United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
GENERAL SERVICES ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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Appearances:
William Fenaughty, for the appellant
Office of Solicitor, for the Director

Docket No. 06-1925
Issued: May 18, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 15, 2006 appellant, through her representative, filed a timely appeal from a
July 21, 2006 merit decision of the Office of Workers’ Compensation Programs denying
modification of its finding that she had no employment-related disability after May 24, 1998.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective May 24, 1998 on the grounds that she had no further employment-related disability;
(2) whether the Office properly terminated authorization for medical treatment; and (3) whether
appellant has established that she had continuing disability due to her employment injury after
May 24, 1998.

FACTUAL HISTORY
On July 23, 1993 appellant, then a 54-year-old contract specialist, filed a claim alleging
that on July 20, 1993 she experienced severe low back pain after bending over and removing
labels from new chairs. The Office accepted her claim for a lumbar sprain and lumbar
subluxation. Appellant sustained intermittent total and partial disability from July 23, 1993 to
January 1, 1994, when she stopped work.1 She returned to work for four hours per day three
days per week on November 6, 1995. Appellant stopped work on February 26, 1996 and filed a
recurrence of disability claim on that date due to her July 20, 1993 employment injury. She
subsequently returned to part-time employment.
On June 14, 1996 the Office referred appellant to Dr. Louis Levitt, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a report dated July 9, 1996, Dr. Levitt
reviewed the results of a March 1996 magnetic resonance imaging (MRI) scan study and found
that it showed degenerative changes at L3-4 and L4-5 without evidence of “frank disc herniation,
cord compromise or root impingement.”2 He determined that appellant could perform full-time
sedentary employment without extensive bending or walking and lifting no more than 10 to 15
pounds. Dr. Levitt opined that her pain was “more functional than organic.” He stated, “On the
basis of her examination today, there is little evidence of discreet musculoskeletal pathology that
resulted from the work trauma of July 20, 1993.” Dr. Levitt opined that appellant had “a chronic
pain management problem from back discomfort resulting from the work trauma of
July 20, 1993.”
In a report dated April 22, 1996, Dr. Martin W. Wise, a Board-certified orthopedic
surgeon and appellant’s attending physician, diagnosed continued lumbar and left leg symptoms.
On July 22, 1996 he noted that appellant experienced increased low back pain with radiation
down the left leg and numbness into the foot following an evaluation with Dr. Levitt. In a form
report dated January 6, 1997, Dr. Wise diagnosed lumbar spondylosis and found that appellant
was disabled from employment. In a report dated January 13, 1997, Dr. Constance A. Dale, a
chiropractor, diagnosed disc herniations at L3-4, sacroiliac sprain syndrome and sciatic neuritis.
On December 15, 1997 the Office referred appellant to Dr. Robert Collins, a Boardcertified orthopedic surgeon, for an impartial medical examination. The Office requested that
Dr. Collins address whether appellant sustained disc herniations at L3-4 and L5-S1, sacroiliac
strain syndrome and sciatic neuritis. The Office further requested that he discuss whether the
accepted employment injuries had resolved and appellant’s work restrictions. In a report dated
January 7, 1998, Dr. Collins discussed appellant’s history of injury, reviewed the medical
evidence of record and listed findings on physical examination. He found good range of motion
with no muscle spasm. Dr. Collins further found no loss of sensation or reflex changes in the
1

In a report dated March 8, 1995, Dr. Michael A. Proctor, an orthopedic surgeon and Office referral physician,
diagnosed chronic lumbosacral strain, bulging discs at L4-5 and L5-S1 and radiculopathy of the left lower extremity.
He found that appellant had continuing work restrictions due to her employment injury. Dr. Proctor opined that she
could work four hours per day.
2

A computerized tomography (CT) scan dated December 20, 1993 revealed findings suspicious for a left disc
herniation at L4-5 and a small mild disc herniation at L5-S1. An MRI scan study dated March 1996 showed
narrowing and desiccation at L3-4, L4-5 and L5-S1 but no lateral disc herniation.

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legs. He determined that she had no “extensor hallucis longus weakness.” Dr. Collins found that
MRI scan studies and CT scans did not show a “frank herniated nucleus pulposus with pressure
on a nerve.” He opined, “At the present time there is no sign of any herniated disc or any
neurological problem at this time. There are no objective findings of any residual impairment.”
Dr. Collins asserted that appellant sustained a lumbar strain in 1993 which “was not of any
sufficient magnitude to cause any severe structural damage to the back.” He opined that she
could resume her regular employment without restriction.
On February 3, 1998 the Office requested that Dr. Collins review appellant’s x-rays and
address whether her lumbar subluxation had resolved and whether she had sciatic neuritis or
sacroiliac strain. In a supplemental report dated February 23, 1998, Dr. Collins reviewed the
x-rays and opined that appellant had “no evidence of sciatic neuritis or sacroiliac strain syndrome
or lumbar subluxation.” He opined that she no longer required medical treatment. In a work
restriction evaluation dated February 27, 1998, Dr. Collins opined that appellant could work
eight hours per day with prophylactic restrictions to prevent a recurrence.
By decision dated March 24, 1998, the Office found that appellant did not establish a
recurrence of disability beginning February 26, 1996 due to her accepted employment injury. On
March 24, 1998 the Office also notified her that it proposed to terminate her compensation
benefits on the grounds that she had no further employment-related disability. By decision dated
May 1, 1998, the Office finalized its termination of appellant’s compensation and authorization
for medical benefits.
In a report dated May 29, 1998, Dr. Dale described the history of injury provided by
appellant and listed findings on examination. He noted that a March 6, 1996 MRI scan study
showed narrowing and degenerative changes at L3-4 to L5-S1.
On June 15, 1998
Dr. Guillermo E. Sanchez, an orthopedic surgeon, diagnosed chronic lumbosacral strain and
lumbar radiculopathy at L4-5 due to appellant’s July 20, 1993 employment injury.
Appellant requested a review of the written record. By decision dated August 19, 1998,
an Office hearing representative affirmed the March 24, 1998 decision. The hearing
representative noted that Dr. Sanchez did not address why appellant was unable to perform her
limited-duty employment after February 1996.
Appellant submitted a form report dated November 6, 1998 from Dr. Dale, who
diagnosed myofascitis and chronic sprain. In a report dated December 11, 1998, Dr. Alan J.
Delhomme, an osteopath, diagnosed chronic low back pain and left buttock pain with radiation
extending into the foot.
Appellant requested an oral hearing on the termination of her compensation, which was
held on December 14, 1998. In a decision dated February 9, 1999, an Office hearing
representative affirmed the May 1, 1998 termination of compensation.
The hearing
representative noted that Dr. Dale was not a physician under the Act.
On January 26, 1999 Dr. Delhomme interpreted an electromyogram (EMG) as showing
mild, chronic left lumbar radiculopathy. In a form report dated March 3, 1999, he diagnosed
lumbar radiculopathy and checked “yes” that the condition was due to the claimed injury. On

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April 13, 1999 Dr. Delhomme referred appellant to Dr. Charles M. Narrow, a physiatrist, for
pain management.
On April 19, 1999 appellant requested reconsideration of the Office’s August 19, 1998
decision finding that she had not established a recurrence of disability.
In a report dated April 26, 1999, Dr. Narrow diagnosed left lumbar radiculitis secondary
to L4-5 disc derangement and lumbar facet syndrome.
In a decision dated June 1, 1999, the Office denied merit review as the evidence
submitted was immaterial and thus insufficient to warrant review of the prior decision. On
August 20, 1999 appellant appealed the June 1, 1999 decision to the Board.
In a report dated August 14, 1999, Dr. Narrow attributed appellant’s disc derangement at
L4-5, lumbar radiculopathy and lumbar facet syndrome to her July 29, 1993 employment injury
and recurrence of February 26, 1996. He stated:
“The following reasons are why [appellant] keeps on having recurrences of her
pain after her recurrent flexion injury that caused her L4-5 disc to become
symptomatic. Once one tears an annulus, it will, unfortunately, be more likely to
be retorn and the initial factor that caused her disc to cause pain was the original
accident that occurred during a move while she was working and repetitively
stooping/bending over to remove tags from furniture…. Even though this seems
to be a mild injury … flexing the spine at 60 degrees can pop a disc as interdiscal
pressure can increase as much as 300 pounds per square inch.”
A discography, performed on September 12, 1999, revealed degenerative disc disease of
the spine and an old compression fracture at T12.
On January 3, 2000 appellant requested reconsideration of the termination of her
compensation. The Office informed her that it could not consider her request for reconsideration
as she had requested an appeal before the Board. On May 18, 2000 the Board dismissed
appellant’s appeal at her request so that she could pursue reconsideration before the Office.3 In a
decision dated September 6, 2000, the Office denied modification of its termination of
appellant’s compensation.
In a report dated April 26, 2001, Dr. James C. Murphy, III, a Board-certified orthopedic
surgeon, stated:
“In my opinion, as a spine specialist, [appellant’s] chronic and recurring
exacerbating pain is a natural consequence of her original 1993 flexion injury,
which caused her lumbar discs to become symptomatic. The degeneration of
[appellant’s] injured discs, from 1993 through 1996, along with the added stress
of the commute and work, put her at greater risk of reinjury, and in my opinion,
caused her February 26, 1996 reinjury.
3

Order Dismissing Appeal & Canceling Oral Argument, Docket No. 99-2513 (issued May 18, 2000).

