United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL MOTOR CARRIER SAFETY
ADMINISTRATION, Cheyenne, WY, Employer
__________________________________________

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Appearances:
William Hackney, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1281
Issued: May 18, 2009

Case Submitted on the Record

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

JURISDICTION
On April 1, 2008 appellant filed a timely appeal from a January 10, 2008 merit decision
of the Office of Workers’ Compensation Programs terminating her compensation. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s entitlement to medical
benefits effective January 10, 2008 for the accepted condition of bilateral epicondylitis.
FACTUAL HISTORY
On November 25, 2002 appellant, then a 57-year-old transportation specialist, filed a
claim alleging that she wrenched her right arm on November 21, 2002 in the performance of
duty. The Office accepted the claim, assigned file number xxxxxx514, for right lateral
epicondylitis.

On February 25, 2003 appellant filed an occupational disease claim alleging that she
experienced pain in her left arm due to factors of her federal employment. She related that she
used her left arm almost exclusively as her right arm was in a splint. The Office accepted the
claim, assigned file number xxxxxx127, for lateral epicondylitis of the left elbow. It further
accepted that appellant sustained right lateral epicondylitis and an aggravation of major
depressive disorder, single episode, under file number xxxxxx122. Appellant stopped work on
March 10, 2003 and received compensation for total disability.
On December 1, 2003 the Office determined that the record contained a conflict in
medical opinion between Dr. Jeffrey M. Hrutkay, a Board-certified orthopedic surgeon and
Office referral physician, and Dr. Eric E. Young, an attending Board-certified orthopedic
surgeon, regarding appellant’s work restrictions. It referred her to Dr. Herbert H. Maruyama, a
Board-certified orthopedic surgeon, for an impartial medical examination. On December 12,
2003 Dr. Maruyama found that appellant continued to experience subjective symptoms of right
and left epicondylitis. He determined that she could work full time with restrictions.1
On April 15, 2005 the Office notified appellant of its proposed termination of her
compensation and medical benefits for the accepted conditions of right and left epicondylitis
based on Dr. Maruyama’s report.2 By decision dated June 15, 2005, it finalized its termination
of her compensation and authorization for medical benefits for bilateral epicondylitis under file
numbers xxxxxx514, xxxxxx127 and xxxxxx122. In a decision dated July 12, 2006, the Office
denied modification of its June 15, 2005 termination decision. Appellant appealed to the Board.
On December 20, 2006 the Board determined that the case record submitted on appeal was
incomplete and remanded the case for reconstruction of the case record and a new decision on
the merits.3
On April 13, 2007 the Office referred appellant to Dr. Alfred C. Lotman, a Boardcertified orthopedic surgeon, for a second opinion examination. Dr. Lotman performed an
examination on May 2, 2007 and diagnosed chronic bilateral lateral epicondylitis of the elbows.
He found that appellant had exaggerated pain behaviors. Dr. Lotman opined that she could work
full time with permanent restrictions of reaching for two hours per day, performing repetitive
wrist and elbow movements for two hours per day, pushing and pulling up to 10 pounds two
hours per day and reaching above her shoulder one hour per day.
On May 17, 2007 the Office notified appellant of its proposal to terminate her
compensation as the opinions of Dr. Maruyama and Dr. Lotman supported that she could
perform her usual employment duties.

1

By decision dated February 9, 2004, the Office denied appellant’s request for a schedule award on the grounds
that the evidence did not establish that she sustained a permanent impairment due to her work injury.
2

The Office noted that it was still adjudicating the issue of whether appellant continued to have residuals of her
psychological condition.
3

Order Remanding Case, Docket No. 06-1819 (issued December 20, 2006).

2

In a report dated May 29, 2007, Dr. Michael P. Kuhn, a Board-certified orthopedic
surgeon, asserted that appellant had a partial loss of function in her upper extremities. He found
that she could perform sedentary work activities.
The Office determined that a conflict in medical opinion existed between Dr. Lotman and
Dr. Kuhn regarding appellant’s diagnosis and work restrictions. It referred appellant to
Dr. Jeffrey Sabin, a Board-certified orthopedic surgeon, for an impartial medical examination.
On September 27, 2007 Dr. Sabin reviewed appellant’s history of injury and the medical
evidence of record. He diagnosed a history of bilateral elbow epicondylitis, a history of
depression and findings of fibromyalgia. Dr. Sabin related that appellant’s current diagnosis
remained bilateral elbow epicondylitis and evidence of fibromyalgia with positive trigger points
and negative mock trigger points. He stated:
“Because of the physical exam[ination] being negative at the lateral epicondyles
(the pain when she has resisted extension of the wrist for the fingers) I am
concerned that the fibromyalgia has overtaken her symptomatology and perhaps
lateral epicondylitis would not be direct issues. This would seem likely in that
[appellant] has not worked since March 2003 and Dr. Lotman has stated in his
note that[,] if she does not have the aggravating symptoms of repetitive motion,
she should not have the lateral epicondylitis symptoms any longer. Therefore, it
may be that the fibromyalgia is the predominant issue with multiple trigger points,
which just happened to include the lateral epicondyle. Therefore, in conclusion,
the bilateral epicondylitis may be resolved at this point, [appellant] now being left
with fibromyalgia symptoms.”
Regarding the question of whether appellant had continued residuals of her employment
injury, Dr. Sabin related:
“[Appellant] does have continuing residuals of pain at the lateral epicondylar area.
However, I believe this is an issue concerning fibromyalgia on today’s
exam[ination] rather than bona fide lateral epicondylitis based on the physical
exam[ination]. Therefore, this condition actually may be [the] result currently of
[a] nonwork[-]related condition. The epicondylitis does not appear to be the
diagnosis again based on above physical exam[ination] findings.”
Dr. Sabin opined that appellant could return to full-time work with no repetitive motion
of the wrist and elbow, lifting up to five pounds and pushing and pulling 10 pounds.
On November 6, 2007 the Office notified appellant of its proposed termination of her
medical benefits for bilateral epicondylitis under file numbers xxxxxx122, xxxxxx127 and
xxxxxx514. It determined that Dr. Sabin found no residuals of bilateral epicondylitis.
On November 30, 2007 appellant’s representative argued that Dr. Sabin’s opinion did not
support that she had no further condition or disability due to bilateral elbow epicondylitis.
Counsel further raised concerns about the initial second opinion evaluation by Dr. Hrutkay. He
also noted that Dr. Sabin was previously an associate of Dr. Maruyama, a prior impartial medical
examiner.

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By decision dated January 10, 2008, the Office terminated appellant’s entitlement to
medical benefits effective that date for the accepted condition of bilateral epicondylitis of the
elbows. It noted that at the time Dr. Sabin examined her on September 27, 2007 he was no
longer an associate of Dr. Maruyama. The Office further indicated that it did not rely on
Dr. Hrutkay’s opinion as the weight of the evidence in terminating authorization for medical
benefits.
On appeal appellant’s attorney contends that Dr. Sabin’s finding that her condition of
bilateral epicondylitis may have resolved and that she has fibromyalgia is unsupported by
rationale and insufficient to support a termination of her medical benefits. Counsel further noted
that the Office never finalized its May 17, 2007 notice of proposed termination of compensation
and asserted that the Office was attempting to terminate medical benefits without terminating
compensation.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability compensation.4 To
terminate authorization for medical treatment, the Office must establish that appellant no longer
has residuals of an employment-related condition which require further medical treatment.5
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.6 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 Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.7 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
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.8

4

Pamela K. Guesford, 53 ECAB 727 (2002).

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Id.

6

5 U.S.C. § 8123(a).

7

20 C.F.R. § 10.321.

8

Darlene R. Kennedy, 57 ECAB 414 (2006); David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB
313 (2003).

