United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baytown, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1324
Issued: August 24, 2020

Case Submitted on the Record

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

JURISDICTION
On May 28, 2019 appellant filed a timely appeal from a January 31, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 10
percent permanent impairment of the left upper extremity and 4 percent permanent impairment of
the left lower extremity, for which he previously received schedule award compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances set forth in
the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On August 7, 2007 appellant, then a 51-year-old rural carrier, injured his neck, shoulders,
and back when his mail truck was struck from behind when stopped at a traffic light while in the
performance of duty. OWCP initially accepted his traumatic injury claim for disorder of bursae
and tendons in the left shoulder and later expanded the acceptance of his claim to include disorder
of bursae and tendons in both shoulders, lumbar sprain, neck sprain, degeneration of cervical
intervertebral disc, displacement of cervical intervertebral disc without myelopathy, displacement
of lumbar intervertebral disc without myelopathy, displacement of lumbar or lumbosacral
intervertebral disc, and acquired spondylolisthesis. Appellant stopped work on August 7, 2007
and OWCP paid him wage-loss compensation for disability from work on the supplemental rolls
from October 2 through 27, 2007. OWCP placed him on the periodic rolls on October 28, 2007.
On July 19, 2011 appellant filed a claim for a schedule award (Form CA-7). He submitted
an impairment evaluation by Dr. Lubor Jarolimek, a Board-certified orthopedic surgeon, who
diagnosed bilateral rotator cuff syndrome, lumbar spine sprain/strain, cervical spine sprain/strain,
cervical and lumbar disc degeneration, cervical and lumbar disc displacement, and acquired
spondylolisthesis. Dr. Jarolimek opined that appellant sustained 8 percent impairment of the left
upper extremity, 11 percent impairment of the right upper extremity, and 0 percent impairment of
the bilateral lower extremities under the standards of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3
By decision dated May 18, 2012, OWCP granted appellant a schedule award for 8 percent
permanent impairment of the left upper extremity and 11 percent permanent impairment of the
right upper extremity. The award ran for 59.28 weeks from April 8, 2012 through May 27, 2013.
It noted that there was no permanent impairment of the lower extremities.
On March 6, 2015 Dr. Stephen Esses, a Board-certified orthopedic surgeon, performed
OWCP-authorized back surgery, including discectomy at L4-5 and L5-S1, and decompression of
the bilateral nerve roots.4
On December 10, 2015 appellant underwent an electromyogram and nerve conduction
velocity (EMG/NCV) study of the upper and lower extremities which revealed findings consistent
with right mild-to-moderate carpal tunnel syndrome with mild demyelination changes, left mild
carpal tunnel syndrome, bilateral ulnar sensory neuropathy, bilateral peripheral sensory
neuropathy affecting both lower extremities, right C7 nerve root irritation and left L5
radiculopathy.
2

Docket No. 17-1523 (issued April 3, 2018).

3

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

4
On September 8, 2015 Dr. Robert C. Kratschmer, a Board-certified plastic surgeon, performed right carpal tunnel
release and tenosynovectomy of the flexor digitorum superficialis and profundus tendons to the second, third, and
fourth digits. It is unclear from the case record whether this surgery was authorized by OWCP.

2

In a December 18, 2015 report, Dr. Salvador P. Baylan, a Board-certified orthopedic
surgeon, discussed appellant’s history of injury and reported the findings of the physical
examination he conducted on December 10, 2015. He diagnosed displacement of lumbar
intervertebral disc without myelopathy, degenerative disc disease of the lumbar spine,
degeneration of cervical intervertebral disc, and displacement of cervical intervertebral disc
without myelopathy. Dr. Baylan noted that appellant reached maximum medical improvement
(MMI) on December 10, 2015. He documented normal upper extremity strength, 4/5 strength in
the left lower extremity, and decreased sensation in the left thigh and leg. Dr. Baylan referenced
Proposed Table 2 of The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the
Sixth Edition (The Guides Newsletter) (July/August 2009). He determined that, under this table,
appellant had nine percent permanent impairment of the left lower extremity due to mild sensory
and motor deficits associated with the L5 nerve distribution and five percent permanent
impairment of the left lower extremity due to mild sensory and motor deficits associated with the
S1 nerve distribution.5 Combining these values yielded a total permanent impairment of the left
lower extremity of 14 percent. Dr. Baylan found no permanent impairment of the upper
extremities due to the lack of objective evidence of cervical radiculopathy.
On March 23, 2016 OWCP referred appellant’s case, along with a statement of accepted
facts (SOAF) and the case record, to Dr. Taisha Williams, a Board-certified orthopedic surgeon
serving as a district medical adviser (DMA) for OWCP.6 It requested that she provide an opinion
on permanent impairment in accordance with the standards of the sixth edition of the A.M.A.,
Guides and The Guides Newsletter.
In an April 28, 2016 report, the DMA utilized Proposed Table 2 of The Guides Newsletter
to evaluate appellant’s permanent impairment. She determined that appellant had four percent
permanent impairment of the left lower extremity due to mild sensory and motor deficits associated
with the L5 nerve distribution and one percent permanent impairment of the left lower extremity
due to mild sensory and motor deficits associated with the S1 nerve distribution. Combining these
values yielded a total of five percent permanent impairment of the left lower extremity. The DMA
reviewed Dr. Baylan’s December 18, 2015 report and indicated that she arrived at different values
for the impairment rating because she disagreed with Dr. Baylan with respect to the calculation of
grade modifiers.
Appellant submitted an October 3, 2016 EMG/NCV study of the upper and lower
extremities which revealed right and left sensorimotor median neuropathy at the wrists consistent
with carpal tunnel syndrome, bilateral ulnar sensory neuropathy, bilateral peripheral sensory
neuropathy affecting the lower extremities, right C7 nerve root irritation, and left L5 radiculopathy.
He underwent a right shoulder MRI scan on October 5, 2016 which revealed bursal surface partial

5

In reaching his conclusions, Dr. Baylan calculated the grade modifier for functional history (GMFH) and the grade
modifier for clinical studies (GMCS), and applied the net adjustment formula. See infra note 19.
6
Shortly after the referral, the case record was supplemented to include a February 16, 2016 magnetic resonance
imaging (MRI) scan of the lumbar spine which revealed spondylolisthesis at L5-S1, broad-based central disc
herniation at L4-5. A cervical spine MRI scan of even date revealed central left disc herniations at C4-5, C5-6, and
C6-7 with central stenosis and cord compression at C4-5, C5-6, and C6-7.

3

tear supraspinatus tendon, small insertional partial infraspinatus anchor, mild subdeltoid bursitis,
and mild subacromial outlet narrowing.
OWCP referred appellant, along with a SOAF and the medical record, for a second opinion
examination to be conducted by Dr. Donald Lazarz, a Board-certified orthopedic surgeon. It
requested that he provide an opinion on permanent impairment in accordance with the standards
of the sixth edition of the A.M.A., Guides and The Guides Newsletter.
In an October 25, 2016 report, Dr. Lazarz detailed appellant’s history of injury and reported
the findings of his physical examination. He noted that appellant exhibited poor effort during
examination testing. Dr. Lazarz specifically indicated that the examination showed significant
neurological deficits in the upper and lower extremities which were inconsistent with the MRI
scans and EMG/NCV studies, as well as with Dr. Baylan’s documentation of physical findings.
He noted that his examination revealed significantly decreased strength in the upper and lower
extremities and decreased sensation in both lower extremities, but that Dr. Baylan documented
normal upper extremity strength, 4/5 strength in the left lower extremity, and decreased sensation
in the left thigh and leg. Dr. Lazarz opined that, due to these inconsistencies, the findings were
considered invalid and appellant had zero percent permanent impairment of his upper and lower
extremities due to the employment-related cervical and lumbar spine conditions. With regard to
the bilateral shoulder sprain, he found one percent permanent impairment of each upper extremity
pursuant to the diagnosis-based impairment (DBI) rating method.
On November 9, 2016 OWCP referred appellant’s case, along with a SOAF and medical
record, to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as a DMA. In his
report dated November 14, 2016, the DMA concurred with Dr. Lazarz’s impairment rating of one
percent permanent impairment of the each upper extremity and zero percent permanent impairment
of each lower extremity. He noted that MMI occurred on October 25, 2016.
On March 1, 2017 OWCP requested clarification of the DMA’s November 14, 2016 report.
It indicated that appellant had previously received a schedule award for 8 percent permanent
impairment of the left upper extremity and 11 percent permanent impairment of the right upper
extremity, and asked whether his impairment determination was in addition to the previously
granted award. In a March 5, 2017 report, the DMA advised that his impairment determination
was not in addition to appellant’s previously granted award. He noted no increase in appellant’s
right and left upper extremity impairment.
OWCP declared a conflict in the medical opinion evidence regarding appellant’s
permanent impairment. The conflict was between the attending physician, Dr. Baylan, and the
government physicians, Dr. Lazarz and DMA Dr. Harris.7 In order to resolve this conflict, it
referred appellant, along with a SOAF and the case record, for an impartial medical examination
to be conducted by Dr. James Butler, Board-certified in physical medicine and rehabilitation.

