United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, PARKVILLE
STATION, Brooklyn, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1285
Issued: January 5, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 3, 2016 appellant, through counsel, filed a timely appeal from an April 1, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective
November 16, 2014 based on its finding that he had the capacity to earn wages as an
administrative assistant.
FACTUAL HISTORY
On December 30, 2010 appellant, then a 60-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 29, 2010 he injured his right lower back and groin
in the performance of duty. He stopped work on December 30, 2010. OWCP accepted the claim
for a right hip and thigh strain and paid appellant compensation for total disability beginning
February 14, 2011.
On March 30, 2011 Dr. Alejandro Gonzalez Della Valle, a Board-certified orthopedic
surgeon, performed an authorized total right hip arthroplasty.
On May 29, 2012 OWCP referred appellant to Dr. Phillip D’Ambrosio, a Board-certified
orthopedic surgeon, for a second opinion examination to determine appellant’s work capacity. In
a report dated June 15, 2012, Dr. D’Ambrosio diagnosed a right hip sprain/strain that was
“superimposed on preexisting osteoarthritis status post right total hip replacement.” He found
that appellant had a “superb functional result” from his surgery with mild residual right hip
instability. Dr. D’Ambrosio opined that appellant could not return to his usual employment, but
could work eight hours in a sedentary or light position with no stooping, squatting, climbing
stairs, or lifting more than 10 pounds. In a June 15, 2012 work restriction evaluation, he found
that appellant could sit, walk, stand, reach, perform repetitive movements, operate a motor
vehicle both at work and to and from work, and push, pull, and lift up to 10 pounds for eight
hours per day.
In a supplemental report dated June 28, 2012, Dr. D’Ambrosio opined that appellant’s
employment injury aggravated his preexisting hip arthritis. He found that appellant could walk
eight hours a day on even ground, but could not twist, bend, or stoop. Dr. D’Ambrosio further
found that appellant could push and pull 8 to 10 pounds.
OWCP referred appellant to a rehabilitation counselor on July 27, 2012 for vocational
rehabilitation services. Vocational testing performed October 9 to 15, 2012 identified the
positions of social services aide, customer service representative, and administrative assistant as
suitable for direct placement. The counselor noted that appellant required training with a
computer to increase marketability.
Dr. Della Valle, in a January 10, 2013 report, found an intact right hip reconstruction on
examination with continued symptoms of hip discomfort. He related, “I would recommend that
[appellant’s] working and commute hours are maximized. [Appellant] should limit the amount
of time that he spends commuting particularly sitting in a car or using public transportation.
Ideally, he should find a job that allows him to have a short commute and a full day at work.”

2

On January 28, 2013 OWCP authorized computer technology training for appellant from
January 28 to June 7, 2013. Appellant successfully completed a 90-day training course for the
position of office technician on May 6, 2013. On May 14, 2013 OWCP’s rehabilitation
specialist changed the status of his vocational rehabilitation to job placement with a new
employing establishment in the areas of information clerk, administrative assistant, and
receptionist.
The rehabilitation counselor, in reports dated June 23 and 30, 2013, described the job
search services provided.
OWCP closed vocational rehabilitation services on August 9, 2013.
On March 12, 2014 OWCP expanded acceptance of appellant’s claim based
Dr. D’Ambrosio’s June 15 and 28, 2012 reports to include a permanent aggravation of right
localized primary osteoarthritis of the thigh and pelvic region.
The rehabilitation counselor completed a job classification for the position of
administrative assistant on September 27, 2014. The position was sedentary with a Specific
Vocational Preparation (SVP) of two to four years. The rehabilitation counselor advised that
appellant met the SVP through his work as a letter carrier and his training in software and
keyboard skills. The rehabilitation counselor indicated that state employment statistics indicated
that the position was reasonably available in his geographical area at a weekly wage of $529.00.
On October 6, 2014 OWCP notified appellant of its proposed reduction of his
compensation as he had the capacity to earn wages in the selected position of administrative
assistant. It found that the June 15 and 28, 2012 reports from Dr. D’Ambrosio established that
the position was within his physical capabilities and that the September 27, 2014 report from the
rehabilitation counselor confirmed vocational suitability.
In a progress report dated October 15, 2014, Dr. Joseph D’Angelo, an orthopedic
surgeon, discussed appellant’s history of a total right hip replacement. He noted that appellant
worked as a letter carrier and “will ultimately be able to return to regular duty though [at] the
present time [appellant] is struggling….”
Appellant, in a November 3, 2014 response, noted that he unsuccessfully searched for
employment. He advised that he had instability and pain in his hip after standing and walking
for brief periods and resubmitted May 2012 and January 2013 reports from Dr. Della Valle.
By decision dated November 6, 2014, OWCP reduced appellant’s compensation effective
November 16, 2014 based on its finding that he had the capacity to earn wages of $520.00 per
week as an administrative assistant. It utilized the formula set forth in Albert C. Shadrick to
calculate his loss of wage-earning capacity.3
In a report dated November 4, 2014 and received by OWCP on November 21, 2014,
Dr. Anna Dunevsky, a Board-certified physiatrist, evaluated appellant for right hip stiffness and
3

5 ECAB 376 (1943); codified by regulation at 20 C.F.R. § 10.403.

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pain that worsened with extensive standing or sitting. She diagnosed status post a work-related
right hip injury, status post total right hip replacement, gait abnormalities, and morbid obesity.
Dr. Dunevsky found that appellant was disabled from his usual employment.
On November 4, 2014 Dr. D’Angelo referred appellant for a magnetic resonance imaging
(MRI) scan to determine whether he had a herniated lumbar disc.4 On November 25, 2014 he
related that right hip x-rays showed sufficient alignment and referred appellant for a neurological
examination.
Dr. D’Angelo, in a work restriction evaluation dated December 2, 2014, diagnosed
traumatic degenerative joint disease of the right hip. He found that appellant could sit for five
hours, walk and stand for four hours, operate a motor vehicle at work and to and from work for
two hours, and push, pull, and lift up to five pounds for four hours per day.
On October 1, 2015 Dr. D’Angelo related that he treated appellant after September 15,
2006 and December 29, 2010 accidents. He noted that appellant had undergone a right hip
replacement on March 30, 2011 after which he experienced pain that worsened over the last
couple of years. Dr. D’Angelo discussed appellant’s symptoms of back pain and pain radiating
into the right lower extremity and groin and noticed that he had an antalgic gait. He related that
the left lower extremity was shorter than the right lower extremity by one and one-eight inches.
Dr. D’Angelo opined that the variation in leg length resulted in disabling back pain. He asserted,
“Based on my examination, [appellant] is totally disabled as a result of the leg length
discrepancy being over an inch.”
Dr. D’Angelo, on October 20, 2015, indicated that appellant was unable to work as an
administrative assistant as he could not travel to and from work or sit for prolonged periods. He
advised that appellant would need surgery including the right hip area to resolve the discrepancy
in leg length.
Counsel, on October 22, 2015, requested reconsideration. He maintained that the
accepted conditions should be expanded. Counsel further argued that the medical evidence from
Dr. D’Angelo established that appellant was unable to perform the position or commute to and
from work. He asserted that a conflict existed between Dr. D’Ambrosio and Dr. D’Angelo.
In a progress report dated November 24, 2014, Dr. D’Angelo advised that a lumbar spine
MRI scan showed degenerative changes and arthritis.
By decision dated April 1, 2016, OWCP denied modification of its November 6, 2014
decision. It found that appellant had failed to submit evidence establishing that he was unable to
perform the position of administrative assistant.
On appeal counsel asserts that an inability to commute is an acceptable reason for
refusing a job according to OWCP’s procedures.

4

On October 15, 2014 Dr. D’Angelo evaluated appellant for possible de Quervain’s stenosis of the right thumb.

