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

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

Docket No. 18-1400
Issued: February 15, 2019

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 July 10, 2018 appellant filed a timely appeal from a February 14, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated November 1, 2017, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the February 14, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 18, 2012 appellant, then a 35-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that, on January 17, 2012, she injured her right knee and lower back when
she slipped and fell while in the performance of duty.3 In May 2012, OWCP accepted her claim
for lumbar sprain and right knee sprain.
On January 23, 2013 appellant underwent an OWCP-approved right knee arthroscopy with
partial medial meniscectomy and shaving of the condylar cartilage.
In a report dated June 12, 2013, Dr. Charlie Talbert, a Board-certified orthopedic surgeon,
noted that appellant had degenerative changes to the left knee that predated her right knee injury.
He indicated that it was possible that by favoring her right knee, she could have placed more load
on the left knee.
On July 30, 2015 appellant underwent a subsequent OWCP-approved right knee
arthroscopy with anterior cruciate ligament (ACL) reconstruction, partial medial and lateral
meniscectomies, and abrasion chondroplasty.
By letter dated August 22, 2017, appellant requested that OWCP review and accept her left
leg/knee condition as a consequential injury. She explained that she had undergone multiple right
knee surgeries and during the postoperative periods she had to shift her weight to the left leg
because she was unable to bear weight on the right leg. Appellant also noted that she was
scheduled for additional right knee surgery in November 2017.
By development letter dated September 27, 2017, OWCP informed appellant that the
evidence of record was insufficient to support that her left knee condition was causally related to
her accepted right knee condition because it had not received supporting medical evidence. It
afforded her 30 days to submit medical evidence, including a reasoned medical opinion as to how
her left knee condition was a direct result of the January 17, 2012 incident or due to conditions
accepted by OWCP as work related.
By letter dated October 10, 2017, Dr. Calvin Spellmon Jr., Board-certified in pediatric
sports medicine, noted that appellant was under his care for severe left knee pain and instability.
He explained that, as a result of appellant’s right knee injury in 2012, she was forced to
overcompensate on her left leg, aggravating her symptoms. Dr. Spellmon noted that she had

3

Appellant indicated that she was working in the critical care unit when her right knee buckled after sliding on
some material on the floor. Her knee reportedly hit the floor, and while attempting to break her fall appellant jarred
her back.

2

severe arthritis in the left knee and a recently-discovered torn medial meniscus.4 On examination
on October 3, 2017, she was found to have severe knee effusion, significant pain, inability to
ambulate, as well as severely limited range of motion. Dr. Spellmon opined that, when appellant
was forced to rely heavily on her left leg secondary to her fall in 2012, the progression of arthritis
in her left knee was aggravated and expedited. In addition, he noted that her meniscal tear was
directly related to the progression of arthritis due to the overcompensation.
By decision dated November 1, 2017, OWCP denied expansion of appellant’s claim to
include an additional diagnosis of a left knee condition. It found that Dr. Spellmon’s October 10,
2017 letter was insufficiently rationalized, as it did not contain a thorough medical and factual
history of appellant’s condition, physical examination, objective clinical findings, an opinion
relating the cause and effect of the diagnosed condition to factors of employment, or an explanation
of how work activities caused the diagnosed condition.
On February 2, 2018 appellant requested reconsideration of OWCP’s November 1, 2017
decision. She reiterated that her various right knee surgeries, including her latest procedure
performed on December 21, 2017, forced her to shift her weight to her left leg, which resulted in
severe left knee pain.
OWCP received additional evidence since its November 1, 2017 decision, including
medical evidence appellant submitted in conjunction with her February 2, 2018 request for
reconsideration.
On September 19, 2016 Dr. Anthony Tropeano, a Board-certified orthopedic surgeon,
examined appellant for complaints of left knee pain. Appellant informed Dr. Tropeano that she
began having left knee pain after her right knee surgery. She described the pain as intermittent
and stated that the left knee pain was a result of her original injury, with no injury to the left knee
otherwise. On examination of the left knee, Dr. Tropeano noted an effusion value of one,
tenderness on palpation, a positive patella femoral grinding test, no instability, no anterior or
posterior drawer signs, and negative Lachman and McMurray tests. He diagnosed localized
primary osteoarthritis of the left knee, patellar chondromalacia, and hydrarthrosis of the
knee/patella/tibia/fibula.
In a report dated October 28, 2016, Dr. Tropeano examined appellant for complaints of
right and left knee pain, with right knee buckling. On examination of the left knee, he noted
tenderness on palpation, an effusion value of one, no instability, no anterior or posterior drawer
signs, and negative Lachman and McMurray tests. Dr. Tropeano diagnosed localized primary
osteoarthritis of the left knee, assessing her with left knee joint pain. He administered an injection
to the suprapatellar pouch of the left knee.
In a report dated February 10, 2017, Dr. Tropeano discussed the results of a January 16,
2017 right knee MRI scan, which demonstrated a previous ACL reconstruction, generalized

4
An October 8, 2017 magnetic resonance imaging (MRI) scan of appellant’s left knee demonstrated
chondromalacia patellae and a torn medial meniscus.

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degenerative changes, evidence of previous partial medial meniscectomy, a focal tear in the midbody of the lateral meniscus, and evidence of previous patellar tendon graft harvest.
A December 21, 2017 operative report indicated that Dr. Tropeano performed a right knee
arthroscopy with partial medial and lateral meniscectomies and abrasion chondroplasty.5
Appellant also submitted physical therapy treatment records covering the period January 5
through February 5, 2018. She also resubmitted her October 8, 2017 left knee MRI scan results
and Dr. Spellmon’s October 10, 2017 report.
By decision dated February 14, 2018, OWCP denied appellant’s request for
reconsideration. It found that the evidence submitted on reconsideration was irrelevant as to the
underlying issue in this case.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.6 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.7 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.8
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.9 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

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OWCP authorized appellant’s December 21, 2017 right knee arthroscopy.

6
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.607.

8

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
9

20 C.F.R. § 10.606(b)(3).

10

Id. at § 10.608(a), (b).

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In her February 2, 2018 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. She also did not advance a relevant
legal argument not previously considered by OWCP. Thus, appellant is not entitled to a review of
the merits based on the first and second requirements under section 10.606(b)(3).11
Appellant submitted new evidence, however, it was not relevant and pertinent to support
her request for reconsideration. The underlying issue in this case is whether appellant established
a left knee consequential injury. The evidence received regarding appellant’s December 21, 2017
right knee surgery and postoperative care does not specifically address her claimed left knee
consequential injury, and therefore, this evidence is not relevant to the issue on reconsideration.
Additionally, Dr. Tropeano’s September 19 and October 28, 2016 reports, while referencing
appellant’s left knee complaints, do not include an opinion on the issue of whether the diagnosed
left knee conditions were either caused or aggravated by appellant’s work-related right knee injury
and subsequent surgeries. Evidence that fails to address the underlying issue on reconsideration
is insufficient to warrant further merit review.12 Lastly, the October 8, 2017 left knee MRI scan
results and Dr. Spellmon’s October 10, 2017 report were previously of record. Providing evidence
that either repeats or duplicates information already in the record does not constitute a basis for
reopening a claim.13 Because appellant did not provide relevant and pertinent new evidence, she
is not entitled to a review of the merits based on the third requirement under section 10.606(b)(3).14
Accordingly, OWCP properly denied appellant’s request for reconsideration of the merits
of her claim pursuant to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

11

Id. at § 10.606(b)(3)(i) and (ii).

