United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Ontario, CA, Employer
__________________________________________

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

Docket No. 13-904
Issued: September 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 5 and April 9, 2013 appellant filed a timely appeal from a February 22, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than 8 percent left lower extremity permanent
impairment and more than 32 percent right lower extremity permanent impairment, for which he
had received a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 20, 2007 appellant, then a 53-year-old airway transportation systems
specialist, filed a traumatic injury claim alleging that he pulled a muscle in his lower back while
moving a broken tree limb from the parking lot. OWCP accepted a sprain of back, lumbar
region and paid appropriate benefits. Appellant returned to light duty before retiring. On
April 3, 2008 OWCP expanded the accepted condition to include lumbar degenerative disc
disease with spinal stenosis and disc protrusion at L3-4, as well as L4-5 lumbar radiculitis. It
authorized lumbar decompression and fusion, which appellant underwent on May 13, 2008. By
decision dated December 10, 2009, OWCP granted him a schedule award for 11 percent
impairment of left lower extremity and 27 percent impairment of right lower extremity.
Appellant received 109.44 weeks of compensation. On October 28, 2010 and September 29,
2011 he underwent additional authorized back surgeries.
On November 29, 2012 appellant filed a Form CA-7, claim for a schedule award, seeking
an additional schedule award. He indicated in a November 29, 2012 letter that he underwent
three back surgeries and has nerve damage to both legs, especially his right foot, causing foot
drop. Appellant states that he wears an ankle to foot brace to walk and it is difficult to walk
without his brace. He stated that he did not have as much nerve damage or any foot drop when
he received his first schedule award.
In an October 30, 2012 report, Dr. Thomas Haider, an orthopedic surgeon, noted the
history of injury, appellant’s clinical history and documented appellant’s subjective complaints
and clinical objective findings. He noted that the preoperative right foot drop only mildly
improved after surgery. Appellant reported the development of a bony growth on his left foot
secondary to his abnormal gait and that he was scheduled to undergo surgery in the next few
months. Dr. Haider provided an impression of L3 to S1 revision decompression, fusion and
fixation on September 29, 2011; L1-2 and L4-5 posterolateral fusion in 2010; and left L2-4 with
correction deformity on May 13, 2008. He indicated that appellant had difficulty walking,
changing position and getting on to the examining table. Dr. Haider had an antalgic gait due to
right-sided foot drop. There is a healed surgical scar in appellant’s lower back and tenderness
and significant guarding in his lower back. His motion is 40 percent of normal. Straight leg
raising test is positive to the right. Sensation is decreased in the right foot along L4, L5 and S1
nerve distribution. Muscle strength is 0/5 for right ankle dorsiflexion as well as right big toe
extension. Sensation is decreased in the left foot L4 and L5 nerve distribution. There is no
weakness in the left lower extremity. Dr. Haider opined that appellant was permanent stationary.
In an accompanying lower extremity impairment evaluation record, he assessed 30 percent
impairment to both the right and left lower extremity.
In a January 4, 2013 report, an OWCP medical adviser noted the history of injury and his
review of the medical records, including Dr. Haider’s October 30, 2012 report. He noted that
Dr. Haider’s clinical findings made no mention of a supportive device to walk and appellant
appeared to be uncomfortable with walking. The medical adviser opined that appellant had 32
percent right lower extremity impairment and 8 percent left lower extremity impairment.
Referencing the July/August 2009 The Guides Newsletter for Rating Spinal Nerve
Extremity Impairment, the medical adviser stated permanent loss of each lower extremity may be

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calculated applying values for sensory involvement/abnormality and motor weakness to affected
nerve root.
Utilizing Dr. Haider’s examination findings, the medical adviser found that for the right
lower extremity, decreased sensation in right L4, L5 and S1 nerve roots equated to moderate
sensory deficit or class 1 yielding 3 percent sensory deficit for L4, 3 percent sensory deficit for
L5, and 2 percent sensory deficit for S1. Functional history adjustment resulted in a grade
modifier of 2, which increased the L4 sensory deficit to 4 percent; increased the L5 sensory
deficit to 4 percent; and increased the S1 sensory deficit to 3 percent; for a total of 11 percent.
Dr. Haider stated that the records indicate 0/5 right-sided ankle dorsiflexion, which equated to
class 1 or 13 percent motor deficit for L4 and 13 percent motor deficit for L5. Under the
Combined Values Chart, Dr. Haider found the 13 percent for L4 deficit combined with 13
percent L5 deficit combined with 11 percent motor deficit equated to 32 percent impairment of
the right lower extremity.
For the left lower extremity, Dr. Haider graded decreased sensation at L4 and L5 nerve
roots as class 1 or 3 percent for L4 sensory deficit and 3 percent sensory for L5 deficit. He stated
that functional history adjustment for each nerve root was grade modifier 2, which increased the
impairment into category D or 4 percent impairment for each nerve root. Dr. Haider advised that
the records did not indicate any left lower extremity motor strength weakness; thus, no additional
impairment. He calculated the total left lower extremity impairment as 8 percent, noting it was
less than the previously assessed 11 percent impairment. Dr. Haider opined that appellant had a
right lower extremity impairment of 32 percent, 5 percentage points higher than the previously
awarded 27 percent. He further opined that appellant’s left lower extremity impairment of 8
percent was lower than the previously awarded 11 percent impairment and no additional
impairment should be awarded. Dr. Haider also opined that maximum medical improvement
was reached on October 30, 2012, 13 months following the last surgical procedure.
By decision dated February 22, 2013, OWCP awarded an additional two percent
impairment to the lower extremity. The award ran for 5.76 weeks, for the period October 30 to
December 9, 2012. OWCP noted that the medical adviser found 8 percent impairment to the left
lower extremity and 32 percent impairment to the right lower extremity, for a total 40 percent
impairment to the lower extremities. Since appellant was previously paid 38 percent total
impairment to the lower extremities, it found he was entitled to an additional 2 percent
impairment.
LEGAL PRECEDENT
A claim for an increased schedule award may be based on new exposure.2 Absent any
new exposure to employment factors, a claim for an increased schedule award may also be based
on medical evidence indicating that the progression of an employment-related condition has
resulted in a greater permanent impairment than previously calculated.3

2

A.A., 59 ECAB 726 2008); Tommy R. Martin, 56 ECAB 273 (2005); Rose V. Ford, 55 ECAB 449 (2004).

3

James R. Hentz, 56 ECAB 573 (2005); Linda T. Brown, 51 ECAB 115 (1999).

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In determining entitlement to a schedule award, preexisting impairment to the scheduled
member should be included.4 Any previous impairment to the member under consideration is
included in calculating the percentage of loss except when the prior impairment is due to a
previous work-related injury, in which case the percentage already paid is subtracted from the
total percentage of impairment.5
The schedule award provision of FECA6 and its implementing regulations7 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.9
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.10 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.11
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides

4

Carol A. Smart, 57 ECAB 340 (2006); Michael C. Milner, 53 ECAB 446 (2002).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7(a)(2) (January 2010).
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

8

Id.

9

Veronica Williams, 56 ECAB 367, 370 (2005).

10

Pamela J. Darling, 49 ECAB 286 (1998).

11

Thomas J. Engelhart, 50 ECAB 319 (1999).

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Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth edition (July/
August 2009) is to be applied.12
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH) and if electrodiagnostic testing were done, Clinical Studies (GMCS).13 The net
adjustment formula is (GMFH - CDX) + (GMCS - CDX).14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with an OWCP medical
adviser providing rationale for the percentage of impairment specified.15
ANALYSIS
OWCP accepted conditions of lumbar sprain, lumbar degenerative disc disease with
spinal stenosis and disc protrusion at L3-4 and L4-5, lumbar radiculitis and authorized three back
surgeries, which appellant underwent May 13, 2008, October 28, 2010 and September 29, 2011.
By decision dated December 10, 2009, it granted him a schedule award for 11 percent
impairment of the left lower extremity and 27 percent impairment of right lower extremity, for
total 38 percent impairment. OWCP paid appellant 109.44 weeks of compensation. Appellant
subsequently requested an increased schedule award. By decision dated February 22, 2013,
OWCP awarded two percent additional impairment to the lower extremity and paid 5.76 weeks
of compensation.
In his October 30, 2012 report, Dr. Haider assessed 30 percent impairment to both the left
and right lower extremities. However, he did not provide any calculations on how he reached his
impairment determinations. The medical adviser reviewed Dr. Haider’s report on January 4,
2013 and found that appellant had ratable impairment for motor and sensory deficits under the
sixth edition of the A.M.A., Guides. He determined that Dr. Haider failed to utilize the proposed
new tables in The Guides Newsletter, July/August 2009. Under the July/August 2009 issue of
The Guides Newsletter, an examiner is required to apply neurologic examination findings to the
sensory and motor severity tables for each affected nerve root, adjust for functional history and
clinical studies and then combine the motor and sensory impairments. The medical adviser
properly determined that Dr. Haider’s report was not rendered in conformance with the

12

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as
Exhibit 4.
13

A.M.A., Guides 533.

