United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.E., Appellant
and
DEPARTMENT OF THE NAVY,
CONSOLIDATED CIVIL PERSONNEL
OFFICE, Washington, DC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 08-288
Issued: August 15, 2008

Case Submitted on the Record

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

JURISDICTION
On November 6, 2007 appellant filed a timely appeal from an October 15, 2007 decision
of the Office of Workers’ Compensation Programs which denied her claim for benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant established that she had any continuing work-related
disability or residuals after March 24, 1997.
FACTUAL HISTORY
On May 11, 1995 appellant, then a 48-year-old management analyst, filed a traumatic
injury claim for a May 5, 1995 injury sustained when a drafting table collapsed on her injuring
her left knee, leg, back and hip. The Office accepted appellant’s claim for cervical and lumbar

sprains and paid appropriate compensation. Appellant stopped work on August 28, 1995 and did
not return.
Appellant submitted treatment notes from Dr. Bruce J. Ammerman, a Board-certified
orthopedist, dated May 30, 1995 to February 26, 1996, who treated appellant for her workrelated low back injury. Dr. Ammerman also noted appellant’s history was significant for a
motor vehicle accident on April 4, 1991 in which she sustained a herniated lumbar disc at L4-5
and underwent a partial hemilaminectomy at L4-5 on August 10, 1992 and a partial
hemilaminectomy of the right L4-5, excision of herniated disc and lumbar fusion on
April 26, 1994.1 He diagnosed work-related post-traumatic cervical and lumbar radiculopathy
and advised that appellant was disabled from work. On February 26, 1996 Dr. Ammerman
indicated that appellant reached maximum medical improvement but could not work. A
magnetic resonance imaging (MRI) scan of the lumbar spine dated February 29, 1996 revealed
postoperative and degenerative changes at L4-5.
In a March 1, 1996 report, Dr. Arthur I. Kobrine, a Board-certified orthopedist and an
Office referral physician, discussed appellant’s history and noted findings. He indicated that
appellant sustained a mild strain or sprain of the cervical and lumbar area as a result of the
May 5, 1995 accident which would have resolved in six weeks. Dr. Kobrine opined that
appellant did not have residuals or disability of the work injury and could return to her previous
job. The Office found that a conflict of medical opinion between Dr. Ammerman and
Dr. Kobrine regarding whether appellant had disability or residuals of her work injuries.
The Office referred appellant to Dr. Lawrence Fink, a Board-certified orthopedist, to
resolve the medical conflict. On May 3, 1996 Dr. Fink noted reviewing the record, noted a
history of appellant’s work-related injury and examined her. He noted that appellant’s history
was significant for a lumbar laminectomy which was performed in 1987, a partial
hemilaminectomy at L4-5 performed on August 10, 1992 and a partial hemilaminectomy of the
right L4-5, excision of herniated disc and lumbar fusion performed on April 26, 1994. Dr. Fink
indicated that the neurological examination revealed multiple signs of symptom magnification,
deficit elaboration and antalgic underperformance. He noted examination of the spine revealed
healed surgical incisions, tenderness of the entire axial spine and right leg, the lumbar range of
motion was moderately reduced in flexion and cervical range of motion was minimally restricted
in all planes. The motor examination revealed normal strength, tone and function and the
sensory examination revealed stocking glove hypesthesia of the right upper and lower
extremities. Dr. Fink opined that appellant sustained a soft tissue injury in May 1995 which
resulted in no focal neurologic deficit and no attributable ratable impairment. He indicated that
appellant could return to work in her previous employment capacity.
On December 11, 1996 the Office proposed to terminate all benefits for appellant’s
accepted cervical and lumbar sprains on the grounds that Dr. Fink’s report dated May 3, 1996
established no residuals of the work-related employment injury.

1

Dr. Ammerman noted that appellant was involved in an automobile accident on April 25, 1985 and underwent a
lumbar laminectomy which was performed by Dr. Guy W. Gargour, a Board-certified orthopedist, in 1987.

2

Appellant submitted a report dated January 17, 1997 from Dr. Ammerman who opined
that the May 5, 1995 work incident significantly aggravated appellant’s lumbar radicular
complaints and cervical complaints. Dr. Ammerman indicated that appellant was not physically
or emotionally capable of returning to gainful employment and recommended disability
retirement.
By decision dated March 24, 1997, the Office terminated appellant’s compensation
benefits effective the same date on the grounds that the weight of the medical evidence as
established by Dr. Fink established that appellant had no continuing disability resulting from her
accepted employment injury.
Appellant requested an oral hearing which was held on March 26, 1998. She submitted
reports from Dr. Ammerman dated April 23, 1997 to April 1, 1998 who continued to opine that
appellant was totally disabled due to the May 5, 1995 work injury. A September 30, 1997 MRI
scan of the lumbar spine revealed a mild decrease in height of the intervertebral disc, and a
moderate size diffuse disc bulge impinging on the bilateral exiting L4 nerve roots.
On June 15, 1998 a hearing representative affirmed the March 24, 1997 decision finding
that the Office met its burden of proof to terminate compensation benefits. The hearing
representative noted, however, that appellant had submitted additional medical reports and
diagnostic testing at her hearing that warranted further development. The hearing representative
directed that the Office seek a supplemental report from Dr. Fink addressing whether this
medical evidence submitted after the termination caused any change in his opinion regarding
whether appellant had any continuing employment-related disability.
On June 8, 1999 appellant submitted an April 8, 1999 deposition of Dr. Ammerman. She
further advised that Dr. Fink was a party in a lawsuit in which she was a plaintiff and requested
that he be disqualified from providing an opinion because of potential bias. In the April 4, 1999
deposition, Dr. Ammerman opined that the May 5, 1995 injuries permanently aggravated
appellant’s preexisting cervical and lumbar condition. He advised that appellant was
permanently and totally disabled from all gainful employment after March 24, 1997 as a result of
the aggravation of her preexisting condition caused by the May 5, 1995 injuries. Appellant
continued submitting reports from Dr. Ammerman noting appellant’s status.
Due to Dr. Fink’s participation in a third-party matter in which appellant was the
opposing party, the Office determined that it was necessary to refer appellant to a new impartial
medical specialist. On May 9, 2000 it referred appellant to Dr. Guy W. Gargour, a Boardcertified orthopedist. However, the Office disqualified Dr. Gargour as a referee physician after
appellant confirmed that he treated her and performed back surgery on her in 1987. It
subsequently referred appellant to Dr. Joel L. Falik, a Board-certified orthopedist. However,
Dr. Fink was disqualified as he provided an opinion with respect to a nonwork-related fall in
1996 and was nonresponsive to the Office’s request for clarification.
On September 29, 2003 the Office referred appellant to Dr. Mark S. Klein, a Boardcertified orthopedist. In a November 20, 2003 report, Dr. Klein noted reviewing the record,
noted a history of appellant’s work-related injury and examined appellant. He noted that
appellant’s history was significant for a lumbar laminectomy which was performed in 1987, a

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partial hemilaminectomy at L4-5 performed on August 10, 1992, arthroscopic knee surgeries in
1997 and 1999 and a total knee replacement in 2002. Physical examination revealed healed
cervical and lumbar laminectomy scars, marked reduction in range of motion of both the cervical
and lumbar areas. The neurological examination revealed normal motor and sensory findings in
the upper and lower extremities. Dr. Klein indicated that he found no evidence to support
appellant’s work injury involving a collapsed desk would result in more than a lumbosacral
myoligamentous injury which would have resolved in a year’s time. He noted that appellant
underwent a fusion of her lumbar spine and multiple discectomy at the L4-5 level and did not
believe appellant was a candidate for additional surgery. Dr. Klein opined that appellant was
disabled from work; however, he advised that he did not believe the fall of 1995 was the overall
cause of appellant’s disability.
On February 13, 2004 the Office denied appellant’s claim for continuing work-related
disability after March 24, 1997, finding that Dr. Klein’s report established that she had no
continuing disability resulting from her accepted employment injury after March 24, 1997.
Appellant requested an oral hearing which was held on December 8, 2004. She
submitted a report from Dr. Ammerman dated March 7, 2001 who treated appellant for
increasing pain in the neck, shoulder and right upper extremity and diagnosed residual cervical
radiculopathy on the right.
On March 28, 2005 the hearing representative set aside the February 13, 2004 decision
and remanded the case for further development. The hearing representative instructed the Office
to refer the case record to Dr. Klein with the MRI scan films from February 29, 1996 and
September 30, 1997 and request that he address the results of these tests. The hearing
representative further requested that Dr. Klein review Dr. Ammerman’s deposition testimony
and provide an opinion as to whether the 1995 work injury aggravated or accelerated appellant’s
preexisting retrolisthesis and degenerative disc disease and, if so, provide an explanation as to if
the aggravation was permanent or temporary and if any aggravation ceased.
The Office requested a supplemental report from Dr. Klein and, on August 9, 2005, he
noted reviewing the February 29, 1996 and September 30, 1997 lumbar MRI scans and the
deposition of Dr. Ammerman. Dr. Klein opined that within a reasonable degree of medical
probability appellant’s injury did not aggravate any preexisting retrolisthesis or degenerative disc
disease which existed prior to 1995. He further noted that any aggravation would have been
temporary. Dr. Klein advised that appellant would have had residuals of chronic pain syndrome
secondary to the multiple injuries she sustained and surgeries performed.
In a letter dated September 26, 2005, appellant asserted that Dr. Klein’s report was
incomplete as he failed to mention whether he reviewed the deposition of Dr. Ammerman prior
to formulating his opinion. She requested that the Office seek a supplemental report from
Dr. Klein addressing Dr. Ammerman’s deposition testimony.
In a decision dated September 28, 2005, the Office denied appellant’s claim for
continuing work-related disability after March 24, 1997 on the grounds that the weight of the
medical evidence by Dr. Klein established that appellant had no continuing disability after

