United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hurricane, WV, Employer
__________________________________________

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Appearances:
Jennifer Raymond, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0415
Issued: May 15, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 4, 2016 appellant, through counsel, filed a timely appeal from a November 9,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective February 9, 2014, because he no longer had any
1

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

5 U.S.C. § 8101 et seq.

residuals or disability causally related to his accepted September 24, 2012 employment injury;
and (2) whether appellant has established that he had continuing disability after
February 9, 2014.
FACTUAL HISTORY
On October 4, 2012 appellant, then a 46-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his neck, back, left wrist, and left leg as a result of a
September 24, 2012 employment-related motor vehicle accident. OWCP initially accepted the
claim for neck sprain, lumbosacral strain, and left wrist sprain. It paid wage-loss compensation
benefits on the supplemental rolls as of November 19, 2012.
Appellant came under the care of Dr. Allen Young, an occupational medicine specialist,
in October 2012, who noted the history of injury and provided examination findings. An
assessment of neck sprain, sprain and strain of unspecified site of left wrist and lumbosacral
sprain were provided. In November 2012, Dr. Young prescribed physical therapy three times a
week, which appellant attended. He also continued to place appellant off work, following a brief
return to modified duty on November 19, 2012.
In a January 2, 2013 report, Dr. Young noted that the magnetic resonance imaging (MRI)
scan of the cervical spine showed changes consistent with time, and no acute herniated nucleus
pulposus or nerve impingement. The MRI scan of the lumbar spine showed a disc protrusion on
the right at L4-5 with foraminal stenosis on the right, which he indicated did not really correlate
with appellant’s acute left-sided leg symptoms. Dr. Young found that, while physical therapy
had helped the lower back to a point, appellant needed four weeks of chiropractic therapy three
times a week to get him back to work. In a February 1, 2013 letter, he noted that the MRI scan
report indicated that there was a subluxation of L5 on S1, which he was attributing to the workrelated injury. Dr. Young indicated that appellant never had any significant lower back issues
prior to the work injury and explained that the forces generated by one car hitting another car
would have caused a snapping of the spine and the persistent symptoms he now had.
On February 4, 2013 OWCP accepted the additional condition of subluxation at L5-S1.
In his February 11, 2013 report, Dr. Young diagnosed subluxation L5-S1 and again
requested chiropractic therapy three times a week, for four weeks
On February 13, 2013 appellant came under the care of Dr. Ryan J. Carlton, a
chiropractic physician, for diagnosis of lumbosacral sprain/strain and subluxation L5-S1.
Dr. Carlton also noted that the x-rays taken on February 13, 2013 showed grade 1
spondylolisthesis.
In a November 19, 2013 report, Dr. Young related that appellant continued with the same
lower back pain into the posterior left leg and sometimes both legs. Examination findings
included mild-to-moderate tenderness at the left L5 paraspinal and the L5 spinous process and
range of motions findings at T12. Dr. Young noted pain at the end range, especially with
extension. He indicated that appellant still had symptoms from the work injury and that
authorization was needed for a pain management specialist. Dr. Young also reviewed a

2

November 19, 2013 modified job offer from the employing establishment and indicated which
duties of the modified job appellant was able to perform.
In November 2013, OWCP referred appellant for a second opinion evaluation with
Dr. Paul Bachwitt, a Board-certified orthopedic surgeon, in order to determine whether appellant
continued to have residuals of his work-related conditions and to determine whether he was able
to return to work in a full-duty capacity. The December 21, 2012 statement of accepted facts
(SOAF)3 and the November 20, 2013 questions to the second opinion examiner noted that the
claim had been accepted for neck sprain, lumbosacral sprain, and left wrist sprain. Dr. Bachwitt
was asked to evaluate whether appellant had residuals of the accepted conditions, or whether he
had any other conditions causally related to the accepted injury.
In a December 19, 2013 report, Dr. Bachwitt, OWCP’s referral physician, reviewed the
SOAF and appellant’s medical records, and set forth examination findings. He noted in detail
appellant’s history of medical treatment, including Dr. Young’s recommendation that appellant
undergo chiropractic treatment for subluxation at L5-S1. Dr. Bachwitt noted appellant’s
chiropractic treatment at Davis Chiropractic Clinic.
Dr. Bachwitt opined that appellant’s cervical, left wrist, and lumbosacral sprain/strains
had all resolved with no residuals and that appellant had no other conditions causally related to
the accepted injury. He noted that physical examination of the cervical and lumbar spine
revealed no evidence of a radiculopathy or an operative disc lesion and examination of the left
wrist was within normal limits. Dr. Bachwitt advised that simple sprain/strains should have
resolved within two to three months at the most and it had now been more than one year. He
also reviewed x-rays taken in the office. X-rays of the lumbar spine showed moderate
degenerative changes in the lower lumbar spine, compatible with appellant’s age, and grade 1
spondylolisthesis. There was no evidence of an instability pattern of either an angular or
translational fracture and no fractures, dislocation, or subluxations were noted. Dr. Bachwitt also
noted that the December 12, 2012 MRI scan of the lumbar spine showed degenerative changes at
the lower two levels at L4-5. He opined that appellant could return to full-duty work as a rural
carrier without restrictions. Dr. Bachwitt also found that there was no need for any further
medical treatment.
On January 6, 2014 OWCP notified appellant of a proposal to terminate his wage-loss
compensation and medical benefits based on the opinion of Dr. Bachwitt, the second opinion
physician, who opined that the residuals of the accepted work-related conditions had ceased and
appellant was no longer disabled from work as a result of the accepted conditions. Appellant
was afforded 30 days to submit additional information.
Appellant subsequently submitted claims for compensation (Forms CA-7) and a
February 5, 2014 statement.

3

The SOAF included a July 11, 2013 addendum, which noted that appellant resumed work on May 13, 2013, but
stopped again on May 15, 2013. The addendum further noted that OWCP accepted a recurrence of disability
beginning May 15, 2013 and that he currently remained totally disabled.

3

By decision dated February 7, 2014, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective February 9, 2014, as the weight of the medical
evidence rested with the opinion of Dr. Bachwitt who found that appellant no longer had any
residuals related to his accepted work-related medical conditions or continued disability from
work as a result of the September 24, 2012 work injury.
On February 25, 2014 appellant requested an oral hearing with an OWCP hearing
representative. Copies of evidence already of record were received.
Copies of claims for compensation Form CA-7 and reports from Dr. Young dated
January 16 through March 12, 2014, which either noted appellant’s experience with chiropractic
treatment, or advised there was no change in his persistent back symptoms, were received.
Dr. Young continued to indicate appellant’s inability to return to his date-of-injury position as a
rural carrier was based upon his persistent back symptoms and objective examination findings.
He explained that appellant could not work full duty and that modified duty had not worked out,
therefore, he remained off work. Dr. Young continued to request authorization for treatments at
a pain clinic.
In a February 28, 2014 report, Dr. Carlton, a chiropractor, expressed his agreement with
Dr. Young that appellant continued to have persistent symptoms with regard to his injury. He
explained that, while most simple sprain/strain injuries should resolve within two to three
months, there were exceptions to this rule and appellant was one of them. Dr. Carlton also
agreed with Dr. Young that appellant should undergo a pain clinic evaluation.
An oral hearing was held telephonically on June 10, 2014. During the hearing, appellant
testified as to the nature of his neck and back conditions prior to and after the work injury. He
expressed his disagreement with the second opinion examination and questioned the medical
evidence of record in his case, noting that a copy of a referral letter for another appellant was in
his case file.
Following the hearing, a July 10, 2014 investigative report from the employing
establishment’s Office of Inspector General (OIG) was received along with physical exhibits
regarding appellant’s physical capacities. The OIG indicated that it had been conducting an
investigation of appellant from November 2012 through June 2014 and determined that appellant
had been misrepresenting his physical abilities to his physicians, the employing establishment,
and OWCP. During the timeframe of the investigation, appellant reported that he was incapable
of sorting and delivering letters, but he was observed mowing his lawn, weeding, building a
fence, operating a farm tractor, caring for a horse, carrying a goat, carrying bags of feed and
bales of hay, and carrying a ladder, among other strenuous physical activities.
By decision dated August 25, 2014, an OWCP hearing representative affirmed OWCP’s
February 7, 2014 termination decision.
On September 3, 2014 OWCP received an August 27, 2014 supplemental report of
investigation from the OIG, which stated that it had interviewed appellant’s treating physician
and chiropractor and that both physicians reviewed video of appellant engaging in numerous
activities including frequently operating a riding lawn mower, operating a weed-eater, building a

