United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 19-0545
Issued: May 14, 2020

Case Submitted on the Record

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

JURISDICTION
On January 2, 2019 appellant filed a timely appeal from an August 15, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 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
The Board notes that following the August 15, 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.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than four
percent permanent impairment of the left lower extremity, for which she previously received a
schedule award.
FACTUAL HISTORY
On May 3, 1996 appellant, then a 34-year-old carrier technician, filed a traumatic injury
claim (Form CA-1) alleging that on May 2, 1996 she struck her left knee with the door of her
vehicle while in the performance of duty. OWCP accepted the claim for left knee strain. Appellant
stopped work on May 3, 1996 and returned to full-duty work on July 10, 1996. On March 25,
1997 she underwent an arthroscopic excision of plica and a partial synovectomy. Appellant was
removed from federal service as of November 14, 1997 for cause.
In a report dated November 10, 1997, Dr. Edward Feldman, an orthopedic surgeon, noted
that he was treating appellant for a May 2, 1996 employment injury to her knee. He advised that
she had undergone an arthroscopic procedure to the left knee that had resulted in degenerative
osteoarthritis and quadriceps atrophy. Dr. Feldman opined that, under the fourth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides)3, appellant had 15 percent permanent impairment of the left lower extremity as a result of
the procedure and her employment-related injury.
On November 26, 1997 appellant filed a claim for a schedule award (Form CA-7).
In a report dated February 12, 1998, Dr. Robert Henderson, a Board-certified orthopedic
surgeon, opined that appellant had reached maximum medical improvement (MMI). He found
that she had 15 percent permanent impairment of the left lower extremity due to patellofemoral
irregularities.
On March 4, 1998 OWCP referred appellant to Dr. Joel Scholten, a Board-certified
physiatrist, for a second opinion examination regarding the nature and extent of her current
condition and any related disability from employment. It further requested that he determine
whether she had reached MMI and rate the extent of any permanent impairment.
In a report dated March 20, 1998, Dr. Scholten discussed appellant’s complaints of right
knee pain radiating into the right medial leg and numbness and tingling into the toes. On
examination of the lumbar spine, he observed full lumbar range of motion (ROM), deep tendon
reflexes at 2+ and symmetric in the lower extremities, as well as strength at 5+, symmetric with
hip flexion and extension. On examination of the left lower extremity, Dr. Scholten noted
diminished pinprick sensation in the left saphenous nerve distribution, positive patellar
apprehension with medial distraction, minimal crepitance, pain to palpation over the knee, and
paresthesia. He measured ROM as full extension of the left knee and 130 degrees of flexion.
Dr. Scholten diagnosed patellofemoral syndrome of the left knee, quadriceps atrophy, saphenous

3

A.M.A., Guides (4th ed. 1993).

2

neuropathy, and pes anserine bursitis. He advised that appellant had not reached MMI, but
estimated that she would reach MMI in two or three months.
In a report dated April 13, 1998, a district medical adviser (DMA) indicated that he could
find no provision in the fourth edition A.M.A., Guides for rating an impairment due to
irregularities.4
On October 2, 1998 a DMA noted that Dr. Scholten had not provided a date of MMI.5
By letter dated January 29, 2018, appellant again requested a schedule award.
On February 1, 2018 OWCP referred appellant’s case to Dr. Michael M. Katz, a Boardcertified orthopedic surgeon serving as a DMA.
In a report dated February 14, 2018, Dr. Katz reviewed a statement of accepted facts
(SOAF) and the medical record. He initially opined that the impairment rating of Dr. Feldman
could not be accepted as probative medical evidence for the purpose of recommending a schedule
award, as he had failed to utilize the sixth edition of the A.M.A., Guides.6 Using the examination
of Dr. Scholten dated March 20, 1998, Dr. Katz calculated that appellant had four percent left
lower extremity permanent impairment. Utilizing Table 16-3 on page 509 of the sixth edition of
the A.M.A., Guides, the Knee Regional Grid, he identified the class of diagnosis (CDX) as class
1 bursitis with plica and consistent significant palpatory findings, which yielded a default
impairment rating of one percent. He applied a grade modifier for physical examination (GMPE)
of one. Dr. Katz concluded that the impairment class was not altered by grade modification and
found, therefore, that appellant had one percent permanent impairment of the left lower extremity
due to bursitis. He further found a class 1 impairment due to a sensory deficit of the saphenous
nerve pursuant to Table 16-12 on page 534 of the A.M.A., Guides, which yielded a default
impairment rating of three percent. Dr. Katz applied a grade modifier for functional history
(GMFH) of one, to find no change to the impairment class and a three percent left lower extremity
impairment due to sensory deficit of the saphenous nerve. He combined the one percent
impairment for the bursitis and the three percent impairment due to the sensory deficit of the
saphenous nerve to find four percent left lower extremity permanent impairment. Dr. Katz noted
that the A.M.A., Guides provided that impairment could not be rated using ROM. He found that
appellant had reached MMI on March 20, 1998, the date of Dr. Scholten’s examination.

4

By letter dated June 10, 1998, OWCP requested that Dr. Henderson respond to the DMA’s comments. No
response was received.
5
By letter dated October 5, 1998, OWCP informed appellant that without a date of MMI, OWCP was unable to
process her schedule award claim. On October 13, 1998 Dr. Scholten noted that he was no longer seeing private
patients and that he was unable to determine appellant’s date of MMI.
6
A.M.A., Guides (6th ed. 2009). Dr. Katz indicated that he had reviewed a November 10, 1997 report from
Dr. Henderson rather than Dr. Feldman; however, this appears to be a typographical error.

3

On June 13, 2018 OWCP referred appellant’s case to Dr. Seth Jaffe, a Board-certified
orthopedic surgeon.7
In a report dated July 6, 2018, Dr. Jaffe diagnosed status post left knee arthroscopy and
chondromalacia of the left patella. He opined that appellant would have obtained MMI within
three to six months after her March 25, 1997 surgery. Dr. Jaffe found that the only objective
abnormality on examination was patellofemoral crepitation. He opined that appellant had “no
impairment from the injury sustained as at the time of the injury and documentation there was no
impairment of motion or diminished cartilage interval on x-rays. Any symptoms present today are
the result of a degenerative problem that has occurred over time and is related to age.”
On July 25, 2018 appellant filed another claim for a schedule award (Form CA-7).
By decision dated August 15, 2018, OWCP granted appellant a schedule award for four
percent permanent impairment of the left lower extremity. The period of the award ran for 11.52
weeks from July 22 to October 10, 2018. OWCP noted that as appellant had received
compensation for disability through July 22, 2018, the starting date of the schedule award payment
had been adjusted to July 22, 2018.
LEGAL PRECEDENT
The schedule award provisions of FECA,8 and its implementing federal regulation,9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.10 The Board has approved the use by

7

On March 14, 2018 OWCP referred appellant’s case to Dr. John B. Bieltz, a Board-certified orthopedic surgeon,
for determination of her percentage of permanent impairment. In a report dated April 5, 2018, Dr. Bieltz diagnosed
left knee pain with patella chondromalacia and status post left knee arthroscopy and advised that she required no
further treatment needed. In a record of a telephone conversation (Form CA-110) dated May 16, 2018, OWCP
informed appellant that the April 5, 2018 report of Dr. Bieltz did not include a permanent impairment rating, and that
she had inquired as to the status of the rating. On a June 7, 2018 Form CA-110 OWCP indicated that it had advised
that it would schedule another second opinion appointment to obtain a rating of permanent impairment.
8

Supra note 2.

9

20 C.F.R. § 10.404.

10

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

4

OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 The sixth edition requires identifying the impairment CDX condition, which
is then adjusted by grade modifiers based on GMFH, GMPE, and clinical studies (GMCS).13 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through a DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale
for the percentage of impairment specified.15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than four
percent permanent impairment of her left lower extremity, for which she previously received a
schedule award.
In support of her schedule award claim, appellant submitted a report dated November 10,
1997 from Dr. Feldman, who found that she had reached MMI and had 15 percent permanent
impairment of the left lower extremity pursuant to the fourth edition of the A.M.A., Guides due to
patellofemoral irregularities. OWCP, however, currently uses the sixth edition of the A.M.A.,
Guides to calculate schedule awards. A medical opinion based on an incorrect edition of the
A.M.A., Guides is of diminished probative value in determining the extent of permanent
impairment.16
In a February 12, 1998 report, Dr. Henderson advised that appellant had 15 percent
permanent impairment of the left lower extremity due to patellofemoral irregularities. However,
he failed to reference the A.M.A., Guides or explain how he arrived at this impairment rating in
accordance with the relevant standards of the A.M.A., Guides.17 Thus, Dr. Henderson’s report

11

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

12

A.M.A., Guides (6th ed. 2009); p.3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
13

Id. at 411, 494-531.

