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

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Docket No. 09-125
Issued: June 11, 2009

Appearances:
John E. Goodwin, Esq., for the appellant
No appearance, for the Director

Oral Argument April 22, 2009

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

JURISDICTION
On October 17, 2008 appellant filed a timely appeal from a September 22, 2008 merit
decision of the Office of Workers’ Compensation Programs which affirmed a March 26, 2008
decision denying appellant’s claim for a recurrence of disability. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability commencing October 1, 2002 causally related to her accepted
employment condition.
FACTUAL HISTORY
On May 30, 2000 appellant then a 43-year-old rural letter carrier, filed an occupational
disease claim alleging that on May 2, 2000 she developed low back pain radiating into her leg
caused by repetitive lifting and carrying at work. She stopped work on May 2, 2000.

Appellant’s claim was accepted for temporary aggravation of preexisting degenerative disc
disease at L3-4, L4-5 and L5-S1 and later expanded to include lumbar subluxation.1
Appellant came under the treatment of Dr. Leslie Romer, a chiropractor, from May 8 to
December 15, 2000, for an acute lower back contusion and subluxation caused by her work
duties. She was also treated by Dr. Michael Crim, a Board-certified family practitioner, from
May 9 to September 29, 2000, who diagnosed asymptomatic disc disease at L5-S1 secondary to
a work injury. A magnetic resonance imaging (MRI) scan of the lumbar spine dated May 16,
2000 revealed a lateral disc bulge at L3-4, at L5-S1, bilateral disc herniation with moderate
impingement on both L5 roots and moderate disc space narrowing at L5-S1 with retrolisthesis of
L5 on S1. On June 14, 2000 appellant was treated by Dr. John Hsiang, a Board-certified
neurosurgeon, who diagnosed degenerative changes at L5-S1 and recommended epidural
injections.
Appellant also sought treatment from Dr. Hsiang who treated her for persistent low back
pain radiating into her leg and recommended surgical intervention. In an operative report dated
October 1, 2002, Dr. Hsiang performed a bilateral hemilamintomy of L5-S1, discectomy
decompression of bilateral L5 and S1 nerve root, posterior lumbar interbody fusion of L5-S1 and
posterior lateral arthrodesis of L5-S1. He diagnosed degenerative disc disease at L5-S1 with
stenosis at L5-S1.2
On November 14, 2003 appellant filed a CA-2a, notice of recurrence of disability,
alleging that on October 1, 2002 she underwent back surgery for her work-related injury and was
totally disabled. In a July 21, 2004 statement, she noted that she underwent surgery on
October 1, 2002 because her physician indicated her condition was worsening due to the
residuals of her work injury.
In a decision dated July 12, 2005, the Office denied appellant’s claim for a recurrence of
disability. On July 29, 2005 appellant requested an oral hearing. On May 24, 2006 an Office
hearing representative set aside the July 12, 2005 decision and remanded the case for the Office
to obtain an opinion from an Office medical adviser regarding whether the October 1, 2002
surgery and resulting disability were due to the accepted work condition.
On September 7, 2006 the Office referred appellant’s case record to the Office medical
adviser for an opinion as to whether the surgery performed on October 1, 2002 was necessitated
by the lumbar subluxation. In a report dated October 3, 2006, the medical adviser opined that the
lumbar surgery of October 1, 2002 was in part necessitated by the L5-S1 lumbar subluxation.
In an Office memorandum dated October 30, 2006, the claims examiner noted that the
medical adviser’s October 3, 2006 report provided no rationale to support her conclusion that the
lumbar surgery of October 1, 2002 was in part necessitated by accepted lumbar subluxation. The
1

On October 31, 2001 the Office terminated appellant’s wage-loss compensation based on the opinion of an
Office referral physician. In a decision dated July 16, 2002, an Office hearing representative affirmed the
October 31, 2001 decision.
2

The Board notes that appellant did not request prior authorization for surgery.

2

claims examiner further noted that the medical adviser incorrectly indicated that a subluxation
and retrolisthesis with spondylosis were interchangeable medical terms. The claims examiner
indicated that for these reasons the medical advisers report would be set aside and appellant
referred to a specialist.
By correspondence dated January 30, 2007, the Office informed appellant’s attorney that
the matter would be referred to a second opinion evaluation. It requested that appellant provide
the lumbar x-ray films taken by her chiropractor and any additional films taken up to the time of
her surgery.
In a letter dated February 7, 2007, the Office informed appellant that her case needed to
be evaluated by an orthopedist and radiologist and requested that appellant obtain, within 30
days, x-ray films taken from May 2000 up to the time of her surgery. It further noted that, if it
did not receive the films or a statement of nonavailability within 30 days, appellant may be
considered to have obstructed an Office-directed examination. The Office noted that, when a
claimant refuses to attend or cooperate with a medical examination required by the Office, all
compensation benefits, including medical expenses, are suspended and not payable from the date
of suspension through the date of full compliance.3
On February 12, 2008 the Office referred appellant’s case for a second opinion to
Dr. K. David Bauer, a Board-certified orthopedist, to review the case record and determine
whether appellant had a lumbar subluxation prior to October 1, 2002 and whether the surgery
performed on October 1, 2002 was medically necessitated by the lumbar subluxation. It
provided Dr. Bauer with appellant’s medical records, a statement of accepted facts and list of
questions to be answered. The record does not contain a referral letter sent by the Office to
appellant.
In a report dated February 16, 2008, Dr. Bauer opined that the MRI scan demonstrated
that appellant had degenerative disc disease, a disease of life, with no evidence or objective
studies of medical subluxation. He noted that the chiropractic subluxation was no longer present
on October 1, 2002 and there was no evidence that the lifting injury of May 2000 had any lasting
effect in October 2002.
In a decision dated March 26, 2008, the Office denied appellant’s claim for a recurrence
of disability.
On April 5, 2008 appellant requested an oral hearing which was held on August 5, 2008.
She submitted a September 2, 2008 statement, noting that the Office medical adviser agreed that
the October 1, 2002 surgery was warranted and causally related to her work injury. Appellant
asserted that the Office dismissed the findings of the medical adviser and engaged in doctor
shopping by referring appellant’s record to a second opinion physician for a file review and not a
3

On March 23, 2007 the Office proposed to suspend compensation benefits on the grounds that appellant
obstructed an examination by not producing lumbar films or providing written proof that they were no longer
available as directed by the Office. On April 19, 2007 finalized the proposal. In a January 3, 2008 decision, the
hearing representative set aside the April 19, 2007 decision. The hearing representative instructed the Office to
issue a de novo decision regarding whether appellant sustained a recurrence of disability on October 1, 2002
causally related to her work injury and whether her surgery should be retroactively authorized.

