United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOOD SAFETY & INSPECTION SERVICE,
Tar Heel, NC, Employer
__________________________________________

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

Docket No. 13-476
Issued: May 1, 2013

Case Submitted on the Record

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

JURISDICTION
On December 26, 2012 appellant, through counsel, timely appealed the December 4,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the schedule award claim.
ISSUE
The issue is whether appellant has a ratable impairment of a scheduled member.
FACTUAL HISTORY
Appellant, a 52-year-old food inspector, has an accepted occupational disease claim for
bilateral hand contact dermatitis which arose on or about October 1, 2007. She has also been

1

5 U.S.C. §§ 8101-8193.

diagnosed with psoriasis on both palms, a condition OWCP has not accepted as employment
related.2
Dr. Vikas J. Patel, a Board-certified dermatologist and OWCP-referral physician,
examined appellant on July 7, 2009. At the time, there was minimal scaling on appellant’s
hands. Dr. Patel indicated that the condition could possibly be psoriasis or eczema. He noted
that the condition appeared to be mostly resolved other than the mild scaling. Because
appellant’s condition had essentially resolved, Dr. Patel was not inclined to recommend further
testing to determine the exact etiology. He further explained that both psoriasis and hand
dermatitis can be cyclical, and psoriasis, in particular, improves throughout the summer months.
Dr. Patel surmised that appellant most likely had psoriasis, a chronic condition which ebbs and
flows. While appellant’s psoriasis was not caused by her occupation, Dr. Patel recognized the
possibility of an employment-related aggravation of this condition.
On June 10, 2010 appellant filed a claim for a schedule award (Form CA-7).
On July 16, 2010 OWCP advised appellant to obtain an impairment rating from her
physician in accordance with the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (2008). When appellant did not respond, OWCP
referred the case record to its district medical adviser (DMA) to determine if appellant had
permanent impairment of the hands due to her accepted condition of contact dermatitis.
In a September 30, 2010 report, the DMA relied on Dr. Patel’s July 7, 2009 examination
findings and concluded that appellant had no impairment of the hands.
In December 2010 appellant’s counsel advised OWCP that his client could not find a
local physician to prepare an impairment rating in accordance with the A.M.A., Guides (6th ed.
2008).
In January 2011 OWCP forwarded appellant a copy of the DMA’s September 30, 2010
findings. It also reiterated the need for her to provide an impairment rating in accordance with
the A.M.A., Guides (6th ed. 2008). OWCP encouraged appellant to submit the DMA’s report to
her treating physician and have him/her prepare the necessary impairment rating within 30 days.
In a letter dated February 18, 2011, counsel advised OWCP that appellant’s physician
was unfamiliar with the A.M.A., Guides (6th ed. 2008), and thus, was unable to prepare the
requested impairment rating. He specifically requested OWCP’s assistance in scheduling an
examination.3

2

In a March 30, 2009 report, appellant’s dermatologist, Dr. Michael J. Donahue, explained that psoriasis affects
2.2 percent of the population worldwide and probably was genetically driven. He unequivocally stated that this
condition was not caused by appellant’s employment exposure. Dr. Donahue also noted that psoriasis was
incurable. While acknowledging that exposure to any kind of irritant could potentially aggravate appellant’s
psoriasis, Dr. Donahue understood that she wore protective gloves at work.
3

Counsel’s assistant made a similar request via telephone on February 18, 2011.

2

By decision dated March 3, 2011, OWCP denied appellant’s claim for a schedule award
based upon the DMA’s September 30, 2010 report.
Appellant’s counsel requested a hearing, which OWCP held on November 16, 2011.
OWCP received additional medical records regarding appellant’s ongoing treatment for bilateral
hand dermatitis from Dr. Andrew A. Hendricks, a Board-certified dermatologist, on
November 4, 2011.
In a December 30, 2011 decision, the hearing representative affirmed OWCP’s March 3,
2011 decision. The hearing representative noted that nothing had been submitted that
contradicted the DMA’s September 30, 2010 findings.
Appellant’s counsel requested reconsideration on June 4, 2012. OWCP received a
February 22, 2012 electrodiagnostic study and a diagnosis of carpal tunnel syndrome from
Dr. Indra S. Gatiwala, a Board-certified neurologist.
OWCP denied modification by decision dated December 4, 2012. The senior claims
examiner noted that carpal tunnel syndrome was not an accepted condition. She further noted
that Dr. Hendricks’ November 4, 2011 diagnosis of hand dermatitis was of no evidentiary value.
LEGAL PRECEDENT
Section 8107 of FECA 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 FECA,
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 May 1, 2009, schedule awards are determined in accordance with the sixth edition of
the A.M.A., Guides (2008).6
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or in the implementing regulations.7 The list of scheduled members includes
the eye, arm, hand, fingers, leg, foot and toes.8 Additionally, FECA specifically provides for
compensation for loss of hearing and loss of vision.9 By authority granted under FECA, the
4

5 U.S.C. § 8107(c)(1).

5

20 C.F.R. § 10.404 (2012).

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
7

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

8

5 U.S.C. § 8107(c).

9

Id.

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Secretary of Labor expanded the list of scheduled members to include the breast, kidney, larynx,
lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina and skin.10 A schedule award
for the skin (205 weeks) may be paid for injuries occurring on or after September 11, 2001.11
Impairment ratings for schedule awards include those conditions accepted by OWCP as
employment related, and any preexisting permanent impairment of the same member or
function.12 If the employment-related injury has affected any residual usefulness in whole or in
part, a schedule award may be appropriate.13 There are no provisions for apportionment under
FECA.14
ANALYSIS
Although OWCP relied on Dr. Patel’s July 7, 2009 examination findings as a basis for
denying appellant’s schedule award claim, his report was not initially solicited for purposes of
determining entitlement to a schedule award. In April 2009, it decided to refer appellant for a
second opinion examination because of a pending claim for recurrence of disability (Form CA2a). OWCP sought additional medical information on whether appellant’s accepted condition
had resolved. It also inquired as to whether appellant’s diagnosed psoriasis was causally related
to her federal employment.15 OWCP did not specifically request an impairment rating from
Dr. Patel at the time.
When appellant filed for a schedule award in June 2010, OWCP referred Dr. Patel’s
July 7, 2009 report to its DMA for an opinion on whether appellant had permanent impairment
of the right and left hands. In his September 30, 2010 report, the DMA concluded that appellant
had zero percent impairment of both the left and right hand. However, he did not specifically
reference the A.M.A., Guides (6th ed. 2008). Although the DMA referenced certain findings
from Dr. Patel’s July 7, 2009 examination, he did not otherwise explain how these findings
supported his ultimate conclusion that appellant had zero percent impairment of both hands.
Thus, it is unclear how the DMA rated appellant’s bilateral hand impairment under the A.M.A.,
Guides (6th ed. 2008).
Since OWCP’s medical development in 2010 regarding bilateral hand impairment, the
Secretary has expanded the list of scheduled members to include the skin, which provides for a
maximum of 205 weeks’ compensation.16 Chapter 8 of the A.M.A., Guides (6th ed. 2008)
provides criteria for rating permanent impairment due to skin disorders, including contact
10

5 U.S.C. § 8107(c)(22); 20 C.F.R. § 10.404(b).

11

20 C.F.R. § 10.404(b) (2011); Federal (FECA) Procedure Manual, Part 2, supra note 7 at 2.808.5(c)(A).

12

Federal (FECA) Procedure Manual, id. at Chapter 2.808.5d.

13

Id.

14

Id.

15

With respect to this latter issue, Dr. Patel’s July 7, 2009 assessment is far from unequivocal.