7
OWCP initially referred appellant for an impartial medical examination to Dr. James Hood, a Board-certified
orthopedic surgeon. However, appellant was previously seen by Dr. Hood and he was therefore disqualified. OWCP
then referred appellant to Dr. Larry Likover, a Board-certified orthopedic surgeon. However, Dr. Likover did not
perform impairment ratings and was also disqualified.

4

OWCP requested that he provide an opinion on permanent impairment in accordance with the
standards of the sixth edition of the A.M.A., Guides and The Guides Newsletter.
In a November 1, 2018 report, Dr. Butler discussed appellant’s history of injury and
reviewed his medical records. He recounted that appellant still complained of aching and shooting
pain in the shoulders, neck, and lower back radiating into the hands and legs with associated
numbness, tingling, and weakness. Upon physical examination, Dr. Butler observed a well-healed
surgical scar on the lumbar spine consistent with prior discectomy at L4-5, normal gait, decreased
sensation and weakness in the left leg/foot in the L5 nerve distribution, normal sensation and
strength in the upper extremities and right lower extremity, restricted range of motion (ROM) of
the cervical and lumbar spine and bilateral shoulders, positive supine and sitting straight leg raises
on the left, and negative foraminal compression test and Neer impingement test bilaterally.
Dr. Butler reported that appellant reached MMI on November 1, 2018.
Dr. Butler indicated that permanent impairment related to appellant’s accepted cervical
spine conditions would be rated using Proposed Table 2 of The Guides Newsletter. He noted that
appellant’s sensation was intact and his motor strength was 5/5 throughout both upper extremities.
Dr. Butler determined, therefore, that the rating would be zero percent permanent impairment of
each upper extremity when considering the accepted cervical spine conditions. He also referenced
Proposed Table 2 of The Guides Newsletter with regard to permanent impairment related to
appellant’s accepted lumbar spine conditions. Appellant had mildly decreased sensation and 4/5
weakness in the left lower extremity associated with the L5 nerve distribution, but the sensation
and strength in the right lower extremity was intact. Dr. Butler noted that the mild sensory deficits
of the L5 nerve, based upon EMG/NCV findings, equaled a default value of one percent permanent
impairment. He noted that appellant’s positive nerve conditions fell under a class of diagnosis
(CDX) of 1 and calculated a GMFH of 1 and a GMCS of 0. Dr. Butler indicated application of
the net adjustment formula required movement one space to the left of the default value, but still
resulted in a finding of one percent impairment. He also indicated that, for the mild motor deficit
in the L5 nerve distribution (no atrophy, minimal findings), appellant had a default value of five
percent permanent impairment. However, application of the net adjustment formula required
movement one space to the left of the default value, and resulted in a finding of three percent
impairment. Combining these values yielded a total of four percent permanent impairment of the
left lower extremity. In addition, Dr. Butler concluded that appellant had no permanent
impairment of his right lower extremity because the sensory and motor findings were normal in
that extremity.
Dr. Butler explained that, with regard to appellant’s accepted condition of disorder of
bursae and tendons in both shoulders, Table 15-5 of the sixth edition of the A.M.A., Guides, page
401, provided that the DBI rating method was not applicable because it required the presence of
normal ROM.8 Since there was evidence of right and left shoulder ROM loss and Table 15-5
contained an asterisk allowing for use of the ROM rating method for appellant’s condition, the
rating was assessed using Table 15-34 on page 475. For the left shoulder, loss of motion for flexion
was 3 percent impairment, extension was 1 percent impairment, abduction was 3 percent
impairment, adduction was 1 percent impairment internal rotation was 2 percent impairment and
8
Dr. Butler referenced the portion of Table 15-5 for “sprain/strain” which indicated that the DBI rating method was
to be used for this condition when there was no instability or loss of motion, but pain persisted at MMI.

5

external rotation was 0 percent impairment for 10 percent left upper extremity impairment. For
the right shoulder, loss of motion for flexion was three percent impairment, extension was zero
percent impairment, abduction was three percent impairment, adduction was one percent
impairment internal rotation was two percent impairment and external rotation was zero percent
impairment for nine percent right upper extremity impairment.9 Therefore, Dr. Butler concluded
that appellant had 10 percent permanent impairment of the left upper extremity, 9 percent
permanent impairment of the right upper extremity, and 4 percent permanent impairment of the
left lower extremity.
By decision dated January 31, 2019, OWCP granted appellant a schedule award for 4
percent permanent impairment of the left lower extremity and an additional 2 percent permanent
impairment of the left upper extremity, (for a total of 10 percent permanent impairment of the left
upper extremity). The award ran for 17.76 weeks from November 1, 2018 to March 5, 2019 and
was based on the November 1, 2018 report of Dr. Butler.
LEGAL PRECEDENT
The schedule award provisions of FECA10 and its implementing regulations11 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, OWCP has adopted the A.M.A., Guides as
the uniform standard applicable to all claimants.12 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards.13
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.14 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.15 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment in The Guides Newsletter. It was
designed for situations where a particular jurisdiction, such as FECA, mandated ratings for
extremities and precluded ratings for the spine. The FECA-approved methodology is premised on
9
Dr. Butler obtained three results for each type of ROM and used the maximum observed measurements. See
A.M.A., Guides 464.
10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
14

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
15
See supra note 13 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5c(3)
(March 2017).

6

evidence of radiculopathy affecting the upper and/or lower extremities. The appropriate tables for
rating spinal nerve extremity impairment are incorporated in the Federal (FECA) Procedure
Manual.16
In addressing upper or lower extremity impairment due to peripheral or spinal nerve root
involvement, the sixth edition of the A.M.A., Guides and The Guides Newsletter require
identifying the impairment CDX, which is then adjusted by the GMFH and the GMCS. The
effective net adjustment formula is (GMFH-CDX) + (GMCS-CDX).17
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 shoulder, reference is made to Table 15-5 (Shoulder Regional
Grid) beginning on page 401.18 Table 15-5 also provides that, if motion loss is present for a
claimant with certain diagnosed conditions, permanent impairment may be assessed using section
15.7 (ROM impairment). Such a ROM rating stands alone and is not combined with a DBI rating.19
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”20 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.21
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than 10
percent permanent impairment of his left upper extremity and 4 percent permanent impairment of
the left lower extremity, for which he previously received schedule award compensation.22
OWCP properly found a conflict in the medical opinion evidence regarding permanent
impairment between appellant’s attending physician, Dr. Baylan, and the government physicians,
Dr. Lazarz, serving as an OWCP referral physician, and Dr. Harris, serving as a DMA. It properly
referred appellant’s case to Dr. Butler pursuant to 5 U.S.C. § 8123(a) for an impartial medical
16

Id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

17

See The Guides Newsletter; A.M.A., Guides 430.

18

Id. at 405-12.

19

Id. at 401-05, 475-78.

20

5 U.S.C. § 8123(a).

21

D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).
22
See B.M., Docket No. 19-1069 (issued November 21, 2019); C.S., Docket No. 19-0851 (issued
November 18, 2019).

7

examination in order to resolve the conflict in medical opinion evidence.23 In his November 1,
2018 report, Dr. Butler opined, with regard to impairment stemming from the lumbar spine, that
there was mildly decreased sensation and 4/5 weakness in the left lower extremity associated with
the L5 nerve distribution. Utilizing The Guides Newsletter, he properly determined that mild
sensory deficits of the L5 nerve distribution equaled one percent impairment and mild motor deficit
of the L5 nerve distribution equaled three percent permanent impairment for a combined four
percent permanent impairment of the left lower extremity.24 In addition, Dr. Butler correctly
found, with respect to the accepted cervical spine conditions, the sensory and motor findings was
normal in in the left upper extremity for a rating of zero percent in that extremity. With regard to
the accepted condition of disorder of bursae and tendons in both shoulders, Dr. Butler used the
ROM method of Table 15-34 of the sixth edition of the A.M.A., Guides to calculate 10 percent
permanent impairment of the left upper extremity.25 Therefore, Dr. Butler properly concluded that
appellant had 10 percent permanent impairment of the left upper extremity and 4 percent
permanent impairment of the left lower extremity.
As noted above, when a 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.26 The Board finds that
Dr. Butler’s November 1, 2018 report is entitled to special weight and established that, at the time
of the impartial medical examination, appellant only had 10 percent permanent impairment of the
left upper extremity and 4 percent permanent impairment of the left lower extremity. Dr. Butler’s
opinion was based on a proper factual and medical history, and on the proper tables and procedures
in the A.M.A., Guides. He correctly applied the A.M.A., Guides and The Guides Newsletter, and
he provided medical rationale for his impairment rating.27 As appellant has not provided a
rationalized medical opinion to dispute Dr. Butler’s impairment rating, the Board finds that he has
not established more than 10 percent permanent impairment of the left upper extremity and 4
percent permanent impairment of the left lower extremity, for which he previously received
schedule award compensation.28

23

See supra note 20.

