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

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

Docket No. 16-0011
Issued: February 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 2, 2015 appellant, through counsel, filed a timely appeal from a May 28,
2015 merit decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation to zero under 5
U.S.C. § 8113(b) for failing to cooperate with the early stages of vocational rehabilitation efforts.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated August 6, 2012, the
Board reversed the termination of appellant’s compensation benefits.2 The Board found that the
1

5 U.S.C. § 8101 et seq.

2

Docket No. 12-0496 (issued August 6, 2012).

opinion of Dr. Edward A. Toriello, a Board-certified orthopedic surgeon, was not sufficiently
well rationalized to resolve the conflict in the medical opinion evidence as to whether appellant
had residuals of the accepted employment injury. The facts and circumstances as referred to in
the prior Board decisions are incorporated herein. The relevant facts are set forth below.
On November 5, 2007 appellant, then a 37-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that day he sustained injuries to his chest and neck when he
was involved in a work-related motor vehicle accident. OWCP accepted the claim for neck
sprain, which was subsequently expanded to include cervical radiculitis. It later accepted
recurrence claims on March 3 and October 13, 2008. By letter dated October 19, 2009, it placed
appellant on the periodic rolls for temporary total disability effective September 27, 2009.
Following the Board’s remand, on November 20, 2012 OWCP referred appellant to
Dr. Stanley Soren, a Board-certified orthopedic surgeon, to resolve the outstanding conflict of
medical opinion between Dr. Michael J. Katz, the treating Board-certified orthopedic surgeon,
and Dr. Robert J. Orlandi, the second opinion Board-certified orthopedic surgeon, as to whether
appellant had continuing disability due to the accepted conditions.
In a December 12, 2012 report, Dr. Soren, based upon a review of the medical and factual
evidence, statement of accepted facts, and physical examination, diagnosed cervical strain,
cervical radiculopathy, mild-to-moderate C4-5 and C6-7 left foraminal stenosis, moderate C6-7
canal stenosis, and complex C4-5 and C6-7 left paracentral disc osteophyte, contracting the cord
surface, which he attributed to the employment injury. He opined that appellant was totally
disabled from his date-of-injury job as a letter carrier, but was capable of working full time in a
sedentary or light-duty job with restrictions. The restrictions included no climbing, occasional
lifting of no more than 15 pounds, and no excessive arm stretching or reaching. Dr. Soren stated
that appellant was unable to carry a mailbag on his shoulder or load/unload mail and parcel
containers weighing more than 15 pounds.
On June 28, 2013 OWCP received a December 12, 2012 work capacity evaluation form
(OWCP-5c) completed by Dr. Soren, which included up to eight hours of standing/sitting, one to
two hours of reaching, no reaching above the shoulder or operating a motor vehicle at work or
pushing or pulling or climbing, and one to two hours of lifting occasionally 10 to 15 pounds.
By letter dated July 15, 2013, OWCP referred appellant for vocational rehabilitation
services. It informed the vocational rehabilitation counselor that Dr. Soren’s opinion represented
the weight of medical evidence with respect to appellant’s ability to work.
In a July 20, 2013 letter to appellant, the rehabilitation counselor advised that he had been
unable to reach appellant by telephone and instructed him on how to contact him by telephone.
On a July 25, 2013 Rehabilitation Action Report (Form OWCP-44), the rehabilitation
counselor advised that he had been unable to obtain any working telephone numbers for
appellant and that he had not responded to the July 20, 2013 letter. As of July 25, 2013, there
had been no call from appellant.
By letter dated August 9, 2013, an OWCP claims examiner advised appellant that under
section 8113(b) of FECA, if an individual without good cause fails to apply for and undergo
2

vocational rehabilitation when so directed, and OWCP finds that in the absence of the failure the
individual’s wage-earning capacity would probably have substantially increased, it may reduce
prospectively the compensation based on what probably would have been the individual’s wageearning capacity had he not failed to apply for and undergo vocational rehabilitation. The claims
examiner further stated:
“Also, [s]ection 10.519 of Title 20 of the Code of Federal Regulations provide
that if an individual without good cause fails or refuses to participate in the
essential preparatory efforts as described above, OWCP will assume, in the
absence of evidence to the contrary, that the vocational rehabilitation effort would
have resulted in a return to work with no loss of wage-earning capacity, and
compensation will be reduced accordingly. In effect, this will result in a
reduction of compensation to zero.”
The claims examiner allotted appellant 30 days from the date of the letter to contact the
rehabilitation counselor to make a good effort to participate in the rehabilitation effort or to
provide good reasons for noncompliance. The rehabilitation counselor again requested appellant
to contact him by letter dated August 19, 2013.
On a Form OWCP-44 the rehabilitation counselor confirmed the efforts he had taken to
reach appellant, but that appellant had not responded
By decision dated September 13, 2013, OWCP reduced appellant’s compensation to zero
under 5 U.S.C. §§ 8113(b) as he had failed to participate in vocational rehabilitation efforts.
On September 23, 2013 counsel requested a telephonic hearing before an OWCP hearing
representative, which was held on February 13, 2014.
By March 4, 2014 letter, appellant requested to now participate in vocational
rehabilitation.
By decision dated May 2, 2014, OWCP’s hearing representative affirmed the
September 13, 2013 decision.
In a letter dated March 27, 2015, counsel again requested reconsideration of the May 2,
2014 decision. He argued that the decision should be vacated as appellant had participated in
vocational rehabilitation.
By decision dated May 28, 2015, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 Section 8113(b) of FECA provides that
if an individual, without good cause, fails to apply for and undergo vocational rehabilitation
3

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

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when so directed under section 8104 of FECA, OWCP, after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have substantially increased,
may reduce prospectively the monetary compensation of the individual in accordance with what
would probably have been his wage-earning capacity in the absence of the failure, until the
individual in good faith complies with the direction of OWCP.4
Section 10.519 of OWCP’s regulations provide:
If an employee without good cause fails or refused to apply for, undergo,
participate in, or continue to participate in a vocational rehabilitation effort when
so directed, OWCP will act as follows -(b) Where a suitable job has not been identified, because the failure
or refusal occurred in the early but necessary stages of a vocational
rehabilitation effort (that is, meeting with OWCP’s nurses,
interviews, testing, counseling, functional capacity evaluations and
work evaluations), OWCP cannot determine what would have been
the employee’s wage-earning capacity.5
OWCP procedures provide that specific instances of noncooperation include a failure to
appear for the initial interview, counseling sessions, a functional capacity evaluation (FCE),
other interviews conducted by the rehabilitation counselor, vocational testing sessions and work
evaluations, as well as lack of response, or inappropriate response to directions in a testing
session after several attempts at instruction.6
ANALYSIS
The Board finds that OWCP properly reduced appellant’s monetary compensation to zero
effective September 13, 2013 because he failed, without good cause, to participate in the early
stages of vocational rehabilitation efforts. Upon receiving medical evidence that he was not
totally disabled for all work, but was capable of working eight hours a day with restrictions,
OWCP properly referred appellant to vocational rehabilitation services. Appellant refused to
cooperate with this rehabilitation effort as documented for the record by his rehabilitation
counselor. In letters dated July 20 and August 9, 2013, appellant was advised of the need to
participate in vocational rehabilitation and the consequences of not participating. No response
was received.
OWCP further advised appellant in its August 9, 2013 letter of the consequences of
failing to participate in the early stages of vocational rehabilitation efforts. Appellant was
afforded 30 days to participate in such efforts or provide good cause for not doing so, or his

4

5 U.S.C. § 8113(b).

5

20 C.F.R. § 10.519(b).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.17(b) (February 2011); see Sam S. Wright, 56 ECAB 358 (2005).