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fence, operating a farm tractor, caring for a horse, carrying a goat or sheep, carrying bags of feed
and bales of hay, and carrying a ladder among other strenuous physical activities.
Included with this report was a handwritten statement signed on August 21, 2014 from
Dr. Young. He corrected his medical opinion based on videotaped surveillance performed over a
period of 19 months beginning in December 2012. Dr. Young noted that he had not seen
appellant in over four months, referenced a video of appellant building a fence and using a post
hole digger, and opined that he could at least perform modified-duty work. He explained that the
activities he observed on videotape were not consistent with the manner in which appellant
presented himself upon examination, which had caused him to place him in a nonwork status
when he could have been working at least in a modified capacity.
In an August 21, 2014 statement, appellant’s chiropractor, Dr. Carlton, also opined that
the activities he observed on videotape were inconsistent with the manner in which appellant
presented himself to him. He noted that he had not seen appellant since September 30, 2013.
On September 23, 2014 counsel informed OWCP that she had been retained to represent
appellant before OWCP. She requested an electronic copy of appellant’s file. OWCP responded
to counsel’s request on October 1, 2014 and sent a complete copy of appellant’s case file to
counsel.
On December 16, 2014 appellant, through counsel, requested reconsideration. Counsel
argued that a conflict in medical opinion existed between Dr. Bachwitt and Dr. Young regarding
whether appellant’s employment injuries had resolved. She also noted that Dr. Bachwitt was
unaware that L5-S1 subluxation was an accepted condition, as this information had been omitted
from both the SOAF and the November 20, 2013 list of questions OWCP forwarded him.
By decision dated March 6, 2015, OWCP denied appellant’s reconsideration request
without conducting a merit review.
On August 11, 2015 appellant, through counsel, again requested reconsideration.
Counsel argued that the accepted condition of L5 subluxation was not listed as an accepted
condition in the SOAF provided to Dr. Bachwitt and that appellant was entitled to a referee
examination to settle the conflict in medical opinion between Dr. Young and Dr. Bachwitt. She
also argued that she was not provided with a copy of the surveillance video prior to it being
presented to appellant’s physician.
In a July 29, 2015 report with an August 10, 2015 amended report, Dr. Thomas E.
Dannals, a family practitioner, advised that the March 9, 2015 electromyogram (EMG) found
generalized peripheral neuropathy, sensory motor, and bilateral lumbar radiculopathies involving
the L4-5 and S1 distribution. He opined that subluxation was present at L5-S1 due to the prior
MRI scan and current symptoms. Dr. Dannals also opined that the radiculopathy report on the
nerve conduction was related to a disc problem in the back. He indicated that he has known
appellant for at least 20 years and he was not aware of any prior back injuries. Dr. Dannals
diagnosed lumbar radiculopathy and opined that “more likely than not it is related to the MVA
from September 24, 2012.” He recommended a follow-up MRI scan and physical therapy.
Dr. Dannals additionally recommended a referral to a neurosurgeon, physiatrist, or pain

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specialist. He noted that, on examination, appellant had significant pain with bilateral straight
leg raising at 90 degrees.
A March 26, 2015 EMG contained an impression of generalized peripheral neuropathy,
sensory motor; and bilateral lumbar radiculopathies involving the L4-5 and S1 distribution.
By decision dated November 9, 2015, OWCP denied modification of the August 25, 2014
decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.6 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment.7
Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.8
ANALYSIS
On September 24, 2012 appellant was involved in a work-related motor vehicle accident.
OWCP initially accepted his traumatic injury claim for left wrist sprain, neck sprain, and
lumbosacral strain. On February 4, 2013 it expanded appellant’s claim to include L5-S1
subluxation as an accepted condition. Appellant last worked on May 15, 2013. OWCP accepted
a recurrence of disability beginning May 15, 2013, and it paid him wage-loss compensation for
temporary total disability.
In November 2013, OWCP referred appellant for a second opinion evaluation by
Dr. Bachwitt to determine the extent of an ongoing injury-related residuals. The SOAF, dated
July 11, 2013, and OWCP’s November 20, 2013 list of questions for the second opinion
examiner, both indicated that appellant’s accepted conditions included neck sprain, lumbosacral
sprain, and left wrist sprain. Neither document referenced L5-S1 subluxation as an additional
accepted condition.
4

Curtis Hall, 45 ECAB 316 (1994).

5

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

6

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

7

Calvin S. Mays, 39 ECAB 993 (1988).

8

Richard F. Williams, 55 ECAB 343, 346 (2004).

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Dr. Bachwitt examined appellant on December 16, 2013, and in his December 19, 2013
report he opined that appellant’s “cervical, left wrist and lumbosacral sprain/strains [had] all
resolved.” He explained that “[t]hese simple sprain/strains should have resolved within two to
three months at the most and it has now been more than one year.” Dr. Bachwitt found that
appellant no longer suffered residuals of the “cervical, left wrist and lumbar sprain/strains,” and
was able to return to full-duty work as a rural carrier. He also advised that appellant did not
require any further treatment for the subject injury. OWCP relied on Dr. Bachwitt’s
December 19, 2013 opinion in terminating appellant’s wage-loss compensation and medical
benefits, effective February 9, 2014.
Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.9 In this instance, it
neglected to inform the second opinion examiner, Dr. Bachwitt, that appellant’s claim had also
been accepted for L5-S1 subluxation. The Board has previously explained that when an OWCP
medical adviser, a second opinion specialist, or an independent medical examining physician
renders a medical opinion based on an incomplete or inaccurate SOAF or does not use the SOAF
as the framework in forming the opinion, the probative value of the opinion is diminished, or
negated altogether.10 The Board finds that, because of the incomplete SOAF, OWCP failed to
meet its burden of proof.11
The Board, therefore, finds that OWCP erred in relying on Dr. Bachwitt’s report to
terminate appellant’s wage-loss compensation and medical benefits.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective February 9, 2014.12

9

Richard F. Williams, 55 ECAB 343, 346 (2004).

10

M.B., Docket No. 16-0559 (issued October 27, 2016); see also J.D., Docket No. 15-0305 (issued
August 5, 2015).
11

M.B., id.

