United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Flowery Branch, GA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-1529
Issued: April 16, 2020

Case Submitted on the Record

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

On July 10, 20181 appellant filed a timely appeal from a May 31, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 19-1529.2
OWCP accepted that on May 23, 2013 appellant, then a 56-year-old lead customer service
clerk, sustained reflex sympathetic dystrophy (RSD) of the right upper limb and an
acromioclavicular sprain of the right shoulder and upper arm while in the performance of duty.
By decision dated May 5, 2015, it granted appellant a schedule award for 18 percent permanent
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 CFR
§ 501.3(e)-(f). Since using July 10, 2019, the date the appeal was received by the Clerk of the Appellate Boards would
result in the loss of appeal rights as it is more than 180 days from the date of OWCP’s last decision of May 31, 2018,
the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is July 10, 2018,
rendering the appeal timely filed. See 20 CFR § 501.3(f)(1); J.M., Docket No. 19-0252 (issued January 8, 2020).
2

The Board notes that, following the May 31, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provide: “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.

impairment of the right upper extremity. The period of the award ran from January 12, 2015
through February 9, 2016.
Appellant continued to submit medical evidence pertaining to her right upper extremity
permanent impairment and on May 18, 2015 requested a telephonic hearing before an OWCP
hearing representative. By decision dated March 2, 2016, an OWCP hearing representative
affirmed the May 5, 2015 schedule award. Appellant appealed to the Board on July 1, 2016.
By decision dated April 11, 2017, the Board set aside the March 2, 2016 decision.3 The
Board found that OWCP had inconsistently applied Chapter 15 of the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides),4
regarding the proper use of either the diagnostic-based impairment (DBI) or range of motion
(ROM) impairment methodologies in assessing the extent of permanent impairment. It remanded
the case for OWCP to issue a de novo decision after development of a consistent method for
calculating permanent impairment of the upper extremities.
In a decision dated July 14, 2017, OWCP denied appellant’s claim for an additional
schedule award. Appellant appealed to the Board on August 7, 2017.
By decision dated March 12, 2018, the Board set aside the July 14, 2017 OWCP decision. 5
The Board found that, while the district medical adviser (DMA) had indicated that appellant’s right
upper permanent impairment could be rated due to distal clavicle resection under the DBI
methodology, he had failed to follow OWCP’s procedures for ROM deficits, as the record did not
reflect whether the treating physician had recorded three ROM measurements and had provided
an opinion as to whether appellant’s loss of ROM had an organic basis. The Board remanded the
case for OWCP to issue a de novo decision regarding appellant’s claim for an increased right upper
extremity schedule award after further development of the claim pursuant to its procedures as
required under FECA Bulletin 17-06 (issued May 8, 2017).
On April 13, 2018 OWCP requested that its DMA review the relevant medical evidence.
It also instructed its DMA, in relevant part, that if the medical evidence of record was insufficient
to render a rating based on ROM, where allowed under the A.M.A., Guides, to advise of the
medical evidence necessary to complete the ROM rating.
On April 23, 2018 the DMA rated appellant’s permanent impairment for right distal
clavicle excision under the DBI methodology which represented appellant’s impairment “due to
the lack of triplicate ROM measurements as required by the [A.M.A.,] Guides.”
By decision dated May 31, 2018, OWCP denied appellant’s claim for an additional
schedule award for an increased permanent impairment of the right upper extremity, finding that
the medical evidence was insufficient to support an increase in the impairment previously awarded.

3

Docket No. 16-1462 (issued April 11, 2017).

4

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

5

Docket No. 17-1726 (issued March 12, 2018).

2

It found that the DMA had indicated that appellant’s permanent impairment was evaluated under
the DBI methodology due to a lack of triplicate ROM measurements.
The Board has duly considered the matter and finds that this case is not in posture for
decision as OWCP has not complied with the Board’s March 12, 2018 decision or its own
procedures.
Although the DMA reviewed the relevant medical evidence and determined that the
attending physician had not properly documented ROM measurements in triplicate and had not
related whether appellant’s loss of ROM had an organic basis, OWCP did not advise appellant of
the deficiency or attempt to obtain the missing information to cure the deficiency as required by
FECA Bulletin No. 17-06.6
The Board thus finds that the medical record with regard to the extent of appellant ’s
permanent impairment requires further development consistent with FECA Bulletin No. 17-06 as
OWCP did not obtain the necessary ROM evidence and the DMA was thereby precluded from
calculating appellant’s permanent impairment under both the ROM and DBI rating methods to
determine which method produced the higher rating. After this and other such further development
of the medical evidence as deemed necessary, OWCP shall issue a de novo decision.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6(d) (February 2013); see also Chapter 2.808.6(f)(2)(c) (February 2013); D.H., Docket No. 18-0457 (issued
September 18, 2019).

3

IT IS HEREBY ORDERED THAT the May 31, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this order of the Board.
Issued: April 16, 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
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Millville, NJ, Employer
__________________________________________

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

Docket No. 09-1774
Issued: April 8, 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 July 1, 2009 appellant timely appealed the March 18, 2009 merit decision of the
Office of Workers’ Compensation Programs, which affirmed an August 20, 2008 schedule
award. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of
the claim.
ISSUE
The issue is whether appellant has greater than 10 percent impairment of both the left and
right upper extremity.
FACTUAL HISTORY
Appellant, a 59-year-old letter carrier, has accepted claims for left and right carpal tunnel
syndrome. His two upper extremity occupational disease claims have been combined. Right
carpal tunnel syndrome was accepted under claim number xxxxxx336 (master) with a May 3,
1988 date of injury. Appellant underwent a right carpal tunnel release on January 11, 1990. He

subsequently filed a claim for left carpal tunnel syndrome with a March 15, 2004 date of injury.
This latter employment injury was accepted under claim number xxxxxx391 (subsidiary).
On April 17, 2007 appellant filed a claim for a schedule award under claim number
xxxxxx391. In support of his claim, he submitted a January 9, 2007 impairment rating from
Dr. David Weiss, a Board-certified orthopedist, who diagnosed bilateral carpal tunnel syndrome,
status post right carpal tunnel release.1 Dr. Weiss found 19 percent bilateral upper extremity
impairment based on a combination of impairments for lateral pinch deficit (10 percent) and
Grade 4 sensory deficit involving the median nerve (10 percent).
On September 5, 2007 appellant filed a claim for a schedule award under claim number
xxxxxx336. He also submitted Dr. Weiss’ January 9, 2007 impairment rating under claim
xxxxxx336.
In a report dated September 21, 2007, the district medical adviser (DMA), Dr. Arnold T.
Berman, found 10 percent impairment of the left upper extremity for sensory deficit involving
the median nerve.2 He disagreed with Dr. Weiss’ 10 percent impairment for decreased lateral
pinch strength. Dr. Berman explained that decreased strength could not be rated in the presence
of painful conditions. He noted that Dr. Weiss reported that appellant’s left hand and wrist were
painful. Dr. Berman’s review was limited to the left upper extremity because left carpal tunnel
syndrome was the only accepted condition under claim number xxxxxx391, and the case records
for appellant’s two upper extremity claims had yet to be doubled. The Office subsequently asked
Dr. Berman to review Dr. Weiss’ impairment rating with respect to appellant’s right upper
extremity under claim number xxxxxx336. In a report dated November 17, 2007, Dr. Berman
similarly found 10 percent impairment of the right upper extremity for sensory deficit involving
the median nerve.
The Office declared a conflict in medical opinion based on the differing opinions of
Dr. Berman, the DMA, and appellant’s physician, Dr. Weiss. Dr. Jatin D. Gandhi, a Boardcertified orthopedic surgeon and impartial medical examiner (IME), reviewed the relevant
medical records and examined appellant on March 25, 2008. He noted that appellant complained
of pain and numbness in both hands, which was affected by weather changes. According to
appellant, his hand complaints had been ongoing for the past several years; however, his pain
was not constant. He also reported dropping objects due to hand weakness. On physical
examination, Dr. Gandhi found no wrist deformities, bilaterally. Phalen’s test was negative,
bilaterally and there was no atrophy of the thenar muscles. Tinel’s sign produced local pain,
bilaterally. On the right side, there was no radiation of pain along the median nerve distribution.
However, on the left side, appellant’s pain radiated along the median distribution in the hand.
His grip strength was diminished bilaterally, but Dr. Gandhi indicated he had not performed
Dynamometer testing. Dr. Gandhi also provided range of motion measurements and noted that
appellant had diminished light touch on the fingers, bilaterally. Appellant’s forearm diameter
was 32 centimeters on the right side and 31 centimeters on the left. Dr. Gandhi’s impression was
1

Dr. Weiss provided additional diagnoses and an impairment rating with respect to appellant’s left lower
extremity, which are unrelated to the current upper extremity claims.
2

Dr. Berman is a Board-certified orthopedic surgeon.