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compensation would be reduced to zero. He did not respond and provided no reasons for his
failure to cooperate with his rehabilitation counselor.
Appellant’s failure without good cause to participate in preliminary communications with
his rehabilitation counselor regarding his work capacity constitutes a failure to participate in the
early but necessary stages of a vocational rehabilitation effort.7 OWCP regulations provide that,
in such a case, it cannot be determined what would have been the employee’s wage-earning
capacity had there been no failure to participate and it is assumed, in the absence of evidence to
the contrary, that the vocational rehabilitation effort would have resulted in a return to work with
no loss of wage-earning capacity.8 Appellant did not submit evidence to refute such an
assumption and OWCP had a proper basis upon which to reduce his disability compensation to
zero.
The only evidence submitted was a March 4, 2014 letter from appellant requesting
vocational rehabilitation. This evidence does not show or provide good reason for appellant’s
failure to participate in vocational rehabilitation, prior to OWCP’s September 13, 2013 decision
in this regard. Appellant was given appropriate notification of the sanctions for continuing to
refuse to cooperate with the rehabilitation program in the early stages, but failed to comply with
these rehabilitation efforts. The Board finds, therefore, that OWCP properly reduced appellant’s
compensation benefits to zero for failure to cooperate with the early stages of vocational
rehabilitation.9
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation to zero under 5
U.S.C. § 8113(b) for failing to cooperate with the early stages of vocational rehabilitation efforts.

7

20 C.F.R. § 10.519(b). See also Conard Hightower, 54 ECAB 796 (2003).

8

Id. at § 10.519(c).

9

Once appellant indicates in writing his intent to comply and participate in vocational rehabilitation,
compensation will be reinstated as long as actual compliance is confirmed. Compliance is shown by actions such as
undergoing interviews or testing. See B.W., Docket No. 14-0372 (issued November 12, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 28, 2015 is affirmed.
Issued: February 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Cape May, NJ, Employer
__________________________________________

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

Docket No. 14-848
Issued: August 11, 2014

Case Submitted on the Record

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

JURISDICTION
On March 5, 2014 appellant, through his attorney, timely appealed the October 28, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has greater than 31 percent impairment of the right lower
extremity.
FACTUAL HISTORY
This case was previously before the Board.2 Appellant, a 63-year-old construction
representative, has an accepted claim for aggravation of bilateral lower leg osteoarthritis, which
1

5 U.S.C. §§ 8101-8193.

2

Docket No. 11-1542 (issued February 8, 2012). The Board’s prior decision is incorporated herein by reference.

arose on or about July 1, 2005. He underwent bilateral total knee replacement surgery on
November 15, 2006. When the case was previously before the Board, the Branch of Hearings
and Review affirmed an August 23, 2010 schedule award for 22 percent impairment of the left
lower extremity (LLE) and 25 percent impairment of the right lower extremity (RLE). However,
the Board set aside OWCP’s hearing representative’s February 28, 2011 decision because there
was an unresolved conflict in medical opinion regarding the extent of appellant’s RLE
impairment.3 The Board remanded the case to OWCP for referral to an impartial medical
examiner.
In a report dated April 5, 2013, Dr. Ian B. Fries, a Board-certified orthopedic surgeon and
impartial medical examiner (IME), found 31 percent RLE impairment under Table 16-3, (Knee
Regional Grid), A.M.A., Guides 511 (6th ed. 2008).4 The rating was based on a diagnosis of total
knee replacement with a fair result (class 3, grade A).5
On April 12, 2013 another DMA, Dr. Andrew A. Merola, reviewed the record and noted
his agreement with the Dr. Fries’ April 5, 2013 impairment rating.6 He also indicated that
appellant reached maximum medical improvement as of the date of the Dr. Fries’ evaluation.
On April 15, 2013 OWCP issued two separate schedule award decisions. In one
decision, it noted that the evidence did not establish entitlement to a greater award than the
previous 22 percent schedule award for appellant’s left lower extremity. The other
April 15, 2013 decision granted an additional 6 percent impairment of the right lower extremity,
for a total RLE impairment of 31 percent.7
Counsel requested a hearing with respect to OWCP’s April 15, 2013 decision awarding
an additional six percent RLE impairment.8 He also submitted a May 31, 2013 report from
Dr. Diamond, who reviewed the latest reports from both the IME and DMA. Dr. Diamond
reiterated his prior rating of 59 percent RLE impairment.9 He disagreed with the IME that the
3

Appellant’s physician, Dr. Nicholas P. Diamond, a pain management specialist, found 59 percent RLE
impairment based on the result of the November 2006 total knee replacement. Dr. Diamond applied the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides
2008). The district medical adviser (DMA) disagreed with Dr. Diamond’s assignment of class 4 impairment (poor
result) under Table 16-3 (Knee Regional Grid), A.M.A., Guides 511 (6th ed. 2008). Instead, the DMA found only
class 2 impairment (good result) and a corresponding RLE impairment of 25 percent.
4

Dr. Fries examined appellant on April 1, 2013.

5

The IME also found 21 percent LLE impairment under Table 16-3, A.M.A., Guides 511 (6th ed. 2008).
However, there was no prior conflict with respect to OWCP’s August 23, 2010 award of 22 percent LLE
impairment.
6

Dr. Merola is a Board-certified orthopedic surgeon.

7

OWCP reduced this latest award by the 25 percent RLE award appellant previously received on
August 23, 2010.
8

A video hearing was held on August 22, 2013.

9

Dr. Diamond had not examined appellant since his initial evaluation on July 31, 2008.

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outcome of appellant’s right total knee replacement represented class 3 (fair result), rather than
class 4 (poor result) impairment. Dr. Diamond also criticized the IME’s decision to exclude
Functional History (GMFH) as a grade modifier when determining the appropriate net
adjustment.
By decision dated October 28, 2013, the Branch of Hearings and Review affirmed
OWCP’s April 15, 2013 decision. OWCP’s hearing representative found that the weight of the
medical evidence, as represented by the IME’s opinion, supported that appellant had 21 percent
LLE impairment and 31 percent RLE impairment. The hearing representative further noted that
because OWCP previously awarded 22 percent for the LLE and the current evidence only
supported a 21 percent LLE impairment, OWCP should take follow-up action to declare an
overpayment, if appropriate.10
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.11 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.12 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides.13
If there is disagreement between the physician making the examination for OWCP and
the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.14 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”15 Where OWCP has referred the employee to an impartial medical
10

As noted, counsel did not request a hearing with respect to OWCP’s April 15, 2013 decision concerning left
lower extremity impairment. Additionally, there was no conflict with respect to the previous finding of 22 percent
LLE impairment, which was based on a combined rating that included appellant’s total knee replacement
(21 percent) and Achilles tendinitis (1 percent). Accordingly, the IME’s April 5, 2013 opinion regarding the extent
of his LLE impairment would not be entitled to determinative weight. Given that counsel’s hearing request was
limited to OWCP’s April 15, 2013 decision awarding an additional six percent RLE impairment, OWCP’s hearing
representative’s analysis and findings regarding appellant’s LLE impairment and possible overpayment exceeded
the scope of her review.
11

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2).

12

20 C.F.R. § 10.404.

13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
14

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The DMA, acting on
behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. §10.321(b).
15

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

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examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.16
FECA and its implementing regulations provide for the reduction of compensation for
subsequent injury to the same schedule member.17 Benefits payable under 5 U.S.C. § 8107(c)
shall be reduced by the period of compensation paid under the schedule for an earlier injury if:
(1) compensation in both cases is for impairment of the same member or function or different
parts of the same member or function; and (2) the latter impairment in whole or in part would
duplicate the compensation payable for the preexisting impairment.18
ANALYSIS
The Board previously found there was an unresolved conflict in medical opinion
regarding the extent of appellant’s right lower extremity impairment. Whereas appellant’s
physician, Dr. Diamond, found 59 percent RLE impairment, he found only 25 percent
impairment. On remand, OWCP referred the case to Dr. Fries, who found 31 percent RLE
impairment under Table 16-3, A.M.A., Guides 511 (6th ed. 2008). The IME found the results of
appellant’s total right knee replacement represented class 3 impairment (fair result) with a
corresponding default (grade C) rating of 37 percent lower extremity impairment. In assigning
the appropriate diagnosis class (CDX), he relied on what he considered “credible” complaints of
right knee instability and decreased function, which were consistent with the limp appellant
exhibited. The IME further noted that appellant’s Lower Limb Questionnaire (LLQ) showed
moderately reduced function.19 Based on the above-noted functional history, he found class 3
impairment. Factoring in adjustments for Physical Examination (GMPE 1) and Clinical Studies
(GMCS 0), the IME calculated a net adjustment of -3, which resulted in a finding of class 3,
grade A impairment with a RLE rating of 31 percent.20 Dr. Merola, another DMA agreed. The
Board notes that the correct net adjustment would be -5; however, this would not change the
final rating (grade A) under Table 16-3, A.M.A., Guides 511 (6th ed. 2008).21
When a case is referred to an IME to resolve a conflict, the resulting medical opinion, if
sufficiently well reasoned and based upon a proper factual background, must be given special
16

Gary R. Sieber, 46 ECAB 215, 225 (1994).

