United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, San Francisco, CA,
Employer
__________________________________________

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

Docket No. 11-545
Issued: October 21, 2011

Case Submitted on the Record

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

JURISDICTION
On January 3, 2011 appellant filed a timely appeal from a July 22, 2010 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her claim for disability
compensation. 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.
ISSUE
The issue is whether appellant was disabled beginning November 18, 2008 causally
related to her October 21, 2005 employment injury.
FACTUAL HISTORY
On October 21, 2005 appellant, then a 58-year-old station clerk, filed a traumatic injury
claim alleging that on that date she injured her neck, shoulder, back, hip and buttocks when she
1

5 U.S.C. § 8101 et seq.

was struck by a forklift in the performance of duty. OWCP accepted the claim for cervical
strain, right shoulder strain, a left shoulder contusion and a right chest wall contusion. Appellant
stopped work on October 25, 2005 and returned to full-time modified employment on
July 2, 2006.2
OWCP accepted that appellant sustained an employment-related recurrence of disability
beginning January 14, 2008. It paid her compensation from January 15 to March 17, 2008.
Appellant returned to full-time work on March 18, 2008 but decreased her work time to six hours
per day beginning March 28, 2008. OWCP paid her compensation for intermittent time lost
from work March 25 through September 16, 2008.
In a disability certificate dated November 12, 2008, Dr. Andrew M. Giovannini, an
attending Board-certified orthopedic surgeon, diagnosed cervical strain, a right rotator cuff tear,
a left shoulder sprain, cervical radiculopathy, bilateral carpal tunnel syndrome, lumbar sprain
with radiculopathy and bilaterally absent Achilles deep tendon reflexes. He found that appellant
was disabled from work until January 30, 2009.
On February 13, 2009 appellant filed a claim for compensation for total disability
beginning November 18, 2008. On January 28, 2009 Dr. Giovannini provided the same
diagnoses and extended her disability until March 30, 2009.
By letter dated February 25, 2009, OWCP informed Dr. Giovannini that his disability
slips were insufficient to establish that appellant was disabled due to her accepted work injury
and requested a comprehensive medical report. It noted that on March 5, 2008 an OWCP
referral physician found that she could work full-time limited duty.3
In a March 4, 2009 response, Dr. Giovannini stated that appellant was “temporarily
totally disabled as a result of not one but three reported injuries incurred while working for the
[employing establishment].” He discussed her history of a 2005 occupational injury to her
lumbar sprain as a result of repetitive work, the injury on October 21, 2005 to her neck, chest,
back and shoulders when she was struck by a forklift and a September 15, 2008 injury causing
multiple contusions when she fell entering the employing establishment. Dr. Giovannini
additionally diagnosed carpal tunnel syndrome. He summarized the results of diagnostic studies
and noted that appellant continued to experience problems with the right shoulder and upper
extremity, neck, low back and knee. Dr. Giovannini provided findings on physical examination.
He advised that she might need arthroscopic surgery on her knee and that a “[t]entative back to
work date had been set at November 17, 2008.”
By decision dated March 11, 2009, OWCP denied appellant’s claim for compensation
beginning November 8, 2008. It found that Dr. Giovannini did not provide sufficient medical
rationale for his opinion or explain why she was unable to work as of November 8, 2008.
2

OWCP also accepted appellant’s September 2005 occupational disease claim for lumbar strain under another
file number.
3

On March 5, 2008 Dr. Joel W. Renbaum, a Board-certified orthopedic surgeon, determined that appellant had
continuing residuals from her October 21, 2005 work injury and her 2005 occupational disease. He advised that she
could work full time with restrictions.

2

On March 25, 2009 Dr. Giovannini found that appellant was disabled beginning
September 19, 2008 and could resume work on March 30, 2009. On March 31, 2009 he
indicated that she tried to work on March 30, 2009 but left after three hours because of pain in
her hands, shoulders and neck. On examination Dr. Giovannini found carpal tunnel syndrome
and right shoulder atrophy, pain, crepitus and weakness. He related that it was difficult for
appellant to work without using her hands and found that she was disabled for three months.
On April 13, 2009 Dr. Giovannini reviewed OWCP’s March 11, 2009 decision. He
discussed appellant’s history of an injury on September 15, 2008 when she fell entering her work
location. Dr. Giovannini noted that she complained of pain in her right shoulder and right hand
and stated:
“Nevertheless, [appellant] continued working with restrictions until
November 18, 2008. At that time the effects of the September 15, 2008 work
injury were considered to be the immediate cause [of her] symptoms and
temporary total disability. However, prior work injuries that all remain
symptomatic (outlined in report dated November 3, 2008) were a contributory
cause as she would, with reasonable medical probability, not have the same
degree of temporary total disability barring those preexisting work injuries that
remained symptomatic. In other words, had [appellant] not sustained prior
injuries at work in the same body parts and from which she had not fully
recovered, the effect of the incident of September 15, 2008 would not have been
nearly as severe and it would have been accompanied by a lesser degree of
disability.”
Dr. Giovannini related that appellant’s current complaints were directly related to her
October 21, 2005 employment injury “in view of the aggravation of complaints that stemmed
[from the October 21, 2005] injury on September 15, 2008.” He further attributed the work
stoppage on March 30, 2009 to her October 21, 2005 work injury. Dr. Giovannini stated, “As
noted above, temporary total disability between November 18, 2008 and March 30, 2009 was
immediately caused by the work injury of September 15, 2008, however, there were major
contributing factors from residual disability produced by the work injuries sustained prior to that
date, especially that of November 21, 2005 because complaints involved the same parts of the
body.”
On April 17, 2009 appellant requested reconsideration. By decision dated June 24, 2009,
OWCP denied modification of its March 11, 2009 decision. It noted that Dr. Giovannini
discussed appellant’s October 21, 2005 and September 15, 2008 employment injuries but did not
provide rationale regarding why she was unable to perform her modified employment beginning
November 18, 2008.
In a disability certificate dated June 29, 2009, Dr. Giovannini advised that appellant was
unable to work until July 31, 2009.4

4

Appellant retired from the employing establishment effective July 31, 2009.

3

On August 1, 2009 appellant requested reconsideration. In a nonmerit decision dated
August 26, 2009, OWCP denied her request for reconsideration as she did not submit evidence
sufficient to warrant reopening her case for further merit review under 5 U.S.C. § 8128.
In a report dated June 22, 2010, Dr. Giovannini described his treatment of appellant due
to her October 21, 2005 work injury and his findings on examination. He related that she
“suffered a spontaneous and marked increase in symptoms of the previous injury dated
October 21, 2005.” Dr. Giovannini reviewed the results of a left shoulder magnetic resonance
imaging scan study dated October 3, 2006, which showed minimal rotator cuff tendinitis and a
March 6, 2006 electromyogram which revealed carpal tunnel syndrome and acute right cervical
radiculopathy. He diagnosed cervical strain, a right rotator cuff tear, left shoulder sprain,
cervical radiculopathy and bilateral carpal tunnel syndrome. Dr. Giovannini related that on
January 14, 2008 appellant complained of increased pain and that he diagnosed carpal tunnel
syndrome on examination and severe cervical spasm. He stated:
“When [appellant] experienced recurrence she was known to have a documented
[c]arpal [t]unnel [s]yndrome and lifting had been restricted to 5 pounds; carrying
to 10 pounds. Repetitive use of the hands and handling, firm grip or fine
manipulation remained in place. [Appellant] also has incurred another work
injury on November 11, 2006, which resulted in a cervical and lumbar disc
hemiation with neurological deficit and both upper and lower extremities. This
also was taking a turn for the worse when reexamined on January 14, 2008. An
update with respect to the November 2006 injury has been submitted and is dated
February 27, 2008.
“There is a direct causal relationship between the industrial injury of the
recurrence of January 14, 2008 and [appellant’s] current complaints.”
On June 22, 2010 appellant requested reconsideration. By decision dated July 22, 2010,
OWCP denied modification of its June 24, 2009 decision. It found that Dr. Giovannini did not
directly address the relevant issue of whether she could work beginning November 8, 2008 in her
modified position. OWCP further noted that appellant did not have an accepted claim for carpal
tunnel syndrome or a known work injury on November 11, 2006.
LEGAL PRECEDENT
The term disability as used in FECA5 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.6 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.7 When the medical evidence establishes that the
residuals of an employment injury are such that, from a medical standpoint, they prevent the
5

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

6

Paul E. Thams, 56 ECAB 503 (2005).

7

Id.

