United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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VETERANS ADMINISTRATION, MEDICAL
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CENTER, Coatesville, PA, Employer
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___________________________________________ )
L.C., Appellant

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

Docket No. 10-1389
Issued: January 21, 2011

Case Submitted on the Record

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

JURISDICTION
On January 12, 2010 appellant filed a timely appeal from an October 16, 2009 merit
decision of the Office of Workers’ Compensation Programs that affirmed a March 25, 2009
schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than 11 percent impairment of his right upper
extremity, for which he received a schedule award.
FACTUAL HISTORY
On March 4, 2006 appellant, then a 49-year-old structural fire fighter, injured his right
shoulder while turning a tight valve on a sprinkler system. He stopped work on March 4, 2006.1
1

Appellant returned to limited duty on April 27, 2006, stopped work on May 10, 2006 and returned to limited
duty on June 14, 2006. The Office also accepted his recurrences of May 8, 2006 and April 16, 2007.

The Office accepted the claim for right shoulder sprain, partial right rotator cuff tear, cervical
sprain and strain and cervical radiculopathy. On May 3, 2007 Dr. Perry J. Argires, a Boardcertified neurosurgeon, diagnosed right C6-C7 radiculopathy secondary to foraminal stenosis at
C5-C6, C6-C7. He performed right C5, C6, C7 laminectomies, with right C5-C6 and C6-C7
facetectomies and foraminotomies.
On June 27, 2007 Dr. John P. Manta, a Board-certified neurosurgeon, performed
debridement of the glenohumeral joint with capsulotomy, debridement of the labrum, rotator
cuff, subacromial decompression and manipulation of the right shoulder. On November 1, 2007
and March 26, 2008 he performed right shoulder manipulation in the form of a right rotator cuff
repair. He released appellant to return to work on July 7, 2008.
On March 3, 2009 appellant requested a schedule award. In a September 16, 2008 report,
Dr. David Weiss, an osteopath, reviewed appellant’s history and provided findings on
examination. He rated impairment with reference to the American Medical Association, Guides
to the Evaluation of Permanent Impairment, (A.M.A., Guides) (5th ed. 2001). Dr. Weiss advised
that cervical spine range of motion was limited with pain at the extremes. The Spurling
maneuver was negative on the left and was positive on the right, producing ipsilateral pain but no
radicular component. The right shoulder had well-healed portal arthroscopy scars and focal
acromioclavicular joint tenderness. Appellant had tenderness over the long head of the biceps
and tenderness over the tip of the acromion. Right shoulder range of motion included forward
elevation of 110/180 degrees, abduction of 90/180 degrees, cross over adduction of 55/75
degrees, external rotation of 80/90 degrees and internal rotation of 65/90 degrees. Dr. Weiss
reported that appellant had daily neck pain and stiffness that waxed and waned and daily right
shoulder pain and stiffness. He listed restrictions in appellant’s activities of daily living that
included no longer being able to perform his gainful employment as a fire fighter; difficulty with
household chores of mowing the lawn, vacuuming, cleaning, laundry and shopping; difficulty
with self-care of washing and dressing himself and using the bathroom. Appellant had difficulty
with prolonged sitting; sleep; overhead reaching and lifting with the right arm; pulling and
pushing; baseball; and prolonged driving and riding in a car. Dr. Weiss advised that appellant’s
pain level was 7 to 8 out 10 for the cervical spine and right shoulder using the visual analogue
scale.
Under Figure 16-40 of the A.M.A., Guides, Dr. Weiss noted that, for right shoulder range
of motion, appellant had impairment of five percent for flexion2 four percent for abduction3 and
two percent for internal rotation.4 He added the range of motion values to total 11 percent
impairment. Dr. Weiss referred to Table 16-27 and advised that appellant also had impairment
of 10 percent for a right shoulder resection arthroplasty.5 He referred generally to Figure 18-1
and provided a pain-related impairment of three percent.6 Dr. Weiss combined these values and
2

A.M.A., Guides 476.

3

Id. at 477.

4

Id. at 479.

5

Id. at 506.

6

Id. at 574.

2

rated a total 23 percent impairment of the right arm. He stated that appellant reached maximum
medical improvement on September 16, 2008.
In a February 25, 2009 report, an Office medical adviser noted appellant’s history of
injury and treatment and reviewed the September 16, 2008 report of Dr. Weiss. Although he
provided a rating for a distal clavicle resection, the surgical record revealed that the arthroscopic
procedure on June 27, 2007 did not include a distal clavicle resection. The Office medical
adviser noted that surgery consisted of a right shoulder debridement and glenohumeral joint with
capsulotomy debridement of the labrum and rotator cuff as well as subacromial decompression
and manipulation. For this reason, he found that the 10 percent rating under Table 16- 27 could
not be utilized. Additionally, the Office medical adviser explained that the three percent rating
of pain could not be utilize as appellant did not meet the criteria under Chapter 18.3b of the
A.M.A., Guides.7 Regarding range of motion, the medical adviser referred to Table 16-40 to
find that appellant had 110 degrees of forward flexion, which represented five percent
impairment.8 He referred to Table 16-43 and found that 90 degrees of abduction was four
percent impairment and 55 degrees of adduction was no impairment.9 The Office medical
adviser referred to Figure 16-46 to find that internal rotation of 65 degrees warranted two percent
impairment.10 He added to the loss of range of motion to conclude that appellant had 11 percent
impairment of the right upper extremity.11
On March 12, 2009 appellant’s representative submitted a February 24, 2009 report from
Dr. Manta. He reviewed the report of Dr. Weiss and agreed that appellant sustained 23 percent
impairment to the right upper extremity.
On March 25, 2009 the Office granted appellant a schedule award for 11 percent
impairment of the right arm. The award covered the period from September 16, 2008 to
March 14, 2009.
On March 31, 2009 appellant’s representative requested a hearing, which was held on
July 28, 2009. In support of Dr. Weiss’ pain-related impairment, appellant’s representative
submitted a July 15, 2009 Quick DASH questionnaire from Dr. Weiss. The questionnaire noted
a score of 77 percent where 1 percent represented no disability and 100 percent represented total
disability.
On October 16, 2009 an Office hearing representative affirmed the March 25, 2009
decision.

7

Id. at 570.

8

Id. at 476.

9

Id. at 477.

10

Id. at 479.

11

Id. at 604.

3

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act12 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.13 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.14 The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.15
ANALYSIS
Appellant’s claim was accepted for right shoulder strain and sprain, cervical strain and
sprain, partial right rotator cuff tear and cervical radiculopathy. It authorized right C5, C6, C7
laminectomies, right C5-C6 and C6-C7 facetectomies foraminotomies, debridement of the
glenohumeral joint with capsulotomy, debridement of labrum, rotator cuff, subacromial
decompression and manipulation. Appellant also underwent two right shoulder manipulations to
repair the right rotator cuff.
Dr. Weiss found that appellant had 23 percent impairment of the right arm. The Board
notes that his rating of 10 percent for a right shoulder resection arthroplasty was excluded by the
Office medical adviser due to the nature of the surgery performed. Dr. Weiss cited to Table
16-27 which provides for 10 percent impairment for a distal clavicle resection.16 The Office
medical adviser noted that appellant did not undergo a distal clavicle resection as noted in the
surgical report of Dr. Manta. Dr. Weiss did not otherwise explain how appellant’s right shoulder
surgery would qualify as a distal clavicle resection. He also rated three percent for pain-related
impairment pursuant to Figure 18-1, page 574.17 According to section 18.3(b) of the A.M.A.,
Guides, “examiners should not use this chapter to rate pain-related impairments for any condition
that can be adequately rated on the basis of the body and organ impairment systems given in
other chapters of the guides.”18 Office procedures provide that Chapter 18 is not to be used in
combination with other methods to measure impairment due to sensory pain (Chapters 13,

12

5 U.S.C. §§ 8101-8193.

13

Id. at § 8107.

14

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

15

A.M.A., Guides (5th ed. 2001); 20 C.F.R. § 10.404.

16

See supra note 5.

17

See supra note 6.

