United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTH TEXAS HEALTH CARE SYSTEM,
Dallas, TX, Employer
__________________________________________

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Appearances:
Michael E. Woods, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1155
Issued: January 30, 2017

Case Submitted on the Record

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

JURISDICTION
On May 11, 2016 appellant, through her representative, filed a timely appeal from a
March 4, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant established a basis for modification of an October 24,
2014 loss of wage-earning capacity determination.
FACTUAL HISTORY
OWCP accepted that on May 21, 2012 appellant, then a 29-year-old nursing assistant,
sustained herniated cervical and lumbar discs and cervical and lumbar sprains while
repositioning a patient.3 The employing establishment issued an authorization for medical
treatment on May 12, 2012. Following a brief absence, appellant returned to light-duty work in
early June 2012. She continued to have intermittent work absences, for which she received
compensation.
In a July 16, 2012 report, Dr. Ronnie D. Shade, an attending Board-certified orthopedic
surgeon, diagnosed a cervical strain and a lumbar strain related to the May 21, 2012 injuries. He
restricted appellant to working six hours a day through October 2012. Appellant received
compensation for the remaining two hours a day.4
In a November 13, 2012 report, Dr. Paul A. Vaughan, an attending Board-certified
orthopedic surgeon, noted appellant’s complaints of severe neck pain since the accepted work
injury. He attributed her symptoms to possible instability at C5-6. As November 20, 2012
x-rays showed C5-6 instability, Dr. Vaughan recommended an anterior discectomy and fusion.
He held appellant off work as of November 26, 2012. OWCP issued compensation for
temporary total disability through March 9, 2013.5 Appellant continued to claim wage-loss
compensation (Forms CA-7).
On April 5, 2013 OWCP obtained a second opinion from Dr. James Butler, a Boardcertified orthopedic surgeon, regarding the necessity of the proposed cervical fusion, and
whether appellant’s lumbar condition continued to be related to the accepted injury. Dr. Butler
reviewed the medical record and statement of accepted facts (SOAF) provided by OWCP. On
examination, he observed normal cervical and lumbar ranges of motion, normal strength in both
upper extremities, and weakness of right hand grip. Dr. Butler diagnosed thoracic outlet
syndrome, right greater than left, resolved cervical and lumbar strain/sprain without evidence of
cervical or lumbar disc disease, and obesity. He opined that appellant’s lumbar condition was
3

June 8, 2012 magnetic resonance imaging scans showed disc bulges at C4-5 and C6-7, a central shallow disc
protrusion at C5-6, and low grade disc bulging at L4-5 and L5-S1. August 27, 2012 electromyography and nerve
conduction velocity testing showed acute multilevel cervical root denervation consistent with radiculopathy, greatest
at C5-6, without evidence of lumbar radiculopathy.
4

In an October 22, 2012 report, Dr. Ed Wolski, an attending Board-certified family practitioner, diagnosed
cervical and lumbar disc displacement, cervical radiculopathy, and lumbar radiculitis related to the accepted
May 12, 2012 work injury. He limited appellant to working four hours a day.
5

Appellant underwent a series of cervical epidural steroid injections from January to March 2013. On March 7,
2013 she received lumbar facet injections from L2 through S1 on the right, bilateral sacroiliac injections. On
April 25, 2013 appellant underwent medial facet branch rhizotomies at L2, L3, L4, L5, S1, S2, and S3 on the right.

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due to obesity rather than the accepted injury, and that the recommended discectomy and fusion
was unrelated to the accepted work injury. Dr. Butler noted work restrictions.
By decision dated May 21, 2013, OWCP denied appellant’s claim for wage-loss
compensation from March 10 to May 10, 2013, based on Dr. Butler’s opinion that the accepted
injuries ceased without residuals. In a May 28, 2013 letter, through appellant’s representative,
appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings and
Review.
On May 30, 2013 OWCP determined that there was a conflict of medical opinion
between Dr. Butler, for the government, and Dr. Vaughan for appellant, regarding her work
capacity and whether the claim should be expanded to accept thoracic outlet syndrome. On
August 7, 2013 it selected Dr. Phillip Williams, Jr., a Board-certified neurosurgeon, as impartial
medical examiner.6
By decision dated August 12, 2013, an OWCP hearing representative reversed OWCP’s
May 21, 2013 decision, finding that the case was not in posture for decision.7 The hearing
representative remanded the case to obtain a supplemental report from Dr. Butler regarding the
etiology of the diagnosed thoracic outlet syndrome.
In a September 5, 2013 report, Dr. Williams reviewed the medical record and SOAF. On
examination, he found a good range of cervical spine motion, questionable weakness in grip
strength on the right, and 4+/5 weakness in the right arm. Dr. Williams diagnosed aggravation of
displacement of cervical and lumbar intervertebral discs, lumbar spine sprain, and cervical spine
sprain. He found no evidence of herniated discs. Dr. Williams found that appellant did not have
thoracic outlet syndrome. He provided work restrictions limiting her to working four hours a
day, with pushing, pulling, and lifting restricted to 20 pounds or less.
Dr. Shade provided periodic reports holding appellant off work through
October 10, 2013. He opined that she had thoracic outlet syndrome,8 but that the accepted
cervical and lumbar strains had resolved.
On October 18, 2013 the employing establishment offered appellant a permanent
modified position as a nursing assistant working four hours a day, five days a week. Duties
included obtaining patient vital signs using a rolling machine, conducting finger prick blood
glucose checks, obtaining the weight of patients who were able to stand independently, entering
vital signs into a computer, and feeding residents. Tasks could be completed sitting or standing
within the restrictions given by Dr. Williams against pushing, pulling, or lifting more than 20
pounds. Appellant accepted the position on October 22, 2013. She returned to work on
6

The record contains a bypass search log and a (Form ME023) appointment schedule notification dated
August 7, 2013.
7

OWCP issued appellant wage-loss compensation retroactive to May 21, 2013.

8

In an October 2, 2013 report, Dr. Samuel S. Ahn, an attending Board-certified vascular surgeon, diagnosed
venous compression and thoracic outlet syndrome based on positive photoplethysmography testing. He
recommended a right supraclavicular total scalenectomy.

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October 28, 2013 for four hours a day. Following her return to work, OWCP issued
compensation for the remaining 20 hours a week.
Dr. Shade submitted progress notes through October 2014 finding appellant able to
perform the modified-duty position, with brief work absences due to symptom flares. Appellant
remained under treatment.9
By decision dated October 24, 2014, OWCP found that the permanent, modified
part-time nursing assistant position properly represented appellant’s wage-earning capacity. It
found that appellant had successfully performed the job beginning on October 18, 2013, with
earnings of $342.91 a week. OWCP obtained information from the employing establishment
demonstrating that the current pay rate for appellant’s job and step when injured was $646.16 as
of September 22, 2014. Appellant would receive net compensation every four weeks at the rate
of $941.00. OWCP noted that, although the modified job was part time and therefore not
equivalent to her date-of-injury position, it was permissible to find that it represented her
wage-earning capacity because it involved “the number of hours [appellant] is capable of
working as determined by the medical evidence.” As appellant was “working less than full time
based on [appellant’s] medical restrictions, the necessary criteria have been met,” and a
determination could be made that her earnings fairly and reasonably represented her wageearning capacity.
On December 16, 2014 OWCP obtained an updated second opinion from Dr. Gary
Hutchinson, a Board-certified neurosurgeon. Dr. Hutchinson reviewed the medical record and
SOAF. He related that appellant had “difficulty working more than three days [a week] because
of [appellant’s] neck pain and numbness and weakness in her right arm,” and that using a
computer at work increased her symptoms. On examination, Dr. Hutchinson observed
tenderness to palpation of the cervical paraspinal musculature, a gibbus deformity in the C7 to
T2 area, no tenderness at Erb’s point on the right and trace tenderness on the left, negative
Adson’s maneuver bilaterally, some diminished pinprick sensation in the thumb and index finger
of each hand in the C6 dermatome, and no signs of carpal tunnel syndrome in either arm. He
opined that appellant had no objective evidence of thoracic outlet syndrome. Dr. Hutchinson
diagnosed chronic cervical strain, aggravated by required computer use at work. He explained
that sitting in a head forward position while working at a computer produced “severe chronic
cervical strain.”
Appellant stopped work on February 2, 2015. She claimed compensation for total
disability from February 3, 2015 onward. On February 9, 2015 Dr. Shade held appellant off
work as of February 2, 2015 due to increased cervical and lumbar pain. He opined on March 10,
2015 that the accepted injuries caused thoracic outlet syndrome and chronic pain syndrome.
In a March 19, 2015 letter, OWCP advised appellant of the additional evidence needed to
modify the October 24, 2014 loss of wage-earning capacity determination, including a material
change in the nature and extent of the injury-related condition, or that she had been retrained or
9

Appellant underwent right medial branch facet blocks from L3 to S3 on March 26, 2014, medial branch facet
rhizotomies at L3, L4, L5, S1, S2, and S3 on the right on May 14, 2014, bilateral cervical facet injections at C3
through T1, bilateral fist rib injections, and right suboccipital nerve block on July 23, 2014.