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March 24, 1997 resulting from her accepted employment injury. On October 20, 2005 appellant
requested a hearing which was held on August 16, 2006.
In a decision dated November 2, 2006, the hearing representative set aside the decision
dated September 28, 2005 and remanded the matter for further development. The hearing
representative instructed the Office to refer the case record to Dr. Klein and provide a copy of
Dr. Ammerman’s deposition testimony and request that he address whether the 1995 work injury
aggravated or accelerated appellant’s preexisting cervical and lower back conditions. The Office
was also to seek clarification from Dr. Klein with regard to whether the 1995 work injury
contributed to appellant’s chronic pain syndrome and, if so, whether this condition still
contributed to her chronic pain syndrome.
The Office requested a supplemental report from Dr. Klein and, on May 14, 2007, he
noted reviewing the February 29, 1996 and September 30, 1997 MRI scans, the deposition of
Dr. Ammerman and reports from him dated April 30 and August 30, 2004. Dr. Klein indicated
that within a reasonable degree of medical probability appellant had a temporary aggravation of
her existing cervical and lumbar condition manifested by a mild cervical and lumbar strain
sustained at work on May 5, 1995. He further opined that the incident of May 5, 1995 did not
contribute to appellant’s chronic low back syndrome, chronic cervical pain syndrome and
radiculopathy. Dr. Klein noted that appellant had three lumbar discectomy at the L4-5 level in
1987, 1992 and 1994 and experienced ongoing symptoms following the surgeries. He opined
that the incident of May 5, 1995 caused a temporary aggravation of appellant’s condition and did
not accelerate or exacerbate appellant’s disability.
In a decision dated June 7, 2007, the Office denied appellant’s claim for continuing workrelated disability after March 24, 1997 on the grounds that the weight of the medical evidence by
Dr. Klein established that appellant had no continuing disability resulting from her accepted
employment injury after March 24, 1997. On October 15, 2007 it reissued the June 7, 2007
decision because appellant’s attorney was not sent a copy of the formal decision.
LEGAL PRECEDENT
Where the Office meets its burden of proof in justifying termination of compensation
benefits, the burden shifts to the claimant to establish that any subsequent disability is causally
related to the accepted employment injury.2
To establish a causal relationship between the condition, as well as any disability claimed
and the employment injury, the employee must submit rationalized medical opinion evidence,
based on a complete factual background, supporting such a causal relationship. Rationalized
medical opinion evidence is medical evidence, which includes a physician’s rationalized opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factors. The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
2

Darlene R. Kennedy, 57 ECAB 414 (2006).

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The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.3
Section 8123(a), in pertinent part, provides: “If there is a disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”4 Where there exists a
conflict of medical opinion and the case is referred to an impartial specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, is entitled to special weight.5
ANALYSIS
The Office accepted appellant’s claim for cervical and lumbar sprains and paid benefits.
In a March 24, 1997 decision, it terminated compensation benefits based on the opinion of an
impartial specialist, Dr. Fink. On June 15, 1998 the hearing representative affirmed the
termination of benefits.6 The hearing representative also noted that evidence submitted at the
hearing necessitated a supplemental opinion from the impartial medical specialist, Dr. Fink,
regarding whether appellant had continuing work-related disability after March 24, 1997. As
Dr. Fink, after his examination of appellant as an impartial specialist, became involved in a legal
action involving appellant, the Office properly referred appellant to another impartial specialist
and, subsequently, the Office properly referred appellant to Dr. Klein to resolve the conflict.7
In a report dated November 20, 2003, Dr. Klein reviewed the entire case record and
statement of accepted facts. He examined appellant thoroughly and related his clinical findings.
Dr. Klein indicated that he found no evidence to support appellant’s work injury involving a
collapsed desk would result in more than a lumbosacral myoligamentous injury which would
have resolved in a year’s time. In an August 9, 2005 report, in response to an Office clarification
3

See Connie Johns, 44 ECAB 560 (1993); James Mack, 43 ECAB 321 (1991).

4

5 U.S.C. § 8123(a).

5

Solomon Polen, 51 ECAB 341 (2000).

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The Board notes that appellant did not appeal the March 24, 1997 termination of benefits.

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The Office properly found that, other designated impartial medical examiners, before Dr. Klein, could not
resolve the conflict. Dr. Fink, subsequent to his May 3, 1996 report, was involved as expert in a law suit in which
appellant was a plaintiff. Thus, the Office acted properly in not seeking a supplemental report from him. See
Vernon E. Gaskins, 39 ECAB 746 (1988) (the Office will disqualify a physician from serving as an impartial
medical specialist where there is reason to believe that the physician’s views may be biased). The Office next
referred appellant to Dr. Gargour; however, he was disqualified as appellant confirmed that he treated her in 1987.
See Raymond E. Heathcock, 32 ECAB (2004) (physicians previously connected with the claim or the claimant, or
physicians in partnership with those already so connected may not be used as referees). The Office then referred
appellant to Dr. Falik, but the properly sought another referee physician when Dr. Falik’s initial report was based on
incorrect facts and he was nonresponsive to the Office’s request for a supplemental report. See Nancy Keenan, 56
ECAB 687 (2005) (when an impartial specialist is unable to clarify or elaborate on his or her original report or if his
or her supplemental report is also vague, speculative or lacking in rationale, the Office should refer the claimant to
another impartial medial specialist).

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request, Dr. Klein opined that appellant’s May 1995 injury did not aggravate any preexisting
retrolisthesis or degenerative disc disease which existed prior to 1995. He offered another
clarifying opinion on May 14, 2007, advising that within a reasonable degree of medical
probability appellant had a temporary aggravation of her preexisting cervical and lumbar
condition manifested by a mild cervical and lumbar strain sustained at work on May 5, 1995.
Dr. Klein advised that the incident of May 5, 1995 did not contribute to appellant’s chronic low
back syndrome, chronic cervical pain syndrome and radiculopathy. Rather, he opined that
appellant’s symptoms were the result of multiple surgeries including a lumbar laminectomy in
1987, a partial hemilaminectomy at L4-5 on August 10, 1992 and a partial hemilaminectomy on
April 26, 1994. Dr. Klein indicated that the incident of May 5, 1995 caused a temporary
aggravation of appellant’s condition and did not accelerate or exacerbate her disability.
The Board finds that, under the circumstances of this case, the opinion of Dr. Klein is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant does not have any continuing work-related
disability after March 24, 1997. Dr. Klein reviewed the entire case record and statement of
accepted facts and had examined appellant. He additionally provided well-reasoned rationale as
to why appellant’s current conditions were not causally related to her work duties. Although
appellant, on appeal, asserts that Dr. Klein did not have an accurate factual background upon
which to base his opinion, she provided no specific allegation in support of her argument. The
Board notes that the Dr. Klein’s reports indicate that he was aware of appellant’s history, that the
Office properly sought supplemental reports from him to ensure that he resolved the point at
issue and that he was responsive to the Office’s requests.8
After her benefits were terminated, appellant submitted reports from Dr. Ammerman
dated April 23, 1997 to March 7, 2001 as well as a deposition from him dated April 4, 1999 who
continued to opine that appellant was totally disabled from work due to the May 5, 1995 work
injury which significantly aggravated her preexisting cervical and lumbar condition. However,
Dr. Ammerman did not provide a rationalized opinion specifically addressing how any
continuing medical condition was causally related to the accepted employment injury.9
Additionally, he was on one side of a conflict that was resolved by Dr. Klein,10 and his reports do
not otherwise provide new findings or medical rationale sufficient to establish that any
continuing condition or disability was causally related to the accepted work injury. Therefore,
the reports from Dr. Ammerman are insufficient to overcome that of Dr. Klein or to create a new
medical conflict.

