United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Leavenworth, KS, Employer
__________________________________________

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

Docket Nos. 10-197 & 10-202
Issued: October 1, 2010

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 26, 2009 appellant filed a timely appeal from the October 1 and 13, 2009
merit decisions of the Office of Workers’ Compensation Programs granting schedule awards.
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 met his burden of proof to establish that he has more than
a four percent permanent impairment of his left leg and a three percent permanent impairment of
his right leg, for which he received schedule awards.
FACTUAL HISTORY
The Office accepted that on January 17, 2007 appellant, then a 50-year-old electrician,
sustained a partial tear of the medial meniscus of his left knee, derangement of the posterior horn
of the medial meniscus of his left knee and strains of his left knee and leg due to slipping on ice
at work. On July 26, 2007 Dr. Stephen W. Munns, an attending Board-certified orthopedic

surgeon, performed a partial medial meniscectomy on appellant’s left knee with debridement of
the patella, femoral sulcus and femoral condyles and resection of the medial synovial plica. The
surgery was authorized by the Office.
The Office accepted that on March 27, 2007 appellant sustained a partial tear of the
medial meniscus of his right knee when he caught his foot on an anchor and stumbled forward
while at work.1 Appellant received wage-loss compensation from the Office for periods of
disability.
In an August 15, 2008 report, Dr. Munns provided a rating of appellant’s left leg
impairment under the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001). Dr. Munns advised that appellant had a 30
percent impairment of his left leg based on a 20 percent impairment for the arthritis,2 a 5 percent
rating for the partial medial meniscectomy and a 5 percent rating for pain.
On September 10, 2008 appellant filed a claim for a schedule award.
On January 29, 2009 Dr. Daniel D. Zimmerman, a Board-certified orthopedic surgeon
serving as an Office medical adviser, found that the impairment evaluation by Dr. Munns was
inadequate because he did not provide a complete assessment of appellant’s left leg condition,
including the results of range of motion testing. He noted that Dr. Munns provided a higher
rating for the partial medial meniscectomy than was allowed by the A.M.A., Guides and that he
did not support the pain rating made under Chapter 18 of the A.M.A., Guides.
In a December 15, 2008 report, Dr. Steven V. Smith, an attending Board-certified
orthopedic surgeon, stated that, based on the A.M.A., Guides, appellant had a seven percent
permanent impairment of his right leg “at the level of the knee for his twisting injury necessitating
arthroscopy for treatment of a patellofemoral chondral lesion, a medial meniscus tear and a
On January 29, 2009 Dr. Zimmerman stated that Dr. Smith’s
symptomatic plication.”3
December 15, 2008 impairment rating was not made in accordance with the standards of the
A.M.A., Guides.
In a January 26, 2009 report, Dr. Smith noted that based on the sixth edition of the
A.M.A., Guides (6th ed. 2009) appellant had a seven percent impairment of his left leg based on a
two percent rating for his plica syndrome requiring surgical intervention, a two percent rating for
his partial medial meniscectomy and a three percent rating for his patellofemoral
chondromalacia.4 On June 7, 2009 Dr. Zimmerman stated that Dr. Smith’s January 26, 2009
1

Appellant underwent a partial medial meniscectomy on his right knee in early 2006. He did not undergo
additional right knee surgery.
2

In a December 5, 2007 progress note, Dr. Munns indicated that diagnostic testing in both knees showed that
appellant had “approximately two millimeters of medial compartment cartilage space with no secondary
degenerative changes as of yet.” On January 23, 2008 Dr. Munns stated that appellant’s medial compartment
cartilage space was maintained at 50 percent of normal.
3

Dr. Smith did not indicate what edition of the A.M.A., Guides he applied.

4

Dr. Smith used the Knee Regional Grid on pages 509-11.

2

impairment rating was incorrect because he attempted to rate multiple conditions under the Knee
Regional Grid when it was permissible to rate only one condition under this table.
The Office referred appellant to Dr. George Varghese, a Board-certified physical
medicine and rehabilitation physician, for evaluation and an assessment of the impairment to
both legs. On August 11, 2009 Dr. Varghese reviewed appellant’s factual and medical history,
including the nature of his work injury and medical treatment. With respect to the left leg,
Dr. Varghese found that there was no effusion or any evidence of any inflammatory changes.
Range of motion was measured from 0 to 130 degrees and strength was normal. There was no
instability detected and left thigh circumference was 52 centimeters. With respect to the right
leg, Dr. Varghese stated that he found no swelling, inflammatory changes, hyperesthesia or
vasomotor changes. Range of motion was measured from 0 to 135 degrees. Medial and lateral
stability was normal, there was no effusion and right thigh circumference was 51.5 centimeters.
Dr. Varghese stated that the date of maximum medical improvement was July 21, 2009.
Dr. Varghese noted that his impairment rating was performed under the sixth edition of
the A.M.A., Guides. Under Table 16-3 (Knee Regional Grid), he used the diagnostic criteria
relating to the partial medial meniscus tear on the right and left sides. Dr. Varghese indicated
that appellant fell under Class I of the Knee Regional Grid. With respect to appellant’s
functional history, he stated that he was able to do self-care activities, but his pain and stiffness
interfered with some vigorous activities. Using Table 16-6 relating to functional history,
Dr. Varghese gave a grade modifier of two for each leg. For the physical examination, under
Table 16-7, he gave a grade modifier of two for the left side and a grade modifier of one for the
right side. For the clinical studies, under Table 16.8, Dr. Varghese gave a grade modifier of two
for each leg. He further stated:
“Based on the review of the medical history and physical examination, I did not
use the sections on peripheral nerve impairment, [complex regional pain
syndrome], amputation and range of motion for the impairment rating.
“I used the Net Adjustment Formula as instructed…. Using this formula, his net
adjustment for the right side is minus 2 and the left side is minus 1. For the final
rating purposes, I used Table 16-9. It was graded as Class I. Default for Class I
is 5. By using the Net Adjustment Formula, I moved one point to the left for the
left side and 2 points to the left for the right side. Based on this formula, his
permanent partial impairment rating for the right side is three percent for the
extremity and for the left side is four percent for the extremity.”
On September 17, 2009 Dr. Zimmerman reviewed the Knee Regional Grid of the sixth
edition of the A.M.A., Guides and agreed with Dr. Varghese that appellant had a four percent
impairment to his left leg and a three percent impairment to his right leg.
In an October 1, 2009 decision, the Office granted appellant a schedule award for a four
percent permanent impairment of his left leg. In an October 13, 2009 decision, the Office
granted a schedule award for a three percent permanent impairment of appellant’s right leg. For
both awards, the Office relied on the impairment ratings provided by Dr. Varghese as adopted by
Dr. Zimmerman.

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LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations6 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act 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.7 For Office
decisions issued on or after May 1, 2009, the sixth edition of the A.M.A., Guides is used for
evaluating permanent impairment.8
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower limb to be
rated. With respect the knee, the relevant portion of the leg for the present case, reference is made
to Table 16-3 (Knee Regional Grid) beginning on page 509. Then the associated class is
determined from the Knee Regional Grid and the adjustment grid and grade modifiers (including
functional history, physical examination and clinical studies) are used to determine what grade of
associated impairment should be chosen within the class defined by the regional grid. The
evaluator then uses the regional grid to identify the appropriate impairment rating value for the
impairment class, modified by the adjustments as calculated.9 Under Chapter 2.3, evaluators are
directed to provide reasons for their impairment rating choices, including choices of diagnoses
from regional grids and calculations of modifier scores.10
Proceedings under the Act are not adversary in nature, nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.11 Accordingly, once the Office undertakes to develop the medical evidence further, it
has the responsibility to do so in the proper manner.12

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

See FECA Bulletin No. 9-03 (issued March 15, 2009). For Office decisions issued before May 1, 2009, the fifth
edition of the A.M.A., Guides (5th ed. 2001) is used.
9

See A.M.A., Guides (6th ed. 2009) 499-500.

10

Id. at 23-24.

11

Russell F. Polhemus, 32 ECAB 1066 (1981).

12

See Robert F. Hart, 36 ECAB 186 (1984).

