United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NORTHEAST REGIONAL
LABORATORY, Jamaica, NY, Employer
__________________________________________

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

Docket No. 10-2256
Issued: June 20, 2011

Case Submitted on the Record

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

JURISDICTION
On September 8, 2010 appellant filed a timely appeal of the March 18, 2010 merit
decision of the Office of Workers’ Compensation Programs denying her occupational disease
claim. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a bilateral eye condition causally related to her
federal employment.
On appeal, appellant contends that the employing establishment failed to investigate
environmental conditions that caused her claimed injury in violation of its own standard
operating procedure. She further contends that its laboratory director is not professionally
qualified to challenge her claim on a medical basis.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 26, 2010 appellant, then a 46-year-old quality systems manager, filed an
occupational disease claim alleging that on November 24, 2009 she first became aware of severe
swelling of both eyes, eyebrows and eyelids. On January 10, 2010 she first realized that her eye
condition was caused by reviewing and handling numerous records and being exposed to
laboratory surfaces during an audit she conducted at the employing establishment’s
microbiological services branch from November 16 to 20, 2009.
In a January 25, 2010 statement, appellant related that from November 16, 2009 through
January 25, 2010 she experienced redness and swelling of both eyes for which she sought
medical treatment and used 93.5 hours of sick leave. She alleged that she was exposed to a
chemical or infectious agent while handling records or touching a contaminated surface in the
laboratory which she inadvertently transferred to her eyes.
Appellant stated that a
nonconformance investigative report indicated that the employer had a significant decline
branch-wide in conformance to quality management system standards which included
environmental and contamination controls. She contended that it was possible that her exposure
to a toxic agent or substance was a deliberate attack by a coworker due to a complaint filed
against management with the Equal Employment Opportunity Commission.
Medical records indicated that appellant was treated at Franklin Immediate Medical Care
for her eye condition on December 15, 2009 and January 7, 2010 by Dr. Paul A. Cooperman, a
Board-certified family practitioner.
In letters dated January 26, 2010, appellant requested that Dr. David M. Arbesfeld, a
Board-certified dermatologist, Dr. David Speiser, an ophthalmologist, Dr. Cooperman and
Dr. Jeff D. Kopelman, a Board-certified otolaryngologist, each complete an attending
physician’s form report regarding treatment of her claimed injury. In a January 21, 2010 report,
Dr. Speiser provided an illegible date of injury that occurred in 2009. He obtained a history that
appellant was working in a microbiological laboratory from November 10 to 20, 2009 when she
noticed swelling of her eye lids which was treated with antibiotics. Appellant’s condition
improved, but it flared up again. Dr. Speiser indicated with an affirmative mark that appellant’s
dermatitis in both upper eye lids was caused by an employment activity. He stated that she most
likely had residual dermatitis from an infection.
Appellant submitted health insurance claim forms for the period December 14, 2009
through January 20, 2010, a prescription, a notification of personnel form (SF-50) regarding a
general pay adjustment and leave analysis forms.
In a January 27, 2010 letter, Michael J. Palmien, a laboratory director, controverted
appellant’s claim. He stated that her claimed exposure to an infectious and/or toxic substance
was unfounded. Over 60 microbiologists and technicians worked or continued to work in the
microbiological sciences branch without report of any illness. The microorganisms that were
routinely handled were typically enteric. The other bacteria, that was handled was associated
with food-borne gastrointestinal illness. Mr. Palmien was not aware of anyone contracting an
eye/sinus illness from any microbial or chemical source in its laboratory. He disputed
appellant’s allegation that audit results indicated a significant decline branch-wide in

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conformance to quality management system standards. Appellant had no reasonable basis for
such statement. The laboratory had an active safety committee spearheaded by a very proactive
industrial hygienist and was supported at every level of management.
By letter dated February 12, 2010, the Office advised appellant that the evidence
submitted was insufficient to establish her claim. It requested additional factual evidence
regarding her workplace exposure and a rationalized medical report from an attending physician
which described results of examination and tests, a diagnosis, treatment provided and an opinion
with medical reasons on whether her employment contributed to her claimed condition.
Appellant was allowed 30 days to submit such evidence. She did not respond.
In a March 18, 2010 decision, the Office denied appellant’s claim, finding that she failed
to submit sufficient rationalized medical evidence to establish that her diagnosed eye condition
was causally related to the employment factors.2
LEGAL PRECEDENT
A claimant seeking benefits under the Act3 has the burden of establishing the essential
elements of her claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.5
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.6 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.7
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
2

Following the issuance of the Office’s March 18, 2010 decision, appellant submitted additional evidence to the
Office. The Board cannot consider evidence that was not before the Office at the time of the final decision. See 20
C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281
(2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

See Robert G. Morris, 48 ECAB 238 (1996).

7

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.8
ANALYSIS
Appellant alleged that her employment duties of reviewing and handling numerous
records and being exposed to infectious and toxic substances on laboratory surfaces caused a
bilateral eye condition; however, she did not provide sufficient medical evidence to establish her
claim. The Board finds that the evidence of record is insufficient to establish that she developed
a bilateral eye condition causally related to factors of her employment.9
In a January 21, 2010 report, Dr. Speiser found that appellant had bilateral eye dermatitis
due to her employment, but also advised that she most likely had residual dermatitis from an
infection. He did not provide a description of the work duties that she implicated as causing her
condition. Moreover, Dr. Speiser’s opinion is speculative regarding causal relation and provides
no support for appellant’s claim that the diagnosed condition was caused or contributed to by her
established work duties as a quality systems manager. The Board finds, therefore, that his report
is of diminished probative value.
The medical records from Franklin Immediate Medical Care indicated that appellant
received treatment for her bilateral eye injury on December 15, 2009 and January 7, 2010 by
Dr. Cooperman. This evidence does not address whether she sustained an injury caused by the
established work duties. Medical evidence which does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value.10 The Board finds that the above
medical records are insufficient to establish appellant’s claim.
The Office informed appellant of the need to submit a physician’s opinion which
explained how the alleged condition was related to employment-related factors. However, she
did not respond within the allotted time. The Board finds, therefore, that appellant failed to meet
her burden of proof.11
Appellant’s contentions on appeal that the employing establishment failed to investigate
environmental conditions that caused her claimed injury in violation of its standard operating
procedure and that Mr. Palmien was not qualified to challenge her claim. These contentions are
not germaine to the issue of whether the medical evidence supports that she sustained a bilateral
eye condition causally related to her work duties.
Appellant’s contention that the Office responded to her claim in a highly hostile and nonneutral manner has not been established. In its March 18, 2010 decision, the Office reviewed the
8

Id.

9

See Richard A. Weiss, 47 ECAB 182 (1995).

10

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

11

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

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medical evidence of record, cited to the pertinent Board precedent and determined that the
evidence submitted was not sufficiently rationalized to establish that appellant’s eye condition
was causally related to the established employment factors.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a bilateral eye
condition causally related to her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the March 18, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, Southeastern, PA,
Employer
__________________________________________

