury caused or aggravated appellant’s left shoulder conditions they are insufficient to establish
her claim. The Board has held that, a mere conclusory opinion provided by a physician, without
the necessary rationale explaining how and why the incident was sufficient to result in the
diagnosed medical condition, is insufficient to meet a claimant’s burden of proof to establish a
claim.16
On appeal, counsel asserts that the report of Dr. Carlson could not constitute the weight of
the medical evidence as he provided merely conclusory responses and contradictory answers. He
also asserts that Dr. Capecci’s October 25, 2016 report provided a rationalized opinion as to how
the rotator cuff tear was acute and directly related to the fall and that the September 18, 2017 report
further explained why the left shoulder condition was directly related to the fall. For the reasons
set forth above the Board found that the impartial medical examiner’s report was entitled to the
special weight accorded an impartial medical examiner.17
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include a left shoulder condition causally related
to the accepted May 22, 2015 employment injury.

13

Manuel Gill, 52 ECAB 282 (2001).

14

See N.R., Docket No. 16-1613 (issued February 7, 2017); J.O., Docket No. 14-0039 (issued April 2, 2014).

15

Alice J. Tysinger, 51 ECAB 638 (2000); Barbara J. Warren, 51 ECAB 413 (2000).

16

J.D., Docket No. 14-2061 (issued February 27, 2015).

17

See supra note 14.

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ORDER
IT IS HEREBY ORDERED THAT the December 20, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 1, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 17-1797
Issued: April 11, 2018

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 August 18, 2017 appellant filed a timely appeal from a July 22, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1

The Board notes that appellant submitted additional evidence after OWCP rendered its July 22, 2017 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).
2

5 U.S.C. § 8101 et seq.

3
Appellant filed a timely request for oral argument in this claim. By letter received December 19, 2017, appellant
withdrew her request for oral argument.

ISSUE
The issue is whether OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation effective June 21, 2017 as she refused an offer of suitable work
under 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On December 31, 2013 appellant, then a 61-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, she injured her middle back in the performance of
duty. OWCP accepted the claim for lumbar sprain and thoracic sprain and assigned OWCP File
No. xxxxxx561. Following her injury, appellant returned to work with restrictions and received
compensation from OWCP for intermittent disability beginning January 10, 2015. She stopped
work on August 10, 2015 and did not return. OWCP paid appellant wage-loss compensation for
total disability.
OWCP previously accepted that on July 12, 2001 appellant had sustained a right foot sprain
and left knee abrasion under OWCP File No. xxxxxx612. It further accepted that she had sustained
neck sprain, lumbosacral sprain, displacement of a cervical intervertebral disc without myelopathy,
and thoracic or lumbosacral neuritis or radiculitis due to an October 2, 2007 employment injury,
assigned OWCP File No. xxxxxx474.
OWCP referred appellant to Dr. Dennis Foster, a Board-certified orthopedic surgeon, for a
second opinion regarding the nature and extent of any disability and residuals of the accepted work
injury. In a report dated January 7, 2015, Dr. Foster reviewed the history of the December 31,
2013 work injury. He found that appellant had a degenerative back condition and should avoid
extensive walking, lifting, or carrying. Dr. Foster opined that she could work with restrictions,
including lifting and pulling up to 25 pounds for four hours per day.
In a January 28, 2015 Form CA-17, Dr. Jo Walia, an attending Board-certified
anesthesiologist, determined that appellant could work full-time with restrictions that included
lifting and carrying up to 10 pounds for 30 minutes a day.
On July 7, 5015, OWCP found that a conflict in medical opinion arose between Dr. Foster
and Dr. Walia regarding the extent of appellant’s disability from employment.4 It referred her to
Dr. Sami R. Framjee, a Board-certified orthopedic surgeon, for an impartial medical examination.
On September 3, 2015 OWCP advised appellant that it had combined OWCP File Nos.
xxxxxx474 and xxxxxx561 for administrative purposes.
Dr. Framjee, on October 22, 2015, discussed appellant’s history of injury and provided
findings on examination. He found that she could work eight hours per day at a desk job lifting
up to 15 pounds for eight hours per day.

4

OWCP incorrectly referred to Dr. Foster as Dr. Butler.

2

On December 11, 2015 OWCP determined that the second opinion examination by
Dr. Foster was insufficient and requested that he provide a supplemental report addressing whether
she had any objective findings of any of her accepted employment injuries. It provided him with
a statement of accepted facts describing the accepted conditions in OWCP File Nos. xxxxxx612,
xxxxxx474, and xxxxxx561.
In a supplemental report dated December 18, 2015, Dr. Foster diagnosed a chronic workrelated aggravation of thoracic and lumbar degenerative disc disease. He indicated that his work
limitations were unchanged from those set forth in the January 7, 2015 report.
On March 30, 2016 Dr. Walia diagnosed degenerative changes in the thoracic spine,
lumbar facet arthropathy, a lumbosacral joint/ligament sprain, thoracolumbar radiculopathy, and
thoracic sprain. He opined that appellant was temporarily totally disabled pending additional
therapy.
Dr. Andrew Parkinson, a Board-certified orthopedic surgeon, on May 2, 2016, diagnosed
cervical disc disease, cervical radiculopathy, and cervical stenosis. He recommended cervical
surgery and found that appellant was totally disabled.
OWCP determined that a conflict in medical opinion arose between Dr. Foster and
Dr. Walia regarding the extent of appellant’s work restrictions. It referred her to Dr. C.L. Soo, a
Board-certified orthopedic surgeon, for an impartial medical examination.
Dr. Walia, on June 8, 2016, requested that OWCP expand acceptance of appellant’s claim
to include a cervical condition based on a magnetic resonance imaging (MRI) scan study findings.
He recommended a cervical fusion.
In a report dated June 21, 2016, Dr. Soo reviewed appellant’s history of work injuries and
discussed her complaints of neck pain radiating into her shoulders and low back pain with
abnormal sensation in the thighs after extensive walking. He diagnosed cervical spinal stenosis, a
bilateral shoulder disorder, and lumbar spinal stenosis with degenerative disc disease at multiple
levels, especially L2-3. Dr. Soo recommended a functional capacity evaluation (FCE) to
determine appellant’s work restrictions.
Dr. Soo, on June 29, 2016, noted that appellant underwent an FCE on that date that
demonstrated that she could lift approximately four pounds for under three hours per day. He
provided additional work restrictions, including carrying four pounds with both hands for less than
six hours per day. Dr. Soo determined that appellant could sit for eight hours per day, stand and
walk for less than three hours per day, and do no work involving bending, squatting, kneeling,
climbing, or crawling.
An OWCP medical adviser reviewed the record on July 6, 2016. He opined that the
proposed cervical discectomy and fusion at C4-5 and C5-6 was causally related to appellant’s
December 31, 2013 employment injury. OWCP’s medical adviser found, however, that the
surgery was not medically necessary as diagnostic studies did not reveal compromise of the nerve
roots.