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vocationally rehabilitated, or that the original determination was in error. It afforded her 30 days
to submit such evidence.
In response, appellant submitted reports from Dr. Shade dated from March 25 to May 5,
2015, holding her off work due to chronic pain syndrome and thoracic outlet syndrome.
Dr. Shade noted that she was considering disability retirement.
By decision dated May 6, 2015, OWCP denied modification of the October 24, 2014 loss
of wage-earning capacity determination, finding that the medical evidence of record
demonstrated only an increase in pain symptoms, but no objective evidence that appellant was
disabled from performing the modified-duty position for four hours a day.
On May 6, 2015 OWCP expanded the claim to include displacement of a cervical
intervertebral disc without myelopathy, displacement of lumbar intervertebral disc without
myelopathy, and brachial neuritis/radiculitis.
In a May 18, 2015 letter, appellant requested a telephonic oral hearing before a
representative of OWCP’s Branch of Hearings and Review. She contended that when arriving at
work at 7:30 a.m., she was required to “push three to four veterans in a wheelchair to and from
the dining room for breakfast,” a distance of 30 to 100 feet. Appellant was also required to push
the veterans back to their rooms after breakfast. On occasion, she was also required to push
patients to and from the main hospital to attend medical appointments, a distance of 800 to 1200
feet depending on the location of the medical office. Appellant provided a June 11, 2015 witness
statement from coworker L.B., confirming that she had witnessed appellant “pushing veterans in
their wheelchairs to and from the dining room and back to unit since [appellant’s] return to
work.” The coworker also witnessed appellant “transporting veterans to and from the
[employing establishment’s] main hospital. Numerous times [appellant’s] has asked for help
stating [that] she [i]s not supposed to push patients, but due to staffing being short-handed she
assisted.” L.B. and other coworkers assisted appellant when possible.
At the hearing, held January 19, 2016, appellant’s representative contended that OWCP
should have allowed Dr. Butler to clarify his opinion before finding a conflict and selecting
Dr. Williams as impartial medical examiner.10 Appellant contended that she was forced to work
outside of her 20-pound pushing and pulling restrictions by being assigned to push patients in
wheelchairs.
Appellant’s representative provided a May 30, 2015 statement contending that the
October 24, 2014 loss of wage-earning capacity determination was erroneous as the modified
nursing assistant position did not conform to appellant’s work restrictions. He noted that
Dr. Williams opined that her assigned computer duties worsened the accepted cervical
conditions.
On May 20, 2015 Dr. Shade opined that pushing patients in wheelchairs aggravated
appellant’s bulging cervical discs, causing upper extremity radiculopathy that disabled her for
work. He explained that the force of bending forward to push a patient in a wheelchair exerted
10

Following the hearing, the representative submitted a February 16, 2016 statement reiterating this contention.

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weighted pressure on the intervertebral spaces, placing pressure on cervical spinal nerves.
Dr. Shade continued to hold appellant off work through July 2015. She received additional
cervical epidural steroid injections.11
By decision dated March 4, 2016, an OWCP hearing representative affirmed the May 6,
2015 decision, finding that appellant had not established a worsening of her accepted condition,
that she had been vocationally retrained or rehabilitated, or that the original loss of wage-earning
capacity determination was in error. She found that Dr. Shade’s reports were insufficiently
rationalized to establish an objective worsening of the accepted conditions. The hearing
representative noted that if appellant believed that her modified duties worsened her condition,
she should file a new claim.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination.12
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.13 The Board has held that a
new injury while on modified duty is not a material change in the nature and extent of the
original injury-related condition such that a wage-earning capacity warrants modification.14
OWCP’s procedures provide that, “[i]f a formal loss of wage-earning capacity decision
has been issued, the rating should be left in place unless [appellant] requests resumption of
compensation for total wage loss. In this instance the [claims examiner] will need to evaluate the
request according to the customary criteria for modifying a formal loss of wage-earning
capacity.”15 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.16
A light-duty position that fairly and reasonably represents an employee’s ability to earn
wages may form the basis of a loss of wage-earning capacity determination if that light-duty

11

January 13, 2016 computed tomography studies demonstrated a grade 1 Arnold-Chiari malformation and an
L5-S1 annular tear.
12

See Sharon C. Clement, 55 ECAB 552 (2004).

13

Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick, 45 ECAB 211 (1993).

14

S.K., Docket No. 16-0171 (issued April 25, 2016).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Harley Sims, Jr., 56 ECAB 320 (2005).
16

Selden H. Swartz, 55 ECAB 272, 278 (2004).

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position is a classified position to which the injured employee has been formally reassigned.17
The position must conform to the established physical limitations of the injured employee; the
employing establishment must have a written position description outlining the duties and
physical requirements; and the position must correlate to the type of appointment held by the
injured employee at the time of injury.18 If these circumstances are present, a determination may
be made that the position constitutes “regular” federal employment.19
With respect to part-time employment, FECA Procedure Manual provide: (1) a part-time
position may form the basis of a loss of wage-earning capacity determination if the employee
was a part-time worker at the time of injury; and (2) for an employee who was a full-time
employee on the date of injury, a part-time position may form the basis of a loss of wage-earning
capacity determination if the employee’s stable, established work restrictions limit him or her to
part-time work.20 For a part-time position to fairly and reasonably represent the wage-earning
capacity of an individual who was a full-time employee on the date of injury, the position should
involve the number of hours the employee is capable of working as indicated in the current,
stable work restrictions.21
As long as there is no work stoppage due to the accepted condition(s), a formal loss of
wage-earning capacity determination should be issued following 60 calendar days from the date
of return to work.22
ANALYSIS
OWCP accepted that appellant sustained herniated cervical and lumbar discs, cervical
and lumbar sprains, displacement of a cervical intervertebral disc without myelopathy,
displacement of lumbar intervertebral disc without myelopathy, and brachial neuritis/radiculitis
when she moved an obese patient on May 21, 2012.
Dr. Shade and Dr. Vaughan, attending Board-certified orthopedic surgeons, found
appellant intermittently disabled for work through 2012. On April 5, 2013 OWCP obtained a
second opinion from Dr. Butler, a Board-certified orthopedic surgeon, who attributed her
symptoms to thoracic outlet syndrome. Appellant filed a claim for wage-loss compensation from
March 10, 2013 and continuing, which was denied by a May 21, 2013 OWCP decision.
On May 30, 2013 OWCP found a conflict of opinion between Dr. Vaughan, for appellant,
and Dr. Butler, for the government. On August 7, 2013 it selected Dr. Williams, a Board17

20 C.F.R. § 10.510. S.K., Docket No. 16-0171 (issued April 25, 2016).

18

Id. at § 10.510.

19

Id.

20

Supra note 15 at Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual Earnings, Chapter
2.815.5c(1)(b) (June 2013).
21

Id.

22

Id. at Chapter 2.815.6a.