4

employee from continuing in the employment held when injured, the employee is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.8 The Board
will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employee’s to self-certify their disability and entitlement to
compensation.9
ANALYSIS
OWCP accepted that appellant sustained cervical strain, right shoulder strain and
contusions of the left shoulder and right chest wall due to an October 21, 2005 employment
injury. On October 25, 2005 she stopped work and on July 2, 2006 returned to work in a limitedduty capacity. OWCP accepted that appellant sustained a recurrence of disability beginning
January 14, 2008. Appellant returned to full-time work on March 18, 2008 but reduced her work
schedule to six hours beginning March 28, 2008. OWCP paid her compensation for intermittent
time lost from work March through September 2008.
Appellant stopped work again on November 18, 2008 and filed a claim for wage-loss
compensation beginning that date. In disability certificates dated November 12, 2008 and
January 28, 2009, Dr. Giovannini diagnosed cervical strain, a right rotator cuff tear, left shoulder
sprain, cervical and lumbar radiculopathy and bilateral carpal tunnel syndrome. He found that
appellant was disabled from work. Dr. Giovannini, however, did not address the cause of her
disability. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of diminished probative value on the issue of causal relationship.10
On March 4, 2009 Dr. Giovannini asserted that appellant was disabled due to three work
injuries, a 2005 occupational injury to her lumbar spine, her October 21, 2005 injury and a
September 15, 2008 injury that resulted in multiple contusions. He reviewed the diagnostic
studies and the findings on examination. Dr. Giovannini recommended possible arthroscopic
surgery and indicated that appellant might be able to return to work on November 17, 2008. He
did not explain, however, how her October 21, 2005 employment injury caused or contributed to
her disability from employment beginning November 18, 2008. A physician must provide an
opinion on whether the employment incident described caused or contributed to claimant’s
diagnosed medical condition and support that opinion with medical reasoning to demonstrate that
the conclusion reached is sound, logical and rationale.11
In a March 25, 2009 disability certificate, Dr. Giovannini opined that appellant was
disabled from September 19, 2008 to March 30, 2009. He determined that she had to leave work
on March 31, 2009 due to hand, shoulder and neck pain. On examination Dr. Giovannini found
carpal tunnel syndrome and right shoulder atrophy and pain. He asserted that appellant was
8

Id.

9

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

10

Conrad Hightower, 54 ECAB 796 (2003).

11

John W. Montoya, 54 ECAB 306 (2003).

5

disabled for three months. Dr. Giovannini did not, however, attribute any disability to her
October 21, 2005 employment injury and thus his opinion is of little probative value.
On April 13, 2009 Dr. Giovannini asserted that a September 15, 2008 employment injury
was the “immediate cause” of appellant’s disability beginning November 18, 2008. He found,
however, that all work injuries contributed to her disability as her continued symptoms from the
prior injuries increased the severity of the September 15, 2008 injury. Dr. Giovannini explained
that appellant’s disability from November 18, 2008 to March 30, 2009 was due to a
September 15, 2008 employment injury but that a November 21, 2005 injury was also a major
contributing cause as the “complaints involved the same parts of the body.” He did not,
however, specifically explain how her October 21, 2005 work injury caused or contributed to her
disability from her modified employment other than to note that the same parts of the body were
injured in all employment injuries. The issue of whether a claimant’s disability is related to an
accepted condition is a medical question which must be established by a physician who, on the
basis of a complete and accurate factual and medical history, concludes that the disability is
causally related to employment factors and supports that conclusion with sound medical
reasoning.12 Dr. Giovannini’s conclusion is unsupported by rationale is thus insufficient to meet
appellant’s burden of proof.13
In a report dated June 22, 2010, Dr. Giovannini found that appellant sustained a
spontaneous increase in symptoms due to her October 21, 2005 employment injury. He provided
findings on examination from a January 14, 2008 office visit and diagnosed cervical strain, a
right rotator cuff tear, left shoulder sprain, cervical radiculopathy and bilateral carpal tunnel
syndrome. Dr. Giovannini discussed a November 11, 2006 purported work injury and found that
appellant sustained a recurrence of disability on January 14, 2008 due to her work injury. He did
not address, however, her disability from employment beginning November 18, 2008 or explain
why she was unable to perform her modified employment. Medical conclusions unsupported by
rationale are of diminished probative value.14 Consequently, Dr. Giovannini’s report is of little
probative value.
Appellant may submit new evidence or argument with a written request for
reconsideration within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she was disabled beginning
November 18, 2008 causally related to her October 21, 2005 employment injury.

12

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

13

See Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

14

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

6

ORDER
IT IS HEREBY ORDERED THAT the July 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2011
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, LOGISTICS &
DISTRIBUTION CENTER, Kearny, NJ,
Employer
__________________________________________

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

Docket Nos. 19-1420 &
19-1422
Issued: August 12, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 10, 2019 appellant, filed a timely appeal from January 11 and April 16, 2019 merit
decisions and a February 27, 2019 nonmerit 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 to consider the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish more than
11 percent permanent impairment of her right upper extremity, for which she previously received
a schedule award; (2) whether OWCP properly denied appellant’s February5, 2019 request for
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 16, 2019 OWCP decision and on appeal, appellant submitted 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.

reconsideration of the merits of her schedule award claim pursuant to 5 U.S.C. § 8128(a); and
(3) whether OWCP abused its discretion in approving a fee in the amount of $2,500.00 for 16.7
hours of services rendered by her former counsel from March 9, 2007 through November 20, 2009.
FACTUAL HISTORY
This case had previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On or before July 6, 20074 appellant, then a 37-year-old temporary employee, filed an
occupational disease claim (Form CA-2) alleging that, due to factors of her federal employment,
including repetitive lifting and upper extremity motions handling mail, caused a cervical spine
condition. She stopped work at the employing establishment on January 2, 2006 and did not return.
On March 9, 2007 appellant authorized James D. Muirhead, Esq. to represent her in all
matters arising out of her federal workers’ compensation claim.
On August 20, 2007 OWCP accepted the claim for cervical spondylosis with myelopathy.5
Appellant claimed wage-loss compensation commencing January 2, 2006.
On June 12, 2008 appellant filed a notice of recurrence (Form CA-2a) claiming disability
commencing January 15, 2008, asserting that she had temporarily aggravated the accepted
condition when she reached for an item on a high shelf while performing private sector job duties.
In support of the recurrence claim, counsel submitted a November 6, 2009 letter and medical
evidence in support of the renewed disability.
By decision dated February 3, 2010, OWCP denied appellant’s claim for wage-loss
compensation commencing January 2, 2006, denied a recurrence of disability commencing
January 15, 2008, and found that the January 15, 2008 incident constituted an intervening injury,
breaking the legal chain of causation from the accepted condition.
Appellant, through counsel, requested reconsideration on March 1, 2010. OWCP denied
reconsideration by decision dated April 22, 2010.
Appellant, through counsel, appealed the February 3 and April 22, 2010 decisions to Board.

3

Docket No. 10-1780 (issued May 11, 2011).

4

The date of appellant’s signature on the Form CA-2 is illegible. Appellant’s supervisor signed the reverse side of
the form on July 6, 2007.
5
On October 26, 2007 appellant filed a claim for a schedule award (Form CA-7). By decision dated January 29,
2008, OWCP denied his schedule award claim as she had not submitted medical evidence indicating that the accepted
condition had attained maximum medical improvement (MMI).