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On July 20, 2016 OWCP referred appellant to Dr. Allan S. Fielding, a Board-certified
neurosurgeon, regarding whether it should authorize surgery. Dr. Fielding, on August 18, 2016,
noted that there was no request for lumbar spinal surgery, and questioned whether he should
provide an opinion regarding the request for cervical surgery.
In a September 14, 2016 report, Dr. Walia noted that appellant was receiving treatment for
depression and anxiety due to her employment injury. He found that she could work with the
restrictions set forth by Dr. Soo.
In a September 22, 2016 OWCP-5c form, Dr. Soo found that appellant could work eight
hours per day in sedentary employment sitting for eight hours, walking and standing for three
hours, performing no reaching, twisting, bending, or stooping, lifting up to eight pounds for three
hours per day, and pushing and pulling up to 75 pounds for three hours per day.
Dr. Fielding, in a report dated December 1, 2016, found that the proposed cervical surgery
was not medically necessary as appellant had no signs of cervical radiculopathy and as her
symptoms did not correspond to the findings on MRI scan study.5
OWCP, on December 6, 2016, requested that Dr. Soo clarify his work restrictions. In a
December 14, 2016 response, Dr. Soo opined that appellant could “carry with both hands about
[four] pounds if she does less than [three] hours a day….” He further found that she could carry
two pounds for less than six hours a day and one pound for more than six hours per day. Dr. Soo
opined that appellant could push or pull with a roller up to 75 pounds for under three hours per
day, up to 53 pounds for under six hours per day, and up to 25 pounds for more than six hours per
day. In an OWCP-5c form dated December 14, 2016, he found that appellant could sit for eight
hours per day, walk and stand for three hours per day, lifting up to eight pounds for three hours
per day, and push and pull up to 75 pounds for three hours per day.
The employing establishment offered appellant a position as a modified city carrier on
February 24, 2017. The physical requirements of the position included lifting up to eight pounds
for an average of three hours per day, walking up to three hours per day, standing up to one hour
per day, and pushing and pulling up to 25 pounds per day with a roller, with no reaching or
repetitive movements of the wrist or elbow. The duties of the position included delivering express
mail and other delivery and office duties within appellant’s restrictions.
OWCP, on March 31, 2017, notified appellant that it had determined that the position of
modified city carrier offered by the employing establishment on February 24, 2017 was suitable
as it was within the physical limitations set forth by Dr. Soo on September 22, 2016. It provided
her 30 days to accept the position or submit a written explanation for her refusal and advised her
of the penalties for refusing suitable work under section 8106(c)(2).

5

On November 2, 2016 the employing establishment offered appellant a position as a modified city carrier standing
and walking up to four hours per day and lifting and carrying up to 15 pounds for four hours per day. OWCP, on
November 16, 2016, found that the offered position was suitable and allowed appellant to accept the position or
provide written reasons for her refusal.

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In an April 4, 2017 response, appellant questioned how she could perform the duties of the
offered position given Dr. Soo’s work restrictions and the results of the FCE. She contended that
a conflict existed regarding the need for cervical surgery. Appellant asserted that she could only
stand and walk under three hours, not for three hours.
On April 13, 2017 OWCP noted that it had developed appellant’s request for cervical
surgery under OWCP File No. xxxxxx474 by referring her to Dr. Fielding. It further advised her
that it had reviewed the June 29, 2016 FCE and December 14, 2016 work restrictions from
Dr. Fielding. OWCP indicated that its March 31, 2017 letter set forth appellant’s responsibilities
for accepting or refusing the position.
Appellant, by letter dated April 14, 2017, noted that the modified position offered by the
employing establishment required lifting up to eight pounds for an average of three hours per day,
standing for an average of one hour per day, and walking for an average of two hours per day, but
that Dr. Soo found that she could both stand and walk for under three hours per day and could only
carry with both hands about four pounds for under three hours per day and two pounds for under
six hours per day. She maintained that OWCP did not consider all of her injuries in finding the
position suitable.
On June 5, 2017 counsel advised that appellant was declining the offered position and
questioned whether any work as a carrier could be performed without repetitive movements of the
wrists and elbows. He asserted that the modified job offer did not consider the May 2, 2016 report
from Dr. Parkinson, finding that she was totally disabled due to her cervical condition or the
opinion of Dr. Walia that she was substantially limited.
Under OWCP File No. xxxxxx474, on June 29, 2017 OWCP found that a conflict in
medical opinion arose between Dr. Fielding and Dr. Parkinson regarding whether it should
authorize an anterior cervical discectomy and fusion at C4-5 and C5-6.
By decision dated July 22, 2017, OWCP terminated appellant’s entitlement to wage-loss
and schedule award compensation effective June 21, 2017 as she refused an offer of suitable work
under section 8106(c)(2). It found that the offered position was within the restrictions provided
by Dr. Soo. OWCP noted that appellant had submitted evidence subsequent to its March 31, 2017
30-day notice, but found that it did not justify her refusal to accept the modified city carrier position
as it did not demonstrate a material worsening of her condition.
LEGAL PRECEDENT
5 U.S.C. § 8106(c)(2) provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”6
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept

6

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

5

suitable work or neglecting to perform suitable work.7 To justify such a termination, OWCP must
show that the work offered was suitable.8
With respect to the procedural requirements of termination under section 8106(c), the
Board has held that OWCP must inform appellant of the consequences of refusal to accept suitable
work, and allow him or her an opportunity to provide reasons for refusing the offered position.9 If
appellant presents reasons for refusing the offered position, OWCP must inform the employee if
it finds the reasons inadequate to justify the refusal of the offered position and afford him or her a
final opportunity to accept the position.10
Section 10.516 of FECA’s implementing regulations provide that OWCP shall advise the
employee that it has found the offered work to be suitable and afford the employee 30 days to
accept the job or present any reasons to counter OWCP’s finding of suitability.11 If the employee
presents such reasons and OWCP determines that the reasons are unacceptable, it will notify the
employee of that determination and that he or she has 15 days in which to accept the offered work
without penalty. At that point in time, OWCP’s notification need not state the reasons for finding
that the employee’s reasons are not acceptable.12 After providing the 30- and 15-day notices,
OWCP will terminate the employee’s entitlement to further wage-loss compensation and schedule
award benefits.13
ANALYSIS
OWCP accepted that appellant sustained lumbar and thoracic sprains under OWCP File
No. xxxxxx561 and neck sprain, lumbosacral sprain, displacement of a cervical intervertebral disc
without myelopathy, and thoracic or lumbosacral neuritis or radiculitis under OWCP File No.
xxxxxx474. It paid her wage-loss compensation under File No. xxxxxx474 for disability
beginning April 10, 2015. OWCP terminated appellant’s wage-loss compensation, effective
June 21, 2017 as she refused the employing establishment’s February 24, 2017 offer of suitable
work under section 8106(c)(2).
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
entitlement to wage-loss and schedule award compensation. As noted, OWCP’s regulations
provide that before imposing the penalty of termination of wage-loss and schedule award
compensation under section 8106(c), OWCP should advise the claimant that the position is suitable

7

Henry P. Gilmore, 46 ECAB 709 (1995).