12

In light of the above findings and conclusion, Issue 2 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the November 9, 2015 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 15, 2017
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
H.E., Appellant
and
DEPARTMENT OF COMMERCE,
NATIONAL OCEANIC ATMOSPHERIC
ADMINISTRATION, Seattle, WA, Employer
__________________________________________
Appearances:
John Eiler Goodwin, Esq., for the appellant
No appearance, for the Director

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Docket No. 10-1124
Issued: April 8, 2011

Oral Argument March 1, 2011

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

On March 18, 2010 appellant, through his representative, filed a timely appeal from the
January 28, 2010 merit decision of the Office of Workers’ Compensation Programs, which
affirmed the pay rate used to calculate his compensation for wage loss.1
The Board has duly considered the matter and finds that the Office’s January 28, 2010
decision must be set aside. Section 8114(e) of the Federal Employees’ Compensation Act
provides that, in computing monetary compensation for disability, the value of subsistence and
quarters, and of any other form of remuneration in kind for services if its value can be estimated
in money, is included as part of the pay.2 To be clear, this does not direct an employing
establishment to pay for subsistence and quarters. It simply directs the Office to include in the

1

The Office accepted that appellant, an engineer aboard the McArthur II, developed an aggravation of chronic
obstructive pulmonary disease in the performance of duty.
2

5 U.S.C. § 8114(e).

calculation of compensation for disability the value of any subsistence and quarters the
employing establishment provided in kind for services, if that value can be estimated in money.3
In this case, the Office found that the value of subsistence and quarters “cannot be
included” in the calculation of appellant’s compensation because the file contained no
information from the employing establishment or appellant showing such value, but when it is
not disputed that appellant received subsistence and quarters while at sea,4 the Office has a
statutory obligation to include the value of that remuneration in kind if its value can be estimated
in money.5
The Board will set aside the Office’s January 28, 2010 decision and remand the case for
further development of the value of subsistence and quarters provided to appellant while aboard
the McArthur II for the period in question. The Office shall follow up on the employing
establishment’s offer to estimate, as best it can from meals cost data, the value of subsistence
provided to appellant while aboard ship if the cash allowance for onshore meals is not an
acceptable reflection of that value. If the employing establishment is unable to provide further
useful information, the Office must estimate a value for subsistence from other agencies and
sources as appears reasonable under the circumstances and for quarters if there is a reasonable
way to estimate its value in money. The Office shall then issue an appropriate final decision on
appellant’s pay rate for compensation purposes.

3

See Robert J. Lima, 55 ECAB 546 (2004) (finding that living quarters provided to the employee, rather than a
direct payment of money, was the type of “in kind” remuneration Congress intended to include in the pay rate for
compensation purposes); see also Helen S. Forman (Lawrence T. Forman), 39 ECAB 212, 216 (1987) (finding that
the payment of school fees in money, as opposed to free tuition at a school operated by the employer, did not
constitute remuneration “in kind”). Consistent with Lima and Forman, a cash allowance for food or lodging, such as
appellant received when unable to eat or sleep aboard ship, is not remuneration in kind under section 8114(e).
4

Appellant stated that he averaged 280 sea days per year.

5

When the ship was ashore and meals were not provided onboard, appellant received a subsistence allowance of
$6.00 for breakfast, $12.00 for lunch and $20.00 for dinner, according to the employing establishment’s David C.
North, but Mr. North did not believe $38.00 a day should be used for appellant’s time at sea. He offered to estimate
the value of subsistence at sea from meals cost data, if that was what the Office required. The Office never took him
up on his offer.
The employing establishment’s Cecilia Collins was at a loss to calculate the value of appellant’s quarters at sea.
She advised that the employing establishment owned the research vessel, so there was no cost to the employing
establishment if an employee bunked aboard or not. She allowed, however, that it might be possible to make a
rough estimate of the value of subsistence based on meals cost data.

2

IT IS HEREBY ORDERED THAT the January 28, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: April 8, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
H.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Hollywood, CA, Employer
__________________________________________

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Appearances:
Zepuor Parsanian, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1338
Issued: April 25, 2018

Case Submitted on the Record

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

JURISDICTION
On June 1, 2017 appellant, through his representative, filed a timely appeal from an
April 14, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established a recurrence of total disability from April 24,
2014 through September 18, 2015.
FACTUAL HISTORY
On July 6, 2005 appellant, then a 36-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that he sustained shoulder injuries as a result of his federal employment
duties. OWCP accepted the claim for bilateral rotator cuff syndrome and partial right rotator cuff
tear. Appellant received wage-loss compensation from June 5, 2005 to December 26, 2006.
Appellant underwent right shoulder arthroscopic surgery on April 6, 2011, performed by
Dr. Jean Ding, a Board-certified orthopedic surgeon. He received additional wage-loss
compensation from April 18 through September 27, 2011.
The record indicates that appellant filed a notice of recurrence (Form CA-2a) claiming
disability commencing July 13, 2012. By report dated July 9, 2012, Dr. Ding wrote that appellant
had bilateral shoulder pain after lifting, and was temporarily totally disabled. In an August 28,
2012 report, he reported that appellant had pain in the shoulders when lifting at work, and was
totally disabled until September 3, 2012.
By decision dated September 5, 2012, OWCP denied appellant’s recurrence claim, finding
that the medical evidence of record was insufficient to establish the claim.
Appellant requested reconsideration on November 16, 2012. He submitted a January 24,
2013 report from Dr. Ding, reporting that appellant had work restrictions that included 10 pounds
lifting and no work at the shoulder level or overhead.
By decision dated February 13, 2013, OWCP denied modification. It found the medical
evidence submitted did not establish an employment-related recurrence of disability.
The record indicates that appellant accepted a light-duty clerk position on April 8, 2013.
The position was full time, with no lifting, pushing, or pulling over five pounds, and limited work
at or above shoulder level.
An August 5, 2013 letter from an employing establishment manager related that appellant
had filed a claim alleging that he reinjured his shoulders on July 16, 2013. The manager asserted
that although appellant alleged that he had lifted a parcel weighing more than five pounds and
injured his shoulders, none of the parcels weighed more than five pounds.
On August 20, 2013 appellant accepted another light-duty job offer as a modified
distribution clerk, with the limitations of five pounds for lifting, pulling, or pushing, and limited
work at or above shoulder level. In a report dated March 24, 2014, Dr. Ding indicated that
appellant could work modified duty with no lifting, pushing, or pulling over five pounds, and
limited work at or above shoulder level. By report dated April 28, 2014, he provided the same
work restrictions.

2

In a letter dated September 14, 2015, appellant’s representative advised OWCP that
Dr. Ding was no longer treating appellant. According to the representative, appellant had been
notified by OWCP that his claim had been closed since March 2015 due to lack of activity.
OWCP determined that a referral for a second opinion examination was appropriate to
determine appellant’s current employment-related disability. In a report dated November 4, 2015,
Dr. Kevin Pelton, a Board-certified orthopedic surgeon selected as a second opinion examiner,
provided a history and results on examination. He diagnosed status post arthroscopic surgeries,
and acquired bilateral shoulder adhesive capsulitis. Dr. Pelton opined that the capsulitis condition
was a result of the shoulder surgeries, and appellant had continuing moderate-to-severe loss of
range of motion in the shoulders. He concluded that appellant could work with no lifting over 20
pounds and no overhead work.
By letter dated December 8, 2015, OWCP advised appellant that the claim had been
reopened for medical treatment.
According to a January 11, 2016 letter from appellant’s representative, he had been
“removed from his limited[-]duty job offer as of April 24, 2014 due to [the employing
establishment’s] false determination that claimant has made a fraudulent report of injury that has
been disputed by Dr. Pelton’s November 2015 report.” The representative argued that appellant
was entitled to compensation commencing April 24, 2014.
On March 8, 2016 appellant submitted a claim for compensation (Form CA-7) for
disability from April 24, 2014 to January 27, 2016. The record indicates that on February 2, 2016
appellant accepted a modified distribution clerk job offer.
With respect to appellant’s work stoppage, the record contains an April 24, 2014
memorandum from the employing establishment. The memorandum indicated that appellant had
been issued a notice of removal on November 15, 2013, for failure to follow instructions/
unacceptable conduct. The employing establishment wrote that appellant was allowed to work
until he was “arrested at work” by agents from the employing establishment Office of Inspector
General (OIG).3
In an investigation report dated May 20, 2015, the OIG reported that appellant had filed a
claim for an injury on July 16, 2013. The report discusses witness statements and surveillance of
appellant, and finds the evidence was inconsistent with appellant’s claim of injury. The evidence
included an October 30, 2014 document from the Los Angeles County Superior Court, indicating
an arrest warrant had been issued on April 8, 2014, and on April 25, 2014 appellant had pleaded
not guilty to violations of section 550(b)(1) of the California Penal Code.4 The court document
indicated the case was dismissed as the action was not brought to court in a timely manner.