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ANALYSIS
The Office accepted that on January 17, 2007 appellant sustained a partial tear of the
medial meniscus of his left knee, derangement of the posterior horn of the medial meniscus of
his left knee and strains of his left knee and leg. On July 26, 2007 Dr. Munns, an attending
Board-certified orthopedic surgeon, performed a partial medial meniscectomy on appellant’s left
knee with debridement of the patella, femoral sulcus and femoral condyles and resection of the
medial synovial plica. The Office accepted that on March 27, 2007 appellant sustained a partial
tear of the medial meniscus of his right knee.13
Appellant claimed that he was entitled to schedule award compensation for his legs due
to his accepted work injuries. The Board finds that the Office properly referred appellant to
Dr. Varghese, a Board-certified physical medicine and rehabilitation physician, after two
attending physicians provided ratings that were not made in accordance with the standards of the
A.M.A., Guides.
In an August 15, 2008 report, Dr. Munns provided an assessment of appellant’s left leg
impairment under the fifth edition and found that he had a 30 percent impairment of his left leg
based on a 20 percent impairment rating for the arthritic condition of his left knee, a 5 percent
rating for the partial medial meniscectomy of his left knee and a 5 percent rating for pain.
Dr. Zimmerman, a Board-certified orthopedic surgeon serving as an Office medical adviser,
properly stated that the impairment evaluation of Dr. Munns was inadequate because he did not
provide a complete assessment of appellant’s left leg condition, he provided a higher rating for
the partial medial meniscectomy than was allowed by the A.M.A., Guides and he did not support
the pain rating under Chapter 18 of the A.M.A., Guides.14
In a December 15, 2008 report, Dr. Smith, an attending Board-certified orthopedic
surgeon, stated that, based on the A.M.A., Guides, appellant had a seven percent permanent
impairment of his right leg “at the level of the knee for his twisting injury necessitating arthroscopy
for treatment of a patellofemoral chondral lesion, a medial meniscus tear and a symptomatic
plication.”15 In a January 26, 2009 report, Dr. Smith noted that based on the sixth edition of the
A.M.A., Guides appellant had a seven percent impairment of his left leg based on a two percent
rating for his plica syndrome requiring surgical intervention, a two percent rating for his partial
medial meniscectomy and a three percent rating for his patellofemoral chondromalacia.
Dr. Zimmerman properly found that these ratings were not made in accordance with the A.M.A.,
Guides. With respect to the January 26, 2009 rating, Dr. Zimmerman properly noted that
Dr. Smith rated multiple conditions under the Knee Regional Grid when only one condition was
permissible to rate under this table.16
13

Appellant underwent a partial medial meniscectomy on his right knee in early 2006. He did not undergo
additional right knee surgery.
14

See A.M.A., Guides (5th ed 2001) 546, 565-86.

15

Dr. Smith did not indicate what edition of the A.M.A., Guides he used, but it appears that he attempted to apply
the sixth edition.
16

See A.M.A., Guides (6th ed. 2009) 509-11, Table 16-3 (Knee Regional Grid).

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On August 11, 2009 Dr. Varghese detailed appellant’s factual and medical history and
reported examination findings. Under Table 16-3 (Knee Regional Grid) of the sixth edition of
the A.M.A., Guides, he used the diagnostic criteria relating to the partial medial meniscus tear on
the right and left sides. Dr. Varghese indicated that appellant fell under Class I of the Knee
Regional Grid. With respect to appellant’s functional history, he stated that he was able to do
self-care activities, but his pain and stiffness interfered with some of the vigorous activities.
Dr. Varghese noted that, using Table 16-6 relating to functional history, he gave a grade modifier
of two for each leg. For the physical examination, under Table 16-7, he gave a grade modifier of
two for the left side and a grade modifier of one for the right side. For the clinical studies, under
Table 16.8, Dr. Varghese gave a grade modifier of two for each leg.17 He then used these grade
modifiers to apply the net adjustment formula to the default position of Class I identified in
Table 16-9.18 He concluded that appellant had a four percent permanent impairment of his left
leg and a three percent permanent impairment of his right leg.19
The Board notes, however, that Dr. Varghese did not adequately explain how he reached
his determination of the various grade modifiers, namely those for functional history, physical
examination and clinical studies. With respect to the physical examination grade modifier, he
gave a grade modifier of two for the left side and a grade modifier of one for the right side.
However, he did not explain the medical reasons for this determination of grade modifiers for
appellant’s legs. Appellant’s attorney’s asserted on appeal that arthritic joint space narrowing in
appellant’s knees was not adequately considered. The record reveals that appellant had such
narrowing and the clinical studies grade modifier allows for consideration of this type of
condition.20 Dr. Varghese did not adequately explain whether he factored appellant’s arthritis
into the calculation of the clinical studies grade modifier.
For these reasons, the impairment rating of Dr. Varghese is in need of clarification.21
Dr. Varghese should be provided an opportunity to clarify his impairment evaluation. If he is
unwilling or unable to do so, the Office should undertake additional development to arrive at a
reasoned determination regarding the impairment of appellant’s legs. After such development as
it deems necessary, the Office shall issue an appropriate decision on this matter.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
has more than a four percent permanent impairment of his left leg and a three percent permanent

17

Id. at 509-22. See supra note 9.

18

Id. at 509-22

19

The Office issued decisions on October 1 and 13, 2009 granting schedule award compensation for these
impairments. It was appropriate for the Office to require evaluation under the sixth edition of the A.M.A., Guides as
its schedule award decisions were issued on or after May 1, 2009. See supra note 8.
20

See A.M.A., Guides 519, Table 16-8.

21

See supra notes 10 through 12.

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impairment of his right leg, for which he received schedule awards. The case is remanded to the
Office for further development to be followed by an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the October 13 and 1, 2009 decisions of the Office
of Workers’ Compensation Programs are set aside. The case is remanded to the Office for
proceedings consistent with this decision of the Board.
Issued: October 1, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 20-0243
Issued: May 28, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On November 12, 2019 appellant filed a timely appeal from a May 26, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s entitlement
to wage-loss compensation and medical benefits, effective May 26, 2019, as he no longer had
residuals or disability causally related to his accepted January 28, 1977 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on January 28, 1977 appellant, then a 26-year-old part-time letter
carrier, sustained a lumbosacral sprain, mid-dorsal contusion chest, and permanent aggravation
of preexisting thoracolumbar scoliosis when he tripped and fell on a sidewalk when carrying mail
while in the performance of duty. He stopped work on January 31, 1977 and has not returned.
OWCP paid appellant wage-loss compensation on the periodic rolls.
2

In an October 3, 2005 medical report, Dr. Carlton A. West, an attending Board-certified
orthopedic surgeon, examined appellant. He reported tenderness along the right paraspinal
muscles of the lumbar spine with prominent lateral curvature of the thoracolumbar spine. Dr. West
advised that appellant had permanent deformity of the lower back. He opined that appellant
remained totally disabled from heavy work. Dr. West concluded that he had a chronic and
permanent condition and that no spontaneous improvement was expected.
By letters dated October 22, 2005 through January 14, 2016, OWCP periodically informed
appellant the need for current medical evidence to establish his entitlement to continuing
compensation benefits. It requested that he submit a current medical report from an attending
physician addressing his employment-related residuals. OWCP also requested that the physician
complete an accompanying work capacity evaluation (Form OWCP-5c), indicating whether
appellant was able to return to work. Appellant was afforded 30 days to submit the requested
information. No response was received.
On May 13, 2016 OWCP referred appellant, together with a statement of accepted facts
(SOAF), the medical record, and a list of questions, to Dr. James L. Elmes, a Board-certified
orthopedic surgeon, for a second opinion.
In a June 28, 2016 report, Dr. Elmes described the January 28, 1977 employment injury
and noted that appellant’s claim was accepted for lumbosacral strain, mid-dorsal contusion chest,
and permanent aggravation of preexisting thoracolumbar scoliosis. He noted a review of
appellant’s medical records and related that they did not indicate that his significant scoliosis
progressed as a result of the employment injury. Dr. Elmes advised that the work injury was not
a direct cause, precipitation, or acceleration of the scoliosis. He related that appellant may have
had temporary aggravation of his chronic back pain due to increased pain from the employment
injury for three months. Dr. Elmes advised that appellant was unable to return to his date-of-injury
job as a mail carrier due to deconditioning and the natural course of progression of his preexisting
scoliosis, but he could perform sedentary-type job work with restrictions. Appellant’s ongoing
back pain was not a permanent aggravation or exacerbation, but was the expected normal course
with this type of scoliosis. Additionally, Dr. Elmes noted that appellant’s back pain did not
correlate with an aggravation of his 30-year-old employment injury. On physical examination he
found a normal heel and toe gait pattern. Dr. Elmes noted that appellant used a cane on the left.
Appellant leaned slightly to the left when walking. He walked 150 feet with normal heel-to-toe
motion and good balance without leaning when walking without the cane. Appellant leaned on a
counter for support with toe standing and walking. He was able to heel walk a few steps. Appellant
2
The Board notes that appellant’s claim form is not contained in the case record. he record indicates that appellant
worked part time due to preexisting low back pain.