17

5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

18

20 C.F.R. § 10.404(c)(1), (c)(2).

19

See section 16.9, Appendix 16-A: LLQ, A.M.A., Guides 555 (6th ed. 2008).

20

The IME properly excluded functional history from the net adjustment calculation because appellant’s
functional history, including the results of the LLQ, formed the basis for the class 3 diagnosis CDX under
Table 16-3, A.M.A., Guides 511 (6th ed. 2008). See section 16.3, A.M.A., Guides 515-16 (6th ed. 2008).
21

Net Adjustment (-5) ꞊ (GMPE 1 - CDX 3) + (GMCS 0 - CDX 3). See section 16.3d, A.M.A, Guides 521
(6 ed. 2008). Both the IME and the DMA incorrectly used a CDX of two rather than three. Because the net
adjustment procedure does not allow jumping from one class to a lower (or higher) class, in this instance (-5) the
rating would move to the lowest grade within the class (C to A). Id.
th

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weight.22 The Board finds that OWCP properly deferred to Dr. Fries’ April 5, 2013 findings.
Dr. Fries provided a well-reasoned report based on a proper factual and medical history. He also
accurately summarized the relevant medical evidence. Additionally, Dr. Fries provided a
thorough physical examination. His April 5, 2013 report included detailed findings and medical
rationale supporting his opinion. As the IME, Dr. Fries’ opinion is entitled to determinative
weight.23 Accordingly, the Board finds that OWCP properly relied on Dr. Fries’ findings in
determining the extent of appellant’s RLE impairment.
In his latest report, Dr. Diamond continued to challenge the assessment of the right knee
replacement surgery as anything other than class 4 (poor result). His May 31, 2013 report is
almost five years removed from his last physical examination of appellant. Dr. Diamond also
questioned Dr. Fries’ exclusion of functional history as a grade modifier in determining the
appropriate net adjustment. As previously discussed, the IME properly excluded functional
history from his net adjustment calculation.24 Subsequent reports from a physician who was on
one side of a medical conflict that has since been resolved would generally be insufficient to
overcome the weight accorded the IME’s report and/or insufficient to create a new medical
conflict.25 Dr. Diamond’s May 31, 2013 report reiterated his earlier finding of 59 percent RLE
impairment. Consequently, this evidence is insufficient to overcome the weight properly
accorded Dr. Fries’ April 5, 2013 opinion and similarly insufficient to create a new conflict in
medical opinion.
The Board finds that the impairment ratings from both the IME and the DMA conform to
the A.M.A., Guides (6th ed. 2008) and thus, represent the weight of the medical evidence
regarding the extent of appellant’s right lower extremity impairment. The Board further finds
that OWCP properly reduced the current 31 percent RLE impairment by the previous 25 percent
impairment appellant received in August 2010.26
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
Appellant failed to establish that he has greater than 31 percent impairment of the right
lower extremity.

22
23

Supra note 16.
Id.

24

Supra note 20.

25

I.J., 59 ECAB 408, 414 (2008).

26

Supra note 18.

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ORDER
IT IS HEREBY ORDERED THAT the October 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed with respect to the extent of appellant’s right
lower extremity impairment.
Issued: August 11, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Milwaukee, WI, Employer
__________________________________________

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

Docket No. 20-1505
Issued: June 7, 2021

Case Submitted on the Record

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

JURISDICTION
On August 12, 2020 appellant, through counsel, filed a timely appeal from a May 20, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

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

Federal Employees’ Compensation Act3 (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 greater than three percent permanent impairment of the
right lower extremity for which she previously received schedule award compensation.
FACTUAL HISTORY
On February 10, 2018 appellant, then a 28-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging on that date she slipped on ice as she descended stairs injuring her
right hip and lower right back while in the performance of duty.
On May 9, 2018 appellant underwent a magnetic resonance imaging (MRI) arthrogram
scan of the right hip which demonstrated hypertrophy as well as a complex multidirectional tear
involving the right superolateral labrum and extending anteriorly. She underwent right hip
arthroscopy with labral repair on July 23, 2018.
On February 25, 2019 OWCP accepted appellant’s claim for complex tear of the right hip
labrum.
On March 20, 2019 appellant filed a claim for a schedule award (Form CA-7). In a
March 22, 2019 development letter, OWCP advised appellant of the deficiencies of her schedule
award claim. It requested additional medical evidence and afforded her 30 days for a response.
Appellant again requested a schedule award on March 26, 2019.
In a May 8, 2019 report, Dr. Neil Allen, a Board-certified internist, examined appellant for
permanent impairment. He noted her history of injury and reviewed her MRI scan. Dr. Allen
applied the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides)4 to his findings on physical examination. He utilized
the range of motion (ROM) method to calculate right hip impairment. Dr. Allen listed appellant’s
right hip ROM as: flexion of 98, 96, and 96 degrees; extension of +5, +8, and +12 degrees; external
rotation of 18, 19, and 17 degrees; internal rotation of 21, 18, and 12 degrees; abduction of 25, 26,
and 18 degrees; and adduction of 18, 16 and 15 degrees. He applied Table 16-24, page 549 of the
A.M.A., Guides and calculated that 98 degrees of flexion was 5 percent permanent impairment
and that 19 degrees of external rotation was 10 percent permanent impairment. Dr. Allen
determined that the remaining ROMs were not ratable impairments. He found that appellant had
15 percent right lower extremity impairment based on ROM. Dr. Allen further noted that, using
the diagnosis-based impairment (DBI) estimates, resulted in three percent permanent impairment
for acetabular labral tear.5 He noted that 15 percent loss of ROM was consistent with grade
3

5 U.S.C. § 8101 et seq.

4

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

5

Id. at 513, Table 16-4.

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modifier physical examination (GMPE) of 2 in accordance with Table 16-25, page 550 and Table
16-7, page 517. Dr. Allen found that appellant’s grade modifier functional history (GMFH) was
1 in accordance with Table 16-6, page 516. He concluded that appellant had 15 percent permanent
impairment of the right lower extremity.
On September 24, 2019 OWCP referred the record and a statement of accepted facts
(SOAF) to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, serving as district medical
adviser (DMA), for review and rating of appellant’s permanent impairment of the right lower
extremity in accordance with the sixth edition of the A.M.A., Guides.
In an October 8, 2019 report, the DMA noted his review of Dr. Allen’s report and the
SOAF. He found that, in accordance with Table 16-4, page 513, appellant had three percent
permanent impairment of the right lower extremity due to acetabular labral tear treated with repair,
a class 1, grade E impairment. Referencing section 16.7, page 543, of the A.M.A., Guides, the
DMA explained that the A.M.A., Guides allow for the ROM method to be used as a stand-alone
rating when there were no DBI sections that were applicable or in rare cases when a severe injury
results in passive ROM loss qualifying for class 3 or 4 impairment or for amputation ratings. He
explained that, because the A.M.A., Guides did contain an appropriate DBI for appellant’s
diagnosed condition, it did not meet any of the criteria of section 16.7, page 543, of the A.M.A.,
Guides to allow for impairment to be calculated under the ROM method. The DMA determined
that the date of MMI was May 8, 2019 when appellant was examined by Dr. Allen.
By decision dated December 12, 2019, OWCP granted appellant a schedule award for three
percent permanent impairment of the right lower extremity. On December 17, 2019 appellant,
through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings
and Review.
By decision dated May 20, 2020, OWCP’s hearing representative found that the DMA was
entitled to the weight of the medical evidence and established that appellant had no more than three
percent permanent impairment of the right lower extremity as a result of the accepted employment
injury.
LEGAL PRECEDENT
The schedule award provisions of FECA6 and its implementing regulations7 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified

6

Supra note 1.