14

Id.

15

P.R., Docket No. 18-0022 (issued April 9, 2018); supra note 10 at Chapter 2.808.6f (March 2017).

16

R.B., Docket No. 17-1704 (issued April 3, 2018).

17

B.B., Docket No. 18-0782 (issued January 11, 2019); James R Hill, Sr., 57 ECAB 583 (2006).

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lacks the probative value necessary to determine appellant’s permanent impairment for schedule
award purposes.18
In a March 20, 1998 report, Dr. Scholten upon examination observed full lumbar ROM,
deep tendon reflexes at 2+ and symmetric in the lower extremities, as well as strength at 5+,
symmetric with hip flexion and extension. On examination of the left lower extremity, he noted
diminished pinprick sensation in the left saphenous nerve distribution, positive patellar
apprehension with medial distraction, minimal crepitance, pain to palpation over the knee, and
paresthesia. Dr. Scholten measured ROM and full extension of the left knee to 130 degrees of
flexion. He diagnosed patellofemoral syndrome of the left knee, quadriceps atrophy, saphenous
neuropathy, and pes anserine bursitis.
In accordance with its procedures, OWCP referred the evidence of record to DMA
Dr. Katz. Preliminarily, Dr. Katz noted that Dr. Feldman’s 15 percent permanent impairment
rating could not be accepted, because it did not reference the correct edition of the A.M.A., Guides.
However, he applied the tables and provisions of the A.M.A., Guides to the clinical findings of
Dr. Scholten. Utilizing the results of Dr. Scholten’s examination on March 20, 1998, Dr. Katz
found that appellant had one percent permanent impairment due to class 1 bursitis using Table 163 on page 509 of the A.M.A., Guides, and three percent impairment due to class 1 sensory deficit
of the saphenous nerve. He applied a GMPE of one to the identified diagnosis of bursitis, and a
GMFH one for the sensory deficit of the saphenous nerve, resulting in zero adjustment from the
default values. Dr. Katz combined the impairment ratings to find four percent left lower extremity
permanent impairment. He further determined that the date of MMI was March 20, 1998, the date
of Dr. Scholten’s examination.
The Board finds that Dr. Katz adequately explained how he arrived at his rating of
permanent impairment by listing specific tables and pages in the A.M.A., Guides.19 The Board
also finds that he properly interpreted and applied the standards of the sixth edition of the A.M.A.,
Guides to conclude that appellant qualified for four percent permanent impairment of the left lower
extremity. Dr. Katz’ opinion, therefore, represents the weight of the medical evidence and
supports that appellant does not have left lower extremity impairment greater than the four percent
previously awarded.20
On appeal appellant contends that she has significant pain in her knees. However, there is
no current medical evidence of record, in conformance with the sixth edition of the A.M.A.,
Guides, establishing that she has more than four percent permanent impairment of the left lower
extremity. Accordingly, appellant has not established entitlement to schedule award compensation
greater than that previously awarded.21

18

F.S., Docket No. 16-0783 (issued September 26, 2017).

19

See M.P., Docket No. 18-1298 (issued April 12, 2019).

20

See A.C., Docket No. 19-1333 (issued January 8, 2020); R.R., Docket No. 19-1314 (issued January 3, 2020).

21

Id.; see also G.W., Docket No. 19-0430 (issued February 7, 2020).

6

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than four
percent permanent impairment of the left lower extremity, for which she previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 15, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 14, 2020
Washington, DC

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

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

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

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

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

Docket No. 15-1198
Issued: October 22, 2015

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 May 5, 2015 appellant, through counsel, filed a timely appeal from the December 1,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The last
merit decision in this case was issued by OWCP on May 29, 2013. As more than 180 days
elapsed from the last OWCP merit decision by OWCP 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 of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on June 3, 2010 appellant, then a 34-year-old clerk, sustained a
right knee contusion when she attempted to move a tray that was stuck on the tray line.
Appellant stopped work that day and OWCP paid compensation benefits. OWCP terminated her
compensation benefits by decision dated March 28, 2012. Appellant’s counsel requested
reconsideration and submitted a March 20, 2013 brief, as well as a November 11, 2012 report
from Dr. Neofitos Stefanides, an orthopedic surgeon. By decision dated May 29, 2013, OWCP
denied modification of the March 28, 2012 termination decision and found that appellant had not
established disability after March 28, 2012, causally related to the June 3, 2010 employment
injury.
This case has previously been before the Board. By decision dated April 9, 2014, the
Board affirmed OWCP’s May 29, 2013 decision.2 Therein, the Board reviewed the arguments
appellant’s counsel presented in his March 20, 2013 brief. In the March 20, 2013 brief, counsel
argued that the report of Dr. Stefanides dated November 11, 2012 established that appellant had
residuals of the accepted injury and that OWCP had failed to accept all of the conditions
appellant sustained as a result of the work injury. The Board found that OWCP properly relied
on the February 7, 2012 opinion of Dr. Norman Sveilich, a Board-certified orthopedic surgeon
selected as the impartial medical specialist, who determined that appellant had no work-related
residuals or disability for full-time employment due to her accepted right knee contusion. The
Board further found that none of the medical reports submitted by appellant after the termination
of benefits included a rationalized opinion regarding the causal relationship between her current
condition and her accepted work-related injury.3
On November 18, 2014 OWCP received appellant’s counsel’s November 18, 2014
request for reconsideration. This request for reconsideration presented arguments which were
identical to the arguments raised by counsel in his March 20, 2013 brief. Counsel argued that
reconsideration was requested because medical and legal arguments were not previously
considered or not properly considered by OWCP. Issues presented were: (1) whether OWCP
accepted all conditions sustained by appellant as a result of the June 3, 2010 employment
incident; and (2) whether OWCP properly terminated benefits. With regard to the first issue,
counsel contended that the medical evidence of record demonstrated that because of the workrelated incident of June 3, 2010, appellant sustained injuries and conditions in addition to those
accepted by OWCP including consequential left knee injuries and conditions in the
November 11, 2012 report of Dr. Stefanides, an orthopedic surgeon, previously of record, was
submitted in support of this assertion. With regard to the second issue, counsel relying upon
Dr. Stefanides’ November 11, 2012 report, argued that OWCP improperly terminated
compensation benefits as appellant continued to be disabled due to the June 3, 2010
employment-related injury. He also argued that the opinions of OWCP’s second opinion
physician, Dr. Leon Sultan, a Board-certified orthopedic surgeon, and Dr. Sveilich were based
2

Docket No. 14-120 (issued April 9, 2014).

3

The Board indicated that, although the records contained evidence of a left knee condition and a back condition,
appellant had not provided rationalized medical evidence explaining how the employment injury of June 3, 2010
caused the diagnosed conditions.

2

upon an inaccurate summary of the conditions appellant sustained causally related to the June 3,
2010 employment injury. No additional evidence was submitted.
By decision dated December 1, 2014, OWCP denied reconsideration without reviewing
the merits of the case.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received within one year of the date of that decision.6 When a claimant fails to meet one of
the above standards, OWCP will deny the application for reconsideration without reopening the
case for review on the merits.7
ANALYSIS
On November 18, 2014 OWCP received appellant’s request for reconsideration. To be
entitled to a merit review of OWCP’s decision denying or terminating a benefit, a claimant’s
application for review must be received within one year of the date of that decision.8 As the
Board’s April 9, 2014 decision was the last merit decision of record and the November 18, 2014
request for reconsideration was within one-calendar year of that decision, appellant’s request was
therefore timely. The question for determination is whether her request met at least one of the
three standards for obtaining a merit review of her case.9
In his November 18, 2014 request for reconsideration, appellant counsel did not establish
that OWCP erroneously applied or interpreted a specific point of law. He did not advance a
relevant legal argument not previously considered by OWCP and he did not submit relevant and
pertinent new evidence not previously considered by OWCP. The Board therefore concludes
that OWCP properly denied his request for merit review.

