United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
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)
U.S. POSTAL SERVICE, SOUTHERN
)
MARYLAND PROCESSING & DISTRIBUTION )
CENTER, Capitol Heights, MD, Employer
)
__________________________________________ )
D.G., Appellant

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

Docket No. 12-815
Issued: November 8, 2012

Case Submitted on the Record

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

JURISDICTION
On March 5, 2012 appellant filed a timely appeal of a February 3, 2012 schedule award
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this schedule award case.
ISSUE
The issue is whether appellant has more than eight percent impairment of the right arm,
for which she received schedule awards.
FACTUAL HISTORY
On November 3, 2003 appellant, then a 52-year-old mail handler, filed an occupational
disease claim alleging right carpal tunnel syndrome. OWCP accepted her claim for right carpal
1

5 U.S.C. § 8101 et seq.

tunnel syndrome and acquired right trigger finger. On September 9, 2004 appellant underwent
surgery for right carpal tunnel syndrome of the right wrist and hand and exploration of the right
ulnar nerve at the right elbow performed by Dr. Rida N. Azer, an attending Board-certified
orthopedic surgeon. On November 4, 2008 Dr. Azer performed right thumb trigger deformity
release.
On September 22, 2008 appellant filed a claim for a schedule award. In a September 2,
2009 medical report, Dr. Robert W. Macht, an attending general surgeon, on physical
examination, listed range of motion measurements for the right wrist which demonstrated 40
degrees each of flexion and extension, 25 degrees of ulnar deviation and 10 degrees of radial
deviation. The right elbow had 110 degrees of flexion and 10 degrees of extension. Appellant
had pain with motion of her right wrist and elbow. She also had tenderness on palpation about
the flexor wrist and medial elbow region. Scarring was noted in this area. Appellant had
decreased sensation to light touch in all fingers on the right hand except the ring finger.
Sensation to two-point discrimination was intact. There was no atrophy. A Tinel’s sign was
positive at the right wrist and elbow. A Phalen’s test was also positive. The maximum strength
of appellant’s right hand grip was 19 kilograms using a dyanometer in position 2. Appellant had
mild intrinsic muscle weakness of the right hand. Dr. Macht advised that she was status post
release of the right ulnar and median nerves. He noted that a June 2004 nerve study showed
evidence of right ulnar and median nerve conduction delay. Utilizing Table 15-23 of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),2 Dr. Macht assessed a grade 1 modifier for test findings, a grade 3
modifier for history and a grade 2 modifier for physical findings. He added these figures which
totaled six points and then divided by three to calculate two which represented five percent
impairment of the right arm due to ulnar nerve entrapment and five percent impairment due to
median nerve entrapment. Utilizing Table 15-32,3 Dr. Macht determined that appellant had three
percent impairment for loss of flexion, three percent impairment for loss of extension, two
percent impairment for loss of radial deviation and one percent impairment for loss of ulnar
deviation of the right wrist, totaling nine percent impairment. Utilizing Table 15-33,4 he
determined that she had three percent impairment due to loss of flexion and two percent
impairment for loss of extension of the right elbow, totaling five percent impairment. Dr. Macht
combined the impairment ratings for ulnar and median neuropathy and loss of range of motion to
calculate a 23 percent impairment of the right upper extremity.5
On December 5, 2009 Dr. Lawrence A. Manning, OWCP’s medical adviser, reviewed the
medical record, including Dr. Macht’s September 2, 2009 findings. He noted that the only
accepted condition was carpal tunnel syndrome and, thus, it was inappropriate for Dr. Macht to
include impairment for ulnar neuropathy and elbow range of motion deficit. Dr. Manning
advised that appellant had six percent impairment of the right upper extremity due to her
2

A.M.A., Guides 449.

3

Id. at 473.

4

Id. at 474.

5

The Board notes that it appears Dr. Macht’s combined right upper extremity impairment should be 22 percent
rather than 23 percent based on the figures provided in his report.

2

accepted right carpal tunnel syndrome based on the sixth edition of the A.M.A., Guides. His
opinion was based on the peripheral nerve regional grid and impairment for sensory and motor
deficit, noting that flexion and extension of the right wrist was up to 40 degrees, ulnar deviation
was 25 degrees and radial deviation was 10 degrees. Dr. Manning noted that Dr. Macht did not
provide any abnormal findings related to appellant’s accepted right trigger finger and
November 4, 2008 surgery.
He concluded that appellant reached maximum medical
improvement on September 9, 2005.
By decision dated February 18, 2010, OWCP granted appellant a schedule award for six
percent impairment of the right arm based on Dr. Manning’s opinion. The period of the award
ran from September 26, 2009 to February 4, 2010.6
In a July 29, 2010 decision, OWCP’s hearing representative set aside the February 18,
2010 decision and remanded the case for OWCP’s medical adviser to determine whether
appellant sustained a right elbow ulnar nerve condition causally related to her accepted injuries
and the extent of any permanent impairment due to all of her accepted employment-related
conditions and authorized right elbow surgery.
On September 13, 2010 Dr. Christopher R. Brigham, a Board-certified occupational
medicine specialist and OWCP’s medical adviser, reviewed the medical record and advised that
appellant had right elbow ulnar neuropathy. He further advised that she reached maximum
medical improvement on September 9, 2005. Dr. Brigham applied Chapter 15, section 15.4f
(Entrapment Neuropathy) of the sixth edition of the A.M.A., Guides, in particular Table 15-23
(Entrapment/Compression Neuropathy Impairment).7 He agreed with Dr. Macht’s finding that
appellant had a grade 1 modifier for June 17, 2004 test findings of sensory and/or motor
conduction delay. Dr. Brigham noted that, while postsurgical electrodiagnostic studies did not
show any neuropathy on the right, the A.M.A., Guides stated that whether nerve conduction tests
recovered to normal after surgical or nonsurgical treatment did not influence an impairment
rating. He agreed with Dr. Macht’s finding that appellant had a grade 3 modifier for history due
to her constant symptoms. Dr. Brigham assessed a grade 3 modifier for physical findings as
there was documentation of right hand sensory deficits and weakness of the intrinsics. He added
the values of the grade modifiers to calculate 7 (1 + 3 + 3 = 7). Dr. Brigham divided 7 by 3 to
calculate an average of 2.33 which rounded down to 2. He stated that the grade 2 modifier for
right median nerve impairment represented a five percent default impairment of the upper
extremity. Dr. Brigham advised that appellant’s functional score seemed consistent with the
default rating and no additional impairment or lower value should be assigned. He, thus, agreed
with Dr. Macht’s opinion that appellant had five percent impairment of the upper extremity due
to median neuropathy. Dr. Brigham also agreed with Dr. Macht’s opinion that she had five
percent impairment of the right upper extremity due to ulnar neuropathy. He assessed grade
modifier values of 1 for test findings, 3 for history and 3 for physical findings. Dr. Brigham
averaged these values to arrive at 2.33, which rounded down to 2. He assigned a grade 2
modifier which represented a five percent default impairment for ulnar entrapment neuropathy.
6

The record indicates that OWCP paid appellant compensation during the stated period February 18, 2010
schedule award.
7

A.M.A., Guides 432-33, 445-50.