3

physical examination. She advised that she was not notified in advance of the referral of her
case to a second opinion physician and she was not permitted to have a physician present to
participate in the examination as allowed by 5 U.S.C. § 8123. Appellant contended that, because
the Office failed to follow proper procedure in referring her to a second opinion physician, it was
improper to rely on the opinion of Dr. Bauer in denying appellant’s claim for a recurrence of
disability.
In a decision dated September 22, 2008, the hearing representative affirmed the Office
decision dated March 26, 2008.
LEGAL PRECEDENT
Section 8123(a) of the Federal Employees’ Compensation Act4 states, in pertinent part:
“An employee shall submit to examination by a medical officer of the United
States, or by a physician designated or approved by the Secretary of Labor, after
the injury and as frequently and at the times and places as may be reasonably
required. The employee may have a physician designated and paid by him
present to participate in the examination.”
Office procedures provide:
“Second Opinion Examinations. The attending physician is the primary source of
medical evidence in most cases, but sometimes his or her report does not meet the
needs of the Office. When this happens, the Office may request a second opinion
examination. Under 5 U.S.C. [§] 8123 the [Office] has authority to order
examination of an injured employee as frequently and at the times and places as
may be reasonably required.”
***
“d. Information Sent to Claimant. After contacting the physician, the
MMA [medical management assistant] will notify the claimant in writing
of the following:
(1) The name and address of the physician to whom he or she is
being referred as well as the date and time of the appointment.
(2) Any request to forward x-rays, electrocardiograms, etc., to the
specialist.
(3) The claimant’s right, under section 8123 of the [Act], to have a
physician paid by him or her present during a second opinion
examination,

4

5 U.S.C. § 8123(a).

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(4) A warning that benefits may be suspended under 5 U.S.C.
[§] 8123(d) for failure to report for examination.
(5) Copies of Forms SF-1012, SF-1012A, and instructional Form
CA-77 to claim travel expenses.”5 (Emphasis in the original.)
ANALYSIS
The Office accepted appellant’s claim for temporary aggravation of preexisting
degenerative disc disease at L3-4, L4-5 and L5-S1 and lumbar subluxation. It reviewed the
medical evidence and determined that a second opinion was necessary for a determination as to
whether appellant still had a lumbar subluxation on October 1, 2002 and whether the surgery
performed on October 1, 2002 was medically necessitated by the lumbar subluxation.
Consequently, the Office referred appellant to Dr. K. David Bauer, a Board-certified orthopedist.
It provided Dr. Bauer with appellant’s medical records, a statement of accepted facts and
questions. The record does not contain a referral letter sent by the Office to appellant.
In this case, the Board finds that the Office failed to follow its procedures with regard to
providing information to appellant in advance of referring appellant to a second opinion
physician. The Office’s procedure manual specifically provides:
“d. Information Sent to Claimant. After contacting the physician, the MMA will
notify the claimant in writing of the following:
(1) The name and address of the physician to whom he or she is being
referred as well as the date and time of the appointment.
(2) Any request to forward x-rays, electrocardiograms, etc., to the
specialist.
(3) The claimant’s right, under section 8123 of the [Act], to have a
physician paid by him or her present during a second opinion examination,
(4) A warning that benefits may be suspended under 5 U.S.C. [§] 8123(d)
for failure to report for examination.
(5) Copies of Forms SF-1012, SF-1012A, and instructional Form CA-77
to claim travel expenses.”6 (Emphasis in the original.)
The record does not contain any correspondence referring appellant or her record to
Dr. Bauer, including his name and address or the date and time of the appointment.
Additionally, the record does not contain notification to appellant of her right, under section

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.3(d)(1)-(5)
(May 2003).
6

See id.

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8123 of the Act,7 to have a physician paid by her present during the second opinion examination.
While correspondence to appellant on January 30, 2007 indicated that the Office would be
scheduling the case for a second opinion evaluation and that appellant would be required to
provide x-ray films from May 2000 to October 2002, there was no correspondence in advance of
the evaluation notifying her of the specific time, place and the name of the physician performing
the second opinion evaluation. Similarly, in correspondence dated February 7, 2007, the Office
advised appellant that her case would be evaluated by a referral physician and noted the penalty
provisions pursuant to 5 U.S.C. § 8123 for failure to attend or cooperate with a medical
examination; however, there was no corresponding notification of appellant’s right under section
8123 to have a physician paid by her present during examination. The Board finds that the
Office’s referral of the record to Dr. Bauer for a second opinion failed to fully comply with
Chapter 3.500(d) of the Office’s procedures8 and Board precedent.9
The Board, therefore, finds that, as the Office did not follow its procedures, the referral of
appellant to Dr. Bauer was improper. The Office is therefore precluded from relying on the
opinion of Dr. Bauer. The case will be remanded to the Office for referral of appellant for
another second opinion examination with appropriate notification provided to appellant,
consistent with the Office’s procedures, which will afford her the opportunity to have her
physician participate in the examination.
CONCLUSION
The Board finds that the case is not in posture for decision.

7

5 U.S.C. § 8123(a).

8

Supra note 5.

9

See Donald J. Knight, 47 ECAB 706 (1996) (where the Board found that the Office failed to notify appellant’s
authorized representative of the referral to a second opinion physician effectively denied appellant’s statutory right
to have a physician designated and paid by him to be present and participate in the examination pursuant to 5 U.S.C.
§ 8123).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 22 and March 26, 2008 are set aside and the case
remanded to the Office for further action consistent with this decision of the Board.
Issued: June 11, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
LOGISTICS READINESS SQUAD,
HOLLOMAN AIR FORCE BASE, NM,
Employer
__________________________________________

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

Docket No. 15-365
Issued: April 8, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 8, 2014 appellant filed a timely appeal of an October 27, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a traumatic injury in the
performance of duty on June 18, 2014, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 10, 2014 appellant, then a 52-year-old heavy mobile equipment mechanic, filed a
traumatic injury claim alleging that on June 18, 2014 his left wrist began to hurt after rebuilding
a hydraulic cylinder weighing approximately 80 pounds. He indicated the injury as left wrist
pain on rotation.
In a July 29, 2014 report, Dr. Allan Rickman, a treating physician specializing in sports
medicine, diagnosed left wrist sprain and left hand/wrist tendinitis. He related that the injury
occurred while appellant was at work on June 18, 2014. Appellant related that he could not
“recall the exact injury,” but he was at work and believes he twisted his hand while at work. A
physical examination revealed tenderness and pain related to supination and primarily in the
triangular fibrocartilage complex (TFCC) region. No abnormality, dislocation, or acute fracture
was seen in a left wrist x-ray interpretation.
In an August 12, 2014 left wrist magnetic resonance imaging (MRI) scan, Dr. Richard S.
Nenoff, an examining Board-certified diagnostic radiologist, described a hypertension injury
occurring approximately eight weeks previously due to lifting a heavy object. Diagnoses
included: carpi ulnaris extensor tendon sub sheath stripping injury, minimal carpi ulnaris
extensor tendinopathy, no fractures, bipartite versus old ununited trapezoid fracture, and
triangular fibrocartilage degenerative change with probable perforation.
In an August 15, 2014 note, Dr. Rickman diagnosed wrist sprain, wrist sprain and TFCC
tear, and hand/wrist tendinitis. He recommended occupational therapy three times per week for
three weeks.
In a September 12, 2014 report, Dr. Rickman noted that appellant had a history of a small
TFCC perforation and extensor carpi ulnaris (ECU) strain. He stated that “[t]he onset was
sudden with an injury which occurred sudden onset on about June 18, 2014, almost [three]
months ago” and that it occurred at work. Appellant related “he does not recall the exact injury,”
but that he was at work and believes “he twisted the hand wrong.”
By letter dated September 22, 2014, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him that the evidence was insufficient to
establish that the incident occurred as alleged and that the medical evidence was insufficient to
establish a causal relationship between the diagnosed condition and alleged incident. Appellant
was advised as to the medical and factual evidence required to establish his claim and given 30
days to provide this information.
On September 23, 2014 OWCP received an August 15, 2014 report by Dr. Rickman who
provided physical findings and diagnosed left wrist sprain and left had/wrist tendinitis.
Dr. Rickman related that onset occurred on June 18, 2014 at work, but appellant could not recall
exactly how the injury occurred. Appellant related that he believes that the injury was due to his
twisting his hand wrong while working. A physical examination revealed tenderness of the right
wrist and hand with pain and tenderness related to supination and primarily the TFCC region.

