United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF STATE, AMERICAN
CONSULATE GENERAL, El Paso, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-1728
Issued: April 5, 2007

Case Submitted on the Record

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

JURISDICTION
On July 24, 2006 appellant filed a timely appeal of a May 18, 2006 merit decision of the
Office of Workers’ Compensation Programs, finding that he was not entitled to a schedule award
for his left lower extremity. 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 determined that appellant was not entitled to a
schedule award for his left lower extremity due to the termination of his compensation benefits.
FACTUAL HISTORY
This case has previously been on appeal. In a June 20, 2005 decision, the Board affirmed
the Office’s December 21, 2004 termination of appellant’s compensation benefits effective
December 26, 2004.1 The Board determined that the Office properly relied on a September 14,
1

Docket No. 05-531 (issued June 20, 2005).

2004 medical report of Dr. Jose A. Alicea, an attending Board-certified orthopedic surgeon, to
terminate appellant’s compensation on the grounds that he had no residuals or disability causally
related to his employment-related medial meniscus tear of the left knee after that date. The facts
and the circumstances of the case, as set forth in the Board’s prior decision, are incorporated
herein by reference.2
On June 30, 2005 appellant filed a claim for a schedule award. In a July 2, 2005 report,
Dr. Alicea stated that appellant reached maximum medical improvement on June 29, 2005. He
noted that appellant had one percent impairment of the whole person for his partial medial
meniscectomy based on Table 17-33 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001). Utilizing Table 17-31 on
page 544 of the A.M.A., Guides, Dr. Alicea determined that appellant sustained three percent
impairment of the whole person due to degenerative changes he had at the time of his
arthroscopic surgery. He combined the impairment ratings for the partial medial meniscectomy
and degenerative changes at the time of surgery to determine that appellant had four percent
impairment of the whole person which constituted nine percent impairment of the left lower
extremity.
On April 7, 2006 an Office medical adviser reviewed Dr. Alicea’s July 2, 2005 report.
He found that appellant reached maximum medical improvement on July 2, 2005. Utilizing the
A.M.A., Guides 546, Table 17-33, the medical adviser found that appellant had two percent
impairment of the left lower extremity due to his partial medial meniscectomy. He noted
Dr. Alicea’s recommendation for further impairment due to degenerative changes seen at
arthroscopy based on the A.M.A., Guides 544, Table 17-31. The medical adviser stated that the
A.M.A., Guides provides impairment for degenerative changes that were quantified based on
cartilage intervals as demonstrated on x-ray evaluation, not on intra-articular observations. For
this reason, he was unable to use degenerative arthritis as a determinate of impairment in this
case.
By decision dated May 18, 2006, the Office found that appellant was not entitled to a
schedule award due to the termination of his compensation benefits.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulation4 set forth the number of weeks of compensation to be paid for
permanent loss or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
2

On August 25, 2003 appellant, then a 48-year-old consular officer, filed a traumatic injury claim alleging that on
August 21, 2003 he hurt his left knee when he stepped off a platform at work. On March 12, 2004 the Office
accepted that appellant sustained a medial meniscus tear of the left knee and authorized a partial medial
meniscectomy and chondroplasty of the medial femoral condyle which were performed on March 29, 2004.
Appellant resigned from his consular officer position effective March 30, 2004.
3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

20 C.F.R. § 10.404.

2

percentage of loss of use.5 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.6
When a claimant’s compensation is not terminated based on his refusal of suitable work
under 5 U.S.C. § 8106(c), he is not barred from receiving schedule award compensation for any
period after the termination decision has been reached.7
ANALYSIS
Appellant contends that he is entitled to a schedule award for permanent impairment of
his left lower extremity. The Office denied his claim on the grounds that his compensation
benefits had been terminated. The Office, however, erred in denying appellant’s entitlement to a
schedule award by treating the termination of his compensation as one based on a refusal of
suitable work under section 8106(c).8 In this case, appellant’s compensation was terminated
because the medical evidence of record established that he no longer had any residuals or
disability causally related to his employment-related medial meniscus tear of the left knee by
December 26, 2004, based on the medical opinion of Dr. Alicea, an attending orthopedic
physician, and not due to his refusal of the employing establishment’s offer of suitable work.
Accordingly, the Board finds that appellant may in fact be entitled to a schedule award for his
left lower extremity if he submits medical evidence establishing employment-related permanent
impairment.9
CONCLUSION
The Board finds that the Office improperly determined that appellant was not entitled to a
schedule award for his left lower extremity. Thus, the Office’s denial must be reversed because
it should have treated his claim as a termination of compensation based on improved medical
condition, which was the basis of the termination, rather than as a termination of compensation
under 5 U.S.C. § 8106(c).

5

5 U.S.C. § 8107(c)(19).

6

Id.

7

See 20 C.F.R. § 10.517; Stephen R. Lubin, 43 ECAB 564, 573 (1992).

8

Id.

9

The Board notes that, in this case, the Office has not issued a final decision as to whether the medical evidence
submitted by appellant supports an employment-related permanent impairment, with a date of maximum medical
improvement that is after December 26, 2004.

3

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2006 decision of the Office of
Workers’ Compensation Programs is reversed. The case record is returned to the Office.
Issued: April 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
City of Industry, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1003
Issued: August 11, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 30, 2015 appellant filed a timely appeal from a November 10, 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 the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
left leg and upper thigh injury in the performance of duty.
FACTUAL HISTORY
On August 8, 2014 appellant, then a 44-year-old letter carrier, filed a traumatic injury
claim, alleging that on July 25, 2014 while on his mail route he sustained an injury to his left leg,

1

5 U.S.C. §§ 8101-8193.

upper quad, and thigh when his left leg locked. The employing establishment first received
notice of the claimed injury on August 8, 2014. Appellant stopped work on July 25, 2014.
Appellant submitted an undated narrative statement and noted that on July 25, 2014 while
he was on his scheduled mail route, his left leg locked and gave out. He reported calling Laura
Huerta, his supervisor, and informing her that he injured his leg but he would try to finish his
mail route. Appellant attempted to finish his mail route, but he was unable to walk and thereafter
contacted Postmaster David Muse. When he arrived at the employing establishment he was
unable to unload his vehicle, so Mr. Muse and a coworker assisted him. Appellant submitted a
return to work slip from Dr. Tracy Polanco, a Board-certified family practitioner, dated July 30,
2014, who treated him and advised that he was medically excused from work from July 25 to
August 18, 2014 for evaluation due to a work injury. Dr. Polanco diagnosed a left quadriceps
injury, rule out tear.
Appellant submitted a Form CA-7 claim for compensation for total disability from
September 9 to 19, 2014. He received continuation of pay from July 26 to September 8, 2014.
The employing establishment submitted a work and leave break down from September 6
to 19, 2014.
Appellant submitted a report from a physician assistant dated September 25, 2014, who
noted that appellant presented with left hip pain. He reported that on July 25, 2014 he was
delivering mail on his route when he noticed a sudden increased pain in his left hip. Appellant
noted symptoms of pain radiating into his joint, swelling, weakness, stiffness, and decreased
range of motion. The physician assistant noted examination findings for the left lower extremity
of tenderness over the greater trochanter, full range of motion in all planes without crepitus,
intact joint stability, strength was intact except on abduction, no tenderness, swelling, or
deformities of the thigh, and sensation was intact. He noted x-rays of the pelvis and lateral right
hip performed in August revealed no fractures or arthritis. The physician assistant diagnosed left
trochanteric bursitis and tendinitis of the hip and pelvis area and opined that the left hip pain was
directly related to his knee problems and was a common compensatory consequence to an altered
gait. Thus it should not be considered a new workers’ compensation injury, but related to
appellant’s prior right knee issues. The physician assistant appellant was temporarily totally
disabled.
By letter dated October 8, 2014, OWCP advised appellant that his claim originally
appeared to be a minor injury and that a limited amount of medical expenses were
administratively approved without formally considering the merits of the claim. Because there
was a claim for wage loss, his claim would be formally adjudicated. OWCP advised that the
evidence was insufficient to establish that he actually experienced the incident alleged to have
caused the injury as he did not describe the specific work activities that he performed on July 25,
2014 which caused the claimed injury. OWCP asked appellant to provide a detailed description
as to how his injury occurred.2
2

On October 8, 2014 appellant advised OWCP that his hip condition was related to his knee injury in another
claim, number xxxxxx262. OWCP indicated that it would expand the other claim to include a consequential hip
injury. Claim number xxxxxx262 is not before the Board on the present appeal.