14

Id. at 521.

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

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applicable protocols of the sixth edition because he did not rely on the July/August 2009 issue of
The Guides Newsletter.
Relying on Dr. Haider’s examination findings, the medical adviser determined the rating
for appellant’s bilateral lower extremity impairment. For the right lower extremity, the medical
adviser found moderate sensory deficits for the right L4, L5 and S1 nerve roots. Relying on
Proposed Table 2 of The Guides Newsletter, Spinal Nerve Impairment, the medical adviser
properly rated a class 1 impairment for moderate sensory deficit as three percent for L4 nerve
deficit; three percent for L5 nerve deficit and two percent for S1 nerve deficit. The medical
adviser then found under Table 16-6, page 516 of the A.M.A., Guides, that appellant’s
impairment rated a grade modifier 2 or moderate problem for L4, L5 and S1 sensory deficits.
Pursuant to this calculation, the medical adviser found that the net adjustment compared to the
diagnostic class resulted in a plus 1 or grade D impairment, which yielded L4 sensory deficit of 4
percent; L5 sensory deficit to 4 percent; and S1 sensory deficit to 3 percent; for a total of 11
percent sensory deficit. He also properly found 0/5 right-sided ankle dorsiflexion was a class 1
severe motor deficit and properly assessed 13 percent for L4 motor deficit and 13 percent for L5
motor deficit. The motor and sensory impairments were combined (13 percent for L4 motor
deficit combined with 13 percent for L5 motor deficit combined with 11 percent for sensory
deficit) and resulted in total impairment of 32 percent of the right lower extremity.
For the left lower extremity, the medical adviser followed the same procedures and found
eight percent total left lower extremity impairment. Relying on Proposed Table 2 of The Guides
Newsletter, Spinal Nerve Impairment, he properly rated class 1 impairment for moderate sensory
deficit as three percent for L4 sensory deficit and three percent for L5 sensory deficit. The
medical adviser then found under Table 16-6, page 516 of the A.M.A., Guides, appellant’s
impairment rated a grade modifier 2 or moderate problem for L4, L5 and S1 sensory deficits.
Pursuant to this calculation, he found the net adjustment compared to the diagnostic class
resulted in a plus 1 or grade D impairment, which yielded L4 sensory deficit of four percent and
L5 sensory deficit of four percent. The medical adviser noted there were no findings of any
lower left extremity motor strength deficits. Thus, he found the total left lower extremity
impairment was 8 percent, which he properly noted was lower than the previously assessed 11
percent. The medical adviser determined that appellant is entitled to a higher right lower
extremity impairment of 32 percent or an additional 5 percent than the previously awarded 27
percent right lower extremity impairment.
The Board finds that OWCP’s medical adviser properly applied the A.M.A., Guides to
rate appellant’s bilateral lower extremity impairment and that his report constitutes the weight of
medical opinion. As noted above, for peripheral nerve impairments to the upper or lower
extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth edition
(July/August 2009) is to be applied.16 The medical adviser relied on the July/August 2009
edition of The Guides Newsletter and provided a thorough, well-rationalized report in
conformance with the applicable tables and protocols of the A.M.A., Guides in rendering his
impairment rating. The report from Dr. Haider, in contrast, did not meet the standards for rating
16

See supra note 13.

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lower extremity impairment for appellant’s condition set forth in the sixth edition of the A.M.A.,
Guides and the July/August 2009 edition of The Guides Newsletter. His report does not provide
adequate medical rationale in support of his opinion that appellant is entitled to 30 percent
schedule award for the right and 30 percent schedule award of the left lower extremity.17
The Board however finds that OWCP improperly found that appellant was entitled only
to an additional two percent lower extremity impairment. FECA provides that lower extremity
impairments are rated for each member; the two members are not totaled into one sum for lower
extremity impairment.18
As is explained within section 8108 of FECA, reduction of compensation can only be
made for subsequent injury to same member or function of the body.
“The period of compensation payable under the schedule in section 8107(c) of
this title is reduced by the period of compensation paid or payable under the
schedule for an earlier injury if-(1) compensation in both cases is for disability of the same member or
function or different parts of the same member or function or for
disfigurement; and
(2) the Secretary of Labor finds that compensation payable for the later
disability in whole or in part would duplicate the compensation payable
for the preexisting disability.”
As appellant had impairment to two members, not a single member, reduction of
compensation is not appropriate.
The medical adviser properly noted that appellant was not entitled to an additional award
for left lower extremity as he had already been awarded 11 percent impairment and he was only
entitled to 8 percent impairment. He properly found that appellant was entitled to 32 percent
impairment to right lower extremity and since he previously received 27 percent, he was entitled
to an additional 5 percent impairment. As OWCP only awarded an additional two percent
impairment, appellant is entitled to an additional three percent impairment to account for the
additional five percent right lower extremity impairment he is entitled.
On appeal, appellant contends that the schedule award did not adequately take into
account his right foot drop. A review of the evidence indicates that appellant’s right foot drop
was included in the impairment calculation and properly calculated in accordance to the A.M.A.,
Guides. Appellant also contends that he received less weeks of pay for each percent of disability
than his first schedule award. The number of weeks of compensation is determined by 5 U.S.C.
§ 8107. Complete loss of use of the leg is 288 weeks of compensation and therefore appellant is
entitled to an additional 5 percent of 288 or 14.46 weeks for loss of use of right leg.
17

William C. Thomas, 45 ECAB 591 (1994).

18

5 U.S.C. § 8107(c)(2).

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Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no greater than 11 percent left lower extremity
impairment and no greater than 32 percent right lower extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the February 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: September 6, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, 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
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 10-1856
Issued: July 1, 2011

Case Submitted on the Record

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

JURISDICTION
On July 7, 2010 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated June 9, 2010. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant was disabled commencing May 4, 2009 causally
related to her accepted employment injury; and (2) and whether OWCP abused its discretion by
denying authorization for a left knee arthroscopy procedure.
FACTUAL HISTORY
Appellant, then a 52-year-old mail handler, filed a Form CA-2 claim for benefits on
August 8, 2008, alleging that, due to 22 years of work loading and unloading mail trucks, she
1

