United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.S., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTIC AGENCY, Tracy, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0464
Issued: June 1, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 12, 2016 appellant, through counsel, filed a timely appeal from a
November 12, 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 has established a claim for a schedule award.
FACTUAL HISTORY
On June 18, 2003 appellant, then a 45-year-old materials handler, filed a traumatic injury
claim (Form CA-1) alleging that on the same day June 18, 2003 he sustained a back injury when
a forklift he was operating hit a pothole. OWCP accepted that he sustained a lumbar strain and
he received disability compensation on the daily rolls from August 26 to October 3, 2003.
1

5 U.S.C. § 8101 et seq.

Appellant returned to limited-duty work for the employing establishment on October 3, 2003 and
retired on disability retirement effective January 4, 2008.
In a May 19, 2008 report, Dr. Michael Hebrard, an attending Board-certified physical
medicine and rehabilitation physician, detailed appellant’s factual and medical history and
current back and lower extremity complaints and reported his physical examination findings. He
provided an opinion that appellant sustained a compression injury on June 18, 2003 that caused a
permanent aggravation and an accelerated rate of degeneration of his preexisting back condition.
In October 2008, OWCP referred appellant to Dr. Aubrey A. Swartz, a Board-certified
orthopedic surgeon, for a second opinion report regarding whether he continued to have residuals
of his June 18, 2003 employment injury.
In a report dated November 22, 2008, Dr. Swartz described appellant’s factual and
medical history and detailed his findings on physical examination. He disagreed with
Dr. Hebrard’s opinion that appellant continued to have residuals from his June 18, 2003
employment injury through a permanent aggravation of his preexisting degenerative back
condition. Dr. Swartz explained that there was no evidence that on June 18, 2003 appellant
sustained a permanent aggravation of his preexisting degenerative back condition. He indicated
that the employment-related lumbar strain appellant had sustained on June 18, 2003 had resolved
and that his continuing back problems were due to his underlying, preexisting back condition.
In order to resolve the conflict in the medical evidence between Dr. Hebrard and
Dr. Swartz, regarding whether appellant continued to have employment-related residuals, OWCP
referred him in April 2009 to Dr. Kuldeep Sidhu, a Board-certified orthopedic surgeon, for an
impartial medical examination and opinion on the matter.
In a May 5, 2009 report, Dr. Sidhu detailed appellant’s factual and medical history,
including the circumstances of his June 18, 2003 employment injury which had been accepted
for a lumbar strain. He noted that appellant complained of a shooting pain in his right groin,
lower back pain, and pain and numbness in the front and back of his right leg. Dr. Sidhu
reported the findings of his physical examination on May 5, 2009 noting that knee reflexes and
ankle jerks were present and that appellant complained of pain when moving his right leg. He
posited that appellant’s reported lower back and leg pain was due to facet hypertrophy of lumbar
spine, a condition which preexisted the June 18, 2003 employment injury. Appellant had back
and leg pain for seven years prior to the June 18, 2003 employment injury. Dr. Sidhu indicated
that diagnostic test performed in February 2003 confirmed the facet hypertrophy. He posited
that appellant’s June 18, 2003 employment-related lumbar strain resolved after a few weeks and
that his ongoing symptoms were “related to preexisting condition and not to the industrial
injury.” Dr. Sidhu opined that there was no objective evidence that the June 18, 2003
employment injury caused any permanent damage.
The case remained open with no further medical development activity from 2009 to
October 25, 2011 when appellant requested expansion of the claim to include several other
conditions. This request was based on a September 8, 2011 report from Dr. James H. Holmes, a
family practitioner. OWCP denied the request on November 30, 2011. On March 6, 2012
appellant’s counsel requested a more detailed response to the report of Dr. Holmes. In

2

June 2012, appellant changed representatives. The new counsel resubmitted Dr. Holmes reports,
along with other medical program reports.
In June 2013, when OWCP referred appellant to Dr. Ernest Miller, a Board-certified
orthopedic surgeon, for a second opinion report regarding whether appellant continued to have
residuals of his June 18, 2003 employment injury. In a July 11, 2013 report, Dr. Miller reported
appellant’s history and detailed the findings of his physical examination on that date. He
diagnosed lumbar degenerative disc disease at multiple levels and chronic lower back pain
(preexisting the June 18, 2003 employment incident), and resolved acute lumbar strain (sustained
on June 18, 2003). Dr. Miller opined that the currently diagnosed conditions preexisted the
June 18, 2003 employment injury and that aggravation and acceleration by the June 18, 2003
employment injury were not indicated. He noted that the acute lumbar strain had resolved within
six months of June 18, 2003 without objective evidence of residuals.
On April 29, 2014 appellant filed a claim for compensation (Form CA-7) claiming a
schedule award due to his June 18, 2003 employment injury. In a letter dated May 5, 2014,
OWCP requested that appellant submit an impairment rating report in support of his schedule
award claim.
Appellant submitted a May 21, 2014 report in which Dr. Hebrard reported findings of
electromyogram and nerve conduction velocity testing of his lower extremities obtained on that
date. The report contained impressions of “electrodiagnostic evidence for a left L5-S1
radiculopathy” and “electrodiagnostic evidence for a right L4-5 radiculopathy.” In a separate
report dated May 21, 2014, Dr. Hebrard discussed appellant’s electrodiagnostic findings,
reported findings upon physical examination, and diagnosed lumbosacral radiculopathy in both
lower extremities. He opined that the diagnosed conditions were causally related to the June 18,
2003 employment injury and that appellant had permanent impairment due to nerve root
damage.2 Dr. Hebrard referenced The Guides Newsletter, “Rating Spinal Nerve Extremity
Impairment Using the Sixth Edition” (July/August 2009)3 and concluded that appellant had 21
percent permanent impairment of his right lower extremity and 21 percent permanent impairment
of his left lower extremity under the standards of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009).
In November 2014, OWCP referred the case record to Dr. Leonard A. Simpson, a Boardcertified orthopedic surgeon serving as an OWCP medical adviser, for an opinion regarding the
extent of the permanent impairment of appellant’s lower extremities.
On December 4, 2014 Dr. Simpson discussed the medical evidence of record. He opined
that the medical records showed that the accepted June 18, 2003 lumbar strain had resolved.
Dr. Simpson indicated, “Based on accepted “lumbosacral strain” there would be a class 0 -- 0
present impairment of each lower extremity as a result of the work-accepted strain with no
permanent aggravation accepted. Date of maximum medical improvement following the work2

Dr. Hebrard indicated that appellant’s “subjective complaints and my objective findings are consistent with the
mechanism of injury” and that “he has not recovered from [his] industrially-related condition.”
3

See infra note 14.

3

accepted strain would be no later than June 18, 2004, i.e., no later than one year following the
industrial-related incident….”
In a March 11, 2015 decision, OWCP denied appellant’s schedule award claim because
the medical evidence of record did not support that he had employment-related permanent
impairment of his lower extremities.
Appellant requested a telephonic hearing with an OWCP hearing representative. During
the hearing held on October 7, 2015, appellant’s counsel at the time discussed the impairment
rating report of Dr. Hebrard and posited that it contained a rationalized opinion on permanent
impairment.
By decision dated November 12, 2015, an OWCP hearing representative affirmed
OWCP’s March 11, 2015 decision denying appellant’s schedule award claim. She found that the
weight of the medical evidence of record showed that he ceased to have residuals of his accepted
June 18, 2003 lumbar strain and that he did not have permanent impairment of his lower
extremities due to an employment injury.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim, including that he sustained an injury in the performance of
duty as alleged and that an employment injury contributed to the permanent impairment for
which schedule award compensation is alleged.4 The medical evidence required to establish a
causal relationship 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 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.5
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the

4

See Bobbie F. Cowart, 55 ECAB 476 (2004).