16

20 C.F.R. § 10.404(b).

4

dermatitis.17 The procedure manual also provides specific guidance on rating impairments of the
skin.18
In March 2011 when OWCP first denied appellant’s claim for a schedule award, the skin
was not yet a scheduled member. However, since August 2011 when the Secretary added skin to
the list of scheduled members, OWCP has twice reviewed the merits of appellant’s schedule
award claim. In both instances, it failed to consider whether the evidence of record supported a
schedule award for impairment due to skin disorders in accordance with Chapter 8, The Skin,
A.M.A., Guides 159-82 (6th ed. 2008). The latest merit decision dated December 4, 2012
characterized Dr. Hendrick’s November 4, 2011 diagnosis of ongoing “hand dermatitis” as
lacking evidentiary value.
As previously noted, the DMA’s September 30, 2010 report did not fully explain the
basis for appellant’s zero percent hand rating under the A.M.A., Guides (6th ed. 2008).
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested arbiter.
The claimant has the burden to establish entitlement to compensation; however, OWCP shares
responsibility in the development of the evidence to see that justice is done.19 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.20 As the DMA’s September 30, 2010 analysis is
incomplete, the case will be remanded to OWCP for further development. After OWCP has
developed the case record to the extent it deems necessary, a de novo decision shall be issued.
CONCLUSION
The case is not in posture for decision regarding the issue of whether appellant has a
ratable impairment of the skin in accordance with Chapter 8 of the A.M.A., Guides (6th ed.
2008).

17

See A.M.A., Guides 163 (6th ed. 2008) Section 8.4.

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.5c(4).
19

William J. Cantrell, 34 ECAB 1223 (1983).

20

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

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ORDER
IT IS HEREBY ORDERED THAT the December 4, 2012 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision.
Issued: May 1, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, OFFICE OF HOUSING
MANAGEMENT, Washington, DC, Employer
__________________________________________

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

Docket No. 08-496
Issued: June 10, 2008

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 December 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 14, 2007, denying her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
November 2, 2006.
FACTUAL HISTORY
On November 2, 2006 appellant filed a traumatic injury claim (Form CA-1) alleging that
on that date she tripped and twisted her ankle on a slippery hallway floor. Appellant, a contract
oversight specialist, described the injury as a twisted ankle and left hip pain. The reverse of the
claim form reported appellant was off work from November 3 to 13, 2006.

The medical evidence submitted consisted of a November 3, 2006 note from a
physician’s assistant that appellant received treatment and should be excused from work
November 6 to 10, 2006. By decision dated January 5, 2007, the Office denied the claim for
compensation. The Office found an incident was established, but the medical evidence was
insufficient to establish the claim.
Appellant requested a review of the written record. She submitted a form report dated
November 3, 2006 from the physician’s assistant with a history of injury and a diagnosis of ankle
pain. In an x-ray report dated November 3, 2006, Dr. Paul Weiner, a radiologist, reported a
normal study. Appellant also submitted an undated note stating the patient was seen by a
physician’s assistant on November 3, 2006 and “I fully agree [with] her findings/diagnosis.” The
signature is illegible.1
By decision dated May 14, 2007, the Office hearing representative affirmed the
January 5, 2007 decision. The hearing representative found the medical evidence was
insufficient to establish the claim.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that he or she sustained an injury while in the performance of duty.3 In
order to determine whether an employee actually sustained an injury in the performance of duty,
the Office 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.4
The Office’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.5 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.6

1

The letterhead contains physicians Angela Marshall and Betty Siu. Appellant wrote on the note that this was
from her doctor and the doctor who signed the original documents along with the physician’s assistant.
2

5 U.S.C. §§ 8101-8193.

3

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

4

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

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

6

Id.

2

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 a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be 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 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.7
ANALYSIS
The Office accepted that an incident occurred as alleged on November 2, 2006.
Appellant stated that she was walking on a slippery floor, twisted her left ankle and felt left hip
pain. The issue is whether the medical evidence is sufficient to establish a diagnosed injury
causally related to the employment incident. This is not a case of a minor injury confirmed by
visual inspection, or a clear-cut traumatic injury requiring only a physician’s affirmative
statement. The evidence must include a rationalized medical opinion on causal relationship
between a diagnosed condition and the employment incident.
The evidence from the physician’s assistant is not competent medical evidence as a
physician’s assistant is not a physician under 5 U.S.C. § 8101(2).8 While appellant claimed a
physician also signed the reports, the record transmitted to the Board does not confirm this claim.
None of the reports from the physician’s assistant provides clear evidence of an accompanying
signature by a physician.9 Even if these reports had been signed by a physician, they do not
provide a rationalized medical opinion on causal relationship.
The undated note submitted on February 21, 2007 appears to be from a physician, but it is
of little probative value. The note does not provide a factual and medical background or a
rationalized medical opinion on causal relationship between a diagnosed condition and the
November 2, 2006 employment incident. It is appellant’s burden of proof to submit the evidence
necessary to establish the claim, and the Board finds appellant did not meet her burden of proof
in this case.
CONCLUSION
Appellant did not meet her burden of proof to establish an injury in the performance of
duty on November 2, 2006.

7

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

8

George H. Clark, 56 ECAB 162 (2004).

9

The November 3, 2006 form report contains an unidentified mark, but it is not clear that this was a physician’s
signature.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 14 and January 5, 2007 are affirmed.
Issued: June 10, 2008
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

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

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

Docket No. 20-0274
Issued: May 13, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 1, 2020 appellant, through counsel, filed a timely appeal from an October 28,
2019 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 to consider the merits of this case.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than 18 percent
permanent impairment of his right upper extremity and 2 percent permanent impairment of his left
upper extremity, for which he previously received schedule award compensation.
FACTUAL HISTORY
On March 6, 2014 appellant, then a 52-year-old rural letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 27, 2014 he injured both shoulders and his neck
while in the performance of duty. He did not stop work. In an accompanying narrative statement
dated March 6, 2014, appellant related that on February 27, 2014 he experienced pain in his right
shoulder and neck when sorting and casing tubs of flats and letters and placing them into a hamper
and cart for delivery on his route in a postal vehicle.
OWCP initially denied appellant’s claim, but on April 27, 2015, accepted appellant’s claim
for aggravation of cervical spondylosis without myelopathy, sprain of neck, and aggravation of
bilateral shoulder impingement.3
Appellant submitted an April 20, 2017 medical report from Dr. Samy Bishai, an orthopedic
surgeon, who opined that appellant had 24 percent permanent impairment of each upper extremity
under Table 15-34 on page 475 of the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides),4 due to loss of shoulder range of
motion (ROM). Dr. Bishai determined that appellant reached maximum medical improvement
(MMI) on the date of his impairment evaluation.
On July 13, 2017 appellant filed a claim for a schedule award (Form CA-7).
OWCP, by development letter dated July 26, 2017, requested that appellant submit a report
from his attending physician which addressed whether he had reached MMI and, if so, to evaluate
permanent impairment in accordance with the standards of the sixth edition of the A.M.A., Guides.
It afforded him 30 days to submit the necessary evidence. No further evidence was submitted.
On August 25, 2017 OWCP referred the medical evidence and a statement of accepted
facts (SOAF) to Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as an OWCP
district medical adviser (DMA), to review the findings in the April 20, 2017 report by Dr. Bishai.
On August 26, 2017 the DMA recommended that appellant undergo a second opinion evaluation
with a Board-certified orthopedic surgeon because Dr. Bishai’s ROM measurements conflicted
with the ROM measurements contained in an April 30, 2014 report of Dr. Richard Blecha, a
Board-certified orthopedic surgeon, and April 2, 2015 report of Dr. Richard C. Smith, a Boardcertified orthopedic surgeon and prior OWCP referral physician.
On September 21, 2017 OWCP referred appellant, along with a SOAF and the medical
record, to Dr. Norman B. Seltzer, a Board-certified orthopedic surgeon, for a new second opinion
3

Appellant retired on disability from the employing establishment effective May 8, 2015.