24

See supra notes 16 and 17.

25

See A.M.A., Guides 475. Dr. Butler properly noted that the DBI rating method was not available for appellant’s
accepted bilateral shoulder condition, disorder of bursae and tendons. He referenced the portion of Table 15-5 for
“sprain/strain,” the closest listed condition to appellant’s accepted condition, which indicated that the DBI rating
method was to be used for this condition when there was no instability or loss of motion, but pain persisted at MMI.
Id. at 401.
26

See supra note 21.

27

See D.B., Docket No. 17-0930 (issued July 11, 2018).

28
The Board notes that as the January 31, 2019 schedule award does not address the issue of the extent and degree
of permanent impairment of the right upper extremity as, upon further development of that issue, Dr. Butler did not
find a basis for an increased permanent impairment greater than the prior schedule award. Therefore, that issue is not
before the Board on this appeal. See 20 C.F.R. § 501.2(c).

8

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing a progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than 10
percent permanent impairment of the left upper extremity and 4 percent permanent impairment of
the left lower extremity for which he previously received schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the January 31, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 24, 2020
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
99th MEDICAL SUPPORT SQUADRON,
NELLIS AIR FORCE BASE, NV, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0996
Issued: January 23, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 3, 2018 appellant filed a timely appeal from an October 10, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from the last merit decision, dated July 27, 2017, to the filing of this appeal, pursuant to

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. 20 C.F.R. § 501.3(e). An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. Id.
at § 501.3(f). One hundred and eighty days from October 10, 2017, the date of OWCP’s latest decision, was Sunday,
April 8, 2018. Because the last day of the 180-day filing period fell on a weekend, appellant had until the close of the
next business day, Monday, April 9, 2018, to timely file an appeal. Id. § 501.3(f)(2). The Clerk of the Appellate
Boards received the appeal on April 16, 2018. However, when the date of receipt would result in the loss of appeal
rights, the date of the U.S. Postal Service postmark (or other carriers’ date markings) is considered the date of filing.
Id. at § 501.3(f)(1). In this instance, the date of the U.S. Postal Service postmark is April 3, 2018, which renders the
appeal timely filed. Id.

the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of the case.3
ISSUE
The issue is whether OWCP abused its discretion when it denied appellant’s September 7,
2017 request for a hearing as untimely filed under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On February 3, 2017 appellant, then a 45-year-old secretary, filed a traumatic injury claim
(Form CA-1) alleging that, on January 27, 2017, she fractured her left foot while in the
performance of duty. She stated that she was in the employee parking lot, walking from the
warehouse to the main hospital, when a truck drove past her. As she stepped onto the curb to move
out of the truck’s path, appellant twisted her foot. She stopped work on January 30, 2017.
OWCP received hospital emergency department treatment records from January 31, 2017,
including a left lower extremity diagnostic study that revealed a possible Lisfranc fracture. It also
received podiatric treatment records covering the period February 1 through 27, 2017, which
included a February 23, 2017 operative report.4
In a June 19, 2017 development letter, OWCP requested that appellant submit additional
factual and medical evidence to support her claim. It noted, that the evidence submitted was
insufficient to establish that she actually experienced the incident alleged to have caused her
claimed left foot injury. OWCP also advised that the evidence received thus far was insufficient
to support that appellant was injured while performing her employment duties, noting that she was
in the parking lot at the time of the alleged injury. It afforded her 30 days to submit the requested
information.
OWCP subsequently received additional medical evidence.
By decision dated July 27, 2017, OWCP denied appellant’s traumatic injury claim. It
found that she had not submitted sufficient factual evidence to establish the occurrence of the
alleged January 27, 2017 employment incident. OWCP noted that appellant had not responded to
its June 19, 2017 factual questionnaire. Consequently, appellant had failed to meet her burden of
proof to establish fact of injury.
Appellant subsequently requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. She utilized the appeal request form that accompanied the

2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of
Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before
OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first
time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for
the first time on appeal. Id.
4

Appellant underwent an open reduction internal fixation to repair a left foot Lisfranc dislocation.

2

July 27, 2017 decision. Although signed and dated August 22, 2017, appellant’s hearing request
was postmarked September 7, 2017.
By decision dated October 10, 2017, the hearing representative determined that appellant
was not entitled to a hearing as a matter of right because her request was postmarked September 7,
2017, which was more than 30 days after OWCP’s July 27, 2017 decision. It was further indicated
that OWCP had exercised its discretion and further denied the request as the relevant issue of the
case could equally well be addressed by requesting reconsideration and submitting evidence not
previously considered by OWCP.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title
[relating to reconsideration], a claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on his [or her] claim before a representative of
the Secretary.”5
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”6 The hearing request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which the hearing is sought.7 However, OWCP has discretion to grant or
deny a request that is made after this 30-day period.8 In such a case, it will determine whether to
grant a discretionary hearing and, if not, will so advise the claimant with reasons.9
ANALYSIS
The Board finds that OWCP did not abuse its discretion when it denied appellant’s
September 7, 2017 hearing request as untimely filed pursuant to 5 U.S.C. § 8124(b).
Appellant had 30 days from OWCP’s July 27, 2017 merit decision to request a hearing
before OWCP’s Branch of Hearings and Review. She requested an oral hearing by appeal request
form dated August 22, 2017, and postmarked September 7, 2017. As the postmark date was more
than 30 days after OWCP’s July 27, 2017 decision, appellant was not entitled to an oral hearing as

5

5 U.S.C. § 8124(b)(1).

6

20 C.F.R. § 10.615.

7

Id. at § 10.616(a).

8

G.W., Docket No. 10-0782 (issued April 23, 2010); James Smith, 53 ECAB 188, 191-92 (2001).

9

James Smith, id.

3

a matter of right.10 Section 8124(b)(1) is unequivocal on the time limitation for requesting a
hearing.11
Although appellant was not entitled to an oral hearing as a matter of right, OWCP’s Branch
of Hearings and Review exercised its discretion in determining whether to grant appellant’s request
despite its untimely nature. In denying a discretionary hearing, the hearing representative found
that the issue in the case could equally well be addressed by requesting reconsideration before
OWCP and submitting new evidence establishing that she had sustained an injury in the
performance of duty. Because reconsideration exists as an alternative appeal right to address the
issue(s) raised by OWCP’s July 27, 2017 decision, the Board finds that OWCP did not abuse its
discretion in denying appellant’s untimely hearing request.12
CONCLUSION
The Board finds that OWCP did not abuse its discretion when it denied appellant’s
September 7, 2017 hearing request as untimely filed pursuant to 5 U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the October 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2019
Washington, DC

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

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
10
Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4a (October 2011).
11

5 U.S.C. § 8124(b)(1); see William F. Osborne, 46 ECAB 198 (1994).

12

See Gerard F. Workinger, 56 ECAB 259 (2005).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-0231
Issued: July 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 11, 2014 appellant, through counsel, filed a timely appeal from an
August 6, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation
based on its determination that the constructed position of a night auditor represented her wageearning capacity effective March 5, 2014.
FACTUAL HISTORY
On December 19, 2011 appellant, then a 27-year-old casual clerk, was injured when an
all-purpose container fell on her at work. She fell on her right side and rolled onto her back,
1