2

Appellant submitted a statement dated October 23, 2014 and elaborated that on July 25,
2014 he arrived in his vehicle to deliver mail on his scheduled route, proceeded to the back of his
vehicle, and loaded his mailbag which weighed about 35 pounds. He noted stretching before and
during his mail route due to his current knee condition. On this particular day, appellant felt the
need to do more stretching because he felt more discomfort than usual and then proceeded from
his vehicle to start his route. He noted that, as he reached 2101 Merle Drive, his left leg locked
and gave out. Appellant did not fall, but he stopped, removed his mailbag, and started stretching,
thinking he may have pulled his hamstring. He noted that during the stretching he felt a different
kind of pain, which was constant and sharp, near his left hip area. Appellant reported trying to
apply his weight to both legs to return to his vehicle but he was unable to do so and hopped back
to his vehicle on his right leg. He noted experiencing intense pain, and called his supervisor to
report his current situation, and was instructed to return to the office. Appellant associated his
pain to his left knee condition. He opined that there was no traumatic event that occurred, “but
rather a scientifically-based medical opinion and not speculation due to compensation
consequences associated to my prolong history due to two surgeries to my left knee.”
Appellant also provided a copy of the previously submitted September 25, 2014
physician assistant’s report which had also been signed by Dr. Peter B. Hanson, a Board-certified
orthopedic surgeon. Also submitted was a September 25, 2014 disability certificate from
Dr. Hanson finding appellant totally disabled until October 9, 2014.
In a decision dated November 10, 2014, OWCP denied appellant’s claim, finding that the
evidence did not support that the injury or events occurred as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed is 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 upon a traumatic injury or an occupational
disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another.
The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.5 In some traumatic injury cases this
3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Daniel J. Overfield, 42 ECAB 718, 721 (1991).

5

Supra note 3.

3

component can be established by an employee’s uncontroverted statement on the Form CA-1.6
An alleged work incident does not have to be confirmed by eyewitnesses in order to establish
that an employee sustained an injury in the performance of duty, but the employee’s statement
must be consistent with the surrounding facts and circumstances and his subsequent course of
action.7 A consistent history of the injury as reported on medical reports, to the claimant’s
supervisor, and on the notice of injury can also be evidence of the occurrence of the incident.8
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury, and failure to obtain medical
treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in
determining whether a prima facie case has been established.9 Although an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative valued and will stand unless refuted by strong or persuasive evidence,10 an employee
has not met this burden when there are inconsistencies in the evidence such as to cast serious
doubt upon the validity of the claim.11
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence. To establish a causal relationship
between the condition, as well as any attendant disability, claimed and the employment event or
incident, the employee must submit rationalized medical opinion evidence, based on a complete
factual and medical background, supporting such a causal relationship.12
ANALYSIS
In the present case, appellant, a letter carrier, filed a traumatic injury claim, alleging that
on July 25, 2014 while on his mail route he injured his left leg, upper thigh, and quadriceps when
his left leg locked and gave out. However, the Board notes that there are inconsistencies in the
evidence which cast serious doubt upon the validity of the claim. The Board finds that the
claimed employment incident did not occur as alleged.
Appellant submitted differing statements regarding how his left leg and thigh injury
occurred. He initially stated on the CA-1 form signed on August 8, 2014, that on July 25, 2014
he injured his left leg when delivering mail. In a statement dated October 23, 2014, appellant
noted his routine was to stretch before and during his route pursuant to his doctor’s
recommendation due to his knee condition. He indicated that on this particular day he felt the
need to do more stretching because he felt more discomfort than usual and thought he may have
6

John J. Carlone, 41 ECAB 354 (1989).

7

Rex A. Lenk, 35 ECAB 253, 255 (1983).

8

Id. at 255-256.

9

Dorothy M. Kelsey, 32 ECAB 998 (1981).

10

Robert A. Gregory, 40 ECAB 478 (1989).

11

Joseph A. Fournier, 35 ECAB 1175 (1984).

12

See Richard A. Weiss, 47 ECAB 182 (1995); John M. Tornello, 35 ECAB 234 (1983).

4

pulled a hamstring. Appellant noted that during the stretching he felt a different kind of pain
which was constant and sharp near his left hip area, and he was unable to put any pressure on his
left leg. He associated his pain to his left knee condition. Appellant opined that there was no
traumatic event that occurred, “but rather a scientifically-based medical opinion and not
speculation due to compensation consequences associated to my prolong history due to two
surgeries to my left knee.”
Similarly, the medical evidence failed to provide a clear history of a new injury. In a
September 25, 2014 report, Dr. Hanson noted that appellant presented with left hip pain and
reported that on July 25, 2014 he was walking on his mail route delivering mail when he noticed
sudden, increased pain in his left hip. He opined that the left hip pain was directly related to his
knee problems and was a common consequence to an altered gait and should not be considered a
new workers’ compensation injury, but related to appellant’s prior right knee issues.
There also are no contemporaneous statements from persons present at the employing
establishment supporting that the incident occurred as alleged. While an injury does not have to
be confirmed by eyewitnesses in order to establish that an employee sustained an injury in the
performance of duty, the employee’s statement must be consistent with the surrounding facts and
circumstances and his subsequent course of action. The medical reports do not relate a
consistent history of injury as described by appellant. Appellant also has not provided a
clarifying explanation between his initial statement when he indicated that he had a new
traumatic injury and his October 23, 2014 statement in which he stated that there was no new
traumatic event and that his condition was a consequence of another injury.13
For these reasons, the Board finds that appellant has not established that the claimed
traumatic incident occurred as alleged. As appellant has not established that the July 25, 2014
incident occurred as alleged, it is not necessary for the Board to consider the medical evidence
regarding causal relationship.14 Consequently, appellant has not met his burden of proof to
establish his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a left leg and upper thigh injury in the performance of duty.

13

See supra note 2. This decision does not preclude appellant from pursuing matters under claim number
xxxxxx262.
14

See S.P., 59 ECAB 184 (2007).

5

ORDER
IT IS HEREBY ORDERED THAT the November 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 11, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NATIONAL CEMETERY ADMINISTRATION,
MOUNTAIN HOME NATIONAL CEMETERY,
Mountain Home, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 18-0179
Issued: May 22, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 31, 2017 appellant filed a timely appeal from a July 20, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits for the
period July 5 to August 10, 2016, pursuant to 5 U.S.C. § 8123(d), due to his failure to attend a
scheduled medical examination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 18, 2013 appellant, then a 29-year-old cemetery caretaker, filed a traumatic injury
claim (Form CA-1) for low back pain. He alleged that on April 16, 2013 he felt pain in his lower
back when lifting 100- to 200-pound rolls of sod while in the performance of duty.2 Appellant
was terminated from the employing establishment, effective September 25, 2013, when his
temporary appointment expired. On May 12, 2014 he underwent an L4-5 discectomy.
OWCP accepted the claim for permanent aggravation of a displaced L4-5 disc. It paid
appellant wage-loss compensation for the period August 1, 2013 to May 2, 2015. OWCP placed
appellant’s case on the periodic rolls, effective April 5, 2015. Appellant did not return to work.
By letter dated May 10, 2016, OWCP referred appellant, together with a statement of
accepted facts (SOAF), the medical record, and a list of questions to Dr. Kirpal Sidhu, a Boardcertified orthopedic surgeon, for a second opinion evaluation. It advised that an appointment had
been scheduled for May 24, 2016 at 3:00 p.m. with Dr. Sidhu at his specified office address.
Appellant was further advised that, if he refused or obstructed the examination, his compensation
could be suspended under 5 U.S.C. § 8123(d).
In a May 19, 2016 telephone memorandum (Form CA-110), OWCP noted that appellant
contended that he was unable to attend the scheduled appointment as he had a 30-minute travel
restriction, but Dr. Sidhu’s office was a two-and-a-half-hour drive from his residence. It notified
appellant that there was no current medical report of record that would corroborate a travel
restriction. At appellant’s request, OWCP sent him a list of questions for his physician.
In a letter dated May 24, 2016, the medical management contractor notified OWCP that
appellant had not attended the scheduled medical appointment with Dr. Sidhu.
On June 9, 2016 OWCP proposed to suspend appellant’s compensation benefits pursuant
to section 8123(d) of FECA for failure to attend the May 24, 2016 appointment with Dr. Sidhu.
Appellant was advised that he should provide a written explanation of his reasons, with substantive
corroborating evidence, within 14 days for failing to attend the scheduled examination.
In response, appellant submitted a June 15, 2016 letter in which he asserted that the
appointment with Dr. Sidhu had been cancelled prior to May 24, 2016. He added that he had
requested his physician to send in an updated medical report.
By decision dated July 5, 2016, OWCP finalized its proposed suspension, effective that
same date. It noted that it had directed appellant on May 10, 2016 to report for the examination
2

OWCP initially denied the claim by decision dated June 13, 2013, based on a lack of medical evidence to establish
causal relationship. Following an oral hearing before an OWCP hearing representative held on June 11, 2014, it issued
an August 22, 2014 decision which vacated the June 13, 2013 decision and remanded the claim to OWCP for a secondopinion referral. On remand of the case OWCP obtained a November 20, 2014 second opinion report by
Dr. Nicholas A. Grimaldi, a Board-certified orthopedic surgeon, who opined that the accepted April 16, 2013
employment incident permanently aggravated a displaced L4-5 disc. By decision dated January 30, 2015, OWCP
accepted that the April 16, 2013 employment incident caused permanent aggravation of a displaced L4-5 disc.