12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

14

20 C.F.R. § 10.606(b)(3)(iii).

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ORDER
IT IS HEREBY ORDERED THAT the February 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 15, 2019
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, OFFICE OF
MANAGEMENT & BUDGET, New York, NY,
Employer
__________________________________________

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

Docket No. 10-2391
Issued: September 22, 2011

Case Submitted on the Record

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

JURISDICTION
On September 27, 2010 appellant, through her attorney, filed a timely appeal from the
May 12, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP) which
terminated her compensation benefits. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 12, 2010 OWCP decision and on appeal, appellant
submitted new evidence. However, the Board is precluded from reviewing evidence which was not before OWCP at
the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation effective November 21, 2009 on the grounds that she no longer had any residuals
or disability causally related to her accepted employment-related injuries; and (2) whether
appellant met her burden of proof to establish continuing employment-related disability.
On appeal, appellant’s attorney contends that OWCP: (1) was required to provide a
third-party independent medical examination under 5 U.S.C. § 8123(a) as the report of
Dr. Edwin Mohler, an orthopedic surgeon, was the only evidence contradicting appellant’s
claim; (2) failed to meet its burden of proof as Dr. Mohler’s report had little probative value and
not well rationalized or based on proper factual or medical background; and (3) failed to consider
all properly submitted evidence that was sufficient to overcome termination and created a new
conflict regarding continuing disability.
FACTUAL HISTORY
On August 25, 2008 appellant, then a 49-year-old claims representative, filed an
occupational disease claim (Form CA-2) alleging bilateral carpal tunnel syndrome, which she
became aware of and attributed to her federal employment on July 28, 2008. On November 5,
2008 OWCP accepted the claim for bilateral carpal tunnel syndrome and lesion of left ulnar
nerve. On November 24, 2008 appellant underwent a left carpal tunnel release and left ulnar
nerve compression at elbow. On March 31, 2009 she underwent right carpal tunnel release and
release of right ulnar nerve at elbow. Appellant participated in a nurse rehabilitation program
and was placed on the periodic rolls. In a statement of accepted facts dated August 6, 2009,
OWCP indicated that she sustained a prior employment injury on April 25, 2008 that was
accepted for cervical and lumbosacral sprain.
In a June 23, 2009 medical report, Dr. Walter Short, a Board-certified orthopedic
surgeon, who performed appellant’s hand surgeries, opined that she was temporarily totally
disabled and that her complaints were consistent with the history of her injury.
To determine whether appellant continued to have residuals of her July 28, 2008 carpal
tunnel work injury and whether she was capable of working, OWCP referred her to Dr. Mohler
for a second opinion evaluation. In a September 15, 2009 report, Dr. Mohler reviewed her
medical records and a statement of accepted facts. His physical examination revealed full range
of motion of appellant’s elbows, wrists and digits. There was no evidence of tendinitis and equal
Tinel’s signs at cubital tunnel and carpal tunnel. The median nerve compression test, Phalen’s
test, reverse Phalen’s test and Allen’s test were all negative. Dr. Mohler reported reduced
sensation over the ulnar distribution compared to the median, left reduced compared to the right.
He also reported reduced response to sensory stimulus on the ulnar borders of the forearm, right
more than left. Dr. Mohler diagnosed postoperative surgical scars and opined that, while the
diagnosed conditions were caused by the July 28, 2008 employment injury, the conditions had
resolved and appellant did not require additional treatment. He opined that she was not capable
of performing her date-of-injury position as a claims representative due to multiple other
conditions and that her disability was not related to her employment-related condition of
July 28, 2008.

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In a September 15, 2009 medical report, Dr. Short indicated that a physical examination
of appellant’s right elbow revealed a range of motion between 20 and 130 degrees, positive
Tinel’s sign over the medial aspect of the elbow, slightly diminished sensation in the median and
ulnar nerve distributions and a positive Phalen’s sign. Due to progressive symptoms, he ordered
electromyogram (EMG) and nerve conductions studies.
On October 2, 2009 OWCP issued a notice of proposed termination to terminate
appellant’s compensation benefits on the grounds that the weight of medical evidence from
Dr. Mohler established that she was no longer disabled due to the accepted condition. Appellant
was given 30 days to submit additional evidence or argument.
In response to the notice of proposed termination of benefits, appellant submitted a
May 21, 2009 medical report by Dr. Stephen Robinson, a Board-certified orthopedic surgeon,
who diagnosed herniated cervical disc and physical therapy notes.3
By decision dated November 5, 2009, OWCP finalized termination of appellant’s
compensation benefits effective November 21, 2009 finding that her accepted conditions had
resolved.
On March 23, 2010 appellant requested reconsideration and submitted additional
evidence. In a January 6, 2010 medical report, Dr. Short indicated that she had a mildly positive
Tinel’s sign at the ulnar nerve. He reported that appellant’s ulnar nerve compression at the
elbow bilaterally and left carpal tunnel syndrome was resolved. Dr. Short indicated that she had
mild right carpal tunnel syndrome and opined that she would not be able to do repetitive
activities with her hands.
By decision dated May 12, 2010, OWCP denied modification of the November 5, 2009
decision to terminate appellant’s compensation.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.4 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.5 Its
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.6 The right to medical benefits for an accepted
3

In a letter dated November 12, 2008, received by OWCP on November 13, 2009, appellant objected to the
October 2, 2009 proposed termination and submitted additional evidence. The Board notes that the November 12,
2008 correspondence contains an apparent typographical error and should bear the date of November 12, 2009 as it
references the notice of proposed termination.
4

See Jorge E. Sotomayor, 52 ECAB 105, 106 (2000); Curtis Hall, 45 ECAB 316 (1994).

5

See Mary A. Lowe, 52 ECAB 223, 224 (2001).

6

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

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condition is not limited to the period of entitlement to compensation for disability.7 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition, which requires further medical treatment.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden to justify termination of benefits.
Appellant’s counsel argues that there is an unresolved conflict in medical opinion
between Dr. Mohler and Dr. Short.9 For a conflict to arise the opposing physicians viewpoints
must be of virtually equal weight and rationale.10 It is OWCP that bears the burden to justify
modification or termination of benefits.11
OWCP based its decision to terminate appellant’s benefits on a September 15, 2009
report by Dr. Mohler, the second-opinion physician, who reported full range of motion and no
evidence of tendinitis. Dr. Mohler found equal Tinel’s signs at the cubital and carpal tunnel. He
reported a negative nerve compression test, negative Phalen’s test and negative reverse Phalen’s
test. Dr. Mohler indicated reduced sensation over the ulnar distribution compared to the median,
left reduced compared to the right. He also reported reduced response to sensory stimulus on the
ulnar borders of appellant’s forearm, right more than left. Dr. Mohler concluded that appellant’s
employment-related condition had resolved. Noting the lack of objective findings that, the
condition was still present, he found no disabling residuals and no need for further medical care
or additional diagnostic testing. Dr. Mohler noted that, although appellant was unable to return
to her date-of-injury position, this was due to her nonemployment-related conditions.
On September 15, 2009 Dr. Short, appellant’s attending physician, diagnosed carpal
tunnel syndrome and ulnar nerve compression. He related increasing numbness and paresthesias
in the right arm/hand, found a positive Tinel’s sign over the medial aspect of the right elbow,
slightly diminished sensation in the median and ulnar nerve distributions and a positive Phalen’s
sign. Dr. Short ordered EMG and nerve conductions studies based on his medical opinion that
appellant continued to show progressive symptoms.
The medical reports of Drs. Mohler and Short were both dated September 15, 2009 and
they conducted similar tests to evaluate appellant’s condition. However, the test results obtained
by Dr. Mohler and Dr. Short were significantly different. While Dr. Mohler reported equal
Tinel’s signs and a negative Phalen’s test, Dr. Short reported positive Tinel’s and positive
Phalen’s signs. He concluded that appellant’s employment-related condition had resolved,
7

See T.P., 58 ECAB 524 (2007).

8

See I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

9

FECA provides that, if there is disagreement between the physician making the examination for OWCP and the
employee’s physician, OWCP shall appoint a third physician who shall make an examination. See 5 U.S.C.
§ 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).
10

See Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

11

See Curtis Hall, 45 ECAB 316 (1994).

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whereas Dr. Short diagnosed carpal tunnel syndrome and ulnar nerve compression and ordered
EMG and nerve conductions studies due to progressive symptoms. Dr. Mohler’s report did not
explain his own findings of “equal” Tinel’s signs as to whether they were positive or negative.
Furthermore, he failed to reconcile his opinion with the findings and opinion of Dr. Short.
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss and medical benefits effective November 21, 2009. As of that date a conflict in
medical opinion existed between Dr. Short and Dr. Mohler, both orthopedic surgeons. Each
physician had the opportunity to examine appellant and review the diagnostic studies of record.
With respect to the existence and extent of any ongoing employment-related residuals, the Board
finds that the relevant and probative medical evidence is in equipoise. It is well established that
where there exist opposing medical reports of virtually equal weight and rationale, the case
should be referred to an impartial medical specialist for the purpose of resolving the conflict.12
The Board notes that the reports and treatment records of Dr. Short were of record prior to the
November 5, 2009 termination decision of OWCP. As OWCP failed to resolve the conflicting
medical opinion evidence, the Board finds that it did not meet its burden of proof to terminate
appellant’s benefits.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective November 21, 2009 due to an unresolved conflict in medical
opinion.13

12

See Darlene R. Kennedy, 57 ECAB 414 (2006); H.S., Docket No. 10-1220 (issued May 24, 2011).

