United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE NAVY,
PHILDELPHIA NAVY SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-375
Issued: October 16, 2009

Case Submitted on the Record

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

JURISDICTION
On April 28, 2004 appellant, through his attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ hearing representative’s merit decision dated November 6,
2008 terminating appellant’s medical benefits. 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 terminate appellant’s medical
and compensation benefits, effective November 25, 2007, because residuals of his accepted
orthopedic condition had resolved.
FACTUAL HISTORY
This case has previously been on appeal before the Board. On October 15, 1992
appellant, then a 45-year-old insulator filed a traumatic injury claim alleging that on October 7,

1992 he injured his back moving heavy trash bags filled with asbestos.1 The Office accepted his
claim for lumbosacral strain on November 13, 1992. On March 1, 1993 it entered appellant on
the periodic rolls.
Dr. Merylee E. Werthan, a Board-certified neurologist, found in a December 18, 1992
report, that a November 24, 1992 magnetic resonance imaging (MRI) scan showed a small L3-4
herniated disc. He noted that this herniation was not present on appellant’s July 23, 1991 MRI
scan. Dr. Werthan also diagnosed degenerative disc disease at L3-4, L4-5 and L5-S1.
The Office referred appellant for a second opinion evaluation with Dr. Stephen M.
Horowitz, a Board-certified orthopedic surgeon, who examined appellant on June 13, 1994 and
reviewed the diagnostic testing. Dr. Horowitz diagnosed strain superimposed on degenerative
arthritis of the lumbar spine and found symptom-magnification during the examination. The
Office referred appellant for an impartial medical examination with Dr. Herbert Stein, a Boardcertified orthopedic surgeon, who reported on October 18, 1994 that appellant’s current
diagnoses were herniated disc at L3-4 and degenerative disc disease at L3-4, L4-5 and L5-S1.
Dr. Stein opined that appellant was restricted from heavy lifting and concluded that he had no
surgical lesion.
The Office terminated appellant’s compensation benefits effective January 2, 2000 by
decision dated December 20, 1999 based on the findings of Dr. Martin A. Blaker, a Boardcertified orthopedic surgeon, acting as an impartial medical examiner. The Branch of Hearings
and Review affirmed on September 5, 2000. The Office declined to reopen appellant’s claim for
merit review on June 8, 2001. The Board reviewed these decisions and found that the Office had
failed to meet its burden of proof to terminate appellant’s compensation benefits because of the
impartial medical examiner’s previously documented incidents of perjury. The Board reversed
the Office’s September 21, 2000 decision.2
On October 15, 2003 the Office made a preliminary determination that appellant had
forfeited his compensation benefits for the period July 7, 1997 to October 7, 1998 in the amount
of $28,928.26. The Branch of Hearings and Review affirmed the findings of fact and amount of
overpayment and denied waiver on October 26, 2004. The Board issued a decision and order on
June 17, 2005 which found that appellant had received an overpayment of compensation because
of underwithholding of life insurance contributions between November 28, 1992 and January 1,
2000, that he forfeited his compensation benefits from July 7, 1997 to October 7, 1998, and that
appellant received an overpayment of $28,928.36 due to this forfeiture for which he was at fault.3
The Board remanded the claim for the Office to determine the amount of the overpayment
attributable to underwithholding life insurance premiums. The facts and the circumstances of the
case as set out in the Board’s prior decisions are adopted herein by reference.

1

Appellant had a previous employment injury on October 7, 1992 when he slipped and fell down 14 steps landing
on his back.
2

Docket No. 01-1661 (issued June 30, 2003).

3

Docket No. 05-310 (issued June 17, 2005).

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The Office issued a final overpayment decision on October 27, 2005 finding that
appellant had received an overpayment in the amount of $912.55 due to the underwithholding of
life insurance premiums. It determined that appellant was without fault in the creation of the
overpayment, but that waiver was not warranted.
Appellant’s attending physicians Dr. Jerry London and Marry Montague, osteopaths,
continued to support appellant’s disability for work covered by his accepted employment
injuries. These physicians diagnosed lumbar myositis, sciatic radiculopathy and sacroiliitis.
Appellant was treated with massage therapy and injections. The Office referred him for a second
opinion evaluation on February 8, 2007 with Dr. Kevin F. Hanley, a Board-certified orthopedic
surgeon. In a March 7, 2007 report, Dr. Hanley described appellant’s accepted employment
injury and noted that, although his claim was accepted for a lumbar strain, his MRI scan had
supported a right disc herniation. On physical examination, appellant had limited range of
motion of his low back and Dr. Hanley diagnosed degenerative lumbar disc disease. He stated,
“[Appellant’s] presentation today is not the presentation of a residual lumbosacral strain but
rather the presentation of someone with degenerative disc disease which is progressive and
associated with the aging process. It is my belief that he had long since recovered from any
lumbosacral strain that might have occurred.” Dr. Hanley stated that appellant could return to
work if only his employment injury was involved. Appellant’s degenerative disc disease
prevented him from working. Dr. Hanley opined that appellant’s current medical treatment
regime was not appropriate either for the accepted condition or for chronic degenerative disc
disease.
The Office also referred appellant for a psychiatric second opinion, with Dr. Maurie D.
Pressman, a Board-certified psychiatrist, on March 15, 2007. In his March 30, 2007 report,
Dr. Pressman diagnosed major depressive disorder, single episode, severe. He noted that
appellant had experienced suicidal ideation and risk. Dr. Pressman attributed this to appellant’s
employment injury and found him totally disabled for any kind of work. He recommended
treatment with antidepressant and anti-anxiety medication as well as psychotherapy. The Office
requested a supplemental report and on April 11, 2007, Dr. Pressman again opined that
psychological factors could produce very real pain and downhill course even if the underlying
physical injury has resolved. The Office accepted appellant’s claim for major depressive
disorder on April 17, 2007. Dr. Harry A. Doyle, a Board-certified psychiatrist, supported this
diagnosis in a report dated May 1, 2007.
The Office found a conflict of medical opinion evidence between appellant’s attending
physicians and Dr. Hanley, the second opinion physician, and on June 18, 2007 referred
appellant for an impartial medical examination with Dr. Bong S. Lee, a Board-certified
orthopedic surgeon. On June 20, 2007 appellant’s attorney requested information about
Dr. Lee’s selection as the impartial medical examiner and alleged that claimants were being
“hand-picked” to be examined by physicians with known biases.
The record contains a screen printout that Dr. Stuart Tager, a Board-certified orthopedic
surgeon, was by passed as he was “not available at this time.” Dr. Theodore Ganley, a Boardcertified orthopedic surgeon, was bypassed as he was a “children d[octo]r” Dr. John Garland, a
Board-certified orthopedic surgeon, was bypassed as he had no impartial medical examiner
appointments.
3

Dr. Lee’s report, dated July 10, 2007, described appellant’s history of injury and
reviewed the medical history. On examination, he found limited range of motion of the low back
with normal strength and sensory examination of the lower extremities. Dr. Lee noted that
appellant’s x-rays demonstrated early degenerative change in the mid and lower lumbar spine
and that a November 24, 1992 MRI scan demonstrated L3-4 disc herniation which was not
evident on a computerized tomography scan of July 23, 1991. He opined that appellant’s initial
employment injury was a lumbar sprain superimposed on preexisting degenerative discogenic
disease. Dr. Lee stated that L3-4 disc herniation was preexisting and was not caused by the
employment incident. He found that appellant failed to demonstrate clinical evidence of lumbar
radiculopathy and he concluded that appellant’s original sprain had resolved with no residuals.
Dr. Lee concluded that appellant did not require any further medical treatment for his orthopedic
injuries sustained on October 7, 1992. He stated, “His present diagnosis of degenerative
discogenic disease is not medically connected to the work injury by direct cause, aggravation,
precipitation or acceleration, but is from a normal aging condition.”
In a report dated July 17, 2007, Dr. Boris Nemirovsky, a physician Board-certified in
pain management, conducted electrodiagnostic studies of both lower extremities which were
suggestive of bilateral chronic radiculopathy at L4 and L5. He recommended additional
neurologic evaluation.
The Office proposed, by letter dated September 13, 2007, to terminate appellant’s
medical benefits due to his orthopedic condition based on Dr. Lee’s report. Appellant’s attorney
responded on October 11, 2007 and alleged that the Office was not properly selecting impartial
medical examiners. Appellant’s counsel stated that the list of appropriate physicians was
inadequate and that appellant had received his appointment in advance of another claimant. He
reported his concern that the Office was “mixing and matching the selection of physicians with
claimants.” By decision dated November 19, 2007, the Office terminated appellant’s medical
benefits due to his orthopedic condition effective November 25, 2007 based on Dr. Lee’s report.
Appellant, through his attorney, requested a review of the written record on
November 25, 2007. He alleged that Dr. Lee was not appropriately selected using the Office
rotational system and the physicians directory system. Appellant’s attorney also alleged that the
medical evidence established that appellant had sustained a herniated disc as a result of his
accepted employment injury, citing Dr. Stein’s 1994 report. By decision dated November 6,
2008, the hearing representative found that the Office met its burden of proof to terminate
appellant’s medical and compensation benefits for his orthopedic conditions based on Dr. Lee’s
report. The hearing representative found that Dr. Lee was properly selected, that the Office had
never accepted that appellant sustained a herniated disc causally related to his employment injury
and that he had no orthopedic residuals from his 1992 employment injury.
On appeal, appellant’s attorney again alleged that Dr. Lee was not properly selected as
the impartial medical examiner. He also argued that in 1994 Dr. Stein found that appellant’s
claim should be accepted for herniated disc and aggravation of degenerative disc disease.
Appellant’s attorney argued that the termination should be reversed and the case updated to
include additional conditions.