18

Section 18.3b, page 571, A.M.A., Guides (5th edition, 2001). See C.J., 60 ECAB ___ (Docket No. 08-2429,
issued August 3, 2009) (the impairment ratings in the body organ system chapters of the A.M.A., Guides make
allowance for any accompanying pain).

4

16 and 17).19 Although Dr. Weiss also provided a July 15, 2009 Quick DASH questionnaire to
support the pain impairment, he offered no explanation as to how this aspect of the sixth edition
would support a pain rating under Chapter 18 of the fifth edition. He did not address whether the
range of motion impairment values of the A.M.A., Guides were insufficient to adequately rate
appellant’s pain. The pain rating was excluded based on insufficient explanation by Dr. Weiss.
Regarding range of motion, Dr. Weiss and the Office medical adviser agreed that
appellant had 11 percent impairment. The Board finds that the medical adviser properly
correlated the physical findings of the examining physician to rate the impairment to appellant’s
right shoulder. Applying Figures 16-40, 16-43 and 16-46 of the fifth edition of the A.M.A.,
Guides,20 five percent impairment was allowed for 110 degrees of flexion, four percent for
90 degrees of abduction and two percent for 65 degrees of internal rotation. Dr. Weiss and the
Office medical adviser added the loss of shoulder motion values to total 11 percent impairment
of the right arm. The Board finds that the evidence supports that appellant has 11 percent
permanent impairment of the right upper extremity.
On appeal, appellant’s representative argued that the Office medical adviser did not
explain why an additional impairment for pain was not warranted. As noted above, section
18.3(b) of the A.M.A., Guides, provides that examiners should not use Chapter 18 to rate
pain-related impairments for any condition that can be adequately rated on the basis of the body
and organ impairment systems given in other chapters of the A.M.A., Guides. Under this
Chapter of the fifth edition, it is up to the examining physician to explain why pain could not be
adequately rated under the other chapters of the A.M.A., Guides. Appellant’s representative also
argued that a conflict was created between the Office medical adviser and Dr. Weiss. The Board
finds, however, that the medical evidence of record does not support a conflict as two
components of Dr. Weiss’ rating were not adequately addressed, which diminished the probative
value of his report.21
CONCLUSION
The Board finds that appellant has no more than an 11 percent permanent impairment of
his right upper extremity for, which he received a schedule award.

19

See FECA Bulletin 01-05 (issued January 31, 2001); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.2 (June 2003).
20

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

21

See I.F., 60 ECAB ___ (Docket No. 08-2321, issued May 21, 2009) (an opinion which is not based upon the
standards adopted by the Office and approved by the Board as appropriate for evaluating schedule losses is of
diminished probative value in determining the extent of permanent impairment).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 16, 2009 is affirmed.
Issued: January 21, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., claiming as widow of E.P., Appellant
and
U.S. CUSTOMS SERVICE, Elk Grove, IL,
Employer
__________________________________________

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

Docket No. 13-2092
Issued: March 24, 2014

Case Submitted on the Record

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

JURISDICTION
On September 9, 2013 appellant filed a timely appeal of an August 7, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP), denying his application for
reconsideration without merit review of the claim. Since more than 180 days elapsed between
the last OWCP merit decision on December 20, 2012 and the filing of this appeal,1 the Board
lacks jurisdiction to review the merits of the claim pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim.

1

As noted in the factual history of the case, the Board reviewed the December 20, 2012 OWCP decision in a
June 19, 2013 decision. Infra note 3.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on two prior appeals. In a decision dated January 26,
2012, the Board found that the employee was exposed to mold spores on May 23, 1993 in the
performance of duty.3 The accepted conditions included aggravations of bronchial asthma,
chronic obstructive pulmonary disease (COPD), arrhythmia, ventricular tachycardia and aphasia,
as well as a consequential stroke on October 19, 1994. The Board found a conflict in medical
opinion under 5 U.S.C. § 8123(a) of FECA with respect to whether the employee’s death on
December 8, 2009 was causally related to her federal employment. The case was remanded for
referral to a referee physician.
In a decision dated June 19, 2013, the Board affirmed an OWCP December 20, 2012
hearing representative’s denial of appellant’s claim. The Board found the weight of the medical
evidence rested with the referee physician, Dr. Ofelia Alvarez-Willis, a Board-certified internist.
The history of the case as provided in the Board’s prior decision is incorporated herein by
reference.
By letter dated July 30, 2013, appellant, through his representative, requested
reconsideration. He submitted a June 13, 2013 brief with respect to the claim.4 In the June 13,
2013 brief, appellant reviewed in detail the evidence of record and argued that the statement of
accepted facts (hereinafter SOAF) provided to Dr. Alvarez-Willis did not provide a complete and
accurate background. He specifically argued that the conditions of coronary atherosclerosis and
aortic stenosis were accepted conditions that were not identified as accepted conditions in the
SOAF. In addition, appellant argued that the SOAF was deficient in failing to adequately
discuss the extensive medical documentation in the file.
By decision dated August 7, 2013, OWCP determined that the application for
reconsideration was insufficient to warrant a review of the merits of the claim. It indicated that
the Board had previously reviewed the SOAF issue.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
OWCP regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”6 20
3

Docket No. 11-1479 (issued January 26, 2012).

4

The June 13, 2013 document is addressed to the Board, but this brief was not received and considered by the
Board prior to the June 19, 2013 decision.
5

5 U.S.C. § 8128(a) (providing that “[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”).
6

20 C.F.R. § 10.606(b)(2).

2

C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(2) will be denied by OWCP without review of the
merits of the claim.7
ANALYSIS
In the present case, appellant submitted an application for reconsideration and argued that
the SOAF provided to the referee physician was not sufficient. As noted above, a claimant that
advances a relevant legal argument not previously considered by OWCP is entitled to a merit
review of the claim. In the August 7, 2013 decision, OWCP indicated that the argument
regarding the SOAF was not a new argument as the Board had considered the issue in its
June 19, 2013 decision
The Board’s consideration of the issue in the prior decision was limited to appellant’s
argument that the SOAF did not include a stroke as a consequential injury. As the Board noted,
the SOAF did refer to a consequential stroke. In the current application for reconsideration,
appellant raised a new legal argument regarding the SOAF. He advanced the argument that
specific conditions of coronary atherosclerosis and aortic stenosis were accepted conditions that
were not identified in the SOAF. This is a new and relevant legal argument, as it is well
established that a SOAF should state the conditions claimed and accepted by OWCP, so that the
physician can properly assess the issue presented.8 OWCP procedures indicate that an essential
element of the SOAF is to identify the conditions accepted by OWCP.9
The Board finds appellant has advanced a relevant legal argument not previously
considered by OWCP. Pursuant to 20 C.F.R. § 10.606(b)(2), appellant is entitled to a merit
review of the claim. The case will be remanded for a decision by OWCP on the merits of the
claim.
CONCLUSION
The Board finds appellant is entitled to a merit review of the claim.