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ANALYSIS
The Office accepted that appellant sustained right lateral epicondylitis under file number
xxxxxx514, right lateral epicondylitis and an aggravation of major depressive disorder under file
number xxxxxx122 and left lateral epicondylitis under file number xxxxxx127. Appellant
stopped work on March 10, 2003.9
The Office determined that a conflict existed between Dr. Lotman, an Office referral
physician, and Dr. Kuhn, appellant’s attending physician, regarding her diagnosis and work
restrictions. It referred her to Dr. Sabin, a Board-certified orthopedic surgeon, for an impartial
medical examination. When the record contains a conflict in medical opinion 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.10 The Board finds that the Office improperly terminated
appellant’s authorization for medical treatment for the accepted conditions of bilateral
epicondylitis based on the opinion of Dr. Sabin. In a report dated September 27, 2007, Dr. Sabin
related that the current diagnosis continued to be bilateral elbow epicondylitis.11 On examination
he found positive trigger points and negative mock trigger points for fibromyalgia. Dr. Sabin
asserted that based on the physical examination appellant’s “bilateral epicondylitis may be
resolved at this point….” He found that her residual pain in the lateral epicondylar area could be
the result of fibromyalgia. Dr. Sabin concluded that epicondylitis did not “appear to be the
diagnosis” based on the findings on examination.
The Board finds that Dr. Sabin’s opinion that appellant’s bilateral epicondylitis “may be
resolved” is speculative in nature and thus of diminished probative value.12 In order to terminate
authorization for medical treatment, the Office must establish that appellant no longer has
residuals of an employment-related condition which requires further medical treatment.13 As
Dr. Sabin did not provide a reasoned, unqualified opinion that appellant had no further residuals
of her employment injury, the Board finds that the Office did not meet its burden of proof to
terminate appellant’s authorization for medical benefits.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s entitlement to medical
benefits.
9

At the time of this appeal, the Office has not issued a final decision terminating compensation or medical
benefits for the psychiatric condition.
10

See Darlene R. Kennedy, supra note 8.

11

As noted by appellant’s attorney, Dr. Sabin was previously associated with Dr. Maruyama, who performed an
earlier impartial medical examination. At the time of Dr. Sabin’s examination, however, he was no longer in
practice with Dr. Maruyama.
12

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); Kathy A. Kelley, 55 ECAB
206 (2004).
13

See Kathryn E. Demarsh, 56 ECAB 677 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 10, 2008 is reversed.
Issued: May 18, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 14-423
Issued: June 26, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 9, 2013 appellant, through her attorney, filed a timely appeal from a
September 9, 2013 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 termination issue of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s medical and wage-loss
compensation benefits effective March 10, 2013 as she no longer had any residuals or disability
causally related to her accepted August 2, 2005 back injury.
On appeal, counsel contends that OWCP did not properly select the impartial medical
examiner and that his report should not be given special weight because it lacked medical
rationale.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The relevant facts are set forth below.
On August 4, 2005 appellant, then a 45-year-old distribution window clerk, filed a
traumatic injury claim alleging that on August 2, 2005 she strained her back when she lifted a tub
of mail. She stopped work on August 6, 2005.
Appellant was initially treated by Dr. Jerry Murphy, who specializes in emergency and
trauma medicine. In an August 30, 2005 report, Dr. Murphy related that on August 2, 2005
appellant felt a pulling sensation in her back when she lifted a tub of mail. Upon examination, he
observed tenderness on palpation at the right posterior sacroiliac joint at L4-S1 with spasms and
tenderness on palpation of the sciatic notch and increased sensation in the right L3-4 and L5
dermatomes. Dr. Murphy diagnosed acute lumbosacral sprain with spasm, acute sciatica and
acute post-traumatic radiculitis.
In an August 24, 2005 magnetic resonance imaging (MRI) scan report of the lumbar
spine, Dr. Joel Swartz, a Board-certified diagnostic radiologist, related appellant’s complaints of
persistent back pain. He observed disc desiccation with mild disc bulge and bilateral neural
foraminal narrowing at L2-3, disc desiccation with moderate disc bulge and mild bilateral neural
foraminal narrowing, left greater than right, at L3-4 and disc desiccation at L4-5 with mild disc
bulge. Dr. Swartz stated that a few images suggested peripheral annular tear between 7 and 8
o’clock.
On October 25, 2005 OWCP accepted appellant’s claim for acute lumbosacral sprain,
acute sciatica and acute post-traumatic radiculitis and paid disability compensation. On
December 30, 2006 appellant returned to limited duty. On April 11, 2007 she sustained a
recurrence of the August 2, 2005 work injury and stopped work again. On October 10, 2007
appellant was placed on the periodic rolls.
In an August 28, 2007 electrodiagnostic report of the right lower extremity, Dr. Ernest M.
Baran, Board-certified in physical medicine and rehabilitation, provided an accurate history of
the August 2, 2005 employment injury. He noted that appellant had no symptoms regarding her
left leg. Dr. Baran reported that electrodiagnostic studies of the right lower extremity were
consistent with mild to moderate axonal L5, S1 radiculopathy and normal findings of the
remaining right L1 through 4. He found no evidence of peripheral neuropathy or nerve
entrapment in the right lower extremity. Dr. Baran concluded that diagnostic and clinical
examination supported a right L5, S1 radiculopathy and physical examination demonstrated a
right L2 pinprick/tactile sensory deficit level.
In a September 12, 2007 MRI scan of the lumbar spine, Dr. Daphine Golding, Boardcertified in physical medicine and rehabilitation, related appellant’s complaints of persistent back
pain. She observed well-preserved body signal and vertebral body height. Dr. Golding reported
mild to moderate disc protrusion with disc herniation at L2-3, left greater than right and L3-4.

2

Docket No. 11-1442 (issued March 5, 2012).

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She also noted mild-to-moderate disc protrusion with left greater than right neural foraminal
narrowing at L4-5.
On June 6, 2008 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical records, to Dr. Steven J. Valentino, a Board-certified orthopedic
surgeon, for a second-opinion examination regarding the nature and extent of her work-related
injury. In a July 9, 2008 report, Dr. Valentino reviewed her history and conducted an
examination. He opined that appellant’s acute lumbosacral sprain, radiculitis and sciatica had
resolved and that she had completely recovered from her accepted work-related injuries.
Dr. Valentino reported that she was able to return to work without restrictions.
In a September 21, 2009 report, Dr. Murphy reviewed Dr. Valentino’s July 9, 2008
second-opinion report and disagreed with his findings that appellant’s conditions had resolved.
He stated that she remained symptomatic and was in need of continued medical treatment,
physical therapy and spinal injections. Dr. Murphy noted that Dr. Valentino’s opinion was
subjective in nature and failed to outline any of the objective testing that was performed on
appellant. He continued to request authorization for physical therapy and spinal injections.
OWCP referred appellant’s case, along with a SOAF and the medical record, to a district
medical adviser to determine whether physical therapy, electric stimulator, therapeutic exercises
and neuromuscular reeducation continued to be medically necessary to treat appellant’s accepted
conditions. In an August 2, 2010 report, Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon and OWCP medical adviser, accurately described the August 2, 2005 employment injury
and reviewed the medical records. He noted that appellant’s claim was accepted for acute
lumbosacral sprain, acute sciatica and acute post-traumatic radiculitis. Dr. Berman stated that
she received an adequate number of lumbar epidural injections and opined that additional
injections at this time would be of no value. He explained that as a general rule epidural
injections following lumbar spine surgery were ineffective because the fluid could not migrate in
the area of the nerve roots as a result of the scar formation following the surgery. Dr. Berman
recommended that additional injections not be approved and that conservative measures such as
aquatic exercise should be sufficient for appellant.
On August 16, 2010 OWCP denied authorization for physical therapy and spinal
injections. By letter dated December 14, 2010, appellant’s attorney requested a review of a
written record. By decision dated February 10, 2011, an OWCP hearing representative affirmed
the August 16, 2010 decision denying authorization of spinal injections and physical therapy.
Appellant filed an appeal before the Board.
In a decision dated March 5, 2012, the Board found that a conflict in medical opinion
existed between Dr. Murphy, appellant’s treating physician, and Drs. Valentino and Berman,
OWCP referral physicians, regarding appellant’s ongoing residuals of her accepted medical
conditions and the necessary medical treatment. The Board remanded her case to OWCP for
referral to an impartial medical examiner.

