United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.E., Appellant
and
U.S. POSTAL SERVICE, OFFICE OF
LEARNING, DEVELOPMENT & DIVERSITY,
Miami, FL, Employer
__________________________________________

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Appearances:
Stephen Larkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0837
Issued: October 20, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 12, 2019 appellant, through counsel, filed a timely appeal from a January 18,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the January 18, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective September 20, 2018, because she no longer had
residuals or disability causally related to her accepted October 12, 2016 employment injury.
FACTUAL HISTORY
On October 12, 2016 appellant, then a 46-year-old human resources specialist, filed a
traumatic injury claim (Form CA-1) alleging that she sustained injury on that date when a cart she
was pushing got stuck and she flipped over it and fell to the ground while in the performance of
duty. She stopped work on October 12, 2016. OWCP initially accepted appellant’s claim for
bowel incontinence, aggravation of intervertebral disc displacement of the lumbar region, cervical
disc displacement, and right knee sprain.4
In an October 17, 2016 report, Dr. Behnam Meyers, an osteopath Board-certified in
orthopedic surgery, advised that appellant had reported experiencing neck, back, and right leg pain
(with numbness/tingling) since falling at work on October 12, 2016. He indicated that she denied
having bowel or bladder changes.
Appellant visited the emergency room on October 19, 2016 and Dr. Richard S. Perlman,
Board-certified in emergency medicine, indicated in a report of even date that she reported
experiencing bowel incontinence since falling at work one week earlier.
In an October 21, 2016 report, Dr. Meyers advised that appellant reported visiting the
emergency room on October 19, 2016 with a complaint of bowel/fecal incontinence. He noted
that he saw no explanation for her reported incontinence in an October 19, 2016 magnetic
resonance imaging scan of the low back.
In a December 14, 2016 report, Dr. Damon R. Salzman, a Board-certified neurologist,
noted that appellant reported experiencing bowel incontinence.
On February 21, 2017 appellant underwent authorized right knee surgery, including
chondroplasty of the patella/trochlea, and synovectomy with debridement and fat pad excision.
On March 22, 2017 she underwent authorized back surgery, including discectomy/laminectomy at
L4-5 with medial facetectomy and foraminotomies of the L4-5 nerve roots.
In an April 14, 2017 report, Dr. Mark S. Fishman, an osteopath Board-certified in physical
medicine and rehabilitation, noted that appellant reported experiencing urinary incontinence, but
denied having bowel changes. He diagnosed neuropathy and low back pain. On May 16, 2017
Dr. Fishman advised that appellant denied bladder/bowel changes.
In June 2017 OWCP expanded appellant’s accepted conditions to include urinary
incontinence and left knee sprain.

4

OWCP paid appellant wage-loss compensation on the supplemental rolls commencing February 25, 2017 and on
the periodic rolls commencing March 5, 2017.

2

In a July 17, 2017 report, Dr. Manuel A. Martinez, a Board-certified internist, noted in the
history portion of his report that appellant reported experiencing bowel incontinence since her
October 12, 2016 fall. In the examination portion of his report, he indicated that she presently
reported that she had urinary incontinence, but did not have diarrhea or constipation.
In a September 18, 2017 report, Dr. Fishman noted that appellant reported radicular pain
symptoms in both legs and advised that an electrodiagnostic study revealed evidence of axonal
and demyelinating polyneuropathy. He diagnosed lumbar post-laminectomy syndrome and
neuropathy.
On September 29, 2017 OWCP referred appellant for a second opinion examination with
Dr. Clinton G. Bush, a Board-certified orthopedic surgeon. It provided him with the case record,
a current statement of accepted facts (SOAF), and a series of questions. OWCP requested an
opinion from Dr. Bush regarding whether appellant continued to have residuals of the accepted
October 12, 2016 employment conditions and whether these conditions prevented her from
performing her date-of-injury job of human resources specialist. It noted, “Previous medical
reports may not have been based on the attached SOAF. You must use the SOAF as the only
factual framework for you[r] opinion.”
In an October 17, 2017 report, Dr. Bush discussed appellant’s prior medical history, noting
that, on October 17, 2016 during the first examination of record after her October 12, 2016
accident, she did not mention a knee injury and specifically denied having issues with bladder or
bowel control. He further noted that the first report of record in which she complained of fecal
incontinence was dated July 17, 2017. Dr. Bush advised that appellant presented complaining of
pain in her neck, back, and lower extremities, numbness/tingling and weakness in her left lower
extremity, and significant bowel/urinary incontinence. He reported the findings of his physical
examination, including range of motion testing, which showed limited motion on all axes of neck
motion and on lumbar flexion.5 Appellant had 5/5 strength in all major muscle groups of the upper
and lower extremities, except for 4/5 strength in the left quadriceps group, and she had atrophy of
her left thigh (2 centimeters) and left calf (0.5 centimeters). There were no deficits found upon
sensory testing of all four extremities. Dr. Bush diagnosed degenerative spondylosis of the
cervical and lumbar spines, poorly-controlled diabetes mellitus, diabetic peripheral neuropathy
with resultant sensory symptoms in the upper and lower extremities as well as fecal and urinary
incontinence, and degenerative arthritis of both knees. He indicated that appellant presented to
him with a variety of ongoing neck, bilateral knee, and lower back pain symptoms, as well as lower
extremity/sacral nerve root neurological symptoms, which did not correlate in any way with the
post-traumatic or other pathologic abnormalities detected on diagnostic testing. Dr. Bush opined
that there was no credible or objectively verifiable evidence of traumatic injury to her cervical
spine, lumbar spine, right knee, or left knee and that all of her symptoms could be explained by
diabetic polyneuropathy and degenerative disease of the spine and knees. He noted, “This includes
[appellant’s] migratory and alternating lower extremity symptoms and her history of urinary and

5

Dr. Bush advised that the physical examination was limited to the musculoskeletal and neurologic systems.

3

fecal incontinence. It also adequately explains the measured muscle atrophy and [sic] the left thigh
and left calf.”6
Dr. Bush indicated that, despite the fact that appellant had officially accepted conditions of
disc herniation, incontinence, and bilateral knee sprains, he could not find any basis for ongoing
medical evaluation/treatment or physical activity limitation based on the “reported accident event”
of October 12, 2016. In response to a question regarding whether, based only on the accepted
conditions, appellant was able to perform her date-of-injury job of human resources specialist, he
responded, “In essence, I disagree with the [SOAF].” Dr. Bush further opined that “no factors
arising” from the October 12, 2016 injury prevented her from returning to her date-of-injury job
as a human resources specialist on a full time basis without restrictions.7 In response to a question
regarding whether appellant’s accepted conditions had resolved, he noted, “I have already stated
my opinion that the accepted conditions have been accepted in error and that there is no causal
relationship between [appellant’s] accident of [October 12, 2016] and her current symptoms.
Albeit the symptoms of [sic] not resolved, they are not related to any traumatic event.” In an
attached work capacity evaluation report (Form OWCP-5c) dated October 16, 2017, Dr. Bush
advised that she was able to perform her date-of-injury job of human resources specialist with the
restriction that she needed to take a 15-minute break three times per day due to her incontinence
condition.
OWCP also referred appellant for a second opinion examination with Dr. Richard D.
Levin, a Board-certified urologist. It provided him with the case record, including a current SOAF,
and requested that he provide an opinion regarding whether she had a need for work restrictions
or other residuals related to the accepted October 12, 2016 employment conditions. OWCP noted,
“Previous medical reports may not have been based on the attached SOAF. You must use the
SOAF as the only factual framework for your opinion.”
In a May 25, 2018 report, Dr. Levin noted that his report was based on a series of
examinations of appellant on November 13, 2017 and February 13 and March 8, 2018. He
indicated that she reported that, after her employment-related October 2016 accident, she
developed severe intractable urinary incontinence which she experienced on a daily basis.
Appellant further reported that her present chief complaint was urinary incontinence, but that she
was not on any treatment regimen for the condition. Dr. Levin indicated that she had undergone
extensive medical evaluation, but that some of the medical records seemed to conflict with each
other. He advised that, after the October 12, 2016 injury, it seemed that there were no reports of
bowel or bladder dysfunction until the March 22, 2017 back surgery. Dr. Levin noted that, in
April 2017, appellant reported voiding dysfunction, but no bowel dysfunction. He indicated that
a May 2017 review of her systems was negative for voiding dysfunction. However, there was a
report in July 2017 of urinary incontinence, but no bowel dysfunction. Dr. Levin noted that, during
his own evaluation, appellant reported having urgency and urge incontinence since the October 12,
2016 injury, but not since her March 22, 2017 surgery. He advised that she presently denied bowel

6

In other portions of the report, Dr. Bush specifically opined that appellant’s diabetic neuropathy was responsible
for the 4/5 strength in her left quadriceps group (with associated atrophy of the left thigh/calf), and her bowel/urinary
incontinence.
7

Dr. Bush indicated that he had not been provided a description of the position of human resources specialist, but
that he assumed it was “primarily a desk job.”

