United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, CENTRAL SQUARE
POST OFFICE, Cambridge, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-2184
Issued: April 10, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 27, 2006 appellant filed a timely appeal from a June 29, 2006 merit
decision of an Office of Workers’ Compensation Programs’ hearing representative, terminating
her compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this termination case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective June 29, 2005 on the grounds that she no longer had any residuals or disability causally
related to her accepted employment-related injuries.
FACTUAL HISTORY
This case has previously been on appeal before the Board. In a decision dated June 27,
2003, the Board reversed the Office’s August 1, 2002 decision, which terminated appellant’s
compensation on the grounds that she no longer had any residuals or disability causally related to

her accepted employment-related injuries.1 The Board found that a conflict in the medical
opinion evidence was created between Drs. William F. Fishbaugh, Jr., and George P. Whitelaw,
attending physicians, and Dr. Lawrence F. Geuss, an Office referral physician, as to whether
appellant had any continuing employment-related residuals. The facts and the circumstances of
the case as set forth in the Board’s prior decision are incorporated herein by reference. The facts
and the history relevant to the present issue are hereafter set forth.2
Following the issuance of the Board’s June 27, 2003 decision, the Office, by letter dated
November 24, 2003, referred appellant, together with a statement of accepted facts, the case
record and a list of questions to be addressed, to Dr. John F. McConville, a Board-certified
orthopedic surgeon, for an impartial medical examination.
In a December 12, 2003 medical report, Dr. McConville reviewed appellant’s medical
records and history of her employment-related injuries. On physical examination, he reported
very satisfactory range of motion of both the right and left knee with no evidence of joint
effusion. There was no indication of instability either anteriorly, posteriorly or mediolaterally.
Dr. McConville stated that the excessive lateral posture of the patellar was developmental and in
no way related to the work injury. He opined that appellant no longer continued to suffer from
residuals of her accepted employment injuries. Dr. McConville indicated that she was capable of
performing the duties of a modified letter carrier, eight hours a day.
By decision dated January 13, 2004, the Office terminated appellant’s compensation
benefits effective January 25, 2004 on the grounds that she no longer had any employmentrelated residuals or disability. The Office accorded special weight to Dr. McConville’s
December 12, 2003 report as an impartial medical specialist.
On January 15, 2004 appellant requested an oral hearing before an Office hearing
representative. In an August 20, 2004 decision, a hearing representative set aside the January 13,
2004 decision and remanded the case to the Office for further action, finding that
Dr. McConville’s December 12, 2003 opinion was not sufficiently rationalized and based on a
complete factual and medical history. On remand, the hearing representative directed the Office
to refer appellant to another impartial medical examiner to resolve the conflict in the medical
opinion evidence regarding her continuing employment-related disability.

1

Docket No. 02-2373 (issued June 27, 2003).

2

On June 2, 1992 appellant, then a 28-year-old letter carrier, filed a traumatic injury claim assigned file number
01-0302133 alleging that on April 23, 1992 she was involved in a motor vehicle accident while in the performance
of duty, which caused bone chips in her right knee. The Office accepted her claim for bilateral knee contusions and
fracture of the distal end of the right femur. On September 1, 1993 appellant filed an occupational disease claim
assigned file number 01-0313292. She alleged that on August 4, 1993 she first realized that her left knee had
become bad due to a combination of her federal employment, April 23, 1992 employment-related injuries and
walking differently as she favored her right knee which added extra strain on her left knee. The Office accepted
appellant’s claim for aggravation of degenerative joint disease in both knees and internal derangement of the left
knee and fracture of the distal end of the right femur. The Office later combined her claims assigned file numbers
01-302133 and 01-0313292 into a master case file assigned number 01-0313292.

2

By letter dated December 10, 2004, the Office referred appellant, together with a
statement of accepted facts, the case record and a list of questions to be addressed, to
Dr. David W. Lhowe, a Board-certified orthopedic surgeon, for an impartial medical
examination.
In a January 19, 2005 report, Dr. Lhowe reviewed the Office’s November 25, 2003
statement of accepted facts and history of appellant’s employment, April 23, 1992 employmentrelated injuries and medical treatment. He reported essentially normal findings on physical
examination. Dr. Lhowe diagnosed bilateral patellofemoral osteoarthritis. He stated that
appellant’s symptom of anterior knee pain, which was aggravated by stair climbing and
squatting, was consistent with bilateral patellofemoral osteoarthritis. His physical examination
revealed objective evidence of this condition in the form of reproducible crepitus at both
patellofemoral joints with lateral tracking of both patellae. Dr. Lhowe stated that x-rays
confirmed evidence of patellofemoral osteoarthritis as early as 1993. He further stated that
appellant’s hypervalgus alignment aggravated her symptoms, as well as, her obesity. Dr. Lhowe
opined that she sustained a contusion of both knees as a result of the April 23, 1992 employment
injury “but did not fracture the patella or dislocate the patellofemoral joint on either side.” He
stated that this injury resulted in a temporary aggravation of appellant’s underlying but
asymptomatic patellofemoral arthritis for no more than 24 months. The fact that her knee
symptoms had become progressively worse overtime was a reflection of the progressive nature
of arthritis and not the result of her work injury. Dr. Lhowe stated that appellant’s current
symptoms and functional limitations were no longer attributable to the April 23, 1992
employment injuries, the effects of which likely resolved within two years. Regarding her work
capacity, he stated that she could not perform the duties of a modified letter carrier as described
in the accompanying statement of accepted facts. Dr. Lhowe indicated that the specific physical
limitations and work restrictions he prescribed were attributable to appellant’s patellofemoral
arthritis and not to the April 23, 1992 employment injuries. In a work capacity evaluation dated
January 10, 2005, Dr. Lhowe stated that appellant was capable of working eight hours a day and
noted her physical restrictions.
By letter dated March 4, 2005, the Office requested that Dr. Lhowe submit a
supplemental report addressing the issue of whether appellant’s employment related August 4,
2003 bilateral aggravation of degenerative joint disease of the knees and fracture of the distal end
of the right patella had resolved or still contributed to her ongoing disability.3
In a supplemental report dated March 21, 2005, Dr. Lhowe stated that when he examined
appellant on January 4, 2005, “she was quite clear in stating that there was only one injury of her
knees -- that being the one she sustained on April 23, 1992.” (Emphasis in the original). Based
on his review of the statement of accepted facts, Dr. Lhowe could not ascertain any specific

3

The Board notes that it appears that the Office inadvertently stated that appellant sustained an injury on
August 4, 2003 rather than referring to August 4, 1993 as the date she alleged in her CA-2 form that she first
realized that her left knee problems were caused by her employment and April 23, 1992 employment-related
injuries.

3

injury that occurred on August 4, 2003.4 He noted that it referred to a worsening of left knee
symptoms attributable to appellant having to favor the right knee in the course of her work
duties. Dr. Lhowe stated that the events described in her claim did not comprise an injury with
permanent implications for her left knee. He reiterated his prior diagnosis of bilateral
patellofemoral arthritis. Dr. Lhowe stated that this condition was progressive in nature and was
going to become worse as time went on whether appellant sat, stood or walked. He indicated
that she could certainly experience more pain if she placed a load on her patellofemoral joints but
this would not alter the natural history of her condition. Dr. Lhowe concluded that the August 4,
2003 employment-related injuries had resolved and no longer contributed to appellant’s
disability at that time.
By letter dated April 29, 2005, the Office issued a notice of proposed termination of
appellant’s compensation based on Dr. Lhowe’s January 19 and March 21, 2005 reports. The
medical evidence established that her current medical conditions were not caused by her work
duties or accepted employment injuries. The Office provided 30 days in which appellant could
respond to this notice. Appellant did not respond within the allotted time period.
By decision dated June 29, 2005, the Office terminated appellant’s compensation benefits
effective that date on the grounds that she no longer had any employment-related residuals or
disability. The Office accorded special weight to Dr. Lhowe’s January 19 and March 21, 2005
medical opinions as an impartial medical specialist.
On July 5, 2005 appellant requested an oral hearing before a hearing representative.
Following the March 30, 2006 hearing appellant argued that the termination of her
compensation benefits based on Dr. Lhowe’s January 19 and March 21, 2005 reports was
incorrect and the decision should be reversed. She stated that his finding that she did not sustain
a fracture of the patella was outside the statement of accepted facts. Appellant noted that the
Office had accepted that she sustained a right fracture of the distal end of the femur as a
consequence of the April 23, 1992 employment injury. She further contended that Dr. Lhowe’s
March 21, 2005 statement that he could not ascertain that she sustained an injury on August 4,
1993 was contradictory in light of his ultimate finding that the injuries she claimed on that date
had resolved and no longer contributed to her continuing disability. Appellant stated that the
August 4, 1993 date was administratively assigned by the Office as the date of injury for her
occupational disease claim and not a traumatic injury claim. She related that Dr. Lhowe was
unable to identify a specific injury sustained on August 4, 1993 because she did not sustain a
traumatic injury rather she developed an occupational disease which involved an insidious onset
of injury. Appellant argued that he incorrectly stated that the facts of her claim did not comprise
an injury to the left knee as the Office had accepted her claim for internal derangement of the left
knee. She also argued that Dr. Whitelaw’s opinion that her accepted fracture caused loose
bodies in the knee which required surgical removal, demonstrated that she continued to suffer
residuals of her accepted employment injuries.
4

