United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, North Chicago, IL, Employer
__________________________________________

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

Docket No. 11-595
Issued: January 23, 2012

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 January 10, 2011 appellant filed a timely appeal from a September 9, 2010 schedule
award decision of the Office of Workers’ Compensation Programs (OWCP). The Board also has
jurisdiction over a December 14, 2010 decision which denied her request for reconsideration.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the schedule award decision.
ISSUES
The issues are: (1) whether appellant has greater than 22 percent permanent impairment
of her left lower extremity; and (2) whether OWCP properly denied her request for
reconsideration.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 7, 2006 appellant, then a 41-year-old food service worker, injured her left
knee when she slipped on ice in the employing establishment parking lot. OWCP accepted a tear
of the medial meniscus of the left knee.
Appellant was treated by Dr. Edward J. Logue, a Board-certified orthopedic surgeon,
from September 1, 2006 to May 25, 2007, for a tear of the left lateral meniscus sustained when
she fell at work.
On July 20, 2007 appellant filed a claim for a schedule award. She submitted a July 30,
2007 report from Dr. Logue, who opined that she sustained a 20 percent impairment of the left
lower extremity under the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (A.M.A., Guides).2 OWCP referred appellant’s file to its
medical adviser who, in an October 1, 2007 report, concurred that appellant had 20 percent
impairment of the left lower extremity in accordance with the A.M.A., Guides.3
In a decision dated January 30, 2008, OWCP granted appellant a schedule award for 20
percent permanent impairment of the left lower extremity. The period of the award was
October 11, 2006 to November 18, 2007.
Appellant continued to be treated by Dr. Logue for left knee pain and giving way.
Dr. Logue diagnosed recurrent left knee pain and recommended arthroscopic surgery. On
April 16, 2010 he performed a left knee arthroscopy and partial lateral meniscectomy. Dr. Logue
diagnosed left knee lateral meniscus tear. In reports dated April 23 and May 14, 2010, he noted
that appellant was progressing well postoperatively but lost her footing and fell on her left knee.
Dr. Logue noted her complaints of left knee pain. He found no swelling or ecchymosis and
noted well-healed incisions. Dr. Logue noted 0 degrees of left knee extension, 125 degrees of
flexion, minimal tenderness about the joint line, McMurray test was negative in both
compartments, neurovascular examination was grossly intact and the ligaments were stable. He
diagnosed status post arthroscopy with partial lateral meniscectomy.
On July 6, 2010 appellant filed a claim for an additional schedule award. In a July 13,
2010 letter, OWCP requested that she submit a permanent impairment rating in accordance with
the sixth edition of the A.M.A., Guides which it began using effective May 1, 2009.
In a July 16, 2010 report, Dr. Logue noted that appellant’s left knee pain was mostly
anterior and was worse at the end of the day. He noted left leg flexion of 130 degrees, extension
of 0 degrees, mild quadriceps atrophy on the left, no ligament instability, no varus or valgus
deformity and no evidence of post-traumatic irregularity or arthritis of the left knee. Dr. Logue
listed a history of performing a partial lateral meniscectomy. He opined that appellant had a 20
2

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

3

Appellant had previous left knee condition, not work related. OWCP’s medical adviser noted that on April 11,
2006 she underwent a left knee arthroscopy and a partial lateral menisctomy; however, the operative report was not
in the record.

2

percent impairment of the left leg with 20 percent loss of shock absorption. Dr. Logue noted that
she reached maximum medical improvement on July 16, 2010.
In an August 2, 2010 report, OWCP’s medical adviser reviewed Dr. Logue’s July 16,
2010 report. He noted that appellant was previously granted 20 percent impairment of the left
leg based on x-ray changes consistent with degenerative arthritis. OWCP’s medical adviser
stated that she underwent a partial lateral meniscectomy on April 16, 2010. Although appellant
did well postoperatively, she had subjective complaints of anterior knee pain which was worse at
the end of the day. OWCP’s medical adviser further noted that physical examination
demonstrated all surgical portals had healed and left knee range of motion was 130 degrees with
mild quadriceps atrophy. He found two percent impairment for partial lateral meniscectomy
according to the Knee Regional Grid -- Lower Extremity Impairment, Table 16-3, page 509-11,
of the A.M.A., Guides with no change in the award due to the net adjustment formula. OWCP’s
medical adviser used the Combined Values Charts on page 604 of the A.M.A., Guides for a 22
percent impairment of the left lower extremity. He noted that maximum medical improvement
was reached on July 16, 2010.
In a decision dated September 9, 2010, OWCP granted appellant a schedule award for 22
percent impairment of the left lower extremity. As appellant previously received an award of 20
percent impairment she was entitled to an additional two percent impairment. The period of the
award was from July 17 to August 26, 2010.
On September 14, 2010 appellant requested reconsideration and disagreed that she only
had an additional two percent impairment of the left leg. She contended that she was entitled to
22 percent impairment. Appellant submitted copies of OWCP decisions dated January 30, 2008
and September 9, 2010, reports from Dr. Logue dated July 30, 2009 and July 16, 2010 and
OWCP’s medical adviser’s August 2, 2010 report, all previously of record. She submitted
postoperative home care instructions dated April 16, 2010.
In a December 14, 2010 decision, OWCP denied appellant’s reconsideration request
finding that the request was insufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE1
The schedule award provision of FECA4 and its implementing federal regulations5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

