United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
DEARTMENT OF THE NAVY,
NAVAL RESEARCH LABORATORY,
Chesapeake Beach, MD, Employer
__________________________________________

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Appearances:
Peter Fayne, Esq., for the appellant
No appearance, Esq., for the Director

Docket No. 11-454
Issued: May 22, 2012

Oral Argument March 13, 2012

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 14, 2010 appellant filed a timely appeal from a June 22, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that appellant forfeited his
compensation for the period March 22, 1992 through July 13, 2007 (excluding the periods
June 7, 1996 to April 16, 1997 and July 18, 1998 to May 29, 1999); (2) whether an overpayment
of $303,724.66 was created; (3) whether OWCP properly denied waiver of the overpayment; and
(4) whether OWCP met its burden of proof to terminate compensation effective July 30, 2008.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In the present case, OWCP accepted that appellant sustained a lumbar strain on April 30,
1991 and accepted neuritis in a second injury on May 1, 1991 resulting from an electric shock.
Appellant began receiving compensation for wage loss. On August 9, 1995 OWCP accepted
major depressive episode.
OWCP periodically required appellant to submit information on Forms CA-1032,
regarding any employment activity, dependents, receipt of other benefits and other relevant
information. The record indicates that appellant submitted Form CA-1032’s signed on the
following dates: June 22, 1993, June 28, 1994, August 2, 1995, June 6, 1996, July 17, 1998,
August 30, 2000, August 16, 2001, August 3, 2002, August 12, 2003, July 24, 2004,
September 21, 2005, August 2, 2006, July 13, 2007 and February 20, 2009. Appellant did not
report any employment activity with respect to a charter boat business on any of the forms.
In an investigative report dated March 23, 2009 from the Department of Labor’s Office
of the Inspector General (OIG), investigator’s stated that appellant had operated a commercial
charter boat business since the 1990’s. According to the report, on July 30, 2008 the U.S.
District Court accepted a guilty plea from him for violation of 18 U.S.C. § 1920 (False Statement
to Obtain Federal Employee’s Compensation). The report noted that OWCP had asked appellant
about his charter boat activities in 1993, but he falsely reported no income from the activity. The
documentation provided including evidence from the Maryland Department of Natural
Resources regarding the bookings recorded under his charter license. The initial booking
recorded was May 1, 1993, with bookings each year except 1995 and 2003. The last booking
was December 18, 2005. According to the investigative report, appellant advertised his services
and charged fees for half day and full day fishing trips.
The evidence accompanying the investigative report included a report of interview with
appellant on July 30, 2007. The interview report stated that appellant admitted he “lied” on
OWCP questionnaires for several years. According to appellant, in 2006 he only fished two or
three times and had not fished since “the early summer” of 2006, selling his boat in February or
March 2007. There is a handwritten document from him regarding earnings from 1993 to 2005.
Appellant noted earnings of approximately $6,000.00 in 1998, 2001 and 2002. He reported “no
fishing” for 1995, 1999, 2003 and 2004.
Additional evidence included a plea agreement signed by appellant on June 12, 2008.
The plea agreement was dated June 6, 2008 and provided that he agreed to waive indictment and
plead guilty to one count information charging him with making false statement to obtain
compensation, in violation of 18 U.S.C. § 1920. Appellant agreed to the entry of a restitution
order of $60,000.00, “the agreed amount of loss to the government from his criminal conduct.”
The agreement stated that it did not bind any federal state or local prosecuting authority other
than the U.S. Attorney’s Office.
By decision dated March 30, 2009, OWCP terminated compensation for wage loss
effective July 30, 2008. It found that appellant pleaded guilty to fraud in the application of
FECA benefits and was no longer entitled to wage-loss compensation.

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By decision dated May 13, 2009, OWCP determined that appellant had forfeited
compensation from March 22, 1992 to February 20, 2009. It found that he had failed to report
earnings as required by the CA-1032 forms.
On May 13, 2009 OWCP made a preliminary determination that an overpayment of
$402,159.58 had occurred. It calculated that this represented all compensation from March 22,
1992 to February 20, 2009, excluding the following periods: June 7, 1996 to April 16, 1997,
July 18, 1998 to May 29, 1999 and July 14 to November 19, 2007. According to OWCP the
excluded periods were not covered by signed CA-1032 forms. With regard to waiver, it found
that appellant was at fault in creating the overpayment and was not entitled to waiver. Deducting
the court ordered restitution of $60,000.00, the overpayment amount was $342,159.58.
By letter dated June 10, 2009, appellant requested a hearing on the overpayment issues.
On August 17, 2009 he requested reconsideration of the March 30, 2009 OWCP decision. A
hearing before an OWCP hearing representative was held on August 31, 2009 on the issues
raised in the March 30 and May 13, 2009 decisions, as well as preliminary overpayment
determination.
In a decision dated November 23, 2009, the hearing representative amended the forfeiture
decision. The hearing representative found that there was no forfeiture of compensation based
on the February 20, 2009 CA-1032 forms, as there was no evidence appellant operated his
charter boat business during the 15 months covered by the form. The amount of the
overpayment was reduced to $303,724.66. The hearing representative denied waiver as
appellant was at fault in creating the overpayment. In addition, the hearing representative
affirmed the termination of compensation for wage loss.
By decision dated May 18, 2010, OWCP’s Branch of Hearings and Review stated that the
November 23, 2009 decision was issued prematurely and was being vacated. In a decision dated
June 22, 2010, the hearing representative indicated that this decision was superseding the
November 23, 2009 decision. The findings with respect to forfeiture, overpayment, waiver and
termination of compensation remained the same as in the November 23, 2009 decision.2
LEGAL PRECEDENT -- ISSUE 1
Section § 8106(b) of FECA provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment pr[e] self-employment, by affidavit or otherwise, in
the manner and at times the Secretary specifies.… An employee who-(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;

2

The November 23, 2009 decision had compromised the principal of the overpayment based on the interest rate
on debts owed to the government.

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forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered … under section 8129 of this title, unless
recovery is waived under that section.”3
Before OWCP can declare a forfeiture of compensation, it must establish that appellant
has received earnings from his own employment, not from passive investment in business
ventures.4 An individual can be subjected to the forfeiture provision of 5 U.S.C. § 8106(b) if he
or she knowingly failed to report employment or earnings. The term knowingly, as defined in
OWCP’s implementing regulations, means with knowledge, consciously, willfully or
intentionally.5 OWCP has the burden of proof to establish that a claimant knowingly omitted or
understated earnings.6 To meet this burden, it is required to examine closely appellant’s
activities and statements. OWCP may meet this burden without an admission by the claimant if
the circumstances of the case establish that he failed to reveal fully and truthfully the full extent
of his employment activities and earnings.7
Section 10.5(g) of OWCP’s regulations defines earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”
ANALYSIS -- ISSUE 1
OWCP found that appellant had forfeited compensation based on the failure to disclose
employment activity on the CA-1032 forms he submitted. The period covered by each form is
15 months and the form advises a claimant to report all employment activity for which any salary
wages or income were received, as well as any self-employment or involvement in a business
enterprise, even if he was not paid. The evidence from the Maryland Department of Natural
Resources indicates that commencing May 1, 1993 appellant had bookings in a charter fishing
business under his license number, with bookings in each year except 1995 and 2003. According
3

5 U.S.C. § 8106(b).

4

Anthony V. Knox, 50 ECAB 402 (1999).

5

20 C.F.R. § 10.5(n).

6

See F.H., Docket No. 07-1379 (issued November 24, 2008).

7

Terry A. Geer, 51 ECAB 168 (1999).