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On July 5, 2011 2011 appellant returned to part-time work in the private sector. OWCP
reduced her disability compensation based on her actual wages. Appellant stopped work again
effective February 9, 2012. OWCP paid her compensation for partial disability.
Following the Board’s decision, OWCP referred appellant together with a SOAF and the
medical record, to Dr. Stuart Trager, a Board-certified orthopedic surgeon, for an impartial
medical examination. The record contained an April 9, 2012 form ME-M (Memorandum of
Referral to Specialist), which requested an orthopedic specialist and screenshots of bypass
history.3 The record also contained a May 7, 2012 ME023 appointment notification and a
Medical Management Application (MMA) screenshot.
In a March 26, 2012 report, Dr. Murphy related appellant’s complaint of persistent low
back pain with radiation into both hips, buttocks and thighs since 2005. He noted that she
underwent physical therapy, spinal injections and pain management to alleviate her symptoms.
Dr. Murphy opined that appellant required further medical treatment and that the medical
treatment was directly related to injuries sustained at work on August 2, 2005.
In a March 27, 2012 MRI scan report, Dr. Swartz related appellant’s complaints of low
back pain. He observed mild lower thoracic disc degeneration at the periphery of the field of
view. Dr. Swartz diagnosed moderate disc degeneration with mild-to-moderate broad based disc
protrusion impinging upon the dural sac and narrowing both neural foramina, left greater than
right, mild-to-moderate disc protrusion with left greater than right neural foraminal narrowing at
L3-4, mild-to-moderate biforaminal disc protrusion at L2-3 and shallow eccentric left sided
intraforaminal disc herniation at L1-2.
In an April 12, 2012 report, Dr. Murphy accurately described the accepted condition and
noted diagnoses of lumbar sciatica and lumbosacral neuritis. Upon examination, he observed
tender T1-S1, positive for spasm and tender LPS1 and sciatica. Dr. Murphy recommended
appellant continue medication, therapy and injections. He indicated that she could not return to
her preinjury job.
By letter dated May 17, 2012, appellant’s attorney requested that OWCP provide proof
that Dr. Trager was properly selected as the impartial medical examiner. He requested copies of
iFECS screenshots, an imaging of the ME023 selecting Dr. Trager and proper reasons for the
bypasses of physicians who were selected on a strict rotational basis.
In a May 30, 2012 report, Dr. Trager provided an accurate history of the April 2, 2005
employing establishment and noted that appellant’s claim was accepted for acute lumbosacral
sprain, acute sciatica and acute post-traumatic radiculitis. He reviewed the medical records
provided and the SOAF. Dr. Trager noted that an August 28, 2007 electromyography (EMG)
report supported findings of a right L5-S1 radiculopathy and that a September 12, 2007 MRI
scan also revealed various disc protrusions and foramina narrowing. He also reported that he
reviewed a March 27, 2012 MRI scan of the lumbar spine. Upon examination, Dr. Trager
observed tenderness diffusely producing a response somewhat out of proportion with palpation
3

Dr. Menachem Meller, a Board-certified orthopedic surgeon, was bypassed because he was not available and
Dr. Mark Rekant, a Board-certified orthopedic surgeon, was bypassed because he was a hand physician.

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of the paraspinal muscles but no paraspinal muscle spasm in the lumbar region. He stated that
appellant could extend to 40 degrees, 45 degrees of right and 45 degrees of left-sided bending.
Sitting straight leg raise was negative bilaterally and supine straight leg raise was also negative.
Dr. Trager opined that appellant’s accepted conditions resolved as of Dr. Valentino’s July 9,
2008 report as there were no reflex abnormalities or positive straight leg raise tests noted during
the examination. He stated that assuming that she had recovered from her work-related injuries
she had no need for continued epidural steroid injections or medical treatment such as physical
therapy, therapeutic exercises and neuromuscular reeducation. Dr. Trager concluded that
appellant did not have any residuals of her August 2, 2005 employment injury and had recovered
from her work-related lumbar sprain and radiculitis. He opined that she could return to work
without restrictions.
On June 29, 2012 OWCP proposed to terminate appellant’s medical and wage-loss
compensation benefits on the grounds that she no longer had any residuals or disability causally
related to her accepted injuries.
In a letter dated July 12, 2012, appellant’s counsel objected to the June 28, 2012 notice of
proposed termination. He stated that Dr. Trager’s May 30, 2012 report was not consistent with
the SOAF and noted that he failed to refer to diagnostic testing which confirmed the existence of
L5-S1 radiculopathy on the right and an MRI scan showing disc damage.
In a July 24, 2012 report, Dr. Murphy related that appellant had been under his care since
the original August 2, 2005 employment injury and continued to receive medical treatment,
including physical therapy and epidural injections, for her accepted employment injury.
In a July 25, 2012 report, Dr. Chee Woo, Board-certified in anesthesiology and pain
medicine, noted appellant’s diagnoses of degenerative disc disease and lumbar radicular
symptoms. She noted that appellant received two trigger point injections by Dr. Murphy, which
helped with myofascial spasm. Appellant submitted various treatment notes by Dr. Woo for
appellant’s back pain.
By decision dated August 3, 2012, OWCP finalized the termination of appellant’s
wage-loss and medical benefits effective August 26, 2012 finding that the special weight of
medical evidence rested with Dr. Trager’s impartial medical opinion.
On August 7, 2012 appellant’s attorney requested a hearing. By decision dated
September 10, 2012, an OWCP hearing representative determined that appellant’s case was not
in posture for decision because Dr. Trager’s opinion was not fully rationalized and was
insufficient to resolve the issues at hand. It remanded the case, along with the complete medical
record and an amended SOAF, for Dr. Trager to provide a supplemental report regarding
whether she continued to suffer residuals of her work-related injury.
Appellant was returned to the periodic rolls. She continued to submit physical therapy
reports and treatment notes from Dr. Murphy that noted diagnoses of sciatica and lumbosacral
neuritis and indicated that she could not return to work.
In a December 20, 2012 supplemental report, Dr. Trager noted that he reviewed the
August and September 2007 and March 2012 diagnostic reports. He explained that, while the
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diagnostic reports were consistent with right L5 radiculopathy, physical examination of appellant
was not consistent and demonstrated no signs to support clinical radiculopathy. Dr. Trager also
noted that, while the MRI scan revealed changes greater on the left than the right, the EMG was
normal regarding the left nerve root. He stated that the MRI scan was consistent with significant
degenerative changes throughout the spine, but opined that this condition was not related to the
accepted August 2, 2005 work-related injury. Dr. Trager concluded that appellant was capable
of returning to work without restrictions.
On January 11, 2013 OWCP proposed to terminate appellant’s medical and wage-loss
compensation benefits finding that the weight of medical evidence established that she no longer
had any residuals or disability causally related to her accepted injuries. It determined that the
weight of medical evidence rested with Dr. Trager’s May 30 and December 20, 2012 impartial
medical report. Appellant was advised that she had 30 days to submit additional relevant
evidence or argument if she disagreed with the proposed action.
In a January 22, 2013 report, Dr. Murphy accurately described appellant’s August 10,
2005 employment injury and noted diagnoses of sciatica and lumbosacral neuritis. He indicated
that her physical findings remained unchanged and recommended that she continue medication
and therapy. Dr. Murphy reported that appellant could not return to her preinjury job without
restrictions.
By decision dated February 28, 2013, OWCP finalized the termination of appellant’s
medical and wage-loss compensation benefits effective March 10, 2013. It found that the weight
of the medical opinion rested with Dr. Trager who determined that her accepted conditions had
resolved and that she no longer suffered residuals of her work-related injury.
By letter dated March 5, 2013, appellant requested a hearing of the February 28, 2013
termination decision, which was held on June 25, 2013. She was not present, but she was
represented by counsel, who requested that the hearing representative review the transcript from
the May 22, 2013 hearing regarding her recurrence claim, which outlined the medical problems
she still experienced. Counsel contended that Dr. Trager’s impartial medical opinion was
intended to resolve a conflict in medical opinion regarding appellant’s continual need for
physical therapy and epidural injections and not whether to terminate her medical and wage-loss
compensation benefits. He also alleged that Dr. Trager was not properly selected as the impartial
medical examiner because the record failed to contain screenshots of his selection from the
Physician Directory System (PDS). Counsel further argued that Dr. Trager’s supplemental
December 20, 2012 report failed to cure the deficiencies of his May 30, 2012 report. He noted
that Dr. Trager did not adequately explain how the positive EMG testing and positive straight leg
raising testing were related to an underlying degenerative back condition and not the August 2,
2005 employment injury.
In a March 21, 2013 report, Dr. Murphy described appellant’s August 10, 2005
employment injury and noted diagnoses of sciatica and lumbosacral neuritis. He reported that
physical findings revealed tender T10-S1, positive spasm and tender right PS1. Dr. Murphy
recommended that appellant continue medication and therapy and not return to her preinjury job
without restrictions.

