United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Victorville, CA, Employer
__________________________________________

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

Docket No. 13-2137
Issued: March 11, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 13, 2013 appellant filed a timely appeal from an April 24, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) finding an overpayment of
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $13,031.44 from April 15 to July 30, 2011 because he received compensation after he
returned to work; and (2) whether OWCP properly denied waiver of recovery of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 27, 2005 appellant, then a 42-year-old teacher, filed a traumatic injury claim
alleging that on July 13, 2005 he injured both wrists in the performance of duty. OWCP
accepted the claim for bilateral carpal tunnel syndrome and bilateral tenosynovitis.
On October 14, 2010 appellant underwent a right carpal tunnel release. OWCP paid him
compensation for disability beginning October 17, 2010. By letter dated July 10, 2011, appellant
advised OWCP that he had returned to modified employment on April 15, 2011.2 He related that
he had telephoned OWCP twice about his return to work and concern that he might be overpaid.
Appellant enclosed a check for $4,618.74, the last payment he had received. He asked OWCP to
return the check if he was entitled to the payment.
By letter dated September 1, 2011, OWCP notified appellant of its preliminary
determination that he received an overpayment of compensation in the amount of $13,031.44
because he returned to work on April 15, 2011 but continued to receive compensation until
July 30, 2011. It calculated the overpayment by taking the compensation received from April 15
to July 30, 2011, $17,650.18 and subtracting $4,618.74, the amount he returned to it, to find a
total overpayment of $13,031.44. OWCP further advised appellant of its preliminary
determination that he was without fault in the creation of the overpayment. It requested that he
complete the enclosed overpayment recovery questionnaire and submit supporting financial
documents. Additionally, OWCP notified appellant that, within 30 days of the date of the letter,
he could request a telephone conference, a final decision based on the written evidence or a
prerecoupment hearing.
On September 22, 2011 appellant requested a decision based on the written evidence. He
asserted that he was without fault in creating the overpayment and requested waiver. Appellant
related that he would experience hardship repaying the overpayment. He completed an
overpayment recovery questionnaire with supporting financial documentation. Appellant
supported three dependents and listed assets totaling $13,283.36.
In an April 12, 2012 memorandum of conference, appellant advised that his income had
not changed and that he supported three children. OWCP requested that he submit a current
overpayment recovery questionnaire. Appellant, however, did not respond to the request.
By decision dated April 24, 2013, OWCP determined that appellant received an
overpayment of compensation in the amount of $13,031.44 because he returned to work on
April 15, 2011 but continued to receive monetary compensation for total disability until
July 30, 2011. It determined that he was without fault in the creation of the overpayment but
denied waiver of recovery of the overpayment as his assets exceeded the allowed amount.3
2

On June 1, 2012 appellant related that he returned to work on April 15, 2011 without restrictions.

3

OWCP further found that appellant did not require all his income to meet current and ordinary expenses. In
determining his monthly income, it included the amount that he erroneously received from OWCP in addition to his
earnings from employment; however, this does not affect the outcome of the case as his assets exceed the qualifying
amount.

2

OWCP found that appellant should submit $200.000 per month as repayment of the
overpayment.
On appeal appellant relates that he advised OWCP on June 23, 2011 that he had returned
to work but it did not advise him of the overpayment until September 2011. He indicates that he
notified OWCP that he had three additional dependents before his appeal. Appellant also asserts
that he no longer owned one of his assets as it was destroyed. He asks that he be allowed to
submit evidence on appeal. Appellant indicated that he was challenging a July 25, 2013
decision.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA4 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
may not receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.6 OWCP’s regulations state in pertinent part: “compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.”7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $13,031.44. OWCP accepted that he sustained employment-related bilateral carpal tunnel
syndrome and bilateral tenosynovitis and paid him compensation for total disability beginning
October 17, 2010. Appellant returned to work on April 15, 2011 but continued to receive
compensation until July 30, 2011. As he returned to work with no loss of wage-earning capacity
on April 15, 2011, he was not entitled to receive compensation after that date.8 Accordingly, the
Board finds that appellant received an overpayment of compensation.
OWCP calculated the overpayment by determining the amount that it paid appellant for
the period April 15 to July 30, 2011, $17,650.18, and subtracting from this the amount that he
refunded to OWCP, $4,618.74, to find an overpayment of $13,031.44. The Board will affirm the
fact and amount of overpayment.

4

5 U.S.C. § 8101 et seq.

5

Id. at § 8102.

6

Id. at § 8116(a).

7

20 C.F.R. § 10.500.

8

See 5 U.S.C. § 8116(a); 20 C.F.R. § 10.500.

3

LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA5 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.”
(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result
in waiver of the overpayment. OWCP must then exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience. 6
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.9 An individual’s liquid assets
include but are not limited to case, the value of stocks, bonds, savings accounts, mutual funds
and certificates of deposits.10 Nonliquid assets include but are not limited to the fair market
value of an owner’s equity in property such as a camper, boat, second home and furnishings and
supplies.11
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.12 To establish that a valuable right has been
relinquished, it must be shown that the right was in fact valuable, that it cannot be regained and
that the action was based chiefly or solely in reliance on the payments or on the notice of
payment.13
ANALYSIS -- ISSUE 2
OWCP found that appellant was not at fault in creating the overpayment of compensation
and thus considered whether he was entitled to waiver of recovery of the overpayment. Waiver
is only possible if recovery would defeat the purpose of FECA or would be against equity and
good conscience. In order to establish that repayment of the overpayment would defeat the
purpose of FECA, appellant must show that he requires substantially all of his income to meet
9

20 C.F.R. § 10.436. OWCP procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).
10

Id.

11

Id.

12

20 C.F.R. § 10.436.

13

Id. at § 10.437(b)(1).

4

current ordinary and necessary living expenses and that his assets do not exceed the established
limit as determined by OWCP’s procedures.14
OWCP determined that appellant’s assets exceeded the allowed resource base. Appellant
provided an overpayment recovery questionnaire listing assets of $13,283.36. OWCP
procedures provide that assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional
dependent.15 Appellant has three dependents and thus his qualifying amount for waiver is
$9,920.00.16 As his assets of $13,283.36 exceed the amount specified, he has not shown that
recovery would defeat the purpose of FECA.17
Additionally, the evidence does not demonstrate that repayment of the overpayment
would be against equity and good conscience. Appellant submitted no evidence that he relied
upon the incorrect payments to his detriment or that he would experience severe financial
hardship attempting to repay the debt. Consequently, OWCP properly denied waiver of recovery
of the overpayment.
On appeal appellant noted that he told OWCP that he had returned to work in June 2011
but that it did not inform him of the overpayment until September 2011. OWCP, however, found
that he was not at fault in creating the overpayment. The fact that an error by it resulted in an
overpayment does not relieve a claimant from liability for repayment.18
Appellant further related that he informed OWCP before his appeal that he had additional
dependents and that his assets had decreased.19 The Board, however, cannot consider evidence
that was not before OWCP at the time it issued its final decision.20 If appellant’s circumstances
have significantly changed, he can again request waiver before OWCP and submit supporting
financial information.21

14

Id. at § 10.436.

15

See supra note 8.