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to a July 30, 2007 interview from the OIG report, he indicated that he did engage in charter
fishing activity through the “early summer” of 2006. Although appellant submitted a document
asserting there was no activity in 1999 and 2004, the bookings from the Maryland Department of
Natural Resources show activity in both those years.
On the following CA-1032 forms appellant did not report any employment activity in a
fishing charter business: June 22, 1993, June 28, 1994, August 2, 1995, June 6, 1996, July 17,
1998, August 30, 2000, August 16, 2001, August 3, 2002, August 12, 2003, July 24, 2004,
September 21, 2005, August 2, 2006 and July 13, 2007. For the 15-month period covered by
each of these forms, the evidence of record shows some employment activity with respect to a
fishing charter enterprise. The booking information from Maryland shows bookings in each of
the 15-month periods except for July 13, 2007. But in this regard the Board notes that appellant
acknowledged to the OIG investigators that he continued to operate the charter business until
early summer 2006. Since the period covered by the July 13, 2007 CA-1032 form commenced
April 13, 2006, the evidence supports a finding that there was employment activity during the
period covered by the July 13, 2007 CA-1032 form.
The evidence from the OIG investigative report establishes that appellant charged fees to
clients for his fishing charter services. Appellant also submitted documents acknowledging that
he received earnings from his fishing charter activity. According to appellant’s representative,
such earnings were de minimus and therefore did not have to be reported to OWCP. But
appellant submitted a handwritten document noting earnings of more than $6,000.00 in 1998,
2001 and 2002. The OIG report noted that he charged significant fees for each charter fishing
booking. The Board has held that a claimant must report any remuneration from such activity as
the occasional sales of dogs by a breeder or remuneration such as free housing or living
expenses.8 There evidence does not establish the earnings in this case were of a de minimus
nature or that no reporting was required.
The Board finds that the evidence establishes that appellant omitted earnings on the
above-dated CA-1032 forms. The next question is whether the omission was “knowingly” made.
The CA-1032 form has clear and explicit language regarding the necessity to report any
earnings, as well as a strongly worded certification clause regarding the truth of the statements
offered.9 The OIG report indicated that appellant had acknowledged that he failed to truthfully
report his employment activity. The plea agreement that he signed on June 12, 2008 refers to the
September 21, 2005 CA-1032 form as “one example” of a false submission that appellant
“knowingly and willingly” executed. Appellant’s representative has argued that appellant
suffered from a diminished mental concentration which may have affected his ability to
comprehend the requirements of the CA-1032 form. There is, however, no probative supporting
evidence. A report dated January 8, 2010 from Dr. Joseph Marnell, a psychiatrist, stated that
appellant had struggled with depression and agitation since the employment injury. But he did
not indicate that appellant would have difficulty understanding the obligation to report earnings
as clearly stated on the CA-1032 forms he signed from 1993 to 2007. The record indicates that
appellant qualified for a fishing charter license and continued to have the mental capacity to meet
8

See also James M. Steck, 49 ECAB 134 (1997); see Barbara L. Kanter, 46 ECAB 165 (1994).

9

See T.L., Docket No. 10-2141 (issued July 1, 2011).

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the license renewal requirements. The plea agreement notes that he reported to the U.S. Coast
Guard that he was in good health with no medical restrictions or limitations. As noted, the Board
looks at the circumstances of the particular case on the issue of a knowing omission of earnings.
Based on the evidence of record, the Board finds that appellant knowingly omitted earnings.
Pursuant to 5 U.S.C. § 8106(b), his compensation is forfeited for any period covered by the
CA-1032 forms.
On appeal, appellant states that the applicable statute is 5 U.S.C. § 8105, rather than 5
U.S.C. § 8106, contending section 8105 applies to employees who are totally disabled, while
section 8106 applies to partial disability only. The Board has considered this argument in prior
decisions. As the Board noted in Sherwood T. Rodrigues,10 the construction of 5 U.S.C.
§ 8106(b) to include total disability is appropriate. The inclusion of section 8106(b) under a
heading of partial disability is simply a recognition that normally an employee that was totally
disabled would not have any employment earnings to report and therefore a provision regarding
such earnings would be meaningless. The Board finds that 5 U.S.C. § 8106(b) is applicable in
this case.
The Board finds that OWCP properly determined that appellant forfeited compensation
for the 15-month periods covered by the CA-1032 forms signed on June 22, 1993, June 28, 1994,
August 2, 1995, June 6, 1996, July 17, 1998, August 30, 2000, August 16, 2001, August 3, 2002,
August 12, 2003, July 24, 2004, September 21, 2005, August 2, 2006 and July 13, 2007. It is
noted that the forms do not cover the periods June 7, 1996 to April 16, 1997 and July 18, 1998 to
May 29, 1999.
LEGAL PRECEDENT -- ISSUE 2
If a claimant has any earnings during a period covered by a Form CA-1032 which he
knowingly fails to report, he is not entitled to compensation for any portion of the period covered
by the report.11 Where the right to compensation is forfeited, OWCP shall recover any
compensation already paid for the period of forfeiture.12
ANALYSIS -- ISSUE 2
The period of the forfeiture in this case, as noted above, was March 22, 1992 through
July 13, 2007 (excluding the periods June 7, 1996 to April 16, 1997 and July 18, 1998 to
May 29, 1999). OWCP originally determined that the overpayment was $402,149.58, which
included compensation paid from November 20, 2007 to February 20, 2009. The amount was
reduced by $60,000.00 based on the plea agreement with the U.S. Attorney’s office. Since the
hearing representative found that compensation of $38,424.92 paid for the period November 20,
2007 to February 20, 2009 was not included in the overpayment, the amount was reduced to

10

37 ECAB 617 (1986).

11

Cheryl Thomas, 55 ECAB 610, 617 (2004); Louis P. McKenna, Jr., 46 ECAB 328 (1994).

12

20 C.F.R. § 10.529(b).

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$303,724.66. Based on the evidence of record, this represents the compensation paid during the
forfeiture period.
Appellant argues that the plea agreement signed by him on June 12, 2008, which
obligated him to pay $60,000.00 with respect to the criminal action brought by the U.S.
Attorney’s Office, is a global settlement that represents the entire amount owed to the U.S.
OWCP procedures recognize that a court order stating the restitution amount “will be in full
satisfaction of the debt owed to the United States (a ‘Global Settlement’)” will take precedence
over OWCP debt collection process.13 But in this case the agreement does not provide explicit
language stating that the restitution was in full satisfaction of the debt owed to the United States.
The agreement states that it does not bind federal, state or local prosecuting authority other than
the U.S. Attorney’s Office.14 In the absence of clear and specific language that, the plea
agreement was intended to be a global settlement, the Board finds that the overpayment amount
is $303,724.66.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of FECA15 provides: “Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of [FECA] or would be against equity
and good conscience.”16 Waiver of an overpayment is not permitted unless the claimant is
“without fault” in creating the overpayment.17
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault
if he or she has done any of the following: “(1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.”
ANALYSIS -- ISSUE 3
In the present case, appellant was at fault under the third standard noted above as he
accepted payments he knew or should have known were incorrect. He had received and signed
the CA-1032 forms which advised him that the information requested was necessary to
determine whether he was entitled to continuing compensation benefits or whether his benefits
should be adjusted. Appellant had been advised on June 14, 1991, when his claim was accepted,

13

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.300.18
(May 2004).
14

See Joan Ross 57 ECAB 694 (2006).

15

Supra note 1.

16

5 U.S.C. § 8129(b).

17

Norman F. Bligh, 41 ECAB 230 (1989).

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that he was not entitled to receive compensation during a period he had worked and must return
any payment covering a period during which he had worked.
The Board has found that appellant knowingly omitted earnings on the CA-1032 forms.
Appellant therefore knew or should have known that the compensation payments he received
should have been adjusted and were incorrect. Since he was at fault in creating the overpayment,
he is not entitled to waiver.
LEGAL PRECEDENT -- ISSUE 4
Section 8148 of FECA, states, in part:
“(a) Any individual convicted of a violation of section 1920 of Title 18 or any
other Federal or State criminal statute relating to fraud in the application for or a
receipt of any benefit under [FECA], shall forfeit (as of the date of such
conviction) any entitlement to any benefit such individual would otherwise be
entitled to under [FECA] for any injury occurring on or before the date of such
conviction. Such forfeiture shall be in addition to any action the Secretary may
take under section 8106 or 8129.”
Section 10.17 of the implementing federal regulations provide, as follows:
“When a beneficiary either pleads guilty to or is found guilty on either Federal or
State criminal charges of defrauding the Federal Government in connection with a
claim for benefits, the beneficiary’s entitlement to any further compensation
benefits will terminate effective the date either the guilty plea is accepted or a
verdict of guilty is returned after trial.”18
OWCP procedures require that, to support termination or suspension of benefits under 5
U.S.C. § 8148 the case record must contain: a copy of the indictment or information; a copy of
the plea agreement, if any; a copy of the document containing a guilty verdict; and/or a copy of
the court’s docket sheet. Further, this evidence must establish: (1) the individual was convicted;
and (2) the conviction is related to the claim for or receipt of benefits under FECA.19 The
effective date of termination in fraud cases under section 8148(a) is the date of conviction, which
is the date the guilty plea is accepted or a verdict of guilty is returned after trail.20 Due to the
nature of a termination involving fraud, no pretermination notice is required before issuing a
final decision.21

18

20 C.F.R. § 10.17.

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1440.12(d) (March 1997).

20

20 C.F.R. § 10.17.

21

Jorge E. Sotomayer, 52 ECAB 105 (2000).