3

Appellant filed a claim for an emotional condition causally related to the incidents on April 24, 2014, assigned
OWCP File No. xxxxxx093. That claim is not presently before the Board.
4

This section involves the making of false or misleading statements with respect to insurance claim benefits.

3

In a grievance settlement dated September 10, 2015, it was agreed that there was just cause
for issuing the notice of removal for failure to follow instructions/unacceptable conduct.5 The
notice of removal was reduced to a time-served suspension and the settlement indicated appellant
could return to work as soon as possible and that, if appellant provided updated medical
restrictions, he would return to work September 2, 2015.
Appellant submitted to the employing establishment a September 15, 2015 report from
Dr. Emerald Tay, a family practitioner. Dr. Tay indicated that appellant could work with a fivepound restriction for lifting, pushing, and pulling, with no repetitive work above the shoulder.
By decision dated June 14, 2016, OWCP denied the claim for wage-loss compensation
from April 24, 2014 to January 27, 2016. It found that the light-duty job had accommodated
appellant’s work restrictions and the medical evidence did not establish any total disability.
On June 28, 2016 appellant requested a hearing before an OWCP hearing representative.
A hearing was held on February 8, 2017. Appellant’s representative asserted that the employing
establishment removed appellant from his light-duty job and did not allow him to come back to
work.
By decision dated April 14, 2017, the hearing representative denied appellant’s claim for
wage-loss compensation for the period April 24, 2014 through September 18, 2015. He found
that, during that period, appellant had been removed from his job due to misconduct, and the
medical evidence of record did not establish a recurrence of total disability causally related to the
accepted work injury. The hearing representative indicated that appellant had submitted medical
restrictions on September 18, 2015, and was entitled to compensation from September 19, 2015
until he returned to work on January 27, 2016.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.6 Recurrence of disability also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.7 Generally,
a withdrawal of a light-duty assignment would constitute a recurrence of disability where the
evidence established continuing injury-related disability for regular duty.8 A recurrence of
disability does not apply when a light-duty assignment is withdrawn for reasons of misconduct,

5

The agreement was signed by a union representative and an employing establishment labor relations specialist.

6

20 C.F.R. § 10.5(x).

7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6(a)(4) (June 2013).

4

nonperformance of job duties, downsizing, or the existence of a loss of wage-earning capacity
determination.9
When an employee, who is disabled from the job he or she held when injured due to
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that light duty can be performed, the employee has the burden of proof to establish by the weight
of reliable, probative, and substantial evidence a recurrence of total disability. As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.10
ANALYSIS
The issue is whether appellant has established a recurrence of total disability for the period
April 24, 2014 through September 18, 2015. The hearing representative found that appellant had
not established a recurrence of total disability commencing April 24, 2014. In this regard, the
record indicates that the employing establishment had issued a notice of removal in
November 2013. Appellant was allowed to work until he was arrested at work by the employing
establishment’s OIG agents on April 24, 2014 for making false statements regarding a benefits
claim. While the criminal action was apparently dismissed on procedural grounds, the work
stoppage in this case was clearly based on misconduct by appellant. A grievance settlement
agreement dated September 10, 2015 acknowledged that there was just cause for issuing the notice
of removal for failure to follow instructions/unacceptable conduct.
Therefore the record indicates that the withdrawal of the light-duty job on April 24, 2014
was based on misconduct by appellant. As indicated above, a withdrawal of light duty due to the
claimant’s own misconduct does not establish a recurrence of disability.11 The withdrawal itself
is accordingly found not to constitute a recurrence of disability in this case.
To establish a recurrence of disability, the medical evidence of record must establish that
appellant was unable to perform the job duties due to an employment-related condition.12 The
medical evidence of record does not establish a recurrence of total disability commencing
April 24, 2014. Dr. Ding continued to report the same work restrictions, including a five-pound
lifting restriction, in his April 28, 2014 report. There was no indication of any change in the nature
and extent of appellant’s condition or other probative medical evidence establishing a recurrence
of total disability.
The referral to the second opinion physician, Dr. Pelton, was not for the purpose of
determining a recurrence of disability as of April 24, 2014. He did not examine appellant until
9
J.F., 58 ECAB 124 (2006); see also 20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; Federal (FECA) Procedure
Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013).
10

Terry R. Hedman, 38 ECAB 222 (1986).

11

See also C.P., Docket No. 17-0549 (issued July 13, 2017) (termination of employment for cause did not establish
recurrence of disability).
12

Id.

5

November 4, 2015, and he only provided current work restrictions. The Board notes that the
restrictions provided by Dr. Pelton were not outside the light-duty job requirements.
The Board accordingly finds that appellant has not established a recurrence of total
disability. The evidence of record indicates that the work stoppage on April 24, 2014 was due to
appellant’s own misconduct and no probative medical evidence was provided to establish a
recurrence of total disability from April 24, 2014 through September 18, 2015.13
On appeal appellant’s representative asserts that the issue is whether OWCP properly
followed its procedures for terminating or reducing compensation. The issue in the case is whether
appellant has established an employment-related disability commencing April 24, 2014. It is
appellant’s burden of proof to establish the claim, not OWCP’s burden of proof to terminate or
reduce compensation.14 The representative also argued that appellant did not sign the September 9,
2015 settlement, but the agreement was signed by a union representative and provided that
appellant could return to work.15 The evidence of record establishes that the light-duty job was
withdrawn for reasons of misconduct by appellant.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of total disability from
April 24, 2014 through September 18, 2015.

13

Supra note 11.

14

See N.R., Docket No. 16-0417 (issued August 11, 2016).

15

See Joseph Pietro, Docket No. 99-1386 (issued November 2, 2000).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated April 14, 2017 is affirmed.
Issued: April 25, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION FACILITY, Clarksburg, WV,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0378
Issued: August 17, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 9, 2014 appellant, through counsel, filed a timely appeal from an
October 9, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established an injury in the performance of duty on
May 27, 2013.
FACTUAL HISTORY
On June 10, 2013 appellant, then a 59-year-old distribution operations supervisor, filed a
traumatic injury claim (Form CA-1) alleging a back injury in the performance of duty on
May 27, 2013.3 By letter dated June 11, 2013, OWCP requested that he respond to questions
regarding the alleged incident and any medical treatment.
Appellant submitted a June 4, 2013 e-mail to the employing establishment. He reported
that he was walking toward the flat sorter machine when he suddenly experienced intense back
pain. Appellant indicated that he went to the hospital and underwent back surgery.
Appellant also submitted a form report (Form CA-20) dated June 5, 2013 from Dr. Bill
Underwood, a Board-certified neurosurgeon, diagnosing lumbar disc herniation and
radiculopathy. Dr. Underwood checked a box marked “yes” that the conditions were
employment related, stating that appellant was walking at work and developed back pain.
Appellant also submitted a duty status report (Form CA-17) from Dr. Underwood dated June 14,
2013, indicating that appellant was disabled from work.
In a report dated June 17, 2013, Dr. Dominick Woofter, Board-certified in family
medicine, indicated that appellant was seen for low back pain. He stated that the etiology was
spinal stenosis and disc herniation, for which appellant had surgery. Dr. Woofter opined that
appellant’s condition was longstanding, but that he had an acute flare up. He provided results on
examination and diagnosed lumbar radiculopathy, degenerative disc disease, and foraminal
stenosis at L5-S1.
By decision dated July 15, 2013, OWCP denied the claim for compensation. It found that
appellant had not properly responded to the request for factual information.
Appellant requested reconsideration by letter dated July 11, 2014. He submitted a
June 21, 2013 statement explaining that on May 27, 2013 he was walking toward the flat sorter
machine, and he turned his head to look both ways down aisles before crossing over into the area
and may have twisted to look behind him. Appellant indicated that he was not lifting, carrying,
or bending.
The medical evidence included a hospital report dated May 27, 2013 from Dr. Woofter,
which indicated that appellant had been seen for severe low back pain in the emergency room on
May 15, 2013. By report dated June 4, 2013, Dr. Underwood diagnosed L3-4 herniated disc and
performed a right sided L3-4 discectomy.