13

In view of the Board’s disposition of OWCP’s termination of compensation, the issue of whether appellant has
established that she had any further disability after November 21, 2009 due to her accepted employment injury is
moot.

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ORDER
IT IS HEREBY ORDERED THAT the May 12, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 22, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Blackwood, NJ, Employer
__________________________________________

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

Docket No. 06-2159
Issued: February 2, 2007

Case Submitted on the Record

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

JURISDICTION
On September 27, 2006 appellant filed a timely appeal of merit decisions of the Office of
Workers’ Compensation Programs dated October 31, 2005 and April 3, 2006 denying
authorization for surgery. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied authorization for total knee replacement
surgery.
FACTUAL HISTORY
On March 13, 2003 appellant filed a traumatic injury claim alleging that he sprained his
right knee while delivering mail on March 12, 2003. On March 17, 2003 Dr. Enrico A. Marcelli,
a Board-certified orthopedic surgery, diagnosed preexisting osteoarthritis of the right knee and
acute synovitis, secondary to the March 12, 2003 injury. Noting that x-rays revealed a
significant amount of tricompartmental arthrosis, Dr. Marcelli released appellant to full duty as

of March 21, 2003. On April 7, 2003 the Office accepted appellant’s claim for right knee sprain.
In its acceptance letter, the Office stated that it did not accept as compensable appellant’s
preexisting condition of osteoarthritis.
On October 27, 2003 appellant requested authorization for a total right knee replacement.
In support of his request, he submitted a May 3, 2003 report from Dr. Marcelli reflecting that
appellant wanted a total right knee arthroplasty. His examination of the right knee revealed a
well-healed scar from a previous meniscectomy; crepitation of motion from five to ninety
degrees; no gross instability; and a normal neurovascular status. On November 19, 2003
appellant’s representative contended that appellant’s need for surgery was caused by the
March 12, 2003 work injury, which had exacerbated his preexisting osteoarthritis.
The Office forwarded the case file and a statement of accepted facts to the district
medical adviser for review and an opinion as to whether appellant’s need for surgery was
causally related to the accepted condition. The statement of accepted facts indicated that he had
undergone a right knee meniscectomy 30 years previously. The Office medical adviser opined
that the total knee replacement surgery requested was not related to, or appropriate for, the
accepted condition. He stated that appellant’s physician had not explained how the need for a
total knee replacement had been caused by the March 12, 2003 injury. Noting that the claim had
been accepted only for a right knee sprain, the district medical adviser surmised that the surgery
was necessitated by appellant’s advanced, preexisting osteoarthritis. By letter dated February 3,
2004, the Office informed appellant that it was unable to authorize his request for total knee
replacement surgery, without medical rationale explaining how the need for the surgery was
brought on by the March 12, 2003 incident.
In a March 22, 2004 report, Dr. Marcelli stated that appellant had preexisting
osteoarthritis of the right knee. He opined that the “slip and fall” on March 12, 2003 exacerbated
his symptomatology. Dr. Marcelli indicated that appellant “more than likely eventually would
have needed a total knee arthroplasty.” He noted that, although the fall may have accelerated the
need for the surgical intervention, it certainly did not cause his arthrosis.
The Office referred the case to Dr. Zohar Stark, a Board-certified orthopedic surgeon, for
a second opinion examination, and an opinion as to whether the proposed surgery was medically
necessary as a result of the March 12, 2003 injury. In a report dated July 12, 2005, Dr. Stark
opined that the knee replacement surgery was not related to the accepted condition of right knee
sprain. He stated that appellant’s history and physical examination supported a diagnosis of
advanced degenerative joint disease of the right knee, which was not related to the March 12,
2003 injury. Noting appellant’s preexisting joint disease and multiple injuries to the right knee
prior to the March 12, 2003 injury, Dr. Stark opined that the accepted sprain did not produce or
aggravate the joint disease or result in any permanency.
On the issue of whether the proposed surgery was medically necessary, the Office found
that a conflict in the medical evidence existed and the case was referred to Dr. George Glenn, a
Board-certified orthopedic surgeon, to resolve the conflict. In a report dated September 15,
2005, Dr. Glenn provided a history and results on examination. He noted significant varus
deformity of the right knee. The right knee demonstrated significant lateral play, with limitation
in motion with crepitus. There was general tenderness about the right knee and any attempt to

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demonstrate strength produced significant pain. X-rays showed long-standing, chronic changes,
including: advanced tricompartmental degenerative osteoarthritis, with marked narrowing of the
medial compartment and, to a lesser degree, the lateral compartment with degenerative spur
formation; narrowing in the patellofemoral compartment; and spurs involving the superior pole
of the patella. Dr. Glenn stated that appellant’s diagnosed acute synovitis (inflammation of the
lining of the joint), which was secondary to his fall, had resolved. He opined that the March 12,
2003 injury did not cause a permanent exacerbation or worsening of appellant’s preexisting
degenerative arthritis. Dr. Glenn further opined that appellant’s need for total knee replacement
surgery was not, in any way, related to the March 12, 2003 incident.
By decision dated October 31, 2005, the Office denied authorization for the proposed
total knee replacement surgery. The Office found that the weight of the evidence, which was
represented by Dr. Glenn’s report, established that the requested procedure was for a condition
that was not causally related to the employment injury.
Appellant requested a hearing before an Office hearing representative, which was held on
February 7, 2006. He testified that he underwent right knee surgery 30 years ago as a result of a
sports injury, and had been treated for knee complaints ever since. Appellant stated that his knee
had been further weakened by repeated injuries during the course of his employment over the
years, which included incidents of falling and twisting of his knee. He stated that he had
discussed the possibility of right knee replacement surgery with Dr. Marcelli prior to the
March 12, 2003 injury, but that, following the accepted injury, his knee was “shot.” Appellant’s
representative contended that the March 12, 2003 injury was the “straw that broke the camel’s
back,” and accelerated his condition to the point that he required total knee replacement surgery.
In a decision dated April 3, 2006, the hearing representative affirmed the October 31,
2005 decision. The hearing representative found that the weight of the medical evidence on the
issue was represented by Dr. Glenn’s report and that the Office properly denied appellant’s
request for authorization of a total right knee replacement.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability, or aid in
lessening the amount of the monthly compensation.1 The Office has the general objective of
ensuring that an employee recovers from his injury to the fullest extent possible in the shortest
amount of time. The Office therefore has broad administrative discretion in choosing means to
achieve this goal. The only limitation on the Office’s authority is that of reasonableness. Abuse
of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from

1

5 U.S.C. § 8103(a).

3

established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.2
In order for surgery to be authorized, appellant must submit evidence to show that the
requested procedure is for a condition causally related to the employment injury and that it is
medically warranted. Both of these criteria must be met in order for the Office to authorize
payment.3
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.4
ANALYSIS
Appellant’s treating physician, Dr. Marcelli, proposed a total right knee replacement.
The second opinion physician, Dr. Stark, opined that the knee replacement surgery was not
related to the accepted condition of right knee sprain. The Office properly found a conflict in the
evidence with respect to the need for right knee replacement surgery.5 The referee examiner,
Dr. Glenn, provided a reasoned medical opinion that the March 12, 2003 injury did not cause a
permanent exacerbation or worsening of appellant’s preexisting degenerative arthritis. He
further opined that appellant’s need for total knee replacement surgery was not, in any way,
related to the March 12, 2003 incident.
As noted above, a reasoned opinion from a referee examiner is entitled to special weight.
Dr. Glenn provided a reasoned opinion based on a complete background on the issue presented.
His opinion is entitled to special weight and represents the weight of the evidence in this case.
Appellant has not presented any medical evidence sufficient to overcome the weight of the
referee examiner’s opinion. The Board finds that the evidence fails to establish that the proposed
surgery was required for a condition causally related to the March 12, 2003 employment injury.
Accordingly, the Office did not abuse its discretion under 5 U.S.C. § 8103 in denying
authorization for the proposed knee replacement surgery.

2

Francis H. Smith, 46 ECAB 392 (1995); Daniel J. Perea, 42 ECAB 214 (1990).

