United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Syracuse, NY, Employer
__________________________________________
Appearances:
Kimberly Slimbaugh, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-1058
Issued: February 8, 2018

Case Submitted on the Record

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

On April 19, 2017 appellant, through counsel, filed a timely appeal from an October 27,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Board
docketed the appeal as No. 17-1058.
The Board has duly considered the matter and finds that the case must be remanded to
OWCP. On September 26, 2016 OWCP issued a preliminary notice of its determination that
appellant received an overpayment of compensation in the amount of $13,898.98 for the period
November 9 to July 23, 2016. It also informed her of its preliminary determination that she was
at fault in creating the overpayment. OWCP provided appellant with an overpayment recovery
questionnaire (Form OWCP-20). It notified her that, within 30 days of the date of the letter, she
could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing. In an October 27, 2016 decision, OWCP finalized its determination that
appellant received an overpayment of compensation in the amount of $13,898.98, that she was at
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.

fault in creating the overpayment, and that she was therefore not entitled to waiver. It indicated
that she had not responded to its preliminary notice of overpayment. A review of the record,
however, demonstrates that on October 25, 2016 OWCP received appellant’s request for a
telephone conference and a completed overpayment recovery questionnaire (Form OWCP-20).
It is well established that OWCP must review all evidence submitted by a claimant and
received by OWCP prior to issuance of its final decision.2 As the Board’s decisions are final as
to the subject matter appealed, it is crucial that all evidence relevant to the subject matter of the
claim which was properly submitted to OWCP prior to the time of issuance of its final decision
be addressed by OWCP.3
OWCP is required to follow certain procedures in overpayment cases. Section 10.431 of
FECA’s implementing regulations provides that, before seeking recovery of an overpayment,
OWCP shall advise a claimant in writing that the overpayment exists and the amount of the
overpayment.4 The written notification must include a preliminary finding regarding whether the
individual was at fault in the creation of the overpayment.5 Additionally, OWCP is obliged to
advise the individual of her right to inspect and copy the government records relating to the
overpayment.6 Lastly, the preliminary notice must inform the individual of her right to challenge
the fact or amount of the overpayment, the right to contest the preliminary finding of fault in the
creation of the overpayment, if applicable, and the right to request a waiver of recovery of the
overpayment.7
As noted above, on October 25, 2016, appellant made a timely request for a telephone
conference and submitted an overpayment recovery questionnaire. OWCP, however, did not
conduct a telephone conference before issuing its final overpayment decision. Therefore,
appellant was not provided the opportunity to provide testimonial evidence regarding the alleged
overpayment.8
Accordingly, the case is not in posture for a decision and the case will be remanded for a
timely proper response to appellant’s request for a telephone conference. Following this and
such other development as deemed necessary, OWCP shall issue an appropriate decision.

2

William A. Couch, 41 ECAB 548 (1990).

3

Id.

4

20 C.F.R. § 10.431(a).

5

Id. at § 10.431(b).

6

Id. at § 10.431(c).

7

Id. at 10.431(d).

8

See Jimmie R. Fornero, Docket No. 99-0875 (issued January 16, 2001) (remanding the case to OWCP to
consider the claimant’s request for a telephone conference as he was not provided the opportunity to present
testimonial evidence regarding his request for waiver); see also Scherrie L. Stanley, 53 ECAB 433 (2002).

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 27, 2016 is set aside and the case is remanded for further
action consistent with this order of the Board.
Issued: February 8, 2018
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
U.S. POSTSAL SERVICE, WEST CHESTER
PERFORMANCE & DISTRIBUTION CENTER,
White Plains, NY, Employer
__________________________________________

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

Docket No. 14-239
Issued: June 11, 2014

Case Submitted on the Record

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

JURISDICTION
On November 15, 2013 appellant filed a timely appeal from a June 4, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) which denied his claim. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on June 30, 2012, as alleged.
FACTUAL HISTORY
On July 3, 2012 appellant, then a 54-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on June 30, 2012 he strained his right shoulder while moving flat tubs
1

5 U.S.C. § 8101 et seq.

from the postcon. He submitted a July 3, 2012 personal statement and a July 2, 2012 note from
Dr. Reena J. Jacob, a Board-certified internist, who requested that appellant be excused from
work from July 2 through 11, 2012.
In a July 17, 2012 letter, OWCP advised appellant of the deficiencies in his claim and
provided him the opportunity to submit additional evidence. Appellant was asked to submit a
medical diagnosis of a condition resulting from his injury together with a physician’s opinion as
to how his injury was causally related to the June 30, 2012 incident. He was accorded 30 days to
submit additional evidence.
In response, OWCP received a July 25, 2012 statement from appellant, who returned to
full-duty work on July 6, 2012. A July 2, 2012 x-ray of the right shoulder found no acute
abnormality. A July 12, 2012 note from Dr. Jacob excused appellant from work July 12
through 25, 2012.
In a July 20, 2012 report, Dr. Harry Goldmark, a Board-certified orthopedic surgeon,
noted that on June 30, 2012 appellant injured his right shoulder at work while performing lifting
and external rotation. He provided examination findings and listed an impression of right
shoulder strain and possible labral tear. In a July 23, 2013 form report, Dr. Goldmark noted the
injury occurred on June 30, 2012 while appellant was at work. He diagnosed a coracoclavicular
sprain which he opined, with a check mark “yes,” that the incident appellant described was the
competent medical cause of this injury/illness.
By decision dated August 27, 2012, OWCP denied appellant’s claim. It accepted that the
June 30, 2012 incident occurred as alleged but found that the medical evidence was insufficient
to establish causal relation.
On September 17, 2012 appellant requested reconsideration.
He submitted a
July 16, 2012 magnetic resonance imaging (MRI) scan of the right shoulder. In a July 2, 2012
treatment note, Dr. Jacob noted a history of the injury and diagnosed right shoulder pain. In
July 12, 2012 treatment notes, he listed a diagnosis of right shoulder pain. In a July 20, 2012
treatment note, tendinitis and labral tear were diagnosed.
In an October 17, 2012 report, Dr. Jacob stated that appellant’s treatment notes reflected
her opinion that the work incident caused or aggravated an injury. On July 12, 2012 appellant
informed her that he injured his right shoulder on June 30, 2012 while unloading mail. He had
containers in his hands and, while he was trying to stop a mail tub from falling, his arm became
twisted and he experienced severe pain. Dr. Jacob diagnosed pain and an x-ray showed no
abnormality. She placed appellant out of work due to pain. The July 16, 2012 MRI scan showed
tendinitis and was consistent with a labral tear of the posterior superior labrum with associated
paralabral cyst in the spinoglenoid notch. Dr. Jacob referred appellant to an orthopedic surgeon
for treatment of the labral tear.
By decision dated December 26, 2012, OWCP denied modification of the
August 27, 2012 decision.
On March 8, 2013 appellant requested reconsideration. He submitted a March 8, 2013
statement, indicating that his diagnosis had been established and that he had no prior injuries to
2

his right shoulder.
record.

Appellant submitted duplicative copies of medical evidence already of

In a February 15, 2013 letter, Dr. Jacob advised that appellant sustained a right shoulder
injury at work on June 30, 2012. She stated that the MRI scan of the right shoulder revealed
tendinitis and labral tear of the posterior superior labrum, which she believed resulted from the
incident at work. Dr. Jacob noted that appellant was never evaluated in her office with right
shoulder pain/injury prior to July 2, 2012.
By decision dated June 4, 2013, OWCP denied modification of the December 26, 2012
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 filed within the applicable time
limitation, that an injury was sustained while 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.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.4
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.5 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.6 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
2

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

3

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

4

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

5

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thomas, 56 ECAB 511 (2005).