2

By decision dated October 27, 2014, OWCP denied appellant’s claim on the grounds that
the evidence was insufficient to establish that the incident occurred as alleged since the record
contained no description of the work injury or how it caused or aggravated a medical condition.
In addition, it also informed him that the medical evidence of record was insufficient to establish
that the diagnosed left wrist sprain and TFCC tear were caused or aggravated by the alleged
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.5 To determine whether a federal employee has sustained a traumatic injury in
the performance of duty it must first be determined whether a fact of injury has been
established.6 First, the employee must submit sufficient evidence to establish that he actually
experienced the employment incident at the time, place, and in the manner alleged.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the

2

5 U.S.C. § 8101 et seq.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 3.
9

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).

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compensable employment factors.10 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.11
ANALYSIS
The Board finds that appellant has failed to establish that he sustained an injury in the
performance of duty on June 18, 2014, as alleged. Appellant claimed to have experienced left
wrist pain following rebuilding a hydraulic cylinder weighing approximately 80 pounds.
However, he did not file his claim until July 10, 2014 and did not seek medical care until
July 29, 2014. The medical reports submitted cast doubt on how the injury occurred as they note
that appellant could not recall how the injury occurred. OWCP asked him to provide a detailed
description as to how his injury occurred, including where he was and what he was doing at the
time. Appellant did not provide the requested factual information and there were no reported
witnesses.
Appellant bears the burden of establishing the essential elements of his claim, which
includes fact of injury. Other than noting that he had just finished rebuilding a hydraulic
cylinder when he felt left wrist pain, he did not provide specific details of a particular work
activity or incident that gave rise to his right forearm pain. An employee’s statement alleging
that an incident or exposure occurred at a given time and in a given manner is of great probative
value and will stand unless refuted by strong or persuasive evidence.12 In the absence of such a
statement, OWCP properly found that appellant failed to establish fact of injury. Moreover, the
Board notes that the July 29 and September 12, 2014 reports, Dr. Rickman related that appellant
could not recall how he reportedly injured his left wrist, while an August 12, 2014 MRI scan by
Dr. Nenoff related that the injury occurred eight weeks previously due to lifting a heavy object.
Under the circumstances, OWCP properly determined that appellant had not established that the
incident occurred as alleged.
In its September 22, 2014 development letter, OWCP informed appellant that the
information initially provided was insufficient to support his claim. Appellant was provided a
series of questions regarding the factual circumstances of the alleged incident and advised to
provide details which would clarify the nature of her claim. He provided no factual response,
however, to OWCP’s request for information.
As seen, appellant has not met his burden of proof to establish that he experienced the
employment incident at the time, place, and in the manner alleged or that it caused an injury.13

10

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12

C.S., Docket No. 08-1585 (issued March 3, 2009); Sedi L. Graham, 57 ECAB 494 (2006).

13

T.C., Docket No. 12-579 (issued July 2, 2012); Paul Foster, 56 ECAB 208 (2004).

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As he has not met his burden of proof to establish the fact of injury, it is not necessary to discuss
the probative value of the medical reports.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that he sustained an injury in the
performance of duty on June 18, 2014, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 27, 2014 is affirmed.
Issued: April 8, 2015
Washington, DC

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

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

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

14

Tracey P. Spillane, 54 ECAB 608 (2003).

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

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

Docket No. 14-880
Issued: June 24, 2014

Case Submitted on the Record

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

JURISDICTION
On March 7, 2014 appellant filed a timely appeal from a February 6, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained permanent impairment to a scheduled member or
function of the body entitling him to a schedule award.
FACTUAL HISTORY
On March 17, 2008 appellant, then a 66-year-old distribution clerk, filed an occupational
claim (Form CA-2) alleging injury to his right ring finger while sorting flats during his federal

1

5 U.S.C. § 8101 et seq.

employment. OWCP accepted the claim on April 22, 2008 for trigger finger of the right ring
finger. Appellant returned to work in a light-duty position.
In a report dated July 13, 2009, Dr. Neil Harness, a Board-certified orthopedic surgeon,
reported that appellant was having bilateral hand numbness, right worse than left, with right ring
and long finger triggering. He stated that appellant had a history of a carpal tunnel release four
or five years earlier and current diagnostic testing revealed bilateral carpal tunnel syndrome,
right greater than left. On August 19, 2009 appellant underwent surgery that included a right
carpal tunnel release, right ring and long finger trigger finger release and ring finger ganglion
cyst excision.
On February 25, 2013 appellant submitted a CA-7 claim form for a schedule award. By
letter dated March 18, 2013, OWCP advised appellant that the medical evidence was not
sufficient to establish permanent impairment due to the accepted condition. It requested that
appellant submit a detailed medical report with respect to any permanent impairment under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). In a letter dated March 25, 2013, appellant’s representative stated
that if OWCP needed additional medical evidence, it should arrange for a proper examination.
By letter dated July 18, 2013, OWCP advised appellant that the claim was accepted for
right carpal tunnel syndrome and right ganglion cyst.
In a decision dated February 6, 2014, OWCP determined that appellant was not entitled
to a schedule award. It found the medical evidence of record was insufficient to establish that he
sustained permanent impairment to the right upper extremity based on the accepted conditions.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.2 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants, OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.4
An employee seeking compensation for a permanent impairment under FECA has the
burden of establishing the essential elements of the claim, including that an employment injury
contributed to a permanent impairment of a scheduled member or function of the body.5 The
2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

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

4

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

5

See A.B., Docket No. 12-1392 (issued January 24, 2013).

2

medical evidence necessary to support a schedule award includes a physician’s detailed report
that provides a sufficient description of the impairment.6
ANALYSIS
OWCP accepted that appellant sustained right trigger finger of the right hand, right carpal
tunnel syndrome and a right ganglion cyst. There is no probative medical evidence, however,
addressing any permanent impairment to the right arm under the A.M.A., Guides. The medical
evidence necessary to support a schedule award is evidence that describes the impairment in
detail, shows the impairment has reached maximum medical improvement and provides an
opinion as to the percentage of impairment under the A.M.A., Guides.7 Appellant underwent
right arm and hand surgery on August 19, 2009, performed by Dr. Harness. There is no medical
report in the record describing any permanent impairment to the right hand or arm due to the
accepted conditions. OWCP asked appellant in a March 18, 2013 letter for a medical report
addressing permanent impairment. According to its procedures, if the claimant does not provide
an impairment evaluation when requested, and there is no indication of permanent impairment in
the medical record, it may proceed with a formal denial of the award.8
On appeal, appellant states that he was confused because OWCP had earlier indicated
that he was entitled to a schedule award. The January 24 and February 6, 2013 letters were
incorrect in advising appellant that he was entitled to a schedule award based on an August 19,
2009 surgery report, but the March 18, 2013 letter clarified that he needed to submit probative
medical evidence with respect to establishing permanent impairment.
CONCLUSION
The Board finds that appellant has not established a permanent impairment to a scheduled
member or function of the body entitling him to a schedule award under FECA.