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By decision dated September 9, 2013, an OWCP hearing representative affirmed the
February 28, 2013 termination decision. He determined that Dr. Trager was properly selected
through the PDS to serve as the impartial medical examiner. The hearing representative also
found that Dr. Trager’s opinion was sufficiently well rationalized and was accorded special
weight as the impartial medical examiner.
LEGAL PRECEDENT
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.4 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to the employment.5 Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.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
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.9 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 When there exists 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.11
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of the impartial medical specialist
4

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

5

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
8

A.P., id; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

9

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
10

20 C.F.R. § 10.321.

11

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

7

designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial
medical specialist will be selected on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.12
The MMA, which replaced the PDS, allows users to access a database of Board-certified
specialist physicians and is used to schedule referee examinations. The application contains an
automatic and strict rotational scheduling feature to provide for consistent rotation among
physicians and to record the information needed to document the selection of the physician.13
The claims examiner is not able to determine which physician serves as the impartial
medical specialist. A medical scheduler inputs the claim number into the application, from
which the claimant’s home zip code is loaded. The scheduler chooses the type of examination to
be performed (second opinion or impartial referee) and the applicable medical specialty. The
next physician in the roster appears on the screen and remains until an appointment is scheduled
or the physician is bypassed. If the physician agrees to the appointment, the date and time are
entered into the application. Upon entry of the appointment information, the application prompts
the medical scheduler to prepare an ME023 appointment notification report for imaging into the
case file. Once an appointment with a medical referee is scheduled, the claimant and any
authorized representative are to be notified.14
If an appointment cannot be scheduled in a timely manner or cannot be scheduled for
some other reason such as a conflict or the physician is of the wrong specialty, the scheduler will
update the application with an appropriate bypass code. Upon the entering of a bypass code, the
MMA will select the next physician in the rotation.15
ANALYSIS
OWCP accepted that on August 5, 2005 appellant sustained an acute lumbosacral sprain,
acute sciatica and acute post-traumatic radiculitis in the performance of duty. Appellant stopped
work and received disability compensation. On July 5, 2011 she returned to work part time in
the private sector. Appellant stopped work again on February 9, 2012. In a decision dated
September 9, 2013, a hearing representative affirmed the termination of her compensation
benefits effective March 10, 2013 based on the impartial medical report of Dr. Trager. The
Board finds that OWCP properly terminated appellant’s medical and wage-loss compensation
benefits effective March 10, 2013 on the grounds that she no longer had any residuals or
disability causally related to her accepted employment-related injuries.

12

Raymond J. Brown, 52 ECAB 192 (2001).

13

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.5
(December 2012); see also R.C., Docket No. 12.468 (issued October 25, 2012).
14

B.N., Docket No. 12-1394 (issued August 5, 2013).

15

See supra note 13.

8

Pursuant to the March 5, 2012 Board decision, appellant’s claim was referred to
Dr. Trager to resolve the conflict in medical opinion between appellant’s attending physician,
Dr. Murphy, who determined that she continued to suffer residuals from her work-related
injuries and continued to need medical treatment and Drs. Valentino and Berman, OWCP
physicians, who found that she no longer suffered residuals of her work-related injury and did
not need additional medical treatment.
On appeal, appellant’s counsel continues to challenge the selection of Dr. Trager as the
impartial medical specialist. The record contains a May 7, 2012 ME023 iFECS report stating
that an impartial medical examination was scheduled with Dr. Trager and a screenshot that
indicates the selection of Dr. Trager. Furthermore, the record contains bypass screenshots
explaining that Dr. Meller was not available and that Dr. Rekant specialized in hand injuries.
The Board finds, therefore, that OWCP provided documentation and properly utilized its MMA
system in selecting Dr. Trager as the impartial medical examiner.16 As OWCP has met its
affirmative obligation to establish that it properly followed its selection procedures, the Board
finds that counsel’s argument is not substantiated.
The Board finds that Dr. Trager’s impartial medical opinion is sufficiently well
rationalized to meet OWCP’s burden of proof to terminate appellant’s compensation benefits. In
a May 30, 2012 report, Dr. Trager provided an accurate history of injury and stated that he
reviewed the medical records provided. He noted that an August 28, 2007 EMG demonstrated
right L5-S1 radiculopathy and that a September 12, 2007 MRI scan revealed disc protrusions and
a foraminal narrowing. Upon examination, Dr. Trager observed tenderness of the lumbar spine
somewhat out of proportion with palpation of the paraspinal muscles and no paraspinal muscle
spasm in the lumbar region. Range of motion was 40 degrees extension, 45 degrees to the right
and 45 degrees to the left. Dr. Trager reported that both sitting and supine straight leg raise
testing was negative bilaterally. He opined that appellant’s accepted conditions resolved as of
Dr. Valentino’s July 9, 2008 report as there were no reflex abnormalities or positive straight leg
raise tests noted during the examination. In a December 20, 2012 supplemental report,
Dr. Trager further explained that, while the diagnostic reports were consistent with right L5
radiculopathy, physical examination did not demonstrate any signs to support clinical
radiculopathy. He also noted that the March 2012 MRI scan was consistent with significant
degenerative changes throughout the spine that were not related to the August 2, 2005
employment injury. Dr. Trager concluded that appellant did not have any residuals of her
August 2, 2005 employment injury and had recovered from her work-related injuries.
The Board finds that Dr. Trager’s opinion is sufficiently detailed and well reasoned to
constitute the weight of the medical evidence. When there exists 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.17
Dr. Trager reviewed appellant’s history and the SOAF. He accurately described the August 2,
2005 employment injury and conducted an examination. Following the September 10, 2012
16

See N.C., Docket No. 12-1718 (issued April 11, 2013).

17

Supra note 11.

9

hearing representative decision requesting additional explanation, Dr. Trager adequately
explained in a December 20, 2012 report that while the diagnostic reports were consistent with
right L5 radiculopathy, physical examination did not demonstrate any signs to support clinical
radiculopathy. He further noted that the most recent March 27, 2012 MRI scan revealed
degenerative changes of the lumbar spine, which were not related to appellant’s work-related
injury. Dr. Trager determined that she no longer suffered residuals or disability from her workrelated injuries as of Dr. Valentino’s July 9, 2008 second-opinion report. The Board finds that
Dr. Trager’s opinion represents the special weight of medical opinion evidence. Accordingly,
Dr. Trager’s opinion is sufficient to justify OWCP’s termination of medical and wage-loss
compensation benefits for the accepted conditions.
On appeal, counsel also refers to OWCP’s August 7, 2013 decision, which remanded
appellant’s recurrence claim on the grounds that Dr. Trager was not selected to resolve a conflict
in medical opinion regarding whether she sustained a recurrence and contends that similarly, he
was not selected to resolve a conflict in medical opinion as to the termination of her benefits.
The record reveals, however, that in determining whether she had continued need for physical
therapy and steroid injection, Drs. Valentino and Murphy also had conflicting opinions on
whether her accepted conditions had resolved. Furthermore, the Board notes that, in its previous
March 5, 2012 decision, it found that a conflict in medical opinion existed between appellant’s
treating physician and OWCP referral physicians regarding appellant’s ongoing residuals of her
accepted medical conditions and the necessary medical treatment. Therefore, while the March 5,
2012 decision was limited to whether appellant’s request for further medical treatment should be
authorized, the Board finds that Dr. Trager was also selected to resolve the conflict of whether
she continued to suffer residuals of her August 2, 2005 employment injury.
The Board further finds that the medical evidence submitted after Dr. Trager’s
independent medical evaluation was insufficient to overcome the weight of this report or to
create another conflict in medical evidence. Appellant submitted various reports by Dr. Murphy
dated July 24, 2012 to March 21, 2013 for treatment of her back pain. Dr. Murphy indicated that
her physical findings remained unchanged and recommended that she continue medication and
physical therapy. Because Dr. Trager was on one side of the conflict, which Dr. Trager resolved,
this additional report is insufficient to overcome the weight accorded Dr. Trager’s report as the
impartial medical examiner or to create a new conflict.18
Appellant also submitted a July 25, 2012 report and various treatment notes by Dr. Woo
who related her complaints of back pain and spasm. Dr. Woo noted her diagnoses of
degenerative disc disease and lumbar radicular symptoms. He does not, however, explain
whether appellant’s medical conditions were causally related to her accepted employment-related
injuries. The Board has held that medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.19

18

Dorothy Sidwell, 41 ECAB 857 (1990).

