United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., claiming as widow of E.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
EDWARDS AIR FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 06-1942
Issued: February 20, 2007

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 August 21, 2006 appellant filed a timely appeal of an Office of Workers’
Compensation Programs’ nonmerit decision dated June 5, 2006, denying her request for further
merit review of her claim. She also timely appealed a January 10, 2006 decision, which denied
modification of its June 1, 2005 decision finding that her husband’s death was not causally
related to his federal employment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over these issues.
ISSUES
The issues are: (1) whether the employee’s death on August 2, 2002 was causally related
to his federal employment; and (2) whether the Office properly refused to reopen appellant’s
case for further review of the merits of her claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 28, 2004 appellant, through her representative, filed a claim for survivors’
benefits, claiming that the death of her 67-year-old husband on December 31, 2003 was caused

or aggravated by conditions of his federal employment. The employee worked as a welder for
over 30 years at the employing establishment. The record reflects that he welded on Hydrazine,
Flourine, N204, GN2, He and propane systems, as well as vacuum systems for Liquid Nitrogen
and Liquid Oxygen. While welding, the employee breathed fumes from flux core rods and from
surfaces being welded. The record reflects that some welds were done over painted areas. The
employee was not provided with an air-ventilated helmet, although fume hoods were introduced
in approximately 1992 to reduce the inhalation of gases. He also worked inside chambers that
had been used to store liquid propellant and he welded carbon steel, stainless steel, aluminum,
cast iron and Inconel, a nickel-chromium-iron alloy. The employee stopped working for the
employing establishment in September 1994.1 He also smoked one pack of cigarettes per day for
41 years, quitting in December 2002.
In a January 5, 2004 certificate of death, the certifying medical examiner, Dr. Ric
Garrison, a Board-certified anatomic pathologist and clinical pathologist, listed the cause of
death as lung cancer with metastasis to the neck.
In an August 20, 2003 report, Dr. Gerald Markovitz, Board-certified in pulmonary
medicine and critical care, noted having examined the employee and reviewed his medical
records. He stated that the employee worked with different metals as a welder and worked in a
confined space. While the employee used a welding helmet, he was not provided with a
respirator in “40 years as a welder.” The employee had related that he welded inside a fuel
chamber, which while empty of fuel, contained residue that would heat up with welding and
produce fumes. The employee alleged that he was in excellent health until September 2002 and
exercised on a treadmill daily and had no breathing problems. Dr. Markovitz noted that in
September 2002 the employee was assigned to a welding chamber that was open-ended, windy
and 100 degrees. The employee related that he and a coworker developed a “hacking cough”
and in January 2003, he was diagnosed with pneumonia, and then squamous cell lung cancer and
given a year to live. Dr. Markovitz diagnosed metastatic squamous cell carcinoma, left total
pneumonectomy, mild to moderate obstructive airway disease and moderate restrictive defect
due to pneumonectomy. He opined that the “primary cause of [the employee’s] lung cancer was
probably his tobacco use. However, cigarette smoking may act with other co-carcinogens.”
Dr. Markovitz noted that, according to “Rosenstock’s textbook, the risk of lung cancer is
increased among welders.” He opined that the “welding fumes are thought to act synergistically
with the tobacco co-carcinogens.” Dr. Markovitz noted that there was a 20-year latency period
for developing lung cancer related to cigarettes with asbestos exposure and opined that this type
of latency period was probably true for welders. He noted that “[w]ith the knowledge that
welders have an increased risk of cancer, it would be speculative to state that he would have
developed lung cancer absent his occupation, despite his significant tobacco use.” Dr. Markovitz
opined that the employee’s cancer should be considered an industrial injury.

1

The Office accepted as factual that the employee’s private employment included working for Welder, Sverdup
Technology from October 1994 though January 2003 performing similar work to his previous federal employment
and also worked for a private company at the employing establishment after his retirement. The employee also
performed work as a welding instructor at a community college from September 1975 through June 1982 and taught
advanced welding.

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In an October 20, 2004 statement, the employing establishment advised the Office that it
did not have available information related to the employee’s exposure to potentially harmful
substances while employed.
On November 8, 2004 appellant’s representative submitted statements from the
employee’s coworkers. In an October 26, 2004 statement, Clifton Long, a welder, indicated that
from 1964 to 1994, the employee was exposed to fumes related to welding for an average of two
to four hours per day. In an October 28, 2004 statement, Phillip Counts, a coworker, indicated
that he had worked with the employee since 1980. He stated that appellant welded various types
of processes that included TIG (Tungsten Inert Gas), Arc, Silver solder brazing, and lead
soldering, as well as plasma coated components, plasma cutters and nonferrous metals. In an
October 28, 2004 memorandum, Ed Patterson, a coworker, noted that the employee had welded
on various types of metals. He also confirmed that the employee was exposed to gas hazards and
fumes and indicated that fume hoods were implemented in 1992 to reduce the risk of inhalation
factors.
On November 16, 2004 the Office requested that the Office medical adviser provide an
opinion on causal relationship.
In a report dated November 30, 2004, the Office medical adviser stated that the
employee’s smoking history was sufficient to account for his lung cancer. He explained that,
while it was known that welders had a greater risk for developing lung cancer, studies had not
identified a clear etiological agent. The Office medical adviser opined that there was insufficient
data to support a relationship between the employee’s death from lung cancer and factors of his
federal employment as a welder.
On December 7, 2004 the Office found that the report of the Office medical adviser
created a conflict with the opinion of Dr. Markovitz. The issue was whether welding fumes
acted synergistically with tobacco smoke to cause or contribute to the employee’s lung cancer.
On January 26, 2005 the Office referred the employee’s records, together with a statement of
accepted facts, and the medical record, to Dr. Donal F. Sweeney, Board-certified in internal
medicine with a subspecialty in pulmonary disease. He was selected as an impartial medical
specialist to resolve the conflict in opinion between Dr. Markovitz and the Office medical
adviser.
In a February 14, 2005 report, Dr. Sweeney reviewed the employee’s history of injury
and treatment and noted that the primary carcinogens involved were from the long-standing
history of cigarette smoking over at least a 40-year if not a 45-year period of time. “Cigarette
smoke has been clearly identified as containing carcinogenic agents for lung cancer and indeed
other cancers.” He further indicated that cigarette smoke was “particularly bad because people
directly inhale the smoke-bypassing the body’s natural filter in the nasal tissues and takes the
smoke directly into the lungs, as well as smoking during the waking hours on a continuous
basis.” Dr. Sweeney noted that, “If [the employee] had smoked but not welded, he would have
developed carcinoma of the lung. Whereas, if he had welded and not smoked, he would not have
developed carcinoma of the lung.” He further opined that “to a lesser degree of medical
probability, I would state that there is a five percent chance that the welding fumes may meet the

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conditions of acceleration as defined in your definition page of an occupational act, exposure or
occurrence that may have increased the speed of progression.”
By letter dated April 11, 2005, the Office requested that Dr. Sweeney clarify his report
with regard to whether he was able to identify the physiological mechanism or process by which
the employee’s exposure to welding fumes had accelerated his lung cancer. The Office
requested an explanation pertaining to the process, and how, in his medical opinion, it had
accelerated the lung cancer.
In a supplemental report dated April 24, 2005, Dr. Sweeney stated that the causation of
the carcinoma was clearly the smoking history and, that absent smoking, the employee would not
have developed lung cancer. He further advised that, “in medical terms, I do not know whether
the welding fumes played any role in his development of carcinoma of the lung. If there was any
role played, it was one of co-carcinogen, an aggravator or accelerator of the basic cause, that is,
cigarette smoking.” Furthermore, he explained that it was “almost impossible to completely
exclude this occupational exposure to welding fumes.”
By decision dated June 1, 2005, the Office denied appellant’s claim for benefits on the
grounds that the weight of the medical opinion evidence, which rested with Dr. Sweeney, did not
support that the employee’s death was causally related to his employment.
On November 14, 2005 appellant’s representative requested reconsideration and
submitted additional evidence. He contended that Dr. Sweeney did not rule out that welding
fumes affected appellant’s lung cancer. The additional evidence included materials on
respiratory medicine, and articles related to the relationship of gene mutations and welding and
lung cancer.
In a September 29, 2005 report, Dr. Markovitz provided further explanation to support
his opinion that the employee’s lung cancer was linked to welding fumes. He explained that
“welding fumes cause genetic mutations in the K-ras gene and that welding fumes cause a
different type of genetic mutation in human lung cancer by welding fumes, compared to asbestos
or compared to nonoccupational lung cancer (cigarette related).” Dr. Markovitz noted that this
was a “known physiological process by which welding fumes cause lung cancer by genetic
mutation.” He opined that the employee’s work activities as a welder exposed him to
carcinogens that acted as a co-carcinogen in the development of his lung cancer and that there
was a causal relationship between the specific and actual history of the employment conditions
of the employee and his lung cancer.
By letter dated November 29, 2005, the Office requested that Dr. Sweeney review the
September 29, 2005 report of Dr. Markovitz. The Office requested an opinion with regard to the
cause of the employee’s carcinoma and its relation to the fact that the employee smoked for a
long period of time, and an explanation regarding how he arrived at his opinion.
In a December 12, 2005 report, Dr. Sweeney addressed Dr. Markovitz’s report. He noted
that he had performed a medical literature search regarding welding fumes and lung cancer.
Dr. Sweeney stated that the employee always worked outside and not in enclosed spaces and that
the “epidemiological evidence for welding is slightly suggestive but it is not backed up by a