4

Under section 8128 of FECA, the 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).
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

Id. at § 10.607(a).

9

The Board has held, however, that OWCP’s procedures should be interpreted to mean that a right to
reconsideration within one year accompanies any subsequent merit decision on the issues, including any merit
decision by the Board.

3

Counsel continues to assert that the issues are whether OWCP met its burden of proof to
terminate compensation after March 28, 2012, and whether appellant has other medical
conditions causally related to the June 3, 2010 employment injury, but these issues were
previously decided. The Board settled this matter in its April 9, 2014 decision when it found that
the weight of the medical evidence established that appellant no longer suffered from the
accepted right knee contusion she sustained on June 3, 2010, and she had not established
continuing employment-related disability. These matters have been adjudicated. Decisions and
orders of the Board are final as to the subject matter appealed.10
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence or argument. Appellant did not do so in this case. Counsel merely reiterated arguments
and evidence previously considered. Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly
denied merit review.

10

20 C.F.R. § 501.6(a).

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 22, 2015
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Westminster, CA, Employer
__________________________________________

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

Docket No. 12-1129
Issued: October 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 30, 2012 appellant filed a timely appeal from a January 11, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied merit review. Because more
than 180 days elapsed from the most recent merit decision of September 30, 2011 to the filing of
this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 28, 2010 appellant, a 32-year-old letter carrier, filed an occupational disease
claim alleging that on April 25, 2010 he developed an acute anxiety disorder after receiving a
1

5 U.S.C. §§ 8101-8193.

letter of removal from the employing establishment. He became aware of his condition and
realized it was causally related to his employment on April 25, 2010. Appellant stopped work on
April 27, 2010.
Appellant submitted an April 25, 2011 return to work slip prepared by Dr. Natalie K.
Bittar, a family practitioner, who noted that appellant was treated and could return to work on
May 30, 2011. In a prescription note dated April 25, 2011, Dr. Bittar prescribed antidepressant
medication.
By letter dated July 29, 2011, OWCP advised appellant of the factual and medical
evidence needed to establish his claim and requested that he submit such evidence.
Appellant submitted a return to work slip from Dr. Bittar dated August 31, 2011.
Dr. Bittar noted that appellant would be off work from August 28 to October 31, 2011.
In a decision dated September 30, 2011, OWCP denied appellant’s claim finding that the
evidence did not support that the employment incident occurred as alleged.
In a form dated October 10, 2011, appellant requested reconsideration. He submitted a
return to work slip from Dr. Bittar dated April 25, 2011, which noted that he could return to
work on May 30, 2011. A June 28, 2011 slip noted that appellant could return to work on
August 29, 2011 and could not work on June 27, 2011. An August 31, 2011 slip indicated that
he was off work from August 28 to October 31, 2011 and an October 21, 2011 slip advised that
he could return to work on January 10, 2012. An April 27, 2011 certificate of health care
provider from Dr. Bittar noted that appellant was incapacitated from April 25 to May 30, 2011.
Dr. Bittar advised that appellant’s condition commenced on March 25, 2011 and he was unable
to work, specifically driving and delivering mail. She diagnosed acute anxiety attacks,
characterized by palpations, palm sweats, dizziness, nervousness, inability to think straight and
insomnia. Dr. Bittar opined that when appellant had anxiety attacks he was unable to perform
his duties. In a June 8, 2011 report, she noted treating him since April 25, 2011 for multiple
medical conditions including insomnia, anxiety and panic attacks. Dr. Bittar noted that the
conditions were all possibly due to work-related stress. She noted that appellant was fatigued
due to lack of sleep caused by periodic panic attacks. Dr. Bittar diagnosed general anxiety which
appeared to be work induced. Also submitted was a duplicate CA-2, previously of record.
By decision dated January 11, 2012, OWCP denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant a merit
review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,2 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
2

5 U.S.C. § 8128(a).

2

obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.4
ANALYSIS
OWCP’s most recent merit decision dated September 30, 2011 denied appellant’s claim
for an emotional condition because he did not submit sufficient factual evidence establishing that
particular employment incidents occurred as described. It denied his October 10, 2011
reconsideration request, without a merit review and appellant appealed this decision to the
Board.
As noted above, the Board does not have jurisdiction over the September 30, 2011
OWCP decision. The issue presented on appeal is whether appellant met any of the requirements
of 20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the
claim. In his December 30, 2011 application for reconsideration, he did not show that OWCP
erroneously applied or interpreted a specific point of law. Appellant did not identify a specific
point of law or show that it was erroneously applied or interpreted. He did not advance a new
and relevant legal argument. A claimant may be entitled to a merit review by submitting new
and relevant evidence, but appellant did not submit any new and relevant evidence in this case.
Consequently, appellant is not entitled to a review of the merits of his claim based on the first
and second above-noted requirements under section 10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by OWCP, appellant submitted a copy of the Form CA-2. However, this
report is duplicative of evidence previously submitted by appellant and considered in OWCP’s
decision dated September 30, 2012 and found to be insufficient.5 Therefore, OWCP properly
determined that this evidence did not constitute a basis for reopening the case for a merit review.

3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b).

5

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).

3

Appellant also submitted return to work slips from Dr. Bittar dated April 25, June 28,
August 31 and October 21, 2011 which noted appellant would be off work intermittently until
January 10, 2012. Similarly, in an April 27, 2011 certificate of health care provider, Dr. Bittar
noted that appellant was incapacitated from April 25 to May 30, 2011. She noted that appellant’s
condition commenced on March 25, 2011 and he was unable to work. Dr. Bittar diagnosed acute
anxiety attacks and opined that when appellant experienced anxiety attacks he was unable to
perform his job duties. Likewise, a June 8, 2011 report from her noted treating him since
April 25, 2011 for multiple medical conditions including insomnia, anxiety and panic attacks.
Dr. Bittar noted that the conditions were all possibly due to work-related stress. This evidence is
not relevant as the underlying issue is whether appellant established a compensable employment
factor.6 OWCP properly determined that the medical evidence did not constitute a basis for
reopening the case for a merit review. Therefore, it properly determined that this evidence did
not constitute a basis for reopening the case for a merit review.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal appellant asserts that his claim was wrongfully denied and that he submitted
sufficient evidence to support that he sustained an emotional condition. As noted, the Board
does not have jurisdiction over the merits of his claim; only whether he submitted sufficient
evidence to warrant reopening his claim for a merit review. The evidence submitted with
appellant’s October 10, 2011 reconsideration request was insufficient to warrant further merit
review of his claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.

6

See Margaret S. Krzycki, 43 ECAB 496 (1992) (where a claimant has not established a compensable
employment factor, the Board has held that it need not address the medical evidence of record).

4

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 26, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-447
Issued: December 16, 2011

Case Submitted on the Record

ORDER REVERSING CASE
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On December 14, 2010 appellant filed a timely appeal from a November 2, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying modification of an
August 13, 2008 loss of wage-earning capacity determination. The Board assigned Docket
No. 11-447. The Board finds that the decision of OWCP must be reversed.
On November 17, 2003 OWCP accepted the occupational disease claim of appellant, then
a 41-year-old full-time city letter carrier, for bilateral anterior lateral exertional compartment
syndrome due to prolonged standing and walking in the performance of duty.
On January 31, 2006 appellant accepted a position with the employing establishment as a
full-time modified letter carrier with restrictions. In a July 7, 2006 decision, OWCP determined
that appellant’s wages as a modified letter carrier fairly and reasonably represented her wageearning capacity and, that as her earnings were greater than the current pay rate of her date-ofinjury job, she was not entitled to compensation for a loss of wage-earning capacity. On May 1,
2007 appellant accepted the employing establishment’s offer of modified duty with work hours
limited to four hours a day. On May 9, 2008 the employing establishment offered appellant a
position as a modified letter carrier with a four-hour workday. Appellant accepted this position
on May 12, 2008.