It appears that Dr. Lhowe inadvertently stated that appellant sustained an injury on August 4, 2003 rather than
August 4, 1993 as he mentioned the latter date in his March 21, 2005 report when he referred to the Office’s request
for additional information regarding the issue of whether appellant had any continuing residuals or disability
causally related to the August 4, 1993 employment injury.

4

In a decision dated June 29, 2006, a hearing representative affirmed the June 29, 2005
decision. The hearing representative accorded special weight to Dr. Lhowe’s January 19 and
March 21, 2005 medical reports as an impartial medical specialist.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that, an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.5
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6
Section 8123(a) of the Federal Employees’ Compensation Act7 provides that, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary of Labor shall appoint a third physician who shall make
an examination.8 Where a case is referred to an impartial medical specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.9
ANALYSIS
Appellant’s claim was accepted for bilateral knee contusions, fracture of the distal end of
the right femur, aggravation of degenerative joint disease in both knees and internal derangement
of the left knee. The Board notes that, contrary to appellant’s contention on appeal, a conflict in
the medical opinion evidence was created between her attending physicians, Drs. Fishbaugh and
Whitelaw, and Dr. Geuss, an Office referral physician, as to whether she had any continuing
residuals or total disability causally related to her accepted employment-related bilateral knee
contusions and fracture of the distal end of the right femur, aggravation of degenerative joint
disease in both knees and internal derangement of the knee. Both Drs. Fishbaugh and Whitelaw
opined that the April 23, 1992 employment injury continued to aggravate appellant’s preexisting
degenerative arthritis and caused an osteochondral fracture with loose bodies. Dr. Geuss opined
that the April 23, 1992 employment injury only temporarily aggravated appellant’s preexisting
degenerative arthritis condition and that she could perform her modified work duties.
The Board, in its June 27, 2003 decision, properly instructed the Office to refer appellant
to Dr. Lhowe, selected as the impartial medical specialist. The Office terminated appellant’s
compensation benefits on the basis of Dr. Lhowe’s January 19 and March 21, 2005 reports. The
5

Jason C. Armstrong, 40 ECAB 907 (1989).

6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

5 U.S.C. § 8123(a).

8

Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45 ECAB 207 (1993).

9

See Roger Dingess, 47 ECAB 123 (1995); Glenn C. Chasteen, 42 ECAB 493 (1991).

5

Board finds, however, that his opinions are of diminished probative value and are not entitled to
the special weight accorded an impartial medical specialist. In a January 19, 2005 report,
Dr. Lhowe stated that, appellant only sustained contusions of both knees. He did not accept that
she sustained a fracture. Dr. Lhowe stated that appellant “did not fracture the patella or dislocate
the patellofemoral joint on either side.” The record, however, reflects the Office’s acceptance
that on April 23, 1992, appellant sustained a fracture of the distal end of the right femur in the
performance of duty.
In the March 21, 2005 report, Dr. Lhowe stated that, appellant only sustained an injury to
her knees on April 23, 1992. He did not accept that she sustained a left knee condition on
August 4, 2003,10 indicating that “she was quite clear in stating that there was only one injury of
her knees -- that being the one she sustained on April 23, 1992.” (Emphasis in the original.)
Dr. Lhowe stated that he could not ascertain any specific injury sustained by appellant on
August 4, 1993 based on his review of the November 25, 2003 statement of accepted facts.
However, the record reflects that the Office accepted appellant’s occupational disease claim for
aggravation of degenerative joint disease, internal derangement of the left knee and fracture of
the distal end of the right femur, which appellant contended that she became aware of and its
relationship to factors of her federal employment on August 4, 1993.
The Board finds that Dr. Lhowe’s January 19 and March 21, 2005 opinions are based on
an incomplete and inaccurate factual and medical background. Therefore, they are not entitled to
the special weight accorded an impartial medical specialist.11 Moreover, the Board finds that,
since Dr. Lhowe’s opinions do not resolve the conflict in the medical evidence as to whether
appellant had any continuing residuals or disability causally related to her accepted employmentrelated injuries, the Office did not meet its burden of proof in terminating her compensation
benefits.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation benefits
effective June 29, 2005 on the grounds that she no longer had any residuals or disability causally
related to her accepted employment-related injuries.

10

See supra note 4.

11

Gwendolyn Merriweather, 50 ECAB 410, 415-16 (1999); James R. Driscoll, 50 ECAB 146, 154-55 (1998).

6

ORDER
IT IS HEREBY ORDERED THAT the June 29, 2006 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 10, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
FEDERAL JUDICIARY, U.S. DISTRICT
COURT, Santa Ana, CA, Employer
__________________________________________
Appearances:
Max Gest, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 11-923
Issued: November 15, 2011

Case Submitted on the Record

ORDER REVERSING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On March 2, 2011 appellant filed a timely appeal from a January 6, 2011 decision of an
Office of Workers’ Compensation Programs’ (OWCP) hearing representative that affirmed a
June 28, 2010 decision that terminated her compensation benefits effective July 4, 2010. The
claim was docketed as No. 11-923.1
The Board has duly considered the matter and finds this case must be reversed. OWCP
issued a notice of proposed termination of compensation on May 19, 2010. In response,
appellant submitted a June 24, 2010 report from Dr. Edward H. Bestard, a Board-certified
orthopedic surgeon, that was scanned into the record on June 24, 2010. In his June 24, 2010
report, Dr. Bestard noted his history of treating appellant and advised that her symptoms were
dependent on how many hours she worked. He noted findings, advised that appellant’s
prognosis was guarded, and opined that her condition and disability were precipitated/accelerated
by factors of employment. Dr. Bestard also opined that the report of an OWCP referral
1

On October 11, 2000 appellant, then a 40-year-old court reporter, filed an occupational disease claim for a right
elbow condition. The claim was accepted for right elbow tendinitis. On October 30, 2002 appellant filed a
recurrence claim, noting that she began part-time work of 20 hours each week on August 5, 2002. OWCP
adjudicated the claim as a new injury under file number xxxxxx307 and accepted the conditions of tenosynovitis and
enthesopathy of the right wrist/hand and right shoulder strain under this claim. The claims have now been doubled.
Appellant began working 25 hours per week on March 16, 2009.

physician was contradictory regarding the hours appellant could work and her physical
restrictions.
In the June 28, 2010 decision that terminated appellant’s benefits effective July 4, 2010,
OWCP stated that no medical evidence was received subsequent to the termination notice. A
hearing was held on October 20, 2010. Appellant submitted reports dated September 28 and
November 23, 2010 from Dr. Jacob E. Tauber, Board-certified in orthopedic surgery. In a
January 6, 2011 decision affirming the June 28, 2010 termination decision, the OWCP hearing
representative referenced Dr. Tauber’s September 28, 2010 report but did not reference either
Dr. Bestard’s June 24, 2010 report or Dr. Tauber’s November 23, 2010 report.
In the case of William A. Couch,2 the Board held that when adjudicating a claim, OWCP
is obligated to consider all relevant evidence properly submitted by a claimant and received by
OWCP before the final decision is issued. Appellant submitted Dr. Bestard’s June 24, 2010
report on June 24, 2010 when it was faxed to OWCP and scanned into the record. This report
was not considered by either OWCP’s claims examiner or OWCP’s hearing representative in
rendering their decisions. Thus, the termination must be reversed as OWCP did not consider all
of the evidence properly before it when it terminated compensation.
IT IS HEREBY ORDERED THAT the January 6, 2011 decision of the Office of
Workers’ Compensation Programs be reversed.
Issued: November 15, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