3

Cathy B. Mullin, 51 ECAB 331 (2000).

4

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

5

The Act provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). The implementing regulation states that, if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser, the Office shall appoint a third physician to make an examination. This is called a referee
examination and the Office will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321 (1999).

4

CONCLUSION
The evidence of record did not establish that the proposed right knee replacement surgery
was medically necessary for the accepted work injury and therefore the Office properly denied
authorization.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 3, 2006 and October 31, 2005 are affirmed.
Issued: February 2, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Gaithersburg, MD, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1454
Issued: January 7, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 16, 2017 appellant, through counsel, filed a timely appeal from a May 12, 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.3

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

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue on appeal is whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective May 28, 2017, as she had no residuals of her workrelated injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the prior decision are incorporated herein by reference. The relevant facts follow.
On December 23, 2001 appellant, then a 34-year-old markup clerk, filed a traumatic injury
claim (Form CA-1) alleging that, on December 14, 2001, she developed pain in her arm, elbow,
the back of her neck, and that her hand started swelling rapidly while keying in the performance
of duty. She stopped work on December 14, 2001.5
OWCP accepted appellant’s claim for the conditions of: sprain of the right shoulder and
right upper arm; enthesopathy of wrist and carpus, on the right; lateral epicondylitis, on the right;
other tenosynovitis of the hand and wrist, on the right; and impingement syndrome of the right
shoulder. In File No. xxxxxx242, it accepted the claim for right shoulder strain/sprain. Under File
No. xxxxxx646, OWCP accepted the claim for carpal tunnel syndrome on the right. It paid
appellant appropriate compensation benefits and placed her on the periodic rolls.
On January 7, 2016 OWCP referred appellant for a second opinion examination, along with
a statement of accepted facts (SOAF),6 a set of questions, and the medical record to Dr. Burke
Haskins, a Board-certified orthopedic surgeon, to determine whether appellant continued with
residuals of her accepted conditions and her ability to return to work.
In a January 26, 2016 report, Dr. Haskins noted appellant’s history of injury and treatment.
He examined her and advised that her right shoulder sprain had resolved and appellant was capable
of returning to normal-duty work with her right elbow complaints. Dr. Haskins indicated that there
was no evidence at the time based on objective findings or history of right lateral epicondylitis.
He also noted that appellant’s de Quervain’s syndrome which was work related had resolved.
4

Docket No. 05-0589 (issued September 8, 2005).

5

The record reflects that appellant has a previous claim which was accepted for an injury to her right shoulder on
June 29, 1999. OWCP File No. xxxxxx242. The accepted condition was right shoulder strain/sprain. However, the
record before the Board does not contain a copy of that claim. OWCP administratively combined File No. xxxxxx242
and File No. xxxxxx646 into master File No. xxxxxx042.
6

The December 29, 2015 SOAF noted that appellant had three upper extremity claims that were administratively
combined by OWCP under File Nos. xxxxxx242, xxxxxx646 and xxxxxx042, with the master File No. xxxxxx042.
OWCP noted that the accepted conditions included a right shoulder strain, right lateral epicondylitis, tendinitis of the
right wrist and a right shoulder strain. It also noted that under File No. xxxxxx646, the claim was accepted for right
carpal tunnel syndrome. Additionally, the conditions of right rotator cuff tear and cervical spine conditions were listed
as not being accepted by OWCP. OWCP also listed appellant’s authorized surgeries to include: decompression of
the right carpal tunnel syndrome, excisional biopsy of synovium; flexor tendons; right wrist and hand and
tenosynovectomy on January 27, 2005. Additionally, appellant underwent a release first dorsal compartment on the
right wrist, with tenolyses; diagnostic therapeutic arthroscopy, right shoulder and decompression of impingement
syndrome, shaving right acromioclavicular joint, and lyses of adhesions, right shoulder on June 10, 2010.

2

Dr. Haskins noted that she was not precluded from returning to normal work and that she did not
need any further medical treatment. He opined that appellant was at maximum medical
improvement (MMI), that there was evidence based upon objective findings or history of right
lateral epicondylitis, and the following conditions of carpal tunnel syndrome, de Quervains
syndrome, extensor origin syndrome (tennis elbow) and right shoulder sprain had all resolved.
Dr. Haskins indicated that he had completed the work restriction form and the limitations noted
were secondary to unrelated conditions of cervical disc disease, acromioclavicular arthritis, and
rotator cuff pathology.
Dr. Rida Azer, a Board-certified orthopedic surgeon, continued to treat appellant. In his
December 9, 2016 report, he opined that appellant continued with residuals of her work injury of
December 14, 2001 and that she had permanent residuals from the injury. Dr. Azer recommended
that appellant avoid strenuous use of the right hand, repetitive movements of the right hand,
overhead use of the right hand, pushing, pulling, and lifting of the right hand, and repetitive
movements. He repeated that the limitations were permanent and caused by her injury of
December 14, 2001.
On February 3, 2017 OWCP issued a notice of proposed termination of compensation. It
proposed to terminate appellant’s compensation as the weight of the medical evidence, as
represented by the report of Dr. Haskins, established that the residuals of the work injury had
ceased. OWCP also found that she no longer had continued disability from work as a result of her
work injury or illness. It afforded 30 days to submit additional evidence or argument if appellant
disagreed with the notice of proposed termination.
In a February 3, 2017 report, Dr. Azer noted that the accepted conditions were: right sprain
shoulder/arm not otherwise specified; right enthesopathy of wrist; right lateral epicondylitis; and
right tenosynovitis hand/wrist and neck. He explained that appellant continued with pain in the
right shoulder and the right elbow and was tender over the greater tuberosity of the right humerus.
Dr. Azer advised that active abduction was 0 to 45 degrees and passively 0 to 70 degrees. He
found the right elbow showed tenderness over the lateral epicondyle of the right humerus and there
was pain on resisted supination. Dr. Azer found that appellant’s incisions were healed and
sensation over the right median nerve and over the superficial branch of the right radial nerve was
normal. He found that the Finkelstein’s sign was negative. Dr. Azer indicated that appellant would
have a magnetic resonance imaging (MRI) scan of the right shoulder. He noted that she had not
worked for several years. Dr. Azer opined that appellant could not perform the duties of
appellant’s position as a “mark-up clerk” which involved lifting trays, using both hands, and
handling. He continued to keep appellant off work. Dr. Azer also noted that the patient should
avoid activities that involved: pushing, pulling, and lifting heavy objects; overhead use of the right
hand; repetitive movements of the right hand; strenuous use of the right hand; having her hands
close to machinery; and hazardous situations. He opined that the restrictions applied to the whole
right upper extremity and noted that appellant was predominantly right handed.
Dr. Azer also included objective findings and clinical examination conditions. He opined
that appellant’s conditions were caused by the December 14, 2001 injury. Dr. Azer noted that at
present, the right elbow and the right shoulder were being treated by conservative measures trying
to avoid surgery. He explained that, if a right shoulder MRI scan showed impingement syndrome,
she might need surgical intervention. Dr. Azer advised that the MRI scan had been scheduled. He
reiterated that appellant was unable to perform her duties.
3