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dysfunction or fecal incontinence and noted, “Certainly I think this creates a challenge due to the
conflict between the records in [appellant’s] verbal report.”
Dr. Levin indicated that the results of urine analysis he obtained revealed trace hematuria
and that a cystoscopy showed a grade 2 cystocele (prolapsed/dropped bladder) with no other
findings to explain appellant’s symptoms such as a mass or polyp. The results of urodynamics
testing were consistent with overactive bladder, uninhibited bladder contractions, and a mildly
obstructed voiding pattern consistent with the cystocele, and urethral hypermobility.8 Dr. Levin
diagnosed urinary incontinence, urgency, urge incontinence, cystocele, urethral hypermobility,
and microhematuria.9 He indicated that appellant’s “symptoms of urinary incontinence appear to
be related to [appellant’s] cystocele and associated stress incontinence with perhaps secondary
urge incontinence.” Dr. Levin opined that there was no objective evidence indicating that her
urinary incontinence was related to her October 12, 2016 injury.
In an undated addendum received by OWCP on May 30, 2018 Dr. Levin noted that the
diagnosis of incontinence seemed to be mostly stress incontinence with a component of urge
incontinence. He did not see any connection between appellant’s diagnosis and her employmentrelated injury and noted, “I do not see it connected to factors of employment either. I do not see
presenting [sic] any injury[-]related disability.” Dr. Levin advised that he did not recommend any
physical limitations based upon his evaluation, except that she was limited to light work and
needed to take bathroom breaks in order to achieve behavioral modiﬁcation which would help her
maintain an empty bladder. He concluded that he did not see evidence that appellant had urological
residuals of the October 12, 2016 injury. In a Form OWCP-5c dated May 24, 2018, Dr. Levin
advised that appellant could not perform her usual job, but noted that she could perform light work
for eight hours per day.
On May 31, 2018 OWCP requested that Dr. Levin clarify whether there were objective
findings to support disability as a result of the accepted October 12, 2016 employment injury and
to indicate whether, considering only the effects of the October 12, 2016 injury, appellant could
work as a human resources specialist without restrictions. In a July 3, 2018 supplemental report,
Dr. Levin replied that there were no objective findings to support her disability “as of October 12,
2016” and that there were no evaluation findings that precluded her from performing her usual
duties.
In an August 10, 2018 notice, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits, effective September 20, 2018, as she no longer had
residuals or disability causally related to her accepted October 12, 2016 employment injury. It
informed her that the proposed action was based on the opinions of OWCP’s referral physicians,
Dr. Bush and Dr. Levin. OWCP afforded appellant 30 days to submit evidence and argument
challenging the proposed termination action.
Appellant submitted records from her July 11, 2018 hospitalization which were signed on
July 12 and 15, 2018 by Liliana Kortmansky, a nurse practitioner. The records consisted mostly
8

The case record contains copies of urine analysis, cystoscopy, and urodynamics testing performed on
February 13, 2018.
9

Dr. Levin advised that appellant’s microhematuria needed to be evaluated by another urologist and that it was
“unrelated to this event.”

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of blood test results and included, inter alia, diagnoses of iron deficiency anemia due to blood loss
and thrombocytosis. In an August 23, 2018 report, Dr. Fishman noted that appellant presented
complaining of low back pain, left thigh weakness, lower extremity numbness/tingling, and urinary
incontinence. He advised that his physical examination revealed decreased sensation in a stocking
distribution of both lower extremities and of the left knee/medial leg (associated with the left L4
nerve). Dr. Fishman noted that appellant denied bowel incontinence and diagnosed lumbar postlaminectomy syndrome. Appellant also submitted several medical reports that had previously been
submitted.
By decision dated September 20, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective September 20, 2018, as she no longer had residuals
or disability causally related to her accepted October 12, 2016 employment injury. It found that
the weight of the medical evidence with respect to employment-related residuals/disability rested
with the well-rationalized opinions of OWCP’s referral physicians, Dr. Bush and Dr. Levin.
On October 23, 2018 appellant requested reconsideration of the September 20, 2018
decision. In an accompanying narrative statement, she maintained that she had multiple
employment-related conditions which prevented her from returning to work. Appellant submitted
a series of reports.
In a September 20, 2018 report, Dr. Salzman reported the findings of diagnostic testing and
diagnosed cervical spondylosis without myelopathy and chronic intractable migraine without aura.
On September 24, 2018 he diagnosed cervical and lumbar radiculopathies. In a September 27,
2018 duty status report (Form CA-17), Dr. Salzman listed the date of injury as October 12, 2016
and provided diagnoses “due to injury” of lumbar post-laminectomy syndrome, cervical
radiculopathy, and bowel/urinary incontinence. He recommended various work restrictions. In
reports dated October 18 and November 15, 2018, Dr. Salzman collectively diagnosed cervical
spondylosis without myelopathy, lumbar post-laminectomy syndrome, lumbar radiculopathy, and
chronic intractable migraine without aura.
In reports dated September 19 and 21, October 19, and December 11 and 14, 2018,
Dr. Fishman collectively diagnosed lumbar post-laminectomy syndrome, prolapsed lumbar
intervertebral disc, lumbar radiculopathy, neuropathy, and right hamstring tendon rupture. In a
Form CA-17 dated September 21, 2018, he advised that appellant could not return to her prior
employment.
In a November 8, 2018 report, Dr. Samer Elhakim, Board-certified in family medicine,
noted that appellant presented for the first time complaining of neck, back, and bilateral knee pain,
urinary/bowel incontinence, and other symptoms/conditions which she related to an October 12,
2016 employment injury. He diagnosed cervical disc displacement, lumbar intervertebral disc
displacement, bilateral knee sprains, urinary incontinence, and full feces incontinence, and he
opined that these conditions were caused by the October 12, 2016 injury. In Forms CA-17 dated
November 8 and December 5, 2018, Dr. Elhakim advised that appellant should not work for four
weeks due to her reported employment-related symptoms.
In a November 12, 2018 report, Dr. Greg Zorman, a Board-certified neurosurgeon,
indicated appellant reported that, since her March 22, 2017 surgery, she experienced neck, back,
and bilateral leg pain, left leg weakness, and bowel/urinary incontinence.
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In January 2 and 4, 2019 reports, Dr. Erick Salado, a Board-certified orthopedic surgeon,
collectively diagnosed, inter alia, lumbar intervertebral disc displacement, bilateral knee sprains,
urinary incontinence, and full feces incontinence. He advised that appellant would continue in a
nonworking status. In a Form CA-17 dated January 2, 2019, Dr. Salado advised that she should
not work for four weeks due to her reported employment-related symptoms. Appellant also
submitted several medical reports that had previously been submitted.
By decision dated January 18, 2019, OWCP denied modification of its September 20, 2018
termination decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.10 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.11 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.12
The Federal (FECA) Procedure Manual provides that the findings of an OWCP referral
physician or impartial medical specialist must be based on the factual underpinnings of the claim,
as set forth in the SOAF.13 When OWCP’s referral physician or impartial medical specialist does
not use the SOAF as the framework in forming his or her opinion, the probative value of the
opinion is diminished or negated altogether.14
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 20, 2018, because she no longer had
residuals or disability causally related to her accepted October 12, 2016 employment injury.
The Board finds that, in terminating appellant’s wage-loss compensation and medical
benefits, OWCP improperly relied on the opinions of two OWCP referral physicians, Dr. Bush, a
Board-certified orthopedic surgeon, and Dr. Levin, a Board-certified urologist.
In an October 17, 2017 report, Dr. Bush opined that appellant did not have residuals or
disability related to her accepted October 12, 2016 employment injury at the time of the
October 17, 2017 physical examination. He found that she had multiple medical problems
10

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
11

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
12

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.810.11a
(September 2019).
14

Id. at Chapter 3.600.3(10) (October 1990).

