United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF INDIAN AFFAIRS NAVAJO REGION,
Navajo, NM, Employer
__________________________________________

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Appearances:
Timothy Quinn, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1246
Issued: June 8, 2021

Case Submitted on the Record

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

JURISDICTION
On May 17, 2019 appellant, through counsel, filed a timely appeal from a March 25, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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.

3
The Board notes that, following the March 25, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has abused its discretion by denying appellant’s requests for
lodging and travel reimbursement from September 23, 2015 through September 8, 2017.
FACTUAL HISTORY
On January 26, 2015 appellant, then a 55-year-old teacher, filed a traumatic injury claim
(Form CA-1) alleging that on January 21, 2015 she sustained a possible subdural hematoma and
cerebral concussion when she slipped on an icy sidewalk and fell while in the performance of duty.
She stopped work on the date of injury.
On February 5, 2015 Dr. Charles Maestas, Board-certified in family medicine, noted that
appellant was followed for a slip and fall injury, which occurred on January 21, 2015 on the
sidewalk at school where she worked. He diagnosed neck, shoulder, and leg pain and advised that
she was under continued evaluation for a concussion. Dr. Maestas referred appellant for physical
therapy for treatment of her musculoskeletal injury.
On March 31, 2015 OWCP accepted the claim for a concussion.4
By decision dated June 12, 2015, OWCP expanded the acceptance of the claim to include
sprain of neck and tinnitus.5
OWCP subsequently received a June 10, 2015 report, wherein Dr. Maestas explained that
appellant underwent a computerized tomography (CT) scan of the head without contrast, which
revealed bilateral bifrontal cortical brain atrophy and a diagnosis of closed-head injury, small
subarachnoid hemorrhage, and back contusion. Dr. Maestas indicated that appellant had
“difficulty driving any significant distance due to confusion and progressive fatigue with
headaches and pain.” He noted that she continued with physical therapy for neck, bilateral
shoulder, low back, and leg pain. Dr. Maestas recommended a neurology consultation for
postconcussion syndrome, recurrent headaches, and left-sided upper extremity neuropathy, and
that appellant continue her physical therapy to reduce her neck, shoulder, back, and leg pain. He
also requested that she be reimbursed for her hotel accommodations, as she was “unable to drive
significant distance for physical therapy or other treatments.”
In a letter dated June 15, 2015, appellant requested reimbursement of medical travel and
lodging for intermittent dates commencing January 22, 2015. She explained that she had been
staying at a hotel in Pojoaque, New Mexico, near Santa Fe, since her release from the University
of New Mexico hospital on January 22, 2015 and was receiving physical therapy treatment in
Santa Fe, New Mexico. The hotel lodging allowed her convenient access to her physician and was
a manageable distance for her physical therapy appointments. Appellant noted that returning to
live at her home near Crystal, New Mexico, would require her to receive physical therapy in either
4

In an April 14, 2015 report, Dr. Maestas noted that appellant should continue physical therapy to address chronic
neck, shoulder, and leg pain due to musculoskeletal injury. In reports dated June 10 and 12, 2015, he continued her
physical therapy.
5

OWCP paid appellant wage-loss compensation on the supplemental rolls commencing June 26, 2015 and on the
periodic rolls July 25 through February 6, 2015.

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Farmington or Gallup, New Mexico, which would be “impossible” due to the after-effects of her
therapy, which included “light headedness and anxiety to various degrees.” She attached maps,
hotel receipts, and her appointment schedule in support of her request for reimbursement. The
maps revealed that appellant’s home near the reservation was identified as Tohatchi, New Mexico,
and was 285.82 miles from Santa Fe, New Mexico, which takes 3 hours and 25 minutes via
Interstate 40, or 4 hours and 25 minutes via NM- 96 E. The map also showed that it was 97.9
miles from Tohatchi to Farmington and 61.29 miles from Tohatchi to Gallup. Appellant’s
appointment schedule showed physical therapy visits from February 10 to June 25, 2015, which
required 33 miles of travel for each visit. A Google map showed that travel from the hospital in
Santa Fe, New Mexico to her hotel was 79 miles or 1 hour and 15 minutes.6
Appellant continued to submit requests for medical travel reimbursement.
By decision dated September 3, 2015, OWCP expanded the acceptance of appellant’s
claim to include adjustment disorder with anxiety. By decision dated September 23, 2015, it
expanded the acceptance of the claim to include post-concussion syndrome.
In a separate letter dated September 23, 2015, OWCP notified appellant that, when her
travel to Santa Fe, New Mexico and associated lodging was initially considered, it appeared that
she was unable to find medical care closer to her residence. However, it explained that there were
several providers in Farmington and Gallup that were approved and suitable for her medical needs.
OWCP included a list of those providers and informed appellant that if she chose to continue
treatment in Santa Fe, New Mexico, she would only be compensated for mileage to the nearest
provider applicable to the type of service she was receiving, and that lodging and per diem would
not be authorized as the providers in Farmington, New Mexico and Gallup, New Mexico were less
than two hours from her residence. It advised appellant that this notice would take effect as of the
date of the letter. OWCP also advised appellant that, if there were special circumstances regarding
her treatment, she should provide a statement and include the specialty of the providers.
In a letter dated September 24, 2015, appellant responded that it would have been stressful
to change physical therapy treatment to a provider in Farmington or Gallup, New Mexico. She
noted that she could not drive more than 40 miles without fatigue. Appellant also alleged that her
current physical therapist was providing specialized cranial/facial treatments customized for her
accepted conditions.
As of September 29, 2015, OWCP continued to receive physical therapy reports from
Annette Weyrauch, a physical therapist in Santa Fe, New Mexico, who reported that appellant was
receiving physical therapy treatments to the cervical through thoracic spine, bilateral shoulders,

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The record substantiates that OWCP initially approved reimbursement of some of the claimed lodging and travel
expenses. OWCP approved payment of $306.60 for lodging from May 25 to June 1, 2015; 536 miles for February 6,
April 6 and May 15, 2015; 33 miles for February 23 and March 5, 2015, $394.20 for lodging from April 18 to 27,
2015, $306.60 for lodging from May 11 to 18, 2015, $481.80 for lodging from January 22 to February 2, 2015,
$481.80 for lodging from February 2 to 13, 2015, $438.00 for lodging from February 20 to March 2, 2015, $305.60
for lodging from March 9 to 16, 2015, $306.60 for lodging from March 23 to April 6, 2015, and 33 miles for
February 10, 16, and 18, 2015. On September 23, 2015 it noted that it had authorized reimbursements for 268 miles
on June 24, 2015, 536 miles on August 10, 2015, and $43.80 on June 16, 2015.

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and trigger point therapy. Ms. Weyrauch noted that appellant often required a brief period of rest
after her physical therapy session before she could drive home.
In a report dated October 1, 2015, Dr. Maestas advised that appellant would continue to
require physical therapy for an additional three months. He noted that appellant’s employmentrelated symptoms did not allow her to travel long distances or treatment in a more rural location.
In a report dated January 20, 2016, Dr. Maestas noted that appellant was able to travel from
her place of employment to the Santa Fe, New Mexico area as long as she stopped as necessary
along the way. He noted that she continued to receive necessary physical therapy and medical
treatment in the Santa Fe, New Mexico area.
On March 11, 2016 Dr. Maestas reported that appellant was not to return to work for three
weeks until her therapy recommendations could be reevaluated.
In a February 19, 2016 report, Dr. Maestas noted that appellant continued to have residual
symptoms of fatigue, muscle skeletal pain, intermittent headaches, intermittent episodes of lapses
in cognitive function, and episodes of anxiety.
In a February 26, 2016 report, Kristen Adams, a physical therapist, noted that appellant
was being treated for her neck, shoulder, and back pain, headaches, and postconcussion syndrome.
She advised that appellant’s primary limitation was related to her traumatic brain injury and
postconcussion syndrome. Ms. Adams also noted that tasks such as driving long distance on the
freeway required high-level cognitive processing.
On March 4, 2016 appellant submitted a housing reimbursement claim summary for the
period June 19, 2015 to January 27, 2016.
On May 18, 2016 appellant continued to submit requests for mileage and lodging
reimbursement. She included: a copy of her appointment schedule with Dr. Maestas from
January 30 to April 15, 2016; physical therapy visits, hotel bills, and Form OWCP-957s from
July 27 to October 3, 2015; and maps of her trip from Santa Fe, New Mexico to her audiologist in
Albuquerque, 78.7 miles, her psychiatrist in Albuquerque, New Mexico, 77.3 miles, and her ear,
nose and throat physician in Albuquerque, New Mexico, 78.5 miles.
On June 1, 2016 OWCP expanded the acceptance of the claim to include traumatic brain
injury without loss of consciousness.
In a letter dated August 7, 2016, appellant again requested reimbursement for her travel
expenses. She reiterated that she was staying in a hotel in Pojoaque, New Mexico to be near
medical services in Santa Fe, New Mexico, and that she would have trouble driving to medical
appointments in Farmington or Gallup, New Mexico. Appellant indicated that she paid for her
government quarters near Crystal, New Mexico and the hotel in Pojoaque, New Mexico.
In a letter August 9, 2016, OWCP denied appellant’s requests for lodging reimbursement.
It noted that Dr. Maestas had opined on January 20, 2016 that she could, in fact, travel by
automobile from her place of employment to Santa Fe, New Mexico for medical appointments so
long as she takes necessary stops along the way. Therefore, only meal-related expenses would be