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“[Appellant’s] July 1993 L3-4, L4-5 and L5-S1 injuries, as depicted in the
December 1993 CT scan, failed to heal properly, were exacerbated by her
February 26, 1996 recurring injury, and over time the injured lumbar discs
deteriorated, and progressively developed into chronic [d]egenerative [d]isc
[d]isease (DDD). The 1999 [d]iscography [d]iagnostic [t]est I performed on
[appellant] confirmed my diagnosis of disc leakage at the L3-4, L4-5 and L5-S1
levels (causing continuous nerve inflammation/pain), abnormalities and
incompetence. Trauma and/or increased stress also caused the facet joints to
deteriorate. The continuous inflammation of the L5-S1 nerve root, as depicted in
the December 1993 CT scan, developed into chronic left leg radiculopathy, as
evidenced by [1999 EMG findings]. This explains why she has experienced
perpetual medical problems and pain, since her original 1993 back injury, and
provides clinical/medical proof of the continuation of her injuries through
1999/2000.
“It is my professional opinion, based upon the rationalized, clinical, and
scientific/medical proof, that [appellant’s] 1999/2000 lumbar medical condition,
as well as her February 26, 1996 reinjury, was ‘[c]ausally [r]elated’ to her July 20,
1993 initial lumbar injury.”
On June 5, 2001 appellant requested reconsideration of the September 6, 2000 decision.
By decision dated September 5, 2001, the Office denied modification of its prior decisions.
On November 28, 2001 appellant appealed the September 5, 2001 decision to the Board.
In an order dated May 20, 2002, the Board remanded the case for reconstruction of the case
record and an appropriate decision to protect appellant’s appeal rights.4
In a decision dated February 25, 2003, the Office denied reconsideration of its
September 5, 2001 decision on the grounds that the request for reconsideration was untimely and
failed to establish clear evidence of error. Appellant appealed to the Board. In an order dated
January 27, 2004, the Board remanded the case for the Office to follow its instructions from the
prior order and issue an appropriate decision to protect appellant’s appeal rights.5
By decision dated June 29, 2004, the Office denied modification of its September 5, 2001
decision. Appellant appealed to the Board. In an order dated July 19, 2005, the Board found that
the case record as assembled was incomplete and remanded the case for reconstruction of the
case record and a de novo decision.6 By decision dated July 21, 2006, the Office again denied
modification of its May 1, 1998 decision.

4

Order Remanding Case, Docket No. 02-249 (issued May 20, 2002).

5

Order Remanding Case, Docket No. 03-1322 (issued January 27, 2004).

6

Order Remanding Case, Docket No. 05-5 (issued July 19, 2005).

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LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.7 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.8
Section 8123(a) of the Federal Employees’ Compensation Act9 provides that, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.10 The implementing regulation states that, if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion
physician or an Office medical adviser, the Office shall appoint a third physician to make an
examination. This is called a referee examination and the Office will select a physician who is
qualified in the appropriate specialty and who has no prior connection with the case.11 In
situations where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.12
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained lumbar sprain and a lumbar subluxation due
to a July 20, 1993 employment injury. Appellant sustained periods of partial and total disability
following the injury and filed a notice of recurrence of disability on February 26, 1996. The
Office determined that a conflict existed between Dr. Levitt, an Office referral physician, and
Dr. Wise, appellant’s attending physician, on the conditions resulting from her employment
injury and the extent of her employment-related disability. The Office referred appellant to
Dr. Collins for an impartial medical examination to resolve the conflict in opinion.
Where there exists a conflict in medical opinion and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.13 The Board finds that the opinion of Dr. Collins, a Board-certified orthopedic surgeon
7

Gloria J. Godfrey, 52 ECAB 486 (2001).

8

Gewin C. Hawkins, 52 ECAB 242 (2001).

9

5 U.S.C. §§ 8101-8193.

10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

12

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

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Id.

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selected to resolve the conflict in opinion, is well rationalized and based on a proper factual and
medical history. Dr. Collins accurately summarized the relevant medical evidence, provided
detailed findings on examination and reached conclusions about appellant’s condition which
comported with his findings.14 On examination, he listed essentially normal findings and noted
that appellant had no muscle spasm or loss of sensation. Dr. Collins reviewed the MRI scan
studies and CT scans and opined that appellant sustained a lumbar strain due to her 1993
employment injury. He found “no sign of a herniated disc or any neurological problem….”
Dr. Collins concluded that appellant had no residuals from her lumbar strain and could resume
her regular employment without restrictions. In a supplemental report dated February 23, 1998,
he found that x-rays showed no evidence of a lumbar subluxation, sciatic neuritis or sacroiliac
strain syndrome. In a February 27, 1998 work restriction evaluation, Dr. Collins found that she
could work eight hours per day with restrictions to prevent a recurrence. He listed limitations
that were prophylactic in nature to prevent future injury; however, the possibility of a future
injury does not form a basis for the payment of compensation under the Act.15 As Dr. Collins’
report is detailed, well rationalized and based on a proper factual background, his opinion is
entitled to the special weight accorded an impartial medical examiner and is sufficient to meet
the Office’s burden of proof to terminate appellant’s compensation benefits.16
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.17 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.18
ANALYSIS -- ISSUE 2
The Office met its burden of proof to terminate authorization for medical benefits
through the opinion of Dr. Collins, the impartial medical examiner, who found that appellant had
no residuals of her accepted condition. Dr. Collins explained that based on his physical
examination and the diagnostic studies appellant had no “objective findings of any residual
impairment.” He concluded that appellant required no additional medical treatment.
LEGAL PRECEDENT -- ISSUE 3
Following a proper termination of compensation benefits, the burden of proof shifts back
to the claimant to support his or her claim of employment-related continuing disability with
probative medical evidence.19 The medical evidence required to establish a causal relationship,
14

Manual Gill, 52 ECAB 282 (2001).

15

Andy J. Paloukos, 54 ECAB 712 (2003).

16

See Manual Gill, supra note 14.

17

Pamela K. Guesford, 53 ECAB 727 (2002).

18

Id.

19

John F. Glynn, 53 ECAB 562 (2002).

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generally, is rationalized medical evidence.20 Rationalized medical evidence is evidence which
includes a physician’s rationalized medical opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.
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
rationalize explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.21
ANALYSIS -- ISSUE 3
To support her claim of continuing disability, appellant submitted reports from Dr. Dale,
a chiropractor. Section 8101(2) of the Act provides that 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.22 Dr. Dale did not diagnose a subluxation by x-ray and thus his reports do not constitute
competent medical evidence.23
In a report dated December 11, 1998, Dr. Delhomme diagnosed chronic low back pain
with left-sided radiculopathy. He did not, however, address causation and thus his report is of
diminished probative value on the issue of causal relationship.24 In a form report dated March 3,
1999, Dr. Delhomme diagnosed lumbar radiculopathy and checked “yes” that her condition
resulted from the employment injury. The Board has held, however, that, when a physician’s
opinion on causal relationship consists only of checking “yes” to a form question, without
explanation or rationale, that opinion has little probative value and is insufficient to establish a
claim.25
On April 26, 1999 Dr. Narrow diagnosed left lumbar radiculitis due to L4-5 disc
derangement and lumbar facet syndrome. In a report dated August 14, 1999, he opined that
appellant’s L4-5 disc derangement, lumbar radiculopathy and lumbar facet syndrome resulted
from her July 1993 employment injury and February 26, 1996 recurrence of disability.
Dr. Narrow asserted that appellant’s July 1993 employment injury, while seemingly minor,
caused her disc to become symptomatic. He described the mechanism by which the injury may
have occurred. The Office did not accept appellant’s claim for L4-5 disc derangement, lumbar
radiculopathy and lumbar facet syndrome. The Office accepted the claim for lumbar sprain and
lumbar subluxation. Appellant bears the burden of proof to establish causal relationship for any
condition not accepted by the Office through the submission of rationalized medical evidence.26
20

Id.

21

Leslie C. Moore, 52 ECAB 132 (2000).

22

5 U.S.C. § 8101(2); see also Robert S. Winchester, 54 ECAB 191 (2002).

23

See Michelle Salazar, 54 ECAB 523 (2003).

24

Conrad Hightower, 54 ECAB 796 (2003).

25

Deborah L. Beatty, 54 ECAB 3234 (2003).

