United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Buffalo, NY, Employer
__________________________________________

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

Docket No. 14-1156
Issued: August 27, 2014

Case Submitted on the Record

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

JURISDICTION
On April 21, 2014 appellant filed a timely appeal from a February 4, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish bilateral carpal tunnel
syndrome and left elbow lateral epicondylitis causally related to factors of his employment.
FACTUAL HISTORY
On October 28, 2013 appellant, then a 56-year-old motor vehicle operator, filed an
occupational disease claim alleging that he experienced numbness and tingling in his fingers as a
result of pushing and pulling equipment, using buckles on restraint straps and gripping the
1

5 U.S.C. § 8101 et seq.

steering wheel for long periods of time. He first became aware of his condition on January 23,
2012 and realized it resulted from his employment on October 28, 2013. Appellant did not stop
work. He explained that from January 2012 to October 2013 he experienced these symptoms in
his hands occasionally but they subsided. On October 28, 2013 appellant was on a long distance
work trip that lasted approximately five hours and felt tingling and numbness in his hands.
In an October 31, 2013 report, Dr. Amanda Hagen, Board-certified in public health and
general preventive medicine, diagnosed carpal tunnel syndrome and left elbow lateral
epicondylitis. She noted appellant’s date of injury as October 28, 2013 and opined that
appellant’s problem was work related. Dr. Hagen recommended physical therapy and a nerve
conduction velocity (NCV) examination. She authorized appellant to return to work without
restrictions.
By letter dated December 24, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested additional medical evidence to demonstrate
that his diagnosed hand conditions were caused or aggravated by his employment.
In an October 31, 2013 report, Dr. Robert Pietropaoli, a Board-certified internist, related
appellant’s complaints of numbness and tingling in both hands after a long distance trip for work.
He stated that appellant worked as a motor vehicle operator who pushed and pulled equipment
throughout the day. Dr. Pietropaoli reviewed appellant’s history and noted that he initially
reported these symptoms to his primary care physician during his annual physical in 2012 but no
treatment was pursued. Upon examination of both elbows, he observed no deformity,
ecchymosis or erythema and no tenderness to maneuvers. Range of motion was full.
Dr. Pietropaoli reported pain upon palpation of the left medial epicondyle. Phalen’s and Tinel’s
tests were positive on the bilateral wrists and hands. Dr. Pietropaoli diagnosed bilateral carpal
tunnel syndrome and left elbow lateral epicondylitis. He opined that based on the information he
reviewed he considered appellant’s problem to be work related. Dr. Pietropaoli answered “yes”
that appellant’s complaints were consistent with his history of injury and that his history of
injury was consistent with objective examination findings.
In a handwritten January 6, 2014 statement, appellant listed the employment-related
duties he believed contributed to his condition: gripping support rails to enter and exit vehicles
25 to 30 times a day; pushing equipment with mail and parcels 50 times a day; turning
equipment and bumping over dock plates 50 to 60 times a day; using ratchet straps to secure and
unsecure equipment 30 to 35 times a day; and gripping the steering wheel three to six hours a
day. He stated that he also spent about 30 minutes outside of work exercising, which included
jogging, riding a bicycle and stretching. Appellant explained that he experienced numbness and
tingling in his hands and fingers that came and went during work activities. He noted that it was
first diagnosed as work related during a January 23, 2012 routine physical. Appellant stated that
he did not miss any time off work and was under no work restrictions.
By decision dated February 4, 2014, OWCP accepted that appellant’s work as a motor
vehicle operator required repetitive use of the hands and that he sustained bilateral carpal tunnel
syndrome and left elbow lateral epicondylitis. It denied his claim finding insufficient medical
evidence to establish that his hand conditions were causally related to factors of his employment.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence2 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.3 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 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.6
ANALYSIS
Appellant claimed that he sustained a bilateral hand condition as a result of his duties as a
motor vehicle operator. He provided a detailed list of his employment duties and OWCP
accepted that his duties involved repetitive use of the hands and that he sustained bilateral carpal
tunnel syndrome and left elbow lateral epicondylitis. OWCP denied his claim finding
insufficient medical evidence to establish that his diagnosed conditions resulted from factors of
his employment. The Board finds that appellant did not submit sufficient medical evidence to
establish his claim.
Appellant submitted an October 31, 2013 report by Dr. Pietropaoli, who stated that
appellant worked as a motor vehicle operator who pushed and pulled equipment throughout the
day. Upon examination of both elbows, Dr. Pietropaoli observed no tenderness to maneuvers
and full range of motion. He reported pain upon palpation of the left medial epicondyle.
Phalen’s and Tinel’s tests were positive on the bilateral wrists and hands. Dr. Pietropaoli
diagnosed bilateral carpal tunnel syndrome and left elbow lateral epicondylitis. He opined that
based on the information he reviewed he considered appellant’s problem to be work related.
Dr. Pietropaoli answered “yes” that appellant’s complaints were consistent with his history of
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

5

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

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injury and that his history of injury was consistent with objective examination findings. The
Board notes that Dr. Pietropaoli described appellant’s duties as a motor vehicle operator only in
general terms and did not relate knowledge of the frequency of appellant’s duties. Also, while he
provided findings on examination and diagnosed bilateral carpal tunnel syndrome and left elbow
lateral epicondylitis, he did not provide medical rationale explaining how appellant’s conditions
were caused or contributed to by his work duties. A medical report is of limited probative value
on the issue of causal relationship if it contains a conclusion regarding causal relationship which
is unsupported by medical rationale.7 Dr. Pietropaoli stated a conclusion but did not explain how
physiologically appellant’s employment duties would have caused the diagnosed conditions.8 As
such his report is of limited probative value.
Similarly, Dr. Hagen also failed to provide any medical explanation to support her
opinion that appellant’s conditions were work related. She noted appellant’s date of injury, but
did not otherwise relate appellant’s employment duties or any history of injury. As previously
noted, a physician’s opinion must be based upon a complete factual history. The Board finds
that both Drs. Pietropaoli and Hagen failed to provide any medical rationale to explain how
appellant’s duties as a motor vehicle operator caused or contributed to his bilateral carpal tunnel
syndrome and left elbow lateral epicondylitis.
On appeal, appellant alleges that Drs. Pietropaoli and Hagen believe that his injury was
caused by work-related activities. As noted above, however, neither physician provided a
rationalized medical opinion explaining how appellant’s diagnosed conditions resulted from his
employment duties as a motor vehicle operator. The mere fact that a condition manifests itself
during a period of employment does not raise an inference that there is causal relationship
between the two.9
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 meet his burden of proof to establish that his
bilateral hand conditions were causally related to factors of his employment.

7

T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

8

See K.M., Docket No. 13-1459 (issued December 5, 2013).