5 U.S.C. § 8101 et seq.

developed pain and swelling in her knees and legs. She first became aware of her condition on
June 9, 2008.
In an August 8, 2008 form report, Dr. Edmund Schweitzer, Board-certified in orthopedic
surgery and appellant’s treating physician, advised that appellant required arthroscopic surgery
for the hematoma, chronic pain and arthritis in her left knee. In a September 10, 2008 report, he
reiterated his recommendation that she undergo arthroscopic surgery, with shaving and lateral
release, to ameliorate the patellofemoral arthritis in her left knee.
On January 30, 2009 OWCP accepted the claim for aggravation of bilateral
patellofemoral arthritis. It advised appellant that her treating physician was required to explain,
with medical rationale, whether the need for surgery was due to the underlying condition of
patellofemoral arthritis or the accepted aggravation of the condition.
On May 8, 2009 Dr. Schweitzer again requested authorization for arthroscopic surgery,
with shaving and lateral release. He submitted a May 6, 2008 a magnetic resonance imaging
scan which found intermediate to high-grade patellofemoral chondromalacia, with medial
inflammation. In a September 24, 2008 report, received by OWCP on May 11, 2009
Dr. Schweitzer stated that appellant had patellofemoral arthritis that he believed had been
aggravated by her long career with the employing establishment. Regarding medical treatment
of her condition, he stated that, while awaiting authorization for surgery, appellant would
continue with medication, activity restriction and bracing.
On a May 4, 2009 Dr. Schweitzer stated that appellant was currently experiencing so
much pain that she was unable to work. He placed her off work for one month. Dr. Schweitzer
again requested authorization for surgery. He noted that heavy work at the employing
establishment, including loading trucks and handling 70 pounds at a time, had resulted in
appellant’s inability to work due to left knee pain, stemming from her accepted condition of
aggravation of patellofemoral arthritis. In a report dated May 27, 2009, Dr. Schweitzer stated:
“[Appellant] is unable to work due to pain and swelling in her knee and leg due
[to] arthritis of the patellofemoral joint. This arthritis was aggravated by her work
injuries and duties and the surgery is direct result of that work casualty.
[Appellant] cannot take as aids which further makes no surgical treatment
difficult. We are requesting authorization for arthroscopic debridement and
lateral release followed by Subparts treatment.”
Appellant submitted several CA-7 forms requesting compensation for wage loss
commencing May 4, 2009.
By decision dated June 23, 2009, OWCP denied compensation for wage loss as of May 4,
2009, finding that appellant failed to provide rationalized medical evidence supporting that she
was totally disabled. It also denied authorization for the requested left knee surgery.
By letter dated July 1, 2009, appellant’s attorney requested an oral hearing.
By decision dated September 22, 2009, OWCP’s hearing representative set aside the
June 23, 2009. She found that Dr. Schweitzer’s reports generally supported appellant’s total
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disability and need for surgery. The hearing representative directed the district Office to contact
the employing establishment and request a written statement as to whether appellant provided
any medical evidence of work restrictions, and if so, whether a job offer had been given to her; to
provide a statement regarding the claim of disability as of May 4, 2009 and whether it could
accommodate her work restrictions; for appellant to provide a copy of her left knee treatment
notes or diagnostic studies; and to prepare a new statement of accepted facts and refer appellant
for a second opinion examination.
By letter dated October 14, 2009, the employing establishment informed OWCP that
appellant had been working in a light-duty position since April 12, 2007. Appellant had work
restrictions; however, they stemmed from another work injury.
In a report received by OWCP on October 21, 2009, Dr. Schweitzer advised that he
performed arthroscopic shave release surgery on appellant’s left knee on July 17, 2009. He
reported that, during inspection of the knee, the patella showed advanced chondromalacia and a
one centimeter subluxation.
OWCP referred appellant for a second opinion examination to Dr. E. Gregory Fisher,
Board-certified in orthopedic surgery. In an October 27, 2009 report, Dr. Fisher reviewed the
medical history and the statement of accepted facts and provided findings on examination. He
indicated that the medical evidence supported that appellant’s work-related bilateral aggravation
of patellofemoral arthritis was still active, present and had not resolved. The objective findings
included decreased range of motion and crepitus over the patellofemoral joint with flexion and
extension in both knees and marked decreased strength in the left knee. Dr. Fisher stated that
appellant also had subjective findings of tenderness and pain over each knee which corresponded
with the objective findings. He advised these residuals were temporary in duration since she was
undergoing physical therapy and injections for the left knee since her surgery. Dr. Fisher stated
that treatment for the right knee would commence when the left knee condition had resolved.
As to whether the left knee arthritis necessitated surgery, Dr. Fisher stated that the
general protocol for treating bilateral aggravation of patellofemoral arthritis, including the
Official Disability Guidelines and Millikan Robertson Guidelines, recommended conservative
treatment; e.g., medication, injections and active physical therapy for six to eight weeks, before
any surgical procedure was indicated. He noted, however, that Dr. Schweitzer’s treatment prior
to surgery consisted of only a single prescription of a Merlo Deepak and other over-the-counter
medications. Dr. Fisher therefore concluded that appellant’s left knee arthroscopy was not
medically appropriate or necessary.
In a December 9, 2009 supplemental report, Dr. Fisher opined that appellant was not
totally disabled from work due to the accepted condition of bilateral aggravation of
patellofemoral arthritis. Appellant was able to perform light-duty activities which did not require
squatting, kneeling, climbing ladders or stairs and standing or walking more than four hours in
an eight-hour day with frequent breaks. Dr. Fisher restricted her from lifting more than
10 pounds while pushing, pulling, carrying and lifting of 10 pounds frequently and 20 pounds
occasionally.

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By decision dated December 14, 2009, OWCP denied wage loss for disability
commencing the period from May 4, 2009, finding that Dr. Fisher’s opinion represented the
weight of the medical evidence.
By letter dated December 23, 2009, appellant requested an oral hearing, which was held
on March 18, 2010.
By decision dated June 9, 2010, OWCP’s hearing representative affirmed the
December 14, 2009 decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of establishing that the
essential elements of his or her claim by the weight of the evidence.3 Under FECA, the term
disability is defined as an inability, due to an employment injury, to earn the wages the employee
was receiving at the time of injury, i.e., an impairment resulting in loss of wage-earning
capacity.4 For each period of disability claimed, the employee has the burden of establishing that
he or she was disabled for work as a result of the accepted employment injury.5 Whether a
particular injury causes an employee to become disabled for work and the duration of that
disability are medical issues that must be proved by a preponderance of probative and reliable
medical opinion evidence.6 The fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.7 The
Board will not require OWCP to pay compensation for disability in the absence of medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow an employee to self-certify his disability and entitlement to
compensation.8
Section 8123(a) provides that if there is a 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.9 It is well established that, when a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Prince E. Wallace, 52 ECAB 357 (2001).

5

Dennis J. Balogh, 52 ECAB 232 (2001).

6

Gary L. Watling, 52 ECAB 278 (2001).

7

Manual Garcia, 37 ECAB 767 (1986).

8

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Regina T. Pellecchia, 53 ECAB 155 (2001).

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such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.10
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for aggravation of bilateral patellofemoral arthritis.
Appellant continued to work until May 4, 2009, when she asserted that left knee pain stemming
from her accepted condition prevented her from performing her work. She subsequently
submitted CA-7 forms for the period May 4, 2009 and continuing, claiming that she was totally
disabled due to her accepted left knee condition. In support of her claim, appellant submitted
several reports and disability slips from Dr. Schweitzer, her attending physician, who requested
authorization for surgery to ameliorate this condition. In his treatment note of May 4, 2009,
Dr. Schweitzer explained that her accepted condition of aggravation of patellofemoral arthritis
required surgery as it had resulted in her inability to work. Initially, he reported that appellant
should not work for a one-month period, however, on May 27, 2009 he reported that she was
unable to return to work due to pain and swelling in her left leg caused by the accepted
condition. Dr. Schweitzer again requested authorization for surgery. Appellant underwent
surgery on July 17, 2009. During the surgical procedure, examination of the left knee showed
advanced chondromalacia, as well as subluxation. OWCP initially denied the claim; however,
by decision dated September 22, 2009, it found that Dr. Schweitzer’s reports were sufficient to
create a prima facie case for entitlement to total disability compensation sufficient to warrant
further development of the medical evidence.
The case was referred to Dr. Fisher, who opined that appellant still had residuals from her
accepted aggravation of bilateral patellofemoral arthritis condition. In his initial report, dated
October 27, 2009, he did not address whether she was disabled, OWCP requested a supplemental
report. In his supplemental report dated December 9, 2009, Dr. Fisher stated that appellant could
perform light duty with restrictions.
The Board finds that the medical evidence of record is in conflict as to whether
appellant’s accepted condition of aggravation of patellofemoral arthritis caused disability as of
May 4, 2009. This case must therefore be remanded to an impartial medical specialist for an
impartial medical examination to resolve the conflict.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of FECA11 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability or aid in lessening the amount of the monthly
compensation.12 In interpreting this section of FECA, the Board has recognized that OWCP has
10

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

11

5 U.S.C. § 8101 et seq.

12

Id. at § 8103.