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certified neurosurgeon, to resolve the conflict. After this selection, an OWCP hearing
representative issued an August 12, 2013 decision reversing the May 21, 2013 decision, and
directed OWCP to obtain a supplemental opinion from Dr. Butler regarding the etiology of
appellant’s thoracic outlet syndrome. However, as OWCP had already found a conflict of
opinion involving Dr. Butler, it proceeded to obtain the impartial opinion. Dr. Williams
provided a September 5, 2013 report finding appellant able to work four hours a day, five days a
week with lifting, pulling and, pushing limited to 20 pounds. Beginning on October 28, 2013
appellant worked as a modified nursing assistant at the employing establishment within these
restrictions.
Appellant successfully performed the position through October 2014. Therefore, by
decision dated October 24, 2014, OWCP found that her actual duties as a modified nursing
assistant fairly and reasonably represented her wage-earning capacity. The Board finds that as
the medical evidence established that appellant was medically restricted to working 20 hours a
week, and the modified position was also for 20 hours a week, OWCP was permitted to base the
loss of wage-earning capacity determination on this part-time position.23
Appellant stopped work on February 2, 2015 and did not return. She claimed
compensation for total disability beginning February 3, 2015. The Board finds that OWCP
properly interpreted the claim as one for modification of the loss of wage-earning capacity
determination.24 OWCP denied the claim by decision dated May 6, 2015. In a telephone
hearing, appellant asserted that she became disabled from work as she was forced to work
outside of her 20-pound pushing restriction. She described being assigned to push patients in
wheelchairs to and from meals and medical appointments. Appellant provided a witness
statement corroborating this account of events. The Board finds that she has established as
factual that she pushed patients in wheelchairs as alleged. Following the hearing, Dr. Shade
provided a May 20, 2015 letter opining that the physical strain of pushing patients in wheelchairs
caused upper extremity radiculopathies, disabling her for work.
Appellant also contended that using a computer at work aggravated her cervical spine
symptoms. Dr. Hutchinson, a Board-certified neurosurgeon and second opinion physician,
opined on December 16, 2014 that using a computer at work as assigned aggravated accepted
cervical conditions and created chronic cervical strain.
OWCP affirmed the loss of wage-earning capacity determination by the March 4, 2016
decision, finding that appellant had not established that the accepted conditions had
spontaneously worsened, disabling her from her modified-duty job. Rather, the medical
evidence supported that new work factors, including using a computer and pushing patients in
wheelchairs, aggravated or caused spinal conditions disabling her for work. The Board has held
that when a claimant sustains a new injury while on modified duty, this does not constitute a
material change in the accepted condition requiring a modification of a standing loss of wageearning capacity determination.25 Appellant did not assert that the original determination was
23

Id. at Chapter 2.815c(1)(b).

24

See supra note 15.

25

Supra note 14.

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erroneous, or that she had been vocationally rehabilitated. She thus has failed to establish any of
the three criteria for modifying a loss of wage-earning capacity determination. The Board
therefore finds that OWCP’s March 4, 2016 decision is proper under the law and facts of the
case.
On appeal, appellant’s representative contends that OWCP should not have obtained an
impartial medical opinion from Dr. Williams, appointed to resolve a conflict of opinion between
Dr. Vaughan, for appellant, and Dr. Butler, for the government, without first obtaining
clarification from Dr. Butler as directed by OWCP’s hearing representative’s August 12, 2013
decision. The Board notes, however, that OWCP has broad discretion in the development of the
evidence. Appellant’s case was not prejudiced by moving the case forward to obtain an impartial
medical opinion regarding her work capacity, rather than first obtaining a supplemental report
from a physician already on one side of the conflict.
The representative also contends that appellant was made to work outside her restrictions.
As set forth above, there is adequate factual evidence to substantiate that pushing patients in
wheelchairs violated appellant’s restriction against pushing more than 20 pounds. However, as
explained, this is not a basis for modifying the loss of wage-earning capacity determination. As
the hearing representative noted in the March 4, 2016 decision, it indicates that appellant
sustained a new injury, for which she could choose to file a new claim for traumatic injury or
occupational disease.
Appellant may request modification of the loss of wage-earning capacity determination,
supported by new evidence or argument, before OWCP at any time.
CONCLUSION
The Board finds that appellant has not established a basis for modification of the
October 24, 2014 wage-earning capacity determination.

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ORDER
IT IS HEREBY ORDERED THAT the March 4, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 30, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION FACILITY, New Castle, PA,
Employer
__________________________________________

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Appearances:
Douglas Sughrue, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-519
Issued: September 10, 2010

Case Submitted on the Record

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

JURISDICTION
On December 14, 2009 appellant, through his attorney, filed a timely appeal from the
August 31, 2009 recurrence of disability decision of the Office of Workers’ Compensation
Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on July 22, 2008
causally related to her February 24, 2007 employment injury.
FACTUAL HISTORY
On February 24, 2007 appellant, then a 51-year-old clerk, filed a traumatic injury claim
for an injury to her back, right leg and elbow when she slipped and fell between a truck and the
dock lift. On May 8, 2007 Dr. Elbert Acosta, her attending physician, stated that his diagnosis at
the time of the fall and on the May 2007 visit, was pain in her lower back and leg. He noted that
a magnetic resonance imaging (MRI) scan revealed degenerative disc disease and disc bulges at

L3 to L5. Dr. Acosta did not indicate that the disc bulges were caused by the February 24, 2007
fall. The Office accepted appellant’s claim for a left leg contusion, lower back contusion and
right elbow abrasion.
On July 19, 2007 Dr. Parvaz Baghai, an attending Board-certified neurosurgeon,
reviewed the medical history and provided findings on physical examination, who diagnosed
lumbar stenosis, as revealed in a March 2007 MRI scan, at the L3 to L5 levels, secondary to
degenerative changes in the lumbar spine. Dr. Baghai opined that the February 24, 2007 work
incident caused the lumbar stenosis to become symptomatic. On April 28, 2008 he noted that
appellant could not walk or stand for any length of time.
Appellant underwent back surgery on July 22, 2008 for lumbar stenosis at L3 to L5. She
filed a claim for a recurrence of disability on that date.
In an August 8, 2008 memorandum, Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon and an Office medical adviser, reviewed the medical records including February 25,
2007 x-rays and lumbar spine MRI scans on March 6, 2007 and May 16, 2008 revealing
degenerative changes. He reviewed the reports from Dr. Baghai. Dr. Berman opined that
appellant’s longstanding osteoarthritic and spinal stenotic changes in the lumbar spine caused the
need for the July 22, 2008 back surgery, not the February 24, 2007 back contusion.
The Office found a conflict in medical opinion between Dr. Baghai and Dr. Berman. It
referred appellant together with the case file and statement of accepted facts, to Dr. Michael J.
Jurenovich, a Board-certified osteopathic orthopedic surgeon and an impartial medical specialist,
to resolve the conflict.
In an October 21, 2008 report, Dr. Jurenovich reviewed the medical history, including the
results of x-rays and MRI scans. He provided findings on physical examination. The history
provided by appellant was that she fell backward while loading a truck at work, striking her
elbow, right leg and back. Her accepted conditions included a left leg contusion, low back pain
and right elbow abrasions. Dr. Jurenovich noted that appellant had a long history of
osteoarthritis and lumbar spinal stenosis prior to her 2007 employment injury. On physical
examination straight-leg raising was mildly positive in the left leg at 90 degrees and negative in
the right leg. There was no atrophy in either lower extremity. Appellant left leg contusions and
right elbow abrasions had healed. The July 22, 2008 operative report indicated no evidence of
disc herniation. There was no acute injury that required the back surgery. Dr. Jurenovich opined
that the July 22, 2008 back surgery was not causally related to appellant’s February 24, 2007
employment injury, a lower back contusion.
By decision dated October 29, 2008, the Office found that Dr. Jurenovich’s opinion was
entitled to special weight. Dr. Jurenovich’s opinion established that appellant’s July 22, 2008
recurrence of disability was not causally related to her February 24, 2007 employment injury.
Appellant requested reconsideration. In reports dated February 2 and 24, 2009,
Dr. Baghai stated that the disc bulges at L3 to L5 revealed in the March 2007 MRI scan
contributed to her preexisting lumbar spine stenosis. He opined that the February 24, 2007
employment injury aggravated appellant’s preexisting degenerative changes in her lumbar spine

2

and necessitated the July 22, 2008 back surgery. During appellant’s fall on February 24, 2007,
there was a loading mechanism of the spine that was likely to result in disc bulging. Bulging of
the L3-4 and L4-5 disc was the significant element in causing her lumbar spine condition to
become symptomatic. Despite her preexisting degenerative lumbar spine disease, appellant
functioned effectively until the fall which resulted in sudden aggravation of the spinal stenosis by
the addition of the disc bulging to the preexisting degenerative process.
By decision dated August 31, 2009, the Office denied modification of the October 29,
2008 decision.1
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”2 An employee who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for he or she claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound reasoning.3 Where no such rationale is present, medical
evidence is of diminished probative value.4
Section 8123(a) of the Act 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.5 Where a case is referred to an
impartial medical specialist for the purpose of resolving a conflict, the opinion of such specialist,
if sufficiently well rationalized and based on a proper factual and medical background, must be
given special weight.6

1

Subsequent to the August 31, 2009 Office decision, additional evidence was associated with the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

See Ronald C. Hand, 49 ECAB 113 (1957); see also Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

5

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).
6

See Roger Dingess, 47 ECAB 123 (1995); Glenn C. Chasteen, 42 ECAB 493 (1991).