26

Brady L. Fowler, 44 ECAB 343 (1992).

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Dr. Narrow attributed appellant’s disc injury to her July 1993 employment injury and generally
described how the injury could have occurred. The impartial medical examiner, however,
specifically addressed the issue of whether appellant sustained a disc injury due to the July 1993
employment injury. Dr. Collins found that she sustained a lumbar sprain due to her employment
injury and that x-rays revealed no further lumbar subluxation. Dr. Narrow’s report is insufficient
to overcome the special weight accorded Dr. Collins as the impartial medical examiner.
In a report dated April 26, 2001, Dr. Murphy attributed appellant’s lumbar disc pain to
her 1993 flexion injury. He asserted that appellant sustained disc injuries at L3-4, L4-5 and L5S1 due to her 1993 employment injury as demonstrated by the December 1993 CT scan.
Dr. Murphy found that her injuries at L3-4, L4-5 an L5-S1 did not adequately heal and
developed into degenerative disc disease. He opined that appellant had “continuous
inflammation of the L5-S1 nerve root” and resulting left leg radiculopathy as evidenced by
diagnostic tests. Dr. Murphy noted that a discography performed in 1999 revealed leaking discs
at L3-4, L4-5 and L5-S1 causing pain and inflammation. He attributed appellant’s continuing
pain to her lumbar condition which resulted from her July 20, 1993 injury and reinjury on
February 26, 1996. Dr. Collins, however, in his capacity as impartial medical examiner
reviewed both the December 1993 CT scan and March 1996 MRI scan study and determined that
appellant did not sustain a disc injury due to her July 1993 employment injury. He provided
rationale for his opinion by explaining that the injury was minor and insufficient to “cause any
severe structural damage to the back.” Dr. Murphy’s opinion is of insufficient probative value to
overcome the weight accorded Dr. Collins as impartial medical examiner. The Board finds that
appellant did not meet her burden of proof to establish that she had any continuing employmentrelated disability after May 24, 1998.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation and
authorization for medical treatment effective May 24, 1998 on the grounds that she had no
further employment-related disability and condition. The Board further finds that appellant has
not established that she had continuing disability due to her employment injury after
May 24, 1998.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 21, 2006 is affirmed.
Issued: May 18, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.V., Appellant
and
PEACE CORPS VOLUNTEER SERVICES,
La Paz, Honduras, Employer
__________________________________________

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

Docket No. 18-0427
Issued: November 9, 2018

Case Submitted on the Record

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

JURISDICTION
On December 26, 2017 appellant filed a timely appeal from an October 26, 2017 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 case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish more than 13 percent
permanent impairment of his right upper extremity, for which he previously received schedule
award compensation.

1

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence on appeal. However, “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this evidence for the first time on appeal. Id.
2

FACTUAL HISTORY
This case has previously been before the Board.3 The facts as presented in the Board’s
prior decision are incorporated herein by reference. The relevant facts are as follows.
On March 24, 2011 appellant, then a 68-year-old Peace Corps volunteer, filed a traumatic
injury claim (Form CA-1) alleging that on February 9, 2011 he injured his right arm when he fell
down steps at his home in Honduras. OWCP accepted the claim for fracture of the right radius
head, closed fracture of the olecranon process of the right ulna, contracture of elbow joint, and
pain in joint, arm, and hand of the right upper extremity. After having surgery in Honduras and
Panama, Dr. Douglas P. Hanel, a Board-certified orthopedic surgeon, performed additional right
elbow surgery on June 1 and October 12, 2011 in Seattle, Washington.
By decision dated March 21, 2012, OWCP terminated appellant’s wage-loss
compensation, finding that he had no further disability due to his work injury. Following a request
for reconsideration, by decision dated July 6, 2012, it denied modification of its prior decision.
Appellant filed a schedule award claim (Form CA-7) on July 27, 2012.
In a July 24, 2012 report, Dr. Honorio Claros Fortin, an orthopedic surgeon, noted
appellant’s physical examination findings of right elbow active flexion of 50 degrees, extension to
165 degrees, right wrist dorsiflexion of 55 degrees, left wrist dorsiflexion of 75 degrees, right volar
flexion of 55 degrees, and left volar flexion of 80 degrees. There was no pronation or supination,
and the fingers of the right and left hand had complete mobility and normal strength.
By development letter dated August 21, 2012, OWCP asked appellant to provide an
impairment rating in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).4 It afforded him
30 days to submit the requested information. Appellant submitted no additional medical reports.
By decision dated September 26, 2012, OWCP denied appellant’s schedule award claim.
Following a request for reconsideration, by decision dated November 1, 2012, it denied
modification of the September 26, 2012 decision.
In a November 1, 2012 letter, OWCP forwarded the medical evidence of record to
Dr. Hanel and requested a permanent impairment evaluation in accordance with the sixth edition
of the A.M.A., Guides. On January 14, 2013 Dr. Hanel indicated that appellant had been examined
15 months status post right elbow resection of heterotopic ossification with contracture release on
October 12, 2011. He provided physical examination findings and advised that appellant’s right
shoulder range of motion was full, flexion-extension of the right elbow was 25 to 130 degrees, and
appellant could pronate to 30 degrees and supinate to neutral. Sensation was noted as normal.
Dr. Hanel indicated that arthritis of the ulnohumeral joint was continuing to worsen and that

3

Docket No. 14-0986 (issued January 17, 2017).

4

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

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appellant was at maximum medical improvement (MMI). He indicated that appellant would
require a total elbow arthroplasty or arthrodesis in the future.
OWCP attempted to schedule a second opinion evaluation while appellant was stateside,
but was unsuccessful. Appellant scheduled his own appointment with Dr. Brian D. Cameron, a
Board-certified orthopedic surgeon, and OWCP authorized the visit. In his February 3, 2013
report, Dr. Cameron described the employment injury and subsequent medical treatment and noted
appellant’s complaint of persistent right elbow pain and a sense of weakness. He advised that
physical examination demonstrated 30 degrees of flexion contracture to approximately 110
degrees with profound weakness in both pronation and supination due to ankylosis. Sensation was
intact distally. Dr. Cameron diagnosed severe post-traumatic arthritis of the right elbow with
associated ankylosis in supination, status post radial head prosthetic arthroplasty. He indicated
that appellant had reached MMI and advised that at some point he would require a total elbow
replacement. In accordance with the fifth edition of the A.M.A., Guides,5 Dr. Cameron found a
combined 53 percent right upper extremity permanent impairment.
On March 13, 2013 OWCP asked Dr. Cameron to provide an impairment rating in
accordance with the sixth edition of the A.M.A., Guides. On June 10, 2013 Dr. Cameron advised
that, in accordance with Table 15-33, elbow/forearm range of motion (ROM), appellant had a
class 1 limitation of flexion to approximately 110 degrees, for 3 percent permanent impairment,
30 degrees lack of full extension for 2 percent permanent impairment, and 20 degrees of supination
for 15 percent upper extremity impairment rating, for a combined right upper extremity permanent
impairment of 20 percent.
On June 20, 2013 Dr. Morley Slutsky, an OWCP medical adviser Board-certified in
occupational medicine, reviewed the medical record, including Dr. Cameron’s June 10, 2013
report. Dr. Slutsky indicated that Dr. Cameron’s ROM measurements were invalid because he did
not follow instructions found in the A.M.A., Guides. He advised that appellant’s most impairing
diagnosis was radial head arthroplasty, complicated. Dr. Slutsky found that, utilizing the
diagnosis-based impairment (DBI) method, under Table 15-4, Elbow Regional Grid, for this
diagnosis, appellant had a class 1 impairment with a default value of 11 percent, and modifiers of
2 for functional history and 3 each for physical examination and clinical studies. After applying
the net adjustment formula, he concluded that appellant had 13 percent right upper extremity
permanent impairment, the maximum allowed for this diagnosis.
On July 18, 2013 OWCP forwarded Dr. Slutsky’s evaluation to Dr. Cameron for review.
On July 24, 2013 it notified appellant that it would not authorize another physician visit for an
impairment evaluation.
Appellant submitted an August 13, 2013 report in which Dr. Charles N. Brooks, a Boardcertified orthopedic surgeon, noted appellant’s complaint of pain and stiffness in the right elbow
and that he had limitations in using his right arm in activities of daily living. Dr. Brooks indicated
that motions on left and right elbows respectively were extension 0/10 degrees and flexion 140/110
degrees. Crepitus was readily apparent in the right elbow with elbow motion, both palpably and
audibly. Forearm pronation was 90/10 degrees and supination 0/90 degrees, respectively. Grip
5

Id. (5th ed. 2000).