9

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the February 4, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 27, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.I., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Chicago, IL, Employer
__________________________________________

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

Docket No. 19-0287
Issued: July 22, 2019

Case Submitted on the Record

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

JURISDICTION
On November 20, 2018 appellant, through counsel, filed a timely appeal from a
September 21, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than six
percent permanent impairment of the right lower extremity, for which she previously received a
schedule award.
FACTUAL HISTORY
On February 19, 2007 appellant, then a 39-year-old transportation security screener, filed
a traumatic injury claim (Form CA-1) alleging that on February 18, 2007 she sustained a right
ankle sprain when her right foot slipped on salt and twisted over the edge of a handicapped ramp
while in the performance of duty. She stopped work on February 22, 2007, returned to a modified
work on January 15, 2008, and full-duty work on April 21, 2008. OWCP accepted the claim for
closed right lateral malleolus ankle fracture and authorized right ankle tendon repair and ligament
reconstruction, which occurred on November 20, 2007.
On October 29, 2011 appellant filed a claim for a schedule award (Form CA-7).
In support of her claim, appellant submitted a September 30, 2011 report from
Dr. William N. Grant, a Board-certified internist, who diagnosed right lateral malleolus fracture,
right ankle sprain, right ankle joint derangement, and right ankle ankylosis. Dr. Grant referenced
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),3 and provided examination findings. Using a diagnosis-based
impairment (DBI) method, he determined that appellant had 60 percent right lower extremity
permanent impairment.
On August 27, 2012 Dr. David H. Garelick, a district medical adviser (DMA) and Boardcertified orthopedic surgeon, reviewed Dr. Grant’s impairment rating. Using the A.M.A., Guides,
Foot and Ankle Regional Grid,4 he determined that appellant was not entitled to a schedule award
due to the lack of any objective x-ray interpretations of record showing opening or widening varus
stress.
By decision dated February 27, 2013, OWCP denied appellant’s claim for a schedule award
finding that she had not established a permanent impairment of a scheduled member.
On March 5, 2013 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on June 17, 2013.
In report dated June 6, 2013, Dr. Neil Allen, a Board-certified internist and neurologist,
noted diagnoses of right lateral malleolus fracture, right joint derangement, right ankle and foot
joint ankylosis, and right ankle sprain. He provided findings on physical examination and noted
moderate right ankle tenderness, lacking plantar flexion in gait cycle, toes remained in dorsiflexion
through gait cycle, and decreased muscle strength. Dr. Allen also noted range of motion findings.
3

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

4

Id. at 502, Table 16-2.

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Using the sixth edition of the A.M.A., Guides, he determined that appellant had 13 percent
permanent impairment of the right lower extremity. Using Table 16-2 on page 503, Dr. Allen
assigned class 1 for DBI, which yielded a default value of 10 percent. He assigned a grade modifier
of 1 for functional history (GMFH) using Table 15-7 on page 406, a grade modifier of 2 for
physical examination (GMPE) using Table 15-8 on page 408, and a grade modifier of 2 for clinical
studies (GMCS) using Table 17-9 on page 581. Applying the net adjustment formula on page 521,
Dr. Allen found that appellant had 13 percent permanent impairment of the right lower extremity.
By decision dated August 6, 2013, OWCP’s hearing representative vacated the
February 27, 2013 decision denying appellant’s claim for a schedule award and remanded the case
for further development of the record.
In a November 18, 2013 report, Dr. Christopher Gross, a Board-certified orthopedic
surgeon, acting as OWCP’s district medical adviser (DMA), opined that appellant’s February 18,
2007 employment injury caused an ankle sprain and not an ankle fracture. He explained that
Dr. Allen based his impairment rating on an ankle fracture, therefore his diagnosis could not be
used for an impairment rating. Dr. Gross reviewed and concurred with Dr. Garelick’s August 27,
2012 report finding no permanent impairment of appellant’s right lower extremity.
By decision dated December 5, 2013, OWCP denied appellant’s schedule award claim,
finding that the medical evidence did not establish permanent impairment to a scheduled member
resulting from the accepted employment injury.
On December 31, 2013 appellant, through counsel, requested a telephonic hearing, which
was held before a representative of OWCP’s Branch of Hearings and Review on July 10, 2014.
By decision dated October 4, 2014, OWCP’s hearing representative vacated the
December 5, 2013 decision denying a schedule award and remanded the case for further
development of the record.
In a March 11, 2015 statement of accepted facts (SOAF), OWCP amended the accepted
conditions to include severe right ankle sprain, right ankle peroneal tenosynovitis, and partial
peroneus brevis tendon tear.
Dr. Garelick, in a March 16, 2015 report, reviewed the medical evidence of record and the
updated March 11, 2015 SOAF. He disagreed with Dr. Allen’s impairment rating as Dr. Allen
based the impairment rating on a questionable fracture rather than residual ankle instability.
Dr. Garelick concluded that appellant had zero percent right lower extremity permanent
impairment using the sixth edition of the A.M.A., Guides.
OWCP, in a March 30, 2015 decision, explained that it had erroneously accepted
appellant’s claim for closed right lateral malleolus ankle fracture. It advised that her accepted
conditions were severe right ankle sprain, right foot/ankle peroneal tenosynovitis, and right partial
peroneal brevis tendon tear.
By decision dated March 30, 2015, OWCP denied appellant’s schedule award claim.

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On April 29, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on November 18, 2015.
On January 19, 2016 OWCP received a February 18, 2007 x-ray interpreted by
Dr. Beverlee Brisbin, an orthopedic surgeon, who reported that the “x-ray today shows her fracture
to be healing.”
By decision dated February 2, 2016, OWCP’s hearing representative vacated the
March 30, 2015 decision denying appellant’s schedule award claim and remanded for further
development of the record.
In a February 21, 2016 addendum, Dr. Garelick reviewed a February 18, 2016 SOAF and
appellant’s February 18, 2007 right ankle x-ray. He again concluded that appellant had zero
percent right lower extremity permanent impairment noting that February 18, 2007 x-ray found no
fracture and the June 13, 2007 MRI scan described no finding supportive of a healing fracture.
By decision dated March 2, 2016, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish permanent impairment warranting a schedule
award.
On March 11, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on November 9, 2016.
By decision dated January 15, 2017, OWCP’s hearing representative vacated the March 2,
2016 decision which denied appellant’s schedule award claim and remanded the case for additional
development of the medical evidence regarding the correct accepted conditions and entitlement to
a schedule award.
On remand OWCP prepared an updated SOAF dated February 2, 2017 listing the amended
accepted conditions. Subsequently, on February 8, 2017 OWCP referred appellant to Dr. Allan
Brecher, a Board-certified orthopedic surgeon, for a second opinion evaluation.
In a March 3, 2017 report, Dr. Brecher, examined appellant and reviewed the February 2,
2017 SOAF and medical record. He found no evidence of a right lateral malleolus fracture based
on review of x-ray interpretations and MRI scans. Dr. Brecher found no permanent impairment
due to the right ankle sprain based on the lack of diagnostic testing showing instability and he
explained that appellant’s physical examination showed no instability. He determined that the
diagnoses of right ankle sprain and peroneal tendon injury were supported by his examination and
appellant’s medical records. Using Table 16-2, page 502 of the sixth edition of the A.M.A.,
Guides, Dr. Brecher found no permanent impairment. He concurred with Dr. Garelick’s opinion
that appellant had no permanent impairment of her right lower extremity.
By decision dated March 22, 2017, OWCP denied appellant’s schedule award claim,
finding that the evidence of record was insufficient to establish permanent impairment of his right
lower extremity warranting a schedule award.
On March 30, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on October 16, 2017.
4