8

See Phillip H. Conte, 56 ECAB 213 (2004) (when the Office secures an opinion from an impartial medical
specialist for the purpose of resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, the Office has the responsibility to secure a supplemental report from the specialist for
the purpose of correcting a defect in the original report).
9

See Jimmie H. Duckett, 52 ECAB 332 (2001).

10

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Ammerman’s reports did not contain new findings or
rationale upon which a new conflict might be based.

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Appellant did not otherwise submit reasoned medical evidence, after the termination of
her benefits, establishing any continuing disability or condition after March 24, 1997 causally
related to her employment. Therefore, she has not established that she has any continuing
disability or condition causally related to her accepted cervical and lumbar sprains.
CONCLUSION
The Board finds that appellant failed to establish that she had any continuing disability
after March 24, 1997.
ORDER
IT IS HEREBY ORDERED THAT the October 15, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 15, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 07-1965
Issued: February 19, 2008

Case Submitted on the Record

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

JURISDICTION
On July 19, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated June 13, 2007 finding that she received an overpayment of
compensation. Pursuant to 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 appellant received an overpayment of compensation in the
amount of $298.69 for the period April 1 to 7, 2003; and (2) whether the Office properly denied
waiver of the overpayment on the grounds that she was at fault in the creation of the
overpayment.
FACTUAL HISTORY
On October 26, 2001 appellant, then a 55-year-old customer service representative, filed
a traumatic injury claim alleging that on October 19, 2001 she injured both knees and her right

thumb when her chair rolled away before she had completely stood up. The Office accepted the
claim for left knee sprain and aggravation of left knee osteoarthritis and authorized left knee
replacement surgery, which occurred on January 14, 2003. Appellant filed a claim for
compensation on May 20, 2003 requesting compensation for leave without pay from April 1 to
May 19, 2003. For the period in question, she requested 17 hours of leave without pay on the
time analysis form.
In a letter dated April 22, 2003, the employing establishment notified the Office that
appellant had returned to work for four hours per day on April 1, 2003, but did not work at all on
April 3, 2003. It noted that she received compensation pay for 20 hours, which she had worked.
On April 11, 2007 the Office made a preliminary determination that appellant was
overpaid in the amount of $298.59 for the period April 1 to 7, 2003. The Office stated that she
was at fault in the creation of the overpayment as she accepted a payment which she knew or
reasonably should have known was incorrect. The Office noted that appellant returned to work
for five hours per day on April 1, 2003 and that a recurrence to total disability beginning April 8,
2003 had been accepted. The Office found that she was overpaid for the period April 1 to 7,
2003 in the amount of $298.59. The Office found that appellant was at fault as she had accepted
a payment she knew or should have known she was not entitled to. She did not respond.
By decision dated June 13, 2007, the Office finalized the preliminary overpayment
determination, finding that there was an overpayment in the amount of $298.59 and that as
appellant was not entitled to waiver of the recovery of the overpayment, she was found to be
with fault in the creation of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act1 provides that the United
States shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of his duty. Section
8106(a) provides in pertinent part as follows:
“If the disability is partial, the Unites States shall pay the employee during the
disability monthly monetary compensation equal to 66 2/3 percent of the
difference between his monthly pay and his monthly wage-earning capacity after
the beginning of the partial disability, which is known as his basic compensation
for partial disability.”2
The Act further provides that an employee who is receiving compensation for an
employment injury may not receive wages for the same time period.3 Section 8129(a) of the Act

1

5 U.S.C. §§ 8101-8193, 8102(a).

2

5 U.S.C. § 8106(a).

3

5 U.S.C. § 8116(a).

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provides that when an overpayment has been made to an employee because of an error of fact or
law, adjustment shall be made by decreasing later payments to which she is entitled.4
In determining whether a claimant is entitled to compensation benefits, the Office is
required by statute and regulation to make findings of fact.5 Office procedure further specifies
that a final decision of the Office must include findings of fact and provide clear reasoning which
allows the claimant to understand the precise defect of the claim and the kind of evidence which
would tend to overcome it.6 These requirements are supported by Board precedent.7
ANALYSIS -- ISSUE 1
In its June 13, 2007 decision, the Office determined that appellant received a $298.59
overpayment of compensation for the period April 1 to 7, 2003 because she received wage-loss
compensation after she had returned to work part time. The Board finds that the Office has not
adequately explained its basis for reaching this determination. The record contains no
worksheets or any other form suggesting that appellant received $298.59 in compensation for the
period April 1 to 7, 2003 that she was not entitled to receive. Furthermore, there is no indication
in the record that payments were made on any given date. There is no evidence that the Office
placed appellant on the periodic rolls for temporary total disability or that she received payments
for wage-loss compensation. There is no indication whether a payment was made through the
sending of a paper check or through direct deposit into appellant’s bank account. The record
shows she submitted a claim for compensation on May 20, 2003 requesting compensation for
leave without pay from April 1 to May 19, 2003. For the period April 1 to 7, 2003, appellant
requested 17 hours of leave without pay on the time analysis form. The evidence of record does
not establish that she received $298.59 in compensation for the period April 1 to 7, 2003 that she
was not entitled to receive.
In its June 13, 2007 decision, the Office also determined that appellant was at fault in the
creation of the overpayment, thereby, precluding waiver of recovery of the overpayment.
However, the Office did not adequately explain its reasoning for this determination. It merely
noted that appellant should have known that she could not receive compensation for wage loss
when she had returned to work on April 1, 2003. The Office did not adequately explain when or
how she received any incorrect payment.
As noted above, the Office is required by statute and regulation to make findings of fact.8
The Office’s June 13, 2007 decision does not contain findings and reasoning which would allow
4

5 U.S.C. § 8129(a).

5

5 U.S.C. § 8124(a) provides: The Office shall determine and make a finding of facts and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of the Office
shall contain findings of fact and a statement of reasons.
6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997). See
also Paul M. Colosi, 56 ECAB 294 (2005).
7

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

8

See supra notes 5 and 6 and accompanying text.

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appellant to understand the precise defect of her claim and the kind of evidence which would
tend to overcome it. Therefore, the case should be remanded to the Office in order for it to
produce a decision containing adequate findings and reasoning regarding appellant’s
overpayment. After such development as it deems necessary, the Office should issue an
appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether the Office
properly determined that appellant received a $298.69 overpayment and whether the Office
properly found that she was at fault in the creation of the overpayment such that it was not
subject to waiver. The case is remanded to the Office for further development to be followed by
the issuance of an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the June 13, 2007 decision of the Office of
Workers’ Compensation Programs is set aside is and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: February 19, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF AGRICULTURE, U.S.
FOREST SERVICE, Albuquerque, NM,
Employer
__________________________________________

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

Docket No. 17-1441
Issued: October 19, 2018

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 June 19, 2017 appellant filed a timely appeal from a February 15, 2017 merit decision
and an April 12, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a left shoulder
condition causally related to the accepted August 29, 2016 employment incident; and (2) whether

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP after the April 12, 2017 decision was
issued. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

OWCP properly denied appellant’s request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 20, 2016 appellant, a 70-year-old materials handler leader, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a left shoulder injury on August 29, 2016 as
a result of pulling a battery that weighed approximately 2,000 pounds. He stated that he pulled
the battery from a stand-up electric forklift and when it rolled too far, he stopped it with his left
hand and arm. Appellant claimed to have injured his left rotator cuff. He stopped work on the
date of injury and then returned to work the same day.
Dr. Eric J. Kress, a Board-certified family practitioner, examined appellant on October 4
and 5, 2016. He noted that appellant presented with left shoulder pain and back pain down the left
leg. Dr. Kress determined that appellant’s left shoulder was injured on August 24, 2016 when he
tried to stop a 2,000-pound battery from rolling away. Upon physical examination, he found
decreased range of motion, tenderness, bony tenderness, crepitus, pain, spams, and decreased
strength. Appellant exhibited no swelling. Dr. Kress diagnosed acute pain of his left shoulder.
On January 9, 2017 the employing establishment controverted appellant’s claim and
submitted statements from appellant’s supervisor and coworkers dated October 2, 20, 21, 22, and
December 3, 2016 indicating that appellant was injured while working on a piece of equipment he
was not qualified to operate or service and arguing that he failed to timely report his injury.
In a January 13, 2017 development letter, OWCP advised appellant of the deficiencies of
his claim and attached a questionnaire for his completion. It afforded him 30 days to submit
additional evidence and respond to its inquiries in order to establish his claim.
In response, appellant submitted a January 23, 2017 narrative statement indicating that,
upon receiving a verbal order to pull the batteries out of the upright/stand-up forklift, he pulled on
a battery and it began rolling out too far and fast. His reaction was to stop the battery with his left
hand and arm. Appellant felt pain and told others around him, including the person who gave the
order. He reiterated that the battery weighed approximately 2,000 pounds. Appellant stated that
he sustained no other injuries after this incident.
In a December 20, 2016 report, Dr. Justin Jacobson, a Board-certified orthopedic surgeon,
diagnosed “[left] complete rotator cuff tear or rupture of left shoulder, not specified as traumatic”
and primary osteoarthritis of the left shoulder. He noted that appellant presented with complaints
of pain and nonpainful clicking or triggering in the left shoulder that occurred constantly.
Dr. Jacobson determined that the onset was sudden with injury which occurred on August 29, 2016
caused by reaching out to stop a 2,000-pound battery from rolling. He indicated that appellant felt
a sharp pain, but was able to continue work. Dr. Jacobson noted that appellant’s symptoms were
aggravated by motion and he also noted that nothing relieved his symptoms. Appellant’s pain was
sharp, moderate to severe, and constant and he noted that he could not move the arm like he did
before the surgery.