2

By decision issued May 11, 2011,6 the Board set aside OWCP’s February 3, 2010 with
regard to whether there had been an intervening cause of disability, but otherwise affirmed the
February 3, 2010 decision. The Board also affirmed OWCP’s April 22, 2010 nonmerit decision.
On July 11, 2014 appellant filed a claim for a schedule award (Form CA-7). In support of
her request, counsel submitted a March 19, 2014 impairment rating by Dr. Nicholas Diamond, an
osteopath Board-certified in physical medicine and rehabilitation.7 Appellant completed a Pain
Disability Questionnaire (PDQ) questionnaire, scored at 107. Dr. Diamond performed a physical
examination and referenced the sixth edition of the A.M.A., Guides and The Guides Newsletter,
Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The
Guides Newsletter) as the method for determining impairment. He indicated that MMI had been
reached as of March 19, 2014. Referring to Table 1 of The Guides Newsletter, Dr. Diamond found
a class of diagnosis (CDX) of 1 for moderate sensory deficit in the right C6 nerve root, with a
default value of three percent. He noted a grade modifier for functional history (GMFH) of 3 for
the PDQ score of 107, and a grade modifier for clinical studies (GMCS) of 3 for the March 20,
2006 magnetic resonance imaging result.8 Applying the net adjustment formula of (GMFH - CDX)
+ (GMCS - CDX), or (3-1) + (3-1), resulted in a net adjustment of 4, raising the default 3 percent
CDX value upward to 5 percent. Regarding the right C7 and C8 nerve roots, Dr. Diamond found
a CDX of two percent for moderate sensory deficit. He applied the identical grade modifiers as
for the C6 nerve root, resulting in a net adjustment of 4, adjusting the default two percent
impairment upward to three percent. Dr. Diamond combined the 5, 3, and 3 percent impairments
to find 11 percent permanent impairment of the right upper extremity.
OWCP routed Dr. Diamond’s March 19, 2014 report, a statement of accepted facts
(SOAF), and the case file to Dr. Henry J. Magliato, a Board-certified orthopedic surgeon serving
as a district medical adviser (DMA), for review as to the appropriate percentage of permanent
impairment.
In an August 12, 2014 report, Dr. Magliato concurred with Dr. Diamond’s impairment
rating and method of calculation. He agreed that appellant had attained MMI as of
March 19, 2014.
By decision dated January 11, 2019, OWCP granted appellant a schedule award for 11
percent permanent impairment of the right upper extremity, or 34.32 weeks of compensation which
ran from March 19 to November 14, 2014.
In a January 26, 2019 letter, appellant contended that then-counsel had not been helpful to
her and failed to keep her apprised of developments in her schedule award claim.
On February 4, 2019 OWCP received then-counsel’s fee application in the discounted
amount of $2,500.00 for 16.7 hours of services rendered from March 9, 2007 through
November 20, 2009. Counsel advised appellant on January 20, 2019 that he had not billed for
6

Supra note 3.

7

The record reflects that counsel provided information regarding appellant’s pay rate and filed ten letters pertaining
to the status of the schedule award claim prior to its issuance.
8

No grade modifier for physical examination (GMPE) was noted.

3

services rendered from 2010 to 2019, as the total amount charged would have greatly exceeded
$2,500.00 and her schedule award was only $10,810.80. An itemized statement listing the services
and time spent on each date was provided.
On February 5, 2019 appellant requested reconsideration of the January 11, 2019 schedule
award decision contending that the award was too low considering the severity of her ongoing
symptoms. In a February 6, 2019 letter, he contended that she had developed arthritis in her right
upper extremity and remained under medical care.
In a February 11, 2019 letter, OWCP forwarded to appellant a copy of the fee application.
It afforded her 30 days to comment on the fee application and to denote whether the fee charged
was reasonable and appropriate.
In response, appellant submitted letters dated February 6 and March 1, 2019, contending
that her member of Congress had assisted her in obtaining her schedule award as her former
counsel had not been helpful.
By decision dated February 27, 2019, OWCP denied appellant’s request for reconsideration
of the January 11, 2019 schedule award as she had not clearly identified the reasons for her request
or provided relevant and pertinent new evidence.
By decision dated March 11, 2019, OWCP approved her former counsel’s fee petition in
the amount of $2,500.00 for services rendered from March 9, 2007 through 2019.
On March 27, 2019 appellant requested reconsideration of OWCP’s March 11, 2019
decision. She provided a March 21, 2019 statement noting that her former counsel’s billing
statement had included charges for reviewing correspondence she had sent to him regarding her
claim and for telephone conversations with her. Appellant reiterated that she had sought help from
her member of Congress in obtaining her schedule award.
By decision dated April 16, 2019, OWCP denied appellant’s request for reconsideration of
the merits the March 11, 2019 fee decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,9 and its implementing federal regulations,10 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage loss of a member shall be determined.
The method used in making such a determination is a matter which rests in the discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified

9

Supra note 2.

10

20 C.F.R. § 10.404.

4

edition of the A.M.A., Guides, published in 2009.11 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.12
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury.13 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence which
shows that the impairment has reached a permanent and fixed state and indicates the date on which
this occurred, describes the impairment in sufficient detail so that it can be visualized on review,
and computes the percentage of impairment in accordance with the A.M.A., Guides.14
Neither FECA nor its implementing regulations provide for a schedule award for
impairment to the back or to the body as a whole.15 Furthermore, the back is specifically excluded
from the definition of organ under FECA.16 The sixth edition of the A.M.A., Guides does not
provide a separate mechanism for rating spinal nerve injuries as impairments of the extremities.
Recognizing that FECA allows ratings for extremities and precludes ratings for the spine, The
Guides Newsletter offers an approach to rating spinal nerve impairments consistent with sixth
edition methodology. For peripheral nerve impairments to the upper or lower extremities resulting
from spinal injuries, OWCP’s procedures indicate that The Guides Newsletter is to be applied.17
The Board has recognized the adoption of this methodology for rating extremity impairment,
including the use of The Guides Newsletter, as proper in order to provide a uniform standard
applicable to each claimant for a schedule award for extremity impairment originating in the
spine.18

11

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
12

See K.J., Docket No. 19-1492 (issued February 26, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018);
Isidoro Rivera, 12 ECAB 348 (1961).
13

See T.H., Docket No. 19-1066 (issued January 29, 2020); D.F., Docket No. 18-1337 (issued February 11, 2019);
Tammy L. Meehan, 53 ECAB 229 (2001).
14

Supra note 7; see also B.J., Docket No. 19-0960 (issued October 7, 2019).

15
K.Y., Docket No. 18-0730 (issued August 21, 2019); L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59
ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).
16

See 5 U.S.C. § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziani, 48
ECAB 572 (1997).
17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.
18
D.D., Docket No. 19-1676 (issued July 29, 2020); E.D., Docket No. 13-2024 (issued April 24, 2014); D.S.,
Docket No. 13-2011 (issued February 18, 2014).

5

The claimant has the burden of proof to establish that the condition for which a schedule
award is sought, is causally related to his or her federal employment.19
The standards for evaluation of permanent impairment of an extremity under the A.M.A.,
Guides are based on all factors that prevent a limb from functioning normally, such as pain, sensory
deficit, and loss of strength.20 Also, it is axiomatic that in determining entitlement to a schedule
award, preexisting impairment to the scheduled member is to be included.21
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish more than 11
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award.
Appellant submitted a March 19, 2014 report from Dr. Diamond to support her schedule
award claim. Dr. Diamond opined that appellant had sustained 11 percent permanent impairment
of the right upper extremity due to moderate sensory deficit of the right C4, C5, and C6 nerve
roots.
OWCP properly referred the evidence of record to a DMA, Dr. Magliato. In his August 12,
2014 report, the DMA concurred with Dr. Diamond’s impairment rating and application of the
A.M.A., Guides and The Guides Newsletter.
The Board finds that the DMA applied the appropriate tables and grading schemes of The
Guides Newsletter to Dr. Diamond’s clinical findings. The DMA concluded that appellant had 11
percent permanent impairment of the right upper extremity due to moderate sensory deficits of the
right C4, C5, and C6 nerve roots. His calculations were mathematically accurate and in accord
with the impairment findings of Dr. Diamond. There is no medical evidence of record utilizing
the appropriate tables of The Guides Newsletter demonstrating a greater percentage of permanent
impairment. Therefore, OWCP properly found 11 percent permanent impairment of appellant’s
right upper extremity.
There is no probative medical evidence of record, in conformance with the sixth edition of
the A.M.A., Guides, establishing that appellant has greater permanent impairment of her right
upper extremity than that previously awarded. Accordingly, appellant has not established that she
is entitled to additional schedule award compensation.

19

G.S., supra note 16; Veronica Williams, 56 ECAB 367 (2005).

20

C.H., 17-1065 (issued December 14, 2017); E.B., Docket No. 10-0670 (issued October 5, 2010); Robert V.
Disalvatore, 54 ECAB 351 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).
21
C.H., id.; C.K., Docket No. 16-1294 (issued January 13, 2017); P.W., Docket No. 16-0684 (issued October 3,
2016); J.C., Docket No. 15-1780 (issued March 17, 2016); Peter C. Belkind, 56 ECAB 580 (2005).

6

On appeal appellant contends that the severity of her continuing condition entitles her to
an increased schedule award. As noted above, her lay opinion is insufficient to overcome the wellrationalized medical opinions of Dr. Diamond and the DMA on issue of permanent impairment.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.22
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.23
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.24 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.25 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.26
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

22

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
23

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
24

20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
25

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

26
Id. at § 10.608(b); D.L., Docket No. 18-0449 (issued October 23, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).