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broad consensus, as is the cigarette data.” Dr. Sweeney opined that welding fumes “possibly”
might cause lung cancer by mutation. He conducted research to determine if there were any
articles to support a specific cause concerning genetic mutations and lung cancer. However,
Dr. Sweeney was unable to “locate any new medical data that would back up Dr. Markovitz’
statement in any way that welding fumes cause cellular genetic mutation in lung cancer.”
Dr. Sweeney opined that Dr. Markovitz’ report was speculative and that he did not make a
specific case as to how welding fumes may be involved. Dr. Sweeney stated that there was “no
answer at this time” regarding the precise cause of the employee’s cancer. He reiterated that his
opinion has not changed.
By decision dated January 10, 2006, the Office denied modification of the June 1, 2005
decision.
By letter dated February 27, 2006, appellant’s representative requested reconsideration
and submitted additional evidence. He again contended that Dr. Sweeney’s report was flawed, in
that he incorrectly assumed that the employee always worked outside.
Appellant’s
representative noted that the record reflected that, for over 30 years, the employee worked in
confined spaces. Furthermore, he noted that Dr. Sweeney had attributed a five percent chance
that welding fumes may have contributed to the employee’s condition. In an October 1, 2004
statement, appellant described the employee’s 30 years of federal service. Various letters of
recommendations and statements from individuals who worked with the employee were also
submitted.
By decision dated June 5, 2006, the Office denied appellant’s request for reconsideration
without a review of the merits on the grounds that her request neither raised substantial legal
questions nor included new and relevant evidence and, thus, it was insufficient to warrant review
of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of his duty.2
Appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his employment. This
burden includes the necessity of furnishing rationalized medical opinion evidence of a cause and
effect relationship, based on a complete factual and medical background, showing causal
relationship. The opinion of the physician must be one of reasonable medical certainty and must
be supported by medical rationale.3
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

2

5 U.S.C. § 8102(a); see id. § 8133 (compensation in case of death).

3

Lois E. Culver, 53 ECAB 412 (2002).

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the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.4
When the Office obtains an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the specialist’s opinion requires clarification
or elaboration, the Office must secure a supplemental report from the specialist to correct the
defect in his original report.5 However, when the impartial specialist is unable to clarify or
elaborate on his original report or if his supplemental report is also vague, speculative or lacking
in rationale, the Office must submit the case record and a detailed statement of accepted facts to
a second impartial specialist for the purpose of obtaining his rationalized medical opinion on the
issue.6
ANALYSIS -- ISSUE 1
The Office properly found a medical conflict between the Office medical adviser and
Dr. Markovitz with regard to whether the employee’s welding duties caused or contributed to his
lung cancer, resulting in his death. The case was referred to Dr. Sweeney, selected as the
impartial medical specialist.7
In denying the claim, the Office relied on Dr. Sweeney’s impartial medical reports to
determine that the employee’s death was not caused or contributed to his federal employment.
However, the Board finds that Dr. Sweeney’s opinion is equivocal and speculative as to the
causal relationship between the employee’s death and his employment. The Board has held that
speculative and equivocal medical opinions regarding causal relationship have no probative
value.8 Dr. Sweeney did not provide a clear opinion ruling out the contribution of exposure to
welding fumes as a cause of the employee’s death. He stated that it was impossible to exclude
occupational exposure to welding fumes as a contribution factor, noting a five percent chance of
acceleration by such exposure.
When asked to clarify his opinion, Dr. Sweeney again stated that, if any role was played
by exposure to welding fumes, it was as an aggravator or accelerator impossible to exclude. The
Board notes that any contribution of employment factors is sufficient to establish the element of
causal relation.9 The question is whether the employee’s death was caused by his employment.
4

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

5

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
6

Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB 673 (1996).

7

See 5 U.S.C. § 8123(a).

8

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
9

Roger W. Griffith, supra note 6; Glenn C. Chasteen, 42 ECAB 493 (1991); Arnold Gustafson, 41 ECAB 131
(1989); Beth P. Chaput, 37 ECAB 158 (1985).

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Dr. Sweeney did not clearly resolve this issue. His December 12, 2005 report also suggests that
his opinion was based on an inaccurate factual history. He indicated that the employee always
worked outside in open areas, whereas the record indicates that the employee also worked in
enclosed areas and was not given a fume hood until 1992 to reduce the inhalation of gases.
Consequently, Dr. Sweeney’s reports are insufficient to resolve the medical conflict. For
this reason, the case will be remanded to the Office for further development of the medical
evidence. After such further development as the Office deems necessary, an appropriate
decision should be issued regarding this matter
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 10, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and remanded.10
Issued: February 20, 2007
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

10

In light of the Board’s disposition on the first issue, the second issue is moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stockton, CA, Employer
__________________________________________

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

Docket No. 07-1837
Issued: December 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 2, 2007 appellant filed a timely appeal of the April 25, 2007 merit decision of the
Office of Workers’ Compensation Programs, which found that he received an overpayment of
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the claim.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$2,436.99 for the period June 4 to July 1, 2001; and (2) whether appellant was at fault in
accepting the overpayment, and therefore, not entitled to a waiver of recovery.
FACTUAL HISTORY
Appellant, a 62-year-old distribution clerk, injured his right shoulder on December 2,
2000 when he tripped and fell at work. The Office initially accepted his claim for right shoulder
strain and contusion. However, subsequent examinations revealed a dislocation of the right
acromioclavicular (AC) joint and a torn rotator cuff. On March 30, 2001 appellant underwent

surgery to repair his right rotator cuff.1 The Office accepted the rotator cuff injury and
March 30, 2001 surgery as employment related. On May 25, 2001 the Office disbursed payment
in the amount of $4,323.63 for temporary total disability covering the period April 9 to
May 25, 2001.
In a letter dated July 12, 2001, the Office advised appellant that he would be paid wageloss compensation through July 1, 2001 based on his physician’s representation that he was
expected to return to restricted duty by July 2, 2001. A check in the amount of $3,016.85 was
disbursed July 20, 2001. The payment covered the period May 26 to July 1, 2001 and was
accompanied by a benefit statement describing the various rights and responsibilities associated
with the receipt of benefits.
On July 23, 2001 the employing establishment advised the Office that appellant had
returned to work. According to the employing establishment, appellant worked June 4 to 7,
2001, used a combination of annual and sick leave from June 8 to 29, 2001, and resumed work
thereafter. The employing establishment noted that appellant had received wage-loss
compensation from the Office for the same time period. Copies of appellant’s earnings and leave
statements were provided.
The Office calculated the amount of wage-loss compensation appellant was entitled to
receive for the period May 26 to June 3, 2001, and declared the monies paid for June 4 to July 1,
2001 an overpayment of benefits. On August 9, 2001 the Office advised appellant of its
preliminary determination that he received an overpayment of benefits in the amount of
$2,436.99 for the period June 4 to July 1, 2001. The Office also informed appellant that he was
considered to be at fault in accepting the overpayment. Appellant did not respond to the
preliminary determination, and the Office took no further action for almost six years.
On April 25, 2007 the Office issued a final decision finding that appellant was overpaid
$2,436.99 and was at fault in creating this overpayment.
LEGAL PRECEDENT -- ISSUE 1
If an employee returns to work and has earnings or is in a paid leave status, he is not
entitled to receive wage-loss compensation for temporary total disability for the same time
period.2
ANALYSIS -- ISSUE 1
Appellant worked from June 4 to 7, 2001, was in a paid leave status from June 8 to 29,
2001, and returned to work June 30, 2001. The employing establishment provided earnings and
leave statements verifying that appellant received his regular wages for the above-referenced
period. On July 20, 2001 the Office paid appellant wage-loss compensation in the amount of
$3,016.85 for temporary total disability from May 26 to July 1, 2001. Because appellant either
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At the time, appellant’s surgeon anticipated a return to work by July 2001.

2

See 20 C.F.R. § 10.401 (2007).