41 ECAB 548 (1990); see Willard McKennon, 51 ECAB 145 (1999).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-713
Issued: August 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 5, 2013 appellant filed a timely appeal of a January 30, 2013 Office of
Workers’ Compensation Programs’ (OWCP) merit decision concerning an overpayment of
compensation. 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 the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $11,974.43 for the periods June 28, 2006 to
March 13, 2010 and from August 14, 2010 through September 24, 2011 because he concurrently
received FECA and Social Security Administration (SSA) benefits without an appropriate
retirement benefit offset; (2) whether appellant was without fault in the creation of the
overpayment; and (3) whether the overpayment should be recovered by withholding $175.00
from his continuing compensation payment every 28 days.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. Appellant has several claims for injury
beginning on October 8, 1996. OWCP accepted his claims for right wrist sprain, right carpal
tunnel syndrome and surgical release (File No. xxxxxx143); lesion of the ulnar nerve, contusion
of the shoulder and depressive disorder (File No. xxxxxx149); severe osteoarthritis of the right
shoulder (File No. xxxxxx149); reflex sympathetic dystrophy, depressive disorder, reflux
esophagitis, lesion of the right ulnar nerve (File No. xxxxxx197); and radial collateral ligament
tear on June 1, 2000 (File No. xxxxx197).
On November 7, 2007 OWCP granted appellant a schedule award for 11 percent of the
right arm. The period of the schedule award was from October 30, 2005 through June 27, 2006.
Appellant completed EN1032 forms on November 14, 2006, November 24, 2007,
November 15, 2008 and November 9, 2009. The forms required him to report any retirement
benefits from any federal disability or retirement system except for benefits under FECA.
Appellant stated that he had not received any benefits from SSA as part of an annuity under the
Federal Employees’ Retirement System.
Appellant received compensation on the periodic rolls from February 14 through
March 13, 2010. By decision dated March 22, 2010, OWCP granted him a schedule award for
seven percent impairment of his left arm. The period of the award ran from March 14 through
August 13, 2010. OWCP again entered appellant on the periodic rolls on August 19, 2010
beginning August 29 through September 25, 2010. It noted that his schedule award expired on
August 13, 2010. Appellant completed a Form EN1032 on November 7, 2010 and noted that he
was not receiving benefits from SSA as part of an annuity for federal service.
In a dual benefits calculation, SSA stated that appellant was entitled to disability from
February 2001 through April 2006 and became entitled to retirement benefits effective
May 2006. On November 25, 2011 OWCP made a preliminary determination that he received
an overpayment of compensation as he accepted compensation to which he was not entitled.
By decision dated May 30, 2012, OWCP’s hearing representative found that appellant
received an overpayment in the amount of $13,419.62 during the period May 1, 2006 through
September 24, 2011 as he received both FECA benefits and SSA benefits. He noted that
appellant failed to report SSA benefits to OWCP on the CA-1032 forms that he completed.
Appellant was not without fault in the creation of the overpayment. The hearing representative
reviewed the financial information supplied by appellant and noted that his household was
currently realizing $301.80 of income over expenses every month as well as maintaining $295.00
in his checking account and personal property or other funds valued at approximately $8,000.00.
He found that appellant had an excess of $301.80 of income over expenses every month and that
a reasonable repayment plan would entail the claimant’s payment of $250.00 every 28 days.
The Board found on prior appeal that appellant received an overpayment of compensation
due to dual SSA and FECA benefits. It noted that he received two schedule awards during the
period covered by OWCP’s finding of overpayment, the November 7, 2007 schedule award from
October 30, 2005 through June 27, 2006 overlapped the overpayment period May 1 through
June 27, 2006 and the March 22, 2010 schedule award from March 14 through August 13, 2010,
2

overlapped the period of overpayment of May 1, 2006 through September 24, 2011. The Board
remanded the case for OWCP to recalculate the period and amount of the overpayment and issue
a de novo decision regarding the dual SSA and FECA disability benefits without including the
periods during which he received schedule awards.2 The facts of the case as set forth in the
Board’s prior decision are incorporated herein by reference.
Following the Board’s remand, OWCP recalculated the amount of the overpayment by
exempting the periods of the schedule awards. It determined that appellant had an overpayment
of $11,974.43. In a memorandum to file dated January 25, 2013, the claims examiner noted the
new amount of the overpayment and noted that appellant’s compensation payments had been
deducted at the rate of $250.00 since June 30, 2012 resulting in a balance of $10,038.62.
By decision dated January 30, 2013, OWCP found an overpayment of compensation in
the amount of $11,974.43. It noted that appellant was at fault in the matter of the creation of the
overpayment. OWCP noted that the periods of overpayment were from June 28, 2006 to
March 13, 2010 and from August 14, 2010 through September 24, 2011. It explained how the
amount of the overpayment was calculated and noted that the recovery of the overpayment had
been adjusted to reflect a continuing withholding from appellant’s ongoing compensation in the
amount of $175.00 beginning February 9, 2013 rather than the $250.00 previously withheld.
OWCP further noted that his previous withholdings of $250.00 since June 30, 2012 were applied
to the overpayment, reducing the amount to $10,038.62.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service.3 If an employee
receives SSA benefits based on federal service, his or her compensation benefits shall be reduced
by the amount of SSA benefits attributable to his or her federal service.
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.4 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without the FERS covered earnings.
OWCP will then deduct the hypothetical benefit from the actual benefit to determine the amount

2

Docket No. 12-1383 (issued December 28, 2012).

3

5 U.S.C. § 8116(d). See N.R., Docket No. 12-1853 (issued June 10, 2013).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995);
Chapter 2.1000.4(e)(2) (February 1995); Chapter 2.1000.11 (February 1995); OWCP does not require an election
between FECA benefits and SSA benefits except when they are attributable to the employee’s federal service. See
also R.C., Docket No. 09-2131 (issued April 2, 2010).

3

of benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of compensation payable.5
ANALYSIS -- ISSUE 1
The record establishes that appellant received SSA benefits attributable to his federal
employment and disability compensation from June 28, 2006 through March 13, 2010 and from
August 14, 2010 through September 24, 2011. This constituted a prohibited dual payment. The
record contains documents from SSA delineating the offset figures that OWCP used to calculate
the overpayment. It found that the $11,974.43 overpayment was comprised of $176.58 per week
for the period June 28 through November 30, 2006 in the amount of $983.80; $182.40 per week
for the period December 1, 2006 through November 30, 2007 in the amount of $2,377.71;
$186.65 per week for the period December 1, 2007 through November 30, 2008 in the amount of
$2,439.78; $197.54 per week for the period December 1, 2008 through March 13, 2010 in the
amount of $3,301.75; and $197.54 per week for the period August 14 2010 through
September 24, 2011 in the amount of $2,871.39. OWCP noted that payments in the amount of
$250.00 had been applied to the previously determined amount since June 30, 2012 and the
balance of the debt was $10,038.62. The Board previously affirmed the fact of overpayment in
the prior appeal. The recalculated amount of the overpayment will be affirmed.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that where an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled.6 The only exception to this requirement is a situation which
meets the tests set forth as follows in section 8129(b). Adjustment or recovery by the United
States may not be made when incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of FECA or would be against
equity and good conscience.7 Accordingly, no waiver of an overpayment is possible if the
claimant is with fault in helping to create the overpayment.

5

FECA Bulletin No. 97-09 (issued February 3, 1997). Retirement benefits paid by OPM or SSA can be paid
concurrently with a schedule award without any deduction from FECA benefits.
6

5 U.S.C. § 8129.

7

Id. at § 8129(b).