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authorized for treatment in Santa Fe, New Mexico. OWCP reiterated that authorization for lodging
and travel expense to Santa Fe, New Mexico was denied as of September 23, 2015.
On August 17, 2016 OWCP referred appellant for a second opinion examination with
Dr. Michael Baten, a neurologist, to determine appellant’s status and ability to drive a motor
vehicle.
In a letter dated August 23, 2016, Dr. Maestas recommended that appellant receive
counseling by an OWCP-approved psychologist. In a second letter of even date, he recommended
that she seek treatment from Dr. Robert Weisz, a psychologist in Santa Fe, New Mexico.
In a September 1, 2016 report, Dr. Maestas noted that appellant was seen for significant
neck and shoulder pain, along with persistent headaches and dizziness. He indicated that her
treatment included physical therapy and conservative management. Dr. Maestas indicated that
appellant had trouble traveling more than 60 miles from her home base due to musculoskeletal
symptoms, anxiety, and confusion.
In a report dated September 16, 2015, Dr. Maestas noted that chronic physical and mental
conditions resulting from appellant’s accepted employment injuries did not allow her to travel
more than 60 miles from her home base for medical treatment. He noted that she currently lived
in Santa Fe, New Mexico and it would be difficult for her to travel to Gallup, New Mexico for
treatment.
In a September 21, 2016 report, Dr. Baten noted that appellant was driving upwards of four
hours, “again broken up.” He opined that he had no objections to her driving, as she seemed to be
doing it safely for some time. Dr. Baten indicated that appellant could drive for four hours “at
least two or three days weekly if needed.”
On October 19, 2016 OWCP again indicated that no authorization for lodging or expenses
would be reimbursed after September 23, 2015. It advised appellant to contact OWCP to seek
preauthorization, if she believed her situation warranted a special circumstance.
In a letter dated December 29, 2016, appellant described the difficulties she had when she
returned to her home near Crystal, New Mexico every six weeks to collect her mail and change
her seasonal clothing. She noted that she would take a friend or family member with her or that
someone would drive her.
On January 10, 2017 appellant was removed from federal service as she was medically
unable to perform the essential functions of the teacher position.
In a February 8, 2017 addendum, Dr. Baten completed a work capacity evaluation (Form
OWCP-5c), indicating that appellant was able to operate a motor vehicle for four hours per day.
In a report dated February 22, 2017, Dr. Weisz noted that appellant had chosen to relocate
to Pojoaque, New Mexico and obtain medical services in Santa Fe, New Mexico because the
medical services near Crystal, New Mexico were inadequate. He noted that it would be difficult

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for her to travel round trip from Crystal, New Mexico for her medical service in the Santa Fe, New
Mexico area.
On March 9, 2017 appellant, through counsel, again requested reimbursement of her travel
and lodging expenses. Counsel included a February 22, 2017 letter from Dr. Weisz who explained
that, if appellant were still living at her former residence near Crystal, New Mexico, she would
have to drive 600 miles two to three times per week in order to receive her medical services. He
opined that it would be “physically and psychologically impossible for a trip for [appellant] to
sustain those demands.”
On April 14, 2017 OWCP notified appellant that FECA did not allow for an individual to
relocate completely to attend medical appointments.
On June 30, 2017 appellant submitted Form OWCP-957 medical travel refund requests for
the period February 3 to June 28, 2017. They included: a copy of her appointment schedule with
Dr. Maestas from February 3 to June 16, 2017; her appointment schedule with Dr. Weisz from
August 23, 2016 to June 28, 2017; her appointment schedule for physical therapy from
February 27 to June 29, 2017; and the Google map mileage for her trips to medical appointments,
which was 19.2 miles each way to Dr. Weisz; 18.1 miles each way for physical therapy; 78.8 miles
each way for the radiologist; and 46 miles each way for Dr. Singer.
By decision dated September 8, 2017, OWCP denied appellant’s request for lodging and
travel reimbursement from September 23, 2015 through “the date of this letter.”7
On October 3, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. In a letter dated October 3, 2017, he
argued that she should be reimbursed under for her lodging because she was unable to travel from
Navajo to Santa Fe, New Mexico for medical treatment.
OWCP subsequently received a report dated October 6, 2017, wherein Dr. Maestas
indicated that appellant required medically necessary cervical cranial physical therapy to address

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On September 9, 2017 OWCP received Form OWCP-957s for the period August 23, 2016 to August 25, 2017.
Appellant included a copy of her appointment schedule with Dr. Weisz from August 23, 2016 to August 23, 2017,
physical therapy from February 27 to August 17, 2017, and the Google map mileage for her trips from Santa Fe, New
Mexico to Dr. Weisz of 19.2 miles each way and 18.1 miles each way for physical therapy. On September 29, 2017
appellant submitted Form OWCP-957s for the period September 6 to 29, 2017. She included a copy of her
appointment schedule with Dr. Maestas from February 3 to September 29, 2017, with Dr. Weisz from January 11 to
September 27, 2017; and the Google maps mileage for trips from Santa Fe, New Mexico to Dr. Weisz of 19.2 miles
each way.

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her complaints of headache, neck pain, and shoulder pain, and that the physical therapy offices in
Farmington, New Mexico did not accept patients with head injuries.
A November 10, 2017 treatment note from a physical therapy provider in Santa Fe, New
Mexico indicated that the facility provided treatment for patients with postconcussion syndrome.8
The hearing was held telephonically on February 23, 2018, regarding OWCP’s
September 8, 2017 decision. During the hearing, appellant argued that she should be reimbursed
for her lodging and travel expenses because there were “no treaters available either on or around
the reservation.” She indicated that she contacted all of OWCP providers and they did not treat
symptoms of head injury. Appellant argued that the family practitioners were inadequate as they
did not provide physical therapy services. She explained that she maintained her residence on the
Navajo reservation because she intended to return to work; however, her residence was withdrawn
when her employment was terminated in January 2017. Appellant confirmed that she lived in
Santa Fe, New Mexico in a property she purchased in October 2017.9
By decision dated March 27, 2018, an OWCP hearing representative affirmed the
September 8, 2017 decision.
On September 4, 2018 appellant, through counsel, requested reconsideration and submitted
an August 24, 2018 report, wherein Dr. Maestas noted that appellant was referred to a different
physical therapy provider in October 2017 for treatment of her accepted conditions.
By decision dated October 29, 2018, OWCP denied modification of the March 27, 2018
decision.
On January 14, 2019 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In a January 4, 2019 report, Dr. Maestas explained that the physical therapy was to
decrease pain, increase range of motion, and allow healing of the damaged areas, improve function,
and strengthen the damaged muscles and tendons. He indicated that the cranial nerves were
sensory, motor, or both, and for a whiplash injury, those muscles were attached to the skull/head
and if the brain was injured, the muscles/muscle skeletal system could not function properly and
caused problems with balance, fatigue, generalized malaise, and headaches. Dr. Maestas opined
that the physical therapy to the muscle skeletal system included the head/skull.
In a November 28, 2018 letter, in support of reconsideration, appellant requested that
OWCP reconsider her hotel and travel expenses from January 21, 2015 to January 14, 2017, as she
had maintained her apartment near Crystal, New Mexico during that period in anticipation of