2

left carpal tunnel syndrome and residuals of right carpal tunnel syndrome. He found 10 percent
impairment bilaterally due to sensory deficits. Dr. Gandhi further explained that decreased
strength could not be rated in the presence of painful conditions. Therefore, he based appellant’s
impairment rating on sensory deficits alone.
DMA, Dr. Andrew A. Merola, a Board-certified orthopedic surgeon, reviewed the IME’s
March 25, 2008 report and concurred with his impairment rating of 10 percent upper extremity
impairment, bilaterally.
By decision dated August 20, 2008, the Office granted a schedule award for 10 percent
impairment of the left and right upper extremities. The award covered a period of 62.4 weeks
beginning March 25, 2008. The Branch of Hearings and Review affirmed the schedule award in
a decision dated March 18, 2009.3
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.4 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.5 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).6
ANALYSIS
Appellant’s counsel acknowledged that Dr. Weiss, both Office medical advisers and the
IME all agreed that appellant has at least 10 percent impairment for sensory deficit involving the
median nerve distribution.7 Counsel continues to argue in support of Dr. Weiss’ additional rating
for loss of pinch strength, an issue which the IME was specifically selected to resolve.
The Office properly found there was a conflict of medical opinion between appellant’s
physician, Dr. Weiss, and the DMA, Dr. Berman. Because of this conflict, it referred appellant
to an impartial medical examiner to determine the extent of appellant’s upper extremity
3

A hearing was held on January 13, 2009.

4

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1) (2006).
5

20 C.F.R. § 10.404 (2009).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

7

5 U.S.C.

See A.M.A., Guides 482, Table 16-10 and A.M.A., Guides 492, Table 16-15. The 10 percent impairment was
derived by multiplying the Grade 4 sensory deficit (25 percent) by the maximum lower extremity sensory deficit
involving the median nerve below mid-forearm (39 percent).

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impairment.8 Dr. Gandhi, the IME, correctly noted that, according to the A.M.A., Guides (5th ed.
2001), “[d]ecreased strength cannot be rated in the presence of decreased motion, painful
conditions, deformities or absence of parts ... that prevent effective application of maximal force
in the region being evaluated.”9 (Emphasis in the original.) During the IME’s March 25, 2008
evaluation, appellant complained of pain and numbness in both hands. Dr. Gandhi’s physical
examination revealed local pain bilaterally, and left side pain radiating along the median
distribution of the hand. Contrary to counsel’s contention, the Office properly accorded
determinative weight to Dr. Gandhi’s findings, as he was the impartial medical examiner.10 The
record supports Dr. Gandhi’s decision not to rate appellant for loss of grip or pinch strength.
Even appellant’s counsel acknowledged the accuracy of Dr. Gandhi’s rating for bilateral sensory
deficits involving the median nerve distribution.11 Dr. Gandhi’s March 25, 2008 opinion is
sufficiently well reasoned and based upon a proper factual background. He conducted a
thorough physical examination and undertook an extensive review of the relevant medical
records. Accordingly, the Board finds that the Office properly based the August 20, 2008
schedule award on Dr. Gandhi’s impartial medical evaluation.
CONCLUSION
Appellant has not established that he has greater than 10 percent impairment of the left
and right upper extremities.

8

The Act provides that, if there is disagreement between the physician making the examination for the Office and
the employee’s physician, the Office shall appoint a third physician who shall make an examination. 5 U.S.C.
§ 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).
9

A.M.A., Guides 508, section 16.8a.

10

Where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).
11

See supra note 7.

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ORDER
IT IS HEREBY ORDERED THAT the March 18, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 8, 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

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

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Appearances:
Michael Hines, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1290
Issued: December 6, 2007

Case Submitted on the Record

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

JURISDICTION
On April 9, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 19, 2007 denying his emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant sustained stress and aggravated high blood pressure in the
performance of duty.
FACTUAL HISTORY
On September 18, 2006 appellant, a 52-year-old labor custodian, filed an occupational
disease claim for compensation (Form CA-2), alleging that he experienced an elevated blood
pressure due to conditions of his federal employment. He stated that he first became aware of his
condition on April 17, 2003 and first realized that it was related to his employment on
September 8, 2006.

In an undated supplement to his Form CA-2, appellant attributed his high blood pressure
to several work-related incidents. He stated that on September 8, 2006 he experienced stress and
an increase in blood pressure due to a verbal exchange with his supervisor. Appellant informed
Gerald Naidu, a supervisor, that he had gone by the maintenance office after clocking in as
directed. When Mr. Naidu indicated that he had not seen him, appellant stated that supervisor
Darrell Collins could verify his report, as he had walked right by him at 8:27 a.m. Appellant
stated that, when Mr. Collins denied having seen him at the time indicated he became upset,
excused himself and reported to the medical unit. He indicated that he experienced
lightheadedness, nervousness and an increase in blood pressure as a result of this event.
In an undated statement, Mr. Collins indicated that, on September 8, 2006 at 12:34 p.m.,
he overheard Mr. Naidu ask appellant whether he had checked in with Mr. Collins. When
Mr. Collins informed Mr. Naidu that he had not checked in, appellant reportedly turned around
abruptly and said, “He is a damn liar.” Mr. Collins stated that appellant was not provoked and
that he and Mr. Naidu remained calm throughout the conversation. He described appellant’s
behavior as rude and stated that he “definitely created a hostile environment.” Mr. Collins noted
that appellant announced “sarcastically” that he would not “make contact,” and that he did not
respond when his name was announced over the intercom system for nearly an hour.
A September 14, 2006 accident report, signed by Mr. Naidu and supervisor Portia Munn,
reflected that on September 8, 2006 Mr. Collins and Gayle McWilliams observed appellant
“becoming angry and shouting,” after Mr. Naidu “calmly asked” if he had checked in that
morning. Appellant reportedly went to the medical unit 15 minutes after the incident, due to an
elevated blood pressure. The accident report also reflected that on September 13, 2006
Mr. Naidu calmly questioned appellant about his unscheduled absences during the previous
weekend. After experiencing a perceived increase in blood pressure, appellant was taken to the
medical unit and then referred to the Emeryville Occupational Medical Center. Mr. Naidu
opined that appellant had an “observed inability to contain emotions” and needed professional
counseling.
On September 14, 2006 Mr. Naidu reported that appellant left work on September 8,
2006 and returned on September 13, 2006, indicating that he had work-related high blood
pressure. Appellant reported that he became upset when Mr. Collins denied seeing him when he
checked in for work on September 8, 2006. He again became upset and hostile on
September 13, 2006 when he attempted to explain the first incident.
In a September 13, 2006 statement, Ms. McWilliams, a support clerk, indicated that, at
approximately 12:30 p.m. on September 8, 2006, while standing at the maintenance operations
support counter, she overheard a conversation between appellant and Mr. Naidu who were also at
the counter. She did not recall the details of the conversation, but she remembered that
appellant’s voice became “louder and louder.” Ms. McWilliams also recalled that, when
Mr. Naidu spoke, he spoke in very low tones and that his demeanor was neither threatening nor
disrespectful.
Appellant submitted an April 26, 2002 certificate of appreciation; an April 20, 2003 letter
of commendation; and a November 18, 2004 certificate of appreciation from the employing
establishment.