4

In determining whether an individual is with fault, section 10.320(b) of OWCP’s
regulations8 provide in relevant part:
“An individual is with fault in the creation of an overpayment who:
Made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or
Failed to furnish information which the individual knew or should
have known to be material; or
With respect to the overpaid individual only, accepted a payment
which the individual knew or should have been expected to know
was incorrect.”
ANALYSIS -- ISSUE 2
OWCP applied the first standard, that appellant made an incorrect statement as to a
material fact which he knew or should have known to be incorrect. It noted that he denied
receiving benefits from SSA on the EN1032’s submitted to the record. The EN1032 forms
advised appellant that he must immediately report to OWCP any change in income from
federally assisted disability or benefits programs.
The Board finds that the evidence establishes that appellant was aware that he received
SSA and FECA benefits simultaneously. Appellant failed to inform OWCP that he was
receiving SSA benefits on the EN1032 forms he completed. As noted, the Form EN1032 not
only requests that he indicate whether he received an annuity from SSA, but also whether he had
a change in income from any federally assisted benefit program. Based on the clear language of
the forms which appellant knowingly signed, appellant made an incorrect statement as to a
material fact. The Board finds that he was at fault in the creation of the overpayment and is
precluded from receiving a waiver.
LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual who is entitled to further
payments, proper adjustment shall be made by decreasing subsequent payments of compensation
having due regard to the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to minimize any
resulting hardship on the individual.9
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of compensation by deducting $175.00
from appellant’s compensation payments every 28, days, OWCP took into consideration the
8

20 C.F.R. § 10.320(b).

9

Id. at § 10.441(a). See Steven R. Cofrancesco, 57 ECAB 62 (2006).

5

financial information submitted by him as well as the factors set forth in section 10.441 and
found that this method of recovery would minimize any resulting hardship on appellant.
OWCP’s hearing representative had previously considered appellant’s financial situation and
instituted a repayment plan of $250.00 every 28 days. OWCP, on remand from the Board,
reduced this repayment by $75.00 per month to reflect the reduced amount of the overpayment.
Therefore, it properly required repayment of the overpayment by deducting from appellant’s
compensation payments every 28 days at $175.00.
CONCLUSION
The Board finds that appellant received an overpayment of $11,974.43 for the periods
June 28, 2006 to March 13, 2010 and from August 14, 2010 through September 24, 2011
because he received dual compensation benefits from SSA and under FECA. The Board further
finds that OWCP properly found that appellant was at fault in the creation of the overpayment
and that recovery should be made in the amount of $175.00 per month from his continuing
compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 15, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

Docket No. 21-0585
Issued: March 11, 2022

Case Submitted on the Record

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

On March 5, 2021 appellant filed a timely appeal from a November 13, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 21-0585.
On May 7, 2018 appellant, then a 58-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 4, 2018,1 at approximately 8:30 a.m., he strained his back when
picking up a delivery point sequence (DPS) tray while in the performance of duty. He stopped
work on the alleged date of injury. OWCP assigned the claim OWCP File No. xxxxxx463.2

1

Appellant indicated on his claim form that the injury occurred on May 5, 2018. In a June 11, 2018 letter, however,
appellant clarified that the correct date of injury was May 4, 2018. In a June 13, 2018 letter, the employing
establishment notified OWCP that the correct date of injury was May 4, 2018. In a June 19, 2018 letter, OWCP
notified appellant that his date of injury was changed to May 4, 2018.
2

The record reflects that appellant has a prior cla im for a February 4, 2009 traumatic injury, that was accepted for
lumbar sprain under OWCP File No. xxxxxx873. Appellant also has a prior claim for a June 7, 2011 traumatic injury
accepted for shoulder and upper arm sprains; abrasions/friction burn; contusion; face, neck, and scalp
abrasions/friction; neck sprain; lumbar sprain; and concussion under OWCP File No. xxxxxx378. Additionally, he
filed a Form CA-1 on September 29, 2017 alleging that he sustained a work-related back and neck injury on that date
under OWCP File No. xxxxxx574. Appellant subsequently filed a nother Form CA-1 alleging that on November 16,
2017 he strained his mid-back under OWCP File No. xxxxxx665.

By decision dated January 14, 2019, OWCP accepted that the May 4, 2018 incident
occurred as alleged, but denied appellant’s claim as the medical evidence of record was insufficient
to establish causal relationship between a diagnosed medical condition and the accepted
employment incident.
OWCP received additional medical evidence.
On September 21, 2019 appellant requested reconsideration.
By decision dated November 8, 2019, OWCP modified the January 14, 2019 decision to
find that appellant had not established the factual component of his claim.
On February 4, 2020 appellant requested reconsideration and submitted additional medical
evidence.
By decision dated March 23, 2020, OWCP denied modification.
On June 19, 2020 appellant requested reconsideration. By decision dated September 11,
2020, OWCP denied modification of the March 23, 2020 decision.
On October 1, 2020 appellant requested reconsideration and submitted additional evidence.
By decision dated November 13, 2020, OWCP denied modification.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files. 3 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required. 4 In the present claim,
appellant alleged injuries to his back, shoulders, and neck. He has prior claims before OWCP
alleging neck, shoulder, and back injuries, including previously accepted claims under OWCP File
Nos. xxxxxx873 and xxxxxx378. However, OWCP has not administratively combined appellant’s
claims.
For a full and fair adjudication of appellant’s current claim, the case must be remanded to
OWCP to administratively combine the current case record with OWCP File Nos. xxxxxx873,
xxxxxx378, xxxxxx574, and xxxxxx665.5 Following this and other such further development as
OWCP deems necessary, it shall issue a de novo decision.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

5

Id.

2

IT IS HEREBY ORDERED THAT the November 13, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 11, 2022
Washington, DC

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

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

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

3


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

)
)
)
)
)
)
)
)

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

Docket No. 09-520
Issued: December 18, 2009

Case Submitted on the Record

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

JURISDICTION
On December 15, 2008 appellant, through her attorney, filed a timely appeal from a
March 5, 2008 decision of the Office of Workers’ Compensation Programs affirming the
termination of her compensation benefits; finding that she was not entitled to an additional
schedule award and that she did not establish a recurrence of disability. She also appeals an
August 14, 2008 nonmerit decision denying her request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the appeal.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits effective August 14, 2007 on the grounds that she had no further employment-related
disability; (2) whether the Office properly terminated authorization for medical treatment;
(3) whether appellant has established that she is entitled to an increased schedule award of the
right lower extremity; (4) whether she sustained an employment-related recurrence of disability
beginning March 10, 2003; and (5) whether the Office properly denied her request for further
review of the merits under 5 U.S.C. § 8128.

FACTUAL HISTORY
This case is before the Board for the third time. By decision dated June 1, 2000, the
Board affirmed in part and reversed in part a January 12, 1998 decision terminating appellant’s
compensation benefits for the accepted conditions of left ankle sprain, a contusion of the right
knee and lumbosacral sprain.1 The Board found that the Office met its burden of proof to
establish that she had no further disability due to her left ankle sprain and right knee contusion.
However, the Office did not meet its burden of proof to terminate compensation for the
appellant’s lumbosacral strain due to an unresolved conflict in medical opinion. The Board
directed the Office to further develop the issue of whether her authorized November 2, 1989
arthroscopic knee surgery caused or contributed to any right lower extremity impairment or
disability for employment. The Board found that appellant had not established that she had any
other diagnosed conditions causally related to her June 26, 1989 work injury. In a July 31, 2001
decision, the Board reversed the termination of appellant’s compensation benefits for the
accepted condition of lumbosacral strain.2 The Board found that the opinion of the impartial
medical examiner was insufficient to resolve the conflict in medical opinion. The findings of
fact and conclusions of law from the prior decisions are hereby incorporated by reference.
The Office paid appellant compensation for disability from March 5, 1995 through
August 31, 1996, April 1 through August 11, 1997 and August 21, 1997 through
October 6, 2001. Appellant returned to limited-duty employment on October 6, 2001. On
July 12, 2004 the Office granted her a schedule award for a 13 percent permanent impairment of
the right lower extremity. On August 5, 2005 a hearing representative vacated the July 12, 2004
decision after finding a conflict in medical opinion between Dr. David Weiss, an attending
osteopath Board-certified in family practice, and the Office medical adviser. The hearing
representative instructed the Office to refer appellant for another impartial medical examination
on the issue of the extent of any permanent right lower extremity impairment and whether she
had a back condition affecting her lower extremity impairment.
On October 12, 2005 the Office referred appellant to Dr. Christopher M. Aland, a Boardcertified orthopedic surgeon, for an impartial medical examination. On November 16, 2005
Dr. Aland opined that appellant had a 17 percent permanent whole person impairment due to
nonemployment-related degenerative arthritis of the knee and a 10 percent whole person
impairment due to radiculopathy from the lumbar spine. In response to the Office’s request for
clarification, he found that appellant had a 24 percent permanent impairment of the lower
extremity. On February 15, 2006 an Office medical adviser reviewed Dr. Aland’s report and
found that it was insufficient to establish the extent of her permanent impairment as he did not
reference or properly apply the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (5th ed. 2001).