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affecting her neck, back, extremities, and gastrointestinal system, but posited that these conditions
were due to nonwork-related diabetic neuropathy and degenerative disc disease of the neck, back,
and knees. However, the Board finds that the opinion of Dr. Bush does not have sufficient
probative value to serve as a basis for termination. In his October 17, 2017 report, Dr. Bush
provided an opinion that was not in keeping with the SOAF. OWCP provided him with an SOAF
to use as a frame of reference in forming his opinion. The SOAF made clear that OWCP had
accepted appellant’s claim for numerous conditions. As noted above, the Federal (FECA)
Procedure Manual provides that the findings of an OWCP referral physician or impartial medical
specialist must be based on the factual underpinnings of the claim as set forth in the SOAF.15
When OWCP’s referral physician or impartial medical specialist does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is diminished or
negated altogether.16
The Board notes that Dr. Bush indicated in his October 17, 2017 report that he did not
accept the conditions listed in the SOAF as valid employment conditions. In response to a question
regarding whether appellant’s accepted conditions had resolved, Dr. Bush noted, “I have already
stated my opinion that the accepted conditions have been accepted in error and that there is no
causal relationship between [appellant’s] accident of [October 12, 2016] and her current
symptoms. Albeit the symptoms of [sic] not resolved, they are not related to any traumatic event.”
In a prior section of his October 17, 2017 report, he noted, “In essence, I disagree with the
[SOAF],” when responding to a question regarding whether, based only on the accepted
conditions, appellant was able to perform her date-of-injury job of human resources specialist.
Given his failure to acknowledge the accepted employment conditions, Dr. Bush’s opinion is of
limited probative value regarding OWCP’s termination of her wage-loss compensation and
medical benefits.17
The Board further finds that the opinion of Dr. Levin also is of limited probative value
regarding OWCP’s termination of appellant’s wage-loss compensation and medical benefits. As
part of his second opinion evaluation, Dr. Levin produced a May 25, 2018 report, an undated
addendum report received by OWCP on May 30, 2018 and a July 3, 2018 supplemental report. In
these reports, he collectively concluded that appellant had no residuals or disability related to her
accepted October 12, 2016 employment injury when he examined her, despite the fact that she
continued to complain of urinary incontinence and had test findings consistent with overactive
bladder, uninhibited bladder contractions, mildly obstructed voiding pattern, and urethral
hypermobility.18 In his May 25, 2018 report, Dr. Levin discussed a number of occasions in 2017
and 2018 in which he felt she provided conflicting accounts of her bowel and urinary incontinence
symptoms. He advised that appellant denied bowel dysfunction or fecal incontinence when he
examined her and noted, “Certainly, I think this creates a challenge due to the conflict between the
records in [appellant’s] verbal report.” Dr. Levin diagnosed urinary incontinence, urgency, urge
incontinence, cystocele (prolapsed/dropped bladder), urethral hypermobility, and microhematuria.
He indicated that appellant’s “symptoms of urinary incontinence appear to be related to
15

See supra note 13.

16

See supra note 14.

17

See supra notes 13 and 14.

18

Dr. Levin indicated that he examined appellant on November 13, 2017 and February 13 and March 8, 2018.

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[appellant’s] cystocele and associated stress incontinence with perhaps secondary urge
incontinence.”
The Board finds that Dr. Levin’s opinion is of limited probative value regarding whether
appellant continued to have employment-related residuals and disability because he failed to
provide a rationalized medical opinion explaining his conclusion that she ceased to have residuals
and disability related to the accepted October 12, 2016 employment injury. The Board has held
that a report is of limited probative value regarding a given medical matter if a physician does not
provide medical rationale explaining his or her conclusion on that matter.19 Dr. Levin did not
provide any substantive discussion relative to the relationship of appellant’s bowel and urinary
incontinence conditions to the October 12, 2016 injury or explain when and why such
employment-related incontinence conditions would have resolved. In fact, in portions of his
May 25, 2018 report, particularly the portion discussing her reported incontinence symptoms, he
suggested that he did not believe that her bowel and incontinence conditions were ever related to
the October 12, 2016 employment injury. In his undated addendum report and July 3, 2018
supplemental report, Dr. Levin did not provide any further medical rationale in support of his
ostensible opinion that appellant ceased to have residuals or disability due to the bowel and
incontinence conditions accepted in connection with the October 12, 2016 injury.
Because the opinions of Dr. Bush and Dr. Levin lack probative value, the Board finds that
OWCP has not met its burden of proof to terminate appellant’s wage-loss compensation and
medical benefits, effective September 20, 2018.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 20, 2018.

19

L.G., Docket No. 19-0142 (issued August 8, 2019); C.M., Docket No. 14-0088 (issued April 18, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the January 18, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 20, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.Y., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Jackson, MS, Employer
__________________________________________

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

Docket No. 16-0564
Issued: August 22, 2016

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 January 27, 20161 appellant filed a timely appeal of an August 3, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.3
1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). One hundred and eighty
days from August 3, 2015 was January 30, 2016. As this fell on a Saturday, the appeal would have been due the
following business day which was February 1, 2016. Since using February 4, 2016, the date the appeal was received
by the Clerk of the Appellate Boards, would result in the loss of appeal rights, the date of the postmark is considered
the date of filing. The date of the U.S. Postal Service postmark is January 27, 2016, which renders the appeal timely
filed. See 20 C.F.R. § 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its August 3, 2015 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore the Board lacks jurisdiction to review this additional evidence on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has more than five percent permanent impairment of her
right upper extremity for which she received a schedule award.
FACTUAL HISTORY
On September 29, 2009 appellant, then a 51-year-old practical nurse, filed a traumatic
injury claim (Form CA-1) alleging that on September 24, 2009 she strained her right shoulder
while repeatedly lifting 11-pound bags of sterile water. She underwent a magnetic resonance
imaging (MRI) scan on November 5, 2009 which demonstrated right-sided disc herniation, mild
spondylosis, and disc desiccation. By decision dated January 19, 2010, OWCP accepted
appellant’s claim for right C6 radiculopathy. On March 8, 2010 it accepted the additional
conditions of cervical herniated disc, spinal stenosis in the cervical region, and cervical
spondylosis without myelopathy.
Appellant underwent a C5-6 anterior cervical disc fusion on April 5, 2010. OWCP
entered her on the periodic rolls on April 7, 2010. Appellant underwent an electromyogram
(EMG) on July 2, 2010, which was normal.
Appellant returned to full-time light duty on August 23, 2010. By decision dated
November 4, 2010, OWCP reduced her wage-earning capacity to zero based on her actual
earnings.
By decision dated June 20, 2011, OWCP denied appellant’s claim for a schedule award,
finding that she had not established permanent impairment of a scheduled member.
Appellant underwent a cervical MRI scan on July 26, 2011 which demonstrated a large
right lateral disc herniation at C6-7 with extruded component upon the right exiting nerve root
and right transiting nerve root. She underwent removal of the anterior locking plate at C5-6 as
well as a C6-7 anterior cervical discectomy and placement of interbody spacer on
November 2, 2011.
Appellant filed a claim for a schedule award (Form CA-7) on May 23, 2012. By decision
dated July 26, 2012, OWCP denied modification of its prior decision, finding that she had not
established permanent impairment of a scheduled member entitling her to a schedule award.
OWCP continued to develop the medical evidence. On January 16, 2013 an OWCP
medical adviser found that appellant had five percent permanent impairment of the right upper
extremity due to mild motor radiculopathy at C7.
By decision dated January 28, 2013, OWCP granted appellant a schedule award for five
percent permanent impairment of her right upper extremity.
Appellant underwent electrodiagnostic studies including EMG and nerve conduction
velocity (NCV) studies on May 14, 2013 which were normal with no evidence of significant
focal neuropathy or active radiculopathy. She submitted a December 5, 2012 MRI scan which
demonstrated anterior cervical fusions at C5-6 and C6-7 with minimal central disc bulge at C4-5.
2

In a letter and form dated January 22 and 23, 2014, respectively, appellant requested
reconsideration of OWCP’s January 28, 2013 decision. OWCP received both documents on
January 31, 2014. Appellant argued that, although her objective findings did not support her
claim for an increased schedule award, her subjective findings were sufficient to warrant
additional permanent impairment. She submitted a statement that she had not been able to
schedule an appointment with a physician since October 2013. Appellant also submitted medical
evidence consisting of the MRI scan of the right shoulder dated April 27, 2011, an x-ray dated
March 31, 2011, and a cervical MRI scan dated December 5, 2012. She underwent an
electrodiagnostic study on May 14, 2013 which was normal.
By decision dated February 10, 2014, OWCP declined to reopen appellant’s claim for
consideration of the merits, finding that her request for reconsideration was untimely as it was
received on January 31, 2014, more than one year after the January 28, 2013 merit decision. It
further found that her request for reconsideration failed to demonstrate clear evidence of error.
Appellant appealed to the Board, in an order dated March 10, 2015.4 The Board set aside
the February 10, 2014 OWCP decision and remanded the case for review under the appropriate
standard for a request for an increased schedule award.
Dr. Michael Winkelmann, a Board-certified physiatrist, examined appellant on
February 12 and March 26, 2014. He found significant cervical spine pain which he believed
was related to appellant’s facet joints. Dr. Winkelmann recommended injections.
Dr. Jeffrey T. Laseter, a pain medicine specialist, examined appellant on April 9 and 24,
2014 and found neck and bilateral arm pain. He noted appellant’s history of injury and medical
history. Dr. Laseter found tenderness to palpation in the cervical spine as well as positive pain
with facet loading. He diagnosed cervical spondylosis and facet arthropathy bilaterally from C7
through T1.
OWCP’s medical adviser reviewed the medical evidence in the record on April 27, 2015
and found that appellant had no more than five percent impairment of the right arm based on
right C7 spinal nerve root impairment previously received. He found that appellant had
submitted no evidence of additional impairment of the right upper extremity.
In a letter dated May 11, 2015, OWCP informed appellant of the findings of OWCP’s
medical adviser and allowed her 30 days to submit additional medical evidence supporting more
than five percent impairment of her right upper extremity.
Appellant submitted additional notes from Dr. Winkelmann dated April 7 and May 7,
2015 noting that she had no significant new problems. On June 4, 2015 Dr. Winkelmann found
right-sided upper trapezius pain and numbness in the right upper extremity. He recommended
additional physical therapy. Appellant was involved in a motor vehicle accident in July 2015.
Dr. Winkelmann reported exacerbation of cervical spine and upper trapezius pain.