6

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

in support of the physician’s opinion.7 Neither the mere fact that a disease or condition
manifests itself during a period of employment nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.8
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that on June 30, 2012 appellant was moving flat tubs from the postcon.
The Board finds that the medical evidence of record, while not sufficient to discharge his burden
of proof, is sufficient to require further development.
In a July 20, 2012 report, Dr. Goldmark noted the history of injury and provided an
impression of right shoulder strain and possible labral tear. In a July 23, 2013 report, he
diagnosed a coracoclavicular sprain which he opined, with a check mark “yes,” that the incident
appellant described was the competent medical cause of this injury/illness. Dr. Goldmark failed
to explain how the diagnosed coracoclavicular sprain was caused or aggravated by the accepted
employment incident.
The treatment notes of Dr. Jacob provided an accurate history of the June 30, 2012
incident at work. Following diagnostic testing appellant was diagnosed with tendinitis and labral
tear. On October 17, 2012 Dr. Jacob stated that her treatment notes reflected that her opinion
that the work incident caused or aggravated the claimed injury. She related appellant’s history of
the June 30, 2012 incident noted that an x-ray showed no abnormality but the July 16, 2012 MRI
scan showed tendinitis and was consistent with a labral tear of the posterior superior labrum with
associated paralabral cyst in the spinoglenoid notch. Appellant had never been treated in
Dr. Jacob’s office for a right shoulder injury prior to July 2, 2012. Dr. Jacob examined him and
made diagnoses related to the June 30, 2012 employment incident. Although her reports are
insufficient to establish appellant’s claim as they are lacking in medical rationale to establish
causal relationship between his right shoulder conditions and the accepted employment incident,
they are sufficient to require further development of the case record by OWCP. There was no
contrary medical evidence in the record.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.9 While the medical records do not provide sufficient rationale to discharge appellant’s
burden of proof that the June 30, 2012 incident caused an injury, the reports raise an inference of

7

James Mack, 43 ECAB 321, 329 (1991).

8

Dennis M. Mascarenas, 49 ECAB 215 (1997).

9

L.C., Docket No. 12-941 (issued October 1, 2012); Russell F. Polhemus, 32 ECAB 1066 (1981).

4

injury and causal relationship sufficient to require further development of the case record by
OWCP.10
On remand, OWCP should refer appellant, the case record and a statement of accepted
facts to the appropriate specialist for an evaluation and a rationalized medical condition
regarding his condition. After such further development of the case record as OWCP deems
necessary, a de novo decision shall be issued.11
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2013 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this opinion.
Issued: June 11, 2014
Washington, DC

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

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

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

10

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

11

Due to the disposition of this case, appellant’s arguments on appeal will not be addressed.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dublin, GA, Employer
__________________________________________

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

Docket No. 17-1690
Issued: December 27, 2017

Case Submitted on the Record

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

On August 2, 2017 appellant, through counsel, filed an appeal from an April 24, 2017
decision of the Office of Workers’ Compensation Programs (OWCP) in which an OWCP
hearing representative affirmed a July 12, 2016 decision that denied appellant’s claim for wageloss compensation from February 18 to May 16, 2016. Counsel asserted that OWCP relied on
appellant’s other claims in denying the instant claim.2 The appeal was docketed as No. 17-1690.
On July 8, 2015 appellant, then a 50-year-old nursing assistant, was injured in a slip and
fall at work. OWCP accepted lumbar sprain, contusions of the right hip, right knee, and right
wrist as well as strains of the hand and right hip. In February 18, 2016 reports, Dr. Dwayne L.
Clay, an attending Board-certified physiatrist, advised that appellant should be off work due to
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

The record indicates that appellant has three other FECA claims.

her injuries and indicated that she was awaiting right total hip replacement surgery. He
continued to advise that appellant could not work due to these conditions. By decision dated
July 12, 2016, OWCP denied the claim for wage-loss compensation for the period February 18 to
May 16, 2016, finding that the medical evidence was insufficient to establish causal relationship.
Counsel timely requested a hearing with OWCP’s Branch of Hearings and Review. Dr. Clay
continued to submit reports advising that appellant remained totally disabled.3 On August 19,
2016 he indicated that a February 1, 2007 injury, was accepted for herniated disc injury led to
right hip and lower extremity problems and opined that this caused her current disability and
necessitated a right total hip arthroplasty. A hearing was held on February 27, 2017.4 In the
April 24, 2017 decision, the hearing representative noted the conditions accepted in the instant
claim, File No. xxxxxx448. He also referenced extensive medical evidence found in File No.
xxxxxx204, and discussed the accepted conditions and a job description found in that claim. In
affirming the July 12, 2016 decision, the hearing representative relied on evidence from File No.
xxxxxx204.
The Board finds that the case is not in posture for decision. Pursuant to 20 C.F.R.
§ 501.2(c)(1), 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. Decisions on claims are based on the written
record, which may include forms, reports, letters, and other evidence of various types such as
photographs, videotapes or drawings.5 Evidence may not be incorporated by reference, nor may
evidence from another claimant’s case file be used.6 Evidence contained in another of the
claimant’s case files may be used, but a copy of that evidence should be placed into the case file
being adjudicated.7 All evidence that forms the basis of a decision must be in that claimant’s
case record.8
The hearing representative’s April 24, 2017 decision referenced evidence associated with
OWCP File No. xxxxxx204.9 He discussed reports from Dr. Everett Walker, Board-certified in
preventive medicine, Dr. Wayne Beveridge, a Board-certified neurosurgeon, and Dr. C. Thomas
Hopkins, Board-certified in orthopedic surgery. The hearing representative relied on this
medical evidence in denying appellant’s claim. He, however, neglected to enter the referenced
evidence into the current case record, File No. xxxxxx448. Due to this oversight, the Board is
3

In duty status reports (Form CA-17) dated June 13 and July 13, 2016, Dr. Clay referenced OWCP File No.
xxxxxx204, and in correspondence dated August 19, 2016 he referenced File No. xxxxxx390. OWCP adjudicated
the instant claim under File No. xxxxxx448.
4

During the hearing appellant testified that, at the time of the July 8, 2015 injury, she was working in a sedentary
position for four hours daily answering a telephone. She indicated that she had performed this job since 2007 and
that she continued to receive wage-loss compensation under another claim for four hours daily.
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
6

Id.

7

Id.

8

Id.

9

Supra note 2.

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not in a position to make an informed decision regarding appellant’s claim for disability
compensation for the period February 18 to May 16, 2016.10
Since the record lacks sufficient evidence for the Board to render an informed decision,
the case shall be remanded to OWCP for further development. As noted, all evidence that forms
the basis of a decision must be included in the case record.11 After OWCP has developed the
record consistent with the above-noted directive, it shall issue a de novo decision regarding
appellant’s claim for disability compensation.12
IT IS HEREBY ORDERED THAT the April 24, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: December 27, 2017
Washington, DC

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

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

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

10

See L.W., Docket No. 17-0526 (issued May 12, 2017).

11

Supra note 5.