7

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

8

Gwendolyn Merriweather, 50 ECAB 411 (1999).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.5
(September 2009).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 7, 2013 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: March 24, 2014
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF LABOR, BUREAU OF
LABOR STATISTICS, Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0207
Issued: April 16, 2021

Case Submitted on the Record

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

On November 4, 2019 appellant filed a timely appeal from a June 24, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 20-0207.
On September 14, 2018 appellant, then a 34-year-old economic assistant, filed a traumatic
injury claim (Form CA-1) alleging that on July 24, 2018 he was physically and verbally assaulted
and battered by a resident of an apartment complex while conducting housing surveys while in the
performance of duty. On the reverse side of the claim form, the employing establishment indicated
that appellant was injured in the performance of duty on July 24, 2018.
In a development letter dated November 20, 2018, OWCP informed appellant that
additional evidence was needed to establish his claim. It advised him of the type of factual and
medical evidence necessary and attached a questionnaire for his completion. OWCP provided 30
days for appellant to submit the requested evidence.
OWCP received evidence in response to the November 20, 2018 development letter.
By decision dated January 10, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that appellant was injured in the

performance of duty, as alleged. It concluded, therefore, that the requirements had not been met
to establish an injury as defined by FECA.
On February 6, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
An April 22, 2019 memorandum of telephone call (Form CA-110) indicated that appellant
was concerned about the scheduling of his oral hearing date, and advised that he would not be
available June through August due to military deployment. OWCP suggested that he send his
request in writing with as many details as possible and added that it would be considered.
In an April 22, 2019 letter, appellant requested that his oral hearing be scheduled after
September 15, 2019 in order to accommodate his military training in the summer and his Family
and Medical Leave Act (FMLA) leave after his military training due to the upcoming birth of his
child in the beginning of September. He stated that if his hearing was scheduled between June and
August he would not be available due to his military leave, and he related that he attached
reservation dates.
An April 25, 2019 Form CA-110 indicated that OWCP confirmed with appellant that
partial documents were received regarding his request to delay his oral hearing, and it advised that
the additional evidence he mentioned in his statement needed to be submitted prior to its final
response. Appellant stated that he was working on submitting the evidence.
In an April 29, 2019 Form CA-110, OWCP informed appellant that the information
currently on file was insufficient to grant a postponement. It further advised that if his claim was
in posture for hearing it would be scheduled in June 2019.
On May 9, 2019 OWCP informed appellant that it scheduled his hearing date for June 10,
2019 at 10:30 a.m. Eastern Time and supplied the toll free number and passcode.
By decision dated June 24, 2019, OWCP determined that appellant had abandoned his
request as he failed to appear at the June 10, 2019 oral hearing. It indicated that he had received
written notice of the hearing 30 days in advance, and that he failed to appear for the oral hearing.
OWCP further noted that there was no indication in the record that appellant had contacted it either
prior to or subsequent to the scheduled hearing to explain his failure to appear.
The Board has duly considered the matter and finds that OWCP improperly determined
that appellant had abandoned his request for hearing.
OWCP’s found in its June 24, 2019 decision that there was no indication in the record that
appellant had contacted it either prior to or subsequent to the June 10, 2019 scheduled hearing to
explain his failure to appear. However, an April 22, 2019 Form CA-110 indicated that appellant
called OWCP concerned about the scheduling of his oral hearing date and indicated that he would
not be available June through August due to military deployment. In an April 22, 2019 letter,
appellant requested that his oral hearing be scheduled after September 15, 2019 in order to
accommodate his military training in the summer and subsequent FMLA leave. An April 25, 2019
Form CA-110 indicated that OWCP confirmed with appellant that documents were received

2

regarding his request to delay his oral hearing. OWCP, however, proceeded to schedule his hearing
for June, 10, 2019 when he would be unavailable due to military deployment and FMLA leave.
As the circumstances of this case do not meet the criteria for abandonment as provided in
Chapter 2.1601.6(g) of OWCP’s procedures, the Board finds that appellant did not abandon his
request for an oral hearing.1
IT IS HEREBY ORDERED THAT the June 24, 2019 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: April 16, 2021
Washington, DC

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

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

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

1
Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011); see also N.P., Docket No. 09-2263 (issued May 17, 2010).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Hines, IL, Employer
__________________________________________

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

Docket No. 13-1477
Issued: October 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 10, 2013 appellant filed a timely appeal from the January 3, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a traumatic injury in the
performance of duty on September 21, 2011.
FACTUAL HISTORY
On October 5, 2011 appellant, then a 62-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a hip injury in the performance of duty on
1

5 U.S.C. § 8101 et seq.

September 21, 2011. His injury occurred as he aided in the arrest of an individual he pushed
against a wall. Appellant’s hip began to hurt several days later.
On October 12, 2011 OWCP requested additional medical evidence from appellant. It
noted that he had not submitted any medical evidence with his claim form. OWCP afforded
appellant 30 days to submit additional evidence.
In response, appellant submitted an October 11, 2011 prescription slip from
Dr. Michelle D. Harris, an internist, who diagnosed left hip strain and prescribed physical
therapy. Appellant also submitted notes from John T. Comerouski, a physical therapist. On
October 24, 2011 Mr. Comerouski advised Dr. Harris of appellant’s statement of the events that
led to his injury. Appellant reported that on September 21, 2011 he was arresting an individual
and twisted suddenly, feeling a pull on the outside of his left hip region that extended along the
lateral leg to his knee. He reported that his symptoms had been variable day-to-day, but the left
hip was painful every day.
By decision dated November 17, 2011, OWCP denied appellant’s claim, finding that the
medical evidence was not sufficient to support that his left hip condition was causally related to
the September 21, 2011 employment incident.
On December 15, 2011 appellant requested review of the written record by an OWCP
hearing representative.
In an attending physician’s report dated October 12, 2011, Dr. Harris noted that appellant
stated that his injury occurred when he attempted to subdue an assailant and fell to the ground.
She diagnosed appellant with left hip strain and low back pain, noting upon examination that he
experienced pain with flexion and abduction. Dr. Harris checked a box indicating that the
condition was caused or aggravated by an employment activity, noting that appellant “fell while
subduing suspect.” In a work capacity evaluation dated October 21, 2011, she outlined work
restrictions including limitations on sitting, walking, bending, squatting and stooping. Dr. Harris
did not address whether appellant’s injuries were work related.
In a November 17, 2011 job offer from the employing establishment, the employing
establishment offered appellant a temporary-duty assignment with work restrictions including no
heavy lifting, no excessive bending and no prolonged standing.
In a December 1, 2011 addendum, Mr. Comerouski recommended a plan of physical
therapy treatment for appellant on a basis of two to three visits per week over a four- to six-week
period. This would be followed by a reevaluation by Dr. Harris who signed the addendum and
indicated that she agreed with the proposed plan of care.
Appellant also submitted a letter dated December 7, 2011 with an illegible signature,
written on Dr. Harris’s letterhead. The letter stated that appellant was undergoing physical
therapy and that he would need at least six to eight weeks and follow-up visits, with a
reevaluation of his condition to occur in February 2012.
By decision dated January 3, 2013, an OWCP hearing representative affirmed the
November 17, 2011 decision. He found that Dr. Harris had not provided an accurate factual
2

history of the claimed injury. The hearing representative noted that the medical evidence
provided by Dr. Harris included a description in which appellant had fallen to the ground as the
mechanism of injury. This was not consistent with appellant’s description on his Form CA-1,
which described the mechanism of injury as pushing an individual against a wall in the course of
an arrest.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.5
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.6 The opinion of the physician must be
based on a complete factual and medical background of the employee, 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 employee.7 The weight of the medical evidence is determined by its reliability, its probative

2

5 U.S.C. §§ 8101-8193.

3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

6

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

7

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.8
ANALYSIS
Appellant alleged that on September 21, 2011 he sustained a hip injury when he aided in
the arrest of an individual that he pushed against a wall. OWCP accepted that the September 21,
2011 incident occurred as described. It denied the claim, finding that the medical evidence was
premised on an incorrect history of the accepted incident. The Board finds that appellant failed
to meet his burden of proof to provide sufficient medical evidence to establish an injury as a
result of the September 21, 2011 employment incident.
The only narrative medical report OWCP received in support of the claim was that of
Dr. Harris. In an attending physician’s report dated October 12, 2011, Dr. Harris listed a history
that appellant attempted to subdue an assailant and fell to the ground. She diagnosed a left hip
strain and low back pain, noting upon examination that he experienced pain with flexion and
abduction. Dr. Harris checked a box indicating that the condition was caused or aggravated by
the employment activity, writing that appellant “fell while subduing suspect.” As noted,
appellant must submit medical evidence with a rationalized opinion on causal relationship
between the diagnosed conditions and the identified employment factors. In determining
whether a medical report provides a rationalized opinion on causal relation is whether it is based
on a complete and accurate factual background.9 Dr. Harris’s attending physician’s report
conflicts with the description of the September 21, 2011 incident provided by appellant on his
Form CA-1. Appellant stated that he helped in the arrest of an individual who he pushed against
a wall. He made no mention of a fall. Dr. Harris did not address how the accepted incident, of
appellant pushing an individual against a wall during an arrest, caused a left hip injury. Her
report is based on an inaccurate factual background. Because it is based on such an incomplete
or inaccurate factual background, it is of diminished probative value on the issue of causal
relationship, and is insufficient to support appellant’s claim.
Appellant also submitted on October 21, 2011 a prescription slip, a Form CA-20
attending physician’s report, and an October 21, 2011 Form OWCP-5c work capacity evaluation
from Dr. Harris. Neither the prescription slip nor the Form OWCP-5c work capacity evaluation
address the accepted incident as contributing to or causing appellant’s injury. Medical evidence
that does not address the causal relationship between a diagnosed condition and specified workrelated factors is of diminished probative value on the issue of causal relationship.10
Appellant also submitted a physical therapy notes from Mr. Comerouski in support of his
claim. A physical therapist is not a “physicians” as defined under FECA and, therefore, their
medical reports do not qualify as probative medical evidence supportive of a claim for federal

8

James Mack, 43 ECAB 321, 329 (1991).