5 U.S.C. § 8101 et seq.

where she was pinned by a heavy equipment cage. Appellant returned to limited-duty work. Her
casual term ended on January 13, 2012. On March 5, 2012 OWCP accepted the claim for
contusion of the right elbow and shoulder. On July 31, 2012 it expanded the claim to include
cervical strain, thoracic strain, and lumbar strain. On September 5, 2012 appellant underwent a
left L5-S1 laminectomy/discectomy. On November 9, 2012 she began receiving total disability
compensation on the periodic rolls.
On December 14, 2012 OWCP referred appellant for a second opinion to Dr. Stanley W.
Collis, a Board-certified orthopedic surgeon, to determine the extent of work-related conditions
and her work ability.
In a February 5, 2013 report, Dr. Collis described appellant’s history and provided results
on examination. Appellant complained of pain in the lower back and right shoulder. She did not
complain of neck pain but Dr. Collis obtained neck x-rays because he noticed that the original
x-rays following the injury of the neck indicated a reversal of the cervical curvature. Dr. Collis
explained that at this time there is no reversal and a minimal decrease of the cervical curvature
only. He diagnosed postlaminectomy and disc removal of L5-SI on the left and minimal
traumatic synovitis of the right shoulder. Dr. Collis opined that the cervical strain had resolved.
Appellant did not complain of any problem in the thoracic area and he concluded that the
thoracic strain had resolved. Dr. Collis further determined that the right elbow contusion had
completely resolved as she had no complaints in that area. He explained that appellant continued
to have some right shoulder discomfort due to the contusion. Dr. Collis opined that her lumbar
strain and herniated disc had resolved but that she still had some back problems due to the
surgery for the disc protrusion of L5-S1. He opined that appellant continued with some residual
pain in the back off and on due to the surgery and the herniation. Dr. Collis determined that she
had not reached maximum medical improvement and that, generally, she would need about 10
months after surgery to reach maximum medical improvement. He explained that appellant was
not able to do all the activities that she was doing prior to the date of injury but noted that she
was not totally disabled.
Dr. Collis advised that appellant could work with restrictions with regard to her back. He
provided restrictions to include avoiding excessive bending and lifting over 20 pounds until
about May 15, 2013. Dr. Collis opined that at that point, appellant could return to her regular
work. He also indicated that she would have difficulty performing activities that required lifting
or working above right shoulder level with the right arm. Dr. Collis noted that appellant was
progressing satisfactorily with her back. He recommended that she keep using her back, but
abstain from excessive bending and lifting over 20 pounds until about May 2013. Dr. Collis also
recommended that appellant try to avoid working or lifting above shoulder level. He explained
that, if she had to do that, she “ought to use a ladder or some platform.” Dr. Collis completed a
work capacity form.
In a February 20, 2013 letter, OWCP requested that appellant’s treating physician,
Dr. William Ante, a Board-certified internist, review the report of Dr. Collis and comment on
whether he concurred with his findings related to ongoing residuals and work restrictions.
In a February 28, 2013 report, Dr. Ante advised that appellant had not reached maximum
medical improvement. He concurred with Dr. Collis with regard to appellant not being totally

2

disabled for work and recommended restrictions of no repetitive bending, no lifting over 20
pounds, and no overhead work. Dr. Ante noted that he did not necessarily believe the time frame
for maximum medical improvement would be May. He continued to treat appellant and
recommended physical therapy and restrictions.
OWCP referred the claim to vocational rehabilitation services. On April 2, 2013 the
vocational rehabilitation counselor noted meeting with appellant and discussed her experience
and education, which included a high school diploma and some college. Appellant was one year
away from achieving a medical assistant certificate, and being one semester away from a twoyear criminal justice degree. Additionally, the vocational rehabilitation counselor indicated that
she had previously worked as a night auditor and desk clerk at a hotel/motel. He determined that
appellant should adopt a goal of employment as a night auditor and a desk clerk for hotel/motels.
The night auditor position Department of Labor’s Dictionary of Occupational Titles
(DOT) No. 210.382-054, was classified as a sedentary light position. The duties included
verifying and balancing entries and records of financial transactions reported by various hotel
departments during day, using basic math skills, such as adding, bookkeeping, and calculating
machines. It was noted that appellant might perform the duties of a hotel clerk. DOT
No. 238.367-038 in smaller establishments. The duties of that position included compiling and
maintaining records, recording data, performing performance reviews or evaluations, processing
employment applications, assisting in other employment activities, preparing reports using
typewriter or computer, and administer and score aptitude, personality, and interest tests. The
physical requirements were described as light and included lifting up to 20 pounds, rare stooping,
occasional balancing, crouching, reaching, frequent handling, occasional fingering and feeling,
and frequent talking and hearing. No climbing, kneeling, or crawling was required.
On May 6, 2013 the vocational rehabilitation counselor found that appellant met the
specific vocational preparation for the night clerk/auditor position. He listed the average weekly
earnings of a night clerk/auditor as $400.00 a week based wage data from the state of Indiana,
determined that appellant was educationally qualified for the job, and found that the position was
available in sufficient numbers on a full-time basis in appellant’s commuting area based on her
placement service, labor market research, and the state employment service. In a June 27, 2013
status report, the vocational rehabilitation counselor noted that the vocational rehabilitation plan
was approved and the job search would proceed.
In a letter dated June 27, 2013, OWCP advised appellant that the vocational rehabilitation
counselor had found her able to work as a night auditor. Appellant was informed that the
selected position was suitable to her restrictions and that she would receive 90 days of placement
assistance to help her locate such a position. OWCP noted that based on the vocational
rehabilitation counselor’s evaluation and a survey of the local labor market, appellant had or
would have had a wage-earning capacity of up to $400.00 a week. Appellant was notified that,
at the end of the rehabilitation program, her compensation would likely be reduced, whether she
was actually employed or not.
In a November 21, 2013 report, Dr. Ante noted that an October 29, 2013 functional
capacity evaluation (FCE) supported appellant’s ability to perform medium physical demand
work including lifting/pushing/pulling up to 30 pounds, occasional walking, stairs, balancing,

3

bending, stooping, crouching, squatting, twisting, and work above the shoulder and at level. He
also indicated that appellant was capable of frequent sitting, standing, and finger grasping along
with prolonged neck position, fine finger manipulation, light grasping, pinching, and reaching
forward. Dr. Ante advised that she reached maximum medical improvement.
On December 11, 2013 the vocational rehabilitation counselor concluded placement
services on behalf of appellant. It was noted that appellant had been provided with 90 days, plus
an additional 70 plus days of placement assistance, but did not obtain employment. The
vocational rehabilitation noted that the position of night auditor at the rate of $400 a week was
performed in sufficient numbers within the commuting area to make it reasonably available.
In a December 17, 2013 telephone call memorandum, OWCP confirmed that the current
hourly rate for a casual mail handler at level 7 was $12.00 a hour and had not changed since the
date of injury.
On January 21, 2014 OWCP proposed to reduce appellant’s wage-loss compensation
because the medical and factual evidence of record established that she had the capacity to earn
the wages of a night auditor, DOT No. 210.382-054. The physical requirements of the night
auditor were described as light work with lifting up to 20 pounds, occasional balancing,
crouching, reaching, fingering, and feeling with frequent handling and hearing/seeing. It was
noted that the physical requirements did not exceed the work restrictions provided by Dr. Collis
in his February 5, 2013 report, and Dr. Ante in his November 21, 2013 report. OWCP noted that
appellant’s wage-earning capacity was less than the current rate of pay of the job she held when
injured and they proposed to reduce her wage loss to $386.00 every four weeks. Appellant was
provided 30 days to submit additional evidence or argument in support of any objection to the
proposed reduction.
In a memorandum of telephone call dated January 27, 2014, appellant discussed the
proposed reductions and related that she had never been informed that her compensation would
be reduced. However, OWCP explained that the June 2013 letter clearly explained the process.
Appellant was given an additional 30 days to submit any arguments.
In a letter dated February 19, 2014, appellant disagreed with OWCP’s proposal to reduce
her compensation. She indicated that despite six months of vocational rehabilitation, she was
unable to find a job. Appellant stated that the proposed job of night auditor was not available in
her area. She indicated that her vocational rehabilitation counselor’s business address was an
empty cornfield in Illinois and they were not even looking at the night auditor position during her
vocational rehabilitation. Appellant argued that the night auditor duties were outside her
restrictions. She noted that she previously worked a night audit or position at a hotel and she
was required to help guests with their luggage and to deliver packages to guest rooms. Appellant
also questioned the wage of a night auditor.
In a March 5, 2014 decision, OWCP reduced appellant’s compensation benefits effective
that date, based upon her ability to earn wages in the constructed position of night auditor. Using
the formula in Albert C. Shadrick,2 it noted that appellant’s salary on the date her disability
2

5 ECAB 376 (1953).

4

began, on December 19, 2011, was $527.55 a week and the current adjusted pay rate for her job
on the date of injury was the same as of January 15, 2014. Appellant was found currently
capable of earning $400.00 a week, the pay rate of a night auditor.3 OWCP determined that she
had a 76 percent wage-earning capacity, which resulted in an adjusted wage-earning capacity of
$400.85 a week. This yielded a new compensation rate equal to $392.00 every four weeks.
By letter dated May 12, 2014, counsel requested reconsideration. He argued that the
Department of Labor’s Dictionary of Occupational Titles was outdated, no longer used, and had
not been updated for many years. Counsel argued that the failure to update the Department of
Labor’s Dictionary of Occupational Titles was being used as a basis to deny claimants their basic
rights and that reliance upon a defunct and outdated publication meant the injured workers were
having their compensation payments reduced based on a fiction. Additionally, he argued that the
Department of Labor’s Dictionary of Occupational Titles was no longer relevant and had been
replaced by the Occupational Information Network (O*Net). Counsel argued that the decision to
reduce her compensation should be vacated. OWCP also received a copy of the October 29,
2013 FCE and physical therapy notes.
By decision dated August 6, 2014, OWCP denied modification of the March 5, 2014
decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.4
Section 8115(a) of FECA,5 provides in determining compensation for partial disability,
the wage-earning capacity of an employee is determined by his or her actual earnings if his or
her actual earnings fairly and reasonably represent his or her wage-earning capacity. Generally,
wages actually earned are the best measure of a wage-earning capacity and in the absence of
evidence showing they do not fairly and reasonably represent the injured employee’s wageearning capacity, must be accepted as such measure.6 If the actual earnings do not fairly and
reasonably represent wage-earning capacity, or if the employee has no actual earnings, his or her
wage-earning capacity is determined with due regard to the nature of her injury, her degree of
physical impairment, her usual employment, her age, her qualifications for other employment,
the availability of suitable employment and other factors and circumstances which may affect her
wage-earning capacity in his disabled condition.7 Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment
3

OWCP also noted that appellant had prior experience as a front desk clerk and night auditor in the hotel
industry.
4

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

5

5 U.S.C. § 8115.

6

Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971).