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

Docket No. 15-1392
Issued: December 9, 2015

Case Submitted on the Record

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

JURISDICTION
On June 8, 2015 appellant, through counsel, filed a timely appeal from the January 29,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained greater than two percent impairment of her left
upper extremity for which she previously received a schedule award.
On appeal, appellant’s counsel argues that the report of the impartial medical examiner
cannot carry the weight of the medical evidence because he did not measure range of motion in
the left shoulder. He further contends that the impartial medical examiner did not give an award
for a preexisting cervical condition.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts as set forth in the Board’s
prior decision are incorporated herein by reference.2 Briefly, on September 9, 1997 appellant,
then a 31-year-old part-time flexible mail handler, filed an occupational disease claim (Form
CA-2) alleging that she suffered from a left shoulder strain caused by repeatedly lifting heavy
bags and parcels. OWCP accepted appellant’s claim for tendinitis of the left shoulder. On
July 25, 2012 it issued a schedule award for one percent impairment of appellant’s left upper
extremity. Appellant requested a hearing. On February 19, 2013 the hearing representative
affirmed the July 25, 2012 decision. However, appellant appealed to the Board and in a
December 20, 2013 decision, the Board set aside the hearing representative’s decision and
remanded the case for further consideration. The Board noted that there was an unresolved
conflict between appellant’s treating orthopedic surgeon, Dr. Arthur Becan, who determined that
appellant had four percent impairment of the left upper extremity, and the opinion of an OWCP
medical adviser, Dr. Arnold D. Berman, a Board-certified orthopedic surgeon, who determined
that appellant had one percent impairment of the left upper extremity.3
On January 8, 2014 OWCP referred appellant to Dr. Evan Kovalsky, a Board-certified
orthopedic surgeon, for an impartial medical examination. In his January 30, 2014 opinion,
Dr. Kovalsky noted findings on physical examination and reviewed appellant’s medical history.
He noted that while appellant did have some subjective complaints and symptoms in her
shoulder, she did not appear to have any objective findings on her physical examination.
Dr. Kovalsky noted very minimal functional limitations and restrictions.
Appellant
demonstrated full, painless range of motion in the shoulder, which included abduction to at least
0 to 170 degrees symmetric with her right. Dr. Kovalsky also noted she had forward elevation to
the same extent and that external rotation with her arms at her side was 0 to 80 degrees and 0 to
90 degrees with her arms abducted. He noted internal rotation as to T5 with a negative lift-off.
Dr. Kovalsky noted good strength without any pain or weakness on resisted external rotation and
abduction.
Dr. Kovalsky utilized Table 15-5 of the sixth edition of the A.M.A., Guides and for the
diagnosis of tendinitis he placed appellant in class 1. He agreed with appellant’s treating
physician, Dr. Becan, that the base percentage would be consistent with a class 1 diagnosis and a
class C rating of three percent. Dr. Kovalsky found no significant abnormal findings on her
physical examination and there were some inconsistencies noted in the history and in her Jamar
grip testing. He assigned a grade modifier of 1 for Functional History (GMFH) based on her
functional history adjustment, a grade modifier of 0 for Physical Examination (GMPE) based on
no objective or consistent findings, and a grade modifier of 1 for Clinical Studies (GMCS), based
on a magnetic resonance imaging (MRI) scan study which showed very minimal abnormalities,
although there was no significant signal change with the supraspinatus. Using the formula set
forth in the A.M.A., Guides with Class of Diagnosis (CDX) represented by 1, i.e., (GMFH-CDX)
+ (GMPE-CDX) = (GMCS-CDX), he found that (1-1) plus (0-1) plus (1-1) equaled a net
2

Docket No. 13-1314 (issued December 20, 2013).

3

Id.

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adjustment of -1, which would move the impairment rating one place to the left to equal a total
impairment of two percent of the left upper extremity.
On March 19, 2014 OWCP referred Dr. Kovalsky’s impairment rating to the OWCP
medical adviser. In a report dated March 31, 2014, the medical adviser, Dr. Berman, agreed with
Dr. Kovalsky that appellant had two percent impairment of the left upper extremity. He noted
that this indicated an increase of one percent impairment of the left upper extremity over the
prior award.
By decision dated April 7, 2014, OWCP issued an additional schedule award of one
percent to the left upper extremity for a total of two percent of the left upper extremity.
By letter dated April 10, 2014, appellant, through counsel, requested a hearing.
At the hearing held on August 15, 2014, counsel argued that Dr. Berman was prohibited
from reviewing the report of Dr. Kovalsky on behalf of OWCP because his original opinion
created the conflict that required referral to the impartial medical examiner in the first place.
In a November 5, 2014 decision, the hearing representative determined that the case
should be forwarded to a new OWCP medical adviser, noting that where a referee examination is
arranged with respect to a schedule award issue, the same medical adviser should not review the
referee’s report for proper application of the A.M.A., Guides.4
On November 20, 2014 OWCP referred the case to Dr. Morley Slutsky, a Board-certified
occupational medicine physician serving as an OWCP medical adviser. In a January 22, 2015
report, Dr. Slutsky agreed with Dr. Kolvalsky that appellant sustained an impairment of two
percent of her left upper extremity. He also found the CDX of 1, class 3 equaled three percent
impairment which was modified by 1 for GMFH, 0 for GMPE, and 1 for GMCS. Dr. Slutsky
then applied the formula and found a net adjustment of negative 1, for a final grade of B, or a
final left upper extremity impairment of two percent.
By decision dated January 29, 2015, OWCP determined that the evidence of record did
not establish more than the two percent award of the left upper extremity already received.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss, or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to insure equal justice under the law to all claimants, good administrative practice
4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.8(k) (February 2013).
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

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necessitates the use of single set of tables so that there may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.8
The sixth edition requires identifying the impairment class for the diagnosed condition,
which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.9 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.11
Section 8123(a) 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.12
ANALYSIS
The Board finds that OWCP properly determined that appellant had two percent
impairment of the left upper extremity based on the calculations provided by the impartial
medical examiner, Dr. Kovalsky. Dr. Kovalsky’s calculations were verified by Dr. Slutsky, a
medical adviser not involved in the creation of the initial conflict.
All physicians of record, including appellant’s treating physician, Dr. Becan, both of the
OWCP medical advisers, and Dr. Kovalsky, found that appellant’s impairment class was
determined by Table 15-5 on page 402 of the A.M.A., Guides. Appellant had a diagnosis of
tendinitis, with residual loss, functional with normal motion, which placed appellant into class 1
impairment with a default grade of C, equal to three percent impairment. However, there was a
conflict between appellant’s treating physician, Dr. Becan, and the initial OWCP medical
adviser, Dr. Berman, with regard to how the grade modifiers affected appellant’s impairment
ratings. Accordingly, OWCP referred appellant to Dr. Kovalsky for an impartial medical
examination. In situations where there exist opposing medical reports of virtually equal weight
7

Id.

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
9

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

10

Id. at 521.

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.8(i) (February 2013).
12

R.C., Docket No. 12-437 (issued October 23, 2012).

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and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.13
Dr. Kovalsky determined that appellant had a grade modifier of 1 for functional history
and 1 for clinical studies. Dr. Becan, appellant’s physician, also found grade modifiers of 1 for
functional history and 1 for clinical studies. However, the impartial medical examiner,
Dr. Kovalsky, and the OWCP medical adviser, Dr. Slutsky, found a grade modifier of 0 for
physical examination whereas Dr. Becan found a grade modifier of 1. Dr. Kovalsky found no
objective or consistent findings and had a full, painless range of motion of her shoulder. Thus
the physical examination modifier of 0 was appropriate. Dr. Kovalsky then properly applied the
formula and determined that appellant’s grade modifiers moved her classification to a grade B
class 1 impairment, which equaled two percent impairment of the left upper extremity.
The Board finds that Dr. Kovalsky properly applied the A.M.A., Guides, as was
confirmed by Dr. Slutksy, and properly determined that appellant had two percent impairment of
her left upper extremity based on Table 15-5 of the A.M.A., Guides, and the proper grade
modifiers.
On appeal, appellant’s counsel contends that Dr. Kovalsky’s report is not entitled to the
weight of the evidence as he did not measure range of motion in the left shoulder in accordance
with the A.M.A, Guides, which requires three separate measurements in degrees in all planes of
motion. He also contends that Dr. Kovalsky did not discuss active vs. passive range of motion.
Dr. Kovalsky found, however, that appellant had full, painless range of motion of her shoulder
when considering abduction, external rotation, and internal rotation.14 His conclusion is
supported by his findings on physical examination. Accordingly, Dr. Kovalsky found appellant
had no impairment due to loss of motion. Counsel also argues that appellant had preexisting
neck conditions of cervical radiculopathy and brachial plexus involvement. None of these
conditions have been accepted as work related. A schedule award can only be paid for a
preexisting condition related to the accepted employment injury.15
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established greater than two percent impairment of
her left upper extremity for which she previously received a schedule award.

13

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

14

K.F., Docket No. 15-0569 (issued August 14, 2015).