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LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.5 Its burden
of proof in termination compensation includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6 The right to medical
benefits for an accepted condition is not limited to the period of entitlement of disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition, which require further medical treatment.7
ANALYSIS
The Office accepted that appellant sustained a lumbar strain as a result of his October 15,
1992 employment injury. On appeal and before the Branch of Hearings and Review, appellant’s
attorney alleged that the Office should have accepted appellant’s claim for the additional
condition of herniated disc at L3-4 based on the report of Dr. Stein, a Board-certified orthopedic
surgeon, selected to resolve a conflict of medical opinion evidence in 1994. The conflict
Dr. Stein was asked to resolve involved different diagnoses and opinions regarding the physical
condition of appellant’s spine. Dr. Werthan identified a herniation at L3-4. Dr. Horowitz found
only a strain superimposed on degenerative arthritis. He did not identify a herniation. Dr. Stein
provided diagnoses of herniated disc at L3-4 and degenerative disc disease at L3-4, L4-5 and
L5-S1. He further opined that appellant was restricted from heavy lifting and concluded that
appellant had no surgical lesion. Dr. Stein’s impartial medical examination report does not
purport to address whether appellant’s herniated disc was caused or aggravated by his
employment injury. The report does not provide any statement on causal relationship.
Dr. Stein’s report merely contains a diagnosis without an opinion as to causation. There is no
evidence showing that the Office has accepted appellant’s herniated disc as a result of the 1992
employment injury, Dr. Stein’s report is not sufficient to require the Office to do so.
Appellant’s attending physicians, Drs. London and Montague, osteopaths, continued to
support appellant’s disability for work and ongoing medical conditions due to his accepted injury
of lumbar strain. The Office referred appellant for a second opinion evaluation with Dr. Hanley,
a Board-certified orthopedic surgeon, who found that appellant had no ongoing disability or
medical residuals of his accepted condition. The Federal Employees’ Compensation Act
provides that, if there is a 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.8 The implementing regulations state that, if a conflict exists
4

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

5

Mary A. Lowe, 52 ECAB 223, 224 (2001).

6

Gewin C. Hawkins, 52 ECAB 242, 243 (2001).

7

Mary A. Lowe, supra note 5.

8

5 U.S.C. §§ 8101-8193, 8123.

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between the medical opinion of the employee’s physician and the medical opinion of either a
second opinion physician of an Office medical adviser or consultant, the Office shall appoint a
third physician to make an examination. This is called a referee examination and the Office will
select a physician who is qualified in the appropriate specialty and who has had no prior
connection with the case.9 The Board finds that the Office properly determined that there was a
conflict of medical opinion evidence between appellant’s attending physicians and the second
opinion physician regarding appellant’s continuing disability and medical residuals. In order to
resolve this conflict of medical opinion evidence the Office referred appellant to Dr. Lee, a
Board-certified orthopedic surgeon to act as the impartial medical examiner.
Appellant’s attorney objected to the selection of Dr. Lee on the grounds that he was not
selected in accordance with the Office’s procedures. A physician selected by the Office to serve
as an impartial medical specialist should be wholly free to make a completely independent
evaluation and judgment. To achieve this, the Office has developed specific procedures for the
selection of impartial medical specialists designed to provide safeguards against any possible
appearance that the selected physician’s opinion is biased or prejudiced. The procedures
contemplate that impartial medical specialists will be selected from Board-certified specialists in
the appropriate geographical area on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and the Office.10 The Federal
(FECA) Procedure Manual (the procedure manual) provides that the selection of referee
physicians (impartial medical specialists) is made through a strict rotational system using
appropriate medical directories. The procedure manual provides that the Physicians Directory
System (PDS) should be used for this purpose wherever possible.11 The PDS is a set of standalone software programs designed to support the scheduling of second opinion and referee
examinations.12 The PDS database of physicians is obtained from the American Board of
Medical Specialties (ABMS) which contains the names of physicians who are Board-certified in
certain specialties.
The Board has required, “An appropriate notation should be made in the Directory when
a specialist indicates his/her unwillingness to accept a case or when, for other valid reasons
(other than a previous connection with the claim under consideration) it is not advisable or
practicable to use his/her services.”13
The Office bypassed three Board-certified orthopedic surgeons prior to determining that
Dr. Lee should act as the referee physician in this case. The record establishes that Dr. Tager, a
Board-certified orthopedic surgeon, was “not available at this time” and was therefore bypassed.
The Office bypassed Dr. Ganley, a Board-certified orthopedic surgeon, as he was a “children
9

20 C.F.R. § 10.321.

10

B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.7
(September 1995, May 2003).
13

David Peisner, 39 ECAB 1167 (1988).

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d[octo]r” It also bypassed Dr. Garland, a Board-certified orthopedic surgeon, as he had no
impartial medical examiner appointments. In each instance, the Office utilized the PDS and
recorded an appropriate notation explaining why it was not appropriate or practicable to use the
physicians bypassed. The Board finds that there is no evidence that Dr. Lee was not
appropriately selected as the impartial medical specialist in this case.
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on proper factual and medical background must be given special weight.14 Dr. Lee
provided a detailed report based on a proper factual and medical background. He opined that
appellant’s initial employment injury was a sprain of the lumbar spine which was superimposed
on preexisting degenerative discogenic disease. Dr. Lee opined that L3-4 disc herniation was not
the result of the 1992 employment incident, a preexisting condition resulting from appellant’s
degenerative disc disease. He stated that appellant’s degenerative disc disease was not causally
related to the employment injury, but was due to aging. Dr. Lee also found that appellant failed
to demonstrate clinical evidence of lumbar radiculopathy. He concluded that appellant’s original
sprain had resolved with no residuals and that appellant’s current work restrictions were not due
to his accepted employment injury, but instead to the aging process. Dr. Lee opined that
appellant require no further medical treatment for his orthopedic injuries sustained on
October 7, 1992.
The Board finds that Dr. Lee was properly selected as the impartial medical specialist and
that his report is entitled to special weight. Dr. Lee provided findings on physical examination a
complete medical history and offered medical reasoning for his conclusions that appellant had no
medical residuals or disability due to the accepted condition of lumbar strain. He found that
appellant had no clinical signs of radiculopathy and offered his medical opinion that appellant’s
degenerative disc disease was the cause of appellant’s herniated disc and that this condition was
not causally related to appellant’s accepted employment injury in 1992. For these reasons, the
Board finds that the Office met its burden of proof to terminate appellant’s compensation and
medical benefits.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation and medical benefits, effective November 25, 2007, because the residuals from his
accepted condition of lumbar strain had resolved.