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leaned on the counter for support, but this was weaker than toe standing and walking. He was
unable to hop secondary to low back pain. Appellant dressed and undressed himself unassisted.
He got on and off the examination table unassisted. Appellant performed a one-half squat without
pain. On motor examination Dr. Elmes found normal fine and gross motor coordination.
Appellant could button, tie zip, write, and pick up a penny without difficulty. Grip strength on the
right was 51, 53, 60, 52, 52, maximum being 60 pounds and on the left was 52, 60, 70, 65, 59,
maximum being 70 pounds. Appellant walked 50 feet unassisted in Dr. Elmes’ office and one
block outdoors. Extremity strength of the bilateral upper extremities was 5/5, the right lower
extremity was 5/5 the left lower extremity was 5-/5 with slight decrease because of pain.
Regarding circumferential measurements, there was no measurable atrophy of the bilateral upper
and lower extremities. On neurological examination Dr. Elmes found that appellant was alert and
oriented throughout the evaluation. He answered all questions intelligently without hesitation.
Vibratory sensation of the upper and lower extremities was bilaterally equal and normal. Sensation
was to light touch and pinprick in the upper and lower extremities was bilaterally equal and normal.
Deep tendon reflexes of the upper extremities was one-fourth bilaterally and of the lower
extremities the patellar was one-fourth and there was Achilles trace. All ranges of motion (ROM)
of the joints were normal except the right and left knees had no patellofemoral crepitus. They both
had good stability without any effusion. Active knee flexion was 135 degrees on the right and 134
degrees on the left. The ROM of the shoulders was 170 degrees of active flexion, normal being
180 degrees. The remainder of ROM measurements were normal. There was some shoulder pain
on the right with extreme range of flexion and abduction. A vascular examination revealed pulses
that were bilaterally equal and regular. There was no abnormal pallor, cyanosis, pigmentation, or
dermatitis of the skin. On examination of the back Dr. Elmes reported mild tenderness at LS-S1
and mildly at Tl2-L1 with some slight tenderness in the left sacroiliac area and superolateral gluteal
region. With forward flexion, the right rib hump was prominent and with standing erect there was
prominence to the left hip and iliac crest. Going up and down a single step was stronger on the
right than the left. ROM of the back was within normal limits except for flexion to about 70
degrees with fingertips to 8 inches from the floor. Extension was 10 degrees, normal being 25
degrees, and lateral bending was 10 degrees, normal being 25 degrees. Leg length from the
anterior superior iliac spine was 102 centimeters (cm) on the left and 101 cm on the right. A
Waddell test with 0/5 tests was inappropriate as there was no symptom magnification.
Dr. Elmes diagnosed: lumbosacral strain that healed in eight weeks; mid dorsal chest
contusion that healed in eight weeks; aggravation of preexisting scoliosis that healed in three
months; and generalized deconditioning. He advised that these conditions were work related.
Dr. Elmes opined that the generalized deconditioning was work related since appellant was unable
to exercise or work due to increased low back pain. He recommended, among other things, a
written home therapeutic exercise program to strengthen his lower extremities and spinal
supportive muscles. Dr. Elmes related that he should have started a therapeutic exercise program
three months after the date of injury. He also diagnosed right dorsal hand lump noted in a previous
1979 medical evaluation. Additionally, Dr. Elmes diagnosed high blood pressure that was not
work related. He determined that appellant reached maximum medical improvement three months
status post his January 28, 1977 employment injury. Dr. Elmes reiterated that he could not perform
his date-of-injury position, but he could perform sedentary work with restrictions. He concluded

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that appellant’s work-related conditions had resolved. Dr. Elmes again noted that he had pain due
to the natural progression of scoliosis over the past 30 years with associated chronic strain.3
By notice dated April 19, 2019, OWCP advised appellant that it proposed to terminate his
entitlement to wage-loss compensation and medical benefits based on Dr. Elmes’ opinion that the
January 28, 1977 accepted conditions had ceased without residuals or disability. It afforded him
30 days to submit additional evidence or argument challenging the proposed termination. No
response was received.
OWCP, by decision dated May 22, 2019, terminated appellant’s wage-loss compensation
and medical benefits, effective May 22, 2019, based on Dr. Elmes’ second opinion. It noted that
appellant had not submitted any additional medical evidence as requested.
In an amended notice of even date, OWCP modified the effective date of the termination
to May 26, 2019.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.4 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8

3
OWCP, by decision dated February 22, 2017, suspended appellant’s wage-loss compensation, effective
February 5, 2017, for failing to complete a financial disclosure statement (Form CA-1032) as requested. It advised
that, if appellant were to complete and return the form, his compensation benefits would be restored retroactively to
the date they were suspended. On March 24, 2017 OWCP received his completed Form CA-1032 dated
March 3, 2017. It reinstated appellant’s compensation benefits and placed him back on the periodic rolls.
4

See D.G., Docket No. 19-1259 (issued January 29, 2020); R.P., Docket No. 17-1133 (issued January 18, 2018);
S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
5
See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
6

K.W., Docket No. 19-1224 (issued November 15, 2019); see M.C., Docket No. 18-1374 (issued April 23, 2019);
Del K. Rykert, 40 ECAB 284, 295-96 (1988).
7

J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued February 27, 2019).

8

L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued February 5, 2019).

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ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s
entitlement to wage-loss compensation and medical benefits, effective May 26, 2019, as he no
longer had residuals or disability causally related to his accepted January 28, 1977 employment
injury.
OWCP referred appellant to Dr. Elmes for a second opinion evaluation to determine the
status of his accepted conditions and work capacity. In his June 28, 2016 report, Dr. Elmes
described his January 28, 1977 employment injury and noted that his claim was accepted for
lumbosacral strain, mid-dorsal contusion chest, and permanent aggravation of preexisting
thoracolumbar scoliosis. He reported that findings on examination were essentially normal.
Dr. Elmes opined that the accepted work-related conditions had resolved, that appellant could
return to sedentary work with restrictions, and that there was no need for further medical treatment
for the accepted conditions. He opined that the employment-related injury caused a temporary
rather than permanent aggravation of appellant’s preexisting scoliosis and that his current pain was
due to the natural progression of his condition over the past 30 years. Dr. Elmes explained that he
required a home exercise program for his scoliosis condition because he never received such
treatment which should have begun three months after the date of his injury.
The Board finds that OWCP properly accorded the weight of the medical evidence to
Dr. Elmes. Dr. Elmes based his opinion on a proper factual and medical history and physical
examination findings and provided medical rationale for his opinion. He provided a wellrationalized opinion based on medical evidence regarding the accepted conditions causally related
to appellant’s January 28, 1977 employment injury. Accordingly, OWCP properly relied on
Dr. Elmes’ second opinion report in terminating his entitlement to wage-loss compensation and
medical benefits.9
On appeal appellant contends that his accepted January 28, 1977 employment-related
injury exacerbated his preexisting scoliosis of the spine and resulted in his total disability from
work. As explained above, OWCP properly terminated his wage-loss compensation and medical
benefits as the opinion of Dr. Elmes, the second opinion physician, constituted the weight of the
medical evidence.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s
entitlement to wage-loss compensation and medical benefits, effective May 26, 2019, as he no

9
See E.S., Docket No. 20-0673 (issued January 11, 2021); K.W., supra note 6; N.G., Docket No. 18-1340 (issued
March 6, 2019); A.F., Docket No. 16-0393 (issued June 24, 2016).