3

and pinch, were weaker on the right. Sensory testing revealed hypoesthesia throughout most of
the right forearm and also involving the ulnar aspect of appellant’s right hand, ring, and little
fingers. Dr. Brooks diagnosed open fracture dislocation of the right elbow, including comminuted
fractures of the radial head and neck, fractures of the olecranon and coronoid process, and tears of
both the medial and lateral collateral ligaments, due to the February 9, 2011 employment injury.
He further diagnosed post-traumatic arthritis of the right elbow, complicating the elbow fracturedislocation, and right ulnar neuropathy, also complicating the elbow fracture-dislocation, status
post submuscular ulnar nerve transposition.
Dr. Brooks indicated that, in accordance with Table 15-4, the radial head arthroplasty
diagnosis, complicated by heterotopic ossification and ankylosis, was the highest causally related
rating diagnosis, with an impairment range of 9 to 13 percent. He found a grade modifier of 2 for
functional history, 3 for physical examination, and no modifier for clinical studies. Dr. Brooks
applied the net adjustment formula and concluded that appellant had 13 percent right upper
extremity permanent impairment based on the diagnosis of radial head arthroplasty.
Dr. Brooks further found that the A.M.A., Guides indicated that a peripheral nerve
impairment could be combined with a DBI rating of the upper extremity level as long as the DBI
rating did not encompass the nerve impairment. He advised that appellant’s ulnar neuropathy was
a separate and distinct diagnosis, which caused an increased impairment. Dr. Brooks utilized
Table 15-23, Entrapment/Compression Neuropathy Impairment, and indicated that appellant had
no modifier for test findings because there was no electrodiagnostic study, and he had a grade
modifier of 3 for history due to constant hypoesthesia in the ulnar distribution. He further indicated
that appellant had a modifier of 2 for physical examination due to decreased sensation. Dr. Brooks
averaged the grade modifiers, concluding that appellant had grade modifier of 2 which under
Table 15-23 which yielded an impairment rating of seven to nine percent. He concluded that,
based on appellant’s QuickDASH (Disabilities of the Arm, Shoulder, and Hand) score of 45, he
had eight percent right upper extremity impairment due to his peripheral nerve injury. Dr. Brooks
combined the 13 percent permanent impairment due to the radial head arthroplasty with the 8
percent permanent impairment due to the peripheral nerve injury and concluded that appellant had
20 percent permanent impairment of the right upper extremity.
On January 14, 2014 Dr. Slutsky again reviewed the medical record, including Dr. Brooks’
report. He advised that the date of MMI was August 13, 2013, the date of appellant’s impairment
evaluation by Dr. Brooks. Dr. Slutsky agreed with Dr. Brooks’ conclusion that appellant had 13
percent permanent impairment under Table 15-4. He determined, however, that appellant was not
entitled to an additional impairment rating for the right ulnar nerve peripheral neuropathy.
Dr. Slutsky noted that the condition was first diagnosed on June 1, 2011 during surgery and had
not been accepted as causally related to the accepted employment injury. He concluded that
appellant’s final right upper extremity permanent impairment rating was 13 percent, based on the
complicated right radial head arthroplasty.
By decision dated February 6, 2014, OWCP granted appellant a schedule award for 13
percent permanent impairment of the right upper extremity.
Appellant thereafter appealed to the Board. By decision dated January 17, 2017, the Board
set aside the February 6, 2014 decision and remanded the case to OWCP to apply the standards
4

found in its decision T.H.6 The Board instructed OWCP to develop a consistent method for
calculating permanent impairment for upper extremities to be applied uniformly. After this and
such other development deemed necessary, OWCP was to issue a de novo decision on appellant’s
claim for an upper extremity schedule award.7
Following the Board’s January 17, 2017 decision, by letter dated May 17, 2017, OWCP
asked appellant to furnish a medical report from his treating physician based upon recent
examination findings. This was to include an impairment rating in accordance with the sixth
edition on the A.M.A., Guides, including both the DBI and ROM methods, with an opinion as to
whether appellant had reached MMI.
In correspondence dated June 12, 2017, appellant maintained that the medical evidence of
record was sufficient to issue a schedule award.
On July 5, 2017 OWCP referred the record to Dr. Michael M. Katz, an OWCP medical
adviser, who is Board-certified in orthopedic surgery. It asked Dr. Katz to provide an impairment
rating utilizing both the DBI and ROM methods, if the A.M.A., Guides allowed the use of both.
In a July 6, 2017 report, Dr. Katz noted the accepted conditions and his review of the
evidence. He advised that he agreed with Dr. Slutsky and Dr. Brooks that appellant had 13 percent
permanent impairment as a result of the right elbow fracture and subsequent surgery/sequelae, by
utilizing the DBI method under Table 15-4, Elbow Regional Grid. Dr. Katz disagreed with
Dr. Slutsky regarding whether a peripheral nerve injury should be included, opining that a schedule
award should include both an employment-related impairment and any impairment of the
scheduled member present at the time of the impairment evaluation. As such, appellant would be
entitled to an increased schedule award due to peripheral nerve injury. Dr. Katz advised that for
Table 15-23 to be utilized, electrodiagnostic testing should be done, and that there was no such
testing in this case. He found that, under Table 15-21, Peripheral Nerve Impairment, Upper
Extremity, appellant had an additional 6 percent impairment for a peripheral nerve injury which,
when combined with the 13 percent impairment, yielded a combined 18 percent right upper
extremity permanent impairment. Dr. Katz further noted that the record did not support that the
ROM method should be utilized as Dr. Brooks did not indicate that three independent
measurements of each arc had been provided. He concluded that appellant had 18 percent right
upper extremity permanent impairment which, following subtraction of the prior award of 13
percent, yielded an increased impairment of 5 percent, with August 13, 2013 the date of MMI.
In an August 28, 2017 treatment note, Dr. Hanel indicated that appellant was doing well
with a slight increase in elbow stiffness. Right elbow ROM findings yielded flexion of 30,
extension of 150, no supination, and no pronation. Dr. Hanel recommended a return in one year.
By decision dated October 26, 2017, OWCP found that appellant had not met the
requirements for an increased schedule award.

6

T.H., Docket No. 14-0943 (issued November 25, 2016).

7

Supra note 3.

5

LEGAL PRECEDENT
It is the claimant’s burden of proof to establish that he or she sustained permanent
impairment of a scheduled member or function as a result of any employment injury.8
The schedule award provisions of FECA,9 and its implementing federal regulations,10 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be 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.11 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.12
The sixth edition requires identifying the impairment class for the class of diagnosis
(CDX), which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE), and clinical studies (GMCS).13 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).14
Regarding the application of the ROM or DBI methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an

8

J.B., Docket No. 17-1907 (issued March 8, 2018).

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Id. at § 10.404(a).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also id. Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
13

A.M.A., Guides, supra note 4 at 383-492.

14

Id. at 411.

6

impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)15
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides do not allow for the use of ROM for the diagnosis in question,
the DMA should independently calculate impairment using the DBI method and
clearly explain in the report, citing applicable tables in Chapter 15 of the [A.M.A.,]
Guides, that ROM is not permitted as an alternative rating method for the diagnosis
in question.
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is [in]sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available evidence.
“Upon receipt of such a report, and if the impairment evaluation was provided from
the claimant’s physician, the CE should write to the claimant advising of the
medical evidence necessary to complete the impairment assessment and provide 30
days for submission. Any evidence received in response should then be routed back
to the DMA for a final determination. Should no evidence be received within 30
days of the date of the CE’s letter, the CE should proceed with a referral for a second
opinion medical evaluation to obtain the medical evidence necessary to complete
the rating. After receipt of the second opinion physician’s evaluation, the CE
should route that report to the DMA for a final determination.”
ANALYSIS
The Board finds this case not in posture for decision.

15

FECA Bulletin No. 17-06 (issued May 8, 2017).

7

By decision dated January 17, 2017, the Board remanded the case for OWCP to reevaluate
the extent of appellant’s right upper extremity permanent impairment after it determined a
consistent method for rating upper extremity impairments under the A.M.A., Guides.16
Following the Board’s remand, OWCP advised appellant on May 17, 2017 that he should
submit a new report from his treating physician in accordance with the sixth edition of the A.M.A.,
Guides, using both the DBI and ROM methods. The most recent medical report of record is that
of Dr. Hanel dated August 28, 2017. However, he did not provide an impairment rating.
As noted, FECA Bulletin No. 17-06 provides that if OWCP does not receive medical
evidence as requested within 30 days, then the CE should proceed with a referral for a second
opinion evaluation to assess a claimant’s impairment.17 Thus, in this case OWCP should have
referred appellant for a second opinion evaluation in June 2017, but it did not do so. Instead it
asked its medical adviser Dr. Katz to provide an impairment rating utilizing both the DBI and
ROM methods, if the A.M.A., Guides allowed the use of both. Following its receipt of the medical
adviser’s report, OWCP issued its October 26, 2017 decision.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish the claim, OWCP also has a
responsibility in the development of the evidence.18 Once OWCP undertakes development of the
record, it has the responsibility to do so in a proper manner.19
The Board finds that, as OWCP did not follow the procedures outlined in FECA Bulletin
No. 17-06, the case must be remanded for it to refer appellant for a second opinion evaluation and
impairment rating, pursuant to the guidelines presented in FECA Bulletin No. 17-06.
The Board also notes that the A.M.A., Guides indicate in Figure 15-31 that a claimant can
receive an impairment rating under both the DBI method and for a peripheral nerve impairment.20
However, it has not been determined whether appellant’s peripheral nerve injury was preexisting,
therefore it is unclear whether the condition should be included in the impairment evaluation.
Dr. Slutsky, an OWCP medical adviser, noted in a January 14, 2014 report that appellant was not
entitled to an additional impairment rating for the right ulnar nerve peripheral neuropathy because
it was first diagnosed on June 1, 2011, after the February 9, 2011 employment injury, and had not
been accepted as employment related. On remand OWCP should also determine whether appellant
is entitled to an additional impairment rating for the right ulnar nerve neuropathy.
The case will therefore be remanded to OWCP to refer appellant for a second opinion
evaluation regarding appellant’s right upper extremity impairment. After this and such additional
16

Supra note 3.