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ANALYSIS -- ISSUE 4
The evidence in this case establishes that appellant was charged with violating 18 U.S.C.
§ 1920 regarding false statements to obtain compensation benefits. The guilty plea to one count
of violating the statute was accepted by the U.S. District Court on July 30, 2008. Pursuant to 5
U.S.C. § 8148 and 20 C.F.R. § 10.17, appellant is not entitled to further compensation after that
date. The Board accordingly finds that OWCP properly terminated compensation effective
July 30, 2008.
CONCLUSION
The Board finds that OWCP properly found appellant forfeited his compensation for the
period March 22, 1992 through July 13, 2007 (excluding the periods June 7, 1996 to April 16,
1997 and July 18, 1998 to May 29, 1999), an overpayment of $303,724.66 was created, OWCP
properly denied waiver of the overpayment and OWCP met its burden of proof to terminate
compensation effective July 30, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 22, 2010 is affirmed.
Issued: May 22, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
LOUISVILLE, KY, Employer
__________________________________________

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

Docket No. 10-2116
Issued: July 21, 2011

Case Submitted on the Record

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

JURISDICTION
On August 12, 2010 appellant filed a timely appeal from an August 6, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective October 31, 2008; and (2) whether appellant established that he
had any continuing employment-related disability or condition after that date due to his accepted
January 11, 2004 employment injury.

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5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 11, 2004 appellant, then a 26-year-old clerk, filed a traumatic injury claim
alleging that he sustained a back strain due to lifting a heavy mail tray at work. OWCP initially
accepted his claim for back sprain and subsequently for disc protrusion and annular tear.
Appellant initially sought treatment from Dr. George O. Nobile, Board-certified in
emergency medicine. Dr. Nobile submitted reports to the record through May 16, 2007.
On July 3, 2007 appellant was examined by Dr. Jeffrey W. Berg, a Board-certified
anesthesiologist, who noted appellant’s three-year history of lower back and right leg pain that
began after lifting mail at work and reviewed appellant’s social and medical history. Dr. Berg
stated that a magnetic resonance imaging (MRI) scan revealed a two to three millimeter (mm)
broad-based subligamentous disc protrusion suggestive of bilateral S1 nerve root irritation and
some mild proximal foraminal narrowing bilaterally due to facet degenerative changes. Upon
examination, he noted that appellant’s back had mild paraspinous tenderness without erythema,
edema or masses. Dr. Berg diagnosed appellant with lower back and right leg pain, secondary to
L5-S1 disc protrusion, facet arthropathy, mild foraminal narrowing and bilateral S1 nerve root
irritation. In a July 25, 2007 report, he reevaluated appellant and noted that appellant received an
epidural injection approximately three weeks prior, which offered him some substantial overall
improvement in symptoms and administered another epidural injection.
In a letter dated October 4, 2007, OWCP requested a current narrative medical report
from appellant’s physician regarding his accepted work condition. Appellant resubmitted a
November 14, 2006 report by Dr. Richard T. Sheridan, a Board-certified orthopedic surgeon,
who reviewed a February 2004 MRI scan report and observed a subligamentous disc herniation
at L5-S1. A February 23, 2004 computerized axial tomography (CAT) scan of appellant’s
lumbar spine also revealed a small disc bulge or protrusion at L5-S1.
In a February 19, 2008 follow-up report, Dr. Berg reevaluated appellant for his back
condition and stated that appellant felt 50 to 60 percent relief in his symptoms after receiving his
last epidural injection.
On January 31, 2008 OWCP referred appellant to Dr. Stanley Collis for a second opinion
evaluation. In an April 25, 2008 report, Dr. Collis reviewed the statement of accepted facts and
appellant’s medical history. He noted that appellant was lifting a big bag at work when he felt a
sudden pain in his back. Appellant reported that he did not have back problems prior to this
employment incident. Dr. Collis also pointed out that a February 10, 2004 CAT scan showed a
bulge at L5-S1. Upon examination, he observed normal curvature in appellant’s back with no
listing or guarding, good motion and reflexes and no evidence of muscle weakness in the
extremities. Appellant’s straight leg raise test and lasegue sign were negative bilaterally.
Dr. Collis ultimately opined that appellant’s low back strain and L5-S1 center disc protrusion
had resolved and that appellant did not have any work-related disability. He explained that
appellant’s examination and x-rays were not remarkable and that appellant would have some
obvious objective findings if he had as many problems as he complained about for four years.

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On May 8, 2008 OWCP provided Dr. Berg with Dr. Collis’ report for review and
comment. In a June 11, 2008 note, Dr. Berg reported that appellant complained of significantly
increased right leg and lower back pain. He reviewed the report of Dr. Collis and recommended
that his finding that appellant’s conditions had resolved be confirmed with an MRI scan. In a
June 20, 2008 MRI scan report, Dr. Beth Dubose, a Board-certified diagnostic radiologist,
compared the test results to the previous February 2004 MRI scan. She observed that the
vertebral bodies and marrow signal intensity were within normal limits. Dr. Dubose opined that
appellant had a three to four mm central disc protrusion with annular tear at L5-S1 that was
slightly increased from the previous examination. She also noted bilateral facet arthropathy and
mild left posterolateral disc bulging.
OWCP found a conflict of medical opinion between Dr. Berg and Dr. Collis regarding
whether appellant continued to have residuals of his accepted work injury. On June 9, 2008 it
referred him to Dr. Martyn Goldman, a Board-certified orthopedic surgeon, for an impartial
evaluation. In a July 31, 2008 report, Dr. Goldman reviewed the statement of accepted facts and
appellant’s medical records. He stated that appellant complained of lower back and right lower
extremity pain and related the pain to a January 11, 2004 employment incident when he lifted a
package of mail weighing 70 to 75 pounds. Upon examination, Dr. Goldman observed
tenderness to light stroking in the midline low lumbar area of appellant’s back and on the right
sacroiliac joint and moderate pes planus bilaterally in appellant’s lower extremities. Appellant’s
Trendelenburg test and straight leg raise test in the seated position were negative, but his straight
leg raise test in the supine position and femoral stretch test resulted in complaints of low back
pain. Appellant was able to walk without a limp and stand on his heels and toes, although he
complained of low back pain. Dr. Goldman diagnosed degenerative disc disease L5-S1 with
some evidence of symptom magnification and complaints of low back pain. He stated that
appellant’s subjective complaints outweighed the objective findings and that appellant’s current
condition was not causally related to the accepted injury. Dr. Goldman concluded that
appellant’s accepted work-related back strain had resolved and that his current L5-S1 disc
protrusion and annular tear were a result of his underlying degenerative condition and not
causally related to the January 11, 2004 injury. He found that appellant was capable of modified
employment or light duty as long as it was sedentary and did not involve lifting 10 to 15 pounds
or bending forward with the knees straight.
On August 12, 2008 the employing establishment submitted an investigative
memorandum and requested that OWCP terminate appellant’s claim on the grounds that he was
not disabled and could return to work. The report noted that video surveillance of appellant
during the period June 9 to July 7, 2008 showed him walking up to one mile, getting in and out
of motor vehicles and going shopping without apparent discomfort on multiple occasions. The
report included an interview with Dr. Berg, appellant’s treating physician, who reviewed the
surveillance video and stated that the video showed that appellant was not disabled.
In a letter dated September 18, 2008, OWCP proposed to terminate appellant’s
compensation benefits based on Dr. Goldman’s report. It found that Dr. Goldman attributed
appellant’s complaints of back pain to a degenerative condition and concluded that appellant no
longer had a disability or residuals due to his accepted January 11, 2004 employment injury.