2

scheduled for May 24, 2016, but he did not attend. OWCP found that there was insufficient
evidence to support that he could not attend the May 24, 2016 appointment with Dr. Sidhu.
In a letter dated August 11, 2016 and received by OWCP on August 16, 2016, appellant
requested reconsideration. He expressed his willingness to attend a second-opinion appointment,
and requested that OWCP reinstate his wage-loss compensation. Appellant also telephoned
OWCP on August 23, 2016 to request that his second-opinion appointment be rescheduled.
In a letter dated August 25, 2016, OWCP referred appellant, a SOAF and the medical
record to Dr. Nicholas A. Grimaldi, a Board-certified orthopedic surgeon, for a second-opinion
examination on September 22, 2016. Appellant attended the appointment.
By letter decision dated September 27, 2016, OWCP vacated its July 5, 2016 decision,
which suspended appellant’s compensation benefits, and reinstated appellant’s compensation
benefits, commencing August 11, 2016, as he indicated in his August 11, 2016 letter that he would
attend a rescheduled second-opinion appointment.
In a letter dated October 5, 2016 and received by OWCP on October 12, 2016, appellant
requested reconsideration of OWCP’s September 27, 2016 decision. He requested that OWCP
reinstate his monetary compensation benefits for the period July 5 to August 10, 2016.
By decision dated July 20, 2017, OWCP denied reinstatement of appellant’s compensation
benefits for the period July 5 to August 10, 2016 as appellant did not indicate he would attend the
scheduled second-opinion appointment until August 11, 2016. It explained that the period of
refusal was deducted from the period in which compensation benefits were payable.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability as
a result of federal employment, to undergo a physical examination as it deems necessary.3 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.4 OWCP
regulations provide that a claimant must submit to an examination by a qualified physician as often
and at such times and places as OWCP considers reasonably necessary.5 Section 8123(d) of FECA
and OWCP regulations provide that, if an employee refuses to submit to or obstructs a directed
medical examination, his or her right to compensation is suspended until the refusal or obstruction
ceases.6 OWCP procedures provide that, before OWCP may invoke these provisions, the
employee is to be provided a period of 14 days within which to present in writing his or her reasons

3

5 U.S.C. § 8123.

4

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007); James C. Talbert, 42 ECAB 974 (1991).

5

20 C.F.R. § 10.320.

6

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

3

for the refusal or obstruction.7 If good cause for the refusal or obstruction is not established,
entitlement to compensation is suspended in accordance with section 8123(d) of FECA.8
ANALYSIS
The Board finds that OWCP properly suspended appellant’s compensation for failure to
attend a medical examination on May 24, 2016.
OWCP scheduled a second-opinion medical examination on May 24, 2016 with Dr. Sidhu.
Appellant did not appear for the scheduled examination. By decision dated July 5, 2016, OWCP
suspended his compensation benefits due to his failure to appear. The determination of the need
for an examination, the type of examination, the choice of locale, and the choice of medical
examiners are matters within the province and discretion of OWCP. The only limitation on
OWCP’s authority, with regard to instructing a claimant to undergo a medical examination, is that
of reasonableness.9 The Board has interpreted the plain meaning of section 8123(d) to provide
that compensation is not payable while a refusal or obstruction of an examination continues.10
On May 10, 2016 OWCP advised appellant its intention to refer him for a second-opinion
medical examination and that, if he did not attend the appointment, his benefits could be
suspended. Appellant was referred for a second-opinion medical evaluation with Dr. Sidhu and
was advised of the need for the examination and the time and place for the scheduled appointment.
He did not attend the scheduled May 24, 2016 appointment.
OWCP subsequently allowed appellant 14 days to provide reasons for failing to appear.
Appellant submitted a June 15, 2016 letter asserting that his physician had restricted him from
traveling for more than 30 minutes, and Dr. Sidhu’s office was a two-and-a-half-hour drive.
However, he did not provide evidence to corroborate his allegations. Therefore, appellant has not
established good cause for refusing to undergo the May 24, 2016 examination.11 Without evidence
in support of his allegation, OWCP has nothing more than an unsubstantiated excuse.12 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP. The
only limitation on this authority is that of reasonableness.13 There is no evidence in the record that
OWCP abused its discretion in directing the examination.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).
8

Id. See also L.M., Docket No. 17-2025 (issued March 22, 2018).

9

Lynn C. Huber, 54 ECAB 281 (2002).

10

M.B., Docket No. 10-1755 (issued March 24, 2011).

11

L.M., supra note 8; L.B., Docket No. 14-2005 (issued January 28, 2015).

12

Atanacio G. Sambrano, 51 ECAB 557 (2000).

13

Supra note 9.

4

In a letter dated August 11, 2016, appellant indicated his willingness to attend a
rescheduled second-opinion appointment. By decision dated September 27, 2016, OWCP
reinstated appellant’s compensation benefits retroactive to August 11, 2016 as his refusal to attend
the scheduled second-opinion appointment ended on that date.14 However, as appellant remained
in refusal from July 5 to August 10, 2016, he was not entitled to compensation benefits for that
period. Thus, the Board finds that OWCP properly suspended his compensation benefits for the
period July 5 to August 10, 2016 pursuant to section 8123(d) of FECA.15
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits for the
period July 5 to August 10, 2016 pursuant to 5 U.S.C. § 8123(d) due to his failure to attend a
scheduled medical examination.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated July 20, 2017 is affirmed.
Issued: May 22, 2018
Washington, DC

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

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

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

14

As the Board has held, when appellant actually reports for examination, payment retroactive to the date on which
he or she agreed to attend the examination may be made. See L.M., supra note 8; E.B., 59 ECAB 298 (2008); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.13(d)
(September 2010).
15

20 C.F.R. § 10.320; S.B., 58 ECAB 267 (2007).

5


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

)
)
)
)
)
)
)
)

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

Docket No. 10-1507
Issued: March 22, 2011

Case Submitted on the Record

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

JURISDICTION
On May 12, 2010 appellant, through his attorney, filed a timely appeal of an April 6,
2010 Office of Workers’ Compensation Programs’ merit decision. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective December 23, 2009; and (2) whether appellant has met his
burden of proof in establishing any continuing disability on or after December 23, 2009 due to
his accepted employment injury.
FACTUAL HISTORY
On November 4, 2003 appellant, then a 55-year-old rural carrier, filed a traumatic injury
claim alleging that on June 6, 1994 he sustained a neck injury in an automobile accident in the
performance of duty. The Office accepted his claim for C1-2 subluxation and cervicalgia as well
as headaches, cervical lesion and cervical muscle spasm.