5

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

4

appropriate standard for evaluating schedule losses.8 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.9
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.10 A
schedule award is not payable for the loss, or loss of use, of a part of the body that is not specifically
enumerated under FECA.11 Moreover, neither FECA nor its implementing regulations provides for
a schedule award for impairment to the back or to the body as a whole. Furthermore, the back is
specifically excluded from the definition of organ under FECA.12
In 1960, amendments to FECA modified the schedule award provisions to provide for an
award for permanent impairment to a member of the body covered by the schedule regardless of
whether the cause of the impairment originated in a scheduled or nonscheduled member.
Therefore, as the schedule award provisions of FECA include the extremities, a claimant may be
entitled to a schedule award for permanent impairment to an extremity even though the cause of
the impairment originated in the spine.13 The sixth edition of the A.M.A., Guides does not
provide a separate mechanism for rating spinal nerve injuries as extremity impairment. For
peripheral nerve impairments to the upper or lower extremities resulting from spinal injuries,
OWCP’s procedures indicate that The Guides Newsletter, “Rating Spinal Nerve Extremity
Impairment Using the Sixth Edition” (July/August 2009) is to be applied.14
ANALYSIS
OWCP accepted a lumbar strain on June 18, 2003 when appellant’s forklift hit a pothole.
On April 29, 2014 appellant filed a Form CA-7 claiming a schedule award due to his June 18,
2003 employment injury. In a March 11, 2015 decision, OWCP denied his schedule award claim
because the medical evidence of record did not support an employment-related permanent
impairment of his lower extremities. By decision dated November 12, 2015, an OWCP hearing
representative affirmed OWCP’s March 11, 2015 decision denying appellant’s schedule award
claim.
The Board finds that appellant has not established a claim for a schedule award.

8

Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6 (January 2010); id., Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (January 2010).
9

See also id. at Chapter 2.808.5a (February 2013).

10

Pamela J. Darling, 49 ECAB 286 (1998).

11

Thomas J. Engelhart, 50 ECAB 319 (1999).

12

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

13

Thomas J. Engelhart, 50 ECAB 319 (1999).

14

See G.N., Docket No. 10-850 (issued November 12, 2010); see also supra note 8 at Chapter 3.700, Exhibit 1,
note 5 (January 2010). The Guides Newsletter is included as Exhibit 4.

5

In support of his schedule award claim, appellant submitted a May 21, 2014 report in
which Dr. Hebrard, an attending Board-certified physical medicine and rehabilitation physician,
diagnosed lumbosacral radiculopathy in both lower extremities and opined that the diagnosed
conditions were causally related to the June 18, 2003 employment injury and that appellant had
permanent impairment due to nerve root damage.15 He referenced The Guides Newsletter,
“Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” (July/August 2009)16 and
concluded that appellant had 21 percent permanent impairment of his right lower extremity and
21 percent permanent impairment of his left lower extremity under the standards of the sixth
edition of the A.M.A., Guides.
The Board notes, however, that Dr. Hebrard did not provide a rationalized medical
opinion that appellant’s lower extremity conditions were related to the accepted June 18, 2003
employment injury. Dr. Hebrard did not explain how appellant’s employment-related soft-tissue
injury from almost 11 years prior could cause permanent impairment in his lower extremities.17
As noted above, the medical evidence must show that an employment injury contributed to the
permanent impairment for which schedule award compensation is alleged.18
Appellant has not submitted rationalized medical evidence showing that he had
permanent impairment of lower extremities stemming from the accepted June 18, 2003
employment injury or some other employment-related condition. Therefore, there was no basis
to find the existence of such permanent impairment and thus appellant has not established his
schedule award claim.
Appellant may make a request to OWCP for a 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 a claim for a schedule award.

15

Dr. Hebrard indicated that appellant’s “subjective complaints and my objective findings are consistent with the
mechanism of injury” and that “he has not recovered from [his] industrially-related condition.”
16

See supra note 14.

17

The Board has held that a medical report is of limited probative value on a medical matter if it contains an opinion
which is unsupported by medical rationale. C.M., Docket No. 14-88 (issued April 18, 2014). OWCP did not accept
that appellant sustained a lower extremity condition on June 18, 2003 and the medical evidence of record does not
otherwise support the existence of such an employment-related injury.
18

See supra note 4.

6

ORDER
IT IS HEREBY ORDERED THAT the November 12, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION FACILITY, Anaheim, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1681
Issued: December 14, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 15, 2016 appellant filed a timely appeal from March 17 and July 8, 2016
nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from the last merit decision, dated December 17, 2015, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s January 22 and April 14, 2016
requests for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 24, 2013 appellant, then a 57-year-old labor custodian, filed an occupational
disease claim (Form CA-2) alleging lower back and bilateral knee conditions that he attributed to
excessive walking, bending, lifting, pulling, pushing, kneeling, and twisting. She indicated that
she first became aware of the disease or illness and realized it was caused or aggravated by her
employment on May 29, 2013. Appellant did not stop work. In a July 17, 2013 statement, she
noted ongoing back and knee problems for years and advised that in 2010, her problems started
getting worse.
In a July 17, 2013 report, appellant’s treating physician, Dr. Helen Weinrit, a Boardcertified anesthesiologist, diagnosed aggravation of degenerative disc disease of the lumbar
spine, lumbar radiculopathy, lumbar annular tears, aggravation of bilateral degenerative joint
disease of the knees, bilateral meniscus tears, and bilateral anterior cruciate ligament tears. She
recommended that appellant could work without restrictions.2
On October 17, 2013 OWCP accepted appellant’s claim for temporary aggravation of
bilateral localized primary osteoarthritis, lower leg.3
In a December 3, 2013 report, Dr. Charles Herring, a Board-certified orthopedic surgeon,
requested to expand the additional condition and authorization for left knee arthroscopy with
partial meniscectomy, chondral debridement, and synovectomy and recommended modified duty
per the treating physician.
On December 6, 2013 OWCP referred appellant for a second opinion, along with a
statement of accepted facts (SOAF), a set of questions and the medical record to Dr. Michael J.
Einbund, a Board-certified orthopedic surgeon.
In a report dated December 12, 2013, Dr. Einbund described appellant’s history of injury
and treatment, provided results on examination, and determined that the additional medical
conditions diagnosed by Dr. Weinrit were not work related. He explained that the diagnostic
findings were degenerative in nature and consistent with the aging process and, regarding both
knees, he opined that the findings were not medically connected to an industrial injury.
On January 3, 2014 OWCP found that Dr. Einbund’s report created a conflict with the
opinion of appellant’s attending physician, Dr. Weinrit. It advised that a decision would be made
regarding the request for authorization for surgery.
On June 27, 2014 OWCP referred appellant along with a SOAF, and the medical record
to Dr. Gurvinder S. Uppal, a Board-certified orthopedic surgeon, for an impartial medical
evaluation to resolve the conflict in opinion.

2

In her July 17, 2013 duty status report, Dr. Weinrit recommended no floor buffering.

3

Appellant has a prior claim for a traumatic injury on October 28, 1999, which was accepted for contusion of the
face, sprain of neck and back, lumbar region. File No. xxxxxx921.