5

broad discretion in approving services provided under FECA. OWCP has the general objective
of ensuring that an employee recovers from his injury to the fullest extent possible in the shortest
amount of time. It therefore has broad administrative discretion in choosing means to achieve
this goal. The only limitation on OWCP’s authority is that of reasonableness. Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.13
ANALYSIS -- ISSUE 2
OWCP accepted appellant’s claim for aggravation of bilateral patellofemoral arthritis.
On August 8, 2008 Dr. Schweitzer advised that she needed arthroscopic surgery for the
hematoma, chronic pain and arthritis of her left knee. He stated on September 10, 2008 that
appellant required arthroscopic surgery, with shaving and lateral release, to ameliorate the
patellofemoral arthritis in her left knee. Dr. Schweitzer noted on September 24, 2008 that she
was being treated conservatively with medication, activity limitation and knee bracing, while
awaiting authorization for surgery. Finally, on May 27, 2009, he explained again that appellant
was unable to work due to pain and swelling in her knee and leg caused by patellofemoral joint
arthritis. Dr. Schweitzer advised that she was unable to take Ansaids, which made nonsurgical
treatment more problematic. He therefore reiterated that appellant required authorization for
arthroscopic debridement and lateral release. Dr. Schweitzer performed the surgery on
July 17, 2009.
OWCP denied authorization for the left knee surgery based on a second opinion from
Dr. Fisher, who opined that appellant’s left knee arthroscopy was not medically appropriate and
necessary because Dr. Schweitzer had not prescribed sufficient conservative measures for six to
eight weeks prior to surgery. Dr. Schweitzer cited general medical protocol for treating bilateral
aggravation of patellofemoral arthritis to support his opinion. Based on his opinion, OWCP
denied authorization for left knee arthroplasty. The Board finds that the medical evidence of
record is therefore also in conflict as to whether appellant’s left knee arthroplasty was medically
necessary for treatment of the accepted injury and should have been authorized by OWCP.
OWCP shall also request that the impartial medical examiner provide an opinion regarding this
issue.
CONCLUSION
The Board finds that a conflict exists in the medical evidence as to whether appellant has
established that she was disabled as of May 4, 2009 due to her accepted left knee condition and
whether her left knee surgery should be authorized. Upon return of the case record, OWCP shall
further develop the medical evidence as appropriate and issue a de novo decision.

13

Daniel J. Perea, 42 ECAB 214 (1990).

6

ORDER
IT IS HEREBY ORDERED THAT the June 9, 2010 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this opinion.
Issued: July 1, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newburgh, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-325
Issued: July 25, 2014

Case Submitted on the Record

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

JURISDICTION
On November 26, 2013 appellant, through her attorney, filed a timely appeal of the
June 24, 2013 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 merit decision of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
claim in the performance of duty.
FACTUAL HISTORY
On February 27, 2012 appellant then a 57-year-old clerk, filed a Form CA-1, traumatic
injury claim, alleging that on February 14, 2012, while removing a stacked hamper, she fell onto
her buttocks and low back. She stopped work on February 16, 2012.
1

5 U.S.C. §§ 8101-8193.

In a statement dated February 15, 2012, appellant indicated that she was attempting to
pull down two mail hampers stacked on top of each other and fell down injuring her buttocks and
low back.2 She submitted out of work slips dated February 15 and 22, 2012 from a physician’s
assistant who diagnosed low back pain and advised that appellant was totally disabled from
February 15 to March 1, 2012.
By letter dated March 14, 2012, OWCP advised appellant of the type of factual and
medical evidence needed to establish her claim and requested that she submit such evidence,
particularly requesting that appellant submit a physician’s reasoned opinion addressing the
relationship of her claimed condition and specific employment factors.
Appellant’s supervisor, Veronica Copeland, submitted a March 17, 2012 statement noting
that on February 15, 2012 she was informed that appellant had fallen when attempting to knock
down stacked hampers. Appellant had reported that her arms were bothering her and that she felt
weak. Ms. Copeland noted that appellant was in distress but refused medical treatment and
returned to her work duties.
Appellant submitted reports from a physician’s assistant, dated February 15 to March 21,
2012, who treated her for low back pain. She reported that on February 14, 2012 she felt
weakness in her shoulders while pulling down hampers from a shelf and fell onto her buttocks
and low back. Appellant’s history was significant for a repaired left rotator cuff tear and a right
rotator cuff tear. The physician’s assistant diagnosed lower back strain and a new tear of the left
shoulder. He advised that appellant was totally disabled.
In a March 21, 2012 attending physician’s report, the physician’s assistant noted that on
February 14, 2012 appellant was removing hampers and fell backward injuring her shoulders and
back. He diagnosed low back pain and torn rotator cuff. The physician’s assistant checked a
box “yes” that appellant’s condition was caused or aggravated by a work activity and she was
totally disabled. In a duty status report dated March 21, 2012, he noted her status and advised
that she was unable to work. A February 22, 2012 x-ray revealed degenerative spondylosis and
grade 1 spondylolisthesis of L4 relative to L5 and loss of height of L3, age indeterminate.
Appellant submitted a March 9, 2012 note from Dr. Peretz noting that appellant was out of work
until further notice.
In an April 19, 2012 decision, OWCP denied the claim on the grounds that the medical
evidence was insufficient to establish that a medical condition was diagnosed in connection with
the claimed work injury or event.
Appellant’s counsel subsequently requested reconsideration and asserted that the
evidence was sufficient to establish the claim.3 Appellant submitted a February 17, 2012 report
from Dr. Peretz who noted that appellant fell injuring her back and reinjuring her left shoulder.
2

Appellant had been treated by Dr. Andrew M. Peretz, a Board-certified orthopedist, on June 17, 2011 for right
shoulder pain due to a work-related left shoulder injury. Dr. Peretz noted a magnetic resonance imaging (MRI) scan
of the right shoulder revealed full-thickness rotator cuff tear of the supraspinatus and recommended surgical
intervention.
3

Appellant initially requested an oral hearing but later withdrew her request.

2

Dr. Peretz modified her restrictions due to her bilateral rotator cuff pathologies. In a
February 17, 2012 report, he noted that appellant had work-related right shoulder rotator cuff tear
and subacromial impingement. Dr. Peretz noted that conservative treatment had failed and
recommended right rotator cuff repair and subacromial decompression. In a March 9, 2012
report, he noted that on February 14, 2012 appellant was pulling heavy hampers and fell injuring
both shoulders and her right lower lumbar region. Dr. Peretz noted an MRI scan of the left
shoulder revealed a recurrent rotator cuff tear which will require revisionary repair and
decompression subacromially. In a March 21, 2012 report, he noted that appellant sustained a
work-related injury on February 12, 2012. Dr. Peretz diagnosed chronic right rotator cuff tear
and a recurrent left rotator cuff tear and opined that she was disabled from work due to the
bilateral shoulder pathology. In an April 27, 2012 attending physician’s report, he diagnosed
bilateral rotator cuff tear and checked a box “yes” indicating that appellant’s condition was
caused or aggravated by her employment.
Appellant submitted an April 26, 2012 report from Dr. William Rohan, a Board-certified
internist, who noted that on February 15, 2012 appellant was pulling down hampers at work
when she lost her balance and fell onto her buttocks and low back. She reported pain into her
thighs and weakness in her shoulders. Examination revealed tenderness to palpation in the
lumbar region, no range of motion and no straight leg raises. Dr. Rohan diagnosed contusion of
the back after a fall and a new left rotator cuff tear. He treated appellant on April 11, 2012.
Dr. Rohan noted that her low back pain resolved but she had sustained a new left rotator cuff tear
status post the incident. He opined that appellant sustained an injury while at work to her back
which took a couple of months to recover, and a tear of the left rotator cuff causally related to the
fall.
Appellant also submitted a July 26, 2012 report from Dr. Mary Dore, a Board-certified
internist, who treated appellant for lumbar pain. Dr. Dore reported that appellant removed a
hamper from a shelf at work and fell backward onto to her buttocks and lower back. Appellant
noted findings of tenderness in the mid-to-lower lumbar area and limited range of motion.
Dr. Dore diagnosed contusion of the low back after a fall and took appellant off work. She noted
an x-ray of the lumbar spine revealed degenerative spondylosis and grade 1 spondylolisthesis at
L4 related to L5 and loss of height at L3, age indeterminate and recommended physical therapy.
In a decision dated June 24, 2013, OWCP denied appellant’s claim finding that she had
failed to provide rationalized medical evidence establishing that the left rotator cuff tear and low
back strain was causally related to the accepted work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that 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