16

OWCP found that appellant’s assets needed to be under $7,680.00 rather than $9,920.00 to qualify for waiver;
however, this does not affect its finding that his assets exceed the limit for showing that recovery would defeat the
purpose of FECA.
17

See J.F., Docket No. 10-1185 (issued February 1, 2011).

18

20 C.F.R. § 10.435(a); Lawrence J. Dubuque, 55 ECAB 667 (2004).

19

Appellant also indicated that he was appealing a decision dated July 25, 2013; however, the correspondence
dated July 25, 2013 does not purport to be a final decision and is not accompanied by appeal rights. See 20 C.F.R.
§ 10.126.
20

See 20 C.F.R. § 501.2(c).

21

See id. at § 10.438(b); see also K.M., Docket No. 11-1083 (issued February 14, 2012).

5

CONCLUSION
The Board finds that appellant received an overpayment of $13,031.44 from April 15 to
July 30, 2011 because he received compensation after he returned to work. The Board further
finds that OWCP properly denied waiver of recovery of the overpayment.22
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2014
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

22

With respect to recovery of the overpayment, the Board’s jurisdiction is limited to reviewing those cases where
OWCP seeks recovery from continuing compensation under FECA. 20 C.F.R. § 10.441; see Miguel A. Muniz, 54
ECAB 217 (2002).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 09-1144
Issued: November 18, 2009

Case Submitted on the Record

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

JURISDICTION
On March 24, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 11, 2009 merit decision denying modification of a
December 29, 2008 merit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established he sustained an injury in the performance of
duty on August 23, 2008 causally related to his employment.
FACTUAL HISTORY
On August 27, 2008 appellant, a 29-year-old “heavy equipment repairer,” filed a
traumatic injury claim (Form CA-1) for a left knee injury that he alleged occurred on August 23,
2008 while lifting an M-88 housing while on temporary duty in Iraq.

Appellant submitted a report from the employing establishment’s medical unit.1 He
submitted notes signed by Dr. Gordon T. Hardy, a Board-certified orthopedic surgeon, dated
August 27, October 14 and 23, 2008, diagnosing left knee contusion, sprain with anterior
cruciate ligament (ACL) injury, lateral meniscus tear as well as exacerbation of arthritis.
By report dated October 17, 2008, Dr. Robert F. Garner, a Board-certified diagnostic
radiologist, stated that a magnetic resonance imaging (MRI) scan of appellant’s left knee
revealed a complex tear of the lateral meniscus and degenerative changes in the knee joint space.
By decision dated December 29, 2008, the Office denied appellant’s claim because the
evidence of record did not demonstrate that the employment incident occurred as alleged.
On January 5, 2009 appellant requested reconsideration.
Appellant submitted a note dated January 5, 2009, in which a coworker reported
witnessing appellant’s injury and a report dated January 7, 2009 in which Dr. Hardy reviewed
appellant’s history of injury. Dr. Hardy stated that on August 26, 2008 appellant was “working
at ‘AAD,’ sitting in a chair moving something when he felt a large pop in his knee.” He also
related that appellant had a previous injury in Iraq on February 15, 2008 which was a lower leg
injury and not specific to his knee. Dr. Hardy noted that appellant had been treated in
November 2007 for knee sprain, which had resolved prior to being sent to Iraq. He concluded as
follows: “I believe he tore his ACL graft at the time of an on-the-job injury. He relates it most
specifically to the August 2008 event.” Appellant also submitted a note dated February 19, 2009
in which he described his injury and how it occurred.
By decision dated March 11, 2009, the Office accepted that the incident occurred as
alleged but nonetheless denied the claim because the evidence of record did not establish that
appellant’s condition was caused by the accepted employment incident.
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the 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.2 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.3
1

The Board notes that the Office issued a Form CA-16. A properly executed Form CA-16 creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989). The Form CA-16 issued to
appellant authorized examination and treatment and was therefore properly executed.
2

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

3

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).

2

An employee has the burden of establishing by the weight of the reliable, probative and
substantial evidence that his condition is causally related to factors of his employment. Where
an employee is on temporary-duty assignment away from his federal employment he is covered
by the Federal Employees’ Compensation Act 24 hours a day with respect to any injury that
results from activities essential or incidental to his temporary assignment. However, the fact that
an employee is on a special mission or in travel status during the time a disabling condition
manifests itself does not raise an inference that the condition is causally related to the incidents
of employment.4
ANALYSIS
The Office has accepted that the incident occurred as alleged while appellant was on
temporary duty in Iraq. Appellant’s burden is to demonstrate that the accepted employment
incident caused a personal injury. Causal relationship is a medical issue that can only be proven
by competent, probative medical evidence.5 The Board finds the evidence of record insufficient
to establish appellant’s claim.
The relevant evidence of record consists of reports and notes signed by Drs. Hardy and
Garner. This evidence is of no probative value on the issue of causal relationship as it lacks a
rationalized medical opinion concerning the causal relationship between the accepted
employment incident and the conditions diagnosed.6 Dr. Hardy attempted to address causal
relationship in his report dated January 7, 2009. He related that appellant had a previous knee
strain in November 2007, which had resolved, and that he had another lower leg injury in
February 2008 that was not specific to his knee. Dr. Hardy also related that appellant had told
him that he was seated in a chair on August 26, 2008 “moving something” when he felt a large
pop in his knee. While he reported appellant’s account of the August 26, 2008 incident
Dr. Hardy did not provide his own medical opinion explaining with medical rationale, how
“moving something” while seated in a chair would have caused appellant’s diagnosed
conditions. As such, this evidence is insufficient to establish appellant’s claim. The reports from
Dr. Garner provided findings from an MRI examination, but offered no opinion regarding the
cause of the diagnosed conditions.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
4

Susan A. Filkins, 57 ECAB 630 (2006).

5

The Board notes that appellant submitted reports from a physical therapist. Because healthcare providers such
as nurses, acupuncturists, physician’s assistants and physical therapists are not considered “physicians” under the
Act, their reports and opinions do not constitute competent medical evidence. (5 U.S.C. § 8101(2); see also G.G.,
58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007); Jerré R. Rinehart, 45 ECAB 518 (1994);
Barbara J. Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983). Thus the physical therapy reports
appellant submitted are of no probative value.
6

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value). Franklin D. Haislah, 52 ECAB 457 (2001); see also Jimmie H. Duckett, 52 ECAB
332 (2001).

3

establish causal relationship.7 Appellant has not submitted sufficient evidence in support of his
claim and therefore has not established that he sustained an injury in the performance of duty on
August 23, 2008 causally related to his employment.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on August 23, 2008 causally related to his employment.
ORDER
IT IS HEREBY ORDERED THAT the March 11, 2009 and December 29, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 18, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 15-391
Issued: June 18, 2015

Case Submitted on the Record

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

JURISDICTION
On December 9, 2015 appellant filed a timely appeal of a September 10, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained impairment resulting from his
accepted employment injuries.
On appeal appellant contends that, as he sustained permanent injuries as the result of his
employment injury, he is entitled to a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 22, 2010 appellant, then a 61-year-old tractor trailer operator, filed a
traumatic injury claim alleging that on that day he sustained neck and lower back injuries as a
result of being rear-ended while driving a tractor trailer in the performance of duty. OWCP
accepted the claim for lumbar and neck sprains.
On December 3, 2013 appellant filed a claim for a schedule award.
In a letter dated December 19, 2013, OWCP informed appellant of the medical evidence
required to establish a schedule award claim. It also advised that any permanent impairment
rating must use the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (hereinafter A.M.A., Guides). Appellant was given 30 days to provide
the requested information.
In support of his claim appellant submitted surgical reports by Dr. David J. Wyatt, a
treating physician Board-certified in orthopedic surgery. Diagnoses included L4-5 instability
with spondylosis, status post motor vehicle accident and bilateral L4-5 and L5-S1 facet
arthropathy with facet generated mechanical back pain. On March 18 and May 13, 2011
Dr. Wyatt performed bilateral L4-5 and L5-S1 facet block. In a July 8, 2011 report, he
performed a bilateral L3-5 radiofrequency rhizotomy procedure on appellant.
By decision dated September 10, 2014, OWCP denied appellant’s claim for a schedule
award as he failed to submit any medical report with an impairment rating or examination
findings warranting review by an OWCP medical adviser.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 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.4 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.5

2

Id. at § 8107.

