United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-35
Issued: July 20, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 5, 2009 appellant filed a timely appeal of the August 17, 2009 decision of the
Office of Workers’ Compensation Programs adjudicating her schedule award claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has greater than 11 percent impairment to each lower
extremity.
FACTUAL HISTORY
On November 10, 2005 appellant, then a 57-year-old supervisor, filed an occupational
disease claim alleging that she developed an injury to her lower extremities caused by frequent
standing and walking required in her job. On December 20, 2005 the Office accepted bilateral
plantar nerve lesions. On February 24 and April 21, 2006 appellant underwent surgery on her
left and right lower extremities, respectively, for excision of neuromas. The surgery was
performed by Dr. Seth M. Anderson, an attending podiatrist. Appellant returned to limited duty

on August 31, 2006 with standing restricted to five hours a day. On December 19, 2006 the
Office accepted the additional condition of bilateral tarsal tunnel syndrome. Appellant
underwent a left tarsal tunnel release on December 20, 2006. She returned to limited duty on
March 25, 2007 with standing restricted to two hours a day. On December 10, 2007 appellant
filed a claim for a schedule award. In 2008 she advised the Office that Dr. Anderson did not
provide impairment ratings. Appellant requested a referral to a physician who could provide an
impairment rating for her lower extremities.
On April 21, 2008 Dr. Jack C. Tippett, a Board-certified orthopedic surgeon, reviewed
the medical history and provided findings on physical examination. Appellant advised that she
had pain in both ankles and feet. Dr. Tippett stated that her feet were normal in appearance with
healed scars between the second and third toes on the dorsum of both feet. Posteromedially over
the left ankle there was also a healed incisional scar that was mildly tender to external pressure.
There was mild tenderness in both ankles with assisted inversion, eversion and dorsiflexion.
There was no swelling. There were areas of hypesthesia between the second and third toes of
both feet. These areas were checked with the two-point discrimination test in which there was
little duplication of response to the two points adjusted to one centimeter differences. Range of
motion was mildly decreased. Left ankle extension was decreased at 8 degrees and flexion was
normal at 40 degrees which constituted seven percent lower extremity impairment for mildly
decreased extension according to Table 17-11 at page 537 of the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
Inversion of the left ankle was decreased at 11 degrees and eversion was decreased at 7 degrees
which constituted four percent impairment based on Table 17-12 at page 537 (two percent each
for mildly decreased inversion and eversion). Right ankle extension was mildly decreased at 0
degrees and flexion was normal at 40 degrees which constituted seven percent impairment.
Right ankle inversion was mildly decreased at 12 degrees and eversion was mildly decreased at 5
degrees. Dr. Anderson found that appellant’s chronic pain did not appear to be significantly
intense, particularly when she wore her orthotics and used reasonable restraint in standing and
walking. He calculated 11 percent combined impairment to each lower extremity for decreased
range of motion.
On May 3, 2008 an Office medical adviser noted that Dr. Anderson found no impairment
due to pain, sensory change or weakness. His calculation of 11 percent impairment to each left
lower extremity was correct based on the fifth edition of the A.M.A., Guides.
By decision dated May 15, 2008, the Office granted appellant a schedule award based on
11 percent impairment of each lower extremity for 63.36 weeks, from August 27, 2007 to
November 12, 2008.1
On May 12, 2009 appellant requested reconsideration. She contended that she had
impairment to both lower extremities due to chronic pain in both ankles and feet. In a June 10,
2008 report, Dr. Anderson noted that appellant had pain in her left medial rearfoot caused by scar
tissue. On July 14, 2009 he stated that she had continuing pain to the balls and rear area of both
1

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or loss
of use of the lower extremity. 5 U.S.C. § 8107(c)(2). Multiplying 288 weeks by 11 percent for each lower
extremity equals 63.36 weeks of compensation.

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feet. Dr. Anderson discussed possible pain management evaluation if she decided to decline
further surgery. December 23, 2008 magnetic resonance imaging (MRI) scan reports of the left
and right foot were unremarkable. December 30, 2008 x-ray reports of the feet were essentially
negative.
On August 13, 2009 an Office medical adviser indicated that Dr. Anderson’s reports did
not establish that appellant had greater than 11 percent impairment to each lower extremity.
By decision dated August 17, 2009, the Office affirmed the May 15, 2008 decision.
LEGAL PRECEDENT
The schedule award provision of the Act2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides (5th ed.) has been adopted by the Office as the appropriate
standard for evaluating schedule losses.4
The A.M.A., Guides provides for three separate methods for calculating the lower
extremity permanent impairment of an individual: anatomic, functional and diagnosis based.5
The anatomic method involves noting changes, including muscle atrophy, nerve impairment and
vascular derangement, as found during physical examination.6 The diagnosis-based method may
be used to evaluate impairments caused by specific fractures and deformities, as well as
ligamentous instability, bursitis and various surgical procedures, including joint replacements
and meniscectomies.7 The functional method is used for conditions when anatomic changes are
difficult to categorize, or when functional implications have been documented and includes
range of motion, gait derangement and muscle strength.8 The evaluating physician must
determine which method best describes the impairment of a specific individual based on patient
history and physical examination.9 When uncertain about which method to use, the evaluator
should calculate the impairment using different alternatives and choose the method or

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id..

5

A.M.A., Guides 525.

6

Id.

7

Id.

8

Id. at 525, Table 17-1.

9

Id. at 548, 555.

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combination of methods that gives the most clinically accurate impairment rating.10 If more than
one method can be used, the method that provides the higher impairment rating should be
adopted.11
ANALYSIS
The Board finds that this case is not in posture for a decision.
Dr. Tippett noted that appellant had pain in both ankles and feet. He stated that her feet
were normal in appearance with healed scars between the second and third toes on the dorsum of
both feet. Posteromedially over the left ankle there was a healed incisional scar that was mildly
tender to external pressure. There was mild tenderness in both ankles with assisted inversion,
eversion and dorsiflexion. There were areas of hypesthesia between the second and third toes of
both feet. Left ankle extension was decreased at eight degrees which constituted seven percent
lower extremity impairment for mildly decreased extension according to Table 17-11 at page 537
of the fifth edition of the A.M.A., Guides. Inversion of the left ankle was decreased at 11
degrees and eversion was decreased at 7 degrees which constituted four percent impairment
based on Table 17-12 at page 537. Right ankle extension was mildly decreased at zero degrees
which constituted seven percent impairment. Right ankle inversion was mildly decreased at 12
degrees and eversion was mildly decreased at 5 degrees. Dr. Anderson found that appellant’s
chronic pain did not appear to be significantly intense, particularly when she wore her orthotics
and used reasonable restraint in standing and walking. He correctly calculated 11 percent
impairment to each lower extremity based on the range-of-motion measurements and the fifth
edition of the A.M.A., Guides.
The Board finds that Dr. Tippett did not provide sufficient explanation for excluding
impairment due to chronic pain. Dr. Anderson noted that appellant had chronic pain to the balls
and rear area of both feet. He discussed the possibility of pain management if she decided to
decline further surgery. Dr. Tippett found that appellant’s chronic pain was not “significantly
intense.” The fifth edition of the A.M.A., Guides does not require that pain be significant to
constitute impairment. It provides that sensory deficit or pain be rated using Table 16-10 at page
482.12 This table includes six grades of sensory deficit or pain, ranging from Grade 5 (no
impairment) to Grade 0 (complete sensory loss or severe pain). Grades 4 through 1 include
varying degrees of sensory loss or pain. Dr. Anderson failed to explain why not one of the
grades in Table 16-10 was applicable to appellant’s chronic pain level. Therefore, his opinion as
to appellant’s lower extremity impairment requires additional explanation. On remand the
Office should ask Dr. Tippett to provide a supplementary report addressing the issue of whether
appellant has any impairment to her lower extremities due to sensory loss or pain based on Table
16-10 and any other applicable sections of the fifth edition of the A.M.A., Guides. After such
further development as the Office deems necessary, it should issue an appropriate decision.