7

Appellant, on reconsideration, neither alleged nor demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Additionally, she did not advance any relevant legal
arguments not previously considered by OWCP. The Board thus finds that appellant is not entitled
to a review of the merits based on the first or second requirements under 20 C.F.R.
§ 10.606(b)(3).27
Appellant also failed to submit relevant and pertinent new evidence with the February 5,
2019 request for reconsideration. Her letters dated February 5 and 6, 2019 contended that the
severity of her ongoing condition warranted an additional schedule award. A lay opinion,
however, is not relevant medical evidence sufficient to warrant a higher rating of permanent
impairment. It is appellant’s burden to submit sufficient medical evidence to establish the extent
of permanent impairment.28 As her February 5 and 6, 2019 letters are irrelevant to the underlying
issue of permanent impairment, appellant is not entitled to a review of the merits based on the third
requirement under 20 C.F.R. § 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.29
LEGAL PRECEDENT -- ISSUE 3
It is not the function of the Board to determine the fee for services performed by a
representative of a claimant before OWCP. That function is within the discretion of OWCP based
on the criteria set forth in Title 20 of the Code of Federal Regulations and mandated by Board
decisions. The sole function of the Board on appeal is to determine whether the action of OWCP
constituted an abuse of discretion.30 Generally, an abuse of discretion is shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deductions from established facts.31
Section 10.703(a)(2) of the Code of Federal Regulations provides in pertinent part that a
representative must submit a fee application, which includes a statement of agreement or
disagreement with the amount charged, signed by the claimant.32

27

Id. at § 10.606(b)(3)(i) and (ii).

28

See Annette M. Dent, 44 ECAB 403 (1993).

29

D.L., supra note 26; A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued
April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet
at least one of the three requirements enumerated under 20 C.F.R. § 10.606(b), OWCP will deny the request without
reopening the case for a review on the merits).
30

See T.S., Docket No. 17-1706 (issued July 10, 2018); Alvin T. Groner, Jr., 47 ECAB 588 (1996); Edward Snider,
39 ECAB 1268 (1988).
31
See R.P., Docket No. 18-0681 (issued November 1, 2018); Claudio Vazquez, 52 ECAB 496 (2001); Daniel J.
Perea, 42 ECAB 214, 221 (1990).
32

20 C.F.R. § 10.703(a)(2).

8

When a fee application has been disputed, OWCP is required to provide the claimant with
a copy of the fee application and request the submission of further information in support of any
objection.33 After the claimant has been afforded a reasonable time to respond to the request,
OWCP will then proceed to review the fee application.
Pursuant to section 10.703(c), when a fee is in dispute, OWCP will determine whether the
amount of the fee is substantially in excess of the value of services received by looking at the
following factors: (i) usefulness of the representative’s services; (ii) the nature and complexity of
the claim; (iii) the actual time spent on development and presentation of the claim; and (iv)
customary local charges for similar services.34
ANALYSIS -- ISSUE 3
The Board finds that OWCP has not abused its discretion in approving the fee in the amount
of $2,500.00 for 16.7 hours of services rendered by appellant’s former counsel from March 9, 2007
through November 20, 2009.
OWCP approved the former counsel’s fee request of $2,500.00 for services rendered from
March 9, 2007 through November 20, 2009.
OWCP reviewed the four factors under 20 C.F.R. § 10.703(c) and noted that appellant
merely submitted unsubstantiated assertions that her former counsel had not been effective in his
representation. It also noted that she had not submitted evidence to support her contention that the
fees charged were unreasonable. OWCP indicated that her former counsel had voluntarily reduced
his fees, based upon the schedule award recovery, to ensure reasonableness. The Board notes that
appellant’s former counsel was involved in filing appellant’s recurrence and schedule award
claims and he submitted supportive medical evidence. Appellant also had regular communications
with her former counsel for which he was entitled to compensation. Having reviewed the evidence,
the Board does not find an abuse of discretion by OWCP.
The Board has frequently held that it will not interfere with or set aside a determination by
OWCP of a fee for legal services unless the determination is clearly in error.35 OWCP has the
discretion to approve attorney fees, and in this case, the Board finds no abuse of discretion.36
Therefore the March 11, 2019 decision approving the attorney fee of $2,500.00 is affirmed.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 11
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award. The Board further finds that OWCP properly denied her February 5, 2019 request
33

20 C.F.R. § 10.703(c).

34

Id.

35

R.P., Docket No. 18-0681 (issued November 1, 2018); William Arthur Burney, 29 ECAB 253 (1978).

36
C.H., Docket No. 17-0623 (issued June 27, 2017); W.H., Docket No. 16-1297 (issued May 9, 2017); L.H., Docket
No. 11-0900 (issued December 6, 2011); C.H., Docket No. 10-0987 (issued March 22, 2011); Eric B. Petersen, 57
ECAB 680 (2006); Sharon Edwards, 56 ECAB 749 (2005).

9

for reconsideration of the merits of her schedule award claim pursuant to 5 U.S.C. § 8128(a).
Finally, the Board further finds that OWCP has not abused its discretion in approving a fee in the
amount of $2,500.00 for 16.7 hours of services rendered by her former counsel from March 9,
2007 through November 20, 2009.
ORDER
IT IS HEREBY ORDERED THAT the April 16, February 27, and January 11, 2019
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 12, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-2003
Issued: April 16, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 26, 2017 appellant, through counsel, filed a timely appeal from a July 13,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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.

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
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective March 22, 2017 as she had no further disability or
need for medical treatment causally related to her September 4, 2015 employment injury; and
(2) whether appellant has established continuing employment-related disability after
March 22, 2017.
FACTUAL HISTORY
On September 9, 2015 appellant, then a 41-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that, on September 4, 2015, a patient kicked her left knee when she
intervened in an altercation at work. She stopped work on September 4, 2015. OWCP accepted
the claim for a left knee contusion and a left anterior cruciate ligament sprain. Appellant returned
to part-time, limited-duty employment on July 25, 2016.
A magnetic resonance imaging (MRI) scan dated October 5, 2015 revealed a partial tear of
the anterior cruciate ligament.4
In a report dated August 1, 2016, Dr. Marc L. Harwood, an attending physician Boardcertified in family practice, evaluated appellant for knee pain subsequent to an employment injury.
On examination he found no effusion, crepitus, instability, weakness, or tenderness on palpation.
Dr. Harwood diagnosed left knee pain and recommended against a diagnostic arthroscopy. He
found that appellant could continue performing modified employment.
On August 8, 2016 Dr. Harwood noted that appellant had undergone six months of physical
therapy and a steroid injection for an “essentially unremarkable MRI [scan] of the left knee.” He
advised that she did not have any “catching, locking, instability, or other mechanical symptoms.”
On examination he found no tenderness, effusion, or laxity and negative McMurray’s and
Lachman’s tests. Dr. Harwood diagnosed left knee pain. He noted that appellant had no
improvement after the steroid injection which he found revealed a lack of intraarticular pathology.
Dr. Harwood related, “At this point, I suggest that she return to full duty, but [she] is rather fearavoidant about going back to work and being put in the position where she would need to break
2

5 U.S.C. § 8101 et seq.

3

The record provided the Board includes evidence received after OWCP issued its July 13, 2017 decision. The
Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s 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).
4

OWCP referred appellant to Dr. Lawrence Barr, an osteopath, for a second opinion examination. On February 17,
2016 Dr. Barr discussed the history of the September 4, 2015 work injury and her continued complaints of left knee
pain and swelling. He found a positive grind test and parapatellar tenderness with no effusion or loss or strength.
Dr. Barr diagnosed a left knee contusion and chondromalacia patella without normal tracking. He recommended a
diagnostic arthroscopy of the left knee and found that appellant could work limited duty.