15

Veronica Williams, 56 ECAB 367, 370 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 29, 2015 is affirmed.
Issued: December 9, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edmond, OK, Employer
__________________________________________

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

Docket No. 12-1256
Issued: October 17, 2012

Case Submitted on the Record

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

JURISDICTION
On May 24, 2012 appellant filed a timely appeal of a December 22, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP), denying her application for
reconsideration without merit review of the claim. 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 December 22, 2011 nonmerit decision. Since more than 180 days has elapsed between the
last merit decision on August 12, 2011 and the filing of this appeal, the Board lacks jurisdiction
to review the August 12, 2011 decision pursuant to 20 C.F.R. § 501.3(e).
ISSUE
The issue is whether OWCP properly found that appellant’s application for
reconsideration was insufficient to warrant a merit review of the schedule award claim pursuant
to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 7, 2010 appellant, then a 50-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained a left elbow condition causally related to
her federal employment. OWCP accepted the claim for left elbow lateral epicondylitis and left
radial nerve lesion. Appellant received compensation for intermittent wage-loss commencing
January 29, 2011. She underwent a left elbow medial debridement surgery on March 11, 2011.
On June 27, 2011 appellant submitted a claim for compensation (Form CA-7) indicating
she was claiming a schedule award. In a report dated May 31, 2011, Dr. Thomas Lehman, an
orthopedic surgeon, indicated that appellant was being treated for left wrist pain. He provided a
history and results on examination, diagnosing left wrist sprain and likely triangular
fibrocartilage complex (TFCC) degenerative changes. Appellant submitted a June 13, 2011
report from Dr. Christopher White, an orthopedic surgeon, who provided results on examination.
Dr. White indicated that appellant was doing very well with respect to the elbow, with ongoing
care for her hand and wrist.
In a letter dated July 11, 2011, OWCP advised appellant that to establish entitlement to a
schedule award she needed to submit medical evidence with respect to a permanent impairment.
By decision dated August 12, 2011, it determined that the evidence was insufficient to establish
an employment-related permanent impairment under 5 U.S.C. § 8107.
On December 16, 2011 OWCP received an appeal request form indicating that appellant
was requesting reconsideration. In an accompanying letter, appellant stated that she had been
seen by a physician on October 29, 2011 and she believed the physician had mailed a copy of the
report to OWCP.
By decision dated December 22, 2011, OWCP denied the application for reconsideration
without merit review. It stated that there was no new medical evidence received.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or (iii)
constitutes relevant and pertinent evidence not previously considered by OWCP.”3 Section
10.608(b) states that any application for reconsideration that does not meet at least one of the

2

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
3

20 C.F.R. § 10.606(b)(2).

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requirements listed in section 10.606(b)(2) will be denied by OWCP without review of the merits
of the claim.4
ANALYSIS
In the present case, OWCP issued an August 12, 2011 decision finding that appellant was
not entitled to a schedule award. On December 16, 2011 appellant submitted an application for
reconsideration.
In this case, appellant did not submit any additional medical evidence. Although she
referred to the submission of additional evidence, the record does not indicate that any new
medical evidence was submitted prior to December 22, 2011. Therefore, the issue remains
whether appellant has met any of the requirements of 20 C.F.R. § 10.606(b)(2).5
Appellant’s December 13, 2011 letter does not show that OWCP erroneously applied or
interpreted a specific point of law, or advance a relevant legal argument not previously
considered by OWCP. She did not discuss a specific point of law or advance a legal argument.
In addition, appellant did not submit any new and relevant evidence. The schedule award issue
is a medical issue and, as previously noted, no new medical evidence was submitted prior to
December 22, 2011. The Board finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(2).
On appeal, appellant indicated that her physician had delayed submitting new evidence,
but OWCP now had received new medical evidence. The Board’s jurisdiction is limited to
evidence that was before OWCP at the time of the decision on appeal.6 Appellant may pursue a
claim for an increased schedule award based on the submission of relevant medical evidence, as
noted above.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim.

4

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

5

See, e.g., E.L., Docket No. 11-1116 (issued December 19, 2011) (appellant submitted an application for
reconsideration of a schedule award decision and submitted no new evidence or argument).
6

20 C.F.R. § 501.2(c)(1).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 22, 2011 is affirmed.
Issued: October 17, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE STEAM PLANT, Drakesboro, KY,
Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1977
Issued: March 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On August 28, 2013 appellant, through his representative, filed a timely appeal from the
June 3, 2013 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 to review the merits of the case.
ISSUE
The issue is whether appellant sustained a pulmonary injury in the performance of duty.
FACTUAL HISTORY
In a prior appeal,2 the Board remanded the case for a second impartial medical evaluation
to resolve the conflict as to whether appellant sustained a pulmonary injury in the performance of
1

5 U.S.C. § 8101 et seq.

2

Docket No. 10-1804 (issued April 15, 2011).

duty. The facts of this case, as set forth in the Board’s prior decision, are hereby incorporated by
reference.3
OWCP referred appellant, together with the medical record and a statement of accepted
facts, to Dr. Jack H. Hasson, a Board-certified specialist in pulmonary disease, a former certified
B Reader, currently a certified A Reader and an assistant professor of medicine, for an impartial
medical evaluation.
Dr. Hrudaya P. Nath, a Board-certified diagnostic radiologist and professor of medicine,
interpreted a chest x-ray obtained for Dr. Hasson. Scattered calcified granulomas were present.
There were small rounded interstitial opacities with ILO perfusion of approximately 1/2.
Dr. Nath concluded that there was no acute disease.
Dr. Jubal R. Watts, Jr., a Board-certified diagnostic radiologist and certified B Reader,
interpreted the same chest x-ray, the quality of which he found to be grade 1. There were small
parenchymal opacities consistent with pneumoconiosis, p/q involving the upper, middle and
lower lung zones bilaterally. The profusion of the small opacities was 1/1. No large opacities or
pleural abnormalities consistent with pneumoconiosis were evident. A calcified granuloma was
seen in the left upper lobe with a calcified left hilar node present. Dr. Watts’ impression was p/q
small opacities with a perfusion of 1/1 compatible with pneumoconiosis.
Dr. Hasson evaluated appellant on July 21, 2011. He related appellant’s history and
complaints. Dr. Hasson described his findings on examination and reviewed previous imaging
studies. He stated that appellant’s current chest x-rays showed lungs free of infiltrates. There
were no rounded or irregular opacities and no conglomerate nodules. The pleural surfaces were
free of plaque formation and pleural thickening.
Dr. Hasson found no evidence of pneumoconiosis. He concluded that appellant’s
significant pulmonary impairment was related to a number of factors, including chronic
obstructive pulmonary disease (COPD) with an asthmatic component. Dr. Hasson stated, “I feel
that [appellant’s] dyspnea and impairment is totally due to his COPD related to tobacco exposure
along with his cor pulmonale, which may be related to a number of factors, including obstructive
sleep apnea and pCO2 retention, but I find that pneumoconiosis plays no role in his pulmonary
impairment and I find no evidence of pneumoconiosis. I do not feel that coal dust plays any role
in [appellant’s] present impairment.”
In a decision dated September 2, 2011, OWCP denied appellant’s pulmonary injury
claim. It found that the weight of the medical evidence rested with the opinion of Dr. Hasson,
supported by the medical findings of Dr. Watts, the certified B Reader and failed to substantiate
that appellant’s pulmonary condition was the result of his exposure during federal employment.
On December 12, 2011 an OWCP hearing representative found that the case was not in
posture for decision. The hearing representative observed that Dr. Hasson did not mention
3

Appellant, a 58-year-old retired gas and diesel mechanic and machinist, filed an occupational disease claim
alleging that his pneumoconiosis, chronic obstructive airway disease and chronic bronchitis were a result of
exposure to coal dust and asbestos in his federal employment from 1976 to 1996.