2

In a July 30, 2014 report, Dr. Uppal noted appellant’s history of injury and treatment and
provided results on examination. He diagnosed grade 1 spondylolisthesis, L4-5, degenerative,
and bilateral knee degenerative joint disease. Dr. Uppal opined that he did not believe that
appellant suffered low back or the right or left knee conditions attributable to her May 29, 2013
injury. He explained that she did not require any further treatment on an industrial basis for the
back or knees. Dr. Uppal further explained that appellant had an injury that dated back to 1999
that was industrial. He indicated that she was seen in 2000 by her physician and discharged as
cured with no residual injury to her low back. Dr. Uppal noted that appellant continued to work
without restrictions. He opined that she had a degenerative condition that would be present
absent any industrial injury.
Dr. Basimah Khulusi, Board-certified in physical medicine and rehabilitation, provided
several reports dated August 27, October 8, and November 19, 2014. He diagnosed aggravation
of degenerative disc disease of lumbar spine, lumbar radiculopathy, lumbar annular tears,
bilateral degenerative joint disease of the knees, bilateral meniscus tears, and bilateral anterior
cruciate ligament tears. Dr. Khulusi explained that appellant could continue her modified work
with the same restrictions. In his October 8, 2014 report, he prescribed restrictions of no pushing
or pulling more than 100 pounds on wheels, no floor buffering, and no lifting over 10 pounds
intermittently.
On January 20, 2015 OWCP issued a notice of proposed termination of medical benefits.
As the weight of the medical evidence, as represented by the report of Dr. Uppal, the impartial
medical examiner, established that the work injury had ceased.4
Dr. Khulusi continued to submit reports dated January 21, 2015.
In a January 27, 2015 report, Dr. Herring diagnosed bilateral knee degenerative joint
disease. He noted that appellant’s surgery request had been denied and indicated that he hoped
her private insurance would approve the knee replacement, which she desperately needed.
In January 31, 2015 statement, appellant indicated that she was puzzled by Dr. Uppal’s
report and indicated that she believed that his examination was not a complete examination. She
argued that his report was not rationalized and not sufficient to terminate her medical benefits.
Appellant also noted that her complete medical history was not addressed by Dr. Uppal as he did
failed to note various procedures, such as her rotator cuff surgeries on both shoulders, which had
been accepted by OWCP. Furthermore, she indicated that he listed that she denied any weight
gain despite her having informed him that she had gastric bypass surgery due to the weight she
had gained. Furthermore, appellant argued that Dr. Uppal did not mention that she had medical
treatment for her lower back and left knee, as well as severe arthritis in her lower back, since
2001 and in her left knee since the age of 48. She explained that he did not address the repetitive
nature of her job and the repetitive motions she performed all day every day for 28 years.
Appellant indicated that she believed that her duties had aggravated and worsened her condition.
She noted another inaccuracy in Dr. Uppal’s report related to his finding that she denied loss of
consciousness. Appellant explained that she informed him that during her October 29, 1999 onthe-job injury, she was knocked out when she struck the back of her head. She also explained
4

Appellant had not lost any time from work due to her accepted bilateral lower extremity condition.

3

that she continued to suffer residual pain from that injury and her conditions were related to the
original injury. Appellant argued that her job duties aggravated, accelerated, and worsened her
condition.
In a February 12, 2015 report and in response to the notice of proposed termination,
Dr. Khulusi noted that Dr. Uppal and Dr. Einbund’s opinions were erroneous, as they did not
understand that degenerative conditions were caused or aggravated by wear and tear, “which
means the more wear and tear the worse the degeneration.” He argued that OWCP was aware of
this concept as there were thousands of accepted cases for knee and back conditions like
appellant’s. Dr. Khulusi referenced Chapter 2.0805 of FECA procedure manual and referenced
an example that repetitive continuous strenuous activities caused acceleration of arthritis of a
joint and stated that acceleration of knee arthritis was caused by “activities such as continuous
walking, stooping, and squatting in his/her job over a 15[-]year career that involved these
activities for a majority of each day.” He also referenced a Franingham Osteoarthritis study,
which revealed that occupational knee bending and physical labor were risk factors for knee
osteoarthritis. Dr. Khulusi referenced additional studies. He further referenced appellant’s job
duties, which included repetitive lifting up to 50 pounds, standing and walking on hard floors
eight hours per day, climbing, kneeling, bending, stooping, twisting, pushing, and pulling, while
going up and down inclines repetitively throughout the day, day after day, and year after year,
ever since she started working for the employing establishment. Dr. Khulusi opined that these
repetitive activities caused a lot more wear and tear of the structures of the body and in her case,
her low back and bilateral knees, much more than somebody who was not involved in doing
similar activities. He opined that all of the repetitive activities caused permanent, irreversible
damage to appellant’s back and bilateral knees that had not ceased to exist and continued to be
related to her employment. Dr. Khulusi also requested that OWCP accept the additional
conditions of acceleration of osteoarthritis of her knees, bilateral medial meniscus tears, and
bilateral anterior cruciate tears. He explained that the acceleration of degeneration in appellant’s
knees resulted in bilateral meniscal tears and bilateral anterior cruciate ligament tears that were
neither temporary nor reversible. Dr. Khulusi also noted that Dr. Einbund opined that the only
way to correct the damage was for her to undergo total knee replacement surgeries.
OWCP also received additional reports from Dr. Khulusi dated January 21,
February 25, and March 25, 2015. Dr. Khulusi continued to repeat his diagnoses and opinions.
In a May 4, 2015 decision, OWCP terminated appellant’s medical benefits, effective that
date. It found that the weight of medical evidence rested with Dr. Uppal, who supported that she
no longer had residuals of the accepted work-related conditions.
On June 3, 2015 appellant requested reconsideration and submitted a May 27, 2015
report from Dr. Khulusi.
Dr. Khulusi argued that there were multiple inaccuracies in the decision. He indicated
that he documented his findings in all of his reports, which included objective findings on
physical examination. Dr. Khulusi noted that he was enclosing copies of all of his reports from
May 28, 2014 to January 21, 2015. He also referenced multiple sources and articles with regard
to low back disorders and explained that the details of the activities in which appellant was
engaged at work, included heavy physical work, with repetitive lifting, and forceful movements

4

for many years and work-related awkward postures over many years. Dr. Khulusi opined that all
of these activities caused her low back musculoskeletal disorder that affected the tendons,
ligaments, nerves, joints, cartilage, and bones of her low back. He explained that the result was
acceleration of the degeneration of the bone and cartilage ligaments and joints of the back, which
caused lumbar annular tears and the lumbar radiculopathy and that led to permanent aggravation
of the degeneration of appellant’s back. Dr. Khulusi further opined that, regarding her knees, her
repetitive activities caused repetitive cumulative trauma to the knees, and that resulted in
accelerating the degeneration in her knees. He argued that Dr. Uppal did not provide a
rationalized explanation to support his opinion. Dr. Khulusi further argued that Dr. Uppal’s
opinion was speculative. He repeated his request for OWCP to accept additional conditions to
include acceleration of degenerative disc disease of the lumbar spine, lumbar disc displacement,
lumbar radiculopathy, acceleration of osteoarthritis of knees, bilateral medial meniscus tears, and
bilateral anterior cruciate tears.
Dr. Khulusi continued to treat appellant and submitted reports dated May 28, July 9,
August 27, October 8, and November 19, 2014 and January 21, and May 20, 2015.
In an April 28, 2015 report, Dr. Herring diagnosed bilateral knee degenerative joint
disease and requested authorization for knee replacement surgery.
By decision dated August 26, 2015, OWCP denied modification of its prior decision.
On September 24, 2015 appellant again requested reconsideration and submitted a
September 14, 2015 report from Dr. Khulusi, wherein he reiterated that Dr. Uppal’s report was
not entitled to receive greater weight as an impartial medical specialist because he had not
provided any medical reasoning. Dr. Khulusi argued that his report was speculative and that
OWCP had engaged in abuse of discretion through proof of manifest error and a clearly
unreasonable exercise of judgment. He repeated his request for OWCP to accept the additional
diagnosed conditions of bilateral medial meniscus tears, bilateral anterior cruciate tears,
permanent aggravation of osteoarthritis of bilateral knees, lumbar disc displacement, lumbar
radiculopathy, permanent aggravation of the degenerative disc disease of the lumbar spine as a
result of her bilateral medial meniscus tears and bilateral anterior cruciate ligament tears.
Dr. Khulusi repeated his prior opinion that appellant had been working in excess of 26 years
doing hard, repetitive, and physical labor. He explained that, if her condition was age related,
then all individuals her age would have the same ailments. Dr. Khulusi concluded his arguments
and proffered that the report of Dr. Uppal was insufficient to carry the weight of the medical
evidence. He continued to treat appellant.
In a September 29, 2015 report, Dr. Herring repeated his request for arthroscopic
debridement of the knee to give appellant some relief. He explained that she would need total
knee arthroplasty.
By decision dated December 17, 2015, OWCP denied modification of its August 26,
2015 decision.
On January 22, 2016 appellant again requested reconsideration and submitted a
January 21, 2016 report from Dr. Khulusi, wherein he noted that he had reviewed Dr. Uppal’s