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On February 16, 2018 appellant submitted mileage reimbursement requests for the period January 11, 2017 to
January 31, 2018, including a list of her medical appointments and Google maps to showing 5 miles from Santa Fe,
New Mexico to Dr. Maestas’ office and 23 miles to Dr. Weisz’ office.
On March 5, 2018 OWCP received appellant’s requests for mileage reimbursement for the period September 6,
2017 to February 28, 2018, including a list of appointments with Dr. Maestas from September 8, 2017 to February 23,
2018, and Dr. Weisz from September 6 to February 28, 2018.
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returning to work, while also incurring expenses for her temporary lodging at the least expensive
hotel in Santa Fe, New Mexico.
By decision dated March 25, 2019, OWCP denied modification.
LEGAL PRECEDENT
Medical expenses, along with transportation and other expenses incidental to securing
medical care, are covered by section 8103 of FECA.10 OWCP’s regulations provide that the
employee is entitled to reimbursement of reasonable and necessary expenses, including
transportation needed to obtain authorized medical services, appliances, or supplies.11 To
determine a reasonable travel distance, it will consider the availability of services, the employee’s
condition, and the means of transportation. Effective August 29, 2011, OWCP’s regulations
provide that a round-trip distance of up to 100 miles is considered a reasonable distance to travel.12
If round-trip travel of more than 100 miles is contemplated, or air transportation or overnight
accommodations will be needed, the employee must submit a written request to OWCP for prior
authorization with information describing the circumstances and necessity for such travel
expenses. OWCP will approve the request if it determines that the travel expenses are reasonable
and necessary and are related to obtaining authorized medical services, appliances, or supplies.13
Pursuant to FECA Bulletin No. 14-02 (issued January 29, 2014), when a claimant submits
a travel reimbursement in excess of 100 miles for a single date of service, the bill will automatically
be suspended, and the Central Bill Processing provider will send notification to OWCP’s claims
examiner.14 FECA Bulletin No. 14-02 (January 29, 2014) notes that in some limited circumstances
it may be necessary for a claimant to travel more than 100 miles on a regular basis, such as when
the claimant lives in a remote area.15
The Federal (FECA) Procedure Manual provides that there will be no reimbursement for
meals or lodging when travel is for less than 12 hours in total or fewer than 500 miles round trip.
It also requires appellant to seek prior authorization for lodging.16
The Board has recognized that OWCP has broad discretion in approving services provided
under FECA.17 The only limitation on OWCP’s authority is that of reasonableness. OWCP may

10

5 U.S.C. § 8103.

11

20 C.F.R. § 10.315(a).

12

Id.

13

Id. at § 10.315(b).

14

FECA Bulletin No. 14-02 (January 29, 2014).

15

Id.

16

D.F., Docket No. 17-0482 (issued June 7, 2017); Federal (FECA) Procedure Manual, Part 5 -- Overview of the
BPS, Unique Bills, Chapter 5.200.9(i) (April 2005).
17

D.C., Docket No. 18-0080 (issued May 22, 2018); M.B., Docket No. 17-1072 (issued August 16, 2017).

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authorize medical treatment, but determine that the travel expense incurred for such authorized
treatment was unreasonable or unnecessary.18
Section 8123(a) of FECA provides, in pertinent part: “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.” 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.19
ANALYSIS
The Board finds that this case is not in posture for decision, as a conflict in medical opinion
exists between treating physician Dr. Maestas and second opinion physician Dr. Baten with regard
to the amount of time that appellant was capable of driving to attend her medical appointments.
Dr. Maestas provided reports to explain why appellant was incapable of driving to her
medical appointments for extended periods of time and why it was better for her to be close to her
physicians as opposed to driving from her home in a remote location. In a report dated October 1,
2015, he opined that appellant’s employment-related symptoms did not allow her to travel long
distances for treatment in a more rural location. Dr. Maestas provided a January 20, 2016 report,
noting that appellant was able to travel from her place of employment to Santa Fe, New Mexico,
as long as she stopped as necessary along the way. However, he saw appellant on February 19,
2016, and explained that appellant continued to have residual symptoms of fatigue,
musculoskeletal pain, intermittent headaches, intermittent episodes of lapses in cognitive function,
and episodes of anxiety. Dr. Maestas saw appellant on September 1, 2016, for significant neck
and shoulder pain along with persistent headaches and dizziness. He indicated that appellant had
trouble traveling more than 60 miles from her home due to musculoskeletal symptoms, anxiety,
and confusion. In a report dated September 16, 2016, Dr. Maestas provided an opinion with regard
to the selection of Santa Fe for appellant’s physical therapy. He explained that appellant had
ongoing issues related to her slip and fall at work on January 21, 2015, to include intermittent
forgetfulness, chronic headaches, neck and shoulder conditions, periods of confusion, ongoing
fatigue, significant anxiety, depression, and malaise. Dr. Maestas also noted that she continued to
have a fragile emotional state with confusion, bouts of fatigue, dizziness, and depression, she
required medication which sometimes impaired her day-to-day activities. He opined that
appellant’s chronic physical and mental conditions resulting from her accepted employment
injuries did not allow her to travel more than 60 miles from her home for medical treatment and
that there was a high potential to exacerbate her conditions and a high probability of an accident.
Dr. Maestas indicated it was imperative that appellant continue with her physical therapy, she
currently lived in Santa Fe, New Mexico, and it would be difficult for her to travel to Gallup,
New Mexico for treatment.

18

Id.; W.M., 59 ECAB 132 (2007).

19

See T.T., Docket No. 19-0544 (issued August 14, 2020); D.M., Docket No. 18-0746 (issued November 26, 2018);
R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 1010 (1980).

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Dr. Baten, the second opinion physician, advised that appellant was capable of driving up
to four hours per day, three times per week, with stops as needed. He also completed a Form
OWCP-5c advising that appellant could operate a motor vehicle for up to four hours per day.
Dr. Baten’s report supported that appellant was capable of driving longer distances to her doctors
without having to relocate.
The Board, thus, finds that a conflict is created between the treating and second opinion
physicians with regard to appellant’s ability to drive to her medical appointments. Under section
8123(a) of FECA, OWCP must resolve the conflict by referring appellant, together with the
medical record and a statement of accepted facts, to an impartial medical specialist.20 After this
and such other development as OWCP deems necessary, OWCP shall issue a de novo decision on
appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 25, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 8, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

20

See T.T., id.; D.P., Docket No. 10-0121 (issued July 23, 2010).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, THORNTON
BRANCH, Denver, CO, Employer
__________________________________________

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Appearances:
Gregory A. Hall, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1677
Issued: June 1, 2010

Case Submitted on the Record

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

JURISDICTION
On June 12, 2009 appellant filed a timely appeal from a December 16, 2008 decision of
the Office of Workers’ Compensation Programs that denied his claim. 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 appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty causally related to factors of his federal
employment.
On appeal appellant through his attorney asserts that he sustained an emotional condition
due to overwork and his regularly assigned duties and that the Office did not make a proper
determination.
FACTUAL HISTORY
On September 6, 2006 appellant, then a 59-year-old supervisor, filed a Form CA-2,
occupational disease claim, alleging that factors of his employment caused stress. He stopped
work on August 25, 2006.

By letter dated September 15, 2006, the Office informed appellant of the evidence needed
to support his claim. Appellant submitted a statement with attachments in which he alleged daily
frustration due to factors of his employment. He alleged that on August 25, 2006 he was given a
letter of expectations and instructions by Shelby Broadway, manager of customer services,
following which he went to the emergency room. Appellant alleged a confrontation with a union
steward on July 16, 2005 and sought medical attention. He alleged that he had eight managers in
three years; a lack of support, cooperation and appreciation from management; an extremely
hostile union with excessive grievances filed against him and an extremely aggressive carrier
Virginia Venden. Appellant stated that deadlines and time frames were stressful, including the
“every piece every day” policy, and that he was held accountable for things out of his control.
During the past three years he had worked six days a week and worked on his day off. Appellant
noted that he had a previous history of post-traumatic stress disorder (PTSD) and anxiety
disorder due to being physically and mentally abused by his father and sexually abused by a
cousin. He alleged that he had to perform extra work to get the mail out because he did not have
enough carriers. Appellant submitted the August 25, 2006 letter of expectations and instructions
that included a list of appellant’s duties and responsibilities, and a rebuttal in which he disagreed
with some of the instructions. He attempted to get an intervention regarding the disruptive
behavior of Ms. Venden, that it was impossible to perform all the duties outlined in a day,
especially if he was to start at 6:30 a.m. rather than 5:30 a.m. as he had been working and that the
workload was unfairly distributed. Appellant acknowledged that he was guilty of cursing in the
workplace when there was an important message, and enumerated problems with Ms. Venden
who, he alleged, had filed numerous grievances and Equal Employment Opportunity (EEO)
claims, and Robert Mesa, a union steward. He further alleged there was a disparity in
management’s treatment of him and the other supervisor, Bill Patterson.
Appellant stated that, in the meeting with his supervisor, he felt the stress building and
when the meeting ended, told her that he could no longer take the stress and was taking medical
leave. He submitted a timeline, stating that Ms. Broadway began working at the employing
establishment on August 7, 2006, that she confronted him on August 10, 2006, he had a vertigo
attack on August 11, 2006, was given the letter on August 25, 2006 and then saw multiple
medical professionals. On September 22, 2006 appellant requested and was granted leave under
the Family and Medical Leave Act (FMLA).
In emergency room reports dated July 16, 2005, Dr. Janet M. Sweetman, Board-certified
in emergency medicine, noted appellant’s complaints of headache and chest pain. She diagnosed
atypical chest pain, suspect anxiety. An electrocardiogram (EKG) and chest x-ray were normal.
In an August 25, 2006 emergency room report, Dr. David Hugh Kruger, an osteopath, diagnosed
headache and chest pain. EKG and chest x-ray were normal. A computerized tomography (CT)
scan of the head demonstrated no acute abnormality and mild bilateral maxillary and ethmoid
sinus disease. In an August 28, 2006 report, Dr. Stanton R. Elzi, a Board-certified internist,
noted appellant’s complaint of extreme stress at work leading to vertigo, headache and chest
pain. He provided findings on physical examination and diagnosed acute situational stress,
essential hypertension and vertigo. Thomas C. Munnell, Ph.D., a clinical psychologist, provided
a duty status report dated August 31, 2006. He described hypervigilance and physical and
emotional over activity and diagnosed stress. Dr. Munnell advised that appellant could not work.
In a September 22, 2006 report, he advised that appellant had been seen five times since
August 31, 2006 reporting stress from his work environment with symptoms of anxiety, mild
depression, acute stress disorder and PTSD. Dr. Munnell stated that it was “most likely” that
2