5

longer had residuals or disability causally related to his accepted January 28, 1977 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the May 22, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 09-550
Issued: November 23, 2009

Case Submitted on the Record

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

JURISDICTION
On December 19, 2008 appellant, through his representative, filed a timely appeal from
an August 18, 2008 merit decision of the Office of Workers’ Compensation Programs. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant sustained greater than six percent impairment to his upper
extremity, for which he received a schedule award.
On appeal, contends that the 44 percent impairment rating of Dr. Nicolas Diamond, an
osteopath, conforms to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides). In the alternative, he argues that there is a conflict in
the medical evidence regarding whether his strength deficit should be included in the calculation
for permanent impairment.

FACTUAL HISTORY
On April 10, 2006 appellant, then a 33-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that, on April 5, 2006, while in the platform dock area in the
collection breakdown, he reached inside an all-purpose container and heard a popping noise in
his right forearm. On May 10, 2006 the Office accepted the claim for nontraumatic rupture of
right biceps tendon and authorized surgery. Appellant underwent a right distal biceps tendon
repair on May 18, 2006.
On January 16, 2008 appellant filed a claim for a schedule award (Form CA-7).
In an October 18, 2007 medical report, Dr. Diamond reviewed appellant’s occupational
and medical history. He reported appellant’s complaints of intermittent, but daily, right elbow
pain and stiffness and numbness and tingling radiating into the right hand. Dr. Diamond
reported a Quick Dash Disability score of 55 percent and supplied a Quick Dash worksheet.
Physical examination revealed a three centimeter (cm) scar over the radial head area of the right
elbow and a four and a half cm scar over the antecubital area. Dr. Diamond noted an effusion,
olecranon tenderness and lateral epicondyle tenderness. Range of motion testing showed
flexion-extension of 135/145 degrees, pronation of 50/80 degrees and supination of 80/80
degrees. Dr. Diamond noted pain with flexion-extension and pronation. Manual muscle strength
testing revealed a grade of 4+/5 strength in the triceps, a grade of 4/5 strength in the biceps and a
grade of 4/5 strength in the pronation of the right elbow. Dr. Diamond stated that appellant had
normal muscle tonus, however, there was an abnormal muscle bulk with a decreased right upper
arm circumference despite appellant’s right hand dominance.
Grip strength testing showed 11.75 kilogram (kg) of force strength on the right versus
34.25 kg of force strength on the left. Pinch key testing revealed 2.25 kg in the right versus
7.5 kg in the left hand. Appellant’s lower arm circumference was 27.5 cm on the right versus
27 cm on the left. Further, the upper arm circumference was 29.5 cm on the right versus 30.5 cm
on the left. Appellant’s deep tendon reflexes were +2 and symmetrical. Sensory examination
did not reveal any perceived dermatomal abnormalities. Dr. Diamond diagnosed post-traumatic
right distal biceps tendon rupture and status post right distal biceps tendon repair. He opined that
the April 5, 2006 work injury was the competent producing factor for appellant’s subject and
objective findings on examination. Dr. Diamond stated that, in accordance with the A.M.A.,
Guides,1 appellant sustained 10 percent impairment for 4/5 motor strength deficit of the right
triceps, 6 percent impairment for 4/5 motor strength deficit of the right biceps, 30 percent
impairment for right grip strength deficit and 3 percent impairment for pain. Adding these
figures, he calculated a total of 44 percent permanent impairment to appellant’s right upper
extremity and noted a maximum medical improvement date of October 18, 2007.
On January 18, 2008 the Office referred the case record to an Office medical adviser for a
review of the extent of appellant’s permanent impairment.
In a January 27, 2008 medical report, the Office medical adviser, Dr. Arnold T. Berman,
a Board-certified orthopedic surgeon, reviewed appellant’s history and Dr. Diamond’s
1

A.M.A., Guides (5th ed. 2001).

2

October 18, 2007 medical report. Dr. Berman concluded that appellant sustained six percent
impairment to the right upper extremity. He stated that Dr. Diamond’s recommendation for
triceps deficit could not be accepted because there was no documentation of any triceps
abnormality and, further, the accepted conditions did not include triceps abnormality.
Dr. Berman also cited to section 16.8a, on page 508, of the A.M.A., Guides, which states that
decreased strength cannot be rated in the presence of painful conditions or decreased range of
motion. Thus, he opined that, because appellant had both decreased range of motion and painful
conditions, a strength evaluation was not appropriate. Using Figure 16-34, on page 472, of the
A.M.A., Guides, Dr. Berman equated the 130 degrees of flexion to one percent impairment.
Further, based on Figure 16-37, on page 474, he calculated two percent impairment for full
supination but 50 out of 80 degrees of pronation. Dr. Berman added three percent impairment
for a pain award, in accordance with page 574, concluding that appellant sustained a total
six percent permanent impairment. He noted a maximum medical improvement date of
October 18, 2007.
By decision dated February 26, 2008, the Office awarded appellant a schedule award for
a six percent permanent impairment of the right upper extremity. It also noted October 18, 2007,
as the date of maximum medical improvement.
On March 4, 2008 appellant, through his representative, filed a request for an oral hearing
before an Office hearing representative, which took place on June 19, 2008.
By decision dated August 18, 2008, an Office hearing representative affirmed the
February 26, 2008 decision of the Office, finding that appellant sustained six percent permanent
impairment, on the grounds that the weight of the medical evidence rested with Dr. Berman.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 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, the Act 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.4 The A.M.A., Guides has been adopted by the
Office as the appropriate standard for evaluating schedule losses.5

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

5

Supra note 3.

3

ANALYSIS
The Office accepted appellant’s claim for a nontraumatic rupture of right biceps tendon
and authorized a right distal biceps tendon repair. It granted a schedule award for six percent
permanent impairment to his upper right extremity. The issue is whether appellant established
that he sustained a greater impairment to his right upper extremity entitling him to additional
schedule awards.
On October 18, 2008 Dr. Diamond performed a full physical examination and opined that
appellant sustained 44 percent permanent impairment to the right upper extremity. He calculated
10 percent impairment for motor strength deficit of the right triceps, 6 percent impairment for
motor strength deficit of the right biceps, 30 percent impairment for right grip strength deficit
and 3 percent impairment for pain. Dr. Diamond noted a maximum medical improvement date
of October 18, 2007.
The Board finds Dr. Diamond did not properly apply the A.M.A., Guides in calculating
appellant’s permanent impairment. The A.M.A., Guides do not assign a large role to strength
measurements because they are function tests influenced by subjective factors that are difficult to
control. Further, the A.M.A., Guides is based, for the most part, on anatomic impairment.6
Accordingly, loss of strength may be rated separately only in rare cases where the examiner
believes the individual’s loss of strength represents an impairing factor that has not been
considered adequately by other methods in the A.M.A., Guides. Even then, impairment due to
loss of strength could be combined with other impairments only if it is based on unrelated
etiologic or pathomechanical causes. Otherwise, impairment ratings based on objective
anatomic findings take precedence. Moreover, decreased strength cannot be rated in the
presence of decreased motion, painful conditions, deformities or absence of parts that prevent
effective application of maximal force in the region being evaluated.7
Dr. Diamond did not justify his inclusion of decreased strength in the impairment rating.
He did not explain how appellant’s impairment was the rare case, how his loss of strength was
based on etiologic or pathomechanical causes unrelated to other impairments or how he could
effectively measure decreased strength despite appellant’s loss of range of motion and painful
conditions. Because Dr. Diamond did not address why, under the circumstances of this case, an
impairment rating for strength deficit was appropriate, the Board finds that he did not provide a
properly rationalized impairment rating in accordance with the A.M.A., Guides.8
The Office referred appellant’s case record to Dr. Berman, an Office medical adviser, for
an opinion on permanent impairment. In a January 27, 2008 report, Dr. Berman calculated a
six percent permanent impairment to the right upper extremity. He declined to include any
impairment rating for triceps deficit because there was no documentation of an abnormality of
the triceps nor did the Office accept any conditions regarding the triceps. Further, Dr. Berman
6

A.M.A., Guides 507.

7

Id. at 508.

8

See K.W., 59 ECAB ___ (Docket No. 07-1547, issued December 19, 2007).