2

Dr. Watts’ interpretation of appellant’s chest x-rays, which indicated there was evidence of
pneumoconiosis. Dr. Hasson also did not mention having reviewed the statement of accepted
facts or the accepted exposure to gasoline fumes. Further, he provided no medical rationale to
support his opinion that appellant sustained no impairment related to exposure to coal dust. The
hearing representative remanded the case for a supplemental report from the impartial medical
specialist to address specific questions.
Dr. Hasson provided a supplemental report dated January 4, 2012. He stated that he did
not believe pneumoconiosis was present based on Dr. Watts’ findings. Dr. Hasson explained
that he saw no evidence of pneumoconiosis after his own evaluation of the chest x-ray or other
evaluations of chest x-rays by other physicians, in spite of the fact that there were x-rays felt to
show pneumoconiosis. Further, he explained that the best evidence for no evidence of
pneumoconiosis on imaging studies was the computerized tomography (CT) scan, noted in his
initial report, showing no description of round or irregular opacities or any diagnosis of
pneumoconiosis. Dr. Hasson considered CT scans to be the gold standard of imaging compared
to a plain chest x-ray. “It is well known that the CT scan of the chest is a better imaging
modality as compared to a plain chest x-ray.”
Dr. Hasson wanted to make perfectly clear that appellant’s pulmonary condition was
totally related to COPD related to cigarette smoking and that there was no evidence that any
other exposure, including gasoline or coal dust, had any relation to any damage that was
demonstrated on appellant’s examination and laboratory studies, including his arterial blood
gases. Although exposure to irritants and dust can aggravate COPD, there was no evidence of
any injury from either of those substances.
Dr. Hasson also explained that there was no evidence, either by clinical practice or in the
literature, that coal dust causes or aggravates obstructive sleep apnea, nor was there evidence that
coal dust caused any of appellant’s problems, since he had classic COPD, which explained all of
his symptoms. There was no evidence of pneumoconiosis on either his chest x-ray or his CT
scan. In addition, the elevation of pCO2 was classic for COPD and is described well in the
literature. Dr. Hasson added that he had seen it on numerous occasions frequently in his practice
over the previous 35 years, “but I [have] never seen a case of elevation of pCO2 related to
gasoline exposure in all of my years of practice and I know of no literature that documents
elevation of the pCO2 with exposure to gasoline.”
In a decision dated February 28, 2012, OWCP denied appellant’s pulmonary injury
claim. It found that the weight of the medical evidence rested with Dr. Hasson.
On August 14, 2012 an OWCP hearing representative remanded the case for another
supplemental report from Dr. Hasson, who had provided some, but not all, of the information
requested. Dr. Hasson failed to explain why exposure to coal dust had no effect on appellant’s
pulmonary conditions. Also, previous medical evidence indicated that a negative CT scan was
meaningless, as it washed out lesions and showed a high percentage of false negatives. The
hearing representative instructed Dr. Hasson to review the statement of accepted facts and to
fully explain whether the condition of pneumoconiosis was present in Dr. Watts’ findings.
Dr. Hasson was also to address the opinion that a negative CT scan was meaningless in the

3

diagnosis of pneumoconiosis. He was also to explain why there was no evidence of injury or
damage from appellant’s exposure to gasoline or coal dust.
On November 1, 2012 OWCP received a response from Dr. Hasson, which consisted of a
handwritten note on OWCP’s request for additional information. With an arrow drawn to the
request that he review the statement of accepted facts and certain medical reports, the note reads:
“I have reviewed and my opinion is not changed.”
In a decision dated November 13, 2012, OWCP denied appellant’s pulmonary injury
claim. It found that the weight of the medical evidence rested with the opinion of Dr. Hasson.
On June 3, 2013 an OWCP hearing representative affirmed the denial of appellant’s
claim on the grounds that there was no rationalized medical evidence in support of appellant’s
contention that the claimed pulmonary condition was causally related to factors of his federal
employment. The hearing representative further found that Dr. Hasson’s opinion represented the
weight of the medical evidence and established that the claimed pulmonary condition was not
due to appellant’s federal employment.
Appellant’s representative argues that the finding that the weight of the medical evidence
rests with Dr. Hasson is not supported by the evidence of record.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.4 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.5
Causal relationship is a medical issue6 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,7 must be
one of reasonable medical certainty8 and must be supported by medical rationale explaining the

4

5 U.S.C. § 8102(a).

5

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

6

Mary J. Briggs, 37 ECAB 578 (1986).

7

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

8

See Morris Scanlon, 11 ECAB 384, 385 (1960) (in which the claimant’s physician concluded that the implicated
conditions “could have had” a direct bearing upon his sickness).

4

nature of the relationship between the diagnosed condition and the established incident or factor
of employment.9
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.10 When there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.11
When OWCP secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, OWCP has the responsibility to secure a supplemental report from
the specialist for the purpose of correcting a defect in the original report. When the impartial
medical specialist’s statement of clarification or elaboration is not forthcoming or if the specialist
is unable to clarify or elaborate on the original report or if the specialist’s supplemental report is
also vague, speculative or lacks rationale, OWCP must submit the case record together with a
detailed statement of accepted facts to another impartial specialist for a rationalized medical
opinion on the issue in question.12 Unless OWCP follows this procedure, the intent of section
8123(a) will be circumvented when the impartial specialist’s medical report is insufficient to
resolve the conflict of medical evidence.13
ANALYSIS
In the prior appeal, the Board remanded the case for a second impartial medical
evaluation to resolve the conflict as to whether appellant sustained a pulmonary injury in the
performance of duty. OWCP referred him to Dr. Hasson, who is a Board-certified specialist in
pulmonary disease; however, he is not a certified B Reader. Dr. Hasson was once a certified B
Reader, but since 2003 he has been recognized as a certified A Reader. Dr. Watts, a Boardcertified diagnostic radiologist, is a certified B Reader.
Thus, on the question of whether appellant’s chest x-ray shows evidence of
pneumoconiosis, Dr. Watts’ interpretation carries more weight. It was his opinion that
appellant’s chest x-ray showed small parenchymal opacities consistent with pneumoconiosis.
Dr. Hasson’s opinion that pneumoconiosis was not present based on Dr. Watts’ findings
is not well rationalized. His interpretation of the chest x-ray and of other x-rays felt to show
9

See William E. Enright, 31 ECAB 426, 430 (1980) (finding no rationalized medical evidence, addressed to the
particular circumstances under which the claimant worked, indicating that his disability was causally related to such
employment factors).
10

5 U.S.C. § 8123(a).

11

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

12

See Nathan L. Harrell, 41 ECAB 402 (1990).

13

Harold Travis, 30 ECAB 1071 (1979).

5

pneumoconiosis, is not sufficient to outweigh the opinion of a certified B Reader. When
challenged on Dr. Hasson’s assertion that a CT scan was a better imaging modality for
identifying pneumoconiosis, he refused to address the issue. He also failed to provide any
meaningful response to the questions most recently asked of him. The handwritten note
indicating that Dr. Hasson had reviewed the statement of accepted facts and certain medical
reports was inadequate to resolve the questions most recently posed by the hearing
representative. Medical conclusions unsupported by rationale are of little probative value.14
Despite OWCP’s attempts to obtain clarification from Dr. Hasson, the Board finds that
his opinion remains insufficient to resolve the outstanding conflict in this case. Referral to
another impartial medical specialist is therefore necessary. The Board will set aside OWCP’s
June 3, 2013 decision and will remand the case for referral to a third impartial medical specialist
to resolve the conflict as to whether appellant’s accepted exposure in federal employment caused
or aggravated any firmly diagnosed pulmonary condition. After such further development of the
medical evidence as may become necessary, OWCP shall issue an appropriate de novo decision
on appellant’s injury claim.
CONCLUSION
The Board finds that this case is not in posture for decision. Further, development of the
medical opinion evidence is required.