appellant’s employment contributed to his condition, stating that “going from being seen as a star
performer to being handed a list of 23 things to change is not easy for anyone to assimilate.” On
September 28, 2006 he again advised that appellant could not work.
The employing establishment controverted the claim and in February 2, 2007 letters,
countered each of appellant’s allegations, stating that appellant wanted to do things the way he
always had and not implement recommended changes, noting that he would disappear for long
periods of time. The employing establishment advised that he was provided the resources
necessary to accomplish his duties and was not instructed to work six days a week or to take
work home, and that the August 25, 2006 letter presented to him by Ms. Broadway was not a
disciplinary letter but was informational and instructional. The employing establishment
submitted a chart of the hours appellant worked each week from pay period 19 in 2003 through
pay period 18 in 2006, an October 27, 2005 letter of warning for failure to follow instructions,
letters of instructions dated March 6 and November 3, 2005 and March 30, 2006, a notice
changing appellant’s reporting time, and a memorandum outlining the fiscal year 2006
expectations of the delivery superintendent.
In a September 26, 2006 statement, Anita Summerfield, manager, customer services,
advised that on August 25, 2006 appellant had a meeting with Ms. Broadway to discuss his work
deficiencies and conduct. She noted that she met with appellant on September 8, 2006 and gave
him a CA-2 claim form, advised that he was abrupt and used profanity on the workroom floor,
and stated that he was not required to work overtime and that there were no shortages that would
be detrimental to completing assignments. In a January 12, 2007 statement, Valorie Jordan, a
former safety specialist, noted that appellant became argumentative during a safety meeting in
June 2006. In a February 1, 2007 statement, Stacie Johnson, former branch manager, discussed
problems with the carriers and the union and confirmed that Ms. Venden had filed an EEO
complaint and other claims, that human resources denied appellant’s request for an intervention,
and that appellant had moved to another branch. In a number of statements, Ms. Broadway
noted that she was temporary manager and it was her responsibility to address appellant’s
performance. She disputed his allegations regarding their meeting on August 25, 2006, noting
that in many instances appellant failed to follow instructions, procedures and policy and that he
would perform craft duties when craft employees were available. Ms. Broadway stated that
appellant conducted investigative interviews with employees and that he had sufficient time to
complete his assigned duties, noting that he would disappear from the workroom floor without
informing anyone and took numerous smoking breaks, and that, while she was on the detail, she
was informed that he was rude, discourteous and inappropriate during a district meeting, that he
used profanity when speaking to her, and that, during her detail, she had several conversations
with appellant about his failure to follow instructions and proper procedures and his failure to
complete assigned tasks.
By decision dated May 7, 2007, the Office denied appellant’s claim, finding that, as he
failed to establish a compensable factor of employment, he did not establish that he sustained an
emotional condition in the performance of duty. On June 5, 2007 appellant, through his attorney,
requested a hearing. He requested that Ms. Johnson be subpoenaed, and attached a declaration
advising that she had been his manager for approximately three years and could attest to an
overburdened workload. By decision dated August 13, 2007, an Office hearing representative
remanded the case to the Office. He found that the majority of appellant’s contentions were not

3

compensable but the fact that he had to deal with a contentious employee Ms. Venden needed
further development.
By letter dated August 16, 2007, the Office asked that the employing establishment to
comment on appellant’s allegations regarding Ms. Venden. In an August 24, 2007 letter, counsel
argued that the August 13, 2007 decision made little mention of the overburdened workload
issue and it was unclear if the decision was adverse to appellant as it did not include appeal
rights. He argued that the Office had the duty to develop the overwork issue and provide
appellant with appropriate appeal rights. In an undated statement, Ms. Johnson advised that
because appellant was Ms. Venden’s supervisor, the very nature of the position required
instructive and disciplinary interaction with her. She noted that Ms. Venden disagreed with
some of appellant’s actions and filed grievances and EEO complaints but did not believe
Ms. Venden was guilty of harassing appellant. The employing establishment further stated that
because Ms. Venden had an ongoing EEO complaint claim filed against appellant, the employing
establishment could not request that she respond to the Office’s questions. By letter dated
September 28, 2007, the Office asked that the employing establishment respond to appellant’s
allegation that there was an increased workload placed on him by the “every piece every day”
policy, stating that he alleged this resulted in extra duties, and to respond to his allegation that he
had an overburdened workload because insufficient resources were allocated to compensate for
staff shortages, that he had a overburdened workload because he had to respond to grievances
filed by Ms. Venden, and that his workload was heavier than other supervisors. In an undated
statement, Ms. Johnson advised that appellant spoke to her about a heavy workload and asked
that some tasks be transferred to the afternoon supervisor to reduce his workload but noted that
he rarely worked more than eight hours per day. She stated that, with the impact of computers,
some of the duties had changed but the length of time needed to fulfill the duties had not
increased, and noted that appellant performed nonsupervisory duties because he wanted to, not
because he was instructed to and that she had counseled him on time management skills. In an
October 29, 2007 letter, the employing establishment responded, stating that the “every piece
every day” policy was not a new policy, but had always been the goal of the employing
establishment and that there was no factual basis to substantiate his allegation of a burdensome
workload because the branch was adequately staffed and appellant chose to ignore resources
available to him.
By decision dated November 29, 2007, the Office found that appellant had not
established a compensable factor of employment and denied his claim on the grounds that he did
not sustain an injury in the performance of duty. On December 18, 2007 appellant, through his
attorney, requested a hearing, and submitted another subpoena request for Ms. Johnson and a
declaration dated September 22, 2007 in which appellant asserted that her testimony was
necessary because she was aware of the overburdened workload at the employing establishment.
On March 21, 2008 the Office denied appellant’s request for a subpoena, finding that he could
obtain the information by other means.
At the hearing, held on March 28, 2008, Robin Winters, who worked with appellant as a
floating supervisor in 2005 and 2006, testified that appellant always worked on his day off and
more than eight hours daily. She described supervisory duties and stated that she observed
appellant help carriers and had never seen anyone work as hard as appellant. Appellant testified
that he worked his day off and approximately 10 hours each day but was not paid for overtime.
He stated that, due to changes in policy, more duties were placed upon supervisors, specifically
4

mentioning timekeeping duties, and that, when Ms. Venden was a union steward, she filed many
grievances. Appellant noted that Ms. Broadway had only been at the employing establishment
three weeks when, on August 25, 2006, she gave him the letter of instruction that listed 23 items
he was doing wrong. He stated that this made him feel worthless, that he became physically ill
and had to go to the emergency room and was off work for two months, taking FMLA leave.
Appellant submitted an e-mail dated May 1, 2006 in which Ms. Johnson stated that two union
stewards had been targeting appellant for two years.
The employing establishment submitted appellant’s earnings and leave statements for the
years 2004 and 2005 and for pay periods 1 through 18 in 2006, provided a summary chart for the
period from pay period 19 in 2003 through pay period 18 in 2006 showing that appellant
routinely worked more than 40 hours a week, a chart explaining the payroll codes, and
appellant’s Form 50 history from December 12, 1996 to September 12, 1998. In a number of
statements, the employing establishment disputed many of the allegations made by appellant and
Ms. Winters at the hearing. Ms. Summerville stated that she worked with appellant for 10 days
and that the supervisor’s job was fast-paced and required prioritizing and time management
skills. She stated that the “every piece every day” policy had been in place for some time and
disputed that appellant needed 50 to 60 hours a week to get his work done. Ms. Johnson advised
that appellant was never instructed to sort mail and did so of his own accord. She discussed the
responsibilities of the delivery supervisor and stated that appellant often had carrier replacement
assistance from another branch and if appellant worked on his day off, he was paid for his time.
Ms. Johnson opined that he did not practice good time management and acknowledged that the
union had filed many grievances against appellant. Ms. Broadway advised that Ms. Winters did
not work at the branch during her detail there and described the duties of the delivery supervisor,
noting that appellant refused to follow instructions. She noted that appellant worked his day off
on one occasion during her detail and was paid, that staffing was adequate, and that, because
appellant chose to do clerk work, grievances were filed.
By decision dated December 16, 2008, an Office hearing representative affirmed the
November 29, 2007 decision.
LEGAL PRECEDENT
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.1 If a claimant does implicate a factor of employment, the
Office should then determine whether the evidence of record substantiates that factor.2 When the
matter asserted is a compensable factor of employment and the evidence of record establishes the
truth of the matter asserted, the Office must base its decision on an analysis of the medical
evidence.3
1

Leslie C. Moore, 52 ECAB 132 (2000).