6

See James E. Jenkins, 39 ECAB 860 (1988); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.6(b) (February 2013).
7

See A.W., Docket No. 13-621 (issued July 22, 2013); Federal (FECA) Procedure Manual, id. at Chapter
2.808.5(b) (February 2013).
8

Federal (FECA) Procedure Manual, id. at Chapter 2.808.6(c) (February 2013).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 6, 2014 is affirmed.
Issued: June 24, 2014
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.U., Appellant
and
U.S. POSTAL SERVICE, ECKERT POST
OFFICE, Denver, CO, Employer
__________________________________________

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

Docket No. 19-0755
Issued: November 25, 2019

Case Submitted on the Record

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

JURISDICTION
On February 22, 2019 appellant filed a timely appeal from a November 7, 2018 merit
decision and a February 7, 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 over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that her
degenerative osteoarthritis is causally related to the accepted factors of her federal employment;
and (2) whether OWCP properly denied appellant’s request for reconsideration of the merits of
her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 10, 2018 appellant, then a 61-year-old regular rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed degenerative osteoarthritis due to constant
repetitive motion, including twisting, turning, bending, lifting of her upper body, neck, arms, and
legs, and continuous grasping of fingers, hands, and wrists as required by the duties of her federal
employment.
On June 11, 2018 the employing establishment controverted the claim, contending that
appellant may have a preexisting condition.
In a June 1, 2018 narrative statement, appellant indicated that she had been diagnosed with
degenerative osteoarthritis due to implicated factors of her federal employment. She stated that
she performed repetitive job duties eight hours per day, five days per week. Appellant reported
that she subsequently had several surgeries on her back and knee after being diagnosed with
degenerative osteoarthritis.
In a development letter dated June 14, 2018, OWCP informed appellant that the factual
and medical evidence of record was insufficient to establish her claim. It advised her of the type
of evidence necessary to establish her claim and afforded her 30 days to submit the requested
evidence.
Appellant subsequently submitted a position description and an undated narrative
statement reiterating the factors of federal employment to which she attributed her condition.
In reports dated May 3 and 24, 2018, Dr. John Ryan Marlin, a Board-certified family
practitioner, diagnosed essential hypertension, digital mucous cyst, and degenerative joint disease
involving multiple joints. He reported that the significant osteoarthritis in appellant’s hands and
back were beginning to limit her activities and that he counseled her on activities and her ability
to continue at her job.
In a prescription note dated June 14, 2018, Dr. Marlin requested that appellant be excused
from work until June 25, 2018 due to injury. He released appellant to work on July 16, 2018.
By decision dated July 16, 2018, OWCP denied the claim, finding that the evidence
submitted was insufficient to establish that the claimed injury and/or medical condition arose
during the course of employment and within the scope of compensable work factors. Thus, it
found that appellant’s injury did not occur in the performance of duty, as alleged.
On August 7, 2018 appellant requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
Appellant further submitted reports dated June 19 and July 12, 2018 from Dr. Michael D.
Rooks, a Board-certified orthopedic hand surgeon. Dr. Rooks found that appellant had a left
thumb painful digital mass, which was mildly painful. He indicated that there was no specific
traumatic event in the etiology of this mass and it had been drained with recurrence. Dr. Rooks
stated that on June 19, 2018 appellant presented with a new problems of severe hand, wrist, and
forearm pain after a period of delivering 500 telephone books. He indicated that the pain was
2

severe and it was aggravated by any movement. Dr. Rooks related that the mucous cyst on the left
thumb was drained in order to facilitate management of the right arm injuries and x-ray findings
for arthritis in the right wrist were more indicative of tendinopathy, then arthritis.
By decision dated November 7, 2018, OWCP’s hearing representative affirmed the
July 16, 2018 decision, as modified. He found that appellant had established factors of her federal
employment but that there was no rationalized medical evidence to establish that appellant’s
degenerative arthritis was causally related to the accepted employment factors.2 OWCP’s hearing
representative reviewed the evidence of record and found that the accepted work exposure had
occurred in the performance of duty, but the medical evidence was insufficient to establish a causal
relationship between the accepted employment factors and appellant’s diagnosed degenerative
osteoarthritis condition. He noted that there was no discussion of specific work factors and how
they contributed to the diagnosed condition.
On January 7, 2019 appellant requested reconsideration. She argued that she was not
claiming that her job caused her disease, but that her disease had been aggravated by her job.
Appellant indicated that she had additional evidence, but no additional evidence was received.
By decision dated February 7, 2019, OWCP denied appellant’s request for reconsideration
of the merits of her claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty, as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.5

2

The hearing representative noted that appellant had four prior claims for traumatic injuries and occupational
disease. Appellant’s claim under File No. xxxxxx515, an occupational disease claim with a date of injury of March 1,
2015, claimed aggravation of degenerative osteoarthritis of various anatomical areas due to repetitive motions and
that claim had been denied on causal relationship grounds. The denial was affirmed by the Board in a decision dated
July 26, 2017. Appellant also had a claim, under File No. xxxxxx974, for a subsequent traumatic injury with a date
of injury of May 29, 2018, which was accepted for left thumb mucous cyst and right wrist strain. OWCP’s hearing
representative returned the case record for routine handling after administratively combining the present claim with
File No. xxxxxx515.
3

Id.

4

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
5

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

3

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that her
degenerative osteoarthritis condition is causally related to the accepted factors of her federal
employment.
In his June 19 and July 12, 2018 reports, Dr. Rooks noted that appellant presented with a
left thumb digital mass, but there was no specific tragic event related to its etiology. He further
indicated that appellant complained of new problems of severe pain in her hand, wrist, and forearm
that was aggravated by any movement. Dr. Rooks also noted that x-ray findings were more
indicative of tendinopathy than arthritis. However, he did not provide a firm diagnosis or render
an opinion on causal relationship. The Board has held that where a medical report does not provide
an opinion on the issue of causal relationship, the report is of no probative value and is insufficient
to establish the claim.10
Similarly, Dr. Marlin, in his May 3 and 24, 2018 medical notes, indicated that the
significant osteoarthritis in appellant’s hands and back were beginning to limit her activities and
that she may “look into getting disability through her work.” However, as he did not directly
attribute appellant’s symptoms to her federal employment or address causal relationship, Dr.
Marlin’s report is insufficient to meet appellant’s burden of proof.11

6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

10

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., No. 17-1549 (issued July 6, 2018).

11

See T.R., Docket No. 18-1272 (issued February 15, 2019).

4

As appellant has not submitted any rationalized medical evidence to support her claim that
she sustained an injury causally related to the accepted employment factors, the Board finds that
she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.12 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.13 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.14
A timely request for reconsideration, including all supporting documents, must set forth arguments
and contain evidence that either: (i) shows that OWCP erroneously applied or interpreted a
specific point of law; (ii) advances a relevant legal argument not previously considered by OWCP;
or (iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.15
When a timely request for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.16
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).
In support of her reconsideration request, appellant argued that she was not claiming that
her job had caused her osteoarthritic condition, but that it had been aggravated by her job.
However, this argument was previously considered by OWCP. The Board has held that the

12
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
13

20 C.F.R. § 10.607.

14

Id. at § 10.607(a). 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. Id. at Chapter 2.1602.4b.
15

Id. at § 10.606(b)(3).

16

Id. at § 10.608(a), (b).

5

submission of evidence or argument which repeats or duplicates evidence or argument already in
the case record does not constitute a basis for reopening a case.17
Appellant’s timely request for reconsideration did not show that OWCP erroneously
applied or interpreted a specific point of law, or advance a new and relevant legal argument not
previously considered by OWCP. The underlying issue on appeal was whether her degenerative
osteoarthritis condition was caused or aggravated by factors of her employment. This is a medical
issue which must be determined by rationalized medical evidence.18 Consequently, appellant was
not entitled to a review of the merits based on the first and second above-noted requirements under
20 C.F.R. § 10.606(b)(3).
Appellant further indicated on reconsideration that she had additional evidence; however,
OWCP did not receive any additional relevant or pertinent new evidence in support of her request
for reconsideration.19 Thus, she is not entitled to a review of the merits of her claim based on the
third above-noted requirement under section 10.606(b)(3).20
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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
degenerative osteoarthritis is causally related to the accepted factors of her federal employment.
The Board further finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

17

J.L., Docket No. 19-0586 (issued August 9, 2019) (where the Board found that the claimant had presented no
new arguments, but rather reiterated arguments previously addressed by OWCP in its prior decision). See also P.W.,
Docket No. 17-1911 (issued June 6, 2018) (where the claimant generally argued that OWCP’s decision was confusing
and provided his own understanding of the evidence required to establish his claim, but did not provide any support
for his allegation regarding the deficiencies of OWCP’s decision).
18

See J.B., Docket No. 18-1531 (issued April 11, 2019); E.D., Docket No. 18-0138 (issued May 14, 2018);
Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
19

T.R., Docket No. 19-0427 (issued July 15, 2019).