19

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

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Appellant has failed to submit medical evidence to demonstrate that she continues to
suffer residuals of her August 2, 2005 employment injury and is disabled from work as a result
of her accepted conditions. Accordingly, the Board finds that Dr. Trager’s opinion continues to
constitute the special weight of medical opinion and supports OWCP’s decision to terminate her
wage-loss and compensation benefits. There is no other medical evidence contemporaneous
with the termination of appellant’s benefits which supports that she has any continuing residuals
or disability related to her accepted work-related injuries.
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 met its burden of proof to terminate appellant’s
compensation and medical benefits effective March 10, 2013.
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 26, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 13-1063
Issued: September 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 28, 2013 appellant filed a timely appeal of an October 19, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim. The
Board also has jurisdiction over a January 30, 2013 decision denying merit review. 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 and nonmerits of this case.
ISSUES
The issues are: (1) whether appellant established that he sustained a traumatic injury in
the performance of duty on July 23, 2012; and (2) whether OWCP properly refused to reopen
appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 6, 2012 appellant, then a 66-year-old clerk, filed a traumatic injury claim
alleging that on July 23, 2012 he injured his right shoulder while moving a water cooler from the
back of a truck.
In a letter dated August 16, 2012, the employing establishment controverted the claim as
moving a water cooler was not part of appellant’s clerk duties. In addition, it related that
appellant’s supervisor did not request appellant to move a water cooler. The employing
establishment also contested the injury on the grounds that a water cooler weighs 200 pounds
and one person would not be able to lift it without assistance.
On August 16, 2012 OWCP received a July 30, 2012 magnetic resonance imaging (MRI)
scan diagnosing glenohumeral joint moderate osteoarthritis, moderate infraspinatus tendinopathy
and supraspinatus tendinopathy with a large distal anterior tendon full thickness tear.
OWCP also received appellant’s August 15, 2012 statement to the employing
establishment regarding the July 23, 2012 incident. Appellant stated that he felt a sharp pain in
his right shoulder while pulling a water cooler out of his truck. He stated that he was not
instructed to move or lift the water cooler and that nobody was assisting him in moving the water
cooler.
In an August 16, 2012 report, Dr. Lewis C. Jones, an examining Board-certified
orthopedic surgeon, diagnosed a right shoulder rotator cuff tear. Under history of injury, he
related that the injury occurred on July 23, 2012 while appellant was moving a large fan
weighing about 500 pounds in the back of his truck. A physical examination revealed good right
shoulder motion and tenderness on palpation. A review of an x-ray interpretation was negative,
but an MRI scan revealed a right shoulder supraspinatus rotator cuff tear.
In correspondence dated September 6, 2012, OWCP informed appellant that the evidence
of record was insufficient to support his claim. Appellant was advised as to the medical and
factual evidence required to support his claim and given 30 days to provide the requested
information. OWCP also informed appellant that the evidence of record was insufficient to
establish that he was injured while performing any employment duties.
In response to OWCP’s letter, appellant submitted an August 16, 2012 return to work
report containing a diagnosis of right shoulder rotator cuff tear and listing work restrictions.
In a September 12, 2012 letter, Dr. James R. Sarrett, a treating Board-certified family
practitioner, reported seeing appellant on July 25, 2012 for right shoulder pain. Appellant related
injuring his right shoulder at work three days previously while lifting an object from a truck. A
review of a subsequent MRI scan revealed a right shoulder rotator cuff tear and moderate
degenerative changes, which have been present for a long time. Dr. Sarrett opined that the right
shoulder rotator cuff tear was due to the work injury claimed by appellant.
By decision dated October 19, 2012, OWCP denied appellant’s traumatic injury claim on
the grounds that fact of injury had not been established. The basis for the denial of appellant’s
claim was due to discrepancies in the history of the alleged July 23, 2012 incident and the lack of

2

any rationalized medical evidence explaining how the right shoulder rotator cuff was causally
related to the July 23, 2012 incident.
On October 13, 2012 appellant requested reconsideration.
By decision dated January 30, 2013, OWCP denied reconsideration.
LEGAL PRECEDENT -- ISSUE 1
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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.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.5
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.6 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.7
ANALYSIS -- ISSUE 1
OWCP denied appellant’s claim because it found that he did not establish the first
component of fact of injury due to discrepancies in the incident history and the lack of any
reasoned medical evidence. It found that there were inconsistencies in how the injury occurred
on July 23, 2012. OWCP also found no well-rationalized medical opinion explaining how
appellant’s right rotator cuff tear was causally related to the July 23, 2012 incident.
The Board finds that appellant has not submitted sufficient evidence showing that his
claimed injury constituted an employment incident that occurred in the performance of his duties
as a clerk. Appellant was provided with an opportunity to clarify how his claimed injury was
performed in the performance of duty, but failed to submit such information or evidence which
would shed further light on this matter. He alleged that he sustained an injury on July 23, 2012
due to moving a water cooler from the back of his truck. The employing establishment
2

5 U.S.C. § 8101 et seq.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

6

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 3.

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controverted the claim on the grounds that moving a water cooler was not part of appellant’s
work duties. In addition, it noted that a water cooler weighs about 200 pounds and requires more
than one person to lift it. Furthermore, appellant acknowledged in an August 15, 2012 statement
that he had not been instructed by the employing establishment to move or lift the water cooler
and that nobody was assisting him in moving the water cooler. He has not identified any
particular work duty he was performing while removing a water cooler from his truck at the time
of the alleged injury. Appellant has not explained how he was engaged in his employer’s
business or that he was engaged in doing something incidental thereto on July 23, 2012.8
Appellant did not establish the existence of an employment factor for the further reason
that his claim contains inconsistencies regarding the ability of one person being able to lift a 200pound water cooler and Dr. Lewis stating that the injury occurred as a result of appellant moving
a 500-pound fan around in his truck. He did not submit sufficient evidence to establish that he
experienced an employment incident at a specific time, place and manner.9 For these reasons,
appellant has not established that he was in the performance of duty at the time of the alleged
July 23, 2012 incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,10
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.11 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.12 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.13
8

See Bonnie A. Contreras, supra note 3; Kathryn A. Tuel-Gillem, 52 ECAB 451 (2001).

9

See Delores C. Ellyet, 41 ECAB 992 (1990); Ruthie M. Evans, 41 ECAB 416 (1990). To determine whether a
federal employee has sustained a traumatic injury in the performance of duty, it must first be determined whether
“fact of injury of injury” has been established. The employee must first submit sufficient evidence to establish that
he actually experienced the employment incident at the time, place and in the manner alleged. Second, the
employee must submit evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury. See John J. Carlone, 41 ECAB 354 (1989).
10

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
11

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
12

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

13

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

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ANALYSIS -- ISSUE 2
Appellant’s October 13, 2012 request for reconsideration did not allege or demonstrate
that OWCP erroneously applied or interpreted a specific point of law. Additionally, he did not
advance a relevant legal argument not previously considered by OWCP or submit any evidence
with his reconsideration request. The Board finds that appellant is not entitled to a review of the
merits of his claim based on any of the three requirements under section 10.606(b)(2).
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his October 13, 2012 request for reconsideration.14
CONCLUSION
The Board further finds that OWCP properly denied appellant’s request for
reconsideration under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 30, 2013 and October 19, 2012 are affirmed.
Issued: September 4, 2013
Washington, DC

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

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

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

14

M.E., 58 ECAB 694 (2007); Susan A. Filkins, supra note 11; Candace A. Karkoff, 56 ECAB 622 (2005) (when
an application for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), OWCP will deny the application for reconsideration without reopening the case for a review on the
merits).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
WEAPONS STATION, Concord, CA, Employer
__________________________________________

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

Docket No. 12-1542
Issued: January 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 10, 2012 appellant filed a timely appeal from an April 3, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established that a December 1, 1995 wage-earning
capacity determination should be modified.
FACTUAL HISTORY
On April 19, 1991 appellant, then a 24-year-old stevedore, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a right knee injury on that date when he slipped off a