2

Dennis J. Balogh, 52 ECAB 232 (2001).

3

Id.

5

Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.5
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.6 When an employee experiences
emotional stress in carrying out his or her employment duties, and the medical evidence
establishes that the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his or her emotional reaction to a special
assignment or other requirement imposed by the employing establishment or by the nature of the
work.7 Allegations alone by a claimant are insufficient to establish a factual basis for an
emotional condition claim.8 Where the claimant alleges compensable factors of employment, he
or she must substantiate such allegations with probative and reliable evidence.9 Personal
perceptions alone are insufficient to establish an employment-related emotional condition.10
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.11 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.12
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.13
With regard to emotional claims arising under the Act, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the EEO complaint, which is charged with statutory authority to investigate and evaluate such
matters in the workplace. Rather, in evaluating claims for workers’ compensation under the Act,
4

28 ECAB 125 (1976).

5

5 U.S.C. §§ 8101-8193.

6

See Robert W. Johns, 51 ECAB 137 (1999).

7

Lillian Cutler, supra note 4.

8

J.F., 59 ECAB ___ (Docket No. 07-308, issued January 25, 2008).

9

M.D., 59 ECAB ___ (Docket No. 07-908, issued November 19, 2007).

10

Roger Williams, 52 ECAB 468 (2001).

11

Charles D. Edwards, 55 ECAB 258 (2004).

12

Kim Nguyen, 53 ECAB 127 (2001).

13

James E. Norris, 52 ECAB 93 (2000).

6

the term “harassment” is synonymous, as generally defined, with a persistent disturbance,
torment or persecution, i.e., mistreatment by coemployees or workers. Mere perceptions and
feelings of harassment will not support an award of compensation.14
ANALYSIS
When disability results from an emotional reaction to regular or specially assigned work
duties or a requirement imposed by the employment, the disability is deemed compensable.15
Appellant alleged that his claimed condition arose, in part, because he had to handle EEO claims
and grievances and union stewards regarding carrier complaints. The Board finds that the
evidence of record is sufficient to establish that Ms. Venden and others filed the claims and that
appellant had to conduct investigative interviews. Appellant was in the performance of his
regular managerial duties while attending to these duties and they are compensable factors under
Cutler.16 He further alleged that he was overworked, specifically stating that he could not
complete his assigned duties in a regular eight-hour day. The Board has held that overwork,
when substantiated by sufficient factual information to corroborate the claimant’s account of
events, may be a compensable factor of employment.17 While the record contains appellant’s
earnings and leave statements that support appellant’s contentions that he routinely worked more
than 40 hours a week, the employing establishment submitted a number of statements
disagreeing with appellant’s contention that he had an overburdened workload. The Board finds
that the evidence while supportive, is nonetheless controverted and is insufficient to establish
overwork, as a compensable factor. The employing establishment disputed that appellant’s long
hours were due to his job; rather it involved appellant’s doing the craft position duties himself.
Thus, this factor has not been established.
The claimed event on July 16, 2005 is not described with enough specificity for the
Board find that it is compensable. Appellant merely stated that he had a confrontation with a
union steward but there are no statements by any witnesses to the claimed event. Regarding his
contention that he was harassed at the meeting with Ms. Broadway on August 25, 2006 and
inappropriately given a letter of expectations and instructions, the manner in which a supervisor
exercises his or her discretion falls outside the coverage of the Act. This principal recognizes
that a supervisor or manager must be allowed to perform their duties and that employees will at
times disagree with actions taken. Mere disagreement with or dislike of actions taken by a
supervisor or manager will not be compensable absent evidence establishing error or abuse.18
Ms. Broadway explained that appellant was not following established policies and procedures
and that the letter was informational and instructional. Other than to disagree with policies and
procedures, appellant did not submit sufficient evidence to establish that Ms. Broadway acted in

14

Beverly R. Jones, 55 ECAB 411 (2004).

15

Penelope C. Owens, 54 ECAB 684 (2003); see Lillian Cutler, supra note 4.

16

Lillian Cutler, supra note 4.

17

Bobbie D. Daly, 53 ECAB 691 (2002).

18

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

7

an inappropriate manner. Appellant’s reaction to the meeting and the letter given him must be
considered self-generated and do not constitute compensable factors of employment.19
The majority of appellant’s additional contentions involve his disagreement with policies
and procedures at the employing establishment in that he asserted he was not provided
intervention, disagreed with his assigned start time, policies regarding carrier schedules and
duties, the distribution of work, and the procedures to be followed in processing and delivering
mail, including the “every piece every day” policy. An employee’s emotional reaction to an
administrative or personnel matter is generally not covered by workers’ compensation.20 Where
the evidence demonstrates that the employing establishment either erred or acted abusively in the
administration of personnel matters, coverage may be afforded.21 Perceptions of unfair treatment
are not enough to establish error or abuse. A claimant must submit real proof that management
did in fact commit error or abuse22 and frustration with the policies and procedures of the
employing establishment are administrative matters and are not compensable factors of
employment.23 Appellant did not substantiate any employing establishment error with respect to
its established policies and procedures. In numerous statements, various managers refuted his
allegations and provided reasonable explanations for the actions taken. Appellant therefore
failed to show error or abuse regarding the policies and procedures of the employing
establishment and did not establish these claimed factors as compensable.
Finally, in regard to appellant’s contention that actions by management and the union,
especially Ms. Venden, constituted a pattern of harassment, to constitute harassment under the
act, there must be evidence of a persistent disturbance, torment or persecution.24 Other than the
May 1, 2006 e-mail in which Ms. Johnson stated that two union stewards had been targeting
appellant for two years, he submitted insufficient evidence to substantiate that he was in fact
harassed. The Board finds this brief e-mail is not adequate to support harassment. As noted,
managers provided statements countering his allegations and explaining the basis for the actions
taken. Appellant did not establish as factual a basis for his perceptions of discrimination or
harassment. The evidence suggests that his feelings were self-generated and are not
compensable under the Act.25
As appellant established compensable factors of employment under Cutler, the Office
must base its decision on an analysis of the medical evidence. The case will therefore be
remanded to the Office for this purpose.26 After such further development as deemed necessary,
the Office shall issue an appropriate decision on the merits of this claim.
19

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

20

L.S., 58 ECAB 249 (2006).

21

J.C., 58 ECAB 594 (2007).

22

L.S., supra note 20.

23

See William Karl Hansen, 49 ECAB 140 (1997).

24

Beverly R. Jones, supra note 14.

25

See Gregorio E. Conde, 52 ECAB 410 (2001).

26

Tina D. Francis, 56 ECAB 180 (2004).