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the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides will be used.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).9 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.11
The sixth edition of the A.M.A., Guides provides that lower extremity impairments are to
be classified by diagnosis and then adjusted by grade modifiers according to the formula noted
above.12 Diagnosis-based impairment is the primary method of evaluation for the lower
extremity. Once the impairment class has been determined based on the diagnosis, the grade is
initially assigned the default value, which may then be modified slightly based on such nonkey
factors as GMFH and GMPE. This process is repeated for each separate diagnosis. In most
cases, only one diagnosis in a region, such as the knee, will be appropriate. If a patient has two
significant diagnoses, the examiner should use the diagnosis with the highest impairment rating
in that region that is causally related.13
ANALYSIS -- ISSUE 1
The first step in determining an impairment rating is to choose the diagnosis that is most
applicable for the region being assessed. Reliability of the diagnosis is essential and the
diagnosis should be consistent with the clinical history and findings at the time of the impairment
assessment. Selecting the optimal diagnosis requires judgment and experience. If more than one
diagnosis in a region can be used, the one that provides the most clinically accurate and
6

Id. at § 10.404(a).

7

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

8

A.M.A., Guides, 3-6 (6th ed. 2008).

9

Id. at 494-531.

10

Id. at 521.

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
12
13

Supra notes 9, 10.
A.M.A., Guides 497 (6th ed. 2009).

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causally-related impairment rating should be used. This will generally be the more specific
diagnosis. Typically, one diagnosis will adequately characterize the impairment and its impact on
activities of daily living.14
OWCP accepted appellant’s claim for tear of the medial meniscus of the left knee. On
September 9, 2010 it granted her a 22 percent impairment of the left lower extremity. OWCP
noted that on January 30, 2008 appellant was previously granted a schedule award for 20 percent
permanent impairment of the left lower extremity for degenerative arthritis and was entitled to an
additional award of two percent impairment of the left lower extremity for a partial lateral
meniscectomy based on its medical adviser’s report.
In a report dated July 16, 2010, Dr. Logue noted left leg flexion of 130 degrees and
extension of 0 degrees, mild quadriceps atrophy on the left, no ligament instability, no varus or
valgus deformity and no evidence of post-traumatic irregularity or arthritis of the left knee. He
opined that appellant sustained a 20 percent impairment of the left lower extremity with 20
percent loss of shock absorption. Dr. Logue, however, did not specifically address how her
physical findings correlated with a 20 percent impairment rating according to the A.M.A.,
Guides. OWCP requested that its medical adviser review the medical record and determine if
appellant had permanent impairment of the left lower extremity.
OWCP’s medical adviser reviewed Dr. Logue’s report and opined that appellant had 22
percent left leg impairment. He noted that on January 30, 2008 appellant was previously granted
20 percent impairment of the left lower extremity based on x-ray changes consistent with
degenerative arthritis and was entitled to an additional two percent impairment for a partial
lateral meniscectomy. The medical adviser explained how the partial lateral meniscectomy of
April 16, 2010 warranted two percent leg impairment under Table 16-3, Knee Regional Grid. He
noted that appellant would fit a class 1 category, yielding a default grade C for two percent
impairment.15 The medical adviser determined that there was no change to the default rating of
two percent impairment after applying the net adjustment formula.16 He combined the
previously awarded 20 percent impairment for degenerative arthritis with the two percent
impairment for the partial meniscectomy. This is inconsistent with the methodology of the
A.M.A., Guides which, as noted, directs the selection of the most applicable single diagnosis in
most instances. OWCP’s medical adviser did not explain why the arthritis and meniscectomy
ratings should be combined in light of the language of the A.M.A., Guides. He also did not
explain whether the meniscectomy rating or the rating for degenerative arthritis was the most
applicable diagnosis. In this situation, the medical adviser should not have combined the two
diagnosis-based estimates; rather, he should have selected the diagnosis which provided for the