20

H.H., Docket No. 18-1660 (issued March 14, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the February 7, 2019 and November 7, 2018
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 25, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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Appearances:
James Wright, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1208
Issued: January 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 9, 2012 appellant, through his representative, filed a timely appeal of a
January 12, 2012 decision of the Office of Workers’ Compensation Programs (OWCP), which
denied his request for disability compensation.
Pursuant to the Federal Employees’
1
Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he was disabled
for the period beginning May 28, 2008 as a result of his employment-related conditions.
FACTUAL HISTORY
On April 20, 2007 appellant, then a 59-year-old mail processing clerk, filed a traumatic
injury claim alleging a psychological injury on April 18, 2007 when a postmaster assaulted him.
1

5 U.S.C. § 8101 et seq.

The employing establishment controverted the claim.
Appellant’s treating physician,
Dr. George D. Karalis, a psychiatrist, opined that appellant was totally disabled.
By letter dated March 11, 2008, OWCP referred appellant for a second opinion to
Dr. Alberto Lopez, a Board-certified psychiatrist. In June 13 and July 3, 2008 reports, Dr. Lopez
found that appellant was disabled when he was taken off of work in June 2007 and no longer
disabled as of May 27, 2008. He opined that appellant could return to work in his usual job.
On July 17, 2008 OWCP accepted the claim for anxiety disorder and depression.2 In a
decision also dated July 17, 2008, it determined that appellant was entitled to wage-loss
compensation benefits from April 18, 2007 through May 27, 2008.
In a January 10, 2009 report, Dr. Karalis noted appellant’s history and opined that he was
totally disabled from a psychiatric perspective since the incident with his supervisor on
June 7, 2007. He advised that appellant would remain “totally unemployable until at least
[June 30, 2009].”
In a July 21, 2009 decision, OWCP’s hearing representative determined that there was a
conflict in the medical evidence. Dr. Lopez, the second opinion physician, found that appellant
was not totally disabled after May 27, 2008 while appellant’s treating physician, Dr. Karalis
determined that appellant was totally disabled.
On October 27, 2009 OWCP referred appellant together with a statement of accepted
facts and the medical record, to Dr. Laura Davies, a Board-certified psychiatrist, for an impartial
medical evaluation. In a December 11, 2009 report, Dr. Davies stated that appellant no longer
had residuals of his work-related injury and that he could have returned to work in May 2008. In
a January 23, 2010 supplemental report, she opined that he was not currently disabled due to an
industrial cause. Appellant did not meet the cutoffs for either anxiety or depression. Because he
was medicated, Dr. Davies diagnosed anxiety disorder not otherwise specified. She explained
that appellant was able to maintain his relationship with his common-law wife and son who
moved in and out of his house, to volunteer on a regular basis and to take care of activities of
2

Appellant has five other claims that were combined under claim File No. xxxxxx800. Under File No.
xxxxxx800, he alleged that Gary Fong, his supervisor, harassed him. OWCP accepted that four incidents between
May 18, 2006 and March 30, 2007 occurred in the performance of duty. It accepted an unspecified nonpsychotic
mental disorder. Appellant received compensation from October 3 to 6, 2006 and November 14, 2006 to
February 3, 2007. Under File No. xxxxxx890, on November 13, 2002 he claimed anxiety and depression from being
yelled at and threatened by his supervisor in front of employees and customers. OWCP accepted this and other
incidents in finding that appellant sustained an adjustment disorder with mixed and depressed mood. Appellant
received compensation from October 21 to November 21, 2003 and October 12 to November 20, 2004 and
February 8, 12, April 6, 13, 26 and 28, 2005. Under File No. xxxxxx799 he alleged that on June 12, 2007, Brenda
Young, his supervisor, tried to grab a leave request from his hand on June 7, 2007. OWCP accepted that posttraumatic stress disorder (PTSD). Appellant received compensation from July 29, 2007 to May 27, 2008. Under
File No. xxxxxx710, on July 25, 2000 he claimed an emotional condition due to his removal from employment, false
allegations made by his coworkers, discrimination and unfair treatment. In a December 22, 2000 decision, OWCP
denied the claim finding that appellant was not injured in the performance of duty. The Board affirmed this decision
on April 3, 2010. Docket No. 01-1373 (issued April 3, 2010). Under File No. xxxxxx503 appellant claimed
extreme abuse and cruelty from Gwen Grant, a coworker. He also alleged that Mr. Fong ignored the situation.
OWCP denied appellant’s claim in a December 13, 2005 decision.

2

daily living, as well as write sophisticated letters to multiple governmental leaders. Dr. Davies
did not find that he was disabled in May 2008.
In a February 1, 2010 decision, OWCP denied compensation benefits after May 27, 2008.
In a July 7, 2010 decision, it vacated the decision and remanded the case for a supplemental
opinion from Dr. Davies.
In an August 31, 2010 report, Dr. Davies diagnosed anxiety disorder not otherwise
specified and opined that appellant was not disabled in May 2008.
In a September 10, 2010 decision, OWCP denied appellant’s claim for compensation for
the period commencing May 28, 2008.
Appellant requested a hearing, which was held on December 15, 2010. In a March 9,
2011 decision, OWCP’s hearing representative determined that Dr. Davies did not resolve the
conflict and remanded the case for referral of appellant to a new impartial medical examiner.
On April 20, 2011 OWCP referred appellant to Dr. Miles L. Weber, a Board-certified
psychiatrist and neurologist, for an impartial examination. In a May 31, 2011 report, Dr. Weber
reviewed appellant’s history of injury and treatment. Appellant reported a history of PTSD since
early adolescence. Mental status examination showed appellant to be an emotionally labile man
who frequently spoke in a loud voice and bounced from one issue to another. Appellant focused
on injustices and poor treatment he received at work and the negative impact it had on him both
mentally and physically with a presentation that was disorganized. Dr. Weber diagnosed posttraumatic stress disorder under Axis 1 and personality disorder under Axis 2. He explained that
appellant’s personal characteristics and personality produced difficulty in and of themselves.
Dr. Weber explained that appellant’s long-term mental characteristics, “over the last 10 to 15
years, demonstrated a chronic inability to learn by trial and error.” Appellant rigidly maintained
personal beliefs in the face of persuasive contradictory information. He applied personal and
idiosyncratic interpretations to events around him to the extent that he caused difficulty to
himself and to those around him rising to a level of clinical significance such that he convinced
himself that he could not work. Dr. Weber explained that appellant interpreted neutral daily
activities as being directed towards him with harmful intent. Appellant “conclusively told
[Dr. Weber] that no one in any kind of supervisorial or management position can be trusted.”
Dr. Weber explained that moving him to a different site away from his usual supervisors would
not address this as appellant had concluded there was no safe place for him to work with his
current employer. The maladaptive characteristics were such that any attempts to return him to
work at any accommodation with the current employer would be rejected by appellant through
behavioral and emotional responses. Dr. Weber opined that appellant was disabled after
May 28, 2008; however, this stemmed from his underlying personality disorder, not from an
anxiety disorder, depression or PTSD. He also explained that the accepted condition of PTSD
had not resolved and that the temporary total disability continued until at least June 30, 2009.
Dr. Weber explained that the psychiatric reasons were as he described, rather than simply from
PTSD.
In a letter dated June 15, 2011, OWCP requested clarification from Dr. Weber regarding
whether the disability after May 28, 2008 was work related. In a July 5, 2011 supplemental