14

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

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ORDER
IT IS HEREBY ORDERED THAT November 6, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, LOCK & DAM #13, Fulton, IL,
Employer
__________________________________________

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

Docket No. 12-96
Issued: May 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 24, 2011 appellant, through his attorney, filed a timely appeal from a
September 22, 2011 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 terminate appellant’s
compensation benefits effective March 13, 2011 for his employment-related melanoma
condition.
On appeal his attorney asserts that the decision is contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated December 12, 2008,
the Board reversed OWCP decisions dated July 26, 2007 and January 8, 2008. The Board found
that OWCP did not meet its burden of proof to establish that the constructed position of sales
attendant fairly and reasonably represented appellant’s wage-earning capacity. OWCP did not
consider his accepted malignant melanoma and carpal tunnel syndrome conditions prior to
reducing his compensation.2 The law and the facts of the previous Board decisions are
incorporated herein by reference.
On January 10, 2010 appellant elected wage-loss compensation under FECA, effective
February 1, 2010. He was placed on the periodic compensation rolls. By letter dated
November 17, 2010, OWCP asked that he provide updated medical information regarding his
employment capabilities and whether he could perform the duties of his date-of-injury position
as a lock and dam operator.
In a January 26, 2011 report, Dr. Carl W. Soderstrom, Board-certified in internal
medicine and dermatology, diagnosed postoperative malignant melanoma. He noted no evidence
of recurrence with negative lymph nodes and advised that for about five years, there had been no
evidence of recurrence on four or five positron emission tomography (PET) scans, and that
appellant had recovered from the incident. Dr. Soderstrom found that appellant was able to
pursue all work duties, could travel without assistance, and could perform all daily activities
from a cutaneous standpoint. He recommended that appellant avoid midday sun, wear a widebrimmed hat and a long-sleeved light weight shirt and apply total block sunscreen.
In a letter dated February 7, 2011, OWCP proposed to terminate appellant’s
compensation benefits on the grounds that the weight of medical evidence, as represented by
Dr. Soderstrom’s report, established that appellant was no longer disabled due to the accepted
melanoma condition. Appellant submitted a magnetic resonance imaging (MRI) scan of the
lumbar spine dated March 1, 2011.

2

Docket No. 08-1111 (issued December 12, 2008). On January 19, 2006 OWCP accepted that appellant, a lock
and dam operator, sustained employment-related melanoma of the right cheek. Appellant had previously had
excision of the lesion on June 23, 2005. On April 10, 2006 the employing establishment informed him that it could
not accommodate his restriction to avoid sunlight. Appellant stopped work and was placed on the periodic rolls. On
October 31, 2006 OWCP accepted that he sustained work-related bilateral carpal tunnel syndrome under file number
xxxxxx358. By decision dated January 24, 2007, OWCP reduced appellant’s compensation benefits, effective
February 17, 2007, based on his capacity to earn wages as a sales attendant. On March 22, 2007 OWCP accepted
that he sustained work-related displacement of lumbar intervertebral disc without myelopathy under file number
xxxxxx567. On April 24, 2007 appellant underwent an L4-5 posterior lumbar interbody fusion procedure. In
decisions dated July 26 and October 9, 2007 and January 8, 2008, OWCP denied modification of the January 24,
2007 wage-earning capacity decision. On March 24, 2008 it combined appellant’s claim numbers xxxxxx793,
xxxxxx358 and xxxxxx567. On December 17, 2009 appellant was granted a schedule award for two percent
impairment of the right arm and two percent impairment on the left. In a June 10, 2010 decision, an OWCP hearing
representative affirmed the December 17, 2009 schedule award decision. Subsequent to appellant’s appeal in this
case, in a March 6, 2012 decision, the Board affirmed an OWCP finding that appellant had no more than one percent
impairment of the right leg and one percent impairment on the left. Docket No. 11-1742 (issued March 6, 2012).

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By decision dated March 9, 2011, OWCP finalized the termination of wage-loss and
medical benefits, effective March 13, 2011.
Appellant, through his attorney, timely requested a hearing and submitted medical
evidence from the Veterans Administration Medical Center (VAMC). In a February 3, 2009
treatment note, Dr. Theodore Alkousakis, a Board-certified dermatologist, noted that appellant
recently had basal cell carcinomas excised from the right temple and left melolabial fold which
were well healed. He reported a history of malignant melanoma on the right cheek that was
excised in June 2005, and a basal cell carcinoma on the left upper chest, previously excised. In
an August 7, 2009 treatment note, Dr. Jill L. Lightfoot, a Board-certified dermatologist,
described appellant’s dermatological history and advised that he had no new or changing lesions
or other skin concerns. In an August 7, 2009 report, Dr. Deborah S. Alt, a Board-certified
otolaryngologist, noted that appellant was seen for follow up for the right cheek malignant
melanoma. She recommended follow up in one year. In a February 9, 2010 report, Dr. Emily K.
Fridlington, a Board-certified dermatologist, noted appellant’s history of excised basal cell
carcinomas and malignant melanoma. She performed a total skin examination, advised that
appellant was stable and recommended follow up in six months. On August 20, 2010 Dr. Alt
noted that appellant was being seen for follow up of his malignant melanoma. She advised that
there were no suspicious lesions on skin examination of the head and neck and recommended
follow up in one year. Julie A. Truman, a physician’s assistant in dermatology, provided
treatment notes dated July 22, 2010 and February 8, 2011. Dr. A. Paul Rauwolf, Board-certified
in family medicine, provided a work capacity evaluation dated February 27, 2011 in which he
advised that, on a permanent basis, appellant must work indoors and avoid sunlight which could
cause melanoma.
At the July 8, 2011 hearing, appellant maintained that, based on Dr. Rauwolf’s
recommendation, he could not return to his previous employment due to his melanoma condition
or perform his regular work duties due to the accepted carpal tunnel syndrome and a worsening
back condition. Appellant submitted additional medical evidence, including a July 22, 2011
procedure note in which Ms. Truman performed a shave biopsy of a scalp lesion. The pathologic
diagnosis was basal cell carcinoma.3
In a September 22, 2011 decision, an OWCP hearing representative found that
appellant’s disability and need for medical treatment regarding the accepted melanoma condition
had ceased and he was capable of returning to his previous job. The hearing representative
remanded the case to OWCP for further development with regard to whether the accepted carpal
tunnel syndrome and low back condition rendered appellant disabled from work.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
3

On both March 10 and August 8, 2011 appellant submitted medical evidence not relevant to his melanoma
condition. He also submitted an August 28, 2011 work capacity evaluation in which Dr. Rauwolf diagnosed
displacement of lumbar intervertebral disc without myelopathy and provided restrictions to appellant’s physical
activity.

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without establishing that the disability ceased or that it was no longer related to the employment.4
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits for the accepted malignant melanoma of the right cheek that was excised
on June 23, 2005. As the case is in an interlocutory position with regard to the accepted bilateral
carpal tunnel syndrome and displacement of lumbar intervertebral disc without myelopathy, the
Board has no jurisdiction to review this matter.6
The medical evidence relevant to OWCP’s termination of compensation benefits for the
accepted malignant melanoma includes Dr. Soderstrom’s January 26, 2011 report.
Dr. Soderstrom diagnosed postoperative malignant melanoma. He indicated that for about five
years there had been no evidence of recurrence on four or five PET scans. Dr. Soderstrom
advised that appellant had recovered from the incident, was able to pursue all work duties, could
travel without assistance, and could perform all daily activities from a cutaneous standpoint.
While he recommended that appellant avoid midday sun, wear a wide-brimmed hat and a longsleeved light weight shirt, and apply total block sunscreen, these recommendations were
prophylactic in nature and would not prevent appellant from performing the duties of a lock and
dam operator.
Appellant submitted a number of medical reports from the Iowa City VAMC.
Drs. Alkousakis, Lightfoot, Alt and Fridlington merely noted a history of malignant melanoma
with no current findings and did not discuss work restrictions. As Ms. Truman is a physician’s
assistant, her reports are not considered medical evidence as a physician’s assistant is not
considered a physician under FECA.7 In his February 27, 2011 work capacity evaluation,
Dr. Rauwolf advised that, on a permanent basis, appellant must work indoors and avoid sunlight
which could cause melanoma. Medical opinions which are speculative or equivocal in character
have little probative value.8 Dr. Rauwolf did not provide a rationalized, nonspeculative
explanation as to why the accepted malignant melanoma caused continuing disability, six years
after it was excised and five years after appellant stopped work. A physician’s statement that
exposure to employment factors would cause a recurrence of symptoms in the future is not a
sufficient basis on which to establish a claim as the fear of a recurrence of a condition if a
claimant returns to work does not constitute a basis for compensation.9 Dr. Rauwolf’s report is
4

Jaja K. Asaramo, 55 ECAB 200 (2004).

5

Id.

6

20 C.F.R. § 501.2(c); see A.D., Docket No. 09-2030 (issued May 20, 2010).

7

Ricky S. Storms, 52 ECAB 349 (2001). See 5 U.S.C. § 8101(2).

8

Frank Luis Rembisz, 52 ECAB 147 (2000).

9

Virginia Dorsett, 50 ECAB 478 (1999).