4

did not include decreased strength in the impairment rating finding that a strength evaluation was
not appropriate due to appellant’s decreased range of motion and painful conditions. He cited to
section 16.8a, on page 508, of the A.M.A., Guides, which states that decreased strength cannot
be rated in the presence of painful conditions or decreased range of motion. Using Figure 16-34,
on page 472, of the A.M.A., Guides, Dr. Berman found one percent impairment based on
130 degrees of flexion. He also added two percent impairment for 50 out of 80 degrees of
pronation in accordance with Figure 16-37, on page 474. Finally, Dr. Berman found three
percent permanent impairment for pain, citing to page 574. He concluded that appellant
sustained a total six percent permanent impairment to the right upper extremity and noted a
maximum medical improvement date of October 18, 2007.
The Board finds that Dr. Berman correctly calculated appellant’s permanent impairment
at six percent in accordance with the A.M.A., Guides. He properly referred to Figures 16-349
and 16-3710 to calculate a total of three percent permanent impairment for loss of range of
flexion and pronation. Dr. Berman added three percent permanent impairment for pain in
accordance with Chapter 1811 for a total of six percent permanent impairment to the right upper
extremity. Further, the Board finds that Dr. Berman’s declination to include Dr. Diamond’s
finding of loss of strength in his impairment calculation was in accordance with section 16.8a.12
The Board has held that, if an examining physician does not correctly use the A.M.A.,
Guides to calculate the degree of permanent impairment, it is proper for an Office medical
adviser to review the record and apply the A.M.A., Guides to the examination findings reported
by the examining physician.13 Dr. Berman properly applied Dr. Diamond’s findings on
examination to the A.M.A., Guides and calculated a six percent permanent impairment to
appellant’s upper right extremity. Therefore, the Board finds that the weight of the medical
evidence rests with Dr. Berman.14
On appeal, appellant’s representative contends that Dr. Diamond calculated 44 percent
permanent impairment in accordance with the A.M.A., Guides. In the alternative, he argued that
a conflict of medical opinion existed between Drs. Diamond and Berman, requiring a resolution
by an impartial medical examiner. As previously addressed by the Board, Dr. Diamond’s
medical opinion does not conform to the A.M.A., Guides and is of diminished probative value.
Because Dr. Berman properly applied appellant’s physical findings to the A.M.A., Guides, his

9

A.M.A., Guides 472, Figure 16-34.

10

Id. at 474, Figure 16-37.

11

Id. at 574, Figure 18-1.

12

See id. at 508. See also K.W., supra note 8.

13

Lena P. Huntley, 46 ECAB 643 (1995).

14

See Linda Beale, 57 ECAB 429 (2006).

5

medical opinion is of greater probative value than that of Dr. Diamond.15 Thus, no conflict of
medical opinion exists.16
CONCLUSION
The Board finds that appellant did not sustain greater than six percent impairment to his
upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 18, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

See id.

16

A conflict of medical evidence exists when there are opposing medical reports of virtually equal weight and
rationale. Darlene R. Kennedy, 57 ECAB 414 (2006).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edmonds, WA, Employer
__________________________________________

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

Docket No. 12-1332
Issued: June 21, 2013

Case Submitted on the Record

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

JURISDICTION
On June 6, 2012 appellant filed a timely appeal of January 30 and April 5, 2012 nonmerit
decisions of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision was issued on October 4, 2011, more than 180 days prior to the filing of this instant
appeal. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for a review of
the written record as untimely; and (2) whether it properly refused to reopen his case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The record also contains a January 30, 2012 merit decision. However, in light of the Board’s findings in this
case, the January 30, 2012 merit decision is not in posture for decision.

FACTUAL HISTORY
On August 22, 2011 appellant, then a 62-year-old letter carrier, filed a traumatic injury
claim alleging that on July 5, 2011 he sustained an injury to his left knee/leg and back of his left
ankle when hit by another vehicle in the performance of duty.
By decision dated October 4, 2011, OWCP denied appellant’s claim on the grounds that
he did not establish an injury as alleged. It found that the evidence was insufficient to establish
that the events occurred as alleged.
On January 10, 2012 OWCP received both a request for a review of the written record by
an OWCP hearing representative and a request for reconsideration along with additional
evidence.
By decision dated January 30, 2012, OWCP affirmed its October 4, 2011 denial, but
modified the decision to accept fact of injury. It found that appellant had not established causal
relationship.
In a separate decision also dated January 30, 2012, OWCP’s hearing representative found
that appellant was not entitled to a review of the written record. The hearing representative
found that the request was received more than 30 days after OWCP’s decision of
October 4, 2011. OWCP exercised its discretion by considering appellant’s request and further
denied it as the issue involved could be addressed equally well pursuant to a valid request for
reconsideration and submitting evidence not previously considered to support his claim.
OWCP received a request for reconsideration of the denial of his claim on
March 19, 2012.
OWCP subsequently received a report dated March 1, 2012 from Dr. Howard B. Barker,
a Board-certified orthopedic surgeon, who stated that, prior to the July 5, 2011 incident,
appellant had no posterior heel pain. Dr. Barker noted that, after the incident, appellant’s left
posterior heel pain began and has persisted. He explained that this was a well-documented injury
for which “a sudden dorsiflexion of his ankle, where he felt his foot was ‘caught underneath,’
could cause this injury.” This report was received by OWCP on April 4, 2012.
In a decision dated April 5, 2012, OWCP denied appellant’s request for reconsideration
without a review of the merits on the grounds that his request neither raised substantial legal
questions nor included new and relevant evidence and, thus, it was insufficient to warrant review
of its prior decision. It specifically noted that he had submitted no new medical evidence.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b)(1) of FECA provides that a claimant not satisfied with a decision of the
Secretary is entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.3 Sections 10.617 and
3

5 U.S.C. § 8124(b)(1).

2

10.618 of the federal regulations implementing this section of FECA provide that a claimant
shall be afforded a choice of an oral hearing or a review of the written record by a representative
of the Secretary.4 OWCP’s procedures, which require OWCP to exercise its discretion to grant
or deny a hearing when the request is untimely or made after reconsideration, are a proper
interpretation of FECA and Board precedent.5 Although a claimant may not be entitled to a
hearing as a matter of right, OWCP has discretionary authority with respect to granting a hearing
and OWCP must exercise such discretion.6
ANALYSIS -- ISSUE 1
Appellant requested a review of the written record in a January 3, 2012 appeal form that
was stamped as received by OWCP on January 10, 2012. OWCP determined that his request
was made more than 30 days after the date of issuance of OWCP’s October 4, 2011 decision.
Accordingly, it found that appellant’s request was untimely filed and he was not entitled to a
review of the written record as a matter of right. The Board finds that OWCP properly found
that appellant’s request was not timely filed.
Because appellant did not submit a timely request for review of the written record, his
request was untimely. OWCP, therefore, properly found that he was not entitled to an oral
hearing or examination of the written record as a matter of right.
OWCP also has the discretionary authority to grant a request for hearing or review of the
written record when a claimant is not entitled to such as a matter of right. In its January 30, 2012
decision, it properly exercised its discretion by notifying appellant that it had considered the
matter in relation to the issue involved and indicated that additional argument and evidence could
be submitted with a request for reconsideration. The Board has held that the only limitation on
OWCP’s authority is reasonableness and an abuse of discretion is generally shown through proof
of manifest error, a clearly unreasonable exercise of judgment or actions taken which are
contrary to both logic and probable deductions from established facts.7 In this case, the evidence
of record does not indicate that OWCP abused its discretion in finding that appellant could
further pursue the matter through the reconsideration process. Consequently, OWCP properly
denied his request for a review of the written record.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,8 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
4

20 C.F.R. §§ 10.616-17.

5

Claudio Vasquez, 52 ECAB 496 (2002).

6

See Samuel R. Johnson, 51 ECAB 612 (2000); Eileen A. Nelson, 46 ECAB 377 (1994); Herbert C. Holley, 35
ECAB 140 (1981).
7

Samuel R. Johnson, 51 ECAB 612 (2000).