Appellant provided February 26, 2017 personal statements. She noted errors in
Dr. Haskins’ reports. Appellant noted that Dr. Haskins did not include full information regarding
her work-related injuries. She referenced a June 29, 1999 report, which noted neck spasms.
Appellant requested that her work-related neck injury be included. She referenced a December 16,
2001 emergency room report and included a copy. Appellant noted that his report contained an
incorrect date, as she was not working in 2004. She also noted that he had the wrong date of when
she was seen in the emergency room and advised that it was 2001 and not 2002. Appellant also
discussed medical evidence and argued that her conditions had worsened and were ongoing.
OWCP received a May 23, 2005 attending physician’s report (Form CA-20) and duty
status reports (CA-17 forms) from Dr. Azer. Additionally, it received a February 13, 1989
prescription note and another Form CA-17 dated March 14, 1989.
A February 17, 2017 x-ray of the right elbow read by Dr. Sherwin Pollock, a Boardcertified diagnostic radiologist, revealed a moderate degree of tendinosis of the distal supraspinatus
tendon. He also found that no rotator cuff tear was identified. Dr. Pollock found mild medial arch
outlet stenosis and that the overall appearance of the right shoulder was stable from the prior
examination.
OWCP determined that a conflict existed in the medical opinions between Dr. Azer and
Dr. Haskins regarding appellant’s residuals of her accepted medical conditions and ability to return
to employment. On March 13, 2017 OWCP referred appellant along with a SOAF,7 a set of seven
questions, and the medical record to Dr. Sanakar Kothakota, a Board-certified orthopedic surgeon,
for an impartial medical evaluation to resolve the conflict in opinion.
The March 13, 2017 SOAF noted that all three of appellant’s cases had been combined into
a master case File No. xxxxxx042. Her accepted conditions were: shoulder strain/sprain, on the
right; sprain of shoulder and upper arm, on the right; enthesopathy of the wrist and carpus on the
right; lateral epicondylitis, on the right; other tenosynovitis of the hand and wrist, on the right; and
impingement syndrome of the right shoulder, along with carpal tunnel syndrome on the right.
OWCP noted that appellant had not returned to work.
In an April 24, 2017 report, Dr. Kothakota noted appellant’s history of injury and
treatment. He initially noted that appellant was employed as a postal clerk and sustained a workrelated injury on June 29, 1999, while keying and labeling. Dr. Kothakota also indicated that
appellant claimed a second injury on December 14, 2001, and the accepted condition was right
lateral epicondylitis of the right elbow and continued problem with right wrist and right shoulder
strength. He also noted that appellant claimed an injury to the right wrist because of her repetitive
keying, and noted that this happened on December 14, 2004. Dr. Kothakota examined appellant
and noted that he had reviewed several thousand pages of records.
Dr. Kothakota performed a physical examination and indicated that appellant had full range
of motion of the right shoulder. He also noted well-healed arthroscopic scars and no atrophy.
7
The March 13, 2017 SOAF did not list appellant’s job or duties. It also noted that she had not returned to work,
but did not specify a specific date that she had stopped work. Appellant’s accepted conditions were listed as: shoulder
strain/sprain, on the right; sprain of shoulder and upper arm, on the right; enthesopathy of the wrist and carpus on the
right; lateral epicondylitis, on the right; other tenosynovitis of the hand and wrist, on the right; and impingement
syndrome of the right shoulder, along with carpal tunnel syndrome on the right.

4

Dr. Kothakota determined that she had full active and passive range of motion. He indicated that
appellant had strength in the right shoulder of a grade 4, grade 5 in all groups of muscles.
Dr. Kothakota observed that there was no atrophy of the muscles. He also noted that the right
elbow and right hand did not show any obvious signs of any atrophy or loss of sensation.
Dr. Kothakota found that appellant’s grip strength was within normal limits. He advised that her
peripheral pulses were felt and her history was suggestive of carpal tunnel surgery performed on
January 27, 2005, and de Quervains release of the right wrist. Dr. Kothakota also noted that
subacromial decompression combined with lysis of adhesions of the right shoulder was performed
by Dr. Azer on June 10, 2010. He also noted that he had reviewed the operative reports including
the relevant medical records.
Dr. Kothakota opined that appellant reached MMI. He advised that all of the accepted
conditions from the combined cases had completely resolved and noted that he did not see any
signs of worsening problems at the time of his clinical examination or with his review of the
medical records including the MRI scan reports. Dr. Kothakota opined that appellant did not have
and does not suffer from residuals from the work-related injury. He further found that appellant
did not have continuing conditions which caused her to remain off work. Dr. Kothakota opined
that appellant could return to full-duty status based upon his clinical examination and review of
the medical records. He explained that she was capable of returning to preinjury work status
without the need for restrictions. Dr. Kothakota completed the work restriction form noting his
opinion that she could return to her preinjury work.
By decision dated May 12, 2017, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective May 28, 2017. It found that the report of Dr. Kothakota was
sufficiently well rationalized and based upon a proper factual background and was therefore
afforded the special weight. OWCP found that Dr. Kothakota supported that appellant no longer
had residuals of the accepted work-related conditions.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.8 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.9
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.10
Furthermore, FECA11 provides that, if there is disagreement between the physician making
the examination for OWCP and the employee’s physician, the Secretary shall appoint a third
physician who shall make an examination.12 The implementing regulation provides that, if a
8

Curtis Hall, 45 ECAB 316 (1994).

9

Jason C. Armstrong, 40 ECAB 907 (1989).

10

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

11

5 U.S.C. §§ 8101-8193, 8123(a).

12

Id. at § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

5

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.13 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.14
In cases where OWCP has referred appellant to an impartial medical examiner to resolve
a conflict in the medical evidence, the opinion of such a specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.15
ANALYSIS
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective May 28, 2017, as she had no residuals of her work-related injury.
OWCP accepted appellant’s claim for the conditions of: sprain of the right shoulder and
right upper arm; enthesopathy of wrist and carpus, on the right; lateral epicondylitis, on the right;
other tenosynovitis of the hand and wrist, on the right; and impingement syndrome of the right
shoulder. In File No. xxxxxx242, it accepted the claim for right shoulder strain/sprain. Under File
No. xxxxxx646, OWCP accepted the claim for carpal tunnel syndrome on the right. The claims
were administratively combined by OWCP and appellant received wage-loss compensation and
medical benefits and was placed on the periodic rolls on May 6, 2012. OWCP properly determined
that a conflict in medical opinion arose between Dr. Azer, appellant’s attending physician, and
Dr. Haskins, an OWCP referral physician, regarding the current condition and ongoing residuals,
if any, due to her employment injury. OWCP properly referred appellant to Dr. Kothakota, a
Board-certified orthopedic surgeon, for an impartial medical examination.
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.16 The Board finds that the opinion of Dr. Kothakota is
well rationalized and based on a proper factual and medical history. Dr. Kothakota accurately
summarized the relevant history of appellant’s medical health and treatment, provided detailed
findings on physical examination, and reached conclusions about appellant’s conditions which
were well rationalized and comported with his physical findings.17 OWCP provided him with a
SOAF dated March 13, 2017 which noted the three combined files and the accepted medical
conditions in the claim. It also provided him with a series of seven questions regarding her current
physical status, her preexisting conditions, her ability to return to work, and whether she required
further medical treatment.

13

20 C.F.R. § 10.321.

14

Id.

15

Gloria J. Godfrey, 52 ECAB 486 (2001); Gary R. Sieber, 46 ECAB 215, 225 (1994).

16

J.M., supra note 10; Darlene R. Kennedy, 57 ECAB 414 (2006).

17

See Manuel Gill, 52 ECAB 282 (2001).

6

In his report, Dr. Kothakota noted the significant medical record he had reviewed, along
with the SOAF and series of seven questions. The Board notes that he conducted and reported
findings from his physical examination, noting her most significant complaints were related to her
neck and right shoulder. Upon examination Dr. Kothakota noted full range of motion of the right
shoulder with no atrophy and right shoulder strength of grade 4, and grade 5 in all muscle groups.
As to appellant’s elbow and right hand he again noted no signs of atrophy or loss of sensation and
he found her grip strength was normal. As to her carpal tunnel and de Quervain’s Dr. Kothakota
noted her history of injury and acknowledged normal findings of the wrist and hands. Following
his physical examination he reviewed the findings contained in the medical records, specifically
those of Drs. Haskins, Smith, and Ignacio, along with reviewing the results of her diagnostic
testing. In his report Dr. Kothakota specifically determined that, following his physical
examination, appellant does not have residuals from any of her accepted conditions. He completed
a full bilateral upper extremity evaluation noting completely normal findings, which he noted in
his responses. Based upon his physical findings, Dr. Kothakota opined that appellant had no
conditions which would cause her to be unable to return to work, indicating that she can return to
full-duty status based on the clinical examination and the medical records. He concluded that it
was his opinion that she was capable of returning to her preinjury work status without restrictions.
The Board notes that Dr. Kothakota did not respond to the final two questions posed by the claims
examiner. However, based upon the completely normal physical findings and his opinion that she
could return to work without the need for restrictions, those two remaining questions regarding
preexisting disability and further medical treatment options are irrelevant to the question of
whether appellant has ongoing residuals of her accepted conditions. Furthermore, the SOAF as
presented to the IME is found to present the necessary claim information to premise an
examination on the sole question of whether there are continuing residuals. Additional
information, as counsel has asserted should have been included in the SOAF, is found to be
unnecessary as it is irrelevant to the question of continuing residuals of the accepted conditions.
As his report is detailed, well rationalized, based upon a contemporaneous medical examination,
and based on a proper factual background, his opinion is entitled to the special weight accorded an
IME.18
The remaining evidence submitted prior to OWCP’s termination of appellant’s wage-loss
compensation and medical benefits is insufficient to overcome the special weight afforded to
Dr. Kothakota as the IME. In a series of medical reports, Dr. Azer opined that appellant continued
to exhibit residuals of her accepted employment-related conditions. He assigned permanent work
restrictions based upon his conclusion that there remained continuing residuals in her upper
extremities. Dr. Azer documented ongoing complaints of pain. Further, he noted continued
treatment by conservative measures. Dr. Azer, however, was on one side of the conflict resolved
by Dr. Kothakota. Medical reports from a physician on one side of a conflict resolved by an IME
are generally insufficient to overcome the special weight accorded the report of an IME or to create
a new conflict.19

18

C.S., Docket No. 18-0952 (issued October 23, 2018).