8

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 16, 2008 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded to the Office for
proceedings consistent with this opinion of the Board.
Issued: June 1, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, BRODERICK
STATION, Albany, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1567
Issued: November 12, 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 June 19, 2013 appellant, through his attorney, filed a timely appeal from a May 16,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied
continuing compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this decision.
ISSUE
The issue is whether appellant is entitled to continuing compensation for the accepted
employment injury.
FACTUAL HISTORY
On September 5, 2006 appellant, a 50-year-old letter carrier, sustained a traumatic injury
in the performance of duty while loading a tray. OWCP accepted his claim for a mild disc bulge

1

5 U.S.C. § 8101 et seq.

at the L4-5 level aggravation of mild disc bulge at the L4-5 level.
compensation for temporary total disability on the periodic rolls.2

Appellant received

A conflict in medical opinion arose between Dr. John T. Whalen, the attending Boardcertified orthopedic surgeon, and Dr. Edwin E. Mohler, a Board-certified orthopedic surgeon and
OWCP second-opinion physician, on whether appellant continued to have residuals from the
accepted employment injury. Dr. Whalen found that appellant had permanent marked disability
causally related to the September 5, 2006 employment injury. Dr. Mohler found that the
accepted medical condition had resolved.
Dr. Bryan S. Bilfield, a Board-certified orthopedic surgeon and impartial medical
specialist selected to resolve the conflict and found that the disc bulge at the L4-5 level had
resolved. He noted that although the first imaging study after the September 5, 2006 incident
showed a bulge at L4-5, subsequent imaging studies did not. This indicated that the disc bulge
no longer existed, which was consistent with the absence of any localizing neurologic findings
on physical examination.
In a decision dated September 13, 2012, OWCP terminated compensation benefits for the
accepted aggravation of mild disc bulge at the L4-5 level. It found that the weight of the medical
evidence rested with the well-reasoned opinion of Dr. Bilfield, the impartial medical specialist.
On February 15, 2012 appellant, through his authorized representative, requested
reconsideration of OWCP’s decision to terminate compensation for the accepted aggravation of
mild disc bulge at the L4-5 level. He argued that OWCP’s acceptance of the claim was
erroneously limited, as he also had injuries from L1 to L4 as a result of the September 5, 2006
work injury. Appellant added that his earlier injury-related conditions were again currently
disabling, each of which constituted a recurrence.
Appellant submitted a November 6, 2012 report from Dr. Whelan, who observed that
appellant had a stable fusion at L4-S1 and that it was unlikely, without a fairly high-energy
injury, such as motorcycle accident or fall from a significant height, that the September 5, 2006
work injury would have damaged the fusion itself or the discs contained within L4-S1. It
appeared instead, Dr. Whelan stated, that the damage was to the discs above the fusion.
In a decision dated May 16, 2013, OWCP, reviewed the merits of appellant’s case but
denied modification. It found that the argument and evidence submitted were insufficient to
establish his entitlement to continuing compensation for the accepted medical condition. OWCP
found that any disability due to another injury was not relevant to whether appellant had any
disability due to the accepted aggravation of mild disc bulge at the L4-5 level. It noted that any
claim of recurrence due to a condition accepted in another claim could be pursued under such
claim.

2

Appellant had two earlier employment injuries, one in 1990 that resulted in a noninstrumented fusion L4-S1
(OWCP File No. xxxxxx419), and another in 2004 that resulted in a right shoulder impingement syndrome for
which he underwent surgery that same year (OWCP File No. xxxxxx015).

2

On appeal, appellant’s representative argued that OWCP’s acceptance was erroneously
limited and that the September 5, 2006 work injury caused injuries at the L1-2, L2-3 and L3-4
levels, injuries that should be compensated with continued medical and wage-loss benefits.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.3 After a termination of compensation
payments, warranted on the basis of the medical evidence, the burden shifts to the claimant to
show by the weight of the reliable, probative and substantial evidence that, for the period for
which he claims compensation, he had a disability causally related to the accepted employment
injury resulting in a loss of wage-earning capacity.4
ANALYSIS
OWCP accepted that the September 5, 2006 work injury caused an aggravation of mild
disc bulge at the L4-5 level. It paid appellant medical and wage-loss benefits on the basis of that
acceptance. When the medical evidence established that the bulge at L4-5 had resolved, OWCP
terminated the compensation it had been paying for that specific medical condition based on the
opinion of the impartial medical referee.
The issue, then, is whether appellant is entitled to continuing medical and wage-loss
benefits for the accepted aggravation of mild disc bulge at L4-5. Appellant’s representative did
not argue the point. He argued that appellant should receive medical and wage-loss benefits for
other medical conditions, some of which OWCP accepted in earlier cases, some of which OWCP
has not accepted in this case.
The issue on appeal is not whether appellant sustained a recurrence of disability causally
related to medical conditions accepted in other cases. Appellant is free to pursue a claim that the
September 5, 2006 work injury caused additional medical conditions, for which he bears the
burden of proof. The issue presently before the Board is whether he should continue to receive
medical and wage-loss benefits for the accepted aggravation of mild disc bulge at the L4-5 level.
The Board finds that the argument and evidence presented to support appellant’s
February 15, 2012 reconsideration request are irrelevant or immaterial to the September 13, 2012
termination of compensation. The position of Dr. Whelan, the attending orthopedic surgeon, that
the September 5, 2006 work injury was unlikely to have damaged any of the discs contained
within L4-S1, because appellant had a stable fusion, undermines any entitlement to continuing
medical and wage-loss benefits for the accepted aggravation of mild disc bulge at the L4-5 level.
The Board finds that the evidence is insufficient to establish that appellant is entitled to
continuing medical and wage-loss benefits for the accepted aggravation of mild disc bulge at
L4-5. The medical evidence created a conflict which was referred to Dr. Bilfield, the impartial
3

5 U.S.C. § 8102(a).

4

Wentworth M. Murray, 7 ECAB 570 (1955); Maurice E. King, 6 ECAB 35 (1953).

3

medical specialist, who found that the accepted medical condition has resolved. The Board will
therefore affirm OWCP’s May 16, 2013 decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant is not entitled to continuing compensation for the accepted
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 16, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 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.B., Appellant
and
U.S. POSTAL SERVICE, GRACELAND
STATION, Chicago, IL , Employer
__________________________________________

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

Docket No. 14-1689
Issued: July 2, 2015

Case Submitted on the Record

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

JURISDICTION
On August 4, 2014 appellant filed a timely appeal from an April 7, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained a permanent impairment greater than 23 percent
to her right lower extremity and 16 percent to her left lower extremity, for which she received
schedule awards.
On appeal, appellant contends that the questions submitted to the second opinion
physician and OWCP medical adviser were prejudicial to her; that the second opinion physician
and OWCP medical adviser ignored the issue of arthritis and other residuals from her injury; and

1

5 U.S.C. § 8101 et seq.

that OWCP inappropriately ignored the recommended additional impairment and issued a
decision that it knew to be incorrect.
FACTUAL HISTORY
On January 22, 1992 appellant, then a 35-year-old city carrier, filed a traumatic injury
claim alleging that on January 15, 1992 she sustained an injury to the bottom of her right foot
when both feet were frozen and she put her right foot down a step, causing a sharp pain. On
September 2, 1992 OWCP accepted her claim for bilateral frostbite in her foot. It later accepted
appellant’s claim for bilateral plantar fibromatosis.
Appellant had previously filed a claim for a traumatic injury that occurred on
April 12, 1985 when she felt pain while lifting cases onto a table from a pallet on the floor while
employed as a commodity grader with the Department of Agriculture. This claim was accepted
for lumbosacral strain.2 Appellant had a separate claim for a traumatic injury of December 26,
1998 that was accepted by OWCP for right knee contusion, right knee strain, and right knee
chondromalacia resulting from falling on a slippery concrete floor when exiting a locker room
while employed as a rehabilitation letter carrier.3
OWCP has previously issued multiple schedule awards for impairments to appellant’s
left and right lower extremities. As of the date of its November 7, 2008 schedule award, it had
issued schedule awards totaling 13 percent for appellant’s left lower extremity and 20 percent for
appellant’s right lower extremity.
In an August 27, 2009 report, Dr. Raja K. Khuri, a physician Board-certified in internal
medicine and occupational medicine, diagnosed appellant with bilateral plantar fasciitis;
Morton’s neuroma in left foot; osteoarthritis right knee, status post menisectomy; and
chondromalacia patella. In an August 28, 2009 permanent impairment worksheet, he determined
that appellant had 12 percent impairment of her right lower extremity pursuant to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).
In an October 2, 2009 letter to appellant, OWCP noted that although the newly submitted
medical evidence indicates that appellant had 12 percent impairment to the right lower extremity,
she had already been paid a total of 20 percent permanent impairment of the right lower
extremity in this case, and therefore no additional schedule award was due at this time.
On December 8, 2009 appellant filed a claim for an additional schedule award.
In a December 8, 2009 report, Dr. Khuri noted that in the initial diagnosis he only
mentioned Morton’s neuroma in appellant’s left foot, but that she also has strong clinical
evidence for Morton’s neuroma in the right foot. He noted subjective interdigital pain in third
2

OWCP Docket No. xxxxxx224.

3

OWCP Docket No. xxxxxx040. The record reveals that appellant resigned from the employing establishment
on February 4, 2002.