9

See C.G., Docket No. 11-1087 (issued December 2, 2011); Joseph N. Fassi, 42 ECAB 677, 679 (1991).

10

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

4

workers’ compensation, unless such medical reports are countersigned by a physician.11 All but
one of the documents from Mr. Comerouski lack signatures by a physician.12 Therefore, these
documents do not qualify as probative medical evidence in support of appellant’s claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained injury to his left hip or
lower back on September 21, 2011 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 3, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

11

See 5 U.S.C. § 8101(2); Vickey C. Randall, 51 ECAB 357, 360 n.4 (2000).

12

The only document containing a signature from a physician is the December 1, 2011 addendum to
Mr. Comerouski’s physical therapy evaluation summary. Dr. Harris agreed with the proposed plan of care. Her
signature indicates only her agreement with the proposed plan of care and not her agreement with any medical
conclusions reached by Mr. Comerouski.

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
J.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
AMERICAN LAKE VETERANS
ADMINISTRATION MEDICAL CENTER,
Tacoma, WA, Employer
___________________________________________

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

Docket No. 15-1784
Issued: October 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 17, 2015 appellant filed a timely appeal from June 5 and July 28, 2015 merit
decisions 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 501.3,2 the Board has
jurisdiction over the merits of the claim.3

1

5 U.S.C. §§ 8101-8193.

2

The Board notes that appellant submitted evidence with his appeal to the Board. The Board cannot consider this
evidence as its jurisdiction is limited to the evidence of record that was before OWCP at the time it issued its final
decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).
3

The instant claim was adjudicated by OWCP under file number xxxxxx947. OWCP also accepted that on
August 17, 2000 appellant sustained a right medial meniscus tear, adjudicated under file number xxxxxx057, and on
August 12, 2002 sustained a left ankle strain, adjudicated under file number xxxxxx965. Appellant has a second
appeal before the Board regarding file number xxxxxx947 that will be adjudicated separately under Docket No.
15-1448.

ISSUE
The issue is whether OWCP abused its discretion by denying appellant authorization for
physical therapy for the period April 23 to June 23, 2015.
On appeal appellant asserts that the medical evidence of record supports the need for
physical therapy. He also requests a “final medical examination.”
FACTUAL HISTORY
On August 28, 2007 appellant, then a 53-year-old engineering equipment operator, filed
an occupational disease claim alleging that he injured his right great toe which became infected
and required amputation. OWCP accepted an employment-related aggravation of right great toe
osteomyelitis. Appellant underwent a partial right great toe amputation on September 14, 2007,
returned to modified duty in October 2007, and returned to full duty several weeks later.
In July 2010 appellant informed OWCP that his right toe condition had worsened and he
was being treated by the Department of Veterans Affairs (VA). Appellant’s supervisor stated
that from November 2007 appellant performed his duties with increasing discomfort.
In August 2010 OWCP referred appellant to Dr. David S. Whitney, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a September 2, 2010 report, Dr. Whitney
noted a history that in 1975, while appellant was working in private employment, he crushed his
right foot between rollers and developed some sympathetic nerve pain and had surgery to relieve
the pain. In 1992 appellant went to work for the employing establishment, and in 2006, when
stepping out of a backhoe, felt something pop in his right great toe. He described symptoms of
stabbing pain in the right foot, mainly around the area of the amputation, right ankle pain with
weight bearing, and right hip pain. Dr. Whitney noted his review of the medical record and
provided physical examination findings. He stated that because appellant had surgical
amputation of the entire right great toe and distal first metatarsal, he had medial migration of the
second and third toes of the right foot, and also rotation and contractures of the toes with blister
and/or soft callus formation of the second right toe. Sensation was globally diminished from the
ankle downward in the right foot. Dr. Whitney advised that appellant probably dislocated the
dorsal metatarsophalangeal joint of the right great toe in April 2006, and with an unreduced
deformity, the base of the right great toe became infected, and this led to the amputation. He
opined that appellant’s right hip strain was secondary to abnormal gait following the work injury,
and that appellant’s ongoing nerve pain and weight-bearing pain were secondary to the work
injury. Dr. Whitney noted that appellant might require additional right foot surgery but could
work full time, with no prolonged walking or repetitive climbing. In an attached work capacity
evaluation, he provided physical limitations.
On October 1, 2010 OWCP accepted right great toe osteomyelitis, right hip sprain, and
closed dislocation of right great toe metatarsophalangeal joint.
Appellant filed a schedule award claim on February 14, 2011. He retired on disability
effective April 8, 2011. By letter dated September 26, 2011, OWCP informed appellant that
maximum medical improvement had not been reached because based on Dr. Whitney’s
evaluation additional medical treatment was recommended.
2

In a November 29, 2011 report, Dr. Amy Duckworth, a podiatrist, noted appellant’s
complaint of right foot problems including increased deformity and inability to wear anything
except a slipper. She indicated that surgical options were discussed and requested authorization
for right tendoAchilles lengthening (TAL) and amputation of all digits.
OWCP authorized the requested surgery on March 7, 2012. On July 13, 2012
Dr. Duckworth amputated digits two through five of the right foot and performed a TAL
procedure of the right foot.4
In an April 22, 2015 report, Dr. Marciano B. Capati, Board-certified in family medicine,
noted that appellant was there for ongoing care. He described the history of injury, appellant’s
past medical and surgical history, and his complaints of right foot and hip pain. On physical
examination of the lower extremities, Dr. Capati noted amputation of all toes on the right, a
normal gait, normal strength, and tenderness to examination of the right calf and hip. He
diagnosed hypertension, and calf, hip, and foot pain. Dr. Capati advised that he would treat
appellant conservatively with physical therapy and medication. A right hip x-ray on April 22,
2015 showed no acute fracture or dislocation, and a small area that could reflect previous trauma.
Dr. Capati referred appellant for physical therapy that day, noting diagnoses of pain in right calf
and pain in limb.
Appellant was evaluated for physical therapy on April 23, 2015. The physical therapy
provider requested authorization for eight weeks of physical therapy, to run from April 23 to
June 23, 2015.
On April 28, 2015 Dr. Capati reported that appellant had continued hip and lower
extremity pain. He recommended treatment with medication, physical therapy, and massage
therapy.
By letter dated April 29, 2015, OWCP advised appellant that physical/occupational
therapy for the period April 23 to June 23, 2015 could not be authorized because the record did
not contain medical evidence that explained the need for the treatment requested due to the
accepted conditions. Appellant began physical therapy that day.
On April 30, 2015 Dr. Steven Teeny, a Board-certified orthopedic surgeon, noted seeing
appellant for right hip pain. He described physical examination findings including a normal gait
and intact sensation to the lower extremities. Dr. Teeny diagnosed right lumbago. He advised
that appellant’s hip pain probably originated in the lumbar spine. A May 6, 2015 lumbosacral
spine x-ray demonstrated surgical changes at the L4 level with degenerative changes from L3 to
S1.
On May 8, 2015 Dr. Capati recommended massage therapy to relieve right hip pain. The
physical therapy provider requested authorization for eight weeks of physical therapy, to run
from May 7 to July 7, 2015. Appellant continued physical therapy sessions.