Appellant filed a claim for compensation and requested wage-loss compensation from
February 26 through April 24, 2009. In a report dated February 26, 2009, Dr. Matthew Gornet, a
Board-certified orthopedic surgeon, noted appellant’s history of injury and descriptions of
symptoms. He found slight restriction of motion rotating to the right with full motor strength
and normal sensation. Dr. Gornet noted that appellant’s symptoms began at or near the 1994
employment injury. He stated that he did not have any opinion regarding appellant’s current
disability or ability to work. The Office accepted appellant’s claim for recurrence on
February 26, 2009. Appellant requested wage-loss compensation beginning May 9, 2009 which
the Office authorized.
In a report dated May 28, 2009, Dr. Gornet noted appellant’s history of injury and found
numbness in the C6-7 distribution as well as magnetic resonance imaging (MRI) scan results of
disc protrusions at C3-4 and C4-5. He stated that appellant was temporarily totally disabled.
The Office referred appellant for a second opinion evaluation on June 2, 2009. In a
report dated June 29, 2009, Dr. Donald H. Brancato, a Board-certified orthopedic surgeon, stated
that he had reviewed the statement of accepted facts provided by the Office and examined
appellant. He noted appellant’s history of injury and found good muscle strength, hyperactive
reflexes and intact pin prick. Dr. Brancato stated, “There is no objective reason that this man has
any continued residual that would limit his return to his regular work activities.” He noted that
appellant did not appear to have a true subluxation but rather degenerative changes in the
cervical facets and laxity in the supporting ligaments which were age related. Dr. Brancato
stated, “It is my opinion, therefore, that his objective x-ray findings are associated with the
normal degenerative change and progression of aging and not related to his work-related incident
in 1994.” He concluded that appellant could return to work in his date-of-injury position.
Dr. Gornet examined appellant on July 9, 2009 and found that appellant’s current MRI
scan demonstrated disc herniations at C3-4, C4-5 and C6-7. He noted appellant’s symptoms of
neck pain descending into both shoulders and arms. Dr. Gornet recommended electrodiagnostic
studies on July 8, 2009. Dr. Daniel Phillips, a Board-certified neurologist, examined appellant
on July 9, 2009 and testing revealed significant chronic moderate bilateral sensory motor median
neuropathies across the carpal tunnels and left ulnar neuropathy. He found no active cervical
radiculopathy.
Dr. Gornet examined appellant on August 24, 2009 and reviewed appellant’s myelogram
finding disc pathology at C3-4 and C4-5 causing mild core compression. He recommended
surgery.
The Office found a conflict of medical opinion between Drs. Gornet and Brancato and
referred the case, a statement of accepted facts and a list of questions to Dr. Marvin Mishkin, a
Board-certified orthopedic surgeon, reviewed the statement of accepted facts and appellant’s
medical treatment. Dr. Mishkin examined appellant on October 26, 2009 and noted that
appellant stopped work in February 2009 due to increased headaches, arm and neck pain. On
physical examination, he found no evidence of swelling, induration or muscle atrophy in the
neck and no localized specific area of pain on palpation or muscle spasm. Dr. Mishkin found
that appellant’s upper extremities were symmetrical with good motor strength, symmetrical
reflexes and intact sensation. He diagnosed mild degenerative disc disease and possible psoriatic

2

arthritis. Dr. Mishkin stated that appellant’s diagnosed degenerative disc disease was commonly
associated with aging, weight and levels of activity. He stated, “I find no evidence of an
objective nature to indicate that this individual is suffering from any injury or residual of injury
related to or caused by the motor vehicle accident of June 6, 1994.” Dr. Mishkin noted that
appellant had no evidence of radiculopathy or nerve root compression of the cervical spine and
stated that appellant’s degenerative disc changes were not caused or aggravated by his
employment injury. He opined that appellant’s psoriasis was not related to his employment.
Dr. Mishkin concluded that surgery was not indicated and that appellant could return to work
with restrictions on rotation of the head and heavy physical activity.
In a letter dated November 17, 2009, the Office proposed to terminate appellant’s
compensation benefits based on Dr. Mishkin’s report. It found that Dr. Mishkin concluded that
appellant did not have a medical condition, disability or residuals due to his accepted
employment injury. Appellant disagreed with this proposal on December 6, 2009 and stated that
his current condition was due to his June 6, 1994 employment injury. He noted that his
condition had persisted for 16 years.
By decision dated December 17, 2009, the Office terminated appellant’s compensation
benefits effective December 17, 2009. It concluded that Dr. Mishkin’s report was entitled to the
weight of the medical evidence. Appellant requested reconsideration on February 16, 2010. He
submitted a report dated January 4, 2010 from Dr. Gornet, who stated that appellant had disc
herniations and discogenic pain at C3-4 and C4-5 and that he was involved in a work-related
motor vehicle accident which was consistent with producing such disc lesions. Dr. Gornet
opined that appellant required surgery.
By decision dated April 6, 2010, the Office denied modification of the December 17,
2009 termination decision finding that the evidence submitted was insufficiently rationalized to
establish a causal relationship between appellant’s current condition and his accepted
employment injury.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.1
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.2 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability.3 To

1

Mohamed Yunis, 42 ECAB 325, 334 (1991).

2

Id.

3

Furman G. Peake, 41 ECAB 361, 364 (1990).

3

terminate authorization for medical treatment, the Office must establish that appellant no longer
has residuals of an employment-related condition which require further medical treatment4 which
require further medical treatment.5
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of the Federal Employees’
Compensation Act which 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 and resolve the conflict of medical
evidence.6 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 were there are 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 on a proper factual
background, must be given special weight.8
ANALYSIS -- ISSUE 1
Appellant’s physician, Dr. Gornet, supported appellant’s continued disability for work
and need for additional medical treatment including surgery due to his accepted cervical injuries
resulting from his 1994 employment injury. The Office referred appellant for a second opinion
evaluation with Dr. Brancato, who found that appellant’s current condition was not due to his
employment injury and that he could return to full duty. Due to this disagreement in the medical
opinion evidence between appellant’s physician and a physician selected by the Office, the
Board finds that the Office properly determined that there was a conflict of medical opinion
evidence which must be resolved through an impartial medical examiner.
The Office referred appellant, a statement of accepted facts and a list of specific
questions to Dr. Mishkin, a physician selected to serve as the impartial medical examiner, who
examined appellant on October 26, 2009, made limited objective findings and diagnosed mild
degenerative disc disease and possible psoriatic arthritis. Dr. Mishkin opined that appellant’s
degenerative condition was due to aging, weight and levels of activity. He concluded that there
was no objective evidence establishing that appellant’s current condition was due to the accepted
motor vehicle accident of June 6, 1994 or any condition resulting from that accident.
Dr. Mishkin stated that appellant’s degenerative disc changes were not caused or aggravated by
appellant’s employment injury, that surgery was not indicated and that he could return to work.

4

Id.

5

Id.

6

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

7

R.C., 58 ECAB 238 (2006).

8

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

4

The Board finds that this report is sufficient to resolve the conflict of medical opinion and
establishes that appellant has no residuals of his accepted employment injuries. Dr. Mishkin
reviewed appellant’s medical history as well as his medical treatment and performed a physical
examination. He found that appellant had mild degenerative disc disease which would be
expected given his age and occupational duties. Dr. Mishkin noted that there were no objective
findings supporting that appellant’s current condition was related to his employment. He offered
a reasoned opinion that appellant’s current condition was not due to the accepted employment
injuries. As Dr. Mishkin offered the medical reasoning behind his conclusions and based his
report on a proper factual history and his own findings on physical examination, the Board finds
that this report is entitled to the weight of the medical evidence and meets the Office’s burden of
proof to terminate appellant’s compensation benefits.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to appellant to establish that he had disability causally related to his accepted
employment injury.9 To establish a causal relationship between the condition, as well as any
disability claimed, and the employment injury, the employee must submit rationalized medical
opinion evidence, based on a complete factual background, supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant. The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.10
ANALYSIS -- ISSUE 2
The Board has found that the Office met its burden of proof to terminate appellant’s
compensation benefits based on the report of Dr. Mishkin, the impartial medical examiner.
Appellant now has the burden of proof to establish any continuing disability or medical residuals
which he believes resulted from his accepted employment injury.
In support of his claim, appellant submitted a report dated January 4, 2010 from
Dr. Gornet, his attending physician, who provided a diagnosis of disc herniations and discogenic
pain at C3-4 and C4-5. Dr. Gornet noted that appellant’s accepted employment injuries resulted
from a motor vehicle accident and stated that such an accident was consistent with producing the
disc herniations and pain. He opined that appellant required surgery as a result of residuals of his
accepted employment injuries. While Dr. Gornet opined that appellant’s current condition was
due to his accepted employment injury and offered an opinion that the motor vehicle accident
9

George Servetas, 43 ECAB 424, 430 (1992).

10

James Mack, 43 ECAB 321 (1991).