17

Supra note 16.

18

R.B., Docket No. 08-1662 (issued December 18, 2008).

19

P.K., Docket No. 08-2551 (issued June 2, 2009).

20

A.M.A., Guides, supra note 4 at 480.

8

development deemed necessary, OWCP shall issue a de novo decision regarding appellant’s claim
for an increased right upper extremity schedule award.21
CONCLUSION
The Board finds this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: November 9, 2018
Washington, DC

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

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

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

21

See J.F., Docket No. 17-1726 (issued March 12, 2018).

9


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

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

Docket No. 12-544
Issued: March 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 5, 2012 appellant filed a timely appeal of the December 15, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error.1 Because more than one year elapsed between the most recent merit decision dated
May 9, 2008 to the filing of this appeal, the Board lacks jurisdiction to review the merits of the
case but has jurisdiction over the nonmerit issue pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.3

1

Appellant submitted a timely request for oral argument before the Board pursuant to 20 C.F.R. § 501.5(b).
Pursuant to 20 C.F.R. § 501.5(a), oral argument may be held in the discretion of the Board. The Board has duly
considered the matter and finds that appellant’s request for oral argument is denied. Oral argument in this case
would delay issuance of a Board decision and would not serve a useful purpose. Moreover, appellant’s contentions
can be adequately addressed in a decision based on the record as submitted.
2
3

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on or after November 19,
2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
On appeal, appellant contends that OWCP erroneously refused to accept the diagnosed
conditions provided by an attending physician as causally related to the accepted work injuries
but instead accepted the diagnosis of a chiropractor who is not a physician as defined under
FECA. She further contended that it erroneously terminated her compensation based on
incorrect accepted conditions.
FACTUAL HISTORY
This case was previously before the Board with respect to the denial of appellant’s claim
for a recurrence of disability. In decisions dated September 14, 2000,4 August 4, 20035 and
February 9, 2005,6 the Board found that OWCP properly denied her requests for reconsideration
regarding a recurrence of disability on November 7, 1986 causally related to her accepted May 7,
1985 injuries on the grounds that they were not timely filed and failed to establish clear evidence
of error. This case was also previously on appeal before the Board with respect to the denial of
appellant’s traumatic injury claim (Form CA-1). In a July 16, 2010 decision, the Board affirmed
OWCP’s denial of her claim as untimely filed under 5 U.S.C. § 8122.7 The case was previously
on appeal before the Board regarding the termination of appellant’s medical benefits. In a
May 9, 2008 decision,8 the Board affirmed OWCP decisions dated January 18 and November 15,
2007 which terminated her medical benefits on the grounds that she no longer had any residuals
or disability causally related to her May 7, 1985 employment-related injuries.9 The Board
accorded special weight to the impartial medical opinion of Dr. Mukund Komanduri, a Boardcertified orthopedic surgeon, who found that appellant no longer had any residuals of her
accepted conditions. The Board found that the medical evidence she submitted was insufficient
to establish that she had any work-related residuals after January 18, 2007. On April 15, 2009
the Board issued an order remanding case to OWCP for consolidation of appellant’s prior
claims.10 The facts and history relevant to the present appeal are hereafter set forth.
On remand, OWCP combined the files into OWCP File No. xxxxxx086 as the master
claim number.
4

‘Docket No. 99-958 (issued September 14, 2000).

5

Docket No. 03-956 (issued August 4. 2003).

6

Docket No. 04-1741 (issued February 9, 2005).

7

Docket No. 09-2174 (issued July 16, 2010).

8

Docket No. 08-571 (issued May 9, 2008). On September 24, 2008 the Board denied appellant’s petition for
reconsideration. Order Denying Petition for Reconsideration, Docket No. 08-571 (issued September 24, 2008).
9

OWCP accepted that on May 7, 1985 appellant, then a 28-year-old letter sorter machine operator, sustained
cervical and lumbar strains and left hip and ankle sprains as a result of slipping down a flight of stairs.
Subsequently, it accepted that she sustained a recurrence of disability on July 24, 1985.
10

Docket No. 09-42 (issued April 15, 2009).

2

In a July 29, 2009 decision, OWCP denied appellant’s January 22, 2009 request for
reconsideration of the termination decision, finding that the arguments and evidence submitted
were insufficient to warrant further merit review of her claim. On August 3, 2009 it reissued the
July 29, 2009 decision and sent it to her correct address.
Appellant requested reconsideration on January 25, 2011. By decision dated March 1,
2011, OWCP denied her request for reconsideration on the grounds that it was untimely filed and
failed to establish clear evidence of error.
In a March 15, 2011 decision, OWCP’s Branch of Hearings and Review denied
appellant’s February 11, 2011 request for an oral hearing as she had previously requested
reconsideration.
On April 19, 2011 OWCP reissued the March 15, 2011 decision and noted that it
mistakenly advised appellant in the March 15, 2011 decision that she was entitled to request
reconsideration. Appellant was advised that her only appeal right was to file an appeal with the
Board.
In decisions dated August 29 and December 5, 2011, OWCP denied appellant’s April 29
and September 7, 2011 requests for reconsideration, respectively, of its termination decision.
The requests were found to be untimely filed and failed to establish clear evidence of error.
On December 10, 2011 appellant again requested reconsideration. She contended that
OWCP erred in not accepting any employment-related injuries she sustained on May 7, 1985 as
diagnosed by her attending physician. Instead, it accepted conditions diagnosed by a
chiropractor who is not a physician as defined under FECA. Appellant contended that OWCP
erred in terminating her compensation based on incorrect accepted conditions.
Appellant submitted duplicate copies of medical records from Dr. Michael R. Treister, an
attending Board-certified orthopedic surgeon. On October 8, 1986 Dr. Treister advised that
photographic images of the cervical spine and upper extremities did not reveal any pathology.
On October 9, 1986 he reported that although appellant had subjective complaints of a chronic
cervical strain, there were no objective findings to substantiate this diagnosis. Dr. Treister
advised that she could work with restrictions. In a November 7, 1986 disability certificate, he
advised that appellant could return to work with restrictions.
Duplicate copies of unsigned treatment notes dated May 8 and 13, 1985 and a May 13,
1985 note containing an illegible signature submitted by appellant stated that she had a sprain of
the left hip and knee and lumbosacral region. Appellant was unable to work from May 8 to
13, 1985.
Appellant submitted an undated Form CA-1 signed by her for the May 7, 1985 injury.
In a decision dated December 15, 2011, OWCP denied appellant’s December 10, 2011
request for reconsideration on the grounds that it was untimely filed and failed to establish clear
evidence of error.

3

LEGAL PRECEDENT
Section 8128(a) of FECA11 does not entitle a claimant to a review of an OWCP decision
as a matter of right.12 OWCP, through its regulations, has imposed limitations on the exercise of
its discretionary authority under section 8128(a). Section 10.607(a) of OWCP’s implementing
regulations provides that an application for reconsideration must be sent within one year of the
date of the OWCP decision for which review is sought.13
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.14
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.15 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.16 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.17 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.18 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.19
To show clear evidence of error, 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 prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.20 The
Board makes 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.21

11

5 U.S.C. § 8128(a).

12

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

13

20 C.F.R. § 10.607(a).

14

Id. at § 10.607(b).

15

Nancy Marcano, 50 ECAB 110, 114 (1998).

16

Leona N. Travis, 43 ECAB 227, 241 (1991).

17

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

18

Leona N. Travis, supra note 16.

19

See Nelson T. Thompson, 43 ECAB 919 (1992).

20

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

21

Thankamma Mathews, 44 ECAB 765, 770 (1993).