7

20 C.F.R. § 10.404.

3

edition of the A.M.A., Guides, published in 2009.8 The Board has approved the use by OWCP of
the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the
body for schedule award purposes.9
In determining permanent impairment of the lower extremities under the sixth edition of
the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the
lower extremity to be rated. With respect to the hip, the relevant portion of the leg for the present
case, reference is made to Table 16-4 (Hip Regional Grid) beginning on page 512.10 After the
CDX is determined from the Hip Regional Grid (including identification of a default grade value),
the net adjustment formula is applied using GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 Under Chapter 2.3, the
evaluators are directed to provide reasons for their impairment rating choices, including the
choices of diagnoses from regional grids and calculations of modifier scores.12
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician (known as a referee physician or impartial medical
specialist) who shall make an examination.13 This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.14 When there exists opposing reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.15
ANALYSIS
The Board finds that this case is not in posture for decision.

8

For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
9

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

10

A.M.A., Guides 512-15 (6th ed. 2009).

11

Id. at 515-22.

12

Id. at 23-28.

13

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009); M.S., 58 ECAB 328 (2007).
14

20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

15

See Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

4

OWCP accepted appellant’s claim for complex tear of the right hip labrum as causally
related to her federal employment. On March 20 and 26, 2019 appellant filed a schedule award
claim due to her accepted condition.
In support of her schedule award, appellant submitted a report from her physician,
Dr. Allen, dated May 8, 2019 utilizing the ROM method to calculate a right hip impairment.
Utilizing Table 16-24, page 549 of the A.M.A., Guides, he calculated that 98 degrees of flexion
was 5 percent permanent impairment and that 19 degrees of external rotation was 10 percent
permanent impairment. Dr. Allen found that appellant had 15 percent right lower extremity
impairment based on loss of ROM. He further noted that, using the diagnosis-based impairment
(DBI) estimates, resulted in three percent permanent impairment for acetabular labral tear.16
Dr. Allen ultimately concluded that appellant had 15 percent permanent impairment of the right
lower extremity.
In a report dated October 8, 2019, the DMA found that, in accordance with Table 16-4,
page 513, appellant had three percent permanent impairment of the right lower extremity due to
acetabular labral tear treated with repair, a class 1, grade e impairment. He opined that, because
the A.M.A., Guides did contain an appropriate DBI for appellant’s diagnosed condition, it did not
meet any of the criteria of section 16.7, page 543, of the A.M.A., Guides to allow for impairment
to be calculated under the ROM method the appellant was, therefore, not entitled to a schedule
award based on ROM impairments.
Appellant’s attending physician, Dr. Allen, and Dr. Harris, an OWCP DMA, disagree
regarding the extent of appellant’s permanent impairment of the right lower extremity due to
appellant’s accepted work-related condition. Dr. Allen opined that the nature of appellant’s right
lower extremity impairment allowed rating under the sixth edition of the A.M.A., Guides utilizing
the ROM method as the DBI method did not allow a rating for appellant’s full functional loss,
while the DMA opined that appellant’s permanent impairment was not an exceptional
circumstance which allowed rating under the ROM method, pursuant to the guidelines provided
in section 16-7, page 543 of the A.M.A., Guides.17
The Board finds that a conflict in medical opinion exists between the opinions of Dr. Allen,
on behalf of appellant, and Dr. Harris, OWCP’s physician, regarding the degree of permanent
impairment that appellant sustained for her accepted right hip condition.18 While both physicians
utilized the A.M.A., Guides, they differed on whether the ROM or DBI method should be utilized
to assess her permanent impairment. As noted above, if there is a disagreement between an
employee’s physician and OWCP’s physician, OWCP shall appoint a third physician, known as a
referee physician or impartial medical specialist, who shall make an examination.19 Because the
16

A.M.A., Guides 513, Table 16-4.

17

See S.A., Docket No. 20-0890 (issued January 27, 2010) (in which the Board found that OWCP had properly
determined a conflict of medical evidence when the DMA and attending physicians disagreed as to whether the DBI
or ROM methods should be applied to a lower extremity impairment rating).
18

C.B., Docket No. 20-0258 (issued November 2, 2020).

19

5 U.S.C. § 8123(a); see R.S. and S.T., supra note 13.

5

reports of Dr. Allen and Dr. Harris are virtually of equal weight, she must be referred to an
impartial medical examiner to resolve the existing conflict in the medical opinion evidence
regarding the extent of the permanent impairment of her right lower extremity.20
On remand OWCP shall refer appellant, along with the case record and SOAF, to a
specialist in the appropriate field of medicine for an impartial medical evaluation and report which
includes a rationalized opinion as to the extent of her right lower extremity permanent impairment.
Following this and such further development as deemed necessary, OWCP shall issue a de novo
decision regarding appellant’s schedule award claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 20, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: June 7, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

M.M., Docket No. 18-0235 (issued September 10, 2019); L.W., Docket No. 19-1208 (issued July 19, 2019).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 11-1095
Issued: November 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 29, 2011 appellant filed a timely appeal from a March 7, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an
overpayment in the amount of $2,942.74 from May 28 through December 31, 2010; (2) whether
it properly denied waiver of the recovery of the overpayment; and (3) whether OWCP properly
directed recovery of the overpayments from appellant’s continuing compensation payments.
On appeal, appellant contends that she should not be required to repay the overpayment,
as she was not at fault in its creation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 12, 2010 appellant, then a 52-year-old clerk, sustained injuries to her neck and
shoulder while moving heavy boxes. OWCP accepted her claim for left trapezius shoulder
strain; left shoulder impingement syndrome; and post-traumatic left shoulder strain.2
Appellant filed periodic claims for compensation. The record reflects that OWCP paid
appellant compensation for temporary total disability for the period May 28 through
December 31, 2010 at the augmented rate of 75 percent, on the basis that she lived with her
dependent husband. The record also reflects that appellant and her husband lived separate and
apart from the end of May through the end of December 2010 and that she so informed OWCP.
On January 31, 2011 OWCP made a preliminary determination that appellant received an
overpayment of compensation in the amount of $2,942.74 because she was paid compensation at
the augmented 75 percent rate from May 28 through December 31, 2010, when she should have
been paid at a 66 2/3 percent rate. It determined that she was paid a total of $27,440.60 for the
entire period, whereas she should have received compensation in the amount of $24,497.86,
resulting in an overpayment of $2,942.74.
OWCP provided evidence of payments made to appellant and worksheets explaining how
it calculated the overpayment amount. The record reflects that from May 28 to July 2, 2010,
appellant was paid at an incorrect weekly pay rate of $1,149.24 at the 75 percent compensation
rate, less a Basic Life Insurance premium of $21.60, for a total net compensation of $4,460.43.3
For this period, she should have been paid $4,104.78 based on the correct pay rate of $1,184.07
and the 66 2/3 percent compensation rate, resulting in an overpayment for this period in the
amount of $355.65. For the period July 3 to December 31, 2010, appellant was paid at the
correct weekly pay rate of $1,184.07 at a 75 percent compensation rate, less Basic Life Insurance
of $109.20, for a total net of $22,980.17. For this period, she should have been paid $20,393.08
based on the 66 2/3 percent compensation rate for no eligible dependents, resulting in an
overpayment for this period in the amount of $2,587.09. Thus, the record shows the total amount
paid to appellant for the period May 28 to December 31, 2010 was $27,440.60 ($4,460.43 +
$22,980.17); the total amount of the overpayment for this period was $2,942.74 ($355.65 +
$2,587.09).
OWCP made a recommendation that appellant be found without fault in the creation of
the overpayment because she could not reasonably have been expected to know that she had
been paid compensation incorrectly. Appellant was provided with an overpayment recovery
questionnaire and was advised of actions she could take if she disagreed with the fact or amount
of the overpayment or wished to request a waiver of recovery of the overpayment. She was
2

Appellant’s March 3, 2007 traumatic injury claim was accepted for sprains of the left wrist, left shoulder and
neck (File No. xxxxxx346).
3

OWCP explained that appellant was underpaid compensation for the period May 28 to July 2, 2010, as the
weekly pay rate used of $1,149.24 reflected an inaccurate night differential ($25.92 rather than $60.75 a week). The
correct weekly pay rate for this period should have $1,184.07; however, the correct compensation rate should have
been 66 2/3 percent at the nondependent rate. After applying the correct weekly pay rate, at the proper
compensation rate of 66 2/3 percent, an overpayment did occur for this period in the amount of $355.65.