3

ANALYSIS
Appellant has the burden to provide medical evidence establishing that she sustained a
recurrence of disability on July 22, 2008 causally related to her February 24, 2007 accepted left
leg and lower back contusions and right elbow abrasions.
Due to the conflict in medical opinion between Dr. Baghai and Dr. Berman, the Office
referred the case to Dr. Jurenovich for an independent medical examination.
Dr. Jurenovich, a Board-certified orthopedic surgeon, who was provided with a statement
of accepted facts and the case file, conducted an independent review of appellant’s lumbar spine
condition. He reviewed the medical history, including the results of x-rays and MRI scans. The
history provided by appellant was that she fell backward while loading a truck at work, striking
her elbow, right leg and back. Her accepted conditions included a left leg contusion, low back
pain and right elbow abrasions. Dr. Jurenovich noted that appellant had a long history of
osteoarthritis and lumbar spinal stenosis prior to her 2007 employment injury. He provided
findings on physical examination including straight-leg raising that was mildly positive in the
left leg at 90 degrees and negative in the right leg. There was no atrophy in either lower
extremity. The July 22, 2008 operative report indicated no evidence of disc herniation. There
was no acute injury that required the back surgery. Dr. Jurenovich opined that the July 22, 2008
back surgery was not causally related to appellant’s February 24, 2007 lower back condition, a
contusion.
The report of Dr. Jurenovich is based upon a complete and accurate factual and medical
background. The Board finds that Dr. Jurenovich’s thorough and well-rationalized report
established that appellant’s July 22, 2008 lumbar surgery and recurrence of disability was not
causally related to her February 24, 2007 employment injury. Appellant failed to meet her
burden of proof to establish that she sustained a work-related recurrence of disability on
July 22, 2008.
In February 2009, Dr. Baghai contended that appellant’s February 24, 2007 fall was
likely to have caused disc bulging. He stated that the disc bulges at L3 to L5 revealed in the
March 2007 MRI scan contributed to appellant’s preexisting lumbar spine stenosis, causing her
lumbar spine condition to become symptomatic. Despite her preexisting degenerative lumbar
spine disease, appellant functioned effectively until the February 24, 2007 fall which resulted in
sudden aggravation of the spinal stenosis by the addition of the disc bulging to the preexisting
degenerative process. Dr. Baghai opined that the February 24, 2007 employment injury
aggravated appellant’s preexisting degenerative changes in her lumbar spine and necessitated the
July 22, 2008 back surgery. An additional report from a claimant’s physician, which essentially
repeats earlier findings and conclusions, is generally insufficient to overcome the weight
accorded to an impartial medical specialist’s report where the claimant’s physician had been on
one side of the conflict in the medical opinion that the impartial medical examiner resolved.7
Dr. Baghai was on one side of the conflict which Dr. Jurenovich’s opinion was found to resolve.
He did not explain how the February 24, 2007 fall caused disc bulges in appellant’s lumbar
7

See Roger G. Payne, 55 ECAB 535 (2004).

4

spine. Dr. Baghai did not mention disc bulges in his July 19, 2007 report or July 22, 2008
operative report. His February 2009 reports did not explain why he failed to address appellant’s
disc bulges in his earlier reports. Such explanation is particularly important in light of the
significance Dr. Baghai gave to the disc bulges in his February 2009 reports. The Board finds
that Dr. Baghai’s February 2009 reports are not sufficient to overcome the weight of
Dr. Jurenovich’s medical opinion.
On appeal appellant contends that there was no conflict because the Office did not
consider Dr. Baghai’s opinion. However, the record shows that Dr. Berman reviewed
Dr. Baghai’s reports. However, he did not agree with Dr. Baghai, a conflict was created.
Appellant also contends that the statement of accepted facts provided to Dr. Jurenovich was not
accurate in stating that on February 24, 2007 she fell backward while loading a truck, rather than
stating that she fell between the truck and the loading dock. However, the description in the
statement of accepted facts is the same as the description she provided to Dr. Jurenovich.
Appellant’s arguments on appeal are insufficient to establish that she sustained a recurrence of
disability on July 22, 2008 causally related to her February 24, 2007 employment injury.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she had
a recurrence of disability on July 22, 2008 causally related to her February 24, 2007 employment
injury.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 31, 2009 is affirmed.
Issued: September 10, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 08-2271
Issued: August 6, 2009

Case Submitted on the Record

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

JURISDICTION
On August 18, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 16 and July 21, 2008 merit decisions concerning the Office’s
termination of her compensation and modification of its determination of her wage-earning
capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation and modify its determination of her wage-earning capacity effective
January 16, 2008.
FACTUAL HISTORY
The Office accepted that on June 11, 1990 appellant, then a 36-year-old mail handler,
sustained a lumbosacral strain when she bent down to pick up an empty mail tub.1 It later
1

Appellant stopped work on June 11, 1990 but later returned to light-duty work for the employing establishment.

accepted that she sustained an adjustment reaction due to the injury. Appellant stopped work for
various periods and received compensation for periods of partial and total disability.
Appellant received treatment for her orthopedic problems from Dr. Thomas Hopkins, Jr.,
a Board-certified orthopedic surgeon. She received relatively little treatment for her adjustment
reaction. On May 28, 1996 Dr. Fredric K. Katrina, a Board-certified psychiatrist who served as
an Office referral physician, detailed appellant’s physical and emotional medical history. He
indicated that appellant might have some form of chronic pain disorder related to her general
medical condition. Dr. Katrina concluded, however, that appellant no longer had residuals of the
accepted adjustment disorder. He stated that she did not have objective signs of a lumbosacral
sprain and indicated that, by definition, an adjustment reaction was a time-limited diagnosis that
generally would not persist for more than six months.
On May 24, 1999 Dr. Ari-Beth Cohen, an attending Board-certified family practitioner,
stated that on examination of her back appellant did not have tenderness to palpation or spasms.
Straight leg raising was negative. On June 21, 1999 Dr. Hopkins indicated that appellant
reported low back pain without radiculopathy. He posited that she could work eight hours per
day with a restriction of lifting no more than 15 pounds.
On April 20, 2000
Dr. Wendy Lockwood, an attending clinical psychologist, stated that appellant showed signs of
depression, including apathy and feelings of hopelessness.
In 2000, appellant began to participate in vocational rehabilitation efforts. Beginning
January 7, 2002, she started working as a church secretary with wages of $300.00 per week. In a
March 11, 2002 decision, the Office adjusted appellant’s compensation effective January 27,
2002 based on its determination that her wage-earning capacity was represented by her actual
wages as a church secretary.
On March 30, 2006 Dr. Hopkins stated that he saw no change in appellant’s situation
since 1995 in that she was obese and continued to report a chronic backache. He indicated that
he would have expected the typical back strain complaint that she suffered in 1990 to be resolved
by now and he noted that he could find no objective pathology present on her examination.
Dr. Hopkins saw no reason appellant could not work on a full-time basis in a sedentary-type
position with a restriction from lifting more than 15 pounds as a preventative measure. He noted
that all of her studies were negative, that she had no objective pathology and that there was no
further treatment indicated for her. Dr. Hopkins recommended that appellant continue to work
on weight loss and continue her back exercises as there was nothing more aggressive that could
be done for her and her symptoms were typical of the usual patients with chronic back pain.
On September 18, 2007 Dr. Alexander Doman, a Board-certified orthopedic surgeon who
served as an Office referral physician, detailed appellant’s medical history and noted that she had
not sought medical treatment for a year. He stated that on examination appellant showed
intentional symptom exaggeration with complaints of severe pain with simple attempts to flex
the left and right knees to 90 degrees and rotate her pelvis to 20 degrees. She had tenderness