12

See J.B., Docket No. 17-1356 (issued October 4, 2017).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stratford, CT, Employer
__________________________________________

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Appearances:
William Bothwell, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1350
Issued: December 12, 2018

Case Submitted on the Record

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

JURISDICTION
On June 7, 2017 appellant, through her representative, filed a timely appeal from a
January 6, 2017 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
3

5 U.S.C. § 8101 et seq.

The Board notes that following the January 6, 2017 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 her burden of proof to establish more than one
percent permanent impairment of her left lower extremity, for which she previously received a
schedule award.
FACTUAL HISTORY
On February 9, 2010 appellant, a 43-year-old letter carrier, filed an occupational disease
claim (Form CA-2), alleging that she developed “[t]arsal tunnel syndrome, and plantar fasciitis”
due to factors of her federal employment, which included walking, walking up and down stairs,
walking on hard and uneven terrain, and standing on a cement floor. OWCP accepted the claim
for left tarsal tunnel syndrome and bilateral calcaneal spurs. Appellant underwent three OWCPauthorized surgeries: a left tarsal tunnel release and radical plantar fasciotomy on May 18, 2010;
an excision of left plantar calcaneal spur with fasciectomy and radical fasciectomy for plantar
fibromatosis of the left arch on February 1, 2011; and a removal of plantar calcaneal spur on
March 5, 2013. OWCP placed her on the periodic compensation rolls as of June 6, 2010.
Appellant returned to full-time regular-duty work on May 7, 2013.
On September 17, 2013 appellant filed a claim for a schedule award (Form CA-7). She
submitted a September 9, 2013 report of Dr. Martin Pressman, a podiatrist, who opined that she
had 16 percent permanent impairment of the left foot based on the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4
In another September 9, 2013 report, Dr. Pressman indicated that appellant had been
evaluated for maximum medical improvement (MMI) of her left foot. Utilizing Table 16-2 of the
A.M.A., Guides, he determined that appellant had a class 2 moderate problem under the muscle
tendon diagnostic key factor area, which equaled 16 percent permanent impairment of the left foot.
On April 25, 2014 Dr. Morley Slutsky, an OWCP district medical adviser (DMA) and
Board-certified occupational medicine specialist, reviewed the medical evidence of record and
found that Dr. Pressman’s impairment rating was not justified or consistent with impairment
methods described in the A.M.A., Guides and there were no objective physical examination
findings upon which to base an impairment rating. He recommended a second opinion evaluation
to determine appellant’s employment-related permanent impairment.
In a July 15, 2014 report, Dr. Pressman reiterated his opinion that appellant had 16 percent
permanent impairment of the left foot based on Table 16-2 located on page 501 of the A.M.A.,
Guides. He determined that appellant’s left foot condition was “similar to and equivalent to the
Strained Tendinosis Grid class 2, moderate flexible deformity, and loss of in this case fascial
function with scarring and fibromastosis.”
On July 25, 2014 Dr. Slutsky continued to find that Dr. Pressman’s impairment rating was
not justified or consistent with impairment rating methods proscribed in the A.M.A., Guides and
there were no objective physical examination findings upon which to base an impairment rating.

4

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

2

He again recommended a second opinion evaluation to determine appellant’s permanent
impairment.
OWCP referred appellant to Dr. Balazs B. Somogyi, a Board-certified orthopedic surgeon,
for a second opinion examination to determine her employment-related permanent impairment. In
his September 10, 2014 report, Dr. Somogyi found that appellant had reached MMI. He indicated
that the permanent impairment evaluation was based on Table 3-1, page 40, of the A.M.A., Guides.
The pain pattern was noted to be moderate in nature with the pain disability score between 71 and
100, which resulted in one percent whole person impairment.
In a supplemental report dated September 29, 2014, Dr. Somogyi explained that
appellant’s one percent whole person impairment was equivalent to two percent impairment of the
left lower extremity when using the conversion Table 16-10, page 530, of the A.M.A., Guides.
On October 24, 2014 Dr. Slutsky found that Dr. Somogyi’s rating was based on pain using
Chapter 3, which was unacceptable because pain was already incorporated into the ratings for the
accepted diagnoses using the impairment grids in the lower extremity chapter.
In another supplemental report dated June 26, 2015, Dr. Somogyi used Table 16-2 of the
A.M.A., Guides at page 503, to determine that appellant had a left lower extremity impairment
under fracture/dislocation diagnostic class. He explained that the fracture impairment grade was
used since in essence fracture was created when the calcaneus spur was removed. Dr. Somogyi
opined that appellant had five percent permanent impairment of the left lower extremity for her
class 1 calcaneus condition. He further submitted a July 16, 2015 report indicating that his initial
impairment rating based on pain should be discarded.
Appellant submitted progress reports dated September 21, 2015, February 4 and 25, and
May 23, 2016 from Dr. Pressman who diagnosed fibrosis and scar of the left arch.
On October 7, 2015 Dr. David I. Krohn, a Board-certified internist serving as OWCP’s
DMA, reviewed the medical evidence of record and determined that appellant’s date of MMI was
July 15, 2014, the date that Dr. Pressman found that appellant’s condition had stabilized and
assigned an impairment rating of appellant’s left foot. He explained that Dr. Somogyi’s second
opinion reports failed to utilize an accepted diagnosis for his impairment rating as “no fracture of
the calcaneus was diagnosed prior to treatment.” Dr. Krohn concluded that there was no basis in
the A.M.A., Guides for an assignment of appellant’s permanent impairment rating for either the
left or right lower extremity.
On February 3, 2016 OWCP found a conflict of medical opinion between its second
opinion physician, Dr. Somogyi, and its DMA, Dr. Krohn, due to a disagreement of permanent
rating assignment for diagnosed conditions of left lower extremity.5
On February 22, 2016 OWCP referred appellant to Dr. David B. Brown, a Board-certified
orthopedic surgeon, for a referee examination to resolve the conflict.

5
The Board notes that this appears to have been a typographical error as the January 6, 2017 hearing representative
decision correctly noted the conflict as being between Dr. Krohn and Dr. Pressman.

3

In his March 14, 2016 referee examination, Dr. Brown reviewed a statement of accepted
facts (SOAF) and appellant’s medical history and records. He noted an accurate history and workrelated diagnoses of left tarsal tunnel release, excision of left calcaneal spur, and excision of left
plantar fibromatosis. Dr. Brown conducted a physical examination and found that appellant
offered no complaints to the right foot and there was zero percent impairment of the right foot.
Regarding the left foot, he found a well-healed scar over the left heel, a curvilinear scar extending
just posterior to the medial malleolus, and a longitudinal scar over the medial plantar foot. There
was not bony deformity of the ankle or foot. There was no soft tissue swelling. The overlying
skin was not red or warm. There was some tenderness of the incision just posterior to the medial
malleolus, but the Tinel’s sign was negative. There was normal dorsalis pedis and posterior tibial
pulses with excellent capillary return to the nail beds. There was normal skin sensibility. Active
ankle motion was 20 degrees of dorsiflexion with 40 degrees of plantar flexion. There was 10
degrees of passive pronation and 20 degrees of passive supination. Inversion and eversion of the
forefoot was done to about 10 degrees in either direction and were accompanied by some mild
mid-foot pain. There was mild heel pain on passive dorsiflexion of the foot on direct heel
compression and mild tenderness over the medial aspect of the foot. There was no significant
neurologic deficit and the ankle reflex was diminished. Dr. Brown concluded that appellant had a
one percent whole person impairment or a one percent permanent impairment of the left lower
extremity. Utilizing Chapter 3, page 31, of the A.M.A., Guides, he found that the pain-related
impairment needed to be framed within the context of appellant’s subjective complaints of pain
without any significant neurologic deficit and he opined that appellant’s complaints of pain were
consistent with the surgical procedures performed. Dr. Brown explained that this conclusion was
further illustrated in the example in section 3.6 wherein complaints of pain to the right foot and
ankle following an ankle sprain were noted to be subjective without prominent objective findings
and in the absence of physical findings. He asserted that this example noted a pain-related
impairment of “[one] percent whole person.” Dr. Brown opined that the example noted was quite
similar to appellant in regard to her left foot surgeries with ongoing pain, but with limited physical
findings. He found that appellant did have a complaint of aching soreness to the left foot which
was causally related to her work activities over the past 20 years as a letter carrier and he agreed
with Dr. Somogyi that there was a one percent whole person impairment due to surgical treatment
to the left foot causally related to her cumulative trauma as a letter carrier. With reference to the
pain disability questionnaire (PDQ), Dr. Brown found there to be a moderate disability of 71 with
the grade modifier 1 as noted in Table 17-A, page 599. With reference to Table 16-10, page 530,
he found that appellant’s one percent whole person impairment would convert to a one percent left
lower extremity impairment. Dr. Brown determined that appellant had reached MMI as of
March 5, 2014, one year following the date of her last surgery.
On April 15, 2016 Dr. Herbert White, Jr., a DMA for OWCP and Board-certified
occupational medicine specialist, reviewed the medical evidence of record and concurred with
Dr. Brown’s MMI date of March 5, 2014. He also concurred with Dr. Brown’s impairment rating.
Dr. White explained that the use of Chapter 3’s pain-related impairment (PRI) system was
appropriately applied in this case because appellant presented with a painful condition that could
not be rated according to principles outlined in Chapters 4 to 17. Appellant’s calcaneal spurs could
not be rated in the foot section because there was no appropriate grid. Based on Dr. Brown’s
objective findings, the DMA concluded that appellant had one percent permanent impairment of
the left lower extremity.