3

Dr. Brigham noted that the A.M.A., Guides provided that, in the case of multiple
neuropathies, the nerve qualifying for the larger impairment is given the full impairment, while
the nerve qualifying for the smaller impairment is related at half the impairment listed. The
impairments should be combined and if the rating ended in .5 percent, then it should be rounded
to the next integer.8 Dr. Brigham thus found that appellant had a total impairment of the right
upper extremity due to the median and ulnar neuropathies of eight percent or five percent plus
half of five percent. He concluded that no additional impairment was included for loss of range
of motion of the right wrist or elbow based on section 15.7 (Range of Motion Impairment)9 and
section 15.4f.10
By letter dated September 30, 2010, OWCP accepted appellant’s claim for right ulnar
neuropathy based on Dr. Brigham’s September 13, 2010 opinion.
In an October 7, 2010 decision, OWCP granted appellant an additional schedule award
for two percent impairment of the right arm also based on Dr. Macht’s opinion.11
On October 20, 2010 appellant requested reconsideration.
In a November 16, 2010 report, Dr. Azer and two other Board-certified orthopedic
surgeons, Dr. Peter S. Trent and Dr. Hampton J. Jackson, Jr., advised that appellant had sensory
nerve damage in both hands equal in medial nerve distribution as a result of her work injuries.
On the left side, appellant had additional ulnar nerve sensory damage. Based on clinical
examination and two-point discrimination testing confirmed by an electromyogram/nerve
conduction velocity study, she had a class 2 impairment of the median nerve under Table 15-21
of the sixth edition of the A.M.A., Guides which represented 23 percent impairment of the entire
upper extremities.12 Appellant also had a class 1 sensory deficit in the ulnar nerve which
represented an additional six percent impairment. In both cases, the physicians assigned grade 2
modifiers, resulting in 29 percent impairment of the left upper extremity and 23 percent
impairment of the right upper extremity.
In a March 14, 2011 decision, OWCP denied modification of the October 7, 2010
decision, finding that the medical evidence submitted did not establish that appellant had more
than eight percent impairment of the right upper extremity for which she had received schedule
awards. It determined that the November 16, 2010 report did not provide appropriate references
to pages, tables and figures of the sixth edition of the A.M.A., Guides or physical findings to
support the 23 percent right upper extremity impairment rating.

8

Id. at 448.

9

Id. at 459-61.

10

Id. at 432-33.

11

The Board notes that, although Dr. Brigham opined that appellant had eight percent impairment of the right
upper extremity, she was only entitled to an additional two percent award for the right upper extremity due to her
receipt of compensation under the prior schedule award.
12

A.M.A., Guides 438.

4

On April 7, 2011 appellant requested reconsideration.
In an April 1, 2011 report, Drs. Azer, Trent and Jackson reiterated that there was sensory
nerve damage in appellant’s bilateral hands as a result of injury to the median nerve which
required surgery. This sensory damage included a two-point discrimination impairment which
represented a class 2 impairment with moderate sensory deficit or moderate complex regional
pain syndrome (CRPS) under Table 15-21.13 The physicians advised that appellant had 28
percent impairment of each upper extremity. Appellant had the same sensory damage to the
ulnar nerve which was exhibited by impairment of a two-point discrimination and questionable
CRPS which represented a class 1 impairment under Table 15-21. She had a grade 2 modifier in
each instance. The physicians combined the 28 percent impairment ratings under the Combined
Values Chart to calculate 48 percent impairment of the right upper extremity.14
On July 1, 2011 Dr. Brigham reviewed the April 1, 2011 report. He advised that his prior
finding that appellant had eight percent impairment of the right upper extremity under the sixth
edition of the A.M.A., Guides remained unchanged. Dr. Brigham stated that the panel of
physicians in the April 1, 2011 report incorrectly used Table 15-21 to rate appellant’s
impairment. Table 15-23 for entrapment/compression neuropathies should have been used.
Dr. Brigham noted that, based on section 15.4e,15 Table 15-21 is used to rate impairment from
traumatic injury to peripheral nerves. It is not used for nerve entrapments since they are not
isolated traumatic events. As discussed in his September 13, 2010 report, Dr. Brigham stated
that section 15.4f addressed how to rate various nerve conditions. He reiterated his prior
impairment calculations for appellant’s right upper extremity median and ulnar neuropathy.
Dr. Brigham also reiterated his prior opinion that there was no additional impairment for loss of
range of motion of the right wrist or elbow.
In a July 6, 2011 decision, OWCP denied modification of the March 14, 2011 decision.
It found that Dr. Brigham’s opinion constituted the weight of the evidence and established that
appellant had no more than eight percent impairment of the right upper extremity.
By letter dated July 21, 2011, appellant requested reconsideration. She resubmitted the
April 1, 2011 report from Drs. Azer, Trent and Jackson.
In a February 3, 2012 decision, OWCP denied modification of the July 6, 2011 decision.
It noted that the medical evidence submitted was previously reviewed in its prior decision.
OWCP, thus, found that appellant failed to submit any new medical evidence establishing that
she had greater impairment than that already awarded.

13

Id.

14

Id. at 604.

15

Id. at 429.

5

LEGAL PRECEDENT
The schedule award provision of FECA16 and its implementing federal regulations17 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.18 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.19 Effective May 1, 2009,
FECA adopted the sixth edition of the A.M.A., Guides as the appropriate edition for all awards
issued after that date.20
The A.M.A., Guides provide a specific rating process for entrapment neuropathies such
as carpal tunnel.21 This rating process requires that the diagnosis of a focal neuropathy syndrome
be documented by sensory or motor nerve conduction studies or electromyogram. The A.M.A.,
Guides do not allow additional impairment values for decreased grip strength, loss of motion or
pain.22 Table 15-23 provides a compilation of the grade modifiers for test findings, history and
physical findings which are averaged and rounded to the nearest whole number. This table also
provides the range of impairment values as well as the function scale modifier which determines
the impairment value within the impairment scale.23
ANALYSIS
OWCP accepted that appellant sustained right carpal tunnel syndrome, acquired right
trigger finger and right ulnar neuropathy due to her repetitive work duties. Appellant underwent
decompression of the right carpal tunnel syndrome on September 9, 2004 and right thumb trigger
deformity release on November 4, 2008. On February 18, 2010 she received a schedule award
for six percent impairment of the right upper extremity. On October 7, 2010 appellant received
an additional schedule award for two percent impairment of the right upper extremity, totaling

16

5 U.S.C. § 8107.

17

20 C.F.R. § 10.404.

18

Ausbon N. Johnson, 50 ECAB 304 (1999).

19

Supra note 17; Mark A. Holloway, 55 ECAB 321, 321 (2004).

20

FECA Bulletin No. 09-03 (issued March 15, 2009).

21

A.M.A., Guides 432-50.

22

Id. at 433.

23

Id.

6

eight percent impairment. The Board finds that she did not meet her burden of proof to establish
that she sustained greater impairment.24
On September 2, 2009 appellant’s attending physician, Dr. Macht opined that appellant
had 23 percent impairment of the right upper extremity under the sixth edition of the A.M.A.,
Guides. He incorrectly combined impairment for loss of motion with impairment due to median
and ulnar entrapment neuropathy. The A.M.A., Guides explains that diagnosis-based
impairment is the method of choice for calculating impairment, while range of motion is used
principally as an adjustment factor. When other grids refer the evaluator to the range of motion
section or when no other diagnosis-based system is applicable, range of motion impairment
serves as a stand-alone rating, one that cannot be combined with a diagnosis-based estimate, such
as impairment due to entrapment or compression neuropathy.25 The Board finds, therefore, that
Dr. Macht’s report is insufficient to constitute the weight of the medical opinion evidence for
schedule award purposes.
In impairment evaluations dated November 16, 2010 and April 1, 2011, Drs. Azer, Trent
and Jackson, also attending physicians, applied Table 15-21, which is for peripheral nerve
impairments.26 The A.M.A., Guides specifically state that the peripheral nerve impairment
section is not to be used for nerve entrapment.27 The physicians did not explain why Table 15-21
would be appropriate in this case and therefore their opinion as to the degree of impairment is of
diminished probative value. Further, the Board notes that OWCP has not accepted appellant’s
claim for a left upper extremity condition. Therefore, the reports from Drs. Azer, Trent and
Jackson are insufficient to establish that appellant has more than eight percent impairment of the
right upper extremity.
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, his or her opinion is of diminished probative
value in establishing the degree of permanent impairment and OWCP may rely on the opinion of
its OWCP medical adviser to apply the A.M.A., Guides to the findings of the attending
physician.28 Dr. Brigham, the medical adviser, reviewed the medical record on September 13,
2010 and July 1, 2011 and found that appellant had eight percent impairment of the right upper
extremity.
He also found that she reached maximum medical improvement on
September 9, 2005. Dr. Brigham correctly stated that Drs. Azer, Trent and Jackson improperly
used Table 15-21 to rate appellant’s right upper extremity impairment. Applying the provisions
of the sixth edition of the A.M.A., Guides to Dr. Macht’s findings, he rated appellant’s
impairment due to entrapment neuropathy under Table 15-23 as diagnostic studies and clinical
findings confirmed median and ulnar neuropathy. Dr. Brigham applied the appropriate formula
24

An employee seeking benefits under FECA has the burden of proof to establish the essential elements of her
claim. Amelia S. Jefferson, 57 ECAB 183, 187 (2005).
25

A.M.A., Guides 461.