8

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

9

Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

10

Id.

11

20 C.F.R. § 10.516; see also C.C., Docket No. 15-1778 (issued August 16, 2016).

12

Id.

13

Id. at § 10.517.

6

and afford her 30 days to accept the position or provide reasons for her refusal.14 If the claimant
provides reasons and OWCP determines that the reasons are not acceptable, it should notify her of
the determination and afford her 15 days to accept the offered position without penalty.15
The employing establishment offered appellant a full-time position as a modified city
carrier on February 24, 2017. On March 31, 2017 OWCP advised her that the offered position
was suitable.16 In response, appellant submitted statements dated April 4 and 14, 2017, asserting
that the offered position was not within the work restrictions set forth by Dr. Soo and conflicted
with the results of the FCE. In a June 5, 2017 statement, counsel related that she was refusing the
position because she was unable to perform the job duties and argued that OWCP had not
considered her employment-related cervical condition in finding the position suitable.
OWCP terminated appellant’s entitlement to wage-loss and schedule award compensation
on July 22, 2017 without issuing a 15-day letter giving her the opportunity to accept the offered
position without penalty. As she submitted additional evidence within the 30-day period afforded
by OWCP for responding to the suitability determination, she was entitled to have this evidence
evaluated to determine whether or not she had provided acceptable reasons for refusing the offer
of suitable work.17 OWCP should have reviewed the additional evidence and, if it determined the
reasons unacceptable, issued a 15-day letter providing appellant a final opportunity to accept the
position.18
The Board accordingly finds that OWCP failed to follow established procedures with
respect to termination of compensation under 5 U.S.C. § 8106(c)(2).19 The Board has recognized
that section 8106(c)(2) serves as a penalty provision as it may bar an employee’s entitlement to
future compensation and, for this reason, will be narrowly construed.20 It is OWCP’s burden of
proof to terminate compensation and, due to the above-noted procedural error, the Board finds that
OWCP failed to meet its burden of proof.21
14

Id. at § 10.516.

15

Id.

16
The Board notes that the medical evidence from Dr. Soo is insufficient to clearly establish that appellant could
perform the offered position as he provided conflicting statements regarding her lifting restrictions. On December 14,
2016 Dr. Soo opined that she could carry with both hands four pounds for under three hours per day, but in a work
capacity evaluation of the same date he found that she could lift up to eight pounds for three hours per day.
17
See C.C., supra note 11; K.S., Docket No. 15-0181 (issued June 13, 2016). Additionally, even if submitted after
the 30-day period, but prior to the final decision, OWCP must evaluate the evidence to determine if acceptable reasons
for refusing the position. See M.M., 59 ECAB 680 (2008).
18
R.G., Docket No. 15-0492 (issued November 16, 2015); see also Maggie L. Moore, supra note 9; Federal (FECA)
Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5(e)(3) (June 2013) (if new
evidence received, it should be identified in the 15-day letter).
19

See L.S., Docket No. 15-1246 (issued September 8, 2016).

20

See R.G., Docket No. 15-0492 (issued November 16, 2015); H. Adrian Osborne, 48 ECAB 556 (1997).

21

See S.M., Docket No. 16-1913 (issued April 11, 2017).

7

CONCLUSION
The Board finds that OWCP improperly terminated appellant’s entitlement to wage-loss
and schedule award compensation effective June 21, 2017 as she refused an offer of suitable work
under 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the July 22, 2017 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: April 11, 2018
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________
Appearances:
Appellant, pro se
No appearance, for the Director

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Docket No. 14-30
Issued: August 26, 2014

Oral Argument June 19, 2014

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

JURISDICTION
On October 13, 2013 appellant filed a timely appeal from July 24 and October 2, 2013
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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective July 16, 2012 on the grounds that he had
no residuals of a July 22, 2011 employment injury; and (2) whether appellant established that he
had any continuing employment-related disability or condition after July 16, 2012 due to the
accepted conditions.
On appeal and at oral argument, appellant asserted that a conflict in medical evidence
was created between Dr. W. Carl Dyer, an attending Board-certified orthopedic surgeon, and
1

5 U.S.C. §§ 8101-8193.

Dr. Carl S. Carlson, Jr., an orthopedic surgeon and OWCP referral physician. He also
questioned whether Dr. Carlson was qualified to render an opinion and argued that leading
questions had been posed by OWCP. Further, an additional claim for an April 2013 ankle injury
should be combined with the present case.
FACTUAL HISTORY
On July 22, 2011 appellant, then a 42-year-old transitional city carrier, sustained an
employment-related right ankle sprain and closed fracture of the right calcaneus. He stopped
work that day. Appellant received continuation of pay and wage-loss compensation. He came
under the care of Dr. Dyer. The August 12, 2011 magnetic resonance imaging (MRI) scans of
the right foot and ankle demonstrated an accessory navicular with superimposed acute injury and
posterior tibial tendinopathy. A November 16, 2011 right foot MRI scan study demonstrated the
accessory navicular with mild reactive and degenerative changes and no visible ligament tear,
tendinopathy or occult fracture.
In a January 12, 2012 treatment note, Dr. Dyer stated that appellant had pain and stiffness
after retwisting his ankle while using crutches in his garage. He diagnosed a sprained right
ankle, flexion contracture of the right foot and ankle, possible fractured calcaneous, right
Achilles tendinitis, right foot degenerative arthritis and possible reflex sympathetic dystrophy.
Dr. Dyer advised that appellant could return to a driving route with no standing or walking more
than 30 minutes at a time. In a January 12, 2012 duty status report, he indicated that appellant
could work a driving route with sedentary duties. On February 2, 2012 Dr. Dyer indicated that
appellant had no restrictions but in a February 3, 2012 duty status report he indicated that
appellant could stick mail, could not walk a route, could not stand or walk more than 30 minutes
at a time and could drive a route. A February 17, 2012 three-phrase bone scan of the right ankle
demonstrated an un-united accessory ossicle of the tarsal navicular which could be degenerative
and/or inflammatory uptake.
The employing establishment dismissed appellant for cause effective March 17, 2012.2
On March 8, 2012 Dr. Dyer noted swelling, restricted range of motion and tenderness to
palpation of the foot and ankle. He advised that appellant could return to sedentary duty.
On March 13, 2012 Dr. Daniel L. Kingloff, a Board-certified orthopedic surgeon, noted
the history of injury. The right foot and ankle appeared slightly reddened and swollen on
physical examination and were painful to light touch. Dr. Kingloff indicated that perhaps
appellant had a regional pain syndrome.
On March 28, 2012 Dr. Dyer explained that the February 3, 2012 duty status report
correctly described appellant’s restrictions. He indicated that appellant’s injury had not resolved
and that he could be developing an early reflex sympathetic dystrophy, noting that he had

2

A January 30, 2012 notice of proposed removal indicated that appellant was being removed because he failed to
properly report the July 22, 2011 injury and for unsatisfactory attendance on March 7, 10 and July 12, 2011. The
removal was finalized in a letter of decision dated February 23, 2012.