3

The claim form initially provided a date of injury of June 27, 2013, but the reverse of the form indicated that the
alleged date of injury was May 27, 2013.

2

In an undated report received on July 11, 2014, Dr. Woofter noted longstanding back
pain since the 1970’s, with a flare up of lumbar radiculopathy in May 2013. He stated that
appellant had a great acceleration of his back pain while at work that led to hospitalization and
surgery. By report dated September 9, 2013, Dr. Underwood found that appellant could work
light duty, but in a report dated February 19, 2014, Dr. Russell Biundo, a Board-certified
physiatrist, stated that appellant had a herniated disc and was unable to work.
By decision dated October 9, 2014, OWCP reviewed the case on its merits. It found that
appellant had not identified a definitive employment factor as to the incident. OWCP also stated
that the medical evidence was insufficient to establish the claim.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”4 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”5 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.6 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally, “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by medical evidence.7
OWCP’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.8 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.9
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. The weight of medical evidence is
4

5 U.S.C. § 8102(a).

5

Valerie C. Boward, 50 ECAB 126 (1998).

6

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

7

See John J. Carlone, 41 ECAB 354, 357 (1989).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013).

9

Id., at Chapter 2.805.3(d) (January 2013).

3

determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.10
ANALYSIS
In the present case, appellant alleged on his CA-1 form that on Monday, May 27, 2013 he
was walking toward a flat sorting machine when he sustained an onset of severe back pain.
There were no witnesses to the event. Appellant indicated that he did not lift, bend, or stoop.
The employing establishment in a June 10, 2013 letter to OWCP indicated that his statement
gave no indication that the injury was brought on by anything work related. Appellant was not
lifting, bending, or stooping, but simply walking. Later, on June 21, 2013 in a statement he
reported that while walking towards the flat sorter machine he was hit with an intense amount of
pain. Appellant added that he looked down both aisles and “may have twisted to look behind
me,” but all he could remember clearly was the pain. In his admission note, Dr. Woofter
reported that appellant was seen about two weeks prior suffering with acute low back pain. He
noted that appellant was off work since that time until Saturday, May 25, 2013 and that appellant
went into work Sunday night and Monday morning and had a sudden onset of pain. Dr. Woofter
made no mention of how the injury occurred.
Given the reported facts, the Board finds that appellant has failed to supply an adequate
description of the alleged incident that caused his back pain. The evidence does not present a
clear picture of the incident that is alleged to have caused an injury. Particularly concerning is
the evolving description of the injury, first, just walking, followed later by looking down the
aisles and the fact that appellant “may have twisted his body.” Lastly, Dr. Woofter is silent as to
how the injury occurred.
Such inconsistencies in the evidence are sufficient to cast doubt on the validity of
appellant’s injury claim. They cast doubt on whether he injured himself as alleged. For these
reasons, the Board finds that appellant has not met his burden of proof to establish that he
experienced a specific event, incident, or exposure occurring at the time, place, and in the
manner alleged. The Board will therefore affirm the October 19, 2014 decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an injury in the performance of duty on
May 27, 2013.

10

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 9, 2014 is affirmed.
Issued: August 17, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE NAVY, PUGET SOUND )
NAVAL SHIPYARD & INTERMEDIATE
)
MAINTENANCE FACILITY, Bremerton, WA,
)
Employer
)
____________________________________________ )
K.R., Appellant

Appearances:
Cathy C. Deno, for the appellant
Office of Solicitor, for the Director

Docket No. 14-732
Issued: September 2, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 12, 2014 appellant, through her representative, filed a timely application for
review from the October 10, 2013 and January 16, 2014 nonmerit decisions of the Office of
Workers’ Compensation Programs (OWCP) denying her requests for reconsideration. Because
more than 180 days elapsed from June 24, 2013, the date of the most recent merit decision, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s
claim.
ISSUE
The issue is whether OWCP properly denied appellant’s requests for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 15, 2011 appellant, then a 66-year-old lead library technician, filed an
occupational disease claim (Form CA-2) alleging that she developed post-traumatic or secondary
osteoarthritis of the right knee as a result of repeated traumas to her knees at work. She became
aware of her condition and of its relationship to her employment on July 27, 2010. Appellant did
not stop work.
By letter dated November 30, 2011, OWCP requested additional factual and medical
evidence from appellant. It noted that she had not submitted factual or medical evidence in
support of her claim and afforded her 30 days to submit additional evidence. OWCP requested
information regarding appellant’s duties from the employing establishment on the same date.
In a report dated July 20, 2011, Dr. Michael S. McManus, Board-certified in occupational
medicine, diagnosed appellant with work-related post-traumatic or secondary osteoarthritis of the
right knee. He reviewed the history of her right knee condition, which revealed multiple prior
injuries to her right knee with an original injury to her right knee in a fall at work on
September 8, 1992. At that time, appellant was diagnosed with right traumatic chondromalacia
patellae. She subsequently reinjured her right knee at work on December 14, 1999. Appellant
had stepped onto a stepstool when she felt a sudden “pop” and immediate onset of severe pain in
her right knee joint. She was diagnosed with probable internal derangement and continued
conservative treatment measures. Appellant underwent arthroscopic surgery with an orthopedic
specialist. She subsequently continued to experience intermittent problems with her right knee,
noting aching, stiffness and occasional catching. Appellant reinjured her knee again at work on
July 27, 2010. She entered the back seat of a taxi at her workplace and felt a “pop” with
immediate onset of severe pain in the anterolateral aspect of her right knee. Appellant was
diagnosed with aggravation of secondary or post-traumatic osteoarthritis of the right knee.
In a report dated October 5, 2011, Dr. McManus noted no improvement in appellant’s
right knee symptoms. He stated that her pain was aggravated by walking up and down inclines
and stairs. On October 26, 2011 Dr. McManus diagnosed appellant with aggravation of
secondary osteoarthritis in the right knee, status post arthroscopic partial meniscectomy. He
stated that she was last seen on October 5, 2011 and that her condition was improved.
Appellant submitted a statement on November 14, 2011. She noted that she had
previously filed traumatic injury claims for her right knee for injuries on September 8, 1992
under claim number xxxxxx087 and on December 14, 1999 under claim number xxxxxx119.
Appellant stated that, from 1991 through 2006, she worked at a technical data center, in a
position where she would spend 70 to 85 percent of her days on her feet. On January 14, 2000
she underwent right knee surgery. Appellant noted that her right knee had bothered her
intermittently ever since the surgery and that it had progressively worsened.
The employing establishment responded to OWCP’s inquiries on December 14, 2011,
providing a description of tasks performed by appellant and a copy of her position description
with physical requirements. A supervisor sent an e-mail to OWCP on December 9, 2011, noting
that appellant had not worked in a position that required continuous or frequent kneeling or work