4

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

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impairment examination. In a November 9, 2017 report, Dr. Seltzer utilized the diagnosis-based
impairment (DBI) rating method of the sixth edition of the A.M.A., Guides and opined that
appellant had two percent permanent impairment of each upper extremity. He determined that
appellant had reached MMI on April 20, 2017, the date of Dr. Bishai’s impairment evaluation.
On December 28, 2017 Dr. Katz, the DMA, reviewed the medical record and indicated that
he agreed with Dr. Seltzer’s rating of two percent permanent impairment of each upper extremity.
He advised that appellant reached MMI on November 9, 2017, the date of Dr. Seltzer’s evaluation.
On January 3, 2018 OWCP requested that the DMA provide a rationalized opinion
explaining why he selected November 9, 2017 as the date of MMI. In response, the DMA
submitted an amended report dated January 5, 2018 in which he reiterated the calculations he first
presented in his December 28, 2017 report. Additionally, he explained that the definition of MMI
was usually considered to be the date of the evaluation by an attending physician OWCP accepts
as definitive. The DMA related that, Dr. Seltzer’s November 9, 2017 evaluation formed the basis
upon which he rendered his own impairment rating, November 9, 2017 met the described
definition of MMI.
By decision dated January 11, 2018, OWCP granted appellant a schedule award for two
percent permanent impairment of the right arm and two percent permanent impairment of the left
arm based upon the opinions of Dr. Seltzer and its DMA. The period of the award ran for 12.48
weeks (87.36 days) from November 9, 2017 to February 3, 2018.
On January 19, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on June 26, 2018.
By decision dated September 6, 2018, OWCP’s hearing representative set aside the
January 11, 2018 decision and remanded the case for further medical development. He instructed
OWCP to refer appellant back to Dr. Seltzer for an additional second opinion examination to
determine whether he had permanent impairment of his upper extremities under the ROM rating
method set forth in the sixth edition of the A.M.A., Guides.
On September 12, 2018 OWCP requested a supplemental report from Dr. Seltzer.
On September 26, 2018 OWCP referred appellant, together with a SOAF, the medical
record, and list of questions, to Dr. Jeffrey T. O’Brien, a Board-certified orthopedic surgeon, for a
new second opinion impairment evaluation. In a November 2, 2018 report, Dr. O’Brien reviewed
appellant’s medical records and noted examination findings, including ROM measurements for
the right and left shoulders and cervical spine. He diagnosed right shoulder impingement
syndrome and cervical degenerative disc disease. Dr. O’Brien determined that appellant reached
MMI on April 2, 2015. Regarding impairment to the right upper extremity, he utilized the DBI
rating method found at Table 15-5 of the sixth edition of the A.M.A., Guides, and found that
appellant had a class of diagnosis (CDX) of 1 for shoulder impingement with a default value of
one percent. Dr. O’Brien assigned a grade modifier for functional history (GMFH) of 2, a grade
modifier for physical examination (GMPE) of 2, and a grade modifier for clinical studies (GMCS)
of 2. He applied the net adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS – CDX)
= (2 - 1) + (2 - 1) + (2 - 1) = 0, resulting in a class 1, grade E, or five percent permanent impairment
of the right upper extremity. Dr. O’Brien noted that the five percent DBI impairment rating was
3

higher than the ROM impairment rating. He further noted that there were no objective findings
for the left shoulder and concluded that there was zero percent permanent impairment of the left
upper extremity. Additionally, Dr. O’Brien indicated that there was no neck impairment rating for
a diagnosis of cervical degenerative disc disease as there was no radiculopathy of the spine.
On December 12, 2018 Dr. Katz, the DMA, reviewed the medical record, including
Dr. O’Brien’s November 2, 2018 clinical findings. He noted that Dr. O’Brien only provided a
permanent impairment rating for the right shoulder when both shoulders were involved in
appellant’s claim. Further, the DMA noted that Dr. O’Brien measured significant loss of ROM
for the right shoulder, did not calculate a stand-alone motion rating using Table 15-34, and he
concluded that the DBI permanent impairment for the right shoulder exceeded ROM permanent
impairment. He related that if the ROM examination was reliable, it was likely that the ROM
permanent impairment would far exceed the DBI permanent impairment. Therefore, for these
reasons, the DMA recommended that OWCP obtain a supplemental report from Dr. O’Brien or a
report from a Board-certified physiatrist or a Board-certified orthopedic surgeon addressing and
calculating appellant’s bilateral shoulder ROM permanent impairment using Table 15-34.
On December 14, 2018 and February 1, 2019 OWCP requested that Dr. O’Brien submit a
supplemental report which addressed the concerns expressed by the DMA in his December 13,
2018 report.
In a February 1, 2019 supplemental report, Dr. O’Brien provided ROM measurements for
appellant’s right and left shoulders. Regarding permanent impairment to the right shoulder, he
utilized Table 15-34 on page 475, and found that 40 degrees of abduction yielded six percent
permanent impairment, 80 degrees of flexion yielded nine percent permanent impairment, 20
degrees of adduction yielded two percent permanent impairment, 30 degrees of extension yielded
one percent permanent impairment, and 80 degrees of internal rotation and 60 degrees of external
rotation yielded zero percent permanent impairment, totaling 18 percent permanent impairment of
the right upper extremity. Regarding permanent impairment to the left shoulder, Dr. O’Brien again
utilized Table 15-34 and found that 180 degrees of flexion, 45 degrees of extension, 170 degrees
of abduction, 40 degrees of adduction, 80 degrees of internal rotation, and 60 degrees of external
rotation yielded zero percent permanent impairment, totaling zero percent permanent impairment.
He advised that there were no changes in ROM loss for the left shoulder, and thus, concluded that
appellant had zero percent permanent impairment of his left upper extremity.
The DMA, in an April 2, 2019 report, reviewed Dr. O’Brien’s February 1, 2019 findings
and concurred with his 18 percent permanent total impairment of the right upper extremity, noting
that the additional award would be for 16 percent permanent impairment of the right upper
extremity after subtracting the 2 percent previously awarded. He also concurred that appellant had
zero percent permanent impairment of the left upper extremity.
By decision dated April 4, 2019, OWCP granted appellant an additional schedule award
for 16 percent permanent impairment of the right upper extremity (arm) for a total of 18 percent,
with no additional permanent impairment of the left upper extremity (arm) beyond the 2 percent
permanent impairment previously awarded based on the opinions of Dr. O’Brien and its DMA.
The period of the award ran for 49.92 weeks (349.44 days) from November 2, 2018 to
October 17, 2019.

4

On April 10, 2019 counsel requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on August 13, 2019. No additional
evidence was submitted.
By decision dated October 28, 2019, an OWCP hearing representative affirmed the April 4,
2019 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.7 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved the use
by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.9
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. With regard to the shoulder, the relevant portion of the arm for the present case,
reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401. After the CDX
is determined from the Shoulder Regional Grid (including identification of a default grade value),
the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (March 2017).
9

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

10
See A.M.A., Guides 405-12. Table 15-5 also provides that, if motion loss is present for a claimant with certain
diagnosed conditions, permanent impairment may alternatively be assessed using Section 15.7 (ROM impairment).
Such a ROM assessment stands alone and is not combined with a DBI rating. Id. at 401-05, 475-78.