4

ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. OWCP
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original OWCP decision.22 However, a right to reconsideration within one
year also accompanies any subsequent merit decision on the issues.23
The most recent merit decision in this case regarding the OWCP’s January 18 and
November 15, 2007 termination is the Board’s May 9, 2008 decision which affirmed the
decisions. The Board found that appellant no longer had any residuals as of or after January 18,
2007 causally related to the accepted May 7, 1985 employment-related injuries. As appellant’s
December 10, 2011 letter requesting reconsideration of the merits of her claim by OWCP was
made more than one year after the May 9, 2008 merit decision,24 the Board finds that it was not
timely filed.
The Board further finds that appellant’s December 10, 2011 letter and identical
contentions on appeal do not raise a substantial question as to whether OWCP’s decision finding
that she no longer had any employment-related residuals was erroneous. Appellant contended
that it erroneously refused to accept the diagnosed conditions provided by her attending
physician as causally related to the accepted work injuries and instead accepted the diagnosis of
a chiropractor who is not defined as a physician under FECA. She further contended that OWCP
erroneously terminated her compensation based on incorrect accepted conditions. These
contentions were previously raised do not establish error on the part of OWCP, but merely repeat
arguments previously considered. Appellant’s arguments on reconsideration are insufficient to
raise a substantial question concerning the correctness of OWCP’s termination of her medical
benefits or to shift the weight of the evidence in her favor.
Similarly, the medical evidence submitted by appellant in support of her untimely request
for reconsideration is insufficient to establish clear evidence of error on the part of OWCP. The
duplicate medical records from Dr. Treister and treatment notes were previously of record and
considered by OWCP in its prior decisions. The Board finds that as this evidence is duplicative
it is insufficient to establish clear evidence of error.
Appellant’s undated traumatic Form CA-1 is not relevant to the issue decided by the
Board, namely whether she had any continuing disability or residuals due to the May 7, 1985
injuries. The Board finds, therefore, that the document cannot establish clear evidence of error
as to the correctness of the termination decision.25 Appellant has not presented any additional
evidence to establish that she had any continuing employment-related disability or residuals as of
or after January 18, 2007.

22

20 C.F.R. § 10.607(a); see A.F., 59 ECAB 714 (2008).

23

D.G., 59 ECAB 455 (2008); Robert F. Stone, 57 ECAB 292 (2005).

24

Appellant had one year to request reconsideration by OWCP of the Board’s May 8, 2008 decision. See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.6a (January 2004).
25

See G.H., 58 ECAB 183 (2006); Jack D. Johnson, 57 ECAB 593 (2006); M.L., Docket No. 09-956 (issued
April 15, 2010).

5

The Board finds that the arguments and evidence submitted by appellant in support of her
untimely request for reconsideration do not constitute positive, precise and explicit evidence,
which manifests on its face that OWCP committed an error. Therefore, appellant failed to meet
her burden of proof to show clear evidence of error on the part of OWCP.
CONCLUSION
OWCP properly denied appellant’s request for reconsideration as untimely filed and
lacking clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 13, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Lakehurst, NJ,
Employer
__________________________________________

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Appearances:
Russell T. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 21-0003
Issued: January 21, 2022

Case Submitted on the Record

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

JURISDICTION
On October 2, 2020 appellant, through counsel, filed a timely appeal from a May 13, 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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to establish that appellant’s
accepted temporary aggravation of a preexisting right shoulder degeneration had resolved as of
August 9, 2019; and (2) whether appellant has met his burden of proof to establish expansion of
his claim to include additional conditions of lumbar spondylosis with grade 1 anterolisthesis of
L3-4 and right lower extremity radiculitis.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 3, 2017 appellant, then a 68-year-old sales store checker, filed a traumatic injury
claim (Form CA-1) alleging that on June 30, 2017 he sustained injuries to his right knee, elbow,
forearm, and low back when he tripped on a sidewalk entrance and fell while in the performance
of duty. He stopped work on July 1, 2017. OWCP accepted the claim for right knee laceration,
right knee sprain, right elbow laceration, right elbow abrasion, and right elbow fracture. The
employing establishment paid appellant continuation of pay from July 1 through 13, 2017.
Appellant returned to a modified-duty assignment for two days, on July 14 and 15, 2017, but
stopped work thereafter.2 OWCP paid him wage-loss compensation on the supplemental rolls
from August 17 to November 18, 2017. On November 20, 2017 appellant returned to full-time
light work.
On November 17, 2017 appellant, through counsel, requested that OWCP expand the
acceptance of the claim to include aggravation of lumbar spondylosis with grade 1 anterolisthesis
of L3 on L4 with right lower extremity radiculitis and aggravation of mild-to-moderate
degenerative osteoarthritis of the right shoulder, as causally related to the accepted June 30, 2017
employment injury.
The record reflects that Dr. Laura Ross, an osteopathic physician Board-certified in
orthopedic surgery, in October 19 and 30, 2017 reports, indicated that appellant’s lumbar spine,
right elbow, right knee, and right shoulder were injured in the June 30, 2017 employment incident.
Based on her review of a September 6, 2017 right shoulder x-ray and September 8, 2017 lumbar
spine magnetic resonance imaging (MRI) scan, she also diagnosed an exacerbation of lumbar
spondylosis with grade 1 anterolisthesis of L3 on L4 with right lower extremity radiculitis and
mild-to-moderate degenerative osteoarthritis of the right shoulder. Dr. Ross opined that the grade
1 anterolisthesis of L3 on L4 was directly caused by the employment incident. She also opined
that the employment incident caused an exacerbation of underlying spondylosis because appellant
had no symptoms prior to the employment incident.
In a December 28, 2017 developmental letter, OWCP advised appellant that additional
medical evidence was necessary to expand the acceptance of his claim. It advised him of the type
of medical evidence necessary to establish his claim and afforded him 30 days to provide the
necessary evidence.
OWCP subsequently received a December 11, 2017 report from Dr. Munir Ahmed, a
Board-certified orthopedic surgeon. In relevant part, Dr. Ahmed’s diagnoses included aggravation
of age-related degenerative changes of the right shoulder with post-traumatic right shoulder strain

2

On September 22, 2017 appellant filed a notice of recurrence (Form CA-2a), claiming disability commencing
July 18, 2017. OWCP created a new occupational disease claim (Form CA-2) under File No. xxxxxx152 based on
the employment exposure of July 14 and 15, 2017. By decision dated September 4, 2019, the Board set aside OWCP’s
July 16, 2018 decision and remanded the case for further development and issuance of a de novo decision. It found
that appellant’s notice of recurrence and subsequent claims for wage-loss compensation within 90 days of his return
to work following his July 15, 2017 employment injury should have been developed as a claim for recurrence under
OWCP File No. xxxxxx417. Docket No. 19-0493 (issued September 4, 2019).

2

and sprain, post-traumatic lumbar strain and sprain, lumbar radiculitis, and femoral neuropathy of
the right leg.3
By decision dated January 29, 2018, OWCP denied expansion of the acceptance of the
claim to include aggravation of lumbar spondylosis with grade 1 anterolisthesis of L3 on L4 with
right lower extremity radiculitis and aggravation of mild-to-moderate degenerative osteoarthritis
of the right shoulder. It found that there was insufficient medical rationale to establish causal
relationship between the diagnosed conditions and the accepted employment injury.
On February 5, 2018 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review.
On March 28, 2018 OWCP referred appellant, a March 20, 2018 statement of accepted
facts (SOAF), and the medical record to Dr. Stanley Askin, a Board-certified orthopedic surgeon,
for a second opinion examination as to whether the acceptance of the claim should be expanded to
include additional conditions causally related to the June 30, 2017 employment injury. In an
April 13, 2018 report, Dr. Askin noted the factual and medical history of appellant’s claim and his
review of the medical records, including MRI scan evidence of lumbar degenerative disc disease
and right shoulder rotator cuff tear, and presented physical examination findings. He opined that
the accepted conditions had resolved. Dr. Askin further opined that the claim should not be
expanded to include additional medical conditions as causally related to the June 30, 2017
employment injury. He noted the imperfections in appellant’s low back and right shoulder were
likely baseline, explaining that rotator cuffs tears are routine accompaniments of aging and are
incidentally found in persons of appellant’s age.
Additional medical reports were received. This included reports from Dr. Joan F. O’Shea,
a Board-certified neurosurgeon and orthopedic spine specialist. Dr. O’Shea evaluated appellant
on May 15, 2018 and performed a follow-up visit on June 26, 2018. She considered lumbosacral
x-rays that were performed on May 21, 2018. Dr. O’Shea’s diagnostic assessment, after
evaluation, included lower back pain secondary to preexisting degenerative disc disease, herniated
disc at L4-5 and L5-S1 with biforaminal stenosis at L4-5 and L5-S1; questionable L3-4
spondylosis; and right shoulder pain. In a July 2, 2018 letter, she noted a history of the
employment injury and described examination and diagnostic findings. Dr. O’Shea suggested
lumbosacral epidurals as well as lumbar x-rays in extension and flexion to check for instability
given the possibility of spondylolisthesis at L3-4.
A hearing was held on May 23, 2018. By decision dated July 13, 2018, OWCP’s hearing
representative set aside the January 29, 2018 decision, finding that Dr. Askin had not provided
sufficient rationale for his opinion regarding causal relationship of appellant’s low back and right
shoulder conditions. On remand, the hearing representative directed OWCP to administratively

3

Dr. Ahmed opined that appellant had 12 percent permanent impairment of the right upper extremity under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (6 th ed. 2009).