14

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

6

ORDER
IT IS HEREBY ORDERED THAT the June 3, 2013 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further development consistent
with this opinion.
Issued: March 18, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., claiming as widow of E.P., Appellant
and
U.S. CUSTOMS SERVICE,
Elk Grove Village, IL, Employer
__________________________________________

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

Docket No. 13-655
Issued: June 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 28, 2013 appellant, through his attorney, filed a timely appeal from a
December 20, 2012 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 the employee’s death on December 8, 2009 was causally related to
her federal employment.
FACTUAL HISTORY
The case was previously before the Board. In a decision dated January 26, 2012, the
Board found that the employee was exposed to mold spores on May 23, 1993 in the performance

1

5 U.S.C. § 8101 et seq.

of duty.2 OWCP accepted aggravations of bronchial asthma, chronic obstructive pulmonary
disease (COPD), arrhythmia, ventricular tachycardia and aphasia, as well as a consequential
stroke on October 19, 1994. The Board found a conflict in medical opinion existed under 5
U.S.C. § 8123(a) of FECA with respect to whether the employee’s death on December 8, 2009
was causally related to her federal employment. The case was remanded for referral to a referee
physician. The history of the case as provided in the Board’s prior decision is incorporated
herein by reference.
On return of the case record OWCP selected Dr. Ofelia Alvarez-Willis, a Board-certified
internist, as a referee physician.
In an undated report received on May 3, 2012,
Dr. Alvarez-Willis provided a summary of the medical evidence.3 She opined that the employee
died as a result of heart disease and complications from heart surgery on September 10, 2009.4
Dr. Alvarez-Willis concluded:
“I did not find any evidence to suggest that her single exposure and inhalation of
mold and spores in 1993 permanently worsened her chronic pulmonary disease.
Since there is clear evidence that her COPD remained stable on two inhalers and
multiple CXR [chest x-ray], PFT’s [pulmonary function tests] and pulmonary
examinations demonstrated her lungs to be clear.
“I do not find that her exposure to spores and the ‘accepted’ industrial conditions
and facts precipitated, accelerated or caused [the employee’s] death 16 years later.
“It is my opinion that her heart disease with Hypertrophic Obstructive
Cardiomyopathy (HOCM) and her aortic stenosis with coronary disease requiring
surgery were the main causes of her pulmonary HTN [hypertension] and
ultimately caused her death due to [postop] complications of decreased perfusion
to kidneys (dialysis), skin (multiple ulcers) and osteomyelitis, tracheostomy and
ventilator[-]assisted respiration with fluid overload and pulmonary congestion and
finally sepsis and shock.
“Even that I believe that her COPD did not help the patient after her surgery there
were other factors to consider as aggravating or accelerating her death. Her
obesity, sleep apnea on CPAP [continuous positive airways pressure], diabetes,
and hypertension.
“It is my opinion that the single exposure from May 1993 is in no way responsible
for worsening a chronic condition or caused, precipitated, aggravated or
accelerated her demise.”

2

Docket No. 11-1479 (issued January 26, 2012).

3

The record also contains a detailed summary of notes made by Dr. Alvarez-Willis on review of the evidence.

4

The employee underwent a triple coronary bypass surgery on September 10, 2009.

2

By decision dated May 31, 2012, OWCP denied appellant’s claim for compensation. It
found that the medical evidence did not establish a causal relationship between the employee’s
death and her federal employment.
Appellant requested a hearing before an OWCP hearing representative, which was held
on October 15, 2012. At the hearing, appellant’s representative stated that the statement of
accepted facts (SOAF) appeared to have omitted that the claim was accepted for the
consequential stroke in 1994. Appellant submitted an October 4, 2012 report from Dr. Meghan
Jhaver, a Board-certified internist, who stated that it should be considered possible that the
employee’s mold exposure aggravated her underlying pulmonary and cardiac conditions that led
to her death.5
By decision dated December 20, 2012, the hearing representative affirmed the May 31,
2012 decision. She found that the medical evidence did not establish that the employee’s death
was causally related to her federal employment.
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 her employment. This
burden includes the necessity of furnishing medical opinion evidence of a cause and effect
relationship based on a complete factual and medical background.6 The opinion of the physician
must be one of reasonable medical certainty and must be supported by medical rationale.7 The
mere showing that an employee was receiving compensation for total disability at the time of his
or her death does not establish that his or her death was causally related to his or her
employment.8
It is well established that when a case is referred to a referee specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.9
ANALYSIS
OWCP selected Dr. Alvarez-Willis as a referee physician to resolve the conflict in the
medical evidence. The Board notes that at the October 15, 2012 hearing before an OWCP
hearing representative, appellant argued that the SOAF did not properly reflect that the stroke
suffered in October 1994 was an accepted consequential injury. The Board notes that the
February 25, 2010 SOAF of record includes all of the accepted conditions, including the stroke.
5

Dr. Jhaver had submitted previous reports and was on one side of the conflict in the medical evidence.

6

Carolyn P. Spiewak (Paul Spiewak), 40 ECAB 552 (1989).

7

Kathy Marshall (Dennis Marshal), 45 ECAB 827 (1994).

8

Edna M. Davis (Kenneth L. Davis), 42 ECAB 728 (1991).

9

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

3

Moreover, Dr. Alvarez-Willis provided detailed notes of her review of the evidence in the case.
She specifically noted the “accepted” conditions included an October 19, 1994 cerebrovascular
accident (CVA). The Board finds no evidence that the opinion of Dr. Alvarez-Willis was based
on an incomplete or inaccurate background.
The Board finds that Dr. Alvarez-Willis provided a well-rationalized medical opinion on
the issue presented. Dr. Alvarez-Willis explained that the employee’s death was related to heart
disease and a triple bypass surgery in September 2009 and not related to the employee’s
employment injuries. She noted that the medical evidence indicated that the respiratory
conditions were stable. The report from Dr. Alvarez-Willis was detailed and provided an
unequivocal opinion that the employee’s federal employment did not cause or accelerate her
death. As noted above, a rationalized medical opinion from a referee physician is entitled to
special weight.
The Board accordingly finds that the weight of the medical evidence is represented by the
referee physician, Dr. Alvarez-Willis who provided a rationalized medical opinion based on a
complete background. Appellant submitted an October 4, 2012 report from Dr. Jhaver, who was
on one side of the conflict prior to the referral to Dr. Alvarez-Willis. Dr. Jhaver provided an
equivocal opinion that it was possible that the employment exposure contributed to the
employee’s death. Additional reports from a physician on one side of the conflict that is
properly resolved by a referee specialist are generally insufficient to overcome the weight
accorded the referee specialist’s report or create a new conflict.10
Based on the weight of the medical evidence, the Board finds OWCP properly denied the
claim for compensation. 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 appellant has not established that the employee’s death on December 8,
2009 was causally related to her federal employment.

10

See id.; Dorothy Sidwell, 41 ECAB 857 (1990).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 20, 2012 is affirmed.
Issued: June 19, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cochranton, PA, Employer
__________________________________________

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

Docket No. 20-0698
Issued: November 10, 2020

Case Submitted on the Record

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

JURISDICTION
On February 10, 2020 appellant filed a timely appeal from an August 12, 2019 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.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s August 12, 2019 decision was Saturday, February 8, 2020.
Because the last day of the 180-day filing period fell on a Saturday, the filing period is extended until the close of the
next business day, which was Monday, February 10, 2020. Accordingly, the appeal is timely filed pursuant to
20 C.F.R. § 501.3(f)(2).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On February 8, 2018 appellant, then a 62-year-old rural mail carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed a right shoulder condition due to factors of
his federal employment including performing repetitive and arduous duties and handling extra
parcels during the Christmas season. He noted that he first became aware of his condition on
December 22, 2017, and realized it was causally related to his federal employment on
January 11, 2018. Appellant stopped work on December 22, 2017. On October 16, 2018 OWCP
accepted his claim for the conditions of right rotator cuff tear and impingement syndrome of the
right shoulder. It authorized arthroscopic surgery on the right shoulder which was performed on
April 18, 2018.3
On October 22, 2018 appellant filed a claim for a schedule award (Form CA-7).
In an November 6, 2018 development letter, OWCP advised appellant that no medical
evidence was submitted in support of his schedule award claim and requested that he submit a
report from his attending physician which addressed whether he had reached maximum medical
improvement (MMI) and, if so, to evaluate permanent impairment in accordance with the standards
of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).4 It afforded him 30 days to submit the necessary evidence.
In response to OWCP’s development letter, appellant submitted a December 1, 2018 report
from Dr. Bryan P. Hooks, a Board-certified orthopedist, who noted his history of treatment of
appellant and examination findings. Dr. Hooks explained, however, that appellant was not at MMI
and that he was unable to provide impairment rating report.
By decision dated January 28, 2019, OWCP denied appellant’s schedule award claim.
Dr. Hooks treated appellant on November 26, 2018, reporting no improvement in his
condition. He noted strength for abduction was 5/5 on the left and 5-/5 on the right side; external
rotation was 5/5 on the left and 5-/5 on the right; internal rotation was 5/5 bilaterally; range of
motion on the right for forward flexion was 50 degrees, external rotation was 20 degrees, internal
rotation was to L2; and Hawkins-Kennedy impingement test was positive bilaterally. Dr. Hooks
opined that appellant could achieve improved function if he were to consider a reverse total
shoulder arthroplasty.