3

20 C.F.R. § 10.404.

4

Id.

5

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).

2

The sixth edition requires identifying the impairment for the Class of Diagnosis (CDX)
condition which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).6 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
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
Newsletter, rating spinal nerve extremity impairment using the sixth edition (July/August 2009)
is to be applied.7
ANALYSIS
OWCP denied appellant’s claim for a schedule award as the record did not include an
impairment rating. Prior to denying his claim, it advised appellant of the need to submit an
impairment rating under the A.M.A., Guides (6th ed. 2009). In support of his claim appellant
submitted reports dated March 18, May 13, and July 8, 2011 from Dr. Wyatt. Dr. Wyatt’s
surgical reports do not address impairment. In addition, these records do not include a
sufficiently detailed description of impairment that would allow one to visualize the character
and degree of appellant’s disability or whether appellant had reached maximum medical
improvement.
Without a medical evaluation of permanent impairment under the sixth edition of the
A.M.A. Guides, appellant has failed to establish a prima facie claim for a schedule award. The
Board will therefore affirm OWCP’s September 10, 2014 decision.
On appeal appellant argues that he sustained permanent injuries as a result of the
accepted employment injury and will need the money from a schedule award for future medical
treatment. As noted above he has not submitted any medical evidence containing an impairment
rating as requested by OWCP. Accompanying his appeal appellant resubmitted copies of
Dr. Wyatt’s reports. As discussed above these reports are insufficient to establish his claim for a
schedule award as they contain no impairment rating using the sixth edition of the A.M.A.,
Guides.
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 not met his burden of proof to establish that he is
entitled to a schedule award as a result of his accepted employment injuries.
6

A.M.A., Guides 494-531.

7

See L.S., Docket No. 13-1703 (issued March 5, 2014); G.N., Docket No. 10-850 (issued November 12, 2010);
see also Federal (FECA) Procedure Manual, supra note 5 at Chapter 3.700, Exhibit 1, n.5 (January 2010). The
Guides Newsletter is included as Exhibit 4.3.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 10, 2014 is affirmed.
Issued: June 18, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE INTERIOR, BUREAU )
OF LAND MANAGEMENT, Vale, OR, Employer )
__________________________________________ )
J.C., Appellant

Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0973
Issued: February 9, 2021

Case Submitted on the Record

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

JURISDICTION
On April 1, 2020 appellant, through counsel, filed a timely appeal from an October 24,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 24, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation, effective March 4, 2018, as he no longer had residuals or disability
causally related to his accepted August 19, 2000 employment injury; and (2) whether appellant
has met his burden of proof to establish continuing residuals or disability causally related to his
accepted left wrist injury on or after March 4, 2018.
FACTUAL HISTORY
On August 19, 2000 appellant, then a 59-year-old emergency firefighter, filed a traumatic
injury claim (Form CA-1) alleging that on August 17, 2000 he tripped when walking a dozer line
and fell on his left hand, sustaining an injury to his left wrist while in the performance of duty. He
stopped work on August 17, 2000. OWCP accepted the claim for a left wrist ligament strain
necessitating open reduction and repair of the scapholunate ligament and paid appellant wage-loss
compensation for temporary total disability commencing October 4, 2000. It subsequently
expanded its acceptance of the claim to include a left triquetral fracture with open reduction and
repair.
On December 19, 2000 appellant underwent authorized surgical repair of the left
scapholunate ligament, performed by Dr. T. Clark Robinson, a Board-certified orthopedic surgeon.
He continued under medical care. Appellant remained off work. OWCP paid him wage-loss
compensation for temporary total disability on the periodic rolls commencing April 22, 2001.
In a December 16, 2010 report, Dr. Robinson noted that appellant continued to experience
pain and instability of the left wrist. He diagnosed primary localized arthritis of the left forearm
and other joint derangement of the left forearm.
On March 26, 2015 OWCP expanded its acceptance of the claim to include post-traumatic
arthritis of the left wrist.
On April 7, 2015 appellant underwent authorized left scaphoid excision with mid carpal
fusion, performed by Dr. Robinson. In a July 16, 2015 report, Dr. Robinson released appellant to
full activity, but restricted lifting to 25 pounds. He explained that appellant could not return to his
date-of-injury position as a firefighter “due to his age and not his wrist.”
On September 14, 2015 OWCP referred appellant, the medical record, a statement of
accepted facts (SOAF), and a list of questions to Dr. Paul Collins, a Board-certified orthopedic
surgeon, for a second opinion regarding the nature and extent of appellant’s accepted left wrist
condition. The SOAF indicated appellant’s date-of-injury position as an emergency firefighter
required arduous physical activity over extended periods of time, including lifting more than 50
pounds.
Dr. Collins submitted a September 30, 2015 report in which he reviewed the medical record
and SOAF. He noted that appellant continued to experience left wrist pain. On examination of
the left upper extremity Dr. Collins further noted a surgical scar in the dorsal aspect of the wrist,
diminished grip strength, and restricted wrist motion in all planes. He diagnosed traumatic left
wrist scapholunate junction subluxation with degenerative changes from the accepted August 17,