10

Id. at 526.

11

Id. at 527, 555.

12

Id. at 550, 17.2l (Peripheral Nerve Injuries).

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CONCLUSION
The Board finds that this case is not in posture for a decision. On remand the Office
should obtain a supplementary report from Dr. Tippett explaining whether appellant has any
impairment to her lower extremities due to sensory loss or pain.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 17, 2009 is set aside and the case is remanded for further
action consistent with this opinion.
Issued: July 20, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
DEPARTMENT OF THE NAVY, OFFICE OF
THE SECRETARY, PENTAGON,
Washington, DC, Employer
__________________________________________

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

Docket No. 15-0673
Issued: July 14, 2015

Case Submitted on the Record

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

JURISDICTION
On February 9, 2015 appellant filed a timely appeal from a December 3, 2014 merit
decision and a January 23, 2015 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish an injury
on September 24, 2013, as alleged due to his employment; and (2) whether OWCP properly
denied his request for review of the written record as untimely under 5 U.S.C. § 8124.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 24, 2014 appellant, then a 40-year-old lead financial management analyst,
filed a traumatic injury claim alleging that on September 24, 2013 he slipped on a wet bathroom
floor and reinjured his right shoulder as he hung onto the sink counter to keep from falling. No
medical evidence was submitted with the claim.
By letter dated October 27, 2014, OWCP advised appellant of the deficiencies in his
claim and provided him 30 days in which to submit additional factual and medical evidence, to
include a diagnosis of a medical condition sustained as a result of the claimed event.
In response, OWCP received a November 13, 2014 statement from appellant, a work
order dated September 23, 2013, physical therapy reports dated July 17, October 21, and 29,
2013, and diagnostic test reports dated October 26, 2011 and October 20, 2014.
Medical reports from the employing establishment’s health unit dated February 24 and
September 17, 2014 noted appellant’s complaints of chronic right shoulder pain and knee pain.
Results of previous magnetic resonance imaging (MRI) scans were also noted.
In an October 16, 2014 Form CA-20, Dr. Robert G. Najarian, a Board-certified
orthopedic surgeon, related that appellant had a shoulder injury 30 years prior and injured his
right shoulder on September 24, 2013. He noted MRI scan findings and diagnosed right
shoulder partial thickness rotator cuff tear. By checkmark “yes” Dr. Najarian opined that this
condition was caused or aggravated by appellant’s fall at work.
In an October 20, 2014 medical report, Dr. Najarian requested physical therapy services
for right shoulder bicipital tendinitis and rotator cuff tendinitis.
By decision dated December 3, 2014, OWCP denied appellant’s claim as the medical
evidence did not establish that the diagnosed condition was causally related to the work incident.
In an appeal request form postmarked January 12, 2015, received by OWCP on
January 15, 2015, appellant requested review of the written record. In a January 6, 2015 report,
Dr. Najarian noted that appellant fell at work in 2013. He opined that the current MRI scan
showed a partial rotator cuff tear, partial intrasubstance tearing along the biceps tendon, and
bicipital tendinitis consistent with appellant’s work-related fall. Dr. Najarian also stated that
appellant’s complaints of shoulder pain and right upper extremity physical limitations had a
direct correlation with the MRI scan findings and was an injury pattern consistent with his
history of a fall. He noted that appellant had a previous history of shoulder injury, but that
included a clavicle fracture without any rotator cuff and bicipital tendon injury.
By decision dated January 23, 2015, OWCP denied appellant’s request for review of the
written record as untimely without a merit review. It considered his request within its discretion,
but found that his case could be addressed equally well by a request for reconsideration and the
submission of evidence showing a causal relationship between his claimed condition and the
work incident.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.4
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.8 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
ANALYSIS -- ISSUE 1
On September 24, 2013 appellant slipped in the bathroom at the employing establishment
and claimed injury to his right shoulder. The evidence supports that the claimed work incident
occurred as alleged. Therefore, the Board finds that the first component of fact of injury is
established. However, the medical evidence is insufficient to establish that the employment
2

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

3

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

4

John J. Carlone, 41 ECAB 354 (1989); B.F., Docket No. 09-60 (issued March 17, 2009).

5

D.B., 58 ECAB 464 (2007); Paul Foster, 56 ECAB 208 (2004).

6

D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 2; C.B., Docket No. 08-1583 (issued
December 9, 2008).
7

A.D., 58 ECAB 149 (2006); Michael S. Mina, 57 ECAB 379 (2006); Y.J., Docket No. 08-1167 (issued
October 7, 2008).
8

Sedi L. Graham, 57 ECAB 494 (2006); J.J., Docket No. 09-27 (issued February 10, 2009).

9

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

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incident on September 24, 2013 caused appellant’s medically diagnosed right shoulder
conditions.
Appellant submitted reports from Dr. Najarian. In his October 16, 2014 Form CA-20,
Dr. Najarian diagnosed right shoulder partial thickness rotator cuff tear and opined with a
checkmark “yes” that the condition was caused or aggravated by appellant’s fall at work. He,
however, did not provide a probative rationalized opinion regarding whether the September 24,
2013 work incident caused a personal injury. The Board has held that, without further
explanation or rationale, a checked box is insufficient to establish causation.10 In his October 20,
2014 report, Dr. Najarian provided diagnoses of right shoulder bicipital tendinitis and rotator
cuff tendinitis, but provided no opinion as to the causal relationship of such conditions. Medical
evidence without an opinion as to causal relationship is of little probative value.11 As such,
Dr. Najarian’s reports are of diminished probative value to establish appellant’s claim.
Notes from employing establishment’s health unit dated September 17, 2014 indicate that
appellant had chronic shoulder pain and knee pain. However, the Board has held that pain and
spasm are generally descriptions of symptoms and are not, in themselves, considered firm
medical diagnoses.12 As such, the health unit’s description of appellant’s symptoms does not
establish a firm medical diagnosis from the accepted incident.
Physical therapy notes are also insufficient to establish appellant’s claim. Physical
therapists are not physicians and a physical therapist’s opinion regarding a diagnosis or causal
relationship is of no probative value.13 Diagnostic testing is also insufficient to establish
appellant’s claim as it is diagnostic in nature and therefore does not address causal relationship.
The Board finds that the medical evidence of record does not establish that appellant
sustained a medical condition causally related to his federal employment. An award of
compensation may not be based on surmise, conjecture, or speculation. Neither the fact that
appellant’s condition became apparent during a period of employment, nor the belief that his
condition was caused, precipitated, or aggravated by his employment, is sufficient to establish
causal relationship.14 Causal relationship must be established by rationalized medical opinion
evidence. As noted, the medical evidence is insufficient to establish appellant’s claim.
Consequently, OWCP properly found that appellant did not meet his burden of proof in
establishing his claim.
10

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

11

Jaja K. Asaramo, 55 ECAB 200 (2004).