5

could result in the type of injuries appellant exhibited, he did not offer any medical reasoning
explaining how and why he felt appellant’s condition was employment related rather than
age-related degenerative disc disease. The Board notes that electrodiagnostic studies did not
support radiculopathy from appellant’s cervical spine, but instead found chronic moderate
bilateral median neuropathies at the carpal tunnels as well as left ulnar neuropathy. Furthermore,
as Dr. Gornet was on one side of the conflict that Dr. Mishkin resolved, the additional report
from Dr. Gornet is insufficient to overcome the weight accorded Dr. Mishkin’s report as the
impartial medical specialist or to create a new conflict with it.11 The Board finds that appellant
has not met his burden of proof in establishing any continuing disability or medical residuals
resulting from his June 6, 1994 employment injury.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits. The Board further finds that appellant has not met his burden of proof in
establishing any continuing disability due to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

11

Dorothy Sidwell, 41 ECAB 857, 874 (1990).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE NAVY,
CHARLESTON NAVAL SHIPYARD,
Charleston, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1248
Issued: May 15, 2017

Case Submitted on the Record

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

JURISDICTION
On May 25, 2016 appellant filed a timely appeal from a January 6, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly denied concurrent compensation for wage loss and
a schedule award.
FACTUAL HISTORY
OWCP accepted that on March 26, 1986 appellant, then a 30-year-old shipfitter, filed a
traumatic injury claim (Form CA-1) alleging a left knee contusion/sprain and a partial meniscal
tear as a result of a fall onto a bulkhead while in the performance of duty.
1

5 U.S.C. § 8101 et seq.

On February 13, 1987 OWCP issued a schedule award for four percent permanent
impairment of appellant’s left lower extremity. It placed appellant on the periodic roll for
disability effective June 16, 2002 and continued to receive payments on the periodic rolls.
On February 17, 2015 appellant requested a lump-sum schedule award for permanent
impairment of his right lower extremity.
In a report dated March 12, 2015, Dr. Walter Blessing, a Board-certified surgeon, noted
that he had amputated appellant’s lower right leg on September 24, 2014 due to necrotic tissue
and infection as a result of a badly ulcerated and infected right foot. He noted that maximum
medical improvement was achieved in January 2015. Dr. Blessing noted that appellant had no
preexisting conditions of the right foot or lower right leg prior to a fall on September 13, 2014.
He opined that the fall had occurred due to appellant’s previously-injured left knee collapsing
while appellant was climbing steps. Dr. Blessing noted that an amputation of the right foot and
below the knee of the right leg caused 100 percent permanent impairment.
By decision dated May 11, 2015, OWCP expanded the accepted conditions to include an
ulcer, contusion, and osteomyelitis of the right foot.
OWCP forwarded Dr. Blessing’s report to a district medical adviser (DMA) for review.
In a May 21, 2015 report, the DMA noted that table 16-16 of the sixth edition American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) provided for
50 to 100 percent permanent impairment for amputation below the knee depending upon the
location of the amputation. The DMA rated appellant’s permanent impairment at 70 percent.
By letter dated June 2, 2015, OWCP informed appellant that it had determined permanent
impairment of 70 percent for the right lower extremity. It noted that, because he was currently
receiving periodic compensation payments, it was removing his request for a schedule award
from its tracking system as of that date.
In a record of a telephone conversation on June 2, 2015, an OWCP representative
explained to appellant that schedule awards could not be paid concurrently with his
compensation for wage loss. Appellant contended, on the other hand, that the “National Office”
had told him that a schedule award could be paid concurrently.
By letter dated June 5, 2015, appellant sent OWCP a copy of 5 U.S.C. § 8107. (R:
6/8/2015) He claimed that this section of the statute provided that he could receive compensation
for wage loss and a schedule award concurrently. Alesia Rogers, who claimed assisting
appellant witness, wrote a postscript to the letter claiming that an OWCP representative had
informed appellant that section 8107 “overrides any policy or district interpretation; therefore,
the scheduled awards for the foot and the leg should be paid.”
In a record of a telephone conversation on June 8, 2015, an OWCP representative
explained to appellant that 5 U.S.C. § 8108 prohibited concurrent payments of schedule awards
and wage-loss compensation. Appellant replied by recalling the details of his case history and
medical procedures.
In a record of a telephone conversation on June 10, 2015, an OWCP representative
explained that the procedure manual prohibited concurrent payments of schedule awards and
2

wage-loss compensation. Appellant replied by referencing a federal court decision that he felt
supported his position, stating that the foot and leg were two separate body parts. OWCP’s
representative explained that federal courts do not have jurisdiction over determinations of
FECA entitlement and that, in this case, the foot and leg were both considered part of the lower
extremities, not separate body parts. He further explained that consequential injuries were
considered to be part of the same claim, rather than a separate claim. Appellant requested
written correspondence explaining OWCP’s position.
By letter dated June 11, 2015, OWCP cited the FECA procedure manual in order to
explain why schedule awards and wage-loss compensation were not payable concurrently, but
were payable consecutively.
On September 29, 2015 appellant responded, arguing that because his original work
injury was to his left knee and leg, his claim for a schedule award should be payable concurrently
with wage-loss compensation, as the request for a schedule award related to his right foot and
leg.
In a notice of proposed decision dated November 4, 2015, OWCP found that FECA, the
FECA procedure manual, and Board precedent explicitly barred claimants from receiving a
schedule award concurrently with wage-loss compensation. It afforded appellant 30 days to
submit additional argument or evidence.
Appellant replied on November 24, 2015. He reiterated his argument that a schedule
award was payable concurrently with wage-loss compensation because his right leg had been
amputated, while his original claim had been accepted for an injury to the left foot and leg.
By decision dated January 6, 2016, OWCP finalized its proposed decision denying
appellant concurrent payment of a schedule award for his right leg amputation and wage-loss
compensation under the same claim number.
LEGAL PRECEDENT
Pursuant to FECA,2 the term disability means incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury.3
Section 8107 of FECA4 authorizes the payment of schedule awards for the loss or loss of
use, of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment.5

2

Id.

3

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB 38
(1948); 20 C.F.R. § 10.5(17).
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

3

Disability is not synonymous with physical impairment, which may or may not cause
incapacity to earn wages.6 An employee who has a physical impairment causally related to his
federal employment, but who nonetheless has the capacity to earn the wages he was receiving at
the time of injury, has no disability as that term is used in FECA and is not entitled to
compensation for loss of wage-earning capacity.7 When, however, the medical evidence
establishes that the residuals of an employment injury are such that, from a medical standpoint,
they prevent the employee from continuing in his employment, he is entitled to compensation for
any loss of wage-earning capacity resulting from such incapacity.8 Compensation for loss of
wage-earning capacity is based upon loss of the capacity to earn, not upon actual wages lost.9
A schedule award is payable consecutively but not concurrently, with an award for wage
loss for the same injury.10 A schedule award for one injury may be paid concurrently with
compensation for wage loss paid for another injury, as long as the two injuries do not involve the
same part of the body.11
ANALYSIS
On February 17, 2015 appellant requested a schedule award for his right lower extremity.
In his March 12, 2015 report, Dr. Blessing noted that he had amputated appellant’s lower right
leg on September 24, 2014 due to necrotic tissue and infection as a result of a badly ulcerated
and infected right foot. He noted that appellant had no preexisting conditions in the right foot or
lower right leg prior to a fall on September 13, 2014, and that the fall had occurred due to
appellant’s previously-injured left knee collapsing while appellant was climbing steps. On
May 11, 2015 OWCP accepted the right leg conditions as consequential injuries to the accepted
left leg injury under OWCP No. xxxxxx645. By letter dated June 2, 2015, OWCP informed
appellant that, although he established 70 percent permanent impairment to the right lower
extremity, as due to the accepted condition, as was currently receiving periodic compensation
payments under OWCP File No. xxxxxx645 it was removing his request for a schedule award
from its tracking system as of that date.
Appellant alleged that he was entitled to receive schedule award benefits and wage-loss
benefits simultaneously because his schedule award was for an injury to the left lower extremity,
while his schedule award claim was for injury to his right lower extremity. By decision dated
6

See Fred Foster, 1 ECAB 21 at 24-25 (1947) (finding that FECA provides for the payment of compensation in
disability cases upon the basis of the impairment in the employee’s capacity to earn wages and not upon physical
impairment as such).
7

See Gary L. Loser, 38 ECAB 673 (1987) (although the evidence indicated that appellant had sustained an
impairment of his legs because of work-related thrombophlebitis, it did not demonstrate that his condition prevented
him from returning to his work as a chemist or caused any incapacity to earn the wages he was receiving at the time
of injury).
8

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

9

George W. Coleman, 38 ECAB 782 (1987).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.4.(a)(3) (February 2013).
11

Id. at Chapter 2.808.4(a)(5). See Michael J. Biggs, 54 ECAB 595, 596-97 (2003).