2

2000 incident, and postoperative changes from scapholunate and wrist fusion. Dr. Collins opined
that the accepted injury had resulted in progressive degenerative arthritis of the left wrist,
postoperative alteration of the left wrist and left forearm and wrist weakness related to traumatic
damage to the left scapholunate junction. He permanently restricted appellant to sedentary duty.
Dr. Collins explained that he did not believe appellant’s work status would change over time given
the severity of the accepted injury and subsequent treatment.
In a November 14, 2017 development letter, OWCP requested that Dr. Robinson submit a
more current report regarding current clinical findings, diagnoses, and appellant’s work capacity.
In response, Dr. Robinson submitted a December 14, 2017 report, noting appellant’s symptoms of
left wrist pain and stiffness. On examination of the left hand and wrist, he observed no tenderness
to palpation, 20 degrees wrist flexion, 55 degrees wrist extension, 10 degrees ulnar deviation, 10
degrees radial deviation, full forearm rotation, normal strength, and normal sensation.
Dr. Robinson obtained x-rays of the left wrist demonstrating a scaphoid excision and mid carpal
fusion with two screws in place. He diagnosed primary osteoarthritis of the left hand, scaphoid
excision, and partial wrist fusion. Dr. Robinson opined that appellant’s left wrist fusion had healed
without residual symptoms and that he had no work restrictions related to his wrist. He found
appellant permanently disabled from his date-of-injury position as a firefighter due to his age of
77 years, with no restrictions attributable to his left wrist condition.
In a January 18, 2018 notice, OWCP advised appellant that it proposed to terminate his
wage-loss compensation as he no longer had residuals of disability causally related to his accepted
August 17, 2000 employment injury. It indicated that the weight of the medical opinion evidence
with respect to employment-related residuals/disability rested with the December 14, 2017 opinion
of Dr. Robinson. OWCP afforded appellant 30 days to submit evidence and argument challenging
the proposed termination action.4
By decision dated March 1, 2018, OWCP terminated appellant’s wage-loss compensation,
effective March 4, 2018, as he no longer had disability causally related to his accepted August 17,
2000 employment injury. It found that the weight of the medical opinion evidence with respect to
employment-related residuals/disability rested with the December 14, 2017 opinion of
Dr. Robinson. OWCP noted that the claim remained open for medical benefits.
On March 23, 2018 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. In a September 7, 2018 statement, he contended, through
counsel, that Dr. Robinson’s February 14, 2017 opinion was insufficiently rationalized to
represent the weight of the medical evidence.
Appellant also submitted an August 21, 2018 report by Dr. Robert G. Hansen, a Boardcertified orthopedic surgeon. Dr. Hansen noted a history of injury and treatment. On examination
he found mild swelling over the left wrist, pain to palpation, decreased sensation in the little and
ring fingers, and a positive Tinel’s sign at the left elbow. Dr. Hansen obtained x-rays which

4
In response, appellant provided a statement from S.R., an associate of appellant’s, contending that appellant did
not understand why Dr. Robinson had suddenly changed his opinion after asserting for many years that appellant could
no longer work as a firefighter. He continued to experience left wrist pain and had to take medication frequently.

3

demonstrated left intercarpal fusion, scaphoid excision, and significant arthrosis of the radial
lunate joint.
By decision dated October 25, 2018, an OWCP hearing representative affirmed the
March 1, 2018 decision, finding that Dr. Robinson’s December 14, 2017 opinion continued to
represent the weight of the medical evidence.
On October 11, 2019 appellant, through counsel, requested reconsideration. Counsel
contended that OWCP had not met its burden of proof to terminate appellant’s wage-loss
compensation as Dr. Robinson’s December 14, 2017 opinion was inconsistent with his prior
reports and contained no rationale explaining his change of opinion. Appellant submitted
additional evidence.5
In a July 22, 2019 report, Dr. Jonathan Bowman, a Board-certified family practitioner,
reviewed a history of injury and treatment. He diagnosed post-traumatic arthritis of the left wrist
and noted permanent work restrictions against reaching above the shoulder, pushing, pulling,
lifting, and carrying more than 10 pounds, no repetitive reaching, and no repetitive wrist
movements. Dr. Bowman opined that the accepted left wrist injury and post-traumatic arthritis of
the left wrist prevented appellant from returning to his date-of-injury position as a firefighter.
By decision dated October 24, 2019, OWCP denied modification of the March 1, 2018
decision, finding that Dr. Robinson’s December 14, 2017 opinion continued to represent the
weight of the medical evidence.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.6 After it has been determined that, an
employee has a disability causally related to his or her employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.7 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.8
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective March 4, 2018.
In his December 14, 2017 report, Dr. Robinson discussed appellant’s history of medical
treatment and reported his continuing symptoms of left wrist pain and stiffness. He detailed the
5

Appellant also submitted chart notes signed by Troy Landes, a physician assistant.

6

Z.D., Docket No. 19-0662 (issued December 5, 2019); see R.P., Docket No. 17-1133 (issued January 18, 2018);
S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
7

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
8

See R.P., id.; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

physical examination findings, which included restricted motion in all planes. Dr. Robinson
diagnosed primary osteoarthritis of the left hand and postsurgical status. He opined that appellant
was disabled from his date-of-injury position as a firefighter due to appellant’s age of 77 years,
with no restrictions or limitations referable to the employment injury. Dr. Robinson opined that
the wrist fusion had healed, however, he did not address whether the accepted condition of primary
osteoarthritis had resolved. The absence of medical rationale on the crucial issue of continuing
residuals/disability from work significantly diminishes the probative value of Dr. Robinson’s
opinion.9
The Board further finds that, in his December 14, 2017 report, Dr. Robinson noted both
that appellant reported continued left wrist pain and stiffness and that appellant had no left wrist
symptoms. The Board has held that a medical opinion which is equivocal in nature is of limited
probative value regarding a given medical question.10
As Dr. Robinson does not provide a well-rationalized, unequivocal opinion that appellant
had no residuals or disability related to the accepted August 17, 2000 employment injury on or
after March 4, 2018,11 OWCP has not met its burden of proof to terminate appellant’s wage-loss
compensation, effective March 4, 2018, based on his report.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective March 4, 2018.12

9

M.R., Docket No. 20-0707 (issued November 30, 2020).

10

See E.B., Docket No. 18-1060 (issued November 1, 2018); Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).

11

See supra note 8.

12

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the October 24, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 9, 2021
Washington, DC

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

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

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

6


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0510
Issued: August 6, 2019

Case Submitted on the Record

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

JURISDICTION
On January 8, 2019 appellant, through counsel, filed a timely appeal from an August 9,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established more than five percent permanent
impairment of the left upper extremity, for which she previously received a schedule award.

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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On June 7, 2008 appellant, then a 58-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that day she injured her left leg and wrist when she fell on cracked
pavement while in the performance of duty. OWCP accepted the claim for left closed distal radius
fracture, abrasion of trunk without infection, abrasion of right elbow without infection, and left
knee contusion. Acceptance of the claim was subsequently expanded to include left upper limb
reflex sympathetic dystrophy.
On June 5, 2014 appellant filed a claim for a schedule award (Form CA-7). By decision
dated April 29, 2015, OWCP granted her a schedule award for five percent permanent impairment
of the left upper extremity.
In a letter dated May 5, 2015, appellant, through counsel, requested an oral hearing before
an OWCP hearing representative, which was held on September 24, 2015.
By decision dated December 9, 2015, an OWCP hearing representative set aside the
April 29, 2015 decision and remanded the case for review of the medical evidence by an OWCP
medical adviser.
Following remand, by decision dated February 17, 2016, OWCP denied appellant’s claim
for an additional schedule award.
On May 24, 2016 appellant, through counsel, appealed to the Board. By decision dated
July 7, 2017, the Board set aside OWCP’s February 17, 2016 decision.4 The Board found there
was an unresolved conflict in the medical opinion evidence regarding the extent of permanent
impairment arising from appellant’s left wrist fracture complex regional pain syndrome (CRPS)
between Dr. David Weiss, appellant’s treating osteopathic physician, and OWCP’s medical
adviser Dr. Taisha S. Williams, a specialist in physical medicine and rehabilitation. The Board
instructed OWCP to refer appellant to an impartial medical examiner for a reasoned medical
opinion with respect to appellant’s employment-related permanent impairment of the left upper
extremity under the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).5 The Board further instructed OWCP to issue a
de novo decision after such further development of the evidence as necessary.
On November 6, 2017 OWCP referred appellant to Dr. Mohammed H. Zamani, a Boardcertified orthopedic surgeon, to resolve the conflict in the medical opinion.
In a November 28, 2017 report, Dr. Zamani reviewed the statement of accepted facts
(SOAF), appellant’s history of injury, and the medical evidence of record. Physical examination
3

Docket No. 16-1230 (issued July 7, 2017).