26

Id. at 436, Table 15-21.

27

Supra note 15.

28

A.M.A., Guides 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

7

of the sixth edition of the A.M.A., Guides, noting that appellant had a grade modifier 1 due to
test findings of a conduction delay.29 Appellant had a grade modifier for a history of constant
symptoms.30 Regarding her physical findings, Dr. Brigham noted sensory deficits and weakness
also for a grade 3 modifier. Based on the A.M.A., Guides, appellant’s final rating category is the
average of these, three.31 The upper extremity impairment default impairment value is five due
to average grade modifiers of 2.32 In cases of multiple, concurrent focal nerve compromise
syndromes in the same upper extremity, such as a median and an ulnar neuropathy, the nerve
qualifying for the larger impairment is given the full impairment. The nerve qualifying for the
smaller impairment is given half of the impairment listed in Table 15-23. The impairments are
then combined.33 Dr. Brigham thus properly determined that appellant was entitled to only half
the impairment for the one of the neuropathies, for a total impairment due to her median and
ulnar neuropathy of eight percent.
The Board finds that Dr. Brigham properly applied the sixth edition of the A.M.A.,
Guides to the clinical findings of Dr. Macht, to rate impairment of appellant’s right upper
extremity. The weight of the medical evidence rests with his opinion and establishes the extent
of permanent impairment in this case.
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 failed to establish that she has more than eight percent
impairment of each upper extremity, for which she received schedule awards.

29

Id. at 449, Table 15-23.

30

Id.

31

Supra note 8.

32

Supra note 29.

33

Supra note 8.

8

ORDER
IT IS HEREBY ORDERED THAT the February 3, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 2012
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, North Platte, NE, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-293
Issued: July 3, 2014

Case Submitted on the Record

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

JURISDICTION
On November 22, 2013 appellant, through her attorney, filed a timely appeal from an
October 24, 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 over the merits of the decision.
ISSUE
The issue is whether OWCP used the proper pay rate in calculating appellant’s schedule
award.
FACTUAL HISTORY
On March 9, 2010 appellant, then a 48-year-old intermittent census enumerator, filed a
traumatic injury claim alleging injury to her neck, back, leg and shoulder in a motor vehicle
accident. She stopped work that day. OWCP accepted displacement of a cervical disc without
1

5 U.S.C. §§ 8101-8193.

myelopathy at C3-4 and C4-5, a face contusion and left shoulder strain. The employing
establishment noted that appellant’s hourly pay rate was $11.00, and that she received
continuation of pay and wage-loss compensation, based on working four and a half hours a day,
four days a week. The record reveals that she had worked for one month prior to the
employment injury. On September 13, 2010 appellant underwent cervical spine surgery. In a
January 27, 2011 decision, OWCP terminated her monetary compensation. Appellant remained
entitled to medical benefits.
On November 30, 2012 appellant submitted a schedule award claim. In an October 16,
2012 report, Dr. Jack L. Rook, an attending Board-certified physiatrist, advised that she had 10
percent impairment of the left arm. In a report dated March 3, 2013, an OWCP medical adviser
agreed with Dr. Rook’s rating and advised that the date of maximum medical improvement was
October 16, 2012.
Appellant advised that she had no employment similar to the census enumerator position
during the year prior to her injury, stating that she drove a semi and worked as a farm hand
driving combines and tractors during that time.
An OWCP pay rate memorandum dated April 2, 2013 noted that appellant’s hourly pay
rate on the date of injury was $11.00, and that she worked an average of 4.5 hours a day. OWCP
multiplied the hourly rate of $11.00 times the hours per day (4.5) times 150 (minimum average
annual earnings) divided by 52 (number of weeks in a year), which yielded a weekly pay rate of
$142.79.2
Appellant was granted a schedule award on April 2, 2013 for 10 percent impairment of
the left arm. The period of the award was October 16, 2012 to May 22, 2013, or 31.2 weeks.
The weekly pay of $142.79 was multiplied by her compensation rate of 66 2/3 percent, yielding a
compensation rate of $95.20. After cost-of-living adjustments, the weekly compensation was
increased to $100.00 a week.
On April 15, 2013 appellant, through her attorney requested reconsideration, noting that
the pay rate of $142.79 did not agree with a May 19, 2010 pay rate memorandum that noted a
pay rate of $198.67. In a merit decision dated October 24, 2013, OWCP determined that the pay
rate used for schedule award purposes was correct, and denied modification of the April 2, 2013
decision.
LEGAL PRECEDENT
Under FECA, monetary compensation for disability or impairment due to an employment
injury is paid as a percentage of monthly rate.3 Section 8101(4) provides that “monthly pay”
means the monthly pay at the time of injury or the monthly pay at the time disability begins or
the monthly pay at the time compensable disability recurs, if the recurrence begins more than six
months after the injured employee resumes regular full-time employment with the United States,
2

Id. at § 8114(d)(3).

3

See id. at §§ 8105-07.

2

whichever is greater.4 The compensation rate for schedule awards is the same as compensation
for wage loss.5
Section 2.900.5.a(3) of OWCP procedures provide that, if the employee did not stop
work on the date of injury or immediately afterwards, defined as the next day, the record should
indicate the pay rate for the date of injury and the date disability began. The greater of the two
should be used in computing compensation, and if they are the same, the pay rate should be
effective on the date disability began.6
Section 2.900.3.e provides that temporary positions, such as census enumerators,
historically average 4.5 hours a day, four days a week.7 However, an individual may have
worked more or less depending on the local census office’s operational requirements, and the
factual evidence should be evaluated carefully. Because of their irregular federal employment,
these employees are usually paid under the provisions section 8114(d)(3) of FECA.8
Section 8114(d)(3) of FECA provides:
“If either of the foregoing methods of determining the average annual earnings
cannot be applied reasonably and fairly, the average annual earnings are a sum
that reasonably represents the annual earning capacity of the injured employee in
the employment in which he was working at the time of the injury having due
regard to the previous earnings of the employee in [f]ederal employment, and of
other employees of the United States in the same or most similar class working in
the same or most similar employment in the same or neighboring location, other
previous employment of the employee, or other relevant factors. However, the
average annual earnings may not be less than 150 times the average daily wage
the employee earned in the employment during the days employed within one
year immediately preceding his injury.”9
Sections 2.900.4 and 2.900.12 of OWCP procedures provide that, when computing
compensation for census workers, when disability did not exceed 90 days, compensation should
be paid on a daily basis according to section 8114(c). For enumerators who ordinarily worked
4.5 hours a day, 4 days a week, where disability extended beyond 90 days and the claimant had
similar employment during the years prior to the injury, compensation should be paid in
accordance with section 8114(d)(1) and (2). Otherwise, it should be based on a weekly basis

4

Id. at § 8101(4).

5

See 20 C.F.R. § 10.404(b); K.H., 59 ECAB 495 (2008).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5.a(3)
(September 2011).
7

Federal (FECA) Procedure Manual, id. at Chapter 2.900.3.e (March 2011).