2

with light subcutaneous pressure over her lumbar spine, deep tendon reflexes were normal, there
were no signs of muscular atrophy and x-rays of the lumbar spine are normal. Dr. Doman stated:
“There is no diagnosis related to the June 11, 1990 work injury other than the fact
that the patient is intentionally and purposely exaggerating her complaints, in the
opinion of this examiner, for purposes of secondary gain and leads this examiner
to conclude that the diagnosis is that of a malingering the patient. This diagnosis
is supported by multiple elements during the physical examination that have no
organic basis for any pathology and represent intentional efforts to deceive this
examiner. The accepted condition of a lumbosacral strain has long ago resolved.
It is my opinion that this condition would have resolved at least 15 years ago.
Finally, it is my firm and definite opinion that [appellant] is physically able to
perform the duties as a mail handler that she held on June 11, 1990 for reasons
stated above.”2
In a December 10, 2007 notice, the Office advised appellant that it proposed to terminate
her compensation and modify its determination regarding her wage-earning capacity. It noted
that these actions were justified by the medical evidence, including the reports of Dr. Hopkins,
Dr. Doman and Dr. Katrina. The Office found that the wage-earning capacity modification was
justified by the fact that there had been a material change in her injury-related medical condition.
It provided appellant 30 days to submit evidence and argument challenging the proposed actions.
In a January 16, 2008 decision, the Office terminated appellant’s compensation and
modified its determination of her wage-earning capacity effective January 16, 2008. It found
that her condition had improved such that she no longer had wage loss due to her employment
injury.3
At a May 7, 2008 hearing before an Office hearing representative, appellant’s attorney
argued that appellant’s employment injury prevented her from earning wages beyond that earned
by a church secretary. Appellant testified that she had not seen a psychiatrist since 2002. She
submitted a May 28, 2008 report of a physician’s assistant.
In a July 21, 2008 decision, the Office hearing representative affirmed the Office’s
January 16, 2008 decision.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,4 once the Office has accepted a claim
it has the burden of justifying termination or modification of compensation benefits.5 It may not
2

Dr. Doman indicated on a form report that appellant had no restrictions.

3

Appellant did not submit any evidence in response to the Office’s December 10, 2007 notice within the allotted
time.
4

5 U.S.C. §§ 8101-8193.

5

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

3

terminate compensation without establishing that the disability ceased or that it was no longer
related to the employment.6 The Office’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7
Once a loss of wage-earning capacity is determined, a modification of such a
determination is not warranted unless there is a material change in the nature and extent of the
employment-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was in fact erroneous.8 The burden of proof is on the
party attempting to show the award should be modified.9
ANALYSIS
The Office accepted that on June 11, 1990 appellant sustained a lumbosacral strain when
she bent down to pick up an empty mail tub. It later accepted that she sustained an adjustment
reaction due to the injury. The Board finds that the Office met its burden of proof to terminate
appellant’s compensation and modify its determination of her wage-earning capacity effective
January 16, 2008.
The Office presented sufficient medical evidence to meet this burden of proof. The wellrationalized reports of Dr. Hopkins, an attending Board-certified orthopedic surgeon, and
Dr. Doman, a Board-certified orthopedic surgeon who served as an Office referral physician,
show that appellant ceased to have residuals of her June 11, 1990 lumbosacral sprain.
On March 30, 2006 Dr. Hopkins stated that he would have expected the typical back
strain complaint that appellant suffered in 1990 to be resolved by now and he noted that he could
find no objective pathology present on her examination. He saw no reason appellant could not
work on a full-time basis in a sedentary-type position with a restriction from lifting more than
15 pounds but explained that this was recommended as a preventative measure rather than being
necessitated by an employment-related condition. Dr. Hopkins noted that all of her studies were
negative, that she had no objective pathology and that there was no further treatment indicated
for her. On September 18, 2007 Dr. Doman stated that on examination appellant showed
intentional symptom exaggeration with complaints of severe pain with simple attempts to flex
the left and right knees to 90 degrees and rotate her pelvis to 20 degrees. He noted the lack of
objective findings on examination and concluded that the accepted condition of a lumbosacral
strain had long ago resolved (at least 15 years prior). Appellant’s complaints were explained by
malingering and she was able to perform the mail handler job she held on June 11, 1990.10
6

Id.

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

9

Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

10

Appellant submitted a May 28, 2008 report of a physician’s assistant in support of her claim. However, as
causal relationship is a medical question that can only be resolved by medical opinion evidence, the reports of a
nonphysician cannot be considered by the Board in adjudicating that issue. See Melvina Jackson, 38 ECAB 443,
449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

4

The May 28, 1996 report of Dr. Katrina, a Board-certified psychiatrist who served as an
Office referral physician, showed that appellant ceased to have an adjustment disorder due to the
June 11, 1990 sprain. He found that she no longer had residuals of the accepted adjustment
disorder. Dr. Katrina explained that appellant did not have objective signs of a lumbosacral
sprain and indicated that, by definition, an adjustment reaction was a time-limited diagnosis that
generally would not persist for more than six months. He indicated that she might have some
form of chronic pain disorder related to her general medical condition, but he did not clearly
indicate that this was employment related and such a condition has not been accepted by the
Office.11
The Office properly modified its March 11, 2002 wage-capacity determination in which
it had adjusted appellant’s compensation effective January 27, 2002 based on its determination
that her wage-earning capacity was represented by her actual wages as a church secretary. The
above-described medical evidence shows that there was a material change in the nature and
extent of the employment-related condition, i.e., for the better, such that appellant no longer had
wage loss because of her accepted employment injury.12 The Office properly terminated
appellant’s compensation effective January 27, 2002.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation and modify its determination of her wage-earning capacity effective
January 16, 2008.

11

On April 20, 2000 Dr. Lockwood, an attending clinical psychologist, stated that appellant showed signs of
depression, including apathy and feelings of hopelessness. She did not indicate that this condition was employment
related. Appellant testified in mid 2008 that she had not seen a psychiatrist since 2002.
12

See supra note 8.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
July 21 and January 16, 2008 decisions are affirmed.
Issued: August 6, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge, concurring:
I concur with the holding in this opinion; however, I would further hold that the Office
met its burden to terminate benefits when the evidence of rationalized medical reports
established that appellant had no residual condition causally connected to the accepted injuries,
physical and psychiatric, in this claim. I would find it unnecessary to analyze appellant’s earning
capacity.
The opinion of Dr. Doman, a Board-certified orthopedist, established that appellant had
recovered from any lumbar condition related to her strain on June 11, 1990. The opinion of
Dr. Katrina, a Board-certified psychiatrist, established that appellant had no condition causally
connected to her injury-related adjustment disorder.
If the medical evidence and opinion are strong enough to meet the Office burden of proof
to entirely terminate benefits, the same evidence must necessarily overcome the causal
connection link that formerly established a loss of wage-earning capacity. The Office burden to
disprove causal connection is identical, irrespective of whether there is a prior order in the claim
finding loss of wage-earning capacity. While a claimant may still have medical conditions or
impairments, the medical evidence must prove that causal connection no longer exists and that,
therefore, the existing conditions or impairments are unrelated to the accident or occupational
disease that gave rise to the claim.
In my view of this case, the review of the loss of wage-earning capacity was unnecessary
and potentially misleading. This opinion may suggest that a “dual analysis” need be performed

6

where there is both a termination of benefits and an order determining earning capacity. I find
that the burden is the same, the evidence is the same and process of terminating benefits need be
done only once.