3

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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
It is not disputed that appellant worked as a clerk and that on February 14, 2012 she was
removing stacked mail hampers from a shelf and fell down. However, she has not submitted
sufficient medical evidence to establish that her diagnosed low back injury and a recurrent left
rotator cuff tear were caused or aggravated by the February 14, 2012 work incident.
Appellant submitted reports dated February 17 and March 9, 2012 from Dr. Peretz who
noted that on February 14, 2012 appellant was pulling heavy hampers and fell backward injuring
both shoulders and her right lower lumbar region. Dr. Peretz indicated that she had a workrelated right shoulder rotator cuff tear and subacromial impingement. He noted an MRI scan of
the left shoulder revealed a recurrent rotator cuff tear which would require surgery. Similarly, in
a March 21, 2012 report, Dr. Peretz noted that appellant sustained a work-related injury on
February 12, 2012. He noted that she had a chronic right rotator cuff tear and a recurrent left
rotator cuff tear and was unable to work due to her bilateral shoulder pathology. Although
Dr. Peretz supported causal relationship in a conclusory statement, he did not provide medical
rationale explaining the basis of his opinion regarding the causal relationship between appellant’s
diagnosed conditions and the fall. For instance, he failed to explain how pulling hampers from a
shelf would cause or aggravate the diagnosed conditions and why the condition was not caused
by nonwork-related factors such as age-related degenerative changes. Therefore, this evidence is
insufficient to meet appellant’s burden of proof.
In an April 27, 2012 attending physician’s report, Dr. Peretz diagnosed bilateral rotator
cuff tear and checked a box “yes” indicating that appellant’s condition was caused or aggravated
by her work. The Board has held that an opinion on causal relationship which consists only of a
4

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

5

T.H., 59 ECAB 388 (2008).

6

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

4

physician checking “yes” to a medical form report question on whether the claimant’s condition
was related to the history given is of little probative value. Without any explanation or rationale
for the conclusion reached, such report is insufficient to establish causal relationship.7 A
June 17, 2011 report from Dr. Peretz predated the injury of February 14, 2012 and is therefore
insufficient to meet appellant’s burden of proof.
Appellant submitted a July 26, 2012 report from Dr. Dore who treated her for lumbar
pain. Dr. Dore noted findings and diagnosed contusion of the low back after a fall. Appellant
reported pulling a mail hamper off of a shelf while at work and falling onto to her buttocks and
lower back. However, Dr. Dore appears merely to be repeating the history of injury as reported
by appellant without providing her own opinion regarding whether appellant’s condition was
work related.8 To the extent that Dr. Dore is providing her own opinion, she failed to provide a
rationalized opinion explaining the causal relationship between appellant’s low back contusion
and the factors of employment.9 Therefore, these reports are insufficient to meet appellant’s
burden of proof.
Appellant submitted an April 26, 2012 report from Dr. Rohan, who noted that on
February 14, 2012 appellant was pulling down hampers at work when she lost her balance and
fell onto her buttocks and lower back. Dr. Rohan diagnosed contusion of the back after a fall and
a new left rotator cuff tear. He opined that appellant sustained a back injury and a tear of the left
rotator cuff causally related to the fall. The Board finds that, although Dr. Rohan supported
causal relationship, he also did not provide medical rationale explaining the basis of his
conclusory opinion regarding the causal relationship between appellant’s back and left shoulder
conditions and the factors of employment.10 Therefore, this report is insufficient to meet
appellant’s burden of proof.
Appellant submitted reports from a physician’s assistant dated February 15 to March 21,
2012 that are not countersigned by a physician. However, the Board has held that documents
from a physician’s assistant are not considered medical evidence as physician’s assistants are not
considered a physician under FECA.11 Thus, the treatment records from the physician’s assistant
are of no probative medical value in establishing appellant’s claim.
The remainder of the medical evidence, including an x-ray of the lumbar spine, fail to
provide an opinion on the causal relationship between appellant’s job and her diagnosed lumbar
7

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

8

See Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
9

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).
10

See id.

11

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by State law).

5

and left shoulder injury. For this reason, this evidence is not sufficient to meet appellant’s
burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.12 Appellant failed to submit such evidence, and OWCP
therefore properly denied appellant’s claim for compensation.
On appeal, appellant’s counsel disagrees with OWCP’s decision denying the claim and
asserts that appellant submitted sufficient evidence to establish her claim. As noted above, the
medical evidence, although supportive of her claim, fails to establish that appellant’s diagnosed
conditions were causally related to the employment incident rather than degenerative changes.
This is particularly important noting the preexisting pathology. Reports from appellant’s
physicians failed to provide sufficient medical rationale explaining why appellant’s low back and
left shoulder conditions were caused or aggravated by the February 14, 2012 fall at work.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment.

12

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

6

ORDER
IT IS HEREBY ORDERED THAT the June 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
U.S. POSTAL SERVICE, WEST FARMS
STATION, Bronx, NY, Employer
__________________________________________

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

Docket No. 09-1742
Issued: June 1, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 30, 2009 appellant, through her representative, filed a timely appeal from a
January 8, 2009 merit 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 the case.
ISSUE
The issue is whether the Office properly terminated appellant’s medical benefits effective
May 1, 2008 on the grounds that she no longer experienced disability or residuals of her
employment injury.
On appeal, appellant’s representative contends that the medical report of the impartial
medical examiner is not entitled to special weight because he was not properly selected, did not
demonstrate knowledge of appellant’s full-duty job requirements or provide medical rationale for
his opinion that appellant no longer had any residuals or disability from her employment injury.
He also argued that the statement of accepted facts was deficient because it did not include
appellant’s prior work-related left ankle injury.

FACTUAL HISTORY
On April 28, 2005 appellant, then a 36-year-old letter carrier, experienced pain and
swelling in her left ankle while walking her mail route.1 The Office accepted the traumatic
injury claim for strain of the lateral collateral ligament of the left ankle. Appellant stopped work
on April 30, 2005 and received continuation of pay and wage-loss compensation. On
October 19, 2005 the Office placed her on the periodic rolls. On December 23, 2005 appellant
underwent an authorized left ankle arthroscopy, debridement of the osteochrondral injury talar
dome and anterior lateral impingement lesion, synovectomy and repair of the anterior talar
fibular ligament complex.
On June 16, 2006 appellant’s treating physician, Dr. Michael Palmeri, a Board-certified
orthopedic surgeon, released her to light duty, restricting walking and standing to two hours a
day and sitting, bending and stopping to one hour a day. He noted that appellant’s left ankle was
not fully rehabilitated after surgery and he recommended additional physical therapy. In
subsequent medical reports, Dr. Palmeri continued to find that appellant had not fully recovered
from her work injury and surgery. Appellant continued to experience left ankle pain, weakness
and swelling and could only work limited duty with restrictions on standing and walking.2
On December 8, 2006 the employing establishment offered appellant a full-time, lightduty position, which she accepted on December 12, 2006. Appellant returned to light duty on
January 11, 2007.
The Office determined that a second opinion evaluation of appellant’s residuals and
disability from her employment injury was required. It referred her, together with a copy of her
medical record and statement of accepted facts, to Dr. Robert Israel, a Board-certified orthopedic
surgeon.
In a May 15, 2007 medical report, Dr. Israel reviewed appellant’s medical history and
listed her left ankle symptoms. Physical examination of the left foot and ankle was normal with
full range of motion, normal muscle strength, no atrophy and no tenderness to palpation.
Dr. Israel diagnosed status post, healed arthroscopy of the left ankle. He opined that there were
no objective findings in the left ankle and that appellant was not disabled from any medical
condition, either related or not related to her April 28, 2005 employment injury. Dr. Israel found
that appellant could work full-time, full duty as a letter carrier without restrictions.
In medical reports dated June 19 through August 28, 2007, Dr. Palmeri stated that
appellant continued to have residuals of left ankle pain secondary to Achilles tendinitis and
incomplete rehabilitation after surgery. He recommended continued physical therapy and a

1

The record reveals that appellant has a separate claim for a prior left ankle injury on October 29, 2004 under
Office file number xxxxxx332. Appellant had returned to full mail carrier duties on April 28, 2005 when she
sustained the current left ankle injury.
2

Dr. Palmeri first released appellant to light duty on March 18, 2006, however, he rescinded this release due to
continued ankle pain.