4

By decision dated July 7, 2016, OWCP granted appellant a schedule award for one percent
permanent impairment of the left lower extremity. The award ran for 2.88 weeks for the period
March 5 to 25, 2014.
On August 3, 2016 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
Appellant subsequently submitted a November 2, 2016 progress report from Dr. Pressman
who continued to diagnose fibrosis and scar left arch. He also diagnosed tarsal tunnel cicatrix
without nerve pain.
On November 18, 2016 appellant’s representative requested a review of the written record
in lieu of an oral hearing.
In a December 2, 2016 statement, appellant’s representative argued that appellant’s list of
accepted conditions should be expanded and then an appropriate decision should be issued
regarding the extent of her lower extremity impairment.
By decision dated January 6, 2017, an OWCP hearing representative conducted a review
of the written record and affirmed the prior schedule award decision. He found that OWCP had
properly determined that a conflict existed between the opinions of Drs. Krohn and Pressman, and
in order to resolve such conflict it properly referred appellant to Dr. Brown for a referee medical
examination. The hearing representative affirmed the July 7, 2016 decision, which granted
appellant a schedule award for one percent permanent impairment of her left lower extremity,
according to the special weight of the medical evidence to Dr. Brown’s referee opinion.
LEGAL PRECEDENT
The schedule award provisions of FECA6 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.7 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2009.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability

6

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

7

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also 5 U.S.C. § 8107.

8
See D.T., Docket No. 12-0503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.6a (March 2017); see also Part 3 -- Medical,
Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

5

and Health (ICF).9 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX) condition, which is then adjusted by grade modifiers based on functional history
(GMFH), physical examination (GMPE), and clinical studies (GMCS).10 The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). Evaluators are directed to provide
reasons for their impairment rating choices, including the choices of diagnoses from regional grids
and calculations of modifier scores.11
ANALYSIS
The Board finds that this case is not in posture for a decision.
OWCP accepted that appellant developed left tarsal tunnel syndrome and bilateral
calcaneal spurs due to factors of her federal employment. After appellant underwent three
authorized left foot surgeries, it granted her a schedule award for one percent permanent
impairment of the left lower extremity. It is appellant’s burden of proof to submit sufficient
evidence to establish the extent of permanent impairment.12
The sixth edition of the A.M.A., Guides allows for a maximum three percent impairment
rating for nonspecific pain that cannot be attributed to a condition addressed elsewhere in the
A.M.A., Guides. According to section 3.3b, patients’ responses on functional assessment
instruments will act as modifiers of the percentage impairment they are awarded, but the awards
will, in general, primarily reflect objective factors. This is in keeping with the general strategy of
the A.M.A., Guides to consider pain-related impairment, but to limit the amount of impairment
that is awarded for subjective factors. In no circumstances should the PRIs developed using this
chapter be considered as an add-on to impairment determinations based on the criteria listed in
Chapter 4 to 17. In essence, the PRIs derived according to this chapter are determined in a standalone fashion.13 Examiners should not use Chapter 3 to rate pain-related impairments for any
condition that can be adequately rated on the basis of the body and organ impairment systems
given in other chapters of the A.M.A., Guides.14
In the instant case, Dr. Brown referenced Chapter 3, page 31, of the A.M.A., Guides and
found that the pain-related impairment needed to be framed within the context of appellant’s
subjective complaints of pain without any significant neurologic deficit and he opined that
appellant’s complaints of pain were consistent with the surgical procedures performed. He
explained that his conclusion was illustrated in the example in section 3.6 wherein complaints of
pain to the right foot and ankle following an ankle sprain were noted to be subjective without
9
A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
10

Id. at 494-531.

11

See R.V., Docket No. 10-1827 (issued April 1, 2011).

12

See Annette M. Dent, 44 ECAB 403 (1993).

13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1.6
(January 2010); see also M.R., Docket No. 10-0862 (issued December 23, 2010).
14

Id.

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prominent objective findings and in the absence of physical findings. Dr. Brown asserted that this
example noted a PRI of “one percent whole person.” He opined that the example noted was quite
similar to appellant with regard to her left foot surgeries with ongoing pain, but with limited
physical findings. The Board finds, however, that Dr. Brown’s objective findings also included
that active ankle motion was 20 degrees of dorsiflexion with 40 degrees of plantar flexion. There
was 10 degrees of passive pronation and 20 degrees of passive supination. Inversion and eversion
of the forefoot was done to about 10 degrees in either direction and were accompanied by some
mild mid-foot pain. There was mild heel pain on passive dorsiflexion of the foot on direct heel
compression and the ankle reflex was diminished. Moreover, with reference to appellant’s PDQ
score of 71, Dr. Brown utilized Table 17-A on page 599 of Chapter 17 of the A.M.A., Guides,
which is inappropriate as the PRI method utilizes Chapter 3 of the A.M.A., Guides.
The Board finds that Dr. Brown’s impairment rating does not comport with the PRI method
because it failed to use the appropriate tables and failed to identify nonspecific pain that could not
be attributed to a condition addressed elsewhere in the A.M.A., Guides. Specifically, it failed to
address how the objective range of motion findings impacted appellant’s percentage of permanent
impairment based on his accepted conditions of left tarsal tunnel syndrome and bilateral calcaneal
spurs. Lacking further discussion, the Board finds that this assessment was not appropriate.15
Consequently, the Board finds that Dr. Brown’s impairment rating based on the PRI system does
not comport with OWCP’s procedures and is insufficient to establish any permanent impairment.16
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden to establish entitlement to compensation; however, OWCP
shares responsibility in the development of the evidence to see that justice is done.17 Once OWCP
undertakes development of the record, it must do a complete job in procuring medical evidence
that will resolve the relevant issues in the case.18 In view of the above-noted deficiencies regarding
the findings of Dr. Brown, the decision shall be set aside and the case remanded for further medical
development regarding entitlement to an increased schedule award. Following this and any other
further development as deemed necessary, OWCP shall issue a de novo decision on appellant’s
schedule award claim.
CONCLUSION
The case is not in posture for decision.

15

See M.R., supra note 13.

16

M.M., Docket No. 17-0197 (issued May 1, 2018).