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LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction of benefits.5 Under section 8115(a), wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent his wage-earning
capacity, or if the employee has no actual earnings, his wage-earning capacity is determined with
due regard to the nature of the injury, the degree of physical impairment, his usual employment,
age, qualifications for other employment, the availability of suitable employment, and other
factors or circumstances which may affect wage-earning capacity in his disabled condition.6
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his
physical limitations, education, age and prior experience.7 Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick8 will result in the percentage of the employee’s loss of
wage-earning capacity.
ANALYSIS
OWCP accepted that appellant sustained right hip and thigh strain and a permanent
aggravation of right localized primary osteoarthritis of the thigh and pelvic region due to a
December 29, 2010 employment injury. Appellant underwent a right total hip replacement on
March 30, 2011. He received compensation for total disability beginning February 14, 2011.
OWCP referred appellant to Dr. D’Ambrosio for a second opinion examination. On
June 15, 2012 Dr. D’Ambrosio diagnosed a right hip strain/sprain superimposed on preexisting
right hip osteoarthritis. He found that appellant was unable to perform his usual employment,
but could work eight hours in a sedentary or light position lifting no more than 10 pounds and
performing no stooping, squatting, or stair climbing. Dr. D’Ambrosio further determined that
appellant could sit, walk, stand, reach, perform repetitive movement, and operate a motor vehicle
at work and to and from work for eight hours per day.
In a supplemental report dated June 28, 2012, Dr. D’Ambrosio opined that appellant
could walk up to eight hours a day on even ground with limitations on pushing and pulling up to
10 pounds. The Board finds that OWCP properly referred appellant to vocational rehabilitation
5

T.O., 58 ECAB 377 (2007).

6

Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999).

7

Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000).

8

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

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on July 27, 2012 as Dr. D’Ambrosio’s opinion establishes that appellant was no longer totally
disabled due to residuals of his employment injury.9
On January 10, 2013 Dr. Della Valle discussed appellant’s complaints of discomfort
following his total hip replacement. He recommended that he limit appellant’s commuting time
and find a position ideally with a “short commute and a full day at work.”
The Board also finds that OWCP properly determined that appellant had the capacity to
perform the duties of an administrative assistant. The position is classified as sedentary work
requiring lifting of up to 10 pounds, which is within the restrictions set forth by Dr. D’Ambrosio.
Dr. Della Valle further found that appellant could work full time with a short commute being an
optimal situation. The medical evidence, consequently, established that he had the requisite
physical ability to earn wages as an administrative assistant at the time OWCP reduced
appellant’s compensation benefits.
In assessing the claimant’s ability to perform the selected position, OWCP must consider
not only physical limitations, but also take into account work experience, age, mental capacity,
and educational background.10 The rehabilitation counselor determined that appellant had the
skills necessary to perform the position of administrative assistant based on his prior work as a
letter carrier and his job training in computer skills. He further found that the position was
reasonably available within the appropriate geographical area at a wage of $529.00 per week. As
the rehabilitation counselor is an expert in the field of vocational rehabilitation, OWCP may rely
on his opinion in determining whether the job is vocationally suitable and reasonably available.11
The Board finds that OWCP considered the proper factors, including the availability of suitable
employment, appellant’s physical limitations, and employment qualifications in determining that
he had the capacity to perform the position of administrative assistant.12 OWCP further properly
determined his loss of wage-earning capacity in accordance with the formula developed in
Shadrick and codified at 20 C.F.R. § 10.403.13 The Board thus finds that the position of
administrative
assistant
reflected
appellant’s
wage-earning
capacity
effective
November 16, 2014.
Subsequent to the reduction of his compensation, appellant submitted a November 4,
2014 report from Dr. Dunevsky. Dr. Dunevsky diagnosed status post a right hip injury at work
with a total hip replacement, gait abnormalities, and morbid obesity. She opined that appellant
9

See N.J., 59 ECAB 171 (2007).

10

Id.

11

Dorothy Jett, 52 ECAB 246 (2001).

12

See supra note 9.

13

See supra note 8. OWCP divided appellant’s employment capacity to earn wages of $529.00 a week by his
current pay rate of the position held when injured of $1,123.96 per week to find a 47 percent wage-earning capacity.
It multiplied the pay rate at the time of injury of $1,067.88 by the 47 percent wage-earning capacity percentage. The
resulting amount of $501.90 was subtracted from appellant’s date-of-injury pay rate of $1,067.88, which provided a
loss of wage-earning capacity of $565.98 per week. OWCP multiplied this amount by the appropriate compensation
rate of three-fourths which, after deductions, yielded compensation of $1,456.68 every four weeks.

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was unable to perform his regular work duties. The issue, however, is whether appellant could
perform the sedentary work duties of an administrative assistant. As Dr. Dunevsky does not
address the duties of that position, her report is of little probative value.14
Dr. D’Angelo provided a December 2, 2014 work restriction evaluation diagnosing
degenerative joint disease of the right hip and limiting appellant’s lifting to five pounds. He did
not, however, support appellant’s work restrictions with medical rationale. Medical conclusions
unsupported by rationale are of diminished probative value.15
In an October 1, 2015 evaluation, Dr. D’Angelo advised that appellant sustained
disabling back pain as a result of a leg length discrepancy. He did not, however, explain the
reason for the leg length discrepancy and back pain or attribute these conditions to the accepted
work injury. Consequently, Dr. D’Angelo’s opinion is of diminished probative value.
On appeal counsel maintains that appellant’s inability to commute is a valid reason for
refusing an offered position. In determining an employee’s wage-earning capacity, OWCP must
consider the degree of physical impairments from both injury-related and preexisting conditions,
but not impairments resulting from post injury or subsequently acquired conditions.16 As
discussed, appellant failed to submit medical evidence sufficient to establish that he was unable
to commute due to either a preexisting condition or the accepted work injury.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence of argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation effective
November 16, 2014 based on its finding that he had the capacity to earn wages as an
administrative assistant.

14

See Phillip S. Deering, 47 ECAB 692 (1996).

15

See P.M., Docket No. 12-0825 (issued November 6, 2012); Jacqueline L. Oliver, 48 ECAB 232 (1996).

16

See Gary L. Moreland, 54 ECAB 628 (2003); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Determining Wage-Earning Capacity Based on a Constructed Position, Chapter 2.816.3(b) (June 2013).

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ORDER
IT IS HEREBY ORDERED THAT the April 1, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 5, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Homer, LA, Employer
__________________________________________

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

Docket No. 17-0744
Issued: December 12, 2017

Case Submitted on the Record

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

JURISDICTION
On February 14, 2017 appellant filed a timely appeal from a December 14, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed since the last merit decision dated April 2, 2014 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 over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts of the case as presented in the
Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
On September 28, 1995 appellant, then a 45-year-old letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on September 2, 1995 he injured his back while turning
as he was descending steps of a customer’s house. He stopped work on September 26, 1995.
Appellant retired on Office of Personal Management (OPM) disability, effective April 25, 1997.
OWCP initially denied the claim by decision dated October 10, 1996 finding that the
evidence of record failed to establish that the injury occurred as alleged. Appellant requested
reconsideration and by decision dated March 19, 1997 OWCP denied modification of its prior
decision. He subsequently appealed to the Board. By decision dated July 6, 1999, the Board set
aside the October 10, 1996 and March 19, 1997 OWCP decisions and remanded the case to
OWCP.3 On remand, OWCP accepted appellant’s claim for L5-S1 herniated nucleus pulposus.4
Appellant then filed a claim for a schedule award (Form CA-7), which was denied by
decision dated April 3, 2001. He then requested reconsideration and by October 25, 2001
nonmerit decision, OWCP denied further merit review of the claim. Appellant appealed to the
Board and by decision dated August 23, 2002, the Board affirmed the April 3 and October 25,
2001 OWCP decisions.5
In a December 3, 2003 report, Dr. Ivy V. McGee-Reed, a treating physician specializing
in family medicine, noted appellant’s medical history, medication, and examination findings.
She noted diagnoses from x-ray interpretations and magnetic resonance imaging scans from 1995
to 2003 and opined that he was totally disabled due to his motor impairment.
On February 5, 2004 appellant filed a claim for a recurrence of disability (Form CA-2a)
due to his accepted September 2, 1995 employment injury. He noted that his last day of work for
the employing establishment was September 26, 1995. On the reverse side of the form, the
employing establishment noted that appellant had not returned to work following his injury.
In an August 31, 2004 attending physician’s report (Form CA-20), Dr. McGee-Reed
noted the accepted September 2, 1995 employment injury and diagnosed lumbar radiculopathy
and lumbar disc disorder. She indicated that appellant was totally disabled from work beginning
September 2, 1995 to the present.