2

up an altercation on the psychiatric unit.” He recommended a functional capacity evaluation (FCE)
given appellant’s fear, noting that she had obtained maximum medical improvement (MMI).
An FCE performed on September 13, 2016 demonstrated that appellant could perform
work at a medium physical demand level.
A September 22, 2016 MRI scan of the left knee demonstrated a patellar tilt with mild
chondromalacia, a small popliteal cyst, and small effusion.
OWCP, by letter dated September 29, 2016, notified appellant of its proposed termination
of her wage-loss compensation and medical benefits. It advised that her attending physician,
Dr. Harwood, found on August 8, 2016 that she could resume her usual employment.
In a report dated October 10, 2016, Dr. Mark J. Reiner, an osteopath, evaluated appellant
for knee pain after an injury. He noted that she was currently working as a nurse, but continued to
experience soreness. Dr. Reiner reviewed the results of MRI scans of the left knee and her
complaints of left knee “swelling, clicking, popping, and intermittently giving way.” He diagnosed
internal derangement of the left knee with a possible occult meniscal tear. Dr. Reiner
recommended possible arthroscopic surgery.
On October 10, 2016 Dr. Harwood reviewed the September 22, 2016 MRI scan, which he
found showed mild chondromalacia, a small effusion, an intact anterior cruciate ligament, and no
injury to the meniscus. He noted that the FCE indicated that appellant could perform mediumlevel work. Dr. Harwood diagnosed left knee pain. He related:
“At this point, I have two MRI [scans] that are essentially unremarkable except for
mild chondromalacia. I have an FCE report that reveals that she is capable of
medium duty and pain out of proportion to any objective data that I have obtained
over the past year that I have seen her. At this point, we had an extensive
negotiation with regard to her work status. It is difficult to argue with an FCE that
reveals that restrictions are recommended and as such I have provided her
permanent work restrictions to include medium[-]duty work….”
Dr. Harwood also found that appellant could not perform repetitive bending or kneeling.
He recommended against arthroscopic surgery. In a form report dated October 10, 2016,
Dr. Harwood indicated that appellant could perform modified-duty work at a medium level with
no repetitive bending or kneeling.
Appellant returned to full-time limited-duty work in October 2016.
On October 19, 2016 Dr. Franklin Scarlett, who specializes in family medicine, discussed
appellant’s history of a work injury attempting to stop an altercation between patients. He
indicated that, at his last evaluation on October 3, 2016, she complained of continued left knee
pain and swelling such that she had difficulty performing daily activities. Dr. Scarlett noted that
a left knee MRI scan showed mild chondromalacia, a popliteal cyst, small effusions, a grade 1 to
2 intrameniscal signal, and mild thinning of the articular hyaline cartilage. He opined that the
findings on the MRI scan study were “directly correlated to [appellant’s] workplace injury….”
Dr. Scarlett disagreed with Dr. Harwood’s opinion that she could resume her usual employment.
3

He opined that appellant could perform medium work in accordance with the FCE results without
repetitive bending, squatting, or kneeling.
The employing establishment provided a position description for a staff nurse on
November 18, 2016. The physical requirements included heavy lifting up to 45 pounds and
carrying under 15 pounds, walking up to four hours per day, and standing for four hours per day.
OWCP, on December 8, 2016, referred appellant to Dr. Stanley Askin, a Board-certified
orthopedic surgeon, for a second opinion examination. In the statement of accepted facts, it noted
that, as a staff nurse, she provided full nursing care to patients with physical and behavior
problems.
In a December 20, 2016 progress report, Dr. Reiner found synovitis, tenderness, crepitus,
and clicking on examination of the left knee.5 He diagnosed internal derangement of the left knee
with a possible meniscal tear and again recommended possible arthroscopic surgery.
On December 22, 2016 Dr. Askin discussed appellant’s history of a September 9, 2015 left
knee injury at work. He advised that she also reported a history of two prior work injuries that
occurred during assaults by patients. Dr. Askin noted that appellant experienced left knee
discomfort with bending over a half hour, driving over 15 minutes, or after a day at work. He
found no significant findings on review of the September 22, 2016 MRI scan study. On
examination, Dr. Askin found no effusion, patellar subluxation, loss of sensation, or laxity of the
knee, but some tenderness at the anteromedial joint line. He opined that appellant had no objective
findings of the accepted employment injury and that the accepted conditions had resolved, noting
that “her left knee examines equivalently to her right knee, and in fact there are no clinical
imperfections evident.” Regarding her continued subjective complaints, Dr. Askin advised that
she might have “a phenomenon termed perseveration.” He related:
“I have no injury-related reason to preclude her return to the employment that was
described in her formal job description. Please note, however, that I would not
counsel a nonathletic lady of average build to be ‘mixing it up’ with aggressive or
violent male patients. Doing so would be beyond what is offered as the formal job
description, and I do not approve that sort of activity for [appellant] as she is likely
to have additional injuries going forward under similar circumstances.”
Dr. Askin recommended against surgery given that he had not identified any left knee issue
that would benefit from such intervention. Regarding medical treatment, he found that appellant
should maintain physical fitness and perhaps have training in restraining violent patients, noting
that this did not seem necessary for the position of staff nurse. In a December 22, 2016 work
capacity evaluation (OWCP-5c), Dr. Askin found that appellant could resume work without
restrictions, but indicated that she should not try to “restrain violent patients.”
On February 6, 2017 OWCP advised appellant of its proposed termination of her wageloss compensation and medical benefits as the weight of the evidence, as represented by the

5

Dr. Reiner provided a similar progress report on November 15, 2016.

4

opinion of Dr. Askin, established that she had no further employment-related condition or
disability.
In a note dated December 28, 2016, Dr. Carlos P. Borromeo, Jr., who specializes in family
medicine, advised that appellant was disabled from employment due to “anxiety related to [the]
work injury and setting.”
Appellant submitted an impairment evaluation dated January 24, 2017 from Dr. Nicholas
Diamond, an osteopath. On examination, Dr. Diamond found tenderness and crepitus with no
instability. He diagnosed a post-traumatic left knee contusion and sprain, patellar chondromalacia,
and an anterior cruciate ligament sprain and provided an impairment rating.
Appellant returned to her usual employment without restrictions on February 13, 2017.
In a report dated February 14, 2017, Dr. Reiner noted that Dr. Askin believed that appellant
required no further treatment and could resume her usual employment. He indicated that a left
knee MRI scan dated December 22, 2016 showed chondromalacia patella, effusion, and a small
cyst. On examination, Dr. Reiner found synovitis, crepitus, clicking, and popping of the left knee
with quadriceps weakness. He diagnosed left knee internal derangement with a possible occult
meniscal tear and chondromalacia patella. Dr. Reiner related, “[Appellant] does have an abnormal
MRI [scan] and has an abnormal evaluation. She does continue to be symptomatic at this time. I
disagree with Dr. Askin’s findings and recommendations.” He recommended a diagnostic
arthroscopy.
Appellant, on February 18, 2017, filed a notice of recurrence (Form CA-2a), claiming
disability commencing on February 15, 2017 causally related to her September 4, 2015
employment injury.6 She advised that she had continued problems with her knee and also was
receiving psychiatric treatment due to being attacked by a patient. Appellant related that she
returned to work in a locked psychiatric unit, but began experiencing panic attacks.
On February 22, 2017 Dr. Harry A. Doyle, a Board-certified psychiatrist, found that
appellant was totally disabled from work due to post-traumatic stress disorder (PTSD) related to
employment factors.
Counsel, by letter dated February 28, 2017, asserted that a conflict existed between
Dr. Askin and appellant’s attending physicians regarding her physical findings and work ability.
He noted that she experienced panic attacks after being returned to work in the locked psychiatric
floor due to “the severity of her PTSD arising from being injured by a patient in this claim, as well
as the several prior accepted claims where she was also injured by patients.” Counsel further
asserted that Dr. Askin found that appellant could not work with violent patients.

6

On February 24, 2017 appellant filed a claim for a schedule award (Form CA-7). OWCP, on May 11, 2017,
advised her that it would not take any further action regarding her schedule award claim as the evidence did not
demonstrate that she had reached MMI from her September 4, 2015 work injury. It noted that appellant had filed a
notice of recurrence claiming disability for the injury that had been converted into a new occupational disease claim.