3
A magnetic resonance imaging (MRI) scan of the right shoulder dated January 16, 2018 had revealed a massive
rotator cuff tear affecting the entirety of supraspinatus and infraspinatus with mild atrophy, high-grade partial
thickness, partial-width tear of subscapularis with intraarticular biceps dislocation, severe biceps tendinosis with lowgrade partial tearing, inferior and posterior labral tears, joint effusion and bursitis.
4

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

2

In a letter dated and postmarked February 22, 2019, appellant requested an oral hearing
before a representative of OWCP’s Branch of Hearings and Review. The hearing was held on
June 11, 2019. No additional evidence was received.
By decision dated August 12, 2019, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants and the Board has concurred in such
adoption.7 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards.8
It is the claimant’s burden of proof to establish permanent impairment of the scheduled
member or function of the body as a result of an employment injury.9 OWCP procedures provide
that, to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized
on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.10
Its procedures further provide that, if a claimant has not submitted a permanent impairment
evaluation, it should request a detailed report that includes a discussion of how the impairment
rating was calculated.11 If the claimant does not provide an impairment evaluation and there is no
indication of permanent impairment in the medical evidence of file, the claims examiner may
proceed with a formal denial of the award.12

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
9
T.K., Docket No. 19-1222 (issued December 2, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L.
Meehan, 53 ECAB 229 (2001).
10

Supra note 8 at Chapter 2.808.5 (March 2017).

11

Id. at Chapter 2.808.6(a) (March 2017).

12

Id. at Chapter 2.808.6(c).

3

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
Appellant provided reports from Dr. Hooks dated November 26 and December 1, 2018,
who opined that appellant reached full capacity. However, Dr. Hooks did not place appellant at
MMI. He advised that the only way appellant could achieve MMI would be to consider a reverse
total shoulder arthroplasty. OWCP procedures provide that MMI must be reached before a
schedule award is made.13 As noted above, MMI is determined to be a point where no further
improvement is anticipated and symptoms are expected to remain stable.14 Therefore, the Board
finds it premature to consider a schedule award in this case.
On appeal appellant asserts that he had to retire early because of his accepted right shoulder
injury and should have been paid a schedule award for the lost income.15 As noted above, there is
no current medical evidence of record confirming that appellant has reached MMI.16 Therefore,
appellant has not met his burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

13

Supra note 8 at Chapter 2.808.5 (March 2017).

14

Id.

15

To the extent that appellant is claiming entitlement to wage-loss compensation due to disability from work, as
opposed to a schedule award, he should properly file a completed Form CA-7).
16

Supra note 8 at Chapter 2.808.5 (March 2017).

4

ORDER
IT IS HEREBY ORDERED THAT the August 12, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2020
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BROADVIEW HEIGHTS VETERANS
MEDICAL CENTER, Brecksville, OH, Employer
__________________________________________

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

Docket No. 11-111
Issued: August 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 14, 2010 appellant filed a timely appeal from a September 27, 2010 decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she has an
additional cervical condition that was caused or aggravated by an April 1, 2008 employment
injury; and (2) whether cervical surgery should be authorized.
On appeal appellant’s attorney asserts that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 1, 2008 appellant, then a 54-year-old rehabilitation technician, filed a traumatic
injury claim, alleging that she was injured when she slipped and fell down three or four steps.
She stopped work that day, received continuation of pay, and returned to regular duty on
May 15, 2008. OWCP accepted that she sustained left face abrasions, a cheek laceration, a left
shoulder contusion/sprain, neck pain/sprain, bilateral knee/skin abrasions, and a left knee sprain.
In an April 1, 2008 report, Dr. Sangeeta S. Bhavnani, an employing establishment
physician Board-certified in internal medicine, noted that appellant was injured that day when
she fell down four steps, striking her face, left shoulder, left forearm and bilateral knees and
shins. He provided findings on physical examination and diagnosed multiple contusions and
abrasions. Facial and skull x-rays demonstrated no fractures and a cervical spine series
demonstrated degenerative disc disease. Left shoulder and bilateral knee x-rays were negative.
By report dated April 3, 2008, Dr. D. Philip Stickney, a Board-certified orthopedic
surgeon, noted the history of injury, his review of the x-rays, and appellant’s complaint of
constant daily pain and stiffness. His findings included decreased cervical range of motion and
diagnosed left shoulder and neck pain, noting that she had no radicular symptoms extending
beyond her elbow. In an April 7, 2008 report, Dr. Stickney advised that appellant’s shoulder
pain had significantly improved and her neck pain was somewhat worse. He also diagnosed a
left knee sprain/strain and advised that her degenerative neck symptoms clearly predated her fall
but were significantly aggravated. On May 5, 2008 Dr. Stickney reported improved cervical
range of motion. On June 30, 2008 he noted that appellant’s pain was gone and that she was
working without restriction. Examination demonstrated good functional cervical range of
motion. Dr. Stickney advised that, because of her degenerative cervical discs, she would likely
have a waxing and waning course through the years and advised that he would see her “as
needed.” He next saw appellant on October 9, 2008 when he reported that her left shoulder and
neck pain became worse over the past several weeks. Examination showed no focal findings and
tenderness in the trapezius muscles or along the cervical spine. Dr. Stickney recommended a
magnetic resonance imaging (MRI) scan study of the cervical spine and advised that appellant
was having progressive disability secondary to her cervical impairment that was aggravated by
the employment injury.
A November 24, 2008 MRI scan of the cervical spine demonstrated a reversal of normal
cervical lordosis with disc-osteophyte complexes at C4-5 and C5-6 causing impingement on the
thecal sac and flattening of the underlying cord. In a December 11, 2008 report, Dr. Stickney
noted his review of the MRI scan study and advised that appellant was a good candidate for an
anterior cervical fusion.
On June 2, 2009 OWCP referred appellant to Dr. Manhal A. Ghanma, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a June 29, 2009 report, Dr. Ghanma
noted the history of injury and his review of the medical record. He provided findings on
physical examination and advised that there were no current diagnoses for the face, left shoulder,
right or left knee. Dr. Ghanma noted that appellant had degenerative changes of the cervical
spine, as shown on the November 24, 2008 MRI scan study. He opined that her cervical
condition was not caused, accelerated, aggravated or precipitated by the April 1, 2008

2

employment injury but was due to the preexisting degenerative changes. Dr. Ghanma stated that
the recommended surgery was not related to the April 1, 2008 employment injury, and that he
would not recommend surgery at the present time because appellant had no objective
examination findings to support the need for surgery.
In reports dated October 12, 2009, Dr. Stickney diagnosed cervical disc herniations and
reported tenderness in the trapezius region. He advised that appellant could perform her usual
job duties without restriction.
OWCP determined that a conflict in medical opinion was created between Dr. Stickney
and Dr. Ghanma regarding the residuals of April 1, 2008 employment injury and need for
surgery. It referred appellant to Dr. Ralph J. Kovach, Board-certified in orthopedic surgery, for
an impartial evaluation. In an October 27, 2009 report, Dr. Kovach noted his review of the
statement of accepted facts and medical record. He described the employment injury and
reported appellant’s complaint of left trapezius pain. Physical examination demonstrated no
sensory deficits in the upper and lower extremities and excellent range of motion of the neck.
There was no spasm or tenderness on palpation of the neck and diminished left shoulder range of
motion with complaints of pain. Dr. Kovach advised that there were no residuals of the face, left
shoulder, neck, right or left knee conditions. He stated that the November 2008 MRI scan study
demonstrated degenerative changes that were not caused or accelerated by the work injury, and
that appellant did not have objective findings to indicate that she would not benefit from the
recommended surgical procedure. Dr. Kovach advised that she should only be treated on a
symptomatic basis with simple analgesics. In an attached work capacity evaluation, he reported
that appellant could perform her regular duties with no restrictions.
By report dated November 23, 2009, Dr. Stickney described appellant’s employment
injury and advised that, while her cervical symptoms had resolved by June 30, 2008, they
recurred in October 2008.
In a supplementary report dated March 9, 2010, Dr. Kovach advised that the preexisting
changes in appellant’s cervical spine were not aggravated or precipitated by the April 1, 2008
employment injury. He noted that she had excellent cervical motion with no neurological
findings in the extremities and no atrophy of either upper extremity.
By decision dated April 5, 2010, OWCP found that the weight of the medical evidence
rested with the opinion of Dr. Kovach and denied appellant’s claim for a cervical condition
beyond a sprain/strain.2
Appellant, through her attorney, requested a hearing that was held on June 29, 2010.
Counsel argued that additional cervical conditions should be accepted.
2

On October 5, 2009 appellant claimed a schedule award. In a November 23, 2009 report, Dr. Stickney advised
that, under the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, she had a five percent whole person impairment due to her cervical spine injury. In a January 29, 2010
report, Dr. Kovach advised that, under the sixth edition of the A.M.A., Guides, appellant had a two percent
impairment of the left upper extremity. By report dated March 27, 2010, OWCP’s medical adviser agreed with
Dr. Kovach’s assessment. On April 15, 2010 appellant was granted a schedule award for a two percent loss of use
of the left arm. She did not appeal the schedule award decision to the Board.