8

5 U.S.C. § 8128(a).

3

application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
(2) Advances a relevant legal argument not previously considered by OWCP; or
(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”9
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.10
ANALYSIS -- ISSUE 2
Appellant disagreed with OWCP’s January 30, 2012 decision denying his traumatic
injury claim. The underlying issue on reconsideration is medical in nature. The Board notes that
OWCP denied appellant’s traumatic injury claim finding that he did not submit sufficient
medical evidence to establish causal relationship. In support of his claim for reconsideration,
appellant submitted a report dated March 1, 2012 from Dr. Barker, who stated that his report was
in response to OWCP’s decision which was submitted to provide rationale for his opinion on
causal relationship. This report was received by OWCP on April 4, 2012. In its April 5, 2012
decision, OWCP denied appellant’s reconsideration request without conducting a merit review of
the claim. It advised that he had not submitted new medical evidence. OWCP did not note
receipt or consideration of the March 1, 2012 report from Dr. Barker.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,11 the Board held
that when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted
by a claimant and received by OWCP before the final decision is issued. In this case, in a
decision dated January 30, 2012, OWCP denied appellant’s traumatic injury claim finding that
he did not submit sufficient medical evidence to establish causal relationship. As the Board
found in Linda Johnson,12 when OWCP receives relevant evidence, it must be properly reviewed
by OWCP. This principle applies whether OWCP receives evidence on the date that it issues the
decision13 or several days prior to the issuance of the decision.14
9

20 C.F.R. § 10.606(b).

10

Id. at § 10.608(b).

11

41 ECAB 548 (1990).

12

45 ECAB 439 (1994).

13

Id.

14

Supra note 11.

4

The Board finds that OWCP, in its April 5, 2012 decision, did not review the March 1,
2012 report from Dr. Barker that was received by OWCP on April 4, 2012. For this reason, the
case will be remanded to OWCP to enable it to properly consider all the evidence submitted at
the time of the April 5, 2012 decision. Following such further development as OWCP deems
necessary, it shall issue an appropriate merit decision on the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a review of the
written record as untimely. The Board also finds that it improperly refused to reopen his case for
further review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2012 decision denying appellant’s
request for a review of the written record as untimely is affirmed. The April 5, 2012 decision of
OWCP is set aside and remanded to OWCP for further proceedings consistent with this decision.
Issued: June 21, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ENGINEERING DEPARTMENT, WRIGHTPATTERSON AIR FORCE BASE, OH,
Employer
__________________________________________

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Appearances:
John J. Scaccia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1347
Issued: January 17, 2013

Case Submitted on the Record

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

JURISDICTION
On June 6, 2012 appellant, through his attorney, filed a timely appeal from the
December 9, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on April 23, 2010.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 21, 2011 appellant, then a 61-year-old mechanical engineer, filed a traumatic
injury claim (Form CA-1) alleging that he sustained injury to his low back and right hip at 3:30
p.m. on April 23, 2010 when he reached high above his head to remove a heavy box from the top
of a tall cabinet. He stated that the injury occurred in Building 18 at 1950 Fifth Street in
Beavercreek, OH. A portion of the form was completed by appellant’s supervisor who indicated
that he first received notice of the claimed April 23, 2010 injury on April 27, 2010. Appellant’s
supervisor noted that appellant’s duty station was at 1950 Fifth Street. He stated that, at the time
of the claimed injury on April 23, 2010, appellant was on administrative leave “but came into the
office to remove boxes of personal belongings in preparation for [April 30, 2010] retirement.”
Appellant did in fact retire from the employing establishment on April 30, 2010 and no work
time or pay was lost due to the claimed injury.
In a February 26, 2011 statement, appellant indicated that he sustained an injury on
Friday, April 23, 2010, which was one week prior to his retirement date. He indicated that, on
that afternoon, everyone had left for the day and a heavy box fell on him when he was trying to
remove it from a tall cabinet. Appellant described how his back and leg pain grew progressively
worse and noted that he advised his supervisor of the injury on April 26, 2010. He indicated that
he sought treatment for his condition from a chiropractor and asserted that the employing
establishment did not provide adequate assistance in filing the proper papers for his claim.
Appellant claimed that he was not advised that he should have first sought treatment from his
primary physician.
Appellant submitted an Ohio workers’ compensation form which was completed in part
by himself on August 6, 2010 and in part on September 30, 2010 by Shawn M. Howell, an
attending chiropractor. In his portion of the form, appellant provided a description of the
April 23, 2010 accident which was similar to that provided on his Form CA-1. Dr. Howell
provided a diagnosis of lumbosacral sprain/strain but did not discuss the cause of the diagnosis.
In a March 17, 2010 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of his claim. It informed him of the situations in which reports from
chiropractors would constitute medical evidence.
In an April 16, 2011 statement, appellant discussed his efforts to obtain medical evidence
regarding the injuries he believed he sustained on April 23, 2010. He submitted medical
documents from an April 28, 2010 visit to an emergency room which showed examination
findings of tender right back musculature with slight spasm. There was no discussion of the
April 23, 2010 accident. The documents show that appellant was prescribed pain medication.
In an April 22, 2011 decision, OWCP denied appellant’s claim that he sustained an injury
in the performance of duty on April 23, 2010. Regarding the reason for the denial, it stated,
“Specifically your case is denied because the evidence is not sufficient to establish that the
event(s) occurred as you described. The reason for this finding is that there was no history of
injury in the emergency room report. Still, we cannot consider the chiropractor’s medical
[evidence] as he is not a medical doctor as defined by Labor Department.”

2

Appellant disagreed with the decision and requested a telephone hearing with an OWCP
hearing representative. During the hearing held on September 19, 2011, appellant’s counsel
indicated that, at the time of the April 23, 2010 accident, appellant and the employing
establishment had just concluded negotiations regarding a discrimination case. Appellant was on
administrative leave with pay pending his retirement and other matters associated with the
settlement. He wished to retrieve personal items during this period and was given a time to come
into work when he would be escorted through the premises and be watched as he retrieved his
belongings. Counsel stated that appellant injured himself while reaching up to try to remove a
box from a height. He asserted that appellant was still employed when the injury occurred and
that he had since retired from the employing establishment in accordance with the negotiated
agreement. Counsel claimed that the April 23, 2010 injury occurred in a time and place that had
been designated by the employing establishment. Appellant initially tried to heal himself of the
injury and, when his back spasms did not subside, he went to see a chiropractor. His family
physician was aware of this situation and stated that it was appropriate for him to seek treatment
from a chiropractor.
Appellant testified that, when the injury occurred on April 23, 2010, he was in his place
of employment and he was on administrative leave with pay due to an agreement with the
employing establishment. He denied that there was any disciplinary action against him that
would have put his job in jeopardy. Appellant indicated that, in accordance with the agreement
with the employing establishment, he had made arrangements to retrieve his personal belongings
for his and the employing establishment’s convenience. On April 23, 2010 he went to the base
to meet with supervisors and coworkers regarding removal of his belongings. Appellant
ordinarily would come in between the hours of 9:00 a.m. and 4:00 p.m. for this purpose on the
days leading up to April 30, 2010, his intended last day of employment. He arrived at the base at
approximately 9:30 a.m. or perhaps later on April 23, 2010 and was being paid for this day.
Appellant indicated that he continued the process that he had started days before, which typically
involved going through drawers, getting his personal property, taking it to his car, and then
leaving the base. As it was getting closer to 4:00 p.m. on April 23, 2010, he was in the office
with nobody else present. Appellant had two more boxes of personal items to retrieve, which
were located up on top of a cabinet above his head. He noted there was no ladder or dolly or any
other device available to help him retrieve or move these boxes. Appellant stood on his toes,
grabbed the box and pulled it. The box came down faster than he expected and seemed a lot
heavier than he had expected. Appellant indicated that he tried to hold onto the box and that it
bent his body backwards and to the right. He managed to put the box on a chair and roll it to his
car and then he left the base. Appellant left a voice mail over the weekend in order to report
what had happened. He asserted that he knew that he hurt himself but he did not initially know
the extent of his injury. Appellant stated that his condition got worse and that on April 24, 2010
he advised his family physician that he was in a great deal of pain and would be going to the
chiropractor on Monday. He also called his supervisor to tell him the same thing. At the request
of his supervisor, he provided a handwritten statement about the injury on his last day of work,
April 30, 2010. Appellant described the treatment he received from his chiropractor. He
asserted that no one from the employing establishment helped him to file his claim and that no
one told him that he would not be allowed to see a chiropractor for a work injury.