2

home exercise program. Dr. Palmeri reiterated that appellant could work limited duty with no
standing or walking for more than two hours.
The Office determined that a conflict of medical opinion arose between Drs. Israel and
Palmeri regarding appellant’s current residuals and disability due to her employment injury. It
referred her, together with a statement of accepted facts and a copy of her medical record, to
Dr. Michael J. Katz, a Board-certified orthopedic surgeon.
In a November 7, 2007 medical report, Dr. Katz reviewed appellant’s medical and
occupational history. He reported her complaint of occasional pain in the left ankle while
standing. Physical examination of the left ankle revealed normal dorsiflexion and plantar
flexion. Inversion and eversion were present and a normal 20 degrees. No joint line tenderness,
erythema, induration or crepitation was present. Anterior and posterior drawer signs were
negative. The dorsalis pedis and posterior tibial pulses were 2+ and symmetric. The tibialis
anterior, tibialis posterior and peroneal muscles were five out of five in strength. No tenderness
or contracture at the plantar fascia was present. Arthroscopic portals were well healed. Dr. Katz
diagnosed status post left ankle sprain with resultant, successful arthroscopy. He stated that
appellant did not have any indication of Achilles tendinitis or any indication of incomplete
rehabilitation. Dr. Katz opined that appellant was fully rehabilitated and that she did not have
any ongoing disability. He noted that appellant’s injury appeared to be an aggravation of an
October 29, 2004 employment injury. Dr. Katz concluded that appellant was no longer disabled
and was capable of full-time, full-duty work as a letter carrier without restrictions.
Appellant’s representative subsequently submitted a December 5, 2007 medical report
from Dr. David Weiss, Board-certified in family medicine, providing an impairment rating of
appellant’s left lower and upper extremities. Dr. Weiss reported appellant’s complaints of
swelling and intermittent pain and stiffness in the left ankle, which worsened with weather
changes. Manual muscle testing revealed inversion graded at three out of five and eversion
graded at four out of five. Physical examination of the left ankle revealed swelling over the
lateral malleolus, tenderness over the anterior talofibular ligament, lateral gutter, the deltoid
ligament and the medial malleolus. Dr. Weiss noted a minimal lateral impingement sign. He
diagnosed chronic post-traumatic left ankle strain and sprain with involvement of the anterior
talofibular ligament and deltoid ligament, post-traumatic lateral impingement syndrome to the
left ankle joint and status post arthroscopic surgery to the left ankle. Dr. Weiss stated that the
competent producing factor for appellant’s subjective and objective findings were her
employment duties and the October 29, 2004 and April 28, 2005 employment injuries.
On March 21, 2008 the Office notified appellant of a proposal to terminate her medical
benefits on the grounds that Dr. Katz’s finding, that her accepted medical conditions had ceased,
represented the weight of the medical evidence. It notified her that she had 30 days to submit
additional evidence.
In an April 3, 2008 letter, appellant’s representative contended that Dr. Katz’s medical
report was not well rationalized as he did not demonstrate any knowledge of the physical
requirements of appellant’s position or medical treatment of appellant’s prior left ankle injury on
October 29, 2004. He also contended that Dr. Katz did not address whether appellant

3

experienced any residuals from her work-related left ankle surgery and had not performed a full
examination.
By decision dated May 1, 2008, the Office terminated appellant’s medical benefits
effective that day on the grounds that Dr. Katz’s medical opinion represented the weight of the
medical evidence. It noted that Dr. Weiss did not render an opinion on disability or the
continuing need for treatment and that his findings were largely subjective. The Office also
found that the arguments raised by appellant’s counsel were not supported by the medical
evidence of record.
On May 6, 2008 appellant, through her representative, filed a request for an oral hearing
before an Office hearing representative. The oral hearing took place on September 25, 2008.
Counsel again contended that Dr. Katz was not selected as an impartial medical examiner
through proper Office procedures.
In a September 24, 2008 note, appellant stated that she experienced difficulty, including
swelling and pain, with her left ankle while standing and walking. She claimed that her left
ankle injury made her daily routine uncomfortable and that she could not wear shoes with heels
when the weather changed.
By decision dated January 8, 2009, the Office hearing representative affirmed the
Office’s termination of medical benefits on the grounds that Dr. Katz’s medical opinion was well
rationalized and based on an accurate factual and medical background. Thus, it was entitled to
special weight. The hearing representative further found that there was no evidence to support
that the Office had improperly selected Dr. Katz or that the statement of accepted facts provided
the physician was inaccurate.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.3 The burden of proof on the Office includes the necessity of furnishing
rationalized medical opinion evidence which is based on a proper factual and medical history.4
Section 8123(a) of the Federal Employees’ Compensation Act5 provides that, if there is a
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.6 When the case is referred to an impartial medical specialist for the purpose of
resolving a conflict in medical evidence, the opinion of such specialist will be given special
3

David W. Pickett, 54 ECAB 272 (2002); Gloria J. Godfrey, 52 ECAB 486 (2001).

4

Daniel F. O’Donnell, 54 ECAB 456 (2003); Gewin C. Hawkins, 52 ECAB 242 (2001).

5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8123(a). See Elsie L. Price, 54 ECAB 734 (2003); Raymond J. Brown, 52 ECAB 192 (2001).

4

weight when based on a proper factual and medical background and sufficiently well rationalized
on the issue presented.7
ANALYSIS
The Office accepted that on April 28, 2005 appellant sustained a strain of the lateral
collateral ligament of the left ankle while walking her mail route. It authorized a December 23,
2005 left ankle arthroscopy, debridement, synovectomy and ligament repair. Appellant was
disabled from April 30, 2005 through January 11, 2007, when she returned to full-time light
duty. The issue is whether the Office properly terminated her medical benefits effective May 1,
2008 on the grounds that she no longer had any residuals of her employment injury.
On June 16, 2006 appellant’s treating physician, Dr. Palmeri, stated that appellant’s left
ankle was not fully rehabilitated after surgery and that she continued to experience pain, swelling
and weakness. He released appellant to light duty. Dr. Palmeri subsequently opined that
appellant’s pain was secondary to Achilles tendinitis and incomplete surgical rehabilitation and
continued to recommend light duty.
The Office referred appellant to Dr. Israel for a second opinion evaluation. In a May 15,
2007 medical report, Dr. Israel documented normal findings from a physical examination and
diagnosed status post, healed left ankle arthroscopy. He opined that appellant did not suffer from
any related or nonrelated medical condition and that she could return to full duty as a letter
carrier without restrictions.
Based on this evidence, the Office properly determined that a conflict in medical opinion
arose between Drs. Palmeri and Israel regarding whether appellant continued to experience
residuals from her employment-related injury.8 It properly referred appellant to Dr. Katz, a
Board-certified orthopedic surgeon, for an impartial medical examination to resolve the conflict
of medical opinion.9
In a November 7, 2007 medical report, Dr. Katz reviewed appellant’s medical and
occupational history. He performed a full physical examination, which did not reveal any
objective findings of a current medical condition. Dr. Katz noted that he did not find any
indication of Achilles tendinitis or any indication of incomplete rehabilitation. He diagnosed
status post left ankle sprain with successful arthroscopy. Dr. Katz opined that appellant was
fully rehabilitated and, accordingly, she was no longer disabled from any employment injury and
that she was capable of returning to full-duty work as a mail carrier.
When a case is referred to an impartial medical examiner to resolve a conflict in medical
evidence, the opinion of such physician will be given special weight by the Board when based on
an accurate factual and medical history and with a well-rationalized explanation for the
7

See Bernadine P. Taylor, 54 ECAB 342 (2003); Anna M. Delaney, 53 ECAB 284 (2002).

8

See J.M., 58 ECAB 478 (2007); Willa M. Frazier, 55 ECAB 379 (2004).

9

See id.