By decision dated August 14, 2008, OWCP found that the position of modified letter
carrier fairly and reasonably represented appellant’s wage-earning capacity effective May 29,
2007, the date she was reemployed in that position.1
On August 19, 2010 the employing establishment made an offer of modified assignment
(limited duty) for a position as a modified letter carrier, with different duties. In a letter to
appellant dated August 27, 2010, the employing establishment explained that some of the
modified job assignment duties that she had been performing no longer existed and therefore her
current modified job assignment was no longer valid. The employing establishment noted that,
effective August 30, 2010, her current modified job assignment would be rescinded and her
status would change from rehabilitation modified employee to limited-duty status. Appellant
would still be limited to working four hours a day.
On September 16, 2010 appellant filed a claim for wage loss beginning August 30, 2010.
By decision dated November 2, 2010, OWCP denied appellant’s claim for compensation benefits
beginning August 30, 2010. It found that appellant had not met her burden of proof to modify
the loss of wage-earning capacity determination.
The Board finds that OWCP’s August 14, 2008 wage-earning decision was erroneous. In
determining whether the claimant’s work fairly and reasonably represents her wage-earning
capacity, OWCP should consider whether the kind of appointment and tour of duty are at least
equivalent to those of the job held on the date of injury. “Unless they are, the [claims examiner]
may not consider the work suitable.”2 The record reveals that appellant’s date-of-injury job as a
city letter carrier was a full-time position for at least 40 hours per week. As OWCP found that
the actual earnings in appellant’s part-time position fairly and reasonably represented her wageearning capacity, and a part-time position is not equivalent to a full-time position, the Board
finds that OWCP abused its discretion in determining appellant’s loss of wage-earning capacity
determination.3
Accordingly, the August 14, 2008 wage-earning capacity determination by OWCP was
erroneous, as it was based on a part-time position when appellant’s date-of-injury position was
full time. Therefore, the Board finds that OWCP improperly denied modification of the
August 14, 2008 wage-earning capacity determination.

1

On July 3, 2007 OWCP accepted appellant’s claim for a recurrence of partial disability beginning on May 29,
2007 causally related to the January 29, 2003 employment injury.
2

O.V., Docket No. 11-98 (issued September 30, 2011); see also Federal (FECA) Procedure Manual, Part 2 -Claims, Reemployment: Determining Wage-Earning Capacity, Cheaper 2.814.7(a) (July 1997).
3

O.V., id.

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 2, 2010 is reversed.
Issued: December 16, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, GRACIE STATION,
New York, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-986
Issued: November 13, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On April 3, 2012 appellant filed a timely appeal of a March 19, 2012 Office of Workers’
Compensation Programs’ (OWCP) merit decision finding an overpayment of compensation in
the amount of $8,920.10 for the period December 7 , 2008 through May 8, 2010 due to the under
deduction of health benefits, basic life insurance and optional life insurance. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)(1) and 501.3, the
Board has jurisdiction to consider the merits of the case.
This case has previously been before the Board and by decision dated September 22,
20112 the Board remanded the case to OWCP for a new preliminary determination and final
decision following development of the issues of the period of the overpayment, the appropriate
amount of overpayment, waiver of the recovery of the overpayment and if necessary, repayment
of the overpayment.
Following the Board’s September 22, 2011 decision, OWCP issued a new final decision
only determining a new amount of the overpayment and the period of the overpayment. In the
1

5 U.S.C. § 8101 et seq.

2

Docket No. 11-285 (issued September 22, 2011).

March 19, 2012 final overpayment decision, it stated that the appropriate amount of the
overpayment was $8,665.99 and that the period for the overpayment was December 8, 2008
through May 10, 2010. OWCP further stated:
“As advised in the original final determination of October 25, 2010, after
carefully studying your case and fully considering any additional evidence or
arguments submitted (you did provide [F]orm OWCP-20, with supporting
financial documentation, as required), we have decided not to waive the
overpayment, as the evidence in file does not suggest that you are entitled to
waiver, nor that collection of the overpayment would defeat the purpose of the
FECA, nor that you cannot repay the debt. The financial documentation and
[F]orm OWCP-20 show income of $4,976.39 and expenses of $4,836.36, with a
net income of $140.02 per month. According to this office’s procedures, your
claim of hardship is not shown. An individual is deemed to need substantially all
of his or her income to meet current ordinary and necessary living expenses if
monthly income does not exceed monthly expenses by more than $50.00. As
such, we must consider that you have $90.00 available, per month, for debt
repayment.
“The overpayment is still being recovered in the manner stated in the enclosed
Form EN2225 (as advised in the original final determination of
October 25, 2010)….”
The Board finds that OWCP failed to follow the majority of the instructions issued by
this Board in the September 22, 2011 decision remanding the case for additional development.
As OWCP has not issued a new preliminary overpayment determination, appellant has not had
the opportunity to submit new financial information and OWCP has not adequately evaluated
appellant’s current financial situation to determine whether waiver of recovery of the
overpayment is appropriate.
On remand, OWCP should issue a new preliminary overpayment determination providing
appellant with new appeal rights including the request for a prerecoupment hearing, and the
opportunity to submit current financial information which OWCP will evaluate to properly
determine whether the overpayment should be waived. OWCP shall insure that the record
contains probative evidence supporting its findings regarding the amount of the overpayment and
authorized documentation regarding the proper amount of the health and life insurance premiums
for each specific year and specific period so that appellant may be able to determine if the
calculation of the overpayment was correct. After this development consistent with this Order
Remanding Case and the Board’s September 22, 2011 decision, OWCP shall issue an
appropriate final overpayment decision on the issues of amount, period, waiver and recovery of
the overpayment which the Board previously determined exists.

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 19, 2012 is set aside and the case remanded for further
development consistent with this order of the Board.
Issued: November 13, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tuscaloosa, AL, Employer
__________________________________________

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

Docket No. 10-1420
Issued: April 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 22, 2010 appellant filed a timely appeal from an October 28, 2009 decision of
the Office of Workers’ Compensation Programs affirming the termination of her compensation
benefits. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
January 30, 2009 on the grounds that she refused suitable work, pursuant to 5 U.S.C. § 8106(c).
On appeal, appellant contends that it was not fair to give greater weight to the opinion of
the impartial medical examiner as he saw her only one time. She contends that the weight of the
medical opinion should rest with her treating physician.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 3, 2003 appellant, then a 46-year-old city carrier, filed an occupational disease
claim alleging that she sustained tarsal tunnel in both of her feet as a result of walking her route
and repetitive stress with activity. She walked approximately 8 to 10 miles a day, 5 days a week
and carried approximately 20 to 25 pounds. By letter dated July 15, 2003, the Office accepted
appellant’s claim for bilateral tarsal tunnel syndrome and bilateral heel spurs. Appellant received
compensation benefits until July 21, 2004 when she returned to work at light duty.
On November 3, 2005 appellant filed a claim for a recurrence of disability commencing
September 24, 2005. The Office accepted her claim.
In a May 19, 2006 treatment note, Dr. David V. Robinson, a treating podiatrist, stated
that appellant had tarsal tunnel syndrome and neuropathy that was still medically present and
disabling. He noted that her condition was permanent and that she failed to improve with
surgery, physical therapy, orthotics or medication. Dr. Robinson concluded that appellant was
disabled for all work.
On August 17, 2006 the Office referred appellant to Dr. Howard Leslie Fowler, a Boardcertified orthopedic surgeon, for a second opinion. In a September 22, 2006 report, Dr. Fowler
concluded that appellant was not capable of performing her regular duties as a city carrier
without restrictions. He noted that she had objective findings of hypersensitivity distal to the
tarsal tunnel on both feet as well as persistent tightness in the heel cords bilaterally contributing
to the plantar fasciitis. Dr. Fowler noted that appellant’s compensable injuries had not resolved.
He submitted a duty status report noting that she could work eight hours a day subject to a
two-hour restriction walking, standing, twisting and bending/stooping. Dr. Fowler also limited
appellant to two hours a day pushing, pulling, lifting, squatting, kneeling and climbing, with all
these activities subject to a 20-pound restriction.
On December 21, 2006 the employing establishment made an offer of employment as a
modified city carrier. This position was based on the restrictions set forth by Dr. Fowler. On
December 27, 2006 appellant rejected this job offer stating it would require her to do repetitive
work for five hours a day. She stated that delivering mail involved repetitive use of your hands,
fingers and wrists and that is what caused her to have carpal tunnel syndrome. In a note of the
same date, appellant stated that she continued to experience burning pain in her feet and ankles.
She contended that until something was done to relieve the pain, she could not return to work.
On February 2, 2007 the employing establishment offered appellant another job for the
position of modified distribution/window clerk. The physical restrictions involved no repetitive
or prolonged pinching or gripping using her hands; no repetitive movement with the wrists;
repetitive movements with her elbow, lifting, walking, standing, squatting, kneeling, climbing,
twisting, bending and stooping limited to two hours a day; pushing/pulling limited to one-hour a
day, reaching above shoulder limited to three hours a day and operating a motor vehicle at work
limited to four hours a day. The job also put a weight limit for lifting, pushing, pulling,
squatting, kneeling and climbing of 20 pounds. Appellant rejected this job offer. She stated that,
although it was more within her restrictions, there were some questionable duties and that she
could not return to work until something was done to relieve the burning pain in her feet and