3

combine the instant claim with OWCP File No. xxxxxx152, prepare a new SOAF covering both
claims, and request that Dr. Askin provide a supplemental opinion. 4
On July 25, 2018 OWCP provided an updated SOAF to Dr. Askin and requested a
supplemental opinion. In a July 30, 2018 response, Dr. Askin noted that appellant was 68 years
of age and had numerous foci of age-related degeneration as well as consequences of gout and
possible consequences of an old motorcycle accident. He opined that appellant had fully recovered
from the accepted employment injuries and may resume his full duties. Dr. Askin also opined that
the anterolisthesis, the radiculitis, and the degenerative osteoarthritis reported by Dr. Ross were
age-related imperfections of appellant’s age and were not directly caused, aggravated, precipitated
or accelerated by the singular event reported. He explained that there was no continuing or
lingering effects of trauma demonstrated in appellant’s provided records or by clinical
examination.
By decision dated August 16, 2018, OWCP denied the expansion of the acceptance of
appellant’s claim to include additional diagnoses of exacerbation of lumbar spondylosis with grade
1 anterolisthesis of L3-4 with right lower extremity radiculitis and exacerbation of mild-tomoderate degenerative osteoarthritis of the right shoulder. It found that the weight of the medical
evidence rested with the opinion of Dr. Askin, the second opinion examiner. On August 21, 2018
appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch
of Hearings and Review regarding the denial of the expansion. 5
On December 21, 2018 OWCP issued a notice of proposed termination of appellant’s
wage-loss compensation and medical benefits based on Dr. Askin’s reports of April 13 and
July 30, 2018, which found that all the accepted employment injuries causally related to the
June 30, 2017 employment injury had resolved, that appellant may resume his full duties, that any
limitations were due to conditions unrelated to the June 30, 2017 employment injury, and that no
additional medical care was needed for all the conditions related to the June 30, 2017 employment
injury. OWCP afforded appellant 30 days to submit additional evidence. No additional evidence
was received.
A hearing was held on January 14, 2019 regarding the August 16, 2018 denial of expansion
of the claim.
By decision dated January 28, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective January 29, 2019, for the accepted conditions of right
knee laceration, right knee sprain, right elbow laceration, right elbow abrasion, and right elbow
fracture. The weight of the medical opinion evidence was accorded to Dr. Askin’s second opinion
reports.

4

OWCP administratively combined File Nos. xxxxxx152 and File No. xxxxxxx417 with the latter serving as the
master file.
5

By decision also dated August 16, 2018, OWCP granted appellant a schedule award for 12 percent permanent
impairment of right upper extremity.

4

On February 4, 2019 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review regarding the January 28, 2019
termination decision. The hearing was held on June 21, 2019.
Medical reports from Dr. Ross dated January 22, February 19, and March 15, 2019 were
received. In her March 15, 2019 report, Dr. Ross addressed Dr. Askin’s report. She noted that
appellant had reported back pain from the onset of injury. Dr. Ross maintained that the force of a
fall which caused an elbow fracture was also injurious to the shoulder. She pointed out that the
arthritic and degenerative conditions which Dr. Askin attributed solely to age were not problematic
for appellant prior to the employment injury. Dr. Ross maintained that the employment incident
exacerbated those conditions to a level where appellant was symptomatic most of the time.
By decision dated March 25, 2019, an OWCP hearing representative vacated OWCP’s
August 16, 2018 decision regarding appellant’s request for expansion of the acceptance of his
claim. The hearing representative found that a conflict in medical opinion existed between
Dr. Ross, who opined that the June 30, 2017 employment injury adversely affected the diagnosed
low back and right shoulder conditions, and Dr. Askin, who maintained that those conditions were
solely due to the aging process. She remanded the case to OWCP for an updated SOAF and referral
for an impartial medical examination to determine whether the diagnosed back and right shoulder
conditions were causally related to the June 30, 2017 employment injury.
OWCP referred appellant along with an updated SOAF dated April 18, 2019 and list of
questions to Dr. Ian Fries, a Board-certified orthopedic surgeon, serving as an impartial medical
examiner (IME).
In an August 9, 2019 report, Dr. Fries noted his review of the April 18, 2019 SOAF and
appellant’s medical record and appellant’s complaints. He reported his physical examination
findings of July 31, 2019. Dr. Fries diagnosed: right acromioclavicular and glenohumeral joint
degeneration, degenerative full-thickness suprapinatus tear, and likely adhesive capsulitis; right
elbow nondisplaced supracondylar fracture, right olecranon bone tenderness; chronic low back
pain, multilevel lumbar spine degeneration; bilateral total knee replacements; and left hallux
metatarsophalangeal joint gout. Based on appellant’s continued right shoulder complaints and
findings since the June 30, 2017 incident, Dr. Fries opined that it was reasonable to consider that
the incident aggravated preexisting degenerative pathologies of the right shoulder. This was based
upon appellant’s claim of no prior symptoms and the absence of any medical records prior to the
employment incident that might be relevant on this issue. Regarding appellant’s low back
condition, Dr. Fries related that he must accept Dr. Ross’ documentation and conclude that any
injuries sustained to his back or lower extremity had fully resolved. He related that any subsequent
complaints in these areas were due to conditions unrelated to appellant accepted trauma. Dr. Fries
concluded that “certainly preexisting age-related lumbar degenerative disc disease could become
symptomatic spontaneously or due to sequent trauma.” He, however, opined that appellant’s
lumbar spine pathology was not related to the June 30, 2017 employment injury and he did not
have symptomatic lumbar radiculopathy. Dr. Fries indicated his agreement with Dr. O’Shea and
the other physicians of record that appellant reached maximum benefits from treatment of his
lumbar pathology, noting that Dr. Ross had changed her opinion earlier this year. He noted that
appellant currently had disability due to his right shoulder, possibly his low back and bilateral total
knee replacements.

5

By decision dated September 5, 2019, an OWCP hearing representative affirmed OWCP’s
January 28, 2019 termination decision. The hearing representative found that Dr. Askin’s opinion
represented the weight of the medical evidence that the accepted medical conditions had resolved
without residuals.
In a letter dated September 20, 2019, OWCP requested that Dr. Fries clarify his August 9,
2019 opinion and provide a well-reasoned medical opinion as to whether the acceptance of
appellant’s claim should be expanded to include right shoulder or lumbar conditions. In an
October 16, 2019 addendum report, Dr. Fries quoted from his August 9, 2019 report that the
June 30, 2017 employment injury had aggravated preexisting degenerative pathologies of the right
shoulder, that appellant’s lumbar spine pathology was not related to the June 30, 2017 employment
injury, and that appellant did not have symptomatic lumbar radiculopathy. He indicated that he
was unware of any new condition affecting appellant and that appellant had reached maximum
medical benefit form care for any injuries he sustained on June 30, 2017 when presented for
examination on July 31, 2019.
On November 21, 2019 OWCP again requested that Dr. Fries clarify his July 31 and
October 16, 2019 opinions regarding whether appellant’s claim should be expanded for acceptance
of a right shoulder condition.
OWCP subsequently received an October 29, 2019 report, wherein Dr. Ross reported
physical examination findings of the right shoulder, noting that appellant’s back, elbow, and knee
examination was unchanged. Dr. Ross indicated that the August 2019 MRI scan of the right
shoulder showed rotator cuff tear, glenohumeral effusion and chronic clavicular joint arthrosis
along with biceps tendinitis. She diagnosed status post right elbow injury/fracture, status post
lumbar spine injury and right shoulder injury, rotator cuff tear and right shoulder with worsening
arthrosis, post-traumatic. Dr. Ross indicated that the August 2019 MRI scan findings correlated
with the June 30, 2017 employment injury. She opined that appellant injured his rotator cuff in
addition to fracturing the glenoid and sustained an exacerbation of his u nderlying arthrosis as a
result of the employment injury.
In a November 22, 2019 report, Dr. Fries opined that the temporary aggravation of
appellant’s right shoulder had resolved as there were no measurable residuals and objective
findings were consistent with preexisting and age-related pathology. He indicated that appellant
has substantial degenerative right shoulder pathology unrelated to the June 30, 2017 employment
injury.
By decision dated December 6, 2019, OWCP accepted the additional conditions of
temporary aggravation of preexisting right shoulder degeneration (resolved as of August 9, 2019)
based on the reports from Dr. Fries.
By separate decision also dated December 6, 2019, OWCP denied the expansion of the
acceptance of the claim to include an additional diagnosis of exacerbation of lumbar spondylosis
with grade 1 anterolisthesis of L3-4 right lower extremity radiculitis. The special weight of the
medical evidence was accorded to the reports of Dr. Fries.