5

By letter dated March 17, 2017, OWCP advised appellant that it was adjudicating her
notice of recurrence as an occupational disease claim as she described an injury due to work
exposure that occurred over the course of more than one work shift.
In a decision dated March 22, 2017, OWCP terminated appellant’s wage-loss
compensation and authorization for medical benefits due to her September 4, 2015 employment
injury effective that date. It found that the opinion of Dr. Askin constituted the weight of the
evidence and established that she had no further disability or residuals of her accepted employment
injury. OWCP advised that it was separately considering her occupational disease claim for a
psychological condition subsequent to resuming employment on February 13, 2017.7
Appellant, through counsel, on April 10, 2017 requested a review of the written record
before an OWCP hearing representative. He maintained that a conflict in medical opinion existed
regarding whether she had residuals of her left knee condition and further asserted that she had
sustained a consequential emotional condition. Counsel advised that the employing establishment
withdrew appellant’s limited-duty position after OWCP’s proposed termination of her
compensation and returned her to work with locked psychiatric patients. He noted that the
evidence supported that she sustained an emotional condition due at least in part to her
September 4, 2015 work injury.
In a February 23, 2017 psychiatric evaluation, received by OWCP on June 21, 2017,
Dr. Doyle reviewed the history of the September 4, 2015 work injury and the medical evidence of
record. He diagnosed PTSD. Dr. Doyle noted that appellant had a history of being assaulted at
work on August 1, 2009, March 18, 2011, and September 4, 2015. He opined that the
September 4, 2015 assault caused an aggravation of preexisting employment-related acute stress
disorder and adjustment disorder with depressed mood and precipitated PTSD. Dr. Doyle found
that appellant was disabled from employment.8
Counsel, on June 29, 2017, asserted that Dr. Askin’s report was inconsistent and
unrationalized. He further maintained that a conflict existed between Dr. Askin and appellant’s
physicians, Dr. Reiner, Dr. Diamond, and Dr. Scarlett. Counsel noted that the employing
establishment withdrew her limited-duty position when it received OWCP’s proposed termination
of her compensation. Appellant tried to resume her regular employment, but experienced panic
attacks and her physicians advised her not to work. Counsel contended that she sustained a
recurrence of disability due to the withdrawal of her modified employment. He also asserted that
Dr. Doyle’s report established that she has a disabling employment-related psychiatric condition
and that Dr. Askin found that she might have a somatoform disorder. Counsel advised that
Dr. Askin found it was not appropriate for appellant to contend with violent patients.

7
OWCP noted that appellant had not submitted probative medical evidence that she sustained a psychological
condition due to her February 17, 2016 work injury.
8

On June 28, 2017 Dr. Doyle again discussed the history of injury and medical evidence of record. He asserted
that due to the third assault on September 4, 2015, appellant sustained an aggravation of preexisting psychiatric
disorders and opined that the aggravation precipitated PTSD. Dr. Doyle opined that she was totally disabled from
employment.

6

By decision dated July 13, 2017, OWCP’s hearing representative affirmed the March 22,
2017 decision. He found that Dr. Askin’s opinion constituted the weight of the evidence and
established that appellant had no residuals of her accepted left knee contusion and sprain. The
hearing representative noted that OWCP was separately adjudicating whether she sustained an
emotional condition due to the August 1, 2009, March 18, 2011, and September 4, 2015
employment incidents. He thus found that considering her emotional condition claim would
duplicate the other claim. The hearing representative also found that OWCP was separately
considering appellant’s notice of recurrence of disability as a new claim.
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.9 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.10 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.11
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.12 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.13
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a left knee contusion and a sprain of the left
anterior cruciate ligament due to a September 4, 2015 work injury. She returned to part-time,
modified employment on July 25, 2016 and to full-time, modified employment in October 2016.
Appellant returned to work without restriction on February 13, 2017, but stopped work on
February 15, 2017 and filed a notice of recurrence of disability. By decision dated March 22,
2017, OWCP terminated her wage-loss compensation and medical benefits effective that date
based on the report of Dr. Askin, the second opinion physician.
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits as the opinion of Dr. Askin constitutes the weight of the evidence and establishes
that she had no further residuals of her work injury effective March 22, 2017.14

9

See S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).

10

See I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

11

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

12

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

13

See Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

14

See A.H., Docket No. 16-1828 (issued August 17, 2017).

7

On December 22, 2016 Dr. Askin discussed appellant’s history of the September 4, 2015
work injury and reviewed the medical evidence of record, including the results of diagnostic
testing. He found that the most recent MRI scan demonstrated no significant findings. Dr. Askin
found no effusion, patellar subluxation, laxity, or reduced sensation on examination, but noted that
appellant had some anteromedial joint line tenderness. He found that the accepted conditions had
resolved and that her continued subjective complaints might indicate perseveration. Dr. Askin
provided rationale for his opinion by explaining that there were no objective examination findings
of the accepted employment injury and that her left knee was the equivalent of her right knee with
no “clinical imperfections.” He found that appellant could resume her usual employment, but
recommended against her restraining violent patients in order to prevent future injury, noting that
such action was outside of her normal job description. Dr. Askin further found that she did not
need surgery for her left knee as she had no further left knee condition. He recommended physical
training if appellant was going to engage with aggressive patients, again noting that such action
did not seem required for a staff nurse position. Dr. Askin provided a thorough review of the
factual and medical background and accurately summarized the relevant medical evidence.
Moreover, he provided detailed findings on examination and reached conclusions regarding
appellant’s condition which comported with his findings.15 Consequently, Dr. Askin’s opinion is
entitled to the weight of the evidence and establishes that she had no further disability or need for
medical treatment due to her employment injury of a left knee contusion and strain of the anterior
cruciate ligament after March 22, 2017.16
The remaining evidence of record submitted prior to OWCP’s termination of appellant’s
compensation is insufficient to demonstrate that she had continuing disability or need for medical
treatment due to her September 4, 2015 work injury. On August 8, 2016 Dr. Harwood noted that
she had undergone extensive physical therapy and a steroid injection after an unremarkable left
knee MRI scan. He found no tenderness, effusion, laxity, instability, or locking on examination
and recommended appellant return to her usual employment. Dr. Harwood noted that she was
fearful of return to work and having to break up altercations with psychiatric patients, and referred
her for an FCE, which demonstrated that she could perform medium work. On October 10, 2016
he indicated that both of appellant’s left knee MRI scans were unremarkable demonstrating only
mild chondromalacia. Dr. Harwood found that she had pain out of proportion to objective
findings. He opined that appellant could perform medium work in accordance with the FCE.
Dr. Harwood, however, did not specifically attribute her work restrictions to the September 4,
2015 work injury or identify the diagnosed condition that necessitated the work restrictions.
Consequently, his opinion is of diminished probative value.
Dr. Reiner, on October 10, 2016, found clicking, swelling, and popping of the left knee.
He diagnosed internal derangement of the left knee and a possible occult meniscal tear. Dr. Reiner
did not, however, specifically address causation. Medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of diminished probative value on the issue of

15

See Pamela K. Guesford, 53 ECAB 726 (2002).

16

See S.W., Docket No. 17-0215 (issued September 19, 2017).

8

causal relationship.17 Additionally, Dr. Reiner did not address the relevant issue of whether
appellant was disabled from work due to her accepted injury.18
In a report dated October 19, 2016, Dr. Scarlett discussed appellant’s history of a work
injury breaking up an altercation between patients. He noted that she had continued complaints of
left knee pain and difficulty with activities, and disagreed with Dr. Harwood’s finding that she
could resume her usual employment. Dr. Scarlett attributed the findings on the MRI scan study
chondromalacia, a small cyst, and small effusions to the accepted work injury. OWCP, however,
only accepted appellant’s claim for a left knee contusion and left anterior cruciate ligament sprain.
Where a claimant alleges that a condition not accepted or approved was due to her employment
injury, she bears the burden of proof to establish that the condition is causally related to the
employment injury through the submission of rationalized medical evidence.19 Dr. Scarlett,
however, did not provide any rationale for his opinion that the work injury caused the findings on
the left knee MRI scan study. Medical conclusions unsupported by rationale are of little probative
value.20
Dr. Reiner, on December 20, 2016, provided left knee examination findings of synovitis,
tenderness, crepitus, and clicking. He diagnosed left knee internal derangement and a possible
tear and recommended arthroscopic surgery. In a report dated February 14, 2017, Dr. Reiner
diagnosed internal derangement of the left knee with a possible occult meniscal tear and
chondromalacia patella. On examination he found synovitis, crepitus, and clicking of the left knee
with quadriceps weakness. Dr. Reiner disagreed with Dr. Askin’s finding that appellant did not
require further treatment and could return to her usual employment. As discussed, however,
OWCP did not accept internal derangement of the left knee as work related, and Dr. Reiner has
not provided any rationale explaining how the condition resulted from the September 4, 2015
employment injury.21 Consequently, his opinion is of diminished probative value.
The Board finds that the weight of the evidence, as represented by Dr. Askin the second
opinion physician, establishes that appellant had no employment-related disability or need for
medical treatment, effective March 22, 2017, the date OWCP terminated her compensation.22
On appeal counsel asserts that a conflict exists between Dr. Askin and appellant’s attending
physicians. He further contends that Dr. Askin’s opinion is contradictory and not well reasoned.
As discussed, however, Dr. Askin provided rationale for his opinion that appellant had no further
disability or need for medical treatment due to her accepted work injury. Dr. Harwood and
Dr. Reiner did not sufficiently explain how she had continued work restrictions or need for
17

See S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

18

Carol A. Lyles, 57 ECAB 265 (2005) (whether a particular injury caused an employee disability from employment
is a medical issue which must be resolved by competent medical evidence).
19

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

20

Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

21

See E.C., Docket No. 15-1943 (issued May 5, 2016).