2

continued pain and swelling. Dr. Dyer opined that appellant was capable of returning to limited,
sedentary activity with intermittent weight-bearing and no prolonged standing.
OWCP referred appellant to Dr. Carlson for a second opinion evaluation. In a
March 29, 2012 report, Dr. Carlson advised that appellant demonstrated pain and histrionic
behavior. He complained of pain with most maneuvers and did not appear to be exerting full
effort. No atrophy was present and ankle range of motion was essentially normal. Appellant
was very sensitive to light touch. Dr. Carlson noted the accessory navicular but did not think it
was problematic. He advised that the July 22, 2011 ankle sprain should have resolved and that
there was never a right calcaneous fracture, based on his review of the diagnostic studies.
Dr. Carlson concluded that appellant’s subjective complaints outweighed the objective findings
and that he should attempt to return to his date-of-injury position. On an attached work capacity
evaluation, he indicated that appellant had no restrictions.
On April 19, 2012 Dr. Dyer advised that appellant continued to have generalized aches
and pains about the feet and had slight bilateral edema and generalized pain with manipulation.
He reiterated his diagnoses.
In a supplemental report dated May 10, 2012, Dr. Carlson noted that the accessory
navicular was a separate bone, usually present from birth. He advised that appellant’s
employment-related ankle sprain should have resolved in 8 to 12 weeks and that any swelling
seen was most likely related to recent activity of weight-bearing and not due to the July 22, 2011
employment injury. Dr. Carlson reiterated that appellant was capable of returning to full duty.
On June 14, 2012 OWCP proposed to terminate appellant’s wage-loss and medical
benefits as the medical evidence established that he had no residuals or disability of the
July 22, 2011 work injury.
Appellant disagreed with the proposed termination. In a June 14, 2012 report, Dr. Dyer
noted appellant’s complaint of continued pain and stiffness of the right ankle. Physical
examination showed tenderness, edema and diminished dorsiflexion of the right foot. Dr. Dyer
advised appellant to push to increase range of motion as residual stiffness was most likely due to
reflex guarding and pain and insufficient walking. He stated that appellant was a statistical
outlier but he continued to have ankle problems related to the work injury that had not resolved.
Dr. Dyer reiterated his opinion on June 21, 2012.
By decision dated July 16, 2012, OWCP finalized the termination of wage-loss
compensation and medical benefits.
Appellant timely requested a hearing and submitted July, 2012 reports in which Dr. Dyer
noted right ankle swelling and restricted ankle range of motion. At the December 18, 2012
hearing, he maintained that there was a conflict in medical evidence between the opinions of
Drs. Carlson and Dyer. Dr. Carlson submitted a September 18, 2012 report in which he
reiterated his findings and conclusions. On December 28, 2012 Dr. Kingloff noted that appellant
had continued right ankle pain and slight swelling. He diagnosed right foot and ankle pain and
possible regional pain syndrome and recommended that appellant be seen by a foot and ankle
orthopedic specialist.

3

By decision dated March 4, 2013, an OWCP hearing representative affirmed the
July 16, 2012 decision. She found that the weight of medical evidence was represented by
Dr. Carlson.
On March 20, 2013 appellant requested reconsideration and submitted a March 11, 2013
MRI scan study of the right leg that showed an accessory navicular Type 2 with bone marrow
edema and movement, mild tibial tenosynovitis, plantar fasciitis, bipartite medial cuneiform with
movement at the site of synchondrosis and small effusions of the first, fourth and fifth
tarsometatarsal joints. On March 19, 2013 Dr. Kingloff reviewed the MRI scan study and
advised that the increased activity shown revealed some abnormal activity, with a high likelihood
that it could have come from an injury. He again recommended that appellant be seen by a foot
and ankle orthopedic specialist.
On March 26, 2013 counsel filed an appeal with the Board, but subsequently withdrew
the appeal. In an order dated May 22, 2013, the Board dismissed the appeal.3 Appellant’s
reconsideration request was reinstated.
Appellant returned to work at the employing establishment in March 2013 and reinjured
his right ankle on April 9, 2013. He filed a separate claim for this injury. In an April 30, 2013
report, Dr. Paul V. Spiegl, a Board-certified orthopedic surgeon, reported that appellant had two
employment right ankle injuries, on July 22, 2011 and April 9, 2013. He provided physical
examination findings, noting that x-rays were unremarkable except for the accessory navicular.
Dr. Spiegl diagnosed tibialis tendinitis and advised that appellant could only do sedentary work
and recommended an MRI scan study. On July 8, 2013 he indicated that appellant could only be
on his feet for 15 minutes each hour, was unable to climb and was unable to drive.
In a merit decision dated July 24, 2013, OWCP denied modification of the March 4, 2013
decision.4
On August 27, 2013 appellant requested reconsideration. He submitted a July 29, 2013
right foot MRI scan study that demonstrated degenerative arthropathy without evidence of an
acute internal derangement. A July 29, 2013 MRI scan right ankle study showed a mild partial
posterior tibial tendon tear and a Type 2 accessory navicular. On August 19, 2013 Dr. Kingloff
noted the MRI scan findings and described appellant’s treatment. Appellant had synchondrosis
of the accessory navicular and a posterior tibial tendon tear which were initiated by the
July 22, 2011 employment injury. On August 27, 2013 Dr. Kingloff provided an impairment
rating of appellant’s right lower extremity.
In a decision dated October 2, 2013, OWCP denied modification of the prior decisions.

3

Docket No. 13-1143 (issued May 22, 2013).

4

A decision was initially issued on July 9, 2013 but was returned to OWCP as undeliverable.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, OWCP must
establish that a claimant no longer has residuals of an employment-related condition that require
further medical treatment.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation on July 16, 2012. The accepted conditions in this case are right ankle sprain and
closed fracture of the right calcaneus.
The medical evidence includes reports by Dr. Dyer, appellant’s attending orthopedic
surgeon, dated January 12 to June 14, 2012. Dr. Dyer provided physical restrictions but
indicated that appellant could drive a route. In the June 14, 2012 report, he advised that
appellant should push to increase his range of motion. In his March 13, 2012 report,
Dr. Kingloff did not provide any opinion regarding appellant’s work capabilities.
Dr. Carlson, an OWCP referral orthopedic surgeon, advised on March 29, 2012 that
appellant’s subjective complaints outweighed the objective physical findings. He stated that
appellant had no work restrictions. On May 12, 2012 Dr. Carlson advised that the accepted
ankle sprain resolved in 8 to 12 weeks of injury and that appellant was capable of returning to
full duty.
The Board finds that the weight of medical evidence as represented by Dr. Carlson
supports that appellant had no disability due to the July 22, 2011 employment injury as of
July 16, 2012. OWCP properly terminated his monetary compensation on that day.8
The Board finds, however, that the medical evidence is insufficient to establish that
appellant no longer had residuals of the accepted right ankle sprain and closed fracture of the
right calcaneus due to a conflict in medical opinion.

5

Jaja K. Asaramo, 55 ECAB 200 (2004).

6

Id.