1

5 U.S.C. § 8101 et seq.

ladder and fell to the deck. OWCP accepted the claim for right knee medial meniscus tear,
osteochondritis dissecans (aggravation) and a consequential right knee osteoarthritis.
By decision dated December 1, 1995, OWCP determined that appellant’s actual earnings
in a medical assistant position fairly and reasonably represented his wage-earning capacity. It
reduced appellant’s compensation based on his actual earnings since October 2, 1995. Appellant
continued to receive compensation for wage loss pursuant to the wage-earning capacity
determination. He periodically submitted EN1032 reports regarding employment activity. An
August 3, 2004 report indicated that appellant had worked from May 2003 to March 2004 for an
asphalt maintenance company and a September 7, 2011 EN1032 indicated that appellant worked
from March 21 to July 8, 2011 as a machine operator.
In a letter dated October 20, 2011, appellant advised that he was seeking modification of
the December 1, 1995 wage-earning capacity determination. He stated that his right knee
condition worsened considerably over the past several years and his physician was considering a
total knee replacement.
With respect to medical evidence, appellant submitted an October 13, 2011 note from
Dr. Norris Knight, a Board-certified orthopedic surgeon, noted a history that appellant had four
prior surgeries on the right knee, the last in 1995. Dr. Knight provided results on examination
and stated that appellant was a bit young for a total knee replacement. In a note dated
November 28, 2011, he stated that appellant had a history from 1998 of “some sort of nerve
pathology” in his right leg. Dr. Knight stated that appellant needed to be evaluated by a
neurologist before any surgery could be performed.
In a report dated January 16, 2012, Dr. Darius Mitchell, a Board-certified orthopedic
surgeon, provided a history and results on examination. He diagnosed osteoarthritis, posttraumatic of the right knee status post injury in 1991. Dr. Mitchell stated, “The findings are
work related according to reports he brings into his history. [Appellant] has progressive
osteoarthritis of this knee. I think he needs predominantly sedentary work.”
OWCP prepared a statement of accepted facts and referred the case to an OWCP medical
adviser. The February 13, 2012 statement of accepted facts stated that the medical assistant
position appellant was performing in 1995 was “within his physical restrictions” without
providing further detail. OWCP asked the medical adviser to provide an opinion as to whether
the accepted conditions had “worsened and render[ed] [appellant] total[ly] disabled” as of July 9,
2011, when he stopped working. In a report dated March 5, 2012, the medical adviser stated that
based on the evidence appellant would not be able to perform a full range of light-duty work. He
stated that appellant would be able to perform “sedentary work and limited sedentary (light)
work.”
By decision dated April 3, 2012, OWCP denied modification of the December 1, 1995
wage-earning capacity determination. It found the medical evidence was insufficient to warrant
modification.

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LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.2 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.3
ANALYSIS
In the present case, OWCP issued a December 1, 1995 wage-earning capacity
determination based on actual earnings in a medical assistant position. Appellant seeks
modification of the wage-earning capacity determination on the grounds that his employmentrelated condition has worsened. He submitted medical evidence from Dr. Mitchell and
Dr. Knight. In a January 16, 2012 report, Dr. Mitchell opined that appellant’s condition was
employment related and he recommended sedentary work. OWCP further developed the
evidence and sought an opinion from an OWCP medical adviser.
The medical issue is whether there was a material change in the nature and extent of the
injury-related condition. Although OWCP attempted to further develop the medical evidence, it
did not properly develop the evidence or receive a probative medical opinion on the issue
presented. The Board notes that the statement of accepted facts provided to the medical adviser
did not adequately discuss the existing work restrictions at the time of the December 1, 1995
wage-earning capacity determination. It stated only that the medical assistant position was
within the physical restrictions, without identifying those restrictions. A physician evaluating
whether there was a material change in the nature and extent of employment-related condition
must have a proper background as to the existing work restrictions in 1995.
OWCP asked the medical adviser for an opinion as to whether the employment-related
condition had worsened and rendered appellant totally disabled as of July 9, 2011. But this is not
a claim for compensation commencing on a specific date. Appellant argued that his
employment-related condition progressively worsened and he sought modification of the wageearning capacity determination. The medical issue is whether there was a material change in the
nature and extent of an employment-related condition after December 1, 1995.
OWCP’s medical adviser did not discuss the issue of a material change in the nature and
extent of the employment-related condition after December 1, 1995. When it undertakes to
further develop the medical evidence, it has the responsibility to secure evidence that properly
addresses the medical issue presented.4 The case will be remanded to OWCP to prepare a proper

2

Sue A. Sedgwick, 45 ECAB 211 (1993).

3

Id.

4

See D.B., Docket No. 08-1136 (issued May 20, 2009); D.H., Docket No. 08-1995 (issued April 22, 2009);
Mae Z. Hackett, 34 ECAB 1421 (1983).

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statement of accepted facts and secure a probative medical opinion on the issue presented. After
such further development as OWCP deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision and is remanded to OWCP for
further development of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 3, 2012 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: January 10, 2013
Washington, DC

Patricia Howard Fitzgerald, 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
__________________________________________
M.K., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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

Docket Nos. 09-1046 & 09-1294
Issued: May 4, 2010

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 March 2, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decisions dated March 4, April 17 and August 6, 2008.1 It
was docketed as No. 09-1046. On April 20, 2009 appellant filed a timely appeal of a March 11,
2009 nonmerit decision. It was docketed as No. 09-1294. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(e), the Board has jurisdiction over the nonmerit issues.2

1

The date of the appeal was determined by the date on appellant’s appeal letter. The accompanying envelope has
no cancellation date on it. See 20 C.F.R. § 501.3(d)(3)(ii).
2

The last merit decision, affirming appellant’s pay rate for the selected position of a Cashier 2 was issued by the
Board on October 24, 2006. Docket No. 06-40 (issued October 24, 2006). On July 30, 2007 the Board granted the
Director’s petition for reconsideration for correction and denied appellant’s petition for reconsideration. Docket No.
06-40 (issued July 30, 2007). The absence of further review by the Office on the issue addressed by a Board
decision is res judicata and is not subject to further consideration by the Board on this appeal. See Clinton E.
Anthony, Jr., 49 ECAB 476 (1998).

ISSUES
The issues are: (1) whether the Office properly refused to reopen appellant’s case for
further review of the merits pursuant to 5 U.S.C. § 8128(a); and (2) whether the Office properly
refused to reopen his case for further review of the merits of his claim on the grounds that his
request was untimely filed and failed to demonstrate clear evidence of error.
On appeal appellant contends that the prior decisions were based on errors of law and
inaccurate evidence concerning the suitability of the selected position.
FACTUAL HISTORY
This case has previously been before the Board. In a May 15, 2003 decision, the Board
affirmed Office decisions dated October 29, 2001 and January 28, 2002 which reduced
appellant’s compensation benefits effective August 15, 1999.3 The Board found that the selected
position of Cashier 2 represented his wage-earning capacity and that the position duties were not
of a repetitive nature. The Board also found that appellant failed to meet his burden of proof in
establishing a recurrence of disability on or after August 28, 2000 causally related to his accepted
March 15, 1982 employment injury.4 In a December 14, 2004 decision, the Board affirmed the
April 12, 2004 Office determination that modification of the wage-earning capacity was not
warranted.5 The Board remanded the case, however, on the calculation of appellant’s pay rate.
In an October 24, 2006 decision, the Board affirmed an April 5, 2005 Office decision regarding
appellant’s pay rate.6 The Board also found that the Office properly denied appellant’s request
for further merit review in decisions dated June 2 and September 15, 2005. On July 30, 2007 the
Board issued an order granting the Director’s petition for reconsideration for correction and
denying appellant’s petition for reconsideration.7 The facts of the case as set forth in the Board’s
prior decisions are incorporated herein by reference.
In a September 13, 2007 letter, appellant requested reconsideration. He contended that
the Office used an inaccurate and incorrect job description when it reduced his compensation
effective August 15, 1999 based on its determination that the selected position of Cashier 2
represented his wage-earning capacity.
By decision dated September 19, 2007, the Office denied appellant’s request for
reconsideration of the merits.

3

Docket No. 02-2265 (issued May 15, 2003). The Office issued its initial decision reducing the rate of
appellant’s compensation benefits based on his wage-earning capacity as a Cashier 2 on July 16, 1999.
4

On March 15, 1982 appellant, then a molder, injured his right hand in the performance of duty. The Office
accepted the claim for fracture of the fifth right metacarpal and authorized nerve entrapment surgery.
5

Docket No. 04-1438 (issued December 14, 2004).

6

Docket No. 06-40 (issued October 24, 2006).

7

Docket No. 06-40 (issued October 24, 2006), order denying petition for recon., and correction and denying
petition for recon. Docket No. 06-40 (issued July 30, 2007).