7

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

5

conditions.8 The job selected for determining wage-earning capacity must be a job reasonably
available in the general labor market in the commuting area in which the employee lives.9 In
determining an employee’s wage-earning capacity, OWCP may not select a makeshift or odd lot
position or one not reasonably available on the open labor market.10
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to physical limitation, education,
age, and prior experience. Once this selection is made, a determination of wage rate and
availability in the open labor market should be made through contact with the state employment
service or other applicable service.11 Finally, application of the principles set forth in Albert C.
Shadrick will result in the percentage of the employee’s loss of wage-earning capacity.12
ANALYSIS
OWCP accepted appellant’s claim for contusion of the right elbow and shoulder. On
July 31, 2012 it expanded the claim to include cervical strain, thoracic strain, and lumbar strain.
Appellant received compensation and medical benefits. On September 5, 2012 she underwent
lumbar surgery consisting of a left L5-S1 laminectomy/discectomy, and she was placed on the
periodic rolls on November 9, 2012.
On February 5, 2013 Dr. Collis, the second opinion physician, found that appellant was
no longer totally disabled and could work full-time subject to work restrictions. He provided
restrictions to include avoiding excessive bending of her back and no lifting over 20 pounds until
about May 15, 2013.
On February 28, 2013 Dr. Ante concurred with Dr. Collis and
recommended similar restrictions of no repetitive bending, no lifting over 20 pounds, and no
overhead work.
The vocational rehabilitation counselor determined that appellant was able to perform the
position of a night auditor. He noted her education, advised that she had prior experience as a
night auditor and hotel clerk, and determined that the position was available in sufficient
numbers so as to make it reasonably available within appellant’s commuting area. The position
was sedentary/light. The physical requirements were described as light and included lifting up to
20 pounds, rare stooping, occasional balancing, crouching, reaching, frequent handling,
occasional fingering and feeling, and frequent talking and hearing. No climbing, kneeling, or
crawling was required. The Board notes that both the second opinion physician, Dr. Collis, and
8

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

9

Id.

10

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

11

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999).

12

Id. See Shadrick, 5 ECAB 376 (1953).

6

the treating physician, Dr. Ante, confirmed that appellant could work in the light/sedentary
physical demand category. The Board finds that OWCP properly determined this position met
appellant’s physical restrictions
The vocational rehabilitation counselor noted the duties of a night auditor and explained
that appellant had a high school education and some college coursework and prior experience in
this type of position. The Board finds that OWCP properly found that appellant was vocationally
capable of performing the night auditor position and that the position was reasonably available in
her commuting area at an average wage of $400.00 a week. The Board finds that it considered
the proper factors, such as availability of suitable employment and appellant’s physical
limitations, usual employment, age and employment qualifications, in determining that the
position of night auditor represented her wage-earning capacity.13 Therefore, OWCP properly
reduced her compensation effective March 5, 2014 based on her capacity to earn wages as a
night auditor.
Appellant argued in a letter dated February 19, 2014, that, despite six months of
vocational rehabilitation, she was unable to find a job. She indicated that the proposed jobs of
night auditor were not available in her area. Appellant indicated that her vocational
rehabilitation counselor’s business address was an empty cornfield in Illinois and they were not
even looking at the night auditor positions during her vocational rehabilitation. She argued that
night auditor duties were outside her restrictions. Appellant noted that she had previously
worked a night auditor position at a hotel and was required to carry luggage and packages to
guest rooms. She also questioned the wage of a night auditor. Appellant requested that the
proposed reduction of compensation be vacated and that she be approved for appropriate
compensation. The Board, as noted above, finds that the night auditor position comported with
her restrictions. Regarding her arguments about availability of jobs, the counselor is an expert in
the field of vocational rehabilitation; OWCP may rely on his or her opinion as to whether the job
is reasonably available and vocationally suitable.14 The fact that appellant was unable to secure a
position does not mean that the position is not reasonably available to him in the open labor
market.15
Counsel argued on reconsideration and on appeal that the Department of Labor’s
Dictionary of Occupational Titles was obsolete and no longer described positions performed in
the current labor market. However, despite the criticism of the Department of Labor’s
Dictionary of Occupational Titles, the dispositive question is whether the selected position met
appellant’s requirements and was reasonable available to appellant.16 The position met
appellant’s physical limitation and was reasonably available in her commuting area. Counsel has
not failed to provide a compelling argument that the night auditor position was not appropriate.
13

James M. Frasher, 53 ECAB 794 (2002).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.6(b) (June 2013).
See also B.H., Docket No. 13-583 (issued
September 10, 2013).
15

Lawrence D. Price, 54 ECAB 590 (2003).

16

Federal (FECA) Procedure Manual, supra note 14. See M.B., Docket No. 15-76 (issued March 9, 2015).

7

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation,
based on its determination that the constructed position of a night auditor represented her wageearning capacity effective March 5, 2014.
ORDER
IT IS HEREBY ORDERED THAT the August 6, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 21, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Plantation, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Docket No. 08-679
Issued: September 12, 2008

Appearances:
Lawrence Berger, Esq., for the appellant
Miriam D. Ozur, Esq., for the Director

Oral Argument July 9, 2008

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

JURISDICTION
On January 9, 2008 appellant filed an appeal from decisions of the Office of Workers’
Compensation Programs dated January 17 and October 4, 2007 that rescinded acceptance of her
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether the Office met its burden of proof to rescind acceptance of
appellant’s claim that her multiple sclerosis (MS) condition was precipitated by a July 10, 1996
employment injury.
FACTUAL HISTORY
On July 10, 1996 appellant, then a 45-year-old special agent, was in an employmentrelated motor vehicle accident. On October 10, 1996 the claim was accepted for cervical strain,

and on October 7, 1997, the Office accepted that appellant sustained left lateral epicondylitis.1
Following further development, on December 15, 2000, the Office accepted the condition of
precipitation of MS.
By report dated November 23, 2005, Dr. Brian Steingo, appellant’s attending Boardcertified neurologist, advised that the residuals of the accepted precipitation of MS would end
when appellant died, and the natural course of the disease was progression.2 He noted his review
of neuropsychological testing conducted in May 2003 by Dr. Sherry Surloff, and advised that the
July 10, 1996 accident caused cognitive dysfunction including memory loss, diminished speed of
thinking and difficulty concentrating, dizziness, visual disorientation, blurry vision, headaches,
chronic fatigue, depression, upper and lower extremity muscle weakness, spasticity, numbness
and pain. On an attached work capacity evaluation, Dr. Steingo advised that appellant could not
work.
In November 2005, the Office referred appellant to Dr. Morton Corin, a Board-certified
neurologist, for a second opinion evaluation.3 In a report dated January 9, 2006, Dr. Corin
diagnosed myofascial syndrome secondary to the July 10, 1996 automobile accident. He opined
that it was unlikely that appellant had MS as her symptoms were quite nonspecific, a magnetic
resonance imaging (MRI) scan was nonspecific, and his neurological examination was normal.
Dr. Corin advised that appellant had no disabling residuals and could work as a criminal
investigator. On January 27, 2006 Dr. Steingo advised that the 1996 exacerbation of MS had not
subsided and appellant continued to suffer from disabling residuals.
The Office found a conflict in medical opinion evidence between Dr. Steingo and
Dr. Corin as to whether appellant’s MS was precipitated by the July 10, 1996 motor vehicle
accident. It referred appellant to Dr. David Bruce Ross, a Board-certified neurologist, for an
impartial evaluation. By report dated February 22, 2006, Dr. Steingo noted his review of
Dr. Corin’s report and disagreed with his opinion and conclusions. He advised that appellant
was totally disabled as a result of progressive MS.