7

T.P., 58 ECAB 524 (2007).

8

Supra note 5.

5

In a duty status report dated February 3, 2012, Dr. Dyer, the attending orthopedic
surgeon, provided restrictions that appellant could not walk a route and could not stand or walk
more than 30 minutes at a time but could drive a route. A February 17, 2012 3-phrase bone scan
of the right ankle demonstrated an un-united accessory ossicle of the tarsal navicular which could
be degenerative and/or inflammatory uptake. On March 28, 2012 Dr. Dyer indicated that
appellant’s injury had not resolved and that he could be developing an early reflex sympathetic
dystrophy, noting that he had continued pain and swelling.
Dr. Carlson, OWCP’s referral orthopedic surgeon, advised on March 29, 2012 that the
July 22, 2011 ankle sprain should have resolved and that there was never a right calcaneous
fracture, based on his review of the diagnostic studies. He concluded that appellant’s subjective
complaints outweighed the objective findings.
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability and OWCP must establish that a claimant no longer has residuals of an
employment-related condition that require further medical treatment prior to termination of
medical benefits.9
If there is disagreement between OWCP’s medical adviser and the employee’s physician,
OWCP will appoint a third physician who shall make an examination.10 For a conflict to arise,
the opposing physician’s viewpoints must be of virtually equal weight and rationale.11 The
Board finds the opinions of Dr. Dyer and Dr. Carlson to be of equal weight as to whether
appellant has residuals of the July 22, 2011 right ankle sprain after his wage-loss compensation
was terminated on July 16, 2012. Each physician explained his conclusion regarding appellant’s
right ankle condition. The Board will set aside the July 24 and October 2, 2013 decisions and
remand the case for OWCP to refer appellant to an impartial medical specialist to resolve
whether he has residuals of the accepted July 22, 2011 right ankle sprain.
As there is an unresolved conflict of medical opinion regarding whether appellant had
residuals of the July 22, 2011 right ankle injury, OWCP did not meet its burden of proof to
terminate his medical benefits on July 12, 2012. The October 2, 2013 OWCP decision will be
reversed regarding this issue.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s wage-loss compensation on
July 16, 2012, the burden shifted to him to establish that he had any disability causally related to
the accepted right ankle sprain.12 Causal relationship is a medical issue. 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
9

Supra note 7.

10

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

11

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

12

See Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

6

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.13
ANALYSIS -- ISSUE 2
The Board finds that appellant submitted insufficient medical evidence to establish that
he continued to be disabled after July 16, 2012 due to the July 22, 2011 right ankle sprain such
that he would be entitled to wage-loss compensation.
The July 29, 2013 MRI scan studies of the right foot and ankle are not probative on the
issue of continuing disability, as medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.14
In reports dated July 26 and September 18, 2012, Dr. Dyer merely reiterated his previous
findings and conclusions. In a December 28, 2012 report, Dr. Kingloff noted that appellant had
continued right ankle pain and slight swelling. He diagnosed right foot and ankle pain and
possible regional pain syndrome and recommended that appellant see a foot and ankle orthopedic
specialist. On March 19, 2013 Dr. Kingloff noted his review of a March 11, 2013 MRI scan
study that showed the accessory navicular with bone marrow edema and movement, mild tibial
tenosynovitis, plantar fasciitis, bipartite medial cuneiform with movement at the site of
synchondosis and small effusions of the first, fourth and fifth tarsometatarsal joints. He advised
that the increased activity shown on the MRI scan indicated that there was some abnormal
activity, with a high likelihood that it could have come from an injury. Dr. Kingloff again
recommended that appellant be seen by a foot and ankle specialist.
Appellant returned to work in March 2013 and reinjured his right ankle on April 9, 2013.
He filed a separate claim for this injury, adjudicated by OWCP under file number xxxxxx308.
At oral argument, appellant indicated that he had returned to work and had filed an Equal
Employment Opportunity claim that was still pending. He also stated that the April 9, 2013
injury had been accepted and that he recently had reconstructive surgery on his right ankle.
In an April 30, 2013 report, Dr. Spiegl, a Board-certified orthopedic surgeon, reported
that appellant had two employment-related right ankle injuries, on July 22, 2011 and
April 9, 2013. He provided physical examination findings, noting that x-rays were unremarkable
except for the accessory navicular. Dr. Spiegl diagnosed tibialis tendinitis, advised that appellant
could only do sedentary work and recommended an MRI scan study. On July 8, 2013 he
indicated that appellant could only be on his feet for 15 minutes each hour, was unable to climb
and was unable to drive. On August 19, 2013 Dr. Kingloff noted an MRI scan study findings
and described appellant’s treatment. He indicated that appellant had synchondrosis of the
accessory navicular and a posterior tibial tendon tear which were initiated by the July 22, 2011
employment injury.

13

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

14

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

7

Dr. Dyer, Dr. Kingloff and Dr. Spiegl, however, did not address appellant’s disability for
work due to the July 2011 work injury between July 16, 2012, when his wage-loss compensation
was terminated to when he returned to work in March 2013. Medical opinion regarding causal
relationship must explain from a medical perspective how the current condition is related to the
injury.15 Dr. Spiegl did not see appellant until after his second work injury in April 2013. The
Board finds that the reports from the physicians do not contain sound medical reasoning
establishing that appellant was totally disabled after July 16, 2012 due to the accepted right ankle
injury that occurred on July 22, 2011.16 As such, their opinions are entitled to little probative
value and are insufficient to meet appellant’s burden of proof to establish that he had
work-related disability due to the accepted July 22, 2011 ankle injury after July 16, 2012.17
As to appellant’s assertions on appeal regarding whether Dr. Carlson was properly
selected to render a second opinion evaluation. The Board notes that he is a Board-certified
orthopedic surgeon, and had the appropriate specialty qualifications to render an opinion in this
case. Regarding whether the physician was asked leading questions, the Board has reviewed the
questions prepared for his review and finds that they were proper and not leading questions.18
The case will be remanded to OWCP because a conflict exists regarding whether
appellant had residuals from the July 22, 2011 employment injury.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation on July 16, 2012 but that a conflict in medical evidence exists regarding OWCP’s
termination of medical benefits. The Board further finds that appellant did not establish that he
is entitled to wage-loss compensation for continuing disability from July 16, 2012 to
March 2013, when he returned to work.

15

See Joan R. Donovan, 54 ECAB 615 (2003).

16

Sandra D. Pruitt, 57 ECAB 126 (2005).

17

S.S., 59 ECAB 315 (2008).

18

See J.T., Docket No. 13-452 (issued May 29, 2013).

8

ORDER
IT IS HEREBY ORDERED THAT the October 2 and July 24, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed in part and reversed in part, and the
case is remanded to OWCP for proceedings consistent with this opinion of the Board.
Issued: August 26, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Waxahachie, TX, Employer
__________________________________________

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

Docket No. 17-1984
Issued: March 19, 2018

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 September 25, 2017 appellant filed a timely appeal from an April 5, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established that he was disabled from October 31, 2015
to January 10, 2017 causally related to his accepted employment injury.