4

Order Remanding Case, Docket No. 14-1679 (issued March 10, 2015).

3

By decision dated August 3, 2015, OWCP denied appellant’s claim for an additional
schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.7
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.8 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back or spine,9 no claimant is
entitled to such an award.10
Amendments to FECA, however, modified the schedule award provisions to provide for
an award for permanent impairment to a member of the body covered by the schedule regardless
of whether the cause of the impairment originated in a scheduled or nonscheduled member. As
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to a limb even though the cause of the impairment
originated in the spine.11
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as
federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine,
the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
8

W.D., Docket No. 10-274 (issued September 3, 2010); William Edwin Muir, 27 ECAB 579 (1976).

9

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

10

W.D., supra note 8. Timothy J. McGuire, 34 ECAB 189 (1982).

11

W.D., supra note 8. Rozella L. Skinner, 37 ECAB 398 (1986).

4

sixth edition methodology.12 OWCP has adopted this approach for rating impairment of the
upper or lower extremities caused by a spinal injury, as provided in section 3-700 of its
procedures.13 Specifically, OWCP will address lower extremity impairments originating in the
spine through Table 16-1114 and upper extremity impairment originating in the spine through
Table 15-14.15
ANALYSIS
The Board finds that appellant has not submitted medical evidence of more than five
percent permanent impairment of her right upper extremity for which she has already received a
schedule award.
OWCP granted appellant a schedule award for five percent permanent impairment of her
right upper extremity due to C7 nerve root impairment on January 28, 2013. Appellant requested
reconsideration and alleged that she experienced additional impairment of her right upper
extremity due to her accepted cervical conditions. In support of her claim for an additional
schedule award, she submitted electrodiagnostic studies as well as notes from Drs. Winkelmann
and Laseter.
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish an increased impairment due to her accepted employment injuries. While appellant
submitted medical evidence regarding her continuing medical conditions, none of the medical
evidence submitted provided findings correlated with the appropriate provisions of the A.M.A.,
Guides addressing her permanent impairment. Neither Dr. Winkelmann nor Dr. Laseter
addressed appellant’s permanent impairment for schedule award purposes. Furthermore, the
electrodiagnostic studies were read as normal, findings which did not support permanent
impairment. OWCP’s medical adviser reviewed this evidence and found that appellant had no
more than five percent impairment of the right upper extremity.
As appellant did not submit medical evidence supporting a worsening of her accepted
conditions resulting in more than five percent impairment of her right upper extremity, she has
not met her burden of proof to establish entitlement to an additional or increased schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5c(3) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4,
(January 2010).
13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibits 1, 4,
(January 2010).
14

A.M.A., Guides 533, Table 16-11.

15

Id. at 425, Table 15-14.

5

CONCLUSION
The Board finds that appellant has no more than five percent permanent impairment of
her right upper extremity for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 3, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2016
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 17-0083
Issued: March 21, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 17, 2016 appellant filed a timely appeal from a June 9, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision was a Board decision dated April 16, 2015, which became final after 30 days of
issuance and is not subject to further review.1 Pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c), and 501.3, the Board lacks jurisdiction to review the
merits of appellant’s claim.3

1

20 C.F.R. § 501.6(d); see R.M. Docket No. 14-1213 (issued October 15, 2014).

2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted evidence with his appeal to the Board. The Board’s jurisdiction is
limited to a review of the evidence of record that was before OWCP at the time it issued its final decision. Thus, the
Board is precluded from reviewing this evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1); P.W., Docket
No. 12-1262 (issued December 5, 2012).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
On appeal appellant asserts that he continues to have permanent restrictions due to the
accepted lumbar sprain.
FACTUAL HISTORY
This case has previously been before the Board. The facts relevant to the present appeal
are set forth below.
On April 20, 2010 appellant, then a 53-year-old letter carrier, injured his lower back
while lifting a tub of mail. OWCP accepted that appellant sustained a lumbar sprain. Appellant
received continuation of pay and wage-loss compensation based on Form CA-7 claims. The
employing establishment informed OWCP that appellant returned to work on October 4, 2010,
worked two days, and was sent home under the National Reassessment Process because no
limited duty was available. He continued to receive wage-loss compensation through
November 19, 2010.
In reports dated November 30, 2010, Dr. J. Todd Smith, an attending Board-certified
orthopedic surgeon, described examination findings and advised that appellant could return to
full duty and had no impairment with regard to the April 20, 2010 work injury. On
December 21, 2010 Dr. David J. Aarons, an attending internist, noted that he agreed with the
interpretation provided by Dr. Smith with regard to appellant’s condition.
Appellant returned to regular duty on December 11, 2010 and worked one full day. He
then applied for Social Security Administration (SSA) disability income benefits, and also
requested wage-loss compensation with OWCP. In a February 23, 2011 decision, OWCP found
that the weight of the medical evidence rested with the opinion of Dr. Smith and terminated
appellant’s wage-loss compensation and medical benefits, effective February 24, 2011. After
appellant requested a review of the written record by an OWCP hearing representative, appellant
noted that SSA disability had been approved and asserted that he continued to have work
restrictions. On June 16, 2011 an OWCP hearing representative affirmed the February 23, 2011
decision terminating appellant’s wage-loss compensation and medical benefits. Appellant filed
an appeal with the Board, and, in an order dated May 9, 2012, the Board remanded the case to
OWCP to combine File Nos. xxxxxx616 and xxxxxx952.4 OWCP thereafter doubled the case
files.
By decision dated September 12, 2012, OWCP again found the weight of the medical
evidence rested with Dr. Smith and terminated appellant’s wage-loss compensation and medical
benefits, effective August 22, 2012. On October 5, 2012 appellant requested a hearing. He
submitted additional medical evidence including a January 14, 2013 treatment note in which
Dr. Aarons indicated that appellant’s diagnoses included multilevel degenerative disc disease.
4

See Order Remanding Case, Docket No. 11-2031 (issued May 9, 2012).

2

By decision dated May 7, 2013, an OWCP hearing representative found that the medical
evidence established that the lumbar sprain of April 20, 2010 had resolved and appellant had
returned to baseline with regard to the preexisting degenerative disc disease. She affirmed the
September 12, 2012 decision.
On February 4, 2014 appellant requested reconsideration and submitted additional reports
from Dr. Aarons. In April 30 and July 5, 2013 reports, Dr. Aarons indicated that appellant had
severe multilevel degenerative disc disease with severe foraminal stenosis at L5-S1 that would
not improve. He opined that appellant’s inability to work as a letter carrier was “directly due to
[her] lumbar spine injury which I believe was incurred while working for the [employing
establishment].” Dr. Aarons advised that appellant had permanent restrictions due to this injury
of no lifting more than 10 pounds, no stooping, bending, twisting, or reaching over his head.
Driving and sitting were limited to less than one hour.
In a March 17, 2014 merit decision, OWCP found that Dr. Aarons did not explain how
the April 20, 2010 employment injury caused or aggravated the diagnosed multilevel
degenerative disc disease and that he failed to provide medical rationale to support that appellant
continued to have disability or residuals due to the April 20, 2010 employment injury. In its
April 16, 2015 decision, the Board affirmed the March 17, 2014 OWCP decision.5
In correspondence received on April 20, 2016 appellant, through counsel, requested
reconsideration.6 He asserted that the medical evidence, including reports from Dr. Aarons and
an April 2016 magnetic resonance imaging (MRI) scan of the lumbar spine established that
appellant continued to be disabled due to the employment injury.
Subsequent to the March 17, 2014 OWCP merit decision, appellant submitted reports
dated March 9 through August 9, 2015 from doctors at Teamwork Ready Birmingham Clinics.
In a March 9, 2015 report, Dr. Kathleen Warner, a Board-certified internist, noted appellant’s
report of his job duties, the work injury, and his medical care. She noted appellant’s complaint
of constant radiating low back pain and described examination findings of tenderness in the
lumbosacral spine with decreased range of motion. Dr. Warner diagnosed lumbar disc disease
and lumbosacral sprain. She opined that appellant’s traumatic injury, when he had to lift 150
pounds, had been mishandled by OWCP. Dr. Warner recommended a lumbar MRI scan and
physical therapy. On April 9, 2015 she noted that appellant was progressing well with physical
therapy, but appeared somewhat impaired that day, likely due to overmedication with narcotics.
On May 28, 2015 appellant was evaluated by Dr. Thomas Crumbley, a chiropractor, who
noted his complaint of constant low back pain. Dr. Crumbley diagnosed lumbar sprain and
recommended a functional capacity evaluation.
In treatment notes dated June 30, July 27, and August 4, 2015 Dr. Rhett Krone, Boardcertified in emergency medicine, noted a history of chronic back pain. Examination of the back

5

Docket No. 14-1407 (issued April 16, 2015).