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On September 12, 2005 appellant alleged abuse and threats by coworkers and
supervisors. Citing harassment by coworkers, he alleged that: forklift drivers intentionally
drove too fast, posing a threat to him; people ignored safety signs while he was cleaning
bathrooms; coworkers intentionally dispersed trash after he had collected. Noting abuse by
management, he alleged that various supervisors threatened him with a monkey wrench; asked
him to forge a legal document; rolled eyes at him and grunted; and sarcastically touched his
clothes and asked, “What is this supposed to be?”
The record contains a January 12, 2005 employing establishment timecard, bearing a
picture of appellant. The letters “KKK” are clearly marked or etched across the face of the
document.
Appellant filed an Equal Employment Opportunity (EEO) claim alleging discrimination
on the basis of race, religion and sex. Specifically, he alleged that on April 2, 2005 acting
supervisor, Elise Ambeau, gave him instructions and reported water on the workroom floor to
appellant’s group leader. Appellant also alleged that on May 6, 2005 the letters “KKK” were
scratched on his timecard. In a final employing establishment decision dated August 9, 2005, it
dismissed appellant’s claim. The employing establishment acknowledged that the April 2, 2005
incident relating to water on the workroom floor and the May 6, 2005 incident, involving the
defaced timecard, occurred. However, the employing establishment found that appellant did not
suffer any measurable personal harm and, therefore, was not aggrieved by either accepted event.
It also concluded that the “KKK” incident did not rise to the level of a credible threat. In an
appeal of the employing establishment’s decision, appellant alleged that he was wrongly accused
of a safety violation. He also contended that “KKK” was a symbol of intolerance and hatred
based on race. By decision dated December 28, 2005, the EEO Commission affirmed the
dismissal of appellant’s claim as to the April 2, 2005 incident, as appellant suffered no harm as a
result of the incident. However, the EEO Commission found that the claim was improperly
dismissed as to the “KKK” incident, which was sufficiently severe to alter the conditions of
employment and state a claim of harassment.
On September 22, 2006 appellant filed an employment discrimination complaint with the
U.S. District Court of California, alleging:
(1) A fellow employee falsely accused him publicly three times of stealing his
bible.
(2) His wife was assigned to heavy duties at the employing establishment during
her third trimester of pregnancy.
(3) The employment start date and dates of military service were originally
recorded incorrectly.
(4) The employing establishment tried to transfer him to a different facility,
before recognizing his desire not to be transferred.
(5) His supervisor asked him to forge a legal document relating to a
September 17, 2003 on-the-job injury.

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(6) In 2003, Mr. Thomas created a hostile environment and threatened him with a
monkey wrench. Several days after helping appellant fix a leaky toilet, he angrily
reprimanded appellant when he found “a little” water on the floor near the
repaired toilet. Mr. Thomas allegedly gripped firmly a monkey wrench, as if he
was going to hit appellant and said, “I am an ex-Navy seal.” Later, Mr. Thomas
allegedly threatened to have appellant escorted out of the building. He indicated
that the matter was resolved with the assistance of a union representative.
(7) In 2003, appellant was accused by coworkers of being a terrorist, especially
when he wore middle-eastern clothing.
(8) In 2003, supervisor P. Ferguson touched his clothing, flipping them
sarcastically, saying, “And what is this supposed to mean?”
The record contains numerous treatment notes for the period June 26 through
September 29, 2006, reflecting that appellant received treatment at Kaiser Permanente for high
blood pressure. On September 29, 2006 Dr. Neal Lischner, an attending physician, stated that
appellant had well-controlled hypertension, but no psychiatric disease. On October 25, 2006
appellant indicated that he did not have hypertension until he sustained an April 17, 2003 workrelated injury and reiterated that his condition was caused by stressful conditions in the
workplace.
On October 31, 2006 the Office informed appellant that the information submitted was
insufficient to establish his claim. It requested details of employment-related incidents that he
believed contributed to his illness, including names, dates, locations and witnesses, as well as a
medical report providing a diagnosis and a reasoned medical opinion as to the cause of the
diagnosed condition.
In a statement dated December 2, 2006, Mr. Naidu indicated that Mr. Ferguson denied
touching or making comments to appellant about his clothing. Appellant was never charged with
disobeying a lawful order, nor was he accused of stealing a bible, but rather was questioned
about it, along with other employees. He indicated that any supervisor who observed an unsafe
act or condition was required to report it immediately. Mr. Ferguson also stated that, at the time
of the reported “KKK” incident, appellant’s supervisor retained his time card and issued it to him
each day.1 Mr. Naidu indicated that supervisors had experienced some conduct problems with
appellant, including the September 8, 2006 incident. He stated that appellant was treated in the
same manner as all other employees.
By decision dated March 19, 2007, the Office denied appellant’s claim on the grounds
that he failed to establish any compensable factors of employment. It accepted as factual that
someone wrote the letters “KKK” on appellant’s time card on May 6, 2005 and that on May 2,
2005 an acting supervisor gave him instructions and reported the existence of excess water on
the workroom floor to his group leader. The Office found that, although appellant received a

1

The Board notes that Mr. Naidu did not deny appellant’s allegations that the time card was defaced in the
manner alleged.

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positive outcome from his EEO complaint, he failed to provide clear corroborative evidence to
support error or abuse on the part of the employing establishment.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.4
To establish his occupational disease claim that he has sustained an emotional condition
in the performance of duty, appellant must submit the following: (1) factual evidence identifying
and supporting employment factors or incidents alleged to have caused or contributed to his
condition; (2) rationalized medical evidence establishing that he has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his emotional condition.5 Rationalized
medical opinion evidence is medical evidence that 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. Such an opinion 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 appellant.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to his regular or specially assigned employment
duties, or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Act. The same result is reached when the emotional disability resulted from the
employee’s emotional reaction to the nature of his work, or his fear and anxiety regarding his
ability to carry out his duties.7 By contrast, there are disabilities having some kind of causal
connection with the employment that are not covered under workers’ compensation law because
they are not found to have arisen out of employment, such as when disability results from an
2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8102(a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
5

Claudio Vazquez, 52 ECAB 496, 498 (2001).

6

Id.

7

Lillian Cutler, 28 ECAB 125, 129 (1976).

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employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or to hold a particular position.8 Moreover, although administrative and
personnel matters are generally related to employment, they are functions of the employer and
not duties of the employee. Thus, the Board has held that reactions to actions taken in an
administrative capacity are not compensable unless it is shown that the employing establishment
erred or acted abusively in its administrative capacity.9
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment which may be considered by a physician when
providing an opinion on causal relationship, and which are not deemed factors of employment
and may not be considered. When a claimant fails to implicate a compensable factor of
employment, the Office should make a specific finding in that regard. If a claimant does
implicate a factor of employment, the Office should then determine whether the evidence of
record substantiates that factor.10 When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter asserted, then the
Office must base its decision on an analysis of the medical evidence.11 As a rule, allegations
alone by a claimant are insufficient to establish a factual basis for an emotional condition claim
but rather must be corroborated by the evidence.12 However, an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value, and will
stand unless refuted by strong or persuasive evidence.13
ANALYSIS
Appellant alleged that he sustained stress and aggravated high blood pressure as a result
of a number of employment incidents and conditions. The Board must, therefore, initially
review whether the alleged incidents and conditions of employment are compensable under the
terms of the Act.
Appellant attributed his emotional condition and associated physical complaints
principally to the actions of his supervisors. He alleged that the employing establishment
incorrectly recorded his employment start date and dates of military service; tried to transfer him
to a different facility before recognizing his desire not to be transferred; asked him to forge a
legal document relating to his 2003 on-the-job injury; and assigned his wife to heavy duties at
the employing establishment during her third trimester of pregnancy. The Board finds that these
8

Id., see also Peter D. Butt, Jr., 56 ECAB ___ (Docket No. 04-1255, issued October 13, 2004).

9

See Charles D. Edwards, 55 ECAB 258 (2004); see also Ernest J. Malagrida, 51 ECAB 287, 288 (2000).

10

Margaret S. Krzycki, 43 ECAB 496, 502 (1992).

11

See Charles D. Edwards, supra note 9.

12

Charles E. McAndrews, supra note 4; see also Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41
ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether or not the
evidence corroborated such allegations).
13

See Thelma Rogers, 42 ECAB 866 (1991).