2

informed that in order for OWCP to consider waiver or a reasonable method of collection, she
was required to complete the overpayment recovery questionnaire and provide supporting
documents within 30 days.
On February 4, 2011 appellant submitted an appeal request form requesting a decision
based on the written record on the issue of fault and possible waiver. She stated her belief that
the overpayment occurred through no fault of her own, noting that she advised OWCP of her
separation from her husband and was unaware of the overpayment. Appellant indicated that she
was enclosing (Form OWCP-20) and supporting documentation.4
By decision dated March 7, 2010, OWCP finalized its January 31, 2011 preliminary
determination that appellant received an overpayment of $2,942.74. It further found that,
although she was without fault in the creation of the overpayment, she had not demonstrated that
recovery would defeat the purpose of FECA or be against equity and good conscience, as she
had not submitted any evidence to support her request for waiver. OWCP determined that the
entire overpayment amount would be collected by deducting $370.00 from continuing
compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8129(a) of FECA provides that, when an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by OWCP by decreasing later payments to which the individual is entitled.5
FECA provides that the United States shall pay compensation for disability or death of an
employee resulting from personal injury sustained while in the performance of duty.6 If the
disability is total, the United States shall pay the employee monthly monetary compensation for
total disability.7 Under section 8110 of FECA, an employee is entitled to compensation at the
augmented rate of three-fourths of his or her weekly pay if he or she has one or more
dependants.8
A husband is considered an employee’s dependent if he is a member of the same
household, is receiving regular contributions from the employee for her support of if the
employee has been ordered by a court to contribute to his support.9 In determining dependency
under FECA, the decisive test is whether the person for whom benefits are claimed as a
dependent of the employee, in fact, looked to and relied, in whole or in part, upon the
4

The Board notes that the record does not contain a completed Form OWCP-20 or any supporting financial
documentation.
5

5 U.S.C. § 8129.

6

Id. at § 8102(a).

7

Id. at § 8105(a); see also Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

8

Id. at § 8110.

9

Id. at § 8110(a)(2)

3

contributions given by the employee as a means of maintaining or helping to maintain a
customary standard of living.10
If a claimant receives augmented compensation during a period when he or she has no
eligible dependents, the difference between the compensation he or she was entitled to receive at
the two-thirds compensation rate and the augmented compensation received at the three-fourths
rate constitutes an overpayment of compensation.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP correctly determined that appellant received an overpayment
from May 28 through December 31, 2010 in the amount of $2,942.74. The record shows that
appellant received wage-loss compensation from OWCP at the augmented rate of three-fourths
for employees with dependents in the amount of $27,440.60 during that time period. The
evidence of record, however, reflects that appellant lived separate and apart from her husband
from the end of May through the end of December 2010. There is also no evidence of record
that appellant’s husband received regular contributions from her for his support during this time
period, or that appellant had been ordered by a court to contribute to his support. Because
appellant was separated during the above-referenced time period, she was not entitled to receive
wage-loss compensation at the augmented rate between the end of May and the end of
December 2010. Therefore, she received an overpayment of compensation.
In calculating the amount of overpayment, OWCP offset the amount due by an
underpayment of compensation based on an incorrect pay rate for the period May 28 to
July 3, 2010. The record reflects that from May 28 to July 2, 2010, appellant was paid at an
incorrect weekly pay rate of $1,149.24 at the 75 percent compensation rate, less a Basic Life
Insurance premium of $21.60, for a total net compensation of $4,460.43. For this period, she
should have been paid $4,104.78 based on the correct pay rate of $1,184.07 and the 66 2/3
percent compensation rate, resulting in an overpayment for this period in the amount of $355.65.
For the period July 3 to December 31, 2010, appellant was paid at the correct weekly pay rate of
$1,184.07 at a 75 percent compensation rate, less Basic Life Insurance of $109.20, for a total net
of $22,980.17. For this period, she should have been paid $20,393.08 based on the 66 2/3
percent compensation rate for no eligible dependents, resulting in an overpayment for this period
in the amount of $2,587.09. Thus, the record reflects that appellant was paid a total of
$27,440.60 for the entire period, when she should have received compensation in the amount of
$24,497.86. The Board finds that OWCP properly determined that appellant received an
overpayment in the amount of $2,942.74 for the period May 28 to December 31, 2010 ($355.65
+ $2,587.09).

10

See Nancy J. Masterson, 52 ECAB 507 (2001); Helyn E. Girmann, 11 ECAB 557 (1960).

11

See Diana L. Booth, 52 ECAB 370 (2001) (the Board held that the claimant received an overpayment of
because she received compensation at the augmented rate during a period when she had no dependents following her
divorce).

4

LEGAL PRECEDENT -- ISSUE 2
When an overpayment of compensation has been made because of an error of factor law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which an individual is entitled.12 OWCP may consider waiving an
overpayment only if the individual to whom it was made was not at fault in accepting or creating
an overpayment.13
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is necessary to
determine whether an overpayment should be waived. This information will also be used to
determine the repayment schedule, if necessary. Failure to submit the requested information
within 30 days of the request shall result in denial of waiver and no further request for waiver
shall be considered until the requested information is furnished.14
ANALYSIS -- ISSUE 2
When OWCP issued its preliminary determination with regards to overpayment on
January 31, 2011, it advised appellant to complete an overpayment recovery questionnaire and
attach supporting financial documentation, if she wished to request waiver and explained the
consequences of failing to do so. Because appellant failed to submit the requested information
within 30 days, OWCP had no discretion in the matter; the law required a denial of waiver. The
Board will therefore affirm the decision on the issue of waiver.
Appellant argues that as she was not at fault in the creation of the overpayment, she
should not have to make repayment. OWCP’s finding that she was not at fault does not in itself
entitle her to retain money that does not belong to her.15 As appellant failed to submit the
necessary financial information, it was unable to determine whether her financial circumstances
qualified her for waiver.
LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual who is entitled to further
payments, proper adjustment shall be made by decreasing subsequent payments of compensation
having due regard to the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to minimize any
resulting hardship upon such individual.16

12

5 U.S.C. § 8129(a).

13

20 C.F.R. § 10.433(a).

14

Id. at § 10.438.

15

P.R., Docket No. 10-1244 (issued January 4, 2011).

16

20 C.F.R. § 10.441(a); see Steven R. Cofrancesco, 57 ECAB 62 (2006).

5

ANALYSIS -- ISSUE 3
The Board finds that OWCP properly directed recovery of the overpayment at the rate of
$370.00 every 28 days from appellant’s continuing compensation.
As noted, appellant failed to submit an overpayment recovery questionnaire, or any other
financial information in support of her request for waiver, prior to the final overpayment
decision. An overpaid individual is responsible for providing information about income,
expenses and assets as specified by OWCP.17 When an individual fails to provide requested
financial information, it should follow minimum collection guidelines designed to collect the
debt promptly and in full.18 Because appellant did not submit the requested financial information
there is no evidence of record to establish that OWCP erred by directing recovery of $370.00
from future compensation payments until the overpayment amount was repaid.
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment in
the amount of $2,942.74. The Board further finds that it properly denied waiver of recovery of
the overpayments and properly set forth the terms for collecting these overpayments from
appellant’s continuing compensation payments.

17

Id.