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worked or was in a paid leave status from June 4 to July 1, 2001, he was not entitled to receive
wage-loss compensation for this period. The record indicates that the Office paid appellant
$2,436.99 in wage-loss compensation that he was not entitled to receive. Accordingly, the
Office properly declared an overpayment of $2,436.99 for the period June 4 to July 1, 2001.
LEGAL PRECEDENT -- ISSUE 2
An overpayment must be recovered unless “incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat the purpose of the
[Federal Employees’ Compensation] Act or would be against equity and good conscience.”3 An
individual who is found at fault in either accepting or creating an overpayment is not eligible for
a waiver of recovery of overpayment.4 A benefits recipient will be found at fault if the
individual accepted a payment which he knew or should have known to be incorrect.5 Each
recipient is responsible for taking all reasonable measures to ensure that payments he receives
from the Office are proper.6
ANALYSIS -- ISSUE 2
Appellant is at fault with respect to the $2,436.99 overpayment because he accepted the
July 20, 2001 payment when he knew or should have known the amount was incorrect. The
accompanying benefit statement was sufficient to place appellant on notice that he was not
entitled to compensation for total disability following his return to work. The statement advised
appellant that in order to avoid an overpayment, he should immediately inform the Office when
he returned to either full-time or part-time work. The statement further advised appellant to
“return … any compensation checks received after you go back to work” Appellant had resumed
work several weeks prior to receiving the July 20, 2001 check and, therefore, based on the
accompanying instructions he should have know not to accept this latest payment from the
Office. The record establishes that appellant accepted a payment he knew or should have known
to be incorrect.7 Therefore, the Board finds that he was at fault with respect to the $2,436.99
overpayment. Because he is at fault, appellant is not entitled to a waiver of recovery of the
overpayment.
CONCLUSION
Appellant received an overpayment in the amount of $2,436.99 and was at fault in
accepting the overpayment.

3

5 U.S.C. § 8129(b) (2000).

4

20 C.F.R. § 10.433(a).

5

20 C.F.R. § 10.433(a)(3).

6

20 C.F.R. § 10.433(a).

7

20 C.F.R. § 10.433(a)(3).

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ORDER
IT IS HEREBY ORDERED THAT the April 25, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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Appearances:
Christopher D. Brown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-834
Issued: December 19, 2011

Case Submitted on the Record

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

JURISDICTION
On February 15, 2011 appellant, through his attorney, filed a timely appeal from a
November 18, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
rescinding an increased schedule award. 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 rescinded its finding that appellant was entitled to
an additional schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on August 27, 1984 appellant, then a 44-year-old carrier, sustained
a torn medial meniscus of the left knee in the performance of duty. On January 18, 1985
appellant underwent a partial medial meniscectomy.
By decision dated September 10, 1990, OWCP granted appellant a schedule award for a
54 percent permanent impairment of the left leg.2 The period of the award ran for 155.52 weeks
from May 25, 1990 to May 17, 1993. In decisions dated October 25, 2001 and October 27, 2005,
OWCP denied appellant’s request for an additional schedule award.3
In September 2003 appellant underwent a total replacement of the left knee. In July 2006
he underwent a revision of the left total knee replacement.
In an impairment evaluation dated February 11, 2008, Dr. Robert W. Macht, a surgeon,
advised that appellant had a 75 percent permanent impairment of the left lower extremity
according to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) (A.M.A., Guides). On May 30, 2008 Dr. Hampton Jackson, Jr., a
Board-certified orthopedic surgeon, opined that he had a 71 percent permanent impairment of the
left lower extremity under the fifth edition of the A.M.A., Guides.
On June 16, 2008 appellant, through his attorney, requested an increased schedule award.
On November 25, 2008 an OWCP medical adviser reviewed the evidence and found that
appellant had a 37 percent permanent impairment of the left lower extremity using Table 17-33,
page 547 of the A.M.A., Guides.
OWCP determined that a conflict existed between Dr. Jackson and OWCP’s medical
adviser regarding the extent of appellant’s injury-related impairment. It referred him to
Dr. Sankara Kothakota, a Board-certified orthopedic surgeon, for an impartial medical
examination. On January 30, 2009 Dr. Kothakota diagnosed post total left knee arthroplasty
with a satisfactory result. He stated:
“Examination of the left knee reveals very minimal swelling. [Appellant] can flex
up to 90 degrees or [a] little beyond that with no pain. There is very minimal
mediolateral and anteroposterior laxity. The only complaint [appellant] has is
occasional pain and ache particularly going up and down the steps. He does not
have any fixed flexion contracture. There is no evidence of any extension lag.
Both clinically and radiologically, implants are very satisfactorily aligned. Limb
lengths were equal on both sides. There is no neurologic deficit. There is a
minimal amount of wasting. Strength is between grade 4 and grade 5 in the left
lower extremity.”
2

OWCP amended the September 10, 1990 schedule award on August 4, 1992 to reflect that the award was for an
impairment of the left rather than right leg.
3

In a decision dated February 20, 1997, OWCP reduced appellant’s compensation to zero based on its finding
that his actual earnings as a distribution clerk fairly and reasonably represented his wage-earning capacity.

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Dr. Kothakota provided points for appellant’s slight pain on the stairs, range of motion,
minimal laxity. He stated that appellant had a 50 percent impairment of the left lower extremity
for a fair result from a total knee replacement according to Table 17-33, page 547 of the fifth
edition of the A.M.A., Guides.
On March 6, 2009 an OWCP medical adviser concurred with Dr. Kothakota’s finding
that appellant had a 50 percent left lower extremity impairment using Table 17-33 of the A.M.A.,
Guides. He stated:
“I reviewed the records and found the [OWCP medical adviser’s] report dated
May 25, 1990 that advises [a] 54 [percent] impairment of the lower extremity.
This was not given for the knee replacement, but rather for range of motion,
partial meniscectomy, degenerative arthritis, varus deformity of the knee and
anterior cruciate ligament deficiency. Therefore, the 50 [percent] impairment for
the knee replacement is not reflected in the previous award and should be in
addition to the previous award.”
On May 22, 2009 appellant’s attorney requested that an OWCP medical adviser review
the evidence and provide an opinion on the extent of impairment pursuant to the sixth edition of
the A.M.A., Guides. On June 6, 2009 the medical adviser determined that appellant had a 37
percent left lower extremity impairment for a total knee replacement with fair results using
Table 16-3, page 511 of the sixth edition of the A.M.A., Guides.
By decision dated August 12, 2009, OWCP denied appellant’s claim for an increased
schedule award. It found that the evidence did not establish that he had more than the amount
previously awarded for his left lower extremity impairment.
On August 14, 2009 appellant submitted a September 28, 2009 impairment evaluation
from an orthopedic committee composed of Dr. Henry M. Daniels, a surgeon, Dr. Daniel
Ignacio, a Board-certified physiatrist, and Dr. Peter S. Trent, a Board-certified orthopedic
surgeon.4 The physicians concluded that appellant had a 75 percent permanent impairment using
Table 17-33 on page 547 of the fifth edition of the A.M.A., Guides after finding that he had a
poor result from his total knee replacement.
On June 7, 2010 appellant’s attorney requested reconsideration. By decision dated
June 23, 2010, OWCP vacated the August 12, 2009 decision and found that he was entitled to an
additional schedule award for a 37 percent left lower extremity impairment. It noted that
OWCP’s medical adviser, in his March 6 and June 6, 2010 reports, applied the sixth edition of
the A.M.A., Guides and determined that appellant had a 37 percent impairment of the left lower
extremity due to his knee replacement. The medical adviser indicated that the impairment for the
knee replacement was not part of the prior award for a 54 percent left lower extremity
impairment.

4

On August 14, 2009 appellant, through his attorney, requested an oral hearing; however, on November 2, 2009
he withdrew his request. OWCP accepted the withdrawal of the request on November 16, 2009.

3

On September 10, 2010 OWCP requested that its medical adviser address whether
appellant was entitled to an award for an additional 37 percent impairment. It noted that it would
bring his total left lower extremity impairment to 91 percent.
On September 16, 2010 the medical adviser related that the issue was legal rather than
medical. He noted that the “factors that gave [the] 54 [percent] impairment are the same factors
that led up to the total knee arthroplasty and an award that supersedes the arthoplasty impairment
was already given.” The medical adviser reiterated that appellant currently had a 37 percent left
lower extremity impairment under the sixth edition of the A.M.A., Guides.
By decision dated November 18, 2010, OWCP rescinded its June 23, 2010 decision and
its finding that appellant was entitled to an additional schedule award. It found that he had
previously received an award for a 54 percent left lower extremity for the same injury and the
medical evidence currently established that he had no more than a 37 percent left lower
extremity impairment under the sixth edition of the A.M.A., Guides.
On appeal appellant’s attorney argued that OWCP did not meet its burden of proof to
rescind acceptance as it did not present new or different evidence. He maintained that OWCP
readjudicated the claim. Counsel further argued that the March 6 and June 9, 2009 reports from
the medical adviser established that appellant had a greater impairment than the 54 percent
previously awarded.
LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or application.5 The Board has
upheld OWCP’s authority to set aside or modify a prior decision and issue a new decision under
section 8128 of FECA.6 The power to annul an award, however, is not an arbitrary one and an
award for compensation can only be set aside in the manner provided by the compensation
statute.7
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud.8 It is well
established that, once OWCP accepts the claim, it has the burden of justifying the termination or
modification of compensation benefits.9 OWCP’s burden of justifying termination or
modification of compensation holds true where OWCP later decides that it has erroneously

5

5 U.S.C. § 8128; see also M.E., 58 ECAB 694 (2007).

6

John W. Graves, 52 ECAB 160 (2000).