12

See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued
October 10, 2008) (regarding pain); J.S., Docket No. 07-881 (issued August 1, 2007) (regarding spasm).
13

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as physician as defined in 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as
follows: (2) physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by State law. See Merton J. Sills, 39 ECAB
572, 575 (1988).
14

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

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of FECA provides that a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his claim before a representative of the Secretary.15 Section
10.615 of the federal regulations implementing this section of FECA provides that a claimant
shall be afforded a choice of an oral hearing or a review of the written record.16 The request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.17 A claimant is entitled to a hearing or review
of the written record as a matter of right if the request is filed within 30 days.18
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.19
ANALYSIS -- ISSUE 2
In a decision dated December 3, 2014, OWCP denied appellant’s traumatic injury claim,
and provide appeal rights. Appellant sought a review of the written record in a letter postmarked
January 12, 2015. By decision dated January 23, 2015, OWCP denied his request for a review of
the written record as untimely under section 8124 of FECA.
The 30-day time period for determining the timeliness of appellant’s review of the
written record began on December 4, 2014 and ended on Saturday, January 3, 2015. As
January 3, 2015 was a Saturday, appellant had until Monday, January 5, 2015 to file his appeal.20
As appellant’s request for a review of the written record was postmarked January 12, 2015, he
was not entitled to review of the written record as a matter of right.
OWCP has the discretionary power to grant a hearing or review the written record when a
claimant is not entitled to a hearing or review as a matter or right. It properly exercised its
15

5 U.S.C. § 8124(b)(1).

16

20 C.F.R. § 10.615.

17

Id. at § 10.616(a).

18

See Leona B. Jacobs, 55 ECAB 753 (2004).

19

20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).
20

See John B. Montoya, 43 ECAB 1148 (1992). The Board has held that, in computing a time period, the date of
the event from which the designated period of time begins to run shall not be included while the last day of the
period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday.

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discretion by stating that it had considered the matter in relation to the issue involved and denied
appellant’s request for a review of the written record on the basis that the case could be resolved
by submitting additional evidence to OWCP with a reconsideration request. The Board has held
that the only limitation on OWCP’s discretionary authority is reasonableness. An abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deduction from
established facts.21 In this case, the evidence of record does not establish that OWCP committed
any action in connection with its denial of appellant’s request for a review of the written record
which could be found to be an abuse of discretion. Consequently, OWCP properly denied his
request for an oral hearing as untimely under section 8124 of FECA.
On appeal appellant argues that Dr. Najarian provided a January 6, 2015 letter which
established causal relationship of his shoulder conditions. The Board notes that Dr. Najarian’s
January 6, 2015 letter addressing causal relationship was received after OWCP’s December 3,
2014 merit decision. As this report was not considered by OWCP in reaching a decision, the
Board lacks jurisdiction to review this new evidence for the first time on appeal.22
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a shoulder condition in the performance of duty on September 24, 2013, as alleged.
Furthermore, the Board finds that OWCP properly denied appellant’s request for review of the
written record as untimely.

21

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

22

See 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the January 23, 2015 and December 3, 2014
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 14, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

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

Docket No. 09-1795
Issued: April 20, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 29, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 30, 2008 merit decision denying her traumatic injury claim
and the December 31, 2008 nonmerit decision denying her request for merit review. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.1
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that she
sustained an injury in the performance of duty on July 19, 2008; and (2) whether the Office
properly refused to reopen her case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).

1

Appellant submitted additional evidence after the Office rendered its September 30, 2008 decision. The Board’s
jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 29, 2008 appellant, then a 42-year-old lead transportation security screener, filed
a traumatic injury claim alleging that she sustained injuries to her left knee and ankle at noon on
July 19, 2008 while getting out of a chair at work. She stated that she felt extreme pain in her
left knee and ankle as she placed her left foot on the floor and was unable to place any body
weight on her left leg.
Appellant provided a July 20, 2008 witness statement from Tiffany Moore, a coworker,
who reported that she observed her getting out of her chair around noon on the date in question.
The next thing Ms. Moore knew, appellant was doubled over in pain, stating that she had injured
her knee.
Appellant submitted a July 24, 2008 report from Dr. Melanie S. Orencia, Board-certified
in the field of family medicine, who treated her on July 22, 2008 for left knee and ankle pain.
Dr. Orencia stated that, on July 19, 2008, while getting out of a “high-type chair,” appellant
twisted her left foot, fell down and landed on her hands. Appellant experienced pain in the left
ankle and left knee and was unable to put any weight on her left leg the following day.
Dr. Orencia reported that appellant had a history of torn meniscus in 2005 and underwent surgery
in 2006, but she had no limitation of motion until the July 19, 2008 incident. On examination,
appellant walked with a limp. There was positive tenderness and swelling on the lateral aspect
of the left knee joint. She had positive crepitation when pressure was applied to the left patella
and mild tenderness on the left lateral malleolus area. Appellant had full range of motion of the
left ankle and her peripheral pulses were full and equal. She had decreased range of motion of
the left knee joint on flexion, internal and external rotation. Dr. Orencia diagnosed left knee pain
and ordered an x-ray of appellant’s left knee. A July 29, 2008 follow-up report reflected
appellant’s complaints of continuing left knee pain.
On August 6, 2008 Dr. Orencia stated that appellant began complaining of left knee pain
on July 22, 2008, when she fell and hurt her knee while she was at work. A July 28, 2008
magnetic resonance imaging (MRI) scan showed findings consistent with iliotibial band
syndrome, including a lateral meniscal tear and small medial meniscus without a tear. She
indicated that appellant had a Grade 3 to 4 chondromalacia, posterolateral tibial plateau, small
erosions and Grade 3 chondromalacia medial compartment. The patella showed low-grade
chondromalacia, medial facet. There was positive limitation of motion of the left knee joint in
certain areas and positive swelling on left side of the left knee. Appellant had minimal edema on
the lateral aspect of her left knee joint; pain on palpation on the lateral aspect of the left knee
joint; decreased range of motion on internal and external rotation; and flexion of the left knee
joint. She was, however, able to internally and externally rotate the left knee joint to about 30
degrees on each side; flex her knee joint to about 30 degrees; and do full extension of her left
knee joint. Dr. Orencia diagnosed iliotibial band syndrome and left lateral meniscal tear.
The record contains a July 22, 2008 report of a left knee x-ray and a July 28, 2008 report
of an MRI scan of the left knee.
By letter dated August 21, 2008, the Office informed appellant that the information
submitted was insufficient to establish her claim, noting that there was no medical evidence