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therefore of limited probative value.10 Appellant also had a history of basal cell carcinomas and
had a further excision by Ms. Truman on July 22, 2011. A basal cell carcinoma condition has
not been accepted as employment related.
The weight of the medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.11 In this case, the Board finds that the weight of the medical
evidence rests with Dr. Soderstrom’s January 26, 2010 report in which he clearly advised that
appellant had recovered from the malignant melanoma and could pursue all work duties. The
Board finds that, as there is no reasoned medical evidence supporting appellant’s claim for
continuing disability or need for medical treatment for the accepted malignant melanoma of the
right cheek, OWCP properly terminated his compensation benefits effective March 13, 2011.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits for the accepted malignant melanoma of the right cheek.

10

Rationalized medical opinion evidence is medical evidence which includes a physician’s rationalized opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factor. The opinion of a physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factor identified by the
claimant. Sedi L. Graham, 57 ECAB 494 (2006).
11

C.B., Docket No. 08-1583 (issued December 9, 2008).

5

ORDER
IT IS HEREBY ORDERED THAT the September 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 2, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 13-1136
Issued: June 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 10, 2013 appellant, through her attorney, filed a timely appeal from a
February 25, 2013 schedule award 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 to consider the merits of this case.
ISSUE
The issue is whether appellant has more than seven percent impairment of her right arm,
for which she received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 Appellant, a 53-year-old mail processor
clerk, has an accepted claim for a right shoulder strain. She underwent a magnetic resonance
imaging (MRI) scan of her right shoulder on June 20, 2007, which demonstrated a near to
complete rupture of the supraspinatus tendon and diffuse atrophy of the supraspinatus muscle,
mild tendinopathy of the infraspinatus tendon and moderate acromial joint changes and joint
effusion.
On April 4, 2008 appellant underwent arthroscopic repair of the right shoulder with
subacromial decompression, distal clavicle excision and rotator cuff repair. She underwent a
computerized tomography (CT) scan on August 6, 2008, which demonstrated that her tendons
were not well defined. On October 3, 2008 appellant underwent an arthroscopy of the right
shoulder with repair of the rotator cuff and subacromial decompression.
In 2009, appellant claimed a schedule award. By decision dated July 9, 2009, OWCP
granted a schedule award for seven percent impairment of the right arm.
On August 23, 2009 appellant requested reconsideration. She submitted an August 14,
2009 report from Dr. D.R. Bassman, an attending Board-certified orthopedic surgeon, who
reviewed the treatment of appellant and advised that he would rate impairment at 30 percent due
to pain, discomfort and loss of strength. Dr. Bassman did not make any reference to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).
By decision dated September 29, 2009, OWCP denied modification of the prior decision.
If found that Dr. Bassman did not provide an impairment rating under the A.M.A., Guides.
In a report dated November 24, 2009, Dr. Jody T. Jachna, a Board-certified orthopedic
surgeon, examined appellant’s right shoulder. He noted that she was unable to lift her arm more
than 30 degrees in flexion or abduction, but had a full passive range of motion. Dr. Jachna found
a positive impingement sign. He stated that appellant was unable to support her arm at all and
that a recent arthrogram did not reveal any full thickness tear of the rotator cuff; but an MRI scan
of the cervical spine showed multiple levels of degenerative joint disease with stenosis at C4-5
and neuroforaminal stenosis at C5-6. Dr. Jachna diagnosed right-sided shoulder prior rotator
cuff tear with repair with significant residual weakness of the rotator cuff.
Appellant requested an additional schedule award. In letter dated April 5, 2010, OWCP
requested that she submit additional medical evidence to support greater impairment. On
May 19, 2010 Dr. Bassman provided range of motion findings for appellant’s right shoulder. He
listed abduction of 10 degrees, forward flexion of 10 degrees, internal rotation of 80 degrees,
external rotation of 20 degrees and backward flexion of 10 degrees. Dr. Bassman stated, “The
disability therefore established by these figures would leave [appellant] with a [permanent partial
disability] rating of 75 percent of the right shoulder.”
2

Docket No. 07-2329 (issued March 13, 2008). The Board affirmed determinations by OWCP that appellant did
not meet her burden of proof to establish her claim. On September 25, 2007 OWCP accepted her claim.

2

Dr. David H. Garelick, an OWCP medical adviser, reviewed the medical evidence on
June 21, 2010. He noted that the diagnostic tests revealed that appellant’s rotator cuff was intact
and that passive motion was full; therefore, it was possible that the loss of active motion
represented a lack of full effort on her behalf. Dr. Garelick recommended a functional capacity
evaluation to determine if appellant was using full effort.
On May 19, 2010 Dr. Bassman noted appellant’s complaints of increased right shoulder
pain. He diagnosed strain/tear of the rotator cuff on the right.
Appellant underwent a functional capacity evaluation on August 4, 2010, which
demonstrated the presence of variable levels of physical effort on her part. She demonstrated
minor inconsistency to the reliability or accuracy of her subjective reports of pain. The
functional capacity evaluation demonstrated that appellant had right shoulder range of motion of
flexion of 60 degrees, extension of 40 degrees, abduction of 75 degrees, external rotation of
60 degrees and internal rotation of 40 degrees. Appellant’s right scapular strength was two of
five in all planes. She demonstrated less than full effort in grip testing and low effort on the
right. Appellant’s heart rate also demonstrated questionable effort.
In a note dated July 28, 2010, Dr. Bassman found normal motor strength in appellant’s
right shoulder.
In a September 20, 2010 report, Dr. Garelick reviewed the medical evidence and noted
that the functional capacity evaluation demonstrated submaximal effort on appellant’s part. He
found that the reported range of motion measurements were not reliable. Therefore, the medical
evidence did not support greater than seven percent impairment as previously awarded.
By decision dated September 30, 2010, OWCP denied appellant’s claim for an additional
schedule award.
Appellant requested an oral hearing before an OWCP hearing representative that was
held on February 11, 2011.
In a decision dated May 2, 2011, the hearing representative affirmed the denial of an
additional schedule award. She found that the weight of the medical evidence did not establish
greater impairment.
Appellant requested reconsideration on September 6, 2011. She submitted a CT scan of
the right upper extremity, which demonstrated postoperative changes in the right shoulder,
positive os acromial suspected and no definite labral or full thickness rotator cuff tear. Appellant
also submitted a right shoulder arthrogram and report dated August 30, 2011 from
Dr. Matthew Bradley, a Board-certified surgeon, who noted her history of injury and stated that
she continued to have an inability to abduct or flex her shoulder. Dr. Bradley provided range of
motion including active flexion of the shoulder to 30 degrees, active abduction of 25 degrees,
external rotation to 70 and internal rotation “to the abdomen with the arm fully adducted.” He
stated that appellant’s passive range of motion was flexion 160, abduction to 155, external
rotation to 75 degrees and internal rotation to the abdomen. Dr. Bradley found that she had
normal strength in her internal and external rotators about the shoulder and zero of five strength
of her supraspinatus muscle.
3

In a report dated December 26, 2011, Dr. Sanjai Shukla, a medical adviser, reviewed the
medical record. He noted that Dr. Bradley reported a full passive range of motion of the right
shoulder with negative impingement testing. Further, the CT scan was negative for a recurrent
tear of the rotator cuff. Dr. Shukla found no basis for an increase in appellant’s permanent
impairment rating beyond the seven percent previously awarded. The medical adviser noted that
this percentage was the maximum award for a full thickness rotator cuff tear with residual loss.
By decision dated February 8, 2012, OWCP denied appellant’s claim for an additional
schedule award.
Appellant requested reconsideration on April 14, 2012. In reports dated March 2 and 30,
2012, Dr. Bradley stated that she never gained the ability to abduct or flex her right shoulder
postoperatively following surgery. He stated that appellant had excellent passive range of
motion without any other findings except that she was unable to actively abduct or flex her
shoulder to any degree. Dr. Bradley suggested that nerve damage was a possibility and noted
that she was scheduled for nerve conduction and electromyogram (EMG) testing. He stated that
appellant’s range of motion was unchanged and that she had no strength in her deltoids.
A March 21, 2012 EMG report stated, “The recruitment pattern is incomplete in the right deltoid
and biceps muscle, more pronounced in the right deltoid muscle since [appellant] was unable to
give complete efforts secondary to restricted range of motion.” The report noted that appellant’s
abnormal findings were chronic in nature and that she had almost frozen shoulder for several
years. Dr. Bradley stated, “At this point, I feel that any recovery of nerve function or motor
function is very unlikely as EMG clearly demonstrates no ability for motor recruitment of
[appellant’s] deltoid muscles.”
On May 27, 2012 Dr. Shukla reviewed the medical record and stated that EMG
demonstrated incomplete recruitment of the deltoid since appellant was unable to give complete
effort secondary to restricted range of motion. He noted, “Incomplete motor unit activation is
observed in EMG’s when a patient’s efforts are voluntarily reduced because of pain, fear or
malingering. Incomplete recruitment is not a sign of muscle denervation.” Dr. Shukla noted that
appellant’s physical examination demonstrated a full passive range of motion and the MRI scan
demonstrated an intact rotator cuff. He stated that the medical evidence did not establish greater
impairment.
In a decision dated June 13, 2012, OWCP denied appellant’s claim for an additional
schedule award.
Appellant requested reconsideration on June 30, 2012. She submitted a functional
capacity evaluation of June 29, 2012 obtained by Maria Ross, a physical therapist.
On August 25, 2012 Dr. Christopher Gross, a medical adviser, reviewed the medical
record and found that the testing showed no consistency in maximum voluntary effort and
demonstrated that appellant was not at maximum medical improvement. He recommended
additional evaluation by Dr. Bradley to address the possibility of impending adhesive capsulitis.
In a decision dated September 19, 2012, OWCP denied appellant’s claim for an
additional schedule award.