3

After the hearing, appellant submitted additional evidence concerning his treatment. In
an October 3, 2011 report, Dr. Sarah Khavari, an attending Board-certified family practitioner,
provided a history of injury and discussion of medical treatment following appellant’s accident at
work on April 23, 2010. She indicated that she agreed with Dr. Howell’s assessment and had
diagnosed appellant with a lumbosacral sprain/strain in connection with the work incident.
Dr. Khavari noted that she saw appellant in her office on May 14, 2010 and had diagnosed him
with a lumbar strain due to the mechanism of injury and examination findings. She indicated
that appellant had been treated for preexisting subluxation and scoliosis prior to the work injury.
In an October 17, 2011 report, Dr. Howell provided an overview of appellant’s medical history
and asserted that the work incident of April 23, 2010 directly caused him to sustain a
lumbosacral sprain/strain but did not affect his underlying, preexisting conditions.
In a December 9, 2011 decision, OWCP’s hearing representative affirmed OWCP’s
April 22, 2011 decision. He indicated that he was modifying OWCP’s April 22, 2011 decision
to reflect that appellant’s claim was denied because the evidence failed to establish that he was
injured in the performance of duty on April 23, 2010. OWCP’s hearing representative noted
that, although appellant was on the premises at the time of the claimed April 23, 2010 injury, he
was on administrative leave awaiting his retirement at the time of his accident and was
performing the personal chore of cleaning out his office rather than any action which provided
substantial benefit to the employing establishment.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”2 The
phrase “sustained while in the performance of duty” has been interpreted by the Board to be the
equivalent of the commonly found prerequisite in workers’ compensation law of “arising out of
and in the course of employment.”3 The phrase “in the course of employment” is recognized as
relating to the work situation, and more particularly, relating to elements of time, place and
circumstance. To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be said to be engaged in the master’s business, at a place where he
may reasonably be expected to be in connection with the employment and while he was
reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto.”4 This alone is not sufficient to establish entitlement to benefits for compensability.
The concomitant requirement of an injury “arising out of the employment” must be shown, and
this encompasses not only the work setting but also a causal concept, the requirement being that
the employment caused the injury.5 In order for an injury to be considered as arising out of the
employment, the facts of the case must show some substantial employer benefit is derived or an
employment requirement gave rise to the injury.6
2

5 U.S.C. § 8102(a).

3

Charles Crawford, 40 ECAB 474, 476-77 (1989).

4

Mary Keszler, 38 ECAB 735, 739 (1987).

5

Eugene G. Chin, 39 ECAB 598, 602 (1988).

4

Coverage has been denied in a number of cases when the employee was engaged in a
personal action that did not substantially benefit the employer rather than performing a work
duty or some action incidental thereto. For example, in J.B.,7 coverage was denied when the
employee was injured while going to her car in order to retrieve her personal cell phone.8
ANALYSIS
On January 21, 2011 appellant filed a traumatic injury claim alleging that he sustained
injury to his low back and right hip at 3:30 p.m. on April 23, 2010. He indicated that the injury
occurred in his office on the employing establishment premises when he reached high above his
head to remove a heavy box from the top of a tall cabinet. Appellant asserted that, at the time of
the April 23, 2010 accident, he was on administrative leave with pay pending his retirement on
April 30, 2010. He claimed that he was given time to come into work in order to retrieve
personal items prior to his retirement. The injury occurred while he was retrieving a box of
personal items which he intended to take to his car.
Although the April 23, 2010 accident occurred in his regular workplace, appellant was
not injured during scheduled work hours, nor was he injured in the course of performing any
duties in connection with his actual employment. Rather, he was on a personal mission
collecting personal items in preparation for his retirement. Appellant testified that in the days
leading up to his intended retirement he was allowed by the employing establishment to come
into the office during nonscheduled hours between 9:00 a.m. and 4:00 p.m. to collect his
belongings and bring them home. The injury occurred when appellant pulled down a box of his
personal belongings to take to his car. There is no indication that this activity was a requirement
of appellant’s employment, that appellant was present at the workplace for any reason related to
his actual employment duties or that the employing establishment derived some substantial
benefit from the activity which caused injury. At the time of the accident on April 23, 2010,
appellant was not reasonably fulfilling the duties of his employment or engaged in doing
something incidental thereto.9 Appellant’s retrieval of personal items from his office in
anticipation of his retirement primarily benefited him, not the employing establishment.10
On appeal, appellant provided a list of reasons he felt that his actions on April 23, 2010
provided a benefit to the employing establishment, such as purging his e-mail account of
messages and separating proprietary from nonproprietary documents. However, appellant did
not submit evidence showing that his actions actually provided such benefits to the employing
establishment, nor did he explain how the specific action he engaged in at time of the April 23,
2010 incident provided substantial benefit to the employing establishment. At the time of the
7

Docket No. 11-106 (issued August 17, 2011).

8

See also Margaret Gonzalez, 41 ECAB 748, 751-54 (1990) (finding that pushing a coworker’s vehicle outside of
work hours was not related to the employee’s reasonable fulfillment of her employment duties or of something
incidental thereto).
9

See supra note 4.

10

See supra notes 7 and 8 for cases in which coverage was denied when the employees were engaged in personal
actions rather than performing work duties or actions incidental thereto.

5

incident he had already sorted through documents and other items, separated personal items from
work items and placed his personal items into the box that he intended to take to his car. He was
engaging in the personal action of taking nonwork items to his car in order to take them home
when the accident occurred. Appellant was not working on duty, nor was he performing work
duties or actions incidental to his work duties.
For these reasons, appellant was not in the performance of duty when the accident
occurred on April 23, 2010 and he did not sustain an injury in the performance of duty.
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 did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on April 23, 2010.
ORDER
IT IS HEREBY ORDERED THAT the December 9, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 17, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SOUTHERN ARIZONA VETERANS
ADMINSTRATION HEALTHCARE SYSTEM,
Tucson, AZ, Employer
__________________________________________

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

Docket No. 17-1386
Issued: December 13, 2017

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 filed a timely appeal from a February 15, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.2
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective February 15, 2017.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 15, 2017 decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
Thus, the Board is unable to review this evidence for the first time on appeal. See 20 C.F.R. §§ 501.2(c)(1); M.B.,
Docket No. 09-0176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007);
Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On March 25, 2016 appellant, then a 60-year-old social worker, filed a traumatic injury
claim (Form CA-1) alleging that on that date she sustained contusions to the bridge of her nose
and forehead when a cabinet door slid down and hit her on the head while she was opening the
cabinet. She continued working full duty following the injury, but stopped work on
April 8, 2016. Appellant returned to work for four hours per day on April 13, 2016.
On March 30, 2016 appellant was seen by Dr. Francis Stagg, a treating Board-certified
occupational medicine physician, for her March 25, 2016 injury. Dr. Stagg diagnosed head and
nasal contusions and indicated that she was capable of full-duty work.
In an April 8, 2016 work status work sheet, Dr. Richard Klassen, a treating physician
Board-certified in occupational medicine, indicated that appellant was disabled from work, but
could return to work on April 13, 2016. On April 13, 2016 he indicated that appellant was
capable of working four hours per day with restrictions for the period April 14 to 20, 2016.
Appellant continued to work part time based on Dr. Klassen’s opinion and restrictions.
On April 22, 2016 OWCP accepted the claim for head and nose contusions, and
subsequently expanded acceptance of the claim to include postconcussive syndrome. Appellant
received wage-loss compensation on the supplemental rolls from May 16 to October 25, 2016.
On April 26, 2016 appellant accepted a light-duty position for four hours of work per
day.
In reports dated April 26 and May 13, 2016, Dr. William B. Lujan, a treating Boardcertified neurologist, described how the work injury occurred and noted the medical treatment
appellant had received. He performed a neurological examination and diagnosed postconcussion
syndrome, without loss of consciousness. Dr. Lujan reported that appellant was slowly
improving and opined that she would eventually have full recovery from her symptoms. He
indicated that appellant was capable of working four hours per day, which would be increased to
six hours per day.
On May 18, 2016 appellant accepted a modified job offer working six hours per day
based on Dr. Lujan’s restrictions.
In a report dated June 22, 2016, Dr. Lujan provided a history of injury, reviewed
diagnostic tests, and performed a neurological examination. Appellant’s diagnoses were related
as cervical ligament sprain, postconcussion syndrome without loss of consciousness. Dr. Lujan
concluded that appellant sustained a mild concussion and recommended that she continue
working six hours per day. He indicated that he anticipated appellant’s full recovery from her
injury.
On July 21, 2016 OWCP referred appellant to Dr. Scott C. Forrer, a Board-certified
neurologist, for a second opinion evaluation to determine the status of her accepted injury and
whether she had physical limitations due to the accepted work injury.
On July 22, 2016 appellant accepted a light-duty position for six hours work per day.