1
The Board notes that appellant submitted additional evidence after OWCP rendered its April 5, 2017
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20
C.F.R. § 501.2(c)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 1, 2015 appellant, then a 35-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained anxiety, stress, and fear causally related to
factors of his federal employment. He attributed his condition to harassment and assault by C.J.,
the postmaster. Appellant stopped work on November 2, 2015.
OWCP accepted the claim for post-traumatic stress disorder (PTSD).3 It determined that
appellant had established as a compensable factor of employment that C.J. physically prevented
him from leaving a room on January 30, 2015 and shut his hand in the door. Appellant telephoned
the police, who charged her with assault by contact. On July 11, 2016 C.J. pled no contest and
paid a fine. OWCP also accepted as a compensable work factor that on August 8, 2014 C.J. told
appellant to drive his employing establishment vehicle to the employing establishment even
though the taillights and blinkers did not work. It also indicated that on February 17, 2014 he and
a coworker discussed the brakes on his vehicle.
In a report dated November 3, 2015, Dr. Katherine S. Donaldson, a clinical psychologist,
related that appellant’s difficulties at work began three or four years ago with the arrival of a new
postmaster. The postmaster trapped him in an office and assaulted him on January 30, 2015,
crushing his hand in a door. Appellant telephoned the police emergency number with his mobile
telephone. The postmaster took him off work the next day and alleged that he had brought a gun
to the office. She also tried to fire appellant and accused him of threats. The employing
establishment moved the postmaster to another office, but she was returned to his work location.
Dr. Donaldson diagnosed anxiety, PTSD, and depression. She noted that appellant was currently
off work “using his personal time,” but that it was running low.
In a January 5, 2016 psychological evaluation, Dr. Donaldson discussed appellant’s history
of difficulty with his supervisor, culminating in the January 30, 2015 assault. She diagnosed
PTSD, an adjustment disorder with depressed mood, and a history of attention deficit disorder.
Dr. Donaldson indicated that a psychological assessment found that appellant had major
depressive disorder that was “situational and related to his trauma.” She opined that his symptoms
were “exacerbated when presented with thoughts of being around his supervisor at work who
reportedly accosted him.”
Dr. Donaldson, in an April 14, 2016 work capacity evaluation form (OWCP-5a), found
that appellant could work eight hours per day provided C.J. was not present at his work location.
Prior to accepting appellant’s emotional condition claim, OWCP referred him to Dr. Irina
Gromov, a Board-certified psychiatrist, for a second opinion examination regarding whether he
had established an emotional condition causally related to the compensable work factors and, if
so, whether his emotional condition disabled him from work for any period.

3

By decision dated May 4, 2016, OWCP denied appellant’s emotional condition claim after finding that he did not
establish any compensable factors of employment. By decision dated December 19, 2016, it vacated its May 4, 2016
decision and accepted his claim for PTSD.

2

On November 18, 2016 Dr. Gromov noted that appellant’s relationship with the postmaster
deteriorated such that he filed Equal Employment Opportunity (EEO) complaints against her
alleging harassment. In January 2015, C.J. assaulted him by blocking the exit to a copy room.
Appellant yelled for help and telephoned the police, and ultimately the postmaster paid the fine
from charges brought against her by appellant. He continued to work until October 2015, when
the postmaster returned to his work location. Appellant resumed work on July 14, 2016 when she
was again transferred to another location. Dr. Gromov diagnosed PTSD causally related to conflict
with the postmaster that “culminated in [an] assault in January 2015.” She noted that appellant
was diagnosed with PTSD in November 2016 and advised to remain off work as long as the
postmaster was present at his work location. Dr. Gromov related, “As per provider’s
recommendation, [appellant] was not attending the job due to [his] condition and significant
factors. He was released to go back to work in July 2016…. I would concur that [PTSD] would
prevent the claimant from returning back to work and I understand that he followed treatment
recommendations of his provider.” She concluded, “In summary, it is my impression that the
claimant suffers from [PTSD], which directly related to stress at work, as conflicts between him
and his postmaster caused significant emotional deterioration in his functioning and required [him]
to be absent from work.”
Appellant, on January 26, 2017, filed claims for compensation (Form CA-7) requesting
compensation from October 31 to November 13, 2015 and November 16 to 27, 2015. The
employing establishment indicated that he used sick leave, annual leave, and intermittent leave
without pay during those periods.
OWCP paid appellant wage-loss compensation for temporary total disability beginning
January 11, 2017, and placed him on the periodic compensation rolls effective March 5, 2017.
By letter dated March 3, 2017, OWCP requested that appellant submit evidence supporting
that he was disabled from work for the period October 31, 2015 through January 10, 2017 as a
result of his accepted work injury.
In an e-mail dated March 17, 2017, OWCP requested that the employing establishment
clarify the dates that appellant used leave without pay from November 20, 2015 to
January 10, 2017. It further inquired whether he would have been exposed to the postmaster had
he worked during his period, noting that, if so, it would pay him compensation for that period.
The employing establishment did not respond to OWCP’s request for additional
information.
In a report dated November 16, 2015, received by OWCP on March 27, 2017,
Dr. Donaldson diagnosed acute stress disorder. She noted that appellant was concerned for his
safety “while under the authority of his supervisor” and was currently disabled from employment.
Dr. Donaldson indicated that appellant’s prognosis was poor if required to work in the described
hostile and unsafe work environment.
By decision dated April 5, 2017, OWCP denied appellant’s claim for compensation from
October 31, 2015 through January 10, 2017. It found that he had not submitted sufficient medical
evidence sufficient to demonstrate that he was unable to work during this period.

3

On appeal appellant contends that he submitted all necessary evidence to OWCP.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.5 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.6 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.7
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.9 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he was receiving at the
time of injury, has no disability, and is not entitled to compensation for loss of wage-earning
capacity.10 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or employment, he or she is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.11
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility to see that justice is done.12 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.13 Additionally, once OWCP
4

Supra note 2.

5

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986

6

See Amelia S. Jefferson, id.

7

See Edward H. Horton, 41 ECAB 301 (1989).

8

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

9

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

10

Merle J. Marceau, 53 ECAB 197 (2001).

11

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

12

See S.M., Docket No. 16-0990 (issued February 8, 2017); Jimmy A. Hammons, 51 ECAB 219 (1999).