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE
Wallingford, CT, Employer
__________________________________________

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

Docket No. 08-1687
Issued: December 23, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 28, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decisions dated October 31, 2007 and April 17, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
right hand and shoulder conditions, as well as left shoulder, elbow and hand conditions causally
related to factors of her federal employment.
FACTUAL HISTORY
On July 6, 2007 appellant, a 57-year-old flat sorter clerk, filed an occupational disease
claim, alleging that she had developed pain in her right shoulder and right hand incidental to her
federal employment. Specifically she alleged: her bones ache; her hand locks up; she has
terrible pain in her left shoulder from constant movement; and that she has pain in her left elbow
and hand. Appellant explained that this pain occurred “whenever I am using my hand to tie out

my case, I have to use elastic band and I have to stretch them over the mail, and then I have to
use a stamper that’s not working properly because of dried out ink.” On the claim form, she
noted that she first became aware her condition was caused by her employment in April 2007,
and that she had filed previous claims for compensation, one of which was accepted.
By letter dated September 7, 2007, the Office notified appellant that the evidence
submitted in support of her claim was insufficient. Specifically, it cited the absence of a
diagnosis by physician as well as an explanatory opinion from her personal physician concerning
how, within the context of her medical history, the event(s) caused or affected her condition.
In response to this letter, appellant submitted two reports from Dr. Michael A. Luchini, a
Board-certified orthopedic surgeon, dated September 19 and October 15, 2007. In his report
dated September 19, 2007, Dr. Luchini noted appellant’s history that her medical problems
began with a “fall down” accident on December 7, 2006 and that work, casing mail, aggravated
her condition. He stated that appellant’s examination was positive for bilateral hand tenderness
and swelling, particularly on the right side; carpal tunnel compression test particularly on the
right side is positive and less so on the left side, full motion of the elbow, limited motion of both
shoulders and diffuse tenderness about the subacromial space of both shoulders. Dr. Luchini
diagnosed appellant as having bilateral shoulder sprains with tendinitis. His assessment was that
appellant suffered from bilateral dorsiflexion sprains with subsequent carpal tunnel syndrome.
The second report from Dr. Luchini, dated October 15, 2007, stated that appellant
continued to have difficultly with her hands, particularly the right side, and that both of her
shoulders were painful. He also observed that appellant had persistent lumbar spine pain, but
never had hand or shoulder pain prior to the fall down episode of December 7, 2006.
By decision dated October 31, 2007, the Office denied appellant’s claim for
compensation, finding that the evidence submitted in support of her claim was insufficient to
establish that she sustained an injury as defined by the Federal Employees’ Compensation Act.
On January 5, 2008 appellant requested reconsideration of her claim. She submitted
progress reports from Dr. Jennifer Patten, Board-certified in internal medicine, as well as
endocrinology, diabetes and metabolism test results, which date from 2000; and progress reports
from Dr. Luchini dating from 2007.
Dr. Patten’s first report, dated June 13, 2000, diagnosed a left wrist sprain, with onset of
pain 24 hours prior. The second report from Dr. Patten detailed the results of appellant’s recheck
examination on June 16, 2000. Dr. Patten observed that appellant had only mild point-specific
tenderness to palpation at the ulnar styloid.
Dr. Luchini noted in a report dated April 16, 2007 that appellant was still bothered by her
left elbow. He surmised that it was possible that she suffered a cervical disc injury or just a
contusion and persistent strain in the left upper extremity. In a report dated September 27, 2007,
Dr. Luchini stated that appellant had a fall in a parking lot at her place of employment on
December 7, 2006. He opined that this fall affected several parts of her body. Dr. Luchini
opined that he believed that during the course of the fall appellant injured her right knee and
hand and her upper left extremity.

2

By decision dated April 17, 2008, the Office affirmed its previous denial of her claim for
compensation, modified “to reflect fact of injury.” The decision specifically stated:
“It is determined that the evidence of record is now sufficient to establish the
events as stated on your claim form regarding experiencing pain while performing
your federal duties related to casing mail. The record also contains evidence of a
diagnosis connected to the claimed injury. However, the evidence of record
remains insufficient to demonstrate a causal relationship between your federal
employment and the diagnosed conditions.”
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of establishing the essential
elements of his or her claim including: the individual is an employee of the United States within
the meaning of the Act; the claim was filed within the applicable time limitation of the Act; an
injury was sustained in the performance of duty as alleged; and that any disability and/or specific
condition for which compensation is claimed are causally related to the employment injury.
These are the essential elements of each and every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.1
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.2
Rationalized medical opinion evidence is medical evidence which includes a physician(s)
rationalized 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; be one of reasonable
medical certainty; and, be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.3 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.4 Evidence that repeats or duplicates evidence already in
the case record has no evidentiary value.5
1

Gary J. Watling, 52 ECAB 357 (2001).

2

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

3

Leslie C. Moore, 52 ECAB 132 (2000); Bobby J. Parker, 49 ECAB 260 (1997).

4

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
5

Paul Kovash, 49 ECAB 350 (1998).

3

An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between her claimed injury and her
employment.6 To establish a causal relationship, appellant must submit a physician’s report in
which the physician reviews the employment factors identified by appellant as causing her
condition and, taking these factors into consideration as well as findings upon examination of
appellant and her medical history, state whether the employment injury caused or aggravated
appellant’s diagnosed conditions and present medical rationale in support of his or her opinion.7
ANALYSIS
The Office accepted that appellant experienced pain in her upper extremities while casing
mail. However, it denied appellant’s claim for compensation benefits as the medical evidence of
record failed to establish a causal relationship between appellant’s claimed diagnosed conditions
and the accepted factors of employment. Although appellant submitted medical reports from
several treating physicians, this evidence does not address causation or describe, with detailed
rationale, the relationship between the upper extremities conditions and appellant’s duties casing
mail.
Dr. Patten’s medical reports from 2000 address appellant’s injury to the left wrist
attributable to a prior incident, which occurred on or about June 12, 2000. These reports are
neither relevant nor of any probative value as to appellant’s present claim concerning an overuse
injury due to casing mail in late 2006 and early 2007.
Dr. Luchini’s reports do address appellant’s upper extremity complaints commencing in
late 2006. His reports, however, only relate her statements regarding her history of injury and
do not provide a complete assessment of the entire medical history underlying her upper
extremity medical conditions. In a report dated October 15, 2007, Dr. Luchini opined that
appellant had never experienced hand or shoulder pain prior to December 2006, however, this
statement is contradicted by both Dr. Patten’s reports which describe a left wrist injury in
June 2000, and by his own report of September 27, 2007 wherein he noted that appellant injured
her right hand and left upper extremity during a fall on December 16, 2005.
Equally problematic is that Dr. Luchini’s report lacks a well-rationalized discussion
addressing the physiological cause of appellant’s condition. Rather, his report is conclusive:
merely stating that casing mail aggravated the conditions.
Dr. Luchini did not explain why or how the accepted factors of rubber banding and
stamping mail caused or aggravated appellant’s various bilateral upper extremity conditions as of
December 2006. Therefore, because Dr. Luchini’s reports did not address the critical causal
relationship between appellant’s employment factors and the diagnosed conditions, his reports
are insufficient.

6

Donald W. Long, 41 ECAB 142 (1989).

7

Id.