1

The instant claim was adjudicated by the Office under file number 060656634, and the left upper extremity
claim under file number 060676287.
2

Dr. Steingo opined that appellant’s MS was precipitated by the July 10, 1996 automobile accident. Dr. Harish
Thacker, a Board-certified neurologist, performed a second opinion evaluation for the Office and opined that
appellant’s MS was not aggravated by the July 10, 1996 employment injury. By decision dated January 4, 2000, the
Office denied that appellant’s MS was employment related. Appellant requested reconsideration and submitted a
June 27, 2000 report from Dr. Alireza Minagar, who was then a resident physician. He advised that a motor vehicle
accident could precipitate MS. On December 15, 2000 the Office accepted appellant’s claim for precipitation of
MS. The Office also accepted that the July 10, 1996 motor vehicle accident accelerated appellant’s preexisting
cervical degenerative disc disease. She stopped work and underwent authorized spinal fusion surgery on
September 19, 2001, has not returned to work, and was placed on the periodic rolls.
3

Appellant was also referred to Dr. Ismael Montane, Board-certified in orthopedic surgery, for a second opinion
evaluation regarding her cervical condition. In a January 6, 2006 report, the physician provided findings on
examination and diagnosed work-related cervical discogenic disease, MS, hypertension, and mitral valve prolapse,
advised that there were no residuals of the July 10, 1996 injury, and that she could return to full duty as a criminal
investigator.

2

Dr. Ross performed a review of the medical record, appellant’s description of her
symptoms and medications, and medical literature regarding MS. In an April 29, 2006 report, he
noted the history of injury and appellant’s complaints, reporting that she appeared severely
anxious. Motor examination showed normal tone and bulk with no atrophy or fasciculations and
5/5 strength. Deep tendon reflexes were normal and symmetric with no tremors, abnormal
movements or abnormal postures noted. Babinski sign was absent bilaterally. Stance, gait,
coordination testing and Romberg were normal. Appellant demonstrated decreased perception to
light touch on the left. Dr. Ross discussed various studies found in the medical literature and
opined that appellant did not fall into any of the four clinical courses of MS, advising that, if she
did have MS, it was of a benign type and did not meet the criteria for progressive MS. He
reported that the consensus opinion was that only rarely did accidents and trauma precipitate or
exacerbate MS, and advised that he did not believe appellant fell into one of the exceptions,
concluding that the July 10, 1996 accident did not precipitate an MS exacerbation in appellant’s
case and that her complaints were not caused by MS. Dr. Ross opined that appellant was not
disabled, stating that she “clearly has the physical abilities to work at light level work.” He did
not agree with Dr. Surloff’s conclusions on neuropsychological testing, advising that the results
reflected a false positive overestimation of emotional dysfunction, finding no physiologic brain
dysfunction based on external and treatment inconsistencies and current presentation, noting that
appellant vigorously argued her case both in person and in letters. Dr. Ross diagnosed
questionable atypical MS, not caused by work injury.
By letter dated July 12, 2006, the Office proposed to terminate appellant’s compensation
benefits for the condition of MS as precipitated by the July 10, 1996 employment injury.
Appellant, through her attorney, disagreed with the proposed termination, and submitted an
August 3, 2006 report in which Dr. Alireza Minagar, a Board-certified neurologist, who stated
that he had special qualifications in the research and study of MS, noted that he had examined
appellant initially in 2000. Dr. Minagar reported his review of medical records including
Dr. Ross’ report, and advised that the July 10, 1996 motor vehicle accident precipitated the onset
of appellant’s MS. He diagnosed advanced MS with cognitive disorder and advised that she was
permanently disabled.
By decision dated January 17, 2007, the Office rescinded acceptance of appellant’s MS
condition. It noted that appellant continued to be entitled to compensation and medical benefits
for her accepted cervical condition.
Appellant requested a hearing that was held on July 25, 2007. Her attorney argued that,
as Dr. Ross was not a specialist in MS, his report should not be given the weight of medical
opinion. Dr. Steingo testified that he had treated appellant since 1996 and discussed her
symptoms and treatment. He stated that appellant had no MS symptoms until shortly after the
July 10, 1996 motor vehicle accident.4 In an August 14, 2007 report, Dr. Minagar noted that he
examined appellant on July 26, 2006 and disagreed with Dr. Ross. He reiterated his findings and
conclusions that the July 10, 1996 motor vehicle accident precipitated appellant’s onset of MS.

4

By letter dated August 8, 2007, the Office informed appellant that her accepted conditions were displacement of
cervical intervertebral disc without myelopathy and cervical spondylosis with myelopathy.

3

By decision dated October 4, 2007, an Office hearing representative affirmed the
January 17, 2007 decision.
LEGAL PRECEDENT
Section 8128 of the Federal Employees’ Compensation Act provides that the Secretary of
Labor may review an award for or against payment of compensation at any time on her own
motion or on application.5 The Board has upheld the Office’s authority to reopen a claim at any
time on its own motion under section 8128 and, where supported by the evidence, set aside or
modify a prior decision and issue a new decision.6 The Board has noted, however, that the
power to annul an award is not an arbitrary one and that 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. It is well established
that, once the Office accepts a claim, it has the burden of justifying the termination or
modification of compensation benefits. This holds true where, as here, the Office later decides
that it erroneously accepted a claim. In establishing that its prior acceptance was erroneous, the
Office is required to provide a clear explanation of the rationale for rescission.8
Section 8123(a) of the Act provides that an employee shall submit to examination by a
medical officer of the United States, or by a physician designated or approved by the Secretary
of Labor, after the injury and as frequently and at the times and places as may be reasonably
required.9 Office regulations at section 10.320, provide that a claimant must submit to
examination by a qualified physician as often and at such time and places as the Office considers
reasonably necessary.10 The determination of the need for an examination, the type of
examination, the choice of locale and the choice of medical examiners are matters within the
province and discretion of the Office, and the only limitation on the Office’s authority, with
regard to instructing a claimant to undergo a medical examination, is that of reasonableness.11
Section 8123(a) further provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.12 When the case is referred to an
5

5 U.S.C. § 8128.

6

Paul L. Stewart, 54 ECAB 824 (2003).

7

V.C., 59 ECAB ____ (Docket No. 07-642, issued October 18, 2007).

8

L.C., 58 ECAB ____ (Docket No. 06-1263, issued May 3, 2007).

9

5 U.S.C. § 8123(a); see Alfred R. Anderson, 54 ECAB 179 (2002).

10

20 C.F.R. § 10.320; see Dana D. Hudson, 57 ECAB 298 (2006).

11

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

12

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

4

impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.13
ANALYSIS
On December 10, 2000 the Office accepted that an employment-related July 10, 1996
motor vehicle accident precipitated the onset of appellant’s MS, based on the opinion of
Dr. Minagar, who was then a resident physician. The Office conducted further development of
the medical evidence, and in November 2005 referred appellant to Dr. Corin for a second
opinion evaluation. He opined that it was unlikely that appellant had MS, and that she was not
disabled and could return to her usual employment. Appellant’s attending physician,
Dr. Steingo, also advised that appellant was totally disabled due to MS that was precipitated by
the July 10, 1996 automobile accident. The Office properly referred appellant to Dr. Ross for an
impartial evaluation.14
Dr. Ross performed a review of the medical record, medical literature regarding MS, and
appellant’s description of her symptoms. In a comprehensive report dated April 29, 2006, he
provided extensive findings on physical examination. Dr. Ross discussed studies found in the
medical literature and opined that appellant did not fall into any of the four clinical courses of
MS, advising that, if she did have MS, it was of a benign, not progressive, type and that the
consensus opinion was that, while accidents and trauma could rarely precipitate or exacerbate
MS, he did not believe appellant fell into one of the exceptions. He diagnosed questionable
atypical MS, not caused by work injury and concluded that the July 10, 1996 motor vehicle
accident did not precipitate an MS exacerbation, that her complaints were not caused by MS, and
that she was not disabled. Dr. Ross also did not agree with Dr. Surloff’s conclusions on
neuropsychological testing, explaining that appellant vigorously argued her case both in person
and in letters.
At oral argument, appellant’s attorney objected to the fact that the Office referred
appellant for further examination. Pursuant to the Act, Office regulations, and Board precedent,
an employee must submit to examination by a qualified physician as often and as such times and
places as the Office considers reasonably necessary.15 The Office determines the necessity for a
second opinion evaluation, and a claimant has no discretion in the matter.16 The Board finds that
it was reasonable for the Office to further develop appellant’s claim in order to more carefully

13

Manuel Gill, 52 ECAB 282 (2001).

14

5 U.S.C. § 8123(a). Drs. Corin, Steingo and Ross are Board-certified in neurology. Dr. Minagar became Board
certified in 2001.
15

5 U.S.C. § 8123(a); 20 C.F.R. § 10.320; Lynn C. Huber, supra note 11.

16

E.B., 59 ECAB ___ (Docket No. 07-1618, issued January 8, 2008). The Board further notes that a claimant
must timely raise any objection to a selected referee physician in order to participate in the selection process and
must provide valid reasons. G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008). In this case
appellant did not object to the scheduled examination by Dr. Ross.