13

20 C.F.R. § 10.121.

4

undertakes to develop the medical evidence further, it has the responsibility to do so in a proper
manner.14
ANALYSIS
OWCP accepted that appellant sustained PTSD due to the compensable work factor of C.J.,
the postmaster, physically preventing him from leaving a room on January 30, 2015 and shutting
his hand in the door. She was charged with assault, to which she pled no contest. OWCP also
found, as compensable, that C.J. instructed appellant to drive a vehicle without working taillights
and blinkers and that he discussed his vehicle’s brakes with a coworker.
Appellant filed a claim for wage-loss compensation alleging disability from employment
for the periods October 31 to November 13, 2015 and November 16 to 27, 2015. OWCP
determined that he also requested wage-loss compensation from October 31, 2015 through
January 10, 2017 due to his work injury.
The Board finds that the case is not in posture for decision.
In a report dated November 3, 2015, Dr. Donaldson discussed the actions of C.J. on
January 30, 2015 and diagnosed anxiety, PTSD, and depression, noting that appellant was off work
using personal time. On January 5, 2016 she diagnosed PTSD and an adjustment disorder with
depressed mood. In an April 14, 2016 OWCP-5c form, Dr. Donaldson found that he could work
as long as C.J. was not at his work location.
In developing the claim, OWCP referred appellant to Dr. Gromov for a second opinion
examination. It requested that she address whether he sustained any periods of disability due to
an employment-related emotional condition. In a November 18, 2016 report, Dr. Gromov noted
that, after the January 2015 assault by C.J., appellant worked until October 2015, when he returned
to his work location. Appellant resumed work on July 14, 2016 when C.J. transferred to a different
location. Dr. Gromov diagnosed PTSD due to the January 2015 assault by C.J. and found that
appellant was unable to work if she was at his location. She opined that PTSD caused him to miss
work due to a deterioration of his functioning. Dr. Gromov noted that appellant’s healthcare
provider released him to resume work in July 2016 and indicated that she concurred that he could
not work when C.J. was present.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.15 Dr. Gromov’s
opinion supports that appellant sustained employment-related disability during the period
October 21, 2015 to January 10, 2017. She did not, however, address the exact period of disability
resulting from the accepted work injury.

14

See Melvin James, 55 ECAB 406 (2004).

15

See A.A., 59 ECAB 726 (2008); Phillip L. Barnes, 55 ECAB 426 (2004).

5

Once OWCP undertakes to further develop the medical evidence, it must do a complete
job in procuring medical evidence that will resolve the relevant issues in the case.16 After
undertaking development of the evidence by referring appellant to Dr. Gromov for an opinion on
any employment-related periods of disability, it was responsible for obtaining a rationalized
medical opinion on this issue. As noted, however, Dr. Gromov did not fully address the issue of
disability. Accordingly, the Board will remand the case to OWCP. On remand it should further
develop the medical evidence to determine whether appellant was totally disabled from work from
October 31, 2015 to January 10, 2017 as a result of his employment injury.17 Following this and
such further development as OWCP deems necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 5, 2017 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 19, 2018
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

16

See A.P., Docket No. 17-0813 (issued January 3, 2018).

17

See S.M., supra note 8.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1730
Issued: March 16, 2009

Case Submitted on the Record

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

JURISDICTION
On June 4, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 5, 2007 and January 17, 2008 merit decisions, denying his
claim for a schedule award, and a May 19, 2008 decision denying his request for further merit
review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he is
entitled to a schedule award due to his employment injury; and (2) whether the Office properly
refused to reopen appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 7, 2006 appellant, then a 51-year-old toolmaker, filed an occupational
disease claim (Form CA-2) alleging that he developed environmental psoriasis on his hands, feet,
elbows and knees. The employing establishment noted that he had not stopped working. The

Office accepted appellant’s claim for psoriasis of both hands on September 29, 2006 and
psoriasis-related disorders to the feet, back and head on February 8, 2007.
On May 18, 2007 appellant filed a claim (Form CA-7) for a schedule award. In support
of his claim, Dr. Mohammad Ismail and Dr. Robin D. Cole, both Board-certified internists,
submitted an April 3, 2007 medical report alleging that appellant’s plaque psoriasis of his hands,
feet and neck, as well as generalized psoriatic arthritis, caused a Class 4, 70 percent whole
person impairment, based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment, fifth edition. They reported that appellant was unable to stand in one
position for more than 15 minutes and had trouble wearing shoes due to lesions on his feet.
Appellant also had sensitivity to cold temperatures and certain chemicals, preventing him from
pumping gas into his vehicle. Drs. Ismail and Cole noted that, due to psoriatic arthritis, appellant
had difficulty opening jars and was unable to bend over or squat. A physical examination
revealed a generalized decreased range of motion of the neck, lower back, shoulders, wrists,
hands, knees and ankles. Appellant’s maximum medical improvement was listed as
February 28, 2008.
In a letter dated May 29, 2007, the Office requested Drs. Ismail and Cole to provide
additional information addressing any impairment to appellant’s extremities, including any
restriction of movement, decrease of strength, atrophy, ankylosis, sensory changes and subjective
complaints of pain.
Appellant’s medical records were sent to an Office medical consultant, Dr. James W.
Dyer, a Board-certified orthopedic surgeon. In a medical report dated November 1, 2007,
Dr. Dyer determined that the May 29, 2007 medical report rating a 70 percent whole person
impairment could not be considered under the Federal Employees’ Compensation Act. He
advised that there was no objective evidence of arthritis of any joint. Citing to Example 8-18 in
the A.M.A., Guides, Dr. Dyer also stated that impairment due to psoriatic arthritis requires a
joint motion evaluation, which the May 29, 2007 report failed to include. He concluded that,
based on the present medical evidence, appellant had no impairment.
By decision dated November 5, 2007, the Office denied appellant’s claim, finding that
appellant did not establish any permanent impairment to a scheduled member. On December 28,
2007 appellant filed a request for reconsideration.
In a November 15, 2007 medical report, Dr. Cole responded to the Office’s request for an
impairment rating. He calculated 50 percent right upper extremity impairment and 45 percent
left upper extremity impairment, noting that his opinion was based on the A.M.A., Guides. A
series of supplementing x-ray reports found osteophytic lipping on the right hand joints and
hypertrophic changes in the left hand joints, as well as degenerative changes with osteoarthritis
in both feet and osteophytic lipping with degenerative changes in the cervical spine.
Additionally, degenerative changes throughout the lumbar spine with osteophytic lipping and
disc space narrowing were revealed. Dr. Cole reported that appellant was unable to perform his

2

regular work activities and was limited in his daily living activities, intermittently confining him
to his home.1
In a January 11, 2008 medical report, Dr. Dyer advised that Dr. Cole’s evaluation was
again insufficient to establish permanent impairment as he did not include a loss of motion
evaluation in accordance with the tables in Chapter 16 and 17 of the A.M.A., Guides.2
The Office denied modification of its prior decision on January 17, 2008, finding that
appellant did not establish that he sustained an impairment of his hands or feet due to workrelated factors.
Appellant, through his representative, requested reconsideration on April 15, 2008. In an
accompanying April 7, 2008 letter, the representative argued that appellant’s injury was caused
by a new coolant, which was no longer in use due to appellant’s disability. Appellant also
submitted several x-ray reports dated November 12, 2007 and a March 26, 2008 note from
Dr. Ismail confirming that all of appellant’s impairment evaluations were completed in
accordance with the A.M.A., Guides.
The Office denied further merit review on May 19, 2008, finding that the submitted
evidence was repetitive and cumulative.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of 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.5
Before the A.M.A., Guides may be utilized the record must contain medical evidence
describing the claimant’s alleged permanent impairment. The Federal (FECA) Procedure
Manual provides that in obtaining medical evidence required for a schedule award the evaluation
must include a detailed description of the impairment which includes, where applicable, the loss
in degrees of active and passive motion of the affected member of function, the amount of any
atrophy or deformity, decreases in strength or disturbance of sensation or other pertinent
1

The Board notes that the report referred to an attached bilateral upper extremity evaluation. However, no such
evaluation exists in the record.
2

See A.M.A., Guides 436-37, 561-63 (5th ed. 2001).