14

Id. at 499. See also R.F., Docket No. 11-931 (issued November 9, 2011) (where the Board found that
combining the impairments of several diagnoses was inconsistent with the methodology of the A.M.A. Guides);
E.S., Docket No. 11-1162 (issued November 17, 2011) (where the Board noted that the A.M.A. Guides provide that
if appellant has two significant diagnoses the examiner should use the diagnosis with the highest impairment rating
in the region that is causally related to the impairment calculation).
15

A.M.A., Guides 509-11, Table 16-3

16

Id. at 516-19.

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highest impairment rating. In this case, appellant was entitled to 20 percent impairment of the
left lower extremity based on x-ray changes consistent with degenerative arthritis.17
The Board finds that the medical evidence establishes that appellant has no more than 20
percent impairment of the left lower extremity that was previously awarded. There is no medical
evidence consistent with the sixth edition of the A.M.A., Guides that supports any greater
impairment.
On appeal, appellant asserts that her left knee condition and April 16, 2010 surgery are
work related and she was entitled to an additional 20 percent impairment as her current
impairment was different than her previously accepted impairment. While she argues that the
previous award was for a different injury, section 8107 provides that schedule awards are
payable for permanent impairment of specified body members, functions or organs, not for
specific injuries.18 FECA provides for reduction of compensation for subsequent injury to the
same body member. It provides that schedule award compensation under section 8107 is
reduced by the compensation paid for an earlier injury where the compensation in both cases are
for impairment of the same member or function and where it is determined that the compensation
for the later disability in whole or part would duplicate the compensation payable for the
preexisting disability.19 As explained, the medical evidence does not support any greater left leg
impairment than that for which appellant has already received schedule awards.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,20 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain 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

17

The Knee Regional Grid on page 511 of the A.M.A., Guides sets forth impairment ranges for the leg due to
arthritis in the knee.
18

P.W., Docket No. 09-1289 (issued March 24, 2010); see 5 U.S.C. § 8107.

19

5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

20

5 U.S.C. § 8128(a).

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“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”21
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.22
ANALYSIS -- ISSUE 2
OWCP’s December 14, 2010 decision, denied appellant’s reconsideration request finding
that it was insufficient to warrant a merit review. In her September 14, 2010 application for
reconsideration, appellant did not show that OWCP erroneously applied or interpreted a specific
point of law. She did not identify a specific point of law or show that it was erroneously applied
or interpreted. Appellant did not advance a new and relevant legal argument. She disagreed
with OWCP’s decision granting her 22 percent impairment of the left lower extremity.
Appellant noted that OWCP granted her an additional 2 percent impairment when she believed
she was entitled to another 22 percent impairment. However this assertion has no reasonable
color of validity.23 FECA contemplates that reduction of schedule compensation for subsequent
injury to the same body member.24 Appellant’s general statements and allegations on
reconsideration have not otherwise shown that OWCP erroneously applied or interpreted a point
of law nor did it advance a point of law or fact not previously considered by OWCP.
Consequently, she is not entitled to a review of the merits of her claim based on the first and
second above-noted requirements under section 10.606(b)(2).
Appellant submitted a copy of OWCP decisions dated January 30, 2008 and September 9,
2010, reports from Dr. Logue dated July 30, 2009 and July 16, 2010 and OWCP’s medical
adviser’s report dated August 2, 2010, all previously of record. The Board notes that this
evidence is duplicative of evidence already contained in the record and was previously
considered by OWCP.25 Therefore, OWCP properly determined that this evidence did not
constitute a basis for reopening the case for a merit review. Appellant submitted new
postoperative home care instructions dated April 16, 2010. However, the underlying issue in the
case is whether she was entitled to an additional schedule award for the left lower extremity.
The postoperative instructions are not relevant to appellant’s claim for a schedule award.
Therefore, OWCP properly determined that this evidence did not constitute a basis for reopening
the case for a merit review.
21

20 C.F.R. § 10.606(b)(2).

22

Id. at § 10.608(b).

23

While the reopening of a case may be predicated solely on a legal premise not previously considered, such
reopening for further review of the merits is not required where the legal contention does not have a reasonable color
of validity. Arlesa Gibbs, 53 ECAB 204 (2001).
24

See supra notes 18, 19.