7

See 20 C.F.R. § 10.610; Cary S. Brenner, 55 ECAB 739 (2004); Stephen N. Elliott, 53 ECAB 659 (2002).

8

L.C., 58 ECAB 493 (2007).

9

Andrew Wolfgang-Masters, 56 ECAB 411 (2005).

4

accepted a claim of compensation. In establishing that its prior acceptance was erroneous,
OWCP is required to provide a clear explanation of its rationale for rescission.10
A claim for an increased schedule award may be based on new exposure or, absent any
new exposure to employment factors, medical evidence indicating that the progression of an
employment-related condition has resulted in a greater permanent impairment than previously
calculated.11 In determining entitlement to a schedule award, preexisting impairment to the
scheduled member should be included. Any previous impairment to the member under
consideration is included in calculating the percentage of loss except when the prior impairment
is due to a previous work-related injury, in which case the percentage already paid is subtracted
from the total percentage of impairment.12
ANALYSIS
OWCP accepted that appellant sustained a torn medial meniscus of the left knee due to an
August 27, 1984 employment injury. On September 10, 1990 it granted him a schedule award
for a 54 percent permanent impairment of the left leg. In September 2003 appellant underwent a
total left knee replacement and subsequently filed a claim for an increased schedule award.
OWCP determined that a conflict arose between Dr. Jackson, appellant’s physician, and
OWCP’s medical adviser regarding the extent of impairment. It referred him to Dr. Kothakota
for an impartial medical examination.
When a case is referred to an impartial medical examiner for the purpose of resolving a
conflict, the opinion of such specialist, is sufficiently well rationalized and based on a prior
factual and medical background, must be given special weight.13 Dr. Kothakota properly
reviewed the evidence and discussed appellant’s complaints of occasional pain on stairs. On
examination he found minimal laxity of the left lower extremity with good strength and range of
motion. Dr. Kothakota determined that, under Table 17-33 of the fifth edition of the A.M.A.,
Guides, appellant had a 50 percent permanent impairment of the left lower extremity due to his
fair result following the total knee replacement. As his report was detailed and well rationalized,
it constitutes the weight of the evidence.14 An OWCP medical adviser applied the sixth edition
of the A.M.A., Guides to Dr. Kothakota’s conclusion. He found that a fair result from a total
knee replacement yielded a 37 percent impairment under Table 16-3 of the sixth edition of the
A.M.A., Guides.15
10

See Amelia S. Jefferson, 57 ECAB 183 (2005); Delphia Y. Jackson, 55 ECAB 373 (2004).

11

See James R. Hentz, 56 ECAB 573 (2005).

12

See Carol A. Smart, 57 ECAB 340 (2006); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards & Permanent Disability Claims, Chapter 2.808.7(a)(2) (March 2011).
13

See Willie M. Miller, 53 ECAB 697 (2002); Gloria J. Godfrey, 52 ECAB 496 (2001).

14

Id.

15

While OWCP’s medical adviser did not provide grade modifiers, as the most appellant could receive for a fair
result from a total knee replacement under Table 16-3 is 43 percent, less than the previously awarded 54 percent, the
failure of the medical adviser to apply grade modifiers does not alter the outcome of the case.

5

In an impairment evaluation dated September 28, 2009, Drs. Daniels, Ignacio and Trent
applied the fifth edition of the A.M.A., Guides and advised that appellant had a 75 percent left
lower extremity impairment. Their opinions, which are based on an out-of-date edition of the
A.M.A., Guides, are insufficient to overcome the weight accorded Dr. Kothakota’s opinion as
the impartial medical examiner.16
The evidence establishes that appellant has no more than a 37 percent left lower
extremity impairment under the sixth edition of the A.M.A., Guides. In a decision dated June 23,
2010, however, OWCP granted him a schedule award for an additional 37 percent left lower
extremity impairment even though it had previously granted him a schedule award for a 54
percent left lower extremity impairment. Subsequently, by decision of November 18, 2010,
OWCP rescinded it finding that appellant was entitled to an additional schedule award. It
provided a clear explanation for its rescission. OWCP found that under its procedures any prior
impairment to a member was included in calculating the percentage of the loss of a member
unless the impairment was due to a previous work injury.17 Board case law also provides that
any previous impairment to the member under consideration is included in calculating the
percentage of loss except when the prior impairment is due to a previous work-related injury, in
which case the percentage already paid is subtracted from the total percentage of impairment.18
OWCP determined that the medical evidence established that appellant had no more than a 37
percent left lower extremity impairment, and thus rescinded its finding that he was entitled to
more than the 54 percent left lower extremity impairment previously awarded for the same
injury. The Board thus finds that OWCP met its burden in rescinding its finding that he was
entitled to a schedule award for an additional 37 percent impairment of the left leg.
On appeal appellant’s attorney maintained that as OWCP did not present new evidence, it
did not meet its burden of proof to rescind its granting of an additional schedule award. As the
Board found above, it met its burden of proof by providing clear rationale for its rescission.
Counsel also argued that the March 6 and June 9, 2009 reports from OWCP’s medical
adviser established that appellant had a greater impairment than the 54 percent previously
awarded. In these reports, however, the medical adviser did not subtract the impairment
previously awarded for the work injury from the current percentage of impairment in calculating
the left lower extremity impairment.
CONCLUSION
The Board finds that OWCP properly rescinded its finding that appellant was entitled to
an additional schedule award.

16

See Fritz A. Klein, 53 ECAB 642 (2002) (a medical opinion not based on the appropriate edition of the A.M.A.,
Guides has diminished probative value in determining the extent of a claimant’s permanent impairment).
17

See supra note 12.

18

See Carol A. Smart, supra note 12; Tammy L. Meehan, 53 ECAB 229 (2001).

6

ORDER
IT IS HEREBY ORDERED THAT the November 18, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 19, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 11-48
Issued: July 18, 2011

Case Submitted on the Record

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

JURISDICTION
On October 6, 2010 appellant filed a timely appeal from a September 8, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained arthritis in both hips causally related to factors of
his federal employment.
FACTUAL HISTORY
On July 22, 2010 appellant, then a 53-year-old letter carrier, filed an occupational disease
claim alleging that he sustained hip arthritis due to factors of his federal employment. In an
accompanying statement, he related that he experienced pain and stiffness in the bilateral hips
1

5 U.S.C. § 8101 et seq.

beginning 2010. Appellant attributed his condition to walking, climbing stairs and entering and
exiting a truck in the performance of his work duties over 22 years.
In a note dated July 18, 2010, Dr. Robert S. Mathieu, a Board-certified internist,
diagnosed hip pain and found that appellant should not work beginning July 19, 2010.
By letter dated July 28, 2010, OWCP requested additional factual and medical
information, including a detailed report from appellant’s attending physician explaining whether
factors of his federal employment caused a diagnosed condition.
In a report dated August 17, 2010, Dr. Gary Ferguson, an orthopedic surgeon, discussed
appellant’s complaints of bilateral hip pain increasing in severity over the past several years. He
stated, “[Appellant] drives a heavy truck in a mill service job that includes delivery of
[employing establishment] mail on foot for about two to three miles of walking per day. Overall
his disability is severe because of this, and he is now one month out of work because of this
pain.” Dr. Ferguson listed findings on examination and reviewed x-rays of the hips and pelvis.
He diagnosed disabling bilateral advanced osteoarthritis. Dr. Ferguson stated, “It was explained
that this is a preexisting condition which has developed in an acquired fashion over many years
of time. While it is true that [appellant’s] current job situation has aggravated the condition, that
same job is not thought to have actually caused the condition.”
In a letter dated August 21, 2010, appellant described his work duties and related that two
years ago his route was lengthened and his package delivery substantially increased. At that time
he began experiencing “aches [and] pains that are consistent with my present condition.”
Appellant had increased pain and stiffness after a workday.
By decision dated September 8, 2010, OWCP denied appellant’s occupational disease
claim. It found that he did not submit sufficient medical evidence to establish that he sustained
bilateral hip osteoarthritis due to the accepted work factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
2