2

By decision dated February 15, 2017, OWCP accepted that the August 29, 2016
employment incident occurred as alleged, but denied the claim because the medical evidence of
record failed to establish causal relationship between appellant’s diagnosed conditions and the
August 29, 2016 work incident.
On March 31, 2017 appellant requested reconsideration and indicated that he was
tentatively scheduled to meet with a Dr. Christopher Price on May 8, 2017 to obtain an
examination and evaluation of his left shoulder. He also resubmitted the December 20, 2016 report
from Dr. Jacobson.
By decision dated April 12, 2017, OWCP denied appellant’s request for reconsideration
without conducting a merit review because he failed to advance a relevant legal argument or submit
any relevant and pertinent new evidence. It found that no new evidence had been submitted and
the December 20, 2016 report from Dr. Jacobson was repetitious.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA3 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a personal
injury. An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.6
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue. A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background. Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).

3

Supra note 1.

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

Shirley A. Temple, 48 ECAB 404, 407 (1997).

3

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a left shoulder
condition causally related to the accepted August 29, 2016 employment incident.
In an October 5, 2016 report, Dr. Kress diagnosed acute pain of the left shoulder and
determined that appellant’s left shoulder was injured on August 24, 2016 when he tried to stop a
2,000-pound battery from rolling away. The Board finds that Dr. Kress’ diagnosis of left shoulder
pain is a description of a symptom rather than a clear diagnosis of the medical condition.7
Moreover, the Board has held that the mere fact that appellant’s symptoms arise during a period
of employment or produce symptoms revelatory of an underlying condition does not establish a
causal relationship between his condition and his employment factors.8 Therefore, the Board finds
that Dr. Kress’ report is insufficient to establish that appellant sustained an employment-related
injury.
In his December 20, 2016 report, Dr. Jacobson diagnosed “[left] complete rotator cuff tear
or rupture of left shoulder, not specified as traumatic” and primary osteoarthritis of the left
shoulder. He noted that the onset was sudden with injury which occurred on August 29, 2016
caused by reaching out to stop a 2,000-pound battery from rolling. Dr. Jacobson opined that
appellant’s left shoulder conditions were causally related to the August 29, 2016 battery incident
at work. However, the fact that a condition manifests itself during a period of employment is not
sufficient to establish causal relationship.9 Temporal relationship alone will not suffice.10 The
Board finds that Dr. Jacobson failed to provide sufficient medical rationale explaining how pulling
a 2,000-pound battery at work on August 29, 2016 either caused or contributed to appellant’s
conditions. A physician’s opinion must be supported by medical rationale, explaining the nature
of the relationship between the diagnosed conditions and appellant’s specific employment
factor(s).11 Thus, the Board finds that the report from Dr. Jacobson is insufficient to establish that
appellant sustained an employment-related injury on August 29, 2016.
As appellant has not submitted any rationalized medical evidence to support his claim that
he sustained a left shoulder injury causally related to the accepted August 29, 2016 employment
incident, he has failed to meet his burden of proof to establish entitlement to compensation
benefits.

7

The Board has consistently held that pain is a symptom, not a compensable medical diagnosis. See P.S., Docket
No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
8

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

9

20 C.F.R. § 10.115(e).

10

See D.I., 59 ECAB 158, 162 (2007).

11

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.12 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.13 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.14
A timely request for reconsideration, including all supporting documents, must set forth arguments
and contain evidence that either: (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.15
When a timely request for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request without reopening the case for a review on the merits.16
ANALYSIS -- ISSUE 2
Appellant’s March 31, 2017 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board
finds that he did not advance a relevant legal argument not previously considered by OWCP.
Consequently, appellant is not entitled to further review of the merits of his claim based on the
first and second above-noted requirements under section 10.606(b)(3).
With respect to the third above-noted requirement under section 10.606(b)(3), appellant
did not submit any new evidence with his reconsideration request. He resubmitted a December 20,
2016 report from Dr. Jacobson which was previously reviewed by OWCP in its February 15, 2017
decision. As the report repeats evidence already in the case record, it is duplicative and does not
constitute relevant and pertinent new evidence.17

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
12

13

20 C.F.R. § 10.607.

14

Id. § 10.607(a). 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.
15

Id. at § 10.606(b)(3).

16

Id. at § 10.608(a), (b).

17

See D.K., 59 ECAB 141 (2007).

5

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).
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left shoulder
condition causally related to the accepted August 29, 2016 employment incident. The Board
further finds that OWCP properly denied his request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 12 and February 15, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 19, 2018
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Macon, GA,
Employer
__________________________________________

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

Docket No. 12-449
Issued: June 19, 2012

Case Submitted on the Record

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

JURISDICTION
On December 29, 2011 appellant filed a timely appeal from the August 22, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied
authorization for a chest x-ray. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied authorization for a periodic chest x-ray.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In a prior appeal,2 the Board noted that OWCP denied authorization for a periodic chest
x-ray on the grounds that there was no ongoing need. OWCP explained that the risk for
developing active disease was highest in the first 2 years after exposure and development of a
positive skin test and appellant had gone 10 years without a diagnosis of tuberculosis (TB). As
the issue was a medical one, and as OWCP cited no source for its determination on risk, the
Board found that it was unreasonable for OWCP to deny authorization in the absence of medical
opinion to the contrary. The Board remanded the case for further development of the medical
evidence and a proper exercise of discretion.3
On July 15, 2011 OWCP contacted Dr. Palmer to ask why he was recommending another
chest x-ray. It explained: “Generally speaking, from exposure to development of a positive TB
skin test reaction (the incubation period) is approximately 2 to 12 weeks.... The risk for
developing active disease is the highest in the first two years after exposure and development of
a positive TB skin test reaction,” but regular diagnostic tests over the years continued to be
negative for any pulmonary diagnosis. Dr. Palmer was requested to respond within 30 days.
On August 12, 2011 OWCP called Dr. Palmer’s office for a status update. Dr. Palmer’s
office advised that the July 15, 2011 correspondence was not in appellant’s file. His office also
advised that he would have to see appellant before he could respond. OWCP stated that it was
just trying to ascertain why Dr. Palmer was still recommending yearly chest x-rays. Dr. Palmer’s
office repeated that he would have to see appellant to respond. OWCP advised that it would
proceed to a decision and, if appellant wished to pursue the matter, he could contact Dr. Palmer
for an appointment to obtain the information requested.
In an August 22, 2011 decision, OWCP denied authorization for a chest x-ray on the
grounds that the medical evidence did not demonstrate an ongoing need. Noting it attempts to
obtain an explanation from Dr. Palmer, it found that he submitted no evidence to substantiate the
need for another chest x-ray.
On appeal, appellant argued that OWCP did not further develop the medical evidence as
directed by the Board.
LEGAL PRECEDENT
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician that the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any

2

Docket No. 10-2047 (issued May 19, 2011).

3

In 2000, appellant was exposed to TB in the course of his employment as a mail handler. OWCP accepted his
claim for exposure to TB and, following a positive skin test, authorized periodic chest x-rays, as recommended by
Dr. Samuel E. Palmer, a Board-certified family physician. It denied authorization in 2010.