4

Appellant requested reconsideration on November 13, 2012. On October 26, 2012
Dr. Bradley stated that her EMG demonstrated nerve injuries. He found that appellant’s physical
examination was unchanged and reported active flexion to 30 and active abduction to 30.
Dr. Bradley listed her passive range of motion as 140 degrees of abduction, 150 degrees of
flexion and 50 degrees of external rotation. He found motor strength testing of zero out of five
of the supraspinatus, one out of five of the deltoids with only some very slight recruitment of the
middle fibers of the deltoid. Dr. Bradley stated that appellant had reached maximum medical
improvement. He stated, “I have assigned [appellant] a partial permanent disability rating at
75 percent as it relates to her right upper extremity as she has very, very minimal amount of
function of her shoulder not allowing her to place her hand in any appropriate position in space
to allow for any meaningful work.”
On February 18, 2013 Dr. Garelick reviewed the record and found that Dr. Bradley’s
impairment rating was arbitrary. He was unable to correlate the extent of impairment with any
table in the sixth edition of the A.M.A., Guides.
By decision dated February 25, 2013, OWCP denied modification of the September 19,
2012 decision. It found that Dr. Bradley’s October 26, 2012 report was not in accordance with
the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.5
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).6

3

5 U.S.C. §§ 8101-8193, 8107.

4

20 C.F.R. § 10.404.

5

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009). See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010).
6

A.M.A., Guides 411.

5

ANALYSIS
On July 9, 2009 appellant received a schedule award for seven percent impairment of the
right arm. She subsequently contended that she sustained greater impairment due to her right
shoulder strain. Appellant underwent surgery on April 4 and October 3, 2008. The Board finds
that she has not submitted sufficient medical evidence to establish greater impairment.
The medical evidence submitted to the record from appellant’s physicians does not
provide an adequate discussion of the physical findings or how her impairment was rated
applying the sixth edition of the A.M.A., Guides. Moreover, the physicians do not affirmatively
address whether she is at maximum medical improvement. Dr. Bassman originally provided a
rating of 30 percent impairment as a result of pain, discomfort and loss of strength but he made
no reference to how his rating was prepared utilizing Chapter 15 of the Shoulder Regional Grid
at Table 15-5 and applicable grade modifiers. His subsequent reports provided findings on
examination and, on May 19, 2010, he increased the impairment rating to 75 percent of the right
shoulder. Again, Dr. Bassman failed to address how this rating was made in compliance with the
protocols of the sixth edition of the A.M.A., Guides. Thereafter, on July 28, 2010, he reported
normal motor strength. For this reason, Dr. Bassman’s impairment ratings are of diminished
probative value.
Dr. Jachna provided findings pertaining to appellant’s right shoulder. He noted that a
recent arthrogram did not reveal a full thickness tear of the rotator cuff; but that an MRI scan
showed cervical degenerative disc disease. Dr. Jachna did not provide any impairment rating.
This report is not sufficient to establish greater permanent impairment than the seven percent
awarded in 2009.
Dr. Bradley examined appellant in 2011 and provided findings on range of motion.
However, he did not provide a rating of impairment under the sixth edition of the A.M.A.,
Guides. Dr. Shukla, the medical adviser, noted that the findings on examination were unchanged
from prior reports and that clinical studies showed an intact rotator cuff and full passive range of
motion. In early 2012, Dr. Bradley again provided treatment records, noting that appellant had
problems pertaining to the deltoid muscle. He did not state whether she was at maximum
medical improvement regarding her right shoulder or address impairment with reference to the
A.M.A., Guides. On October 26, 2012 Dr. Bradley stated that appellant’s nerve studies
demonstrated injury and he noted reduced motor strength testing. He did not address how this
correlated with the normal motor strength testing previously noted by Dr. Bassman in July 2010
or whether she was at maximum medical improvement. Dr. Bradley did not specifically address
appellant’s cooperation or effort on range of motion testing or make reference to the A.M.A.,
Guides when providing a 75 percent rating to her right shoulder.
It is well established that it is the responsibility of the evaluating physician to explain in
writing why a particular method was used to assign an impairment rating.7 It is also well
established that ratings that do not address how the extent of impairment was determined under
the applicable edition of the A.M.A., Guides, are of reduced probative value.8 In this case,
7

See Peter C. Belkind, 56 ECAB 580, 584-85 (2005). See also Robert B. Rozelle, 44 ECAB 616, 618 (1993).

8

See Derrick C. Miller, 54 ECAB 266 (2002); James Kennedy, Jr., 40 ECAB 620 (1989).

6

appellant’s physicians did not adequately explain the method by which their impairment ratings
were completed; they did not address whether appellant had achieved maximum medical
improvement or demonstrated sufficient cooperation on range of motion testing. None of the
physicians referenced the sixth edition of the A.M.A., Guides. The Board finds that appellant
has not submitted sufficient medical evidence to establish that she sustained additional
impairment.
CONCLUSION
The Board finds that appellant has not established greater than seven percent impairment
to her right arm.
ORDER
IT IS HEREBY ORDERED THAT the February 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 2014
Washington, DC

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
__________________________________________
A.W., Appellant
and
DEPARTMENT OF THE AIR FORCE,
DEFENSE COMMISSARY AGENCY,
MAXWELL AIR FORCE BASE, AL, Employer
__________________________________________

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

Docket No. 17-0638
Issued: August 29, 2017

Case Submitted on the Record

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

JURISDICTION
On January 30, 2017 appellant filed a timely appeal from a November 28, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
total disability commencing October 27, 2015, causally related to her May 7, 2015 employment
injuries.
1

Appellant also filed a timely request for oral argument in this case. By order dated July 5, 2017, the Board
exercised its discretion and denied her request for oral argument. Order Denying Request for Oral Argument,
Docket No. 17-0638 (issued July 5, 2017).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on May 7, 2015 appellant, then a 55-year-old deli/bakery store
worker, lifted boxes off a cart, causing a strain of the muscles, fascia, and tendon of the left
shoulder and upper arm with sequelae, laceration of muscle, fascia, and tendon of the long head
of the left biceps tendon, with sequelae.3 The employing establishment confirmed that her
date-of-injury job duties required lifting and carrying from 30 to 50 pounds.
In a May 7, 2015 report, Dr. Sangeeta Doshi, an attending family practitioner, diagnosed
a left shoulder and arm sprain due to appellant lifting a 40- to 50-pound box at work that day.
She restricted appellant from using her left arm and from, overhead work and, limited pushing
and pulling to 20 pounds, and lifting to 5 pounds.
On May 11, 2015 Dr. George Handey, an attending Board-certified family practitioner,
diagnosed a partial biceps tendon tear.
Dr. Doshi released appellant to full duty with no restrictions effective May 22, 2015.
Appellant returned to full-duty work on May 22, 2015.
In a November 9, 2015 report, Dr. Loren James, an attending orthopedic surgeon,
diagnosed chronic shoulder pain. He noted restrictions against overhead work and limited
lifting, pulling, and pushing to 10 pounds.
Appellant’s employing establishment removed appellant from work in November 2015
due to inability to perform the essential functions of her position.
In a January 25, 2016 report, Dr. James noted a history of the May 7, 2015 employment
injury with chronic pain since she lifted the boxes. On examination of the left shoulder, he found
pain over the bicipital groove, positive Speed’s and Yergson’s tests, pain with cross-body
abduction, and positive impingement signs. Dr. James reviewed x-rays demonstrating a Type 2
acromion with no significant elevation of the humeral head. He diagnosed degenerative joint
disease of the left acromioclavicular joint, left shoulder impingement, subacromial-subdeltoid
bursitis, rotator cuff tendinitis, and a possible rotator cuff tear. Dr. James noted work restrictions
on February 1, 2016 limiting lifting, pulling, and pushing to five pounds.4
On February 29, 2016 appellant claimed a recurrence of total disability (Form CA-2a)
commencing October 27, 2015. The employing establishment confirmed that she resumed full
duty on May 22, 2015, and that her appointment ended on May 30, 2015. Appellant was
subsequently employed at another military commissary facility. She claimed wage-loss
compensation from October 27, 2015 to April 30, 2016 and from May 14 to 21, 2016.
3