In a November 7, 2017 report, Dr. Allen diagnosed right lateral malleolus fracture, right
ankle sprain, right ankle and foot joint ankylosis, and right joint derangement. He reviewed
medical reports and diagnostic tests. Dr. Allen provided three separate range of motion (ROM)
measurement for appellant’s right ankle. Based on appellant’s ROM measurements, he calculated
seven percent loss of dorsiflexion, zero percent loss of plantar flexion, zero percent loss of
eversion, and two percent loss of inversion using Table 16-20 and Table 16-22 on page 549 of the
A.M.A., Guides. Dr. Allen opined that the ROM impairment resulted in nine percent right lower
extremity permanent impairment. He applied a grade modifier of 1 for range of motion using
Table 16-175 on page 545, and a grade modifier of 3 for functional history6 using Table 16-6 on
page 516. Dr. Allen explained that he used the ROM method instead of the DBI method as the
ROM method reflected a more accurate impairment.
By decision dated December 28, 2017, OWCP’s hearing representative vacated the
March 22, 2017 decision denying a schedule award and remanded the case for referral of
Dr. Allen’s November 7, 2017 report to a DMA for review.
In a report dated January 26, 2018, Dr. Arthur S. Harris, a DMA and Board-certified
orthopedic surgeon, concluded that appellant had six percent permanent impairment of the right
lower extremity. He explained that the A.M.A., Guides did not allow a ROM impairment rating
for the accepted ankle diagnosis. Using Table 16-2 on page 501, Dr. Harris assigned class 1 for
residual problems post peroneus brevis tendon repair with documented mild motion deficits. Next
he assigned a GMFH of 3 for functional history based on subjective complaints and AAOS lower
limb questionnaire score, a GMPE of 1 for physical examination findings of mild motion deficits,
and a GMCS of 1 for clinical studies resulting in a net adjustment of 2, which equaled a class E
and six percent right lower extremity permanent impairment.
By decision dated March 9, 2018, OWCP granted appellant a schedule award for six
percent permanent impairment of the right lower extremity.
On March 27, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on July 30, 2018. By
decision dated September 21, 2018, OWCP’s hearing representative affirmed the March 9, 2018
schedule award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,7 and its implementing federal regulations,8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
5

Id. at 545, Table 16-17.

6

Id. at 516, Table 16-6.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

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consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 For decisions issued after
May 1, 2009, the sixth edition will be used.10
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class of diagnosis (CDX) condition, which is then adjusted by GMFH, GMPE, and
GMCS.11 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).12
With respect to a foot or ankle impairment, the A.M.A., Guides provides a regional grid at
Table 16-2.13 The CDX is determined based on specific diagnosis, and then the default value for
the identified CDX is determined. The default value (grade C) may be adjusted by using grade
modifiers for functional history (GMFH) Table 16-6, physical examination (GMPE) Table 16-7,
and clinical studies (GMCS) Table 16-8. The adjustment formula is (GMFH-CDX) + (GMPECDX) + (GMCS-CDX).14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the percentage of permanent impairment
using the A.M.A., Guides.15
ANALYSIS
The Board finds that appellant has established seven percent permanent impairment of the
right lower extremity.
OWCP rescinded acceptance of appellant’s right ankle fracture diagnosis as it found it was
not supported by the medical evidence. It therefore found that the accepted conditions were right
ankle sprain, right ankle and foot joint derangement, right ankle and foot ankylosis, right
nontraumatic tendon rupture, and right ankle and foot tenosynovitis. It is well established that, in
determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, employment-related and preexisting impairments of

9

Id. at § 10.404(a).

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5(a) (March 2017).
11

A.M.A., Guides 494-531; see D.S., Docket No. 17-0419 (issued August 8, 2018).

12

Id. at 521.

13

Id. at 501.

14

The net adjustment is up to +2 (grade E). .

15
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6(f) (March 2017); see B.B., Docket No. 18-0782 (issued January 11, 2019).

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the body are to be included.16 As Dr. Grant’s September 30, 2011 permanent impairment rating,
as well as Dr. Allen’s June 6, 2013 rating, were based upon the rescinded diagnosis, these reports
were of no probative medical value.
In support of his claim, appellant submitted a November 7, 2017 report from Dr. Allen who
opined that appellant had 13 percent right lower extremity permanent impairment using the ROM
method for rating permanent impairment. However, Dr. Allen did not provide rationale, supported
by the A.M.A., Guides, to establish that the ROM method should be used to rate permanent
impairment of the ankle. Thus, the Board finds Dr. Allen’s report was not based upon a correct
application of the A.M.A., Guides.17
Dr. Harris, the DMA, explained why the ROM method could not be used to evaluate
appellant’s right ankle condition of post peroneus brevis tendon repair with documented mild
motion deficits. He referred to the appropriate table and sections under the A.M.A., Guides.
Dr. Harris assigned a grade modifier of 3 for functional history, a grade modifier of 1 for physical
examination findings, and a grade modifier of 1 for clinical studies resulting in a net adjustment
of 2, which he reported equaled a class E and six percent right lower extremity permanent
impairment. The Board finds however that the default class C rating for residual problems post
peroneus brevis tendon repair with documented mild motion deficits is five percent and the class E
rating, after the net adjustment of two, results in a default impairment of seven percent not six
percent.
The Board accordingly finds that, based on the probative medical evidence of record,
appellant has seven percent permanent impairment of the right lower extremity pursuant to the
A.M.A., Guides. On return of the case record, OWCP shall issue a schedule award for an
additional one percent permanent impairment.18
CONCLUSION
The Board finds that appellant has established seven percent permanent impairment of his
right lower extremity under the A.M.A., Guides.

16

See generally J.J., Docket No. 18-1615 (issued March 5, 2019); id. at Chapter 3.700.3(a)(3) (January 2010). See
also Raymond E. Gwynn, 35 ECAB 247, 253 (1983).
17

Supra note 3 at 497 to 500.

18

When the evidence establishes the percentage of permanent impairment, the Board will modify OWCP decision
and have OWCP issue a schedule award on return of the case record. See A.G., Docket No. 17-0710 (issued July 17,
2017); R.K., Docket No. 11-0359 (issued November 21, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the September 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: July 22, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Layton, UT, Employer
__________________________________________

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

Docket No. 19-1085
Issued: October 21, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 15, 2019 appellant filed a timely appeal from an October 16, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from October 16, 2018, the date of OWCP’s last decision, was Sunday,
April 14, 2019. As the last day of the filing period fell on a weekend, appellant had until Monday, April 15, 2019 to
file an appeal. See 20 C.F.R. § 501.3(f)(2). The Clerk of the Appellate Boards received the current appeal on April 15,
2019, rendering the appeal timely filed. Id.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left shoulder
condition in the performance of duty.
FACTUAL HISTORY
On August 29, 2018 appellant, then a 48-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained a partial left rotator cuff tear causally related
to factors of her federal employment. She related that she experienced pain and weakness
performing her daily work duties, noting that her pain improved when she was off work. Appellant
did not stop work.
In a development letter dated September 12, 2018, OWCP advised appellant of the factual
and medical evidence necessary to establish her claim, including a detailed description of the
employment activities that she believed caused or contributed to her condition. It provided a
questionnaire for her to complete and return. OWCP afforded appellant 30 days to submit the
required evidence.
Thereafter, OWCP received a July 30, 2018 report from Dr. Michael S. Dee, a Boardcertified orthopedic surgeon. Dr. Dee evaluated appellant for increasing left shoulder pain that
had begun around eight months earlier. He noted that she had a history of bulging cervical discs.
Dr. Dee obtained a history of appellant experiencing “increasing left shoulder pain over the years
as she works as a mail carrier.” He recommended diagnostic testing.
In a progress report dated August 8, 2018, Dr. Dee diagnosed tendinitis of the left rotator
cuff after reviewing a magnetic resonance imaging (MRI) scan. 3
In a September 26, 2018 e-mail, a supervisor with the employing establishment described
appellant’s work duties.
By decision dated October 16, 2018, OWCP denied appellant’s claim finding that she had
failed to factually establish the basis for her claim. It found that she had not provided a detailed
description of the work factors that she believed caused or contributed to her condition, noting that
she had not responded to its request for additional factual information. OWCP additionally
determined that the medical evidence was insufficient to support that appellant had sustained a
diagnosed condition causally related to her employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
3

An August 2, 2018 MRI scan revealed mild subscapularis tendinopathy, a partial thickness bursal surface tearing
of the distal subscapularis tendon, and mild acromioclavicular joint arthropathy.
4

Supra note 2.