6

allegations relate to administrative or personnel matters, unrelated to appellant’s regular or
specially assigned work duties and do not fall within the coverage of the Act.14 Although the
handling of disciplinary actions and leave requests, the assignment of work duties and the
monitoring of work activities are generally related to the employment, they are administrative
functions of the employer and not duties of the employee.15 However, the Board has also found
that an administrative or personnel matter will be considered to be a compensable employment
factor where the evidence discloses error or abuse on the part of the employing establishment. In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether it acted reasonably.16 In this case, appellant has not submitted any evidence
to show that the employing establishment committed error or abuse with respect to these matters
and has provided no corroborative evidence to support these allegations. An employee’s
frustration from not being permitted to work in a particular environment or to hold a particular
position is not compensable.17 Moreover, allegations pertaining to appellant’s wife are not
relevant to allegations of abuse against him.
Appellant also alleged that he was inappropriately reprimanded by his supervisors. He
stated that on April 2, 2005 acting supervisor Ms. Ambeau gave him instructions and reported
excess water on the workroom floor to his group leader. However, appellant has provided no
evidence of error or abuse. Mr. Naidu explained that supervisors are required to immediately
report all unsafe acts or conditions observed. Therefore, the supervisor’s act of reporting the
presence of water on the workroom floor was not only reasonable, but necessary.
Appellant alleged that in 2003, several days after helping him fix a leaky toilet,
Mr. Thomas angrily reprimanded him when he found “a little” water on the floor near the
repaired toilet. Mr. Thomas allegedly gripped a monkey wrench firmly, as if he was going to hit
appellant and said, “I am an ex-Navy seal.” Later, Mr. Thomas allegedly threatened to have
appellant escorted out of the building. The Board has recognized the compensability of verbal
abuse in certain circumstances. This does not imply, however, that every statement uttered in the
workplace will give rise to coverage under the Act.18 Appellant provided no evidence to
corroborate the alleged statements or actions. However, assuming arguendo that the statements
were actually made, the Board finds that they do not constitute verbal abuse or harassment.
While the statements may have engendered offensive feelings, they did not sufficiently affect the
conditions of employment to constitute a compensable factor.19 Additionally, appellant has not
provided any evidence that his supervisor’s actions posed any physical threat to him. The Board
has recognized the compensability of physical threats in certain situations, but the factual aspects
14

See Lori A. Facey, 55 ECAB 217 (2004). See also Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath,
44 ECAB 555, 558 (1993); Apple Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 126667 (1988).
15

Id.

16

See Richard J. Dube, 42 ECAB 916, 920 (1991).

17

Id.

18

See Mary A. Sisneros, 46 ECAB 155, 163-64 (1994); David W. Shirey, 42 ECAB 783, 795-96 (1991).

19

See Denis M. Dupor, 51 ECAB 482, 486 (2000).

7

of such claimed threats must be established in order to show a compensable employment
factor.20 The Board finds that appellant’s emotional reaction to his supervisor’s grip on the
monkey wrench must be considered self-generated, in that it resulted from his perceptions
regarding his supervisor’s actions.21
Similarly, administrative actions by appellant’s supervisors on September 8, 2006 do not
constitute error or abuse. Appellant alleged that he experienced lightheadedness, nervousness
and an increase in blood pressure when Mr. Collins denied having seen him “check in” on the
date in question. Although statements by the supervisors and coworkers reflected that appellant
became angry and shouted, he did not allege, nor did the evidence reflect, that either supervisor
acted or spoke in an abusive manner. On the contrary, Ms. McWilliams stated that Mr. Naidu
spoke in a low tone and that his demeanor was neither threatening nor disrespectful.
Accordingly, appellant has not established a compensable factor of employment with respect to
the September 8, 2006 incident. For all of the above reasons, the Board finds that he has not
established a compensable employment factor under the Act with respect to administrative
matters.
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of his regular duties, these could constitute employment factors.22
However, for harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under the Act.23 Appellant alleged that
coworkers falsely accused him publicly of stealing a bible; accused him of being a terrorist;
intentionally drove forklifts too fast, posing a threat to him; ignored safety signs while he was
cleaning bathrooms; and intentionally dispersed trash that he had collected. He claimed that a
supervisor rolled her eyes at him and grunted and that Mr. Ferguson sarcastically touched his
clothes and asked, “What is this supposed to be?” The employing establishment has denied the
allegation that Mr. Ferguson touched appellant’s clothing or made sarcastic comments to him,
and appellant has not submitted any evidence to support the other above-mentioned allegations
of harassment.24 As his representations alone are insufficient to establish a factual basis for his
claim,25 the Board finds that appellant has not established a compensable employment factor
under the Act with respect to these above-described allegations.

20

See Leroy Thomas, III, 46 ECAB 946, 954 (1995); Alton L. White, 42 ECAB 666, 669-70 (1991).

21

See David S. Lee, 56 ECAB ___ (Docket No. 04-2133, issued June 20, 2005).

22

See Lori A. Facey, supra note 15. See also David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D.
Walker, 42 ECAB 603, 608 (1991).
23

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

24

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
25

Charles E. McAndrews, supra note 4.

8

The Office accepted as factual that someone wrote the letters “KKK” on appellant’s time
card on May 6, 2005. The record contains a copy of appellant’s January 12, 2005 time card,
reflecting the letters “KKK” etched or written across a picture of appellant’s face. In its
December 28, 2005 decision, the EEO Commission found that the writing was sufficiently
severe to alter the conditions of employment and state a claim of harassment. The Office,
however, found that, although he received a positive outcome from his EEO complaint, appellant
failed to provide clear corroborative evidence to support error or abuse on the part of the
employing establishment and, therefore, there was no compensable factor of employment with
respect to the “KKK” writing.26
The Board finds that appellant’s allegation regarding the “KKK” incident constitutes a
compensable employment factor. Racial epithets, disparaging comments concerning national or
ethnic origin or sexualized name-calling, jokes or innuendo generally fall outside the Act.
However, such instances may give rise to coverage under the Act, when established by the facts
in evidence. In Abe E. Scott,27 the Board found that the supervisor’s use of the term “apes”
toward the claimant was derogatory and constituted harassment. In Frank J. Muhammad,28 the
Board found that a “Ku Klux Klan” flier discovered by a claimant in the break room did not
constitute a compensable factor of employment. As the claimant had not established that the
flier was sent to or directed at him, the Board determined that it was not a compensable factor.
The facts of this case are distinguishable from those in Muhammad, in that the “KKK” message
was directed at appellant. The Board recognizes that the “KKK” symbol evokes serious images
of terrorism based on racial discrimination. The Board finds here that the act of defacing
appellant’s time card by placing “KKK” across his face, clearly directed at appellant, constitutes
harassment and establishes a compensable factor of employment within coverage of the Act.
In the present case, appellant has established a compensable employment factor with
respect to the defaced time card. The case will be remanded to the Office for preparation of a
statement of accepted facts and further development of the medical evidence. After such
development as the Office deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that appellant has established a compensable employment factor which
requires an analysis of the medical evidence. As the Office found that there were no
compensable employment factors, it did not analyze or develop the medical evidence. The case

26

The Board notes that the determination of an employee’s rights and remedies under other statutory authority
does not establish entitlement to benefits under the Act for disability. Under the Act, for a disability determination,
the employee’s injury must be shown to be causally related to an accepted injury or factors of employment. For this
reason, the determinations of other administrative agencies or courts, while instructive, are not determinative with
regard to disability under the Act. See Daniel Deparini, 44 ECAB 657 (1993). Findings made by the Merit Systems
Protection Board or EEO Commission may constitute substantial evidence relative to the claim to be considered by
the Office and the Board. See Donna Faye Cardwell, 41 ECAB 730 (1990).
27

45 ECAB 164 (1993).

28

Docket No. 99-951 (issued March 9, 2000).

9

will be remanded to the Office for this purpose. After such further development as deemed
necessary, the Office should issue an appropriate decision on this matter.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 19, 2007 be set aside and the case be remanded for further
proceedings consistent with this decision of the Board.
Issued: December 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY INSPECTION SERVICE,
Moorefield, WV, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jeffery P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-324
Issued: January 15, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 16, 2006 appellant, through counsel, filed a timely appeal of a
November 7, 2006 merit decision of the Office of Workers’ Compensation Programs finding that
she did not sustain an injury while in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant sustained an injury while in the performance of duty.
FACTUAL HISTORY
This case has previously been before the Board. In an August 30, 2004 decision, the
Board set aside and remanded the Office’s January 27, 2003 decision.1 The Board found that an
unresolved conflict existed in the medical opinion evidence as to whether appellant sustained an
1

Docket No. 04-432 (issued August 30, 2004).