19

See Jaja K. Asaramo, 55 ECAB 200 (2004); Michael Hughes, 52 ECAB 387 (2001).

7

The Board, therefore, finds that OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective May 28, 2017, as she had no residuals of her workrelated injury, as found by Dr. Kothakota.20
On appeal counsel submitted numerous arguments with regard to the SOAF and the
reliability of the opinion of Dr. Kothakota. The Board has found, however, that the IME report
noted completely normal physical finding based upon a comprehensive bilateral upper extremity
physical examination, a comprehensive review of the significant medical history, and
consideration of diagnostic testing results and the most recent SOAF. For the reasons set forth
herein, the report of Dr. Kothakota is afforded the special weight and OWCP properly terminated
appellant’s wage-loss compensation and medical benefits.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective May 28, 2017, as she had no residuals of her work-related injury.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 7, 2019
Washington, DC

Christopher J. Godfrey, 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

20

See G.T., Docket No. 17-1959 (issued June 22, 2018); D.G., Docket No. 17-0608 (issued March 19, 2018).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
U.S. POSTAL SERVICE, MILWAUKEE MAIN
POST OFFICE, Milwaukee, WI, Employer
__________________________________________

)
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)
)

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

Docket No. 19-1056
Issued: November 1, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 12, 2019 appellant, through counsel, filed a timely appeal from a March 8, 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability for the
period commencing November 21, 2017 causally related to her accepted May 29, 2015
employment injury.
FACTUAL HISTORY
On May 29, 2015 appellant, then a 53-year-old occupational health nurse, filed a traumatic
injury claim (Form CA-1) alleging that, on the same date, she sustained a back injury while in the
performance of duty. She maintained that as she was moving a file cabinet she made a sudden
jerking movement in an attempt to catch some files falling off the cabinet and pulled muscles in
her back. Appellant stopped work on May 30, 2015.3
OWCP accepted appellant’s claim for a lumbar sprain. It paid her wage-loss compensation
for work stoppages related to medical appointments and recovery from steroid injections.4
Appellant stopped work on November 21, 2017 and, on December 12, 2017, she filed a
claim for compensation (Form CA-7) alleging disability for the period November 21 to
December 8, 2017 causally related to her accepted May 29, 2015 employment injury. She later
filed additional Forms CA-7 alleging disability for the period December 9, 2017 and continuing
causally related to her accepted May 29, 2015 employment injury.5
In disability notes dated between November 27 and December 11, 2017, Dr. Chandur
Piryani, a Board-certified anesthesiologist, advised that appellant should be off work from
November 27 through December 25, 2017. In the November 27, 2017 note, he diagnosed
lumbosacral radiculopathy and indicated that appellant reported experiencing increased pain due
to a change in her medication.
In a December 15, 2017 development letter, OWCP requested that appellant submit
additional medical evidence in support of her claim for disability commencing
November 21, 2017.
In response, appellant submitted a November 20, 2017 report from Dr. Piryani who
diagnosed intervertebral lumbar disc degeneration, lumbar spondylosis without myelopathy or
radiculopathy, intervertebral lumbar disc disorders with radiculopathy, lumbar spinal stenosis,
sacrococcygeal disorders, and chronic pain syndrome. Dr. Piryani noted that he provided appellant
3

OWCP assigned the claim OWCP File No. xxxxxx867.

4

Appellant previously filed traumatic injury claims under separate file numbers, including a claim for a
September 19, 2001 injury which was accepted by OWCP for lumbar strain (OWCP File No. xxxxxx968), and a claim
for a December 17, 2003 injury which it accepted for aggravation of lumbar degenerative disc disease at L5-S1,
contusions of the back and left shoulder, and sprains of the wrist, left shoulder/upper arm, and lumbar spine (OWCP
File No. xxxxxx469). OWCP has not administratively combined the current claim, OWCP File No. xxxxxx867, with
these claims.
5
Appellant returned to limited-duty work on February 27, 2018 for six hours per day and she began to claim wageloss compensation for two hours per day.

2

an off-work excuse starting that day and advised her that she could return to work on
November 27, 2017. In a January 8, 2018 report, he discussed appellant’s reported low back/lower
extremity symptoms and opined that her medical condition and accompanying disability were
related to her May 29, 2015 employment injury.6
In February 2018 OWCP referred appellant to Dr. David S. Haskell, a Board-certified
orthopedic surgeon, for a second opinion examination and requested that he provide an opinion
regarding whether she had disability commencing November 21, 2017 causally related to her
accepted May 29, 2015 employment injury.
In a March 14, 2018 report, Dr. Haskell discussed appellant’s factual and medical history
and noted that his physical examination showed restricted forward flexion of the back, but no
sensory/motor loss of the back or lower extremities. He indicated that, as evidenced by MRI scans,
appellant had longstanding degenerative disc disease at L5-S1 prior to suffering the May 29, 2015
employment injury. Dr. Haskell opined that the May 29, 2015 employment injury only
temporarily aggravated appellant’s preexisting condition and that she had no residuals of that
employment injury. He recommended that she undergo a lumbar laminectomy at L5-S1 to treat
her preexisting degenerative disc disease.7
In April 2018, OWCP declared a conflict in the medical opinion evidence between
Dr. Piryani and Dr. Haskell regarding whether appellant had disability for the period commencing
November 21, 2017 causally related to her accepted May 29, 2015 employment injury. It referred
appellant to Dr. Richard Karr, a Board-certified orthopedic surgeon, for an impartial medical
examination and opinion regarding this issue.
In an August 31, 2018 report, Dr. Karr discussed appellant’s factual and medical history,
and provided an extensive summary of the medical evidence in the case record. He detailed the
findings of his physical examination and noted that appellant exhibited nonorganic give-way
weakness upon bilateral big toe extension and right hip ﬂexion, as well as with respect to her right
quadriceps. Dr. Karr reported that there were no cutaneous signs of active disease involving
appellant’s thoracolumbar midline or sacroiliac areas, and that lumbar rhythm was difficult to
assess given the voluntary limited range of motion of her back. Straight leg raise testing was
negative to 90 degrees bilaterally. Dr. Karr indicated that the May 29, 2015 employment injury
caused a minor low back strain with no structural spinal or neurological damage. He maintained
that appellant’s preexisting degenerative lumbar spondylosis and chronic low back pain/sciatica
difﬁculties were not aggravated by the injury on May 29, 2015. Dr. Karr opined that the minor
May 29, 2015 injury resolved by no later than August 29, 2015 without continuing disability or
alteration in her working capability. He indicated that appellant’s seeking of treatment and
disability from work after that date was not related to the May 29, 2015 employment injury.
6
In a February 26, 2018 report, Dr. Piryani provided similar diagnoses and indicated that appellant could work with
restrictions, including no frequent bending/twisting and no lifting more than 20 pounds. Appellant also submitted the
findings of a November 6, 2017 magnetic resonance imaging (MRI) scan of the lumbar spine which contained an
impression of moderate degenerative disc disease at L5-S1 and mild degenerative disc disease at L3-4 and L4-5.
7
In a March 28, 2018 work capacity evaluation form (OWCP-5c), Dr. Haskell indicated that appellant could work
with restrictions due to her underlying degenerative disc condition.