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Appellant requested reconsideration by letters dated September 22 and
December 3, 2007. He contended that the decisions of the Office and the Board contained errors
of law and that he was never provided with a decision based on an accurate job description for
the Cashier 2 position or sent a notice of proposed reduction of compensation. Appellant also
contended that the statement of accepted facts was incorrect.
By decision dated March 4, 2008, the Office denied appellant’s requests for
reconsideration of the merits.
In letters dated March 14 to April 9, 2008, appellant requested reconsideration of the
March 4, 2008 nonmerit decision. He reiterated that the Office used an inaccurate description of
Cashier 2 as the position was light duty rather than sedentary.
In a decision dated April 17, 2008, the Office denied appellant’s request for a merit
review.
On July 2 and 8, 2008 appellant requested reconsideration contending that the medical
and vocational evidence was deficient in establishing his ability to perform the duties of
Cashier 2. Specifically, he also argued that the medical opinions used by the Office violated
Americans with Disability Act and that it failed to develop and implement affirmative actions for
disabled employees as required by law.
In an August 6, 2008 decision, the Office denied appellant’s request for reconsideration
without merit review.
On August 11 and 19 and September 2, 2008 appellant again requested reconsideration
and reiterated arguments that the Office violated the law when it made its determination
regarding the selected position of Cashier 2. With his September 2, 2008 request appellant
submitted two pages of 29 C.F.R. § 1614.101 in support of his contention that the Office failed
to comply with federal regulations.
On September 17, 2008 appellant filed an appeal with the Board, requesting review of the
September 19, 2007 nonmerit decision. By order dated December 19, 2008, the Board granted
appellant’s request to dismiss the appeal and cancel oral argument.8
On February 17, 2009 appellant requested reconsideration and reiterated his contentions
regarding the inaccurate job description and that the Office failed to follow federal regulations.
On March 11, 2009 the Office denied appellant’s request for reconsideration on the basis
that it was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT -- ISSUES 1 & 2
It is well established that either a claimant or the Office may seek to modify a formal loss
of wage-earning capacity determination. Once the wage-earning capacity of an injured
8

Docket No. 08-2515 (issued December 19, 2008).

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employee is determined, a modification of such determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was, in fact,
erroneous.9 The burden of proof is on the party attempting to show modification.10 There is no
time limit for appellant to submit a request for modification of a wage-earning capacity
determination.11
ANALYSIS -- ISSUE 1
The Office considered appellant’s correspondence in 2008 and 2009 as requests for
reconsideration of the prior wage-earning capacity determination under 5 U.S.C. § 8128(a). It
found the requests dated March 14 to July 8, 2008 were insufficient to warrant further merit
review. The requests dated August 6, 2008 to February 17, 2009 were found untimely filed and
that appellant did not establish clear evidence of error.
In his various correspondence to the Office, appellant used the term reconsideration.
However, in each case he asserted that the July 16, 1999 wage-earning capacity determination
was erroneously determined and that the constructed position of Cashier 2 was not suitable.
Appellant contended that the original wage-earning capacity determination was made in error
and warranted modification. He argued that the Office failed to properly interpret and apply
relevant case precedent and the medical evidence. Appellant seeks modification of the Office’s
July 16, 1999 wage-earning capacity determination. The Office erroneously considered his
contentions regarding the July 16, 1999 decision under 5 U.S.C. § 8128(a) rather than the legal
standard applicable for modification of the wage-earning capacity determination.
Appellant has requested modification of the July 16, 1999 wage-earning capacity
determination. The case will be remanded to the Office to adjudicate his request for
modification of the wage-earning capacity determination and issue an appropriate decision in the
case.
CONCLUSION
The Board finds that appellant requested modification of the July 16, 1999 wage-earning
capacity determination and that the Office applied an erroneous legal standard to his requests.

9

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004). See also Tamra
McCauley, 51 ECAB 375 (2000).
10

Darletha Coleman, 55 ECAB 143 (2003).

11

W.W., 61 ECAB ___ (Docket No. 09-1934, issued February 24, 2010); Gary L. Moreland, 54 ECAB
638 (2003). See also Daryl Peoples, Docket No. 05-462 (issued July 19, 2005); Emmit Taylor, Docket No. 03-1780
(issued July 21, 2004). In Peoples and Taylor, the Board determined that the claimant’s request for reconsideration
of a wage-earning capacity determination constituted a request for modification of the decision. In both cases, the
Board set aside the Office’s decision denying the claimant’s reconsideration request as untimely and remanded for
the Office to adjudicate the issue of modification of a loss of wage-earning capacity determination.

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ORDER
IT IS HEREBY ORDERED THAT the March 11, 2009 and August 6, April 17 and
March 4, 2008 decisions of the Office of Workers’ Compensation Programs be set aside. The
case is remanded for further proceeding consistent with this decision.
Issued: May 4, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Schaumberg, IL, Employer
__________________________________________

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

Docket No. 17-1122
Issued: November 2, 2017

Case Submitted on the Record

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

JURISDICTION
On May 1, 2017 appellant, through counsel, filed a timely appeal from a February 27,
2017 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.
ISSUE
The issue is whether appellant has more than six percent permanent impairment of the
right lower extremity, for which he previously received schedule awards.
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.

FACTUAL HISTORY
On March 28, 2011 appellant, then a 57-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained a right ankle condition causally related to
factors of his federal employment. He indicated on the claim form that he had rolled his right
ankle on November 12, 2009, and he continued to work in pain as his condition worsened.
Appellant reported that a February 8, 2011 magnetic resonance imaging (MRI) scan showed a
tear in the right ankle tendon. He stopped work on February 15, 2011.
OWCP accepted the claim for right ankle sprain and chronic right peroneal tendinitis.
Appellant began receiving wage-loss compensation on the supplemental rolls as of
February 28, 2011. He received wage-loss compensation and medical benefits on the periodic
rolls as of June 13, 2012.
Appellant underwent right ankle surgery on May 20, 2011. In a report of that date,
Dr. Mary Morrell, a Board-certified orthopedic surgeon, indicated that the surgery included right
peroneal tendon debridement and repair.
As part of the medical development of the case, OWCP referred appellant to Dr. Allan
Brecher, a Board-certified orthopedic surgeon for a second opinion evaluation. In a report dated
July 10, 2012, Dr. Brecher opined that it appeared that appellant’s peroneal tendinitis had
resolved, but he continued to have foot pain which appeared to be plantar fasciitis and fifth
metatarsal inflammation.
In a report dated January 3, 2013, Dr. Morrell diagnosed status post right peroneal tendon
repair, right foot pain, and possible diabetic neuropathy versus stress fracture. She opined that
appellant remained disabled from work.
OWCP determined that there was a conflict in the medical evidence between Drs. Morrell
and Brecher, and referred appellant to Dr. Michael Pinzur, a Board-certified orthopedic surgeon,
to resolve the conflict. In an April 23, 2013 report, Dr. Pinzur opined that appellant likely had a
preexisting cavus deformity that made him prone to developing peroneal tendon disease. He
wrote that it was reasonable to assume appellant rolled his ankle as described. Dr. Pinzur
indicated some of the right foot pain was related to the peroneal tendon injury and repair, and
some was due to mechanical overloading from the preexisting cavus deformity. He opined that it
was unlikely appellant could perform his date-of-injury job, and he suspected this disability was
permanent.
The record indicates that on April 16, 2014 appellant accepted an offer for a full-time
modified job at the employing establishment.
In a report dated July 3, 2014, Dr. Neil Allen, a Board-certified internist, provided a
history and results on examination. He reported a stiff gait, limitations on right ankle range of
motion (ROM), and tenderness along the lateral aspect of the right foot. Dr. Allen indicated that
there was no instability or weakness. As to permanent impairment, he opined that appellant had
seven percent right lower extremity permanent impairment. Dr. Allen indicated that he applied
Table 16-2 of the American Medical Association, Guides to the Evaluation of Permanent