8

Supra note 2.

9

Supra note 2.

3

using the following formula: 150 times the actual daily wage divided by 52. The actual daily
wage should be determined by multiplying the hourly pay rate by 4.5 hours.10
ANALYSIS
Appellant, a part-time, intermittent census enumerator, was injured in a motor vehicle
accident on March 8, 2010. She stopped work on that date. Appellant did not return to work and
received compensation, based on her pay rate on the date of injury, until monetary compensation
was terminated on January 27, 2011. She was granted a schedule award on April 2, 2013 for 10
percent impairment of the left arm.
The Board finds that OWCP properly determined appellant’s pay rate for schedule award
computation purposes. Appellant is not challenging the impairment rating of his schedule award
but is challenging the rate of pay used to calculate the award.
The evidence establishes that appellant did not work in the position in which she was
injured substantially for the entire year immediately preceding the injury. Rather, she worked
approximately one month as a temporary-part-time, intermittent census enumerator at an hourly
wage of $11.00. Appellant noted that during the preceding year, she worked driving a semi and
as a farm hand driving tractors and combines. This was not similar to her federal employment.
OWCP procedures provide that, as an intermittent part-time census employee, appellant
was considered to have worked 4.5 hours a day, 4 days a week.11 As noted, sections 2.900.4.c
and 2.900.12.e(3) describe the procedures to be followed in calculating pay rate for census
enumerators. The Board finds that OWCP properly determined appellant’s schedule award pay
rate by multiplying the hourly rate of $11.00 times the hours per day of 4.5 times 150 which was
then divided by 52, yielding a weekly pay rate of $142.79. OWCP based her pay rate for
schedule award purposes on $142.79, multiplied by her compensation rate of 66 2/3, and found
that her weekly pay rate was $95.20, which was raised by a cost-of-living increase to $100.00.
These calculations are in accordance with OWCP procedures.12 Although appellant’s counsel
noted that a May 19, 2010 OWCP pay rate memorandum listed a $198.67 pay rate, OWCP
procedures clearly specify the manner in which the pay rate of an intermittent part-time census
employee is to be determined.13 The Board finds that OWCP properly determined appellant’s
pay rate.

10

Federal (FECA) Procedure Manual, supra note 5 at 2.901.10 (February 2013); see 2.900.4.c and 2.900.12
(March 2011); see 5 U.S.C. §§ 8114(c), 8114(d)(1).
11

Id.

12

See M.H., Docket No. 12-140 (issued July 10, 2012).

13

Appellant was provided a weekly compensation rate of $198.67 from the date of injury until termination of
compensation benefits on January 27, 2011. This clearly was in error, resulting in an overpayment.

4

CONCLUSION
The Board finds that OWCP used the proper rate of pay in calculating appellant’s April 2,
2013 schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 3, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF CUSTOMS, Bellingham, WA,
Employer
__________________________________________

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)
)
)
)
)
)
)
)

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

Docket No. 06-1840
Issued: May 9, 2007

Case Submitted on the Record

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

JURISDICTION
On August 7, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ overpayment decision dated March 17, 2006. Under 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 the Office properly determined that appellant received an
overpayment in the amount of $786.24 for the period January 23 to October 1, 2005 because
basic life insurance premiums were not deducted from his compensation; (2) whether the Office
abused its discretion in denying waiver of the overpayment; and (3) whether the Office properly
required repayment of the overpayment.
FACTUAL HISTORY
Appellant, a 54-year-old law criminal investigator, filed a Form CA-2 claim for a
coronary artery condition on January 17, 1989, which the Office accepted for a myocardial

infarction. He has not worked since August 14, 1989. Appellant was placed on the periodic
rolls.
On November 22, 2005 the Office issued a preliminary determination that an
overpayment was created in the amount of $786.24 for the period January 23 through October 1,
2005 because basic life insurance premiums had not been deducted from his compensation. The
Office noted a change in computer systems in January 2005, when the system dropped
withholding of his postretirement basic life premiums. It found that appellant was without fault
in the matter because he contacted them and attempted to correct the error, but was not
successful.1 The Office advised appellant that if he disagreed with the fact or amount of the
overpayment he could submit new evidence in support of his contention. It advised appellant
that, as he was found without fault in the creation of the overpayment, recovery might not be
made if it could be shown that it would defeat the purpose of the law or would be against equity
and good conscience. The Office informed appellant that he had the right to request a
prerecoupment hearing on the matter of the overpayment and that any response he wished to
make with regard to the overpayment should be submitted within 30 days of the November 22,
2005 letter. Appellant completed and signed the overpayment questionnaire on November 28,
2005 in which he requested waiver of overpayment and listed his monthly expenses and assets;
the letter was received by the Office on December 2, 2005.
In a decision dated March 17, 2006, the Office finalized the preliminary determination
regarding the overpayment of $786.24, finding that appellant was not entitled to waiver.
Appellant listed total monthly expenses of $4,408.00 and total monthly income of $4,220.08, but
the Office found that the expenses of $700.00 in utilities and $700.00 as miscellaneous were
excessive and undocumented. The Office therefore found that appellant did not need
substantially all of his monthly income to meet “ordinary and necessary” living expenses. The
Office further found that appellant had income or financial resources sufficient for more than
ordinary needs, as his claimed assets, totaling $33,400.00, far exceeded the $3,000.00 minimum
mandated by the regulations.2 The Office found that appellant did not relinquish a valuable right
or change his financial position for the worse due to the overpayment and did not present

1

An April 22, 2005 Office memorandum noted that appellant telephoned the Office on April 21, 2005 and
advised that his payments for life insurance were not being deducted from his compensation payments. The Office
informed appellant that implementation of a new computer system created this error, which it was working to
correct. Appellant telephoned the Office on May 19, September 6 and October 3, 2005 and reiterated that his checks
were still not reflecting the deduction of life insurance premiums. He also told the Office on October 3, 2005 that he
had called the Office of Personnel Management (OPM) and wanted to know the amount of life insurance he had.
OPM told appellant to call the Office, which told him that the premium dropped from $100.00 to approximately
$90.00. On November 28, 2005 the Office informed appellant that the discrepancy in his life insurance deductions
stemmed from 2000, when OPM notified the Office to start deductions for postretirement at the rate of $109.04
every 28 days, using the annual pay rate of $58,000.00, at the rate of $.94 per thousand dollars of coverage. The
Office advised appellant that effective January 1, 2003 the rate dropped to $.85 but his deductions were not updated
to reflect that, which resulted in an overdeduction. The Office further informed appellant that the current deduction
of $87.24 was not correct either, as it was not based on the OPM annual salary of $58,000.00.
2

The Board notes that as of October 2004 the asset base for waiver was increased to $4,800.00 for an individual
and $8,000.00 for claimant and spouse, with additional amounts allowable for other dependants. See Federal
(FECA) Procedure Manual, Part 6 -- Overpayment, Waiver of Recovery, Chapter 6.200.6(a), (October 2004).