injury causally related to her federal employment.2 On remand, the Board instructed the Office
to prepare a new statement of accepted facts and refer the case to an appropriate impartial
medical specialist. Appellant filed a petition for reconsideration requesting that the Board
modify the August 30, 2004 decision. In an order dated February 1, 2005, the Board denied
appellant’s September 2, 2004 petition for reconsideration.3 The facts and the circumstances of
the case as set forth in the Board’s prior decision and order are incorporated herein by reference.
The facts and the history relevant to the present issue are noted, as follows.
On February 11, 1999 appellant, then a 43-year-old poultry inspector, filed an
occupational disease claim alleging her sinusitis, fibromyalgia, arthritic conditions and migraine
headaches were employment related.4 She stated that she was exposed to chemicals and realized
that her conditions were work related after seeing a chemical occupational specialist. Appellant
stopped work on February 4, 1999 and has not returned.
Following the Board’s August 30, 2004 decision, the Office referred appellant, to
Dr. Alan M. Ducatman, Board-certified in occupational and internal medicine, for an impartial
medical examination. In a letter dated December 17, 2004, appellant, through counsel, disagreed
with the referral. Counsel argued that no explanation was provided as to why appellant was not
sent back to Dr. Henry L. Abrons, the previous impartial medical specialist. He further argued
that no explanation was provided as to how the Office used the Physicians Directory System in
selecting Dr. Ducatman as numerous other physicians who were similarly Board-certified were
not selected. Counsel contended that Dr. Ducatman had been previously employed by Wampler
or its lawyers in one or more cases involving federal inspectors and Wampler employees who
sustained injury. He argued that since Dr. Ducatman could not have a relationship with
appellant’s employing establishment, he could not have a relationship with the third party that
caused her injury. Counsel requested that the Office determine whether Dr. Ducatman had been
paid by Wampler or any of its lawyers in any other cases and if so, in how many cases. By letter
dated January 5, 2005, he reiterated his objections.
In a letter dated December 22, 2004, Carolyn Delaney, appellant’s coworker, stated that
she worked at Wampler for five years. She related that she, as well as many of her coworkers,
developed health problems that they believed were due to chemical exposure at work.
Ms. Delaney stated that, when she filed for workers’ compensation benefits, Wampler’s lawyers
sent her to Dr. Ducatman for an examination. She indicated that her workers’ compensation
benefits were denied based upon Dr. Ducatman’s evaluation.
By letter dated January 19, 2005, the Office advised appellant that it was in the process of
scheduling an examination with another physician and that she did not have to attend the
2

Dr. Abrons was selected as an impartial medical specialist because the Office found a conflict in the medical
opinion evidence between Dr. Grace E. Ziem, an attending physician, and Dr. Prasad Nataraj, an Office referral
physician, as to whether appellant sustained an injury while in the performance of duty.
3

Order Denying Petition for Reconsideration, Docket No. 04-432 (issued February 1, 2005).

4

The record reveals that, prior to her employment at the employing establishment, appellant worked for a private
employer, Wampler Longacre in Moorefield, West Virginia. Although she later worked as a poultry inspector for
the employing establishment, she physically worked at the Wampler plant.

2

scheduled appointment with Dr. Ducatman. In a January 21, 2005 letter, the Office advised
appellant that an attempt was made to reschedule an examination with Dr. Abrons but it was
advised that he had left the area. It further advised that she was scheduled to see Dr. Ducatman,
the next available physician in the system, in accordance with its scheduling procedures.5 The
appointment was scheduled for January 31, 2005. The Office stated that its district director had
reviewed her objections but determined that additional detailed information was needed. It
instructed counsel to submit more specific information for consideration concerning the use of
Dr. Ducatman by Wampler.
In a January 25, 2005 letter, counsel again contended that Dr. Ducatman was not an
appropriate choice to perform a referee examination. He argued that it was the Office’s burden
to gather the information from Dr. Ducatman about his relationship with Wampler.
In a January 31, 2005 medical report, Dr. Ducatman reviewed a history of appellant’s
medical, family, social and employment background. He also reviewed her medical records and
reported his findings on physical examination. Dr. Ducatman diagnosed diverse syndrome
presentation with multiple nonphysiologic physical presentations noted on examination and in
the past. He stated that her prominent pain was inconsistent. Dr. Ducatman diagnosed heart
disease by history with incomplete records. He stated that appellant had a poorly documented
history of a cardiovascular accident, noting that either sinusitis or asthma could be outcomes of
the claimed exposures but pulmonary function tests revealed an inconsistent effort which was
compatible with his physical examination findings. Appellant also had diabetes and was obese.
Dr. Ducatman stated that she had neurodermatitis, hypertension by history and findings on
physical examination, past episodes of pneumonia by history, possible peripheral neuropathy that
was unsubstantiated, a plausible history of inflammatory bowel disease, mild osteoarthritis and
enchondorma and a medical history of rheumatic fever that was otherwise unsubstantiated,
fibrocystic breasts and biopsy. She also had a migraine headache that was not substantiated and
not fully evaluated, hyperventilation with numbness, gum/dental needs and plausible sleep
apnea. Dr. Ducatman opined that an ongoing work-related illness was not documented.
In a supplemental report dated February 3, 2005, Dr. Ducatman stated that none of the
symptom-based diagnoses alleged by appellant were established by objective evidence. In
addition to his previous diagnoses, he found that appellant had perhaps another underlying
nonoccupational dermatitis, probable peripheral neuropathy related to diabetes and heart disease,
possible stroke that was inadequately supported by the medical records and colitis or Crohn’s
disease with inadequate medical record support and numerous symptoms without clear cut
physical or laboratory findings to provide an explanation. Dr. Ducatman stated that it was well
known that diabetic peripheral neuropathy frequently preceded the diagnosis of diabetes. He
further stated that there were no plausible causes of toxic peripheral neuropathy so far
documented or mentioned for appellant’s workplace. Dr. Ducatman related that the chemicals
documented in the records were not regarded as central nervous system problems, they were
potential respiratory irritants. He opined that none of the current diagnoses were plausibly
caused by work exposure. Dr. Ducatman stated that a past history of irritant or allergic skin
5

An Office e-mail message dated December 14, 2004, indicated that Dr. Ducatman worked at the same facility as
Dr. Abrons.

3

dermatitis in the workplace was plausible and could not be ruled out. He opined that appellant’s
current dermatitis, heart disease and stroke were not work related. Dr. Ducatman stated that,
based on the best available medical literature, her workplace chemicals were not a recognized
cause of symptoms such as fibromyalgia, cardiac problems, lipomas, breast cysts other cysts
mentioned by history but not documented in the medical records and chronic fatigue. He further
stated that workplace chemicals were not established as the primary cause of a migraine in
appellant, noting that her medical records were not very supportive of a migraine diagnosis as the
etiology of headaches. Dr. Ducatman, however, stated that workplace chemicals were well
recognized as a trigger of increased frequency of migraine or nonspecific headache in already
susceptible patients while exposure persisted. He opined that appellant’s conditions were likely
permanent in nature. Dr. Ducatman also opined that a diagnosis of asthma which could be
caused by the poultry meat industry, could not be made due to inconsistent and nonphysiologic
effort on physical examination and in pulmonary function testing.
By decision dated March 16, 2005, the Office found that appellant did not sustain an
injury while in the performance of duty. The Office accorded special weight to Dr. Ducatman’s
medical opinion as an impartial medical specialist.
In a letter dated March 20, 2005, appellant, through her attorney, requested an oral
hearing before an Office hearing representative. Counsel argued that the Office did not
appropriately address his objections to the scheduling of an examination by Dr. Ducatman. He
contended that Dr. Ducatman’s report indicated that either he or other physicians in his office
had previously examined appellant and he did not explain the context in which he and his
colleagues examined her. Counsel also contended that Dr. Ducatman’s report suggested that
appellant suffered from residuals of her work-related injuries.
By decision dated January 31, 2006, an Office hearing representative set aside the
March 16, 2005 decision. The hearing representative accepted that appellant was exposed to
super-chlorinated water, humidity, isolated incidents of ammonia leaks and high carbon dioxide
levels in her workplace. The hearing representative, however, found that Dr. Ducatman’s
January 31, 2005 report was not sufficiently rationalized to establish whether appellant sustained
an injury. The hearing representative instructed the Office to obtain a supplemental report from
Dr. Ducatman.
In a supplemental report dated May 18, 2006, Dr. Ducatman stated that a stroke was not
generally regarded as a workplace condition. He noted that available medical records did not
adequately document whether appellant actually had a stroke and that the nature of her
hospitalization was unclear. Dr. Ducatman noted literature concerning the etiologic relationship
between work and a stroke which he stated did not support a finding that chicken slaughtering or
processing was a cause of stroke or associated with chemical exposures that cause stroke.
Regarding appellant’s dermatitis condition, Dr. Ducatman opined that this condition was not
work related at the time he evaluated her. Rather, it was consistent with past chemical
exposures. Dr. Ducatman opined that it was unconventional and not evidence supported to
attribute chronic, recurrent, nongeographically specific headache to workplace causes in the
absence of specific temporal evidence which included reliable and specific work triggers and
absence of generalized triggers. He further opined that there were specific environments which
caused migraine-type vascular headaches and the poultry industry was not one of them.