2

Docket No. 97-1944 (issued July 6, 1999); Docket No. 02-0663 (issued August 23, 2002) Order Denying
Petition for Reconsideration, Docket No. 02-0663 (issued January 27, 2003).
3

Docket No. 97-1944 (issued July 6, 1999).

4

The record does not reflect that appellant received FECA disability wage-loss benefits after the acceptance of
his claim.
5

Docket No. 02-0663 (issued August 23, 2002).

2

On April 10, 2006 appellant filed a claim for a schedule award (Form CA-7). By
decision dated July 26, 2007, OWCP granted a schedule award for 24 percent right lower
extremity permanent impairment and 28 percent left lower extremity permanent impairment.
The period of the award ran from March 19, 2007 to January 30, 2010.
On April 24, 2008 OWCP received appellant’s occupational disease claim (Form CA-2)
dated April 18, 2008 alleging that his post-traumatic stress disorder had been aggravated by
factors of his employment. Appellant alleged that he first became aware of this condition and
the relationship to his federal employment on September 2, 1995.6
On August 23, 2011 OWCP referred appellant for a second opinion evaluation with
Dr. John Sklar, a Board-certified physiatrist, for an opinion regarding appellant’s accepted
condition and his work capacity.
In a September 20, 2011 report, Dr. Sklar, based upon a review of the medical evidence,
statement of accepted facts (SOAF), and physical examination, opined that appellant had fully
recovered from his accepted work injury and that his current disability was due to
nonemployment-related conditions.
In a November 30, 2011 report, Dr. John P. Sandifer, a treating physician specializing in
orthopedic surgery, noted his disagreement with Dr. Sklar’s report and conclusions.
On January 3, 2012 OWCP referred appellant to Dr. David Sanderson, Board-certified, in
orthopedic to resolve the conflict in the medical opinion evidence between Dr. Sklar and
Dr. Sandifer as to whether appellant was disabled from work due to his accepted employment
injury.
In a February 8, 2012 report, Dr. Sanderson, based upon a review of the medical opinion
evidence, SOAF, injury history, and physical examination, diagnosed status post L5-S1
discectomy with partial laminectomy, noncompensable lower extremities shrapnel wounds, and
noncompensable post-traumatic stress disorder. He opined that appellant had been disabled up to
his OPM retirement date. Dr. Sanderson explained that appellant’s disability thereafter was due
to his nonwork-related conditions. He opined that the accepted condition had resolved without
residuals or disability as he found no lower extremity muscle weakness or sensory deficits due to
the accepted back injury.
On August 16, 2012 appellant filed a claim for a recurrence of disability (Form CA-2a)
commencing May 15, 1996 causally related to the accepted September 2, 1995 employment
injury.
In an August 22, 2012 report, Dr. Sandifer noted that appellant was seen for his annual
physical and that he was last seen in March 2011. Diagnoses included moderate bilateral knee
degenerative joint disease and status postsurgery for herniated disc with bilateral radiculopathy,
and chronic back and lower extremity pain. Dr. Sandifer attributed all of appellant’s medical

6

The record does not reflect that OWCP issued a formal decision accepting or denying this claim.

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conditions to appellant’s accepted September 2, 1995 work injury. He concluded that appellant
was not a good candidate for any type of gainful employment.
In a September 5, 2012 letter, OWCP informed appellant that the evidence of record was
insufficient to establish his recurrence claim and noted that he had retired from the employing
establishment, effective April 25, 1997. It advised him regarding the medical and factual
evidence required to establish his claim and afforded him 30 days to provide the requested
information.
By decision dated November 21, 2012, OWCP denied appellant’s claim for a recurrence
of disability commencing January 31, 2010, the date his schedule award terminated, causally
related to his accepted September 2, 1995 employment injury.
On November 26, 2012 appellant requested an oral hearing before an OWCP hearing
representative, which was held on March 11, 2013.
By decision dated April 18, 2013, an OWCP hearing representative affirmed the denial of
appellant’s claim for a recurrence of disability. She found that the weight of the medical opinion
evidence rested with the opinion of the impartial medical examiner, Dr. Sanderson, that
appellant’s disability from work was due to nonwork-related factors.
In an October 22, 2012 report, Dr. Milan G. Mody, a treating Board-certified orthopedic
surgeon, diagnosed lumbar radiculitis, lumbar spondylosis, lumbago, cervicalgia, unbalanced
gait, and acquired spondylolisthesis. Under history, he noted a September 2, 1995 twisting
injury and fall at work.
Dr. Mody in reports dated December 19, 2012 and January 17 and November 16, 2013,
provided examination findings and diagnoses of gait abnormality, neck pain, low back/back pain,
acquired spondylolisthesis, and thoracic or lumbar radiculitis.
In a letter dated February 28, 2014, recorded March 6, 2014, appellant requested
reconsideration. He argued that there was no conflict in the medical opinion evidence and that
both Dr. Sklar and Dr. Sanderson opined that appellant continued to have residuals from his
accepted work injury.
In a decision dated April 2, 2014, OWCP denied modification. It found the evidence and
argument insufficient to establish appellant’s claim for recurrence of disability.
By form dated March 20, 2015 and received on April 2, 2015, appellant again requested
reconsideration.
By decision dated April 13, 2015, OWCP denied reconsideration as he submitted no new
evidence, nor raised a substantive new legal argument.
In a letter dated December 20, 2015 and received on December 28, 2015, appellant again
requested reconsideration. He argued that he was entitled to a merit review due to the delay in
OWCP’s processing his request for reconsideration and the processing of his claim. Appellant
also argued that OWCP did not provide any appeal rights with its decision and the Board should

4

remand the case for OWCP to issue a proper decision with appeal right. He noted that he was
submitting new evidence in support of his claim that he was entitled to wage-loss compensation.
Appellant also presented arguments regarding the lack of light-duty work, his fitness-for-duty
evaluation, and whether the verbal offer of a light-duty job complied with OWCP’s regulations.
He also argued the medical evidence he submitted and the employing establishment’s approval
of his disability retirement established that he was permanently disabled from performing his job
as a letter carrier due to his back condition.
In support of his request for reconsideration, appellant submitted new evidence. He also
resubmitted a January 8, 1996 report from Dr. Carl G. Goodman, an examining Board-certified
orthopedic surgeon, progress notes covering the period January 10, to November 6, 1996,7 and
an undated and unsigned duty status form (Form CA-17) with restrictions
In a January 15, 1996 progress note, Dr. Goodman, an examining Board-certified
orthopedic surgeon, reported that appellant was under his care for a back condition and indicated
that appellant was capable of performing light-duty work. He wrote that appellant was not
capable of carrying mail.
A January 16, 1996 routing slip from the Homer Postmaster certified that no light-duty
assignments were available.
In a February 9, 1996 report, Dr. Anil Nanda, a treating Board-certified neurosurgeon,
diagnosed a L5-S1 herniated disc and recommended surgery. He opined that it was possible that
the diagnosed condition had been caused by appellant’s employment injury.
The record contains a second page from a surgeon’s dictation regarding a May 15, 1996
operation which Dr. Nanda signed on May 17, 1996.8
Dr. Goodman, in a July 22, 1996 letter, wrote that appellant had been seen for leg and
low back pain which was consistent with a lumbar disc herniation. He opined that appellant’s
twisting injury while carrying mail caused his lumbar disc herniation and subsequent lumbar
surgery.
On August 19, 1996 Dr. Goodman diagnosed a large L5 disc herniation based on review
of a computerized axial tomography scan.
On November 20, 1996 the employing establishment requested that a fitness-for-duty
examination be conducted as appellant had been off work for 14 months due to back problems.
On December 20, 1996 the employing establishment requested that Dr. Tony Allerman,
Board-certified in occupational medicine, perform a fitness-for-duty examination.
On
January 30, 1997 Dr. Allerman submitted a report following his examination of appellant. He
concluded that appellant was capable of performing light-duty work with restrictions.
7

These notes do not contain any identification that a physician wrote them.