3

Appellant responded by submitting a September 23, 2008 medical report by Dr. Berg.
He stated that his symptoms were ongoing and increased over the last several weeks. Dr. Berg
noted a recent MRI scan which showed that appellant’s L5-S1 disc protrusion may be slightly
enlarged from his previous MRI scan. In an October 16, 2008 medical report, he administered
another epidural shot.
By decision dated October 31, 2008, OWCP finalized the termination. It concluded that
the weight of the medical evidence rested with the opinions of Drs. Goldman and Collis and that
Dr. Berg’s September 23 and October 16, 2008 medical reports did not outweigh the objective
evidence submitted by the referee physician.
On December 20, 2008 appellant, through his representative, requested reconsideration.
He contended that appellant’s employing establishment began investigating his claim in
retaliation for appellant’s successful, race-based equal employment opportunity claim. Appellant
also submitted additional medical evidence. In a September 24, 2008 medical slip, Dr. Berg
stated that appellant was seen in his office with complaints of continuous lower back and
intermittent leg pain. He reported that an MRI scan of the lumbar spine revealed disc protrusion
that was probably work related.
In a November 21, 2008 letter, Dr. Berg stated that he first examined appellant on July 3,
2007 for lower back and right leg pain that began after a work-related injury. He noted that an
MRI scan of the lumbar spine revealed a two to three mm broad based subligamentous disc
protrusion at L5-S1, small annular tearing, mild thecal sac effacement with suggestions of S1
nerve root irritation and degenerative disc changes. Appellant further resubmitted the June 26,
2008 MRI scan report.
By decision dated February 24, 2009, OWCP denied modification of its October 31, 2008
termination decision.
In a letter dated August 8, 2009, appellant, through his representative, again requested
reconsideration, alleging that his condition had not changed since it was initially accepted. In a
July 16, 2009 medical report, Dr. Berg stated that appellant did not have any complaints of back
pain or documented abnormal pathology until his January 11, 2004 work-related injury and that
appellant’s lower back pain was significant. An MRI scan also revealed a two to three mm broad
based subligamentous disc protrusion at L5-S1, small annular tearing, mild thecal sac effacement
with suggestion of S1 nerve root irritation and degenerative disc changes. Dr. Berg further stated
that subsequent imaging revealed that not only was the initial injury still present but it had
worsened, as noted by the enlargement in the size of the disc protrusion. He explained that
appellant may have injured himself as a result of his employment and that his condition had
clearly not resolved in respect to the initial injury.
In a December 4, 2009 decision, OWCP denied modification of its termination decision
on the grounds that Dr. Goldman’s referee report, which did not support that appellant was still
disabled due to his accepted lumbar conditions, was the weight of the medical evidence and the
new opinion from Dr. Berg was insufficient to overcome the weight of the medical evidence
because he essentially repeated his earlier findings and conclusions.

4

On December 31, 2009 appellant submitted a request for reconsideration. He pointed out
that there was no medical evidence demonstrating that he had a preexisting back condition prior
to the January 11, 2004 work injury. In a letter dated January 22, 2010, OWCP denied
appellant’s request for reconsideration because he did not submit any new and relevant evidence.
On February 17, 2010 appellant submitted a request for reconsideration, a personal
statement and Dr. Sheridan’s November 14, 2006 second opinion evaluation report. In an
April 9, 2010 decision, OWCP denied appellant’s request for reconsideration on the grounds that
he did not submit any new and relevant evidence.
In an undated letter, appellant requested reconsideration and submitted additional medical
evidence. In a May 19, 2010 medical report, a nurse practitioner and Dr. Nobile, Board-certified
in emergency medicine, provided a history of injury and noted appellant’s complaints of lower
back and right leg pain and numbness. Dr. Nobile reported that an April 20, 2010 MRI scan
revealed a disc desiccation and three to four mm broad-based disc protrusion with annular tear at
L5-S1. Upon examination, he observed moderate tenderness to palpation in appellant’s lumbar
area and right paralumbar region with mild muscle spasm, normal range of motion and no
evidence of trauma in appellant’s extremities. Dr. Nobile diagnosed appellant with lumbar
strain, radiculopathy lumbar and lumbar disc protrusion with annular tear. In a June 3, 2010
handwritten medical note, he confirmed that appellant was being treated for work injuries he
sustained in January 2004. Dr. Nobile noted that an MRI scan revealed lumbar disc protrusion
with an annular tear or fissure and disc desiccation at L5-S1. He opined that appellant would
likely always have pain, which could affect his ability to work.
In an April 20, 2010 MRI scan report, Dr. Dubose noted that the height of appellant’s
vertebral bodies and conus medullaris were normal and unremarkable. She also observed disc
desiccation and a three to four mm broad-based central disc protrusion at appellant’s L5-S1,
which mildly effaced the ventral thecal sac and approached the traversing S1 nerve roots.
Dr. Dubose further reported a probable small annular tear or fissure along the dorsal margin of
the disc, mild ligamentum flavum hypertrophy and facet arthropathy.
In a decision dated August 6, 2010, OWCP denied modification of OWCP’s October 31,
2008 termination decision. It determined that the medical evidence did not refute the second
opinion and referee reports, which concluded that his conditions had resolved.
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 by proving that the disability has ceased or
lessened.2 It may not terminate compensation without establishing that the disability ceased or
that it was no longer related to the employment injury.3 As part of its burden of proof to

2

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

I.J., 59 ECAB 408 (2008); Jaja K. Asaramo, 55 ECAB 200 (2004); Elsie L. Price, 54 ECAB 734 (2003).

5

terminate compensation, OWCP must furnish rationalized medical opinion evidence based on a
proper factual and medical background.4
Section 8123(a) of FECA provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.5 If the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist must be given special weight so long as it is sufficiently well rationalized and based on
proper factual background.6
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for back sprain, disc protrusion and annular tear as a
result of a January 11, 2004 work injury when he lifted a heavy container filled with mail. On
October 31, 2008 it terminated his compensation benefits. OWCP determined that a conflict in
medical evidence existed between the opinions of Dr. Berg, appellant’s treating physician, and
Dr. Collis, OWCP’s referral physician, regarding whether appellant continued to suffer residuals
of his January 11, 2004 work injury. It then properly referred appellant to Dr. Goldman, Boardcertified in orthopedic surgery, for an impartial evaluation.
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation. The report of the impartial medical specialist, Dr. Goldman, is not sufficient to
constitute the weight of the medical evidence.
In a July 31, 2008 medical report, Dr. Goldman provided a history of injury and noted
appellant’s complaints of low back pain. He also extensively reviewed appellant’s medical
history provided by other medical reports of record. Upon examination of appellant’s back,
Dr. Goldman observed tenderness to light stroking in the midline low lumbar area but none on
the left side and the greater troachanter or sciatic notche. An examination of appellant’s lower
extremities revealed moderate pes planus bilaterally. The Trendelenburg test and straight leg
raise test in the seated position were both negative and the straight leg raise test in the supine
position resulted in low back pain. Dr. Goldman ultimately diagnosed appellant with
degenerative disc disease L5-S1 with some evidence of symptom magnification. He further
stated that appellant’s subjective complaints outweighed his objective findings and that
appellant’s current condition was not causally related to the original injury. Dr. Goldman
advised that appellant’s lumbar strain had resolved and that the current disc protrusion and
annular tear were not related to the original work injury, but resulted from appellant’s
degenerative disc disease, which preexisted the January 11, 2004 employment incident.

4

See J.M., 58 ECAB 478 (2007); Gewin C. Hawkins, 52 ECAB 242 (2001); Del K. Rykert, 40 ECAB 284 (1988).

5

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003); Furman G. Peake, 41 ECAB 361, 364 (1990);
S.T., Docket No. 08-1675 (issued May 4, 2009).
6

Manuel Gill, 52 ECAB 282 (2001); Nathan L. Harrell, 41 ECAB 401, 407 (1990); B.P., Docket No. 08-1457
(issued February 2, 2009).

6

The Board finds that, as Dr. Goldman did find that appellant still had current findings
related to his low back injury and he in fact found that appellant still had residuals of the
accepted conditions of disc protrusion and annual tear, his report does not support a finding that
these conditions had resolved.
While Dr. Goldman opined that appellant’s accepted disc protrusion and annual tear did
not arise from the accepted employment injury, but rather were due to a degenerative condition,
this issue had already been determined by OWCP. OWCP had already accepted that appellant
sustained these conditions as a result of the employment injury. Dr. Goldman offered no medical
explanation as to why these accepted conditions, which had not resolved, would no longer be
causally related to the accepted employment injury.7
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the August 6, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 21, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

In light of the Board’s disposition of the first issue, the second issue of continuing disability is moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY, AIR
)
DEFENSE CENTER, Fort Bliss, TX, Employer
)
___________________________________________ )
N.B., Appellant

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

Docket No. 07-1622
Issued: November 26, 2007

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 May 30, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ schedule award decision dated September 12, 2006. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of her claim for a
schedule award.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a four percent impairment of her left upper extremity for which she received a schedule award.
FACTUAL HISTORY
On January 23, 2002 appellant, then a 61-year-old “milper” technician filed a traumatic
injury claim alleging that she experienced pain in her left shoulder on January 16, 2002 in the
performance of duty. The Office accepted the claim for rotator cuff syndrome and paid
appropriate compensation benefits. The Office also authorized physical therapy and diagnostic
testing. Appellant continued to work with restrictions.