5

report and Dr. Uppal had not mentioned the SOAF. Dr. Khulusi explained that this was required
when referring appellant for a second opinion or impartial medical examination. He also noted
that Dr. Uppal was never asked if the accepted conditions of temporary aggravation had ceased
or if it was still related to her employment. Dr. Khulusi argued that her knee and back conditions
could not have deteriorated because of her age only. He explained that, if her condition was
caused by age, then all 58-year olds would be struggling to get up from a chair, and walk, and
have constant continuous pain in the back and knees. Dr. Khulusi argued that appellant’s hobby
was sewing and she did not engage in any sports that could have contributed to her back and
knee condition. Furthermore, appellant did not have any injuries that could have caused any
damage to her back and knees other than the injury she suffered on the job. Dr. Khulusi again
referenced FECA procedure manual and argued that a well-referenced medical opinion contained
citations from medical reference resources and other information to support the opinion. He
again argued that Dr. Uppal’s report was not based on an accurate SOAF, that it was incomplete
and inadequate to carry the weight of the evidence. Dr. Khulusi repeated his request for the
additional conditions to be accepted. He argued that it was not necessary to prove a significant
contribution of factors of employment, to establish causal relation. Dr. Khulusi argued that, if
the medical evidence revealed an employment factor contributed to the employee’s condition,
such a condition would be considered employment related for purposes of compensation under
FECA. He opined that “with a reasonable degree of medical certainty” that appellant’s activities
on the job caused her conditions of her low back and her bilateral knees. Dr. Khulusi argued that
accepting appellant’s diagnosis would allow her to receive the appropriate treatment and would
affect her prognosis.
By decision dated March 17, 2016, OWCP denied appellant’s request for reconsideration
without conducting a review of the merits as her request neither raised substantive legal
questions nor included relevant and pertinent evidence. It determined that the evidence was
cumulative and substantially similar to evidence previously obtained, and thus, it was insufficient
to warrant review of its prior decision. OWCP further noted that the objectivity of Dr. Khulusi’s
reports was compromised when he simultaneously became a medical provider and claimant
advocate.
On April 14, 2016 appellant again requested reconsideration and submitted an April 4,
2016 report from Dr. Khulusi wherein he argued that his January 21, 2016 report was not
cumulative and it was sufficient to warrant a merit review. Dr. Khulusi reiterated that he had
demonstrated in his past reports dated May 27 and September 14, 2015, that Dr. Uppal’s opinion
was not rationalized and not based on medical science. He also explained that, in his January 21,
2016 report, he demonstrated that Dr. Uppal’s opinion was not based on a complete physical
examination as Dr. Uppal described in detail in his letter, which made his decision making
deficient and not rationalized. Dr. Khulusi argued that Dr. Uppal did not disclose the contents of
the SOAF and they were not given this information. He explained that he advocated for all of
his patients and disputed OWCP’s findings that his reports were minimized by the fact that he
advocated for his patients. Dr. Khulusi argued that OWCP also engaged in error and abuse of
discretion in its actions and misquoting the law. He disputed OWCP’s notation that, having a
postal union office on site, had no relevance to his unbiased opinion. Dr. Khulusi also argued
that it was not necessary that the evidence be so conclusive as to establish causal relationship
beyond a reasonable doubt. He explained that if the circumstances supported a causal

6

relationship and the medical evidence supported causal relationship, appellant had met her
burden of proof.
Dr. Khulusi continued to treat appellant and, in an April 13, 2016 report, he indicated that
she presented for follow-up for her low back and bilateral knee conditions from a May 29, 2013
date of injury. He noted that she reported today, that she had a fall at home about 2½ weeks ago
because she could not pick up her left leg and tripped on the hose. Appellant ended up injuring
her right elbow, right shoulder, and right knee, and since then she has been having more low
back pain. Dr. Khulusi indicated that she saw her private physician and would go back for more
follow-up. He noted that appellant reported pins and needles in both knees and the low back,
reported pain in the knees as being sharp and reported having more pain in the right knee for the
last month. Furthermore, appellant felt it more when she was trying to shift from gas to brakes.
Dr. Khulusi advised that she related that her low back pain felt like aching, burning, and
pulsating and she has not been receiving further treatment. He provided examination findings
and diagnosed aggravation of degenerative disc disease of the lumbar spine, lumbar
radiculopathy, lumbar annular tears, bilateral degenerative joint disease of the knees (accepted),
bilateral meniscus tears, and bilateral anterior cruciate ligament tear. Dr. Khulusi recommended
modified work with the same restrictions that he had previously provided.
By decision dated July 8, 2016, OWCP denied appellant’s request for reconsideration
without conducting a review of the merits as her request neither raised substantive legal
questions nor included relevant and pertinent new evidence. It determined that the evidence
submitted did not support that OWCP erroneously applied or interpreted a point of law and the
evidence did not include a relevant legal argument not previously considered. OWCP also found
that the evidence submitted was cumulative and substantially similar to evidence or
documentation already contained in the case file and previously considered.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.6 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.7 A Timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
5

6

20 C.F.R. § 10.607.

7

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

7

considered by OWCP.8 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.9
ANALYSIS
Appellant disagreed with the termination of her medical benefits effective May 4, 2015.
OWCP twice denied modification of the decision terminating her medical benefits. The most
recent merit decision was dated February 17, 2015. Appellant again requested reconsideration
on January 22 and April 14, 2016.
Appellant submitted reports from her physician, Dr. Khulusi, who generally repeated his
disagreement with the findings of the impartial medical examiner. Although these medical
reports were not previously considered by OWCP, the Board finds that they are substantially
similar and duplicative of evidence previously considered and reviewed by OWCP, and they do
not constitute a basis for reopening the case.10
In the January 21, 2016 report, Dr. Khulusi noted that he had reviewed Dr. Uppal’s report
and argued that he did not mention the SOAF, which was required when referring appellant for a
second opinion or impartial medical examination. He also noted that Dr. Uppal was never asked
if the accepted conditions of temporary aggravation had ceased or if it was still related to her
employment. However, the Board notes that it does not have jurisdiction over the merits of the
claim. The Board also notes that the record reflects that Dr. Uppal was provided with the SOAF
and this argument would not be relevant and pertinent new evidence sufficient to require merit
review as this 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.
Dr. Khulusi also made several arguments with regard to appellant’s knee and back
conditions. For example, he argued that they could not have deteriorated because of her age
only. However, Dr. Khulusi was arguing that OWCP accept additional conditions despite the
fact that the only accepted condition was a temporary aggravation of localized primary
osteoarthritis in the bilateral lower legs. The Board notes that these other mentioned conditions
were not accepted by OWCP and these arguments are not relevant to the termination of
appellant’s medical benefits for the accepted conditions. Dr. Khulusi repeated his arguments that
the impartial medical examiner’s report was inadequate to carry the special weight of the
evidence. He argued that references to FECA procedure manual were necessary for a wellreferenced medical opinion. Dr. Khulusi again argued that Dr. Uppal’s report was not based on
an accurate SOAF, that it was incomplete and inadequate to carry the weight of the evidence and
repeated his request for the additional conditions to be accepted. However, the acceptance of
additional diagnosed conditions has not been addressed by OWCP and these arguments are not
8

Id. at § 10.606(b)(3).