8

The Board notes that the record contains a previously submitted May 17, 1996 operative report from Dr. Nanda.

5

A January 21, 1997 functional capacity evaluation (FCE) report provided work
restrictions based on testing performed.
A February 13, 1997 medical assessment form completed by Dr. Anthony J. Bouligny, an
employing establishment physician specializing in internal medicine, recommended that a
specialist evaluate appellant. He also noted appellant’s restrictions.
OWCP also received a February 19, 1997 letter from the postmaster which informed
appellant that light-duty work within his restrictions was not available.
Notes dated April 21, 2015, provided examination findings and opined that appellant was
totally disabled from work.9 Diagnoses included moderate bilateral knee degenerative joint
disease, chronic back pain from progressive lumbar degenerative disc disease, and status
postsurgery for herniated disc with bilateral radiculopathy worse in the left leg.
By decision dated December 14, 2016, OWCP denied appellant’s December 28, 2015
request for reconsideration. It found that he had submitted an untimely request for
reconsideration and failed to demonstrate clear evidence of error in the denial of his recurrence
claim.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.10 It will not review a decision denying or terminating
a benefit unless the application for review is filed within one year of the date of that decision.11
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that OWCP’s final merit decision was in error.12
Its procedures state that OWCP will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth under section 10.607 of OWCP regulations,13 if the
claimant’s application for review shows clear evidence of error on the part of OWCP.14 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.15
9

The signature for the physician’s last name is illegible.

10

See J.W., 59 ECAB 507 (2008); Mary A. Ceglia, 55 ECAB 626 (2004).

11

20 C.F.R. § 10.607; see B.W., Docket No. 10-0323 (issued September 2, 2010); A.F., 59 ECAB 714 (2008);
Gladys Mercado, 52 ECAB 255 (2001). 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). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b)
(February 2016).
12

D.G., 59 ECAB 455 (2008); Cresenciano Martinez, 51 ECAB 322 (2000).

13

20 C.F.R. § 10.607.

14

See M.L., Docket No. 09-0956 (issued April 15, 2010); Robert G. Burns, 57 ECAB 657 (2006).

15

Andrew Fullman, 57 ECAB 574 (2006); Alberta Dukes, 56 ECAB 247 (2005).

6

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.16 The evidence must be positive, precise and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error. It is not enough to merely show that the evidence could be
construed so as to produce a contrary conclusion. This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP. To show
clear evidence of error, the evidence submitted must be of sufficient probative value to prima
facie shift the weight of the evidence in favor of the claimant and raise a substantial question as
to the correctness of OWCP’s decision.17
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.18 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.19
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.20 A right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.21 As appellant requested
reconsideration on December 28, 2015, more than one year after the last merit decision, dated
April 2, 2014, it was untimely filed. Consequently, he must demonstrate clear evidence of error
by OWCP in denying his claim for a recurrence of disability.22
The Board finds that appellant has not demonstrated clear evidence of error. The
underlying claim for compensation was denied as appellant had not established his alleged
recurrence of disability, as of January 31, 2010, the date his schedule award terminated. He
16

F.R., Docket No. 09-0575 (issued January 4, 2010); S.D., 58 ECAB 713 (2007); Joseph R. Santos, 57 ECAB
554 (2006).
17

J.S., Docket No. 10-0385 (issued September 15, 2010); D.D., 58 ECAB 206 (2006); Robert G. Burns, supra
note 14.
18

Supra note 11 at Chapter 2.1602.5(a) (February 2016); James R. Mirra, 56 ECAB 738 (2005).

19

See M.L., supra note 14; G.H., 58 ECAB 183 (2006); Jack D. Johnson, 57 ECAB 593 (2006).

20

20 C.F.R. § 10.607(a).

21

Robert F. Stone, 57 ECAB 292 (2005).

22

20 C.F.R. § 10.607(b); see Robert G. Burns, supra note 14.

7

subsequently did not submit substantial evidence to shift the weight of the evidence of record
and establish that the denial was in error.23
Appellant submitted a January 15, 1996 progress note from Dr. Goodman opining that
appellant was disabled from carrying mail. Also submitted were February 9, 1996 report
diagnosing a L5-S1 herniated disc and recommending surgery and a second page of May 17,
1995 operative report by Dr. Nanda. Dr. Goodman in a July 22, 1996 report opined that
appellant’s lumbar surgery and lumbar disc herniation to a twisting injury while delivering mail
and diagnosed a large L-5 disc herniation in an August 19, 1996 report. A January 30, 1997
fitness-for-duty report by Dr. Allerman finding that appellant was capable of working with
restrictions. A February 13, 1997 medical assessment form completed by Dr. Bouligny, an
employing establishment physician, noting restrictions and requesting a specialist examination.
None of these reports specifically address how the accepted L5-S1 herniated nucleus pulposus
caused a recurrence of disability on and after January 31, 2010 and how OWCP erred in issuing
its decision. The record also contains an April 21, 2015 report from a physician with an illegible
signature opining that appellant was totally disabled from work. As the author cannot be
identified as a physician, it is of no probative value.24
Appellant also submitted a January 16, 1996 routing slip from the postmaster stating no
light-duty assignments were available, a January 21, 1997 FCE report, and a February 19, 1997
letter from the postmaster that no light-duty jobs were available within his work restrictions. He
argued that light duty was not properly offered to him. None of this evidence or argument
discusses whether the restrictions or lack of light-duty jobs was for restrictions due to appellant’s
accepted employment injury. Further, appellant does not explain how this evidence addresses a
recurrence of disability on and after January 31, 2010 causally related to the accepted L5-S1
herniated nucleus pulposus.
The Board has held that even a report such as a detailed, well-rationalized medical report,
which if submitted before the denial was issued would have created a conflict in medical
evidence requiring further development, is not sufficient to demonstrate clear evidence of error.25
OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard.26 The Board finds that none of the evidence appellant submitted is sufficient
to demonstrate clear evidence of error in the denial of his recurrence claim.
On appeal appellant argues the merits of his claim, contending that OWCP erred in
finding a conflict in the medical opinion evidence, that the employing establishment failed to
submit medical evidence, and OWCP relied on stale medical evidence. As previously noted, the
Board does not have jurisdiction over the merits of the claim and appellant has not presented
evidence or argument that raises a substantial question as to the correctness of OWCP’s decision
for which review is sought.
23

I.S., Docket No. 08-1020 (issued September 16, 2008); James R. Mirra, supra note 18.

24

See Merton J. Sills, 39 ECAB 572, 575 (1988); see also C.H., Docket No. 17-1568 (issued October 26, 2017).

25

A.R., Docket No. 15-1598 (issued December 7, 2015); James R. Mirra, supra note 18.

26

See G.V., Docket No. 14-1270 (issued February 1, 2016); James R. Mirra, id.