5

conclusions reached.10 Dr. Katz provided a thorough review of the factual and medical evidence,
detailed his findings on physical examination of appellant and provided a rationalized
explanation for the conclusions he reached. The Board finds his report represents the weight of
the medical evidence and establishes that appellant was no longer experiencing any residuals or
disabilities due to her accepted conditions.
The Board further finds that appellant did not submit sufficient evidence to overcome the
weight of Dr. Katz’s opinion or create a new conflict of medical opinion. The only medical
evidence submitted after Dr. Katz’s examination is the December 5, 2007 report of Dr. Weiss,
who provided an impairment rating of her lower and upper extremities. Although Dr. Weiss
listed some abnormal findings on physical examination of the left ankle, including swelling and a
minimal lateral impingement sign, he did not provide a comprehensive medical opinion
explaining how these findings were related to residuals from appellant’s April 28, 2005
employment injury. As he did not provide a rationalized medical opinion addressing whether
appellant continued to experience residuals or disability due to her accepted left ankle ligament
strain, his report is of diminished probative value.11
On appeal, appellant’s representative contends that Dr. Katz was not selected through
proper Office procedures.12 The Office provided PDS logs regarding Dr. Katz’s selection as the
impartial medical specialist. These logs show that the Office left messages for four physicians
prior to scheduling the examination with Dr. Katz. There is no evidence that the Office did not
select Dr. Katz from the PDS or that it failed to comply with its rotational procedures.13
Appellant did not provide any probative evidence to demonstrate bias on the part of the doctor.
The Board has held that an impartial medical specialist properly selected under the Office’s
rotational procedures will be presumed unbiased and the party seeking disqualification bears the
substantial burden of proving otherwise. Mere allegations are insufficient to establish bias.14
Accordingly, the evidence does not establish an error in the selection of Dr. Katz as an impartial
medical examiner.
Further, appellant’s representative argued that the statement of accepted facts did not
provide a description of appellant’s prior left ankle injury and that Dr. Katz did not demonstrate
10

See Jaja K. Asaramo, 55 ECAB 200 (2006).

11

See Kathryn E. Demarsh, 56 ECAB 677 (2005); Daniel F. O’Donnell, 54 ECAB 456 (2003).

12

To ensure the complete independence of physicians that are selected as impartial medical specialists, the Office
developed specific procedures to safeguard against any possible appearance that the selected physician’s opinion is
biased or prejudiced. Impartial medical specialists are selected from among Board-certified specialists in the
appropriate geographical area on a strict rotating basis to negate the appearance that any preferential treatment exists
between a particular physician and the Office. The Federal (FECA) Procedure Manual provides that the selection of
an impartial medical specialists is made through a strict rotational system using appropriate medical directories. The
procedure manual provides that the Physicians Directory System (PDS) should be used for this purpose wherever
possible. See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b)
(May 2003). See also Willie M. Miller, 53 ECAB 697 (2002).
13

See W.R., Docket No. 09-6011 (issued October 2, 2009) (where the Board upheld the selection of the impartial
medical examiner after the Office bypassed several physicians after leaving telephone messages).
14

See L.W., 59 ECAB ___ (Docket No. 07-1346, issued April 23, 2008).

6

any knowledge of appellant’s full-duty requirements. Dr. Katz reviewed appellant’s medical
treatment and specifically addressed the accepted 2004 injury.15 Further, he did not describe
appellant’s employment duties because he did not find any objective evidence of a continuing
medical condition that would cause disability. The Board finds that Dr. Katz’s medical report is
based on an accurate medical and factual background and his opinion represents the special
weight of the medical evidence.16
CONCLUSION
The Board finds that the Office properly terminated appellant’s medical benefits effective
May 1, 2008 on the grounds that she was no longer experiencing disability or residuals of her
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 8, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

See K.H., 61 ECAB ___ (Docket No. 09-341, issued December 30, 2009).

16

See Charles A. Jackson, 53 ECAB 671 (2002).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Springfield, TN, Employer
__________________________________________

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

Docket No. 18-1682
Issued: February 22, 2019

Case Submitted on the Record

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

JURISDICTION
On September 4, 2018 appellant, through counsel, filed a timely appeal from a March 21,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated December 18, 2017, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the March 21, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 1, 2017 appellant, then a 36-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained an injury that day when his right leg and knee
buckled after turning around while in the performance of duty. In support of his claim, he
submitted medical evidence, including an October 25, 2017 report from Dr. Robert Landsberg, a
Board-certified orthopedic surgeon, who indicated that appellant was injured at work on
September 1, 2017. Dr. Landsberg diagnosed internal derangement of right knee, pain in right
knee, history of arthroscopic knee surgery, “tear of medial meniscus of right knee, unspecified tear
type, unspecified whether old or current tear, subsequent encounter,” and chondromalacia patellae,
right knee.
By decision dated December 18, 2017, OWCP denied the claim finding that the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted September 1, 2017 employment incident.
Appellant resubmitted the October 25, 2017 report from Dr. Landsberg on January 8, 2018.
On February 16, 2018 appellant requested reconsideration. He submitted a narrative
statement dated February 8, 2018 reiterating the factual history of his claim and indicating that he
went to a doctor as suggested by OWCP, who opined that he needed surgery. Appellant later
submitted a March 2, 2018 report from Dr. Landsberg who reiterated his diagnoses.
By decision dated March 21, 2018, OWCP denied appellant’s request for reconsideration
without conducting a merit review.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
4

5

20 C.F.R. § 10.607.

6
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

2

interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.8
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record,9 and the submission of evidence or
argument, which does not address the particular issue involved, does not constitute a basis for
reopening a case.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s February 16, 2018 request for reconsideration neither alleged, nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. In support of
his reconsideration request, appellant submitted a narrative statement reiterating the factual history
of his claim and indicating that he went to a doctor suggested by OWCP, who opined that he
needed surgery. The Board finds that the submission of this argument did not require reopening
appellant’s case for merit review because, in its December 18, 2017 merit decision, OWCP had
found that the medical evidence was insufficient to establish causal relationship. Appellant’s
submission of this narrative statement fails to constitute a new argument regarding the underlying
issue of causal relationship between his right knee conditions and the accepted September 1, 2017
employment incident. Thus, the Board finds that appellant has not advanced a relevant legal
argument not previously considered by OWCP. Consequently, appellant is not entitled to further
review of the merits of his claim based on the first and second above-noted requirements under
20 C.F.R. § 10.606(b)(3).
Appellant also did not submit relevant and pertinent new evidence not previously
considered by OWCP. Along with his reconsideration request, he resubmitted an October 25,
2017 report from Dr. Landsberg. Appellant subsequently submitted a report from Dr. Landsberg
dated March 2, 2018 which merely reiterated his diagnoses. The Board finds that submission of
these reports did not require reopening appellant’s case for merit review. As OWCP denied
appellant’s claim based on the lack of supportive medical evidence establishing causal
relationship, and Dr. Landsberg’s reports repeat evidence already in the case record, they are
duplicative and cumulative and fail to constitute relevant and pertinent new evidence.11 Therefore,
this evidence is insufficient to require OWCP to reopen appellant’s claim for consideration of the
7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

9
P.H., Docket No. 18-1020 (issued November 1, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome
Ginsberg, 32 ECAB 31, 33 (1980).
10

C.B., Docket No. 18-1108 (issued January 2, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

11

Supra note 9.

3

merits.12 Thus, appellant is not entitled to further review of the merits of his claim based on the
third above-noted requirement under 20 C.F.R. § 10.606(b)(3).
As appellant’s request for reconsideration failed to meet any of the criteria under 20 C.F.R.
§ 10.606(b)(3), the Board accordingly finds that OWCP properly denied appellant’s request for
reconsideration of the merits of his claim pursuant to 20 C.F.R. § 10.608.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 22, 2019
Washington, DC

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

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

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

12

See L.H., 59 ECAB 253 (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF THE NAVY, CRANE
AMMUNITION DEPOT, Crane, IN, Employer
__________________________________________

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Appearances:
David S. McCrea, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1133
Issued: January 26, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 24, 2009 appellant filed a timely appeal from a January 26, 2009 decision of
the Office of Workers’ Compensation Programs denying his reconsideration request. The Board
also has jurisdiction over a June 9, 2008 decision terminating appellant’s compensation benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit decision
terminating appellant’s compensation benefits and the January 26, 2009 nonmerit decision.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss
compensation benefits on the grounds that he refused an offer of suitable work; and (2) whether
it properly denied appellant’s request for reconsideration.
On appeal, appellant, through his attorney, contends that the Office wrongly terminated
his compensation as the offered position was not suitable work within his medical limitations.
He asserts that the Office erred by relying on the opinion of Dr. James B. Rickert, a Board-