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establishing that her diagnosed knee condition was causally related to factors of her claimed
injury. It informed her that she had 30 days to submit additional evidence to support her claim,
including a history of her prior knee condition and a medical narrative explaining how the
alleged July 19, 2008 incident caused or aggravated her diagnosed condition.
Appellant submitted an August 19, 2008 report from Dr. Joshua A. Johnston, a treating
physician, who diagnosed left knee arthrosis and left lateral meniscus tear. Dr. Johnston stated
that she had an acute onset of pain and swelling on July 19, 2008, when she sustained a twisting
injury to her left knee. He noted a history of a partial meniscectomy of the left knee two years
prior. On examination of the left lower extremity, appellant had some tenderness to palpation
about the lateral joint line. McMurray examination was positive for lateral pain. Range of
motion was from 0 to 130 degrees, with pain at the extreme of flexion. X-rays showed a
moderate degree of arthrosis in the lateral compartment and mild arthrosis in the patello femoral
compartment with slight valgus alignment. A report of a left knee MRI scan revealed
degenerative changes in the lateral compartment, as well as a lateral meniscus tear. Dr. Johnston
recommended surgery to correct the meniscal tear.
On August 31, 2008 Dr. Orencia stated that appellant had been experiencing constant
pain since sustaining a left knee injury on July 19, 2008. He noted that MRI scan findings
showed IT band syndrome and lateral meniscal tear, for which she was awaiting surgery.
Examination revealed that appellant was able to flex her left knee joint to about 70 degrees;
internally rotate her left knee joint to about 30 degrees; externally rotate the left knee joint to
about 30 degrees; and fully extend the left knee joint.
By decision dated September 30, 2008, the Office denied appellant’s claim, finding that
the medical evidence of record failed to demonstrate that the diagnosed left knee condition was
causally related to the established work-related events.
On October 14, 2008 appellant requested reconsideration of the Office’s April 25, 2008
decision. She submitted an August 26, 2008 report from Dr. Orencia and September 2 and
October 10, 2008 reports from Dr. Johnston, which addressed the cause and progression of
appellant’s left knee condition. In a September 5, 2008 statement, appellant reiterated the
circumstances surrounding the July 19, 2008 incident and contended that it was the cause of her
left knee condition.
By decision dated December 16, 2008, the Office denied modification of its previous
decision.
On December 26, 2008 appellant submitted an appeal request form requesting
reconsideration. By decision dated December 31, 2008, the Office denied her request for merit
review.
On appeal, appellant seeks a reversal of the Office’s decision, contending that she was
unaware that she was required to provide additional medical documentation.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability or specific condition for which
compensation is claimed, is causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
When an employee claims that he sustained a traumatic injury in the performance of
duty, he must establish the “fact of injury,” consisting of two components which must be
considered in conjunction with one another. The first is whether the employee actually
experienced the incident that is alleged to have occurred at the time, place and in the manner
alleged. The second is whether the employment incident caused a personal injury and generally
this can be established only by medical evidence.5
The medical evidence required to establish causal relationship, generally, is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

5

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q), (ee).
6

Id.

4

ANALYSIS
The Board finds that this case is not in posture for a decision as to whether appellant
sustained an injury in the performance of duty.
An employee who claims benefits under the Act has the burden of establishing the
essential elements of his or her claim. The claimant has the burden of establishing by the weight
of reliable, probative and substantial evidence that the condition for which compensation is
sought is causally related to a specific employment incident or to specific conditions of the
employment. As part of this burden, the claimant must present rationalized medical opinion
evidence, based upon a complete and accurate factual and medical background, establishing
causal relationship.7 However, it is well established that proceedings under the Act are not
compensation, the Office shares responsibility in the development of the evidence to see that
justice is done.8
The Office accepted that the July 19, 2008 incident occurred as alleged. It denied
appellant’s claim, however, on the grounds that the evidence failed to establish a causal
relationship between the established event and her diagnosed left knee condition. The Board
finds that the medical evidence of record, though not fully rationalized, supports a causal
relationship between the accepted July 19, 2008 incident and appellant’s left knee condition.
Dr. Orencia began treating appellant three days after the accepted incident. She provided
a factual account of the incident, which reflected that appellant twisted her left foot on July 19,
2008, while getting out of a “high-type chair.” Dr. Orencia exhibited an awareness of appellant’s
prior medical history, which involved a partial meniscectomy of the left knee in 2006, but noted
that appellant had no limitation of motion in her knee until the July 19, 2008 incident. She
provided detailed examination findings, diagnosed left knee pain and ordered an x-ray of her left
knee. On August 6, 2008 Dr. Orencia stated that appellant began complaining of left knee pain
on July 22, 2008, following her work-related knee injury. She reviewed MRI scan results, which
showed findings consistent with iliotibial band syndrome, including a lateral meniscal tear and
small medial meniscus without a tear and provided examination findings, on which she based her
diagnoses of iliotibial band syndrome and left lateral meniscal tear. On August 31, 2008
Dr. Orencia reiterated her previous diagnoses, stating that appellant had been experiencing
constant pain since sustaining a left knee injury on July 19, 2008. Her reports provide detailed
examination findings, which support a definitive diagnosis and are factually consistent with
appellant’s allegation that she injured her left knee on July 19, 2008.
On August 19, 2008 Dr. Johnston stated that appellant had an acute onset of pain and
swelling on July 19, 2008, when she sustained a twisting injury to her left knee. He provided
examination findings, reviewed appellant’s medical history and reports of MRI scans and x-rays
and diagnosed left knee arthrosis and left lateral meniscus tear. Although Dr. Johnston’s report
7

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).
8

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, supra note 7; Dorothy L. Sidwell, 36 ECAB
699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

5

does not contain an opinion as to the cause of appellant’s current knee condition, it is compatible
with Dr. Orencia’s reports and supports appellant’s claim that she injured her knee on
July 19, 2008.
The Board notes that, while none of the reports of appellant’s attending physicians is
completely rationalized, they are consistent in indicating that she sustained an employmentrelated knee injury. Moreover, these reports are not contradicted by any substantial medical or
factual evidence of record. While the reports are not sufficient to meet appellant’s burden of
proof to establish her claim, they raise an uncontroverted inference that her current knee
condition was caused or aggravated by the established work incident and are sufficient to require
the Office to further develop the medical evidence and the case record.9 On remand, the Office
should submit a statement of accepted facts to a qualified physician, in order to obtain a
rationalized opinion as to whether her current condition is causally related to the established
July 19, 2008 incident, either directly or through aggravation, precipitation or acceleration.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained an injury in the performance of duty.

9

See Virginia Richard, supra note 7; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41
ECAB 354 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the September 30, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.10
Issued: April 20, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

In light of the Board’s ruling on the first issue, the second issue is moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
INSTALLATION STATION,
Mechanicsburg, PA, Employer
__________________________________________

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

Docket No. 09-1705
Issued: June 15, 2010

Case Submitted on the Record

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

JURISDICTION
On June 24, 2009 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated February 18, 2009, which found that an overpayment
occurred in the amount of $792.61. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over these issues.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment during the period December 15 to 20, 2008 in the amount of $792.61; and
(2) whether the Office properly found that he was at fault in creating the overpayment, thus
precluding waiver of the recovery.
FACTUAL HISTORY
On July 6, 2006 appellant, then a 39-year-old firefighter, filed an occupational disease
claim alleging that he sustained a cervical condition in the performance of duty. He stopped

work on June 26, 2006. The Office accepted the claim for spinal stenosis in the cervical region
and intervertebral disc disorder with myelopathy, cervical region. Appellant’s claim was
expanded to include chronic pain syndrome. On December 13, 2007 he underwent disc
replacement surgery.1
The record reflects that appellant was receiving compensation through direct deposit.
Appropriate compensation benefits were authorized and paid.
By letter dated May 20, 2008, the Office informed appellant that he would receive
$3,899.00 in gross compensation every 28 days. Appellant was also advised that his
compensation would continue as long as the medical evidence supported his inability to work.
Additionally, he was advised that he must “NOTIFY THIS OFFICE IMMEDIATELY WHEN
YOU RETURN TO WORK.” Appellant was advised that, if he worked for any portion of the
period for which compensation was received, he must return the check to the Office, or an
overpayment of compensation would result.
On December 15, 2008 the vocational rehabilitation counselor notified the Office that
appellant had accepted full-time employment in the private sector.2
In a letter dated December 23, 2008, the Office advised appellant that, since he returned
to work on December 15, 2008, notification was received too late to make adjustments to the
compensation payment for the period November 23 to December 20, 2008. It advised appellant
that, since he had returned to work full time, he was not entitled to compensation for the period
December 15 to 20, 2008. Appellant was advised that, in order to avoid an overpayment, he
must send a check in the amount of $792.61 for the amount of compensation he was not entitled
to receive for the period December 15 to 20, 2008.
On January 14, 2009 the Office made a preliminary finding that an overpayment of
$792.61 arose because appellant returned to work on December 15, 2008 but continued to
receive full compensation benefits for total disability through December 20, 2008. It advised
appellant that he returned to full-time modified duty on December 15, 2008, and should have
been paid nothing after that date. The Office found that appellant was at fault in the creation,
because he knowingly accepted a payment which he knew or should have known to be incorrect.
It further informed appellant that he had 30 days to request a telephone conference, a final
decision based on the written evidence, or a prerecoupment hearing on the issues of fault and
possible waiver.
In memoranda to the file dated January 12 and 14, 2009, the Office noted that appellant
returned to full-time work with a private employer on December 15, 2008. It determined that
appellant was on the periodic rolls from November 23 to December 20, 2008. However,
appellant should not have been paid for the period December 15 to 20, 2008, thus an
1

Appellant stopped work again on November 19, 2007. Thereafter, the Office accepted a recurrence of disability
on March 29, 2008.
2

The record indicates that appellant’s earnings in his new job exceeded those he earned with the employing
establishment when he stopped work.