2

ankles. Appellant noted that when she worked in September 2005 she was taking prescription
pain medication every day.
After proper notification, by decision dated May 7, 2007, the Office terminated
appellant’s wage-loss compensation based on her refusal of suitable work. It found that the
weight of the medical evidence supported that she was capable of performing the modified
distribution/window clerk position.
In a May 9, 2007 report, Dr. Robinson stated that appellant’s current diagnoses were
carpal tarsal tunnel syndrome, calcaneal spur and neuropathy. He noted that the related medical
conditions continue to persist and remain disabling. Dr. Robinson noted that appellant currently
remained disabled from all work. He noted that she has failed to show any significant
improvement with treatment, and that her condition is now chronic and permanent with
maximum medical improvement. Dr. Robinson opined that appellant would not be able to return
to work for the employing establishment in a suitable fashion considering her conditions and
failure to improve with treatment. He recommended medical retirement.
On May 17, 2007 appellant requested review of the written record. In an October 19,
2007 decision, an Office hearing representative modified the May 7, 2007 decision. The Office
hearing representative found however that the new evidence of Dr. Robinson created a conflict in
medical evidence between appellant’s treating physician and the second opinion physician,
Dr. Fowler. The case was remanded for further medical development but wage-loss benefits
were not reinstated.
On November 1, 2007 the Office referred appellant to Dr. Martin Pomphrey, a Boardcertified orthopedic surgeon, for an impartial medical examination. In a report dated
December 12, 2007, Dr. Pomphrey found that there were no objective findings of remaining
disability present as a result of appellant’s work injury. He concluded that she was capable of
performing the duties of a modified clerk. On February 8, 2008 Dr. Pomphrey responded to
questions from the Office. He opined that appellant’s work-related conditions of bilateral tarsal
tunnel syndrome and calcaneal spurs were resolved, but that the heel spurs remained.
Dr. Pomphrey further opined that the heel spurs were not the cause of her pain. He advised that
appellant had no objective findings that would prevent her from returning to full function as a
city carrier, and that she could perform the same work she did in 2005 when she stopped
working.
By letter dated March 7, 2008, the Office proposed terminating appellant’s compensation
benefits. By letter dated March 17, 2008, appellant responded that she did not agree with the
proposed termination of compensation and medical benefits as she still had residuals.
By decision dated April 17, 2008, the Office finalized the proposed termination on the
grounds that she had no employment-related disability and that her bilateral tarsal tunnel
syndrome had resolved. It further found that entitlement to medical benefits would continue for
the condition of bilateral heel spurs only.
On April 29, 2008 appellant requested an oral hearing. However, after conducting a
preliminary review of the written record, an Office hearing representative, by decision dated

3

August 4, 2008, reversed the April 17, 2008 decision and remanded the case for a new impartial
medical examination. The Office hearing representative found that the opinion of Dr. Pomphrey,
the impartial medical examiner, was not well rationalized and his statements were inconsistent
with the findings on physical examination.
On August 8, 2008 the Office referred appellant to Dr. John Weaver, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a September 12, 2008 report,
Dr. Weaver reviewed appellant’s medical records and conducted an extensive physical
examination. He noted that her objective findings were heel spurs by x-ray and that these had
not resolved. Dr. Weaver noted that appellant walked well with no limp. He stated that touching
lightly over the dorsal aspect of both feet will cause a tingling in her toes. Dr. Weaver noted that
appellant was nontender about the anterior and lateral ankle and that the Achilles was intact
bilaterally. He found no apparent atrophy and no pretibial edema or obvious swelling to the
ankle or foot. There appeared to be normal adipose tissue over the medial ankle area and no
signs of reflex sympathetic dystrophy (RSD). Dr. Weaver noted minimal discomfort over the
tarsal tunnel to percussion and no sign of hallux valgus to either foot and no significant clawing
of any of the toes. He concluded that there were no objective findings to support disability from
appellant’s compensable injuries and would place her at a medium category for functional
capacity as she may have some difficulty weight lifting. Dr. Weaver was not sure that appellant
would be able to perform her regular duties as a city carrier, although he did note that she would
be able to perform the duties of modified distribution/window clerk. In an attached work
capacity evaluation, he opined that she was able to work eight hours a day limited to two hours
walking, standing, bending/stooping and twisting. Dr. Weaver further noted that appellant was
limited to two hours a day pushing, pulling, lifting, squatting, kneeling and climbing and that her
weight limitation was 20 pounds.
On October 15, 2008 the Office verified that the modified-duty position previously
offered by the employing establishment was still available. By letter dated October 21, 2008, it
informed appellant that it found that the position of modified distribution/window clerk with the
employing establishment was suitable to her work capabilities. The Office gave her 30 days to
either accept the position or provide reasons for refusing. It noted that if appellant failed to
accept the position and her reasons were found to be unjustified, her entitlement to further wageloss compensation and a schedule award would be denied. The Office allotted her 30 days to
respond. Appellant failed to provide a timely response detailing her reasons for refusing the
position.
Accordingly, by letter dated January 13, 2009, the Office informed appellant that she had
not provided a valid reason for refusing to accept the offered position. It informed her that she
had 15 additional days to accept the position and that if she failed to accept the position within
the allotted time, her entitlement for wage-loss compensation and a schedule award would be
terminated. Appellant did not respond within the time allotted.
By decision dated January 30, 2009, the Office terminated appellant’s compensation
benefits effective that date due to her failure to accept suitable employment. It noted that she
remained entitled to medical benefits for the effects of her heel spur condition.

4

On February 25, 2009 appellant requested an oral hearing before an Office hearing
representative. At the hearing held on August 24, 2009, appellant stated that her doctor told her
that she was unable to work and disagreed with Dr. Weaver’s conclusion to the contrary. She
noted that when she wore shoes her feet burned. Appellant argued that the opinion of her
treating physician should be given decisive weight.
By decision dated October 28, 2009, an Office hearing representative affirmed the
Office’s January 30, 2009 decision.
LEGAL PRECEDENT
One the Office accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.2 Section 8106(c)(2) of the Act3 provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or
secured for the employee is not entitled to compensation.4 The Office may not terminate
compensation without establishing that the disability ceased or that it is no longer related to the
employment.5 The Board has held that, as monetary compensation payable to an employee
under section 8107 are payments made from the Employees’ Compensation Fund, they are
subject to the penalty provision of section 8106(c).6
Section 10.517(a) of the Act’s implementing regulations provide that an employee who
refuses to work after suitable work has been offered to or secured for the employee, has the
burden of showing that such refusal or failure to work was reasonable or justified.7 Pursuant to
section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.8
In situations where there exists 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.9

2

Barry Neutach, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).

3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8106(c)(2); see also Linda D. Guerrero, 54 ECAB 556 (2003).

5

Ronald M. Jones, 52 ECAB 190 (2000); Arthur R. Reck, 47 ECAB 339 (1995).

6

Sandra A. Sutphen, 49 ECAB 174 (1997); Stephen R. Lubin, 43 ECAB 564 (1992).

7

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 5.

8

Id. at § 10.516; see Kathy E. Murray, 55 ECAB 288 (2004).

9

Manuel Gill, 52 ECAB 282 (2001).