2

information to support that repayment of the debt would result in financial hardship. It ordered
appellant to make repayment for the balance of the $786.24 overpayment within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Group Life Insurance (FEGLI) program, most civilian
employees of the Federal Government are eligible to participate in basic life insurance with one
or more options.3 The coverage for basic life is effective unless waived4 and premiums for basic
and optional life coverage are withheld from the employee’s pay.5 Under the FEGLI program,
insurance remains in effect until canceled and premiums due are to be deducted from the injured
employee’s compensation payments. The injured employee remains responsible for all insurance
premiums. When FEGLI premiums are incorrectly withheld, the entire amount of the unpaid
premium is deemed an overpayment of compensation because the Office must pay the full
premium to the OPM upon discovery of the error.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $786.24 for the period January 23 through October 1, 2005. The record shows that an
overpayment occurred because basic life insurance premiums were not deducted from his
compensation during this period. The Office calculated the amount of overpayment by taking
the amount of basic life insurance which was supposed to have been deducted from his
compensation every two weeks, $87.36, between the period January 23 through October 1, 2005,
and multiplying it times 9, the number of monthly pay periods during that period, to arrive at a
total overpayment of $786.24.7 Based on this determination, the Board finds that appellant
received an overpayment of compensation in the stated amount during that period.
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Federal Employees’ Compensation Act, 5 U.S.C. § 8129(b),
and the implementing regulations, an overpayment must be recovered unless incorrect payment
has been made to an individual who is without fault and when adjustment or recovery would
defeat the purpose of the Act or would be against equity and good conscience.8 Waiver of
overpayment is not possible if the individual is at fault in creating the overpayment.9 The Office
3

See James Lloyd Otte, 48 ECAB 334, 337 (1997); Part 870 -- Basic Life Insurance, subpart B -- Coverage; see
5 C.F.R. § 870.201.
4

5 C.F.R. § 870.204(a).

5

5 C.F.R. § 870.401(a).

6

See Otte, supra note 3.

7

The Office calculated the amount of bi-weekly deduction for life insurance based on appellant’s yearly salary of
$40,098.75.
8

5 U.S.C. § 8129(a)-(b).

9

Jorge O. Diaz, 51 ECAB 124 (1999).

3

must determine whether recovery of the overpayment would defeat the purpose of the Act or
would be against equity and good conscience.10
The applicable regulations provide that recovery of an overpayment will defeat the
purpose of the Act if such recovery would cause hardship to a currently or formerly entitled
beneficiary because the beneficiary from whom the Office seeks recovery needs substantially all
of his or her current income, including compensation benefits, to meet ordinary and necessary
living expenses and the beneficiary’s assets do not exceed a specified amount as determined by
the Office.11 Additionally, recovery of an overpayment is considered to be against equity and
good conscience when any individual who received an overpayment would experience severe
financial hardship in attempting to repay the debt or when an individual, in reliance on such
payment or on notice that such payments would be made, gives up a valuable right or changes
his or her position for the worse.12
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of the Act or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.
ANALYSIS -- ISSUE 2
Appellant stated that he had $4,220.08 in monthly income and $4,408.00 in expenses.
However, he failed to provide sufficient explanation or evidence to support that he had monthly
expenses in the stated amount. The Office properly found that appellant’s claim of
miscellaneous monthly expenses in the amount of $700.00 was excessive, given that he provided
no documentation to establish this amount. While $700.00 in utilities may not be an
unreasonable monthly total; appellant neglected to submit any evidence in support of this
claimed expense. Appellant has not demonstrated that he needs substantially all of his current
monthly income to meet living expenses or that the amount of the overpayment was wrongly
computed. Therefore, he does not qualify for waiver under the “defeat the purpose of the Act”
standard.13 Further, there is no evidence in this case and appellant did not allege that he
relinquished a valuable right or changed his position for the worse in reliance on the excess
compensation he received for the period January 23 to October 1, 2005. Pursuant to its

10

20 C.F.R. § 10.434.

11

20 C.F.R. § 10.436.

12

20 C.F.R. § 10.437.

13

See Nina D. Newborn, 47 ECAB 132 (1995).

4

regulation, the Office properly denied waiver of recovery of the overpayment in the amount of
$786.24.14
LEGAL PRECEDENT -- ISSUE 3
Section 10.441(a) of the regulation15 provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same.”
ANALYSIS -- ISSUE 3
In the present case, the Office noted appellant’s financial circumstances as well as the
amount by which his monthly income exceeded his monthly expenses in finding that he was
capable of repaying the overpayment within 30 days. The Board, therefore, finds that the Office
properly required repayment in the amount of $786.24.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment in the amount of $786.24 for the period January 23 to October 1, 2005 because
basic life insurance premiums were not deducted from his compensation. The Office did not
abuse its discretion in denying waiver of the overpayment. The Board finds that the Office
properly required repayment of the overpayment.

14

The Board notes that appellant, in a November 26, 2005 handwritten annotation to his response to the
overpayment questionnaire, asked which date his life insurance premium was reduced to $87.36 from $109.04, the
rate he had paid since 1999. By letter dated April 5, 2005, the Office informed appellant that it would reimburse
him in the amount of $271.44, which reflected the difference between what should have been deducted from
January 26, 2003 through January 22, 2005 and what was deducted.
15

20 C.F.R. § 10.441(a).

5

ORDER
IT IS HEREBY ORDERED THAT the March 17, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 9, 2007
Washington, DC

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

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

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

6


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

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

Docket No. 14-1072
Issued: August 3, 2015

Case Submitted on the Record

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

JURISDICTION
On April 8, 2014 appellant, through counsel, filed a timely appeal from the December 13,
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 over this issue.
ISSUE
The issue is whether appellant has met her burden of proof to establish an occupational
disease causally related to factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board.2 In an August 15, 2013 decision, the
Board set aside OWCP’s December 28, 2012 decision, finding that it improperly refused to
1

5 U.S.C. § 8101 et seq.

2

Docket No. 13-949 (issued August 15, 2013).

reopen appellant’s case for further review of the merits under 5 U.S.C. § 8128(a). The Board
remanded the case for OWCP to conduct a merit review and issue an appropriate merit decision.
The facts contained in the Board’s prior decision are incorporated by reference.3
The medical evidence received in support of the claim included a May 27, 2011 report,
from Dr. Brian K. Reiter, a Board-certified orthopedic surgeon. He reviewed appellant’s history
and saw her for complaints of back and bilateral knee pain. He advised that she worked for the
employing establishment and had back pain which began in 2009, with a severe flare up which
included five to six days of significant back pain; but only baseline-type pain since. Recently in
January and February 2011, appellant began having bilateral knee pain, which was related to an
increase in the outdoor hours she walked, the way that she carried mail and the steps that she
climbed while at work. He provided findings and diagnosed mechanical low back pain, likely
bilateral patellofemoral syndrome and mild calf pain. Dr. Reiter opined that appellant’s
musculoskeletal complaints were directly related to the amount of walking she performed as well
as the weight that she carried.
Subsequent to OWCP’s August 3, 2011 denial of her claim, appellant submitted an
August 24, 2012 report from Dr. John F. Lozowski, an associate of Dr. Reiter and Boardcertified in family medicine. Dr. Lozowski noted her history of injury and stated that he
examined her on April 25 and May 11 and 24, 2011. He diagnosed bilateral patellofemoral
syndrome and mechanical low back pain. Dr. Lozowski stated: “most likely that her diagnosis
is due to repetitive motion (climbing stairs) and carrying heavy sacks of mail.” In an August 19,
2011 report, Dr. Reiter provided findings and diagnosed bilateral patellofemoral syndrome and
mechanical back pain. In an August 19, 2011 duty status report, he diagnosed patellofemoral
syndrome and found that appellant could work full time within physical restrictions as set forth.
In an October 31, 2012 report, Dr. Steven Valentino, a Board-certified orthopedic
surgeon and osteopath, noted that appellant carried mail sacks weighing approximately 35
pounds up and down stairs. Appellant had decreased range of motion. Dr. Valentino diagnosed
lumbar disc syndrome and patellofemoral syndrome. He listed appellant’s work restrictions.
In an undated report, received on December 17, 2012, Dr. Reiter noted seeing appellant
on May 27 and August 19, 2011. He noted her history and diagnosed mechanical low back pain,
likely patellofemoral syndrome, and mild calf pain. Dr. Reiter discussed causal relationship,
stating that he believed that appellant’s complaints were consistent with the increasing amount of
walking and carrying she did in her job. He further noted:
“I do feel within a reasonable degree of medical certainty that [appellant’s] back
pain and bilateral knee pain are due to her work-related activities including long
periods of walking, heavy carrying in excess of 70 pounds and stair climbing
between 9,000 and 10,000 stairs per day. [Appellant’s] symptoms were

3

Appellant, a letter carrier, filed an occupational disease claim for a knee condition and low back pain. On
August 3, 2011 OWCP denied the claim finding that the medical evidence was insufficient to establish causal
relationship between her claimed conditions and work factors.