5

measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used. (Emphasis in the original.)”
***
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”11
OWCP’s 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, with the medical adviser providing
rationale for the percentage of impairment specified.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than 18
percent permanent impairment of his right upper extremity and two percent permanent impairment
of his left upper extremity, for which he previously received schedule award compensation.
OWCP referred appellant for a second opinion evaluation with Dr. O’Brien who, in his
November 2, 2018 report, found that appellant had reached MMI due to his accepted conditions
of aggravation of cervical spondylosis without myelopathy, neck sprain, and aggravation of
bilateral shoulder impingement. Regarding impairment to the right shoulder, he determined that,
under the DBI method for rating permanent impairment, utilizing Table 15-5, page 402 appellant
had a default value of one percent for the accepted right shoulder impingement syndrome.
Dr. O’Brien then assigned a grade modifier 2 for GMFH, 2 for GMPE, and 2 for GMCS. After
applying the net adjustment formula, he determined that the net adjustment of zero resulted in a
11

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

12

See supra note 8 at Chapter 2.808.6(f) (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

6

class 1, grade E, five percent permanent impairment of the right upper extremity. Dr. O’Brien
found that the five percent DBI impairment rating was higher than the ROM impairment rating,
but did not provide a right shoulder ROM permanent impairment rating. He determined that
appellant had zero percent permanent impairment of his left upper extremity based on no objective
findings for his left shoulder. Dr. O’Brien further found that he had no permanent impairment of
the neck based on his diagnosis of cervical degenerative disc disease in the absence of
radiculopathy of the spine.
In accordance with its procedures,13 OWCP properly referred the evidence of record to
Dr. Katz, a DMA, who reviewed the clinical findings of Dr. O’Brien on December 12, 2018 and
recommended that OWCP obtain a supplemental report from Dr. O’Brien as he only provided a
permanent impairment rating for the right shoulder when both shoulders were involved in
appellant’s claim, did not provide a ROM permanent impairment rating for the right upper
extremity although he found significant loss of ROM of the right shoulder, and concluded that the
right shoulder permanent impairment under the DBI rating method was greater than the right
shoulder permanent impairment under the ROM rating method.
In a February 1, 2019 supplemental report, Dr. O’Brien provided three ROM measurements
of appellant’s right and left shoulders. Regarding permanent impairment to the right shoulder, he
utilized Table 15-34, page 475, of the sixth edition of the A.M.A., Guides and determined that 80
degrees of flexion represented 9 percent permanent impairment, 30 degrees of extension
represented 1 percent permanent impairment, 40 degrees of abduction represented 6 percent
permanent impairment, 20 percent of adduction represented 2 percent permanent impairment, and
80 degrees of internal rotation and 60 degrees of external rotation represented 0 percent permanent
impairment, totaling 18 percent permanent impairment of the right upper extremity. Regarding
permanent impairment to the left shoulder, Dr. O’Brien determined that 180 degrees of flexion, 45
degrees of extension, 170 degrees of abduction, 40 degrees of adduction, 80 degrees of internal
rotation, and 60 degrees of external rotation yielded zero percent permanent impairment, totaling
zero percent permanent impairment of the left upper extremity.
In his April 12 2019 report, the DMA concurred with Dr. O’Brien’s finding that appellant
had 18 percent permanent impairment of his right upper extremity and 0 percent permanent
impairment of his left upper extremity pursuant to the sixth edition of the A.M.A., Guides.
The Board finds that OWCP properly determined that the clinical findings and reports of
Dr. O’Brien and the DMA constitute the weight of the medical evidence.14 There is no probative
medical evidence of record demonstrating greater impairment than that previously awarded.15
Therefore, appellant has not met his burden of proof to establish an increased schedule award.

13

Id.

14

J.S., Docket No. 19-1567 (issued April 1, 2020); J.H., Docket No. 18-1207 (issued June 20, 2019); M.C., Docket
No. 15-1757 (issued March 17, 2016).
15

See J.S., id.; J.M., Docket No. 18-1334 (issued March 7, 2019).

7

On appeal counsel contends that OWCP has the duty to develop the evidence. The Board
notes that appellant has the burden of proof to establish his entitlement to a greater schedule award
and the medical evidence submitted is insufficient to meet his burden of proof.16
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 18
percent permanent impairment of his right upper extremity and two percent permanent impairment
of his left upper extremity, for which he previously received schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the October 28, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 13, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

16

See D.F., Docket No. 17-1474 (issued January 26, 2018); A.T., Docket No. 16-0738 (issued May 19, 2016).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, DEPARTMENTAL
ENFORCEMENT CENTER, Chicago, IL,
Employer
__________________________________________

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Appearances:
Craig D. Leavell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2489
Issued: June 22, 2009

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 September 17, 2008 appellant filed a timely appeal of a September 3, 2008 decision
of the Office of Workers’ Compensation Programs, finding that her request for reconsideration
was untimely and failed to show clear evidence of error. Pursuant to 20 C.F.R. § 501.3, the
Board’s jurisdiction is limited to decisions issued within one year of the filing of the appeal.
Since the last merit decision was issued July 7, 2004, the Board does not have jurisdiction over
the merits of this case.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her application for reconsideration was
untimely and failed to show clear evidence of error by the Office.

FACTUAL HISTORY
On March 18, 2004 appellant, then a 44-year-old enforcement analyst, filed a traumatic
injury claim (Form CA-1) alleging that she sustained an asthma attack on March 16, 2004 as a
result of stress from a meeting with her supervisors. She also alleged harassment and retaliation
by her supervisors.
By decision dated July 7, 2004, the Office denied the claim for compensation. It found
appellant had not established any compensable work factors. On August 26, 2004 appellant
requested a hearing before an Office hearing representative. In a decision dated October 28,
2004, the Office denied the hearing request as untimely and advised her that the issue could
equally well be addressed through the reconsideration process.
On March 19, 2008 appellant requested reconsideration of her claim. She argued that she
had established her claim for compensation. Appellant contended that the Office’s finding that
the medical evidence did not need to be evaluated was illogical and a circular proposition. She
also alleged that she did not receive a copy of the July 7, 2004 decision. With respect to
additional evidence, appellant submitted unsigned and undated affidavits from a Dr. Joyce
Miller, Dr. Daniel Senseng and Yvonne Hannah, a union representative.
By decision dated September 3, 2008, the Office found appellant’s application for review
untimely. It denied the application for review on the grounds that it did not demonstrate clear
evidence of error by the Office.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.1 The employee shall exercise this right through a request to
the district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”2
Section 8128(a) of the Act3 does not entitle a claimant to a review of an Office decision
as a matter of right.4 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.5 The Office, through regulations,

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.605 (1999).

3

5 U.S.C. § 8128(a).

4

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”

2

has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).6
As one such limitation, the Office has stated that it will not review a decision denying or
terminating a benefit unless the application for reconsideration is filed within one year of the
date of that decision.7 The Board has found that the imposition of this one-year limitation does
not constitute an abuse of the discretionary authority granted the Office under 5 U.S.C.
§ 8128(a).8
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.9 In accordance with this holding the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.10
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.11 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.12 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.13 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.14 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.15 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.16 The Board makes an
6

Although it is a matter of discretion on the part of the Office whether to review an award for or against payment
of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by: (1) showing
that the Office erroneously applied or interpreted a specific point of law, or (2) advancing a relevant legal argument
not previously considered by the Office, or (3) constituting relevant and pertinent evidence not previously
considered by the Office; see 20 C.F.R. § 10.606(b).
7

20 C.F.R. § 10.607(a).

8

See Leon D. Faidley, Jr., supra note 4.

9

Leonard E. Redway, 28 ECAB 242 (1977).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

11

See Dean D. Beets, 43 ECAB 1153 (1992).

12

See Leona N. Travis, 43 ECAB 227 (1991).

13

See Jesus D. Sanchez, 41 ECAB 964 (1990).

14

See Leona N. Travis, supra note 12.

15

See Nelson T. Thompson, 43 ECAB 919 (1992).

16

Leon D. Faidley, Jr., supra note 4.

3

independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.17
ANALYSIS
Appellant’s application for reconsideration was dated March 19, 2008. The merit
decision in the case was dated July 7, 2004. Since the application for reconsideration was filed
more than one year after the merit decision, it is considered untimely. As an untimely
application for reconsideration, appellant must show “clear evidence of error” by the Office.
The claim was denied on the grounds that appellant had not alleged and substantiated a
compensable work factor. The application for reconsideration does not provide any relevant
evidence on the issue. The affidavits submitted are not signed and therefore are of no probative
value.18 With respect to medical evidence, the Board notes that the Office properly found that
there is no medical issue on causal relationship until a compensable work factor is established.19
In her application for reconsideration, appellant argues that she did establish her claim, but she
does not identify any evidence of record that is sufficient to establish a compensable work factor.
She noted, for example, two e-mails from Ms. Hannah dated March 8 and 10, 2004. These
communications generally refer to allegations of harassment without providing any probative
evidence of harassment.
As noted, the evidence must be of sufficient probative value to prima facie shift
weight of the evidence in favor of appellant’s claim and raise a substantial question as to
correctness of the Office decision. Appellant did not present clear evidence of error by
Office, and her application for reconsideration was properly denied without merit review of
claim.

the
the
the
the

CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for merit
review on the grounds that the application for reconsideration was untimely and failed to show
clear evidence of error.