On March 8, 2006 appellant requested a schedule award. By letter dated March 31, 2006,
the Office advised her that it was unable to process her claim for a schedule award as additional
information was needed, including verification from her physician that she had reached
maximum medical improvement. The Office advised appellant to submit medical evidence in
support of her claim based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (5th ed. 2001) (A.M.A., Guides).
In an April 17, 2006 report, Dr. Alvaro A. Hernandez, a Board-certified orthopedic
surgeon and treating physician, noted that appellant was still experiencing comfort in her left
shoulder. He advised that a physical examination revealed “pain at the extremes, pain with
backward flexion, tenderness about the rotator cuff tendons.”
On May 22, 2006 the Office referred appellant for a second opinion examination to
Dr. Randy Pollet, a Board-certified orthopedic surgeon, to determine appellant’s current status
and prospects for returning to work, her permanent work restrictions and an impairment rating.
In a June 22, 2006 report, Dr. Pollet utilized the A.M.A., Guides, noted appellant’s
history of injury and treatment and conducted a physical examination. He provided findings for
range of motion which included forward flexion of 160 degrees or one percent, backward
elevation of 40 degrees or one percent, abduction of 140 degrees or two percent, adduction of 40
degrees or zero percent, internal rotation of 80 degrees or zero percent, external rotation of 90
degrees or zero percent, and extension of 30 degrees or one percent. Dr. Pollet opined that
appellant had an impairment of five percent of the left shoulder and that her date of maximum
medical improvement was June 22, 2006.
In a July 28, 2006 report, an Office medical adviser utilized the A.M.A., Guides. He
referred to Figures 16-37, 16-40 and 16-461 and determined that appellant had an impairment of
four percent to the left arm. The medical adviser noted flexion of 160 degrees equated to one
percent, extension of 30 degrees equated to one percent, abduction of 140 degrees equated to two
percent. He also noted that adduction of 40 degrees, internal rotation of 80 degrees, and external
rotation of 90 degrees equated to zero percent. The medical adviser concluded that appellant had
four percent impairment based on loss of range of motion. He indicated that the difference in his
report compared to Dr. Pollet’s report, arose because he did not consider shoulder extension and
backward elevation as separate movements and that he believed they were the same. The
medical adviser indicated that appellant had reached maximum medical improvement on
June 22, 2006.
In an August 16, 2006 report, Dr. Hernandez advised that appellant experienced shoulder
discomfort. He noted the prior impairment estimate of 5 percent, but now found 10 percent
impairment. Dr. Hernandez explained that his impairment was based on the A.M.A., Guides.
He opined that appellant had 140 degrees of flexion, 40 degrees of extension, adduction of 30
degrees, abduction of 140 degrees, internal rotation of 40 degrees, and external rotation of 70
degrees, which was equal to a 10 percent impairment rating to the upper extremity.

1

A.M.A., Guides 476, 477, 479.

2

On September 12, 2006 the Office granted appellant a schedule award for a four percent
permanent impairment of the left upper extremity. The award covered a period of 12.48 weeks
from June 22 to September 17, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.4
ANALYSIS
On August 16, 2006 Dr. Hernandez noted that he had utilized the A.M.A., Guides and
provided range of motion findings. His findings included 140 degrees of flexion, 40 degrees of
extension, adduction of 30 degrees, abduction of 140 degrees, internal rotation of 40 degrees and
external rotation of 70 degrees. Dr. Hernandez opined that appellant had an impairment of 10
percent to the upper extremity. However, he failed to properly explain how he calculated the
impairment rating under the respective tables as set forth in the A.M.A., Guides. As such,
Dr. Hernandez’ impairment rating does not conform to the A.M.A., Guides. It is well
established that, when the attending physician fails to provide an estimate of impairment
conforming to the protocols of the A.M.A., Guides, his opinion is of diminished probative value
in establishing the degree of any permanent impairment. In such cases, the Office may rely on
the opinion of its medical adviser to apply the A.M.A., Guides to the findings reported by the
attending physician.5
In a July 28, 2006 report, the Office medical adviser applied the findings of Dr. Pollet,
the second opinion physician, to the fifth edition of the A.M.A., Guides. Dr. Pollet referred to
Table 16-406 and noted that flexion of 160 degrees was equal to a one percent impairment of the
upper extremity and that extension of 30 degrees was equal to a one percent impairment of the
upper extremity. Regarding abduction, he referred to Table 16-437 and noted that 140 degrees of

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

A.M.A., Guides (5th ed. 2001).

5

See John L. McClanic, 48 ECAB 552 (1997); see also Paul R. Evans, 44 ECAB 646, 651 (1993).

6

A.M.A., Guides 476.

7

Id. at 477.

3

abduction equated to two percent.8 The Office medical adviser also noted that adduction of 40
degrees was equal to zero percent. Regarding internal rotation, he referred to Figure 16-469 and
determined that 80 degrees of internal rotation and 90 degrees of external rotation were equal to
impairments of zero percent. The Office medical adviser concluded that appellant had four
percent impairment. He also noted that he did not include an additional impairment of one
percent for “backward elevation,” as provided by Dr. Pollet, since it was the same as shoulder
extension. The Office medical adviser explained that they were not considered separate
movements. The Board notes that the A.M.A., Guides allow findings for flexion and extension
of the shoulder, but do not contain any provision for rating “backward elevation.”10
The Board finds that there is no other medical evidence of record, based upon a proper
application of the A.M.A., Guides, to establish that appellant has more than a four percent
permanent impairment of the left upper extremity. Accordingly, the Board finds that appellant
has no more than a four percent permanent impairment of the right upper extremity.
On appeal, appellant alleged that she was entitled to a 15 percent schedule award based
upon the report of her physician. However, as noted, the record establishes that appellant is
entitled to no more than a four percent impairment of the left upper extremity.11
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained more than a four percent permanent impairment of her left upper extremity, for which
she received a schedule award.

8

The Board notes that he actually indicated Figure 16-37; however, it appears to be a typographical error, as his
calculation of two percent matches the 140 degrees for abduction in Figure 16-43.
9

A.M.A., Guides 479.

10

See A.M.A., Guides 476, Figure 16-40.

11

The Board notes that subsequent to the Office’s September 12, 2006 decision, appellant submitted additional
evidence. The Board has no jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c);
James C. Campbell, 5 ECAB 35 (1952).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2006 is affirmed.
Issued: November 26, 2007
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
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cody, WY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0814
Issued: January 26, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 3, 2020 appellant filed a timely appeal from a September 20, 2019 merit decision
and October 31, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish more than
20 percent permanent impairment of the left thumb, for which he previously received a schedule
award; and (2) whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 11, 2019 appellant, then a 60-year-old maintenance mechanic, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, his left thumb was amputated when he
grabbed a chain on a door to steady himself and a ladder after being startled by an employee
entering a garage while in the performance of duty. He stopped work on the date of injury. On
January 10, 2019 Dr. Stephen F. Emery, an attending Board-certified orthopedic surgeon,
performed a revision amputation of the left thumb and an incision and drainage of the left thumb
with primary repair with a two-centimeter total length incision.
In a January 9, 2019 x-ray report, Dr. Travis S. Graham, a Board-certified diagnostic
radiologist, noted that appellant sustained an amputation-type injury of the left thumb along the
distal tuft with both soft tissue and bony components. There was no radiopaque foreign body
appreciated. There were signs of osteoarthritic change at the first carpometacarpal joint and
articulation of the scaphoid with the trapezium and trapezoid. There was also some nonspecific
cystic change involving the carpus.
On January 31, 2019 OWCP accepted appellant’s claim for partial traumatic
transphalangeal amputation of the left thumb, initial encounter.
Thereafter, OWCP received an April 1, 2019 bilateral thumb x-ray report by Dr. Greg H.
Cross, a Board-certified diagnostic radiologist. Dr. Cross indicated that the x-ray was being
compared to the findings of a January 9, 2019 x-ray. He provided an impression of partial
amputation of the left thumb distal phalanx.
Appellant filed a claim for a schedule award (Form CA-7) dated January 25, 2019, and
received by OWCP on August 1, 2019. In support of his claim, he submitted an April 1, 2019
medical report by Dr. Emery. Dr. Emery noted that appellant returned status post left thumb
amputation. He also noted that his wound was doing well. Dr. Emery noted that appellant’s
thumbs had been x-rayed again. He provided assessments of traumatic amputation of the thumb
tip, type 4 (partial loss of terminal phalanx, pulp, and nail including lunular) and partial traumatic
transphalangeal amputation of the right thumb, subsequent encounter. Referring to Figure 15-4
on page 426 of the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides),2 Dr. Emery graded the amputation of the proximal
phalanx of the left thumb against the normal uninvolved thumb, which yielded in 40 percent
permanent impairment of the finger due to traumatic amputation. He referred to Table 15-12 on
page 422 and noted that 40 percent digit permanent impairment corresponded to 16 percent hand
permanent impairment, which represented 14 percent left upper extremity permanent impairment,
which converted to nine percent whole person impairment. Dr. Emery advised that, appellant was
able to return to his normal activities without restrictions. He released him to full activity as
tolerated.
On August 19, 2019 Dr. Jovito Estaris, a Board-certified occupational medicine physician,
serving as a district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and
the medical record, including Dr. Emery’s April 1, 2019 findings and a left thumb x-ray which
2