5 U.S.C. § 8101 et seq.

3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

2

presence or existence of the disease or condition for which compensation is claimed;5 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;6 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.7
Where a claimant has a preexisting condition which is not disabling, but which becomes
disabling because of aggravation causally related to the employment, then regardless of the
degree of such aggravation, the resulting disability is compensable.8 It is not necessary to prove
a significant contribution of factors of employment to a condition for the purpose of establishing
causal relationship. If the medical evidence reveals that an employment factor contributes in any
way to the employee’s condition, such condition would be considered employment related for
purposes of compensation under FECA.9
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.10 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.11
ANALYSIS
Appellant alleged that he sustained bilateral hip arthritis due to walking, climbing stairs
and getting in and out of a truck in the course of his federal employment. OWCP accepted the
occurrence of the claimed employment factors. The issue, therefore, is whether the medical
evidence establishes a causal relationship between the claimed conditions and the identified
employment factors.
On August 17, 2010 Dr. Ferguson evaluated appellant for increasing pain in both hips.
He diagnosed bilateral advanced osteoarthritis of the hips. Dr. Ferguson discussed appellant’s
work duties of delivering mail and driving a heavy truck. He attributed the bilateral hip
osteoarthritis to a preexisting condition and found that the condition was not caused by his
employment. Dr. Ferguson determined, however, that appellant’s employment aggravated his
osteoarthritis.
5

Michael R. Shaffer, 55 ECAB 386 (2004).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

Beverly A. Spencer, 55 ECAB 501 (2004).

8

See L.R., 58 ECAB 369 (2007); Roger W. Griffith, 51 ECAB 491 (2000) (any contribution of employment
factors is sufficient to establish the element of causal relationship).
9

See Arnold Gustafson, 41 ECAB 131 (1989).

10

Jimmy A. Hammons, 51 ECAB 219 (1999).

11

20 C.F.R. § 10.121.

3

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.12
Dr. Ferguson provided a clear opinion that appellant’s work duties aggravated his bilateral hip
arthritis. He based his diagnosis of bilateral hip arthritis on x-rays studies and demonstrated a
thorough knowledge of appellant’s work duties. Dr. Ferguson’s opinion that employment factors
aggravated the bilateral hip arthritis generally supported appellant’s claim. It is unequivocal,
bolstered by objective findings and based on a firm diagnosis and an accurate work history.
Dr. Ferguson’s opinion lacks only an explanation of how the accepted work factors caused the
aggravation. As discussed, causal relationship does not denote a single and exclusive causative
factor. Where a person has a preexisting condition which is not disabling but which becomes
disabling because of aggravation causally related to the employment, then regardless of the
degree of such aggravation, the resulting disability is compensable.13 Consequently, while the
medical evidence from Dr. Ferguson is insufficiently rationalized to meet appellant’s burden of
proof, it raises an undisputed inference of causal relationship sufficient to require further
development by OWCP.14 Accordingly, the Board will remand the case to the Office. On
remand, OWCP should further develop the medical record to determine whether appellant
sustained an employment-related aggravation of bilateral hip arthritis. Following this and such
further development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

12

See A.A., 59 ECAB 726 (2008); Phillip L. Barnes, 55 ECAB 426 (2004).

13

When employment factors case an aggravation of an underlying condition, the employee is entitled to
compensation for the periods of disability related to the aggravation. See Chris Wells, 52 ECAB 445 (2001).
14

See supra note 12.

4

ORDER
IT IS HEREBY ORDERED THAT the September 8, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 18, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket Nos. 10-1144; 11-265
Issued: February 18, 2011

Case Submitted on the Record

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

JURISDICTION
On March 18, 2010 appellant filed timely appeals from the December 1 and 9, 2009
merit decisions of the Office of Workers’ Compensation Programs granting her a schedule award
and terminating her medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.1
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she has
more than a 12 percent permanent impairment of her left arm and a 2 percent permanent
impairment of her right arm, for which she received a schedule award; and (2) whether the
Office properly terminated appellant’s medical benefits effective May 5, 2009 on the grounds
that she ceased to have residuals of her employment injuries.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20 C.F.R.
§§ 501.2(c) and 501.3.

FACTUAL HISTORY
The Office accepted that on March 26, 2005 appellant, then a 38-year-old letter carrier,
sustained a traumatic injury when she was involved in a motor vehicle accident in the
performance of her duty. It accepted lumbar strain/sprain, cervical strain/sprain, thoracic
strain/sprain, bilateral knee contusion, chest wall contusion, right shoulder and trapezius
sprain/strain, exacerbation of left trapezius strain/sprain, left ankle sprain/strain, jaw strain/sprain
and postconcussion syndrome. Appellant missed time from work as a result of her injuries and
returned to work with limitations.
Appellant sustained a prior work injury on January 5, 2001 which was accepted for
cervical sprain, contusion of the left elbow and forearm and left shoulder surgerical repair. She
sustained a second traumatic injury on November 21, 2002 while reaching to retrieve mail which
was accepted for cervical and left shoulder sprains. On June 23, 2004 appellant sustained a
traumatic injury which was accepted for contusion and open wound of the left foot.
Appellant was initially treated in the emergency room following the 2005 motor vehicle
accident. Dr. Neil Mallis, a Board-certified internist, treated her on March 28, 2005 for cervical
sprain, thoracic sprain, lumbar sprain, bilateral knee contusion and chest wall contusion.
Appellant received conservative treatment from several physicians, including Dr. Christopher
Belletieri, an osteopath and Board-certified family practitioner. She was eventually released to
return to work with restrictions. Appellant continued to received physical therapy, trigger point
injections and massage therapy.
On February 20, 2007 appellant was examined by Dr. Kevin F. Hanley, a Board-certified
orthopedic surgeon serving as an Office referral physician. Dr. Hanley noted the history of
injury and treatment, discussed his findings on examination, and concluded that appellant
continued to have chronic cervical and lumbar strains without signs of radicular involvement.
He determined that appellant’s left shoulder injury had resolved and recommended an active
functional rehabilitative program. Dr. Hanley determined that she should continue to work with
restrictions.
The Office found a conflict in medical opinion between Dr. Hanley, the Office referral
physician, and appellant’s attending physicians as to whether she continued to have residuals of
her work-related conditions. Appellant was referred for an impartial evaluation with Dr. Robert
Liebenberg, a Board-certified orthopedic surgeon, to resolve this conflict.
Dr. Liebenberg examined appellant on October 23, 2007 and provided a diagnosis of
chronic complaints of the cervical and lumbar pain, chronic complaints of left upper extremity
pain and numbness, contusion of the right knee resolved and sprain of the left ankle, resolved.
He found no objective abnormalities on examination of the lower back and that magnetic
resonance imaging (MRI) scan testing was normal. Dr. Liebenberg noted that the physical
examination of appellant’s right knee was also normal and that the bone contusion demonstrated
on MRI scan had resolved. He advised that there was no symptomatology related to a chest wall
injury or a jaw injury. Dr. Liebenberg stated, “While an objective diagnosis for specific workrelated injury is not available, it is my judgment as a physician that some lifting restriction is
reasonable for this patient who does have chronic complaints of neck and back pain.” He opined

2

that it was reasonable to continue appellant’s medication but also stated that it was not entirely
clear that the use of anti-inflammatory medication was specifically related to the work injury.
Dr. Liebenberg opined that injections were not indicated as appellant had a normal imaging
study of the spine. While a cervical MRI scan revealed a herniated disc, this was on the right
and appellant’s symptoms were on the left. Dr. Liebenberg concluded that appellant was not
symptomatic from the disc herniation nor was there any conclusive evidence that this was related
to the work injury. He opined that, while injections for this condition were appropriate, he did
not feel that the condition was work related.
In an August 6, 2008 letter, the Office advised appellant that it proposed to terminate her
compensation as the weight of the medical opinion rested with Dr. Liebenberg and supported
that she no longer had residuals of the accepted work injuries.
On October 16, 2008 Dr. Belletieri discussed the mechanism of injury, summarized his
prior treatment and concluded that appellant continued to have C5-6 disc herniation, median
neuropathy on the left, lumbar sprain/strain, right trapezius sprain/strain, right shoulder
sprain/strain, right upper extremity radiculitis, thoracic sprain/strain, exacerbation of left
trapezius sprain/strain, post-traumatic cephalgia, bilateral knee sprain/strain, right jaw
sprain/strain, right anterior chest wall contusion, left ankle sprain/strain, cervical sprain/strain,
left lower extremity radiculitis, right knee effusion, left ankle effusion and post-traumatic stress
disorder. He reviewed the report of Dr. Liebenberg but disagreed with his conclusions.
Dr. Belletieri opined that appellant remained “quite symptomatic” and required continued
chiropractic and medical treatment.
In an October 8, 2008 decision, the Office terminated appellant’s compensation benefits,
finding that the weight of medical evidence rested with Dr. Liebenberg as the impartial specialist
whose opinion supported that appellant’s accepted work-related conditions had resolved.
In a January 7, 2009 decision, an Office hearing representative set aide the October 8,
2008 decision and remanded the case for further medical development. She found that there was
no conflict in medical opinion prior to Dr. Liebenberg’s examination as to whether appellant
continued to have work-related conditions. Rather the evidence involved the necessary and
appropriate treatment of her accepted conditions. The hearing representative found that
Dr. Liebenberg’s report created a conflict with the opinion of Dr. Belletieri as to whether
appellant’s work-related conditions had resolved. The case was remanded to the Office for
referral of appellant to an impartial medical specialist for an examination and an opinion on this
matter.
Appellant was examined on January 20, 2009 by Dr. David Weiss, an attending
osteopath, at the request of counsel. Dr. Weiss concluded that she continued to have residuals of
the work injury but had reached maximum medical improvement. He opined that appellant had a
15 percent left upper extremity impairment based on motor and sensory deficit and a 2 percent
right upper extremity impairment for sensory deficit under the standards of the fifth edition of