2

on the knees, and that she did not recall appellant reporting any knee injuries in the summer
of 2010.
By decision dated February 22, 2012, OWCP denied appellant’s claim. It found that she
had not provided an explanation from a physician as to the causal relationship between accepted
work factors and her diagnosed condition.
Appellant submitted an incomplete duty status report. She also submitted a summary of
her visit with Dr. McManus on July 20, 2011, which stated diagnoses of strain of the knee, tear
of the medial meniscus of the knee and osteoarthritis of the right knee.
In a report dated May 1, 2012, Dr. McManus diagnosed appellant with a right knee
sprain, right knee osteoarthritis and a possible recurrent tear of the medial meniscus of the right
knee. He related each diagnosis to a date of injury of July 27, 2010 and provided an OWCP
claim number of xxxxxx119. Dr. McManus noted that appellant’s pain was aggravated by
walking up inclines and stairs.
On June 4, 2012 appellant requested reconsideration of OWCP’s February 22, 2012
decision.
By letter dated February 27, 2013, the employing establishment stated that appellant had
timely requested reconsideration, although OWCP did not have her request on file. It noted that
OWCP had not sent a copy of the February 22, 2012 decision to her representative and requested
that OWCP reissue this decision in order to protect appellant’s appeal rights.
On March 11, 2013 OWCP vacated its February 22, 2012 decision and issued a de novo
decision on appellant’s claim on the basis that her representative had not been provided with a
copy of the original decision. It considered all evidence that had been submitted since
November 20, 2011. OWCP denied appellant’s claim on the basis that she had not provided an
explanation from a physician as to the causal relationship between the accepted work factors and
her diagnosed condition, noting that Dr. McManus’ most recent report of May 1, 2012 did not
discuss work-related factors.
On March 14, 2013 appellant requested reconsideration of OWCP’s March 11, 2013
decision. With her request, she resubmitted Dr. McManus’ reports of July 20, October 5 and 26,
2011 and May 1, 2012.
In a duty status report dated February 14, 2013, Dr. McManus noted that appellant had
injured her right knee on February 4, 2013 when she stepped on a rock, resulting in a varus stress
injury. He diagnosed her with right knee sprain and right osteoarthritis of the lower leg.
By decision dated June 24, 2013, OWCP reviewed the merits of appellant’s case and
denied modification of its March 11, 2013 decision. It stated that none of the medical reports
submitted contained a medical opinion explaining how her diagnosed conditions were medically
related to her work activities.
On September 6, 2013 appellant requested reconsideration of OWCP’s June 24, 2013
decision.
3

In a letter dated September 4, 2013, Dr. McManus noted that appellant’s present right
knee condition was the direct result of a prior work injury on December 14, 1999. He stated that,
on that date, she stepped onto a stool at work, felt a sudden pop and an immediate onset of severe
deep right knee pain. Appellant was subsequently diagnosed with internal derangement and
underwent arthroscopic surgery or bilateral partial meniscectomies. Dr. McManus noted that she
subsequently reinjured or aggravated her right knee condition at work on July 27, 2010.
By decision dated October 10, 2013, OWCP denied to consider the merits of appellant’s
request for reconsideration. It found that Dr. McManus’ letter of September 4, 2013 was
cumulative and substantially similar to evidence previously considered.
Appellant again requested reconsideration of OWCP’s June 24, 2013 decision on
October 23, 2013.2
In a letter dated October 21, 2013, Dr. McManus described appellant’s history of injury
and stated his opinion that her condition resulted from work-related factors. He wrote, in part,
“As per my letter of September 4, 2013, [appellant] required prior right knee
arthroscopic partial lateral and medial meniscectomies due to her work injury of
December 14, 1999. This injury and subsequent surgery resulted in a loss of the
cushion in her knee joint, predisposing her to secondary osteoarthritis due to load
and shear forces. With loss of the dis[c] space height, there was an associated
laxity or redundancy of the ligaments, with increased shear stress with shear force
and acceleration of the degenerative processes. This resulted in progressive posttraumatic osteoarthritis of [appellant’s] right knee, which she aggravated due to
the work injury of July 27, 2010. Her present primary problem is secondary or
post-traumatic osteoarthritis of her right knee due to her December 14, 1999
injury, aggravated by her work injury of July 27, 2010 and also due to her prior
need for arthroscopic partial medial meniscectomies. For this reason, I am
specifically request[ing] reconsideration of your Notice of Decision dated
June 24, 2013.”
By decision dated January 16, 2014, OWCP denied to consider the merits of the request
for reconsideration. It noted that the October 21, 2013 letter did not describe the traumatic event
of July 27, 2010, and that it contained the same opinion on causation as in previous reports from
Dr. McManus, such that it constituted cumulative and repetitious evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new

2

The appeal request form lists a decision date of October 10, 2013, but as this decision was not made on the
merits, OWCP treated her request as an appeal from the June 24, 2013 decision.

4

evidence not previously considered by OWCP.3 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.4
The Board held that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.5 The Board also has held that the submission of evidence which
does not address the particular issue involved does not constitute a basis for reopening a case.6
While the reopening of a case may be predicated solely on a legal premise not previously
considered, such reopening is not required where the legal contention does not have a reasonable
color of validity.7
ANALYSIS
OWCP issued a June 24, 2013 decision denying appellant’s claim for compensation. On
September 6 and October 23, 2013 appellant requested reconsideration of this decision. OWCP
declined her requests for reconsideration in nonmerit decisions on October 10, 2013 and
January 16, 2014.
The Board does not have jurisdiction over the June 24, 2013 merit decision. The issue on
appeal is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring
OWCP to reopen the case for review of the merits of her claim. In her September 6 and October
23, 2013 requests for reconsideration, appellant did not establish that OWCP erroneously applied
or interpreted a specific point of law. She did not identify a specific point of law or show that it
was erroneously interpreted or applied. Thus, appellant is not entitled to a review of the merits
of her claim based on the first and second above-noted requirements under section 10.606(b)(3).
The Board finds that appellant did not submit any new and relevant evidence in this case.
OWCP properly declined to reopen her case for review of the merits.
With her reconsideration request of September 6, 2013, appellant submitted a letter dated
September 4, 2013 from Dr. McManus. He reiterated his opinion that her right knee condition
was the direct result of a prior work injury on December 14, 1999. Dr. McManus stated that on,
that date, she stepped onto a stool at work, felt a sudden pop and an immediate onset of severe
deep right knee pain. Appellant was subsequently diagnosed with internal derangement and
underwent arthroscopic surgery or bilateral partial meniscectomies. Dr. McManus noted that she
subsequently reinjured or aggravated her right knee condition at work on July 27, 2010. He
3

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

4

Id. at § 10.608(b); K.H., 59 ECAB 495, 499 (2008).

5

See Daniel Deparini, 44 ECAB 657, 659 (1993).

6

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).
7

Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000).