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

2

showed an amputation-type injury along the distal tuft with both soft tissue and bony components.
Referring to Figure 15-11 on page 458 of the A.M.A., Guides, he utilized the diagnosis-based
impairment (DBI) rating method and noted that appellant’s diagnosis of transphalangeal
amputation of the left thumb constituted 20 percent permanent impairment of the digit. The DMA
noted that there was no digital neuroma. He related that the range of motion (ROM) rating method
was not applicable. The DMA determined that appellant reached MMI on April 1, 2019, the date
of Dr. Emery’s impairment evaluation. He explained that the discrepancy between his and
Dr. Emery’s impairment ratings was due to the use of different figures. The DMA noted that
Dr. Emery used Figure 15-4 instead of Figure 15-11. He indicated that while both figures were
the same, Figure 15-4 included transverse sensory loss and Figure 15-11 was specific for thumb
amputation. The DMA related that appellant’s amputation was transphalangeal, specifically just
proximal to the tuft (as stated in the x-ray report), which represented 20 percent digit permanent
impairment. He further related that 40 percent digit permanent impairment was almost at the
interphalangeal (IP) joint. The DMA maintained that the amputation was not just above the IP
joint, but proximal to the tuft. He concluded that the correct digit impairment rating was 20
percent.
By decision dated September 20, 2019, OWCP granted appellant a schedule award for 20
percent permanent impairment of the left thumb. The award ran for 15 weeks from April 1 through
July 14, 2019 and was based on the August 19, 2019 impairment rating of DMA Dr. Estaris.
On October 11, 2019 appellant requested reconsideration. In an accompanying undated
statement, he contended that DMA Dr. Estaris’ opinion was not based on a complete review of the
medical records. Appellant asserted that he did not review a final x-ray which clearly supported a
40 percent digit impairment rating based on the A.M.A., Guides. He also asserted that the DMA
did not take into account his need for revision surgery.
Appellant submitted a September 30, 2019 letter in which Dr. Emery reviewed DMA
Dr. Estaris’ September 28, 2019 findings and disagreed that appellant had 20 percent permanent
impairment of the left thumb. He asserted that the DMA’s impairment rating was not based on a
review of all of the x-rays which showed a tuft amputation. Dr. Emery contended that his 40
percent left thumb digit permanent impairment rating was supported by the A.M.A., Guides.
Appellant also submitted a copy of Dr. Emery’s April 1, 2019 report. Additionally, he
submitted images from x-rays of his hands dated January 9 and April 1, 2019.
OWCP, by decision dated October 31, 2019, denied appellant’s request for reconsideration
of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

3

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.5 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).6 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.7
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.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish more than 20
percent permanent impairment of the left thumb, for which he previously received a schedule
award.
In support of his schedule award claim, appellant submitted an April 1, 2019 report from
Dr. Emery who found 40 percent digit permanent impairment of the left digit under the sixth
edition of the A.M.A., Guides for the diagnosis of traumatic amputation of the left thumb tip, type
4 (partial loss of terminal phalanx, pulp and nail including lunular). Referencing Figure 15-4 on
page 426 and Table 15-12 on page 422, he determined that appellant’s left thumb diagnosis yielded
40 percent permanent impairment of the left digit, or 16 percent impairment of the hand, 14 percent
impairment of the upper extremity, or nine percent whole person impairment.
OWCP properly routed Dr. Emery’s report to its DMA, Dr. Estaris.9 In an August 19, 2019
report, the DMA utilized the DBI rating method and found that under Figure 15-11 on page 458
of the A.M.A., Guides, appellant’s diagnosis of transphalangeal amputation of the left thumb
constituted 20 percent permanent impairment of the left digit. He noted that there was no digital
neuroma. The DMA also noted that the ROM rating method was not applicable. He determined
that appellant attained MMI as of April 1, 2019, the date of Dr. Emery’s impairment evaluation.
The DMA explained that the discrepancy between his and Dr. Emery’s impairment ratings was
5

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

6
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 2.808.6a (March 2017).
7

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

8

See supra note 6 at Chapter 2.808.6(f) (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

9

Supra note 8.

4

due to the figures used. He noted that Dr. Emery used Figure 15-4 instead of Figure 15-11. The
DMA indicated that while both figures were the same, Figure 15-4 included transverse sensory
loss and Figure 15-11 was specific for thumb amputation. He further indicated that appellant’s
amputation was transphalangeal, proximal to the tuft as demonstrated by x-ray which represented
20 percent digit permanent impairment, and not above the IP joint which corresponded to 40
percent digit permanent impairment.
The Board finds that the DMA’s opinion constitutes the weight of the medical evidence
with respect to the permanent impairment of appellant’s left thumb because he properly applied
the appropriate standards of the A.M.A., Guides.10
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.11
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.12
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.13 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.14 If the request is timely, but fails to meet at least one of the

10

See O.F., Docket No. 19-0986 (issued February 12, 2020); M.C., Docket No. 15-1757 (issued March 17, 2016)
(the only medical evidence that demonstrated a proper application of the A.M.A., Guides was the report of the DMA).
11

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
12
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
13

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
14

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

5

requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant filed a timely request for reconsideration on October 11, 2019, but he did not
establish that OWCP erroneously applied or interpreted a specific point of law, or advance a
relevant legal argument not previously considered by OWCP. He contended that DMA
Dr. Estaris’ opinion did not constitute the weight of the medical evidence as he did not review the
complete medical record including a final x-ray which clearly supported 40 percent left thumb
digit permanent impairment rating based on the A.M.A., Guides. Appellant also asserted that he
did not take into account his need for revision surgery. Appellant’s lay opinion on the medical
evidence is not relevant to the underlying schedule award issue which requires medical evidence
establishing a higher rating of permanent impairment.16 Accordingly, the Board finds that
appellant is not entitled to a review of the merits based on either the first or second requirements
under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. Appellant submitted a new September 30, 2019 letter from
Dr. Emery who reiterated his prior opinion, which disagreed with DMA Dr. Estaris’ opinion, that
appellant had 40 percent digit permanent impairment of the left thumb based on the A.M.A.,
Guides. Dr. Emery reasoned that the DMA’s 20 percent left thumb permanent impairment rating
was not based on a review of all of the x-rays. Evidence or argument that repeats or duplicates
evidence previously of record has no evidentiary value and does not constitute a basis for
reopening a case.17 Moreover, Dr. Emery did not provide any relevant and pertinent new evidence
regarding impairment of appellant’s left thumb attributable to the January 9, 2019 employment
injury.18
Appellant also resubmitted an apparent copy of Dr. Emery’s April 1, 2019 report. This
evidence was previously of record and considered by OWCP in its September 20, 2019 decision.
As noted, evidence or argument that repeats or duplicates evidence previously of record has no
evidentiary value and does not constitute a basis for reopening a case.19

15

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

16

See J.K., Docket Nos. 19-1420 and 19-1422 (issued August 12, 2020); Annette M. Dent, 44 ECAB 403 (1993).

17

See B.O., Docket No. 20-0156 (issued May 13, 2020); M.G., Docket No. 18-0654 (issued October 17, 2018);
D.K., 59 ECAB 141 (2007).
18

See S.M., Docket No. 18-1047 (issued February 13, 2019).

19

Supra note 18.

6

Lastly, appellant submitted images from January 9 and April 1, 2019 x-rays of the hands.
The Board finds that submission of this evidence does not constitute relevant and pertinent new
evidence and is insufficient to require OWCP to reopen the claim for merit review as it does not
contain an opinion addressing the extent of appellant’s work-related permanent impairment, which
was the issue before OWCP.20 As appellant did not provide relevant and pertinent new evidence,
he is not entitled to a merit review based on the third requirement under 20 C.F.R. § 10.606(b)(3).21
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.22
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 20
percent permanent impairment of the left thumb, for which he previously received a schedule
award. The Board further finds that OWCP properly denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

20

See E.L., Docket No. 18-1262 (issued March 11, 2019).