1

Docket No. 98-1471 (issued June 1, 2000). The Office accepted that on June 26, 1989 appellant sustained
lumbosacral strain, a left ankle sprain and a contusion to the right knee when she fell on a sidewalk. Appellant
underwent arthroscopic surgery on November 2, 1989, which showed early degenerative joint disease of the right
medial femoral epicondyle and plica synovialis.
2

Docket No. 02-1885 (issued July 31, 2001).

2

On November 7, 2006 appellant filed a recurrence of disability claim on March 10, 2003
causally related to her June 26, 1989 work injury.
In a report dated November 11, 2006, Dr. Arnold S. Lincow, an attending osteopath,
diagnosed an aggravation of internal derangement of the right knee with chondromalacia, an
aggravation of a torn right anterior cruciate ligament (ACL), meniscus degeneration and status
post failed right knee surgery, myofascial pain syndrome with reflex sympathetic dystrophy, type
2, an aggravation of a herniated nucleus pulposus at L4 to S1 with radiculopathy progressive to
L5-S1, chronic lumbosacral strain, ambulatory dysfunction and a progression of traumatic
arthritis of the knee and lumbar spine. He stated:
“It is my professional opinion, based upon a reasonable degree of medical
certainty that [appellant’s] injuries are directly and causally related to her severe
trauma which occurred on June 26, 1989 and due to a reaggravation injury which
took place on or around the year 2003 in the month March. [Appellant] is not
capable of doing any gainful employment. This is based on my most recent
examination of [her] on November 7, 2006 with her multiple objective findings
which correlate with her chief complaints, review of diagnostic studies and use of
the [A.M.A., Guides]. [Appellant’s] condition has deteriorated over the last,
almost 18 years.”
On November 15, 2006 the Office referred appellant to Dr. John T. Williams, Sr., a
Board-certified orthopedic surgeon, to resolve the conflict as to the extent of appellant’s right leg
impairment.3 It requested that Dr. Williams address whether she had any further work-related
disability and whether she was disabled from work beginning March 11, 2003 due to her
employment injury. In a report dated December 19, 2006, Dr. Williams diagnosed a resolved
acute left ankle sprain, resolved acute bilateral knee contusions and sprains and a resolved acute
lumbosacral sprain/strain. On examination, he noted complaints of pain but no evidence of
muscle spasms and a negative Moses, Homans and Oppenheim’s tests. Dr. Williams opined that
appellant’s physical complaints were not supported by any positive objective findings. He noted
that the November 3, 1989 arthroscopic surgery revealed no mensical tear but found plica, a
nonemployment-related condition. Dr. Williams stated:
[Appellant] has been treated for her back in the face of a normal MRI [magnetic
resonance imaging] [scan] of her spine. [She] has been treated for her knee with
the absence of any positive objective findings on physical examination or on the
imaging studies to correlate. The swelling in [appellant’s] knee is secondary to
degenerative changes, wear and tear and breaking off pieces of the articular
cartilage, which is due to wear and tear, causing irritation of the synovium,
causing her to have a swollen joint. But there is no evidence of any pathology
referable to [her] left ankle, left knee, right knee or her back referable to the
incident of June 26, 1989.”

3

A copy of the November 15, 2006 letter was sent to appellant’s representative advising of the examination
scheduled for December 19, 2006.

3

Dr. Williams opined that appellant had no disability or residual impairment due to her
June 26, 1989 work injury. He found that she sustained soft-tissue injuries that had resolved and
that her current complaints were due to the aging degenerative process. Dr. Williams concluded
that appellant was not disabled beginning March 11, 2003 due to the accepted work injury. He
explained that the diagnostic studies revealed degenerative changes unrelated to her June 26,
1989 injury. Dr. Williams asserted that appellant had no impairment due to a loss of range of
motion, decreased strength, atrophy, ankylosis, sensory changes or other factors. He stated that
her condition was her “aging process over the past 17 years and her degenerative process.”
Dr. Williams opined that the plica resection was not causally related to the June 26, 1989 injury.
He concluded, “[Appellant] has multiple complaints and the bone scan shows that she has uptake
changes that are due to degeneration, not to trauma…. To summarize, I have stated that [she]
incurred soft tissue injuries that self resolved and though [she] has complaints, with reference to
the incident, there are no positive objective findings.” Dr. Williams listed work restrictions
which he attributed to appellant’s deconditioning.
On January 22, 2007 the Office requested that Dr. Williams review and discuss a right
knee MRI scan dated November 10, 2006 and Dr. Lincow’s November 11, 2006 report. In a
February 13, 2007 addendum, Dr. Williams reviewed the additional medical evidence and stated:
“After reviewing these documents. I do not see anything here to alter my opinion
as previously stated in the body of my report. To summarize again, [appellant]
may have in fact incurred what are considered to be soft tissue injuries, i.e.,
sprains and strains of her lumbosacral area. Sprains and strains are self-resolving
injuries, which self-resolve anywhere from a few days to a couple of months.
With reference to [her] knee, [she] had a scoping of her right knee and the
surgeon found no evidence of any tears or ligamentous disruption, only some
plica. Plica is a growth that is not caused by trauma.
“[Appellant], with reference, to her spine, had some evidence of degenerative
changes involving her spine via her [computerized tomography] imaging study.
Degenerative changes preexisted. They may have been aggravated by the sprain
and strain, but in my opinion that aggravation would be of a temporary transitory
nature, resolving and leaving [her] with her preexisting pathology.”
By decision dated March 2, 2007, the Office denied appellant’s claim for an increased
schedule award and found that she did not establish an employment-related recurrence of
disability beginning March 11, 2003.
On March 5, 2007 appellant’s attorney requested an oral hearing. Following a
preliminary review of the record, the hearing representative set aside the March 2, 2007 decision.
He found that the Office should further develop the issue of whether appellant had any
impairment or disability due to her November 2, 1989 right knee surgery. The hearing
representative noted that Dr. Williams found that the plica resection performed was not
employment related but did not specifically address whether she had any disability or
impairment due to the authorized surgery. He further determined that Dr. Williams’ opinion
established that appellant had no further residuals of her accepted lumbosacral strain.

4

On June 12, 2007 the Office notified appellant that it proposed to terminate her
compensation and medical benefits for her accepted lumbosacral strain.4
In an addendum dated July 24, 2007, Dr. Williams acknowledged that the Office
approved the November 2, 1989 right knee surgery.5 He stated that his opinion was unchanged,
reiterating that at the time of surgery there was no evidence of any mensical tear and that plica
was anatomical variant not caused by the 1989 injury or causing any ligamentous instability.
By decision dated August 14, 2007, the Office finalized its termination of appellant’s
compensation and medical benefits effective August 14, 2007. It also denied her claim for an
increased schedule award and found that she did not establish a recurrence of disability
beginning March 11, 2003.
In an addendum dated August 7, 2007, received by the Office on August 22, 2007,
Dr. Williams opined that at the time of appellant’s surgery there was no evidence of a meniscal
tear. He opined that the November 2, 1989 arthroscopy caused no right leg impairment or
disability from employment. Dr. Williams stated, “The rationale is that the operating surgeon
himself states that he saw no evidence of any meniscal tears or ligamentous instability. The only
thing he saw was this plica,” which was an anatomical finding. Dr. Williams opined that
appellant’s surgery did not result in any disability from employment beginning November 2003.
He asserted that the surgery “documented that there was no evidence of any disruption of
ligamentous structures. [Appellant] may have had a mild sprain or strain of the knee and that
would resolve in a few weeks to a couple of months at most.”
On August 16, 2007 appellant, through her attorney, requested an oral hearing. A hearing
was held on December 11, 2007.
By decision dated March 5, 2008, the Office hearing representative affirmed the
August 14, 2007 decision. She found that the opinion of Dr. Williams, the impartial medical
examiner, constituted the weight of the evidence.
On May 19, 2008 appellant, through her attorney, requested reconsideration. He
submitted the results of MRI scan studies of the right knee and lumbar spine dated 2004 to 2007.
By decision dated August 14, 2008, the Office denied reconsideration on the grounds that
the evidence submitted was duplicative and insufficient to warrant reopening the claim for
further merit review.
4

On June 12, 2007 appellant’s attorney requested participation in the selection of the impartial medical examiner.
By letter dated June 19, 2007, the Office informed him that it was obtaining clarification from Dr. Williams. On
June 26, 2007 the attorney questioned whether Dr. Williams was aware that the Office approved appellant’s right
knee surgery and that he did not reference the A.M.A., Guides.
5

A July 27, 2007 MRI scan of the lumbosacral spine revealed minimal disc desiccation with Schmorl’s nodes at
L1/2 and L2/3 and “a hint of disc desiccation at the L4-5 disc with a shallow broad herniation, more so into the left
L4-5 neural foramen. This may well affect the left L4 nerve root within the neural foramen and the left L5 nerve
root in the lateral aspect of the canal. There is facet hypertrophy at L4-5.” An MRI scan of the left ankle revealed
“soft tissue edema along the dorsum of the foot.” An MRI scan of the right knee showed “prominent soft tissue
edema anterior to the patella and patellar tendon.”