6

At that time appellant was represented by Robert H. Turner, Jr., Esquire.

3

demonstrated that appellant was generally nontender, had some restricted motion, and an antalgic
gait.
A February 22, 2016 MRI scan of the lumbar spine demonstrated normal alignment, no
evidence of an acute fracture or dislocation, and mild multilevel discogenic degenerative changes
with moderate discogenic degenerative disease at the L5-S1 level.
By decision dated June 9, 2016, OWCP denied appellant’s reconsideration request,
finding that the request was untimely filed and failed to demonstrate clear evidence of error in
OWCP’s last merit decision.
LEGAL PRECEDENT
Section 8128(a) of FECA7 does not entitle a claimant to a review of an OWCP decision
as a matter of right.8 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.9 OWCP, through regulations has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is
timely. In order to be timely, a request for reconsideration must be received by OWCP within
one year of the date of the last merit decision for which review is sought. Timeliness is
determined by the document receipt date of the reconsideration request (the “received date”) in
the Integrated Federal Employees’ Compensation System (iFECS).10 The Board has found that
the imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted OWCP under 5 U.S.C. § 8128(a).11
In those cases where requests for reconsideration are untimely filed, the Board has held
that OWCP must nevertheless undertake a limited review of the case to determine whether there
is clear evidence of error pursuant to the untimely request.12 OWCP procedures provide that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in OWCP regulations, if the claimant’s request for reconsideration demonstrates “clear
evidence of error” on the part of OWCP.13
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and
must be manifest on its face that OWCP committed an error. Evidence which does not raise a
7

5 U.S.C. § 8128(a).

8

Thankamma Mathews, 44 ECAB 765 (1993).

9

Id.

10

20 C.F.R. § 10.607; G.F., Docket No. 15-1053 (issued September 11, 2015).

11

Supra note 7.

12

Id.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (February 2016).

4

substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error. It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion. This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.14 The
evidence submitted must not only be of sufficient probative value to create a conflict in medical
opinion or establish a clear procedural error, but must be of sufficient probative value to shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.15 The Board must make an independent determination of
whether a claimant has submitted clear evidence of error on the part of OWCP such that OWCP
abused its discretion in denying merit review in the face of such evidence.16
ANALYSIS
In a request received by OWCP on April 20, 2016 appellant, through counsel, requested
reconsideration regarding his low back condition. The Board finds that as more than one year
has elapsed between the most recent merit decision on this issue, dated April 16, 2015 decision,
and appellant’s request for reconsideration received by OWCP on April 20, 2016, his request for
reconsideration was untimely filed.17
The Board also finds that appellant failed to demonstrate clear evidence of error.
In its April 16, 2015 decision, the Board found that OWCP met its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits effective August 22, 2012
because he had no residuals of the accepted lumbar sprain. The Board further found that he did
not establish that he had any continuing employment-related disability or condition after that
date causally related to the April 20, 2010 employment injury. It affirmed a March 17, 2014
merit decision of OWCP.18 Absent further merit review of this issue by OWCP pursuant to
section 8128 of FECA, this issue is res judicata.19
The term “clear evidence of error” is intended to represent a difficult standard, and the
argument provided here is not the type of positive, precise, and explicit evidence which
14

Robert G. Burns, 57 ECAB 657 (2006).

15

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

16

Nancy Marcano, 50 ECAB 110 (1998).

17

See supra note 13 at Chapter 2.1602.4a (February 2016), which provides that a right to reconsideration within
one year accompanies any subsequent merit decision, including any merit decision by the Board. The Board notes
that one year from the April 16, 2015 Board decision would be Saturday, April 16, 2016; therefore, the
reconsideration request would have been timely if it had been received on Monday, April 18, 2016. It was not
received until Wednesday, April 20, 2016.
18

Supra note 4.

19

See T.B., Docket No. 15-0001 (issued July 1, 2015). A decision of the Board is final upon the expiration of 30
days from the date of the decision. 20 C.F.R. § 501.6(d).

5

manifested on its face that OWCP committed an error.20 With the April 20, 2016 reconsideration
request, counsel maintained that the medical evidence, including reports from Dr. Aarons and an
April 2016 MRI scan of the lumbar spine, established continued disability from the employment
injury. All reports of record submitted by Dr. Aarons had been reviewed by the Board in its
April 16, 2015 decision. Appellant did not explain how resubmission of this evidence was
positive, precise, and explicit in manifesting on its face that OWCP committed an error in
denying his claim for further benefits.21
As to the medical evidence submitted subsequent to the March 17, 2014 OWCP decision,
while Dr. Warner opined that appellant’s case had been mishandled, she merely related
appellant’s description of his job duties and medical treatment. Dr. Krone merely noted
examination findings and diagnosed chronic back pain. He did not relate his findings to
appellant’s employment or the April 20, 2010 work injury.22
As a chiropractor, Dr. Crumbley’s report is of no probative value because he did not
diagnose a subluxation from x-ray, and, therefore, is not considered a “physician” under FECA.23
The February 22, 2016 MRI scan report is of limited probative value as it contains no
opinion on causal relationship24
As noted, evidence which does not raise a substantial question concerning the correctness
of OWCP’s decision is insufficient to establish clear evidence of error.25 It is not enough merely
to show that the evidence could be construed so as to produce a contrary conclusion.26 The
Board finds that the evidence and argument submitted by appellant does not demonstrate clear
evidence of error on the part of OWCP.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and failed
to demonstrate clear evidence of error.

20

Supra note 14.

21

See S.E., Docket No. 16-1258 (issued December 5, 2016).

22

Willie M. Miller, 53 ECAB 697 (2002) (medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship).
23

A.O., Docket No. 08-580 (issued January 28, 2009). Under section 8101(2) of FECA, the term “physician”
includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of
manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation
by the Secretary. 5 U.S.C. § 8101(2); see D.S., Docket No. 09-860 (issued November 2, 2009).
24

See id.

25

See supra note 13; Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

26

See supra note 13; Leona N. Travis, 43 ECAB 227 (1991).

6

ORDER
IT IS HEREBY ORDERED THAT the June 9, 2016 decision of the Office of Workers’
Compensation is affirmed.
Issued: March 21, 2017
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
S.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clarksville, AR, Employer
__________________________________________

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

Docket No. 16-1277
Issued: November 1, 2016

Case Submitted on the Record

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

JURISDICTION
On June 3, 2016 appellant, through counsel, filed a timely appeal from a May 13, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has herniated
lumbar discs at L4-5 and L5-S1 causally related to a January 4, 2012 employment injury.
1