2

overpayment was created. The Office indicated that for the period November 23 to
December 20, 2008 appellant received $3,698.85. It indicated that appellant should have
received $2,906.24 as payment for the period November 23 to December 14, 2008. The Office
calculated that the difference between the amount paid for the entire period, and the amount to
which appellant was entitled resulted in a total overpayment of $792.61 ($3,698.85 minus
$2,906.24). Its payment records reflected that, on December 20, 2008, appellant received a net
$3,698.85 direct deposit for the period November 23 to December 20, 2008. The Office
deducted the following amounts from the gross amount of $3,899.00: health benefits insurance
(HBI) $124.30; basic life insurance (BLI) $20.10 and optional life insurance (OLI) $21.40). A
calculation of the payment that appellant should have received was also included. It reflected
that appellant should have received a direct deposit in the net amount of $2,906.24 for the period
November 23 to December 14, 2008. The Office deducted the following amounts from the gross
amount of $3,063.50: HBI $97.66; BLI $15.79 and OLI $16.81.
In a decision dated February 18, 2009, the Office finalized its preliminary finding that
appellant received an overpayment of compensation in the amount of $792.61 for the period
December 15 to 20, 2008, based on the receipt of compensation for disability after he returned to
work. It further found that he was at fault in the creation of the overpayment, as he accepted a
payment he knew or should have known was incorrect. The Office advised appellant to repay
this amount in full or to contact the Office to make repayment arrangements.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides that the United States shall pay
compensation for the disability or death of an employee resulting from personal injury sustained
while in the performance of his duty.3 A claimant, however, is not entitled to receive temporary
total disability and actual earnings for the same period. Office procedures provide that an
overpayment in compensation is created when a claimant returns to work but continues to
receive wage-loss compensation.4
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation in the amount
of $792.61. The record reflects that appellant returned to work without wage loss effective
December 15, 2008. The record reflects that he continued to receive payments for compensation
for temporary total disability through December 20, 2008. When an employee returns to work
and ceases to have any loss of wages, he is no longer entitled to receive compensation for wage
loss.5 As appellant was not entitled to receive compensation after he retuned to work, the Office
properly found an overpayment of compensation was created.

3

5 U.S.C. § 8102(a).

4

L.S., 59 ECAB ___ (Docket No. 07-1961, issued February 14, 2008). See Federal (FECA) Procedure Manual,
Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).
5

See Kenneth E. Rush, 51 ECAB 116 (1999).

3

The Office, as noted, indicated that appellant received net compensation for the period
November 23 to December 20, 2008 in the amount of $3,698.85. It indicated that he was entitled
to receive compensation for the period November 23 to December 14, 2008, as he returned to
work on December 15, 2008. The Office explained that appellant would be entitled to receive
compensation of $2,906.24 during this period. It subtracted the amount he should have received,
$2,906.24, from the amount he actually received, $3,698.85, to determine that the amount of the
overpayment is $792.61.
Consequently, appellant received an overpayment of compensation from December 15 to
20, 2008 in the amount of $792.61. There is no contrary evidence regarding the fact of and the
amount of the overpayment. The Board will affirm the Office’s finding on the fact and the
amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act6 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of [the Act] or would be against
equity and good conscience.” Section 10.433 of the Office’s implementing regulations7 provide
that, in determining whether a claimant is at fault, the Office will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be
incorrect.”
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.8
The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit which involve a series of payments over several
months with clear knowledge that the payments were incorrect.9 It is not appropriate, however,
to make a finding that a claimant has accepted an overpayment via direct deposit until such time
6

5 U.S.C. § 8129(b).

7

20 C.F.R. § 10.433.

8

Id. at § 10.433(b).

9

See Karen K. Dixon, 56 ECAB 145 (2004).

4

as a reasonable person would have been aware that this overpayment had occurred. This
awareness could be established either through documentation such as a bank statement or
notification from the Office or where a reasonable period of time has passed during which a
claimant could have reviewed independent confirmation of the incorrect payment.10
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment because
he accepted a payment that he knew or should have known to be incorrect. The Board finds that
appellant was without fault with regard to the Office’s first direct deposit following his return to
work.
On December 20, 2008 the Office made a direct deposit in the amount of $3,698.85 into
appellant’s bank account for the period November 23 to December 20, 2008, when he was
entitled to receive only $2,906.24. Accordingly, the December 20, 2008 direct deposit resulted
in an overpayment of $792.61. On January 14, 2009 the Office issued a preliminary
determination of the overpayment, finding that appellant was aware or should have been aware
that he was not entitled to the entire payment because he had returned to full-time modified duty
and accepted a payment which he knew or should have known was incorrect. The Board has
held that an employee who receives payments from the Office in the form of direct deposit may
not be at fault the first time incorrect funds are deposited into his account, as the acceptance of
the resulting overpayment lacks the requisite knowledge.11 The Board has noted that receiving
an erroneous direct deposit payment immediately following the employee’s return to work does
not necessarily create the requisite knowledge to find that a claimant was at fault in the creation
of the overpayment.12
The Board finds that appellant was without fault regarding the deposit of $3,698.85 into
his account on December 20, 2008. While appellant accepted the overpayment by gaining
control of the funds deposited into his account pursuant to his authorization, he did not know that
he would receive an incorrect payment on that day. Unlike the situation in which a claimant
receives a physical check and is aware of the amount of the payment before depositing it into her
account, appellant was not on notice of the amount of the payment until after it was deposited
electronically into his account.13 The Board finds that the Office improperly determined that
appellant was at fault in the creation of the overpayment. The Office has not presented sufficient
evidence to establish that he accepted a payment which he knew or should have known to be
incorrect. The Board will, therefore, reverse the Office’s finding of fault regarding the
overpayment. A finding of no fault does not mean, however, that the claimant may keep the
money, only that the Office must consider eligibility for waiver for this period. The case will
thus be remanded to the Office to determine whether he is entitled to waiver for this period.
10

See K.H., Docket No. 06-191 (issued October 30, 2006).

11

Tammy Craven, 57 ECAB 689 (2006).

12

Supra note 6.

13

W.P., 59 ECAB ___ (Docket No. 08-202, issued May 8, 2008); see also id.