17

William J. Cantrell, 34 ECAB 1223 (1983).

18

Richard F. Williams, 55 ECAB 343, 346 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the January 6, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: December 12, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
_______________________________________
R.B., Appellant
and
DEPARTMENT OF THE NAVY,
Camp Pendleton, CA, Employer
_______________________________________

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

Docket No. 13-2040
Issued: February 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 6, 2013 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) schedule award decision dated July 5, 2013. 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 more than a 10 percent permanent impairment to his
right and left upper extremities.
FACTUAL HISTORY
Appellant, a 53-year-old mail carrier, injured his neck and right shoulder on April 9, 1998
while unloading plywood from a flatbed truck. He filed a claim for benefits under case number
xxxxxx881, which OWCP accepted for right shoulder sprain, cervical spondylosis and cervical
1

5 U.S.C. § 8101 et seq.

vertebral fracture. On December 14, 1998 appellant filed a claim for bilateral carpal tunnel
syndrome, causally related to employment factors, under case number xxxxxx545. OWCP
accepted bilateral carpal tunnel syndrome. Appellant underwent a right carpal tunnel release
procedure on April 9, 1999. On August 16, 1999 he underwent left carpal tunnel release
surgery.2
Appellant filed a claim for a schedule award under case number xxxxxx545 based on a
partial loss of use of his left and right upper extremities due to his accepted bilateral carpal
tunnel condition. By decision dated November 13, 2000, OWCP granted him schedule awards
for 10 percent permanent impairment of both the left and right upper extremities. The awards
were based upon the May 3, 2000 report of Dr. Arthur Harris, a Board-certified orthopedic
surgeon, who rated appellant’s upper extremity impairment related to his accepted bilateral
carpal tunnel syndrome.
On December 6, 2011 appellant underwent cervical discectomy and cervical fusion at
C5-6 and C6-7 for the conditions of cervical spondylosis and cervical radiculopathy. The
procedure was performed by Dr. Jamieson S. Glenn, Board-certified in orthopedic surgery.
Appellant underwent an electromyelogram (EMG) and nerve conduction studies (NCV)
on May 7, 2012 that showed bilateral mild median neuropathies at the wrists; carpal tunnel
syndrome, without denervation changes, with no evidence of a large fiber polyneuropathy, ulnar
neuropathy or C5-Tl radiculopathy in the arms.
In a report dated December 20, 2012, Dr. Glenn stated that appellant had cervical
spondylosis and cervical radicular syndrome, which were now resolved. His status was post
C5-6, C6-7 anterior cervical discectomy and fusion. Dr. Glenn further stated that appellant was
postbilateral carpal tunnel release with residual paresthetic symptoms. He advised that
appellant’s cervical fusion appeared to be solid and that his overall upper extremity symptoms
had significantly improved. Dr. Glenn noted that appellant had ongoing neck discomfort from
mild multilevel spondylosis and myofascial discomfort and status post fusion. He recommended
continued conservative treatment and advised that appellant did not need to limit his daily
activities or work-related requirements.
On March 15, 2013 appellant filed a Form CA-7 claim for an additional schedule award
based on a partial loss of use of his left and right upper extremities.
In a report dated April 22, 2013, Dr. Frederick W. Close, Board-certified in orthopedic
surgery, stated that appellant had a two percent impairment to his left and right upper extremities
based on the accepted bilateral carpal tunnel condition, pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (sixth edition) (A.M.A.,
Guides). He noted the impairment rating under Table 15-23 at page 449 of the A.M.A., Guides.3
Under the heading of “Test Findings,” Dr. Close found that appellant had a grade modifier of 1
based on the May 7, 2012 positive electrodiagnostic studies. Under the heading of “History,” he
2

The hospital report for this procedure is not contained in the instant record.

3

A.M.A., Guides 449.

2

found a grade modifier of 1 based on mild intermittent symptoms of intermittent hypesthesia in
the fingers and hands. Under the heading of “Physical Findings,” appellant had a grade modifier
of 2, for decreased sensation, based on the EMG/NVS testing evidence of mild sensory loss,
median nerves at the wrists. Pursuant to the rating process set forth at page 448, the average
value for these modifiers, based on adding 1 plus 1 plus 2, divided by 3, equaled 1.33; this
rounded off to an average grade of 1, for a mild grade modifier of 1, which yielded an
impairment rating for carpal tunnel syndrome of two percent to each upper extremity.
With regard to appellant’s accepted cervical conditions, Dr. Close found that appellant
had no ratable impairment. He advised that spinal injuries did not constitute a scheduled
member under FECA. Dr. Close noted that Dr. Glenn reported that appellant’s cervical radicular
syndrome had resolved. He stated that appellant had no findings sufficient to rate impairment for
his accepted cervical condition under the guidelines.
In a report dated June 23, 2013, an OWCP medical adviser agreed with Dr. Close’s rating
that appellant had two percent impairment of his left and right upper extremities pursuant to the
sixth edition of the A.M.A., Guides.
By decision dated July 5, 2013, OWCP denied appellant an additional schedule award for
his right and left upper extremities.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 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
appropriate standard for evaluating schedule losses.6 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, for upper extremity impairments the evaluator
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

6

Id.

7

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

8

A.M.A., Guides, supra note 3 at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.

3

identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).9 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).10
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.11 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.12
ANALYSIS
On November 13, 2000 appellant was granted schedule awards for 10 percent impairment
of both the left and right upper extremities due to his accepted carpal tunnel syndrome. He filed
a request for an additional schedule award on March 15, 2013. OWCP denied an additional
schedule award based upon the report of Dr. Close, who found that appellant had two percent
impairment to each upper extremity due to the accepted carpal tunnel syndrome.
The A.M.A., Guides rates diagnosis-based impairment of the upper extremities at
Chapter 15, which states at page 387, Section 15.2 that impairments are defined by class and
grade. This section provides:
“The impairment class [IC] is determined first, by using the corresponding
diagnosis-based regional grid. The grade is then determined using the adjustment
grids provided in Section 15.3.
“Once the impairment class has been determined, based on the diagnosis, the
grade is initially assigned the default value, ‘C.’ The final impairment grade,
within the class, is calculated using the grade modifiers, or nonkey factors, as
described in Section 15.3. Grade modifiers include functional history, physical
examination and clinical studies. The grade modifiers are used on the Net
Adjustment Formula described … in Section at 15.3d to calculate a net
adjustment. The final impairment grade is determined by adjusting the grade up
or down the default value C by the calculated net adjustment. The lowest possible
grade is A, and adjustments less than minus 2 from the default value C will
automatically be considered A; the highest possible grade is E, and adjustments
greater than plus 2 will automatically be considered E. The regional grid is then
9

Id. at 385-419

10

Id. at 411.

11

Id. at 449.

12

Id. at 448-50.