22

See A.H., Docket No. 16-1828 (issued August 17, 2017).

9

treatment for her left knee contusion and sprain. Dr. Diamond addressed only the extent of
appellant’s permanent impairment. Consequently, their opinions are insufficient to create a
conflict with the opinion of Dr. Askin.23
Regarding counsel’s argument that Dr. Askin found that appellant was unable to manage
violent patients, he indicated that in order to prevent future injury she should not engage in
altercations with patients, noting that this appeared outside her job description. A fear of future
injury, however, is not compensable under FECA.24
Counsel also maintains that Dr. Askin found a possible somatoform disorder, and that he
submitted medical evidence demonstrating that appellant had a psychiatric condition due in part
to the September 4, 2015 work injury. OWCP, however, is adjudicating the emotional aspect of
the claim under a separate OWCP file number.
Counsel additionally contends that the employing establishment withdrew appellant’s
limited-duty employment and she sustained a recurrence of disability. The evidence establishes
that she resumed her usual employment on February 13, 2017, but stopped work on February 15,
2017 and filed a notice of recurrence of disability. OWCP is adjudicating the notice of recurrence
of disability as an occupational disease claim under a separate file number.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates a claimant’s compensation benefits, he or she has the
burden of proof to establish that he or she has continuing disability after that date related to the
accepted injury.25 To establish causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background, supporting such causal
relationship.26 Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.27 A claimant must establish by the weight of
the reliable, probative, and substantial evidence that he or she had an employment-related disability
which continued after termination of compensation benefits.28

23

See S.P., Docket No. 16-0341 (issued November 7, 2016).

24

See M.S., Docket No. 17-0105 (issued December 7, 2017).

25

See T.M., Docket No. 17-0915 (issued August 29, 2017); Manuel Gill, 52 ECAB 282 (2001).

26

Id.

27

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

28

See J.A., Docket No. 15-0908 (issued August 6, 2015).

10

ANALYSIS -- ISSUE 2
Given the Board’s finding that OWCP properly relied upon the opinion of Dr. Askin in
terminating wage-loss compensation and medical benefits, the burden of proof shifted to appellant
to establish that she remained entitled to compensation after that date.29
Appellant submitted February 23 and June 28, 2017 reports from Dr. Doyle diagnosing a
psychiatric condition due in part to her September 4, 2015 work injury. Dr. Doyle also noted that
she had a history of two other assaults at work. OWCP, however, is separately adjudicating
appellant’s emotional condition arising from her history of assaults at work. Additionally, this
evidence is not relevant to the pertinent issue of whether she had any continuing employmentrelated disability or need for medical treatment after March 22, 2017. Appellant, therefore, has
not met her burden to proof to establish employment-related disability after March 22, 2017.
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 OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective March 22, 2017, as she had no further disability or need for medical
treatment causally related to her September 4, 2015 employment injury. The Board further finds
that she has not established continuing employment-related disability after March 22, 2017.

29

See Manuel Gill, supra note 25.

11

ORDER
IT IS HEREBY ORDERED THAT the July 13, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 16, 2018
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, GWYNN OAK POST
OFFICE, Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1643
Issued: March 30, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 15, 2020 appellant filed a timely appeal from an August 25, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a right upper
extremity condition causally related to the accepted May 2, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 25, 2020 decision, OWCP received additional evidence. 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.

FACTUAL HISTORY
On May 9, 2020 appellant, then a 62-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on May 2, 2020 she sustained an open dislocation of the right
elbow while in the performance of duty. She stopped work on that date and returned to full-duty
work on August 2, 2020.
Hospital records, dated May 2, 2020, indicate that appellant was diagnosed with open
posterior dislocation of the right elbow after being seen by a care team consisting of Dr. Sam V.
Sydney, an orthopedic surgeon, Dr. Hilary F. Schmitt, an emergency medicine specialist, and
Robert A. Loya, a physician assistant. Appellant was provided wound care, prescribed medication,
and scheduled for a follow-up appointment with orthopedics on May 13, 2020.
In a note dated May 13, 2020, Aaron Shakespeare, a physician assistant, recommended that
appellant remain off work for three months. In a duty status report (Form CA-17) of even date, he
diagnosed a right elbow fracture and dislocation due to being ejected from a truck on May 2, 2020.
In a July 9, 2020 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary and provided a questionnaire for her completion. OWCP afforded appellant
30 days to respond.
In a July 31, 2020 response to OWCP’s development questionnaire, appellant indicated
that she was delivering mail to a mounted mailbox when the end of her sleeve became caught in
the mailbox. She related that she did not realize she was stuck until she was pulling away from
the box, and then she unbuckled her seatbelt and fell to the ground.
In a June 30, 2020 attending physician’s report (Form CA-20), Dr. Sydney noted a date of
injury of May 2, 2020 and a diagnosis of recurrent dislocation of the right elbow and a displaced
fracture of the right humerus. He indicated that appellant was hospitalized for this condition May 2
through 3, 2020 and, during that time, underwent a closed reduction of the right elbow. Dr. Sydney
checked a box marked “No” indicating that her condition was not caused or aggravated by an
employment activity.
By decision dated August 25, 2020, OWCP accepted that the May 2, 2020 employment
incident occurred as alleged. However, it denied the claim, finding that the medical evidence of
record was insufficient to establish that the diagnosed right elbow condition was causally related
to the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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

3

Supra note 1.

2

limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish causal relationship between a claimed sp ecific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 9
ANALYSIS
The Board finds that appellant has met her burden of proof to establish an open posterior
dislocation of the right elbow causally related to the accepted May 2, 2020 employment incident.
Hospital records, dated May 2, 2020, indicate that appellant was diagnosed with open
posterior dislocation of the right elbow after being seen by a care team consisting of Dr. Sydney,
Dr. Schmitt, and Mr. Loya. The records further indicate that she was provided wound care.
As the evidence of record establishes that appellant’s employment incident resulted in a
visible injury, the Board finds that she has met her burden of proof to establish an open dislocation

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

of the right elbow causally related to the accepted May 2, 2020 employment incident. 10 The case
will, therefore, be remanded for payment of medical expenses for appellant’s diagnosed open
dislocation of the right elbow, to be followed by a de novo decision regarding any attendant
disability.
CONCLUSION
The Board finds that appellant has established an open posterior dislocation of the right
elbow causally related to the accepted May 2, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 25, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 30, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c)
(January 2013). See also A.J., Docket No. 20-0484 (issued September 2, 2020); S.K., Docket No. 18-1411 (issued
July 22, 2020).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lancaster, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1179
Issued: January 11, 2012

Case Submitted on the Record

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

JURISDICTION
On April 15, 2011 appellant, through his representative, filed a timely appeal from a
January 6, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant sustained more than a two percent permanent impairment
of the left lower extremity for which he received a schedule award.
FACTUAL HISTORY
On July 19, 2010 appellant, then a 46-year-old city carrier, filed an occupational disease
claim alleging that he sustained a left medial meniscal tear and anterior cruciate ligament injury
as a result of prolonged standing, twisting and walking. He became aware of his condition on
1