4

Although appellant has symptoms indicative of an underlying injury, she has not met her
burden of proof in establishing that her upper extremity conditions commencing in
December 2006 were causally related to the accepted factors of employment.
CONCLUSION
The Board finds that the Office properly concluded that appellant has not met her burden
of proof in establishing that she sustained an occupational disease in the performance of her
federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 17, 2008 and October 31, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 23, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


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

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Appearances:
Russell T. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1268
Issued: February 24, 2021

Case Submitted on the Record

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

JURISDICTION
On June 12, 2020 appellant, through counsel, filed a timely appeal from a February 24,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 21
percent permanent impairment of the right lower extremity, for which she previously received
schedule award compensation.
FACTUAL HISTORY
On January 4, 2010 appellant, then a 50-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed an aggravation of a right knee degenerative
condition as a result of her repetitive employment duties for 19 years, including daily walking and
standing.3 She indicated that her degenerative condition resulted in knee replacement surgery on
January 11, 2010. Appellant also reported that she had a preexisting injury, which resulted in
surgery and two screws in her right knee. She noted that she had fully recovered from her surgery.
Appellant stopped work on January 4, 2010. OWCP accepted her claim for aggravation of right
knee degenerative joint disease. It paid wage-loss compensation on the supplemental rolls
beginning April 2, 2010 and placed appellant on the periodic rolls, effective February 12, 2012.
Appellant submitted an operative report dated January 11, 2010, which indicated that
appellant underwent right total knee arthroplasty. The preoperative diagnosis was right knee
arthritis.
On October 18, 2016 appellant filed a claim for a schedule award (Form CA-7).
Appellant submitted a June 14, 2016 report by Dr. David Weiss, an osteopath Boardcertified in orthopedic surgery. He noted that appellant’s employment duties as a letter carrier
required repetitive climbing of stairs and walking up to 10 hours a day. Dr. Weiss reviewed
appellant’s history and noted that she underwent a right total knee replacement surgery in
January 2010. He indicated that appellant currently complained of right knee pain, stiffness,
swelling, and instability. Upon examination of appellant’s right knee, Dr. Weiss observed a wellhealed surgical scar, tenderness along the lateral joint line and over the lateral tibial plateau, and
marked crepitus within the lateral joint compartment. He reported that the knee joint was stable
to valgus and varus stress test. Range of motion (ROM) testing, performed three times, was 0 to
140 degrees.
Dr. Weiss referred to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)4 and utilized the diagnosis-based
impairment (DBI) rating method to find that, under Table 16-3, (Knee Regional Grid), page 511,
the class of diagnosis (CDX) for a right total knee arthroplasty with fair results for mild instability
resulted in a class 3 impairment with a default value of 37 percent. He assigned a grade modifier
3
The present claim is assigned File No. xxxxxx394. OWCP has a previously accepted traumatic injury claim (Form
CA-1) under File No. xxxxxx224 for a left knee sprain causally related to a July 25, 2005 employment injury. OWCP
administratively combined File Nos. xxxxxx224 and, File No. xxxxxx394, with the latter designated as the master
file.
4

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

2

for functional history (GMFH) of 1, a grade modifier for physical examination (GMPE) of 2, and
a grade modifier for clinical studies (GMCS) of 4. He utilized the net adjustment formula (GMFH
– CDX) + (GMPE – CDX) + (GMCS – CDX) = (1 – 3) + (2 – 3) + (4 – 3) = -2, which resulted in
a grade A or 31 percent permanent impairment of the right lower extremity.5 Dr. Weiss noted that
appellant reached maximum medical improvement (MMI) on June 14, 2016.
On November 3, 2016 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving
as an OWCP district medical adviser (DMA), reviewed a statement of accepted facts (SOAF), and
the case file, and noted his disagreement with Dr. Weiss’ June 14, 2016 impairment rating. He
found that the diagnosis of status-post right total knee arthroplasty had been established, but
disagreed with Dr. Weiss’ assignment of a class 3 impairment. The DMA explained that
Dr. Weiss’ examination had revealed a full and symmetric (ROM), no instability, and normal gait
mechanics, which was consistent with a class 2 impairment for a good result following knee
replacement. Using the DBI method with reference to appellant’s right knee condition, he found
that, under the A.M.A., Guides, Table 16-3, page 511, appellant had 25 percent permanent
impairment of the right lower extremity.
In a February 1, 2017 supplemental report, Dr. Weiss expressed his disagreement with the
November 3, 2016 DMA report and alleged that his original impairment rating of 31 right lower
extremity permanent impairment was correct. He noted that appellant complained of swelling and
instability in her right knee, which was consistent with a class 3 impairment.
In a March 28, 2017 supplemental report, Dr. Harris reiterated that appellant had 25 percent
right lower extremity permanent impairment based on a class 2 impairment for good results
following a total right knee replacement surgery. He indicated that despite appellant’s complaints
of right knee instability, impairment was based on objective findings on examination.
OWCP determined that a conflict in the medical opinion evidence existed between
Dr. Weiss and the DMA and referred appellant for an impartial medical examination in order to
resolve the conflict. In an April 24, 2018 report, Dr. Ian Blair Fries, a Board-certified orthopedic
surgeon serving as an impartial medical examiner (IME), noted his review of the SOAF and
appellant’s medical records. He reported that appellant had reached MMI on September 2, 2010.6
Dr. Fries noted appellant’s current complaints of right knee stiffness throughout the day and right
knee pain at the end of the day. Upon physical examination, he observed that appellant ambulated
with a smooth and normal gait and was able to stand alternately on her right and left leg without
difficulties or imbalance. ROM testing of appellant’s right knee was performed three times and
demonstrated flexion to 120 degrees and full extension. Dr. Fries reported that appellant had 1+
anterior drawer on the right and 1+ varus instability of both knees without specific complaint. He
also noted mild medial and lateral laxity compatible with a right total knee replacement.
5
Dr. Weiss also determined that according to the A.M.A., Guides appellant had five percent right upper extremity
permanent impairment for entrapment neuropathy at the right median nerve, five percent left upper extremity
permanent impairment for entrapment neuropathy at the left median nerve, and two percent left lower extremity
permanent impairment for left knee strain.
6
Dr. Fries explained that this was the date that Dr. William Hozack, a Board-certified orthopedic surgeon who
performed appellant’s January 2010 surgery, had evaluated her.

3

Dr. Fries first explained that the ROM method for rating appellant’s right knee was not
necessary because appellant had good ROM. Utilizing the DBI method, he referred to Table 163, page 511, and determined that for a CDX of status post total knee replacement appellant had a
class 1 impairment for good result (good position, stable, functional) with a default value of 25
percent. Dr. Fries expressed his agreement with Dr. Weiss determining appellant’s knee instability
based on her complaints and reported that he found no objective evidence of knee instability upon
physical examination. He assigned a GMFH of 2 based on the Activities of Daily Living
Questionnaire and current complaints. Dr. Fries assigned a GMPE of 1 and a GMCS of 1. After
applying the net adjustment formula, (GMFH – CDX) + (GMPE – CDX) + (GMCS – CDX) = (2
– 1) + (1 – 1) + (1 – 1), Dr. Fries calculated a net adjustment of +1 for grade C or 25 percent
permanent impairment of the right lower extremity.
In a June 19, 2018 supplemental report, Dr. Fries clarified that he could assign the date of
his own examination, April 17, 2018, as the MMI date, if required.
By decision dated September 14, 2018, OWCP granted appellant a schedule award for 25
percent right lower extremity permanent impairment. The award ran for 72 weeks from
October 31, 2015 through March 17, 2017. The MMI date was noted as September 2, 2010.
OWCP indicated that the schedule award was based on the April 24 and June 19, 2018 reports of
Dr. Fries, the IME.
On September 20, 2018 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on February 21, 2019.
Appellant subsequently submitted a February 15, 2019 report by Dr. Weiss. Dr. Weiss
expressed his disagreement with Dr. Fries’ impairment rating and noted that instability was
defined as “one bony component moves on another in an abnormal fashion.” He indicated that
Dr. Fries reported 1+ anterior drawer on the right and 1+ varus instability on both knees, which
qualified for mild instability of the right knee.
By decision dated May 7, 2019, an OWCP hearing representative set aside the
September 14, 2018 schedule award decision and remanded the case for OWCP to obtain a
supplemental report from Dr. Fries explaining, with medical rationale, as to whether appellant had
a class 2 impairment even though his examination findings showed 1+ anterior drawer and 1+
varus instability of both knees. She instructed OWCP to amend the SOAF to include appellant’s
previous nonwork and work-related injuries to both knees, to provide Dr. Fries with additional
medical reports, and to issue a de novo decision with April 17, 2018 as the correct MMI date.
On June 11, 2019 OWCP referred the updated SOAF7 and additional medical reports to
Dr. Fries for a supplemental report. In a July 16, 2019 supplemental report, Dr. Fries reiterated
that appellant had a smooth and normal gait, had full extension of both knees, and could stand
alternately on her right and left legs without difficulty. Regarding the examination findings of 1+
anterior drawer on the right and 1+ varus instability of both knees, he indicated that mild laxity
was expected after a total knee replacement and did not place appellant in a class 3 impairment for
7
The updated SOAF indicated that appellant sustained a softball injury to the right leg in 1983 and that appellant’s
accepted left knee occupational injury occurred on July 27, 2005.