3

In a September 27, 2010 decision, OWCP’s hearing representative affirmed the April 5,
2010 decision. She found that the weight of the medical evidence rested with Dr. Kovach’s
opinion that appellant had no cervical condition in excess of a simple sprain causally related to
the April 1, 2008 employment injury and that cervical spine surgery was not indicated for an
employment-related condition.3
LEGAL PRECEDENT -- ISSUE 1
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that a claimed medical condition was caused or adversely affected by
employment factors. This burden includes the submission of a detailed description of the
employment factors or conditions which the claimant believes caused or adversely affected the
condition or conditions for which compensation is claimed. If a claimant does establish an
employment factor, she must submit medical evidence showing that a medical condition was
caused by such a factor.4
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.6 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.7
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.8 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or OWCP’s medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior

3

The hearing representative’s decision was initially mailed on September 17, 2010.
typographical error on the cover letter, it was resent on September 27, 2010.
4

V.C., 59 ECAB 137 (2007).

5

D.G., 59 ECAB 734 (2008).

6

Id.

7

Roy L. Humphrey, 57 ECAB 238 (2005).

8

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

4

However, due to a

connection with the case.9 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.10
ANALYSIS -- ISSUE 1
OWCP determined that a conflict in the medical evidence arose between the opinions of
appellant’s attending physician, Dr. Stickney, and Dr. Ghanma, who provided a second opinion
evaluation for OWCP, regarding residuals of the April 1, 2008 employment injury and need for
cervical surgery. It properly referred appellant to Dr. Kovach for an impartial evaluation.11
The Board finds Dr. Kovach’s opinion is well rationalized and supports a finding that
appellant’s degenerative cervical condition was not caused or aggravated by the April 1, 2008
employment injury.12 In reports dated October 27, 2009 and March 9, 2010, Dr. Kovach noted
the history of injury and his review of the record, including the November 2008 MRI scan study.
He described the employment injury and advised that physical examination demonstrated no
sensory deficits in the upper and lower extremities, that appellant had excellent neck range of
motion with no spasm or tenderness on palpation of the neck and no atrophy of either upper
extremity. Dr. Kovach stated that the November 2008 MRI scan study demonstrated preexisting
degenerative changes that were not caused or aggravated by the April 1, 2008 work injury. He
concluded that appellant could perform her regular employment duties with no restrictions.
OWCP properly accorded special weight to Dr. Kovach’s findings in denying any additional
conditions as due to appellant’s work injury.13
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.14 While OWCP is obligated to pay for treatment of employment-related
conditions, the employee has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition.15

9

20 C.F.R. § 10.321.

10

V.G., 59 ECAB 635 (2008).

11

Supra note 8.

12

V.G., supra note 10.

13

I.J., 59 ECAB 408 (2008).

14

5 U.S.C. § 8103; see L.D., 59 ECAB 648 (2008).

15

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

5

In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under section 8103, with the only limitation on
OWCP’s authority being that of reasonableness.16 Abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken
which are contrary to both logic and probable deductions from established facts. It is not enough
to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.17 To be entitled to reimbursement of medical expenses, a claimant has the burden of
establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.18 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the surgery is for a condition causally related to an
employment injury and that it is medically warranted. Both of these criteria must be met in order
for OWCP to authorize payment.19
ANALYSIS -- ISSUE 2
As noted, appellant did not establish that the degenerative changes in her cervical spine
were caused or aggravated by the April 1, 2008 employment injury. OWCP properly denied
authorization for the surgery requested by Dr. Stickney for that condition. Appellant did not
establish that the recommended surgery was for a condition causally related to an employment
injury.20 Dr. Kovach, who provided a referee opinion, found that the cervical surgery was not
medically warranted because appellant did not have objective findings to indicate that she would
benefit from the recommended surgical procedure. Accordingly, as the evidence establishes that
appellant met neither of the criteria required for authorization of recommended surgery, OWCP
acted within its discretion in denying authorization.21
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 failed to establish that additional cervical conditions were
caused or aggravated by the April 1, 2008 employment injury, and that OWCP properly denied
authorization for the recommended cervical surgery.

16

See D.K., 59 ECAB 141 (2007).

17

Minnie B. Lewis, 53 ECAB 606 (2002).

18

M.B., 58 ECAB 588 (2007).

19

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

20

5 U.S.C. § 8103; R.C., id.

21

L.D., supra note 14.

6

ORDER
IT IS HEREBY ORDERED THAT the September 27, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: August 18, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE NAVY,
UNITED STATES NAVAL SHIP COMET,
FPO, San Francisco, CA, Employer
__________________________________________

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

Docket No. 20-0566
Issued: March 8, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 13, 2020 appellant filed a timely appeal from a November 22, 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
ISSUE
The issue is whether OWCP properly denied appellant’s request for authorization of home
equipment and modifications.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 22, 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.

FACTUAL HISTORY
On January 6, 1968 appellant, then a 27-year-old seaman, filed a notice of injury or
occupational disease claim (Form CA-1) alleging that on January 5, 1968 he sustained a broken
left arm and a fractured left patella as a result of a motorcycle accident in Vietnam while in the
performance of duty. OWCP accepted the claim for skull fracture with convulsive disorder, left
wrist fracture, left patella open fracture, left bicep laceration, right hip fracture, and traumatic right
hip osteoarthritis. 3 The record reflects that OWCP paid appellant wage-loss compensation on the
periodic rolls as of June 16, 2002. On August 8, 2013 appellant underwent OWCP-authorized
total right hip replacement surgery.
In an August 8, 2019 letter, appellant requested that OWCP grant authorization for a
handicap bathroom extension, a new chair lift with a table, a ramp to access the rear of his property,
widen internal doors, and level and resurface areas around his house to facilitate his use of a
wheelchair, as recommended by his occupational therapist in an accompanyin g June 6, 2019
medical report.
Appellant also submitted an undated quote and quotes dated January 13, 18, June 16, and
August 8, 2019 for the recommended home modifications.
In an August 14, 2019 development letter, OWCP advised appellant that it required
periodic medical reports in cases in which compensation was being paid for prolonged disability.
It requested that he submit an opinion from his physician regarding the status of his accepted
condition, his ability to return to work, and his current medical treatment plan. OWCP afforded
appellant 30 days to respond.
A memorandum of telephone call (Form CA-110) dated September 4, 2019 reflects that
OWCP requested that appellant submit a report from his treating physician explaining the necessity
of an outdoor wheelchair ramp since he was not currently using a wheelchair.
OWCP received medical evidence from Dr. Aidan F. Lynch, an attending orthopedic
surgeon. In an August 27, 2019 attending physician’s report (Form CA-20), Dr. Lynch noted
appellant’s accepted conditions. He advised that appellant sustained multiple injuries and stiff
lower limbs that were caused or aggravated by the January 5, 1968 employment injury. Dr. Lynch
indicated that appellant was totally disabled from work as of May 1, 1986 and that he was
becoming increasingly disabled.
In a September 4, 2019 narrative report, Dr. Lynch noted appellant’s history of injury on
January 5, 1968. He also noted his current complaints of persistent shoulder discomfort.
Dr. Lynch observed that appellant’s ability to remain active was gradually deteriorating, he walked
with a shufﬂing gait and used a stick to mobilize, and his ability to walk was becoming more
restricted especially on rough ground or when attempting to climb steps or stairs. He further
observed that appellant was physically unable to work and he had to drive an automatic car.
Dr. Lynch reported findings on physical examination. He indicated that in 2013 appellant
3

By decision dated January 14, 1972, OWCP granted appellant a schedule award for 10 percent permanent
impairment of the left arm, 55 percent permanent impairment of the left leg, a nd 12 percent permanent impairment of
the right leg.