21

20 C.F.R. § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

22

D.G., Docket No. 19-1348 (issued December 2, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the October 31 and September 20, 2019 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: January 26, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
SECURITIES & EXCHANGE COMMISSION,
BENEFITS BRANCH, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1086
Issued: August 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 8, 2015 appellant, through counsel, filed a timely appeal from an October 23,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she had disability
for intermittent periods on or after November 29, 2005 due to her accepted work injuries.
FACTUAL HISTORY
This matter has previously been before the Board on three appeals. In December 2007,
OWCP accepted that appellant, then a 49-year-old securities compliance examiner, sustained
1

5 U.S.C. §§ 8101-8193.

thoracic and lumbosacral neuritis or radiculitis due to lifting heavy boxes containing documents.2
Appellant filed claims for wage loss for intermittent periods beginning November 29, 2005. On
January 20, 2006 she underwent computerized tomography testing of her right ribs, which
revealed nondisplaced fractures of the 10 and 11 ribs. A magnetic resonance imaging (MRI)
scan performed on February 2, 2006 showed findings of right-sided small extruded T6-7 disc
herniation, small central T7-8 disc herniation, and left-sided T8-9 disc herniation. An MRI scan
of the lumbosacral spine from this period revealed L3-4 and L4-5 disc bulges.
On February 21, 2007 appellant was examined by Dr. Nancy E. Epstein, an attending
Board-certified neurosurgeon, who noted that she developed intermittent exacerbations and
remissions of symptoms due to lifting boxes. The record contains medical reports dated
March 23 and June 12, 2007 from Dr. Philippe Vaillancourt, an attending Board-certified pain
management physician, who described the pain management treatment he provided and noted
that appellant required a modified work schedule for approximately six weeks.
OWCP referred appellant for additional evaluation by Dr. Edward M. Weiland, a Boardcertified neurologist and second opinion physician. On March 28, 2008 Dr. Weiland reported
that the causal relationship between appellant’s rib fractures and employment factors could not
be clearly identified. He concluded that she was not disabled from a neurological standpoint and
found that there was no reason she could not return to her regular job for the employing
establishment without restrictions.
In order to resolve the conflict in medical opinion evidence regarding the nature and
extent of her disability, appellant was referred to Dr. William Healy, a Board-certified orthopedic
surgeon, for an impartial medical examination. In an August 14, 2008 report, Dr. Healy opined
that her mid and low back pain and degenerative disc disease might have been aggravated by
lifting at work. He stated that he could not relate appellant’s rib fractures to her employment
factors as the forces required to cause a rib fracture would have been much more significant than
those she experienced at work. Dr. Healy opined that he could not presently find any evidence
of thoracic or lumbosacral neuritis or radiculitis. He felt that there were findings of degenerative
disc disease and herniation in the thoracic and lumbar spine that was aggravated by lifting at
work. Dr. Healy indicated that appellant could return to some kind of light-duty work.
OWCP, in a June 25, 2009 decision, denied appellant’s claim that she had disability on or
after November 29, 2005 due to her accepted work injuries. It indicated that the weight of the
medical evidence with respect to this matter rested with the August 14, 2008 report of Dr. Healy.
However, as a result of Dr. Healy’s report, OWCP expanded appellant’s accepted conditions to
include aggravation of degenerative thoracic disc disease, aggravation of degenerative lumbar
disc disease, aggravation of herniated lumbar disc, and aggravation of herniated thoracic disc.
In an August 27, 2010 decision, OWCP affirmed its June 25, 2009 decision, finding that
the weight of the medical evidence regarding work-related disability continued to rest with the
opinion of Dr. Healy.
2

Appellant indicated that she had to move a large number of boxes and sort through many files beginning in late
2004 when she started working on a large case in conjunction with the U.S. Department of Justice. She first became
aware of her claimed condition and its relation to work factors in November 2005.

2

The Board, in a September 8, 2011 decision,3 set aside OWCP’s August 27, 2010
decision and remanded the case to OWCP for further development. The Board found that, in his
August 14, 2008 report, Dr. Healy did not provide a clear opinion regarding whether appellant’s
work-related conditions caused disability for any period on or after November 29, 2005. The
Board determined that the opinion of Dr. Healy required clarification regarding her work-related
disability on or after November 29, 2005 and it remanded the case to OWCP for further
development.
On remand, OWCP requested that Dr. Healy provide a supplemental report regarding
whether appellant had disability for intermittent periods on or after November 29, 2005 due to
her accepted work injuries. In a November 28, 2011 report, Dr. Healy diagnosed cervical
spondylosis, degenerative disc disease of the thoracic spine, degenerative disc disease lumbar
spine, fibromyalgia, and fracture of the right foot.4 Regarding appellant’s periods of disability,
he noted that appellant had a work-related temporary disability secondary to a November 2005
accident and stated, “I felt the patient had preexistent degenerative process that was aggravated
by the November 29, 2005 incident. The patient at the time of my examination today admits to
having prior complaints. I do believe that that aggravation was temporary. I do believe she got
back to her baseline.”
In a December 23, 2011 decision, OWCP found that appellant did not meet her burden of
proof to establish that she had disability for intermittent periods on or after November 29, 2005
due to her accepted work injuries. It found that the November 28, 2011 report of Dr. Healy did
not show that appellant had such disability.
The Board, in a May 2, 2013 decision,5 set aside OWCP’s December 23, 2011 decision
and remanded the case to OWCP for further development of the medical evidence. The Board
noted that Dr. Healy’s November 28, 2011 supplemental report suggested that appellant did
sustain periods of work-related disability beginning sometime around November 2005, but that
he did not provide a full description of her specific periods of work-related disability. The Board
found that his opinion was insufficient to resolve the existing conflict in the medical opinion
evidence and directed OWCP to refer appellant, along with the case record and a detailed
statement of accepted facts, to a second impartial specialist for the purpose of obtaining a
rationalized medical opinion on the issue of whether she had disability for intermittent periods on
or after November 29, 2005 due to her accepted work injuries.
On remand, OWCP referred appellant and the case record to Dr. Ronald A. Ripps, a
Board-certified orthopedic surgeon, for an impartial medical examination and opinion regarding
whether she had disability for intermittent periods on or after November 29, 2005 due to her
accepted work injuries. It provided Dr. Ripps with a document which indicated that the purpose
of his evaluation was to resolve a conflict in the medical opinion evidence regarding whether
3

Docket No. 11-225 (issued September 8, 2011).

4

The record reflects that appellant sustained a right foot fracture due to a nonwork-related fall in September or
October 2011.
5

Docket No. 12-1386 (issued May 2, 2013).

3

appellant experienced intermittent periods of disability on and after November 29, 2005 and
whether she had been totally disabled since August 29, 2008. The document stated:
“The accepted conditions in the claim are thoracic and lumbosacral/
neuritis/radiculitis.
“Did [appellant] sustain rib fractures as a result of lifting boxes from the floor to
the desk and carrying those boxes to other locations? If so, explain how this
caused the rib fractures. If not explain why this did not cause the rib fractures.
“During [September 2011 appellant] fell and fractured her foot. Did the lifting
and carrying of the boxes cause or aggravate any other medical conditions
including cervical spondylosis, degenerative disc disease of the thoracic spine,
degenerative disc disease of the lumbar spine, and fibromyalgia. Explain why any
medical conditions found were or were not caused or aggravated by the lifting and
carrying of the boxes.”6
In a July 10, 2013 report, Dr. Ripps discussed some of the medical evidence of record
and reported findings on physical examination. He reported that appellant had tenderness in her
left trapezius, parascapular musculature, both sacroiliac joints, and thoracolumbar junction and
diagnosed fractured ribs by history, fibromyalgia, symptom magnification, and depression.
Dr. Ripps indicated that OWCP had noted that the “accepted conditions in the claim are thoracic
and lumbrosacral/neuritis/radiculitis.” With regard to these conditions, he stated, “This was not
supported by the medical documentation that you had me review. [Appellant] was examined by
a number of neurosurgeons and neurologists, none of whom ever found evidence of neurologic
disease or spine pathology.... There was no objective evidence that work activity around
[November 29, 2005] in any way ‘aggravated’ degenerative disc disease.” With respect to the
question of whether the lifting and carrying of boxes caused or aggravated any other medical
conditions, Dr. Ripps noted, “No, repetitive lifting and carrying of 20[-]pound boxes is not a risk
factor for cervical spondylosis, degenerative disc disease of the thoracic spine or degenerative
disc disease of lumbar spine.” He concluded that appellant did not have any disability for
intermittent periods on or after November 29, 2005 due to her accepted work injuries.
In a September 4, 2013 decision, OWCP found that appellant did not meet her burden of
proof to establish that she had disability for intermittent periods on or after November 29, 2005
due to her accepted work injuries. It found that the weight of the medical evidence rested with
the opinion of Dr. Ripps.
The Board, in an August 8, 2014 decision,7 set aside OWCP’s September 4, 2013
decision and remanded the case to OWCP for further development of the medical evidence. The
Board noted that Dr. Ripps was not provided a detailed statement of accepted facts that included
all of appellant’s accepted work injuries and that Dr. Ripps made statements that were not in

6

It does not appear that Dr. Ripps was provided with a detailed statement of accepted facts.