18

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.4(c)(2) (September 1994).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 7, 2011 is affirmed.
Issued: November 9, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 10-1927
Issued: June 1, 2011

Case Submitted on the Record

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

JURISDICTION
On July 19, 2010 appellant filed a timely appeal from a schedule award decision of the
Office of Workers’ Compensation Programs dated June 7, 2010. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a 19 percent impairment of the left upper extremity for which she received a schedule award.
FACTUAL HISTORY
On September 19, 1989 appellant, then a 37-year-old payroll supervisor, filed a traumatic
injury claim, alleging that on September 16, 1989 she experienced back pain while bending over
1

5 U.S.C. §§ 8101-8193.

to lift boxes. The claim was accepted for low back and left shoulder strains. Appellant worked
intermittently until October 26, 1989 and was placed on the periodic compensation rolls.2 On
December 3, 1990 she had left shoulder acromioplasty and had a second procedure with
resection of the distal clavicle on October 2, 1999.
The Office continued to develop the claim and in May 2008 referred appellant for
vocational rehabilitation. Appellant returned to a full-time accounting technician position at the
employing establishment on September 29, 2008. On October 8, 2008 she filed a schedule
award claim. By decision dated December 15, 2008, the Office found that appellant’s actual
earnings fairly and reasonably represented her wage-earning capacity and reduced her
compensation accordingly.
On January 19, 2009 Dr. Judith K. Held, an internist, advised that maximum medical
improvement was reached on September 29, 2008. She provided left shoulder range of motion
findings of 90 degrees of left shoulder rotation, 120 degrees of external rotation, 90 degrees of
forward elevation, 0 degrees of back elevation, 90 degrees of retained abduction, and 5 degrees
of retained adduction. Dr. Held stated that appellant had an 80 percent left upper extremity
impairment because she had decreased strength and constant pain and advised that, for a more
exact evaluation, a surgeon should be consulted.
In a February 11, 2009 report, Dr. Nabil F. Angley, a Board-certified orthopedic surgeon
and Office medical adviser, noted his review of the medical record including Dr. Held’s report
and provided an impairment rating in accordance with the fifth edition of the of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides),3 finding a 24 percent left upper extremity impairment. He also advised that, if further
information was needed, appellant should be referred for a second-opinion evaluation.
In March 2009, the Office referred appellant to Dr. Karl V. Metz, a Board-certified
orthopedic surgeon, for a second opinion and impairment evaluation. In a March 25, 2009
report, Dr. Metz provided examination findings and advised that, as maximum medical
improvement had not been reached, an impairment rating was not appropriate but that, in
accordance with the fifth edition of the A.M.A., Guides, appellant had a 22 percent impairment
due to loss of shoulder range of motion, and a 10 percent impairment due to a distal clavicle
resection, for a total 30 percent left upper extremity impairment.
In an undated report, Dr. Richard M. Ward, an attending Board-certified orthopedist,
advised that he examined appellant on March 26, 2009. He provided physical examination
findings including left shoulder flexion of 90 degrees, abduction of 90 degrees, internal rotation
of 30 degrees and external rotation of 30 degrees. Dr. Ward advised that, in accordance with the
fifth edition of the A.M.A., Guides, appellant had a 15 percent left upper extremity impairment

2

On April 29, 1990 appellant was in a nonemployment-related motor vehicle accident when she sustained trauma
to her left shoulder and upper back. She developed nonwork-related tendinitis of the right shoulder with partial
rotator cuff tear.
3

A.M.A., Guides (5th ed. 2001).

2

due to loss of shoulder motion and a 10 percent impairment for shoulder surgery which, when
combined, yielded a total 24 percent left upper extremity impairment.
By report dated May 28, 2009, Dr. Raymond Tesner, an osteopath, noted that he had last
seen appellant nine years previously, provided examination findings, and diagnosed chronic left
shoulder dysfunction. He advised that appellant was at maximum medical improvement. In a
July 15, 2009 report, Dr. Angley noted that Dr. Tesner did not provide an impairment rating, and
that Dr. Ward provided an impairment rating in accordance with the fifth edition of the A.M.A.,
Guides, and the sixth edition of the A.M.A., Guides was the appropriate edition to be used.4 He
advised that he was unable to provide an impairment rating based on the current medical
evidence and recommended referring appellant for an impairment rating based on the sixth
edition.
On July 24, 2009 the Office asked that Dr. Ward reevaluate appellant’s impairment in
accordance with the sixth edition of the A.M.A., Guides. In an undated report, Dr. Ward
repeated the physical findings of his previous report and referred to the sixth edition of the
A.M.A., Guides, stating:
“From Table 15-5 and [Table] 15-6 noting a Grade 3 modified and considering
the surgery on her shoulder and her decreased range of motion and my physical
findings on today’s evaluation yields a combined 24 percent upper extremity
impairment. Therefore, in my opinion, based upon the history and my
examination, I believe she has a current 24 percent upper extremity impairment
all as a result of the injury that occurred as described on [September 16, 1989].”
In a September 17, 2009 report, Dr. Angley advised that Dr. Ward did not show how he
reached his impairment finding of 24 percent, noting that pursuant to Table 15-5, for a full
thickness tear of the rotator cuff, the maximum impairment was 7 percent. He suggested that the
Office obtain an addendum report from Dr. Ward and ask that he explain how he reached his
impairment rating. Dr. Ward’s office refused to furnish a third report. Dr. Held continued to
submit reports describing appellant’s condition and treatment.5
The Office referred appellant to Dr. David K. Halley, Board-certified in orthopedic
surgery, provided an October 23, 2009 report in which he noted his review of the medical record,
the history of injury and appellant’s complaint of diffuse pain throughout the left shoulder with
left upper extremity weakness and difficulty performing activities of daily living. Examination
of the left shoulder demonstrated atrophy over the musculature of the anterior portion and
significant limitation of range of motion with abduction of 30 degrees, adduction of 14 degrees,
external rotation of 70 degrees, internal rotation of 85 degrees, flexion of 78 degrees, and
extension of 22 degrees. No sensory changes or ankylosis were noted. Dr. Halley advised that
4

A.M.A., Guides (6th ed. 2008).

5

The September 11, 2009 claim was adjudicated by the Office under file number xxxxxx932 and accepted for
right toe contusion. In the instant case, in the interim, appellant requested a review by the Branch of Hearings and
Review, who denied her request on October 30, 2009 because a final decision had not been issued. She then filed an
appeal with the Board, and by order dated January 29, 2010, the Board dismissed the appeal on the grounds that the
Board was without jurisdiction to review the appeal. Docket No. 10-45 (issued January 10, 2010).

3

maximum medical improvement occurred one to one-and-a-half years after her second shoulder
surgery. He advised that in accordance with Table 15-34 of the sixth edition of the A.M.A.,
Guides, abduction of 30 degrees yielded a grade 2 impairment for 6 percent; adduction of 14
degrees yielded a grade 1 impairment of 1 percent; flexion of 78 degrees yielded a grade 2
impairment of 9 percent; extension of 22 degrees yielded a grade 1 impairment of 1 percent; with
internal rotation of 86 degrees and external rotation of 70 degrees yielding no impairment, for a
total 17 percent left upper extremity impairment. Dr. Halley found a net modifier of grade 2 and
advised that, under Table 15-36, appellant was deserving of an increase due to range of motion
impairment of 10 percent which when multiplied by the 17 percent impairment, yielded an
additional 1.7 percent which, when rounded up yielded an additional 2 percent impairment, for a
total 19 percent left upper extremity impairment. On a March 28, 2010 he provided a permanent
impairment worksheet for the left shoulder, in which he advised that appellant had 19 percent
upper extremity impairment.
On May 13, 2010 Dr. Angley reviewed Dr. Halley’s reports. He found that maximum
medical improvement was reached in April 2001 and agreed that under Table 15-34, appellant’s
range of motion impairments yielded a 17 percent left upper extremity impairment, and that
under Table 15-36, utilizing the net modifier of 2, appellant was entitled to an increased
impairment of 1.7 percent, adjusted to 2 percent, for a total left upper extremity impairment of 19
percent.
By decision dated June 7, 2010, appellant was granted a schedule award for a 19 percent
impairment of the left upper extremity, for 414.96 days, to run from June 6, 2010 to
July 25, 2011.
LEGAL PRECEDENT
The schedule award provision of the Act,6 and its implementing federal regulations,7 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 for all claimants, the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions
after February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule
awards.9 For decisions issued after May 1, 2009, the sixth edition will be used.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