2

United States within the meaning of FECA, that the claim was filed within the applicable time
limitation period of FECA,5 that an injury was sustained while in the performance of duty as
alleged, and that any disability or specific condition for which compensation is claimed is causally
related to the employment injury. 6 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease. 7
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee. 8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence. The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition in the performance of duty.
Appellant filed an occupational disease claim on September 5, 2018 alleging that she
sustained left shoulder pain and weakness while performing her federal employment duties. She
did not submit additional factual evidence in support of her occupational disease claim or respond
to OWCP’s development letter requesting a further description of the employment factors to which
she attributed her condition.
As noted, appellant has the burden of proof to submit a detailed description of the
employment factors or conditions that she believes caused or adversely affected the condition or
conditions for which she claims compensation. 10 She failed to respond to OWCP’s request that
5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.M., Docket No. 18-0976 (issued January 3, 2019); P.D., Docket No. 17-1885 (issued September 17, 2018).

9

H.B., Docket No. 18-0781 (issued September 5, 2018).

10

T.W., Docket No. 18-0788 (issued July 22, 2019); B.J., Docket No. 16-1614 (issued September 21, 2017).

3

she describe in greater detail the employment factors alleged to have caused or contributed to her
left shoulder condition. Consequently, the Board finds that appellant has failed to establish the
employment factors or exposures alleged to have caused her injury. 11 As she has not established
an employment factor or exposure alleged to have caused an injury, it is unnecessary to consider
the medical evidence with respect to causal relationship. 12
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11

Id.

12

J.C., Docket No. 16-1663 (issued January 18, 2017).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, PRIORTY MAIL
CENTER, Detroit, MI, Employer
__________________________________________

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

Docket No. 08-552
Issued: August 21, 2008

Case Submitted on the Record

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

JURISDICTION
On December 18, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ nonmerit decision dated October 24, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit issue of this case.1
ISSUE
The issue is whether the Branch of Hearings and Review properly found appellant had
abandoned her oral hearing.
FACTUAL HISTORY
On August 13, 2000 appellant, then a 44-year-old mail handler, filed a traumatic injury
claim alleging that she developed pain in the neck, shoulder, left arm and knee due to lifting and
pushing in the performance of duty. The Office accepted her claim for left shoulder strain on
1

On appeal to the Board, appellant requested review of the issue of abandonment of the oral hearing only.
Therefore, this is the only issue that the Board will address.

September 9, 2000. Appellant filed a recurrence of disability claim on January 21, 2001 alleging
a recurrence of total disability on that date. She filed an additional occupational disease claim on
February 26, 2001 alleging a rotator cuff tear in the left shoulder. The Office expanded
appellant’s claim to include a left rotator cuff tear and authorized surgery on April 12, 2001. On
May 3, 2001 appellant underwent an open acromioplasty of the left shoulder with a repair of a
full thickness rotator cuff tear and excision of the distal clavicle. In a letter dated March 9,
2006, the Office also accepted that appellant sustained employment-related disc herniations at
C4, C5 and C6.
On January 25, 2001 appellant filed a second traumatic injury claim alleging that she
injured her right wrist on December 29, 2000 when she attempted to grab a package and bent
backward and twisted her wrist. The Office accepted that she sustained a right wrist sprain on
July 11, 2001. It authorized right wrist arthroscopy on April 23, 2003. Appellant filed a notice
of recurrence of disability due to a December 29, 2000 wrist injury on April 30, 2003. On
May 6, 2003 she underwent a radiocarpal and midcarpal arthroscopy of the right wrist with
debridement of the triangular fibrocartilage complex central tear as well as arthroscopic thermal
capsulorrhaphy of a lax scapholunate interosseous ligament and complete synovectomy.
Appellant underwent surgical removal of the hardware in her left wrist on May 6, 2004.
On April 29, 2005 appellant requested a schedule award. In a letter dated January 31,
2007, the Office requested a detailed medical report discussing the extent of her permanent
impairment due to her accepted employment injuries.
By decision dated March 13, 2007, the Office denied appellant’s claim for a schedule
award finding that she had not submitted sufficient medical opinion evidence to establish that she
had reached maximum medical improvement or a detailed description of her impairment in
accordance with the A.M.A., Guides.2
Appellant requested a telephonic hearing on April 8, 2007 and listed her house address.
She submitted additional medical evidence.3 In a letter dated August 21, 2007 and properly
addressed to appellant’s house address, the Branch of Hearings and Review informed her that her
telephonic hearing was scheduled for October 10, 2007 at 11:45 eastern time.
By decision dated October 24, 2007, the Branch of Hearings and Review found that
appellant failed to appear at the scheduled telephonic hearing. The hearing representative found
that she had not contacted the Office prior to or subsequent to the scheduled hearing to explain
her failure to appear. The Branch of Hearings and Review found that appellant had abandoned
her request for a hearing.

2

In a letter dated December 5, 2007, appellant requested reconsideration of the Office’s March 13, 2007 schedule
award decision. This letter predates the December 18, 2007 appeal to the Board.
3

Following the Office’s March 13, 2007 decision, appellant submitted additional new evidence. As the Office
did not consider this evidence in reaching a final decision, the Board may not review the evidence for the first time
on appeal. See 20 C.F.R. § 501.2(c).

2

LEGAL PRECEDENT
A claimant who has received a final adverse decision by the Office may obtain a hearing
by writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.4 Unless otherwise directed in writing by the claimant, the Office
hearing representative will mail a notice of the time and place of the hearing to the claimant and
any representative at least 30 days before the scheduled date.5 The Office has the burden of
proving that it mailed to appellant and her representative a notice of a scheduled hearing.6
The authority governing abandonment of hearings rests with the Office’s procedure
manual. Chapter 2.1601.6(e) of the procedure manual, dated January 1999, provides as follows:
“e. Abandonment of Hearing Requests.
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing.
“Under these circumstances, H&R [Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the DO [district Office]. In cases involving
prerecoupment hearings, H&R will also issue a final decision on the
overpayment, based on the available evidence, before returning the case to the
DO.
“(2) However, in any case where a request for postponement has been received,
regardless of any failure to appear for the hearing, H&R should advise the
claimant that such a request has the effect of converting the format from an oral
hearing to a review of the written record.
“This course of action is correct even if H&R can advise the claimant far enough
in advance of the hearing that the request is not approved and that the claimant is,
therefore, expected to attend the hearing and the claimant does not attend.”7

4

20 C.F.R. § 10.616(a).

5

20 C.F.R. § 10.617(b). Office procedure also provides that notice of a hearing should be mailed to the claimant
and the claimant’s authorized representative at least 30 days prior to the scheduled hearing. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.6(a)
(January 1999).
6

See Michelle R. Littlejohn, 42 ECAB 463, 465 (1991).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(a) (January 1999).