5

LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.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 Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.9 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.10
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained left ankle sprain, a right knee contusion and
lumbosacral strain due to her January 26, 1989 work injury. On June 1, 2000 the Board affirmed
the Office’s termination of her compensation for the left ankle sprain and right knee contusions.
The Board found, however, that an unresolved conflict existed regarding whether appellant had
continuing disability from her lumbosacral strain. The Board also directed the Office to develop
whether her approved November 2, 1989 arthroscopic surgery resulted in any right lower
extremity impairment or disability. In a decision dated May 28, 2003, the Board again found an
unresolved conflict regarding whether appellant had ongoing disability due to her lumbosacral
strain. On November 15, 2006 the Office referred her to Dr. Williams to resolve a conflict in
opinion on the extent of her injury-related impairment and whether she had any further workrelated disability.
Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual

6

Gloria J. Godfrey, 52 ECAB 486 (2001).

7

Gewin C. Hawkins, 52 ECAB 242 (2001).

8

5 U.S.C. § 8123(a).

9

20 C.F.R. § 10.321.

10

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

6

background, must be given special weight.11 The Board finds that the opinion of Dr. Williams, a
Board-certified orthopedic surgeon selected to resolve the conflict in opinion, is well rationalized
and based on a proper factual and medical history.
Dr. Williams accurately summarized the relevant medical evidence, provided detailed
findings on examination and reached conclusions about appellant’s condition which comported
with his findings.12 In a report dated December 19, 2006, he reviewed the medical evidence of
record, including the results of diagnostic studies. On examination, Dr. Williams found that
appellant’s subjective complaints were unsupported by positive objective findings on
examination. He asserted that she sustained soft-tissue injuries due to the accepted work injury
that resolved and attributed her current complaints to aging and a degenerative process.
Dr. Williams provided rationale for his opinion by noting that the diagnostic studies showed
degenerative changes unrelated to her June 26, 1989 work injury. He opined that the work injury
may have temporarily aggravated her lumbar sprain but found that the aggravation would have
resolved. Dr. Williams further determined that appellant had no disability due to her right knee
surgery. He noted that the surgery showed plica, an anatomical finding unrelated to her accepted
work injury. As Dr. Williams’ report is detailed, well rationalized and based on a proper factual
background, his opinion is entitled to the special weight accorded an impartial medical
examiner.13 The Office met its proof to terminate appellant’s compensation benefits for the
accepted condition of lumbosacral strain.
On appeal, appellant’s attorney now contends that Dr. Williams was not properly selected
using the Physician’s Directory System. Counsel, however, did not timely raise any objection to
the selection of Dr. Williams as the impartial medical examiner.14
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.15 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.16

11

Id.

12

Manuel Gill, 52 ECAB 282 (2001).

13

J.J., 60 ECAB ____ (Docket No. 09-27, issued February 10, 2009); B.P., 60 ECAB ___ (Docket No. 08-1457,
issued February 2, 2009).
14

See L.W., 59 ECAB ___ (Docket No. 07-1346, issued April 23, 2008).

15

Pamela K. Guesford, 53 ECAB 727 (2002).

16

Id.

7

ANALYSIS -- ISSUE 2
The Office met its burden of proof to terminate authorization for medical benefits
through the opinion of Dr. Williams, the impartial medical examiner, who found that appellant
had no residuals of her accepted condition of lumbosacral strain or from her right knee surgery.
Dr. Williams explained that appellant sustained soft tissue injuries at the time of her work injury
that had resolved. As his opinion is detailed and well rationalized, it is entitled to the special
weight accorded an impartial medical examiner and establishes that appellant has no further
residuals of her accepted employment injury.17
LEGAL PRECEDENT -- ISSUE 3
The Federal Employees’ Compensation Act18 provides compensation for both disability
and physical impairment. “Disability” means the incapacity of an employee, because of an
employment injury, to earn the wages the employee was receiving at the time of injury.19 In
such cases, the Act compensates an employee for loss of wage-earning capacity. In cases of
physical impairment the Act, under section 8107(a), compensates an employee, pursuant to a
compensation schedule, for the permanent loss of use of certain specified members of the body,
regardless of the employee’s ability to earn wages.20
As a claimant seeking compensation under the Act has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence, it is thus the claimant’s burden to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of his or her employment injury
entitling him or her to a schedule award.21 The evidence generally required to establish causal
relationship is rationalized medical opinion evidence. The claimant must submit a rationalized
medical opinion that supports a causal connection between her current condition and the
employment injury.22 The medical opinion must be based on a complete factual and medical
background with an accurate history of the claimant’s employment injury and must explain from
a medical perspective how the current condition is related to the injury.23

17

Id.

18

5 U.S.C. §§ 8101-8193.

19

Lyle E. Dayberry, 49 ECAB 369 (1998).

20

Renee M. Straubinger, 51 ECAB 667 (2000).

21

See Veronica Williams, 56 ECAB 367 (2005).

22

Manuel Gill, 52 ECAB 282 (2001).

23

Yvonne R. McGinnis, 50 ECAB 272 (1999).

8

ANALYSIS -- ISSUE 3
The Office determined that a conflict in medical opinion existed between Dr. Weiss and
the Office medical examiner on the issue of the extent of appellant’s permanent impairment of
the right lower extremity. It referred appellant to Dr. Aland to resolve the conflict. In a report
dated November 16, 2005, Dr. Aland found that appellant had a 17 percent whole person
impairment due to nonemployment-related arthritis of the knee and a 10 percent whole person
impairment due to lumbar spine radiculopathy. Responding to the Office’s request for
clarification, he opined that appellant had a 24 percent permanent impairment of the right lower
extremity. On February 15, 2006 an Office medical adviser found that Dr. Aland’s report was
insufficient to resolve the issue of the extent of her permanent impairment as he did not explain
his calculations with reference to the A.M.A., Guides.
The Office referred appellant to Dr. Williams to resolve the conflict regarding the issue
of the extent of her right lower extremity impairment.24 On December 19, 2006 Dr. Williams
found that she had no impairment due to her accepted work injury. He determined that
appellant’s injuries had resolved and noted that her surgery found only plica, a nonwork-related
condition and resulted in no right leg impairment. Dr. Williams further opined that she had no
impairment due to a loss of range of motion, decreased strength, atrophy, ankylosis, sensory
changes or other factors. His report is thorough and entitled to the weight of the evidence and
established that appellant is not entitled to an increased schedule award for the right lower
extremity,
On appeal, appellant’s attorney argues that Dr. Williams found appellant’s right knee
surgery was not authorized by the Office; however, in his July 24, 2007 report, he acknowledged
that the Office authorized the surgery but found that it resulted in no impairment. Counsel also
contends that Dr. Williams failed to properly consider the objective tests. Dr. Williams,
however, reviewed in detail the diagnostic tests but found that appellant had no impairment due
to her work injury.
LEGAL PRECEDENT -- ISSUE 4
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-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 light duty. As part of this burden, the

24

As the Office had previously requested clarification from Dr. Aland, it was appropriate to refer appellant for
another examination. In situations where it secures an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the opinion from such specialist requires clarification or
elaboration, the Office has the responsibility to secure a supplemental report from the specialist for the purpose of
correcting the defect in the original opinion. If the specialist is unwilling or unable to clarify and elaborate on his or
her opinion, the case should be referred to another appropriate impartial medical specialist. See Guiseppe Aversa,
55 ECAB 164 (2003).