9

Id. at § 10.608(a), (b).

10

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).

8

new. Thus, these are not relevant new arguments not previously considered and they would not
be relevant to establish the criterion for reopening the claim for a merit review.
Likewise, in his April 4, 2016 report, Dr. Khulusi argued that his January 21, 2016 report
was not cumulative and it was sufficient to warrant a merit review. However, he again repeated
his disagreement with the opinion of the impartial medical examiner, referenced his past reports
dated May 27 and September 14, 2015 and again argued that Dr. Uppal’s opinion was not
rationalized and not based upon medical science. Dr. Khulusi again argued that the report did
not contain a complete physical examination and that he did not disclose the content of SOAF
and they were not given this information. He also argued that he advocated for all of his patients
and disputed OWCP’s findings that his reports were minimized by the fact that he advocated for
his patients. Dr. Khulusi again argued that OWCP engaged in error and abuse of discretion in its
actions and misquoting the law. He denied that his opinion was biased. Dr. Khulusi also argued
as that he had satisfied the burden to support causal relationship. He argued that the report of the
impartial medical examiner was inadequate and that OWCP erroneously applied or interpreted a
specific point of law or advanced a relevant legal argument not previously considered by OWCP.
However, the Board finds that these arguments are not supported by the record. Dr. Khulusi
appears to be arguing that the additional diagnosed conditions should be accepted, but they have
not been accepted by OWCP. The Board finds that these arguments are insufficient to warrant a
merit review.
OWCP also received a medical report dated April 14, 2016, in which Dr. Khulusi noted
that appellant had a fall at home about 2½ weeks prior because she could not pick up her left leg
and tripped on the hose. Appellant ended up injuring her right elbow, right shoulder, and right
knee, and since then she has been having more low back pain. Dr. Khulusi indicated that she
saw her private physician and would go back for more follow-up. He noted that appellant
reported pins and needles in both knees and the low back, reported pain in the knees as being
sharp and reported having more pain in the right knee for the last month. Furthermore, appellant
felt it more when she was trying to shift from gas to brakes. Dr. Khulusi advised that she related
that her low back pain felt like aching, burning, and pulsating and she has not been receiving
further treatment. He provided examination findings and diagnosed aggravation of degenerative
disc disease of the lumbar spine, lumbar radiculopathy, lumbar annular tears, bilateral
degenerative joint disease of the knees (accepted), bilateral meniscus tears, bilateral anterior
cruciate ligament tear. Dr. Khulusi recommended modified work with the same restrictions that
he had previously provided. The Board notes that the only condition accepted by OWCP was
temporary aggravation of localized primary osteoarthritis, lower leg, and bilateral. Dr. Khulusi
again repeated his arguments that the additional conditions should be accepted. However, he has
not explained how these newly diagnosed conditions would be relevant to appellant’s claim for
continuing work-related residuals of her accepted medical conditions. Thus, Dr. Khulusi’s
April 13, 2016 report is not relevant and pertinent new evidence related to the issue of whether
she continued to have work-related disability due to the accepted conditions, and thus, they are
insufficient to require a merit review.
Consequently, the evidence submitted by appellant on reconsideration does not satisfy the
third criterion, noted above, for reopening a claim for merit review. Furthermore, appellant also
has not shown that OWCP erroneously applied or interpreted a specific point of law, or advanced

9

a relevant new argument not previously submitted. Therefore, OWCP properly denied her
request for reconsideration.
On appeal appellant argues that the report of the impartial medical examiner was
deficient. However, these arguments are not new and the sufficiency of his report was
previously addressed by OWCP.
CONCLUSION
The Board finds that OWCP properly denied appellant’s January 22 and April 14, 2016
requests for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 8 and March 17, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.11
Issued: December 14, 2017
Washington, DC

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

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

11

Collen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Seagoville, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-291
Issued: July 2, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 13, 2006 appellant filed a timely appeal of an August 29, 2006 decision of
the Office of Workers’ Compensation Programs, denying merit review of his claim. Since more
than one year has elapsed between the most recent merit decision on February 5, 2003 and the
filing of this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to
20 C.F.R. §§ 501.2(c), 501.3(d)(2) and 501.6(c) and (d).
ISSUE
The issue is whether the Office properly determined that appellant’s application for
reconsideration was untimely and failed to show clear evidence of error.
FACTUAL HISTORY
Appellant, a correctional officer, filed a traumatic injury claim (Form CA-1) alleging that
he sustained employment-related stress as a result of a May 23, 2000 incident. According to
appellant, he was assaulted by an inmate, which triggered a flashback to an April 2000 assault.

An October 12, 2002 memorandum from the employing establishment indicated that a coworker
recalled that on May 23, 2000 an inmate threw a liquid substance on appellant, who was allowed
to go home due to a wet uniform. By decision dated February 5, 2003, the Office denied the
claim. The Office found that appellant had not established a factual basis for the claim.
In a letter dated March 23, 2006, appellant requested reconsideration of his claim. He
stated that he could not remember seeing a notice of decision. Appellant alleged that he worked
as a correctional officer and on May 23, 2000 he was spit on by an inmate. He also stated that
the inmate threw fecal matter on him. Appellant stated this brought back memories of an
April 14, 2000 altercation involving several inmates.
On reconsideration, appellant submitted a number of medical reports regarding
psychiatric treatment. In a treatment note dated May 24, 2000, Dr. John Black, a psychologist,
stated that appellant reported an incident at work yesterday. He indicated that appellant was
having nightmares and flashbacks. In a treatment note dated March 22, 2005, Dr. Gloria
Emmett, Ph.D., a clinical psychologist, noted that appellant reported a prison incident in which
he was held captive in a mess hall by inmates for a period of time. Appellant also submitted
treatment notes from Dr. Steven Eilers, a psychiatrist, regarding treatment in 2005 and 2006.
Dr. Eilers noted “Former PTSD [post-traumatic stress disorder] sx’s [symptoms] related to
prisoner uprising incident on April 14, 2000.”
By decision dated August 29, 2006, the Office determined that appellant’s application for
reconsideration was untimely. The Office further determined that the evidence did not show
clear evidence of error in the February 5, 2003 decision.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act1 does not entitle a claimant
to a review of an Office decision as a matter of right.2 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.3 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).4 As one such limitation, the Office has stated
that it will not review a decision denying or terminating a benefit unless the application for
reconsideration is filed within one year of the date of that decision.5 The Board has found that
1

5 U.S.C. § 8128(a).

2

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

3

Under section 8128 of the Act, “[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.”
4

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a specific point of law; or (2) advancing a relevant
legal argument not previously considered by the Office; or (3) constituting relevant and pertinent new evidence not
previously considered by the Office; see 20 C.F.R. § 10.606(b).
5

20 C.F.R. § 10.607(a).

2

the imposition of this one-year limitation does not constitute an abuse of the discretionary
authority granted the Office under 5 U.S.C. § 8128(a).6
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.7 In accordance with this holding, the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.9 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.14 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.15
ANALYSIS
The merit decision denying appellant’s claim for compensation was dated
February 5, 2003. Although he stated that he could not remember seeing a decision, the record
6

See Leon D. Faidley, Jr., supra note 2.