17

Gregory Griffin, 41 ECAB 186 (1989), petition for recon., denied, 41 ECAB 458 (1990).

18

Documents lacking proper identification are of no probative value. See D.D., 57 ECAB 734 (2006); Merton J.
Sills, 39 ECAB 572 (1988). Without a signature or other evidence, there is no indication that the affidavits
submitted were authorized by the named individuals.
19

See Lori A. Facey, 55 ECAB 217 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 3, 2008 is affirmed.
Issued: June 22, 2009
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shenandoah, PA, Employer
__________________________________________

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

Docket No. 21-1131
Issued: March 2, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 20, 2021 appellant, through counsel, filed a timely appeal from a May 6, 2021 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. 3
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
3

5 U.S.C. § 8101 et seq.

The Boa rd notes that, following the May 6, 2021 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case
record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by
the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability, commencing July 30, 2018, causally related to her accepted June 15, 2017 employment
injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On June 15, 2017 appellant, then a 34-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on that date she twisted her left ankle as she stepped out of her mail
truck while in the performance of duty. On July 5, 2017 OWCP accepted sprain of the
calcaneofibular ligament of the left ankle. 5 On January 5, 2018 it expanded the acceptance of
appellant’s claim to include strain and laceration of muscles and tendons of peroneal muscle group
of the lower left leg and laceration of muscle and tendon of the peroneal muscle group at the lower
left leg. Appellant worked intermittent modified-duty work until January 11, 2018 when Dr. John J.
Stapleton, a podiatrist, performed authorized repair of a left peroneal brevis split tear and fibular
groove deepening. OWCP paid her wage-loss compensation on the supplemental rolls from
January 20 through April 13, 2018. Appellant returned to full-time, modified-duty work on
April 17, 2018.6
A July 24, 2018 magnetic resonance imaging (MRI) scan of the left ankle revealed
postsurgical changes, no other tendon or ligament injury, and a stable osteo chondral injury along
the posterior dome of the talus.
In a July 25, 2018 progress note, Dr. Stapleton noted that appellant had twisted her left ankle
on June 12, 2018 and subsequently had persistent left ankle pain that was increasing in intensity.
Left ankle examination demonstrated tenderness over the peroneal tendon, laxity of the peroneal
tendon with hypermobility, instability to the contralateral ankle, and mild edema. Dr. Stapleton
diagnosed acute left ankle pain, osteochondral defect, and tendinosis. In an unsigned
correspondence of even date, he noted that appellant was under his care and advised that she should
not work due to medical illness.
In a July 30, 2018 report, Dr. Daniel Fuchs, an orthopedic surgeon, noted the history of
appellant’s June 15, 2017 work injury. He described her medical and surgical history, and noted
4

Docket No. 19-1456 (issued July 14, 2020).

5

On November 24, 2017 appellant filed a Form CA-1 alleging that on that date she twisted her left ankle as she
stepped off the sidewalk while in the performance of duty. OWCP assigned OWCP File No. xxxxxx563. By decision
dated January 8, 2018, it denied appellant’s traumatic injury claim, finding that the evidence of record was insufficient
to establish that the injury and/or events occurred as she described. OWCP explained that she had not submitted factual
evidence to support that she experienced a work-related injury on November 24, 2017.
6

Appellant signed an offer of modified limited-duty assignment on April 17, 2018. The duties of the position were
one to two hours each casing mail, administrative duties, and working undeliverable mail with two hours
delivering/carrying mail. Appellant was restricted to two hours each, standing, walking, and delivering.

2

her complaint of persistent pain and swelling in the area of the peroneal tendons status post tendon
repair, and that she had a mild aggravation the previous month when she rolled her left ankle.
Dr. Fuchs indicated that a July 2018 MRI scan demonstrated a small posterolateral osteochondral
lesion of the talar dome. Findings on left ankle examination included intact sensation to light touch,
a well-healed surgical incision of the peroneal tendons, mild swelling, and tenderness to palpation.
Dr. Fuchs diagnosed left lower extremity peroneal tendinitis and recommended immobilization in a
controlled ankle movement (CAM) boot and physical therapy. He advised that appellant was
disabled from work. On a form report of same date Dr. Fuchs diagnosed left peroneal tendon tear,
recommended a CAM boot, weight bearing as tolerated, and advised that appellant could return to
modified sedentary work.
On July 31, 2018 appellant filed a notice of recurrence (Form CA-2a). She indicated that
the recurrence began on July 18, 2018 due to left ankle pain and weakness, and that it was causally
related to her accepted June 15, 2017 employment injury. Appellant stopped work on July 30, 2018.
By decision dated October 19, 2018, OWCP denied appellant’s claim, finding that she had
not sustained a recurrence of disability commencing July 30, 2018 causally related to her June 15,
2017 employment injury.
On October 31, 2018 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review.
In procedure notes dated November 5, 2018 and January 7, 2019, Dr. Stapleton treated
appellant in follow up. He opined that her current condition was clearly related to the initial work
injury, noting that, after she had repair of her peroneal brevis tendon, her symptoms continued and
were secondary to tendinosis and scarring from this repair and that she require d revision surgery.
On March 4, 2019 Dr. Stapleton noted that appellant was doing well, but had a complaint of mild,
intermittent pain over the medial aspect of her left ankle, worsened with extended activity, and that
ankle range of motion was still limited due to pain. He diagnosed status post-surgery and a lowgrade osteochondral defect. Dr. Stapleton reiterated his opinion that appellant’s current condition
was due to the June 15, 2017 employment injury.
In an April 10, 2019 report, Dr. Mitchell E. Cooper, a Board-certified orthopedic surgeon,
noted appellant’s complaint of a two-year history of left ankle pain with current complaints of lateral
midfoot pain, aggravated by direct pressure and weight bearing. He noted the September 27, 2018
surgery and that appellant reported that she had twisted her ankle the previous week and had
increased pain since that time. Dr. Cooper reviewed the July 24, 2018 left ankle MRI scan and
advised that he was not sure that appellant was symptomatic from osteochondritis dissecans.
By decision dated May 29, 2019, OWCP’s hearing representative affirmed the October 19,
2018 decision.
On June 25, 2019 appellant, through counsel, appealed to the Board. By decision dated
July 14, 2020, the Board set aside the May 29, 2019 decision and remanded the case for further
medical development. The Board found Dr. Stapleton’s opinion sufficient to require further