2

exacerbated by an increase in the amount of hours she spent performing these
activities.”
Dr. Reiter advised that her repetitive work for the employing establishment contributed to her
mechanical low back pain and bilateral patellofemoral syndrome.
In a December 26, 2012 addendum, Dr. Reiter noted that upon review of appellant’s
recent imaging studies, he found evidence of lumbar facet arthropathy at L4-5 based on a lumbar
spine MRI scan obtained on November 15, 2012. He advised that the initial diagnoses of
patellofemoral syndrome and calf strain remained unchanged. Dr. Reiter reiterated that to a
reasonable degree of medical certainty appellant’s patellofemoral syndrome, calf strain, and
exacerbation of her lumbar facet arthropathy were directly related to her work activities, which
included long periods of walking, excessive “tearing” and stair climbing.4 OWCP also received
reports from a physician assistant.
Subsequent to the Board’s August 15, 2013 decision, OWCP issued a December 13, 2013
decision, which denied modification of its August 3, 2011 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are causally related
to the employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
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 employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
4

Submitted with this addendum was a copy of Dr. Reiter’s report, received on December 17, 2012. The copy
attached to the addendum had a date added, December 11, 2012.
5

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

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

3

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.7
ANALYSIS
The Board finds that this case is not in posture for decision.
An employee who claims benefits under FECA has the burden of establishing by the
weight of reliable, probative and substantial evidence that the condition for which compensation
is sought is causally related to a specific employment incident or work factors. As part of this
burden, the employee must present rationalized medical opinion evidence based on a complete
and accurate factual and medical background. However, it is well established that proceedings
under FECA are not adversarial in nature and OWCP is not a disinterested arbiter. While an
employee has the burden to establish entitlement to compensation, OWCP shares responsibility
in the development of the evidence and has the obligation to see that justice is done.8
The issue is whether appellant sustained an injury in the performance of duty causally
related to her repetitive duties as a letter carrier.
The evidence establishes that appellant engaged in activities at work such as carrying
mail up to 35 pounds of mail for six to eight hours a day in the performance of her duties.
OWCP denied the claim on the basis that the medical evidence was insufficient to establish that
work factors caused or aggravated her diagnosed condition.
In reports dated May 27, 2011, Dr. Reiter related that appellant worked for the employing
establishment and indicated that her back pain began in 2009 when she had a severe flare up with
five to six days of significant back pain, but no flare ups since then. He noted that in January and
February 2011, appellant began having bilateral knee pain, which was related to the increased
amount of outdoor hours she was walking and the way that she was carrying and the steps that
she was climbing at work. Dr. Reiter examined her, provided findings and diagnosed
mechanical low back pain, likely bilateral patellofemoral syndrome and mild calf pain. He
opined that the musculoskeletal complaints “are directly related to the amount of walking she is
doing for the ‘postop’ as well as the weight that she is carrying.” In a report received on
December 17, 2012, Dr. Reiter stated that he believed that appellant’s complaints were consistent
with increased walking and carrying in her job. He opined that “within a reasonable degree of
medical certainty that [appellant’s] back pain and bilateral knee pain are due to her work-related
activities including long periods of walking, heavy carrying in excess of 70 pounds and stair
climbing between 9,000 and 10,000 stairs per day. [Appellant’s] symptoms were exacerbated by
an increase in the amount of hours she spent performing these activities.” In a December 26,
2012 report, Dr. Reiter noted reviewing MRI scan findings and advised that within a reasonable
degree of medical certainty appellant’s patellofemoral syndrome, calf strain and exacerbation of
her lumbar facet arthropathy were directly related to her work activities. While Dr. Reiter’s
7

Id.

8

E.J., Docket No. 09-1481 (issued February 19, 2010); William J. Cantrell, 34 ECAB 1233 (1983).

4

reports do not contain sufficient medical reasoning to discharge appellant’s burden of proof,
these reports sufficiently support causal relationship to require further development of the case
record by OWCP.9
Upon return of the case record, OWCP should forward the medical record and a
statement of accepted facts to an OWCP medical adviser for a reasoned opinion regarding the
cause of appellant’s diagnosed conditions. After this and any other such further development of
the case record as OWCP deems necessary, a de novo decision shall be issued.
On appeal, appellant’s representative submitted arguments that the December 11, 2012
report from Dr. Reiter was not reviewed by OWCP. However, as noted above, this report was
considered by OWCP.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 13, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and remanded.10
Issued: August 3, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

10

Michael E. Groom, Alternate Judge, participated in the preparation of this decision but was no longer a member
of the Board effective December 27, 2014.

5


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

)
)
)
)
)
)
)
)

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

Docket No. 13-1132
Issued: December 6, 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 April 9, 2013 appellant filed a timely appeal from the March 27, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) denying his claim for an additional
schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a 37 percent impairment to each leg, for which he previously received schedule awards.
On appeal, appellant contends that he is entitled to a greater award because he had to
retire at any early age, could not bend his knee, run, jog, squat or ride a bike.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 13, 2004 appellant, then a 45-year-old letter carrier, was surprised by a
dog and fell to his knees. On February 7, 2005 OWCP accepted his claim for bilateral
chondromalacia of the patella. On May 23, 2007 appellant underwent a bilateral single-stage
total knee arthroplasty. On November 3, 2009 OWCP granted schedule awards for a 37 percent
impairment to the left and right lower extremities. In a November 1, 2011 letter, it noted that
appellant accepted a lump-sum payment of his schedule award, covering the period
December 20, 2009 through June 22, 2012.
On July 16, 2012 appellant filed a claim for an additional schedule award, and noted that
he was on a retirement disability. In a July 10, 2012 report, Dr. Bruce T. Faure, a Board-certified
orthopedic surgeon, stated that the presence of a knee replacement represented a 50 percent total
disability of each lower extremity pursuant to the Wisconsin Administrative Code. Appellant
had an additional remaining range of motion of 70 degrees bilaterally which accounted for an
additional 25 percent disability creating a 75 percent disability to both lower extremities.
Dr. Faure listed appellant’s restrictions for returning to work. He recommended that appellant
see an expert for a full assessment. Dr. Faure opined that the changes in appellant’s knees were
permanent and he did not expect to see functional improvement over time.
By letter dated August 14, 2012, OWCP advised appellant that it needed further
information to determine the extent of impairment. It requested that he provide a rating under
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (2009) (A.M.A., Guides). In response, appellant submitted progress notes dated
September 4 and 6, 2012 from Dr. Fauer. Appellant was being treated for a recurrence of
bilateral knee pain. He was advised that Dr. Fauer did not provide permanent partial disability
ratings under the A.M.A., Guides and that he would need to see a specialist.
By decision dated March 27, 2013, OWCP denied appellant’s claim for an additional
schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA,2 and its implementing regulations,3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,

2

Id. at § 8107.