4

Id.

5

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

2

findings revealed full bilateral wrist range of motion (ROM), full bilateral radial and ulnar wrist
deviation, no tenderness over the left distal ulnar radius, stiffness of the left hand, inability to make
a full fist with the left hand, normal bilateral hand sensation, negative bilateral wrist or forearm
Tinel’s sign, and no sign of nerve entrapment. Dr. Zamani opined that appellant no longer had
any regional pain and, thus, did not have a ratable impairment for this condition under the sixth
edition of the A.M.A., Guides. He indicated that “according to the Sixth Edition of the Guides
that she had five percent permanent impairment in the left upper extremity as a result of the
accident and subsequent treatment.”
In a letter dated April 12, 2018, OWCP requested that Dr. Zamani provide a supplemental
opinion addressing the conflict in the medical opinion regarding the extent and degree of
appellant’s left upper extremity permanent impairment regarding her left wrist fracture.
In an April 27, 2018 addendum, Dr. Zamani concluded that appellant had five percent
permanent impairment of the left upper extremity using the sixth edition of the A.M.A., Guides.
He noted that she was not on pain medication and no longer complained about left upper extremity
pain except for her fingers and hands. While nerve testing showed some neuropathy, Dr. Zamani
found no muscle atrophy of the thenar area nor any signs of upper extremity nerve entrapment. He
reported a healed left wrist fracture. Thus, Dr. Zamani concluded that appellant was not entitled
to greater than five percent permanent impairment of the left upper extremity.
By decision dated August 9, 2018, OWCP found that appellant was not entitled to an
additional schedule award. It found that the special weight of the medical opinion evidence was
represented by Dr. Zamani, the impartial medical examiner.
LEGAL PRECEDENT
The schedule award provisions of FECA,6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. With respect to the wrist, reference is made to Table 15-3 (Wrist Regional Grid)
beginning on page 395. After the class of diagnosis (CDX) is determined from the Wrist Regional
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at 10.404(a).

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).

3

Grid (including identification of a default grade value), the net adjustment formula is applied using
the grade modifier for functional history (GMFH), grade modifier for physical examination
(GMPE), and grade modifier for clinical studies (GMCS). The net adjustment formula is (GMFH
- CDX) + (GMPE - CDX) + (GMCS - CDX).10
OWCP issued FECA Bulletin No. 17-06 to explain the use of the diagnosis-based
impairment (DBI) methodology versus the ROM methodology for rating of upper extremity
impairments.11 Regarding the application of ROM or DBI impairment methodologies in rating
permanent impairment of the upper extremities, FECA Bulletin No. 17-06 provides in pertinent
part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.”12 (Emphasis in the original).
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”13 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well-rationalized and based upon a proper factual background, must be
given special weight.14
ANALYSIS
The Board finds that the case is not in posture for decision.

10

See A.M.A., Guides 411.

11

FECA Bulletin No. 17-06 (May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket
No. 18-0329 (issued July 26, 2018).
12

Id.

13

5 U.S.C. § 8123(a).

14
L.L., Docket No. 19-0214 (issued May 23, 2019); D.M., Docket No. 18-0476 (issued November 26, 2018); R.H.,
59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637, 641 (2002).

4

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence appellant
submitted prior to the issuance of OWCP’s February 17, 2016 decision because the Board considered that
evidence in its July 7, 2017 decision. Findings made in prior Board decisions are res judicata absent any
further review by OWCP under section 8128 of FECA.15
In the prior appeal, the Board found a conflict in medical opinion between appellant’s
treating physician and OWCP’s physicians regarding the extent and degree of appellant’s
permanent impairment of the upper extremities. On remand OWCP referred appellant to
Dr. Zamani, a Board-certified orthopedic surgeon, for an impartial medical examination.
In his November 28, 2017 report, Dr. Zamani found that appellant was not in any pain. He
opined that her CRPS stemming from her June 7, 2008 employment injury had subsided and that
as such she no ratable impairment. Dr. Zamani indicated that, “according to the Sixth Edition of
the [A.M.A.], Guides, she had five percent permanent impairment in the left upper extremity as a
result of the accident and subsequent treatment.” In an April 27, 2018 addendum report, he opined
that appellant did not have any permanent impairment due to the accepted CRPS as the condition
had subsided and that she was not entitled to an additional permanent impairment for the accepted
left radius distal fracture. However, the Board finds that Dr. Zamani did not adequately explain
this opinion in accordance with the relevant standards. While he provided physical examination
findings, Dr. Zamani failed to provide any discussion of the relevant portion of the sixth edition
of the A.M.A., Guides he used in finding appellant had no more than five percent left upper
extremity permanent impairment. The Board notes that a rating based upon appellant’s loss of
ROM of her upper extremity for a wrist fracture is allowed (by asterisk) pursuant to Table 15-3 of
the A.M.A., Guides.16 Dr. Zamani did not provide a rating consistent with the A.M.A., Guides
based upon ROM or DBI methodology.17
In a situation where OWCP secures an opinion from an impartial medical examiner for the
purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification and/or elaboration, OWCP has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.18
For the above-described reasons, the opinion of Dr. Zamani requires clarification.
Therefore, in order to resolve the continuing conflict in the medical opinion evidence, the case will
be remanded to OWCP for referral to Dr. Zamani for a supplemental report regarding the degree
and extent of appellant’s left upper extremity permanent impairment utilizing both the ROM and
DBI methodologies. If Dr. Zamani is unable to clarify his reports or if his second supplemental
report is also vague, speculative, or lacking in rationale, OWCP should refer appellant to a new
impartial medical examiner for the purpose of obtaining a rationalized medical opinion on the

15

J.T., Docket No. 18-1757 (issued April 19, 2019).

16

A.M.A., Guides 395, Table 15-3.

17

Supra notes 11 to 12.

18

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

5

issue.19 After carrying out this and other such further development as deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 9, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 6, 2019
Washington, DC

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

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

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

19

L.L., supra note 14; Harold Travis, 30 ECAB 1071 (1979).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Richmond, CA, Employer
__________________________________________