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

5 U.S.C. § 8101 et seq.

On appeal counsel asserts that the June 4, 2015 decision was contrary to law and fact.
FACTUAL HISTORY
This case has previously been before the Board. In a March 25, 2014 decision, the Board
affirmed an August 7, 2013 OWCP decision, finding that appellant did not establish that the
conditions of disc protrusion at L5-S1 and a bulging disc at L4-5 were caused or aggravated by
the January 4, 2012 employment injury.3
On March 6, 2015 appellant, through counsel, requested reconsideration and submitted a
January 7, 2015 report in which Dr. Kevin J. Collins, a Board-certified physiatrist, noted a
history that appellant injured his back while lifting parcels at work in 2011, that magnetic
resonance imaging (MRI) scans demonstrated disc bulges and protrusions, and that appellant had
lumbar spine surgery. Dr. Collins reported that a recent MRI scan demonstrated enhancing scar
tissue and a new herniation above the level of previous surgery. He described appellant’s
complaint of constant, severe radiating low back pain, and indicated that appellant had not
worked since January 2012. Dr. Collins described physical examination findings and diagnosed
failed low back syndrome with ongoing severe, unbearable low back pain. He advised that
appellant could not work due to a combination of chronic pain combined with large doses of pain
medication.
In a June 4, 2015 decision, OWCP denied appellant’s March 6, 2015 reconsideration
request, finding that the evidence submitted was cumulative and similar to evidence previously
of record, and it was, therefore, insufficient to warrant merit review. Appellant appealed to the
Board. In an April 6, 2016 decision, the Board found that Dr. Collins’ January 7, 2015 report,
which had not previously been reviewed by OWCP, constituted relevant and pertinent new
evidence in regard to the matter of whether appellant established that herniated lumbar discs at
L4-5 and L5-S1 were causally related to a January 4, 2012 employment injury. The Board set
aside the June 4, 2015 decision and remanded the case for OWCP to consider whether
Dr. Collins’ January 7, 2015 report was sufficient to require further development, to be followed
by an appropriate de novo decision.4 The facts and circumstances set forth in the prior Board
decisions are incorporated herein by reference.
On remand, OWCP reviewed the merits of the claim. In a May 13, 2016 decision, it
denied modification of the March 25, 2014 decision.5 It found that Dr. Collins’ January 7, 2015
3

Docket No. 14-48 (issued March 25, 2014). On January 9, 2012 appellant, then a 33-year-old city carrier filed a
traumatic injury claim alleging that on January 4, 2012 he injured his low back when he tripped on the third step
while delivering mail. He stopped work that day. Following an initial May 24, 2012 denial, on December 14, 2012
an OWCP hearing representative accepted that on January 4, 2012 appellant sustained a lumbosacral strain. The
hearing representative further found that appellant did not establish any further lumbar conditions, for which he had
surgery on July 25, 2012. Appellant requested reconsideration. In a merit decision dated August 7, 2013, OWCP
denied modification of the prior decision, finding that the medical evidence submitted was insufficient to establish
that disc bulges and protrusions at L4-5 and L5-S1 were causally related to the January 4, 2012 employment injury.
4

Docket No. 16-0245 (issued April 8, 2016).

5

The Board notes that the March 25, 2014 decision was a Board decision. OWCP is not authorized to review
Board decisions. Although the March 25, 2014 Board decision was the last merit decision, OWCP’s August 7, 2013
decision is the appropriate subject of possible modification by OWCP.

2

report was insufficient to establish causal relationship between the January 4, 2012 employment
injury and appellant’s current lumbar condition.
LEGAL PRECEDENT
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.7 Neither the mere fact that a disease or condition manifests itself during a period
of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.8
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that his
current low back condition was caused by the accepted lumbosacral strain that occurred on
January 4, 2012.
In its March 25, 2014 decision, the Board reviewed all evidence submitted following
OWCP’s August 7, 2013 decision on the merits of appellant’s claim. The only medical evidence
submitted subsequent to the August 7, 2013 merit decision was the January 7, 2015 report from
Dr. Collins, described above. The Board finds that this report contains insufficient rationale to
establish that the January 4, 2012 incident, described on the claim form as tripping on the third
step while delivering mail, caused or contributed to an additional low back condition.9
In his January 7, 2015 report, Dr. Collins indicated that the precipitating event for
appellant’s current lumbar condition was a 2011 incident that occurred while lifting parcels at
work. The Board has long held that medical opinions based on an incomplete or inaccurate
history are of diminished probative value.10 Dr. Collins also referenced a June 25, 2014 MRI
scan which is not found in the case record. Nonetheless, he advised that the MRI scan findings
were related to the 2011 incident and does not reference a January 4, 2012 tripping incident as
the cause of any diagnosed lumbosacral condition.
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to his
federal employment and such relationship must be supported with affirmative evidence,
6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

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

8

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

9

Supra note 3.

10

James R. Taylor, 56 ECAB 537 (2005).

3

explained by medical rationale, and based upon a complete and accurate medical and factual
background of the claimant.11 It is appellant’s burden to establish that his claimed back
condition is causally related to the work injury. In this case he submitted insufficient evidence to
show that the diagnosed conditions at L4-5 and L5-S1 were caused by the January 4, 2012
employment injury.12
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 did not meet his burden of proof to establish that he has
herniated lumbar discs at L4-5 and L5-S1 causally related to a January 4, 2012 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the May 13, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2016
Washington, DC

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

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

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

11

A.D., 58 ECAB 149 (2006).

12

Supra note 7.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, MERCHANDISE
MART POST OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 21-0060
Issued: March 17, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 13, 2020 appellant filed a timely appeal from a May 27, 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 greater than 23
percent permanent impairment of the right lower extremity or greater than 16 percent permanent

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 27, 2020 decision, appellant submitted additional evidence to OWCP.
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.

impairment of the left lower extremity for which she previously received schedule award
compensation.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances of the case
as set forth in the Board’s prior decisions and order are incorporated herein by reference. The
relevant facts are as follows.
On December 28, 1998 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 26, 1998 she sustained a right knee injury when she
slipped and fell to the floor while in the performance of duty. OWCP assigned the claim OWCP
File No. xxxxxx040 and accepted it for right knee contusion, right knee strain, and right knee
chondromalacia.
Appellant had previously filed a traumatic injury claim (Form CA-1) on January 15, 1992
that was accepted by OWCP for bilateral frostbite of the feet and bilateral plantar fibromatosis.4
OWCP assigned OWCP File No. xxxxxx102 to the claim. It later expanded acceptance of that claim
to include the additional conditions of bilateral tarsal tunnel syndrome and bilateral lesion of the
plantar nerve as work related.
By decision dated May 30, 2013, under OWCP File No. xxxxxx102, OWCP granted
appellant 16 percent permanent impairment of the left lower extremity and 23 percent permanent
impairment of the right lower extremity under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5
On December 5, 2013, under OWCP File No. xxxxxx102, OWCP referred appellant for a
second opinion examination and impairment rating with Dr. Allan Brecher, a Board-certified
orthopedic surgeon. In a January 20, 2014 report, Dr. Brecher reported the findings of his
January 14, 2014 examination. He referred to the sixth edition of the A.M.A., Guides and noted
that for the right knee, appellant’s chondromalacia warranted a of Class 1 based under Table 16-3
(Knee Regional Grid), page 511, the class of diagnosis (CDX) the right knee chondromalacia
resulted in a Class 1 impairment with a default value of seven.6 Dr. Brecher assigned a grade
modifier for functional history (GMFH) of 2, a grade modifier for physical examination (GMPE)
of 1, and a grade modifier for clinical studies (GMCS) of 2. He utilized the net adjustment formula,
3

Docket No. 14-1689 (issued July 2, 2015); Docket No. 16-1826 (issued May 15, 2017); Order Remanding Case,
Docket No. 19-0525 (issued March 20, 2020).
4

Appellant also has a prior claim for a traumatic injury on April 12, 1985, which was accepted by OWCP under
OWCP File No. xxxxxx224 for lumbosacral strain.
5
A.M.A., Guides (6 th ed. 2009). OWCP indicated that it had previously awarded appellant schedule awards for a
total of 20 percent permanent impairment of the right lower extremity and 13 percent permanent impairment of the
left lower extremity. Therefore, the May 30, 2013 award granted an additional award of six percent permanent
impairment of the right lower extremity a nd three percent permanent impairment of the left lower extremity.
6

Dr. Brecher indicated that appellant had reached maximum medical improvement (MMI) by the time of his
January 14, 2014 examination.