4

Dr. Ducatman concluded that appellant’s chronic pains were not work related. He further
concluded that her reactive airways dysfunction syndrome or asthma was not work related based
on objective evidence.
By decision dated June 29, 2006, the Office found that appellant did not sustain an injury
while in the performance of duty. It accorded special weight to Dr. Ducatman’s May 18, 2006
medical opinion as an impartial medical specialist.
In a September 5, 2006 letter, appellant, through her attorney, requested reconsideration
of the Office’s June 29, 2006 decision.6 Counsel argued that Dr. Ducatman was biased and that
he previously provided medical services to Wampler. He reiterated that Dr. Ducatman did not
explain the context in which he and his colleagues examined and treated appellant. Counsel also
argued that Dr. Ducatman’s medical opinion was not rationalized.
By decision dated November 7, 2006, the Office denied modification of the June 29,
2006 decision. It found that the appropriate procedures were followed in selecting Dr. Ducatman
as the impartial medical specialist. The Office further found that his reports did not establish
either that he had treated or examined appellant prior to its scheduled examination or that other
physicians in his medical group had examined appellant. The Office determined that
Dr. Ducatman’s reports were not biased. It found that his May 18, 2006 medical opinion was
entitled to special weight as an impartial medical specialist as it was well rationalized.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act7 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 and/or specific condition for which
compensation is claimed are causally related to the employment injury.8 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.9
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
6

Prior to appellant’s September 5, 2006 request for reconsideration of the Office’s June 29, 2006 decision, she
appealed this decision to the Board on July 10, 2006. By letter dated July 14, 2006, appellant, through her attorney,
requested that the appeal be dismissed to allow her to pursue reconsideration before the Office. In an order dated
August 23, 2006, the Board dismissed appellant’s appeal based on her July 14, 2006 request. Docket No. 06-1617
(issued August 23, 2006).
7

5 U.S.C. §§ 8101-8193.

8

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

9

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

5

or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship 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.10 Neither the fact that appellant’s condition became apparent during a
period of employment nor her belief that the condition was caused by her employment is
sufficient to establish a causal relationship.11
Section 8123(a) of the Act12 provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary of
Labor shall appoint a third physician who shall make an examination.13 Where a case is referred
to an impartial medical specialist for the purpose of resolving a conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual and medical background,
must be given special weight.14
When the Office obtains an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the specialist’s opinion requires clarification
or elaboration, the Office must secure a supplemental report from the specialist to correct the
defect in his original report.15 However, when the impartial specialist is unable to clarify or
elaborate on his original report or if his supplemental report is also vague, speculative or lacking
in rationale, the Office must submit the case record and a detailed statement of accepted facts to
a second impartial specialist for the purpose of obtaining his rationalized medical opinion on the
issue.16

10

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

11

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

12

5 U.S.C. § 8123.

13

Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45 ECAB 207 (1993).

14

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

15

Raymond A. Fondots, supra note 13 at 641; Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
16

Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB 673 (1996).

6

ANALYSIS
Due to a conflict in the medical opinion evidence between Dr. Ziem, an attending
physician, and Dr. Nataraj, an Office referral physician, the Office initially referred appellant to
Dr. Abrons, Board-certified in internal, critical care, pulmonary disease and occupational
medicine, for an impartial medical examination. The Board previously found that Dr. Abrons’
May 23, 2000 medical opinion was insufficient to resolve the conflict in the medical opinion
evidence and remanded the case to the Office for referral of appellant to another impartial
medical specialist. On remand, the Office properly referred appellant to Dr. Ducatman for an
impartial medical examination after learning of Dr. Abrons’ unavailability.17 The Board finds,
however, that Dr. Ducatman’s reports are not sufficient to resolve the conflict in the medical
opinion evidence.
Dr. Ducatman found that appellant suffered from numerous conditions including, heart
disease, pneumonia and rheumatic fever by history, diabetes, obesity, neurodermatitis,
hypertension, possible peripheral neuropathy, inflammatory bowel disease, mild osteoarthritis,
enchondorma, fibrocystic breasts, migraine headache, hyperventilation with numbness,
gum/dental needs and plausible sleep apnea. In a February 3, 2005 report, Dr. Ducatman found
that appellant perhaps had underlying nonoccupational dermatitis, possible stroke that was
inadequately supported by the medical records and colitis or Crohn’s disease with inadequate
medical record support and numerous symptoms without clear cut physical or laboratory findings
to provide an explanation. In both reports Dr. Ducatman opined that none of the diagnosed
conditions were causally related to appellant’s employment.
The Office requested a supplemental report from Dr. Ducatman based on the hearing
representative’s January 31, 2006 decision, finding that he failed to provide a rationalized
medical opinion establishing whether appellant’s stroke, dermatitis, headaches and reactive
airway disease were causally related to the accepted factors of her federal employment.
In a May 18, 2006 report, Dr. Ducatman again opined that appellant’s work duties did not
cause her stroke because a stroke was not generally regarded as a workplace condition based on
medical literature concerning the etiological relationship between work duties and a stroke.
Dr. Ducatman also opined that appellant’s neurodermatitis was not work related. He
stated that although her past chemical exposures at work could have caused a past
neurodermatitis condition, his findings on physical examination did not support such a current
diagnosis. Dr. Ducatman found that appellant’s reactive airway dysfunction or asthma was not
work related based on objective evidence. He did not specifically identify the physical or
objective findings that supported his conclusion. Dr. Ducatman did not provide adequate
medical rationale explaining how or why appellant’s work environment did not cause her skin
and respiratory conditions in light of the Office’s acceptance that she was exposed to certain
chemicals while working at the employing establishment.
Dr. Ducatman opined that appellant’s migraine headaches were not related to her
employment. He stated that she did not provide a description consistent with a workplace
17

Harold Travis, 30 ECAB 1071, 1078 (1979).

7

headache. Dr. Ducatman cited generally to statistics from medical literature regarding the
incidence of chronic workplace headaches. He did not specifically describe a workplace
headache. The Board finds that Dr. Ducatman did not provide a reasoned medical opinion
sufficient to resolve the conflict in the medial evidence. His reports are of diminished probative
value.
This case will be returned to the Office for further development, to be followed by an
appropriate decision regarding this matter.
CONCLUSION
The Board finds that the conflict in the medical opinion evidence remains unresolved as
to whether appellant sustained an injury while in the performance of duty. The case will be
remanded for resolution of the conflict.
ORDER
IT IS HEREBY ORDERED THAT the November 7, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to the Office for further
action consistent with this decision of the Board.
Issued: January 15, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


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

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

Docket No. 15-0321
Issued: October 6, 2015

Case Submitted on the Record

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

JURISDICTION
On November 25, 2014 appellant, through counsel, filed a timely appeal from an
August 18, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for knee surgeries.
On appeal appellant, through counsel, argues that she provided abundant factual and
medical evidence to establish that she injured both knees as a result of the employment incident,
that she required surgery on both knees, and that OWCP’s decision should be reversed. In the