2

monthly compensation.4 OWCP must therefore exercise discretion in determining whether the
particular service, appliance or supply is likely to effect the purposes specified in FECA.5 The
only limitation on OWCP’s authority is that of reasonableness.6
ANALYSIS
When it previously denied authorization for another chest x-ray, OWCP advanced an
argument of medical risk that had no basis in the medical evidence. The Board found this
unreasonable and an abuse of discretion, and directed OWCP to develop the medical evidence.
OWCP asked Dr. Palmer, the attending family physician, why another chest x-ray was necessary
under the circumstances. It had been many years since he explained the initial need for chest
x-rays. As he was the one seeking authorization, Dr. Palmer was presumably in the best position
to address why appellant needed further exposure to radiation. The Board finds, therefore, that
OWCP reasonably undertook development of the medical evidence.
When Dr. Palmer did not respond, OWCP was left with no current medical basis to
approve another chest x-ray. The Board finds, therefore, that OWCP acted reasonably in
denying the request. Having undertaken development of the medical evidence, and having
received no response from the attending physician, OWCP properly exercised its discretion
under section 8103. The Board will affirm OWCP’s August 22, 2011 decision.
Appellant contends that OWCP did not further develop the medical evidence as
instructed by the Board. OWCP undertook development of the medical evidence when it asked
Dr. Palmer to explain the need for a further chest x-ray. This was consistent with the Board’s
prior decision. OWCP cannot control whether Dr. Palmer will respond to its request, but it
discharged its obligation to take the next step and inquire. Dr. Palmer may respond with reasons
at anytime if he believes another chest x-ray is medically necessary.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied authorization for a periodic chest x-ray.

4

5 U.S.C. § 8103(a).

5

See Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority in the administration of
FECA and must exercise that discretion to achieve the objectives of section 8103).
6

Daniel J. Perea, 42 ECAB 214 (1990). See generally Federal (FECA) Procedure Manual, Part 2 -- Claims,
Developing and Evaluating Medical Evidence, Chapter 2.810.10 (April 1993) (obtaining second opinions for
surgery).

3

ORDER
IT IS HEREBY ORDERED THAT the August 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2012
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, QUEENS VEHICLE
PLANT FACILITY, Jamaica, NY, Employer
__________________________________________

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Appearances:
Stephen Larkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0334
Issued: October 8, 2020

Case Submitted on the Record

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

JURISDICTION
On November 29, 2019 appellant, through counsel, filed a timely appeal from a July 22,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective December 7, 2018, as he no longer had
1

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

5 U.S.C. § 8101 et seq.

residuals or disability causally related to his accepted March 24, 2017 employment injury; and
(2) whether appellant has met his burden of proof to establish continuing employment-related
disability or residuals, on or after December 7, 2018.
FACTUAL HISTORY
This case has previously been before the Board on the issue of expansion.3 The facts and
circumstances as presented in the Board’s prior decision are incorporated herein by reference. The
relevant facts are set forth below.
On March 24, 2017 appellant, then a 50-year-old auto technician mechanic, ﬁled a
traumatic injury claim (Form CA-1) alleging that, on that day, he injured his knees, shin, and chest
while in the performance of duty.4 He stopped work on March 27, 2017 and has not returned to
work. In an accompanying March 29, 2017 narrative statement, appellant related that on
March 24, 2017 he and a coworker had loaded a vehicle bumper into his truck, and as he went to
move his truck, his pants caught onto the bumper. He contended that he went ﬂying down onto
the bumper hitting both of his knees, the left side of his chest, and right shin.
On July 12, 2017 OWCP accepted appellant’s claim for abrasion and contusion of the left
knee.
By decision dated July 13, 2017, OWCP denied expansion of the acceptance of appellant’s
claim to include additional conditions of bilateral osteoarthritis and tear of the meniscus of the
knee, right knee rupture of the ACL ligament, and bilateral knee sprain of the ACL joint. In reports
dated November 28, 2017 and January 15, 2018, Dr. Steven Touliopoulos, an attending Boardcertified orthopedic surgeon, opined that appellant was totally disabled and was unable to return
to work until further notice.
On January 18, 2018 OWCP referred appellant, together with a statement of accepted facts
(SOAF), the medical record, and a set of questions, to Dr. Timothy Henderson, a Board-certified
orthopedic surgeon, for a second opinion to determine whether he continued to suffer from
residuals of his accepted work-related conditions.
Dr. Henderson, in a report dated February 2, 2018, reviewed appellant’s history of injury
and medical records, and provided examination findings. He advised that his work-related
conditions had not resolved as there was evidence to support that these conditions were still active
and causing noted objective ﬁndings. Dr. Henderson advised that additional medical recovery
should be expected as maximum medical improvement (MMI) had not been obtained. He advised
that appellant’s prognosis was fair and that he was a candidate for left total knee replacement
followed by six weeks of postoperative physical therapy treatment, three times a week if medical
3

Docket No. 19-0294 (issued May 29, 2019).

4

Appellant has filed prior claims before OWCP. In OWCP File No. xxxxxx447, OWCP accepted his September 10,
2004 traumatic injury claim for a left knee sprain. In OWCP File No. xxxxxx468, it accepted appellant’s September 8,
2009 traumatic injury claim for a lumbar sprain. In OWCP File No. xxxxxx804, OWCP accepted his June 2, 2012
traumatic injury claim for a left shoulder impingement and cervical strain. Appellant had a nonwork-related history
of left knee arthroscopy performed approximately 18 years ago and bilateral knee osteoarthritis.

2

clearance could be obtained as he was overweight. Dr. Henderson found that, based on clinical
presentation, he was not currently capable of returning to his date-of-injury job as an auto
technician mechanic. However, appellant could return to work with restrictions in a sedentary
position. In an accompanying work capacity evaluation (Form OWCP-5c), Dr. Henderson listed
appellant’s work restrictions.
By letter dated February 13, 2018, OWCP requested that Dr. Henderson submit a
supplemental report, but his opinion remained unchanged.
OWCP received additional reports dated February 27 and March 27, 2018 by
Dr. Touliopoulos who continued to reiterate his clinical impressions and opinions regarding causal
relationship of additional medical conditions and appellant’s total disability.
OWCP, by letter dated April 4, 2018, again requested that Dr. Henderson clarify his
February 14, 2018 opinion that the accepted March 24, 2017 employment injury had aggravated
appellant’s preexisting left knee osteoarthritis. On April 16, 2018 it was informed that
Dr. Henderson was no longer practicing medicine.
On April 17, 2018 OWCP referred appellant, a SOAF, the medical record, and a set of
questions, to Dr. Andrew E. Farber, a Board-certified orthopedic surgeon, for a second opinion.
In an April 30, 2018 report, Dr. Farber reviewed the SOAF and appellant’s medical
records. He also noted his current complaint of left knee pain. On physical examination,
Dr. Farber reported diffuse tenderness and a palpable effusion about both knees. There was no
gross instability. Flexion and extension were 5/5 bilaterally globally. There was 0 degrees of
extension and 100 degrees of flexion on the right and 0 to 95 degrees on the left with discomfort
in just about any motion (normal was 0 to 150 degrees). A Lachman test did not reveal a ﬁrm end
point on either knee although the examination was somewhat limited secondary to discomfort. A
McMurray’s test was equivocal due to discomfort. Dr. Farber reviewed a magnetic resonance
imaging (MRI) scan of the left knee which showed nondisplaced peripheral tear of the body of the
medial meniscus, segments of chondral thinning and ﬁssuring involving the medial femoral
condyle and lateral tibial plateau, diffuse patellar chondral thinning and deep ﬁssuring involving
the medial and lateral patellar facets and segment of full-thickness chondral loss within the femoral
trochlea centrally, small joint effusion, synovitis beneath the ITB, and minimal inflammatory
changes of the pes anserine bursa. He noted that at the conclusion of the examination appellant
stepped down with discomfort from the examination table and used a cane for ambulation.
Dr. Farber indicated that he was treated with a signiﬁcant course of conservative treatment,
including physiotherapy and viscosupplementation, which failed to provide relief. He related that
appellant’s subjective complaints corresponded with objective findings. Dr. Farber advised that
the accepted work-related conditions of left knee contusion and left knee abrasion had resolved
and that no further medical treatment was indicated. He explained that there was no evidence to
support that the work condition was still active and causing objective findings. Dr. Farber found
that appellant could work in a sedentary capacity as he had moderate disability not related to his
accepted conditions. In an accompanying Form OWCP-5c, he found that appellant was unable to
perform his usual job, but he could work eight hours per day with specific restrictions.