5 U.S.C. § 8101 et seq.

March 1, 2005 and realized its relationship to his federal employment on June 21, 2010.
Magnetic resonance imaging scans of the left knee obtained on April 10, 2006 and May 15, 2009
by Drs. Martin P. Dommers, Jr. and Geoffrey T. Gilleland, Board-certified diagnostic
radiologists, showed medial meniscal defects.
Appellant underwent arthroscopic surgery on June 24, 2010, which was performed by
Dr. William L. Lehman Jr., a Board-certified orthopedic surgeon.2 In a June 24, 2010 operative
report, Dr. Lehman noted evidence of a previous medial meniscectomy at the posterior horn that
was “quite substantial.” He categorized the procedure as arthroscopic partial medial
meniscectomy and noted that he “trimmed back the posterior horn of the medial meniscus until
the residual rim was smooth and stable.” Dr. Lehman stated that he “ended up … with
essentially a total posterior horn medial meniscectomy in the posterior area.” In a June 28, 2010
postoperative report, he advised that extensive walking on the job may cause additional damage.
Appellant returned to work on July 13, 2010.
On July 29, 2010 OWCP accepted appellant’s claim for torn left medial meniscus.3
In a September 21, 2010 report, Dr. Lehman related that appellant was on modified fulltime duty since September 13, 2010, but continued to experience left anteromedial knee pain.
On examination, he observed crepitus that was consistent with chondromalacia, questionable
synovitis, satisfactory range of motion (ROM) and a nonantalgic gait. Applying Table 16-3
(Knee Regional Grid) on page 509 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment4 (hereinafter A.M.A., Guides), namely the rating scheme
for total medial meniscectomy, Dr. Lehman assigned an impairment class (CDX) of one with a
default grade of C, or a seven percent impairment rating. Based on his finding of
chondromalacia of the medial femoral condyle, he increased the rating to eight percent.
Appellant filed a claim for a schedule award on October 1, 2010.
In an October 6, 2010 report, Dr. Howard P. Hogshead, OWCP’s medical adviser and a
Board-certified orthopedic surgeon, disagreed with Dr. Lehman’s eight percent impairment
rating. He specified that the June 24, 2010 operative report labeled appellant’s procedure as
arthroscopic partial medial meniscectomy. Dr. Hogshead also pointed out that appellant’s
chondromalacia and previous left knee surgeries were not accepted by OWCP as compensable.
Applying Table 16-3 on page 509 of the A.M.A., Guides, in particular the rating scheme for
partial medial meniscectomy, he assigned a CDX of one with a default grade of C, or a two
percent impairment rating. In view of appellant’s complaints of pain as well as the satisfactory
ROM and gait demonstrated during Dr. Lehman’s evaluation, Dr. Hogshead noted grade
modifier values of two for Functional History (GMFH) and one for Physical Examination
(GMPE). He found the grade modifier for Clinical Studies (GMCS) to be inapplicable. Using
the net adjustment formula of (GMFH - CDX) + (GMPE - CDX), or (2 - 1) + (1 - 1),
2

The case record indicates that appellant previously underwent two operations on the left knee in June 2005 and
April 2006.
3

Appellant received disability compensation for the period June 24 to July 12, 2010.

4

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2008).

2

Dr. Hogshead calculated a net adjustment of zero. He concluded that appellant sustained a class
1, grade C impairment of the left lower extremity, which amounted to a two percent rating.5
Dr. Hogshead listed September 21, 2010 as the date of maximum medical improvement.
In an October 18, 2010 report, Dr. Lehman acknowledged that chondromalacia was not
an accepted condition, but maintained that appellant sustained a seven percent permanent
impairment of the left lower extremity:
“[Appellant] has had two previous arthroscopies dealing with a similar issue, in
June 2005 and April 2006. The anterior horn was essentially gone from the
previous procedure, and I performed basically a complete posterior horn medial
meniscectomy [on June 24, 2010], removing whatever remained. There thus is
now a total meniscectomy medially.”
In a November 15, 2010 report, Dr. Hogshead disagreed with Dr. Lehman’s revised
seven percent impairment rating. He asserted that the latter’s description of the June 24, 2010
surgery in his operative report, namely that the posterior horn of the medial meniscus was
trimmed until the residual rim was smooth and stable, showed that a portion of the meniscus was
left. Dr. Hogshead added that an open arthrotomy, as opposed to an arthroscopy, represented a
“true” total meniscectomy.
In a December 1, 2010 report, Dr. Lehman opined that appellant’s impairment rating
“should be equivalent to … what would normal[ly] qualify for a total meniscectomy.” He
elaborated:
“I believe that the assessment of the impairment relates to the function of the
meniscus. [Appellant] has undergone two prior medial meniscectomies and the
procedures I performed was the third, and I would estimate that easily 90 percent
of the meniscus is now absent from the knee. Although a rim remains, the
function in terms of shock absorption and stability of the knee is now completely
gone. The residual symptoms at the knee relates substantially to the increased
concentration of stress across the weight bearing surface given the complete lack
of cushioning. [Appellant] now has the same risk for premature development of
osteoarthritis, because of the meniscectomies, as would someone with a “true”
total meniscectomy.”
Dr. Hogshead remarked in a December 14, 2010 report that a total meniscectomy
involved the resection of the entire meniscus. He reiterated that Dr. Lehman’s account of the
June 24, 2010 arthroscopy in his operative report and subsequent letters did not meet this
standard.

5

The Board notes that the net adjustment was actually one, resulting in a class 1, grade D impairment of the left
lower extremity. Nevertheless, according to Table 16-3 of the A.M.A., Guides, grade D impairment remains at two
percent.

3

By decision dated January 6, 2011, OWCP granted a schedule award for two percent
permanent impairment of the left lower extremity for the period September 21 to
October 31, 2010.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss of or loss of use of scheduled members or functions of the body.6 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7
The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For lower extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and
GMCS. The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
Evaluators are directed to provide reasons for their impairment rating choices, including the
choices of diagnoses from regional grids and calculations of modifier scores.8
ANALYSIS
The Board finds that the case is not in posture for decision due to a conflict in medical
opinion necessitating a referral to an impartial medical specialist.9
Dr. Lehman initially identified appellant’s June 24, 2010 procedure as arthroscopic
partial medial meniscectomy of the left knee. However, he detailed in his contemporaneous
operative report that he essentially performed total posterior horn medial meniscectomy as he
trimmed the posterior horn until only a residual rim remained. On October 18, 2010 Dr. Lehman
advised that appellant had two previous arthroscopies with the anterior horn essentially gone
from those previous procedures while he performed basically a complete posterior horn medial
meniscectomy June 24, 2010, removing whatever remained. He opined that there “is now a total
meniscectomy medially.” Dr. Lehman further explained in a December 1, 2010 report that the
knee no longer possessed stability and shock absorption following multiple medial
meniscectomies since June 2005 and that appellant was as susceptible to developing premature
osteoarthritis as an individual who underwent a “true” total meniscectomy. Based on these
6

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

7

K.H., (Docket No. 09-341, issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., (Docket No. 09-2231, issued May 14, 2010).
8

R.V., (Docket No. 10-1827, issued April 1, 2011).

9

See Paul J. Navarette, (Docket No. 05-895, issued July 11, 2005).

4

observations, he used the A.M.A., Guides’ rating scheme for total medial meniscectomy and
assigned a seven percent impairment rating.
On the other hand, Dr. Hogshead opined that appellant underwent arthroscopic partial
medial meniscectomy of the left knee. He noted in various reports from October 6 to
December 14, 2010 that Dr. Lehman expressly labeled the June 24, 2010 operation as
arthroscopic partial medial meniscectomy and did not otherwise indicate that a complete excision
of the medial meniscus took place. Dr. Hogshead consequently applied the A.M.A., Guides’
rating scheme for partial medial meniscectomy and assigned a two percent impairment rating,
which was thereafter adopted by OWCP in its January 6, 2011 decision.
The Board finds that a conflict in medical opinion exists between Drs. Lehman and
Hogshead as to the extent of permanent impairment of appellant’s left lower extremity as they
could not agree on whether partial or total medial meniscectomy was performed.10 If there is a
conflict in medical opinion between the employee’s physician and the physician making the
examination for the United States, OWCP shall appoint a third physician, known as a referee
physician or impartial medical specialist, to make what is called a referee examination.11 To
resolve the present matter, OWCP shall remand the case, refer appellant for a referee
examination, together with the medical record and a statement of accepted facts, to an
appropriate Board-certified specialist and obtain a rationalized medical opinion regarding
whether for impairment rating purposes appellant has a total medial meniscectomy of the left
knee and to rate the extent of permanent impairment of the left lower extremity. After
conducting such further development as it may find necessary, OWCP shall render an
appropriate decision.
On appeal, appellant’s representative asserts that Dr. Lehman’s rating should be used to
establish appellant’s permanent impairment. As explained, the Board finds that the case is not in
posture for decision due to a conflict in the medical evidence and must be remanded to an
appropriate specialist to resolve the medical conflict.
CONCLUSION
The Board finds that the case is not in posture for decision.

10

See id.

11

See 5 U.S.C. § 8123(a); 20 C.F.R. § 10.321. See also R.A., (Docket No. 09-552, issued November 13, 2009).

5

ORDER
IT IS HEREBY ORDERED THAT the January 6, 2011 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: January 11, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6