4

January 6, 2016, OWCP denied appellant’s concurrent payment of a schedule award for his right
leg amputation and wage-loss compensation under the OWCP No.
Simultaneous receipt of schedule award and wage-loss compensation is barred while
consecutive payment of benefits is permitted.12
The Board has previously held, in a factually similar case involving consequential injury
and the current payment of wage-loss and schedule award benefits, L.S.,13 where the claimant
had sustained injury to his right knee and right shoulder. He received schedule awards for
permanent impairment to his right leg and right arm. The claimant subsequently submitted a
claim for wage-loss compensation for a consequential left knee condition. However, the period
claimed overlapped with the period of the schedule award paid for the right knee and shoulder.
The Board found that such award of benefits was prohibited as a dual benefit for the same injury
as it was well established under section 8116(a) that the claimant could not receive schedule
award compensation concurrently with wage-loss compensation benefits arising from the same
injury.14
Appellant argues that the injuries to his left and right legs were entirely separate incidents
and that, as such, simultaneous compensation for wage loss and a schedule award were
appropriate. The Board notes that in the case of Charles R. Hollowell,15 the Board found that to
constitute the kind of intervening cause which will break the chain of causation of an earlier
injury, the second incident must be competent to cause the disabling condition without reference
to the earlier injury, and, moreover, there must be evidence to sustain a finding that such second
incident did cause the condition. The Board noted that if the result of the second incident could
not have developed without the presence of damage from the primary employment-related
incident, that primary incident is not exonerated.
In the case before the Board, Dr. Blessing noted that appellant had no preexisting
conditions of the right foot or lower right leg prior to a fall on September 13, 2014, and opined
that the fall had occurred due to appellant’s previously-injured left knee collapsing while
appellant was climbing steps. The primary incident therefore caused the second incident and
injury. The second incident did not stand alone. As such, OWCP properly accepted appellant’s
right leg conditions as consequential to the left leg injury. Dr. Blessing’s opinion clearly opined
that the latter injurious incident to the right leg occurred due to his accepted left leg condition.
The Board finds that OWCP properly denied concurrent compensation for wage loss and
a schedule award, as the consequential injury to appellant’s right knee for which he sought a
schedule award was in fact as a result of the same injury for which he was already in receipt of
wage-loss compensation.

12

Supra note 10.

13

Docket No. 08-1270 (issued July 2, 2009).

14

Id.; see also Dale Mackelprang, 55 ECAB 174 (2003); Donna Y, Harris, Docket No. 00-686 (issued
July 15, 2002).
15

8 ECAB 352 (1955).

5

CONCLUSION
OWCP properly denied concurrent compensation for wage loss and a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Sheridan, WY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-884
Issued: December 1, 2010

Case Submitted on the Record

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

JURISDICTION
On February 17, 2010 appellant timely appealed the January 8, 2010 merit decision of the
Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant is entitled to wage-loss compensation from April 13, 2009.
FACTUAL HISTORY
Appellant, a 40-year-old nurse, has an accepted claim for lumbosacral strain, L4-5 disc
herniation and displaced lumbar intervertebral disc at L5-S1, which arose on
September 24, 2004.1 He underwent Office-approved surgery on June 28 and September 27,
2005 and January 8, 2007. Appellant’s latest surgery involved placement of an artificial disc at
1

Appellant injured his low back while transferring a patient.

L5-S1. The Office paid appellant appropriate wage-loss compensation. Effective April 14,
2007, it terminated his wage-loss compensation because his orthopedic surgeon, Dr. John D.
Miles, a Board-certified orthopedic surgeon, released him to return to work without restrictions.2
In September 2007, appellant transferred to the employing establishment’s medical center in
Columbia, MO, where he worked full-time, regular duty as a staff nurse. The Office accepted
that he sustained a recurrence of disability beginning November 6, 2008. In a December 9, 2008
report, Dr. Miles advised that appellant could continue with full unrestricted duty at work.
On April 9, 2009 appellant was seen by Dr. Jack F. Fennel, an employing establishment
staff physician and family practitioner.3 Dr. Fennel removed appellant from duty until he could
be evaluated by a physiatrist and neurosurgeon. His April 9, 2009 progress notes indicated that
appellant walked into the office that day requesting additional osteopathic manipulative therapy
(OMT), which Dr. Fennel had performed less than a week ago. Dr. Fennel noted that appellant
had chronic low back pain and an artificial disc in his lumbar spine. He had provided OMT for
appellant’s upper back and ribs with good relief, but occasionally the relief would last less than a
day and appellant would return for more treatment. Because of this recurring pattern, Dr. Fennel
thought perhaps there was something more than degenerative disc disease and somatic
dysfunction. He noted that an earlier report indicated a displacement of appellant’s artificial
disc. Dr. Fennel thought it was important to get a neurosurgery consultation and referred
appellant to physical medicine and rehabilitation to determine the cause of his recent flare-up and
the acute chronic problems he experienced over the past eight months. As to work restrictions,
he noted “absolutely NO lifting” until appellant was seen by a neurosurgeon and the report was
reviewed. Appellant also required light duty, four hours per day due to frequent position
changes required for pain management. When not on light duty, Dr. Fennel recommended
absolute bed rest. He further indicated that, if appellant could not tolerate light duty or if he
reported a worsening of his pain prior to the recommended consultation, then he should be on
complete bed rest. Dr. Fennel also expressed concern about appellant driving while on his
current medications. He advised appellant not to drive until one and a half hours after taking his
prescribed medications.
On April 15, 2009 the employing establishment offered appellant a temporary part-time,
light-duty assignment based on Dr. Fennel’s work restrictions.
On April 16, 2009 appellant was seen by Dr. Marshall Cress, a neurosurgery resident,
who indicated that further surgical intervention would not likely provide significant relief.
Dr. Cress recommended medical management and released appellant to return to work “as
tolerated.” Later that same day appellant was treated in the MRMC emergency room for low
back pain.
In a follow-up note dated April 17, 2009, Dr. Fennel indicated that the neurosurgery
consult was “totally unhelpful.” He took appellant “completely off work” and put him on bed
2

Effective February 17, 2007, appellant resigned from his position at the VA Medical Center in Sheridan, WY.
He resumed work on March 17, 2007 at the Moberly Regional Medical Center (MRMC), in Moberly, MO.
3

Although Dr. Fennel worked for the employing establishment, appellant identified him as his primary care
physician.

2

rest for the next 96 hours. Dr. Fennel stated that appellant needed a complete and thorough
evaluation to determine if his artificial disc was out of place and putting pressure on the neural
foramen. He also administered three trigger point injections.
Appellant was next seen on April 21, 2009 by Dr. Randall D. Smith, a Board-certified
physiatrist,4 who indicated that appellant had a medical condition that would worsen with work.
Dr. Smith relieved appellant of all work for a two-week period beginning April 22, 2009.5
On April 22, 2009 appellant filed a claim for compensation for the period April 12
to 25, 2009. The Office paid wage-loss compensation for April 15 to 25, 2009.6 In a June 2,
2009 letter, it advised appellant that the evidence did not support that he was completely unable
to work from April 12 to 14, 2009. The Office explained that appellant was not scheduled to
work April 12 or April 14, 2009 and there was no medical evidence to support an increase in
disability beginning April 13, 2009. Appellant was afforded 30 days to submit additional
evidence.
In a decision dated July 9, 2009, the Office denied wage-loss compensation for April 12
to 14, 2009. By decision dated January 8, 2010, the Branch of Hearings & Review affirmed the
Office’s July 9, 2009 decision.7
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.8 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his work-related
injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such
an assignment are altered so that they exceed his established physical limitations.9 Moreover,
when the claimed recurrence of disability follows a return to light-duty work, the employee may

4

Like Dr. Fennel, Dr. Smith is an employee of the VA Medical Center in Columbia, MO, the same facility where
appellant is currently employed.
5

Dr. Smith extended appellant’s work restrictions on May 4, 2009, and extended them for another three weeks on
May 27, 2009.
6

The Office continued to pay wage-loss compensation through June 28, 2009. Appellant returned to work in a
full-time, limited-duty capacity on June 29, 2009.
7

At the November 5, 2009 hearing appellant’s counsel advised the hearing representative that his client was only
seeking compensation for April 13, 2009. Appellant was not scheduled to work on either Sunday, April 12, 2009 or
Tuesday, April 14, 2009.
8

20 C.F.R. § 10.5(x)(2009).

9

Id.