5

substantially repeated his opinion as noted in his May 1, 2012 report. Dr. McManus’ opinion
was cumulative and substantially similar to prior evidence from him considered by OWCP.
Thus, Dr. McManus’ September 4, 2013 letter did not constitute relevant and pertinent new
evidence not previously considered by OWCP and its submission did not require OWCP to
review appellant’s case on the merits.
With her reconsideration request of October 23, 2013, appellant submitted a letter dated
October 21, 2013, in which Dr. McManus stated that her injury and subsequent surgery resulted
in a loss of the cushion in her knee joint, predisposing her to secondary osteoarthritis. There was
an associated laxity or redundancy of the ligaments, with increased shear stress with shear force
and acceleration of the degenerative processes which resulted in post-traumatic osteoarthritis of
her right knee, which she aggravated on July 27, 2010. OWCP declined appellant’s request for
reconsideration on the basis that this letter was duplicative of the September 4, 2013 letter that
appellant’s condition was aggravated by an event on July 27, 2010. It found this letter
cumulative and repetitious, and thus insufficient to warrant review of the June 24, 2013 decision.
The underlying issue upon reconsideration was whether appellant submitted rationalized medical
evidence of a causal relationship between her diagnosed knee condition and work-related factors.
Dr. McManus reiterated his opinion on causal relationship in a substantially similar fashion as in
prior reports. The Board finds that Dr. McManus’ October 21, 2013 letter did not constitute
relevant and pertinent evidence not previously considered by OWCP, such that it required
OWCP to reopen the case for merit review.8
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3) in her reconsideration requests of September 6 and October 23, 2013.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of law,
advance a relevant legal argument not previously considered by OWCP, or submit relevant and
pertinent new evidence not previously considered. Thus, pursuant to 20 C.F.R. § 10.608, OWCP
properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

8

See M.G., Docket No. 10-230 (issued September 7, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the January 16, 2014 and October 10, 2013
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 2, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lebanon, MO, Employer
__________________________________________

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

Docket No. 11-722
Issued: November 1, 2011

Case Submitted on the Record

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

JURISDICTION
On January 24, 20111 appellant filed a timely appeal from a July 30, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) that denied her request for
reconsideration of the merits. Pursuant to the Federal Employee’s Compensation Act (FECA)2
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit decision.
Because more than 180 days have elapsed between the issuance of the last merit decision on

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction begins on the day
following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit decision was issued on
July 30, 2010, the 180-day computation begins July 31, 2010. 180 days from July 31, 2010 was January 26, 2011.
Since using January 28, 2011, the date the appeal was received by the Clerk of the Board, would result in the loss of
appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark
is January 24, 2011, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et. seq.

March 11, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
the case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of the claim under 5 U.S.C. § 8128(a).
On appeal, appellant contends that clarification should have been sought from the second
opinion examiner.
FACTUAL HISTORY
This case has previously been before the Board. On April 14, 1999 appellant, then a 50year-old rural letter carrier, filed an occupational disease claim alleging that she sustained carpal
tunnel syndrome as a result of repetitive casing of mail. On June 28, 1999 OWCP accepted
appellant’s claim for bilateral carpal tunnel syndrome. On December 5, 2000 OWCP issued
schedule awards for a one percent impairment of the left upper extremity and a three percent
impairment of the right upper extremity. This decision was affirmed by a hearing representative
on September 4, 2001. By decision dated January 29, 2002, OWCP reviewed appellant’s case on
the merits but denied modification of the schedule award. By decision dated December 27,
2002, the Board affirmed the schedule awards.4 The facts of the case as set forth in the Board’s
prior decision are hereby incorporated by reference.
On April 30, 2009 appellant filed a claim for a schedule award for additional impairment.
In a May 2, 2009 opinion, Dr. John W. Ellis, a Board-certified family practitioner,
concluded that appellant had a 19 percent impairment of her right upper extremity and a 20
percent impairment of her left lower extremity. OWCP referred appellant’s record to its medical
adviser. By letter dated August 15, 2009, OWCP’s medical adviser recommended that appellant
be referred for a second opinion examination, noting that it was unclear what edition of the
A.M.A., Guides Dr. Ellis used in evaluating her impairment. It did not appear that he applied the
sixth edition of the A.M.A., Guides.
On August 26, 2009 OWCP referred appellant to Dr. Jeffrey Woodward, a Boardcertified physiatrist, to determine the extent of permanent impairment. In a report dated
September 10, 2009, Dr. Woodward listed his findings on physical examination and initially
determined that appellant had a two percent impairment of her right upper extremity and a two
percent impairment of her left upper extremity pursuant to the A.M.A., Guides. In an addendum
dated September 25, 2009, Dr. Woodward stated that inadvertent errors in the impairment rating
calculation were found and he advised and that appellant had a left upper extremity impairment
of six percent.
3

An appeal of an OWCP decision issued on or after November 19, 2008 must be filed within 180 days of the date
of the decision. 20 C.F.R. § 501(e).
4

Docket No. 92-1522 (issued December 27, 2002).

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On October 29, 2009 an OWCP medical adviser reviewed the reports, and noted that
Dr. Woodward provided the documentation necessary to use Table 15-21, page 438, for the
median nerve below midforearm -- entire nerve. Dr. Woodward considered the relevant factors
and determined that appellant had a two percent impairment of the right upper extremity and a
two percent impairment of the left upper extremity. The medical adviser concluded that these
impairment ratings were acceptable based on the sixth edition of the A.M.A., Guides. He noted
that prior awards must be subtracted, and therefore appellant was not entitled to an additional
schedule award to his right upper extremity, but that he was entitled to a one percent additional
award to his left upper extremity.
On November 2, 2009 OWCP issued an award for an additional one percent of the left
upper extremity impairment and found no additional impairment of the right upper extremity.
On February 10, 2010 appellant requested reconsideration. She contended that the
OWCP medical adviser prepared his report based upon a review of Dr. Woodward’s
September 28, 2009 report but that Dr. Woodward appended this report and stated that the left
upper extremity rating should be increased to six percent.
On March 3, 2010 an OWCP medical adviser noted that Dr. Woodward did not properly
explain his rationale for the higher impairment rating.
By decision dated March 11, 2010, OWCP determined that the evidence was insufficient
to warrant modification of the prior decision.
On May 7, 2010 appellant requested reconsideration, contending that OWCP neglected to
follow proper procedures with regard to obtaining clarification from the second opinion
physician.
By decision dated July 30, 2010, OWCP denied appellant’s request without conducting a
merit review of the case.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.6 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.7 When a claimant fails to

5

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.607(a).

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meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
The Board finds that OWCP appropriately denied appellant’s request for reconsideration.
Appellant’s argues that OWCP should have obtained clarification from the second opinion
physician. The Board notes that OWCP procedures provide that, after obtaining all necessary
medical evidence, the file should be routed to an OWCP medical adviser for an opinion
concerning the nature and percentage of impairment in accordance with the A.M.A., Guides.9
OWCP’s medical adviser is responsible for reviewing the file, particularly the medical report on
which the award is to be based, and then calculating the award.10 OWCP’s medical adviser
reviewed the medical opinions of record and determined appellant’s impairment rating based, in
part, on the opinion of Dr. Woodward. Dr. Woodward did issue an addendum, however,
OWCP’s medical adviser addressed the addendum and determined that it was not sufficient to
merit a greater schedule award. Therefore, as appellant has failed to establish that OWCP
erroneously applied or interpreted a specific point of law, advance a relevant legal argument not
previously considered by OWCP, or submit any pertinent new and relevant evidence, the Board
finds that OWCP properly denied appellant’s request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
without merit review of the claim under 5 U.S.C. § 8128(a).