4

In November 2013, appellant changed his address to a post office box in Winchester, Oregon. This was
acknowledged by OWCP on December 6, 2013.

3

On June 1, 2015 OWCP authorized 32 units of massage therapy, for the period May 7 to
July 5, 2015.5
In a decision dated June 5, 2015, OWCP denied authorization for physical/occupational
therapy for the period April 23 to June 23, 2015 because the evidence did not support that the
requested therapy was medically necessary.
On June 23, 2015 appellant requested reconsideration. In reports dated May 6 and
June 15, 2015, Dr. Capati described appellant’s complaint of increasing right hip and knee pain.
He advised that appellant’s foot pain caused him to walk awkwardly, leading him to develop
pain in the right knee and hip, and to eventually develop low back pain. In correspondence dated
June 16, 2015, Sherri Lucke, a licensed massage practitioner, and Alicia Gilfoy, a physical
therapist, maintained that appellant needed the requested therapy for his right hip and ankle pain
and also requested a prosthetic device. Additional therapy was recommended.
On June 23, 2015 OWCP denied appellant’s request.
In a merit decision dated July 28, 2015, OWCP denied modification of the June 5, 2015
decision because the medical evidence, from a physician, did not support that the requested
therapy for the period April 23 to June 23, 2015 was medically necessary to address the effects
of appellant’s accepted conditions.
LEGAL PRECEDENT
Section 8103 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, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.6
In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under FECA. OWCP has the general objective of
ensuring that an employee recovers from his or her injury to the fullest extent possible in the
shortest amount of time. It therefore has broad administrative discretion in choosing means to
achieve this goal. The only limitation on OWCP’s authority is that of reasonableness. Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from

5

Appellant filed a schedule award claim on May 25, 2014. On September 3, 2014 OWCP denied his schedule
award claim. It noted that the record did not contain a medical report sufficiently describing appellant’s current
condition. In correspondence postmarked October 1, 2014, appellant requested a hearing. By decision dated June 3,
2015, OWCP found that he had abandoned his request for a hearing regarding the September 13, 2014 decision.
Appellant filed an appeal with the Board from the June 3, 2015 decision, adjudicated separately by the Board under
Docket No. 15-1448. Supra note 3.
6

5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).

4

established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.7
While OWCP is obligated to pay for treatment of employment-related conditions, the
employee has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.8
ANALYSIS
The accepted conditions in the master file in this case, file number xxxxxx947, are right
great toe osteomyelitis, right hip sprain, and closed dislocation of right great toe
metatarsophalangeal joint. Under subsidiary file number xxxxxx057, a right medial meniscus
tear is accepted, and under subsidiary file number xxxxxx965, a left ankle strain is accepted. In
decisions dated June 5 and July 28, 2015, OWCP denied appellant’s request for authorization of
physical/occupational therapy for the period April 23 to June 23, 2015 because the evidence did
not support that the requested therapy was medically necessary to address the effects of his
accepted conditions.
In April 2015, Dr. Capati, an attending family physician, recommended that appellant
have physical therapy. On April 22, 2015 the physical therapy provider requested authorization
for eight weeks of therapy, to begin on April 23, 2015, the date appellant was evaluated by
physical therapists. By letter dated April 29, 2015, OWCP denied authorization and informed
appellant that the medical evidence did not explain the need for treatment due to the accepted
conditions.
Lay individuals such as physician assistants, nurses, and physical therapists are not
competent to render a medical opinion under FECA9 and the opinions of Ms. Lucke, a massage
practitioner, and Ms. Gilfoy, a physical therapist, are of no probative medical value as to the
need for therapy in this case.
The only restriction on OWCP’s authority to authorize medical treatment is one of
reasonableness. In a treatment note dated April 22, 2015, Dr. Capati diagnosed calf, hip, and
foot pain and advised that he would treat appellant conservatively with physical therapy and
medication. He referred appellant for physical therapy that day, indicating that it was for right
calf and limb pain, neither of which are accepted conditions.
On May 8, 2015 Dr. Capati recommended massage therapy to relieve hip pain as right
hip sprain is an accepted condition. This was authorized by OWCP on June 1, 2015. On
June 15, 2015 Dr. Capati described appellant’s complaint of increasing right hip and knee pain.
He advised that appellant’s foot pain caused him to walk awkwardly, leading him to develop
pain in the right knee and hip, and eventually low back pain. Dr. Capati, however, did not
adequately explain the need for treatment to provide relief of the accepted conditions. Thus,
7

Daniel J. Perea, 42 ECAB 214 (1990).

8

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

9

David P. Sawchuk, 57 ECAB 316 (2006).

5

OWCP did not abuse its discretion when it denied appellant’s request for physical therapy for the
period April 23 to June 23, 2015.10
As to appellant’s request that OWCP perform a “final examination,” the determination of
the need for an examination, the type of examination, the choice of locale, and the choice of
medical examiners are matters within the province and discretion of OWCP.11
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 did not abuse its discretion when it denied appellant’s
request for physical therapy for the period April 23 to June 23, 2015.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 28 and June 5, 2015 are affirmed.
Issued: October 2, 2015
Washington, DC

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

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

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

10

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

11

J.T., 59 ECAB 293 (2008).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE ARMY, WHITE
SANDS MISSLE RANGE, NM, Employer
__________________________________________

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

Docket No. 21-0466
Issued: February 16, 2022

Case Submitted on the Record

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

JURISDICTION
On February 2, 2021 appellant filed a timely appeal from a September 15, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated July 29, 2019 to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 27, 2018 appellant, then a 49-year-old water/wastewater systems mechanic,
filed a traumatic injury claim (Form CA-1) alleging that on September 9, 2016 she strained her
left shoulder when she unloaded pails of chlorine tablets weighing 20 -55 pounds while in the
performance of duty.
By decision dated January 7, 2019, OWCP denied the claim, finding that the evidence of
record was insufficient to establish that the September 9, 2016 employment incident occurred, as
alleged. It noted that appellant did not respond to its December 6, 2018 development letter or
complete the attached questionnaire as requested. It concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
On March 26, 2019 appellant requested reconsideration. By decision dated April 22, 2019,
OWCP denied further merit review of appellant’s claim.
On May 3, 2019 appellant again requested reconsideration of the January 7, 2019 merit
decision and submitted medical evidence. By decision dated July 29, 2019, OWCP denied
modification of its prior decision. 2
On August 11, 2020 appellant requested reconsideration of OWCP’s July 29, 2019
decision. She submitted her completed development questionnaire dated November 18, 2019 and
medical reports dated September 13, 2016 through November 7, 2019.
By decision dated September 15, 2020, OWCP denied appellant’s request for
reconsideration of the merits of her claim, finding that it was untimely filed and failed to
demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.3 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 4 Timeliness is determined by the document receipt date, i.e.,

2

Appellant appealed the July 29, 2019 decision to the Board. In its July 31, 2020 order, the Board dismissed the
appeal because the appeal was untimely filed. Order Dismissing Appeal, Docket No. 20-1390 (issued July 31, 2020).
3

5 U.S.C. § 8128(a); see also T.J., Docket No. 21-0586 (issued September 30, 2021); L.W., Docket No. 18-1475
(issued February 7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).
4

20 C.F.R. § 10.607(a).

2

the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 5
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 6
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 7 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.8 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 10 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.11
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

6

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
7

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).
8

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).
9

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

10

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

11

C.M., Docket No. 19-1211 (issued August 5, 2020).

3

error.12 The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP. 13
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
The last merit decision was dated July 29, 2019. As appellant’s request for reconsideration
was not received by OWCP until August 11, 2020, more than one-year after the July 29, 2019
merit decision, pursuant to 20 C.F.R. § 10.607(a), the Board finds that it was untimely filed.
Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the
claim.14
The Board further finds that OWCP summarily denied appellant’s request for
reconsideration without complying with the review requirement of FECA and its implementing
regulations.15 As noted, section 8124(a) of FECA provides that OWCP shall determine and make
a finding of fact and make an award for or against payment of compensation. 16 Its regulations at
20 C.F.R. § 10.126 provide that the decision of the director of OWCP shall contain findings and
facts and a statement of reasons. 17 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it. 18 In denying appellant’s August 11,
2020 reconsideration request, OWCP noted that appellant submitted duplicate documents and
summarily concluded that the evidence failed to demonstrate clear evidence of error. The
September 15, 2020 decision simply noted: “You did not present clear evidence of error.… The
basis for this decision is.” However, OWCP did not review the evidence submitted following its
last merit decision and did not make findings explaining the basis of its decision. 19
12

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

13

D.S., Docket No. 17-0407 (issued May 24, 2017).