5

ANALYSIS
The Office accepted appellant’s claim for bilateral tarsal tunnel syndrome and bilateral
heel spurs. Appellant returned to work on July 21, 2004; however, she sustained a recurrence of
disability on September 24, 2005.
Dr. Robinson, appellant’s treating physician, found that appellant was totally disabled
from work due to her accepted conditions. In a May 9, 2007 report, he explained that she had
failed to show any significant improvement with treatment and that she will not be able to return
to work for the employing establishment. This opinion was contrary to the second opinion
physician, Dr. Fowler, who found that, although appellant was not capable of returning to work
in her regular position, she was able to work as a modified city carrier with restrictions. Due to
the conflict between the physicians with regards to appellant’s disability and capacity for work,
the Office referred her for an impartial medical examination. Dr. Pomphrey initially determined
that she could return to work as a full function city carrier; however, an Office hearing
representative found that his opinion was not well rationalized and remanded the case for referral
to a new impartial medical examiner.10
The Office referred appellant to Dr. Weaver for an impartial medical examination, who
found that she could work in a limited-duty capacity, working eight hours full time subject to
limitations on two-hour walking, standing, bending, stooping and twisting. Appellant was also
limited to two hours a day pushing, pulling, lifting, squatting, kneeling and climbing and that her
weight limitation was 20 pounds. Dr. Weaver found that she could work as a modified
window/distribution clerk, the position offered by her employing establishment. He based this
opinion on his thorough physical examination of appellant and a review of the medical record.
Dr. Weaver noted that her heel spurs had not resolved but that she walked well and had negative
straight leg bilaterally. He noted that touching lightly over the dorsal aspect of both feet caused a
tingling in appellant’s toes, but that she was nontender about the anterior and lateral ankle.
Dr. Weaver noted that the Achilles was intact bilaterally and that there was no apparent atrophy.
He noted no pretibial edema nor any obvious swelling to ankle or foot. Dr. Weaver found
normal adipose tissue over the medial ankle area. He noted no sign of RSD and that appellant
was nontender over her metatarsal heads, plantar or dorsal and not tender out to her toes.
Dr. Weaver noted dull sensation to the medial toes, right and left and minimal discomfort over
the tarsal tunnel to percussion on the right. He noted that percussion of left medial incision
causes pain more into the heel aspect medically and not into the toes. Dr. Weaver noted no sign
of hallus valgus to either foot and no significant clawing between the toes.
The Board finds that Dr. Weaver provided a complete and rationalized opinion based on
an accurate factual and medical background. Dr. Weaver’s opinion that appellant could return to
work with restrictions is accorded special weight due to his status as an impartial medical
examiner.11 He found that appellant was capable of full-time modified work based on residuals
of the accepted bilateral heel spurs.

10

See James P. Roberts, 31 ECAB 1010 (1980).

11

See L.W., 59 ECAB 471 (2008).

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In accordance with the procedural requirements under 5 U.S.C. § 8106(c), the Office
advised appellant on October 21, 2008 that it found the job offer to be suitable and gave her an
opportunity to provide reasons for refusing the position within 30 days. It advised her in a
January 13, 2009 letter that she had 15 additional days to accept the offered position. The Board
finds that the Office followed established procedures prior to the termination of compensation
pursuant to section 8106(c) of the Act.
The Board finds that the position offered was medically and vocationally suitable and the
Office complied with the procedural requirements of section 8106(c) of the Act. The Office met
its burden of proof to terminate appellant’s compensation benefits based on her refusal to accept
suitable work.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
January 30, 2009 on the grounds that she refused suitable work.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 28, 2009 is affirmed.
Issued: April 18, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
PERSONNEL OPERATIONS, Jamaica, NY,
Employer
__________________________________________

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

Docket No. 16-1789
Issued: September 1, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 7, 2016 appellant, through counsel, filed a timely appeal from an April 28,
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 appellant has established permanent impairment of the lower
extremities due to her accepted federal employment injuries.
FACTUAL HISTORY
This case has been before the Board on prior appeal.3 The facts of the case as presented
in the prior decision are incorporated herein by reference. The relevant facts are as follows.
On November 6, 2008 appellant, then a 43-year-old benefit authorizer, sustained a
traumatic injury when she fell backwards over an open file cabinet drawer. OWCP accepted the
claim for back contusion and buttocks contusion under OWCP File No. xxxxxx972. Appellant
received medical and wage-loss compensation benefits on the supplemental rolls commencing
December 22, 2009. She returned to work for six hours a day on May 12, 2010.
On September 24, 2010 appellant bent over to retrieve a pen from under her desk when
she experienced a sharp pain in her low back and buttocks. This incident was treated as a new
traumatic injury under OWCP File No. xxxxxx023, and accepted for thoracic or lumbosacral
radiculitis.4 Appellant stopped work on the date of injury and received medical and wage-loss
compensation benefits on the supplemental rolls.
On March 24, 2009 Dr. Rajpaul Singh, a Board-certified neurologist, reported that
electromyography (EMG) and nerve conduction velocity (NCV) testing revealed normal
findings. On December 21, 2010 he reported that appellant was totally disabled. In an April 15,
2011 report, Dr. Singh diagnosed low back syndrome and L3-4 central disc herniation and again
concluded that appellant was totally disabled.
OWCP referred appellant to Dr. Arnold Illman, a Board-certified orthopedic surgeon, for
a second opinion evaluation to determine the status of appellant’s accepted employment injuries.
In a report dated May 3, 2011, Dr. Illman reported that appellant’s diagnostic findings were
essentially normal and that she had fully recovered from her employment injuries.
On June 8, 2011 OWCP advised that it proposed to terminate appellant’s compensation
benefits based upon the report of Dr. Illman. Appellant was afforded 30 days to submit
additional medical evidence.
By decision dated September 26, 2011, OWCP terminated appellant’s compensation
benefits. Appellant subsequently requested reconsideration of the termination of her benefits on
October 18, 2011. OWCP denied modification of the September 26, 2011 decision on
January 12, 2012. Appellant again requested reconsideration on February 8, 2012. OWCP
affirmed the termination, after merit review on May 8, 2012. Appellant again requested
3

Docket No. 13-847 (issued July 23, 2013).

4

The two cases were subsequently combined whereby this claim, File No. xxxxxx023, served as the master claim
and File No. xxxxxx972 served as the subsidiary claim.

2

reconsideration on July 2, 2012. OWCP again reviewed the merits and denied modification of
the termination on November 27, 2012. Appellant thereafter filed a timely appeal to the Board
on February 26, 2013. By decision dated July 23, 2013, the Board reversed the termination of
compensation benefits, finding that a conflict existed between Dr. Singh and Dr. Illman as to
whether appellant’s employment-related conditions had resolved.5
In June 20, 2012 and August 6, 2013 medical reports, Dr. Singh diagnosed left L3-4
lumbar radiculopathy and lumbar spine disc herniation at L3-4. Based on physical examination
findings and review of diagnostic testing, he opined that appellant suffered a worsening of her
injury to her lumbar spine.
On January 28, 2014 appellant filed a claim for a schedule award (Form CA-7). In
support of her schedule award claim, she submitted an October 9, 2013 medical evaluation from
Dr. Arthur Becan, a Board-certified orthopedic surgeon, who discussed appellant’s medical
history, provided findings on physical examination, and noted review of diagnostic testing.
Dr. Becan diagnosed chronic post-traumatic lumbosacral strain and sprain, L3-4 disc herniation
(confirmed on MRI scan), L5-S1 disc bulge (confirmed on MRI scan), left L3-4 radiculopathy
(confirmed on EMG/NCV studies), and right-sided lumbosacral radiculitis. Based on appellant’s
moderate L5 motor strength deficit right extensor halluces longus, he calculated 13 percent
permanent impairment of the right lower extremity.6 Dr. Becan calculated an additional six
percent permanent impairment of the right lower extremity based on severe sensory deficit right
L4 nerve root. He calculated five percent permanent impairment of the left lower extremity for
moderate sensory deficit of the left L4 nerve root. Dr. Becan concluded that appellant reached
maximum medical improvement (MMI) on October 9, 2013 and was entitled to a final combined
18 percent permanent impairment of the right lower extremity and 5 percent permanent
impairment of the left lower extremity.
OWCP routed Dr. Becan’s report, a statement of accepted facts (SOAF), and the case file
to Dr. Henry J. Magliato, a Board-certified orthopedic surgeon serving as an OWCP District
Medical Adviser (DMA), for review and a determination as to whether appellant sustained a
permanent impairment and the date of MMI.
In a May 13, 2014 report, Dr. Magliato agreed with Dr. Becan’s finding of five percent
permanent impairment of the left lower extremity. He disagreed with the physician’s 18 percent
right lower extremity impairment rating, stating that the medical evidence pointed only to a leftsided radiculitis based on the MRI scans and the last EMG/NCV testing. Dr. Magliato noted that
Dr. Singh’s June 20, 2012 report concluded that appellant had a left-sided L3-4 radiculopathy
and normal findings in the right lower extremity as all decreased sensation was experienced on
the left side. However, this was in conflict with Dr. Becan’s findings of significant right lower
extremity neurological deficits and only very minor left lower extremity neurological deficits.
Dr. Magliato recommended a corrective report from Dr. Becan since he could have mixed up the

5

Docket No. 13-847 (issued July 23, 2013).