3

ANALYSIS
The Office issued a decision on March 13, 2007 denying appellant’s requested schedule
award. Appellant requested a hearing before an Office hearing representative regarding this
matter on April 8, 2007 and it was scheduled for October 10, 2007.
The Office scheduled a telephonic oral hearing before an Office hearing representative at
a specific time on October 10, 2007. The record shows that the Office mailed appropriate notice
to the claimant at her last known address. The record also supports that appellant did not request
postponement, that she failed to appear at the scheduled hearing and that she failed to provide
any notification for such failure within 10 days of the scheduled date of the hearing. As this
meets the conditions for abandonment specified in the Office procedure manual, the Office
properly found that appellant abandoned her request for an oral hearing before an Office hearing
representative.
CONCLUSION
The Board finds that the Branch of Hearings and Review properly concluded that
appellant had abandoned her request for a telephonic oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the October 24, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.A., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Detroit, MI, Employer
__________________________________________

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

Docket No. 21-0041
Issued: May 3, 2021

Case Submitted on the Record

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

JURISDICTION
On October 2, 2020 appellant filed a timely appeal from a September 25, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish entitlement to
continuation of pay (COP) for the period May 11 through July 28, 2020.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On August 6, 2020 appellant, then a 61-year-old general supply specialist, filed a traumatic
injury claim (Form CA-1) alleging that on May 4, 2020 he contracted COVID-19 after performing
physical inventory in close proximity to a coworker who was frequently coughing while in the
performance of duty. He stopped work on May 11, 2020 and returned to work on July 28, 2020.
In support of his claim, appellant submitted a laboratory test result, dated May 8, 2020,
which revealed that he tested positive for COVID-19.
In letters dated May 10 and 11, 2020, Dr. Janaki Annavarapu, a Board-certified internist,
confirmed that appellant tested positive for COVID-19 and placed him off work from May 11
through 22, 2020.
In a May 13, 2020 emergency department note, Dr. Nicole Adams, a Board-certified
osteopath, specializing in emergency medicine, noted that appellant was experiencing chest pain
and shortness of breath. She indicated that appellant was diagnosed with COVID-19 and
pneumonia and continued to have fevers and chills. Dr. Adams examined appellant and diagnosed
COVID-19, nonspecific chest pain, pneumonia of both lungs, and shortness of breath.
In a May 13, 2020 hospital note, Dr. Errol Zimmerman, a Board-certified internist, noted
that appellant experienced right-sided chest discomfort and shortness of breath. He indicated that
appellant had bilateral infiltrates, which were likely due to COVID-19.
Hospital discharge notes, dated June 3, 2020, showed that appellant was diagnosed with
pneumonia due to COVID-19, sepsis, acute respiratory failure with hypoxia, elevated liver
function tests, prophylactic measure, cardiomyopathy, pneumomediastinum, and loose stools.
In a June 12, 2020 addendum, Dr. Zimmerman noted that appellant was admitted to the
hospital with pneumonia secondary to COVID-19 and sepsis. He indicated that appellant
completed a course of antibiotics for superimposed bacterial infection and that computerized
tomography (CT) scans of his chest revealed worsening lung changes. Dr. Zimmerman reported
that appellant was awaiting long-term acute care placement.
In a development letter dated August 10, 2020, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of factual and
medical evidence needed and provided a questionnaire for his completion. In a separate
development letter of even date, OWCP requested that the employing establishment provide
additional information, including comments from a knowledgeable supervisor and details
regarding appellant’s alleged COVID-19 exposure. It afforded both parties 30 days to submit the
necessary evidence.
OWCP subsequently received an August 7, 2020 letter from Dr. Annavarapu who
restricted appellant to four hours of work per day until he was no longer under cardiologist care.
In an August 11, 2020 e-mail, J.G., appellant’s supervisor, responded to OWCP’s
development questionnaire. She noted that on May 4, 2020 appellant conducted inventory in an
isolated office for a few hours. J.G. indicated that appellant was in contact with one former
2

employee who had been notified. She reported that appellant’s shift consisted of direct contact
with the public and that he encountered around 10 to 20 people daily. J.G. stated that appellant
was masked, but noted that he was working in a cluttered room that made social distancing
difficult. In a separate e-mail of even date, the employing establishment indicated that it concurred
with appellant’s allegation that he contracted COVID-19 in the workplace and reported that several
of appellant’s coworkers tested positive for COVID-19.
In an August 27, 2020 memorandum of a telephone call (Form CA-110), appellant
informed OWCP that he was hospitalized for six weeks and was unable to file his traumatic injury
claim within 30 days. He noted that he returned to work on August 25, 2020 without restrictions.
By decision dated September 25, 2020, OWCP accepted appellant’s claim for COVID-19.
By separate decision of even date, it denied appellant’s claim for COP, finding that he had not
reported his injury on an OWCP-approved form within 30 days of the accepted May 4, 2020
employment injury. OWCP noted that the denial of COP did not preclude him from filing a claim
for disability due to the effects of the accepted employment injury.
LEGAL PRECEDENT
Section 8118(a) of FECA authorizes COP, not to exceed 45 days, to an employee who has
filed a claim for a period of wage loss due to a traumatic injury with his or her immediate superior
on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of
this title.3 This latter section provides that written notice of injury shall be given within 30 days.4
The context of section 8122 makes clear that this means within 30 days of the injury.5
OWCP’s regulations provide, in pertinent part, that to be eligible for COP, an employee
must: (1) have a traumatic injury which is job related and the cause of the disability and/or the
cause of lost time due to the need for medical examination and treatment; (2) file Form CA-1
within 30 days of the date of the injury; and (3) begin losing time from work due to the traumatic
injury within 45 days of the injury.6
The Board has held that section 8122(d)(3) of FECA,7 which allows OWCP to excuse
failure to comply with the time limitation provision for filing a claim for compensation because of
exceptional circumstances, is not applicable to section 8118(a), which sets forth the filing
3

Supra note 1 at § 8118(a).

4

Id. at § 8122(a)(2).

5

E.M., Docket No. 20-0837 (issued January 27, 2021); J.S., Docket No. 18-1086 (issued January 17, 2019);
Robert M. Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985). The Board notes that
FECA Bulletin No. 20-05, Federal Employees Contracting COVID-19 in Performance of Duty (March 31, 2020), also
provides that “If the employer supports the claim and that the exposure occurred, and the CA-1 is filed within 30 days,
the employee is eligible to receive Continuation of Pay for up to 45 days.”
6

20 C.F.R. § 10.205(a)(1-3); see also T.S., Docket No. 19-1228 (issued December 9, 2019); J.M., Docket No. 091563 (issued February 26, 2010).
7

Supra note 1 at § 8122(d)(3).

3

requirements for COP.8 Thus, there is no exception to the requirement that the claim be filed
within 30 days of the employment injury.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish entitlement to
COP for the period May 11 through July 28, 2020.
Appellant filed written notice of his traumatic injury (Form CA-1) on August 6, 2020. In
an August 27, 2020 memorandum of a telephone call (Form CA-110), he explained that he was
hospitalized for six weeks and was unable to timely file his traumatic injury claim within 30 days
of the May 4, 2020 employment injury. By decision dated September 25, 2020, OWCP denied
appellant’s request for COP, as his claim was not filed within 30 days of the accepted May 4, 2020
employment injury. It noted that the denial of COP did not preclude him from filing a claim for
disability due to the effects of the accepted employment injury.
The Board notes that there is no provision in FECA for excusing a late filing regarding
COP. Because appellant filed written notice of his traumatic injury claim (Form CA-1) on
August 6, 2020, the Board finds that it was not filed within 30 days of the accepted May 4, 2020
employment injury, as specified in sections 8118(a) and 8122(a)(2) of FECA. Accordingly,
appellant is not entitled to COP.
10

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish entitlement to
COP for the period May 11 through July 28, 2020.

8

E.M., supra note 5.