By decision dated July 16, 2015, OWCP denied continuation of pay as appellant did not report the injury within
30 days of its occurrence. Appellant delayed filing a notice of traumatic injury (Form CA-1) until July 14, 2015,
more than 30 days after the accepted May 7, 2015 work injury.
4

A February 10, 2016 magnetic resonance imaging (MRI) scan of the left shoulder showed a “[m]inimal partial
thickness undersurface tear [of the] supraspinatus tendon,” a tear of the long head biceps tendon distal to the intraarticular segment, and an acromioclavicular join osteoarthrosis.

2

In March 3 and July 18, 2016 letters, OWCP notified appellant of the additional evidence
needed to establish her claim for recurrence of disability, including her physician’s explanation
as to why the accepted injuries would totally disable her for work. It afforded her 30 days to
submit such evidence.
In response, appellant submitted her July 27, 2016 statement attributing the recurrence to
“lifting and pushing deli products,” including a case of chicken and a case of hams on
October 19, 2015. She submitted additional evidence. Appellant also provided a January 14,
2016 patient intake questionnaire in which she described chronic left shoulder pain.
On May 7, 2015 Dr. Doshi diagnosed a left shoulder sprain. She administered an
intramuscular injection. Dr. James diagnosed a left shoulder strain on May 9, 2015 and noted
work restrictions. Dr. James Zumstein, a Board-certified family practitioner, an attending Boardcertified family practitioner, diagnosed a left shoulder strain on May 9, 2015 and recommended
physical therapy.
Dr. James provided progress notes dated from January 25 through June 7, 2016,
diagnosing degenerative joint disease of the left acromioclavicular joint. He recommended
continued physical therapy and a steroid injection.5
By decision dated September 30, 2016, OWCP denied appellant’s claim finding that the
evidence submitted indicated that she sustained a new injury on October 19, 2015. Additionally,
it found that the medical evidence of record did not establish that she was totally disabled for
work for the claimed period.
On October 21, 2016 appellant requested reconsideration. She explained that she was in
receipt of disability benefits through the Social Security Administration effective April 2016.
Appellant submitted additional evidence.
In an undated report received on October 21, 2016, Dr. James reviewed a history of
treatment. He explained that the left supraspinatus tear was visible on MRI scan, but not on
x-ray studies.
By decision dated November 28, 2016, OWCP denied modification, finding that the
additional medical evidence submitted indicated that appellant sustained a new injury and not a
recurrence of disability. Additionally, Dr. James and Dr. Doshi did not find her totally disabled
for work for the claimed period.
LEGAL PRECEDENT
OWCP’s implementing regulations define a “recurrence of disability” as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical

5

Appellant provided physical therapy notes dated from February through June 2016.
duplicative copies of evidence previously of record.

3

She also submitted

condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.6
When an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish by the weight of the reliable,
probative, and substantial evidence that the recurrence of disability is causally related to the
original injury. This burden includes the necessity of furnishing evidence from a qualified
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the condition is causally related to the employment injury and supports this conclusion with
sound medical reasoning.7
ANALYSIS
OWCP accepted that appellant sustained a left shoulder muscular strain and biceps
tendon tear on May 7, 2015 when she lifted boxes off a cart. Appellant returned to full duty on
May 22, 2015. Her appointment expired on May 30, 2015. Appellant was employed in a
different commissary facility through October 27, 2015.
On February 29, 2016 appellant claimed a recurrence of total disability commencing
October 27, 2015, caused by lifting and pushing of deli products on October 19, 2015. She thus
implicated a new injury, an intervening cause breaking the chain of causation from the May 7,
2015 occupational injury. A new injury effectively negates appellant’s recurrence claim.8
OWCP notified appellant in March 3 and July 18, 2016 letters of the additional evidence
needed to establish her claim, including a medical report from her attending physician explaining
how and why the accepted May 7, 2015 left shoulder injuries would disable her for work on and
after October 27, 2015. In response, appellant provided reports from Dr. James, dated from
November 9, 2015 through October 21, 2016, who noted in these reports his assignment of work
restrictions due to the accepted left shoulder conditions, but did not find appellant totally
disabled for work for any period. His opinion is therefore insufficient to establish the claimed
total disability for work commencing October 27, 2015.9

6

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.a
(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).
7

Ricky S. Storms, 52 ECAB 349 (2001); Helen Holt, 50 ECAB 279 (1999).

8

Carlos A. Marrero, 50 ECAB 117 (1998) (the Board found that the claimant’s use of an exercise machine
constituted an intervening cause of appellant’s disability and thus OWCP properly denied her claim for recurrence
of disability); Clement Jay After Buffalo, 45 ECAB 707 (1994) (the Board found that the claimant’s knee injury
sustained while playing basketball broke the legal chain of causation from an accepted knee injury sustained in the
performance of his duties as a firefighter).
9

Ricky S. Storms, supra note 7.

4

Reports from Drs. Doshi and Zumstein also did not find appellant totally disabled
beginning October 27, 2015 due to her accepted condition. Further, the physicians did not
address causation. As such, their reports are of limited probative value.10
Appellant noted in an October 1, 2016 letter that she had received disability benefits
through the Social Security Administration effective April 2016. However, decisions by other
administrative agencies as to whether an employee is disabled, are not binding on OWCP or the
Board with respect to whether the individual is disabled under FECA.11
On appeal, appellant asserts that she was injured on the job, but was misdiagnosed by her
physicians. As explained above, the medical evidence of record did not establish that the
accepted left shoulder injuries disabled her for work on and after October 27, 2015.
Appellant may submit new evidence or argument, with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence
of total disability commencing October 27, 2015, causally related to her May 7, 2015
employment injuries.

10

See C.B., Docket No. 09-2027 (issued May 12, 2010); A.D., 58 ECAB 149 (2006).

11

Daniel F. O Donnell, Jr., Docket No. 04-1545 (issued January 12, 2005).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 28, 2016 is affirmed.
Issued: August 29, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Charleston, WV, Employer
__________________________________________

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

Docket No. 19-1561
Issued: March 29, 2021

Case Submitted on the Record

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

JURISDICTION
On July 15, 2019 appellant filed a timely appeal from a June 13, 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.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $25,660.70 for the period February 28, 2000 through March 30, 2019 for which he was
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 13, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

without fault because OWCP incorrectly deducted premiums for optional life insurance (OLI) and
postretirement basic life insurance (PRBLI) from his wage-loss compensation; (2) whether OWCP
properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly required
recovery of the overpayment by deducting $927.63 every 28 days from appellant’s continuing
compensation payments.
FACTUAL HISTORY
On December 8, 1999 appellant, then a 53-year-old air traffic controller, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, he experienced mental trauma while in the
performance of duty. He stopped work on December 8, 1999. OWCP accepted the claim for an
anxiety reaction. It subsequently expanded its acceptance of the claim to include post-traumatic
stress disorder.
In a claim for compensation (Form CA-7) dated February 8, 2000, appellant requested
wage-loss compensation beginning February 28, 2000. The employing establishment specified on
the form that he earned $26.07 per hour on December 9, 1999 and earned premium pay of
$5,440.70 per year. In Form CA-7s dated February 29, 2000 through March 13, 2001, it indicated
that appellant’s base pay of $26.07 per hour as a Grade 11, Step 10.
OWCP paid appellant wage-loss compensation beginning February 28, 2000. It calculated
his pay rate for compensation purposes using a date-of-injury pay rate and annual salary of
$54,408.00. OWCP deducted premiums for OLI, but did not deduct premiums for PRBLI until
June 2, 2013.3
On March 14, 2018 the Office of Personnel Management (OPM) advised that appellant
had elected PRBLI with no reduction effective June 30, 2001 and that his final base salary for
Federal Employees’ Group Life Insurance (FEGLI) coverage was $62,481.00. It further indicated
that he had elected Option A; Option B, with three multiples and no reduction; and Option C, with
two multiples and no reduction. OPM asserted that appellant should be charged for Option C, with
one multiple and no reduction from June 2, 2013 to the present, noting that he “was not given the
opportunity to elect no reduction at age 65.” It advised that BLI and OLI coverage premiums
“begin on the OWCP commencing date” and that the commencing date for PRBLI premiums was
June 30, 2001.
With the March 14, 2018 letter, OPM provided a FEGLI continuation of life insurance
coverage form for a retiree or compensationer signed by appellant on April 28, 2001. Appellant
elected PRBLI with no reduction and OLI. In a Life Insurance Election form also dated April 28,
2001, he elected basic life insurance (BLI) and OLI with Option A, Option B at three times his
pay, and Option C with two multiples. The form indicated that, “This election supersedes all
previous elections.”