4

consulted again to determine the appropriate impairment value for the selected
class and grade. Grade modifiers allow movement within a class but do not allow
movement into a different class.
“The regional grid is used for 2 purposes: (1) to determine the most appropriate
class for a specific regional diagnosis and (2) to determine the final impairment
after appropriate adjustments are made using the grade modifiers.”13
The regional grid is used for 2 purposes: (1) to determine the most appropriate class for a
specific regional diagnosis; and (2) to determine the final impairment after appropriate
adjustments are made using the grade modifiers.14
With regard to his bilateral carpal tunnel syndrome, Dr. Close advised that appellant had
a grade modifier of 1 for test findings, based on the May 7, 2012 positive electrodiagnostic
findings; a grade 1 modifier for history for mild intermittent symptoms; and a grade 2 modifier
for physical findings, based on decreased sensation. He then properly totaled the modifiers and
found an average of 1, which yielded a two percent impairment for carpal tunnel syndrome in
each upper extremity. Dr. Close relied on the appropriate sections and tables of the A.M.A.,
Guides pertaining to rating impairment based on carpal tunnel syndrome and sufficiently
explained how he arrived at a two percent impairment rating for the right and left upper
extremities.
With regard to peripheral nerve impairments to the upper or lower extremities resulting
from spinal injuries, OWCP procedures indicate that The Guides Newsletter “Rating Spinal
Nerve Extremity Impairment using the sixth edition” (July/August 2009) is to be applied.15 The
Board notes that an impairment rating can be issued based on radiculopathy pursuant to the
July/August 2009 edition of The Guides Newsletter. Dr. Close noted that on examination there
was no basis for an impairment rating based on appellant’s accepted cervical condition. He
noted that Dr. Glenn’s December 2011 cervical discectomy and fusion had resolved appellant’s
cervical radicular syndrome and the medical evidence did not reflect sufficient findings to meet
the standards for rating an impairment for appellant’s cervical condition as set forth in the sixth
edition of the A.M.A., Guides and the July/August 2009 edition of The Guides Newsletter.
OWCP properly denied a schedule award for appellant’s cervical condition.16
The Board finds that appellant has no more than a 10 percent right and left upper
extremity impairment, for which he received a schedule award. OWCP’s medical adviser
concurred with Dr. Close’s assessment that appellant had a two percent right and left upper
13

Id. at 387.

14

Id.

15

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010); supra note 13.
16

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which 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. See Peter C. Belkind, 56 ECAB 580,
585 (2005).

5

extremity impairment under the A.M.A., Guides. There is no other medical evidence of record
addressing permanent impairment under the appropriate edition of the A.M.A., Guides. OWCP
properly found in its July 5, 2013 decision that appellant had no additional permanent
impairment of either the right or left upper extremities.
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 more than a 10 percent permanent impairment of the
right and left upper extremities, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the July 5, 2013 decision of the Office of Workers’
Compensation Programs be affirmed.
Issued: February 5, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Dallas, TX, Employer
__________________________________________

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

Docket No. 13-1623
Issued: April 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 28, 2013 appellant filed a timely appeal from the March 12 and June 12, 2013
merit decisions 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.
ISSUES
The issues are: (1) whether appellant sustained a left knee condition as a consequence of
her August 2, 2008 employment-related injuries; and (2) whether she sustained a recurrence of
disability on September 28, 2012 causally related to the accepted employment injuries.
On appeal, appellant contends that she sustained left knee and foot injuries as a
consequence of her accepted employment-related right knee injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on August 2, 2008 appellant, then a 42-year-old transportation
security officer, sustained osteoarthritis of the lower right leg and lateral and medial meniscus
tears and chondromalacia patella of the right knee when she moved a bag from an examination
table to a conveyor belt.2 It authorized arthroscopic partial medial and lateral meniscectomies,
chondroplasty of the patella, femur and tibia and major synovectomy in multiple compartments
of the right knee, which were performed on May 18, 2009 and total right knee replacement
which was performed on March 30, 2011. On April 26, 2011 appellant underwent surgery to
treat osteoarthritis of the right knee.
On September 17, 2012 appellant returned to limited-duty work as a transportation
security officer.
On October 11, 2012 appellant filed a claim alleging that she sustained a recurrence of
disability on September 28, 2012. She did not stop work. Appellant stated that, following her
accepted August 2, 2008 employment injuries, she was assigned limited duties due to the
requirements of her job and the location of her injury, which caused increased use of her
opposite leg. She related that she began to experience pain in her left knee that came and went
until it increased and her knee swelled. Appellant then sought treatment at an emergency room.
She stated that she continued to favor her right knee which put more strain on her left knee and
caused an injury to that knee.
The employing establishment controverted the claim, contending that appellant never
sustained a left knee injury. It further contended that she did not submit any additional medical
evidence or restrictions for the knee injury.
In an October 19, 2012 medical report, Dr. Jason A. Conrad, a Board-certified
radiologist, advised that a magnetic resonance imaging scan of appellant’s left knee revealed a
medial meniscal tear and no other evidence of internal derangement. He further advised that she
had tricompartmental osteoarthrosis that was moderate in the medial compartment, mild in the
patellofemoral joint and minimal in the lateral compartment. Appellant also had moderate-sized
knee effusion mild synovitis and a moderate-sized complex popliteal/Baker’s cyst.
By letter dated October 30, 2012, OWCP requested that appellant submit additional
factual and medical evidence, including a rationalized medical opinion from an attending
physician explaining the causal relationship between her current condition and the accepted
employment injuries.
In a certificate of medical necessity and prescription dated June 17, 2011, Dr. Steven B.
Sanders, a Board-certified orthopedic surgeon, advised that appellant had osteoarthritis and was
status post knee replacement.

2

By decision dated October 29, 2012, OWCP granted appellant a schedule award for 21 percent impairment of
the right lower extremity.

2

In an April 30, 2012 progress note, Michael E. Nicholas, a certified physician’s assistant
(PA-C), related that appellant was postoperative right knee joint replacement. In progress notes
dated October 11 and 24, 2012, Dana A. Petersen, advanced practical nurse, and Mr. Nicholas,
respectively, stated that appellant had a medial meniscus tear and arthritis of the left knee.
On October 6, 2012 Dr. Bart E. Petrini, a Board-certified radiologist, reported that an
ultrasound of the left lower extremity revealed no evidence of deep venous thrombosis. He
advised that there was a Baker’s cyst. Also on October 6, 2012 Dr. Petrini reported that an x-ray
of the left knee showed moderate degenerative changes affecting the right knee.
In a November 6, 2012 report, Dr. Tom G. Mayer, a Board-certified orthopedic surgeon,
noted that appellant was injured at work on August 2, 2008. He stated that a review of her
systems, medical, family and social history were unchanged. Dr. Mayer related that appellant
was being evaluated for surgery to be performed by Dr. Sanders on November 15, 2012 to treat a
nonwork-related left knee injury. He noted that OWCP was going to determine whether the left
knee condition was work related as there was no incident outside of work that could have caused
the condition. Dr. Mayer reported that appellant had limited range of motion in the right knee
area with swelling and erythema. He diagnosed chronic compensable right knee pain.
In a December 20, 2012 decision, OWCP denied appellant’s recurrence claim. The
medical evidence was found insufficient to establish the claimed disability of September 28,
2012 or that she sustained a left knee injury as a consequence of her accepted August 2, 2008
employment injuries.
On January 11, 2013 appellant requested a telephone hearing with an OWCP hearing
representative, but withdrew her request and sought reconsideration on January 14, 2013.
In a January 14, 2013 report, Dr. Mayer noted that appellant was injured at work on
August 2, 2008. He obtained a history of her medical treatment, which included surgery on her
noncompensable left knee condition under her private insurance as it was not covered by OWCP.
Dr. Mayer noted that appellant was being treated for a compensable right knee injury. He
advised that she had no restrictions and was capable of performing her full-time, full-duty job at
the employing establishment. Dr. Mayer reiterated his prior finding that appellant had limited
range of motion in the right knee area and diagnosis of chronic compensable right knee pain. In
a February 12, 2013 report, he indicated that she was being treated for a flare-up of right knee
pain. On examination of the knee, Dr. Mayer reported a continued severe positive patellar
compression test with subpatellar crepitus and particularly lateral tilt of the patella with more
medial tenderness.
In a February 27, 2013 report, Dr. Sanders obtained a history that it was almost two years
since appellant’s right total knee arthroplasty. She still had pain and discomfort with walking,
standing and prolonged sitting. Dr. Sanders listed findings on examination and made an
assessment of right knee joint replacement. Also on February 27, 2013 he advised, in a duty
status report, that appellant’s work status would be determined by “Pride Rehab.”
In a March 12, 2013 decision, OWCP denied modification of the December 20, 2012
decision.