5

On appeal, appellant asserts that he informed the Office of his return to work, that he
should not be punished for a clerical error and that repayment will cause hardship. However, as
the Board has found that he was not at fault in creating the overpayment, the Office will further
consider matters relating to whether the overpayment must be repaid.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment during the period December 15 to 20, 2008 in the amount of $792.61. The Board
also finds that the Office improperly determined that he was at fault in the creation of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the February 18, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part, and the case is
remanded for action consistent with this decision.
Issued: June 15, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
WAR COLLEGE, Carlisle Barracks, PA,
Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-1948
Issued: March 5, 2014

Case Submitted on the Record

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

On August 23, 2013 appellant filed an application for review of an Office of Workers’
Compensation Programs (OWCP) decision dated July 22, 2013, which denied his request for
reconsideration as it was untimely filed and did not establish clear evidence of error.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. Following a November 30,
2011 decision that denied appellant’s claim for an occupational disease on the grounds that he
failed to submit medical evidence establishing a causal relationship between the accepted work
events and his diagnosed condition, appellant, through counsel, requested reconsideration on
July 15, 2013. Appellant also submitted a new February 11, 2013 medical report from
Dr. Michael E. Darowish, an orthopedist. This report was received by OWCP on July 17, 2013.
In its July 22, 2013 decision, OWCP denied appellant’s reconsideration request on the grounds
that it was untimely filed and did not establish clear evidence of error. OWCP specifically noted

1

41 ECAB 548 (1990).

receipt of appellant’s reconsideration request and each piece of newly submitted evidence but it
did not reference the February 11, 2013 report from Dr. Darowish.
The Board finds that as OWCP, in its July 22, 2013 decision, did not properly review all
the evidence in the record prior to its July 22, 2013 decision, the case will be remanded to
OWCP to enable it to properly consider all the evidence in the record at the time of the July 22,
2013 decision.2 Following such review, OWCP shall issue an appropriate decision on the
reconsideration request.
IT IS HEREBY ORDERED THAT the July 22, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case recorded is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: March 5, 2014
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

2

See Linda Johnson, 45 ECAB 439, 440 (1994) (where the Board held that it is necessary that OWCP review all
evidence submitted by a claimant and received by OWCP prior to issuance of its final decision).

2


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

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Appearances:
Richard Daniels, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-606
Issued: November 15, 2013

Case Submitted on the Record

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

JURISDICTION
On January 17, 2013 appellant, through her attorney, filed a timely appeal from a July 27,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP abused its discretion by denying authorization for left
total hip replacement surgery; and (2) whether appellant met her burden of proof to establish that
she was disabled for work from September 10, 2008 to December 15, 2010 as a result of her
accepted conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 10, 2008 appellant, then a 55-year-old letter carrier, filed an occupational
disease claim alleging lower back and left hip pain as a result of delivering mail and carrying her
mailbag in the performance of duty. She first became aware of her condition on January 15,
2008 and realized that it was caused or aggravated by her employment on August 11, 2008.
Appellant stopped work on September 12, 2008. The employing establishment controverted the
claim.
On January 12, 2009 OWCP advised appellant that there was insufficient evidence to
establish her claim. It requested additional information to establish that she sustained a lower
back and left hip condition causally related to her employment duties.
In a January 21, 2009 report, Dr. Samantha Shah, a Board-certified internist, noted that
appellant had worked as a postal carrier since 1989 and described her work duties. She noted
that appellant developed progressively worsening lower back and left hip pain and that she
stopped work in August 2008. Dr. Shah recommended appellant undergo left hip replacement.
In an April 22, 2009 report, Dr. David L. Mattingly, an osteopath, related appellant’s
complaints of back and left hip pain with left leg radicular symptoms. He reported that
performing normal duties on her job involved carrying a fairly heavy mailbag for considerable
distances. Appellant experienced a pulling and painful sensation in her lower back.
Dr. Mattingly noted that appellant stopped work on September 12, 2008 when the pain became
too disabling to allow her to continue working. Upon examination, he observed tenderness of
the lumbar spine with range of motion, but no significant spasms were present. Flexion was
limited to 65 degrees with extension decreased to 5 degrees. Straight leg raise was positive on
the left. Dr. Mattingly diagnosed severe left hip osteoarthritis, degenerative disc disease of the
lumbar spine, lumbar radiculopathy and ambulatory dysfunction. He opined that after looking
through appellant’s medical history, examining her and reviewing her detailed description of her
work that these injuries were a direct result of the repetitive stress produced by her job working
as a mail carrier. Dr. Mattingly explained that working 8 to 10 hours, six days a week, placed a
considerable amount of physical stress upon the joints of her hip and lower back. He also stated
that, at some point while performing her normal duties, appellant developed bulging and tearing
discs of the lumbar spine. Dr. Mattingly reported that she was unable to return to her job as
postal carrier or any job that required her to be on her feet for even short periods of time.
In a decision dated February 12, 2009, OWCP accepted that appellant’s employment
duties as a letter carrier required carrying mail and a mailbag. It denied her claim finding
insufficient medical evidence to establish that her lower back or left hip conditions were causally
related to factors of her employment.
On February 17, 2009 appellant, through counsel, requested a telephone hearing, which
was held on May 20, 2009. By decision dated September 15, 2009, an OWCP hearing
representative set aside the February 12, 2009 decision and remanded the case for further
development of the medical evidence.

2

OWCP referred appellant, together with a statement of accepted facts, to Dr. Kevin F.
Hanley, a Board-certified orthopedic surgeon, for a second opinion evaluation to determine
whether her employment duties caused or contributed to her back and left hip conditions. It also
asked Dr. Hanley to address whether appellant’s diagnosed conditions necessitated left hip
replacement surgery. In a November 30, 2009 report, Dr. Hanley conducted an examination and
diagnosed bilateral hip arthritis and degenerative disc disease. He stated that the conditions were
not caused by appellant’s work duties but were long-standing and degenerative in nature.
Dr. Hanley explained that, although her work activities did not cause her condition, they resulted
in temporary aggravation of her underlying degenerative disc disease and degenerative left hip
arthritis conditions. He stated that when appellant stopped work so did the aggravation and that,
if she were to return to work, she could again reinitiate the aggravating situation. Dr. Hanley
concluded that her employment did not contribute in any way to the development of her back and
hip conditions or to the need for surgical intervention in the form of hip replacement.
In a decision dated December 10, 2009, OWCP denied appellant’s claim finding that the
weight of the medical opinion rested with Dr. Hanley.
On December 15, 2009 appellant’s counsel submitted a request for a telephone hearing,
which was held on June 2, 2010. By decision dated July 20, 2010, an OWCP hearing
representative found that a conflict in medical opinion arose between Dr. Hanley, the secondopinion examiner, and Dr. Mattingly, appellant’s treating physician. The case was remanded to
obtain an impartial medical examination on whether appellant’s employment duties caused or
aggravated her back or left hip conditions and whether her employment duties necessitated the
need for left hip replacement surgery.
On September 13, 2010 appellant was referred to Dr. Walter Dearolf, III, a Boardcertified orthopedic surgeon, selected as the impartial specialist. In an October 7, 2010 report,
Dr. Dearolf noted that she had worked as a postal carrier since 1989 and that her duties included
casing and delivering mail and lifting tubs of mail in and out of a delivery truck. On January 15,
2008 appellant began to experience pain and pulling in her left lower back that radiated down her
left hip and thigh. Dr. Dearolf reviewed her history and noted that treatment notes from
Dr. Corcoran were not available for review. He stated that appellant had underlying
degenerative arthritis of both hips and her lumbar spine, which became progressively worse.
Dr. Dearolf reported that, based on x-rays and her symptomatology, she was a candidate for total
hip replacement surgery but found that it was unrelated to any January 15, 2008 work injury.
Upon examination, Dr. Dearolf observed tenderness over the left sacroiliac and left
paraspinal lumbar musculature. He noted good lateral bending to the left but only a third normal
lateral bending to the right, limited by pain. Examination of both hips revealed significantly
reduced internal rotation with minimal internal rotation bilaterally and approximately half
normal external rotation. Straight leg raise tests were negative and sensation seemed intact to
light touch throughout the lower extremities. Dr. Dearolf reported that x-rays of appellant’s hips
revealed narrowing particularly in the superolateral corner bilaterally with cyst formation and
joint space narrowing to about half normal in the hip. A magnetic resonance imaging (MRI)
scan of the lumbar spine demonstrated degenerative disc disease at L2-3 and L4-5 with disc
bulges and stenosis most pronounced at L4-5.