3

On May 29, 2018 OWCP requested that Dr. Farber provide a supplemental report
clarifying whether the additional conditions of bilateral knee osteoarthritis, tear of the meniscus,
and sprain of the ACL, and right knee rupture of the ACL were caused or aggravated by the
March 24, 2017 work injury.
In a response letter dated June 1, 2018, Dr. Farber opined that, based on the history
provided and the SOAF, appellant fell on his left knee loading a bumper into a truck. He related
that there was no objective evidence to support an additional diagnosis other than left knee
contusion and left knee abrasion. Dr. Farber noted that appellant had a history of prior left knee
arthroscopy and additional work injuries involving the left knee with a diagnosis of sprain. He
concluded that an additional diagnosis would not be in relation to this work injury.
In a June 26, 2018 report, Dr. Touliopoulos reiterated his opinion that appellant was
indeﬁnitely totally disabled from work.
On July 19, 2018 OWCP updated the SOAF5 and requested that Dr. Farber review it and
provide a supplemental report indicating whether it impacted his prior responses.
Dr. Farber, in a letter dated July 26, 2018, related that upon his review of the updated
SOAF, the medical record, and appellant’s history, his previously submitted determination
remained unchanged. He noted that appellant had preexisting osteoarthritis. There were
underlying degenerative changes in his knees. Dr. Farber continued to opine that appellant’s workrelated conditions had resolved and that he could return to work in a sedentary position.6
In a September 25, 2018 form report, Dr. Touliopoulos conducted an examination and
reiterated his bilateral knee, right leg, and right shoulder diagnoses and opinion that appellant
remained totally disabled from his prior employment due to his March 24, 2017 employment
injury.
By notice dated October 22, 2018, OWCP advised appellant that it proposed to terminate
his wage-loss compensation and medical benefits based on Dr. Farber’s opinion that the March 24,
2017 accepted conditions had ceased without residuals or disability. It afforded him 30 days to
submit additional evidence or argument challenging the proposed termination.
OWCP subsequently received a September 25, 2018 narrative report, wherein
Dr. Touliopoulos noted that appellant had been treating with him for injuries sustained in a
March 24, 2017 work-related motor vehicle accident. Dr. Touliopoulos advised that he was totally
disabled and that he could not return to work until further notice.

5

The SOAF contained an updated history of the March 24, 2017 employment injury.

6

On October 1, 2018 OWCP received a request for authorization of a total left knee arthroplasty for appellant. By
decision of even date, it denied his request for authorization of a total left knee arthroplasty. OWCP found that the
weight of the medical evidence rested with the opinion of Dr. Farber that his accepted March 24, 2017 employment
injury had resolved without residuals or disability.

4

On November 24, 2018 appellant, through counsel, appealed OWCP’s August 16, 2018
decision to the Board.
By decision dated December 6, 2018, OWCP terminated appellant’s wage-loss and medical
compensation benefits effective December 7, 2018, finding that the medical evidence submitted
was insufficient to outweigh Dr. Farber’s opinion.
Thereafter, OWCP received a November 8, 2018 report by Dr. Charles DeMarco, a Boardcertified orthopedic surgeon. Dr. DeMarco noted a history of the March 24, 2017 employment
injury and discussed findings on physical and x-ray examination. He provided impressions of left
knee meniscal tear and chondral injuries and progression of underlying degenerative joint; right
knee ACL tear, medial meniscal tear, chondral injuries, and progression of underlying
degenerative joint disease; right leg injury, rule out muscle fascia defect versus post-traumatic
ﬁbroma versus further derangement; and consequential right shoulder impingement syndrome,
rule out labral, capsular and rotator cuff injuries consequentially related to a fall caused by his right
knee injury (gave out). Dr. DeMarco concluded that appellant remained totally disabled from
work due to his March 24, 2017 employment injury.
On December 21, 2018 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review regarding the December 6, 2018
termination decision.
In reports dated December 18, 2018 and March 5, 2019, Dr. Touliopoulos related a history
of the March 24, 2017 employment injury and discussed findings on physical and x-ray
examination. He provided impressions of left knee meniscal tear and chondral injuries and
progression of underlying degenerative joint; right knee ACL tear, medial meniscal tear, chondral
injuries, and progression of underlying degenerative joint disease; right leg injury, rule out muscle
fascia defect versus post-traumatic ﬁbroma versus further derangement; and consequential right
shoulder impingement syndrome, rule out labral, capsular and rotator cuff injuries consequentially
related to a fall caused by his right knee injury (gave out). Dr. Touliopoulos noted that appellant
remained totally disabled from his prior employment due to his March 24, 2017 employment
injury.
OWCP received a copy of Dr. Nicholas’ June 6, 2017 report and Dr. Milbauer’s May 24,
2017 left knee MRI scan report.
By decision dated July 22, 2019, an OWCP hearing representative affirmed the
December 6, 2018 termination decision as the opinion of Dr. Farber constituted the weight of
medical evidence that appellant had no continuing employment-related residuals or disability.7

7
In his July 22, 2019 decision, OWCP’s hearing representative noted that the case was returned to OWCP for
further development as indicated by the Board’s May 29, 2019 decision.

5

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.8 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.9 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.10
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.11 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective December 7, 2018, as he no longer had residuals or
disability causally related to his accepted March 24, 2017 employment conditions.
OWCP referred appellant to Dr. Farber for a second-opinion evaluation to determine the
status of his accepted conditions and his work capacity. In his April 30, 2018 report and June 1
and July 26, 2018 supplemental reports, Dr. Farber described appellant’s March 24, 2017
employment injury and noted that his claim was accepted for abrasion and contusion of the left
knee. He indicated that appellant’s physical examination revealed no objective findings of the
accepted conditions or additional left knee conditions causally related to the accepted injury.
Dr. Farber opined that the accepted work-related conditions had resolved, that appellant could
return to sedentary work as he had moderate disability not related to the accepted conditions, and
that there was no need for further medical treatment.
The Board finds that OWCP properly accorded the weight of the medical evidence to
Dr. Farber. Dr. Farber based his opinion on a proper factual and medical history and physical
examination findings and provided medical rationale for his opinion. He provided a well8
See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
9

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
10

K.W., Docket No. 19-1224 (issued November 15, 2019); see M.C., Docket No. 18-1374 (issued April 23, 2019);
Del K. Rykert, 40 ECAB 284, 295-96 (1988).
11

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
12
K.W., supra note 10; see A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727
(2002); Furman G. Peake, id.

6

rationalized opinion based on medical evidence regarding the accepted conditions causally related
to appellant’s March 24, 2017 employment injury. Accordingly, OWCP properly relied on
Dr. Farber’s second opinion report in terminating appellant’s wage-loss compensation and medical
benefits.13
The remaining evidence submitted prior to OWCP’s termination of appellant’s wage-loss
compensation and medical benefits is insufficient to overcome the weight afforded to Dr. Farber
as the second opinion physician. Appellant submitted a September 25, 2018 report from
Dr. Touliopoulos noting that appellant had been treating with him for injuries sustained in a
March 24, 2017 work-related motor vehicle accident. Dr. Touliopoulos advised that appellant was
totally disabled and that he could not return to work until further notice. In reports dated
November 28, 2017 and January 15, 2018, he restated the opinion that appellant was totally
disabled. However, Dr. Touliopoulos did not offer a rationalized opinion as to whether appellant’s
disability was causally related to the accepted employment injury. The Board has held that a
medical report is of limited probative value on a given medical issue if it contains a medical
opinion which is unsupported by medical rationale.14
The Board finds, therefore, that OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective December 7, 2018.
On appeal counsel contends that OWCP’s hearing representative affirmed the termination
of appellant’s benefits despite an improper SOAF. The Board finds, however, that the SOAF relied
upon by the hearing representative in terminating appellant’s compensation benefits effective
December 7, 2018 was updated on July 19, 2018 and it accurately described appellant’s
mechanism of injury on March 24, 2017 and listed his prior and current accepted employment
injuries and nonwork-related surgery.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates a claimant’s compensation benefits, the burden shifts to
appellant to establish continuing disability or residuals after that date, causally related to the
accepted injury.15 To establish causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background, supporting such causal
relationship.16

13
See K.W., id.; N.G., Docket No. 18-1340 (issued March 6, 2019); A.F., Docket No. 16-0393 (issued
June 24, 2016).
14

See L.S., Docket No. 19-0959 (issued September 24, 2019); M.H., Docket No. 17-0210 (issued June 3, 2018).

15

See D.G., Docket No. 19-1259 (issued January 29, 2020); S.M., Docket No. 18-0673 (issued January 25, 2019);
J.R., Docket No. 17-1352 (issued August 13, 2018).
16

Id.