3
In a letter dated June 1, 2011, OWCP requested that appellant indicate whether he wanted to continue deductions
for premiums from OLI after he reached age 65.

2

In a letter dated February 1, 2019, OPM again indicated that appellant had elected PRBLI
with a commencing date of June 30, 2001 and questioned why OWCP was not withholding
premiums from his compensation.
In a March 27, 2019 payment plate, OWCP noted that OPM had advised that appellant had
elected PRBLI with no reduction and OLI with a base salary of $62,481.00.
On May 9, 2019 OWCP notified appellant of its preliminary overpayment determination
that he had received an overpayment of compensation in the amount of $25,660.70 from
February 28, 2000 through March 30, 2019. It indicated that it had deduced premiums for OLI
and PRBLI based on an incorrect yearly salary. OWCP noted that appellant’s salary for FEGLI
purposes was $62,481.00 from February 28, 2000 through March 30, 2019, but that it had deducted
premiums based on a yearly salary of $55,000.00. It also advised that it had incorrectly deducted
premiums for PRBLI. OWCP calculated the amount that it had deducted for BLI and OLI
premiums from February 28, 2000 through March 30, 2019, $51,654.44, and subtracted this
amount from $56,944.14, the amount that it should have deducted, to find an overpayment of
$5,289.70. It then subtracted the amount that it had deduced for PRBLI premiums from June 30,
2001 through March 30, 2019, $8,525.34, from the amount that it should have deducted,
$28,896.39, to find a $20,371.00 overpayment of compensation. OWCP added the overpayment
created by its failure to properly deduct premiums for OLI to the overpayment created by its failure
to properly deduct premiums for PRBLI to find a total overpayment of $25,660.70. It further
advised appellant of its preliminary determination that he was without fault in the creation of the
overpayment. OWCP requested that he complete the enclosed overpayment recovery
questionnaire (Form OWCP-20) and submit supporting financial documents. Additionally, it
notified appellant that, within 30 days of the date of the letter, he could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing.
In an undated statement received May 28, 2019, appellant requested waiver of the
overpayment. He asserted that attempting to repay the overpayment would result in significant
financial hardship.
By decision dated June 13, 2019, OWCP finalized its preliminary overpayment
determination finding that appellant had received an overpayment of compensation in the amount
of $25,660.70 for the period February 28, 2000 through March 30, 2019 because it had incorrectly
deducted life insurance premiums from his wage-loss compensation. It found that he was without
fault in the creation of the overpayment, but denied waiver of recovery, noting that he had not
submitted any financial information. OWCP required recover the overpayment by deducting
$927.63 every 28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of his or her duty.4
When an overpayment has been made to an individual because of an error of fact or law,
4

5 U.S.C. § 8102(a).

3

adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.5
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in BLI and one or more of the options.6 The coverage for BLI is effective unless
waived,7 and premiums for basic and optional life coverage are withheld from the employee’s
pay.8
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance: Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).9
When an underwithholding of life insurance premiums occurs, the entire amount is deemed
an overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error.10
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation because OWCP
failed to adequately deduct premiums for PRBLI during the period June 30, 2001 through
March 30, 2019 and; accordingly, fact of overpayment has been established. OPM notified OWCP
that he had elected PRBLI coverage with no reduction, effective June 30, 2001, and provided
documentation supporting the election. OWCP, however, did not deduct premiums for PRBLI
from appellant’s wage-loss compensation until June 2013; consequently, he received an
overpayment of compensation.11

5

Id. at § 8129(a).

6

5 U.S.C. § 8702(a).

7

Id. at § 8702(b).

8

Id. at § 8707.

9

See C.A., Docket No. 18-1284 (issued April 15, 2019); V.H., Docket No. 18, 1124 (issued January 16, 2019).

10

5 U.S.C. § 8707(d); D.H., Docket No. 19-0384 (issued August 12, 2019).

11

See I.J., Docket No. 19-1672 (issued March 10, 2020).

4

The Board finds, however, that the case is not in posture for decision regarding the amount
and period of the overpayment or whether appellant received an overpayment of compensation
because OWCP failed to properly deduct premiums for OLI from his compensation.
OWCP found that appellant had received an overpayment of compensation for the period
February 28, 2000 to March 30, 2019 because it had deducted premiums for OLI based on an
inaccurate salary. It further found that it had either deducted premiums for PRBLI based on an
inaccurate salary or failed to deduct PRBLI premiums from June 30, 2001 through
March 30, 2019. OWCP found that appellant’s life insurance premiums should have been
premised on an annual salary of $62,481.00 rather than an annual salary of $55,000.00. The record,
however, lacks sufficient information substantiating that he had an annual salary of $62,481.00.
The employing establishment advised that appellant earned $26.07 per hour as a Grade 11, Step
10, or $54,226.00 per year. In one CA-7 form, it indicated that he earned premium pay of
$5,440.70 per year; however, the remaining CA-7 forms indicate that he earned $26.07 per year,
but do not list any premium pay.
Due to the lack of financial information setting forth appellant’s annual salary for the
period February 28, 2000 to March 30, 2019, the Board is unable to adequately review the amount
of the overpayment in this case.12 Additionally, a claimant is entitled to an overpayment decision
that clearly explains how the amount was calculated.13 OWCP, however, while listing the amounts
that it should have deducted for PRBLI and OLI for each period, did not sufficiently explain how
it determined the amount to be deducted. It is further unclear from its decision whether, in
accordance with OPM’s instructions in its March 14, 2018 letter, it had calculated the premiums
to be deducted for Option C as one multiple and no reduction, effective June 2, 2013 to the present,
rather than the selected Option C, with two multiples.
On remand OWCP shall confirm appellant’s annual salary for FEGLI purposes during the
period of the overpayment, and calculate the resulting amount and period of the overpayment of
compensation. It should then issue a new preliminary overpayment determination providing a
detailed description of its overpayment calculation, together with an appropriate overpayment
action request form, a Form OWCP-20, and instructions for him to provide supporting financial
information. After this and other such further development as deemed necessary, it shall issue a
de novo decision.14
CONCLUSION
The Board finds that appellant received an overpayment of compensation for which he was
without fault. The Board further finds, however, that the case is not in posture for decision
regarding the period and amount of the overpayment.

12

See B.W., Docket No. 19-0126 (issued December 9, 2019).

13

B.W., id.; see also O.R., 59 ECAB 432 (2008).

14
In light of the Board’s disposition regarding the period and amount of the overpayment, the issues of waiver and
recovery of the overpayment are rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the June 13, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: March 29, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., claiming as widow of E.T., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, Millington, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-406
Issued: June 21, 2012

Case Submitted on the Record

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

JURISDICTION
On December 19, 2011 appellant filed a timely appeal from an August 5, 2011 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.2
1

5 U.S.C. § 8101 et seq.

2

The Board notes that, on December 19, 2011, appellant submitted an appeal to the Board as well as a request for
an oral hearing before the Branch of Hearings and Review. By decision dated January 11, 2012, the Branch of
Hearings and Review denied appellant’s request for an oral hearing finding that her request was not made within 30
days of the August 5, 2011 OWCP decision. As appellant appealed OWCP’s August 5, 2011 decision to the Board
on December 19, 2011, the Board does not have jurisdiction over OWCP’s January 11, 2012 nonmerit decision.
The Board further notes that appellant submitted additional evidence after OWCP rendered its August 5, 2011
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).