7

Docket No. 14-791 (issued August 8, 2014).

4

accordance with accepted facts in the case.8 Dr. Ripps’ July 10, 2013 report was not sufficiently
well rationalized to constitute the weight of the medical evidence regarding appellant’s disability
claim. On remand, the case record, a detailed statement of accepted facts, and, if necessary,
appellant, were to be referred to Dr. Ripps for a supplemental report regarding whether she had
disability for intermittent periods on or after November 29, 2005 due to her accepted work
injuries.
On remand, OWCP requested, in an August 21, 2014 letter, that Dr. Ripps provide a
supplemental report to clarify his July 10, 2013 report. It provided him with a statement of
accepted facts containing a complete list of appellant’s accepted conditions and a description of
the definition under FECA of temporary and permanent aggravations of underlying medical
conditions. The document stated:
“You stated in your report that there was no objective medical evidence to
establish that [appellant’s] work activity aggravated her degenerative disc disease.
Considering the definitions of causal relationship provided were the aggravations
of her spinal conditions causally related to carrying boxes? Why or why not?
“Is there objective evidence that [appellant] was disabled for intermittent periods
on or after [November 29, 2005]? If so, identify the objective evidence
establishing that she was disabled for intermittent periods on or after
[November 29, 2005].”
In a September 3, 2014 report, Dr. Ripps responded to OWCP’s request for clarification.
He stated that he had reviewed the new statement of accepted facts, but that it did not change the
opinions or conclusions expressed in his July 10, 2013 report. Dr. Ripps noted that an
aggravation could be temporary or permanent and stated that in his July 10, 2013 report he had
indicated that there was no evidence of a permanent aggravation of appellant’s degenerative disc
disease. With respect to the question of disability on or after November 29, 2005, he asserted
that this question was addressed in his July 10, 2013 report and stated, “I acknowledged that
[appellant] did have intermittent periods of disability and that she resigned from work on
[August 29, 2008]. I did not think that her disability or her resignation were work related, but
may have been related to her degenerative disc disease.”9 Dr. Ripps stated:
“You have then posed the question that if it is accepted that in fact there was a
permanent aggravation of [appellant’s] degenerative disc disease, would such an
aggravation have been causally related to her lifting boxes?10 In light of the fact
[appellant] did not seek medical attention until a year after the alleged work
8

The Board found, “Dr. Ripps specifically denied that appellant sustained work-related thoracic and lumbosacral
neuritis or radiculitis. Dr. Ripps also denied the possibility that she sustained a work-related aggravation of
degenerative disc disease of the thoracic or lumbosacral spine.”
9

Dr. Ripps commented, “I also commented that the true extent of [appellant’s] disability could never be
accurately assessed until she was detoxified. When I examined her she had been on morphine for five years and
appeared to be overmedicated.”
10

The Board finds that OWCP did not, in fact, pose such a question in its August 21, 2014 letter.

5

incident, it is highly unlikely that there is a causal relationship. As I mentioned in
my [i]ndependent [m]edical [e]xamination, for a causal relationship to exist, there
has to be an appropriate mechanism of injury, a demonstrable tissue loss, and a
plausible relationship between the two.
For reasons discussed in the
[i]ndependent [m]edical [e]xamination, all these elements are lacking in
[appellant’s] case.”
In an October 23, 2014 decision, OWCP relied upon the latest opinion of Dr. Ripps to
deny appellant’s claim as she had not met her burden of proof to establish that she had disability
for intermittent periods on or after November 29, 2005 due to her accepted work injuries as the
weight of the medical opinion evidence on this matter rested with the opinion of Dr. Ripps.
LEGAL PRECEDENT
In a situation where OWCP secures an opinion from an impartial medical specialist for
the purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental
report from the specialist for the purpose of correcting the defect in the original opinion.11 If the
impartial medical specialist is unable to clarify or elaborate on his original report or if his
supplemental report is also vague, speculative, or lacking in rationale, it must submit the case
record and a detailed statement of accepted facts to a second impartial specialist for the purpose of
obtaining his rationalized medical opinion on the issue.12
ANALYSIS
OWCP initially accepted that appellant sustained thoracic and lumbosacral neuritis or
radiculitis due to lifting heavy boxes containing documents.13 After development of the medical
evidence, it expanded her accepted conditions to include aggravation of degenerative thoracic
disc disease, aggravation of degenerative lumbar disc disease, aggravation of herniated lumbar
disc, and aggravation of herniated thoracic disc. Appellant filed claims for wage loss for
intermittent periods beginning November 29, 2005.
OWCP engaged in extensive development of the medical evidence in order to determine
whether appellant established that she had disability for intermittent periods on or after
November 29, 2005 due to her accepted work injuries. It referred her to Dr. Ripps, a Boardcertified orthopedic surgeon who served as an impartial medical specialist. Dr. Ripps produced a
report dated July 10, 2013. In an August 8, 2014 decision,14 the Board remanded the case to
OWCP for further development of the medical evidence noting that the July 10, 2013 report of
Dr. Ripps was not sufficiently rationalized to constitute the weight of the medical evidence
regarding appellant’s disability claim. The Board indicated that Dr. Ripps made statements in
11

Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

12

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

13

Appellant first became aware of her claimed condition and its relation to work factors in November 2005.

14

Docket No. 14-791 (issued August 8, 2014).

6

his July 10, 2013 report that were not in accordance with the accepted facts in the case and that
he did not provide a clear opinion on disability.15
The Board finds that the September 3, 2014 supplemental report of Dr. Ripps did not
adequately address the concerns raised by the Board in its August 8, 2014 decision regarding the
content of his July 10, 2013 report with respect to the relevant issue of this case. In essence, the
September 3, 2014 report of Dr. Ripps merely repeats the statements contained in his July 10,
2013 report without providing further clarification. Moreover, although Dr. Ripps was provided
with a new statement of accepted facts that included all of appellant’s accepted conditions, it
remains unclear from his September 3, 2014 letter whether he acknowledges that appellant
sustained all of the conditions accepted by OWCP, including aggravation of degenerative
thoracic disc disease, aggravate on of degenerative lumbar disc disease, aggravation of herniated
lumbar disc, and aggravation of herniated thoracic disc. This is critical in light of the fact that he
specifically denied the existence of work-related thoracic and lumbrosacral neuritis or radiculitis
in his July 10, 2013 initial impartial medical examination report. Dr. Ripps did not provide a
clear opinion on any possible periods of work-related disability.16
For the above-described reasons it is found that the opinion of Dr. Ripps is not
sufficiently well rationalized to constitute the weight of the medical opinion evidence regarding
whether appellant had disability for intermittent periods on or after November 29, 2005 due to
her accepted work injuries. The Board has held that if the impartial medical specialist is unable
to clarify or elaborate on his original report or if his supplemental report is also vague, speculative,
or lacking in rationale, OWCP must submit the case record and a detailed statement of accepted
facts to another impartial medical specialist for the purpose of obtaining his or her rationalized
medical opinion on the issue.17 Therefore, the case shall be referred to another impartial medical
specialist for the purpose of obtaining his or her rationalized medical opinion regarding whether
appellant had work-related disability on or after November 29, 2005. After carrying out this
necessary development, OWCP shall issue an appropriate decision regarding appellant’s claim
for work-related disability on or after November 29, 2005.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met her burden of proof to establish that she had disability for intermittent periods on or after
November 29, 2005 due to her accepted work injuries.

15

The Board found, “Dr. Ripps specifically denied that appellant sustained work-related thoracic and lumbosacral
neuritis or radiculitis. Dr. Ripps also denied the possibility that she sustained a work-related aggravation of
degenerative disc disease of the thoracic or lumbosacral spine.”
16

Dr. Ripps indicated that appellant did not have a “permanent” aggravation of degenerative disc disease, but he
did not clarify whether he acknowledges that appellant did in fact have aggravation of degenerative disc disease, as
accepted by OWCP, and whether appellant’s accepted conditions caused disability for any period. He generally
provided a speculative and equivocal opinion that appellant might have had disability on or after November 29,
2005 which “may have been related to her degenerative disc disease.”
17

See supra note 12.

7

ORDER
IT IS HEREBY ORDERED THAT the October 23, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for proceedings
consistent with this decision of the Board.
Issued: August 24, 2015
Washington, DC

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

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

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

8