6

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009)
(A.M.A., Guides).

3

right and left lower extremities, or else a new referee medical examination to clear up the
conflict between Dr. Becan and Dr. Singh’s examination results.
By letter dated June 4, 2014, OWCP provided Dr. Becan a copy of the DMA’s report for
review and comment pertaining to appellant’s impairment rating.
On December 18, 2014 a January 3, 2014 diagnostic report was received from
Dr. Edmond Knopp, a Board-certified diagnostic radiologist, who reported that an MRI scan of
the lumbar spine revealed L3-4 disc herniation and degenerative disc disease.
By letter dated January 29, 2015, counsel for appellant noted submission of an
August 25, 2014 EMG report which demonstrated both left and right-sided lower extremity
radiculopathy, as well as a supplemental January 19, 2015 report from Dr. Becan, in support of
appellant’s schedule award claim.
In an August 25, 2014 diagnostic report, Dr. Osafradu Opam, a treating neurologist,
reported that EMG/NCV testing revealed right L5 and S1 radiculopathy and left S1
radiculopathy.
In a January 19, 2015 supplemental report, Dr. Becan noted review of Dr. Magliato’s
report and the August 25, 2014 EMG/NCV testing. He acknowledged the DMA’s dispute
pertaining to right-sided radicular complaints as Dr. Singh had not found previous right-sided
physical examination findings. However, Dr. Becan argued that his examination findings
directly correlated with the new EMG/NCV studies. He explained that the new EMG/NCV
testing revealed right L5 and S1 radiculopathy in conjunction with his physical examination
findings of moderate 3/5 motor strength deficit of the right extensor hallucis longus. Dr. Becan
concluded that he stood by his impairment rating as noted in the October 9, 2013 report.
OWCP routed Dr. Becan’s January 19, 2015 report to Dr. Magliato for review and
comment as to whether appellant sustained a permanent impairment and the date of MMI.
In a February 27, 2015 report, Dr. Magliato reported that, while the August 25, 2014
EMG/NCV testing supported Dr. Becan’s October 9, 2013 right lower extremity examination
findings, it was still in conflict with Dr. Singh’s 2012 normal right lower extremity findings. He
further reported that Dr. Becan’s October 9, 2013 moderate L4 sensory deficit left lower
extremity findings appeared to be too low and did not correlate with the more severe EMG/NCV
and MRI scan findings. Given conflicting opinions, diagnostic testing, and examination
findings, Dr. Magliato recommended a referee medical examination.
On April 22, 2015 OWCP prepared a memorandum for an impartial medical examiner
requesting an evaluation to address the conflict between Dr. Magliato, serving as the DMA, and
Dr. Becan as to appellant’s permanent impairment of the lower extremities.
In a July 22, 2015 memorandum to the file, OWCP noted that appellant had been seen by
many of the orthopedic physicians from the Physician’s Directory System (PDS). It noted that
the physicians in the PDS that had not seen appellant were not interested in accepting this
assignment or were no longer available for IME. It related, “A random search of Healthgrades
physicians within the claimant’s community and surrounding area revealed orthopedic physician,
4

William Head, MD. Dr. William Head is in our PDS, but his name did [not] come up in the
rotation.” The record contained six illegible screen shots.
By letter dated July 15, 2015, OWCP referred appellant to Dr. William B. Head, a Boardcertified neurologist, for an impartial medical examination on August 18, 2015.
By letter dated July 24, 2015, counsel for appellant requested OWCP provide proof that
Dr. Head was properly selected to serve as an IME, citing Board precedent. He requested a copy
of the iFECS screen shots pertaining to the case referral, an imaging of the ME023, and proper
reasons for bypasses of physicians who were selected on strict rotational basis. The record
before the Board contains no response from OWCP pertaining to counsel’s request
In an August 18, 2015 impartial medical evaluation, Dr. Head discussed appellant’s
medical history and review of diagnostic testing. He summarized appellant’s past diagnostic
reports, the most recent of which was a January 2014 lumbar MRI scan which revealed a central
herniation at L3-4. Dr. Head did not discuss the August 25, 2014 EMG/NCV testing, stating that
appellant reported a lower extremity EMG study in the summer of 2014 but did not know the
results. He provided findings on physical examination and reported that appellant’s neurological
examination revealed no objective evidence of lumbar radiculopathy or other neurological
conditions, noting that her straight leg raising tests were completely normal on repeated testing.
Dr. Head reported no objective evidence of lumbar radiculopathy, either right or left sided, even
though three lumbar MRI scan studies had reportedly shown a central herniated disc at L3-4. He
concluded that appellant had zero percent permanent impairment of a neurological condition or
disability relative to the September 24, 2010 injury.
On September 2, 2015 OWCP requested a different DMA review of Dr. Head’s
August 18, 2015 referee medical report to determine if the physician correctly calculated the
impairment rating in accordance with the A.M.A., Guides. It noted that appellant was referred
for a referee examination in order to resolve a conflict of medical opinion between Dr. Magliato,
the DMA, and Dr. Becan, with regard to the percentage of permanent impairment of each lower
extremity based on a neurological deficit.
In a September 28, 2015 report, Dr. Andrew A. Merola, a Board-certified orthopedic
surgeon serving as a DMA, reported that appellant reached MMI on August 18, 2015, the date of
Dr. Head’s examination. Dr. Merola stated, “With respect to impairment rating Dr. Head opines,
‘I fail to find objective clinical basis of any (0 percent permanent neurological condition or
disability in this case.)’”
By decision dated November 10, 2015, OWCP denied appellant’s claim for a schedule
award as the evidence was not sufficient to establish that she sustained any permanent
impairment to a member or function of the body. It based its decision on Dr. Head’s August 18,
2015 referee report and Dr. Merola’s September 28, 2015 report, serving as OWCP’s DMA.
On November 18, 2015 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
By letter dated November 24, 2015, counsel for appellant argued that Dr. Head’s report
could not carry the weight of the medical evidence. He explained that although Dr. Head
5

referenced EMG testing done on August 25, 2014 confirming the existence of bilateral lumbar
radiculopathies, he did not reference the studies in the body of his report nor explain why the
results should not be relied upon. Counsel further argued that Dr. Head made no reference to the
A.M.A., Guides.
A hearing was held on March 4, 2016. Counsel argued that Dr. Becan’s report
established permanent impairment to the right and left lower extremities. He noted that
Dr. Magliato, serving as the DMA, concurred with Dr. Becan’s five percent permanent
impairment rating of the left lower extremity which should have established appellant’s schedule
award claim. Counsel further argued that the August 25, 2014 EMG/NCV testing revealed both
right- and left-sided radiculopathy. He noted that Dr. Head failed to give sufficient consideration
to the August 25, 2014 EMG/NCV study, did not perform a proper neurologic examination, and
failed to provide sufficient support or rationale for his zero percent permanent impairment rating
as he made no reference to the A.M.A., Guides. Counsel further argued that Dr. Merola’s
September 28, 2015 report also failed to provide rationale or support for the opinion cited. He
reported that it was unclear if Dr. Head was properly selected as the referee physician, and
whether physicians were bypassed who should have been selected over him. The record was
held open for 30 days.
By letter dated March 14, 2016, counsel submitted a March 3, 2016 narrative statement
from appellant outlining her difficulties with daily activities due to her work-related injury.
By decision dated April 28, 2016, OWCP’s hearing representative affirmed the
November 10, 2015 schedule award decision finding that the evidence of record failed to
establish that appellant sustained any permanent impairment to a member or function of the
body. He determined that Dr. Head’s report represented the special weight of the medical
evidence which was supported by Dr. Merola’s September 28, 2015 report, serving as an OWCP
DMA. The hearing representative explained that while the actual conflict was between
Dr. Becan and Dr. Singh, rather than between the prior DMA Dr. Magliato and Dr. Becan,
OWCP committed no error by referring the referee report to a new DMA. He also determined
that counsel had not demonstrated error by OWCP in selecting Dr. Head as the impartial medical
examiner.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.7 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the