3

development of the medical evidence. The Board further instructed OWCP to administratively
combine OWCP File No. xxxxxx157 and File No. xxxxxx563. 7
OWCP received additional evidence. On May 24, 2019 Dr. Cooper treated appellant in
follow up for left ankle pain, which she attributed to an injury in June 2017. He noted that she was
status post peroneal brevis to longus transfer with tenodesis performed on September 27, 2018.
Dr. Cooper diagnosed persistent left ankle pain, deep ankle pain slightly lateral, and small
osteochondritis dissecans (OCD) post lateral talus. He continued appellant’s work restrictions.
On March 2, 2021 OWCP referred appellant, the case record and a SOAF for a second
opinion examination to Dr. Noubar A. Didizian, a Board-certified orthopedic surgeon. It requested
that Dr. Didizian evaluate appellant’s current disability status in connection with the June 15, 2017
date of injury and need for treatment medically connected to this injury. 8
In a March 18, 2021 report, Dr. Didizian discussed appellant’s factual and medical history
and reported physical examination findings. Examination of both ankles revealed no synovitis,
effusion, or crepitation, full range of motion of both ankles, intact peripheral pulses, no atrophic
changes, intact sensation in both ankles, reflexes present and equal, and negative pivot test of the
left ankle. Dr. Didizian diagnosed sprain of the calcaneofibular ligament, left ankle, strain of
muscles and tendons of the peroneal muscle group at lower left leg, laceration of the muscles and
tendons of the peroneal muscle group, and osteochondritis dissecans. He noted that the June 15,
2017 employment injury did not cause or aggravate an additional left ankle condition causing
surgery on September 27, 2018 and did not cause recurrent employment-related disability.
Dr. Didizian noted that appellant currently worked as a postmaster with no difficulty and opined
that she would not be able to go back to her original job because of multiple surgeries and ongoing
symptomology. He indicated that appellant continued to have residuals of her work-related injury
and was not fully recovered. In a work capacity evaluation (Form OWCP-5c), Dr. Didizian noted
appellant could perform light-duty work with restrictions on standing, walking, pushing, pulling,
and lifting.
By decision dated May 6, 2021, OWCP expanded the acceptance of appellant’s claim to
include osteochondritis dissecans of the left ankle.
By a second decision dated May 6, 2021, OWCP denied appellant’s recurrence claim,
finding that she did not sustain a recurrence of disability commencing July 30, 2018 causally related
to her June 15, 2017 employment injury. It found that the weight of the medical evidence rested
with Dr. Didizian, the OWCP referral physician.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
7

OWCP administratively combined OWCP File No. xxxxxx157 and OWCP File No. xxxxxx563, with the former
serving as the master file, in accordance with the Board’s decision dated July 14, 2020.
8

OWCP received additional evidence. Appellant attended physical therapy treatment on January 14 through
23, 2020. Also submitted was a September 9, 2020 pathology report for a thigh biopsy.

4

which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment. 9
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning. 10 Where no such rationale is present,
the medical evidence is of diminished probative value.11
OWCP’s procedures provide that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings. That
change must result from a previous injury or occupational illness rather than an intervening injury
or new exposure to factors causing the original illness. It does not include a condition that results
from a new injury, even if it involves the same part of the body previously injured.12
ANALYSIS
The Board finds that this case is not in posture for decision.
Initially, the Board notes that it is unnecessary to consider the evidence appellant submitted
prior to the issuance of OWCP’s May 29, 2019 decision, which was considered by the Board in its
July 14, 2020 decision. Findings made in prior Board decisions are res judicata absent further merit
review by OWCP under section 8128 of FECA. 13
In a March 18, 2021 report, second opinion physician, Dr. Didizian, conducted an
examination of both ankles and reported no abnormalities. He diagnosed sprain of the
calcaneofibular ligament, left ankle, strain of muscles and tendons of the peroneal muscle group at
lower left leg, laceration of the muscles and tendons of the peroneal muscle group, and
osteochondritis dissecans. Dr. Didizian noted that the June 15, 2017 employment injury did not
cause or aggravate an additional left ankle condition resulting in surgery on September 27, 2018,
and did not cause recurrent employment-related disability. He noted that appellant currently worked
as a postmaster with no difficulty and opined that she would not be able to go back to her original
job because of multiple surgeries and ongoing symptomology. Dr. Didizian opined that appellant
continued to have residuals of her work-related injury and was not fully recovered. In a Form

9

20 C.F.R. § 10.5(x).

10

See J.S., Docket No. 19-1035 (issued January 24, 2020).

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); D.T., Docket
No. 19-1064 (issued February 20, 2020).
13

C.M., Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

5

OWCP-5c, he noted that appellant could perform light-duty work with restrictions on standing,
walking, pushing, pulling, and lifting.
Dr. Didizian, however, provided only conclusory responses to the questions posed by
OWCP with regard to whether appellant sustained a recurrence of disability on July 30, 2018 due
to a material change or worsening of her June 15, 2017 employment injury; whether she sustained
an aggravation of her accepted injury; and/or whether the September 27, 2018 left ankle surgery
was related to her work injury.14 The Board has held that a report is conclusory and of limited
probative value regarding causal relationship if it does not contain medical rationale. 15 As
Dr. Didizian did not provide a rationalized medical opinion explaining how the claimed recurrence
was causally related to the accepted June 15, 2017 employment injury, his report was insufficient
to establish causal relationship.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. 16
While the claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. It has the obligation to see that justice is done. 17
Accordingly, once OWCP undertakes to develop the medical evidence further, it has the
responsibility to do so in a manner that will resolve the relevant issues in the case. 18
On remand OWCP shall provide an updated SOAF request a supplemental report from
Dr. Didizian thoroughly addressing the issues and providing medical rationale in support of his
opinion. Following any necessary further development, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

See D.M., Docket No. 19-1181 (issued December 2, 2019). See also P.R., Docket No. 19-1313 (issued August 11,
2020); see also S.S., Docket No. 18-0397 (issued January 15, 2019).
15

See R.W., Docket No. 19-1733 (issued April 13, 2021); D.W., Docket No. 18-1139 (issued May 21, 2019); Y.D.,
Docket No. 16-1896 (issued February 10, 2017).
16

N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 2019); B.A.,
Docket No. 17-1360 (issued January 10, 2018).
17

Id.; see also Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

18

T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the May 6, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings co nsistent
with this decision of the Board.
Issued: March 2, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate 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
__________________________________________
D.O., Appellant
and
DEPARTMENT OF COMMERCE, BUREAU
OF THE CENSUS, Jeffersonville, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Joseph E. Allman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1726
Issued: October 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 16, 2016 appellant, through counsel, filed a timely appeal from a February 19,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and authorization for medical benefits effective November 28, 2012 as
she had no further disability or need for medical treatment causally related to her March 27, 2012
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.

employment injury; and (2) whether she met her burden of proof to establish continuing
employment-related disability after November 28, 2012.
FACTUAL HISTORY
On April 5, 2012 appellant, then a 46-year-old statistical assistant, filed a traumatic injury
claim (Form CA-1) alleging that on March 27, 2012 she injured her hips, leg, left arm, and lower
back in the performance of duty. She stopped work on March 29, 2012. OWCP accepted the
claim for left sciatica, lumbar sprain, and a left shoulder and upper arm sprain and paid appellant
compensation for total disability beginning May 14, 2012. It noted in its acceptance letter that
she had a history of prior back complaints.
A magnetic resonance imaging (MRI) scan dated May 21, 2012 revealed degenerative
spondylosis resulting in mild-to-moderate bilateral neural foraminal narrowing at L5-S1.
On July 18, 2012 OWCP referred appellant to Dr. Stanley W. Collis, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated July 31, 2012,
Dr. Collis reviewed appellant’s history of a March 27, 2012 injury and previous history of back
injuries in 2001 and 2006. On examination, he found no muscle spasms, weakness, or loss of
sensation, mild tenderness with flexion, adequate motion, and a negative straight leg raise.
Dr. Collis noted that a May 21, 2012 MRI scan showed no disc herniation, but mild-to-moderate
bilateral neuroforaminal narrowing at L5-S1. He related, “The examination of [appellant’s] back
and lower extremities and the neurological examination were entirely negative. X-rays of the
lumbar spine were not remarkable either. So, overall, I did not find any obvious objective
findings.” Dr. Collis advised that the narrowing at L5-S1 was preexisting. He opined that
appellant aggravated and sprained her back on March 27, 2012, but that the aggravation had
resolved. Dr. Collis found no evidence of trochanteric bursitis. He determined that appellant
had no further back condition or sciatica due to the March 27, 2012 employment injury.
Dr. Collis opined that she could resume work without restrictions and had no need for any
particular medical treatment. OWCP requested clarification from Dr. Collis as to appellant’s
accepted shoulder sprain.
In a progress report dated August 3, 2012, Dr. Kevin R. Burke, an attending internist,
discussed appellant’s history of an injury at work on March 27, 2012 when she jumped away
from a falling object while holding food containers. He noted that her problem was “recurrent.”
Dr. Burke diagnosed back pain, degenerative disc disease, lumbar strain, and hip strain. On
August 6, 2012 he took appellant off work from August 3 to 17, 2012.
In an addendum dated August 14, 2012, Dr. Collis advised that appellant had no left
shoulder complaints at the time of his evaluation. He found that she had no employment-related
left shoulder condition and could resume her usual employment. Dr. Collis opined that appellant
required no further left shoulder treatment.
By letter dated September 14, 2012, OWCP requested that Dr. Burke review and discuss
the findings by Dr. Collis.
Dr. Burke, in a September 24, 2012 progress report, advised that appellant could resume
work on September 27, 2012 if there were no changes at a September 26, 2012 appointment.