4

fair results. Utilizing the DBI method, Dr. Fries referred to Table 16-3, page 511, and assigned a
class 2 impairment for good results following a total right knee replacement. Dr. Fries assigned a
GMFH of 2 based on the Activities of Daily Living Questionnaire and current complaints. He
assigned a GMPE of 1 and a GMCS of 1. After applying the net adjustment formula, (GMFH –
CDX) + (GMPE – CDX) + (GMCS – CDX) = (2 – 2) + (1 – 2) + (1 – 2), Dr. Fries calculated a net
adjustment of -2 for 21 percent permanent impairment of the right lower extremity.
In an August 5, 2019 supplemental report, Dr. Fries reiterated his examination findings
from the April 17, 2018 examination and confirmed that based on his findings appellant had a
class 2 impairment for good results after a total right knee replacement.
By decision dated October 7, 2019, OWCP granted appellant a schedule award for 21
percent right lower extremity permanent impairment. It noted that since she had been previously
granted a schedule award for 25 percent permanent impairment, “no additional payment is being
issued.” The award ran for 60.48 weeks from April 17, 2018 to June 14, 2019. The MMI date
was April 17, 2018. OWCP indicated that the schedule award was based on the reports of
Dr. Fries, the impartial medical examiner.
On October 18, 2019 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on January 22, 2020.
Counsel alleged that Dr. Fries’ impartial medical reports could not carry the special weight of
medical evidence because he did not correct the retroactive MMI date and did not discuss
appellant’s previous bilateral knee injuries as instructed in the May 7, 2019 hearing representative
decision.
Appellant subsequently submitted a January 31, 2020 report by Dr. Weiss who reiterated
his assessment that appellant had 31 percent right lower extremity permanent impairment.
By decision dated February 24, 2020, OWCP’s hearing representative affirmed the
October 7, 2019 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA8 and its implementing regulations9 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants and the Board has concurred in such

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

5

adoption.10 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment for the CDX,
which is then adjusted by GMFH, GMPE, and GMCS. The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).13 Evaluators are directed to provide reasons for their
impairment rating choices, including the choices of diagnosis from regional grids and calculations
of modifier scores.14
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, the relevant portion of the leg for the present case, reference
is made to Table 16-3 (Knee Regional Grid) beginning on page 509.15 After the class of diagnosis
(CDX) is determined from the Knee Regional Grid (including identification of a default grade
value), the Net Adjustment Formula is applied using the grade modifier for functional history,
grade modifier for physical examination and grade modifier for clinical studies. The Net
Adjustment Formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16 Under Chapter
2.3, evaluators are directed to provide reasons for their impairment rating choices, including
choices of diagnoses from regional grids and calculations of modifier scores.17
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or IME) who shall make an examination.18
This is called an impartial medical examination and OWCP will select a physician who is qualified
in the appropriate specialty and who has no prior connection with the case.19 When there exists
opposing medical reports of virtually equal weight and rationale and the case is referred to an IME
10
20 C.F.R. § 10.404 (a); see also T.T., Docket No. 18-1622 (issued May 14, 2019); Jacqueline S. Harris, 54 ECAB
139 (2002).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
12

A.M.A., Guides (6th ed. 2009), p3, section 1.3.

13

Id. at 494-531.

14

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

15

See A.M.A., Guides (6th ed. 2009) 509-11.

16

Id. at 515-22.

17

Id. at 23-28.

18

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
19

20 C.F.R. § 10.321.

6

for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently wellrationalized and based upon a proper factual background, must be given special weight.20
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 21
percent permanent impairment of her right lower extremity, for which she previously received
schedule award compensation.
OWCP properly found a conflict in the medical opinion evidence regarding permanent
impairment between appellant’s treating physician, Dr. Weiss, and the DMA, Dr. Harris. It
properly referred appellant’s case to Dr. Fries pursuant to 5 U.S.C. § 8123(a) for an impartial
medical examination in order to resolve the conflict in medical opinion.21
In his initial report dated April 24, 2018, Dr. Fries discussed appellant’s history of injury
and her medical records. Upon physical examination, he observed that appellant ambulated with
a smooth and normal gait and was able to stand alternately on her right and left leg without
imbalance. ROM testing of appellant’s right knee was performed three times and demonstrated
flexion to 120 degrees and full extension. Dr. Fries reported that appellant had 1+ anterior drawer
on the right and 1+ varus instability of both knees. He also noted mild medial and lateral laxity.
Utilizing Table 16-3, page 511 of the A.M.A., Guides, Dr. Fries found a CDX of 1 for good result
(good position, stable, functional) after a total knee replacement, which yielded a default value of
25 percent. He noted that Dr. Weiss based his class 3 assignment on appellant’s complaints of
knee instability, but indicated that he found no objective evidence of knee instability upon physical
examination.
In supplemental reports, Dr. Fries clarified appellant’s MMI date as April 17, 2018. He
also further explained that mild laxity did not place appellant in a class 3 impairment for fair
results. Utilizing the DBI method, Dr. Fries referred to Table 16-3, page 511, and assigned a class
2 impairment for good result (good position, stable, functional) following a total right knee
replacement. Dr. Fries assigned a GMFH of 2 based on the Activities of Daily Living
Questionnaire and current complaints. He also assigned a GMPE of 1 and a GMCS of 1. After
applying the net adjustment formula, (GMFH – CDX) + (GMPE – CDX) + (GMCS – CDX) = (2
– 2) + (1 – 2) + (1 – 2), Dr. Fries calculated a net adjustment of -2, which moved the grade C
default value of 25 percent to a grade A of 21 percent permanent impairment.
Where OWCP has referred the case to an IME to resolve a conflict in the medical evidence,
the opinion of such a specialist, if sufficiently well reasoned and based upon a proper factual
background, must be given special weight.22 In this case, the Board finds that Dr. Fries accurately
summarized the relevant medical evidence, provided detailed findings on examination, and
20

K.D., Docket No. 19-0281 (issued June 30, 2020); J.W., Docket No. 19-1271 (issued February 14, 2020);
Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).
21

See E.M., Docket No. 19-1535 (issued August 27, 2020); see also W.C., Docket No. 19-1740 (issued
June 4, 2020).
22

Supra note 21.

7

reached conclusions about appellant’s condition, which comported with his findings.23 Dr. Fries
noted that physical examination findings showed smooth and normal gait, stability on both legs,
full ROM, and mild laxity, which placed appellant in a CDX of 2 for good result following total
knee replacement according to the sixth edition of the A.M.A., Guides. As his report is detailed,
well rationalized, and based on a proper factual background, his opinion is entitled to the special
weight accorded to an IME.24
The Board further finds that Dr. Weiss’ January 31, 2020 report is insufficient to overcome
the special weight accorded to Dr. Fries because reports from a physician who was on one side of
a medical conflict resolved by an IME are insufficient to overcome the special weight accorded
the report of the IME or create a new conflict.25 Thus, the Board finds that the medical evidence
of record fails to establish that appellant has more than 21 percent right lower extremity permanent
impairment, for which she previously received a schedule award.
On appeal counsel argues in his brief that Dr. Fries’ medical reports could not carry the
special weight of the medical evidence. In the alternative, he also alleges that the DMA’s report
was insufficiently rationalized to create a conflict in medical evidence, and thus, Dr. Fries should
be considered a second opinion examiner. As previously discussed, the Board finds that Dr. Fries’
opinion is entitled to the special weight accorded to the IME because it is detailed, well
rationalized, and based on a proper factual background.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 21
percent permanent impairment of her right lower extremity, for which she previously received
schedule award compensation.

23

See J.B., Docket No. 18-0116 (issued October 2, 2020); see also P.D., Docket No. 18-1289 (issued
January 2, 2019).
24

W.H., Docket No. 19-0102 (issued June 21, 2019); J.M., Docket No. 18-1387 (issued February 1, 2019).

25
J.M., id.; D.M., Docket No. 17-1992 (issued September 12, 2018); S.F., Docket No. 17-1427 (issued
May 16, 2018).

8

ORDER
IT IS HEREBY ORDERED THAT the February 24, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 24, 2021
Washington, DC

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

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

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

9