1

5 U.S.C. § 8101 et seq.

alternative, counsel argues that at the very least there was a conflict in the medical evidence and
the case should be referred to a referee physician.
FACTUAL HISTORY
On July 11, 2011 appellant, then a 35-year-old criminal investigator, filed a traumatic
injury claim alleging that on July 8, 2011 she parked a government vehicle in a lot adjacent to
the old Walson Hospital and was walking through the parking lot back to the main building when
she tripped over a curb. She listed the nature of her injury as dislocation of the knees and further
undetermined injuries.
Appellant was seen on July 11, 2011 by Dr. Michael Ruggerio, an osteopath, who noted
that she fell on both knees after she tripped on a curb at work. Dr. Ruggerio assessed her with
internal derangement of the knees.
Dr. Fotios Tjoumakaris, a Board-certified orthopedic surgeon, treated appellant on
July 18, August 22, and September 7, 2011. He diagnosed left knee chondromalacia status post
patellofemoral dislocation with increased thinning of her articular cartilage and an acute
exacerbation of some mild underlying chondromalacia.
By decision dated October 3, 2011, OWCP denied appellant’s claim, finding that she had
not established that the incident occurred as alleged.
On October 12, 2011 appellant requested an oral hearing before an OWCP hearing
representative.
Appellant submitted a July 21, 2011 magnetic resonance imaging (MRI) scan taken of the
right knee without contrast, interpreted by Dr. Siddharth Prakash, a Board-certified radiologist.
Dr. Prakash found mild medial joint space narrowing with thinning of the underlying articular
cartilage; no meniscal or ligamentous tear; suprapatellar joint effusion; and chondromalacia
patella. He noted that appellant sustained patellar dislocation following a fall on July 8, 2011.
In an October 6, 2011 report, Dr. Jason Wong, appellant’s treating osteopath, noted that
appellant came in for an evaluation of her knees. He noted that at the beginning of July 2011,
she had been walking with heels and got the right heel caught in a crack on a curve and fell on
both knees. Dr. Wong listed his impression as most likely either an impinging medial
patellofemoral joint fat pad or a medial meniscal tear of the right knee. With regard to the left
knee, he opined that appellant may have a similar problem, but not to the same extent.
An October 12, 2011 MRI scan of the right knee was interpreted by Dr. Kevin Willis, a
Board-certified radiologist. Dr. Willis found intact cruciate ligaments and menisci, but abnormal
signal involving Hoffa’s fat pad with findings suggestive of patellar tracking abnormality/mild
patellofemoral friction syndrome, associated small suprapatellar joint effusion. An MRI scan of
the same date on the left knee was interpreted as showing minimal, compartmental degenerative
change, predominantly involving thinning of the articular cartilage. Dr. Willis found no
evidence of a meniscal tear in either knee and determined that the cruciate ligaments were intact.
He noted that there was straining of Hoffa’s fat pad in the right knee medially with mild
abnormal signal involving the lateral patellar facet and the lateral trochlear ridge. Dr. Willis
2

noted that the findings can be seen in patellofemoral friction syndrome/patellar tracking
abnormality, and that clinical correlation was recommended.
In an October 13, 2011 report, Dr. Wong listed the diagnosis as symptomatic medial
patellofemoral plica, right knee and left knee, more so on right. On December 12, 2011 he
performed an arthroscopy of the left knee with excision of medial and lateral patellofemoral plica
and excision of fat pad with the lateral retinacular release and an injection.
Appellant continued to submit reports by Dr. Wong. In a February 26, 2012 report,
Dr. Wong noted that he first saw her on October 6, 2011 for evaluation of her knee conditions.
He discussed in detail appellant’s history of falling three months earlier at the employing
establishment and his subsequent medical treatment of her. Dr. Wong diagnosed symptomatic
patellofemoral plica and impinging fat pad bilaterally. He opined that the condition in both of
appellant’s knees was caused and precipitated by her injury. Dr. Wong indicated that the
medical reason for this opinion was that she had direct trauma to the anterior aspect of both
knees, which occurred when she fell on both of her knees while at work. He noted that appellant
required further physical therapy and strengthening to her left knee and does require surgical
intervention due to the continued pain in her right knee.
In a May 10, 2012 decision, the hearing representative remanded the case for further
development of the medical evidence.
On September 4, 2012 OWCP referred appellant to Dr. Kenneth P. Heist, a Boardcertified osteopath specializing in orthopedic surgery, for a second opinion. In a September 19,
2012 report, Dr. Heist reviewed appellant’s employment history, medical records, and conducted
a physical examination. He diagnosed her with status postoperative arthroscopic surgery on the
left knee, excision fat pad, plica and lateral release (not work related) and sprained right knee,
and aggravation of patella chondromalacia (preexisting). Dr. Heist noted that his examination
revealed right knee tenderness with lateral patella motion and slight crepitation with acute
flexion of the right knee. He opined that these positive findings are related to appellant’s
preexisting condition of chondromalacia of the patella and not related to her July 8, 2011 fall.
Dr. Heist opined that she temporarily aggravated her preexisting condition and that this has since
resolved. He concluded that appellant subsequently had a lateral release performed to her left
knee, but that this procedure was done for the preexisting condition of chondromalacia patella
and not related to her work injury.
By decision dated November 28, 2012, OWCP accepted appellant’s claim for sprain of
the right knee (resolved as of September 24, 2012) and temporary aggravation of chondromalacia
patellae of the right knee (resolved September 24, 2012). In a decision of the same date, it
denied her claim for right knee surgical excision of plica and fat pad.
On December 6, 2012 appellant, through counsel, requested a hearing. By letter dated
March 22, 2013, counsel requested that the hearing be changed to a review of the written record.
In a December 20, 2012 report, Dr. Wong noted that appellant came in for a follow-up on
her knees. He noted that she continued to have pain and discomfort over the anterior aspect of
the right knee and that she does have a little click and pop with the knee. Dr. Wong noted that

3

appellant’s new MRI scan was interpreted by the radiologist as showing a strain pattern to the
anterior cruciate ligament (ACL), but did not specifically evince that there was anything
underneath the knee. However, he noted that, when he independently viewed the film, it evinced
that she had a hypertrophic fat pad. Dr. Wong noted that appellant actually had some fluid with
the fat pad and she does have a medial patellofemoral plica, which is what he believed had been
injured when she fell directly on to her knee. He listed his impression as symptomatic medical
patellofemoral plica and impinging fat pad of the right knee, which was exacerbated by a fall
which occurred when she was at work. Dr. Wong noted that at this time he recommended that he
arthroscope the knee, excise the fat pad, excise the plica, and address anything else in the knee.
He noted that there may be a slight possibility she might have a very posterior root tear of the
lateral meniscus.
Appellant continued to submit progress reports by Dr. Wong. In an April 2, 2013 report,
Dr. Wong noted that he reviewed the opinion of Dr. Heist and that he disagreed with his finding
that appellant had preexisting chondromalacia. He noted that appellant was seen in the
emergency room for a dislocated kneecap, which was relocated in the emergency room.
Dr. Wong noted that she had gravel from the asphalt pulled from her knee during the emergency
room visit. He explained that, if appellant did have preexisting chondromalacia, her injury
which occurred from her fall at work exacerbated her chondromalacia. Dr. Wong noted that
there was “no denying that she did sustain a dislocated patella during her injury and she had also
injured her left knee at the same time.” He noted that appellant continued to have pain and
discomfort to the knee and that he believed that it was appropriate that she undergo further
surgical intervention to relieve the discomfort. Dr. Wong noted that she did undergo surgery to
her left knee, which relieved her symptomatology. He further noted that appellant’s injury to her
right knee seems to be more substantial and has not yet been treated. Dr. Wong therefore opined
that Dr. Heist’s evaluation, although well respected, was inaccurate.
By decision dated May 31, 2013, the hearing representative affirmed the November 28,
2012 decision, finding that the weight of the medical evidence failed to support that appellant
had “plica and/or fat pad in the right knee causally related to the accepted employment trauma
and/or injury of July 8, 2011.”
By letter dated August 22, 2013, appellant, through counsel, requested reconsideration.
In support thereof, counsel submitted an August 14, 2013 report by Dr. Wong, wherein he noted
that he continued to disagree with Dr. Heist. He noted that, prior to his first visit with appellant
on October 6, 2011, she had a July 21, 2011 MRI scan done which was two weeks after the
initial injury and that according to the radiologist, she had medial joint space narrowing and
thinning of the underlying articular cartilage as well as chondromalacia of the patella. Dr. Wong
noted that he reviewed the films and they showed that she had a high signal within the
suprapatellar pouch and throughout the infrapatellar fat pad. He noted that he did not see any
obvious meniscal lesion, although appellant did complain of pain over the medial joint.
Dr. Wong noted that on that date she had impinging medial patellofemoral fat pad or a medial
meniscal tear of the right knee.
Dr. Wong also noted that a new MRI scan of the knee was obtained on October 12, 2011,
and at that time, the radiologist read that appellant had minimal tricompartmental degenerative
change predominantly involving thinning of the articular cartilage with no evidence of meniscal