3

On April 26, 2013 appellant requested reconsideration.
In an April 6, 2010 report, Kristina White-Ippolito, PA-C, stated that appellant had left
plantar fasciitis and right knee osteoarthritis. She was status post right knee arthroscopy with
chondroplasty and partial and lateral meniscectomies.
In reports dated January 10, 2011 and August 23, 2012, Mr. Nicholas stated that appellant
had left knee osteoarthritis and left foot plantar fasciitis, respectively.
An April 15, 2013 report cosigned by Maile Shea, a registered nurse, and Dr. Mayer
noted that appellant was injured at work on August 2, 2008. Appellant’s medical treatment and
right knee pain were also noted. She was diagnosed as having erythema, swelling and pain in
her right knee.
In a June 6, 2013 report, Dr. Sanders again advised that appellant had undergone right
knee joint replacement. Appellant had soft tissue discomfort around the right knee. Dr. Sanders
advised that her total knee implants were stable and appropriately functioning.
In a June 12, 2013 decision, OWCP denied modification of the March 12, 2013 decision.
LEGAL PRECEDENT -- ISSUES 1 & 2
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.3 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force) or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.4
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden to establish by the weight of the reliable, probative and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the limited-duty job requirements.5

3

20 C.F.R. § 10.5(x).

4

Id.

5

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Barry C. Peterson, 52 ECAB 120 (2000); Terry R. Hedman, 38
ECAB 222, 227 (1986).

4

To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.6
ANALYSIS -- ISSUES 1 & 2
The Board finds that appellant failed to submit sufficient medical evidence providing a
rationalized, probative opinion which related her claimed recurrence of disability as of
September 28, 2012 to her accepted right knee conditions. For this reason, appellant has not
discharged her burden of proof to establish that she sustained a recurrence as a result of her
accepted right knee conditions.
Appellant has not alleged a recurrence of disability as a result of a change in the nature
and extent of her limited-duty job requirements. Also, she has not alleged a recurrence of
disability due to a change in the nature and extent of her August 2, 2008 employment-related
right knee conditions. Rather, appellant has alleged that these accepted conditions caused her to
increase the use of her left leg which caused her left knee condition. She is essentially alleging a
consequential injury.7 Appellant did not submit a medical report from a physician which
addresses how her current left knee condition was caused by the accepted conditions.
Dr. Mayer’s November 6, 2012 and January 14, 2013 reports noted the August 2, 2008
employment injury and stated that appellant underwent surgery to treat a nonwork-related left
knee injury. He listed examination findings and diagnosed chronic compensable right knee pain
but provided no explanation as to how or why this pain was so debilitating as to preclude her
from working. Similarly, in his February 12 and April 15, 2013 reports, Dr. Mayer noted the
August 2, 2008 employment injury and found that appellant had pain, erythema and swelling in
her right knee, but provided no left knee diagnosis or opinion on causal relationship between the
diagnosed condition and any resultant disability and the accepted injuries. The Board finds that
Dr. Mayer’s reports are insufficient to establish that she has a disabling left knee condition
consequential to her accepted employment injuries. Moreover, it finds that his reports fail to
establish that appellant sustained a recurrence of disability causally related to the accepted
employment injuries.
The Board finds that Dr. Sanders’ certificate of medical necessity, prescription and
reports are also insufficient to establish that appellant has a disabling left knee injury as a
consequence of the accepted work injuries. Dr. Sanders found that she had right knee
osteoarthritis and was status post knee joint replacement, but did not diagnose a left knee
condition causally related to the employment injuries. He also did not offer an opinion on
appellant’s work status as he stated that a determination regarding this matter would be
determined by a rehabilitation facility.
6

James H. Botts, 50 ECAB 265 (1999).

7

A consequential injury is an injury that is the direct and natural result of a compensable primary injury, without
an independent intervening cause. See Albert F. Ranieri, 55 ECAB 598 (2004); J.M., Docket No. 13-1668 (issued
January 6, 2014).

5

The diagnostic test results of Dr. Conrad and Dr. Petrini addressed appellant’s left knee
and leg conditions, but did not provide an opinion addressing whether the diagnosed conditions
and any resultant disability were caused by the August 2, 2008 employment-related injuries.
Medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value.8 The Board finds, therefore, that the reports of
Drs. Conrad and Petrini are insufficient to establish appellant’s claims.
The progress notes and reports of Mr. Nicholas and Ms. White-Ippolito, physician’s
assistants and Ms. Petersen, an advanced practical nurse, are of no probative value in
establishing appellant’s claim as neither a physician’s assistant nor a practical nurse is a
physician as defined under FECA.9
As the medical opinion evidence fails to establish that appellant sustained a left knee
condition as a consequence of her accepted August 2, 2008 employment injuries or a recurrence
of disability causally related to the accepted employment injuries, the Board finds that she has
not met her burden of proof.
On appeal, appellant contended that she sustained left knee and foot injuries as a
consequence of her accepted employment-related right knee injuries. For reasons stated, the
Board finds that she did not submit any rationalized medical evidence to establish that she
sustained an additional condition that was caused, aggravated or a consequence of the accepted
employment injuries.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a consequential
left knee condition. The Board further finds that she failed to establish a recurrence of disability
as of September 28, 2012 causally related to her accepted right knee injuries.

8

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

9

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law).

6

ORDER
IT IS HEREBY ORDERED THAT the June 12 and March 12, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 3, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.E., Appellant
and
U.S. POSTAL SERVICE, BEN FRANKLIN
STATION, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-963
Issued: August 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 19, 2014 appellant, through his attorney, filed a timely appeal from a
January 27, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his request for surgical authorization.
Pursuant to the Federal Employees’
1
Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for authorization for
right knee surgery.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated December 19, 2011,
the Board affirmed a November 18, 2010 decision rescinding a finding that appellant had more
1

5 U.S.C. § 8101 et seq.

than a 54 percent permanent impairment of the left lower extremity.2 The Board found that the
medical evidence established that he had no more than a 37 percent left lower extremity
impairment and was not entitled to an additional schedule award. The facts and circumstances as
set forth in the prior decision are hereby incorporated by reference. The facts relevant to this
appeal are set forth.
In a report dated July 6, 2012, Dr. Rida N. Azer, a Board-certified orthopedic surgeon,
discussed appellant’s complaint of increased pain in the right knee. He diagnosed right knee
traumatic synovitis and a probable tear of the medial meniscus. Dr. Azer attributed the right
knee condition to increased weight bearing as a result of appellant’s left knee injury.
On August 7, 2012 Dr. Azer performed a partial synovectomy, partial medial
meniscectomy, abrasive arthroplasty and patella shaving of the right knee. He determined that
appellant required a total knee replacement.
On September 20, 2012 appellant requested that OWCP accept that he sustained a
consequential injury to his right knee due to his accepted left knee injury.
In a progress report dated October 10, 2012, Dr. Azer opined that x-rays of the right knee
showed tricompartmental arthritic changes. He recommended a right knee total replacement.
Dr. Azer stated, “[Appellant’s] condition, the recommended treatment and residuals are caused
by his work injury of August 27, 1984.” On November 9 and 23, 2012 he again recommended a
right total knee replacement necessitated by the August 27, 1984 work injury.
In a report dated December 21, 2012, Dr. Azer related that he performed a revision of
appellant’s left total knee replacement on July 20, 2006. He stated, “[Appellant’s] work injury of
August 27, 1984 resulted in the excess wear and tear of the right knee, which for 28 years has
been carrying much more load and wear and tear and has now reached a stage to need a right
total knee replacement. [He] will be scheduled for a right total knee replacement caused by the
work injury of August 27, 1984.”
On March 29, 2013 Dr. Lawrence A. Manning, an OWCP medical adviser, noted that
appellant injured his left knee on August 27, 1984 and subsequently underwent multiple left knee
surgeries. Dr. Azer first diagnosed a degenerative right knee condition in May 2008, almost
25 years after the injury. Dr. Manning found that the right knee condition might be a progression
of degenerative arthritis and recommended a second opinion evaluation to determine whether it
resulted from “a natural progression or is secondary to increased stress on his knee due to the
contralateral knee injury.”
On May 7, 2013 OWCP referred appellant to Dr. Kevin Hanley, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated May 20, 2013,
2