10

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

4

and Health (ICF).11 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).12 The net adjustment formula is (GMFH-CDX) + (GMPE - CDX) +
(GMCS- CDX).13
Although the diagnosis-based approach is the preferred method of evaluating permanent
impairment under the sixth edition of the A.M.A., Guides,14 Table 15-5, Shoulder Regional Grid,
provides that, if loss of motion is present, the impairment may alternatively be assessed under
section 17-7, range of motion impairment.15 A range of motion impairment stands alone and is not
combined with a diagnosis-based impairment.16
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.17
ANALYSIS
The Board finds that appellant is entitled to a schedule award for a 20 percent impairment
of the left upper extremity. Dr. Tenser did not provide an impairment rating. While Dr. Held
generally advised that appellant had an 80 percent left upper extremity impairment, she provided
no analysis or explanation to support her conclusion. It is well established that, when the
attending physician fails to provide an estimate of impairment conforming with the A.M.A.,
Guides, his or her opinion is of diminished probative value in establishing the degree of
permanent impairment.18 Thus, neither report is of sufficient probative value to establish
entitlement to a schedule award. Moreover, Dr. Metz and Dr. Ward, in his first report, provided
an impairment rating in accordance with the fifth edition of the A.M.A., Guides. As noted
above, the sixth edition of A.M.A., Guides is to be used in calculating impairment after

11

A.M.A., Guides, supra note 4 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
12

Id. at 385-419.

13

Id. at 411.

14

Id. at 461, section 15.7.

15

Id. at 401-05.

16

Supra note 14.

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
18

Linda Beale, 57 ECAB 429 (2006).

5

May 1, 2009.19 Since Dr. Metz’s report and Dr. Ward’s first report were not in accordance with
the appropriate edition of the A.M.A., Guides, neither constitutes probative medical evidence.20
On July 24, 2009 the Office asked that Dr. Ward provide an impairment rating in
accordance with the sixth edition of the A.M.A., Guides, and in an undated report, he advised
that, in accordance with Table 15-5 and Table 15-6, appellant had a grade 3 modifier and,
considering the left shoulder surgery, decreased range of motion, and his physical findings, she
had a combined 24 percent left upper extremity impairment. Table 15-5 of the sixth edition,
Shoulder Regional Grid, provides for diagnosis-based impairment classes of the shoulder
region.21 Table 15-6 provides an adjustment grid summary which is identified by considering
functional history, physical examination findings, and the results of relevant clinical studies.22
Dr. Ward did not identify a specific impairment class for the diagnosed condition in accordance
with Table 15-5 and did not provide analysis of the grade modifiers of Table 15-6, based on
functional history, physical examination, and did not use the net adjustment formula as described
in section 15.3 of the sixth edition.23
The only medical reports of record that properly referenced the applicable tables and
grids of the sixth edition and provided a sufficient explanation were those of Dr. Halley, the
Office referral physician, and Dr. Angley, an Office medical adviser, in a May 13, 2010 report.
Dr. Halley and Dr. Angley agreed the range of motion method for determining impairment was
applicable in this case, and Dr. Angley agreed with Dr. Halley’s impairment analysis and his
conclusion that appellant had a 19 percent left upper extremity impairment.
As noted above, Table 15-5 provides that, if loss of motion is present, the impairment may
alternatively be assessed under section 17-7, range of motion impairment.24 Dr. Halley provided
left shoulder range of motion findings of 30 degrees of abduction, 14 degrees of adduction, 70
degrees of external rotation, 85 degrees of internal rotation, 78 degrees of flexion and 22 degrees
of extension. He properly determined that, under Table 15-34 of the sixth edition of the A.M.A.,
Guides, internal rotation of 86 degrees and external rotation of 70 degrees yielded no
impairment, and that abduction of 30 degrees yielded a grade 2 impairment for 6 percent;
adduction of 14 degrees yielded a grade 1 impairment of 1 percent; flexion of 78 degrees yielded
a grade 2 impairment of 9 percent. Dr. Halley also advised that extension of 22 degrees yielded
a grade 1 impairment of 1 percent. A review of Table 15-34 indicates, however, that extension
of 22 degrees would yield a grade 2 impairment of two percent.25 Adding the range of motion
measurements yields an 18 percent left upper extremity impairment, rather than the 17 percent
19

Supra note 10.

20

See A.A., 59 ECAB 726 (2008).

21

A.M.A., Guides, supra note 4 at 401-05.

22

Id. at 406; see id. at 405, section 15.3.

23

Id. at 405-09.

24

Id. at 401-05.

25

Id. at 475.

6

found by Dr. Halley who also adjusted the range of motion measurement for functional history,
as provided in Table 15-36, finding that appellant deserved a 10 percent increase based on a net
modifier of 2.
Table 15-36 provides that a range of motion impairment may be adjusted by functional
history. A net modifier of 2 provides that the range of motion impairment is to be multiplied by
10 percent.26 Multiplying the 10 percent increase by the 18 percent range of motion impairment,
yields an additional 1.8 percent which, when rounded up, yields an additional 2 percent
impairment, for a total 20 percent left upper extremity impairment. Accordingly, the competent
medical evidence of record, the reports of Dr. Halley and Dr. Angley, establishes that appellant
has a 20 percent left upper extremity impairment.
CONCLUSION
The Board finds that appellant has a 20 percent impairment of the left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the June 7, 2010 decision of the Office of Workers’
Compensation Programs be affirmed as modified.
Issued: June 1, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

26

Id. at 477.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.V., Appellant
and
U.S. POSTAL SERVICE, JFK
INTERNATIONAL SERVICE CENTER,
Jamaica, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1251
Issued: January 28, 2021

Case Submitted on the Record

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

JURISDICTION
On June 1, 2020 appellant, through counsel, filed a timely appeal from a January 21, 2020
merit decision and an April 14, 2020 nonmerit 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a recurrence
of disability commencing July 26, 2017 causally related to his accepted August 9, 2011
employment injury; and (2) whether OWCP properly denied appellant’s request for
reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 10, 2011 appellant, then a 38-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on August 9, 2011 he sustained injuries when he was struck by a
piece of equipment towing postal containers while in the performance of duty.3 He stopped work
on August 10, 2011. OWCP accepted the claim for lumbosacral strain and neck sprain.4 On
September 21, 2011 appellant accepted a limited-duty mail handler position at the employing
establishment. OWCP paid wage-loss compensation for intermittent time lost from work from
October 8, 2011 until February 25, 2012.
A magnetic resonance imaging (MRI) scan of the cervical spine, obtained on July 11, 2016,
revealed a large central disc herniation at C5-6 impinging the thecal sac, central cord, and
intervertebral foramina, a left-sided disc herniation at C7 to T1 with impingement, posterior and
central disc herniations at C3-4, C4-5, and C6-7 with impingement, marked narrowing of the canal
with stenosis at C5-6 and C4-5, and central cord compression at C5-6.
In a report dated August 4, 2016, Dr. Demetrios Mikelis, an internist and physiatrist,
evaluated appellant for complaints of back and neck pain.5 He noted that appellant had a history
of an August 9, 2011 employment injury. Dr. Mikelis diagnosed herniated cervical and lumbar
discs with radiculopathy. He discussed treatment options, including surgery, and opined that
appellant could not perform heavy lifting, carrying, or bending.
In a November 3, 2016 report, Dr. Erich G. Anderer, a Board-certified neurosurgeon,
recounted appellant’s history of a 2011 employment injury and current symptoms of neck pain,
bilateral arm numbness, and bilateral leg pain. He advised that a cervical MRI scan had
demonstrated “a congenitally narrow canal with central disc herniation and spinal cord
compression at C4-5 and a large left paracentral disc herniation causing severe spinal cord
compression with intrinsic signal change within the cord at C5-6.” Dr. Anderer advised that a
3

On the CA-1 form, appellant indicated the date of injury as August 10, 2011. It appears, however, that he was
injured at 11:30 p.m. on August 9, 2011.
4

By decision dated September 30, 2011, OWCP denied appellant’s traumatic injury claim as the medical evidence
was insufficient to establish that he sustained a medical condition causally related to the accepted employment
incident. By decision dated January 26, 2012, an OWCP hearing representative affirmed the September 30, 2011
decision as modified to find that appellant had not factually established the employment incident due to a discrepancy
in dates. By decision dated August 6, 2012, OWCP vacated the January 26, 2012 decision and accepted the claim for
lumbosacral strain and neck sprain.
5

On July 31, 2016 appellant filed a notice of recurrence of a medical condition (Form CA-2a). By letter dated
August 19, 2016, OWCP advised that his claim remained open for medical treatment and that it would thus take no
action of his Form CA-2a.