3

the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001).2
On February 22, 2009 appellant filed a claim for a schedule award due to her accepted
work injuries.
To resolve the conflict as to whether appellant continued to have residuals of her
accepted work-related conditions, the Office referred appellant for an impartial evaluation with
Dr. Eric Lebby, a Board-certified orthopedic surgeon, who examined appellant on February 25,
2009, reported an accurate history of injury and treatment and summarized his findings.
Dr. Lebby explained that appellant sustained multiple injuries from the March 26, 2005 motor
vehicle accident that included a cervical disc herniation; however, she had healed from these
injuries. He stated that appellant had numerous sprains and contusions as well as postconcussion
syndrome but had received appropriate treatment. Dr. Lebby opined that continued physical
therapy would not benefit appellant and that continued medication was problematic as it was
addictive and did not treat the problem. He opined that epidural injections would not be of
benefit and noted that, while the MRI scan demonstrated a herniated cervical disc, the herniation
was on the right and appellant had symptoms on the left side with no weakness, decreased
strength or other objective findings. Dr. Lebby concluded that appellant no longer continued to
have disabling residuals of the work-related injuries. He noted that there had been sufficient
time for the strains/sprains/contusions to heal since the March 2005 injury, almost four years in
the past. Further, Dr. Lebby noted that appellant had no objective findings on examination to
support her subjective complaints. He opined that she had reached maximum medical
improvement.
In a March 31, 2009 letter, the Office advised appellant that it proposed to terminate her
medical benefits finding that Dr. Lebby represented the weight of medical opinion and supported
that she no longer had any residuals of the accepted work injuries requiring medical treatment.
Appellant was allowed 30 days to provide evidence and argument challenging the proposed
action. The Office also advised appellant that it had expanded the accepted conditions to include
cervical herniated disc.
In an April 20, 2009 report, Dr. Arnold T. Berman, a Board-certified orthopedic surgeon,
serving as an Office medical adviser, concurred with Dr. Weiss’ rating of a two percent right
upper extremity impairment for a Grade 4 sensory deficit in the right C6 nerve root.3 He
calculated the left upper extremity impairment as 12 percent. Dr. Berman explained that
Dr. Weiss incorrectly stated the rating for abduction of the left shoulder by noting that 110
degrees of abduction equaled a three percent rating rather than a six percent rating in accordance
with Figure 16-43 on page 477.4 He further indicated that the total range of motion for the left
shoulder equaled 8 percent versus the 11 percent cited by Dr. Weiss. Using Dr. Weiss’ findings,
2

Dr. Weiss also found a five percent right knee impairment for pain/crepitance; and a three percent left lower
extremity impairment for pain. However, these matters are not the subject of the present appeal.
3

A.M.A., Guides 424, Tables 15-15 and 15-17.

4

Id. at 477, Figure 16-43.

4

Dr. Berman calculated that appellant’s total left upper extremity impairment was 12 percent
noting that the 8 percent rating for limited range of motion would be combined with the 4
percent rating for sensory loss.5 His opinion on sensory loss associated with the C5, C6 and C7
nerve roots was in accordance with Dr. Weiss’ opinion on this matter.6
In an April 23, 2009 decision, the Office granted appellant schedule awards for a 12
percent impairment of her left arm and a 2 percent impairment of her right arm.7
In a May 5, 2009 decision, the Office terminated appellant’s medical benefits effective
May 5, 2009 finding that the weight of the medical opinion rested with Dr. Lebby as the
impartial medical specialist and supported that appellant no longer had residuals of the accepted
work-related conditions requiring medical treatment.
Appellant requested a hearing before an Office hearing representative regarding her
schedule award. At the April 23, 2009 hearing, counsel argued that the statement of accepted
facts was deficient as it did not reflect appellant’s January 2001 or March 2005 injuries. He
explained that schedule award claims were filed in each of the appellant’s injury claims,
however, the award was questionably finalized under the claim that did not involve the
March 2005 injury. Therefore, appellant received schedule award compensation at a lower pay
rate. Counsel also argued that the difference in opinion regarding the rating value for abduction
(8 percent versus 11 percent) warranted a referee evaluation.
Appellant requested a hearing before an Office hearing representative regarding the
termination of her compensation. At the October 15, 2009 hearing, counsel noted that appellant
was working in a limited-duty capacity with restrictions and had no wage loss. He argued that
the case should remain open for continued medical treatment. Counsel asserted that Dr. Lebby
acknowledged that appellant still had medical conditions caused by the March 2005 motor
vehicle accident to include a herniated disc and therefore he continued to support work-related
residuals. He further argued that Dr. Lebby opined that appellant would benefit from an exercise
program so this would support the need for further medical treatment for continued residuals of
the work injuries.
In a December 1, 2009 decision, an Office hearing representative affirmed the April 23,
2009 schedule award determination.
In a December 9, 2009 decision, an Office hearing representative affirmed the May 5,
2009 decision terminating appellant’s medical benefits.

5

Id. at 606, Combined Values Chart.

6

Id. at 424, Table 15-15 and Table 15-17.

7

It was appropriate to apply the standards of the fifth edition of the A.M.A., Guides as the decision was issued
prior to the May 1, 2009 effective date of the sixth edition.

5

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act8 and its implementing regulations9 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 regulations as the
appropriate standard for evaluating schedule losses.10 For Office decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.11
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the elbow, the relevant portion of the arm for the present
case, reference is made to Table 15-4 (Elbow Regional Grid) beginning on page 399. Then the
associated class is determined from the Elbow Regional Grid and the adjustment grid and grade
modifiers (including functional history, physical examination and clinical studies) are used to
determine what grade of associated impairment should be chosen within the class defined by the
regional grid. The evaluator then uses the regional grid to identify the appropriate impairment
rating value for the impairment class, modified by the adjustments as calculated.12
ANALYSIS -- ISSUE 1
The Office accepted that on March 26, 2005 appellant had a work-related motor vehicle
accident which caused a lumbar strain/sprain, cervical strain/sprain, thoracic strain/sprain,
bilateral knee contusion, chest wall contusion, right shoulder and trapezius sprain/strain,
exacerbation of left trapezius strain/sprain, left ankle sprain/strain, jaw strain/sprain and
postconcussion syndrome. Appellant sustained a prior work injury on January 5, 2001 which
was accepted for cervical sprain, contusion of the left elbow and forearm and left shoulder
surgical repair; a second traumatic injury on November 21, 2002 which was accepted for cervical
and left shoulder sprains; and another traumatic injury on June 23, 2004 which was accepted for
contusion and open wound of the left foot.
On February 22, 2009 appellant filed a claim for a schedule award due to her accepted
work injuries. In an April 23, 2009 decision, the Office granted appellant a schedule award for a
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404 (1999).

10

Id.

11

See FECA Bulletin No. 9-03 (issued March 15, 2009). For Office decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
12

See A.M.A., Guides (6th ed. 2009) 398-400.