8

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 14, 2016 is affirmed.
Issued: December 12, 2017
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Petersburg, FL Employer
__________________________________________

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

Docket No. 09-629
Issued: September 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 5, 2009 appellant filed a timely appeal of the September 25, 2008 decision of
the Office of Workers’ Compensation Programs finding that he had three percent impairment of
his left upper extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has more than three percent impairment of his left upper
extremity, for which he received a schedule award.
FACTUAL HISTORY
On July 12, 2003 appellant, then a 41-year-old mail carrier, filed an occupational disease
alleging that he developed left shoulder and elbow pain beginning June 17, 2003, which he
attributed to his job duties. The Office accepted his claim for left shoulder impingement
syndrome and left epicondylitis.

On July 5, 2006 Dr. David P. Kalin, a family practitioner, examined appellant and found
that his left shoulder demonstrated tenderness over the anterior glenohumeral joint with full
range of motion without deformity, swelling, crepitation or discoloration; the left elbow also
demonstrated tenderness over the lateral epicondyle with full range of motion and normal
neurovascular status. He diagnosed post-traumatic chronic pain, left shoulder and elbow
secondary to capsulitis and epicondylitis and boney island lateral humeral head. Dr. Kalin also
diagnosed history of intermittent dysesthesia from the left forearm to the fourth and fifth fingers
suggestive of left ulnar nerve entrapment and cubital tunnel syndrome. He opined that appellant
had reached maximum medical improvement, but stated, “Marginal improvement may be
achieved subsequent to review of additional recommended diagnostic studies….”
Dr. Samy F. Bishai, an orthopedic surgeon, examined appellant on March 8 and July 12,
2007 and found slight tenderness overlying the lateral humeral epicondyle with almost full range
of motion. Regarding appellant’s left shoulder, he found tenderness overlying the anterior and
lateral as well as the posterior aspect of the left shoulder. Appellant’s left shoulder range of
motion gradually increased and by July 12, 2007 was forward elevation of 130 degrees;
backward elevation of 30 degrees; abduction 130 degrees; adduction of 25 degrees, external
rotation of 75 degrees and internal rotation of 30 degrees. On October 25, 2007 Dr. Bishai
advised that appellant’s range of motion had stabilized. He found that appellant had 11 percent
impairment of the upper extremity based on the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) due to loss of
range of motion of the left shoulder.
Appellant requested a schedule award on December 12, 2007. The district medical
adviser reviewed the medical records on January 18, 2008 and opined that he had not yet reached
maximum medical improvement. He recommended a second opinion evaluation and noted that
appellant had not declined surgical treatment.
On March 20, 2008 Dr. Bishai opined that appellant had reached maximum medical
improvement as of October 25, 2007. He provided findings on examination. The district
medical adviser reviewed the medical evidence on April 15, 2008 and noted appellant’s accepted
and diagnosed condition of impingement syndrome with degenerative arthritis of the acromial
joint, which had resisted conservative treatment. He opined that surgery was usually indicated to
prevent a possible rotator cuff tear. The district medical adviser queried whether arthroscopic
surgery had been considered.
The Office determined that there was a conflict of medical opinion evidence regarding
whether appellant had reached maximum medical improvement. It referred him for an impartial
medical evaluation with Dr. George Canizares, a Board-certified orthopedic surgeon, on
July 14, 2008. In a report dated July 29, 2008, Dr. Canizares noted appellant’s history of injury
and found no gross signs of atrophy on the upper extremity with pain along the parascapular
region of the left shoulder. Appellant had forward elevation from 0 to 150 degrees with external
rotation of 50 degrees. Dr. Canizares opined that appellant might benefit from some therapy and
injections, which he declined. He found that appellant was at maximum medical improvement
on October 25, 2007. Appellant had retained internal rotation to “T10;” external rotation from
50 to 60 degrees and forward elevation to 150 degrees. Dr. Canizares did not list backward

2

elevation, abduction or adduction, noting that these measurements were not applicable. He
recommended an impairment rating of 11 percent.
The district medical adviser reviewed the medical reports and stated, “The referee
examination on July 29, 2008 provide objective findings of quite good [range of motion of the
left] shoulder.” He recommended three percent impairment of the left upper extremity. The
district medical adviser noted that 150 degrees of forward elevation was two percent impairment,
that 150 degrees of abduction was one percent impairment and that “80” degrees of internal
rotation and 60 degrees of external rotation were not ratable impairments.
By decision dated September 25, 2008, the Office granted appellant a schedule award for
three percent impairment of the left upper extremity.
On appeal, appellant contends that the opinion of Dr. Bishai should be accorded the
weight of the medical evidence and established 11 percent impairment of his left upper
extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 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, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.3 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.4
Before the A.M.A., Guides can be utilized, a description of appellant’s impairment must
be obtained from a physician. In obtaining medical evidence required for a schedule award, the
evaluation made by the physician must include a description of the impairment including, where
applicable, the loss in degrees of active and passive motion of the affected member or function,
the amount of any atrophy or deformity, decreases in strength or disturbance of sensation or
other pertinent descriptions of the impairment. This description must be in sufficient detail so

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999).

3

Id.

4

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

3

that the claims examiner and others reviewing the file will be able to clearly visualize the
impairment with its resulting restrictions and limitations.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 an examination.6 The implementing regulations 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 of an Office medical adviser or consultant, 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 had no
prior connection with the case.7
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 proper factual and medical background must be given special weight.8
ANALYSIS
The Office accepted that appellant sustained left shoulder impingement syndrome and
left epicondylitis due to factors of his federal employment. Appellant’s attending physician,
Dr. Bishai, an orthopedic surgeon, opined that appellant had reached maximum medical
improvement on October 25, 2007. The district medical adviser reviewed the medical records
and noted that surgery was an appropriate treatment for shoulder impingement. As appellant did
not appear to have considered surgery as an option, he was not at maximum medical impairment.
The Office properly found a conflict of medical opinion evidence regarding whether he had
reached maximum medical improvement on the grounds that there were additional treatment
options available that he had not considered.
The Office referred appellant Dr. Canizares, a Board-certified orthopedic surgeon, to
determine whether he had reached maximum medical improvement. Dr. Canizares opined that
appellant might benefit from additional therapy and injections, but advised that he was not
interested in additional treatment. He determined that appellant had reached maximum medical
improvement on October 25, 2007, as noted by Dr. Bishai. This report is based on a proper
history of injury and provides sufficient reasoning to resolve the existing conflict regarding
whether appellant had reached maximum medical on October 25, 2007.
Dr. Canizares provided findings on physical examination. Appellant had retained
internal rotation to “T10;” external rotation from 50 to 60 degrees and forward elevation to 150
degrees. Dr. Canizares did not list backward elevation, abduction or adduction, noting that these
measurements were not applicable. He recommended an impairment rating of 11 percent of the
5

Robert B. Rozelle, 44 ECAB 616, 618 (1993).

6

5 U.S.C. §§ 8101-8193, 8123.

7

20 C.F.R. § 10.321.

8

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

4

left upper extremity. The district medical adviser reviewed Dr. Canizares’ report and relied upon
the range of motion measurements provided to rate permanent impairment.
The Board finds that Dr. Canizares did not provide full listing of range of motion to the
left shoulder in of degrees of motion. Dr. Canizares did not provide a numerical value for
appellant’s internal rotation such that a layperson could correlate this finding with the A.M.A.,
Guides. He also failed to provide measurements for backward elevation, abduction or adduction.
Dr. Canizares found that appellant had 11 percent impairment of the left upper extremity due to
loss of motion without correlating his rating to the tables of the A.M.A., Guides. He did not
address whether there was any sensory or motor loss.
The district medical adviser utilized the report of Dr. Canizares to make an impairment
rating based on range of motion to the shoulder. He did not consider Dr. Bishai’s findings,
addressing backward elevation, abduction or adduction. Rather, it appears that he assumed that
these measurements were normal based on “not applicable” designation in Dr. Canizares report.
The Board will remand the case for additional development of one medical evidence. On
remand, the Office should obtain findings on physical examination, including all shoulder range
of motion measurements and such other factors that contribute to impairment of appellant’s left
arm. After such development as the Office deems necessary, it should issue an appropriate
decision.
CONCLUSION
The Board finds that the case is not in posture for decision regarding the extent of
permanent impairment to appellant’s left arm.