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

Docket No. 17-1781
Issued: January 16, 2018

Case Submitted on the Record

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

JURISDICTION
On August 16, 2017 appellant filed a timely appeal from a June 29, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish right carpal tunnel
syndrome causally related to the accepted factors of his federal employment.
On appeal appellant contends that the medical opinion of Dr. Victor Dominguez, an
attending Board-certified family practitioner, establishes that his right-sided carpal tunnel
syndrome was caused by his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 23, 2016 appellant, then a 50-year-old claims representative, filed an
occupational disease claim (Form CA-2) alleging that he sustained carpal tunnel syndrome in his
right hand to his elbow and shoulder caused or aggravated by typing 90 to 99 percent of the work
day since he was first hired to work at the employing establishment. He first became aware of
his condition on August 9, 2016 and realized its relationship to his federal employment on
October 10, 2016. The employing establishment did not indicate whether appellant stopped
work.
OWCP received a diagnostic report dated September 12, 2016 from Dr. Albert E.
Amorteguy, a neurologist, who evaluated the results of a nerve conduction velocity study.
Dr. Amorteguy provided an impression of delayed right distal median latency indicating
evidence of moderate carpal tunnel compression. He also provided an impression of ulnar
conduction velocities within normal limits.
OWCP, by development letter dated September 27, 2016, advised appellant of the
deficiencies of his claim and afforded him 30 days to submit medical evidence in support of his
claim.
OWCP received an unsigned appointment itinerary which noted appellant’s occupational
therapy appointments from October 17 to November 9, 2016.
OWCP also received encounter reports dated August 29 and September 19, 2016 from
Dr. Victor Dominguez, Board-certified in family practice, noted appellant’s right wrist, forearm,
and fingers complaints, examined him, and assessed numbness of the right hand. In an
October 24, 2016 encounter note, he advised that appellant’s right wrist carpal tunnel was likely
exacerbated by repetitive right wrist motion, including typing. Dr. Dominguez recommended
that appellant undergo a work ergonomic evaluation and be given voice recognition technology
to avoid repetitive typing.
Dr. Amorteguy, in a diagnostic report dated September 12, 2016, reviewed the results of
an electromyogram of the bilateral upper extremities and noted that they were normal with
minimal movement artifact.
In an October 6, 2016 report, Jacqueline Razo noted that appellant had right wrist carpal
tunnel syndrome that was managed by Dr. Dominguez.
By decision dated November 28, 2016, OWCP denied appellant’s claim, finding that the
medical evidence of record failed to establish a diagnosed condition causally related to his
established employment factors. It found that Dr. Dominguez’s opinion on causal relationship
was ambiguous and not rationalized.
On an appeal request form and letter dated December 13, 2016 and received by OWCP
on December 21, 2016, appellant requested an oral hearing before an OWCP hearing
representative.2 In his letter, appellant again attributed his right carpal tunnel condition to his
2

A hearing was held on May 19, 2017.

2

long-term employment in the Federal Government, which involved repetitive typing 99 percent
of the time in his job at the employing establishment.
Appellant submitted a December 8, 2016 note from Dr. Dominguez who opined that
appellant’s right wrist carpal tunnel condition was caused and exacerbated by repetitive right
wrist motion including, typing. Dr. Dominguez reiterated his prior recommendations that
appellant undergo a work ergonomic evaluation and be given voice recognition technology to
avoid repetitive typing. In a May 22, 2017 letter, he indicated that he had reviewed appellant’s
December 13, 2016 letter and noted that his workers’ compensation claim had been denied.
Dr. Dominguez advised that appellant’s clerical work contributed to his right carpal tunnel
condition which caused pain over his hand, fingers, and arm. Appellant also submitted unsigned
orders for his physical and occupational therapy from November 23 to December 23, 2016.
By decision dated June 29, 2017, an OWCP hearing representative affirmed the
November 28, 2016 decision. He found that Dr. Dominguez’s May 22, 2017 report was
insufficiently rationalized to establish causal relationship between appellant’s right wrist
condition and his established employment factor. Additionally, the hearing representative noted
that Dr. Dominguez’s field of expertise was in family medicine, rather than in a specialty
focused on treatment of upper extremity conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.6

3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

Id.

3

The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.7
ANALYSIS
It is undisputed that appellant performed activities of repetitive typing as a claims
representative. The Board finds, however, that the medical evidence of record is insufficient to
establish right carpal tunnel syndrome caused or aggravated by the accepted work factor.
Dr. Dominguez, in his December 8, 2016 note and May 22, 2017 report, opined that
appellant’s right wrist carpal tunnel condition was caused, exacerbated, and contributed to by
typing and clerical duties at work which involved repetitive motions of the wrist. Although
Dr. Dominguez provided an opinion on causal relationship, the Board finds that he did not
provide any medical rationale to support his opinion. The Board has found that a medical report
is of limited probative value on the issue of causal relationship if it contains a conclusion
regarding causal relationship which is unsupported by medical rationale.8 Dr. Dominguez did
not adequately explain how the established repetitive work duty caused or aggravated appellant’s
right wrist condition. The Board finds that the lack of medical rationale significantly diminishes
the probative value of his opinion.9 In his October 24, 2016 encounter note, Dr. Dominguez
opined that appellant’s right wrist carpal tunnel condition was “likely” exacerbated by typing
which involved repetitive motion of the wrist. This opinion is speculative in nature and therefore
is of limited probative value to show causal relationship to the established employment factor.
The Board has held that an opinion which is speculative in nature is of limited probative value
regarding the issue of causal relationship.10 Other reports from Dr. Dominguez likewise did not
offer any medical opinion addressing whether appellant’s right hand condition was caused or
aggravated by the established employment factor. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value.11
Similarly, Dr. Amorteguy’s diagnostic test results are of diminished probative value. He
failed to offer an opinion on whether appellant’s diagnosed right wrist condition was caused or
aggravated by the established employment factor.12
7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 5.

8

T.M., Docket No. 08-075 (issued February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

9

Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
10

See Kathy A. Kelley, 55 ECAB 206 (2004).

11
See C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009);
A.D., 58 ECAB 149 (2006).
12

Id.

4

Appellant also submitted a report from Ms. Razo and an unsigned appointment itinerary
and order for physical and occupational therapy. However, such evidence has no probative
medical value on the issue of causal relationship as these reports were not signed by a
physician.13
The Board finds that appellant has failed to submit any rationalized, probative medical
evidence sufficient to establish right carpal tunnel syndrome causally related to the established
employment factor. Appellant, therefore, has not met his burden of proof.
On appeal appellant contends that the medical opinion of Dr. Dominguez establishes that
his right-sided carpal tunnel syndrome was caused by his federal employment. However, for the
reasons noted above, Dr. Dominguez failed to explain with medical rationale how the established
employment factor caused or aggravated appellant’s right wrist condition.14
Thus,
Dr. Dominguez’s opinion is insufficient to establish that appellant’s condition was caused by the
established work factor.
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 has failed to meet his burden of proof to establish right
carpal tunnel syndrome causally related to the accepted factors of his federal employment.

13

See 5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988).

14

Deborah L. Beatty, supra note 9.