7

Leonard E. Redway, 28 ECAB 242 (1977).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

9

See Dean D. Beets, 43 ECAB 1153 (1992).

10

See Leona N. Travis, 43 ECAB 227 (1991).

11

See Jesus D. Sanchez, 41 ECAB 964 (1990).

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919 (1992).

14

Leon D. Faidley, Jr., supra note 2.

15

Gregory Griffin, 41 ECAB 458 (1990).

3

establishes that the February 5, 2003 decision was sent to appellant’s address of record.
Appellant filed an application for reconsideration dated March 23, 2006. This is more than one
year after the February 5, 2003 decision and, therefore, the application for reconsideration is
untimely.
Since the application for reconsideration is untimely, appellant must show clear evidence
of error by the Office to be entitled to a merit review of his claim. His claim was that a May 23,
2000 incident resulted in an emotional condition. A claim for an emotional condition requires
both factual evidence establishing a compensable work factor, as well as rationalized medical
evidence establishing a diagnosed condition causally related to the compensable work factor.16
To show clear evidence of error, therefore, appellant would have to submit evidence of such
probative value that it established a compensable work factor and a resulting diagnosed medical
condition, such that the Office clearly erred in denying the claim.
The evidence from the employing establishment indicated that there was an incident
involving an inmate that resulted in appellant having a wet uniform and being sent home.
Appellant did not submit any additional probative evidence regarding the May 23, 2000 incident.
Moreover, he did not submit probative medical evidence on causal relationship between a
May 23, 2000 incident and a diagnosed condition. Dr. Black noted that appellant reported an
employment incident on May 23, 2000 and he was having nightmares and flashbacks. He did
not provide a complete history or a rationalized medical opinion on causal relationship between a
diagnosed condition and a May 23, 2000 employment incident.
The Board finds that appellant did not establish clear evidence of error in this case. He
did not submit evidence that prima facie shifted the weight of the evidence in favor of the
claimant and raised a substantial question as to the correctness of the Office decision. Under
these circumstances the Office properly denied merit review of the claim.
CONCLUSION
The March 23, 2006 application for reconsideration was untimely and failed to show
clear evidence of error.

16

Beverly R. Jones, 55 ECAB 411 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 29, 2006 is affirmed.
Issued: July 2, 2007
Washington, DC

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

David S. Gerson, 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.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sharon Hill, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-91
Issued: April 8, 2008

Case Submitted on the Record

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

JURISDICTION
On October 10, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated May 14, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to a schedule award for her accepted right knee
condition.
FACTUAL HISTORY
This case has been before the Board on two prior occasions. By decision dated
September 4, 2001, the Board remanded the case to the Office to obtain a supplemental report
from Dr. E. Balasubramanian, a Board-certified orthopedic surgeon, who had provided an
impartial evaluation for the Office, regarding the extent of appellant’s bilateral knee
impairment.1 In a December 9, 2004 decision, the Board affirmed an Office decision finding that
1

Docket No. 01-12 (issued September 4, 2001). The accepted conditions are bilateral tears of the medial
meniscus. Appellant had surgery on her left knee but not her right.

the weight of the medical evidence rested with Dr. Balasubramanian’s opinion. He found that
appellant had no more than a two percent permanent impairment of her left lower extremity, for
which she had received a schedule award.2 The law and the facts of the previous Board
decisions are incorporated herein by reference.
By letter dated December 21, 2004, appellant, through her attorney, requested that the
Office issue a schedule award for her right lower extremity. On January 12, 2005 the Office
informed appellant’s attorney that the June 17, 1998 report of Dr. David Weiss, an osteopath,
was stale and appellant should provide an up-to-date narrative regarding her right knee. In a
January 25, 2006 letter, appellant’s attorney advised that no additional medical evidence would
be submitted.
The medical evidence includes a report dated December 3, 2002 in which
Dr. Balasubramanian noted his review of the record including appellant’s history of left knee
surgery and her complaint of bilateral knee pain. He provided examination findings of a normal
gait, able to toe walk, heel walk, partially squat and get up without difficulty, hop in place and
that she could do single foot toe raises. Examination of both knees revealed no effusion or
synovitis and no evidence of meniscal signs or ligamentous laxity. There was no loss of knee
range of motion and measurements of quadriceps, calves and knees were equal.
Dr. Balasubramanian advised that, under the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),3 appellant had no physical
indication of impairment but that, as she had a prior partial meniscectomy of the left knee, under
Table 17-33, she would be entitled to a two percent left lower extremity impairment. In a report
dated January 24, 2003, an Office medical adviser concurred with Dr. Balasubramanian’s
findings. A right lower extremity magnetic resonance imaging (MRI) scan study on August 8,
2003 demonstrated low-grade osteoarthritis with no evidence of meniscal tear. Dr. David N.
Bosacco, Board-certified in orthopedic surgery, provided treatment notes dated June 10 and
September 4, 2003, in which he related appellant’s complaint of aching discomfort in both knees
and the MRI scan findings. By report dated October 1, 2003, Dr. Weiss noted his review of his
1998 examination report, Dr. Balasubramanian’s December 3, 2002 report and that of the Office
medical adviser. He advised that at the time of his examination in 1998 appellant had significant
bilateral strength deficits for a total 27 percent right lower extremity impairment.
By decision dated October 19, 2006, the Office found that appellant was not entitled to a
schedule award for her right knee.
On October 25, 2006 appellant, through her attorney, requested a hearing that was held
on February 22, 2007.4 At the hearing, appellant’s attorney argued that Dr. Weiss’ opinion
should represent the weight of the medical opinion. He submitted treatment notes dated
October 5 and November 7, 2006, in which Dr. Bosacco again noted appellant’s complaints of
pain and advised that a new MRI scan did not show any significant change other than a bone
bruise which was probably degenerative in origin.
2

Docket No. 04-1640 (issued December 9, 2004).

3

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

4

Appellant did not appear at the hearing.

2

By decision dated May 14, 2007, an Office hearing representative affirmed the
October 19, 2006 decision.
LEGAL PRECEDENT
Pursuant to section 8107 of the Federal Employees’ Compensation Act5 and section
10.404 of the implementing federal regulations,6 schedule awards are payable for permanent
impairment of specified body members, functions or organs. The Act, however, does not specify
the manner in which the percentage of impairment shall be determined. For consistent results
and to ensure equal justice under the law for all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides7 has been adopted by the Office, and the Board has concurred
in such adoption, as an appropriate standard for evaluating schedule losses.8 Chapter 17 provides
the framework for assessing lower extremity impairments.9
Section 8123(a) of the Act 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.10
ANALYSIS
The Board finds that appellant has not established that she is entitled to a schedule award
for her right lower extremity. In his comprehensive report dated December 3, 2002,
Dr. Balasubramanian noted his review of the record and provided examination findings. He
advised that, upon review of the fifth edition of the A.M.A., Guides, appellant had no physical
findings in either knee that would entitle her to a schedule award but that, based on Table 17-33,
she would be entitled to a two percent left lower extremity based on her partial meniscectomy of
the left knee.
Appellant submitted an October 1, 2003 report from Dr. Weiss. The Board notes that he
had been on one side of the conflict in medical evidence. The October 1, 2003 report merely
reiterated his previous findings, without reexamining appellant. An additional report from a
claimant’s physician, which essentially repeats earlier findings and conclusions, is generally
insufficient to overcome the weight accorded to an impartial medical specialist’s report.11
Moreover, Dr. Weiss’ opinion had previously been reviewed by the Board in its December 9,
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

A.M.A., Guides, supra note 3.

8

See Joseph Lawrence, Jr., supra note 3; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
9

A.M.A., Guides, supra note 3 at 523-64.