5

ORDER
IT IS HEREBY ORDERED THAT the September 25, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: September 15, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 14-456
Issued: June 3, 2014

Case Submitted on the Record

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

JURISDICTION
On December 23, 2013 appellant, through his attorney, filed a timely appeal from the
September 30, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has more than three percent permanent impairment of his
right arm, for which he received a schedule award.

1
2

5 U.S.C. §§ 8101-8193.

In its September 30, 2013 decision, OWCP determined that appellant was entitled to waiver of an overpayment
of compensation. Given this nonadverse determination, the matter is not currently before the Board. See 20 C.F.R.
§ 501.3.

FACTUAL HISTORY
On August 3, 2010 OWCP accepted that appellant, then a 54-year-old building
equipment mechanic, sustained right carpal tunnel syndrome due to performing his repetitive
work duties over time.
On August 10, 2010 appellant filed a claim (Form CA-7) for a schedule award due to his
accepted work injury.
In a March 24, 2011 report, Dr. Nicholas Diamond, an attending osteopath, discussed his
review of the medical records and the results of his physical examination and provided an
opinion that appellant had a seven percent permanent impairment of his right arm under the
standards of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009). He made reference to Table 15-23 (Entrapment/
Compression Neuropathy Impairment) on page 449 of the sixth edition of the A.M.A., Guides.3
Dr. Diamond chose grade modifiers from the table for the various categories, including test
findings (grade modifier 2), history (grade modifier 3), and physical findings (grade modifier 3).
Regarding the grading of the test findings category, he made reference to appellant’s March 16,
2010 electromyogram (EMG) testing. Dr. Diamond discussed appellant’s daily symptoms with
respect to history and his grip, pinch and sensation findings with respect to physical findings.4
He then averaged the grade modifiers and chose the default value of eight percent for the grade
modifier category. Appellant’s functional scale of 54 reduced the right arm impairment from
eight percent to seven percent.5
On August 27, 2011 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, reviewed the opinion of Dr. Diamond and determined that
appellant had five percent permanent impairment of his right arm under the standards of the sixth
edition of the A.M.A., Guides. He indicated that, applying Table 15-23, he disagreed with
Dr. Diamond’s assignment of grade modifier values. Dr. Berman stated:
“[T]est findings indicate motor conduction block, Grade 2 based upon test
findings, history significant intermittent symptoms, grade modifier 2. [P]hysical
examination by Dr. Diamond demonstrated normal two-point discrimination of
the right hand at [four millimeters], grip strength was slightly reduced on the right
compared to the left, however, was within normal limits. The Phalen’s test was
noted to be negative, as was the Tinel’s test on examination by Dr. Diamond.
There was no evidence of decreased sensation. Therefore, this represented grade
modifier 1. Therefore, the calculation is 2 plus 2 plus 1 equals 5 divided by 3, 1.6,
3

A.M.A., Guides 449, Table 15-23 (6th ed. 2009).

4

Dr. Diamond indicated that grip strength testing performed via Jamar Hand Dynamometer at Level III revealed
32 kilograms of force strength in the right hand versus 51 kilograms of force strength in the left hand. Pinch key
unit revealed 7.5 kilograms in the right hand versus 10 kilograms in the left hand. Semmes-Weinstein
Monofilament testing revealed a diminished sensibility of the right hand and two-point discrimination was four
millimeters in the right hand.
5

Id.

2

rounded off to 2. Therefore, this represents grade modifier 2 with a Grade C default
value midpoint five percent impairment. Based upon this evaluation, the
[QuickDASH] score is 54, which is grade modifier 2 and does not increase it.
Therefore, the recommendation is five percent impairment.”
By decision dated March 9, 2012, OWCP granted appellant a schedule award for five
percent permanent impairment of his right arm. The award ran for 15.6 weeks from March 24 to
July 11, 2011 and was based on the impairment rating of Dr. Berman.
In a May 11, 2012 decision, an OWCP hearing representative set aside OWCP’s
March 9, 2012 schedule award decision. OWCP was directed to refer the case file to Dr. Berman
for a supplemental opinion regarding as to why Dr. Diamond’s grade modifier determinations
were improper.
In a May 14, 2012 supplemental report, Dr. Berman further discussed why appellant’s
history and the findings on physical examination and diagnostic testing justified his opinion that
appellant had a grade modifier 2 for test findings, a grade modifier 2 for history and a grade
modifier 1 for physical findings. He continued to indicate that appellant had five percent
permanent impairment of his right arm.
By decision dated June 1, 2012, OWCP granted appellant a schedule award for a five
percent permanent impairment of his right arm based on the opinion of Dr. Berman.
In a December 4, 2012 decision, an OWCP hearing representative remanded the case to
OWCP in order to refer appellant for a second opinion evaluation regarding the permanent
impairment of his right arm.
On February 26, 2013 OWCP referred appellant to Dr. Robert Draper, Jr., a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a February 26, 2013 report,
Dr. Draper provided a history of appellant’s injury and reported the findings of his physical
examination. He determined that appellant had five percent permanent impairment of his right
arm under the standards of the sixth edition of the A.M.A., Guides. Dr. Draper’s impairment
calculation was based on his opinion that appellant had a grade modifier 2 for test findings, a
grade modifier 2 for history and a grade modifier 2 for physical findings. He indicated that
appellant’s diagnostic testing showed motor conduction block, that he had significant
intermittent symptoms and that his physical examination showed some decreased light touch
sensation over the right index finger. Dr. Draper indicated that appellant’s functional scale did
not change his right arm impairment from the default value of five percent.
On March 8, 2013 Dr. Morley Slutsky, a Board-certified occupational medicine physician
serving as an OWCP medical adviser, determined that appellant had a three percent permanent
impairment of his right arm under the standards of the sixth edition of the A.M.A., Guides. His
impairment calculation was based on his opinion that appellant had a grade modifier 1 for test
findings, a grade modifier 1 for history and a grade modifier 1 for physical findings. Dr. Slutsky
stated:
“I used Dr. Draper’s exam[ination] and he incorrectly assigned a score of 2 for
physical findings. [Dr. Draper] indicated there was median nerve motor block
3

without an explanation as to how he arrived at this conclusion. The
electrodiagnostic findings do not meet the criteria for median nerve conduction
block using Appendix 15-B, page 487 [of the sixth edition of the A.M.A.,
Guides]. I agree with the functional scale score. Appellant’s final average [grade
modifier] is 1 (as opposed to the 2 assigned by Dr. Draper).”
In a March 13, 2013 decision, OWCP determined that appellant has a three percent
permanent impairment of his right arm as opposed to the five percent impairment for which a
schedule award was previously awarded.
By letter dated March 14, 2013, OWCP advised appellant of its preliminary
determination that he received an overpayment of compensation in the amount of $4,828.75
based on the determination that he was only entitled to a schedule award for three percent
permanent impairment of his right arm. It also made a preliminary determination that appellant
was without fault in the creation of the overpayment and provided him an opportunity to request
waiver of recovery of the overpayment.
During a July 15, 2013 hearing before an OWCP hearing representative, counsel argued
that there was a conflict in the medical opinion evidence between the impairment rating of
Dr. Diamond and the impairment ratings of Drs. Berman, Draper and Slutsky.
In a September 30, 2013 decision, OWCP affirmed its March 13, 2013 schedule award
determination that appellant had no more than a three percent permanent impairment of his right
arm.6
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.9 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.10

6

Due to appellant’s financial circumstances, OWCP also granted appellant’s request for waiver of recovery of the
$4,828.75 overpayment of compensation.
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404 (1999).