14

20 C.F.R. § 10.607(b); S.C., Docket No. 20-1537 (issued April 14, 2021); R.T., Docket No. 19-0604 (issued
September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).
15

See Order Remanding Case, W.D., Docket No. 20-0859 (issued November 20, 2020); Order Remanding Case,
C.G., Docket No. 20-0051 (issued June 29, 2020); Order Remanding Case, T.P., Docket No. 19-1533 (issued April 30,
2020); see also 20 C.F.R. § 10.607(b).
16

5 U.S.C. § 8124(a).

17

20 C.F.R. § 10.126.

18
Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit b eing denied and the reason for the
disallowance).
19

See T.N., Docket No. 21-0274 (issued July 9, 2021); see also Order Remanding Case, J.F., Docket No. 21-0407
(issued November 10, 2021); C.G., Docket No. 20-0051 (issued June 29, 2020); R.T., Docket No. 19-0604 (issued
September 13, 2019).

4

Thus, the Board finds that OWCP did not comply with the review requirements of FECA
and its implementing regulations. 20 Accordingly, appellant could not understand the precise defect
of the claim, i.e. whether she had demonstrated clear evidence that OWCP’s last merit decision
was erroneous. 21 The Board will, therefore, set aside OWCP’s September 15, 2020 decision and
remand the case for an appropriate decision, with findings of fact and a statement of reasons,
regarding appellant’s untimely reconsideration request. Accordingly,
IT IS HEREBY ORDERED THAT the September 15, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this order of the Board.
Issued: February 16, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

20

Id.

OWCP’s regulations and procedures provide that OWCP will reopen a claimant ’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s request demonstrates
clear evidence of error on the part of OWCP. Federal (FECA) Procedure Manual, Part 2 – Claims, Reconsiderations,
Chapter 2.1602.5(a) (February 2016).
21

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRUBTION CENTER, Edison, NJ, Employer
__________________________________________

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

Docket No. 15-572
Issued: May 27, 2015

Case Submitted on the Record

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

JURISDICTION
On January 13, 2015 appellant, through counsel, filed a timely appeal from an August 18,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s entitlement to wage-loss
compensation and authorization for medical benefits effective February 3, 2014 as he had no
further residuals or disability causally related to his accepted employment injury.
FACTUAL HISTORY
On June 18, 2011 appellant, then a 38-year-old mail handler, filed an occupational
disease claim alleging that he sustained bilateral carpal tunnel syndrome, a cervical condition,
and a bilateral shoulder condition due to factors of his federal employment. He indicated that his
1

5 U.S.C. § 8101 et seq.

symptoms began on April 1, 2007. Appellant stopped work on April 15, 2011 and did not return.
The employing establishment noted that he was off work under file number xxxxxx314, but that
OWCP had found that he did not sustain a recurrence of disability so he was filing an
occupational disease claim.
OWCP accepted appellant’s claim for brachial neuritis. It noted that he had a prior 2007
accepted claim for left wrist sprain, assigned file number xxxxxx355 and another 2007 claim
accepted for brachial neuritis, and bilateral carpal tunnel syndrome, assigned file number
xxxxxx314.
In a form report dated September 7, 2011, Dr. Mark A.P. Filippone, an attending Boardcertified physiatrist, diagnosed cervical radiculopathy and found that appellant was totally
disabled.
On November 18, 2011 OWCP referred appellant to Dr. Kenneth Heist, an osteopath, for
a second opinion examination. In a report dated December 1, 2011, Dr. Heist reviewed the
history of injury and diagnosed cervical sprain, preexisting degenerative cervical disease, and left
shoulder sprain. He found that he had no current findings of brachial neuritis. Dr. Heist
determined that appellant had sustained a temporary aggravation of preexisting degenerative
disease of the spine. He opined that appellant could return to work without restrictions.
On January 11, 2012 OWCP notified appellant of its proposed termination of his
compensation and authorization for medical benefits. It found that based on Dr. Heist’s report he
had also sustained a temporary aggravation of a preexisting cervical condition that had resolved.
On January 26, 2012 Dr. Filippone reviewed Dr. Heist’s report and the notice of
proposed termination of compensation. He found objective evidence of spasm and neurological
deficits and noted that a January 10, 2011 electromyogram (EMG) showed bilateral cervical
radiculopathy at C5 through C7 and carpal tunnel syndrome on the right side. Dr. Filippone
further advised that a magnetic resonance imaging (MRI) scan study obtained January 13, 2011
revealed right lateral osteophyte disc complexes at C3-4 and C4-5 with right neural foraminal
narrowing, a disc herniation on the left at C6-7 with thecal sac compression and foraminal
narrowing on the left, and a right posterolateral T1-2 disc herniation. He opined that appellant
was totally disabled from employment.
By decision dated February 14, 2012, OWCP terminated appellant’s wage-loss
compensation and authorization for medical treatment effective that date. It found that
Dr. Heist’s report constituted the weight of the evidence and established that he had no further
employment-related condition or disability.
On February 22, 2012 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative. Following a preliminary review, in a decision dated May 2, 2012
the hearing representative reversed the February 14, 2012 decision. He noted that appellant had
an accepted claim, assigned file number xxxxxx314, with continued work restrictions and an
accepted condition of brachial neuritis. The hearing representative found that OWCP should
double file number xxxxxx314 into the current file number and update the statement of accepted
facts (SOAF) to include his work duties as mail handler. He also noted that it appeared that
appellant had worked modified employment since 2009, and that the SOAF should therefore

2

provide his actual work duties from February 3, 2009 until April 15, 2011. The hearing
representative further instructed OWCP to obtain a supplemental report from Dr. Heist based on
the updated statement of accepted facts and providing a rationalized opinion regarding whether
appellant’s brachial neuritis had resolved.
On May 22, 2012 Dr. Gregory J. Lawler, an osteopath, began providing pain
management treatment. He submitted progress reports describing his treatment of appellant
throughout 2012 and 2013.
On May 30, 2012 OWCP doubled the current file number and file number xxxxxx314. It
prepared an updated SOAF dated July 19, 2012 describing appellant’s job as a mail handler and
indicating that it had accepted left wrist sprain under file number xxxxxx355 and brachial
neuritis and bilateral carpal tunnel syndrome under file number xxxxxx314.
On July 19, 2012 the employing establishment advised that it had no record of appellant
performing a modified assignment. In file number xxxxxx314, appellant accepted modified job
offers on December 9, 2008 and January 22, 2009.
In a report dated August 1, 2012, Dr. Filippone described appellant’s continued
complaints of neck pain radiating into both shoulders more pronounced on the left side. In an
accompanying form report dated August 1, 2012, the physician diagnosed cervical radiculopathy
and found that appellant was totally disabled.
In a supplemental report dated August 6, 2012, Dr. Heist reviewed the updated SOAF
and the reports from Dr. Filippone. He concluded that appellant’s left shoulder sprain, cervical
sprain, and brachial neuritis had resolved and that his degenerative conditions and herniations
demonstrated on MRI scan study did not result from his work duties.
OWCP determined that a conflict existed between Dr. Filippone and Dr. Heist regarding
whether appellant had any continuing employment-related disability. On September 20, 2012 it
referred appellant to Dr. Edward Krisiloff, a Board-certified orthopedic surgeon, for an impartial
medical examination. OWCP requested that Dr. Krisiloff provide an opinion regarding whether
appellant had current findings of brachial neuritis, carpal tunnel syndrome, or cervical
degenerative disc disease. It further asked that Dr. Krisiloff address whether appellant could
perform his duties as a mail handler lifting up to 70 pounds.
In a report dated October 9, 2012, Dr. Krisiloff discussed appellant’s history of arm
problems beginning in 2007 and his history of bilateral carpal tunnel releases in 2008. He noted
that he returned to his usual employment in February 2009 following his carpal tunnel releases.
In December 2009, appellant began working light duty. He continued to experience symptoms
of carpal tunnel syndrome. On examination Dr. Krisiloff found adequate range of motion of the
cervical spine and full range of motion of the shoulders with no impingement, loss of strength, or
“obvious atrophy in the upper extremities.” He noted that appellant experienced pain while
trying to lift his arms overhead. Dr. Krisiloff related, “[Appellant] has apparently recovered
from his carpal tunnel syndrome and subsequent nerve conduction studies revealed good
conduction across the wrists. He continues to complain of significant discomfort in his neck,