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. See B.C., 58 ECAB ___ (Docket No. 06-925, issued October 13, 2006).

3

description of the impairment. This description must be in sufficient detail so that the claims
examiner and others reviewing the file will be able to clearly visualize the impairment with its
restrictions and limitations.6
ANALYSIS -- ISSUE 1
The issue is whether appellant established that he has any impairment of his upper or
lower extremities. The Board finds that the medical reports submitted in support of appellant’s
claim are not sufficient to establish that he sustained any permanent impairment due to his
accepted psoriasis condition. The Board notes that psoriasis is a disorder of the skin which is not
listed as a scheduled member under the Act.7 However, appellant may be entitled to a schedule
award if he establishes impairment of his extremities due to this condition.
Appellant’s attending physicians, Drs. Cole and Ismail, submitted medical reports
addressing appellant’s impairment to his extremities. However, neither physician provided
sufficient detail to enable Dr. Dyer, the Office medical consultant, or the Board to visualize any
permanent impairment.8
In the May 18, 2007 report, Drs. Cole and Ismail advised that appellant’s plaque psoriasis
and resulting arthritis limited his daily work and living activities, including standing, bending,
squatting, opening jars and pumping gas. They reported that appellant suffered a generalized
decreased range of motion. However, Drs. Cole and Ismail failed to specify any degrees of
motion lost for the upper or lower extremities. In example 8-18, the A.M.A., Guides, in
calculating impairment due to pustular psoriasis with psoriatic arthritis, combined the class of
skin impairment with limitations of joint motion.9 Drs. Cole and Ismail did not include range of
motion limitations in their report and therefore failed to follow the A.M.A., Guides in calculating
impairment due to appellant’s psoriatic arthritis. Further, the report calculated impairment for a
whole person. As correctly noted by Dr. Dyer, the Act does not provide for whole person
impairments and therefore this calculation is irrelevant to appellant’s impairment evaluation.10
The November 15, 2007 report also failed to sufficiently describe any impairment. While
Dr. Cole included x-ray reports, demonstrating physical impairments to appellant’s feet, hands
and spine, she again failed to include specifications for loss of range of motion. The A.M.A.,
Guides’ standards for evaluating the impairment of extremities are based primarily on loss of
range of motion.11 To this extent, it provides specific tables and figures exemplifying the types
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6 (March 1995). See John H. Smith, 41 ECAB 444, 448 (1990); Alvin C. Lewis, 36 ECAB 595,
596 (1985).
7

See 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a).

8

See Joseph D. Lee, 42 ECAB 172 (1990).

9

A.M.A., Guides 185.

10

See Marilyn S. Freedland, 57 ECAB 607 (2006); Tommy R. Martin, 56 ECAB 273 (2005).

11

See Tammy L. Meehan, 53 ECAB 229 (2001); August M. Buffa, 12 ECAB 324 (1961).

4

of tests and evaluations that may be performed to properly determine impairment.12 However,
Dr. Cole did not include any range of motion evaluations or address whether appellant sustained
a loss of range of motion. He simply advised that appellant had a 45 percent left and 50 percent
right upper extremity impairment without explaining how such ratings conform with the A.M.A.,
Guides. The Board notes that Dr. Cole did not include any estimate of impairment to appellant’s
lower extremities. Therefore, this report did not comply with the A.M.A., Guides and is of
diminished probative value.13
Appellant has the burden of proof to establish that he sustained a permanent impairment
to a scheduled member, entitling him to schedule award compensation. The Board finds that
appellant did not meet his burden of proof, as the medical reports of record lack detail and
conformance with the A.M.A., Guides and therefore do not support appellant’s claim for a
schedule award.14
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act15 does not entitle a claimant to a review of an Office decision
as a matter of right. This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.16 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under section 8128(a).17
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,18 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.19 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.20 When a claimant
12

See, e.g., A.M.A., Guides 516-17, p. 436-37.

13

Joseph D. Lee, supra note 8.

14

The Board notes that on appeal appellant submitted a copy of his personal medical records. Pursuant to 20
C.F.R. § 501.2(c), the Board is precluded from reviewing new evidence for the first time on appeal. However,
appellant may resubmit evidence to the Office with a formal, written request for reconsideration under 5 U.S.C.
§ 8128(a) and 20 C.F.R. § 10.606.
15

5 U.S.C. §§ 8101-8193.

16

5 U.S.C. § 8128(a).

17

Annette Louise, 54 ECAB 783, 789-90 (2003).

18

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
19

20 C.F.R. § 10.606(b)(2).

20

20 C.F.R. § 10.607(a).

5

fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.21
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record22 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.23
ANALYSIS -- ISSUE 2
Appellant has not shown that the Office erroneously applied or interpreted a specific
point of law; he has not advanced a relevant legal argument not previously considered by the
Office; and he has not submitted relevant and pertinent new evidence not previously considered
by the Office.
In an April 7, 2008 letter, appellant’s representative argued that appellant’s disability was
caused by an improper change in coolant, which has since been rectified. The Office previously
accepted that appellant’s injury was caused by his employment. Moreover, statements regarding
the cause of appellant’s disability are not relevant to the medical question of whether appellant
sustained a compensable impairment to a scheduled member. Therefore, this letter does not
constitute a basis for reopening appellant’s claim.24
Further, the evidence appellant submitted on reconsideration consisted of November 12,
2007 x-ray reports and a March 26, 2008 note from Dr. Ismail. The x-ray reports already existed
in the record and constitute duplicative evidence. Further, Dr. Ismail’s note states that
appellant’s evaluations were conducted according to the A.M.A., Guides, which the April 3 and
November 15, 2007 medical reports previously noted. Therefore, this report is repetitive of
evidence existing in the record. The Board has held that newly submitted evidence which is only
repetitive or duplicative of evidence existing in the record is not sufficient to warrant further
merit review.25
Because appellant only submitted duplicative, irrelevant and repetitive evidence with his
request for reconsideration, the Board finds that the Office was correct in denying merit review.

21

20 C.F.R. § 10.608(b).

22

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Eugene F. Butler, 36 ECAB 393,
398 (1984).
23

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007); Edward Matthew Diekemper, 31 ECAB
224, 225 (1979).
24

See David J. McDonald, 50 ECAB 185 (1990).

25

See Eugene F. Butler, supra note 22.

6

CONCLUSION
Appellant did not meet his burden of proof to establish that he is entitled to schedule
award compensation due to his employment injury. Further, the Office properly denied his
request for further merit review.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 19 and January 17, 2008 and November 5, 2007 are
affirmed.
Issued: March 16, 2009
Washington, DC

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

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

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

7