3

Dr. Karr advised that appellant could return to full-time work under the restrictions that were
assigned to her in 2008 with respect to her accepted December 17, 2003 employment injury.
In a September 10, 2018 OWCP-5c form, Dr. Karr indicated that appellant had no work
restrictions attributable to her May 29, 2015 employment injury and could perform her usual work
with respect to that injury. He noted that appellant had been assigned a permanent restriction of
lifting no more than 25 pounds, but explicitly indicated the restriction was assigned due to her
December 17, 2003 employment injury.
By decision dated September 18, 2018, OWCP determined that appellant had not met her
burden of proof to establish her claim for disability for the period commencing November 21, 2017
causally related to her accepted May 29, 2015 employment injury. It found that the special weight
of the medical opinion evidence rested with the well-rationalized August 31, 2018 report of
Dr. Karr, the impartial medical specialist.
On September 27, 2018 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. Appellant submitted September 21
and 27, and November 21, 2018 reports from Dr. Piryani who diagnosed left lumbar radiculopathy
and several low back conditions, and indicated that appellant could work with restrictions
including no bending/twisting and no lifting more than 20 pounds.
During the hearing, held on January 30, 2019, appellant testified that the pain from her
May 29, 2015 back injury caused her to stop work in November 2017.
By decision dated March 8, 2019, OWCP’s hearing representative affirmed the
September 18, 2018 decision.8
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 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.9 In general the term disability under FECA means incapacity

8

The hearing representative inadvertently indicated that appellant claimed disability commencing November 25,
2017 rather than the actual date of November 21, 2017. The hearing representative recommended that the files for
appellant’s previous claims (OWCP File Nos. xxxxxx968 and xxxxxx469) be administratively combined with the file
for the present claim (OWCP File No. xxxxxx867), but the analysis of the March 8, 2019 decision was limited to
consideration of whether appellant met her burden of proof to establish disability for the period commencing
November 21, 2017 causally related to her May 29, 2015 employment injury.
9

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

4

because of injury in employment to earn the wages which the employee was receiving at the time
of such injury.10 This meaning, for brevity, is expressed as disability for work.11
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.12
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 appellant has not met her burden of proof to establish disability for
the period commencing November 21, 2017 causally related to her accepted May 29, 2015
employment injury.
The Board finds that OWCP properly determined that there was a conflict in the medical
opinion evidence between Dr. Piryani, an attending physician, and Dr. Haskell, an OWCP referral
physician, regarding whether appellant had disability for the period commencing November 21,
2017 causally related to her May 29, 2015 employment injury. In order to resolve the conflict,
OWCP properly referred appellant, pursuant to section 8123(a) of FECA, to Dr. Karr for an
impartial medical examination and an opinion.15
The Board finds that the special weight of the medical opinion evidence is represented by
the thorough, well-rationalized opinion of Dr. Karr.16 The August 31 and September 10, 2018
10

See 20 C.F.R. § 10.5(f).

11

See S.W., supra note 9. See also A.M., Docket No. 09-1895 (issued April 23, 2010); Roberta L. Kaaumoana, 54
ECAB 150 (2002).
12

E.J., Docket No. 09-1481 (issued February 19, 2010).

13

5 U.S.C. § 8123(a).

14

D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).
15

See supra note 13.

16

See supra note 14.

5

reports of Dr. Karr establish that appellant did not have disability for the period commencing
November 21, 2017 causally related to her May 29, 2015 employment injury.
In his August 31, 2018 report, Dr. Karr noted that his physical examination revealed
instances of nonorganic give-way weakness in appellant’s lower extremities and voluntary limited
range of motion of her back. He indicated that the May 29, 2015 employment injury caused a
minor low back strain with no structural spinal or neurological damage. Dr. Karr opined that the
minor May 29, 2015 employment injury resolved by no later than August 29, 2015 without
continuing disability or alteration in working capability. He indicated that appellant’s seeking of
treatment and any disability from work after that point was not related to the May 29, 2015
employment injury, but was attributable to the December 17, 2003 employment injury, which is
not the subject of the current appeal. In a September 10, 2018 OWCP-5c form, Dr. Karr noted that
appellant had no work restrictions attributable to her May 29, 2015 employment injury and could
perform her usual work with respect to that injury.17
The Board finds that Dr. Karr’s opinion has reliability, probative value, and convincing
quality with respect to its conclusions regarding the relevant issue of ongoing disability. Dr. Karr
provided a thorough factual and medical history and accurately summarized the relevant medical
evidence. He provided medical rationale for his opinion by explaining that the nature of
appellant’s May 29, 2015 soft-tissue employment injury was such that it resolved by lateAugust 2017 and that she did not exhibit findings related to the injury upon examination.18
Appellant submitted September 21, 27, and November 21, 2018 reports from Dr. Piryani
who indicated that she could work with restrictions including no bending/twisting and no lifting
more than 20 pounds. However, these reports have no probative value regarding the underlying
issue of this case because Dr. Piryani did not provide an opinion that appellant required work
restrictions due to her May 29, 2015 employment injury. The Board has held that medical evidence
that does not offer an opinion regarding the cause of an employee’s condition or disability is of no
probative value on the issue of causal relationship.19 Therefore, these reports are insufficient to
establish appellant’s claim.20
As appellant has not submitted rationalized medical evidence establishing disability
commencing November 21, 2017 causally related her accepted May 29, 2015 employment injury,
she has not met her burden of proof.

17

Dr. Karr noted that appellant had been assigned a permanent restriction of lifting no more than 25 pounds, but he
explicitly indicated the restriction was assigned due to her December 17, 2003 injury. The Board notes that appellant’s
December 17, 2003 injury is not the subject of the present appeal.
18

See W.C., Docket No. 18-1386 (issued January 22, 2019); Melvina Jackson, 38 ECAB 443 (1987) (regarding the
importance, when assessing medical evidence, of such factors as a physician’s knowledge of the facts and medical
history, and the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion).
19

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

20

Id.

6

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 not met her burden of proof to establish disability for
the period November 21, 2017 causally related to her accepted May 29, 2015 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 1, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Trenton, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0623
Issued: October 28, 2019

Case Submitted on the Record

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

JURISDICTION
On January 28, 2019 appellant, through counsel, filed a timely appeal from a November 27,
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 26
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
OWCP accepted that on January 5, 2016 appellant, then a 59-year-old mail processor,
sustained aggravation of lumbar disc disease with radiculopathy as a result of bending into a cage
and lifting packages while in the performance of duty. 3 It authorized medial branch blocks at the
left and right L3-4, L4-5, and L5-S1 under fluoroscopy, which were performed on March 24 and
August 11, 2016.
On March 15, 2016 Dr. Steven J. Valentino, a Board-certified orthopedic surgeon,
examined appellant for low back pain with radiation into the right greater than left leg. On
examination he noted that a straight leg raise reproduced right leg pain at 40 degrees and 4/5
weakness of the extensor hallucis longus, with otherwise normal findings of the extremities.
Dr. Valentino diagnosed lumbar disc herniation with radiculopathy, lumbar stenosis, lumbar facet
arthropathy, and low back pain.
On March 21, 2016 Dr. Brad Tinkelman, a Board-certified neurologist, conducted an
electromyogram (EMG) and nerve conduction velocity testing to determine the presence of a
neuropathy or radiculopathy. He stated that motor and sensory nerve testing was normal, but that
a needle EMG revealed ongoing and chronic irritation of the right L4-S1 and left L4-5 innervated
muscles. Dr. Tinkelman concluded that the study revealed electrical evidence of an ongoing and
chronic right L4-S1 and left L4-5 radiculopathy.
In a report dated May 9, 2017, Dr. Nicholas Diamond, Board-certified in physical medicine
and rehabilitation, diagnosed lumbar sprain and strain, lumber disc syndrome at L2-3 and L5-S1
with aggravation of preexisting lumbar pathology; right L4, L5, and S1 radiculopathy; lumbar
facet syndrome; status post interventional pain management epidural steroid injections and medial
branch facet block injections; osteoarthrosis of the left hip; right hip total arthroplasty with
metallosis; and revision of the right hip total arthroplasty due to metallosis and implant failure.
On examination, he noted negative straight leg raising signs, but an increase of low back pain with
excursion of the right lower extremity, as well as 5/5 strength of the extensor halluces longus.
Sensory examination revealed a perceived sensory decrease on the right in the L4, L5, and S1
dermatomal distribution with 3.61 mgs Semmes-Weinstein Monofilament testing on the right.
Deep tendon reflexes were +1/4 on the right lower extremity for the patella and Achilles. Under
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent

3

Appellant stopped work on January 5, 2016 and returned to limited-duty work on October 2, 2016. By decision
dated July 2, 2018, OWCP reduced his wage-loss compensation to zero, as his actual earnings from his position at the
employing establishment met or exceeded the current wages of the date-of-injury position, and fairly and reasonably
represented his wage-earning capacity. Appellant retired from the employing establishment effective
August 31, 2018.