3

Dr. Dearolf explained that appellant’s employment duties did not cause her underlying
back and left hip condition but resulted in a temporary aggravation of the underlying
degenerative disease. He stated that her degenerative arthritis in the left hip was present before
January 15, 2008 and noted that her condition had worsened despite not working for the prior
last two years. Dr. Dearolf concluded that appellant’s employment did not necessitate the need
for hip replacement surgery or cause any acceleration of her underlying degenerative disease.
He opined that, because of her degenerative condition, she was unable to return to her previous
level of employment.
By decision dated November 18, 2010, OWCP accepted appellant’s claim for temporary
aggravation of her preexisting lumbar degenerative disc disease and left hip degenerative
osteoarthritis.
On December 13, 2010 appellant filed a claim for disability compensation for the period
September 10, 2008 to December 15, 2010.
In a decision dated February 11, 2011, OWCP denied appellant’s claim for total left hip
replacement surgery and denied the claim for disability from September 10, 2008 to
December 15, 2010. It found that the weight of the medical opinion established that the accepted
aggravation ceased at the time she stopped work and that her employment duties did not
necessitate hip replacement surgery. OWCP also found that there was no medical evidence to
support any period of disability causally related to her accepted back and left hip conditions.
On February 16, 2011 appellant, through counsel, submitted a request for a telephone
hearing, which was held on June 1, 2011. Counsel contended that Dr. Dearolf’s impartial
medical report did not provide a well-reasoned explanation as to how he arrived at his conclusion
that hip surgery was unrelated to her accepted injury. He also stated that Dr. Dearolf’s opinion
was based on inaccurate history because he did not have all the medical records for review and
referred to a January 15, 2008 injury, instead of an occupational disease. Counsel further noted
that Dr. Dearolf’s report established that she was unable to work and should be entitled to
disability compensation beginning September 10, 2008.
In an August 27, 2010 report, Dr. Mattingly stated that appellant had been under his care
since February 11, 2009 and treated for left hip osteoarthritis, degenerative disc disease of the
lumbar spine, lumbar radiculopathy and ambulatory dysfunction. He reported that she was
unable to perform her normal duties since the onset of symptoms in January 2008 due to
ambulatory dysfunction and pain with movement.
In an April 26, 2011 report, Dr. Mattingly stated that he had treated appellant for
approximately three years for lumbar spine pain with radiculopathy and bilateral hip
osteoarthritis with exacerbation. He noted that he reviewed her records and understood her work
duties. Dr. Mattingly opined that the development of the osteoarthritis of the hips was in part
due to the nature of appellant’s work as a letter carrier. It required several hours a day on her
feet carrying fairly heavy mailbags with considerable amount of lifting and twisting.
Dr. Mattingly explained that during the normal duties of her job appellant experienced an
exacerbation of this chronic condition, which prevented her from returning to work and also led

4

to her hip surgery. He concluded that her need for surgical intervention was a direct result of the
work-related exacerbation of a chronic hip condition.
In a July 19, 2011 decision, an OWCP hearing representative remanded the case stating
that Dr. Dearolf did not provide a fully-rationalized medical opinion in support of his conclusion.
OWCP was directed to provide him with all of appellant’s medical records and clarify that her
claim was accepted as an occupational disease, not a traumatic injury. The hearing
representative requested Dr. Dearolf clarify his opinion finding that left hip surgery was not
medically necessary to treat her work-related aggravation of underlying conditions or caused
disability during or subsequent to her employment.
In a September 24, 2011 supplemental report, Dr. Dearolf noted that he reviewed the
additional material provided but his opinion did not change. He reported that appellant had
underlying degenerative disease in her hip and back that was not brought on by a particular
event. Dr. Dearolf noted that a patient with arthritis in her hip would find it difficult to continue
to work as a mail carrier. He agreed with Dr. Hanley’s November 30, 2009 opinion that
appellant’s employment did not contribute in any way to the development of the back and hip
conditions or the need of any surgical intervention, either a hip replacement or hip arthroscopy.
Dr. Dearolf opined that, at most, her employment caused a temporary aggravation of the
underlying degenerative condition and that any temporary aggravation would have ceased when
she stopped work on September 12, 2009. He stated that appellant’s work as a mail carrier
would aggravate her degenerative arthritis but that the left hip symptoms related to the work
environment would have subsided once she stopped work as a mail carrier. Dr. Dearolf
concluded that treatment for a total hip replacement was in no way related to her work injury.
He also reported that appellant was not capable of returning to her previous work as a mail
carrier, but that her inability to work was based on her underlying degenerative disease and not a
work-related injury.
By decision dated November 21, 2011, OWCP denied authorization for left hip
replacement and appellant’s claim for disability compensation for the period September 10, 2008
to December 15, 2010. It found that Dr. Dearolf determined that surgery was not medically
warranted for the accepted conditions and that there was no related disability associated with the
accepted conditions.
On November 29, 2011 appellant, through counsel, requested a telephone hearing, which
was held on April 19, 2012. She described her work duties as a letter carrier and noted that her
last day of work was September 2008. Appellant stated that her symptoms had stayed the same
since she stopped work. Her counsel contended that the opinions of Drs. Hanley’s and Dearolf’s
were unsupported by medical rationale. He disagreed that appellant sustained a temporary
aggravation of her underlying conditions and noted that her treating physicians consistently
stated that her conditions were permanent. Counsel also alleged that Dr. Dearolf’s report
supported that appellant was unable to perform her work duties and, therefore, she was entitled
to disability compensation.
In a May 2, 2012 report, Dr. Corey K. Ruth, a specialist in sports medicine, examined
appellant for bilateral hip pain and tenderness in the low back. He diagnosed bilateral hip
osteoarthritis and L3-S1 bulging discs/spondylosis with lumbar radiculitis. Dr. Ruth opined that

5

appellant suffered a permanent aggravation of her underlying arthritis of her bilateral hips as a
result of her duties as a mail carrier for the employing establishment.
In a decision dated July 27, 2012, an OWCP hearing representative affirmed the
November 21, 2011 decision denying authorization for appellant’s left hip replacement surgery.
OWCP further found that she was not disabled from work for the period September 10, 2008 to
December 15, 2010 as a result of her accepted employment injury.
LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability or
aid in lessening in the amount of monthly compensation.2 In interpreting the section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in
the shortest amount of time.3 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on the OWCP’s authority is that of reasonableness.4
Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment or actions taken which are contrary to both logic and probable deductions
from established facts. It is not enough to merely show that the evidence could be construed so
as to produce a contrary factual conclusion.5
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.6 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.7 Therefore, in order to prove that
the surgical procedure is warranted, appellant must submit evidence to show that the procedure
was for a condition causally related to the employment injury and that the surgery was medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.8
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who

2

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

3

W.T., Docket No. 08-812 (issued April 3, 2009); A.O., Docket No. 08-580 (issued January 28, 2009).

4

D.C., 58 ECAB 629 (2007); Mira R. Adams, 48 ECAB 504 (1997).

5

L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); Daniel J. Perea, 42 ECAB 214 (1990).