Docket No. 11-834 (issued December 19, 2011) OWCP accepted that on August 27, 1984 appellant, then a
44-year-old carrier, sustained a torn medial meniscus of the left knee in the performance of duty. It further accepted
arthropathy of the left lower leg, complications due to internal joint prosthesis and effusion of the left lower leg
joint. Appellant underwent multiple surgeries on the left knee, including a total knee replacement in
September 2003 and a revision of a left total knee replacement in July 2006.

2

Dr. Hanley discussed appellant’s history of a left knee injury in August 1984 resulting in a total
knee replacement in 2003 and revision in 2006. He noted that in 2008 he experienced right knee
symptoms that increased overtime. Dr. Hanley diagnosed right knee degenerative arthritis. He
stated:
“[Appellant] has degenerative joint disease of the right knee which is probably
approaching its end stages and could be definitely treated at this time with total
knee replacement. However, this diagnosis of degenerative arthritis of the right
knee has absolutely no relationship either by direct cause, aggravation,
precipitation or acceleration to his original injury of August 27, 1984. That injury
was a specific injury to the left knee that caused a meniscus tear requiring
treatment and intervention. [Appellant] has gone on to develop degenerative
disease in the other knee and apparently both hips as well as a consequence of the
natural aging process.”
Dr. Hanley advised that appellant might be predisposed to degenerative disc disease due
to his large size. He further noted that appellant did not experience symptoms on the right side
for 15 years after the injury. Dr. Hanley stated, “The concept of ‘injuring the right knee because
he put too much weight on it’ is a weak and time-worn excuse in people that are already
susceptible to the development of degenerative disease.”
By decision dated July 18, 2013, OWCP denied appellant’s request for authorization for a
right total knee replacement. It found that Dr. Hanley’s report constituted the weight of the
medical evidence and established that his left knee injury did not cause or contribute to his right
knee condition. Thus, the requested surgery was not causally related to the August 27, 1984
work injury.
On July 31, 2013 appellant, through his attorney, requested a telephone hearing before an
OWCP hearing representative.
In a progress report dated September 6, 2013, Dr. Azer discussed appellant’s lumbar and
bilateral knee conditions. He advised that appellant’s August 27, 1984 employment injury
resulted in an “unbalanced gait affecting mostly the right side with more wear and tear over the
right knee, right hip and lumbar spine as a result of which he developed traumatic arthritis in the
right knee with lumbar disc syndrome.” Dr. Azer opined that appellant required a total knee
replacement. On November 29, 2013 he asserted that the August 27, 1984 employment injury
caused the right knee condition.
At the December 2, 2013 hearing, appellant’s attorney contended that appellant might
have a new injury to the right knee rather than a consequential condition. Appellant related that
his modified work duties caused pressure on his right knee, especially as he was unable to use his
left knee.
In a report dated December 16, 2013, Dr. Azer related that overloading the right knee
caused traumatic arthritis of the medial, lateral and patellofemoral compartments. He determined
that appellant required a total right knee replacement due to his accepted work injury.

3

By decision dated January 27, 2014, the hearing representative affirmed the July 18, 2013
decision.
LEGAL PRECEDENT
Section 8103 of FECA3 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability or aid in lessening the amount of monthly compensation.4
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion
in approving services provided under section 8103, with the only limitation on its authority being
that of reasonableness.5 Abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment or actions taken which are contrary to both logic and
probable deductions from established facts. It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.6 In order to be entitled to
reimbursement for medical expenses, a claimant must establish that the expenditures were
incurred for treatment of the effects of an employment-related injury.7
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.8 The implementing regulations states 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 an OWCP medical adviser, it shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.9
ANALYSIS
OWCP accepted that appellant sustained a torn medial meniscus of the left knee,
arthropathy of the left lower leg, internal joint prosthesis complications and left lower leg
effusion as a result of an August 27, 1984 work injury and subsequent left knee surgeries.
Appellant underwent a left total knee replacement in September 2003 and a revision of the total
knee replacement in July 2006.

3

See supra note 1.

4

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

5

Joseph P. Hofmann, 57 ECAB 456 (2006); James R. Bell, 52 ECAB 414 (2001).

6

Claudia L. Yantis, 48 ECAB 495 (1997).

7

Cathy B. Mullin, 51 ECAB 331 (2000).

8

5 U.S.C. § 8123(a).

9

20 C.F.R. § 10.321.

4

On July 6, 2012 Dr. Azer attributed appellant’s complaints of right knee pain to a shift in
weight bearing resulting from his left knee injury. He diagnosed traumatic synovitis and a
probable medial meniscal tear of the right knee. Following arthroscopic surgery on August 7,
2012, Dr. Azer recommended a right total knee replacement. In a report dated December 21,
2012, he related that he performed a revision of appellant’s left total knee replacement in
July 2006. Dr. Azer asserted that appellant bore his weight largely on the right side from 1984
onward and that the increased wear and tear on the right knee over the course of 28 years
resulted in his need for a right total knee replacement. On September 6, 2013 he related that
appellant’s uneven gait due to his August 27, 1984 work injury caused increased wear and tear
on the right knee, right hip and lumbar spine resulted in right knee traumatic arthritis. In a
progress report dated December 16, 2013, Dr. Azer opined that appellant required a right total
knee replacement as a result of his accepted employment injury.
In a report dated May 7, 2013, Dr. Hanley an OWCP referral physician, reviewed the
history of injury and diagnosed degenerative arthritis of the right knee. He opined that a right
total knee replacement was a reasonable procedure to treat the degenerative arthritis. Dr. Hanley
found, however, that the degenerative arthritis was unrelated to the August 27, 1984 work injury.
He attributed appellant’s right knee degenerative disease to natural aging and a possible
predisposition due to his size. Dr. Hanley noted that he did not have symptoms on the right side
until 15 years after the injury and challenged the idea that putting too much weight on the knee
caused an injury in an individual predisposed to degenerative disease.
The Board finds that there exists a conflict in medical opinion between Dr. Azer,
appellant’s attending physician, who found that appellant required a total right knee replacement
due to his August 27, 1984 work injury and Dr. Hanley, an OWCP referral physician who found
that the surgery was reasonable but that it was unrelated to his employment injury. 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.10 On remand, OWCP should refer appellant to an appropriate
specialist for an impartial medical evaluation to determine whether he requires a right total knee
replacement as a result of his August 27, 1984 left knee injury. After such further development
as it deems necessary, it should issue a de novo decision regarding appellant’s request for
authorization for surgery.
CONCLUSION
The Board finds that the case is not in posture for decision.

10

See supra note 8; R.H., 59 ECAB 382 (2008).

5

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: August 13, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

6