9

Id.

10

FECA Bulletin No. 09-03 (issued March 15, 2009).

4

Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.11 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.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 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.14
ANALYSIS
OWCP accepted right carpal tunnel syndrome and found that appellant had three percent
permanent impairment of his right arm based on the impairment rating of Dr. Slutsky, a Boardcertified occupational medicine physician serving as an OWCP medical adviser.
The Board finds that there is a conflict between the impairment rating of Dr. Diamond, an
attending osteopath, and the impairment rating of Dr. Slutsky. The impairment rating of
Dr. Diamond also conflicts with and creates a conflict with the impairment ratings of
Dr. Berman, a Board-certified orthopedic surgeon serving as an OWCP medical adviser, and the
impairment rating of Dr. Draper, a Board-certified orthopedic surgeon who served as an OWCP
referral physician.
In a March 24, 2011 report, Dr. Diamond provided an opinion that appellant had a seven
percent permanent impairment of his right arm under the standards of the sixth edition of the
A.M.A., Guides. He made reference to Table 15-23 (Entrapment/Compression Neuropathy
Impairment) on page 449 and chose grade modifiers from the table for the various categories,
including test findings (grade modifier 2), history (grade modifier 3), and physical findings
(grade modifier 3). Regarding the grading of the test findings category, Dr. Diamond made
reference to appellant’s March 16, 2010 EMG testing. He discussed appellant’s daily symptoms
with respect to history and his grip, pinch and sensation findings with respect to physical
findings. Dr. Diamond then averaged the grade modifiers and chose the default value of eight
percent for the grade modifier category. Appellant’s functional scale of 54 reduced the right arm
impairment from eight percent to seven percent.
11

See A.M.A., Guides 449, Table 15-23.

12

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
functional scale score. Id. at 448-49.
13

5 U.S.C. § 8123(a).

14

William C. Bush, 40 ECAB 1064, 1975 (1989).

5

In contrast, OWCP’s physicians of record calculated different impairment ratings for
appellant’s right arm because they had differing opinions regarding appellant’s grade modifier
values. In August 27, 2011 and May 14, 2012 reports, Dr. Berman determined that appellant had
a five percent permanent impairment of his right arm under the standards of the sixth edition of
the A.M.A., Guides. This determination was based on his opinion that appellant had a grade
modifier 2 for test findings, a grade modifier 2 for history and a grade modifier 1 for physical
findings. In a February 26, 2013 report, Dr. Draper determined that appellant had a five percent
permanent impairment of his right arm under the standards of the sixth edition of the A.M.A.,
Guides. His impairment calculation was based on his opinion that appellant had a grade modifier
2 for test findings, a grade modifier 2 for history and a grade modifier 2 for physical findings.
On March 8, 2013 Dr. Slutsky determined that appellant had three percent permanent
impairment of his right arm under the standards of the sixth edition of the A.M.A., Guides. His
impairment calculation was based on his opinion that appellant had a grade modifier 1 for test
findings, a grade modifier 1 for history and a grade modifier 1 for physical findings.
Consequently, the case must be referred to an impartial medical specialist to resolve the
conflict in the medical opinion evidence between the impairment rating of Dr. Diamond and the
impairment ratings of OWCP’s physicians (Drs. Berman, Draper and Slutsky) regarding the
extent of appellant’s right arm impairment. On remand OWCP should refer appellant, along
with the case file and the statement of accepted facts, to an appropriate specialist for an impartial
medical evaluation and report including a rationalized opinion on this matter. After such further
development as it deems necessary, OWCP should issue an appropriate decision regarding
appellant’s schedule award claim.
CONCLUSION
The Board finds that there is a conflict in the medical opinion evidence regarding whether
appellant has more than three percent permanent impairment of his right arm and the case is
remanded to OWCP for further development of the medical evidence.

6

ORDER
IT IS HEREBY ORDERED THAT the September 30, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: June 3, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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)
)
)
)
)
)
)

Appearances:
Joanne Marie Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0215
Issued: July 15, 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 November 6, 2018 appellant, through her representative, filed a timely appeal from a
May 29, 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 her burden of proof to establish an emotional
condition causally related to the accepted December 1, 2016 employment incident.
FACTUAL HISTORY
On December 8, 2016 appellant, then a 36-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 1, 2016 she sustained an emotional condition as a
result of a “shooting on route that started with a gang fight.”3 She stopped work on the date of
injury.4
In a December 1, 2016 statement, appellant explained that at approximately 10:00 a.m. on
that date, she was performing her job duties when she witnessed a gang fight that led to a shooting.
She described a male in the area who walked to a vehicle and grabbed a gun from the vehicle. He
then walked to the crowd with the gun underneath his shirt. Appellant stated that she ran back to
her work vehicle. While she was in the vehicle, shots were fired. She then called her supervisor
in a panic and returned to the station.
On December 12, 2016 Dr. Dwight L. McKenna, a family practitioner, examined appellant
and noted a history of injury on December 1, 2016 when she witnessed a shooting on her route.
He diagnosed stress reaction and anxiety, which he attributed to appellant’s employment.5
Dr. McKenna advised that appellant would be able to resume her full duties on February 6, 2016.
He also completed a duty status report (Form CA-17).
By development letter dated December 23, 2016, OWCP informed appellant that the
evidence of record was insufficient to establish her claim. It advised her of the factual and medical
evidence necessary to establish her claim and also provided a questionnaire for completion.
OWCP afforded appellant 30 days to submit the necessary factual information and medical
evidence.
In a report dated January 10, 2017, Dr. Angela Traylor, a Board-certified neurologist and
psychiatrist, indicated that she treated appellant for complaints of depression and anxiety. She
related that on December 1, 2016 appellant was on her route delivering mail when a gang fight
broke out. Appellant ran back to her vehicle and heard gun shots. Dr. Traylor reported that
appellant began feeling paranoid, was unable to sleep, and had difficulty thinking. She also
reported additional “stressors” of the death of her sister on November 14, 2016, being accused of
“making up her feelings” by a superior at work, and a December 2014 incident when a man
3

Appellant described her condition as a brain trauma.

4
The present claim was assigned OWCP File No. xxxxxx897. The Board notes that OWCP previously accepted a
prior claim involving a December 13, 2013 employment incident where a man exposed himself. OWCP assigned that
claim File No. xxxxxx309 and accepted it for anxiety state, unspecified and post-traumatic stress disorder (PTSD).
These claims have not been administratively combined by OWCP.
5
Dr. McKenna checked the “Yes” box in the attending physician’s portion of an authorization for examination
and/or treatment (Form CA-16), Part B, but left the space for an explanation regarding causal relationship blank.