2

underwent total right hip replacement surgery to convert a fused hip to a hip arthroplasty.
Dr. Lynch indicated that the operation provided him with improved hip mobility, but he still had
a signiﬁcant degree of stiffness in his hip in view of his previous arthrodesis. He advised that no
further improvement was anticipated regarding appellant’s hip function. Additionally, Dr. Lynch
advised that appellant had arthrodesis to his left knee, which was in a ﬁxed position, discomfort in
his back, which appeared to be associated with stiffness in both his right hip and left knee, and
restricted movement of both shoulders. He related that, in light of appellant’s injury, he was
becoming increasingly disabled in his ability to remain active. Dr. Lynch was also no longer able
to climb steps or stairs. He determined that appellant was 100 percent permanently disabled from
work. Dr. Lynch related that appellant was also becoming increasingly disabled from performing
activities of daily living (ADLs). He advised that his house required indoor modifications to
provide access to his bedroom and toilet. Dr. Lynch further advised that outdoor modifications,
which included a ramp to gain entrance into his house were required as appellant had to avoid
using steps or stairs and likely required a wheelchair in the future.
Dr. Lynch, in an October 1, 2019 addendum letter, advised that appellant had restricted
mobility as a result of his multiple injuries, which required indoor and outdoor modifications to
his house. He requested that OWCP grant authorization for such modifications. Dr. Lynch noted
that the ground at appellant’s house was quite rough and he was unable to walk on uneven surfaces.
As such, he maintained that a solid surface, either concrete or tarmac, was required. Dr. Lynch
also maintained that ramps instead of steps would be required at the entrance to appellant’s house.
He indicated that the front door and indoors of the house needed to be widened to allow wheelchair
access in the future. Dr. Lynch again opined that appellant remained permanently totally disabled
from work.
OWCP received additional estimates for a handicap bathroom and other home
modifications, including a wheelchair ramp with a platform and widened front and rear doorways.
By decision dated October 11, 2019, OWCP granted authorization for modification of
appellant’s existing bathroom and other indoor home modifications.
In an October 25, 2019 decision, OWCP denied authorization for a wheelchair ramp and
other outdoor home modifications, finding that the medical evidence of record was insufficient to
establish that the requested equipment and modifications were medically necessary to address the
effects of the January 5, 1968 employment injury.
By decision dated November 22, 2019, OWCP reissued the October 25, 2019 decision.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of monthly compensation. 4
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
4

5 U.S.C. § 8103; see R.P., Docket No. 17-0428 (issued April 19, 2018); Thomas W. Stevens, 50 ECAB
288 (1999).

3

has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition. 5
In interpreting section 8103, the Board has recognized that OWCP has broad discretion in
approving services, with the only limitation on OWCP’s authority being that of reasonableness.6
Abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise
of judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evid ence could be construed so as to
produce a contrary factual conclusion.7
The Board has previously noted that OWCP’s procedures provide for housing
modifications under limited circumstances. 8 To be eligible for housing modifications, the claimant
must be severely restricted in terms of mobility, functionality, and independence in normal living
functions, on a permanent basis, due to the work-related injury. Examples are impairments that
require the use of a prosthesis, wheelchair, motorized scooter, leg braces, crutches, ca ne, or other
self-help devices. Such medical conditions include quadriplegia, paraplegia, amputation, total loss
of use of limbs, blindness, and profound deafness bilaterally.9
Before considering the technicalities of housing modification proposals, a determination
must be made on the medical necessity of the requested modification. There are several aspects
to consider when reviewing the evidence of record:
“(1) Does the level of impairment rise to the level delineated in the eligibility
section above?
“(2) Does the medical evidence support that the claimant has restrictions or
physical limitations which necessitate the modification?
“(3) Are these restrictions caused by the accepted work-related condition?
“(4) Does the physician provide detailed findings and rationale for the opinion that
the claimant’s work injury has caused restrictions which necessitate the requested

5

See R.P., id.; Kennett O. Collins, Jr., 55 ECAB 648 (2004); Zane H. Cassell, 32 ECAB 1537 (1981).

6
See B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990)
(abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or administrative actions which are contrary to both logic, and probable deductions from established facts).
7

D.S., Docket No. 18-0353 (issued May 18, 2020); P.L., Docket No. 18-0260 (issued April 14, 2020); L.W., 59
ECAB 471 (2008).
8

R.K., Docket No. 14-1238 (issued September 23, 2014).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Housing and Vehicle Modifications, Chapter 2.1800.3
(October 2009).

4

modification? This should come from a physician who is a recognized authority in
the appropriate medical specialty.”10
ANALYSIS
The Board finds that OWCP properly appellant’s request for authorization of home
equipment and modifications.
OWCP accepted that on January 5, 1968 appellant sustained a work-related skull fracture
with convulsive disorder, left wrist fracture, left patella open fracture, left bicep laceration, right
hip fracture, and traumatic right hip osteoarthritis. Consequently, it granted authorization for
appellant’s handicap bathroom and other indoor home modifications, but denied authorization for
a wheelchair ramp and other outdoor home modifications.
In a September 4, 2019 report and October 1, 2019 addendum letter, Dr. Lynch requested
that OWCP authorize modification to the outside of appellant’s existing home, noting that he
would benefit from handicap accessible equipment. He noted that appellant’s current and
worsening ability to walk was restricted especially when he walked on rough or uneven ground
and attempted to climb steps or stairs. Dr. Lynch also noted that he had increasing difficulty
performing ADLs. He maintained that appellant would “likely” needed a wheelchair ramp to enter
his house because he should avoid using steps or stairs. As such, Dr. Lynch also related that the
front door and indoors of appellant’s house required widening to allow for the use of a wheelchair
in the future. Additionally, he indicated that a solid surface, such as concrete or tarmac, was
required outside appellant’s house due to his inability to walk on uneven surfaces. Dr. Lynch
found that appellant’s permanent total disability from work resulted from the January 5, 1968
employment injury, which required total right hip replacement surgery in 2013.
To establish the medical necessity of the requested modification, Dr. Lynch was required
to explain how appellant’s present inability to negotiate steps, requiring a wheelchair ramp, and to
walk on uneven ground, requiring a solid surface, were caused by the accepted employment injury
that occurred 51 years prior. The Board finds that Dr. Lynch failed to provide a rationalized
medical opinion explaining why the requested the wheelchair ramp and other home modifications
were medically necessary.11 Dr. Lynch did not provide the necessary medical explanation as to
how the wheelchair ramp and other outdoor home modifications would cure, reduce the period of
disability, or aid in lessening the amount of monthly compensation. 12
As noted, the only limitation on OWCP’s authority is approving or disapproving services
under FECA is one of reasonableness. 13 As the medical evidence submitted provided insufficient
10

Id. at Chapter 2.1800.4.

11

Supra note 4; see also O.M., Docket No. 20-0640 (issued April 19, 2021); D.K., Docket No. 20-0002 (issued
August 25, 2020); G.B., Docket No. 18-1444 (issued March 25, 2019); M.B., Docket No. 17-1679 (issued February 8,
2018); R.K., Docket No. 14-1238 (issued September 23, 2014) (medical conclusions unsupported by rationale are of
diminished probative value).
12

Supra note 3.

13

Supra note 5.

5

explanation of medical necessity, the Board finds that OWCP properly denied appellant’s requests
under section 8103 of FECA.14
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 properly denied appellant’s request for authorization of home
equipment and modifications.
ORDER
IT IS HEREBY ORDERED THAT the November 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2022
Washington, DC

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

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

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

14

Supra note 10.

6