7

ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish continuing
employment-related disability or residuals, on or after December 7, 2018.
Following the termination of his wage-loss compensation and medical benefits, appellant
submitted reports dated December 18, 2018 and March 5, 2019 from Dr. Touliopoulos who
diagnosed left knee meniscal tear and chondral injuries and progression of underlying degenerative
joint; right knee ACL tear, medial meniscal tear, chondral injuries, and progression of underlying
degenerative joint disease; right leg injury, rule out muscle fascia defect versus post-traumatic
ﬁbroma versus further derangement; and consequential right shoulder impingement syndrome,
rule out labral, capsular and rotator cuff injuries consequentially related to a fall caused by his right
knee injury (gave out). Dr. Touliopoulos opined that appellant remained totally disabled from his
prior employment due to his March 24, 2017 employment injury. While he provided an opinion
on the issue of whether appellant was capable of a return to work, his report is merely conclusory
in nature. Dr. Touliopoulos did not provide medical rationale explaining how the diagnosed
conditions were disabling and causally related to the accepted employment injury.17 A medical
opinion not fortified by medical rationale is of diminished probative value.18 Because
Dr. Touliopoulos failed to provide sufficient medical rationale for his conclusion, his opinion is
insufficient to meet appellant’s burden of proof.
Likewise, Dr. DeMarco’s November 8, 2018 report did not provide a rationalized medical
opinion on causal relationship. He diagnosed: left knee meniscal tear and chondral injuries and
progression of underlying degenerative joint; right knee ACL tear, medial meniscal tear, chondral
injuries, and progression of underlying degenerative joint disease; right leg injury, rule out muscle
fascia defect versus post-traumatic ﬁbroma versus further derangement; and consequential right
shoulder impingement syndrome, rule out labral, capsular and rotator cuff injuries consequentially
related to a fall caused by his right knee injury (gave out). Dr. DeMarco opined that appellant
remained totally disabled from work due to the March 24, 2017 employment injury. No supporting
medical rationale was provided to explain his conclusory opinion regarding the relationship
between the diagnosed conditions and disability and the accepted work injury.19 Dr. DeMarco’s
report, therefore, is insufficient to meet appellant’s burden of proof.
Appellant has not submitted rationalized medical evidence establishing continuing
employment-related disability or residuals on or after December 7, 2018 due to the accepted
March 24, 2017 employment injury. As such, the Board finds that he has not met his burden of
proof.

17

See L.B., Docket No. 19-1380 (issued February 11, 2020); V.D., Docket No. 19-0979 (issued February 5, 2020).

18

Id.; T.W., Docket No. 18-1573 (issued July 19, 2019).

19

See supra notes 16 and 17.

8

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective December 7, 2018, as he no longer had residuals or
disability causally related to his accepted March 24, 2017 employment conditions. The Board
further finds that he has not met his burden of proof to establish continuing employment-related
disability or residuals on or after December 7, 2018.
ORDER
IT IS HEREBY ORDERED THAT the July 22, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 8, 2020
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 12-1934
Issued: March 11, 2013

Case Submitted on the Record

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

JURISDICTION
On September 20, 2012 appellant filed a timely appeal from a July 20, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits for
failure to submit an EN1032 form when requested.

1

5 U.S.C. § 8101 et seq.

2

The record also contains a July 23, 2012 OWCP decision. Appellant did not appeal this decision to the Board.

FACTUAL HISTORY
This case has previously been before the Board. In a January 22, 2009 decision, the
Board affirmed a May 21, 2007 decision finding that appellant had no more than 41 percent
permanent impairment of the right arm, for which he received a schedule award.3 The facts and
circumstances of the case up to that point are set forth in the Board’s prior decision and
incorporated herein by reference.4 Appellant received wage-loss compensation and medical
benefits and was placed on the periodic rolls. He had been regularly completing EN1032 forms.
On April 7, 2012 appellant was forwarded the EN1032 form for the next reporting period
and provide information regarding his earnings. He was advised that his benefits would be
suspended pursuant to 20 C.F.R. § 10.528 if a completed EN1032 form was not received by
OWCP within 30 days. No response was received.
On May 8, 2012 OWCP made a second request that appellant complete the required form
within 30 days. Appellant was advised that his benefits would be suspended pursuant to 20
C.F.R. § 10.528 if the completed form was not received by OWCP within 30 days.
On May 17, 2012 appellant submitted a partially completed EN1032 form. He submitted
only pages two through six, but not Part A -- Employment. Appellant noted on page three, Part
C -- Dependents, that he was married but his wife did not live with him.
In a letter dated June 12, 2012, OWCP informed appellant of the missing page. It further
noted that, as his wife did not live with him, he did not make regular direct payments for her
support and was not claiming other dependents, he would not be eligible for the 75 percent
compensation rate. OWCP instructed appellant to provide updated information on his marital
status and to submit page one of the EN1032. Appellant was advised that his benefits would be
suspended pursuant to 20 C.F.R. § 10.528 if the information was not received by OWCP within
30 days. No response was received.
By decision dated July 20, 2012, OWCP suspended appellant’s wage-loss benefits
effective July 29, 2012. It informed him that his compensation would be restored retroactively
from the date of suspension once the information was received.5
3

On or before August 9, 2001 appellant, a letter carrier, developed right carpal tunnel syndrome while performing
his work duties. OWCP accepted the claim for right tenosynovitis and right carpal tunnel syndrome and authorized
right tenosynovitis and right carpal tunnel releases, which were performed on July 31, 2001. It also accepted acute
osteomyelitis of the fingers on the right hand, partial amputation of fingers on the right hand, staphylococcal
infection, abscess and open wound of the right finger. Appellant stopped work on July 9, 2001 and returned to a
limited-duty position in October 2002.
4

Docket No. 08-161 (issued January 22, 2009).

5

On July 20, 2012 OWCP again requested that appellant complete an EN1032 form within 30 days. The Board
notes that appellant submitted a completed EN1032 form with his appeal. The Board may only review evidence that
was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176
(issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB
281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). This decision does not preclude appellant from submitting
this form to OWCP.

2

LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.6
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.7 If an employee,
who is required to file such a report, fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.8
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.9
ANALYSIS
OWCP requested that appellant submit an EN1032 form with respect to his employment
activity performed for the prior 15 months. It requested the information by letters dated April 7,
May 8 and June 12, 2012 sent to his address of record advising him to submit the form within 30
days or his compensation could be suspended. The record reveals that, on May 17, 2012,
appellant submitted a partially complete EN1032 which was missing page one, Part A -Employment.
In a letter dated June 12, 2012, OWCP informed appellant of the missing information and
requested clarification of his marital status to determine the proper compensation rate. The
record establishes that he did not respond prior to July 20, 2012.
Based on the evidence of record, OWCP properly suspended appellant’s compensation
effective July 29, 2012 pursuant to 20 C.F.R. § 10.528.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits based
on his failure to timely submit a completed EN1032 form when requested.

6

5 U.S.C. § 8106(c).

7

20 C.F.R. § 10.528.

8

See N.G., 12-981 (issued December 4, 2012); Lucille A. Pettaway, 55 ECAB 228 (2004); Demetrius Beverly, 53
ECAB 305 (2002).
9

Supra note 6.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 20, 2012 is affirmed.
Issued: March 11, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, O’HARE AIR MAIL
FACILITY, Chicago, IL, Employer
__________________________________________

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

Docket No. 06-1691
Issued: June 18, 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 July 18, 2006 appellant filed a timely appeal from the June 29, 2006 merit decision of
the Office of Workers’ Compensation Programs, which awarded compensation for permanent
impairment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of the schedule award.
ISSUE
The issue is whether appellant has more than a 7 percent impairment of her right upper
extremity or more than a 14 percent permanent impairment of her left upper extremity.
FACTUAL HISTORY
On October 24, 1996 appellant, then a 56-year-old distribution clerk, sustained an injury
in the performance of duty: “I was pulling very heavy foreign bags when I felt a strain in my
shoulder so I can’t lift my right arm anymore.” She stopped work on February 17, 1997. The
Office accepted appellant’s claim for bilateral shoulder strain, bilateral rotator cuff tear, left
shoulder impingement syndrome and migraine headaches.