6

On December 16, 2019 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review with regard to both December 6, 2019
OWCP decisions.
A telephonic hearing was held on April 1, 2020. By decision dated May 13, 2020, the
hearing representative affirmed both December 6, 2019 OWCP decisions.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.6 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment
injury.7 OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background. 8
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability. 9 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment. 10
Section 8123(a) of FECA 11 provides that, if there is disagreement between the physician
making the examination for OWCP and the employee’s physician, the Secretary shall appoint a
third physician, known as a referee physician or IME, who shall make an examination. 12 This is
called a referee examination and OWCP will select a physician who is qualified in the appropriate
specialty and who has no prior connection with the case. 13 Where there exist opposing medical
reports of virtually equal weight and rationale and the case is referred to an IME for the purpose
of resolving conflict, the opinion of such specialist, if sufficiently well rationalized and based upon
a proper factual background, must be given special weight. 14
6

J.T., Docket No. 19-1723 (issued August 24, 2020); S.P., Docket No. 19-0196 (issued June 24, 2020); S.F., 59
ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
7

See C.G., Sr., Docket No. 20-0808 (issued April 23, 2021); S.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989).

8

S.P., supra note 6; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Ryker, 40 ECAB 284 (1988).

9

S.P., supra note 6; J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued
February 27, 2019).
10

D.G., Docket No. 19-1259 (issued January 29, 2020); L.S., Docket No. 19-0959 (issued September 24, 2019);
R.P., Docket No. 18-0900 (issued February 5, 2019).
11

Supra note 1 at § 8123(a).

12

Id.; L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994).

13

20 C.F.R. § 10.321.

14

D.G., supra note 10; D.W., Docket No. 18-0123 (issued October 4, 2018); Gloria J. Godfrey, 52 ECAB 486
(2001); Gary R. Sieber, 46 ECAB 215, 225 (1994).

7

ANALYSIS -- ISSUE 1
OWCP properly determined that a conflict in medical opinion existed between Dr. Ross,
appellant’s treating physician, and Dr. Askin, the second opinion physician, on the issue of
whether the June 30, 2017 employment injury adversely affected the diagnosed low back and right
shoulder conditions. Dr. Ross opined that the June 30, 2017 employment injury adversely affected
the diagnosed low back and right shoulder conditions while Dr. Askin maintained that those
conditions were solely due to the aging process. Accordingly, pursuant to 5 U.S.C. § 8123(a), it
referred appellant to Dr. Fries, serving as the IME, to resolve the conflict.15
In an August 9, 2019 report, Dr. Fries noted appellant’s history, reviewed the medical
record, and noted examination findings. Based on appellant’s continued right shoulder complaints
and findings since the June 30, 2017 incident, Dr. Fries opined that it was reasonable to consider
that the incident aggravated preexisting degenerative pathologies of the right shoulder. This was
based upon appellant’s claim of no prior symptoms and the absence of any medical records prior
to the employment injury that might be relevant on this issue. In addendum reports of October 16
and November 22, 2019, Dr. Fries opined that OWCP should accept a temporary aggravation of
the preexisting right shoulder degeneration. In his November 22, 2019 report, he further opined
that the temporary aggravation of the right shoulder had resolved as there were no measurable
residuals and objective findings were consistent with preexisting and age -related pathology
unrelated to the June 30, 2017 employment injury.
The Board finds that the August 9, October 16, and November 22, 2019 reports of Dr. Fries
are entitled to the special weight of the medical opinion evidence as they establish that appellant’s
temporary aggravation of preexisting right shoulder degeneration had resolved as of
August 9, 2019. Dr. Fries provided an accurate history of the June 30, 2017 employment injury,
and reviewed appellant’s medical records. He performed a thorough, clinical examination and
provided findings on examination. Dr. Fries noted that appellant’s subjective complaints were due
to his degenerative conditions and not as a result of the June 30, 2017 employment injury. The
Board finds that Dr. Fries provided a well-rationalized opinion based on a complete factual
background, SOAF, a review of the medical record, and physical examination findings.
Accordingly, Dr. Fries’ medical opinion was sufficient for OWCP to justify the acceptance of
temporary aggravation of preexisting right shoulder degeneration, which resolved as of
August 9, 2019.
LEGAL PRECEDENT -- ISSUE 2
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.16

15

V.K., Docket No. 19-0422 (issued June 10, 2020); G.B., Docket No. 19-1510 (issued February 12, 2020); R.H.,
59 ECAB 382 (2008).
16

L.F. Docket No. 20-0459 (issued January 27, 2021); W.L., Docket No. 17-1965 (issued September 12, 2018);
V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

8

The medical evidence required to establish causal relationship between a specific
condition, as well as any attendant disability claimed, and the employment injury, is rationalized
medical opinion evidence. 17 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the employment must be based on a complete factual and
medical background. 18 Additionally, the opinion of the physician must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and the specific employment
incident identified by the claimant. 19
Where OWCP has referred the case to an IME to resolve a conflict in the medical evidence,
the opinion of such specialist, if sufficiently well-reasoned and based upon a proper factual
background, must be given special weight. 20
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision.
As found above, OWCP properly determined that a conflict in medical opinion existed
between Dr. Ross, appellant’s treating physician, and Dr. Askin, the second opinion physician, as
to whether the June 30, 2017 employment injury adversely caused or aggravated appellant’s low
back and lower extremity conditions and OWCP referred appellant to Dr. Fries for an impartial
medical evaluation.
In his August 9, 2019 report, Dr. Fries noted his review of the April 18, 2019 SOAF and
appellant’s medical record. He reported his physical examination findings of July 31, 2019. In
relevant part, Dr. Fries diagnosed chronic low back pain and multilevel lumbar spine degeneration.
In his August 9, 2019 report, he also related that he must accept Dr. Ross’ documentation and
conclude that any injuries sustained to his back or lower extremity had fully resolved. Dr. Fries
related that any subsequent complaints in these areas were due to conditions unrelated to
appellant’s accepted trauma. OWCP recognized that his opinion was unclear and rationalized as
to whether appellant’s diagnosed lumbar and lower extremity conditions, as found by Dr. Ross,
had existed and were causally related to the accepted employment injury, even if it had resolved
prior to his evaluation. On September 20, 2019 it requested that Dr. Fries clarify his opinion
regarding appellant’s alleged right shoulder, lumbar conditions and lower extremity conditions,
and provide rationalized medical opinion in support of his conclusions. However, in his
October 16, 2019 report, Dr. Fries referenced his August 9, 2019 report and did not add any further
explanation or medical rationale. While on November 21, 2019 OWCP requested that Dr. Fries

17

T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
18

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

19

See M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
20

See supra note 16.

9

further clarify his report regarding appellant’s claimed right shoulder condition, it did not request
further clarification regarding appellant’s claimed lumbar condition.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done.21 Once
it undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issues in the case. 22
In a situation where OWCP secures an opinion from an IME for the purpose of resolving
a conflict in the medical evidence and the opinion from such examiner requires clarification or
elaboration, it has the responsibility to secure a supplemental report from the examiner for the
purpose of correcting the defect in the original opinion.23
The Board finds that Dr. Fries’ reports required further clarification, supported by medical
rationale, as to whether appellant’s accepted employment injury caused or aggravated appellant’s
lumbar spondylosis with grade 1 anterolisthesis at L3-4 and right lower extremity radiculitis. As
OWCP did not obtain a rationalized medical opinion clarifying Dr. Fries’ prior reports, this case
must be remanded for further development of his opinion.
On remand, OWCP shall refer appellant’s entire medical record to Dr. Fries and request
that he provide a supplemental opinion as to whether the accepted employment injury caused or
aggravated appellant’s lumbar spondylosis with grade 1 anterolisthesis at L3-4 and right lower
extremity radiculitis. After this and other such further development as deemed necessary, it shall
issue a de novo decision.
CONCLUSION
The Board finds that OWCP met its burden of proof to establish that the accepted
temporary aggravation of a preexisting right shoulder degeneration had resolved as of
August 9, 2019. The Board further finds that the case is not in posture for decision with regard to
expansion of the acceptance of the claim to include additional medical conditions of lumbar
spondylosis with grade 1 anterolisthesis of L3-4 and right lower extremity radiculitis causally
related to his accepted employment injury.

21

See L.B., Docket No. 19-0432 (issued July 23, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

22

Id.; see also S.A., Docket No. 18-1024 (issued March 12, 2020).

23

Docket No. 17-1118 (issued April 5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

10

ORDER
IT IS HEREBY ORDERED THAT the May 13, 2020 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part; the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: January 21, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

11