5

evaluate her condition and did not abuse its discretion in developing the claim following the
acceptance of precipitation of MS.17
Dr. Steingo testified at the hearing that appellant’s MS was caused by the July 10, 1996
motor vehicle accident. Appellant submitted additional reports from Dr. Minagar dated
August 3, 2006 and August 14, 2007. A subsequently submitted report of a physician on one
side of a resolved conflict of medical opinion is generally insufficient to overcome the weight of
the impartial medical specialist or to create a new conflict of medical opinion.18 The Board finds
that their opinions are insufficient to overcome the weight accorded Dr. Ross as an impartial
medical specialist or to establish a new conflict in medical evidence.19
The Board finds that, as Dr. Ross based his report on a correct factual background and
provided a detailed report with medical rationale explaining how he arrived at his conclusion that
the July 16, 1996 motor vehicle accident did not precipitate appellant’s MS, his opinion is
entitled to special weight.20 The Office therefore properly rescinded appellant’s claim that her
MS was employment related.
CONCLUSION
The Board finds that the Office properly rescinded acceptance of appellant’s claim that
her MS condition was precipitated by a July 10, 1996 employment injury.

17

See Walter L. Jordan, 57 ECAB 218 (2005).

18

Richard O’Brien, 53 ECAB 234 (2001).

19

See generally I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008).

20

Manuel Gill, supra note 13.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 4, 2007 be affirmed.
Issued: September 12, 2008
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
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elephant Butte, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1183
Issued: May 12, 2020

Case Submitted on the Record

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

JURISDICTION
On May 23, 2018 appellant filed a timely appeal from a March 13, 2018 merit decision and
a March 23, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP abused its discretion by denying authorization for right
hip arthroscopic femoroplasty and acetabuloplasty; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 23, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
This case has been previously before the Board.3 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On March 31, 2015 appellant, then a 35-year-old sales and service distribution associate,
injured both shoulders when a gate fell on her that date. On January 22, 2016 OWCP accepted the
claim for concussion without loss of consciousness and sprain of the ligaments of the cervical and
lumbar spine. It subsequently expanded the acceptance of appellant’s claim to include cervical
disc displacement, occipital-atlanto axial region, intervertebral disc displacement of the
lumbosacral region, cervical and lumbar disc protrusions, postconcussion syndrome, migraine not
intractable, post-traumatic seizures, and strain of the muscle fascia and tendon of the right hip.
Appellant stopped work on March 31, 2015 and did not return.
In July 2016 Dr. Keith R. Johnson, a Board-certified orthopedic surgeon, began treating
appellant. In an August 12, 2016 report, he diagnosed sprain of the cervical, thoracic, and lumbar
ligaments, brachial plexus disorder, sciatica right side, and cervical and lumbar radiculopathy.4
Dr. Johnson continued to treat appellant.
Additional medical evidence relevant to appellant’s claimed right hip condition includes a
March 22, 2016 second-opinion evaluation in which Dr. James E. Butler, III, a Board-certified
orthopedic surgeon, noted her complaint of right hip pain. Physical examination findings included
that hip muscle strength was normal. Dr. Butler diagnosed cervical and lumbar sprains and
concussion without loss of consciousness. He advised that appellant could return to modified-duty
work and needed no further orthopedic treatment.
On a June 5, 2017 treatment note, Dr. Johnson additionally noted appellant’s complaint of
right hip pain. He diagnosed unspecific sprain of the right hip. On a work capacity evaluation (Form
OWCP-5c) dated August 8, 2017, Dr. Johnson advised that appellant did not have full range of
motion of her hip. In undated correspondence, received by OWCP on September 6, 2017, he noted
that her right hip bursa was tender to palpation. Dr. Johnson opined that additional conditions were
caused by the March 31, 2015 employment injury, including right hip labral tear. In reports dated
October 4, 2017, he noted appellant’s complaint of constant right hip pain with difficulty bending,
decreased range of motion, and a positive pincer sign. Dr. Johnson requested authorization for right
hip diagnostic studies.
Dr. Gary D. Barham, also Board-certified in orthopedic surgery, completed a secondopinion evaluation on September 19, 2017. He advised that there was questionable validity of his

3

Docket No. 17-1393 (issued March 20, 2018). By that decision the Board found that OWCP properly determined
that appellant received an overpayment of compensation in the amount of $1,387.01 for the period May 14, 2016
through April 1, 2017, properly denied waiver of recovery of the overpayment, and properly required recovery of the
overpayment by deducting $250.00 from her continuing compensation payments.
4
Dr. Helson Pacheco-Serrant, who practices neurosurgery, began treating appellant in March 2016 for her spinal
conditions. On October 4, 2017 he requested authorization for cervical spine surgery.

2

examination findings, noting psychic overlay. Dr. Barham diagnosed lumbosacral and cervical
sprains.5
By letter dated October 13, 2017, OWCP asked Dr. Barham specific questions regarding
appellant’s right hip condition. In an October 18, 2017 response, he advised that, regarding the
right hip, the March 31, 2015 injury did not aggravate a preexisting condition, did not precipitate
a latent condition, and did not accelerate an underlying condition. Dr. Barham explained that
appellant had no major muscular/skeletal pathology of significance that would be aggravated by
the trauma experienced on March 31, 2015 noting no radiographic or clinical signs that would
indicate such, and opined that soft tissue injuries such as contusion, bruise, etc. would clear within
7 to 10 days. He also indicated that the conditions of concussion without loss of consciousness,
sprain of ligaments of cervical spine, sprain of ligaments of lumbar spine, other cervical
displacement, occipito atlanto axial region, and other intervertebral disc displacement, lumbosacral
region had all resolved.
An October 25, 2017 magnetic resonance imaging (MRI) scan arthrogram of the right hip
demonstrated a full-thickness labral tear component with no displacement, mild gluteus minimus
insertional tendinosis, and mild edema/trace fluid in the trochanteric bursal region.
By report dated November 29, 2017, Dr. Johnson indicated that appellant reported that her
hip pain began after the March 31, 2015 employment injury, that her symptoms continued to
become progressively more severe, and that they interfered with her normal activities of daily
living including sleep, work, and recreation. He noted the October 25, 2017 MRI scan arthrogram
findings. Right hip examination revealed pain, clicking, limited range of motion, and positive
impingement. Dr. Johnson diagnosed other sprain of the right hip, right hip labral tear, and right
hip pain. He indicated that appellant had failed greater than six months of conservative treatment
including activity modification, physical therapy, rest, and analgesics, and requested surgical
authorization.
On December 3, 2017 OWCP determined that a conflict in medical opinion evidence had
been created between the opinion of appellant’s treating physician Dr. Johnson, who maintained
that her right hip condition was related to the March 31, 2015 employment injury, and OWCP’s
second opinion physician Dr. Barham, who opined that her right hip condition preexisted the
March 31, 2015 employment injury.6
On December 11, 2017 Dr. Johnson requested authorization for right hip arthroscopy
femoroplasty and acetabuloplasty.
By letter dated December 12, 2017, OWCP notified appellant that her request for
authorization of right hip arthroscopy with femoroplasty and hip arthroscopy acetabuloplasty could
not be approved because the requested treatment did not appear to be medically necessary for and
5

September 19, 2017 x-rays of the cervical, thoracic, and lumbosacral spines demonstrated mild degenerative
changes with no acute pathology.
6
OWCP additionally found that the conflict between the two physicians was also regarding whether appellant’s
right shoulder condition was caused by the March 31, 2015 employment injury and whether she had residuals of the
accepted conditions.

3

causally related to accepted conditions. It requested that she submit a detailed explanation
regarding whether additional conditions should be accepted and how and why the requested
procedure was needed.
In correspondence dated December 17, 2017, appellant maintained that her right hip injury
was not preexisting and that she would proceed with right hip surgery because she was in pain.
She forwarded a copy of December 12, 2017 correspondence from OWCP to her requesting a
periodic medical report. This included unsigned, undated, and unidentified comments indicating
that the right hip labral tear was related to the March 31, 2015 employment injury, noting that
appellant was in pain and walked with a terrible limp. Appellant also submitted an undated
declaration in which she described the March 31, 2015 employment injury.
In a Form OWCP-5c dated January 10, 2018, Dr. Johnson indicated that appellant was
totally disabled pending surgery.
On February 16, 2018 OWCP referred appellant to Dr. Daniel Romanelli, a Board-certified
orthopedic surgeon, for a referee examination.
In a March 2, 2018 report, Dr. Romanelli noted his review of the statement of accepted
facts, the medical record, and appellant’s complaints of extreme hip, lumbar spine, shoulder and
neck pain. He reported her description of the March 31, 2015 employment injury, noting that she
had not worked since then, and that she disagreed with some of the medical evidence of record,
including the initial emergency department report. Dr. Romanelli meticulously described
examination findings, noting that, on right hip examination, left logroll caused bilateral hip pain
and left leg pain; right logroll caused pain in appellant’s leg and right hip, sacrum and tailbone;
that with the Hoover’s test appellant was not able to lift her right leg off the bed; forward flexion
was to 10 degrees with discomfort, and that appellant was unable to do the Faber test. His
diagnoses included right hip sprain/strain caused by the March 31, 2015 employment injury.
Dr. Romanelli opined that the sprains and strains usually resolve within 6 to 12 weeks. Regarding
the right hip, he opined that to a reasonable degree of medical probability and certainty, the
March 31, 2015 injury did not precipitate or aggravate any underlying condition. Dr. Romanelli
advised that appellant had multiple inconsistencies throughout her examination that were
nonanatomic and nonphysiologic and were suggestive of behavioral illness, noting descriptions
that were not physiologically possible. With regard to the right hip, he indicated that the initial
diagnostic studies were negative, noting multiple inconsistencies throughout her examination.
Dr. Romanelli reviewed extensive diagnostic studies, and advised that x-rays of the hip showed
mild degenerative changes consistent with her age, and that the labral tearing shown on the MRI
scan was more consistent with degenerative changes than with acute findings. He opined that, to
a reasonable degree of medical probability and certainty, appellant was at maximum medical
improvement (MMI) by June 31, 2015 with regard to the right hip sprain/strain, and that further
medical treatment was not necessary or medically appropriate for this condition. Dr. Romanelli
opined that she had no temporary, permanent, or preventative restrictions, and that she could return
to full duty in the same position held prior to the date of injury. He concluded that, to a reasonable
degree of medical probability and certainty, the accident of March 31, 2015 did not aggravate,
precipitate, or accelerate any preexisting or underlying condition.
On March 13, 2018 OWCP expanded acceptance of appellant’s claim to include strain of
the muscle fascia and tendon of the right hip.
4