9

Id.; Dodge Osborne, 44 ECAB 849 (1993).

10

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the September 25, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 3, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
FEDERAL AVIATION ADMINISTRATION,
CHARLOTTE/DOUGLAS INTERNATIONAL
AIRPORT, Charlotte, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0093
Issued: July 26, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On October 15, 2018 appellant filed a timely appeal from a July 5, 2018 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 19-0093.
This case has previously been before the Board.1 By decision dated July 27, 2016,2 the
Board set aside OWCP’s March 10, 2016 decision, which modified in part, and affirmed in part,
its prior determination of appellant’s pay rate for compensation purposes pursuant to 5 U.S.C.
§ 8113(a) and remanded the case for OWCP to make proper findings with respect to appellant’s
pay rate. By order dated November 2, 2016,3 the Board set aside OWCP’s June 29, 2016
overpayment decision, finding that the overpayment issues were not in posture for decision until

1

Docket No. 16-0881 (issued July 27, 2016); Order Remanding Case, Docket No. 16-1437 (issued November 2,
2016); Docket No. 17-0257 (issued July 27, 2017); and Docket No. 17-2013 (issued April 11, 2018).
2

Docket No. 16-0881 (issued July 27, 2016).

3

Order Remanding Case, Docket No. 16-1437 (issued November 2, 2016).

the issue of appellant’s pay rate had been resolved. By decision dated July 27, 2017,4 the Board
affirmed OWCP’s November 3, 2016 decision which found that appellant had not met his burden
of proof to establish a greater pay rate than that previously used for compensation purposes
pursuant to 5 U.S.C. § 8113(a). The Board noted that its November 2, 2016 order that the
overpayment issues were not in posture as the pay rate issue had not been resolved. Therefore, on
return of the case record, the Board instructed OWCP to properly adjudicate the overpayment
issues to protect appellant’s appeal rights. The Board further instructed OWCP to obtain current
financial information regarding appellant’s income, expenses, and assets, and determine whether
he was entitled to waiver of recovery of the overpayment.
By decision dated August 22, 2017, OWCP found an overpayment of compensation in the
amount of $16,740.25 for the period July 18, 2013 through March 5, 2016, found appellant at fault
in the creation of the overpayment and therefore denied waiver of recovery of the overpayment,
and ordered recoupment of the overpayment at the rate of $200.00 every 28 days.
By decision dated April 11, 2018,5 the Board set aside OWCP’s August 22, 2017 decision
finding that OWCP had not followed the Board’s remand instructions from the July 27, 2017
decision as it had not issued a decision regarding “all of the overpayment issues.” OWCP, by letter
dated May 17, 2018, requested that appellant submit his current financial information and
supporting documents for review by OWCP to determine his eligibility for waiver of recovery of
the overpayment. In response, appellant submitted a completed overpayment recovery
questionnaire (Form OWCP-20) dated May 21, 2018 and supportive financial information. He
contended that the employing establishment and OWCP incorrectly calculated his pay rate.
OWCP, by decision dated July 5, 2018, again denied waiver of recovery of the $16,740.25
overpayment created for the period July 18, 2013 to March 5, 2016 based on appellant’s failure to
establish that he required substantially all of his income to meet ordinary and necessary living
expenses.6 It further determined that it would recover the overpayment by deducting $200.00 from
his continuing compensation payments.
The Board has duly considered the matter and finds that the case is not in posture for
decision as OWCP has not complied with the Board’s July 27, 2017 and April 11, 2018 decisions.
By these decisions on remand, OWCP was to issue a decision regarding “all of the overpayment
issues” to preserve appellant’s appeal rights. However, it only found that appellant was not entitled
to waiver of recovery of the $16,740.25 overpayment as he did not need substantially all of his
income to meet ordinary and necessary living expenses. OWCP did not make any findings to
confirm the fact and amount of the overpayment as instructed by the Board’s decisions.
Since OWCP failed to make proper findings as directed by the Board, the case will be
remanded to OWCP. On return of the case record it should make specific findings as to fact as to

4

Docket No. 17-0257 (issued July 27, 2017).

5

Docket No. 17-2013 (issued April 11, 2018).

6

In the July 5, 2018 decision, OWCP noted that the current balance of the overpayment was $12,436.60.

2

the amount of the overpayment and waiver of recovery of the overpayment. After such further
development as OWCP deems necessary, it shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the July 5, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this order of the Board.
Issued: July 26, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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Appearances:
Lenin V. Perez, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1200
Issued: November 1, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 18, 2013 appellant, through his attorney, filed a timely appeal from a
February 26, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
affirming an August 29, 2012 termination of appellant’s compensation benefits. 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 claim.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s wage-loss and
medical compensation benefits effective August 29, 2012 on the grounds that residuals of an
accepted left knee injury lumbarhad ceased without residuals; and (2) whether appellant
established that he remained disabled for work on and after August 29, 2012 due to the accepted
left knee injury.

1

5 U.S.C. § 8101 et seq.

On appeal, counsel asserts a conflict of medical opinion between appellant’s attending
physician and Dr. Peter J. Millheiser, a second opinion physician Board-certified in orthopedic
surgery. He also asserts that Dr. Millheiser cannot serve as the second opinion physician as he
had “already seen [appellant] on a different case.”
FACTUAL HISTORY
OWCP accepted that on July 6, 2011 appellant, then a 46-year-old letter carrier, sustained
a left medial meniscus tear and sprain of the left medial collateral ligament when his left foot
became entangled in a lawn sprinkler.
An August 8, 2011 magnetic resonance imaging(MRI) scan of appellant’s left knee
showed mucoid degeneration of the meniscus cartilages without a frank tear, mild
chondromalacia of the patella, bone edema in the medial femoral condyle consistent with a blunt
trauma injury and mild arthritic changes.
On October 4, 2011 Dr. Michael Feanny, an attending Board-certified orthopedic
surgeon, performed a left knee arthroscopy with a lateral retinacular release and chondroplasty of
the patella, approved by OWCP. He noted postoperative diagnoses of chondromalacia and lateral
subluxation of the patella, without meniscal tears. Appellant received wage-loss compensation
for total disability from October 31, 2011 to February 1, 2012.
Dr. Feanny released appellant to sedentary duty as of November 3, 2011. Appellant
returned to limited-duty work on February 1, 2012. On February 8, 2012he filed a recurrence of
disability claim (Form CA-2a) claiming that while delivering mail on February 4, 2012, he
experienced increased left knee pain and stopped work. Appellant sought treatment in a hospital
emergency room. Dr. Rakesh Khanna, a physician specializing in emergency medicine,
diagnosed left knee pain. Appellant consulted Dr. Feanny on February 6, 2012, who opined that
he could work six hours a day light duty.
Beginning on February 7, 2012, appellant was followed by Dr. Carols Roig, an attending
orthopedic surgeon. In reports through March 27, 2012, Dr. Roig noted left knee pain and
swelling. He diagnosed left knee derangement, mild chondromalacia and mild degeneration of
the meniscal cartilage without frank tears.2
Dr. Sammy F. Bishai, an attending orthopedic surgeon, treated appellant beginning on
March 14, 2012. He reviewed appellant’s history of injury and treatment. On examination,
Dr. Bishai found tenderness to palpation throughout the left knee, with slight swelling. He
diagnosed internal derangement of the left knee, chondromalacia of the patella and rule out torn
medial meniscus. Dr. Bishai held appellant off work. He obtained a March 14, 2012 left knee
MRI scan showing a horizontal tear of the posterior horn of the medial meniscus, prepatellar
bursitisand a bone contusion of the tibial plateau and generalized effusion. On March 27, 2012
Dr. Bishai opined that appellant was disabled for work due to the left knee posterior horn
meniscal tear and internal derangement.He found that both of these conditions were directly
2

A February 23, 2012 computerized tomography (CT) scan of appellant’s left knee showed patellofemoral fluid
collection suggesting a hemorrhage or debris.