10

5 U.S.C. § 8123(a).

11

Roger G. Payne, 55 ECAB 535 (2004).

3

2004 decision.12 The reports of Dr. Bosacco and the August 8, 2003 MRI scan contain no
findings pertaining to any impairment rating and are therefore irrelevant to the issue of
permanent impairment.
Dr. Balasubramanian provided examination findings and rationale for his medical
opinion and found that appellant had no right lower extremity impairment. The Board finds that
his report is entitled to the special weight accorded an impartial examiner and constitutes the
weight of the medical evidence.13 Appellant did not submit sufficient medical evidence to
establish entitlement to a schedule award for her right lower extremity.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she is
entitled to a schedule award for her right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 14, 2007 be affirmed.
Issued: April 8, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

12

Supra note 2.

13

See Sharyn D. Bannick, 54 ECAB 537 (2003).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kewaunee, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0137
Issued: May 29, 2020

Case Submitted on the Record

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

JURISDICTION
On October 24, 2018 appellant, through counsel, filed a timely appeal from an August 27,
2018 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.3

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.

3
The Board notes that following the August 27, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a left lower
extremity condition causally related to the accepted December 23, 2016 employment incident.
FACTUAL HISTORY
On January 9, 2017 appellant, then a 61-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on December 23, 2016 he sprained his left ankle when he
slipped on ice and snow while in the performance of duty. He stopped work on January 7, 2017.
In a January 29, 2017 e-mail, a medical management nurse noted that appellant had partial
left toe amputation surgery on January 25, 2017 and that he was still hospitalized. She indicated
that his surgery was for infected calluses and blisters that he attributed to walking four days on a
sprained ankle with an altered gait pattern. The medical management nurse noted that appellant
had a history of borderline diabetes.
In a development letter dated February 3, 2017, OWCP notified appellant that when his
claim was first received, it appeared to be a minor injury that resulted in minimal or no lost time
from work, and that the merits of the claim had not been formally considered. It indicated that his
claim had been reopened for consideration because he had not returned to work. OWCP informed
appellant of the type of factual and medical evidence needed to establish his claim and attached a
questionnaire for his completion. It afforded him 30 days to submit the necessary evidence.
Appellant subsequently submitted a January 9, 2017 x-ray of the left ankle which
demonstrated no acute fracture or malalignment with remote posterior matter changes of the
medial malleolus, mild degenerative changes of the first metatarsal phalangeal joint, small
calcaneal degenerative disease affects, and mild soft tissue swelling of the dorsal forefoot.
In a procedure note dated January 13, 2017, Dr. Stewart Gifford, a Board-certified surgeon,
advised that appellant had presented several days earlier with a swollen, blistered left great toe.
He advised that appellant’s foot examination demonstrated necrotic-appearing skin dorsally, and
that the erythema previously seen across the forefoot was no longer present. Dr. Gifford performed
incision, drainage, and debridement of the left great toe, diagnosed diabetic foot infection of the
toe, and informed appellant that the toe could require amputation. A left ankle x-ray that day
demonstrated improvement in dorsal soft tissue swelling.
Katie Lukes, a nurse practitioner, noted seeing appellant in follow-up on January 16, 17,
and 18, 2017. She performed dressing changes and diagnosed left foot ulcer and diabetic infection.
On January 19, 2017 Dr. Gifford again debrided necrotic material from appellant’s left
great toe.
On January 25, 2017 Dr. Gifford noted that appellant was admitted with a left-sided
diabetic foot infection. He reported a history that earlier that month appellant noted blister
formation over the dorsum of his left great toe, which had been debrided and that he, also had a
plantar ulcer, which was also debrided. In a procedure report that day, Dr. Gifford indicated that
he performed additional excisional debridement for the diabetic infection of both left foot areas
and installed a wound vacuum device. In a January 30, 2017 discharge summary, he noted that
2

appellant was discharged in good condition that day and was advised not to weight-bear.
Discharge diagnoses were type 2 diabetes mellitus and diabetic foot infection.
On February 3, 2017 Dr. Gifford noted that appellant’s left foot had continued swelling
that affected the left great toe and metatarsal head area. He diagnosed diabetic foot infection and
recommended continued use of the wound vacuum device. On February 10, 2017 Dr. Gifford
performed excisional debridement of bone fragments secondary to appellant’s diabetic foot
infection.
By decision dated March 9, 2017, OWCP denied appellant’s claim finding that he had not
established that the December 23, 2016 incident occurred as described. It explained that he had
not provided a detailed description of the factual aspects of his case. OWCP concluded that the
requirements had not been met to establish an injury as defined by FECA.
On March 24, 2017 appellant, through counsel, requested a telephonic hearing with
OWCP’s Branch of Hearings and Review.
Medical evidence submitted subsequent to the March 9, 2017 decision included a
January 9, 2017 treatment note in which Ms. Lukes indicated that appellant told her that two weeks
prior he had fallen six times on ice, that he had not worked in five days due to pain, and that he
thought he had a blister on his left plantar toe. On examination Ms. Lukes observed a large ulcer
on his great toe and recommended referral for wound care.
In a January 11, 2017 treatment note, Dr. Gifford reported that appellant was a mail carrier
and had recently had several bad days of walking, noting that he fell down six times, wrenched his
left knee, and twisted both ankles. He continued that appellant subsequently noted blister
formation on the plantar aspect of the first metatarsal head, associated with swelling and erythema
of the distal forefoot and great toe. Dr. Gifford described examination findings, noting that the
left foot was grossly swollen from the distal third of the calf down to and including the left great
toe with ulceration involving the plantar aspect of the distal phalanx, and blistering and erythema
of the left foot. He advised that it was somewhat difficult to separate how much of appellant’s left
foot swelling was secondary to ankle injury and how much could be secondary to a diabetic foot
infection. Dr. Gifford noted that, at that time, he had no conclusive evidence of a diabetic foot
infection, but that one was suspected.
On January 18, 2017 Dr. Gifford performed additional excisional debridement of
appellant’s left great toe. Both he and Ms. Lukes continued to provide treatment for appellant’s
left foot condition. This included additional excisional debridement of appellant’s left great toe
on February 24, 2017. A February 24, 2017 left foot x-ray demonstrated increased soft tissue
swelling when compared to the January 13, 2017 x-ray, and a strong suggestion of osteomyelitis
involving the first metatarsal distally, sesamoid bones, and the base of the first proximal phalanx,
with a small amount of involvement of the distal phalanx.
In progress notes dated March 3 and 10, 2017, Dr. Gifford indicated that appellant’s left
great toe was massively enlarged when compared to the remainder of the foot. He noted three
distinct areas of the wound with tunneling to bone. Great toe amputation was recommended.
On March 14, 2017 Dr. Gifford performed transmetatarsal amputation of appellant’s left
great toe. The postoperative diagnosis was left-sided diabetic foot infection affecting the left great
3

toe with underlying osteomyelitis, Wagner’s grade three.4
March 16, 2017.