3

report, Dr. Weber explained that there were “no specific work incidents listed in the statement of
accepted facts that related to disability after May 28, 2008.” He advised that the disability after
May 28, 2008 was due to a personality disorder and was not work related. Dr. Weber explained
that he concluded that “there had been permanent aggravation of this condition, PTSD that
preexisted employment with the [employing establishment].” He indicated that he was not
entirely clear about OWCP’s question regarding permanent aggravations. From a medical point
of view, an aggravation meant a permanent worsening of a condition. Dr. Weber opined that if
there were subsequent injurious events, the level of permanent impairment or permanent
disability could be increased, resulting in a permanent aggravation of a preexisting permanent
aggravation. He reiterated that appellant was totally disabled up to about June 30, 2009.
Subsequent to June 30, 2009, appellant was not totally temporally disabled, and was capable of
some work. Dr. Weber reiterated that appellant “was firmly committed to the idea that he could
not work with the [employing establishment].” He opined that this perception and conclusion
stemmed from his personality disorder.
By decision dated July 8, 2011, OWCP denied appellant’s claim for compensation
beginning May 28, 2008.
Appellant requested a hearing, which was held on October 26, 2011.
By letter dated July 15, 2011, OWCP requested clarification from Dr. Weber regarding
whether appellant continued to have PTSD under claim File No. xxxxxx799. In an August 1,
2011 supplemental report, Dr. Weber stated that “Disability after May 28, 2008 was caused by a
preexisting personality disorder that had no connection with work experience. After May 28,
2008, PTSD was not productive of disability.” Dr. Weber referred to his prior report and
explained that any disability after May 28, 2008 was caused by appellant’s underlying
personality disorder that had no connection with work. He opined that there was “no disability
produced by post[-]traumatic stress disorder after May 28, 2008.” Dr. Weber indicated that
PTSD was caused by circumstances not connected with employment, and existed at the time
employment began. He also noted that there had been subsequent permanent aggravations by his
employment experience with the postal service. Dr. Weber elaborated with regards to whether
the condition of PTSD was still related to the accepted work factor. He indicated that the answer
was “yes” and advised that the relationship was that of a condition preexisting employment that
was permanently aggravated by employment and was not at present causing work disability.
In an October 13, 2011 report, Dr. Dina Perez-Neira, a licensed clinical psychologist,
opined that appellant’s “stressful work environment and its sequelae have negatively impacted
his emotional aspect.” She listed diagnoses of PTSD, severe and recurrent major depressive
disorder without psychotic features and personality disorder not otherwise specified (NOS).
Dr. Perez-Neira explained that the global assessment of functioning revealed appellant’s
emotional distressing situation resulted in disability to function in activities of daily life,
including work and contributing financially and otherwise to his. She advised that his continued
exposure to traumatic threats and events at the employing establishment developed into a full
scale exacerbation of post-traumatic stress disorder. Dr. Perez-Neira opined that appellant’s
mental state qualified as an “extremely serious mental disability including the effects directly
related to his traumatic experiences while employed at the [employing establishment.]”

4

On November 28, 2011 appellant stated that he had no medical treatment since his claim
was denied. He also questioned the fairness of Dr. Lopez’s report. In a letter dated
December 15, 2011, counsel contend that OWCP erred in making an unfavorable decision, prior
to receiving clarification from the impartial medical examiner. He enclosed new medical
evidence.
In a December 12, 2011 report, Dr. Karalis noted that he had treated appellant since 2002
in hundreds of sessions. He opined that appellant continued to have PTSD and never recovered
from his 2002 illness. Dr. Karalis noted a subsequent 2007 incident at work where appellant
encountered Supervisor Young. He explained that appellant remained totally disabled.
Dr. Karalis noted that the 2007 stress was aggravated by the 2002 stress.
In a January 12, 2012 decision, OWCP’s hearing representative affirmed the July 8, 2011
decision.
LEGAL PRECEDENT
The term disability as used in FECA means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.3 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.4 When the medical evidence establishes that the
residuals of an employment injury are such that, from a medical standpoint, they prevent the
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.5 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 employees to self-certify their disability and entitlement to
compensation.6
Section 8123(a) of FECA provides, in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”7 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.8
3

Paul E. Thams, 56 ECAB 503 (2005); 20 C.F.R. § 10.5(f).

4

W.D., Docket No. 09-658 (issued October 22, 2009); Paul E. Thams, id.

5

Id.

6

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

7

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan, 45
ECAB 207, 210 (1993).
8

See Roger Dingess, 47 ECAB 123, 126 (1995); Juanita H. Christoph, 40 ECAB 354, 360 (1988); Nathaniel
Milton, 37 ECAB 712, 723-24 (1986).

5

The Board has held that, when OWCP obtains an opinion from an impartial medical
specialist for the purpose of resolving a conflict in the medical evidence and the specialist’s
opinion requires clarification or elaboration, OWCP must secure a supplemental report from the
specialist to correct the defect in his or her original report.9 However, when the impartial
specialist is unable to clarify or elaborate on his or her original report or if his or her
supplemental report is also vague, speculative or lacking in rationale, OWCP must submit the
case record and a detailed statement of accepted facts to another impartial specialist for the
purpose of obtaining his rationalized medical opinion on the issue.10
ANALYSIS
OWCP accepted appellant’s claim for anxiety, depression and PTSD. A conflict arose
between the treating physician, Dr. Karalis, who found that appellant continued to be totally
disabled after May 27, 2008 and Dr. Lopez, the second opinion physician, who found that
appellant was not totally disabled after May 27, 2008. OWCP selected Dr. Weber, a Boardcertified psychiatrist and neurologist, to resolve the conflict.11
In a May 31, 2011 report, Dr. Weber noted appellant’s history and noted findings. He
diagnosed PTSD and personality disorder and noted that appellant had PTSD since adolescence.
Dr. Weber explained that appellant’s long-term mental characteristics “demonstrated a chronic
inability to learn by trial and error” while he maintained his rigid personal beliefs in the face of
persuasive contradictory information. He indicated that appellant applied personal and
idiosyncratic interpretations to events around him causing difficulty to himself and to those
around him rising. Dr. Weber explained that appellant interpreted neutral daily activities as
being directed towards him with harmful intent. He explained that moving appellant to a
different site away from his usual supervisors would not address this as appellant had concluded
that there was no safe place for him to work. Dr. Weber indicated that these maladaptive
characteristics were such that any attempts to return him to work at any accommodation with the
employing establishment would not be successful. He opined that, while appellant was disabled
after May 28, 2008, the disability stemmed from appellant’s underlying personality disorder, not
from anxiety disorder, depression or PTSD. Dr. Weber explained that the accepted condition of
PTSD had not resolved and opined that the temporary total disability continued until at least
June 30, 2009. He explained that the psychiatric reasons for disability were as he described,
rather than simply from PTSD.
On June 15, 2011 OWCP requested clarification from Dr. Weber regarding disability
after May 28, 2008.12 In a July 5, 2011 supplemental report, Dr. Weber explained that there
9

Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30 ECAB 1071, 1078 (1979); see also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810(11)(c)(1)-(2)
(April 1993).
10

Id.

11

Id. The previous impartial medical examiner, Dr. Davies, was unable to resolve the conflict and Dr. Weber was
properly selected. See id.
12

See supra note 9; Roger W. Griffith, 51 ECAB 491(2000).