6

12 percent permanent impairment of her left arm and a 2 percent permanent impairment of her
right arm.13
The Board finds that appellant has not submitted sufficient evidence to establish more
than a 12 percent impairment of her left arm and a 2 percent impairment of her right arm. The
April 23, 2009 schedule award was properly based on the April 20, 2009 calculations of
Dr. Berman, a Board-certified orthopedic surgeon who served as an Office medical adviser.
Dr. Berman evaluated the January 20, 2009 findings by Dr. Weiss, an attending osteopath, under
the relevant standards of the fifth edition of the A.M.A., Guides.
On January 20, 2009 Dr. Weiss reported examination findings and opined that the
findings supported that appellant had a 15 percent left upper extremity impairment for motor and
sensory deficit and a 2 percent right upper extremity impairment for sensory deficit.
On April 20, 2009 Dr. Berman concurred with Dr. Weiss’ rating of a two percent right
upper extremity impairment for a Grade 4 sensory deficit in the right C6 nerve root.14 He
correctly calculated that appellant had a 12 percent (rather than a 15 percent) impairment of the
left upper extremity. Dr. Berman explained that Dr. Weiss incorrectly stated the rating for
abduction of the left shoulder by noting that 110 degrees of abduction equaled a three percent
rating rather than a six percent rating in accordance with Figure 16-43 on page 477.15 He further
indicated that the total range of motion for the left shoulder equaled 8 percent rather than the 11
percent cited by Dr. Weiss. Dr. Berman obtained the 12 percent rating on the left by combining
the 8 percent rating for limited range of motion with the 4 percent rating for sensory loss.16
On appeal, counsel argued that there was a conflict in the medical opinion between
Dr. Weiss and Dr. Berman. In reaching a different impairment rating, Dr. Berman merely
corrected errors in Dr. Weiss’ application of the A.M.A., Guides.17 On appeal, counsel also
argued that the schedule award should have been finalized in connection with the file for her
March 2005 injury, thereby ensuring that the award would be paid at a higher pay rate; however,
the file for appellant’s March 2005 injury is separate from that pertaining to his other injuries.
There is no indication that her schedule award was developed under an inappropriate file.

13

It was appropriate to apply the standards of the fifth edition of the A.M.A., Guides as the decision was issued
prior to the May 1, 2009 effective date of the sixth edition.
14

A.M.A., Guides 424, Tables 15-15 and 15-17.

15

Id. at 477, Figure 16-43.

16

Id. at 606, Combined Values Chart. Dr. Berman’s opinion on sensory loss associated with the C5, C6, and C7
nerve roots was in accordance with Dr. Weiss’ opinion on this matter. A.M.A., Guides 424, Tables 15-15 and 15-17.
17

Counsel argued that the statement of accepted facts provided to Dr. Berman was deficient as it did not reflect
appellant’s January 2001 or March 2005 injuries. However, the statement of accepted facts did in fact describe
these injuries and there is no indication that Dr. Berman did not consider the effects of all the work injuries.

7

LEGAL PRECEDENT -- ISSUE 2
Under the Act, once the Office has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.18 The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.19 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.20
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”21 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.22
ANALYSIS -- ISSUE 2
The Office properly determined that there was a conflict in the medical opinion between
Dr. Belletieri, an attending osteopath and Board-certified family practitioner, and
Dr. Liebenberg, a Board-certified orthopedic surgeon acting as an Office referral physician, on
the issue of whether appellant continued to require medical treatment due to the accepted
employment injuries.23 In order to resolve the conflict, the Office properly referred appellant,
pursuant to section 8123(a) of the Act, to Dr. Lebby, a Board-certified orthopedic surgeon, for an
impartial medical examination and an opinion on the matter.24
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Lebby, the impartial medical specialist selected to resolve the
conflict in the medical opinion.25 The February 25, 2009 report of Dr. Lebby establishes that
appellant had no residuals of her employment injuries after May 5, 2009.

18

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

19

Id.

20

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

21

5 U.S.C. § 8123(a).

22

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

23

Dr. Liebenberg was referred to as an impartial medial specialist. However, there was no conflict in the medical
opinion regarding work-related residuals at the time of referral and he served as an Office referral physician. The
October 23, 2007 report of Dr. Liebenberg conflicted with the October 16, 2008 report of Dr. Belletieri.
24

See supra note 22.

25

See supra note 23.

8

Dr. Lebby noted an accurate history of injury and prior treatment, discussed his findings
on examination in detail and opined that appellant no longer suffered from residuals of the workrelated injuries. He noted that there had been sufficient time and treatment to resolve the sprains,
strains and contusions that had developed as a result of the March 2006 motor vehicle accident.
Dr. Lebby further noted that he found no real objective findings on examination and noted that
appellant’s subjective complaints were out of proportion to the objective findings. He opined
that she had a herniated disc as a result of the accident but further noted that she demonstrated no
objective findings on examination and stated that she is asymptomatic from this herniation.
Dr. Lebby stated that continued medical treatment should include home exercise.
The Board has carefully reviewed the opinion of Dr. Lebby and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Lebby provided a thorough factual and medical history
and accurately summarized the relevant medical evidence.26 He provided medical rationale for
his opinion by explaining that appellant exhibited limited findings on physical examination and
diagnostic testing. On appeal, counsel argued that Dr. Lebby’s recommendation of home
exercise showed that she continued to have residuals of work-related conditions which still
required treatment. While Dr. Lebby did state that appellant would benefit from home exercise,
he did not state that she required any ongoing medical treatment. He clearly stated that she had
no objective findings on examination to support that she had residuals of the work injuries
requiring treatment.
On appeal, counsel argued that Dr. Lebby did not consider all of appellant’s work injuries
in his determination that she no longer required medical treatment for her work injuries.
Although Dr. Lebby emphasized the effects of the March 2006 work-related vehicular accident,
he provided an extensive history of appellant’s prior work injuries and considered whether she
continued to have residuals of any of her several work injuries.27
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than a 12 percent permanent impairment of her left arm and a 2 percent permanent
impairment of her right arm, for which she received a schedule award. The Board further finds
that the Office met its burden of proof to terminate appellant’s medical benefits effective May 5,
2009 on the grounds that she no longer had residuals of her employment injuries after that date.

26

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

27

Counsel noted that, after Dr. Lebby’s evaluation, the Office expanded the accepted conditions to include
cervical herniated disc. However, this does not mean that appellant required treatment for this condition. Dr. Lebby
provided an opinion that she did not require such treatment as the condition was asymptomatic and on the side
opposite from that of her subjective complaints.

9

ORDER
IT IS HEREBY ORDERED THAT the December 9 and 1, 2009 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: February 18, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. SECRET SERVICE, Washington, DC,
Employer
__________________________________________

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

Docket No. 08-1896
Issued: February 20, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 25, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 5, 2007 concerning his schedule award
and a nonmerit decision dated May 7, 2008, denying his request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the schedule
award claim and the nonmerit issue.
ISSUES
The issues are: (1) whether appellant has established more than a 16 percent left lower
extremity impairment, for which he received a schedule award; and (2) whether the Office
properly refused to reopen his case for further review of the merits under 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On March 24, 2004 appellant, then a 38-year-old special agent, injured his left knee while
running on a treadmill as part of his fitness program. The Office accepted his claim for left side
lateral meniscus tear and authorized left knee surgery, which he underwent May 7, 2004 and
November 20, 2006, to repair meniscal damage and a patellofemoral condylar defect along the
trochlear groove.1 It paid for all appropriate periods of disability, including a recurrence of
November 20, 2006.
On July 28, 2004 appellant requested a schedule award. By decision dated October 19,
2004, the Office granted appellant a schedule award for a two percent impairment of the left
lower extremity for a partial lateral meniscectomy. Under file number xxxxxx583, appellant
received an 11 percent impairment of the left lower extremity as a result of a left meniscus tear
sustained from a slip and fall on September 25, 1996.2
On June 5, 2007 appellant requested an increased schedule award. In a June 26, 2007
report, Dr. W. Chris Kostman, a Board-certified orthopedic surgeon, stated that appellant
reached maximum medical improvement on June 5, 2007. He stated that appellant’s last
evaluation of the left knee demonstrated a full range of motion of flexion with continued pain
with kneeling and squatting activity. Some patellofemoral tenderness to palpation was present
along with pain on lateral motion. Dr. Kostman stated that he believed appellant’s quadriceps
strength was 80 percent of his contralateral right knee and that he was at risk for increased
degenerative change at this joint in the future. He opined that appellant had a 20 percent
permanent impairment of his left knee.
In a November 12, 2007 report, an Office medical adviser reviewed appellant’s medical
record. He noted that appellant continued to have anterior knee pain, mostly when running,
following his knee arthroscopy. Based on Dr. Kostman’s physical examination, the medical
adviser noted all incisions had healed, range of motion was full and no significant effusion was
present. As appellant had patellofemoral tenderness to palpation, the medical adviser found that
he had a five percent left lower extremity impairment for residual patellofemoral pain without
joint space narrowing on x-rays according to the footnoted section at the bottom of Table 17-31,
page 544 of the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides). Dr. Kostman noted that, while there was a perceived
weakness in the quadriceps on the right when compared to the left, no additional impairment
could be awarded according to Table 17-2, page 526 of the A.M.A., Guides. David H.
Garelick, MD advised that appellant reached maximum medical improvement May 1, 2007 as
discussed by Dr. Kostman.
On November 23, 2007 the Office advised the medical adviser that appellant received a
schedule award for a 2 percent permanent impairment of the left lower extremity as well as an 11
percent permanent impairment of the left lower extremity under file number xxxxxx583. It
1

Appellant also underwent anterior cruciate ligament reconstruction in 1997.