3

satisfy his burden of proof by showing a change in the nature and extent of the injury-related
condition such that he was no longer able to perform the light-duty assignment.10
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he has the burden of establishing that the recurrence of disability is causally
related to the original injury.11 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.12 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.13
ANALYSIS
The Office paid wage-loss compensation beginning April 15, 2009, but did not
compensate appellant for his absence from work on April 13, 2009. Dr. Fennel examined
appellant on April 9, 2009 and imposed restrictions of “absolutely NO lifting” and four hours of
light duty. He imposed these restrictions because of appellant’s recent flare-up of back pain,
which Dr. Fennel suspected might be due to displacement of the artificial disc at L5-S1. Because
Dr. Fennel was a family practitioner, he recommended further consultation with a neurosurgeon
and a physiatrist in order to determine the exact cause of appellant’s ongoing back complaints.
On April 15, 2009 the employing establishment offered appellant a part-time, light-duty
assignment based on Dr. Fennel’s restrictions. However, there is no indication that a similar
offer was extended to appellant on or before April 13, 2009.
The Board finds that Dr. Fennel’s April 9, 2009 progress notes are sufficient to establish
that appellant was disabled from performing his regular duties as a staff nurse on April 13, 2009;
and the disability was causally related to appellant’s October 24, 2004 employment injury and
subsequent surgeries. What appears to have prevented an earlier finding of entitlement was a
misinterpretation of the date of Dr. Fennel’s report. Although his findings were based on an
April 9, 2009 examination, Dr. Fennel did not transcribe and electronically sign his progress
notes until April 14, 2009. One version of the computer-generated report begins with “NOTE
DATED: 04/14/2009.” However, three lines down the report is the notation “VISIT:
04/09/2009.” Thus, it appears at first blush that the report was based on an April 14, 2009
examination, rather than April 9, 2009. The Board finds that appellant is entitled to wage-loss
compensation for April 13, 2009. Accordingly, the hearing representative’s January 8, 2009
decision will be reversed.

10

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

11

20 C.F.R. § 10.104(b); Helen K. Holt, 50 ECAB 279, 382 (1999); Carmen Gould, 50 ECAB 504 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
12

See Helen K. Holt, supra note 11.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

4

CONCLUSION
Appellant established that he was disabled from performing his regular nursing duties on
April 13, 2009.
ORDER
IT IS HEREBY ORDERED THAT the January 8, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 1, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
D.T., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Mount Clemens, MI, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 09-509
Issued: September 18, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On December 12, 2008 appellant filed a timely appeal from the October 15, 2008
nonmerit decision of the Office of Workers’ Compensation Programs which denied his request
for reconsideration, and from a September 11, 2008 decision finding that he failed to establish
his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the appeal.
ISSUES
The issues are: (1) whether appellant has met his burden of proof in establishing that he
sustained an injury in the performance of duty on April 24, 2008; and (2) whether the Office
properly refused to reopen appellant’s case for further review of the merits under 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On April 28, 2008 appellant, then a 57-year-old mail handler, filed a recurrence of
disability claim, alleging that he sustained a recurrence of his previously accepted left knee
condition. He alleged that he had a total left knee replacement and was on permanent light duty
since November 1, 2005. On April 24, 2008 appellant was sitting while on a coffee break and,

when he rose to continue working, his right knee gave out under his weight. He stopped work on
June 10, 2008.1 The Office determined that the claim should be adjudicated as a new traumatic
injury claim.2
In a June 9, 2008 report, Dr. Wayne Gunckle, a Board-certified orthopedic surgeon, saw
appellant for his right knee, following a June 21, 2005 twisting injury at work. He examined
appellant and found internal derangement to the right knee and a probable tear of the medial
meniscus. Dr. Gunckle noted that x-rays of the right knee revealed some mild medial joint space
narrowing but there was still good preservation of the lateral and patellofemoral joint space.
There was no abnormal calcification or loose bodies present. Dr. Gunckle recommended a
magnetic resonance imaging (MRI) scan. He placed appellant off work because his pain
significantly increased when he performed any type of standing or twisting. The Office also
received May 23, 2008 physical therapy notes.
A June 12, 2008 MRI scan of the right knee read by Dr. Jerald Henry, a Board-certified
diagnostic radiologist, revealed an articular surface tear through the posterior horn of the medial
meniscus, degenerative changes of the anterior horn of the medial meniscus and the lateral
meniscus. Dr. Henry noted moderate tricompartmental osteoarthrosis, moderate-sized joint
effusion and a small loose body.
In a June 18, 2008 report, Dr. Gunckle confirmed that appellant had evidence of a torn
medial meniscus of the right knee. He recommended an arthroscopic evaluation and placed
appellant off work pending approval of surgery.
By letter dated August 6, 2008, the Office informed appellant of the evidence needed to
support his claim. It requested that he submit additional evidence within 30 days.
By decision dated September 11, 2008, the Office denied the claim. It found that the
medical evidence did not establish that his right knee condition was causally related to the
April 24, 2008 work incident.
On September 30, 2008 appellant requested reconsideration. He did not submit any
additional evidence.
By decision dated October 15, 2008, the Office denied appellant’s request for
reconsideration without a review of the merits on the grounds that it neither raised a substantial
legal question nor included new and relevant evidence.

1

The record contains two recurrence claim forms. The second claim form indicates that appellant stopped work
on June 10, 2008.
2

In a May 2, 2008 memorandum, the Office noted that appellant had a prior no time loss claim for an injury to
the right knee on June 21, 2005, accepted for right knee sprain. Appellant had a separate claim for an injury to the
left knee under claim, File No. xxxxxx025 which was accepted for a medial meniscus tear, left knee villonodular
synovitis and a left knee sprain. The Office noted that appellant had a left knee replacement on November 1, 2005
and returned to full-time limited duty on May 31, 2006. These other claims are not presently before the Board.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.5 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
An employee may establish that the employment incident occurred as alleged, but fail to
show that his disability and/or condition related to the employment incident.
An employee must submit a physician’s rationalized medical opinion on the issue of
whether the alleged injury was caused by the employment incident.7 An award of compensation
may not be based on surmise, conjecture, speculation or appellant’s belief of causal relationship.8
Neither the fact that the condition became apparent during a period of employment nor
appellant’s belief that the employment caused or aggravated his condition is sufficient to
establish causal relationship.9
ANALYSIS -- ISSUE 1
Appellant alleged that on April 24, 2008 he sustained a right knee injury when he rose
after sitting during a coffee break. By decision dated September 11, 2008, the Office denied his
claim on the grounds that the medical evidence did not establish that his knee condition was
causally related to the accepted work incident. The evidence supports that appellant stood up on
April 28, 2008, as alleged.

3

5 U.S.C. §§ 8101-8193.

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
6

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

7

Gary L. Fowler, 45 ECAB 365 (1994).

8

John D. Jackson, 55 ECAB 465 (2004); William Nimitz, 30 ECAB 567 (1979).

9

Phillip L. Barnes, 55 ECAB 426 (2004); Jamel A. White, 54 ECAB 224 (2002).

3

The Board finds that the medical evidence of record is insufficient to establish that the
employment incident caused an injury. The medical reports of record do not establish that the
incident at work caused his right knee condition. The medical evidence provides no reasoned
opinion by a physician explaining how the employment incident of April 24, 2008 caused or
aggravated the diagnoses torn medial meniscus.10
Dr. Gunckle, a treating Board-certified orthopedic surgeon, noted on June 9, 2008 that he
had treated appellant for a prior left knee condition. He noted a history that on June 21, 2005
appellant twisted his right knee while at work for which he saw appellant intermittently.
Dr. Gunckle noted internal derangement of the right knee and a probable tear of the medial
meniscus. He also noted that there was some mild medial joint space narrowing and placed
appellant off work. On June 18, 2008 Dr. Gunckle recommended arthroscopic surgery. The
June 12, 2008 MRI scan from Dr. Henry, showed articular surface tear through the posterior horn
of the medial meniscus and degenerative changes of the anterior horn of the medial and lateral
meniscus. The Board notes that Dr. Gunckle did not provide a report addressing how appellant’s
right knee condition was related to the April 24, 2008 incident. Neither Dr. Gunckle nor
Dr. Henry provided any opinion on the cause of appellant’s right knee condition.11 This renders
the medical evidence of reduced probative value.
Appellant also submitted a report from a physical therapist; however, health care
providers such as physical therapists are not physicians as defined under the Act. This does not
constitute probative medical evidence.12 In the absence of a medical report providing a reasoned
medical opinion on causal relationship between a diagnosed condition and the rising incident on
April 24, 2008, appellant did not meet his burden of proof. The mere fact that appellant’s right
knee condition manifest itself during a period of employment is not sufficient to establish causal
relation.13
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,14 the Office may reopen a case for review on the merits
in accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written

10

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
11

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
12

See Jane A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C. § 8101(2). This subsection defines the term
“physician.” See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).
13

See Donald W. Wenzel, 56 ECAB 390 (2005).