6

were “no specific work incidents” that related to disability after May 28, 2008. He clarified that
disability alter May 28, 2008 was due to appellant’s personality disorder which was not work
related. Dr. Weber indicated that appellant had a “permanent aggravation” of PTSD that
preexisted his work with the employing establishment. He reiterated that appellant was totally
disabled up to about June 30, 2009. After that, appellant was capable of some work. Dr. Weber
noted that appellant “was firmly committed to the idea that he could not work” with the
employing establishment and that this perception stemmed from his personality disorder. On
July 15, 2011 OWCP requested clarification from him regarding whether appellant continued to
have PTSD under claim File No. xxxxxx799. In his August 1, 2011 supplemental report,
Dr. Weber explained that “disability after May 28, 2008 was caused by a preexisting personality
disorder that had no connection with work experience” and that, “after May 28, 2008, PTSD was
not disabling. He explained that disability after May 28, 2008 was caused by appellant’s
personality disorder that had no connection with work. Dr. Weber indicated that PTSD was
caused by circumstances not connected with employment, and was in existence at the time
employment began. He also noted that there had been subsequent permanent aggravations by
appellant’s work experience. Dr. Weber explained that PTSD was still related to the accepted
work factor and noted that the relationship was that of a condition preexisting employment that
was permanently aggravated by employment but was not presently causing work disability. The
Board finds that his opinion is based on an accurate background and is sufficiently well
rationalized such that it is entitled to special weight and establishes that appellant was no longer
disabled beginning May 28, 2008 due to his employment-related conditions.13
OWCP received a December 12, 2011 report from Dr. Karalis, who noted that he had
treated appellant since 2002. Dr. Karalis opined that appellant continued to have PTSD and
never recovered from his 2002 illness. He explained that appellant remained totally disabled.
Dr. Karalis noted that the 2007 stress was aggravated by the 2002 stress. As he had been on one
side of the conflict in the medical opinion that the impartial specialist resolved, the treating
physician’s reports were insufficient to overcome the special weight accorded the impartial
specialist or to create a new medical conflict.14
An October 13, 2011 report from Dr. Perez-Neira, was also insufficient to overcome the
special weight accorded the impartial medical adviser or to create a new medical conflict. She
opined that appellant’s “stressful work environment and its sequelae have negatively impacted
his emotional aspect.” Dr. Perez-Neira diagnosed PTSD, major depressive disorder and a
personality disorder. However, she did appear to be aware of appellant’s accepted conditions in
his various claims. Furthermore, Dr. Perez-Neira did not specifically discuss the period of
disability beginning May 28, 2008 or provide medical rationale explaining the reasons why
employment conditions contributed to his disability.15

13

Gloria J. Godfrey, 52 ECAB 486 (2001); B.P., Docket No. 08-1457 (issued February 2, 2009).

14

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

15

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

7

On appeal, counsel argues that appellant remains disabled due to his work-related
conditions. He also suggested that OWCP rendered its decision before determining whether
appellant’s condition continued. However, as noted above, the impartial medical examiner’s
opinion was accorded special weight and supports that appellant was no longer disabled as of
May 28, 2008 as a result of his work-related conditions. Additionally, there is no dispute that the
accepted PTSD continues but, as explained the weight of the medical evidence does not establish
that disability beginning May 28, 2008 was caused or contributed by a work-related condition.
The Board finds that appellant has not submitted rationalized medical evidence establishing that
his disability beginning May 28, 2008 is causally related to his accepted employment condition.
Appellant may submit 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 failed to establish that he was disabled from May 28, 2008
and continuing as a result of his employment-related injuries.
ORDER
IT IS HEREBY ORDERED THAT the January 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 24, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1995
Issued: March 11, 2014

Case Submitted on the Record

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

JURISDICTION
On August 28, 2013 appellant, through her attorney, filed a timely appeal of a June 12,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a back condition
as a result of her accepted employment exposures.
On appeal counsel argued that the impartial medical examiner was not properly selected
as there were no screen shots and that his report was vague and required supplemental evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 19, 2010 appellant, then a 45-year-old mail handler filed an occupational
disease claim alleging that she developed a low back and neck condition with radiculopathy as a
result of her employment duties of pushing, pulling, lifting and moving heavy sacks and
containers of mail. She first related her condition to her employment in September 2010.
The employing establishment submitted a statement dated December 10, 2012 alleging
that appellant had not performed her job as a mail handler since June 11, 2010. It stated that her
primary function for the last two years was driving a forklift on the platform and working as a
tow motor driver. Appellant did not report difficulty or pain to her supervisors.
In a letter dated December 14, 2010, OWCP requested additional factual and medical
evidence in support of appellant’s claim. Dr. Bruce H. Grossinger, an osteopath and a Boardcertified neurologist, completed a report on August 31, 2010 diagnosing lumbar radiculopathy as
a result of her federal employment. He examined appellant on November 11, 2010 and found
evidence of multiple symptomatic disc bulges, lumbar radiculopathy and lumbar facet syndrome
resulting from a June 16, 2010 employment injury.
In a decision dated January 14, 2011, OWCP denied appellant’s claim finding that the
factual element of her claim had not been established due to the discrepancy between her
statement and that of the employing establishment.
Appellant requested an oral hearing before an OWCP hearing representative on
January 21, 2011. Dr. Grossinger submitted a report dated May 5, 2011. He noted that appellant
was employed as a mail handler for 21 years, a position which required physical work including
lifting, carrying, bending, pushing and pulling. Dr. Grossinger stated that as a consequence of
her duties appellant developed radiating neck and low back complaints. He found that she had
abnormal findings on her July 30, 2010 magnetic resonance imaging (MRI) scan which
demonstrated disc protrusions at L4-5 and L5-S1. Dr. Grossinger noted that an electromyogram
(EMG) reflected moderate right S1 radiculopathy. He reported that appellant’s examination was
consistent with leg weakness, positive straight leg raising, sitting root signs and an inability to
maintain a posture for a length of time. Dr. Grossinger also noted that her cervical spine
demonstrated chronic cervical strain with muscle spasm and that a cervical MRI scan
demonstrated straightening of normal cervical lordosis compatible with muscle spasm. He
opined that appellant’s cumulative work as a mail handler gave rise to her neck and low back
conditions including chronic somatic dysfunction of the cervical spine, tearing and protrusion of
the annuli at L4-5 and L5-S1 with nerve injury. Dr. Grossinger recommended a two-level
laminectomy discectomy and fusion and opined that she was currently totally disabled.
Appellant testified at the oral hearing on May 19, 2011. She stated that she was hired as
a mail hander on November 19, 1988. Appellant testified that she daily moved hundreds of
sacks weighing between 20 and 80 pounds. She also noted that while operating the forklift she
was also required to occasionally lift opened pallets of catalogs or other mail. Appellant stated
that for the last two years of her employment she drove a tow motor on the high speed forklift in
addition to unloading trucks including heavy sacks. She stopped work on June 16, 2010.
Appellant stated that she developed pain in her neck and numbness in her hands. She stated that