2

In a note signed October 16, 2012, Dr. Burke advised that the date on the September 24,
2012 progress report releasing appellant to work was incorrect and that the release date should
have been one month after the September 24, 2012 appointment. He indicated that he was
treating appellant for pain in the left lower extremity and low back, which made it difficult to
work.
OWCP, on October 18, 2012, notified appellant of its proposed termination of her wageloss compensation and medical benefits as the weight of the evidence established that she had no
further disability or residuals of her March 27, 2012 employment injury.
Dr. Burke, on October 26, 2012, reviewed appellant’s complaints of increasing and
decreasing back pain after a March 2012 injury.3 On examination he found a positive straight
leg raise on the left. Dr. Burke diagnosed lumbar radiculopathy, degenerative disc disease, and
myalgia.
By decision dated November 28, 2012, OWCP terminated appellant’s wage-loss
compensation and entitlement to medical benefits effective that date. It found that the opinion of
Dr. Collis represented the weight of the evidence and established that she had no further
disability or need for medical treatment as a result of her accepted work injury.
Dr. Burke, in a report dated November 1, 2012, received by OWCP on December 4,
2012, related that appellant clearly states that she suffered back and leg pain and other symptoms
after stumbling and falling at work on March 27, 2012. He diagnosed radiculopathy at S1 from a
disc bulge at L5-S1. Dr. Burke advised, “Clinically, [appellant] also appears to have an S1
radiculopathy based on her symptoms of left posterior lateral thigh and calf numbness and pain,
back pain, a positive straight leg raising test on the left, weakness of hip extension and knee
flexion on the left, and an absent ankle jerk on the left.” He noted that these symptoms began
after her March 27, 2012 work injury and attributed the S1 radiculopathy to her employment
injury.
On October 28, 2013 appellant requested reconsideration. She submitted another report
from Dr. Burke, undated, which reflected that he had been treating appellant since 1995 and that
she had no problems with her back or hip before a November 2001 work injury. Dr. Burke
discussed his diagnoses of degenerative disc disease, lumbar strain, hip strain, and back pain. He
determined that the March 27, 2012 work injury clearly aggravated appellant’s degenerative disc
disease, noting that she was carrying supplies in both arms, lunged forward to avoid being hit by
a wall partition sliding towards her making her land unevenly on her feet, jarring her body.
Dr. Burke advised that appellant could not perform extensive sitting or standing.
By decision dated January 22, 2014, OWCP denied modification of its November 28,
2012 decision. It found that the newly submitted evidence from Dr. Burke was insufficiently
reasoned and thus of little probative value.

3

Dr. Burke continued to submit progress reports describing appellant’s treatment.

3

Dr. Burke, in a report dated January 20, 2015, discussed appellant’s March 27, 2012
work injury.4 He diagnosed back pain, degenerative disc disease, lumbar strain, hip strain, and
S1 radiculopathy due to her March 27, 2012 employment injury. Dr. Burke asserted that
Dr. Collis’ opinion that the 2012 injury temporarily aggravated appellant’s condition was
“completely at odds” with his experience as her attending physician. He maintained that the
results of the MRI scan supported her subjective complaints.
Appellant requested reconsideration on January 22, 2015. Counsel, in a January 21, 2015
statement, asserted that Dr. Burke’s opinion was entitled to more weight than the opinion of
Dr. Collis as he was her long-time attending physician.
OWCP determined that a conflict existed between Dr. Collis and Dr. Burke regarding
whether appellant had any continuing employment-related disability. On July 27, 2015 it
referred appellant to Dr. Stacie Grossfeld, a Board-certified orthopedic surgeon, for an impartial
medical examination. OWCP, in its questions for the referee physician, listed the accepted
conditions as an aggravation of effusion of the right knee joint, an aggravation of localized
primary osteoarthritis of the right knee, chronic left knee pain, left knee osteoarthritis, left knee
effusion, a left knee medial meniscus tear, and a left knee gait disturbance. It asked the impartial
medical examiner to address whether there were residuals of the accepted conditions of right
medial epicondylitis, an aggravation of right medial epicondylitis, an aggravation of myofascial
pain, and an aggravation of carpal tunnel syndrome, which were not the appropriate accepted
conditions.
In a report dated August 26, 2015, Dr. Grossfeld reviewed appellant’s history of a
March 27, 2012 employment injury and subsequent medical treatment received, including a
spinal fusion at L5-S1 on February 11, 2015. On examination she found reduced motion of the
cervical and lumbar spine. Dr. Grossfeld noted that appellant experienced difficulty moving due
to pain without a loss of sensation or atrophy. She found that a straight leg raise was equivocal
due to her reduced range of motion. Dr. Grossfeld, in response to the question of whether
appellant had residuals of the accepted conditions of right medial epicondylitis, an aggravation of
right medial epicondylitis, an aggravation of myofascial pain, and an aggravation of carpal
tunnel syndrome, opined that she sustained only lumbar strain due to her work injury. She
related, “[appellant’s] current condition does not relate back to the March 27, 2012 work injury.
The only work-related injury was a lumbar strain which should have resolved based on medical
probability six weeks after the injury occurred.” Dr. Grossfeld advised that the accepted work
injury did not prevent appellant from resuming her usual employment and recommended no
further treatment.
By decision dated February 19, 2016, OWCP denied modification of its January 22, 2014
decision. It found that the opinion of Dr. Grossfeld constituted the weight of the evidence and
established that appellant had no continuing employment-related disability.

4

In a report dated April 9, 2014, Dr. Sharon T. Laufer, who specialized in family medicine, advised that appellant
experienced a work injury on April 3, 2014 to her upper back and right shoulder. She noted that appellant had a
prior work injury in March 2012. On April 15, 2014 Dr. Laufer diagnosed trapezius muscle spasms, lumbar
paraspinal muscle spasm, sacroiliac pain, and a work injury.

4

On appeal counsel contends that Dr. Burke’s opinion was entitled to greater weight as an
attending physician and that Dr. Collis overlooked the changes on the May 21, 2012 MRI scan
attributable to her work injury. Consequently, he asserts that the record did not contain a conflict
in medical opinion. Counsel further argues that Dr. Grossfeld’s opinion is not reasoned and that
she failed to consider the properly accepted conditions of left sciatica, lumbar sprain, and left
shoulder and upper arm sprain. He asserts that Dr. Grossfeld determined that a lumbar strain
should have resolved within six weeks rather than making a specific finding regarding
appellant’s recovery.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.6
Additionally, the right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability compensation.7 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained left sciatica, lumbar sprain, and a sprain of the
left shoulder and upper arm due to a March 27, 2012 employment injury. It paid wage-loss
compensation for total disability beginning May 14, 2012.
On July 31, 2012 Dr. Collis, an OWCP referral physician, discussed appellant’s
March 27, 2012 employment injury and noted that she had a history of previous injuries to her
back in 2001 and 2006. On examination, he found no muscle spasm, weakness, reduced
sensation or inadequate motion. Dr. Collis further found a negative straight leg raise, but some
mild tenderness with flexion. He reviewed the medical evidence of record, including the
May 21, 2012 MRI scan showing mild-to-moderate neuroforaminal narrowing bilaterally, but no
herniated disc. Dr. Collis diagnosed a back sprain and aggravation of a back condition on
March 27, 2012 that had resolved. He noted that appellant’s L5-S1 narrowing predated her
injury and that there were currently no objective findings of her injury on examination.
Dr. Collis advised that she could resume work without restrictions and did not require additional
medical treatment for her employment injury.
In a supplemental report dated August 14, 2012, Dr. Collis related that appellant had no
left shoulder complaints at the time of his examination. He determined that she did not have any
5

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

6

Gewin C. Hawkins, 52 ECAB 242 (2001).