2

related to the accepted left knee injuries.Dr. Bishai continued to hold appellant off work in
reports through July 3, 2012.
On May 21, 2012 OWCP obtained a second opinion from Dr. Millheiser, a Boardcertified orthopedic surgeon, who provided a history of injury and treatment and reviewed a
statement of accepted facts. On examination, he noted vague tenderness to palpation throughout
the left knee and suprapetellar swelling. Dr. Millheiser opined that appellant never had a
meniscal tear as Dr. Freanny did not find one during the October 4, 2011 procedure. Also,
Dr. Freanny trimmed frayed areas of the medial meniscus but did not perform a partial
meniscectomy. Dr. Millheiser released appellant to full-time unrestricted duty. In a June 27,
2012 addendum,he stated that the accepted left knee sprain had resolved completely, that there
was no meniscal tear and that appellant had attained maximum medical improvement.
Dr. Millheiser reiterated that appellant could return to his date-of-injury position as a letter
carrier with no restrictions.
By notice dated July 17, 2012, OWCP advised appellant of its preliminary determination
to terminate his wage-loss and medical benefits as the accepted left knee injuries had ceased
without residuals, based on Dr. Millhesier’s reports as the weight of the medical evidence.
In response, appellant submitted an August 1, 2012 report from Dr. Bishai expressing
strong disagreement with Dr. Millheiser’s opinion. Dr. Bishai opined that appellant’s objective
findings on examination were “quite impressive” and had not resolved.3
By decision dated August 29, 2012, OWCP terminated appellant’s wage-loss and medical
compensation benefits effective that day on the grounds that the accepted left knee injuries had
ceased without residuals, based on Dr. Millheiser’s opinion as the weight of the medical
evidence. It noted thatunlike Dr. Millheiser, Dr. Bishai was not a Board-certified orthopedic
surgeon.
In a September 5, 2012 letter, appellant requested a telephonic hearing, held
August 13, 2012. At the hearing, counsel asserted that there was a conflict of medical opinion
between Dr. Bishai, for appellant, and Dr. Millheiser, for the Government.
Following the hearing, appellant submitted new medical reports from Dr. Bishai dated
August 30, 2012 to January 15, 2013, asserting that Dr. Millheiser erred by failing to diagnosed
the left medial meniscus tear and questioned his medical skill. Dr. Bishai opined that appellant
would remain totally disabled for work unless he underwent a second left knee arthroscopy to
repair the meniscal tear and address chronic instability.Appellant also provided reports from

3

Appellant also provided a July 18, 2012 report from Dr. Ramon A. Berenguer, an attending family practitioner,
diagnosing internal derangement of the left knee and chondromalacia of the patella.

3

Dr. Berenguerdated from August 29, 2012 to January 9, 2013, diagnosing internal derangement
of the left knee and chondromalacia of the patella.4
By decision dated and finalized February 26, 2013, OWCP’s hearing representative
affirmed OWCP’s August 29, 2012 decision terminating appellant’s wage-loss and medical
benefits. He found that Dr. Millheiser’s opinion continued to carry the weight of the medical
evidence, as he presented detailed medical rationale explaining that the left medial meniscus tear
accepted by OWCP was not in fact present at the time of the October 4, 2011 operation. In
contrast, Dr. Bishai, who was not a Board-certified orthopedic surgeon, opined that imaging
studies performed after the October 4, 2011 surgery were sufficient to establish the presence of a
presurgical meniscal tear. The hearing representative found that the medical evidence did not
support “any ongoing condition causally related to the accepted employment trauma or injury
sustained as a result thereof.”
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a sprain of the left medial collateral ligament
and a left medial meniscus tear, necessitating arthroscopic left retinacular release and patellar
chondroplasty. Dr. Feanny, an attending Board-certified orthopedic surgeon, noted in his
October 4, 2011 surgical report that there was no meniscal tear present. Appellant received
wage-loss compensation from October 31 to February 1, 2012, when he returned to full duty. He
experienced increased left knee pain on February 4, 2012 and again stopped work.
4

The employing establishment submitted a February 8, 2013 investigative report, surveillance photographs and
video footage obtained from April 20 to October 25, 2012, showing appellant lifting and carrying various objects,
loading and unloading his car, cleaning his vehicle and pulling garbage bins. It undertook this investigation
pursuant to his claim for a February 13, 2012 lumbar sprain. The back injury claim is not before the Board on the
present appeal.
5

Bernadine P. Taylor, 54 ECAB 342 (2003).

6

Id.

7

Roger G. Payne, 55 ECAB 535 (2004).

8

Pamela K. Guesford, 53 ECAB 726 (2002).

4

Dr. Roig, an attending orthopedic surgeon, submitted reports from February 7 to
March 27, 2012 diagnosing internal derangement of the left knee without a meniscal tear.
Dr. Bishai, an attending orthopedic surgeon, opined in reports from March 14 to July 3, 2012 that
appellant was totally disabled for work due to a tear of the posterior horn of the left medial
meniscus, causally related to the accepted left knee injuries.
OWCP obtained a second opinion from Dr. Millheiser, a Board-certified orthopedic
surgeon, who found that based on Dr. Feanney’s opinion, a review of the complete medical
record and statement of accepted facts, in addition to minimal clinical signs, appellant did not
have a left medial meniscus tear. Dr. Millheiser found appellant able to return to full duty
without restrictions. Based onhis opinion, OWCP issued a preliminary notice of termination on
July 17, 2012. Appellant then submitted Dr. Bishai’s August 1, 2012 report, opining that
Dr. Millheiser was not qualified to diagnose a meniscal tear and that appellant remained totally
disabled. OWCP terminated his wage-loss and medical benefits effective August 29, 2012.
The Board finds that Dr. Millheiser’s opinion was sufficient to establish that the accepted
left knee injuries had ceased without residuals as of August 29, 2012. Dr. Millheiser’s reports
were based on the complete medical record and a statement of accepted facts. He also performed
a thorough clinical examination. Dr. Millheiser then presented detailed rationale explaining how
and why the medical evidence and clinical findings negated an ongoing meniscal tear related to
the accepted left knee injuries.
The Board notes that Dr. Millheiser is a Board-certified orthopedic surgeon, whereas
Dr. Bishai is not Board-certified. Also, Dr. Bishai failed to explain how the accepted July 6,
2011 left knee injuries would continue to disable appellant for work as late as July 3, 2012, in
light of Dr. Feanney’s operative report stating that there was no meniscal tear present. The
Board finds that Dr. Millheiser’s report is sufficiently rationalized to represent the weight of the
medical evidence in this case.9
On appeal, counsel asserts a conflict of medical opinion between Dr. Bishai and
Dr. Millheiser. As stated above, Dr. Millheiser is a Board-certified orthopedic surgeon whose
well-rationalized report was based on the complete record and statement of accepted facts. His
opinion outweighs that of Dr. Bishai, who is not Board-certified and did not provide adequate
medical rationale. Counsel also asserts that Dr. Millheiser cannot serve as the second opinion
physician as he had “already seen [appellant] on a different case.” The Board notes that he did
not submit proof of this contention. Additionally, although impartial medical examiners may not
have a previous association with a claimant’s case, this restriction does not apply to second
opinion examiners.10

9

Deborah L. Beatty, 54 ECAB 340 (2003).