3

20 C.F.R. § 10.404.

2

Guides as the uniformed standard applicable to all claimants.4 Effective May 1, 2009, schedule
awards are determined in accordance with the sixth edition of the A.M.A., Guides.5
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of an employment injury.6 OWCP procedures
provide that to support a schedule award, the medical evidence should establish that the
impairment has reached a permanent and fixed state and indicate the date on which this occurred
(date of maximum medical improvement). The medical report should describe the impairment in
sufficient detail to include, where applicable, the loss in degrees of active and passive motion of
the affected member or function, the amount of any atrophy or deformity, decreases in strength
or disturbance of sensation and other pertinent description of the impairment. This description
must be in sufficient detail so that the claims examiner and others reviewing the file will be able
to clearly visualize the impairment with its resulting restrictions and limitations.7
ANALYSIS
OWCP accepted appellant’s claim for bilateral chondromalacia of the patella due to a
November 13, 2004 employment-related injury. On November 3, 2009 it granted schedule
awards for a 37 percent impairment to appellant’s left and right lower extremities. On July 16,
2012 appellant filed a claim for an additional schedule award. OWCP denied this claim for an
additional schedule award on March 27, 2013. The Board finds that appellant has not submitted
sufficient medical evidence to establish that he has greater impairment to his legs.
Dr. Faure evaluated appellant’s permanent impairment under the Wisconsin
Administrative Code, not the A.M.A., Guides as required for claims under FECA. Dr. Faure did
not provide any detailed findings from physical examination that could be relied upon to support
an additional award. By letter dated August 14, 2012, OWCP informed appellant of the evidence
necessary to establish his claim for an additional schedule award. It specifically requested that
he submit an impairment evaluation from an attending physician in accordance with the sixth
edition of the A.M.A., Guides. The reports from Dr. Faure do not provide any additional detail.
It is appellant’s burden of proof to establish that he sustained a permanent impairment of a
schedule member as a result of an employment injury. The medical evidence must include a
description of any physical impairment in sufficient detail so that the claims examiner and others
reviewing the file can clearly visualize the impairment with its resulting restrictions and

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).
6

Tammy L. Meehan, 53 ECAB 229 (2001).

7

D.M., Docket No. 11-775 (issued October 11, 2011); Peter C. Belkind, 56 ECAB 580 (2005); Vanessa Young,
55 ECAB 575 (2004).

3

limitations.8 Appellant did not submit such evidence and he did not meet his burden of proof to
establish greater impairment to his leg.9
Appellant may request a schedule award or an 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 did not meet his burden of proof to establish that he had
more than a 37 percent impairment to each lower extremity, for which he previously received
schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 27, 2013 is affirmed.
Issued: December 6, 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

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L.H., Docket No. 13-288 (issued May 8, 2013).

9

V.W., Docket No. 09-2026 (issued February 26, 2010); L.F., Docket No. 10-343 (issued November 29, 2010).

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

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

Docket No. 15-1652
Issued: October 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 30, 2015 appellant filed a timely appeal of a July 14, 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted medical evidence to the record which was received by OWCP on August 5, 2015. The
Board’s jurisdiction is limited to review of evidence which was before OWCP at the time of its final decision. See
20 C.F.R. § 501.2(c)(1). Appellant may submit this evidence with a written request for reconsideration to OWCP
within one year from the date of this decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R. §§ 10.605 through 10.607.

FACTUAL HISTORY
On June 5, 2015 appellant, a 54-year-old distribution clerk, filed an occupational disease
claim (Form CA-2). She explained that 31 years of repetitive motions while sorting and
distributing letters caused neck, shoulder, and back pain. Appellant did not stop work.
On June 12, 2015 OWCP advised appellant that it required factual and medical evidence
to determine whether she was eligible for compensation benefits. It asked her to submit a
comprehensive report from a treating physician describing her medical condition, with an
opinion as to whether her claimed condition was causally related to her federal employment.
OWCP requested that appellant submit this evidence within 30 days. Appellant did not submit
any evidence in response to this request.
By decision dated July 14, 2015, OWCP denied the claim finding that appellant failed to
submit medical evidence establishing a medical condition in the performance of duty.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
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
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized
medical evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

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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
ANALYSIS
In the instant case, appellant has explained that she performed repetitive duties for 31
years as a distribution clerk sorting and distributing mail, which caused injuries to her neck,
shoulders, and back. She has not, however, submitted the necessary medical evidence to
establish an injury in the performance of her federal employment duties.
OWCP advised appellant of the medical evidence required to establish her claim.
However, appellant failed to submit such evidence. Consequently, she has not met her burden of
proof in establishing an injury in the performance of her federal employment.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment, nor
the belief that her condition was caused, precipitated, or aggravated by her employment is
sufficient to establish causal relationship.7 No matter how sincere appellant’s belief that an
injury was sustained as a result of her federal duties, causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish an
injury in the performance of duty.

6

Id.

7

Id.

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ORDER
IT IS HEREBY ORDERED THAT the July 14, 2015 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: October 9, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-314
Issued: April 12, 2013

Case Submitted on the Record

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

On November 26, 2012 appellant filed a timely appeal from August 1 and November 5,
2012 decisions of the Office of Workers’ Compensation Programs (OWCP) affirming prior
denials of an occupational right foot condition. The appeal was docketed as No. 13-314.
The Board has duly considered the matter and finds that this case is not in posture for
decision. In an August 1, 2012 decision, OWCP found that appellant had not submitted
sufficient medical evidence to establish that he sustained right hammertoe deformities causally
related to prolonged walking and standing at work. It stated that, in adjudicating the claim, it
reviewed medical evidence in File No. xxxxxx474, appellant’s prior claim for right hammertoe
deformities. In its November 5, 2012 decision, OWCP affirmed its prior denials of the claimed
hammertoe condition based, in part, on medical reports submitted under File No. xxxxxx474.
However, the record from File No. xxxxxx474 was not doubled with the file under the present
claim, File No. xxxxxx537.
The record forwarded to the Board indicates that File No. xxxxxx474 contains evidence
relevant to File No. xxxxxx537 presently before the Board. The Board therefore finds this case
is not in posture for a decision, as the record before the Board is incomplete and would not
permit an informed adjudication of the case by the Board. Thus, the case must be remanded to
OWCP to combine the claim files. OWCP procedures provide for doubling claims when correct

adjudication of the issues depends on frequent cross-reference between files.1 Upon remand, it
should combine File No. xxxxxx474 with the instant case, File No. xxxxxx537. After combining
the two records, OWCP should consider all relevant evidence regarding whether appellant
sustained right hammertoe deformities due to factors of his federal employment as claimed. It
should then issue an appropriate decision.
IT IS HEREBY ORDERED THAT the November 5 and August 1, 2012 decisions of
the Office of Workers’ Compensation Programs be set aside and the case remanded for further
proceedings consistent with this order of the Board.
Issued: April 12, 2013
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

1

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter
2.400.8(c) (February 2000).

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

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Appearances:
Brett Elliot Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1251
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 August 18, 2021 appellant, through counsel, filed a timely appeal from a March 4, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). 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.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective January 13, 2020 as she had no further disability or
residuals causally related to her accepted employment injury; and (2) whether appellant has met
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

her burden of proof to establish continuing disability or residuals on or after January 13, 2020 due
to her accepted employment injury.
FACTUAL HISTORY
On September 25, 1995 appellant, then a 27-year-old part-time flexible letter carrier, filed
an occupational disease claim (Form CA-2) alleging that she sustained bilateral heel pain causally
related to factors of her federal employment, including casing mail and walking. OWCP accepted
the claim for bilateral plantar fibromatosis and a right calcaneal spur. It paid appellant wageintermittent wage-loss compensation for periods of total and partial disability.
By decision dated August 15, 2012, OWCP reduced appellant’s wage-loss compensation,
effective that date, based on its finding that she had the capacity to earn wages in the selected
position of receptionist.
In a report dated March 26, 2014, Dr. Joseph M. Page, an orthopedic surgeon, advised that
he was treating appellant for bilateral plantar fasciitis and planovalgus feet. On examination he
found ligamentous laxity and pain over the plantar fascia. Dr. Page recommended new shoes and
noted that appellant had a collapsed arch. He instructed her to return as needed.
On April 19, 2019 OWCP referred appellant to Dr. Richard A. Rogachefsky, a Boardcertified orthopedic surgeon, for a second opinion examination. In the accompanying statement
of accepted facts (SOAF), it advised that appellant had an episode of bilateral plantar fasciitis
walking on her route and that it had accepted her claim for plantar fibromatosis and calcaneal spur.
In a report dated May 2, 2019, Dr. Rogachefsky discussed appellant’s history of injury and
provided his review of the evidence of record. On examination he found intact sensation and full
strength of the right foot and ankle, mild tenderness of the right heel, negative varus and valgus
stress tests, and a negative anterior drawer test of the right ankle. Dr. Rogachefsky further found
intact sensation and full strength with mild tenderness to palpation of the left foot and plantar heel,
but no swelling, erythema, or ecchymosis. He found a mild pes planus deformity of the bilateral
feet. Dr. Rogachefsky diagnosed bilateral plantar fibromatosis and calcaneal spurs. He indicated
that appellant had objective findings of a “well-healed scar in the right heel and very mild pes
planus deformity on the right and left feet. Subjective findings are mild pain and tenderness in the
right and left plantar heel regions.” Dr. Rogachefsky opined that the accepted employment-related
condition had resolved, noting that appellant had “minimal tenderness to palpation, minimal
discomfort, and minimal subjective complaints and objective findings.” He found that she required
no further medical treatment and could return to her usual employment as a letter carrier without
restrictions.
On December 9, 2019 OWCP notified appellant of its proposed termination of her
compensation as the weight of the evidence established that she no longer had any employmentrelated disability or residuals due to her accepted employment injury. It afforded her 30 days to
submit additional evidence or argument if she disagreed with the proposed termination.
By decision dated January 13, 2020, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that date. It found that Dr. Rogachefsky’s opinion