7

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

8

Id.

5

current left shoulder condition or need for treatment and that she could resume her usual
employment. Dr. Collis thoroughly reviewed the factual and medical background and accurately
summarized the relevant medical evidence. Moreover, he provided detailed findings on
examination and reached conclusions regarding appellant’s condition which comported with his
findings.9 Consequently, the opinion of Dr. Collis represents the weight of the evidence and
establishes that appellant had no disability or need for further medical treatment due to her
March 27, 2012 employment injury as of November 28, 2012.10
The remaining evidence of record submitted prior to OWCP’s termination of
compensation is insufficient to show that appellant had further disability due to her employment
injury. Dr. Burke, in a progress report dated August 3, 2012, discussed her history of a
March 27, 2012 work injury and diagnosed back pain, degenerative disc disease, lumbar strain,
and hip strain. On August 6, 2012 he advised that appellant could not work from August 3
to 17, 2012. In a September 24, 2012 progress report, Dr. Burke found that she could return to
work on September 27, 2012. However, in an October 16, 2012 report, he indicated that the
return to work date in the September 24, 2012 report should have been one month after the
evaluation. Dr. Burke related that appellant had trouble working due to pain in her low back and
left lower extremity. In his reports, however, Dr. Burke failed to provide medical rationale
supporting his opinion that she was unable to work due to her accepted conditions.11 Medical
conclusions unsupported by rationale are of diminished probative value.12
In an October 26, 2012 progress report, Dr. Burke discussed appellant’s history of a
March 27, 2012 work injury, provided examination findings, and diagnosed lumbar
radiculopathy, degenerative disc disease, and myalgia. He did not, however, address the issue of
disability due to the March 27, 2012 employment injury; consequently, his report is of little
probative value.13
The Board therefore finds that OWCP met its burden of proof in this matter to terminate
appellant’s wage-loss compensation and authorization for medical benefits effective
November 28, 2012.
On appeal counsel contends that Dr. Burke’s opinion is entitled to more weight than
Dr. Collis as he is her attending physician. He further notes that the second opinion physician
did not attribute the 2012 MRI scan changes to her work injury. As discussed, however,
Dr. Collis provided detailed findings on examination and supported his conclusion with medical
rationale. His report represents the weight of the evidence regarding the termination of
appellant’s compensation and medical benefits effective November 28, 2012.14
9

See Pamela K. Guesford, supra note 7.

10

See C.C., Docket No. 16-0318 (issued May 2, 2016).

11

See S.C., Docket No. 16-0284 (issued June 27, 2016); Dean E. Pierce, 40 ECAB 1249 (1989).

12

See Jacquelyn L. Oliver, 48 ECAB 232 (1996).

13

Medical reports that do not address the issue of causation are of little probative value. See C.B., Docket No.
09-2027 (issued May 12, 2010); A.D., 58 ECAB 149 (2006).
14

See M.K., Docket No. 15-1903 (issued May 6, 2016).

6

LEGAL PRECEDENT -- ISSUE 2
As OWCP properly terminated appellant’s compensation benefits, the burden shifted to
her to establish any continuing disability after that date related to her accepted injury.15 To
establish a causal relationship between the condition as well as any attendant disability claimed
and the employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background, supporting such a causal relationship.16 Causal
relationship is a medical issue and the medical evidence required to establish a causal
relationship is rationalized medical evidence.17 A claimant must establish by the weight of the
reliable, probative, and substantial evidence that she had an employment-related disability which
continued after termination of compensation benefits.18
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.19 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician 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.20
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.21
In situations where OWCP secures an opinion from an impartial medical examiner for the
purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.22
ANALYSIS -- ISSUE 2
Following OWCP’s termination of compensation, appellant submitted a January 20, 2015
report from Dr. Burke, who disagreed with Dr. Collis’ opinion that the March 27, 2012 work
15

Manual Gill, 52 ECAB 282 (2001).

16

Id.

17

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

18

See J.A., Docket No. 15-0908 (issued August 6, 2015).

19

5 U.S.C. § 8123(a).

20

20 C.F.R. § 10.321.

21

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

22

See B.J., Docket No. 15-1961 (issued September 7, 2016).

7

injury only temporarily aggravated her back condition. He diagnosed degenerative disc disease,
lumbar strain, hip strain, and radiculopathy at S1 and attributed these conditions to the
March 2012 work injury. In an undated report, Dr. Burke advised that appellant was unable to
extensively sit or stand.
OWCP properly determined that a conflict arose between Dr. Burke and Dr. Collis
regarding whether appellant had continuing disability due to her accepted employment injury. It
referred her to Dr. Grossfeld for an impartial medical examination. In its questions to
Dr. Grossfeld, OWCP asked whether the accepted conditions of right medial epicondylitis, an
aggravation of right medial epicondylitis, an aggravation of myofascial pain, and an aggravation
of carpal tunnel syndrome had resolved. There is no evidence in the record that it accepted these
conditions.
When a case is referred to an impartial medical examiner for the purpose of resolving a
conflict, the opinion of such specialist, is sufficiently well rationalized and based on a prior
factual and medical background, must be given special weight.23 The Board finds, however, that
this case is not in posture for decision regarding continuing disability as the opinion of
Dr. Grossfeld is insufficiently rationalized to be accorded the special weight of the evidence.
In her August 26, 2015 report, Dr. Grossfeld found that appellant sustained only a lumbar
sprain as a result of her work injury, which she opined should have resolved six weeks after the
injury. OWCP, however, accepted the claim for left sciatica, lumbar sprain, and a left shoulder
and upper arm sprain. The report of an impartial medical specialist will be accorded special
weight provided her opinion is based upon a proper factual background and is sufficiently
rationalized.24 The Board looks at such factors as the opportunity for and thoroughness of the
examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of analysis manifested, and the medical rationale expressed by the
physician on the medical issues.25 Dr. Grossfeld addressed the lumbar strain, however, she failed
to address whether appellant had continuing disability due to her accepted conditions of a left
shoulder and upper arm sprain and left sciatica. As she failed to address all of the accepted
conditions, her opinion is not based upon an accurate history and background and is of limited
probative value.26
OWCP has the responsibility to obtain from its referral physician an evaluation that will
resolve the issue involved in this case.27 Accordingly, the Board finds that the case must be
remanded for further medical development. On remand, OWCP should prepare an accurate and
updated statement of accepted facts and obtain a supplemental report from Dr. Grossfeld
addressing whether appellant has any continuing employment-related disability or residuals

23

See B.J., Docket No. 15-1961 (issued September 7, 2016).

24

See A.R., Docket No. 12-0443 (issued October 9, 2012); Darlene R. Kennedy, 57 ECAB 414 (2006).

25

See N.K., Docket No. 12-1637 (issued April 2, 2013); Anna M. Delaney, 53 ECAB 384 (2002).

26

See T.H., Docket No. 17-0025 (issued July 6, 2017).

27

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

8

attributable to any of her accepted conditions. Following such further development as deemed
necessary, it should issue an appropriate merit decision.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and authorization for medical benefits effective November 28, 2012 as she had no
further disability or need for medical treatment casually related to her March 27, 2012
employment injury. The Board further finds that the case is not in posture for decision regarding
whether she has met her burden of proof to establish continuing employment-related disability
after November 28, 2012.
ORDER
IT IS HEREBY ORDERED THAT the February 19, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: October 26, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9