2

and fourth metatarsals and objective findings of point tenderness over interdigital area of the
right foot at the third and fourth metatarsals. Dr. Khuri noted pain on squeezing the right foot.
He also noted bilateral tibial nerve entrapment neuropathies at the level of the ankle, right greater
than left. Dr. Khuri noted that the impairment ratings in the lower extremities that he listed were
separate from and in addition to the prior provided 20 percent impairment for the right lower
extremity and 13 percent for the left lower extremity.
Dr. Khuri sent an updated permanent impairment worksheet wherein he listed appellant’s
diagnoses as Morton’s neuroma, plantar fasciitis, tibial tunnel syndrome, and chondromalacia
patella. He then evaluated appellant’s bilateral impairment to her lower extremities. Dr. Khuri
noted that, pursuant to Table 16-2 of the A.M.A., Guides, appellant had a class 1 impairment due
to “soft tissue knee” with grade modifiers of 2 for functional history, 1 for physical examination
and 1 for clinical studies. He then found a grade D impairment which equaled a lower extremity
impairment of four percent. Dr. Khuri noted that, pursuant to Table 16-3, appellant had a soft
tissue injury class 1 with modifiers for functional history of 2, physical examination of 2 and
clinical studies of 2, for a grade E impairment, or three percent impairment of the lower
extremity. He also used Table 16-3 for another soft tissue with grade modifiers of 2 each for
functional history, physical examination, and clinical studies resulting in a grade E impairment
of five percent. Adding these figures together, Dr. Khuri determined that appellant had 12
percent bilateral impairment to the lower extremities. With regard to peripheral nerve
impairment, he found that, pursuant to Table 16-2 on page 536 of the A.M.A., Guides,
appellant’s sensory impairment of the right and left tibial for a grade 3 class 1 impairment, and
that, after grade modifiers of 2 for functional history, and clinical studies, appellant’s impairment
was a grade C, or six percent impairment. Dr. Khuri then determined that there was a total 12
percent impairment for diagnosis-based impairment and 6 percent impairment for peripheral
nerve, for a bilateral lower extremity impairment of 18 percent.
In a February 10, 2010 report, an OWCP medical adviser, Dr. Neil Ghodadra, a Boardcertified orthopedic surgeon, noted that Dr. Khuri’s additional impairment ratings were given on
the basis of the additional diagnoses of tarsal tunnel syndrome and bilateral Morton’s neuroma.
However, he noted that OWCP was yet to accept these conditions as a work-related injury and
thus they should not be used in the additional permanent impairment determination.
Dr. Ghodadra concluded that as such, the original permanent impairment ratings of 20 percent of
the right lower extremity and 13 percent impairment of the left lower extremity and further
permanent partial impairment cannot be awarded until the claims of bilateral Morton’s neuroma
and tarsal tunnel syndromes are accepted as work related.
By letter dated May 27, 2011, OWCP asked Dr. Ghodadra to determine whether bilateral
tarsal syndrome and Morton’s neuroma are consequential to the accepted conditions of bilateral
frostbite and plantar fascial fibromatosis. It also asked for an opinion with regard to permanent
impairment.
In a June 2, 2011 report, Dr. Ghodadra, noted that appellant had already received
schedule awards for 20 percent impairment of the right lower extremity and 13 percent
impairment of the left lower extremity. He concluded that bilateral tarsal tunnel syndrome and
Morton’s neuroma are consequential to the accepted conditions of bilateral frostbite and plantar
fascial fibromatosis. Dr. Ghodadra then determined that according to Table 16-12 of the

3

A.M.A., Guides, appellant’s history of tarsal tunnel syndrome corresponds to a default grade C
rating of three percent due to sensory impairment. According to Table 16-12 of the A.M.A.,
Guides, appellant’s history of Morton’s neuroma corresponds to a one percent permanent
impairment based on a grade A rating due to mild symptoms. Adding 4 percent to each prior
rating, he determined that appellant now has 24 percent impairment of the left lower extremity
and 17 percent impairment of the right lower extremity.
On July 15, 2011 OWCP expanded appellant’s claim to include acceptance for bilateral
tarsal tunnel syndrome and bilateral lesion of the plantar nerve.
In a letter to appellant dated October 6, 2011, OWCP noted that appellant’s claim was
processed initially based upon Dr. Ghodadra’s report of June 2, 2011. It noted that, following
further review, it determined that Dr. Ghodadra’s report was drafted in error. OWCP explained
that an OWCP medical adviser was not provided with relevant medical information about
appellant’s other claim, No. xxxxxx224, and that as a result the schedule award claim was
deferred.
On January 30, 2012 OWCP referred appellant’s claim to an OWCP medical adviser and
asked for a determination on impairment to the bilateral lower extremities pursuant to the sixth
edition of the A.M.A., Guides. In a response dated February 6, 2012, Dr. David H. Garelick, a
physician Board-certified in orthopedic surgery with a Board-certified subspecialty in orthopedic
sports medicine, noted that bilateral tarsal tunnel and plantar nerve lesion (Morton’s neuroma)
have been successfully accepted as work-related conditions. He stated that the June 2, 2011
report by Dr. Ghodadra, caused some confusion, in that he recommended an additional three
percent bilateral lower extremity impairment for tarsal tunnel and one percent lower extremity
for permanent impairment for Morton neuroma according to Table 16-2, page 501 of the
A.M.A., Guides. However, Dr. Garelick determined that Dr. Ghodadra mixed up the right/left
impairment ratings. Given that appellant had previously been awarded a schedule award for 13
percent left lower extremity impairment, an additional 3 percent plus 1 percent, would allow a
total of 16 percent left lower extremity permanent impairment according to the Combined Values
Chart on page 604 of the A.M.A., Guides. Using the same rationale, Dr. Garelick concluded that
20 percent impairment to the right lower extremity plus 3 percent plus 1 percent equaled a total
23 percent impairment to the right lower extremity when using the Combined Values Chart.
By decision dated May 30, 2013, OWCP issued appellant a schedule award for an
additional 3 percent impairment to her right lower extremity and an additional 3 percent
impairment to her left lower extremity, for a total schedule award of 23 percent for right lower
extremity impairment and 16 percent for her left lower extremity impairment.
On September 15, 2013 appellant requested reconsideration.
In a September 11, 2013 evaluation, Dr. Michael Flood, a podiatrist, determined that
pursuant to Table 16-22 and Table 16-25 of the A.M.A., Guides, appellant had a class 3
impairment of the bilateral ankle with grade modifiers of 2 for functional history, physical
examination and clinical studies, for a final grade rating of A, or an impairment to the lower
extremity of 26 percent based on Table 16-22 and Table 16-25 of the A.M.A., Guides. With
regard to her right foot, he found that, pursuant to Table 16-8 and Table 16-2 of the A.M.A.,

4

Guides, appellant had a class 3 with grade modifiers of 2, for a grade A final class grade rating of
a right extremity impairment of 26 percent or 10 percent whole person impairment. For the left
foot, using the same tables, Dr. Flood found class 3 with grade modifiers of 2 for a final class
grade rating of A, for a lower left extremity impairment of 26 percent or 10 percent of the whole
person. He calculated the total whole person impairment as 36 percent. Dr. Flood noted that
previous ratings did not include arthritis as a condition and that it is a consequential condition to
postsurgical procedure performed bilaterally on the feet within six months to one year after
surgery. He also noted that appellant presented with worsening of the plantar fasciitis condition
due to physical stresses on her feet. Dr. Flood concluded with a reasonable degree of medical
certainty that the frostbite was causative in the development of the conditions described in the
diagnosis along with the Norton’s neuroma and tibial nerve entrapment already accepted in this
case. He noted that appellant relies on the use of a cane because of stiffness, pain, weakness of
the feet and instability of her knee conditions.
By memorandum dated October 23, 2013, OWCP asked an OWCP medical adviser to
reconsider appellant’s impairment. In an October 27, 2013 report, Dr. Christopher Gross, an
OWCP medical adviser Board-certified in psychiatry and neurology, recommended an
“independent medical examination.” He believed that appellant’s impairment was significantly
less than what had been awarded.
On December 5, 2013 OWCP referred appellant to Dr. Allan Brecher, a Board-certified
orthopedic surgeon, for a second opinion. It sent Dr. Brecher a statement of accepted facts dated
November 19, 2013 stating, inter alia, that OWCP accepted appellant’s claim for bilateral plant
fibromatosis, bilateral tarsal tunnel syndrome, and bilateral lesion of the plantar nerve. In a
January 20, 2014 report, Dr. Brecher noted that appellant did not have clear tarsal tunnel
syndrome, so he did not give her any impairment rating for that. He did note that appellant still
had chondromalacia of the right knee based on imaging and examination. Dr. Brecher noted
decreased strength but no atrophy, that he believed is due to fibromyalgia. He noted residual
plantar fasciitis on examination and chondromalacia of both knees. Dr. Brecher noted that her
knees would be eight percent on both sides, however, only the right side is accepted. He noted
that appellant has two percent impairment for her ongoing plantar fasciitis.
In a January 24, 2014 report, Dr. Brecher calculated appellant’s impairment. He noted
that for the right knee, appellant had impairment based on the knee regional grid, page 511,
Table 16-3, class 1. Grade modifiers were listed for functional history as 2, for physical
examination was 1, and clinical studies were 2 which equaled grade D giving her eight percent
impairment for her chondromalacia of the knee. As for her plantar fibromatosis, Dr. Brecher
looked at the foot and ankle regional grid, page 501, Table 16-2. Grade modifiers for functional
history was 2, physical examination was 2, and clinical studies were 1 giving her a grade of D
and a score of two percent. Dr. Brecher added them together yielding a rating of 10 percent. As
for the left leg, the plantar fasciitis was accepted, but the knee was not. Therefore, using the
same criteria as the right side, Dr. Brecher determined that appellant would actually have a 10
percent impairment of the leg, but as only the plantar fasciitis is accepted, he found the amount
would be 2 percent.
In a February 24, 2014 report, Dr. Gross, an OWCP medical adviser, concluded that
based on Table 16-2, appellant has a class 1 diagnosis of bilateral plantar fasciitis, which has a