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represented the weight of the evidence and established that she had no further disability or residuals
of her accepted employment injury.
In a report dated October 28, 2020, Dr. John B. Dorsey, a Board-certified orthopedic
surgeon, reviewed appellant’s history of injury and noted that she had last worked for the
employing establishment in 2010. He discussed her complaints of bilateral foot pain with
numbness and tingling radiating into the right lower leg and left ankle. On examination Dr. Dorsey
found bilateral pes planus deformity or flat feet, worse on the right. He found tenderness to
palpation bilaterally from the bottom of the foot to the heels and noted that appellant had gait
difficulty because of pain. Dr. Dorsey further found hypersensitivity to pinprick and touch on the
right heel. He noted that x-rays from 2010 revealed bilateral heel spurs and a hallux valgus
deformity. Dr. Dorsey diagnosed bilateral plantar fibromatosis and a right calcaneal spur. He
requested that OWCP expand the acceptance of the claim to include neuropathy of the medial
calcaneus nerve and anxiety and depression as a consequential injury. Dr. Dorsey indicated that
appellant received medication from a psychiatrist, but had not received treatment for her physical
symptoms in four years. He opined that her employment-related conditions had not resolved.
Dr. Dorsey related:
“Over and above that, [appellant] continues to have anxiety and depression related
to the pain in her medial heel, which is a hypersensitivity/neuropathy, which
continues to the present time. There is evidence of hypersensitivity from the
posteromedial heel to the medial malleolus to pinprick and touch as well as pes
planus of both feet, right worse than left. [Appellant] continues to have an unusual
gait (a steppage/neuropathic gait without true foot drop) in which she tries to avoid
striking her heels, and she has a great deal of difficulty trying to squat due to pain
in her heels and in her posterior plantar feet.”
Dr. Dorsey recommended continued treatment. He found that appellant was disabled from
her usual employment, but could work as a clerk.
On December 9, 2020 appellant requested reconsideration.
By decision dated March 4, 2021, OWCP denied modification of its January 13, 2020
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

3

R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 3, 2018).

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the employment. 4 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. 6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment. 7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective January 13, 2020, as she no longer had disability or residuals causally
related to her accepted employment injury.
The Board finds that OWCP properly accorded the weight of the evidence to
Dr. Rogachefsky, who provided a second opinion examination on May 2, 2019. Dr. Rogachefsky
discussed appellant’s history of injury and provided examination findings showing no loss of
sensation or strength and findings of mild tenderness to palpation in the feet and a bilateral mild
pes planus deformity. He diagnosed bilateral plantar fibromatosis and calcaneal spur.
Dr. Rogachefsky asserted that appellant had no residuals of the accepted employment injury based
on the minimal examination findings. He opined that she could resume he r regular employment
duties without restrictions and required no further medical treatment.
Dr. Rogachefsky based his opinion on a proper factual and medical history and findings on
physical examination. He provided medical rationale for his opinion by explaining that the
minimal findings on examination failed to support continued residuals or disability due to the
accepted employment conditions.8 Moreover, there is no contemporaneous medical evidence
demonstrating continued disability or residuals. The Board, therefore, finds that OWCP properly
relied upon the reports of Dr. Rogachefsky in terminating appellant’s wage-loss compensation and
medical benefits.9
LEGAL PRECEDENT -- ISSUE 2
When OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish continuing residuals or disability after that date, causally related to the accepted
employment injury. 10 To establish causal relationship between the condition as well as any
4

A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

5

C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).

6

E.J., Docket No. 20-0013 (issued November 19, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019).

7

A.J., Docket No. 18-1230 (issued June 8, 2020); R.P., Docket No. 18-0900 (issued February 5, 2019).

8

See E.J., supra note 6.

9

See L.S., Docket No. 20-1204 (issued October 4, 2021); L.B., Docket No. 19-1380 (issued February 11, 2020).

10

See S.M., Docket No. 18-0673 (issued January 25, 2019); Manuel Gill, 52 ECAB 282 (2001).

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attendant disability claimed and the employment injury, an employee must submit rationalized
medical evidence based on a complete medical and factual background, supporting such causal
relationship.11
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination. 12 This is called a referee examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case. 13
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision.
Subsequent to the termination of appellant’s compensation, appellant submitted a report
dated October 28, 2020 from Dr. Dorsey. Dr. Dorsey reviewed the history of injury and her
complaints of bilateral foot pain and numbness. He found a ples planus deformity bilaterally and
hypersensitivity to pinprick on the right heel. Dr. Dorsey diagnosed bilateral plantar fibromatosis
and a right calcaneal spur. He further diagnosed as related to the accepted employment injury
neuropathy of the medial calcaneus nerve and anxiety and depression as a consequential injury.
Dr. Dorsey found that appellant had objective findings of a neuropathic gait and hypersensitivity
in the medial heel. He opined that she was disabled from her usual employment, but could work
as a clerk. Dr. Dorsey advised that appellant required further medical treatment.
Dr. Rogachefsky, the second opinion examiner, found that appellant had no residuals of
her left shoulder condition. Both Dr. Dorsey and Dr. Rogachefsky provided rationale for their
respective opinions based on their review of the medical evidence and findings on examination.
The Board, therefore, finds that a conflict in medical opinion exists regarding whether ap pellant
has established continuing employment-related disability or residuals on or after
January 13, 2020.14
OWCP’s regulations provide that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of a second opinion physician, OWCP shall appoint
a third physician to make an examination. 15 The Board will, thus, remand the case for OWCP to
refer appellant to an impartial medical specialist, pursuant to 5 U.S.C. § 8123(a), to determine
whether she has met her burden of proof to establish continuing employment-related disability or
residuals on or after January 13, 2020 due to her accepted employment injury. The specialist
should further address whether the acceptance of appellant’s claim should be expanded to include
any additional conditions. Additionally, on remand OWCP shall update the SOAF to clarify that
11

Id.

12

5 U.S.C. § 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309,
317 (1994).
13

20 C.F.R. § 10.321.

14

See B.C., Docket No. 16-0978 (issued November 21, 2016).

15

5 U.S.C. § 8123(a); G.K., Docket No. 16-1119 (issued March 16, 2018).

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it has accepted a calcaneal spur on the right side instead of bilaterally. Following this and other
such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective January 13, 2020, as she no longer had disability or residuals causally
related to her accepted employment injury. The Board further finds that the case is not in posture
for decision on the issue of whether appellant has met her burden of proof to establish continuing
employment-related disability or residuals on or after January 13, 2020 due to her accepted
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: March 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

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