5

ORDER
IT IS HEREBY ORDERED THAT the June 29, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 16, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF THE ARMY, PHYSICAL
SECURITY DIVISION, DIRECTORATE OF
EMERGENCY SERVICES, Fort McCoy, WI,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1775
Issued: June 7, 2018

Case Submitted on the Record

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

JURISDICTION
On August 16, 2017 appellant, through counsel, filed a timely appeal from an April 4, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for
bilateral knee surgeries.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts as set forth in the Board’s prior
decision are incorporated herein by reference. The relevant facts are as follows.
On July 11, 2011 appellant, then a 35-year-old criminal investigator, filed a traumatic
injury claim (Form CA-1) alleging that, on July 8, 2011, she parked a government vehicle in a lot
adjacent to the old Walson Hospital and was walking through the parking lot back to the main
building when she tripped over a curb. She listed the nature of her injury as dislocation of the knee
and further undetermined injuries. Appellant did not report that she had stopped work.4
By decision dated November 28, 2012, OWCP accepted appellant’s claim for sprain of the
right knee (resolved as of September 24, 2012) and temporary aggravation of chondromalacia
patellae of the right knee (resolved September 24, 2012). By decision of even date, it denied her
request for right knee surgical excision of plica and fat pad.5
In an October 6, 2011 report, Dr. Jason Wong, appellant’s treating osteopath, diagnosed
impingement of the medial patellofemoral joint plica or medial meniscal tear of the right knee. He
also noted that she might have similar conditions of the left knee, but not to the same extent. On
December 12, 2011 Dr. Wong performed an arthroscopy of the left knee with excision of medial
and lateral patellofemoral plica and excision of fat pad with the lateral retinacular release and an
injection. In a February 26, 2012 report, he diagnosed symptomatic patellofemoral plica and
impinging fat pad literally. Dr. Wong opined that appellant’s bilateral knee conditions were
caused and precipitated by her employment injury. He indicated that the medical reason for this
opinion was that she had direct trauma to the anterior aspect of both knees, which occurred when
she fell on both of her knees while at work. Dr. Wong noted that appellant required further
physical therapy and strengthening of her left knee and required surgical intervention due to the
continued pain in her right knee.
On September 4, 2012 OWCP referred appellant to Dr. Kenneth P. Heist, a Board-certified
osteopath specializing in orthopedic surgery, for a second opinion evaluation. In a September 19,
3

Docket No. 15-0321 (issued October 6, 2015).

OWCP initially denied appellant’s claim on October 3, 2011 as she had not established fact of injury. On
October 12, 2011 appellant requested a hearing before an OWCP hearing representative. By decision dated May 10,
2012, OWCP’s hearing representative found that the evidence of record established that the incident occurred as
alleged. He remanded the case to OWCP for further development of the medical evidence to determine whether
appellant sustained bilateral knee conditions causally related to the accepted employment incident.
4

5

Appellant continued to submit additional medical evidence and requested further review of the denial of her
request for surgical authorization. OWCP denied modification of its November 28, 2012 decision by decisions dated
May 31 and October 31, 2013, and February 19 and August 18, 2014.

2

2012 report, Dr. Heist reviewed appellant’s employment history and medical records, and
conducted a physical examination. He opined that her only positive findings were related to her
preexisting condition of right knee chondromalacia of the patella and were not related to her July 8,
2011 fall. Dr. Heist opined that appellant temporarily aggravated her preexisting condition, which
had since resolved. He concluded that appellant subsequently had a lateral release performed in
her left knee, but that this procedure was done for the preexisting condition of chondromalacia
patella and was not related to her work injury.
Appellant continued to submit reports by Dr. Wong. In an April 2, 2013 report, Dr. Wong
noted that he disagreed with Dr. Heist’s finding that appellant had preexisting chondromalacia,
and that if she did, the injury at work aggravated the preexisting chondromalacia. He noted that
appellant sustained a dislocated right patella during her injury and that she also injured her left
knee at the same time. In an August 14, 2013 report, Dr. Wong noted his continued disagreement
with Dr. Heist. He discussed a new magnetic resonance imaging scan and his treatment of
appellant. Dr. Wong opined within a reasonable degree of certainty that appellant’s employment
injury caused the damage to her right knee including chondromalacia. He recommended that she
undergo right knee arthroscopy to excise the intrapatellar fat pad of the plica.
On November 25, 2014 appellant appealed to the Board. By decision dated October 6,
2015, the Board set aside the November 28, 2012 denial of authorization for surgery and remanded
the case for further development of the medical evidence. The Board found that there was an
outstanding conflict in the medical evidence between appellant’s physician, Dr. Wong, and the
second opinion physician, Dr. Heist, regarding appellant’s need for bilateral knee surgery.6
Appellant continued to submit treatment notes relating Dr. Wong’s treatment for
symptomatic medial patellofemoral plica with impinging fat pad of the right knee on
September 10, 2015. In a January 28, 2016 note, Dr. Wong indicated that on July 18, 2016
appellant had undergone an arthroscopy of the right knee with excision of plica, excision of fat
pad, and lateral retinacular release.
On August 19, 2016 OWCP referred appellant to Dr. Stanley Askin, a Board-certified
orthopedic surgeon, to resolve the conflict in medical opinion between Dr. Wong and Dr. Heist as
to whether appellant’s bilateral knee surgeries should be authorized. In a September 9, 2016
report, Dr. Askin reviewed appellant’s employment history, medical history, and history of injury.
In response to OWCP’s questions regarding appellant’s right knee, Dr. Askin noted that there was
no clinical evidence of a right knee partial ligament tear at the present time. Regarding temporary
aggravations of chondromalaia patellae, he determined that he had no reason to doubt that
appellant had some discomfort associated with the reported occurrence with such discomfort
labeled as temporary aggravation, but that five years later, there was no clinical evidence of a
continuing temporary aggravation.
Dr. Askin opined that appellant’s bilateral knee surgeries had no causal nexus to the
reported incident. He explained that the right knee surgery performed by Dr. Wong on January 28,
2016 was not medically necessary. Regarding the right knee surgery, Dr. Askin explained that
surgical treatment could be necessary if the patient would suffer some compromise in the absence
6

Supra note 3.

3

of treatment. However significant pause was necessary when considering arthroscopic knee
treatment because it was not reconstructive, but rather only ablative treatment. Dr. Askin further
explained that removing tissue was not therapeutic unless the tissue removed was the cause of
symptoms. He opined that appellant’s right knee procedure left her no better off than if her
condition had been left untreated.
Dr. Askin also related that the December 12, 2011 left knee surgery was medically
unnecessary, noting that there was no condition identified for which surgery would provide relief.
He noted that from a purely musculoskeletal basis, the manner in which appellant sought and
received treatment for her knees was unexpected given the paucity of identified pathology within
both of her knees. Dr. Askin explained that upon appellant’s initial presentation after the injury,
there was no identified significant traumatic pathology identified. While he did not rule out all
imperfection, there were no findings of significance and no condition that required surgical
intervention. Dr. Askin concluded that appellant had surgical treatments that did not address any
condition or pathology caused by the July 8, 2011 incident.
By decision dated November 22, 2016, OWCP denied authorization for bilateral knee
surgeries. It determined that the weight of the medical evidence was represented by the report of
the impartial medical examiner, Dr. Askin.
By letter received by OWCP on November 29, 2016, appellant, through counsel, requested
a hearing. During the hearing held on March 2, 2017, counsel argued that the questions presented
to Dr. Askin were unclear or in dispute. He contended that Dr. Askin’s report was not sufficiently
well reasoned to carry the weight of the evidence. Counsel further contended that Dr. Askin spoke
in generalities and did not explain the reasons for his conclusions.
By decision dated April 4, 2017, the hearing representative affirmed OWCP’s
November 22, 2016 decision. He found that the weight of the medical evidence rested with the
opinion of the impartial medical examiner, Dr. Askin.
LEGAL PRECEDENT
Section 8103(a) of FECA 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 that the Secretary of Labor considers likely to cure, give
relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.7 OWCP must therefore exercise discretion in determining whether the
particular service, appliance or supply is likely to affect the purposes specified in FECA.8 The
only limitation on OWCP’s authority is that of reasonableness.9

7

5 U.S.C. § 8103(a).

8

F.S., Docket No. 14-0972 (issued October 15, 2014).