7

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

6

appropriate standard for evaluating schedule losses.8 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards.9
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.10 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.11
Congress did not address the manner by which an impartial medical referee is to be
selected. Rather, this was left to the expertise of the Director in administering the compensation
program created under FECA.12 Under FECA the Director has exercised discretion to implement
practices pertaining to the selection of the impartial medical referee. Unlike second opinion
physicians, the selection of referee physicians is made from a strict rotational system.13 OWCP
will select a physician who is qualified in the appropriate medical specialty and who has no prior
connection with the case.14
In turn, the Director has delegated authority to each OWCP district for selection of the
referee physician by use of the Medical Management Application (MMA) within iFECS.15 This
application contains the names of physicians who are Board-certified in over 30 medical
specialties for use as referees within appropriate geographical areas.16 The MMA in iFECS
replaces the prior PDS method of appointment.17 It provides for a rotation among physicians
from the American Board of Medical Specialties, including the medical boards of the American

8

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

12

See J.S., Docket No. 12-1343 (issued April 22, 2013).

13

Supra note 9 at Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

14

Id. at Chapter 3.500.4(b)(1).

15

Id. at Chapter 3.500.4(b)(6).

16

Id. at Chapter 3.500.4(b)(6)(a).

17

Id. at Chapter 3.500.5 (May 2013). The Board notes that the replacement took place effective July 2011; see
W.H., Docket No. 13-328 (issued April 11, 2013).

7

Medical Association, and those physicians Board-certified with the American Osteopathic
Association.18
Selection of the referee physician is made through use of the application by a medical
scheduler. The claims examiner may not dictate the physician to serve as the referee examiner.19
The medical scheduler inputs the claim number into the application, from which the claimant’s
home zip code is loaded.20 The scheduler chooses the type of examination to be performed
(second opinion or impartial referee) and the applicable medical specialty.21 The next physician
in the roster appears on the screen and remains until an appointment is scheduled or the
physician is bypassed. If the physician agrees to the appointment, the date and time are entered
into the application. Upon entry of the appointment information, the application prompts the
medical scheduler to prepare a Form ME023, appointment notification report for imaging into
the case file.22 Once an appointment with a medical referee is scheduled the claimant and any
authorized representative is to be notified.23
OWCP procedures indicate that the MMA uses zip code clusters to select an appropriate
physician. It begins with the claimant’s home zip code cluster. OWCP procedures state:
“If every physician in the initial zip cluster must be bypassed, the [MMA] will
then select physicians outside of the zip cluster that are within a 50-mile range of
the claimant’s home zip code. Physicians are presented in the same order as the
initial zip cluster (first those who have never previous had an appointment
scheduled within the [MMA], and then those that have had a previous
appointment scheduled).
“If every physician in the 50-mile range outside of the zip cluster must be
bypassed, the [MMA] then extends to a 75-mile range, and continues to expand in
25-mile increments until the 200-mile range is reached.”24

18

Id. at Chapter 3.500.5(a).

19

Id. at Chapter 3.500.5(b).

20

Id. at Chapter 3.500.5(c).

21

Id. The roster of physicians is not made visible to the medical scheduler under the application. The medical
scheduler may update information pertaining to whether the selected physician can schedule an appointment in a
timely manner and, if not, will enter an appropriate bypass code. Id. at Chapter 3.500.5(e-f). Upon entry of a
bypass code, the MMA will present the next physician based on specialty and zip code.
22

Id. at Chapter 3.500.5(g). The ME023 serves as documentary evidence that the referee appointment was
scheduled through the MMA rotational system. Should an issue arise concerning the selection of the referee
specialist, a copy of the ME023 may be reproduced and copied for the case record.
23

Id. at Chapter 3.500.4(d). Notice should include: the existence of a conflict in the medical evidence under
section 8123; the name and address of the referee physician with date and time of appointment; a warning of
suspension of benefits under section 8123(d); and information on how to claim travel expenses.
24

Id. at Chapter 3.500.5(e)(2) (May 2013).

8

ANALYSIS
The Board finds that the case is not in posture for decision.25 The evidence does not
establish that OWCP properly selected Dr. Head as an impartial medical examiner.26
OWCP procedures provide that a referee physician should be selected only through the
use of the MMA in the absence of exceptional circumstances. It states:
“[W]here exceptional circumstances exist (such as when an esoteric specialty is required,
or the [MMA] does not contain any physicians of the required specialty within a 200-mile
radius of the claimant’s home zip code), scheduling outside of the [MMA] may be
appropriate. If this occurs, the scheduler should consult an appropriate directory of
Board-certified medical specialists to obtain names of suitable physicians for referral.
Documentation outlining the rationale for this decision must be placed in the case file,
and the decision must be approved by a [s]upervisory [c]laims [e]xaminer or higher level
authority.”27
In a July 22, 2015 memorandum to file, OWCP indicated that appellant had been
evaluated by numerous orthopedic physicians in her geographical area. It advised that it had
conducted a random search online for physicians and located Dr. Head. OWCP noted that
Dr. Head was in the PDS but that his name did not “come up in the rotation.” It did not provide
any rationale for its failure to utilize the MMA in its selection process other than an unsupported
statement indicating that appellant had been seen by many physicians in her area and those in the
PDS were not interested in accepting the assignment.28 Nor did it provide an ME023
documenting Dr. Head’s selection under the MMA.29 As noted, it is not appropriate for a claims
examiner to dictate the physician who serves as the impartial medical examiner.30 Only if
exceptional circumstances exist should OWCP schedule appellant without using the MMA.31
The Board finds that OWCP has not demonstrated exceptional circumstances existed such that it
needed to look for a physician outside the MMA. It provided screen shots showing a few
physicians were bypassed but these are not fully legible and thus insufficient to show that OWCP
properly bypassed these physicians.32

25

G.J., Docket No. 11-1057 (issued December 12, 2011).

26

N.R., Docket No. 16-1613 (issued February 7, 2017).

27

Supra note 13 at Chapter 3.500.5(b).

28

Id.

29

Id. at Chapter 3.500.5(i).

30

Supra note 19.

31

See id.

32

See L.M., Docket No. 15-0543 (issued June 5, 2015).

9

A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. The procedures
contemplate that the impartial medical specialists will be selected on a strict rotating basis in
order to negate any appearance that preferential treatment exists between OWCP and a particular
physician.33 OWCP has an obligation to verify that it selected an impartial medical specialist in
a fair and unbiased manner. It maintains records for this very purpose.34
The Board has placed great importance on the appearance as well as the fact of
impartiality, and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist.35 OWCP did not follow its procedures in selecting Dr. Head as the impartial
medical examiner and thus the record contains an unresolved conflict in medical opinion
regarding the extent of appellant’s lower extremity impairment.36
As such, the Board will remand the case to OWCP for further medical development.37
On remand, OWCP should select another impartial medical examiner in accordance with its
procedures to determine whether appellant is entitled to a schedule award as a result of her workrelated injury. The referee physician should determine if there is any permanent impairment
based on the accepted employment injuries and utilize the proper tables and figures of the
A.M.A., Guides. After such further development as deemed necessary, it shall issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for decision

33

See Raymond J. Brown, 52 ECAB 192 (2001).

34

M.A., Docket No. 07-1344 (issued February 19, 2008).

35

See J.O., Docket No. 14-0039 (issued April 2, 2014).

36

Supra note 24.

37

R.R., Docket No. 16-0589 (issued February 3, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the April 28, 2016 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: September 1, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11