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Impairment (A.M.A. Guides),3 which provides a default lower extremity permanent impairment
rating of five percent. He then adjusted the default permanent impairment rating to seven
percent, based on grade modifiers for physical examination, functional history, and clinical
studies.
OWCP referred the case to Dr. Michael Hellman, a Board-certified orthopedic surgeon
and OWCP medical adviser, for review. In a report dated August 19, 2014, Dr. Hellman opined
that appellant’s right lower extremity permanent impairment was one percent under Table 16-2.
He noted that as appellant had peroneal tendon tear, which required repair on May 20, 2011, “his
diagnosis is best described as having some mild palpatory findings.” Dr. Hellman opined that
the default lower extremity permanent impairment rating for the diagnosed condition was one
percent, because mild motion deficits had not been established, As to grade modifiers, he found
that clinical studies was not applicable, as this was used to establish the diagnosis. Dr. Hellman
found a grade modifier of one was proper for functional history as appellant had no motion
deficit, and a grade modifier of one for physical examination due to mild pain over the peroneal
tendons, resulting in no adjustment from the default one percent.
By decision dated October 6, 2014, OWCP issued a schedule award for one percent right
lower extremity permanent impairment. The period of the award was 2.88 weeks from
May 13, 2014.
Appellant, through counsel, requested a hearing before an OWCP hearing representative
on October 10, 2014. A hearing was held on May 6, 2015. On July 6, 2015 appellant submitted
an undated addendum report from Dr. Allen, who again opined that appellant had seven percent
right lower extremity permanent impairment. He found that appellant did have mild motion
deficits based on his physical examination.
In a decision dated July 6, 2015, the hearing representative set aside the October 6, 2014
OWCP decision. He directed OWCP to refer appellant for a second opinion examination with
respect to a right lower extremity permanent impairment.
OWCP referred appellant to Dr. James Elmes, a Board-certified orthopedic surgeon. In a
report dated October 22, 2015, Dr. Elmes provided a history, results on examination, and review
of medical records. He indicated that appellant had medial anterolateral tenderness about the
right ankle, and he provided ROM testing results. Dr. Elmes diagnosed torn peroneal tendon,
chronic right peroneal tendinitis, right ankle sprain, and depressive disorder. As to permanent
impairment, he opined that appellant had six percent right lower extremity permanent
impairment under Table 16-2. Dr. Elmes diagnosed peroneal tendinitis with mild motion
deficits, with a default permanent impairment rating of five percent. He used grade modifier two
for functional history, and one for physical examination. The clinical studies were found to be
not applicable, as they were used in making the diagnosis. The default permanent impairment
rating of five percent was adjusted to six percent based on the grade modifiers.
The case was referred to another OWCP medical adviser, Dr. Morley Slutsky, Boardcertified in occupational medicine. In a report dated March 15, 2016, Dr. Slutsky opined that
3

6th ed. 2009.

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appellant’s right lower extremity permanent impairment was five percent under Table 16-2. He
found there would be no adjustment from the default of five percent, as he found a functional
history grade modifier of one, rather than two as provided by Dr. Elmes. Dr. Slutsky also noted
that under a ROM approach appellant would have 11 percent right lower extremity permanent
impairment. He indicated that ROM was primarily used as a physical examination adjustment
factor, and the diagnosis-based impairment (DBI) method was preferred under the A.M.A.,
Guides.
By decision dated May 24, 2016, OWCP issued an additional schedule award for five
percent right lower extremity permanent impairment. The period of the award was 14.40 weeks
from October 22, 2015.
On June 3, 2016 appellant, through counsel, requested a hearing before an OWCP
hearing representative. During the hearing, held on January 23, 2017, counsel argued that
Dr. Slutsky had referred to a rating of 11 percent permanent impairment, and case should
therefore be further developed.
By decision dated February 27, 2017, the hearing representative affirmed the May 24,
2016 decision. She found the medical evidence of record did not establish greater than five
percent permanent impairment of appellant’s right lower extremity.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.4 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment
as the uniform standard applicable to all claimants.5 For schedule awards after May 1, 2009, the
impairment is evaluated under the sixth edition.6
With respect to a foot or ankle impairment, the A.M.A., Guides provides a regional grid
at Table 16-2.7 The Class of Diagnosis (CDX) impairment is determined based on specific
diagnosis, and then the default value for the identified CDX is determined.8 The default value
(grade C) may be adjusted by using grade modifiers for Functional History (GMFH, Table 16-6),

4

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
5

A. George Lampo, 45 ECAB 441 (1994).

6

FECA Bulletin No. 09-03 (March 15, 2009).

7

A.M.A., Guides 501, Table 16-2.

8

The CDX ranges from 0 (n problem) to 4 (very severe problem).

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Physical Examination (GMPE, Table 16-7), and Clinical Studies (GMCS, Table 16-8). The
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).9
ANALYSIS
OWCP has accepted appellant’s conditions of right ankle sprain and chronic right
peroneal tendinitis as employment related. With respect to right lower extremity permanent
impairment, appellant submitted a report dated July 3, 2014 from Dr. Allen, and an undated
supplemental report from Dr. Allen. According to Dr. Allen appellant had seven percent right
lower extremity permanent impairment under Table 16-2 of the A.M.A., Guides.
The Board notes that all of the physicians in this case have applied Table 16-2, the DBI
regional grid for the foot and ankle. Counsel argued during the January 23, 2017 hearing that
Dr. Slutsky, an OWCP medical adviser, had found 11 percent permanent impairment based on
loss of ankle ROM. However, Dr. Slutsky did not opine that appellant had 11 percent right
lower extremity permanent impairment under the A.M.A., Guides using the ROM method.
Rather he actually applied Table 16-2 and found five percent permanent impairment using the
DBI method. The A.M.A., Guides clearly provide that the DBI method is the primary method of
evaluation for the lower extremities.10 ROM is used to determine impairment values only when
it is not possible to otherwise define impairment.11 The physicians in this case properly used the
DBI method to evaluate appellant’s right lower extremity permanent impairment.
Drs. Allen, Elmes, and Slutsky agreed that for peroneal tendinitis, with mild motion
deficits, the default (class 1, grade C) lower extremity permanent impairment is five percent
under Table 16-2. The grade C impairment may then be adjusted according to the net adjustment
formula. Dr. Allen adjusted the permanent impairment to a grade E impairment of seven
percent. He did not provide a reasoned opinion with respect to the grade modifiers applied. For
example, for clinical studies adjustment, Dr. Allen referred to Table 17-9, which is for the spine,
not the lower extremities.12 FECA does not provide for a schedule award for impairment to the
back or to the body as a whole.13
The proper table for the lower extremities clinical studies adjustment is Table 16-8.14
Moreover, Dr. Elmes and Dr. Slutsky found that a clinical studies adjustment was not applicable,
as clinical studies were used to determine the diagnosis. If a grade modifier is used for the
primary placement in the regional grid, it is not used again in the impairment calculation.15
9

The net adjustment is up to +2 (Grade E) or -2 (Grade A).

10

A.M.A., Guides 497.

11

Id.

12

Id. at 581, Table 17-9.

13

See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20).

14

A.M.A., Guides 519, Table 16-8.

15

Id. 515-16.

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Dr. Allen does not address the issue. Moreover, he found a grade modifier two for physical
examination based on moderate palpatory findings. Dr. Allen also noted stability, and lack of
atrophy, which under Table 16-7 is a grade modifier zero.16 He did not clearly explain why a
grade modifier two was appropriate.
The Board finds that Dr. Elmes provided a rationalized medical opinion with respect to
the net adjustment. Dr. Elmes explained that clinical studies were not applicable, as noted
above. He found that grade modifier 1 (mild problem) was established under Table 16-7 based
on the physical examination. As to functional history, Dr. Elmes found a grade modifier 2 under
Table 16-6. While Dr. Slutsky felt it was a grade modifier one, Dr. Elmes explained that he was
applying the AAOS (American Academy of Orthopedic Surgery) Lower Limb Instrument
results. Under Table 16-6, Dr. Elmes may use the AAOS Lower Limb Instrument in establishing
the GMFH.17
Based on the evidence of record, the Board finds that the weight of the evidence is
represented by Dr. Elmes, who found six percent right lower extremity permanent impairment.
The Board notes that appellant has previously received schedule awards totaling six percent
permanent impairment. OWCP issued a schedule award for one percent (2.88 weeks) on
October 6, 2014, and an additional five percent (14.40 weeks) on May 24, 2016. Appellant has
received 17.28 weeks of compensation, or six percent of the maximum of 288 weeks for the
lower extremity under 5 U.S.C. § 8107. Since the weight of the medical evidence established six
percent right lower extremity permanent impairment, the Board finds appellant has not
established entitlement to an increased schedule award.
On appeal counsel argues that the case should be remanded under T.H.18 However, T.H.
was a case involving the upper extremities and the methods of evaluating upper extremity
permanent impairment. This case involves the lower extremities, and as noted, all of the
physicians properly followed the provisions of the A.M.A., Guides and used the DBI method in
evaluating the permanent impairment.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.19
CONCLUSION
The Board finds appellant has not established more than six percent permanent
impairment of the right lower extremity permanent for which he previously received schedule
awards.

16

Id. at 517, Table 16-7.

17

Id. at 516, Table 16-6.

18

Docket No. 14-0943 (issued November 25, 2016).

19

See Linda T. Brown, 51 ECAB 115 (1999).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 27, 2017 is affirmed.
Issued: November 2, 2017
Washington, DC

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

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

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

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