3

shoulders, and intermittent upper extremity numbness and tingling. [Appellant] feels that he
cannot return to the type of work that he performed previously.” Dr. Krisiloff further stated:
“It is my medical opinion, stated within a reasonable degree of medical
probability, that [appellant] certainly has underlying cervical spondylosis.
[Appellant’s] MRI [scan] studies reflect this quite clearly. Two separate studies
were performed and there was no interval change between studies. [Appellant]
did develop bilateral carpal tunnel troubles and for this, a surgical decompression
was performed. [Appellant] has apparently done well and repeat nerve
conduction studies performed well after his surgery showed normal conduction
across the wrist joints. He has therefore recovered from his carpal tunnel troubles
and this should no longer be an issue. As far as [appellant’s] neck is concerned,
his studies certainly show evidence of cervical spondylosis. This is a
degenerative condition that is not related to the work that he did for the
[employing establishment]. It is my opinion that [appellant] developed an
exacerbation of this underlying condition while at work. The question that now
faces us is whether this exacerbation has resolved and whether [he] is capable of a
return to work.
“[Appellant] certainly complains of ongoing difficulties with his neck and upper
extremities, but there is simply no corroborative evidence on his physical
examination. [He] does have some slight restrictions in his cervical spine range
of motion but he has absolutely no evidence of any loss of strength in his upper
extremities. There is no muscular atrophy. [Appellant’s] sensory examination
appears to be normal. There is simply no physical evidence of ongoing brachial
neuritis, which is his accepted condition. [Appellant] does have evidence on
EMG of bilateral partial denervation at C5, C6, and C7, but this is simply not
reflected on his physical examination as far as weakness of his upper extremities.
It is my medical opinion that [he] did suffer a temporary exacerbation of his
underlying degenerative cervical disc disease and that condition has now
resolved. I feel that [appellant] is capable of returning to work at this time.
However, I do feel that certain restrictions might be necessary in returning him to
work. I am primarily concerned about the 70-pound requirement in lifting in
performing his duties as a mail handler. I think that it would be reasonable to
schedule a Functional Capacity Evaluation [FCE] to determine exact lifting
capabilities.”
Dr. Krisiloff concluded that appellant had no findings of brachial neuritis and carpal
tunnel syndrome, but had underlying cervical disc disease unrelated to his employment injury.
He again recommended an FCE. Dr. Krisiloff advised that if appellant could not perform his
regular employment it would be due to his underlying cervical disc disease rather than his work
injury.
On November 14, 2012 OWCP requested that Dr. Filippone refer appellant for a FCE to
determine his work ability as requested by the impartial medical examiner.
In a report dated December 5, 2012, Dr. Filippone related that appellant had abnormal
electrodiagnostic studies and multiple levels of injury on MRI scan studies of the cervical and
4

thoracic spine. He advised that an FCE “might inadvertently hurt [appellant]” and declined to
provide a referral for a FCE.
By letter dated January 10, 2013, OWCP requested that Dr. Krisiloff refer appellant for a
FCE.
In a report dated January 23, 2013, Dr. Filippone noted that Dr. Lawler had referred
appellant to Dr. Marc Arginteanu, a Board-certified neurosurgeon, for evaluation. On
January 28, 2013 Dr. Arginteanu noted that appellant began experiencing pain in his upper
extremities and neck lifting and moving heavy objects at work. He found that an MRI scan study
showed “multiple disc derangement with bulging discs, osteophyte formation, and foraminal
stenosis” and recommended surgery.
A March 14, 2013 cervical discography was positive at C3-4 and C6-7. A March 14,
2013 cervical MRI scan study obtained after the discography showed a posterior disc bulge and
bilateral uncovertebral hypertrophy at C3-4 and C4-5 with right more than left foraminal
narrowing, a disc bulge at C5-6, and a midline disc herniation at C6-7 with effacement of the
ventral thecal sac and moderate bilateral neural foraminal narrowing.
On April 19, 2013 appellant’s counsel requested that OWCP authorize Dr. Lawler’s
request to perform cervical spinal surgery. He also requested that OWCP postpone the FCE in
view of Dr. Filippone’s finding that it might harm appellant.
In a progress report dated May 17, 2013, Dr. Filippone reviewed the results of the MRI
scan study obtained after the discogram. On July 19, 2013 he found that appellant had a positive
Tinel’s sign and Phalen’s test and diagnosed bilateral carpal tunnel syndrome. Dr. Filippone
found that he was unable to work due to his problem with his neck, spine, and upper extremities
and his use of pain medication. In a form report dated July 19, 2013, he diagnosed cervical
radiculopathy, checked “yes” that the condition was work related, and found that appellant was
totally disabled.2
Appellant underwent an FCE on August 13, 2013. In a report dated August 14, 2013, the
physical therapist noted that appellant took pain medication before the FCE. He stated,
“[Appellant] did perform in the heavy demand level but secondary to the amount of medication
taken prior to the evaluation and length of time since initial onset, [h]e is currently functioning
safely in the medium work level at this time. He is capable of performing all work activities that
fit the parameters tested during the FCE.”
On August 28, 2013 Dr. Filippone challenged the FCE finding that appellant could
perform full-time employment.
In a supplemental report dated October 30, 2013, Dr. Krisiloff noted that the FCE showed
that appellant could “occasionally lift 80 pounds in a lift and carry, 70 pounds from the floor and
60 pounds to shoulder level. On a frequent basis the limits are 60 pounds, 50 pounds, and
40 pounds. On a constant basis the limits are 40 pounds, 30 pounds, and 20 pounds.”
Dr. Krisiloff opined that appellant could work as a mail handler and advised that the FCE
2

Dr. Filippone submitted similar form reports throughout 2012 and 2013.

5

established that his “temporary aggravation of his cervical spondylosis has ceased. [Appellant]
was able to exert reasonable effort and perform reasonably well at a medium work level. If [he]
were suffering from a significant degree of neck pain and upper extremity troubles he would not
have been able to perform at this level.”
On November 14, 2013 OWCP notified appellant of its proposed termination of his
compensation and authorization for medical benefits.
In a progress report dated November 27, 2013, Dr. Lawler indicated that appellant did not
have weakness, but continued to experience pain. He recommended that appellant see a surgeon
and obtain treatment before returning to work.
In a December 2, 2013 response to the notice of proposed termination, appellant’s
counsel argued that the FCE indicated that appellant could perform medium level work, but that
the mail handler’s position was classified as heavy work.
On December 2, 2013 Dr. Arginteanu reviewed the discogram and MRI scan study and
indicated that the studies showed that a foraminotomy at C6-7 on the left “would be indicated.”
He noted that appellant was interested in a nucleoplasty, which he found was reasonable.
In a form report dated December 3, 2013, Dr. Filippone diagnosed cervical radiculopathy
and found that appellant was totally disabled.
By decision dated February 3, 2014, OWCP terminated appellant’s compensation and
authorization for medical benefits effective that date. It found that Dr. Krisiloff’s opinion as the
impartial medical examiner represented the weight of the medical evidence and established that
appellant had no further disability or residuals of his accepted work injury.
On February 10, 2014 appellant, through counsel, requested an oral hearing.3 At the
hearing, held on June 10, 2014, counsel discussed appellant’s history of injuries and work duties
argued that a new job appellant performed in December 2010 aggravated his condition. He
argued that OWCP should amend the SOAF to include appellant’s other claim and expand
acceptance of the claim to include an aggravation of previously accepted cervical radiculopathy
and neck condition and an aggravation of carpal tunnel syndrome. Counsel asserted that
Dr. Krisiloff did not discuss his herniated discs and failed to provide rationale for his finding that
appellant has no residuals of his carpal tunnel syndrome, especially given the findings on a
January 10, 2011 EMG study. He also argued that the FCE demonstrated that appellant could
perform medium rather than heavy work and thus Dr. Krisiloff’s finding that appellant could
work as a mail handler was not supported by the FCE. Counsel notes that the SOAF did not
describe his job duties from 2009 to 2011.
In a letter dated June 24, 2014, appellant’s counsel noted that Dr. Lawler and
Dr. Arginteanu recommended surgery and resubmitted their December 2013 reports.