5

base impairment of one percent. Based on functional history, he noted that appellant walked
with a cane, and therefore had a grade 2 modifier. Dr. Gross noted that, based on her physical
examination of moderate palpatory findings and normal range of motion, he has a grade 2
modifier. He stated that clinical studies were not applicable. Dr. Gross concluded that appellant
had a net adjustment formula of +2, and adjustment which corresponds to a permanent
impairment of two percent bilaterally, which was in agreement with Dr. Brecher. He stated that
appellant’s right knee osteoarthritis (left knee not accepted) is class 1 diagnosis with a three
millimeter cartilage interval, pursuant to Table 16-3. Based on functional history, appellant uses
a cane and thus had a grade 2 modifier. On physical examination, she had normal range of
motion and minimal tenderness on palpitation and thus a grade 1 modifier. Clinical studies were
used in the determination of the diagnosis. Using the net adjustment formula, the net adjustment
is +1, which corresponds to a class D adjustment of eight percent right lower extremity.
On March 10, 2014 OWCP noted that the medical adviser, Dr. Gross, did not discuss
Dr. Flood’s report, and asked that he do so. In a March 17, 2014 report, Dr. Gross did not
change his impairment findings. He pointed out that Dr. Flood “makes arbitrary ratings based on
range of motion measurements” but that the diagnosis-based impairments are the preferred
methods of calculating impairment. Dr. Gross noted that Dr. Flood could not comment on
appellant’s right knee osteoarthritis as he is a podiatrist.
By decision dated April 7, 2014, OWCP determined that the evidence was not sufficient
to modify the prior decision.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the A.M.A., Guides.6 The A.M.A., Guides has been adopted
by the implementing regulations as the appropriate standard for evaluating schedule losses.7 For
impairment ratings calculated on or after May 1, 2009, OWCP should advise any physician
evaluating per impairment to use the sixth edition.8
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5.a (February 2013).
7

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

8

Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.808.5.a (February 2013).

6

The sixth edition requires identifying the impairment Class for Diagnosis (CDX), which
is then adjusted by grade modifiers based on Functional History (GMFH), Physical Evidence
(GMPE) and Clinical Studies (GMCS).9 The net adjustment formula is (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).10 The sixth edition of the A.M.A., Guides also provides that
range of motion may be selected as an alternative approach in rating impairment under certain
circumstances. A rating that is calculated using range of motion may not be combined with a
diagnosis-based impairment and stands alone as a rating.11 The sixth edition of the A.M.A.,
Guides provides that lower extremity impairments be classified by diagnosis which is then
adjusted by using grade modifiers according to the formula noted above.12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.13
OWCP’s procedures further provide as follows:
“The [claims examiner] is responsible for ensuring that the [statement of accepted
facts] is correct, complete, unequivocal, and specific. When the [medical
adviser], second opinion specialist or referee physician renders a medical opinion
based on an [statement of accepted facts] which is incomplete or inaccurate or
does not use the [statement of accepted facts] as the framework in forming his or
her opinion, the probative value of the opinion is seriously diminished or negated
altogether.14
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWPC a disinterested arbiter. While the claimant has the burden to establish entitlement to
compensation OWCP shares the responsibility in the development of the evidence to see that
justice is done.15 When OWCP undertakes to develop the medical aspects of a case, it must
exercise extreme care in seeing that its administrative processes are impartially and fairly
conducted.16

9

A.M.A., Guides 494-531.

10

Id. at 521.

11

L.B., Docket No. 12-910 (issued October 5, 2012).

12

FECA Bulletin No. 09-03 (issued March 15, 2009); see also M.K., Docket No. 10-478 (issued
November 17, 2010).
13

See Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.808.6(f) (February 2013).

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
15

Richard Kendall, 43 ECAB 790 (1992); Isidore J. Gennino, 35 ECAB 442 (1983).

16

See J.F., Docket No. 13-1814 (issued January 27, 2014); Peter C. Belkind, 56 ECAB 580 (2005).

7

ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP initially accepted appellant’s claim for frostbite in her foot and bilateral plantar
fibromatosis. However, Dr. Khuri made additional diagnoses, including tibial tunnel syndrome.
In his June 2, 2011 report, Dr. Ghodadra, an OWCP medical adviser, concluded that appellant’s
bilateral tarsal tunnel syndrome and Morton’s neuroma are consequential to the accepted
conditions of bilateral frostbite and plantar fascial fibromatosis. On July15, 2011 OWCP added
to the list of accepted conditions bilateral tarsal tunnel syndrome and bilateral lesion of the
plantar nerve. In a February 6, 2012 report, Dr. Garelick, the second OWCP medical adviser,
determined that appellant had a 16 percent impairment of her left lower extremity and a 23
percent impairment of her right lower extremity. Based on this opinion, on May 30, 2013
OWCP issued a schedule award for 16 percent of the left lower extremity and 23 percent of the
right lower extremity. Subsequently, Dr. Flood, appellant’s podiatrist, found that appellant had a
26 percent permanent impairment of her right foot and a 26 percent impairment of her left foot.
OWCP referred appellant’s case to another OWCP medical adviser, Dr. Gross, who believed that
appellant’s impairment was significantly less than what she received, and recommended a
referral for an “independent medical examination.”
On December 5, 2013 OWCP referred appellant to Dr. Allan Brecher for a second
opinion examination. In reaching his conclusion with regard to permanent impairment,
Dr. Brecher indicated that appellant did not have clear tarsal tunnel syndrome. Based on his
application of the A.M.A., Guides, he concluded that appellant had 10 percent permanent
impairment of the right leg and 2 percent permanent impairment of the left, noting that only
plantar fasciitis was accepted. However, the statement of accepted facts sent to Dr. Brecher,
dated November 19, 2013, clearly indicated that appellant’s claim had been accepted for bilateral
tarsal tunnel syndrome.
To assure that the report of a medical specialist is based upon a proper factual
background, OWCP provides a statement of accepted facts. When a second opinion physician
does not use the statement of accepted facts as the framework in forming his opinion, the
probative value of the opinion is diminished or negated altogether.17
Therefore, the Board finds that as Dr. Brecher’s opinion is outside the framework of the
statement of accepted facts, it is based on an inaccurate factual history.18 Since he rendered his
opinion based on incomplete factual information, Dr. Brecher’s report is of limited value.19
Proceedings before OWCP are not adversarial in nature and OWCP is not a disinterested arbiter,
in a case where OWCP proceeds to develop the evidence and to procure medical evidence, it
must do so in a fair and impartial manner.20 As OWCP undertook development of the evidence
17

J.F., Docket No. 13-1814 (issued January 27, 2014).

18

V.A., Docket No. 14-722 (issued May 8, 2014).

19

T.M., Docket No. 12-1654 (issued April 4, 2013).

20

Walter A. Fundringer, Jr., 37 ECAB 200, 204 (1985).

8

by referring appellant to a second opinion physician, it has the duty to secure an appropriate
report.21 Because Dr. Brecher did not base his report on an accurate factual history, the case will
be remanded to OWCP for further development of the medical evidence, to be followed by a
de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision regarding the extent and
degree of impairment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 7, 2014 is set aside and the case is remanded for further
development consistent with this opinion.
Issued: July 2, 2015
Washington, DC

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

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

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

21

When OWCP refers a claimant for a second opinion evaluation and the report does not adequately address the
relevant issues, OWCP should secure an appropriate report on relevant issues. Ayanle A. Hashi, 56 ECAB
234 (2004). See also Mima Cruz, Docket No. 06-183 (issued April 5, 2006) (where the Board found that the second
opinion physician’s medical report was of little probative value and could not constitute a basis for denying the
claim because it was not based on the statement of accepted facts. The Board remanded the case to OWCP).

9