8

Id. at § 10.608(b).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (March 1995).
10

See Federal (FECA) Procedure Manual, Part 3 -- Claims, Determining Schedule Awards, Chapter 3.700.3.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 30, 2011 is affirmed.
Issued: November 1, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, HOWELL POST
OFFICE, Howell, MI, Employer
__________________________________________
Appearances:
Shelley K. Coe, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0319
Issued: August 9, 2021

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 January 2, 2021 appellant, through counsel, filed a timely appeal from a July 6, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 21-0319.
On December 22, 2010 appellant, then a 51-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed tendinitis in her right arm, specifically her
shoulder and elbow, as a result of factors of her federal employment. She noted that she first
became aware of her condition and its relationship to her federal employment on
December 20, 2010. Appellant stopped work on December 21, 2010. On March 23, 2011 OWCP
initially accepted the claim for lateral epicondylitis of the right elbow and joint pain in the right
shoulder region. On June 29, 2011 appellant underwent OWCP-authorized right shoulder surgery,
which included arthroscopic subacromial decompression, distal clavicle excision, and rotator cuff
repair. OWCP, on September 19, 2011, expanded the acceptance of appellant’s claim to include

1

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

right rotator cuff tear/sprain. It paid her wage-loss compensation on the supplemental rolls as of
May 7, 2011.
Appellant returned to full-duty work on November 11, 2011, but continued to receive
wage-loss compensation through December 17, 2011.2
On November 8, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
OWCP, in a November 12, 2019 development letter, requested that appellant submit an
impairment evaluation from her attending physician addressing whether she had reached
maximum medical improvement (MMI) and if so, the extent of any permanent impairment, in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).3 It afforded her 30 days to submit the necessary
evidence.
In an October 21, 2019 medical report, Dr. Peter E. Metropoulos, Board-certified in
occupational medicine, noted appellant’s history of injury and medical treatment. He provided
results on examination of the right shoulder, including range of motion (ROM) measurements.
Dr. Metropoulos also noted the accepted conditions of right elbow lateral epicondylitis, right
shoulder joint pain and rotator cuff sprain. He first utilized the diagnosis-based impairment (DBI)
rating method of the sixth edition of the A.M.A., Guides to determine the degree of appellant’s
permanent impairment. Dr. Metropoulos identified the class of diagnosis (CDX) as a class 1 grade
C distal clavicle resection according to Table 15-5 on page 403, which yielded a range of upper
extremity impairment from 8 percent to 12 percent. He referenced Table 15-7 on page 406, Table
15-8 on page 408, Table 15-9 on pages 410 and 411, and Table 15-34 on page 475.
Dr. Metropoulos assigned a grade modifier for functional history (GMFH) of 2, a grade modifier
for physical examination (GMPE) of 1, and found that a grade modifier for clinical studies
(GMCS) was not applicable because clinical studies were used to determine the impairment class.
He applied the net adjustment formula and found a net adjustment of 1, which moved the default
grade of C one space to the right, resulting in a grade D, 11 percent permanent impairment of the
right shoulder.
Dr. Metropoulos also used the ROM rating methodology to determine impairment to the
right shoulder and noted that, under Table 15-34 on page 475, 120 degrees of flexion and 115
degrees of abduction each yielded three percent impairment, 46 degrees of extension, 44 degrees
of adduction, and 84 degrees of external rotation each yielded zero percent impairment, and 70
degrees of internal rotation yielded two percent impairment, resulting in a total of eight percent
permanent impairment. Utilizing Table 15-35 and Table 15-36 on page 477, and Table 15-7 on
page 406, he assigned grade modifiers for ROM, functional history (GMFH), and physical
2

OWCP, by decision dated February 29, 2012, finalized a preliminary determination that appellant received an
overpayment of compensation in the amount of $3,907.82 for the period November 11 through December 17, 2011
because she returned to full-time, full-duty work on November 11, 2011, but continued to receive wage-loss
compensation for total disability compensation until December 17, 2011. It also found that she was at fault in creation
of the overpayment and, thereby, precluded from waiver of recovery of the overpayment. OWCP required recovery
of the overpayment in full within 30 days.
3

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

2

examination (GMPE), respectively. With a functional adjustment of five percent for a
QuickDASH score of 77, Dr. Metropoulos found that the eight percent ROM impairment resulted
in a total right upper extremity permanent impairment of 8.4 percent rounded down to eight
percent. He explained that as the DBI methodology resulted in a higher rating than the ROM
methodology, the DBI calculation of 11 percent upper extremity permanent impairment should be
used. Dr. Metropoulos determined that appellant reached MMI in 2012, based on her treatment
timeline.
On December 17, 2019 OWCP referred the record to Dr. James W. Butler, a Boardcertified orthopedic surgeon serving as a district medical adviser (DMA), for a review and rating
of appellant’s permanent impairment of the right upper extremity in accordance with the sixth
edition of the A.M.A., Guides.
In a March 18, 2020 report, Dr. Butler reviewed a statement of accepted facts (SOAF) and
the medical record, including the October 21, 2019 report of Dr. Metropoulos. He noted that the
ROM methodology was an acceptable alternative to rate appellant’s accepted right upper extremity
conditions, but related that he was unable to provide an accurate right upper extremity impairment
rating. The DMA explained that Dr. Metropoulos failed to rate appellant’s permanent impairment
due to her accepted condition of right elbow lateral epicondylitis. He further explained that
Dr. Metropoulos failed to provide three documented ROM measurements each for the right
shoulder and right elbow. Additionally, the DMA disagreed with Dr. Metropoulos’ 11 percent
DBI impairment rating for the right shoulder. He reasoned that Dr. Metropoulos improperly
excluded a grade modifier for GMCS as his impairment rating was based on a distal clavicle
excision, which resulted in a grade modifier for GMCS of 2 for the accepted condition of rotator
cuff tear. The DMA related that the above-noted missing information would be helpful in rating
appellant’s right upper extremity permanent impairment. He advised that she reached MMI on
October 21, 2019, the date of Dr. Metropoulos’ impairment evaluation.
By letter dated March 30, 2020, OWCP requested that Dr. Metropoulos review
Dr. Butler’s March 18, 2020 findings and respond to the concerns presented by the DMA within
30 days. No response was received.
In a July 6, 2020 decision, OWCP denied appellant’s claim for a schedule award. It found
that the opinion of the DMA established that appellant had no permanent impairment of a
scheduled member or function of the body, warranting a schedule award.
The Board, having duly considered the matter, finds that this case is not in posture for
decision. Pursuant to FECA Bulletin No. 17-06, if OWCP advises the claimant of the evidence
necessary to evaluate permanent impairment using the ROM methodology, but does not receive
such evidence, it should refer the claimant for a second opinion evaluation to obtain the evidence
necessary to complete the rating.4 OWCP failed to follow the procedures outlined in FECA
Bulletin No. 17-06 by referring appellant for a second opinion after its DMA advised that he was
unable to rate her right upper extremity impairment using the ROM methodology without ROM
measurements for the right shoulder and right elbow.

4

FECA Bulletin No. 17-06 (issued May 8, 2017).

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The Board notes that proceedings under FECA are not adversarial in nature and OWCP is
not a disinterested arbiter. While the claimant has the burden of proof to establish entitlement to
compensation, OWCP shares responsibility in the development of the evidence to see that justice
is done.5 Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case. While it began to
develop the evidence, it failed to complete its obligation to secure a proper evaluation regarding
permanent impairment of the right upper extremity based upon the ROM methodology.6
Therefore, OWCP failed to resolve the issue in the case.7
On remand, OWCP shall refer appellant for a second opinion examination to obtain the
evidence necessary to calculate her upper extremity impairments using both ROM and DBI
methodologies.8 Following this and such other further development as deemed necessary, it shall
issue a de novo decision.
IT IS HEREBY ORDERED THAT the July 6, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: August 9, 2021
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

5

See T.C., Docket No. 19-0771 (issued March 17, 2021); E.W., Docket No. 17-0707 (issued September 18, 2017).

6

T.C., id.; M.A., Docket No. 19-1732 (issued September 9, 2020).

7

T.C., id.; X.Y., Docket No. 19-1290 (issued January 24, 2020); K.G., Docket No. 17-0821 (issued May 9, 2018).

8

See T.C., id.; R.C., Docket No. 19-1385 (issued September 8, 2020).

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