2

exposed himself to her while she was delivering mail. Upon examination, Dr. Traylor observed
that appellant’s mood and affect were described as anxious and depressed. She diagnosed
adjustment disorder with depressed mood.
In progress notes dated January 17 and February 9, 2017, Dr. Traylor related that appellant
continued to feel paranoid, had difficulty thinking, and difficulty sleeping. Appellant reported that
she had not been leaving her home because she was afraid that she would encounter the shooter
from the December 1, 2016 incident. Dr. Traylor conducted an examination and diagnosed
adjustment disorder with mixed disturbance of emotions and conduct.
In a January 17, 2017 work capacity evaluation form (Form OWCP-5c), Dr. Traylor noted
that appellant was unable to work eight hours a day and indicated that she was “suffering from
anxiety and depression after witnessing violence at work.”
OWCP referred appellant, along with a statement of accepted facts (SOAF) and the medical
record, to Dr. Talaat H. Mohamed, a Board-certified psychiatrist, for a second opinion evaluation
to determine whether she sustained a work-related emotional condition on December 1, 2016. The
SOAF noted that appellant had preexisting anxiety due to her December 13, 2013 employment
injury under OWCP File No. xxxxxx309. In a report dated March 17, 2017, Dr. Mohamed
indicated that he had evaluated appellant on March 6, 2017 for depression and anxiety. He related
that appellant was distributing and collecting mail on her route when she witnessed a gang fight
and people shooting on the side of the road. Dr. Mohamed also described another traumatic
incident that occurred on December 13, 2013 when a man approached appellant while she was
delivering mail and exposed himself to her.6
Dr. Mohamed conducted a mental status examination. He reported that appellant’s affect
was normal and her mood exhibited depression, mourning, and grief. Dr. Mohamed explained that
appellant exhibited signs and symptoms related to the recent death of her sister and normal feelings
of mourning and grief. He also reported that appellant was somewhat obsessed with the incident
of a man who exposed himself to her and opined that these symptoms “appear[ed] to be due to the
influence of certain unconscious conflicts due to past traumatic experience repressed in the
unconscious ‘Freud’ since early childhood and adolescence.” Dr. Mohamed diagnosed adjustment
reaction of adulthood, paternal deprivation, unspecified anxiety disorder due to grief and mourning
of her dead sister with generalized anxiety disorder, personality disorder (deferred), and normal
physical and social condition. He concluded that appellant showed no signs or symptoms of posttraumatic stress disorder, no major depression, and no phobic reaction at the present time.
In response to OWCP’s questions, Dr. Mohamed opined that appellant’s emotional
conditions of depression, anxiety, and fear was not due to witnessing a gang-related shooting or
witnessing a man exposing himself. He indicated that appellant’s incomplete mourning and grief
due to the death of her sister had led to minor depression. Dr. Mohamed also reported that
appellant had received adequate supportive individual psychotherapy from a psychiatrist and was
receiving antidepressant medication. He related that appellant was able to be employed at the
employing establishment for five to six hours a day and slowly increase to eight hours a day.
6

See supra note 4.

3

In a progress note dated March 14, 2017, Dr. Traylor indicated that appellant was evaluated
by an OWCP doctor and felt that she needed to go back to work due to financial reasons. She
related that appellant was sleeping better with medication and had been leaving her home more
often. Upon examination, Dr. Traylor reported that appellant’s mood was “anxious and
depressed.” She diagnosed adjustment disorder with mixed disturbance of emotions and conduct.
By decision dated April 6, 2017, OWCP denied appellant’s claim. It accepted that the
December 1, 2016 employment incident constituted a compensable employment factor, but denied
her claim finding insufficient medical evidence to establish a medical diagnosis causally related to
the accepted compensable employment factor. OWCP concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
On March 15, 2018 appellant requested reconsideration.
Appellant submitted additional medical evidence from Dr. Traylor dated April 11 and
June 6, 2017. Dr. Traylor related that appellant had returned to work two weeks ago and was
feeling “increasingly stressed” since returning to work. Appellant indicated that she was back on
her same route and was worried that she could be killed. Dr. Traylor reported that upon
examination, appellant’s mood and affect were angry, anxious, and depressed. She diagnosed
adjustment disorder with mixed disturbance of emotions and conduct.
In progress notes dated July 18 to November 28, 2017, Dr. Traylor indicated that appellant
was no longer working her old route and had not had any panic attacks since her last visit.
Appellant noted that she was still on her medication and was sleeping better at night. Dr. Traylor
conducted a mental status examination and observed “ok” mood and that her affect was appropriate
to context. She diagnosed adjustment disorder with mixed disturbance of emotions and conduct.
In a narrative psychological evaluation report dated January 15, 2018, Dr. Richard John
Wakeman, a psychologist, noted that appellant worked as a letter carrier. He described that on
December 1, 2016 she was delivering mail on her route when she witnessed a shooting.
Dr. Wakeman indicated that appellant was now afraid that the shooter knows her face and would
come to “get her.” He related appellant’s complaints of trouble sleeping, nightmares, “up and
down” appetite, low energy, and poor short-term memory. Appellant reported that she has frequent
flashbacks and gets depressed about her recall of the event. Dr. Wakeman noted that appellant’s
sister died in November 2016, approximately one month before the shooting. He reported that
appellant’s Minnesota Multiphase Personality Inventory-II (MMPI-II) scores were invalid because
she responded in a very unusual manner and that her scores suggested her endorsement of extreme
items as a result of an inconsistent response pattern. Dr. Wakeman indicated that appellant’s
Millon Clinical Multiaxial Inventory-IV (MCMI-IV) results were valid and generated a clinical
syndrome consistent with PTSD. He concluded that appellant’s psychological testing data and
clinical interview data were consistent with chronic, severe PTSD.
By decision dated May 29, 2018, OWCP denied modification of the April 6, 2017 decision.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA7 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 of FECA,8 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.9 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.10
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional condition or
psychiatric disorder; (2) factual evidence identifying employment factor(s) or incident(s) alleged
to have caused or contributed to the condition; and (3) rationalized medical opinion evidence
establishing that his or her emotional condition is causally related to the identified compensable
employment factor(s) or incident(s).11
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.12 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factor(s) or
incident(s) must be based on a complete factual and medical background.13 Additionally, the
physician’s opinion must be expressed in terms of a reasonable degree of medical certainty, and
must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s) or incident(s).14
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP referred appellant, along with a SOAF and the medical record, to Dr. Mohamed for
a second opinion evaluation to determine whether she sustained a work-related emotional
7

Supra note 2.

8
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
9

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
10

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
11

See G.R., Docket No. 18-0893 (issued November 21, 2018); George H. Clark, 56 ECAB 162 (2004).

12

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

13

See M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

14

Id.

5

condition on December 1, 2016. The SOAF noted that appellant had preexisting anxiety due to
her December 13, 2013 employment injury under OWCP File No. xxxxxx309. It failed, however,
to include appellant’s preexisting PTSD, which was also accepted under OWCP File No.
xxxxxx309.
It is OWCP’s responsibility to provide a complete and proper frame of reference for a
physician by preparing a SOAF.15 OWCP’s procedures dictate that when an OWCP medical
adviser, second opinion specialist, or referee physician renders a medical opinion based on a SOAF
which is incomplete or inaccurate or does not use the SOAF as the framework in forming his or
her opinion, the probative value of the opinion is seriously diminished or negated altogether.16 As
Dr. Mohamed based his March 17, 2017 opinion on an incomplete SOAF, the Board finds that the
probative value of his opinion is diminished and insufficient to be afforded the weight of the
medical evidence.17
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence to see that justice
is done. As OWCP undertook development of the evidence by referring appellant to
Dr. Mohamed, it had the duty to secure an appropriate report based on an accurate factual and
medical background.18
Accordingly, this case will be remanded to OWCP for further development of the medical
evidence. On remand OWCP should administratively combine File Nos. xxxxxx897 and
xxxxxx309.19 It should then refer appellant along with an updated SOAF and a list of specific
questions to a new second opinion physician for a rationalized opinion regarding whether her
emotional condition is causally related to the accepted December 1, 2016 employment incident.
After this and any such further development as OWCP deems necessary, it shall issue a de novo
decision.20

15

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); see L.J., Docket No. 14-1682 (issued December 11, 2015).
17

See L.J., Docket No. 16-1852 (issued March 22, 2018).

18

See A.P., Docket No. 17-0813 (issued January 3, 2018); Richard F. Williams, 55 ECAB 343, 346 (2004).

19

OWCP’s procedures provide that cases should be administratively combined when correct adjudication of the
issues depends on frequent cross-referencing between files. For example, if a new injury case is reported for an
employee who previously filed an injury claim for a similar condition or the same part of the body, doubling is
required. See C.W., Docket Nos. 18-0011 & 18-1002 (issued June 11, 2019).
20

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 29, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.
Issued: July 15, 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