6

See Debra S. King, 44 ECAB 203, 209 (1992).

7

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986).

8

See Cathy B. Millin, 51 ECAB 331, 333 (2000).

6

shall make an examination.9 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.10 When 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.11
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained temporary aggravation of preexisting
degenerative disc disease and left hip degenerative osteoarthritis as a result of her employment
duties. Appellant stopped work on September 12, 2008. In a January 21, 2009 report, Dr. Shah
recommended appellant undergo left hip replacement surgery. In a November 30, 2009 report,
Dr. Hanley, a second-opinion examiner, explained that, although appellant’s employment duties
resulted in temporary aggravation of underlying degenerative disc disease and degenerative left
hip arthritis, the aggravation ceased when she stopped work. He concluded that her employment
did not result in a need for surgical intervention in the form of hip replacement. OWCP found
that a conflict in medical opinion existed between appellant’s treating physician and the secondopinion examiner and referred her case to an impartial medical examiner to resolve the conflict.
In October 7, 2010 and September 24, 2011 reports, Dr. Dearolf, the impartial medical
examiner, provided an accurate history of injury and reviewed appellant’s records. He stated that
she had underlying degenerative arthritis of both hips and lumbar spine and noted that these
symptoms had progressively worsened while she had been out of work for the last two years.
Upon examination Dr. Dearolf observed tenderness over the left sacroiliac and left paraspinal
lumbar musculature. Straight leg raise tests were negative. Examination of both hips revealed
significantly reduced internal rotation with minimal internal rotation bilaterally and
approximately half normal external rotation. Dr. Dearolf explained that appellant’s employment
duties resulted in a temporary aggravation of an underlying degenerative disease and that her left
hip symptoms related to her employment would have ceased when she stopped work as a mail
carrier. He concluded that her treatment for total hip replacement surgery was in no way related
to her accepted work injury.
The Board finds that Dr. Dearolf’s reports are sufficiently detailed and well reasoned to
constitute the special weight of medical opinion regarding whether the left total hip replacement
was medically necessary. When 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.12 Dr. Dearolf reviewed
9

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
10

20 C.F.R. § 10.321.

11

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

12

Id.

7

appellant’s history and accurately described her duties as a letter carrier. He conducted an
examination and found that her work duties resulted in a temporary aggravation of underlying
degenerative disc disease and left hip osteoarthritis conditions. Dr. Dearolf further explained
that because appellant’s left hip symptoms related to her employment would have ceased when
she stopped work as a mail carrier in September 2008, the need for left total hip replacement
surgery was not related to her accepted work-related injury. Thus, the Board finds that
Dr. Dearolf’s opinion, as set forth in the October 7, 2010 and September 24, 2011 reports were
found to be probative and reliable evidence. Accordingly, Dr. Dearolf’s opinion constitutes the
special weight of evidence and is sufficient to justify OWCP’s denial of authorization for left hip
replacement surgery.
The Board further finds that the medical evidence submitted by appellant after
Dr. Dearolf’s impartial medical examiner report is insufficient to overcome the weight of this
report or to create another conflict in medical evidence. Appellant submitted various reports by
Dr. Mattingly stating that her need for surgery was a direct result of the work-related
exacerbation of a chronic hip condition. The Board finds, however, that his report is of limited
probative value as he offers a conclusion which is unsupported by medical rationale.13 Appellant
also submitted a May 2, 2012 report by Dr. Ruth, who opined that she sustained a permanent
aggravation of her underlying arthritis of her bilateral hips as a result of her duties as a mail
carrier. The Board finds that this report is also of limited probative value as he provides no
opinion on whether left hip total replacement was necessary to treat her work-related injury.
These reports are insufficient to overcome the special weight afforded to Dr. Dearolf’s impartial
medical examination report. The Board finds that his opinion constitutes the special weight of
medical opinion and supports OWCP’s decision that the need for left total hip replacement was
not causally related to appellant’s work-related injury.
On appeal appellant, through counsel, contends that Dr. Dearolf’s opinion is not well
rationalized. He further alleges that appellant’s case should be accepted for permanent
aggravation of her underlying conditions. The Board notes that Dr. Dearolf’s September 24,
2011 supplemental report corrected the deficiencies of the initial previous report. Dr. Dearolf
provided a well-rationalized opinion regarding authorization for left hip replacement surgery.
LEGAL PRECEDENT -- ISSUE 2
The term disability as used in FECA means the inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition, which resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.14
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.15 The opinion of the
13

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-975 (February 6, 2009).

14

20 C.F.R. § 10.5(x).

15

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.16
If there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.17
ANALYSIS -- ISSUE 2
As noted, OWCP accepted that appellant sustained a temporary aggravation of
preexisting degenerative disc disease and left hip degenerative osteoarthritis as a result of her
employment duties. Appellant stopped work on September 12, 2008. On December 13, 2010
she filed a claim for disability compensation for the period September 10, 2008 to
December 15, 2010. OWCP denied appellant’s claim finding insufficient medical evidence to
establish that she was disabled from work as a result of her work-related injury. The Board finds
a conflict in medical opinion arose between Dr. Dearolf and Dr. Mattingly, appellant’s treating
physician.
Appellant submitted various reports by Dr. Mattingly. In an April 22, 2009 report,
Dr. Mattingly related her complaints of back and left hip pain and noted that she stopped work
on September 12, 2008 when the pain became too disabling to allow her to continue working.
He conducted an examination and diagnosed severe left hip osteoarthritis, degenerative disc
disease of the lumbar spine and lumbar radiculopathy. Dr. Mattingly opined that these injuries
were a direct result of the repetitive stress produced by appellant’s job as a mail carrier. He
reported that she was unable to return to her job as a postal carrier or any job that required her to
be on her feet for even short periods of time. In an August 27, 2010 report, Dr. Mattingly stated
that appellant was unable to perform her normal duties since the onset of symptoms in
January 2008. In a September 14, 2011 report, Dr. Dearolf agreed that she was not capable of
returning to work but explained that her inability to work was based on her underlying
degenerative conditions and not the work-related injury. The Board noted that the question of
appellant’s disability for the period claimed was not asked of Dr. Dearolf, in his status as an
impartial specialist on the question of the need for hip replacement surgery. A conflict in
medical opinion exists regarding whether appellant was disabled from work as a result of her
accepted conditions.18

16

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

17

5 U.S.C. § 8123; 20 C.F.R. § 10.321(b); see also Darlene R. Kennedy, 57 ECAB 414 (2006).

18

The Board notes Dr. Dearolf’s September 14, 2011 report does not constitute an impartial medical examination
regarding appellant’s disability compensation claim as a conflict in medical opinion did not exist at the time
regarding whether she was disabled from work during the claimed period as a result of her accepted conditions.
Accordingly, Dr. Dearolf’s September 14, 2011 opinion regarding disability is considered a second-opinion
examination and his opinion is not entitled to the special weight of medical evidence with regard to her disability
compensation claim.

9

Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.19 The case will be remanded for
an impartial medical examiner to resolve the conflict in medical opinion. On remand, OWCP
should refer appellant and a statement of accepted facts to an appropriate physician to examine
her and evaluate the evidence pursuant to section 8123(a) of FECA. Following this and such
further development as OWCP deems necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s request
for surgical authorization. The Board also finds that the case is not in posture for decision
regarding whether she was disabled from work from September 10, 2008 to December 15, 2010
as a result of her work-related injury.
ORDER
IT IS HEREBY ORDERED THAT the July 27, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed in part and remanded in part.
Issued: November 15, 2013
Washington, DC

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

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

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

19

Supra note 17.

10