Appellant underwent an acromioplasty and right rotator cuff repair on February 17, 1997.
On September 4, 1999 she underwent a left rotator cuff repair. On December 14, 2000 appellant
underwent a repeat acromioplasty and right rotator cuff repair with distal claviculectomy. On
April 26, 2001 she underwent the same procedure on the left. Appellant took disability
retirement in April 2001 and received compensation for wage loss on the periodic rolls.
Effective September 20, 2003, she returned to work in a permanent assignment as a rehabilitation
clerk with no loss of wage-earning capacity. On April 1, 2004 appellant underwent a left rotator
cuff repair with acromioplasty and coracoacromial ligament release.
Appellant filed a claim for a schedule award. On November 8, 2004 Dr. Anthony A.
Romeo, an orthopedic surgeon, reported that she reached maximum medical improvement
(MMI) on October 12, 2004, when he last examined her. He listed ranges of shoulder motion
and noted that appellant had no neurological deficits bilaterally on her October 12, 2004 visit.
Dr. Romeo reported that strength was “+4/5” on the left and “5/5” on the right. He reported that
after her October 12, 2004 visit, appellant sent him a fax stating that she had pain in her
shoulders and very weak grip strength in both hands. Appellant was receiving special injections
in her neck and had to stop taking a pain medication that was pulled off the market. She stated
that she was in constant pain daily for long periods of time. Dr. Romeo recommended an
impairment rating of seven percent for the left upper extremity “based on her last physical
examination in the office.” He gave no rating for the right.
On February 12, 2006 an Office medical adviser reviewed Dr. Romeo’s findings. He
determined that appellant had a two percent bilateral upper extremity impairment due to Grade 3
pain in the suprascapular nerve distribution. The Office medical adviser determined that
appellant had a five percent bilateral impairment due to five planes of shoulder motion. He
determined that appellant had a 7 percent impairment of the left upper extremity due to a 10
percent strength deficit against gravity only. The Office medical adviser recommended a rating
of 7 percent for the right upper extremity and 14 percent for the left.
On June 29, 2006 the Office issued a schedule award for a 7 percent impairment of the
right upper extremity and a 14 percent impairment of the left. The Office indicated that
appellant reached MMI on October 12, 2004 and it used her pay rate effective April 1, 2004.
On appeal, appellant does not understand the reason she received a lower rating for her
right upper extremity, as she has an open rotator cuff on the right with no hope of repair while
the left is somewhat patched. She disagrees with the date of MMI for her right shoulder, the
status of which has been the same since February 4, 2003. Appellant also questioned the pay
rate of her schedule award because her July 2006 pay stub shows a higher annual rate, and she
questioned why a pay rate from April 1, 2004 was used for a period of award extending to
January 13, 2006.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
1

5 U.S.C. § 8107.

2

Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.2
The A.M.A., Guides explains that impairment should not be considered permanent until
the clinical findings indicate that the medical condition is static and well stabilized:
“It is understood that an individual’s condition is dynamic. Maximal medical
improvement refers to a date from which further recovery or deterioration is not
anticipated, although over time there may be some expected change. Once an
impairment has reached MMI, a permanent impairment rating may be
performed.”3
The period covered by a schedule award commences on the date that the employee
reaches MMI from the residuals of the injury. The question of when MMI has been reached is a
factual one which depends upon the medical findings in the record. The determination of such
date is to be made in each case upon the basis of the medical evidence in that case.4
Monetary compensation for total or partial disability due to an employment injury is paid
as a percentage of monthly pay.5 Section 8101(4) of the Act provides that “monthly pay” means
the monthly pay at the time of injury, or the monthly pay at the time disability begins, or the
monthly pay at the time compensable disability recurs if the recurrence begins more than six
months after the injured employee resumes regular full-time employment with the United States,
whichever is greater.6
ANALYSIS
Dr. Romeo, the attending orthopedic surgeon, reported that appellant reached MMI on
October 12, 2004, the date he last examined her. It is the opinion of appellant’s surgeon,
therefore, that her bilateral shoulder condition was static and well stabilized at that time. The
Board finds that this evidence clearly and convincingly establishes that appellant reached MMI
by October 12, 2004, such that it was proper for the Office to begin the payment of her schedule
award at that time. Appellant argues for an earlier date with respect to her right shoulder, but a
more retroactive date for MMI carries certain disadvantages. If retroactive, the schedule award
for her right shoulder could be paid at a lower pay rate than her left, impacting the cost-of-living

2

20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th
ed. 2001).
3

A.M.A., Guides 19.

4

Marie J. Born, 27 ECAB 623, 629-30 (1976).

5

5 U.S.C. §§ 8105, 8106.

6

Id. at § 8101(4); John D. Williamson, 40 ECAB 1179 (1989).

3

increase for 2003,7 and any compensation she received for wage loss after February 4, 2003.8
Also, if her right shoulder condition was in fact static and well stabilized as of February 4, 2003,
the earlier date will not change her impairment rating or increase the number of weeks of
compensation she receives for that impairment.9 The determination ultimately rests with the
medical evidence and appellant’s orthopedic surgeon unequivocally reported October 12, 2004
as the date of MMI.
With MMI established, the Office properly used Dr. Romeo’s clinical findings on
October 12, 2004 to determine appellant’s impairment rating. As to impairment due to loss of
left shoulder motion, according to Figure 16-40, page 476 of the A.M.A., Guides, forward
elevation (flexion) of 140 degrees is a three percent impairment of the upper extremity.
Extension of 30 degrees is a one percent impairment. Figure 16-43, page 477, indicates that
abduction of 150 degrees is a one percent impairment. Adduction of 30 degrees is also a one
percent impairment. Under Figure 16-46, page 479, external rotation of 80 degrees shows no
impairment. Internal rotation of 80 degrees also shows no impairment. Because the impairment
values contributed by each unit of motion are added to determine the impairment of the upper
extremity due to abnormal shoulder motion,10 appellant has a six percent impairment of her left
upper extremity due to loss of motion.11
On the right, Dr. Romeo reported the same ranges of motion with two exceptions:
adduction was improved to 45 degrees, and external rotation was improved to 90. Neither
demonstrated an impairment of the upper extremity. Appellant therefore has a five percent
impairment of her right upper extremity due to loss of motion.
Dr. Romeo reported no neurological deficits in either the left or right upper extremity on
October 12, 2004. The only other clinical finding he reported was “4+/5” strength on the left
side and “5/5” strength on the right in all planes, indicating a slight loss of strength on the left
during manual muscle testing. Dr. Romeo did not explain, however, whether he was assessing
appellant’s ability to move the joint against gravity only or against gravity with some resistance.
He did not exercise his clinical judgment to select the appropriate percentage deficit from the
range of values shown in Table 16-35, page 510. The Board finds, therefore, that Dr. Romeo did
not describe the character and degree of this impairment in sufficient detail to allow a proper
application of the A.M.A., Guides.

7

Franklin L. Armfield, 29 ECAB 500 (1978) (the Office properly excluded cost-of-living increases that became
effective prior to the date of MMI).
8

Marie J. Born, supra note 4 (an employee cannot concurrently receive compensation under a schedule award
and compensation for disability for work).
9

The Act provides 312 weeks’ compensation for the complete loss of an upper extremity. 5 U.S.C. § 8107(c)(1).
Partial losses are compensated proportionately. Id. at § 8107(c)(19). Thus, a seven percent impairment of
appellant’s right upper extremity is seven percent of 312 weeks, or 21.84 weeks of compensation, regardless of
when the schedule award begins.
10

A.M.A., Guides 479.

11

The Office medical adviser neglected to include adduction as one of the six planes of shoulder motion.

4

The Office medical adviser assumed that Dr. Romeo tested against gravity only and
selected, without explanation, a specific percentage deficit from Table 16-35. From a range of 5
to 25 percent, the Office medical adviser reported that appellant’s strength deficit was 10 percent
on the left “based on the documentation provided and clinical judgment.” But it is up to the
examining physician to exercise clinical judgment in this matter, and Dr. Romeo failed to do so.
The Office medical adviser further allowed an additional two percent impairment for pain
bilaterally, based not on any clinical description of neurological deficit but on a communication
from appellant that she was in constant pain daily for long periods of time. From this, the Office
medical adviser localized the area of involvement, identified the nerve structures innervated the
affected area, graded the severity of the sensory deficit as Grade 3 -- “Distorted superficial tactile
sensibility (diminished light touch and two-point discrimination), with some abnormal sensations
or slight pain, that interferes with some activities” -- and from a range of 26 to 60 percent
selected a 40 percent deficit of the suprascapular nerve, again with no rationale.12 Dr. Romeo’s
evaluation did not adequately address this.
The Office procedure manual provides that where the impairment has not been correctly
described, a new or supplemental evaluation should be obtained.13 The Board will therefore set
aside the Office’s June 29, 2006 schedule award and remand the case for further development.
In addition to determining whether appellant has impairment due to a spinal, brachial plexus or
peripheral nerve injury and whether she has impairment due to loss of strength on manual muscle
testing, the Office should determine whether motion impairments, derived separately, should be
combined with impairment for resection arthroplasty under Table 16-27, page 506 of the
A.M.A., Guides. The criteria for arthroplasty impairment should be used only when the other
criteria have not adequately encompassed the extent of appellant’s impairment. The evaluator
must apply proper judgment to avoid any duplication of impairment ratings.14 Further, the Board
notes that the impairment ratings in the body organ system chapters of the A.M.A., Guides make
allowance for any accompanying pain.15 After such further development as may be necessary,
the Office shall issue an appropriate final decision on appellant’s claim for a schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is warranted to determine the permanent impairment of appellant’s upper
extremities resulting from her October 24, 1996 employment injury.

12

As a matter of course, the Office medical adviser should provide rationale for the percentage of impairment
specified. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6.d(1) (August 2002).
13

Id. at Chapter 2.808.6.d(2).

14

A.M.A., Guides 499.

15

Id. at 20.

5

ORDER
IT IS HEREBY ORDERED THAT the June 29, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: June 18, 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

6