2

On August 4, 2016 appellant was seen by Dr. Lujan for a follow-up evaluation of her
head injury. Dr. Lujan increased her work hours to eight per day and noted that she continued to
require time off for medical appointments and therapy sessions.
On August 11, 2016 appellant accepted a light-duty job offer from the employing
establishment to work eight hours per day.
In an August 16, 2016 report, Dr. Lujan reported that appellant had work restrictions due
to her accepted conditions which necessitated a break of 5 to 10 minutes from computer work,
every one and one-half to two hours. He also related that appellant found working eight hours
per day stressful.
In a report dated September 13, 2016, Dr. Forrer, based upon a review of the medical
evidence, statement of accepted facts, and physical and neurological examination, diagnosed
postconcussive syndrome and postconcussive neurologic phenomena. He explained that
diagnosis of postoncussive syndrome was supported by appellant’s complaints of post-traumatic
headaches with cervicogenic or muscle tension/contraction features, as well as pain at the base of
skull extending downward into appellant’s mid neck and headaches following the injury;
however, these symptoms were currently less frequent. Dr. Forrer reviewed a March 29, 2016
computer tomography scan of appellant’s head, which he noted was unremarkable. Appellant
related that she had no difficulty performing her work duties, her neck pain had become minimal,
and she no longer had frequent headache events. Examination findings included intact
comprehension, normal cervical nerves II to XII, normal sensory testing, cerebellar function, and
motor strength, normal gait, no lower cervical paraspinous musculature, bilateral tenderness in
upper-to-mid cervical paraspinous musculature, and no tenderness in the thoracic or lumbar
paraspinous musculature or trapezius. Dr. Forrer found no objective findings supporting
disability although there were subjective complaints of headache and neck pain. He noted that
appellant was currently performing her job as a social worker full time without restrictions.
Next, Dr. Forrer explained that appellant’s subjective complaints of neck pain and headache
were residuals of the accepted March 25, 2016 work injury, which he opined would resolve in
six to eight weeks.
Dr. Lujan, in reports dated September 15 and October 25, 2016, reiterated examination
and history finding from his prior reports. The diagnoses due to the accepted March 25, 2016
work injury continued to be concussion, cervical strain, and postconcussion syndrome.
Dr. Lujan noted that appellant sustained a mild head injury, which he opined likely caused a mild
concussion and postconcussion syndrome as well as a mild cervical strain/whiplash. He reported
improved cognition and that appellant was currently working eight hours per day, but with time
off for medical appointments and physical therapy.
On November 22, 2016 OWCP forwarded a copy of Dr. Forrer’s report to Dr. Lujan for
review and opinion as to whether he agreed or disagreed with Dr. Forrer’s opinion.
In a December 14, 2016 letter, Dr. Lujan responded to and disagreed with Dr. Forrer’s
conclusion that appellant was at maximum medical improvement and no longer had any
residuals from her accepted March 25, 2016 work injury. Based on his October 25, 2016
examination, Dr. Lujan opined that appellant continued to have residuals in the form of
intermittent dizziness with head movement, neck and upper thoracic pain, and intermittent
3

headaches. While he was of the opinion that appellant would make a full recovery in time, he
would reevaluate whether appellant had reached maximum medical improvement at her next
appointment on January 3, 2017.
Dr. Lujan, in a progress note dated January 3, 2017, concluded that appellant currently
was at maximum medical improvement and that her case could be closed. He recommended
supportive care of one to two neurological follow-up visits and cervical and thoracic physical
therapy, as needed.
On January 11, 2017 OWCP issued a notice proposing to terminate appellant’s
compensation benefits. It found that the reports from Drs. Forrer and Lujan established that
appellant no longer had any residuals or disability due the accepted head and nose contusions
and postconcussive syndrome.
By correspondence dated January 26, 2017, appellant noted her disagreement with the
proposal to terminate her compensation benefits. She noted that Dr. Lujan opined that her work
case be closed, but indicated she required continued supportive care on an as needed basis.
By decision dated February 15, 2017, OWCP finalized the termination of appellant’s
wage-loss compensation and medical benefits, effective February 15, 2017. It found the medical
evidence of record established that appellant no longer had any residuals or disability due to her
accepted head and nose contusions and postconcussive syndrome. OWCP noted that Dr. Forrer,
an OWCP referral physician, concluded that appellant no longer had any residuals or disability
due to the accepted work injury and that on January 3, 2017 Dr. Lujan, a treating physician,
found that appellant had reached maximum medical improvement and her case should be closed.
With respect to Dr. Lujan recommending supportive care, it found this concerned future medical
care was prophylactic, in nature, and not compensable under FECA.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.4 Its burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.6 To terminate authorization for medical treatment, OWCP must

3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

4

establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
ANALYSIS
OWCP accepted that appellant sustained head and nose contusions, and postconcussive
syndrome as a result of the accepted March 25, 2016 work injury. Based on the opinion of
Drs. Forrer and Lujan, OWCP terminated her compensation benefits effective February 15, 2017
as it found she no longer had any residuals or disability due to the accepted March 25, 2016 work
injury. It found Dr. Forrer’s opinion constituted the weight of the medical opinion evidence.
OWCP also noted that while Dr. Lujan, in a January 3, 2017 report, opined that appellant’s case
could be closed, his recommendation for supportive care was based on a possible future reinjury
or injury.
The Board finds that OWCP has met its burden of proof to terminate appellant’s wageloss compensation and medical benefits as the opinions of Dr. Forrer and Dr. Lujan establish that
she had no further disability or residuals due to her accepted employment injury.
Initially, the Board notes that the evidence of record includes reports from Dr. Stagg and
Dr. Klassen, who treated appellant shortly following her March 25, 2016 employment injury.
However, as these physicians did not further evaluate appellant to determine the status of her
accepted conditions, their reports from March and April 2016 are of diminished probative value
relative to the issue of the termination of appellant’s compensation benefits.8
The August 26, 2015 report of Dr. Forrer reflected a second opinion evaluation to
determine whether appellant had any continued disability or residuals due to her accepted
March 25, 2016 work injury. Dr. Forrer detailed the history of headache and pain complaints,
noted that she was working full time, and that her symptoms of pain and headache had subsided.
On examination he found normal cervical nerves, normal sensory testing, no thoracic, lumbar, or
lower cervical paraspinous musculature tenderness, and bilateral tenderness in the upper-to-mid
cervical paraspinous musculature. Dr. Forrer opined that there were no objective findings
showing residuals of the accepted conditions, but there were subjective pain and headache
complaints. He concluded that the pain and headache complaints were residuals of the accepted
March 25, 2016 work injury and would resolve in six to eight weeks. Dr. Forrer further noted
that appellant was currently performing her usual job as a social worker full time and without
restrictions. He based his opinion on a complete factual and medical background and provided
detailed findings on examination. Dr. Forrer reached medical conclusions regarding appellant’s
condition which was supported by his findings.9 The Board, therefore, finds that Dr. Forrer’s
opinion is sufficient to justify termination of appellant’s compensation.
On January 3, 2017 Dr. Lujan determined that appellant’s case could be closed as she had
reached maximum medical improvement. The Board has found that to terminate compensation
7

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

8

See O.L., Docket No. 10-0924 (issued February 24, 2011).

9

M.R., Docket No. 14-1405 (issued December 22, 2015); Pamela K. Guesford, 53 ECAB 727 (2002).

5

benefits, OWCP may properly rely on medical evidence from appellant’s own treating physician
which establishes that the accepted conditions have resolved.10 As appellant’s attending
physician, Dr. Lujan, had a thorough knowledge of appellant’s condition, his opinion is
probative on the issue of whether appellant had any further disability due to her accepted
employment injury. With respect to Dr. Lujan’s recommendation for supportive care on an as
needed basis, the Board finds that this concern for a possible future injury or reinjury, which is
not compensable under FECA.11 The Board, therefore, finds that OWCP properly relied upon
both Dr. Lujan and Dr. Forrer in terminating appellant’s compensation benefits.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective February 15, 2017.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 15, 2017 is affirmed.
Issued: December 13, 2017
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

10

G.G., Docket No. 17-0537 (issued July 20, 2017).

11

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

6