9

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 light-duty job requirements.25
Office regulations provide that 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.26 This term also means an inability to work that
takes place when a light-duty 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 reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.27
ANALYSIS -- ISSUE 4
After sustaining intermittent periods of total disability following her work injury,
appellant returned to limited-duty employment on October 6, 2001. She stopped work on
March 10, 2003 and filed a recurrence of disability claim due to her June 26, 1989 work injury.
Appellant has not alleged a change in the nature and extent of her light-duty job requirements.
Instead, she attributed her recurrence of disability to a change in the nature and extent of her
employment-related conditions. Appellant must thus provide medical evidence establishing that
she was disabled due to a worsening of her accepted work injury.28
In a report dated November 11, 2006, Dr. Lincow diagnosed an aggravation of internal
derangement of the right knee with chondromalacia, an aggravation of a torn right ACL,
meniscus degeneration and status post failed right knee surgery, myofascial pain syndrome with
reflex sympathetic dystrophy, type 2, an aggravation of a herniated nucleus pulposus at L4 to S1
with radiculopathy progressive to L5-S1, chronic lumbosacral strain, ambulatory dysfunction and
a progression of traumatic arthritis of the knee and lumbar spine. He found that appellant’s
injuries were due her work injury on June 26, 1989 and a reaggravation in March 2003.
Dr. Lincow opined that appellant was disabled from employment. The Office, however, only
accepted lumbosacral strain as employment related. Where appellant claims that a condition not
accepted or approved by the Office was due to her employment injury, she bears the burden of
proof to establish that the condition is causally related to the employment injury through the
submission of rationalized medical evidence.29 Dr. Lincow did not provide any rationale for his

25

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

26

20 C.F.R. § 10.5(x).

27

Id.

28

See Jackie D. West, supra note 25.

29

JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

10

opinion that the work injury resulted in other conditions. Medical conclusions unsupported by
rationale are of little probative value.30
Further, Dr. Williams provided a second opinion on the issue of whether appellant
sustained a recurrence of disability beginning March 10, 2003. He asserted that she was not
disabled starting March 11, 2003 due to her work injury and explained that she had degenerative
changes unrelated to her work injury. Appellant, consequently, has not met her burden of proof
to establish that she sustained an employment-related recurrence of disability beginning
March 11, 2003.
LEGAL PRECEDENT -- ISSUE 5
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,31 the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.32 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.33 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.34
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.35 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.36 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.37

30

Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

31

Supra note 18. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.”
32

20 C.F.R. § 10.606(b)(2).

33

Id. at § 10.607(a).

34

Id. at § 10.608(b).

35

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

36

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

37

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

11

ANALYSIS -- ISSUE 5
By decision dated March 5, 2008, a hearing representative affirmed the Office’s
termination of appellant’s compensation and authorization for medical treatment, its denial of her
claim for an increased schedule award and its finding that she did not sustain an employmentrelated recurrence of disability. On reconsideration appellant’s attorney resubmitted the results
of MRI scan studies of the lumbar spine and right knee dated 2004 to 2007. Evidence which
repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case.38
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit new
and relevant evidence not previously considered. As she did not meet any of the necessary
regulatory requirements, she is not entitled to further merit review.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
and authorization for medical treatment effective August 14, 2007 on the grounds that she had no
further employment-related disability. The Board further finds that she has not established that
she is entitled to an increased schedule award of the right lower extremity or that she sustained
an employment-related recurrence of disability beginning March 10, 2003. The Board
additionally finds that the Office properly denied appellant’s request for further review of the
merits of her claim under 5 U.S.C. § 8128.

38

Richard Yadron, 57 ECAB 207 (2005).

12

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 14 and March 5, 2008 are affirmed.
Issued: December 18, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

13


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

)
)
)
)
)
)
)
)

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

Docket No. 06-1700
Issued: August 13, 2007

Case Submitted on the Record

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

JURISDICTION
On July 19, 2006 appellant filed a timely appeal from a July 12, 2006 schedule award
decision of the Office of Workers’ Compensation Programs finding 13 percent impairment to his
left upper extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the schedule award determination.
ISSUE
The issue is whether appellant has more than 13 percent impairment to his left upper
extremity, for which he received schedule awards.
FACTUAL HISTORY
On April 15, 1998 appellant, then a 27-year-old part-time flexible clerk, sustained injury
to his left wrist while in the performance of duty. His claim was accepted by the Office for an
acute avulsion fracture of the left ulnar styloid. Appellant stopped work on April 24, 1998 and
returned to light-duty work on September 24, 1998 performing one handed duties. He received
appropriate compensation for his disability from work.

Appellant came under the treatment of Dr. Brian J. Sennett, a Board-certified orthopedic
surgeon. In a February 25, 1999 chart note, Dr. Sennett stated that appellant had reached
maximum medical improvement. He noted some inconsistencies in appellant’s functional
capacity evaluation and recommended further examination of appellant to define the nature and
extent of his residuals. On March 18, 1999 appellant requested a schedule award.
The Office referred appellant to Dr. Richard J. Mandel, a Board-certified orthopedic
surgeon, for a second opinion evaluation. In a May 17, 1999 report, Dr. Mandel reviewed the
history of injury and medical treatment. Appellant noted significant discomfort with grasping,
lifting and carrying. On examination, no atrophy of the left upper extremity was noted with no
obvious ulnar carpal tunnel instability. Range of motion was found to be full with grip strength
slightly diminished on the left as compared to the right. On review of x-rays, Dr. Mandel noted a
tiny avulsion fracture from the tip of the ulnar styloid. He diagnosed status post fracture of the
tip of the ulnar styloid of the left wrist with minimal residual carpal tendinitis. Dr. Mandel noted
that appellant’s left hand was callused, which indicated that appellant had been using it for
physical activity. He advised that appellant could perform work with his left upper extremity,
subject to four hours of pushing, pulling and lifting limited to 10 pounds.
On October 22, 1999 an Office medical adviser reviewed the medical evidence and
evaluated appellant’s impairment under the fourth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment. The medical adviser rated impairment due
to constrictive tenosynovitis under Table 29, page 63 and Table 18, page 58. He noted that
Dr. Mandel described moderate symptoms for which Table 29 allowed a maximum rating of 40
percent. The medical adviser applied Table 18, which allowed 20 percent impairment as the
maximum percentage for the distal radioulnar joint (40 percent x 20 percent) to find a total of 8
percent impairment to the left upper extremity. He noted that pain was already included in the
values.
On November 9, 1999 appellant received a schedule award for eight percent impairment
to his left upper extremity.
On February 5, 2006, appellant requested an increased schedule award. He submitted a
November 23, 2005 treatment note from Dr. Emilio J. Caucci, an osteopath, who described
appellant’s complaint of pain affecting the left hand and wrist, radiating into the left elbow.
Dr. Caucci reported findings on grip strength and diagnosed status, post ulnar styloid fracture
with dorsal sensory ulnar neuritis and tendinitis of the left wrist. On April 21, 2006 he repeated
his diagnoses. Dr. Caucci recorded appellant’s left hand grip strength as 4/5 (good) with some
atrophy noted on the left palmar aspect of the left hand.
On May 4, 2006 appellant was examined by Dr. George L. Rodriguez, Board-certified in
physical medicine and rehabilitation. Dr. Rodriguez described appellant as a right-hand
dominant individual who was working at a modified-duty capacity. He noted appellant’s
complaint of left wrist pain and dysesthesias and reported a full range of motion of the left wrist
with pain on extreme supination and flexion. Palpation revealed a positive Tinel’s sign of the
left ulnar nerve with moderately decreased sensation along the palmar and dorsal aspects of the
left third, fourth and fifth digits and mid-ulnar forearm. Atrophy was reported of the hypothenar
eminence of the left hand to a moderate degree. Dr. Rodriguez measured appellant’s left hand