2

Impairment (A.M.A., Guides),4 Dr. Diamond calculated 40 percent right lower extremity
permanent impairment. The rating was based on findings of class 1 moderate sensory deficits of
the right L4 nerve root (5 percent), L5 nerve root (5 percent), and S1 nerve root (3 percent); a class
1 mild 4/5 motor strength deficit of the right quadriceps (9 percent); and a class 2 right total hip
arthroplasty with good results (25 percent). Dr. Diamond indicated that appellant had reached
maximum medical improvement (MMI) on May 9, 2017.
On September 19, 2017 appellant filed a claim for a schedule award (Form CA-7).
OWCP routed Dr. Diamond’s May 9, 2017 report, a statement of accepted facts (SOAF),
and the case file to Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a district
medical adviser (DMA), for review as to whether appellant sustained permanent impairment as a
result of his accepted condition.
In a September 25, 2017 report, Dr. Katz recommended a second opinion evaluation, as
there was significant conflict of information between the findings of Drs. Valentino and Tinkerman
with respect to the lower extremities and Dr. Diamond in his impairment examination, which could
not be resolved on the basis of a review of the medical record. He indicated that MMI was
undetermined, pending a second opinion evaluation.
OWCP referred appellant to Dr. Robert F. Draper, Jr., a Board-certified orthopedic
surgeon, for a second opinion evaluation regarding appellant’s permanent impairment. In a
March 2, 2018 report, Dr. Draper examined appellant’s lower extremities, finding slightly
decreased touch sensation of the lateral foot and sole due to the S1 nerve. He opined that appellant
had a class 1, grade C, or one percent impairment of the right lower extremity. Dr. Draper
referenced the sixth edition A.M.A., Guides and The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter) as the
method for determining impairment.
He indicated that MMI had been reached as of
March 2, 2018.
In a March 28, 2018 report, Dr. Katz reviewed Dr. Draper’s report and found that, while
his examination was more consistent with the findings of other examiners than Dr. Diamond’s
assessment, he failed to consider impairment for appellant’s right total hip replacement, and thus
he did not agree with Dr. Draper’s final impairment rating. Referring to Table 16-4, Hip Regional
Grid, and The Guides Newsletter, Dr. Katz calculated 1 percent permanent impairment of the right
lower extremity due to spinal nerve impairment and 25 percent permanent impairment due to total
hip replacement, for a final combined value of 26 percent permanent impairment of the right lower
extremity. He concurred with Dr. Draper that the date of MMI was March 2, 2018.
By decision dated April 3, 2018, OWCP granted appellant a schedule award for 26 percent
permanent impairment of the right lower extremity. The award covered the period March 2, 2018
through August 8, 2019, and was based on the May 9, 2017 report of Dr. Diamond, the March 2
2018 report of Dr. Draper, and the reports of Dr. Katz dated September 20, 2017 and
March 28, 2018.

4

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

3

On April 9, 2018 appellant, through counsel, requested a hearing before an OWCP hearing
representative.
On May 24, 2018 appellant underwent an OWCP-approved medial branch blocks at the
left and right L3-4, L4-5, and L5-S1 under fluoroscopy.
A hearing was held on July 10, 2018. During the hearing, counsel argued that a conflict of
medical opinion existed between Dr. Katz and Dr. Diamond, and noted that Dr. Katz had utilized
an incorrect date of MMI.
By decision dated August 13, 2018, OWCP’s hearing representative affirmed the
April 3, 2018 decision. She noted that Dr. Diamond had not provided an explanation for a higher
rating of impairment due to sensory deficit in light of Dr. Valentino’s negative findings. The
hearing representative further noted that his report was not definitive and as such, use of
Dr. Diamond’s report for the date of MMI was not warranted.
On September 5, 2018 appellant, through counsel, requested reconsideration. In support
of his request, appellant submitted an addendum report from Dr. Diamond dated August 24, 2018.
Dr. Diamond disagreed with Dr. Katz’ impairment rating for the right lower extremity secondary
to lumbar radiculopathy. He noted that Dr. Draper had not utilized the Semmes-Weinstein
Monofilament method to document appellant’s sensory deficit. Dr. Diamond referred to the
A.M.A., Guides, page 532, which noted that grading was based on the results of sensibility testing
and two-point discrimination to improve interrater reliability. He stated that the SemmesWeinstein Monofilament method was an instrument widely in use, had greater accuracy, and was
an optimum choice for objective touch threshold examination. Dr. Diamond further noted that
Dr. Draper had used a grade modifier for physical examination in his impairment rating for the S1
nerve root sensory deficit, which was not used to grade spinal nerve root impairment. He disagreed
with Dr. Draper’s grade modifier of 2 for clinical studies and referred to Table 17-9, page 581 of
the A.M.A., Guides, which stated that EMG evidence consisting of multiple nerve root
radiculopathy was compatible with a grade modifier of 4. Dr. Diamond opined that appellant had
a final combined right lower extremity impairment of 40 percent.
OWCP routed Dr. Diamond’s August 24, 2018 report, a SOAF, and the case file to DMA
Dr. Katz for review and commentary.
On November 16, 2018 Dr. Katz stated that Dr. Draper’s neurological findings were
consistent with that of other examiners of record. He noted that the Semmes-Weinstein testing
method was not a requirement for the use of The Guides Newsletter. Dr. Katz opined that, while
some degree of right hip muscle weakness may exist, it was likely that this was due, at least in
part, to the coexistent hip replacement. He stated that, at that time, consideration might be given
for a referee impairment evaluation.
By decision dated November 27, 2018, OWCP denied modification of its August 13, 2018
decision, finding that the DMA’s opinion was unchanged by Dr. Diamond’s August 24, 2018
report.

4

LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulations,6 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. 7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 8
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. 9 For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides
Newsletter is to be applied.10 FECA-approved methodology is premised on evidence of
radiculopathy affecting the upper and/or lower extremities. 11
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. 12 The implementing regulations provide 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.13
When 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

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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

Id. at Chapter 3.700, Exhibit 4 (January 2010).

10

Id. at Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as Exhibit 4; see also
W.M., Docket No. 18-0957 (issued October 15, 2018); G.N., Docket No. 10-0850 (issued November 12, 2010).
11

Supra note 8 at Chapter 2.808.5c(3) (February 2013).

12

5 U.S.C. § 8123(a).

13

20 C.F.R. § 10.321.

5

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.
Although the DMA and Dr. Diamond agreed with respect to the extent of appellant’s right
lower extremity impairment due to his total hip arthroplasty, they disagreed regarding appellant’s
sensory nerve extremity impairment attributable to his accepted lumbar condition. Whereas
Dr. Diamond found 25 percent right lower extremity permanent impairment due to sensory and/or
motor deficits affecting the L4, L5, and S1 nerve roots, the DMA found only one (1) percent right
lower extremity permanent impairment due to a mild sensory deficit affecting the S1 nerve root.
In his November 16, 2018 supplemental report, the DMA advised that “consideration might be
given for a referee impairment evaluation.” However, OWCP did not heed his advice.
The Board finds that a conflict in the medical opinion evidence exists between appellant’s
attending physician, Dr. Diamond and OWCP’s medical adviser, Dr. Katz, regarding whether he
sustained greater than 26 percent impairment of the right lower extremity. As noted above, if there
is disagreement between an employee’s physician and the DMA, OWCP shall appoint a referee
physician or impartial medical specialist who shall make an examination. 15 The case is therefore
remanded for OWCP to refer appellant to an appropriate specialist for an impartial medical
examination pursuant to 5 U.S.C. § 8123(a) to determine the extent and degree of right lower
extremity impairment in accordance with the sixth edition of the A.M.A., Guides.16 After such
further development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002); see also W.M., supra note 10.

15

Supra note 12; see V.G., Docket No. 17-1341 (issued July 16, 2018).

16
See W.M., supra note 10; P.R., Docket No. 18-0022 (issued April 9, 2018); G.W., Docket No. 17-0957 (issued
June 19, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the November 27, 2018 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: October 28, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7