2

This was comprised of two percent for a partial lateral meniscectomy, one percent for pain and eight percent for
atrophy.

2

requested that the medical adviser review the medical record for both claims and evaluate
whether the additional five percent permanent impairment recommended in his November 12,
2007 report remained. In a November 26, 2007 report, the Office medical adviser opined that
appellant had a 16 percent total lower extremity permanent impairment of the left lower
extremity. The medical adviser noted reviewing his reports of September 20, 2004, May 30 and
June 27, 2005 and November 12, 2007 reports, in the present claim and his May 18, 1998 report
under file number xxxxxx583. He advised that for the left lower extremity appellant had been
awarded one percent permanent impairment for pain; eight percent permanent impairment for
quadriceps atrophy; two percent permanent impairment for lateral meniscus resection; and five
percent for patellofemoral pain without joint space narrowing. The medical adviser utilized the
combined values table at page 604 of the A.M.A., Guides and found appellant had a 16 percent
total left lower extremity permanent impairment. He additionally recommended the Office
combine the two case numbers as the awards described the same condition.
On December 5, 2007 the Office combined the current case with file number xxxxxx583,
with the latter case being the master file.
By decision dated December 5, 2007, the Office found that appellant was entitled to a
schedule award for 16 percent left lower extremity impairment. As appellant already received an
11 percent impairment of the left lower extremity under file number xxxxxx583 and a 2 percent
impairment of the left lower extremity under the current claim, the Office awarded an additional
3 percent left lower extremity impairment. The period of the award ran from May 1 to June 30,
2007 for a total of 8.64 weeks of compensation.
On December 17, 2007 appellant disagreed with the Office’s decision and requested an
oral hearing, which was scheduled April 10, 2008. He subsequently withdrew his oral hearing
request and requested reconsideration on April 23, 2008. In his April 23, 2008 letter, appellant
referenced various portions of the A.M.A., Guides which he claimed Dr. Kostman failed to use
in assessing his permanent impairment. He also noted that he was retaining another physician to
reevaluate his left lower extremity impairment. Copies of a November 20, 2006 physical therapy
report were received.
By decision dated May 7, 2008, the Office denied appellant’s request for reconsideration
of the merits.3
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act4 provides
for compensation to employees sustaining impairment from loss or loss of use of specified
members of the body. The Act, however, does not specify the manner in which the percentage
loss of a member shall be determined. The method used in making such determination is a
3

Appellant submitted new evidence with his appeal. The Board has no jurisdiction to review new evidence on
appeal. See 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and request reconsideration
under 5 U.S.C. § 8128.
4

5 U.S.C. §§ 8101-8193.

3

matter which rests in the sound discretion of the Office. For consistent results and to ensure
equal justice, the Board has authorized 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
Office as a standard for evaluation of schedule losses and the Board has concurred in such
adoption.5 As February 1, 2001, schedule awards are calculated according to the fifth edition of
the A.M.A., Guides, published in 2000.6 Office procedures provide that, after obtaining all
necessary medical evidence, the file should be routed to the Office medical adviser for an
opinion concerning the nature and percentage of impairment in accordance with the A.M.A.,
Guides, with the Office medical adviser providing rationale for the percentage of impairment
specified.7
ANALYSIS -- ISSUE 1
Appellant received a schedule award representing a 16 percent total impairment for his
left lower extremity conditions. The Office based its award on the November 12 and 26, 2007
reports of its Office medical adviser, who reached his impairment rating after reviewing
Dr. Kostman’s most recent reports and previous schedule awards received in the current file as
well in file number xxxxxx583. The Board finds that the medical evidence does not establish
that appellant has greater than 16 percent impairment of the left lower extremity, for which he
received schedule awards.
In his June 26, 2007 report, Dr. Kostman opined that appellant had a 20 percent
permanent disability of his left knee, but failed to provide any explanation for his impairment
rating or cite to appropriate tables in the A.M.A., Guides. Thus, the impairment rating of
Dr. Kostman is of diminished probative value.8
In his November 12, 2007 report, the Office medical adviser reviewed Dr. Kostman’s
physical examination findings and opined that appellant was entitled to an additional five percent
left lower extremity impairment. As appellant demonstrated patellofemoral tenderness to
palpation, the Office medical adviser found five percent left lower extremity impairment for
residual patellofemoral pain without joint space narrowing on x-rays under the footnoted section
at the bottom of Table 17-31, page 544 of the A.M.A., Guides. Although he was documented to
have a perceived weakness in the quadriceps, under Table 17-2, page 525 of the A.M.A., Guides,
the Office medical adviser properly noted no additional impairment could be awarded as a
decrease in strength can not be combined with an arthritic impairment.9 Thus, the Office
5

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

6

See A.S., 58 ECAB ___ (Docket No. 06-1613, issued November 29, 2006); FECA Bulletin No. 01-05 (issued
January 29, 2001).
7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
8

See Linda Beale, 57 ECAB 429 (2006).

9

The Office medical adviser found the quadriceps weakness occurred on the right side compared to the left side.
It is unclear whether the Office medical adviser confused the two sides, as this claim pertains only to the left lower
extremity.

4

medical adviser concluded that appellant had five percent impairment for arthritis under Table
17-31 of the A.M.A., Guides. After the Office apprised its medical adviser that appellant
previously received schedule awards for 2 percent left leg impairment and 11 percent left leg
impairment, the medical adviser found further reviewed his previous reports and noted that
appellant had received 1 percent permanent impairment for pain; 8 percent permanent
impairment for quadriceps atrophy; and 2 percent permanent impairment for lateral meniscus
resection, for an 11 percent total schedule award of the left lower extremity.10 The 11 percent
total schedule award previously received combined with the additional 5 percent left lower
extremity impairment appellant is entitled to for arthritis results in a 15 percent total left lower
extremity impairment.11 Appellant has been compensated for a 16 percent left lower extremity
impairment. Thus, he has not established that he is entitled to compensation for more than the
16 percent total schedule award received.
LEGAL PRECEDENT -- ISSUE 2
The Act12 provides that the Office may review an award for or against payment of
compensation at any time on its own motion or upon application.13 The employee shall exercise
this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the application for reconsideration.14
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.15
An application for reconsideration must be sent within one year of the date of the Office
decision, for which review is sought.16 A timely request for reconsideration may be granted if
the Office determines that the employee has presented evidence or argument that meets at least
one of these standards. If reconsideration is granted, the case is reopened and the case is
10

Although the previously accepted impairments actually total 13 percent, the record indicates that appellant
received 2 percent impairment for partial lateral meniscectomy in the present claim and also in file number
xxxxxx583. As this is duplicative, it was proper for the medical adviser to consider it only once in combining
appellant’s ratable impairments.
11

A.M.A, Guides at 604, Combined Values Chart.

12

5 U.S.C. § 8101 et. seq.

13

Id. at § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

14

20 C.F.R. § 10.605.

15

Id. at § 10.606. See Susan A. Filkins, 57 ECAB 630 (2006).

16

Id. at § 10.607(a). See Joseph R. Santos, 57 ECAB 554 (2006).

5

reviewed on its merits. Where the request is timely but fails to meet at least one of these
standards, the Office will deny the application for reconsideration without reopening the case for
a review on the merits.17
ANALYSIS -- ISSUE 2
On April 23, 2008 appellant requested reconsideration. However, he did not submit any
new evidence or arguments with his request. While appellant referenced various portions of the
A.M.A., Guides which he believed his physician should have incorporated, this is not evidence
of error or constitute a new argument. Although the November 20, 2006 physical therapy report
is new evidence, this report does not constitute competent medical evidence as a physical
therapist is not a physician under the Act.18 Thus, this report is not relevant to the medical issue
of the extent of appellant’s left lower extremity impairment.
Because appellant did not raise new arguments or present new evidence that the Office
erroneously applied or interpreted a specific point of law; advance any relevant legal arguments
not previously considered by the Office; or present any relevant and pertinent new evidence not
previously considered by the Office, he is not entitled to further review of the merits of his claim
under any of the criteria of section 10.606(b)(2).19
As appellant did not meet any of the regulatory requirements for review of the merits of
his claim, the Board finds that the Office properly denied his April 23, 2008 request for
reconsideration.
CONCLUSION
The Board finds appellant has no more than 16 percent total left lower extremity
impairment, for which he received a schedule award. The Board further finds that the Office
properly denied appellant’s request for merit review of his claim pursuant to section 8128.

17

Id. at § 10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005).

18

5 U.S.C. § 8101(2); Vickey C. Randall, 51 ECAB 357.

19
19

Id. at § 10.606(b)(2); see W.C., 59 ECAB ___ (Docket No. 07-2257, issued March 5, 2008).
5 U.S.C. §§ 8101-8193.

6

ORDER
IT IS HEREBY ORDERED THAT the May 7, 2008 and December 5, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 20, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7