10

The Board has held that OWCP must assure that the person designated as the referee medical examiner has no
prior association or affiliation with any other physician who has examined the claimant or provided an opinion on
the claim. To hold otherwise would undermine the impartiality sought under 5 U.S.C. § 8123(a). Susan
Fleming,Docket No. 02-1887 (issued February 3, 2003); Daniel A. Davis, 39 ECAB 151 (1987).

5

LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to the claimant. In order to
prevail, the claimant must establish by the weight of reliable, probative and substantial evidence
that he or she had an employment-related disability that continued after termination of
compensation benefits.11 For conditions not accepted by OWCP as being employment related, it
is the employee’s burden to provide rationalized medical evidence sufficient to establish causal
relation.12 The fact that a condition’s etiology is unknown or obscures neither relieves appellant
of the burden of establishing a causal relationship by the weight of the medical evidence, nor
shifts the burden of proof of OWCP to disprove an employment relationship.13
ANALYSIS -- ISSUE 2
Following the August 29, 2012 decision terminating appellant’s wage-loss and medical
compensation benefits, he submitted medical reports from Dr. Bishai dated from August 30,
2012 to January 15, 2013. Dr. Bishai contended that Dr. Millheiser wrongly failed to diagnose a
left medial meniscus tear. He opined that appellant needed repeat arthroscopy to address the tear
and chronic instability. Dr. Berenguer, an attending family practitioner, diagnosed internal
derangement of the left knee and chondromalacia of the patella in reports from August 29, 2012
to January 9, 2013. However, neither physician provided medical rationale explaining how the
accepted July 6, 2011 left knee injuries would continue to disable appellant on and after
August 29, 2012. In the absence of such rationale, the opinions of Dr. Bishai and Dr. Berenguer
are insufficient to meet appellant’s burden of proof.14 Also, Dr. Bishai attributed appellant’s
disability, in part, to chondromalacia of the patella and chronic instability, while Dr. Berenguer
diagnosed internal derangement of the left knee. OWCP did not accept these conditions as work
related.15
The Board finds that OWCP properly found that appellant did not establish a continuing
disability for work on and after August 29, 2012, based on Dr. Millheiser’s opinion as impartial
medical examiner. Dr. Millheiser provided a detailed report, based on a complete and factual
medical history, explaining that there were no objective signs of the accepted injuries. Although
Dr. Bishai supported continuing disability for work, he did not explain how and why the
accepted left knee injuries would disable appellant on and after August 29, 2012. Therefore,
OWCP correctly accorded Dr. Millheiser’s opinion the weight of the medical evidence.16
11
12
13
14

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992).
Alice J. Tysinger, 51 ECAB 638 (2000).
Judith J. Montage, 48 ECAB 292, 294-95 (1997).
Supra note 12.

15

Id.

16

Anna M. Delaney, 53 ECAB 384 (2002).

6

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss and medical
compensation benefits effective August 29, 2012 on the grounds that accepted left knee injuries
had ceased without residuals. The Board further finds that appellant has not established that he
remained disabled on and after August 29, 2012 due to sequelae of the accepted left knee
injuries.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 26, 2013 is affirmed.
Issued: November 1, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, AIRMAIL FACILITY,
Seattle, WA, Employer
__________________________________________
Appearances:
John E. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

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)
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Docket No. 10-1559
Issued: April 21, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On May 25, 2010 appellant filed an application for review of a May 5, 2010 merit
decision of the Office of Workers’ Compensation Programs. The appeal was docketed as No.
10-1559.
The case has been before the Board on prior appeals. In a decision dated June 30, 1992,
the Board affirmed a decision of the Office finding that residuals of the October 15, 1986 low
back strain had ceased by December 5, 1986.1 In a decision dated August 4, 1995, the Board
affirmed that appellant’s request for reconsideration was untimely and failed to show clear
evidence of error.2 By decision dated May 10, 2001, the Board remanded the case to the Office
for further development.3 The Board noted that appellant had filed a claim on January 8, 1998
for a recurrence of disability and submitted probative evidence in support of her claim. By

1

Docket No. 92-4 (issued June 30, 1992).

2

Docket No. 94-442 (issued August 4, 1995).

3

Docket No. 00-1400 (issued May 10, 2001).

decision dated September 9, 2003, the Board remanded the case on the grounds that a conflict in
the medical evidence existed.4
In a decision dated March 23, 2005, an Office hearing representative found that the
orthopedic surgeon selected to resolve the conflict, Dr. Donald Hubbard, had inferred that a
chronic myofascial pain syndrome was causally related to the employment injury. The hearing
representative stated the case should be referred to an appropriate specialist on the issue.
The Office referred appellant to an orthopedic surgeon. By decision dated August 23,
2006, an Office hearing representative stated that the Office should have referred appellant to a
“Board-certified pain specialist.” In a decision dated October 15, 2007, an Office hearing
representative found a conflict in the medical evidence on the issue of an employment-related
disability on or after December 5, 1986, and directed that appellant should be referred to “a
Board-certified specialist in pain management for an examination and reasoned opinion on
whether the claimant’s myofascial pain syndrome condition and any disability for work, on or
after December 5, 1986, is causally related to the accepted employment-related injury of
October 15, 1986.”
The Office initially referred appellant to Dr. David J. Tauben, a Board-certified internist.
While the Office referred to Dr. Tauben as a pain management specialist, no explanation was
provided for this designation.5 The Office found Dr. Tauben’s reports did not resolve the
conflict, and appellant was then referred to Dr. William J. Stump, a neurologist. By decision
dated October 6, 2008, an Office hearing representative found that Dr. Stump was not a Boardcertified pain management specialist, and the case was remanded for further development.
To resolve the conflict, the Office then referred appellant to Dr. Aleksandra Zietak, a
Board-certified physiatrist who submitted a June 29, 2009 report. In the May 5, 2010 decision,
an Office hearing representative states, “Pain management specialists treat chronic back pain and
neck pain which includes anesthesiologist and physiatrist therefore Dr. Zietak is considered an
appropriate specialist.” No authority was provided for the statement.
According to the ABMS,6 Dr. Zietak is Board-certified in physical medicine and
rehabilitation. There is a specific subspecialty certification for pain medicine, under the primary
specialties of anesthesiology, neurology and physical medicine and rehabilitation.7 There is no
indication that Dr. Zietak was Board-certified in the subspecialty of pain medicine.

4

Docket No. 03-1108 (issued September 9, 2003). The record also contains an October 19, 2004 order from the
Board remanding the case on the grounds that appellant’s representative was not sent a copy of a November 26,
2003 Office decision.
5

On appeal, appellant states that Dr. Tauben was board certified in pain management. According to the
American Board of Medical Specialists (ABMS), Dr. Tauben is Board-certified in internal medicne and no other
certification is reported.
6

ABMS at http://www.abms.org.

7

Id.

2

The Office was directed to refer appellant for a referee examination by a Board-certified
pain management specialist.8 The appropriate specialist in this case is a physician who is Boardcertified in the subspecialty of pain medicine. On remand the Office should follow the
established procedure for selecting a referee examiner and select a physician who is Boardcertified in pain medicine.9 After such further development as the Office deems necessary, it
should issue an appropriate decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 5, 2010 is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: April 21, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8

20 C.F.R. § 10.321 provides that the Office will select a referee physician who is qualified in the appropriate
specialty and has no prior connection with the case.
9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4 (May 2003).

3