By decision dated March 13, 2018, OWCP denied authorization for right hip arthroscopic
femoroplasty and arthroscopic acetabuloplasty. It found that Dr. Romanelli’s report represented
the special weight of the medical evidence and established that the proposed right hip surgery was
not medically necessary or causally related to the accepted work-related conditions.
On March 16, 2018 appellant requested reconsideration. She submitted a report from
Dr. Pacheco-Serrant dated January 10, 2017, the unsigned, undated response to an OWCP
questionnaire dated December 12, 2017, copies of OWCP’s March 13, 2018 decision, and an
undated declaration statement, all previously of record. Appellant also submitted a January 10,
2018 treatment note from Dr. Johnson in which he reiterated his previous findings and conclusions,
again maintaining that her right hip labral tear was not preexisting.
In a March 23, 2018 decision, OWCP denied appellant’s request for reconsideration of the
merits of her claim. It found that, as her request neither raised substantive legal questions nor
included new and relevant evidence, it was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
Section 8103 of FECA7 provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.8 In interpreting this section of FECA, the
Board has recognized that OWCP has broad discretion in approving services provided under
section 8103, and the only limitation on OWCP’s authority is that of reasonableness.9
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.10 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence.11 In order to prove that the procedure is
warranted, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted. Both of these criteria must
be met in order for OWCP to authorize payment.12

7

Supra note 1.

8

5 U.S.C. § 8103(a); see M.P., Docket No. 19-1557 (issued February 24, 2020); M.B., 58 ECAB 588 (2007).

9
B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding
that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise
of judgment, or administrative actions which are contrary to both logic, and probable deductions from established
facts).
10

See R.M., Docket No. 19-1319 (issued December 10, 2019) Debra S. King, 44 ECAB 209 (1992).

11

B.I., supra note 9; see also K.W., Docket No. 18-1523 (issued May 22, 2019); Bertha L. Arnold, 38 ECAB
282 (1986).
12

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

5

Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.13 This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.14 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial examiner 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.15
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly exercised its discretion by denying appellant
authorization for right hip arthroscopic femoroplasty and acetabuloplasty. Dr. Johnson, an
attending orthopedic surgeon, requested authorization for the procedure. OWCP properly found
that, a conflict in medical opinion was created between the opinions of him, appellant’s attending
physician, and Dr. Barham, an OWCP referral physician, regarding whether the proposed right hip
procedure should be authorized. Consequently, pursuant to 5 U.S.C. § 8123(a) of FECA, OWCP
properly referred appellant to Dr. Romanelli to resolve the conflict in medical opinion.16
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Romanelli who examined appellant, reviewed the medical evidence, and found that the need
for any further medical treatment, which would include the proposed right hip surgery, was neither
medically necessary nor causally related to the accepted right hip strain.17
In an extensive March 2, 2018 report, Dr. Romanelli reviewed appellant’s history and
noted findings on examination. His diagnoses included right hip sprain/strain, and on that basis,
on March 13, 2018 OWCP expanded acceptance of her claim to include strain of the muscle fascia
and tendon of the right hip. Regarding the right hip, Dr. Romanelli opined that, to a reasonable
degree of medical probability and certainty, the March 31, 2015 employment injury did not
precipitate or aggravate any underlying condition, advising that sprains and strains usually
resolved within 6 to 12 weeks. He further noted that appellant had multiple inconsistencies
throughout her examination that were nonanatomic and nonphysiologic, and were suggestive of
behavioral illness. Dr. Romanelli advised that she was at MMI for the right hip sprain/strain by
June 31, 2015. He indicated that the initial right hip diagnostic studies were negative, that right
hip x-rays showed mild degenerative changes consistent with appellant’s age, and that the labral
tear shown on the MRI scan was more consistent with degenerative changes than with acute
findings. Dr. Romanelli further opined that, to a reasonable degree of medical probability and

13

5 U.S.C. § 8123(a); see H.N., Docket No. 18-0501 (issued February 20, 20202); Guiseppe Aversa, 55 ECAB
164 (2003).
14

20 C.F.R. § 10.321(b).

15

H.N., supra note 13.

16

Id.

17

R.M., Docket No. 19-1319 (issued December 10, 2019).

6

certainty, no further medical treatment was necessary or medically appropriate for the work-related
injuries, including the right hip.
In situations where the case is referred to an impartial medical examiner for the purpose of
resolving a medical conflict, the opinion of such specialist, if sufficiently well rationalized and
based upon a proper factual background, must be given special weight.18 Dr. Romanelli had full
knowledge of the relevant facts and evaluated the course of appellant’s condition, and his opinion
was based on proper factual and medical history.19 He accurately summarized the relevant medical
evidence, provided detailed findings on examination, and reached a conclusion that no further
treatment was needed for the accepted right hip strain.20 The Board thus finds that Dr. Romanelli’s
opinion represents the special weight of the evidence, and OWCP properly relied on his report in
denying authorization for the requested right hip surgery.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.21 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.22 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.23
A timely request for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.24 When a timely request for reconsideration does not meet at least one of

18

H.N., supra note 13.

19

See 5 U.S.C. § 8123(a); J.E., Docket No. 18-0228 (issued August 8, 2019); Solomon Polen, 51 ECAB 341 (2000)
(where there exists a conflict of medical opinion and the case is referred to an impartial specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, is entitled to special weight).
20

Id.

21

5 U.S.C. § 8128(a); see D.S., Docket No. 18-0353 (issued February 18, 2020).

22

20 C.F.R. § 10.607; see D.W., Docket No. 18-0876 (issued March 10, 2020).

23

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
24

Id. at § 10.606(b)(3).

7

the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits.25
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s March 16, 2018 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board
finds that she did not advance a relevant legal argument not previously considered by OWCP. The
undated declaration appellant submitted was previously reviewed by OWCP. Consequently, she
is not entitled to further review of the merits of her claim based on the first and second abovenoted requirements under 20 C.F.R. § 10.606(b)(3).26
With her reconsideration request, appellant submitted a January 10, 2017 report from
Dr. Pacheco-Serrant, an unidentified, undated response to an OWCP questionnaire dated
December 12, 2017 and a copy of OWCP’s March 13, 2018 decision. However, these reports are
duplicative as they were previously of record and considered by OWCP and do not constitute
relevant and pertinent new evidence. Therefore, the Board finds that they are insufficient to require
OWCP to reopen the claim for consideration of the merits.27
Appellant also submitted a January 10, 2018 treatment note from Dr. Johnson that was not
previously of record. While this report is new, it is not relevant as it is substantially similar to
Dr. Johnson’s November 1, 2017 report that was already of record and previously reviewed by
OWCP. Providing additional medical evidence that either duplicates or is substantially similar to
evidence of record does not constitute a basis for reopening a case.28 As appellant did not provide
relevant and pertinent evidence, she is not entitled to a merit review based on the third requirement
under 20 C.F.R. § 10.606(b)(3).29
The Board accordingly finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.30
CONCLUSION
The Board finds that OWCP properly exercised its discretion by denying appellant
authorization for right hip arthroscopic femoroplasty and acetabuloplasty. The Board further finds
25

Id. at § 10.608(a), (b).

26

Supra note 23; see D.S., supra note 21.

27

D.S., supra note 21; Daniel Deparini, 44 ECAB 657 (1993).

28

M.O., Docket No. 19-1677 (issued February 25, 2020).

29

Id.

30

D.S., supra note 21.

8

that OWCP properly denied her request for reconsideration of the merits of her claim pursuant to
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 23 and 13, 2018 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: May 12, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9