2

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (2 - 1) + (1 - 1) + (2 - 1) = 2, which resulted
in a grade D or eight percent permanent impairment of the right lower extremity. As for appellant’s
right plantar fibromatosis, Dr. Brecher referenced Table 16-2 (Foot and Ankle Regional Grid),
page 501, and found the CDX resulted in a Class 1 with a default value of one. He assigned a
GMFH of 2, GMPE of 2, and GMCS of 1. Dr. Brecher utilized the net adjustment formula,
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (2 - 1) + (2 - 1) + (1 - 1) = 2, which resulted
in a grade D or two percent permanent impairment of the right lower extremity. He added the 8
percent and 2 percent values to yield a rating of 10 percent permanent impairment for the right
lower extremity. Dr. Brecher indicated that, for the left lower extremity, left plantar fibromatosis
was accepted, but a left knee condition was not accepted. Therefore, using the same criteria as the
right side, he determined that appellant would have two percent permanent impairment of the left
lower extremity due to plantar fibromatosis.
OWCP then referred OWCP File No. xxxxxx102 to Dr. Cristopher Gross, a Board-certified
orthopedic surgeon serving as an OWCP district medical adviser (DMA). In a February 24, 2014
report and a March 17, 2014 supplemental report, Dr. Gross concurred with the impairment rating
of Dr. Brecher. He found that appellant had 10 percent permanent impairment of the right lower
extremity comprised of 8 percent permanent impairment due to right knee deficits and 2 percent
permanent impairment due to plantar fibromatosis. Dr. Gross also found that appellant had two
percent permanent impairment of the left lower extremity due to plantar fibromatosis.
By decision dated April 7, 2014, under OWCP File No. xxxxxx102, OWCP denied
modification of the May 30, 2013 decision, finding that appellant had not established greater than
16 percent permanent impairment of the left lower extremity and 23 percent permanent impairment
of the right lower extremity.
Appellant appealed the April 7, 2014 decision to the Board and, by decision dated July 2,
2015,7 under OWCP File No. xxxxxx102, the Board set aside the April 7, 2014 decision and remanded the
case to OWCP for further development of the medical evidence.
During the pendency of the Board appeal, under OWCP File No. xxxxxx102, OWCP again
referred the case to Dr. Gross, serving in his role as a DMA. In a May 3, 2014 report, Dr. Gross
again found that appellant had a total of 10 percent permanent impairment of the right lower
extremity, comprised of 8 percent permanent impairment due to right knee deficits and 2 percent
permanent impairment due to plantar fibromatosis. He also found that appellant had two percent
permanent impairment of the left lower extremity due to plantar fibromatosis. With respect to
impairment of the right lower extremity due to right knee arthritis, Dr. Gross explained that
appellant’s right knee arthritis warranted eight percent permanent impairment of the right lower
extremity due to three millimeters of cartilage interval (CDX of Class 1) when utilizing Table 163, page 511, of the sixth edition of the A.M.A., Guides. He assigned a GMFH of 2 because she
used a cane and assigned a GMPE of 1 due to normal range of motion (ROM) of the right knee
and minimal tenderness on palpation. Dr. Gross noted that a GMCS was not applicable because
clinical studies were used in the determination of the diagnosis. He indicated that, utilizing the net
adjustment formula, (GMFH - CDX) + (GMPE - CDX) = (2-1) + (1-1) = +1, corresponded to
7

Supra note 3.

3

grade D under Class 1 on Table 16-3 and warranted eight percent permanent impairment of the
right lower extremity due to right knee deficits. Dr. Gross further found that, utilizing Table 162, appellant had two percent permanent impairment of each lower extremity due to her bilateral
plantar fibromatosis.
OWCP, under OWCP File No. xxxxxx102, then referred appellant for a second opinion
examination and evaluation with Dr. James Elmes, a Board-certified orthopedic surgeon. In a
March 24, 2016 report, Dr. Elmes considered the impairment caused by appellant’s bilateral
plantar fibromatosis and referred to the sixth edition of the A.M.A., Guides, utilizing Table 16-2,
page 501, he noted a CDX of Class 1 for bilateral plantar fibromatosis with a default value of one
percent. He assigned a GMFH of 2, noting that she used a cane and limped. Dr. Elmes assigned
a GMPE of 2 noting moderate palpable findings and tenderness with normal ROM. He indicated
that the GMCS was not applicable. Dr. Elmes utilized the net adjustment formula, (GMFH - CDX)
+ (GMPE - CDX) = (2-1) + (2-1) = +2, which resulted in a grade D or two percent permanent
impairment of each lower extremity.
With regard to the right knee, Dr. Elmes noted that, according to Table 16-3, page 511,
appellant’s three-millimeter cartilage interval related to primary knee joint arthritis resulted in a
CDX of Class 1 with a default value of seven. He assigned a GMFH of 2 because appellant was
known to utilize a cane and assigned a GMPE of 1 due to normal ROM with minimal tenderness
on palpation. Dr. Elmes noted that a GMCS was not applicable. He utilized the net adjustment
formula, (GMFH - CDX) + (GMPE - CDX) = (2-1) + (1-1) = +1, which resulted in a grade D or
eight percent permanent impairment of the right lower extremity. Dr. Elmes noted that, when this
8 percent value was added to the above-described 2 percent impairment due to plantar
fibromatosis, appellant had 10 percent permanent impairment of the right lower extremity. As
noted above, he determined that appellant’s left lower extremity permanent impairment was two
percent.
OWCP, under OWCP File No. xxxxxx102, then referred the case to Dr. Michael M. Katz,
a Board-certified orthopedic surgeon serving as DMA. On April 29, 2016 Dr. Katz reviewed
Dr. Elmes’ calculations and concluded that he correctly determined impairment. However, he
noted that appellant’s right knee conditions were accepted under a different claim and, therefore,
Dr. Elmes’ determination of eight percent permanent impairment for the right lower extremity
pertaining to the right knee should not be considered. By decision dated May 13, 2016, OWCP
found that appellant had not established greater than 16 percent permanent impairment of her left
lower extremity and 23 percent permanent impairment of her right lower extremity for which she
previously received schedule awards. Appellant appealed to the Board and, by decision dated
May 15, 2017, the Board affirmed OWCP’s May 13, 2016 decision.8
On April 30, 2018, under the present claim, OWCP File No. xxxxxx040, appellant filed a
claim for compensation (Form CA-7) for an increased schedule award. She submitted medical
reports dated January 15, 2016 through September 8, 2017 regarding her accepted right knee
condition(s).

8

Id.

4

On June 12, 20218 OWCP administratively combined the present claim, OWCP File No.
xxxxxx040, with OWCP File No. xxxxxx102, with the latter file designated the master file.9
On June 12, 2018 OWCP referred the combined case file, including a May 20, 2014
statement of accepted facts (SOAF), to Dr. Katz, serving as a DMA, to determine if appellant
was entitled to additional impairment of the right knee. It indicated that the relevant case files
had been administratively combined.
In a June 13, 2018 report, Dr. Katz noted that he previously had not recommended payment
of a schedule award for right knee impairment in his April 29, 2016 report regarding OWCP File
No. xxxxxx102 as he was not then aware that the case files were combined. He reported that, based
on his current review, if prior awards paid for the right lower extremity included eight percent
permanent impairment based on the conditions of the right knee, then there would be no
additional award. Dr. Katz reported that a schedule award for 10 percent permanent impairment
of the right lower extremity due to a right knee condition had been recommended in a medical
report dated October 4, 2002, under OWCP File No. xxxxxx040, and so it would be reasonable to
assume that at some point appellant was paid at least 8 percent permanent impairment for her right
knee condition. As such, he determined that appellant would be entitled to no further award for
impairment of the right knee.
On August 20, 2018 OWCP requested an addendum report from Dr. Katz as to whether
appellant had additional permanent impairment of the right lower extremity. It noted that he should
review the SOAF dated May 20, 2014. OWCP noted again that appellant had received schedule
award compensation for 23 percent permanent impairment of the right lower extremity. It
instructed Dr. Katz that, in providing a rating of appellant’s current permanent impairment of the
right knee, he should stipulate whether the rating was included in the prior percentage awarded or
if there should be consideration of an additional award.
In an August 31, 2018 report, Dr. Katz related that, while medical evidence had been
received in OWCP File No. xxxxxx102 regarding appellant’s right knee permanent impairment
and an eight percent permanent impairment rating had been proposed, he had not recommended
acceptance of the proposed impairment rating in his April 29, 2016 report as the claims had not
been administratively combined. He concluded, however, that based on OWCP’s August 20,
2018 memorandum, it appeared that all prior recommended awards had been paid and, thus, the
prior awards paid with respect to the conditions of the right knee exceeded the present
impairment of eight percent permanent impairment of the right lower extremity.
By decision dated September 6, 2018, OWCP denied appellant’s claim for an increased
schedule award under OWCP File No. xxxxxx040, finding that she had no greater impairment of
the right lower extremity than the 23 percent previously awarded.
Appellant appealed to the Board and, by order dated March 20, 2020,10 the Board set aside
OWCP’s September 6, 2018 decision and remanded the case for further development. The Board
9

It is noted that OWCP File No. xxxxxx102 had previously been combined with OWCP File No. xxxxxx224.

10

Supra note 3.