2

lumbar MRI scan had shown mild degenerative changes without significant neural compression or
instability. He noted that appellant had “a history of neck and back pain with slow development
of cervical myelopathy, all of which started after a work injury in 2011.” Dr. Anderer
recommended surgery.
On December 2, 2016 Dr. Anderer requested surgical authorization from OWCP to
perform a spinal fusion.
On January 6, 2017 Dr. Todd Fellars, a Board-certified orthopedic surgeon serving as a
district medical adviser (DMA), opined that the requested cervical spinal fusion was medically
necessary, but not causally related to the accepted condition of a neck sprain. He advised that the
medical evidence showed disc degeneration which was “largely a genetic condition and not
activity related.”
On September 5, 2017 OWCP referred appellant to Dr. Leon Sultan, a Board-certified
orthopedic surgeon, for a second opinion examination. It requested that he evaluate whether
appellant had residuals or disability from appellant’s accepted employment injury and whether the
requested cervical spinal fusion was causally related to his accepted condition.
In a report dated October 30, 2017, Dr. Sultan reviewed appellant’s history of injury and
resulting medical treatment. On physical examination, he found intact sensory testing of the upper
extremities and dull reflexes of the biceps and triceps. Dr. Sultan advised that appellant had
negative straight leg test bilaterally and intact sensation of the bilateral lower extremities. He
diagnosed status post-traumatic derangement of the cervical and lumbar spine with aggravation of
preexisting cervical disc disease at multiple levels. Dr. Sultan opined that his physical examination
demonstrated “positive objective examination findings in regard to the accepted compensable
injuries involving [appellant’s] cervical spine and lumbar spine.” He related, “[Appellant’s]
current residuals include low grade cervical spine motion restriction with him being status post
cervical disc surgery without the upper extremity neurological impairment. In regard to his lower
back he is noted to be status post lumbar derangement with low grade lumbar spine motion
restriction without any lower extremity neurological impairment.” Dr. Sultan found that appellant
had not fully recovered from the September 18, 2017 surgery of his cervical spine. He asserted
that the September 18, 2017 cervical discectomy and fusion was “appropriate for the claimant’s
accepted condition,” noting that diagnostic studies and examination findings supported disc
herniations necessitating surgery. Dr. Sultan determined that appellant could perform sedentary
or light employment duties with restrictions of lifting and carrying up to 20 pounds at a time using
both hands.
On October 21, 2019 appellant filed a notice of recurrence (Form CA-2a) claiming
disability beginning July 2017 causally related to his June 9, 2011 employment injury. The
employing establishment advised that he had performed modified employment subsequent to his
injury and that his last day working was July 26, 2017.
In a November 12, 2019 development letter, OWCP advised appellant of the definition of
a recurrence of disability and requested that he submit a report from his physician explaining how
his disability was causally related to his accepted employment injury. It provided a questionnaire
for his completion. OWCP afforded appellant 30 days to submit the necessary information.

3

Counsel responded on November 27, 2019 submitting a September 18, 2017 operative
report from appellant’s cervical discectomy and fusion at C4-5 and C5-6 and the October 30, 2017
report from Dr. Sultan. He further submitted an August 28, 2018 report from Dr. Michael
Rosenberg, Board-certified occupational medicine. Dr. Rosenberg discussed appellant’s history
of cervical surgery one year earlier. He diagnosed sensory neuropathy of the bilateral hands, legs,
and feet, mild bilateral wrist and hand pain, and a balance disturbance. Dr. Rosenberg advised that
appellant had moderate-to-severe restrictions in activities that required walking, standing, and
using fine manipulation using the hands and feet.
By decision dated January 21, 2020, OWCP found that medical evidence was insufficient
to establish an employment-related recurrence of disability beginning July 26, 2017 causally
related to appellant’s August 9, 2011 employment injury. It noted that he had alleged a recurrence
of disability two months prior due to an unauthorized surgery on his cervical spine.
On April 6, 2020 appellant, through counsel, requested reconsideration. Appellant asserted
that OWCP should have authorized the cervical spinal fusion based on the opinion of Dr. Sultan.
Counsel further contended that OWCP should pay disability compensation beginning July 26,
2017, noting that appellant’s condition had worsened such that he required surgery.
By decision dated April 14, 2020, OWCP denied appellant’s request for reconsideration of
the merits of his claim as he had not submitted evidence or raised an argument sufficient to warrant
reopening of his case for further review of the merits under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.6 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.7
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.8

6

20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

7

Id.

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket
No. 18-0334 (issued December 4, 2018).

4

ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision regarding whether appellant has
met his burden of proof to establish a recurrence of disability commencing July 26, 2017 causally
related to his accepted August 9, 2011 employment injury.
On November 3, 2016 Dr. Anderer found that appellant had neck and back pain that had
begun after a 2011 employment injury and had developed into cervical myelopathy. He requested
authorization from OWCP for a spinal fusion.
Dr. Fellars, a DMA, opined that the requested spinal fusion was not causally related to the
accepted condition of a neck sprain. OWCP referred appellant to Dr. Sultan for a second opinion
examination to determine whether he had continued residuals of his accepted employment-related
conditions and whether the proposed spinal fusion was causally related to appellant’s August 9,
2011 employment injury.
On October 30, 2017 Dr. Sultan discussed appellant’s history of an August 9, 2011
employment injury and September 18, 2017 cervical discectomy and fusion. He contended that
appellant had continued residuals of his accepted employment-related conditions. Dr. Sultan
diagnosed status post-traumatic derangement of the cervical and lumbar spine and aggravation of
preexisting disc disease at multiple levels. He opined that the cervical discectomy and fusion
performed on September 18, 2017 was causally related to the accepted condition. Dr. Sultan
further found that appellant could perform light or sedentary work duties lifting and carrying up to
20 pounds.
Appellant filed a notice of recurrence of disability beginning July 26, 2017 causally related
to his June 9, 2011 employment injury. OWCP found that he had not met his burden of proof to
establish a recurrence of disability, noting that he had undergone unauthorized surgery in
September 2017. As noted, however, it had referred appellant to Dr. Sultan for an opinion on
whether the September 2017 surgery should be authorized. OWCP did not, however, consider his
findings that appellant had sustained additional employment-related conditions due to appellant’s
accepted employment injury and that the September 18, 2017 cervical discectomy and fusion
resulted from the accepted work injury in finding that he had not established a recurrence of
disability.
It is well established that, proceedings under FECA are not adversarial in nature and that
while the employee has the burden of proof to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence in order to see that justice is done.9 Once
OWCP undertakes development of the medical evidence, it has the responsibility to do so in a
manner that will resolve the relevant issues in the case.10 Further, when adjudicating a claim,
OWCP is obligated to consider all evidence properly submitted by a claimant and received prior

9

See N.L., Docket No. 19-1456 (issued July 14, 2020); T.L., Docket No. 19-1572 (issued March 12, 2020).

10

See K.S., Docket No. 18-0845 (issued October 26, 2018).

5

to the issuance of its final decision.11 In this case, OWCP adjudicated appellant’s recurrence of
disability claim without determining whether Dr. Sultan’s opinion supported that it should expand
acceptance of appellant’s claim to include additional employment-related conditions and authorize
appellant’s September 18, 2017 cervical surgery. The case, therefore, will be remanded for OWCP
to consider Dr. Sultan’s October 30, 2017 report.12 After this and such further development as
deemed necessary, it should issue a decision regarding the issues of claim expansion and surgical
authorization and a de novo decision regarding whether appellant has met his burden of proof to
establish a recurrence of disability beginning July 26, 2017.13
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 14 and January 21, 2020 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: January 28, 2021
Washington, DC

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

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

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

11

J.R., Docket No. 18-1177 (issued July 25, 2019); William A. Couch, 41 ECAB 548 (1990).

12

J.R., id.

13

In view of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

6