2

grip strength, noting 20 pounds on the left out of a normal grip strength of 112.9 pounds. He
provided an impairment rating based on sensory and motor loss involving the ulnar nerve under
the fifth edition of the A.M.A., Guides. For sensory loss, Dr. Rodriguez noted that Table 16-15
provided a maximum of seven percent impairment for the ulnar nerve. Under Table 16-10, he
classified appellant’s pain as Grade 1, which allows a range of 81 to 99 percent sensory deficit
for pain described as deep cutaneous pain sensibility, with abnormal sensations or severe pain
which prevents most activity. Dr. Rodriguez allowed a 90 percent sensory deficit (7 percent x 90
percent) to find 6 percent impairment due to sensory loss. He rated the motor loss, again
referring to Table 16-15, which provides a maximum of 35 percent impairment for the ulnar
nerve below the mid forearm. Under Table 16-11, Dr. Rodriguez graded the extent of motor
deficit as Grade 3, or 50 percent (35 percent x 50 percent) to find 18 percent impairment for
motor loss. He then allowed three percent impairment under Chapter 18, page 573, for ulnar
styloid pain, which he said converted to five percent impairment of the upper extremity under
Table 16-3, page 439. Dr. Rodriguez combined the various impairment ratings to find a total 27
percent impairment to appellant’s left upper extremity, noting that maximum medical
improvement was reached as of February 25, 1999.
On June 23, 2006 an Office medical adviser reviewed the medical evidence, noting that
appellant previously received a schedule award for eight percent impairment to the left upper
extremity. Upon review of the report from Dr. Rodriguez, the medical adviser noted that the
description of appellant’s ulnar symptoms did not indicate a Grade 3 motor involvement and
Grade 1 sensory deficit, as the degree of severity allowed by Dr. Rodriguez was not documented
in his records. The medical adviser noted that, under Table 16-15, the maximum percentages for
impairment of the ulnar nerve below the forearm were 7 percent for sensory loss and 35 percent
for motor loss. Using Table 16-10, page 482, the Office medical adviser graded the sensory
deficit as Grade 3, which allows a deficit of 26 to 60 percent. He allowed a deficit of 60 percent
(7 percent x 60 percent) to rate sensory impairment as 4 percent. As to motor loss, the Office
medical adviser graded the motor deficit as Grade 4, which allows a motor deficit of 1 to 25
percent. He allowed a deficit of 25 percent (35 percent x 25 percent) to rate motor impairment as
9 percent. The medical adviser noted it was error for Dr. Rodriguez to allow an additional
impairment for pain under Chapter 18 as the pain award was reflected in the sensory impairment
rating as noted in the A.M.A., Guides at page 482. Using the Combined Values Chart to
combine the sensory and motor loss, the Office medical adviser concluded that appellant’s total
left upper extremity impairment was 13 percent.
In a July 12, 2006 decision, the Office found that appellant had 13 percent impairment to
his left upper extremity. It granted a schedule award, less the eight percent previously paid.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and the
implementing federal regulation2 set forth the number of weeks of compensation payable to
employees who sustain permanent impairment from loss or loss of use of scheduled members or
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

functions of the body.3 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 in order that
there may be uniform standards applicable to all claimants.4 The Office has adopted the A.M.A.,
Guides as the uniform standard applicable to rating impairment in claims arising under the Act.5
ANALYSIS
The Board finds that appellant has not established that he has greater than 13 percent
impairment of his left upper extremity.
Appellant submitted a report from Dr. Rodriguez in support of his claim for an additional
schedule award. Dr. Rodriguez rated appellant’s impairment to the ulnar nerve below the
forearm as a total of 27 percent due to sensory and motor loss. However, the Board finds that the
impairment rating by Dr. Rodriguez is of diminished probative value as the physician did not
properly apply the A.M.A., Guides in estimating the extent of impairment. Dr. Rodriguez noted
that Table 16-15, page 492, provided maximum upper extremity impairment of 7 percent for
sensory loss and 35 percent for motor loss of the ulnar nerve below the forearm. The medical
adviser agreed that this was a proper basis on which to rate impairment due to pain and loss of
strength due to peripheral nerve compression neuropathy. In grading the extent of appellant’s
sensory deficit, Dr. Rodriguez stated that Grade 1, which allows a deficit of 81 to 99 percent,
was appropriate. However, he did not adequately explain the basis for this determination. As
noted at page 482, Dr. Rodriguez should address how the sensory deficit or pain interferes with
the individual’s performance of daily activities. Grade 1 under Table 16-10 is for deep
cutaneous pain; absent superficial pain and tactile sensibility with abnormal sensation or severe
pain that prevents most activity. Dr. Rodriguez did not adequately address the clinical findings
supporting this grade.6 Moreover, he duplicated the impairment rating for pain by applying
Chapter 18, page 573, and allowed an additional five percent impairment. The A.M.A., Guides
provide that Chapter 18 should not be used to rate pain-related impairment for conditions that are
adequately rated under the other chapters.7 Dr. Rodriguez did not explain why he departed from
the standards and protocols of the A.M.A., Guides to allow an additional pain rating under
Chapter 18 when he had already provided a rating for sensory loss (pain) under Chapter 16. The
Board has noted that the application of certain impairment rating mechanisms, such as those
under Chapter 18, may be incompatible with the simultaneous application of other impairment
tables where this would result in duplicative measurements and artificially high impairment
3

See Robert B. Myles, 54 ECAB 379 (2003).

4

See Harry D. Butler, 43 ECAB 859, 866-868 (1992) and cases cited therein.

5

See Jesse Mendoza, 54 ECAB 802 (2003) (Office procedures direct the use of the fifth edition of the A.M.A.,
Guides, issued in 2001, for all decisions made after February 1, 2001).
6

The period covered by a schedule award commences on the date the employee reaches maximum medical
improvement from residuals of the employment injury. Maximum improvement means that the physical condition
of the injured member has stabilized and will not improve further. Joseph R. Waples, 44 ECAB 936 (1993).
7

A.M.A., Guides 571, section 18.3b.

4

percentages.8 As to the motor loss rating, Dr. Rodriquez graded the impairment under Table 1611 as Grade 3, allowing 50 percent deficit for motor loss described as complete active range of
motion against gravity only, without resistance. Again, the clinical basis supporting this grading
determination is not fully explained in the physician’s report. The grading allowed by
Dr. Rodriguez varies significantly with the contemporaneous findings of appellant’s left upper
extremity strength as noted by Dr. Caucci. Dr. Rodriguez stated there was moderate atrophy and
significant grip strength loss to the left hand, findings that diverge from those recorded by
Dr. Caucci two weeks prior. He indicated that left hand grip strength loss was 4/5 (good) as
opposed to only 20 pounds out of 112.9 pounds as recorded by Dr. Rodriguez.9 For these
reasons, the Board finds that the impairment rating provided by Dr. Rodriguez is of diminished
probative value.10
The Office properly referred the medical evidence for review by an Office medical
adviser. He rated the extent of appellant’s permanent impairment according to sensory and
motor loss under Chapter 16. Applying Table 16-15, page 492, the medical adviser noted that
the A.M.A., Guides, provide maximum impairment values of 7 percent for sensory loss and 35
percent for motor loss of the ulnar nerve below the midforearm. He graded the sensory loss with
reference to Table 16-10, page 482, as Grade 3 and allowed 60 percent sensory deficit (7 percent
x 60 percent) to find a total 4 percent impairment due to pain. As for motor loss, the medical
adviser applied Table 16-11, page 484, to grade the motor deficit as Grade 4, allowing 25 percent
for complete range of motion against gravity with some resistance (35 percent x 25 percent) to
find a total 9 percent impairment for loss of strength. The Combined Values Chart was properly
applied to find 13 percent total impairment of appellant’s left upper extremity.
CONCLUSION
The Board finds that appellant does not have more than 13 percent impairment to his left
upper extremity.

8

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

9

The A.M.A., Guides do not encourage the use of grip strength as an impairment rating because strength
measurements are functional tests influenced by subjective factors that are difficult to control. The A.M.A., Guides
do not assign a large role to such measurements, noting that only in rare cases should grip strength be used and only
when it represents an impairing factor that has not otherwise been considered adequately. See Mary L. Henninger,
52 ECAB 408 (2001).
10

See Fritz A. Klein, 53 ECAB 642 (2002). The description of a given impairment 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
restrictions and limitations. N.M., 58 ECAB ___ (Docket No. 06-2054, issued January 12, 2007).

5

ORDER
IT IS HEREBY ORDERED THAT the July 12, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: August 13, 2007
Washington, DC

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

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

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

6