5

found that the SOAF provided to Dr. Katz was inaccurate, as it did not list the schedule awards
appellant had previously received for her lower extremities and did not clarify whether the
awards were paid for permanent impairment caused by appellant’s right knee condition or for
permanent impairment caused by conditions of other regions of appellant’s right lower
extremity. The Board directed OWCP to prepare a complete and accurate SOAF and request that
Dr. Katz submit a clarifying report regarding appellant’s right lower extremity permanent
impairment. Following this and any further development deemed necessary, OWCP was to issue
a de novo decision.
On remand OWCP referred the case record to Dr. Katz, in his capacity as a DMA, and
provided him with an updated SOAF dated May 14, 2020, which referenced appellant’s combined
claims for the lower extremities and noted only, that appellant had received schedule awards for
23 percent permanent of the right lower extremity and 16 percent permanent of the left lower
extremity.
In a May 20, 2020 report, Dr. Katz indicated that he reviewed the submitted records
including the May 3, 2014 report of Dr. Gross and the updated SOAF of May 14, 2020. He noted
that on May 3, 2014 Dr. Gross reviewed the impairment evaluation of Dr. Brecher, dated
January 20, 2014, in which Dr. Brecher determined eight percent permanent impairment of the
right lower extremity on the basis of a CDX due to impairment under the key factor of primary
knee arthritis resulting in a Class 1 impairment, grade D. Dr. Katz advised that Dr. Gross
concurred with Dr. Brecher’s rating and recommended the same level of impairment, i.e., 10
percent permanent impairment of the right lower extremity (knee and foot) and 2 percent
permanent impairment of the left lower extremity (foot). He advised that Dr. Gross reviewed prior
records in arriving at his conclusions and appeared to have done so correctly. Dr. Katz noted that
the case record, including the updated SOAF, demonstrated that at least 10 percent of the
permanent impairment awarded for each extremity stemmed from foot impairment. He indicated
that it appeared that, given the prior “overlapping award” of 23 percent for the right lower
extremity, there would be no net additional award due for the right lower extremity on the basis of
Dr. Gross’ May 3, 2014 assessment, since his recommended impairment of 8 (constancy within
the same sentence) percent for the right lower extremity “does not exceed the prior overlapping
award.” Dr. Katz noted, likewise, his recommendation of 2 percent permanent impairment for the
left lower extremity does not exceed the prior overlapping award of 16 percent permanent
impairment for the left lower extremity. Therefore, he found there is no net additional award now
due for the left lower extremity based on his recommendation of May 13, 2014.
By decision dated May 27, 2020, OWCP determined that appellant had not met her burden
of proof to establish greater than 23 percent permanent of the right lower extremity or greater than
16 percent permanent of the left lower extremity for which she previously received schedule award
compensation.

6

LEGAL PRECEDENT
The schedule award provisions of FECA 11 and its implementing federal regulations 12 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall b e determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants and the Board has
concurred in such adoption.13 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used
to calculate schedule awards. 14
ANALYSIS
The Board finds that this case is not in posture for decision.
On remand from the Board’s March 20, 2020 order, OWCP provided Dr. Katz with a
May 14, 2020 SOAF, which briefly discussed appellant’s combined claims for the lower
extremities and noted, without elaboration, that appellant had received schedule awards for 23
percent permanent of the right lower extremity and 16 percent permanent of the left lower
extremity. The May 14, 2020 SOAF did not identify each individual schedule award that appellant
received, nor did it explain what portions of each schedule award represented impairment caused
by deficits in different areas of the lower extremities (e.g., knee deficits versus foot deficits).
It is OWCP’s responsibility to provide a complete and proper frame of reference for a
physician by preparing a SOAF. 15 OWCP’s procedures dictate that when a DMA, second opinion
specialist, or referee physician renders a medical opinion based on a SOAF, which is incomplete
or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the
probative value of the opinion is seriously diminished or negated altogether. 16 OWCP did not
provide Dr. Katz with a complete SOAF as it did not list the previous individual schedule awards
appellant had received for her lower extremities and did not clarify whether the awards were paid
for permanent impairment of appellant’s right knee or for permanent impairment of other areas of
appellant’s lower extremities. Thus, the Board finds that the May 27, 2020 report produced by

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

Id.; see V.J., Docket No. 1789 (issued April 8, 2020); Jacqueline S. Harris, 54 ECAB 139 (2002).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
15

J.N., Docket No. 19-0215 (issued July 15, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

16

R.W., Docket No. 19-1109 (issued January 2, 2020); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Requirements for Medical Reports, Chapter 3.600.3 (October 1990).

7

Dr. Katz was not based on an accurate factual framework and cannot represent the weight of the
medical evidence sufﬁcient to deny appellant’s claim for an additional schedule award.17
Once OWCP undertakes to develop the medical evidence, it has the responsibility to do so
in a manner that will resolve the relevant issues in the case. 18 Accordingly, the Board finds that
the case must be remanded to OWCP. On remand OWCP shall prepare a complete and accurate
SOAF and request that Dr. Katz, the DMA, submit a clarifying report regarding appellant’s lower
extremity permanent impairment. Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 27, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: March 17, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

17

G.C., Docket No 18-0842 (issued December 20, 2018).

18

D.S., Docket No. 19-0292 (issued June 21, 2019).

8


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

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

Docket No. 14-1292
Issued: December 22, 2014

Case Submitted on the Record

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

JURISDICTION
On May 15, 2014 appellant timely appealed the April 3, 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 the claim.2
ISSUE
The issue is whether appellant received an overpayment of $2,121.88 for the period
November 17 through December 14, 2013.

1
2

5 U.S.C. §§ 8101-8193.

The record on appeal contains evidence received after OWCP issued its April 3, 2014 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP issued its final decision. 20
C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 60-year-old sales, services/distribution associate, injured her neck in the
performance of duty on February 16, 2012.3 OWCP accepted her claim for neck sprain.
Appellant received wage-loss compensation beginning April 5, 2012, and OWCP subsequently
placed her on the periodic compensation rolls.
On November 1, 2013 the employing establishment offered appellant a limited-duty
assignment as a modified sales, services/distribution associate effective November 16, 2013.
According to the offer, appellant was expected to report for duty on Monday,
November 18, 2013.
In an e-mail dated November 19, 2013, the employing establishment advised OWCP that
appellant had not reported for duty on November 18, 2013, as originally scheduled.
Additionally, it encouraged OWCP to terminate her wage-loss compensation and issue a suitable
work determination.
A December 6, 2013 telephone log (Form CA-110) indicated that appellant called OWCP
to advise that she had returned to work on November 16, 2013 in a full-time, limited-duty
capacity.
On December 6, 2013 OWCP issued a preliminary determination that appellant was
overpaid in the amount of $2,121.88 for the period November 17 through December 14, 2013. It
explained that she continued to receive compensation following her November 16, 2013 return to
work. OWCP also found that appellant was at fault in the creation of the overpayment because
she knowingly accepted compensation to which she was not entitled.
Responsibility for payment of appellant’s federal employee health benefits (FEHB) was
transferred back on December 11, 2013 to the employing establishment effective
December 2, 2013.
On December 14, 2013 OWCP disbursed a periodic rolls payment of $2,121.88 covering
the period November 17 through December 14, 2013.
On April 3, 2014 OWCP issued a final overpayment decision consistent with its
December 6, 2013 preliminary findings. Appellant was found at fault for the $2,121.88
overpayment that covered the period November 17 through December 14, 2013.

3

Appellant turned her head to speak to a customer and felt pain in the left side of her neck.

2

LEGAL PRECEDENT
A claimant is not entitled to receive temporary total disability benefits and actual
earnings for the same time period.4 An overpayment of compensation is created when a claimant
returns to work but continues to receive wage-loss compensation.5
ANALYSIS
The Board finds that the case is not in posture for decision. OWCP found that appellant
resumed work on November 16, 2013, and therefore, it declared an overpayment with respect to
all compensation paid for the period November 17 through December 14, 2013. Appellant
claimed not to have returned to work until December 2, 2013. As such, she argued that OWCP’s
finding of a $2,121.88 overpayment was incorrect.
Although Saturday, November 16, 2013 was the effective date of the limited-duty
assignment, appellant was not expected to report for duty until Monday, November 18, 2013, but
according to the employing establishment, she did not report for work on November 18, 2013.
The November 1, 2013 written job offer, as well as the employing establishment’s November 19,
2013 e-mail contradicts OWCP’s finding that appellant returned to work on November 16, 2013.
Also, the December 11, 2013 FEHB enrollment transfer request lends credence to appellant’s
assertion that she did not resume work until December 2, 2013.
Because the record before the Board does not clearly establish when appellant returned to
work, OWCP’s April 3, 2014 overpayment decision shall be set aside, and the case remanded for
further development. On remand, OWCP shall obtain confirmation from the employing
establishment as to when appellant returned to work.6 After it has developed the record to the
extent it deems necessary, a de novo decision shall be issued.
CONCLUSION
The case is not in posture for decision.

4

L.S., 59 ECAB 350, 352-53 (2008).

5

Id.; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2a (May 2004).
6

Appellant has already repaid the $2,121.88 debt in full. If the evidence establishes December 2, 2013 as the
correct date, OWCP should then recalculate the amount of the overpayment and refund the difference to her.

3

ORDER
IT IS HEREBY ORDERED THAT the April 3, 2014 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: December 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4