2

she was initially diagnosed with carpal tunnel syndrome. OWCP denied this claim from
appellant, who noted that she worked at Wal-Mart in customer service from December 2009
through February 2010.
In a decision dated July 29, 2011, OWCP’s hearing representative remanded appellant’s
claim for further development of the medical evidence such as referral to a second opinion
physician.
Dr. Grossinger submitted a July 30, 2010 MRI scan of appellant’s lumbar spine which
demonstrated disc bulges at L4-5 and L5-S1 with straightening of the normal lordotic curvature
compatible with muscle spasm. He also submitted a July 30, 2011 cervical MRI scan which
demonstrated straightening of the normal cervical lordosis compatible with muscular spasm. In a
note dated August 3, 2010, Dr. Grossinger reviewed the MRI scan and opined that her injuries
were “directly referable” to her cumulative work at the employing establishment. He opined that
appellant was totally disabled and recommended lumbar epidural steroidal injections.
Dr. Grossinger stated that appellant’s cervical neck injury arose from cumulative inflammation
and traction to her neck rather than mechanical compression in her cervical spine.
OWCP referred appellant for a second opinion examination with Dr. Robert Allen Smith,
a Board-certified orthopedic surgeon. In a report dated September 20, 2011, Dr. Smith reviewed
the statement of accepted facts and the MRI scans. He diagnosed mild age-related degenerative
disc disease. Dr. Smith noted that given the benign findings on MRI scan it was likely that
Dr. Grossinger’s electrodiagnostic findings were false positive artifact. Appellant’s physical
examination did not reveal spasm, atrophy, trigger points or deformity. Dr. Smith found normal
range of motion of the neck and back with normal neurologic examination. He stated, “I see no
evidence of any aggravation, precipitation or acceleration of [appellant’s] mild preexisting
degenerative disease related to her federal employment and would consider the findings in her
lumbar spine of some disc bulges as being preexisting and nonindustrial.” Dr. Smith opined that
appellant could return to her date-of-injury position with no restrictions.
In a decision dated November 25, 2011, OWCP denied appellant’s claim based on
Dr. Smith’s report. Counsel requested an oral hearing on November 30, 2011.
Dr. Jason Brajer, a Board-certified anesthesiologist, completed a report on June 29, 2011
and diagnosed lumbar radiculopathy secondary to lumbar facet and S1 joint dysfunction.
Dr. Grossinger reported on January 4, 20122 his disagreement with Dr. Smith’s
September 20, 2011 findings and conclusions. He noted that appellant had two disc bulges at
L4-5 and L5-S1 without any other associated degenerative joint disease and that therefore there
was no support on the MRI scan that the disc bulges were degenerative in etiology.
Dr. Grossinger also noted that appellant’s EMG and nerve conduction study demonstrated
moderate right S1 radiculopathy.

2

The report is misdated as 2011, but as Dr. Smith did not examine appellant until August 2011 the Board is
confident that Dr. Grossinger’s report is actually dated January 4, 2012.

3

The Branch of Hearings and Review found that appellant’s claim was not in posture for a
hearing on February 13, 2012 and remanded the claim for referral to an impartial medical
specialist along with a statement of accepted facts and a list of specific questions.
OWCP referred appellant to Dr. Andrew Gelman, a Board-certified orthopedic surgeon.
The record contains an ME-M listing the physicians previously involved in the case dated May 9,
2012, and the ME023 selecting Dr. Gelman dated May 17, 2012 and the appointment
information listing Dr. Gelman’s name, address and the date and time of the scheduled
examination.
In a letter dated May 25, 2012, counsel requested that OWCP provide proof that
Dr. Gelman was properly selected to serve as an impartial medical examiner. He requested
iFECS screen shots and an imaging of the ME023 as well as the proper reasons for the bypasses
of physicians who were selected on a strict rotational basis. OWCP responded on June 22, 2012
and stated that Dr. Gelman was the first physician on the rotation, that he accepted the
appointment and that there were no physicians bypassed. It provided a copy of the ME023.
OWCP stated, “Although the screen shots were not saved, Medical Scheduler Alice Hannah has
verified the above information.”
Counsel again requested that the screen shot images of Dr. Gelman’s selection from the
Physician’s Directory Service (PDS) be provided by letter dated July 3, 2012. He stated that he
had an extreme concern about Dr. Gelman’s ability to provide an unbiased opinion given his
experience with his prior reports. Counsel stated that confirmation of his proper selection from
PDS was very important to appellant.
Dr. Gelman completed a report on June 27, 2012 and provided his findings on physical
examination noting that in the cervical area, motor strength was normal and light touch sensation
was normal. He found that appellant’s lumbar spine was tender to the touch in the paravertebral
muscles with tenderness over the right distal iliotibial band. Dr. Gelman found negative straight
leg raising along with a slow and labored gait. He attributed appellant’s condition to aging
disease and morbid obesity. Dr. Gelman diagnosed neck and back pain as a result of mild
degenerative disease. He concluded that appellant’s conditions were not related to her
employment. Dr. Gelman stated, “As far as [appellant’s] employment as a mail handler, the
repetition and/or cumulative nature of her requirement are noted, though I would not be able to
directly attribute the work requirements and [appellant’s] symptomatology. It is my opinion that
difficulties are more so attributable to the natural aging process in this poorly conditioned,
morbidly obese individual.” He opined that appellant could return to her date-of-injury position
based on her independent tolerance to function within the job description.
OWCP denied appellant’s claim by decision dated November 1, 2012 relying on
Dr. Gelman’s report.
Counsel requested an oral hearing on November 8, 2012. Dr. Grossinger completed a
report dated December 6, 2012 and disagreed with Dr. Gelman’s findings and conclusions. He
stated that appellant’s objective clinical and supportive neurological testing was indicative of
cervical radiculopathy, cervical facet syndrome, lumbar radiculopathy and lumbar facet

4

syndrome related to her federal employment. Dr. Grossinger further opined that appellant was
totally disabled.
Counsel appeared at the oral hearing on March 26, 2013 and argued that, without the
screen shots of Dr. Gelman’s selection, there was no adequate proof that he was properly
selected.
By decision dated June 12, 2013, OWCP’s hearing representative found that the medical
evidence did not establish a cervical or lumbar condition causally related to appellant’s
employment.
LEGAL PRECEDENT
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.3 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.4
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of the impartial medical specialist
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial
medical specialist will be selected on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.5
The Medical Management Application (MMA), which replaced the PDS, allows users to
access a database of Board-certified specialist physicians and is used to schedule referee
examination. The application contains an automatic and strict rotational scheduling feature to
provide for consistent rotation among physicians and to record the information needed to
document the selection of the physician. If an appointment cannot be scheduled in a timely
manner, or cannot be scheduled for some other reason such as a conflict or the physician is of the
wrong specialty, the scheduler will update the application with an appropriate bypass code.
Upon the entering of a bypass code, the MMA will select the next physician in the rotation.6
3

5 U.S.C. §§ 8101-8193, 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).

4

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

5

J.N., Docket No. 13-289 (November 15, 2013); C.P., Docket No. 10-1247 (issued September 28, 2011);
Raymond J. Brown, 52 ECAB 192 (2001).
6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Chapter 3.500.5 (December 2012); see also R.C., Docket
No. 12-468 (issued October 15, 2012) (where the Board first discussed the application of the MMA and found that
appellant’s reasons for objecting to the list of impartial medical specialists provided by OWCP were not valid).

5

ANALYSIS
The Board finds that this case is not in posture for decision. OWCP did not establish that
Dr. Gelman was selected as an impartial medical examiner in a fair and unbiased manner.
It is well established that OWCP has an obligation to verify that it selected Dr. Gelman in
a fair and unbiased manner. It maintains records for this very purpose.7 The current record
includes a May 17, 2012 Form ME023 report and an appointment information sheet that lists
Dr. Gelman as the selected physician. The record also contains a Form ME-M which listed
previous physicians involved in the case. There are no other documents, screen captures or any
other evidence to establish how the MMA system was used to select the referee physician.
Board case law provides that a Form ME023 is not sufficient documentation that OWCP
properly followed its selection procedures.8
The Board has placed great importance on the appearance as well as the fact of
impartiality, and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist.9 OWCP has not met its affirmative obligation to establish that it properly
followed its selection procedures.10
The Board will remand the case to OWCP for proper selection of a referee physician.
After such further development as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for a decision as to whether appellant has
met her burden of proof in establishing a back condition as a result of her federal job duties.

7

M.A., Docket No. 07-1344 (issued February 18, 2008).

8

J.N., supra note 5; L.M., Docket No. 12-1396 (issued January 25, 2013); D.A., Docket No. 12-311 (issued
July 25, 2012); C.P., supra note 5, petition for recon. denied, Docket No. 10-1247 (issued May 15, 2012).
9

See D.M., Docket No. 11-1231 (issued January 25, 2012); D.L., Docket No. 11-660 (issued October 25, 2011).

10

M.A., supra note 7.

6

ORDER
IT IS HEREBY ORDERED THAT the June 12, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development of
the medical evidence in accordance with this decision.
Issued: March 11, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7