9

Daniel J. Perea, 42 ECAB 214 (1999).

4

Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination.10 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.11 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.12
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of bilateral knee surgeries.
OWCP accepted that, as a result of a fall while working for the employing establishment
on July 11, 2011, appellant sustained a sprain of the right knee (resolved as of September 24, 2012)
and a temporary aggravation of chondromalacia patellae of the right knee (resolved as of
September 24, 2012).
Appellant was treated by Dr. Wong. On December 12, 2011 Dr. Wong performed an
arthroscopy of appellant’s left knee with excision of medial and lateral patellofemoral plica and
excision of fat pad with the lateral retinacular release and an injection. On January 18, 2016 he
performed an arthroscopy of the right knee with excision of plica, excision of fat pad, and lateral
retinacular release. Dr. Wong diagnosed symptomatic patellofemoral plica and impinging fat pad
of bilateral knees. He opined that these conditions were caused by her employment injury.
OWCP referred appellant to Dr. Heist for a second opinion. Dr. Heist diagnosed status
postoperative arthroscopic surgery of the left knee, excision of fat pad, plica, and lateral release
(not work related) and sprain right knee and aggravation of patella chondromalacia (preexisting).
He concluded that appellant’s lateral release on her left knee was done to treat her preexisting
condition of chondromalacia patella and was not related to her work injury. Dr. Heist explained
that she had temporary aggravation of her preexisting right knee chondromalacia of the patella,
but the condition had since resolved.
The Board determined that a conflict existed in the medical opinion evidence which
required referral to an impartial medical examiner.

10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

12

V.B., Docket No. 16-1684 (issued December 8, 2017).

5

In order to resolve the conflict between Dr. Wong and Dr. Heist, OWCP referred appellant
to Dr. Askin for an impartial medical examination. In a September 9, 2016 report, Dr. Askin
accurately reviewed appellant’s history of injury and her medical history. He noted that her knee
complaints had not been satisfactorily addressed by Dr. Wong, and despite her surgeries, she had
continuing complaints. With regard to these surgeries, Dr. Askin noted that significant pause was
necessary when considering arthroscopic knee surgery because such treatment was not
reconstructive, but ablative. He opined that unless there was some assurance that the tissue
removed was the cause of symptoms, such removal by excision or shaving was not therapeutic.
Dr. Askin indicated that the surgery performed by Dr. Wong on January 28, 2016 did not produce
better results than if her condition had been left untreated. Therefore, he concluded that the surgery
was medically unnecessary. With regard to the December 12, 2011 left knee surgery, Dr. Askin
opined that appellant’s condition did not require surgery. As appellant never had any such
imperfection in either knee, he concluded that this surgery was also medically unnecessary.
Based on the evidence of record, the Board finds that OWCP did not abuse its discretion
by denying appellant’s request for authorization of her bilateral knee surgeries. OWCP
appropriately determined that the weight of the medical evidence was represented by the wellrationalized report of the impartial medical examiner, Dr. Askin.13 The only limitation on
OWCP’s authority in approving or disapproving service under FECA is one of reasonableness.14
Dr. Askin clearly opined that the requested surgeries were not medically necessary for treatment
of appellant’s accepted injury. OWCP, therefore, had sufficient evidence upon which it based its
decision to deny the surgeries and did not abuse its discretion.
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 OWCP did not abuse its discretion by denying appellant’s requests
for bilateral knee surgeries.

13

A.S., Docket No. 17-1088 (issued December 4, 2017).

14

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated April 4, 2017 is affirmed.
Issued: June 7, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WARNER ROBINS AIR FORCE BASE, GA,
Employer
__________________________________________

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

Docket No. 12-535
Issued: June 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 12, 2012 appellant filed a timely appeal from a July 19, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a bilateral carpal tunnel condition in the
performance of duty.
FACTUAL HISTORY
On June 6, 2011 appellant, a 59-year-old sheet metal mechanic, filed a claim for benefits,
alleging that he developed a bilateral carpal tunnel condition causally related to employment
factors.
1

5 U.S.C. § 8101 et seq.

On June 10, 2011 OWCP advised appellant that it required factual and medical evidence
to determine whether he was eligible for compensation benefits. It asked him to submit a
comprehensive report from a treating physician describing his symptoms and the medical reasons
for his condition, with an opinion as to whether his claimed condition was causally related to his
federal employment. OWCP requested that appellant submit this evidence within 30 days.
In a May 21, 2002 report, received by OWCP on June 28, 2011, Dr. Martin A. Baggett,
Board-certified in orthopedic surgery, diagnosed mild bilateral carpal tunnel syndrome based on
a positive Tinel’s test and positive Phalen’s test. He stated that the condition could be
aggravated by appellant’s working with vibratory tools. Dr. Baggett recommended that he be
placed on light duty with no use of vibratory tools and no repetitive motion work. He advised
that appellant might ultimately require carpal tunnel release surgery to ameliorate his condition.
By decision dated July 19, 2011, OWCP denied the claim. It found that appellant failed
to submit sufficient medical evidence to establish that his claimed bilateral carpal tunnel
condition was sustained in the performance of duty.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that 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 timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

2

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
A claimant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed bilateral carpal tunnel condition
and his federal employment. This burden includes providing medical evidence from a physician
who concludes that the disabling condition is causally related to employment factors and
supports that conclusion with sound medical reasoning.6
ANALYSIS
The Board finds that appellant failed to submit sufficient medical evidence to establish
that his claimed bilateral carpal tunnel condition was related to factors of his employment.
Appellant submitted a May 21, 2002 report from Dr. Baggett, who diagnosed mild
bilateral carpal tunnel syndrome and stated that appellant might eventually need carpal tunnel
release surgery. Dr. Baggett placed appellant on light duty and restricted him from vibratory
tools and repetitive motion work.
Dr. Baggett’s report did not provide a rationalized medical opinion addressing how the
claimed condition was causally related to appellant’s employment duties as a sheet metal
mechanic. The weight of medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.7 Dr. Baggett did not sufficiently describe appellant’s job duties
or explain the medical process through which such duties would have been competent to cause
the claimed condition. He did not address appellant’s preexisting conditions in any detail or how
appellant’s work duties were competent to cause this condition.8 The report is also of diminished
probative value because it was issued nine years prior to the date appellant filed his claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that his conditions were caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Consequently, appellant has not met his burden of proof to
establish that his claimed bilateral carpal tunnel condition was causally related to his
employment.
5

Id.

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

7

See Anna C. Leanza, 48 ECAB 115 (1996).

8

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

9

See Anna C. Leanza, supra note 7.

3

On appeal appellant submitted a copy of an OWCP decision dated June 21, 2002, under
File No. xxxxxx770, which notified him that his occupational disease claim had been accepted
for bilateral carpal tunnel syndrome, as well as a copy of Dr. Baggett’s June 18, 2002 report.
This appeal was filed for review of the denial of appellant’s June 6, 2011 occupational disease
claim for OWCP File No. xxxxxx483. The Board has no jurisdiction to review appellant’s
medical evidence in conjunction with appellant’s previous 2002 accepted claim.
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 has failed to meet his burden of proof to establish that his
claimed bilateral carpal tunnel condition in 2011 was sustained in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 19, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 11, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

4