certified orthopedic surgeon and second opinion physician, who failed to assess his work
limitations.1
FACTUAL HISTORY
The Office accepted that on November 1, 1967 appellant, then a 29-year-old ordnance
worker, sustained a lumbar strain, aggravation of an L5-S1 spondylolisthesis and herniated L4-5
disc due to a heavy lifting incident. Appellant underwent posterior lateral spinal fusion at L4-5
and L5-S1 on August 21, 1968. He received compensation for intermittent work absences.
Appellant stopped work in March 1970 and did not return. He received total disability
compensation beginning in June 1972. On January 24, 1979 appellant sustained a severe heart
attack, unrelated to his federal employment. He underwent angioplasty in January 1992.
Dr. Wayne W. Kotcamp, an attending orthopedic surgeon, followed appellant from
December 1981 to August 1997.2 He found limited lumbar motion, positive straight leg raising
tests bilaterally, postfusion syndrome, the gradual onset of spinal stenosis at L3 and a
pseudoarthrosis at L4. Dr. Kotcamp found appellant totally disabled for work due to back pain
and limited motion. Dr. Carter Heinrich, an attending Board-certified cardiologist, treated
appellant for his nonoccupational cardiac condition. In a May 15, 1997 report, he diagnosed a
severe left ventricular dysfunction necessitating “severe activity restrictions.”3
On November 8, 2006 the Office referred appellant, a statement of accepted facts and the
medical record to Dr. Rickert, a Board-certified orthopedic surgeon, for a second opinion
examination. In a November 30, 2006 report, Dr. Rickert reviewed the medical record and
statement of accepted facts. He noted lumbar pain and stiffness and cardiac limitations. On
examination, Dr. Rickert found limited lumbar motion and bilateral hamstring tightness. He
diagnosed status post fusion and a natural progression of underlying lumbar spondylosis.
Dr. Rickert opined that appellant could perform light-duty work for 8 hours a day with lifting
limited to 20 pounds, bending or stooping no more than 1 hour, limited climbing and a 15-minute
break every 2 hours.
On May 1, 2007 the Office referred appellant for vocational rehabilitation services. In a
June 2007 report, a vocational rehabilitation counselor met with appellant to discuss
reemployment at the employing establishment.
1

On appeal, appellant, through his attorney, submitted additional evidence. The Board may not consider
evidence for the first time on appeal that was not before the Office at the time it issued the final decision in the case.
20 C.F.R. § 501.2(c).
2

On September 19, 1985 the Office obtained a second opinion examination from Dr. James H. Booze, an
orthopedic surgeon, who found appellant able to perform sedentary work for eight hours a day. In a September 5,
1986 report, Dr. Stanley W. Collis, a Board-certified orthopedic surgeon, opined that appellant could perform fulltime sedentary duty. He noted that he did not address any cardiac limitations.
3

In memoranda from July to September 1997, the Office found that there were no part-time sedentary jobs within
appellant’s medical restrictions available in his commuting area. It closed a proposed vocational rehabilitation
effort. In a March 27, 1998 memorandum, the Office noted that, due to appellant’s nonoccupational heart condition,
there was “no potential for a suitable offer of employment” from the employing establishment.

2

In an undated letter, the employing establishment offered appellant a full-time position as
a GS-1 clerk. Appellant would work a 10-hour shift from 6:30 am to 5:00 p.m. Monday to
Thursday, performing clerical tasks as directed, with no lifting over 20 pounds and no repetitive
bending or climbing. He would be allowed to sit or stand at will and have a 15-minute break
every 2 hours. The position would become available on June 25, 2007.
On June 19, 2007 appellant declined the offered clerk position. He stated that the strain
of driving to and from the employing establishment on June 8, 2007 for a fitness-for-duty
examination caused three days of back and leg pain.
In a July 9, 2007 letter, the Office advised appellant that the offered clerk position was
suitable work and that the position remained open and available. It explained that, under the Act,
refusing an offer of suitable work would lead to termination of his wage-loss compensation
benefits. Appellant was afforded 30 days to accept the offered job or provide valid reasons for
his refusal.
In a July 15, 2007 letter, appellant again declined the offered clerk position. He stated
that he could not work a 10-hour schedule due to interrupted sleep and continuous back and leg
pain. Appellant contended that Dr. Rickert did not examine him.
In an August 14, 2007 letter, the Office advised appellant that he failed to present a valid
reason for refusing the offered position. Appellant had 15 days to accept the position or his
entitlement to wage-loss and schedule award benefits would be terminated. As of September 6,
2007, he did not contact the employing establishment about the job offer. The position remained
open and available.
By decision dated September 20, 2007, the Office terminated appellant’s entitlement to
wage-loss and schedule award compensation benefits effective September 29, 2007 under section
8106(c) of the Act on the grounds that he refused an offer of suitable work. It noted that his case
remained open for medical treatment of the accepted injury.
In a letter dated October 11 and postmarked October 12, 2007, appellant requested an
oral hearing. In a November 13, 2007 letter, he asserted that Dr. Rickert was not qualified to
treat back injuries and misstated his medical history. At the hearing, held February 26, 2008,
appellant contended that he could not work 10 hours a day or drive 1 hour each way to and from
the employing establishment.
By decision dated and finalized June 9, 2008, an Office hearing representative affirmed
the Office’s September 20, 2007 decision. The hearing representative found that appellant had
not provided valid reasons for refusing the position or established that the offered position was
not suitable work.
In a December 2, 2008 letter, appellant requested reconsideration, reiterating his
contentions that Dr. Rickert was unqualified and inaccurate. Dr. Rickert submitted a July 30,
2008 letter from Dr. John W. Collier, an attending Board-certified family practitioner, who noted
reviewing the medical record and opined there was a “considerable difference between what
[appellant was] able to tolerate from a physical exertion standpoint” and Dr. Rickert’s
November 30, 2006 examination.
3

By decision dated January 26, 2009, the Office denied appellant’s request for
reconsideration on the grounds that he failed to submit new, relevant evidence. It found that
appellant’s December 2, 2008 letter and Dr. Collier’s July 30, 2008 letter did not provide new,
relevant evidence that appellant was medically unable to perform the offered clerk position.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.4 In this case, the Office terminated appellant’s
compensation under section 8106(c)(2) of the Act, which provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or
secured for the employee is not entitled to compensation.”5 To justify termination of
compensation, it must show that the work offered was suitable and must inform appellant of the
consequences of refusal to accept such employment.6 For conditions not accepted by the Office
as being employment related, it is the employee’s burden to provide rationalized medical
evidence sufficient to establish causal relation.7 Once the Office establishes that the work
offered was suitable, the burden of proof shifts to the employee who refuses to work to show that
such refusal was reasonable or justified.8 Section 8106(c) will be narrowly construed as it serves
as a penalty provision, which may bar an employee’s entitlement to compensation based on a
refusal to accept a suitable offer of employment.9
Section 10.517(a) of the Act’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.10 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.11
The issue of whether an employee has the physical ability to perform a modified position offered
by the employing establishment is primarily a medical question that must be resolved by medical
evidence.12

4

Linda D. Guerrero, 54 ECAB 556 (2003); Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

6

Ronald M. Jones, 52 ECAB 190 (2000).

7

Alice J. Tysinger, 51 ECAB 638 (2000).

8

Bryant F. Blackmon, 56 ECAB 752 (2005).

9

Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

10

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 6.

11

Id. at § 10.516.

12

Kathy E. Murray, 55 ECAB 288 (2004).

4

ANALYSIS
The Office accepted that, on November 1, 1967, appellant sustained lumbar injuries
necessitating a multilevel fusion. His attending physicians found him totally disabled through
1997. In November 2006, the Office obtained a second opinion examination of Dr. Rickert, a
Board-certified orthopedic surgeon, who found appellant capable of restricted sedentary work
eight hours a day. The employing establishment offered appellant a job as a clerk for 10 hours a
day, which the Office found to be suitable work based on Dr. Rickert’s opinion. Appellant
declined the position, asserting that he could not work 10 hours a day. The Office then
terminated his entitlement to wage-loss compensation benefits effective September 29, 2007,
affirmed by decision dated June 9, 2008.
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation under 5 U.S.C. § 8106(c)(2). The Office did not establish that the offered clerk
position was suitable work. Dr. Rickert opined that appellant could work eight hours a day with
restrictions. The offered clerk position required a 10-hour work shift. The 10-hour work
schedule is in excess of the 8-hour schedule delineated by Dr. Rickert. The offered clerk
position exceeds appellant’s medical restrictions. It is not suitable work. For this reason, the
Board will reverse the Office’s June 9, 2008 decision.
In light of the Board’s disposition of issue number one, the issue regarding the denial of
reconsideration is moot.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation benefits.
The offered position was not suitable work.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 9, 2008 is reversed. The January 26, 2009 decision
regarding the denial of reconsideration is moot.
Issued: January 26, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6