3

Appellant returned to work on February 4, 2014.

6

By decision dated August 18, 2014, the hearing representative affirmed the February 3,
2014 decision. She found Dr. Krisiloff’s opinion as the impartial medical examiner was entitled
to the special weight of the evidence.
On appeal, appellant’s counsel argues that the SOAF did not include information about
the accepted left wrist sprain and advises that the accepted conditions should include bilateral
carpal tunnel syndrome and an aggravation of cervical radiculopathy. He contends that appellant
is not able to perform the work duties of a mail handler. Counsel argues that Dr. Krisiloff did
not discuss the results of objective testing, that his reports are speculative, and that his opinion
regarding disability is inconsistent, and that the FCE did not show that appellant could work as a
mail handler.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.6
Further, the right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.8
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.9 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.10 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving

4

Elaine Sneed, 56 ECAB 373 (2005).

5

Fred Reese, 56 ECAB 568 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

6

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

7

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

8

Id.

9

5 U.S.C. § 8123(a).

10

20 C.F.R. § 10.321.

7

the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.11
ANALYSIS
OWCP accepted that appellant sustained brachial neuritis causally related to work factors
under the current file number. It previously accepted that he sustained left wrist sprain under file
number xxxxxx355 and brachial neuritis and bilateral carpal tunnel syndrome under file number
xxxxxx314. OWCP further noted that, based on the opinion of Dr. Heist, appellant sustained a
temporary aggravation of preexisting cervical degenerative disc disease due to his work injury.
It determined that, a conflict in medical opinion existed between Dr. Heist, OWCP referral
physician, and Dr. Filippone, appellant’s attending physician, regarding whether appellant had
any current findings of brachial neuritis, carpal tunnel syndrome, or cervical degenerative disc
disease, and whether he had any employment-related disability. OWCP referred him to
Dr. Krisiloff for an impartial medical examination.
Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.12 The Board finds that the opinion of Dr. Krisiloff, a
Board-certified orthopedic surgeon selected to resolve the conflict in opinion, is well rationalized
and based on a proper factual and medical history. Dr. Krisiloff accurately summarized the
relevant medical evidence, provided detailed findings on examination, and reached conclusions
about appellant’s condition which comported with his findings.13 In his October 9, 2012 report,
he reviewed the medical evidence of record, including the results of MRI scan studies performed
January and September 2011 and electrodiagnostic studies from January 2011. Dr. Krisiloff
noted that appellant worked in his usual employment following his 2009 carpal tunnel releases
until December 2009, when he began performing limited duty. He determined that he had no
objective findings of brachial neuritis. Dr. Krisiloff further found that appellant had recovered
from his carpal tunnel syndrome, noting that he did well after his decompression surgeries and as
studies showed normal wrist conduction. He opined that appellant sustained an employmentrelated aggravation of underlying cervical spondylosis which had resolved. Dr. Krisiloff
provided rationale for his opinion by noting that physical examination did not support the
objective complaints as there was no evidence of reduced strength, muscle atrophy, or loss of
sensation on examination. He further noted that an EMG study showed partial denervation at C5
through C7 that was not supported by weakness on physical examination. Dr. Krisiloff
concluded that appellant had no further evidence of brachial neuritis, carpal tunnel syndrome, or
an employment-related aggravation of cervical disc disease. He asserted that appellant might not
be able to lift 70 pounds as required as a mail handler due to his underlying cervical degenerative
condition and recommended an FCE. Dr. Krisiloff explained, however, that any inability to
perform regular work duties would result from appellant’s underlying cervical degenerative disc
disease rather than his work injury.
11

R.C., 58 ECAB 238 (2006); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

12

J.M., 58 ECAB 478 (2007); Darlene R. Kennedy, 57 ECAB 414 (2006).

13

Manuel Gill, 52 ECAB 282 (2001).

8

On October 30, 2013 Dr. Krisiloff reviewed the results of an August 2013 FCE and found
that appellant had no residuals of his temporary aggravation of cervical spondylosis based on the
results of the FCE. He further determined that appellant could perform his duties as a mail
handler. As Dr. Krisiloff’s opinion is detailed, well rationalized and based on a proper factual
background, it is entitled to the special weight accorded an impartial medical examiner.14
Appellant’s remaining medical evidence is insufficient to overcome the weight afforded
to Dr. Krisiloff. Dr. Filippone submitted numerous progress reports and form reports throughout
2012 and 2013 finding that appellant was disabled from employment. On December 5, 2012 he
reviewed the results of diagnostic studies and recommended against an FCE as it might hurt
appellant. In a form report dated December 3, 2013, Dr. Filippone diagnosed cervical
radiculopathy and found that appellant was totally disabled. He, however, was on one side of the
conflict resolved by Dr. Krisiloff. A medical report from a physician on one side of a conflict
resolved by an impartial medical examiner is generally insufficient to overcome the weight
accorded the report of an impartial medical examiner or create a new conflict.15
Dr. Lawler provided reports in 2012 and 2013 describing his treatment of appellant with
pain management. In a report dated November 27, 2013, he discussed appellant’s complaints of
pain and recommended that he obtain additional treatment and consult with a surgeon prior to
returning to work. Dr. Lawler noted that appellant did not have weakness. He did not address
causation or attribute the need for further treatment to appellant’s employment and thus his
opinion is of diminished probative value.16
On January 23, 2013 Dr. Arginteanu noted that appellant experienced pain in his neck
and upper extremities moving heavy objects at work. He reviewed the findings on MRI scan
study and recommended surgery. On December 2, 2013 Dr. Arginteanu recommended a left
foraminotomy and decompression at C6-7 based on appellant’s discogram but indicated that it
was also reasonable to try a nucleoplasty. He did not, however, specifically address causation
and thus his reports are of little probative value.17
On appeal, appellant’s counsel contends that the SOAF did not include the accepted
condition of left wrist sprain. However, the July 19, 2012 SOAF indicated that OWCP had
accepted left wrist sprain under file number xxxxxx355. The SOAF did not describe appellant’s
modified work duties from 2009 to 2011, however, Dr. Krisiloff noted in his report that he had
performed modified work beginning December 2009.
Counsel also argues that appellant is unable to work as a mail handler based on the FCE
and Dr. Krisiloff’s report. Dr. Krisiloff, however, specifically found that he had no residuals or
disability from his accepted conditions and that any limitations resulted from nonemploymentrelated cervical degenerative disc disease.

14

See J.M., supra note 12; Katheryn E. Demarsh, 56 ECAB 677 (2005).

15

Jaja K. Asaramo, 55 ECAB 200 (2004); Michael Hughes, 52 ECAB 387 (2001).

16

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

17

Id.

9

Appellant’s counsel additionally asserts that Dr. Krisiloff’s opinion is speculative,
inconsistent, and not based on a review of objective testing. As discussed, however, Dr. Krisiloff
provided a comprehensive and well-rationalized report and thus his opinion is entitled to the
special weight accorded an impartial examiner and constitutes the weight of the evidence.18
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 properly terminated appellant’s entitlement to wage-loss
compensation and authorization for medical benefits effective February 3, 2014 as he had no
further residuals of his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 18, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 27, 2015
Washington, DC

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

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

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

18

See R.C., 58 ECAB 238 (2006); Bryan O. Crane, 56 ECAB 713 (2005).

10