ISSUE
The issue is whether the employee’s death on April 4, 2010 was causally related to his
accepted employment injury.
FACTUAL HISTORY
On February 3, 1986 the employee, then a 62-year-old training officer, slipped on a deck
and broke his right hip while in the performance of duty. OWCP accepted the claim for femoral
neck fracture. The employee received compensation for wage loss from July 6, 1986 until his
death on April 4, 2010.
The record before the Board contains medical records documenting the employee’s hip
treatment dating back to February 3, 1986. The employee underwent a total of three hip
surgeries including a right total hip arthroplasty in 1992 and a right total hip revision on
January 10, 2002 which were authorized by OWCP.
In a July 19, 2008 medical report, Dr. Thomas W. Arnold, a Board-certified neurologist,
noted that the employee had a history of chronic renal failure since 1986. He also noted that the
employee had related a past of kidney problems and that he was taken off several medications
including Lyrica and Nortoptyline.
The employee died on April 4, 2010. The death certificate completed on April 27, 2010
by Dr. Yasmin Alishah, Board-certified in internal medicine, listed the immediate cause of death
as pneumonia (health care associated) and the underlying cause of death as chronic kidney
disease and cirhosis with ascites.
On May 14, 2010 appellant filed a claim for compensation by widower (Form CA-5)
alleging that the employee’s death was causally related to the accepted 1986 employment injury.
By letter dated May 24, 2010, OWCP informed appellant that additional evidence was
needed to support her claim.
In letters dated August 9 and November 28, 2010, appellant contended that the
employee’s death was caused by kidney failure due to the numerous medications he had to take
for the many surgeries resulting from his original February 3, 1986 injury. She stated that the
employee reinjured his right hip on October 12, 2009 as a result of his original February 3, 1986
work injury.
In support of her claim, appellant referenced a July 12, 1990 letter from Dr. Richard L.
Ennis, a Board-certified orthopedic surgeon, who stated that the employee had been treated for a
number of orthopedic problems after he fell at the employing establishment and fractured his
right hip. The employee had avascular necrosis and degenerative arthritis of the hip as a direct
result of his injuries, requiring him to take arthritis medication over a prolonged period of time.
Dr. Ennis noted that, when using arthritis medication over a prolonged period of time, lab work
must be completed to ensure that the medication does not have an adverse effect on the kidney or
liver function. As a result, he ordered out-patient lab work as a result of the employee’s hip
injury to ensure that he was not developing any serious side effects from the medication.
2

Appellant also submitted an October 12, 2009 emergency room report from Dr. Mark P.
Clemons, a Board-certified otolaryngologist, who reported that the employee sustained a closed
head injury, nasal bone fracture and abrasion of multiple sites when he fell from an upright
position while walking. Dr. Clemons noted that the employee had a past medical history of gout,
gastoesophageal reflux disease, arthritis, hypertension and neuropathy of the feet. He further
noted that the employee had undergone right hip replacement three times.
By letter dated April 22, 2011, OWCP informed appellant that the medical evidence from
Dr. Ennis was more than 20 years old and insufficient to support her claim. It requested
additional medical evidence and provided her 30 days to submit the information.
In a May 9, 2011 attending physician’s report (Form CA-5), Dr. Syed Shumile Zaidi,
Board-certified in internal medicine, reported that the employee was treated for pneumonia from
March 23 to April 4, 2010 which was the direct cause of his death. He noted that contributory
causes of death included cirhosis and chronic kidney disease. An employment-related history of
lower extremity sprain or strain of joint and ulcer was given. Dr. Zaidi checked the box marked
“no” which asked for his opinion as to whether the employee’s death was due to his prior history
of injury.
By decision dated August 5, 2011, OWCP denied the claim for compensation finding that
the medical evidence did not establish that the employee’s death was due to the February 3, 1986
right hip injury.
LEGAL PRECEDENT
Appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his employment.3 This
burden includes the necessity of furnishing rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship.4
An award of compensation may not be based on surmise, conjecture or speculation.5 The
mere showing that an employee was receiving compensation at the time of his death does not
establish that his death was causally related to conditions resulting from the employment.6 The
Board has held that the fact that a condition manifests itself or worsens during a period of
employment7 does not raise an inference of causal relationship between a claimed condition and
employment factors.

3

Gertrude T. Zakrajsek (Frank S. Zakrajsek), 47 ECAB 770 (1996); Carolyn P. Spiewak (Paul Spiewak), 40
ECAB 552, 560 (1989); Lorraine E. Lambert (Arthur R. Lambert), 33 ECAB 1111, 1120 (1982).
4

Martha A. Whitson (Joe E. Whitson), 43 ECAB 1176, 1180 (1992).

5

Myrl Nix (Earl Nix), 15 ECAB 125, 126 (1963).

6

Leonora A. Buco (Guido Buco), 36 ECAB 588, 594 (1985).

7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

3

ANALYSIS
On February 3, 1986 the employee slipped on a deck and broke his right hip while in the
performance of duty. OWCP accepted the claim for femoral neck fracture. After his death on
April 4, 2010, the employee’s widow, filed a claim for survivor’s benefits. She alleged that the
employee’s February 3, 1986 injury and treatment contributed to the cause of death from kidney
disease.
The Board finds that appellant did not submit sufficient medical evidence to establish her
claim for survivor’s benefits. She did not submit a rationalized narrative medical opinion
addressing how the accepted employment injury or treatment related thereto contributed to the
employee’s death.
The employee died on April 4, 2010 and the death certificate completed on April 27,
2010 by Dr. Alishah listed the immediate cause of death as pneumonia (health care associated)
and the underlying cause of death as chronic kidney disease and cirhosis with ascites. This
certificate did not provide any opinion on the issue of causal relation.
In a May 9, 2012 attending physician’s form report, Dr. Zaidi reported that the employee
was treated for pneumonia from March 23 to April 4, 2010 which was the direct cause of his
death. He further noted that contributory causes of death included cirhosis and chronic kidney
disease. Dr. Zaidi listed work-related employment history of lower extremity sprain or strain of
joint and ulcer. He checked the box marked “no” as to whether the employee’s death was due to
his prior history of injury. This report negates causal relationship.
The record does not contain any medical evidence which discusses how the employee’s
death was caused or contributed to by medical care resulting from the accepted right hip
condition. As noted, Dr. Zaidi opined that appellant’s death was not a result of the employee’s
prior work-related injuries.
Appellant has claimed that medical evidence produced prior to the employee’s death
shows that his death was related to employment factors. She asserted that the numerous
medications the employee was required to take as a result of his multiple surgeries contributed to
his death due to kidney failure. In support of her claim, appellant submitted a July 12, 1990
letter from Dr. Ennis and an October 12, 2009 emergency room report from Dr. Clemons.
In a July 12, 1990 letter, Dr. Ennis stated that the employee had been treated for a number
of orthopedic problems after he fell at the employing establishment and fractured his right hip.
The employee had avascular necrosis and degenerative arthritis of the hip as a direct result of his
injuries, requiring him to take arthritis medication over a prolonged period of time. Dr. Ennis
noted that using arthritis medication over a prolonged period of time required lab work to be
completed to ensure that it did not have an adverse effect on kidney or liver function.
Although this letter generally suggested that prolonged use of arthritis medication could
have an adverse effect on kidney or liver function, it was dated in 1990, years before the
employee’s death on April 4, 2010. There is no contemporary opinion by Dr. Ennis addressing

4

whether the February 3, 1986 employment injury contributed to the employee’s death.8
Dr. Arnold, a treating physician, noted in a July 19, 2008 report that appellant had a history of
chronic renal failure since 1986. While Dr. Ennis reported that appellant was being monitored to
ensure that medication was not having an adverse effect on kidney or liver function, there is no
report following the employee’s death on April 4, 2010 addressing whether such medication
caused or aggravated these conditions. The reports submitted by appellant do not provide an
opinion that the employee’s hip condition or his subsequent surgeries contributed to the
employee’s kidney failure or any other condition.9
The July 19, 2008 medical report from Dr. Arnold noted that appellant reported past
kidney problems and that he was taken off several medications including Lyrica and
Nortoptyline. In an October 12, 2009 emergency room report, Dr. Clemons reported that the
employee underwent right hip replacement three times prior and had a past medical history of
gout, gastoesophageal reflux disease, arthritis, hypertension and neuropathy to the feet. These
reports were produced prior to the employee’s death on April 4, 2010 and fail to address any
relationship between his hip medications, surgeries and any subsequent kidney failure.
Appellant failed to submit adequate medical evidence providing a rationalized medical
opinion that the employee’s accepted right hip condition contributed to his death on
April 4, 2010. Therefore, OWCP properly denied her claim for survivor’s benefits.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish entitlement
to survivor’s benefits.

8

F.O. (A.O.), Docket No. 10-2315 (issued August 1, 2011).

9

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 21, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6