4

tear. He noted that she did have stranding of the Hoffa’s fat pad and medically and mild
abnormal signal involving the lateral patellar facet and lateral trochlear ridge. Dr. Wong noted
that findings could be seen with patellofemoral fraction syndrome and patellar tracking
abnormality, which in his opinion was caused by the lateral dislocation of appellant’s patella due
to the fall. He opined that at this time, the only option to relieve her pain and to resume normal
activities of daily living would be to arthroscope the knee and excise the fat pad as well as the
medial patellofemoral plica.
Dr. Wong opined that it was within a reasonable degree of certainty that appellant’s
trauma caused the damage to her knee including chondromalacia, which can be caused by direct
trauma to the anterior aspect of the knee for the following reasons: she had no prior complaints
of pain and discomfort to her knee; appellant did sustain direct trauma to the anterior aspect of
her knee which resulted in a dislocation of the patella for which she was seen in the emergency
room; she had continued pain and disability related to the injury despite conservative care; and
that chondromalcia of the patella is most certainly related to direct trauma to the anterior aspect
of the knee, which reflects an injury and trauma to the articular cartilage, which can be sustained
with direct trauma as well as with lateral dislocation of the patella. He noted that she sustained
intraarticular internal derangement of her knee as reported by MRI scan reports of July 21 and
October 12, 2011. Dr. Wong opined that at the time he believed that appellant would
significantly improve her functional status and decrease her pain with an arthroscopic procedure
to her knee to excise the infrapatellar fat pad as well as the plica. He concluded by noting that
although Dr. Heist’s opinions were respected that he completely disagreed with his findings.
By decision dated October 31, 2013, OWCP denied modification of the decision.
On November 22, 2013 appellant, through counsel, requested reconsideration. In support
thereof, appellant submitted additional notes by Dr. Wong. These included a November 14,
2013 note wherein Dr. Wong listed his impression as symptomatic medial patellofemoral plica,
impingement of the fat pad, and chondromalacia. He noted that he did not believe that the
chondromalacia was a preexisting condition, and believed that it was caused by a direct blow to
the anterior aspect of the knee. Dr. Wong stated that the working diagnosis at this point should
include chondromalacia as well as the symptomatic medial patellofemoral plica and
impingement of the fat pad. He continued to recommend an arthroscope of the knee,
chondroplasty of the patella, excision of the medial pattelofemoral plica, and excision of the
infrapatellar fat pad.
By decision dated February 19, 2014, OWCP denied modification of the earlier OWCP
decisions, finding that the weight of the medical evidence still rested with the opinion of
Dr. Heist.
In a report dated April 28, 2014, written in response to OWCP’s decision dated
February 19, 2014, Dr. Wong noted that he had conducted multiple extensive physical
examinations of appellant’s knees starting on October 6, 2011. He discussed her history of
injury, history of medical examinations, and quoted a textbook on orthopedic medicine with
regard to patellofemoral pain syndrome and chondromalacia of the patella. Dr. Wong noted that,
after the left knee arthroscopic surgical intervention, appellant’s left knee symptoms resolved
and appellant has not had any complaints of pain. He noted that his impression as of March 20,

5

2014 was that she had a symptomatic medial patellofemoral plica in the right knee due to a fall
on the knee which occurred at work. Dr. Wong noted that he injected appellant’s knee. He
wrote:
“Please note that according to the above[-]reference[d] material that I have
absolutely without a doubt diagnosed a medial patellofemoral plica when
consideration of the patent’s history as well as multiple physical examinations by
myself and multiple treatments modalities have been treated accordingly and
appropriately. Dr. Heist’s evaluation however, which the report findings have
based the denials have been based on a ‘wastebasket’ diagnosis provided by
Dr. Heist. At this point, we have provided records of physical examination, MRI
scan findings, subjective complaints from the patient, and a history of trauma to
support my findings of a patellofemoral syndrome and impinging fat pad which
require arthroscopic surgical resection of the plica. Dr. Heist’s findings, however,
are unfounded and I would appreciate if further consideration would be made in
this appeal for surgical treatment of [appellant’s] complaint of anterior knee pain
due to symptomatic patellofemoral plica and impinging fat pad for which the
patient had received similar treatment in her left knee due to an injury which
occurred on the same day and due to the same mechanism and for which she has
found significant relief due to the surgical intervention.”
By letter dated June 16, 2014, counsel requested reconsideration again, this time from the
decision dated February 19, 2014
By decision dated August 18, 2014, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances, and supplies prescribed
or recommend by a qualified physician that the Secretary of Labor considers likely to cure, give
relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.2 OWCP must therefore exercise discretion in determining whether the
particular service, appliance or supply is likely to affect the purposes specified in FECA.3 The
only limitation on OWCP’s authority is that of reasonableness.4
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.5 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
2

Id. at § 8103(a).

3

F.S., Docket No. 14-972 (issued October 15, 2014).

4

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

5

5 U.S.C. § 8123(a).

6

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.6
ANALYSIS
On November 28, 2012 OWCP accepted that as a result of the July 8, 2011 employment
injury, appellant suffered a sprain of the right knee (resolved as of September 24, 2012) and
temporary aggravation of chondromalacia patellae, right knee (resolved September 24, 2012).
However, it denied her requests for knee surgeries. OWCP determined that the record did not
include a well-reasoned medical opinion explaining how the employment injury of July 8, 2011
caused or aggravated appellant’s knee conditions and caused a need for surgical treatment.
OWCP has determined that the weight of the medical evidence was represented by the
report of Dr. Heist, the second opinion physician. Dr. Heist opined that appellant’s surgery on
her left knee was for a preexisting condition of chondromalacia of the patella and was not related
to her employment injury. He refers to an MRI scan report for the right knee dated July 8, 2011,
which he alleged revealed evidence of preexisting chondromalacia of the patella. There is no
MRI scan in the record dated July 8, 2011. An MRI scan of July 21, 2011 was interpreted by
Dr. Prakash as evincing chondromalacia patella, but he did not indicate that this condition was
preexisting. Dr. Prakash did note a patellar dislocation following a July 8, 2011 fall.
Dr. Wong, appellant’s treating osteopath, strongly disagreed with Dr. Heist’s opinion and
diagnosed medial patellofemoral plica, right knee, due to the fall at work. He provided a detailed
description of appellant’s fall and noted that gravel was removed from appellant’s knee at the
emergency room visit on the date of the injury. Dr. Wong noted that she sustained a dislocated
patella during her injury and that she injured her left knee at the same time. He reviewed the
MRI scans by Drs. Prakash and Willis. Dr. Wong noted that appellant sustained intraarticular
internal derangement of her knee as reported by MRI scan reports of July 21 and
October 12, 2011. In his December 20, 2012 report, he noted that her July 21, 2011 MRI scan
was interpreted by the radiologist as showing a strain pattern to the anterior crucial ligament but
did not specifically state that there was anything underneath the knee. Dr. Wong noted that,
when he independently reviewed the film, it showed that appellant had a hypertrophic fat pad
and that she had a medial patellofemoral plica, which he believed had been injured when she fell
directly onto her knee. He opined that within a reasonable degree of medical certainty her fall
caused the damage to her knee, including the chondromalacia, noting that appellant had no prior
complaints of pain and discomfort in her knee, that she did sustain direct trauma to her knee
which resulted in a dislocation of the patella, that appellant continued to be in pain despite
conservative care, and that the chondromalacia of the patella was most certainly related to the
direct trauma. Dr. Wong indicated that his diagnoses and opinion on causation were supported
by multiple physical examinations, subjective complaints from appellant, and a history of
trauma. He noted she had significant relief from her first surgery.

6

20 C.F.R. § 10.321.

7

The Board finds that due to an outstanding conflict in the medical opinion evidence
between appellant’s physician, Dr. Wong, and the second opinion physician, Dr. Heist, regarding
appellant’s need for bilateral knee surgery, the case must be referred to an impartial medical
specialist to resolve the conflict, pursuant to 5 U.S.C. § 8123(a).7 On remand, OWCP should
refer appellant, along with the case file and the statement of accepted facts, to an appropriate
impartial medical specialist for a determination with regard to appellant’s request for knee
surgeries. After such further development as OWCP deems necessary, it should issue a de novo
decision regarding her claim.
CONCLUSION
The Board finds that this case is not in posture for decision with regard to appellant’s
request for coverage for bilateral knee surgeries.
ORDER
IT IS HEREBY ORDERED THAT the August 18, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for proceedings consistent
with this decision.
Issued: October 6, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

See F.S., Docket No. 14-1657 (issued November 17, 2014).

8