14

5 U.S.C. § 8128(a).

4

application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”15
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.16
ANALYSIS -- ISSUE 2
Appellant’s September 30, 2008 request for reconsideration did not allege or
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. Consequently, appellant is not entitled to a review of the merits of his claim based on the
first and second above-noted requirements under section 10.606(b)(2).
Furthermore, appellant did not submit any relevant or pertinent evidence to support
whether he sustained an injury on April 24, 2008 based on the third above-noted requirements
under section 10.606(b)(2). The Board notes that the underlying issue is medical in nature.
Appellant did not submit any physician’s opinion addressing the April 24, 2008 incident in
which he rose to return to work after a coffee break.
Since appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(2), he is
not entitled to a merit review of his claim. The Office properly denied his request for
reconsideration.
On appeal, appellant asserts that his condition is a recurrence and not a new injury. He
specifically alleges that his duties at work for the past 27 years are the primary reason for his
current knee condition. The Board notes that the current claim before the Board is for a
traumatic injury on April 24, 2008. Appellant may file a separate claim for an occupational
injury, defined by 20 C.F.R. § 10.5(q) as a condition produced by the work environment over a
period longer than a single workday or shift.

15

20 C.F.R. § 10.606(b).

16

Id. at § 10.608(b).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty on April 24, 2008. The Board also finds that the
Office properly refused to reopen his case for further review of the merits under 5 U.S.C.
§ 8128(a).17
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 15 and September 11, 2008 are affirmed.
Issued: September 18, 2009
Washington, DC

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

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

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

17

Appellant submitted additional evidence with his appeal. However, the Board may not consider this evidence
as its review of the case is limited to the evidence of record which was before the Office at the time of its final
decision. See 20 C.F.R. § 501.2(c).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.U., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ZABLOCKI MEDICAL CENTER,
Milwaukee, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1941
Issued: April 16, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 30, 2008 appellant filed a timely appeal from the merit decision of the Office of
Workers’ Compensation Programs dated January 7, 2008 finding that appellant was not entitled
to a schedule award of greater than six percent for her right upper extremity. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has greater than six percent impairment to her right upper
extremity, for which she received a schedule award.
FACTUAL HISTORY
This case was previously before the Board.1 In a September 25, 2007 decision, the Board
found that there was an unresolved conflict in the medical evidence between appellant’s treating
1

Docket No. 07-1221 (issued September 25, 2007). On May 27, 2003 appellant, then a 59-year-old medical
support assistant, sustained an injury to her neck and right shoulder when the elevator she was riding stopped

physician, Dr. Subbanna Jayaprakash, a Board-certified physiatrist, who found that appellant had
a 16 percent impairment to her right upper extremity2 and the Office medical adviser, who found
that appellant had no more than a 6 percent impairment of the right upper extremity.3
Accordingly, the Board found that the case was not in posture for decision and remanded the
case for referral to an impartial medical specialist to resolve the conflict in evidence and for the
Office to then issue a new decision. The facts and the circumstances of the case as set forth in
the Board’s prior decisions are incorporated herein.
On remand, by letter dated November 6, 2007, the Office referred appellant to
Dr. Norman Bettle, a Board-certified neurologist, for an impartial medical examination. In a
report dated December 4, 2007, Dr. Bettle noted that appellant’s nerve conduction
study/electromyography was essentially normal, not revealing evidence for neuropathy, brachial
plexopathy or C5-T1 motor radiculopathy on the right upper extremity. He also noted normal
tone in both upper and lower extremities and in the cervical paraspinal muscles, with no atrophy
noted in the neck/shoulder region and proximal and distal arm. Dr. Bettle found 5/5 strength in
the bilateral deltoid, biceps, triceps pronator teres, abductor pollicis brevis (APB) and abductor
digiti minimi (ADM) muscles. He opined that appellant had a four percent impairment of the
right upper extremity. In reaching this conclusion, Dr. Bettle noted that appellant continued to
have sensory symptoms consistent with a right C6 sensory radiculopathy but noted that, on
examination and electromyogram, no evidence for a motor radiculopathy could be found. He
opined that the C6 nerve root could be affected due to reported mild to moderate neuroforaminal
narrowing at that level of the first magnetic resonance imaging (MRI) scan. Dr. Bettle then
opined that, pursuant to Tables 15-15, Table 15-17 and 16-13 of the A.M.A., Guides, an
impairment of four percent “seems most appropriate.”4 He indicated that he could not grant
motor impairment pursuant to the A.M.A., Guides.

abruptly. She stopped work the date of the accident and did not return. On November 25, 2003 the Office accepted
appellant’s claim for a cervical fracture and appropriate medical and compensation benefits were paid. Appellant
retired effective December 8, 2003.
2

In a medical report dated March 10, 2006, Dr. Jayaprakash indicated that appellant had residual weakness of the
C6 root affecting the right biceps and supinator and hand grip at 3+/4 (30 percent) loss as well as supraspinatus (30
percent). He also found residual numbness in the C6 distribution at 50 percent especially forearm and index finger
right. Dr. Jayaprakash determined appellant’s impairment due to sensory changes by multiplying 8 percent
(maximum upper extremity impairment due to sensory deficit or pain for the C6 spinal nerve pursuant to American
Medical Association, Guides to the Evaluation of Permanent Impairment 489, Table 16-13) by 50 percent (residual
numbness in the C6 distribution) to conclude that appellant had a 4 percent impairment based on sensory deficit. He
then calculated appellant’s impairment due to motor deficit as 12 percent. Combining these two figures,
Dr. Jayaprakash determined that appellant had a 16 percent impairment of the right upper extremity.
3

The Office medical adviser indicated in a report dated June 5, 2006, that, after reviewing appellant’s medical
record, she was entitled to a four percent impairment for pain/sensory deficit in the C6 nerve distribution on the
right. He further noted a one percent right upper extremity impairment based on Tables 15-15 combined with Table
15-17 of the A.M.A., Guides 424. The Office medical adviser then added an additional two percent impairment for
Grade 4 motor deficit in her right C6 nerve distribution according to A.M.A., Guides 424, Tables 15-16. He then
calculated appellant’s total impairment to his right upper extremity as six percent.
4

A.M.A., Guides 424, Table 15-15, 15-17; 489, Table 16-13.

2

By decision dated January 7, 2008, the Office determined that appellant was not entitled
to a schedule award for greater than six percent of the right upper extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations6 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, the Act 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. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.
In situations where there are 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 on a proper
factual background, must be given special weight.7
ANALYSIS
In the instant case, a conflict arose between appellant’s treating physician,
Dr. Jayaprakash, and the Office medical adviser with regard to the extent of impairment to
appellant’s right upper extremity. Dr. Jayaprakash found that appellant had 16 percent
impairment to the right upper extremity and the Office medical adviser determined that appellant
had 6 percent impairment. Pursuant to this Board’s decision dated September 25, 2007, the
Office referred appellant to Dr. Bettle for an impartial medical examination, who found that
appellant had a four percent impairment based on sensory deficit. This finding is actually
consistent with both the opinion of Dr. Jayaprakash and the Office medical adviser, who both
found that, based on the A.M.A., Guides, appellant had a four percent impairment based on
sensory deficit of the C6 nerve.8 However, unlike either Dr. Jayaprakash or the Office medical
adviser, Dr. Bettle determined that he could not grant motor impairment. His decision not to
grant an impairment rating for motor deficit was supported by normal muscle tone in appellant’s
extremities and in the cervical paraspinal muscles and no atrophy noted in the neck and shoulder
region and proximal and distal arm and no evidence of motor radiculopathy. Dr. Bettle also
found 5/5 strength in the bilateral deltoid, biceps, triceps pronator teres and APB and ADM
muscles.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Gloria J. Godfrey, 52 ECAB 486 (2001).

8

A.M.A., Guides 489, Table 16-13.

3

The Board finds that the special weight of the medical evidence rests with the wellrationalized opinion of the impartial medical specialist, Dr. Bettle, 9who opined that appellant
had four percent impairment to his right upper extremity was based on an accurate factual and
medical history and upon a proper interpretation of the A.M.A., Guides. Dr. Bettle determined
that appellant was entitled to four percent impairment based on sensory deficit but no impairment
due to motor deficit. Accordingly, appellant has not established that she is entitled to a schedule
award for greater than a six percent impairment of his right upper extremity.
CONCLUSION
The Board finds that appellant has no greater than six percent impairment to her right
upper extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 7, 2008 is affirmed.
Issued: April 16, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

9

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

4