Appellant was discharged on

Dr. Gifford saw appellant in follow-up on March 22 and 29, 2017 and noted a healing of
the diabetic left toe infection.
On April 5, 2017 Dr. Rance Hafner, Board-certified in family medicine, saw appellant for
wound follow-up. He described examination findings and diagnosed healing diabetic foot
infection of the left great toe following amputation.
Dr. Gifford continued to see appellant in follow-up and described continued healing.
In a report dated July 19, 2017, Dr. Barbara Harkness, Board-certified in family medicine,
noted that appellant had returned to work and reported no issues with being on his feet for a fiveto six-hour shift. She indicated that the left great toe amputation site was improving.
On July 26, 2017 Dr. Gifford advised that inspection of appellant’s left great toe
demonstrated complete healing. He noted that appellant would be discharged from the wound
clinic.
A hearing was held on September 5, 2017. Counsel maintained that appellant had several
ankle sprains on or about December 23, 2016. Appellant testified that he had not had diabetic foot
care before 2017 and that on December 23, 2016, he had fallen a total of six times after an ice
storm the night before, which buckled his left ankle. He indicated that he then worked five shifts
before seeking medical attention. Appellant reported that he returned to part-time modified duty
work on July 8, 2017.
Counsel subsequently submitted an undated letter in which Dr. Gifford noted appellant’s
history of injury and initial treatment. Dr. Gifford indicated that his first encounter with appellant
was on January 11, 2017 when he noted that the amount of appellant’s swelling could not be
separated between his prior injury and the development of his great toe ulceration. He also
indicated that the blister formation and subsequent ulcer were undoubtedly initiated by an
abnormal gait caused by his ankle and knee injuries. Dr. Gifford opined that the presence of the
skin injury, in the presence of poorly-controlled diabetes mellitus 2, rapidly progressed to the
development of a diabetic foot infection of the left great toe. The resulting treatment, which
included amputation, then proceeded as required by appellant’s condition.
In correspondence dated September 20, 2017, appellant maintained that working after his
ankle sprain worsened his left foot condition.
By decision dated October 19, 2017, the hearing representative accepted that the
December 23, 2016 employment incident occurred as alleged, that appellant had provided a
diagnosis of left foot ulcer, and that performance of duty was established. She remanded the case,
however, for OWCP to obtain a second opinion examination regarding whether the employment
incident contributed by direct cause, aggravation, precipitation, or acceleration to any of
appellant’s diagnosed conditions.

4

In a report dated March 14, 2017, Dr. Gifford described appellant’s left foot treatment to date.

4

On November 27, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Gregory Peyer, a Board-certified orthopedic surgeon.
In a report dated December 11, 2017, Dr. Peyer noted the appellant’s claimed history of
injury. He described appellant’s examination findings and medical treatment from January 9,
2017, including that his left great toe had been amputated, and that he was discharged from the
wound clinic in July 2017. Dr. Peyer indicated that, at the time of examination, appellant had a
sedentary job at the employing establishment and planned to retire at the end of the year. He noted
that examination of the left foot showed that the great toe amputation site was well healed with no
open wounds on the foot, good capillary refill, and intact sensation to light touch. No ulcerative
lesions were noted. Dr. Peyer acknowledged the accepted December 23, 2016 employment
incident. As to whether the accepted incident caused his open wounds and osteomyelitis, he noted
his review of Dr. Gifford’s undated correspondence and reported that appellant adamantly
indicated that he had not sustained a foot ulcer prior to the December 23, 2016 employment
incident. After a discussion of the medical evidence of record, Dr. Peyer noted that a significant
ankle sprain would be expected to demonstrate significant ecchymosis after two weeks, that it
would make the foot difficult to walk on, and that the normal response would be to decrease the
pressure on the injured wound, which would not contribute to the formation of a pressure ulcer.
He indicated that severe swelling could cause blisters, “but the blisters are usually closer to the
injury,” as in “an ankle injury they typically occur adjacent to the malleoli and are much more
common on the dorsal surface than the plantar surface of the foot.” Dr. Peyer opined that he could
find no convincing evidence that the accepted employment incident resulted in any of the
diagnosed conditions.
By decision dated February 1, 2018, OWCP denied appellant’s claim. It found that the
evidence submitted was insufficient to establish causal relationship between his diagnosed
conditions and the accepted December 23, 2016 employment incident.
On February 12, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
During the hearing, held on July 2, 2018, counsel asserted that OWCP unfairly gave the
weight of the evidence to the second opinion examiner. He explained that appellant was not
claiming that his position caused him to have diabetes or diabetic neuropathy, but that his
employment incident caused aggravation of his preexisting conditions and, therefore, causal
relationship was established. Appellant testified that on the date of injury, he was on no diabetic
medication, and that he had not found out that he was diabetic until the work-up for his foot. The
hearing representative held the record open for 30 days for the submission of additional evidence.
No additional evidence was received.
By decision dated August 27, 2018, the hearing representative affirmed OWCP’s
February 1, 2018 decision, finding that Dr. Peyer’s second opinion report constituted the weight
of medical evidence.

5

LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish 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 of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability or specific condition for which compensation in claimed is causally related to
the employment injury.6 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.7
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.8 Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.9 The second component is whether the employment incident caused a personal injury.10
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.11 Rationalized medical opinion evidence is
medical evidence that includes a physician’s rationalized opinion on whether there is a causal
relationship between the employee’s diagnosed condition and compensable employment factors.12
The opinion of the physician must be based on a complete factual and medical background of the
employee, 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 employee.13
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.14 The implementing regulation
provides that, if a conflict exists between the medical opinion of the employee’s physician and the

5

Supra note 2.

6

D.J., Docket No. 19-1301 (issued January 29, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

7

Id.

8

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

See M.F., Docket No. 18-1162 (issued April 9, 2019); D.S., Docket No. 17-1422 (issued November 9, 2017);
Elaine Pendleton, 40 ECAB 1143 (1989).
10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11

T.H., Docket No. 19-0599 (issued January 28, 2020).

12

K.C., Docket No. 18-0529 (issued January 21, 2020).

13

D.J., supra note 6.

14

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

6

medical opinion of either a second opinion physician or a district medical adviser (DMA), OWCP
shall appoint a third physician to make an impartial examination.15
ANALYSIS
The Board finds that this case is not in posture for decision.
In reports dated January 13, 2017 to an undated report received by OWCP on
September 29, 2017, Dr. Gifford, appellant’s treating surgeon, recounted appellant’s history of
diabetic foot infection that necessitated amputation of his left great toe. He described appellant’s
examination findings and treatment. Dr. Gifford diagnosed left-sided diabetic foot infection
affecting the left great toe with underlying osteomyelitis. In the undated report, he explained that
when he first saw appellant on January 11, 2017, the amount of appellant’s swelling of appellant’s
left foot could not be separated between his prior injury and the development of his great toe
ulceration. Dr. Gifford indicated that the blister formation and subsequent ulcer were undoubtedly
initiated by an abnormal gait caused by appellant’s ankle and knee injuries. He opined that the
presence of the skin injury, in the presence of poorly-controlled diabetes mellitus, rapidly
progressed to the development of a diabetic foot infection of the left great toe, with resulting
treatment that included amputation.
Dr. Peyer, OWCP’s referral physician, provided a December 11, 2017 report in which he
fully discussed the medical evidence of record and described examination findings. In contrast,
he opined that he could find no convincing evidence that appellant’s diagnosed conditions were
causally related to the accepted December 23, 2016 employment incident.
Both Dr. Gifford and Dr. Peyer provided a description of appellant’s employment incident
and both provided rationale for their respective opinions based on their review of the medical
evidence and physical findings. The Board, therefore, finds that a conflict in medical opinion
exists regarding whether appellant’s diagnosed conditions were causally related to the accepted
December 23, 2016 employment incident.16
As noted, OWCP’s regulations provide 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 its DMA, OWCP shall appoint a third physician to resolve the conflict in the medical opinion.17
The Board will thus remand the case to OWCP for referral to an impartial medical examiner
regarding whether appellant has met his burden of proof to establish that his diagnosed conditions
are causally related to the accepted December 23, 2016 employment incident. Following this and
such further development as deemed necessary, OWCP shall issue a de novo decision.18

15

20 C.F.R. § 10.321.

16

See M.W., Docket No. 19-1347 (issued December 5, 2019).

17

Id.

18

M.N., Docket No. 19-1421 (issued March 5, 2020); M.W., supra note 16.

7

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 27, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: May 29, 2020
Washington, DC

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

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

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

8