25

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).

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The Board finds that OWCP properly determined that appellant was not entitled to a
review of the merits of her claim as she did not present evidence or argument satisfying any of
the three regulatory criteria, under section 10.606(b)(2), for obtaining a merit review.
CONCLUSION
The Board finds that appellant has no more than 20 percent left lower extremity
impairment. The Board finds that OWCP properly denied her request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2010 the Office of Workers’
Compensation Programs’ decision is affirmed and the September 9, 2010 decision is affirmed as
modified.
Issued: January 23, 2012
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
__________________________________________
R.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Imperial, CA, Employer
__________________________________________

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

Docket No. 19-1314
Issued: January 3, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 28, 2019 appellant filed a timely appeal from an April 10, 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 over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish more than one
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 13, 2017 appellant, then a 43-year-old fleet supervisor, filed a traumatic
injury claim (Form CA-1) alleging that on September 11, 2017 he injured his right knee while in
the performance of duty.2 On November 27, 2017 OWCP accepted his claim for right knee strain
and right knee lateral meniscus tear with a cyst.
On January 10, 2018 appellant underwent OWCP-approved arthroscopic surgery, which
included right knee partial lateral meniscectomy, synovectomy, and chondroplasty. Dr. James E.
McSweeney, a Board-certified orthopedic surgeon, performed the January 10, 2018 arthroscopic
procedure.
Appellant returned to work on January 16, 2018.
On July 24, 2018 appellant filed a claim for a schedule award (Form CA-7). He submitted
an April 3, 2018 impairment rating from Dr. McSweeney. Dr. McSweeney reviewed appellant’s
history of injury, diagnostic studies, the January 10, 2018 operative report, and provided current
physical examination findings. He noted that appellant reached maximum medical improvement
and was tolerating full-duty work at that time. Applying the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),
Dr. McSweeney found that, under Table 16-3, Knee Regional Grid, appellant’s partial lateral
meniscectomy was a class 1 diagnosis (CDX) with a default impairment (grade C) of two percent
of the lower extremity. He assigned a grade modifier of one for clinical studies (GMCS), a grade
modifier of zero for functional history (GMFH), and a grade modifier of zero for physical
examination (GMPE). Dr. McSweeney explained that, pursuant to the net adjustment formula,
appellant would receive a net adjustment of -1, which would move the rating one position to the
left to result in grade B.3 According to Table 16-3, a grade B rating would result in two percent
permanent impairment of the right lower extremity.
In a development letter dated July 24, 2018, OWCP acknowledged receipt of appellant’s
claim for a schedule award, as well as Dr. McSweeney’s April 3, 2018 report. It informed
appellant that he was required to submit a rating based on a recent physical examination and in
conformance with the A.M.A., Guides. OWCP afforded him 30 days to submit additional medical
evidence in support of his claim for a schedule award.
OWCP subsequently prepared an August 9, 2018 statement of accepted facts (SOAF) and
referred the case record, including Dr. McSweeney’s April 3, 2018 impairment rating, to a district
medical adviser (DMA) for review.
In an August 20, 2018 report, Dr. Kevin Kuhn, a Board-certified orthopedic surgeon
serving as a DMA, reviewed the SOAF, medical records, and Dr. McSweeney’s April 3, 2018
permanent impairment evaluation. He diagnosed right lateral meniscus tear. Applying Table 162

At the time of injury, appellant was engaged in work-related physical fitness training. He reported that he lost his
footing on his right leg and slid over a few inches.
3

Net Adjustment = (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). A.M.A., Guides 521 (6th ed. 2009).

2

3, the DMA found that the diagnosis represented a CDX of 1, with a default lower extremity rating
of two percent. Applying the net adjustment formula, he found -2 net adjustment, which
represented grade A impairment of one percent.4
OWCP subsequently referred appellant to Dr. Blake R. Thompson, a Board-certified
physiatrist, for a second opinion evaluation for the purpose of ascertaining the extent of his
permanent impairment. On October 17, 2018 Dr. Thompson performed a physical examination
for evaluation of appellant’s permanent impairment of the right lower extremity pursuant to the
A.M.A., Guides. He indicated that appellant had 130 degrees of flexion on the right, compared to
140 degrees on the left. Dr. Thompson noted lateral joint line tenderness to palpation of the right
knee on examination. He diagnosed a sprain of the right knee and a cystic meniscus of the posterior
horn of the lateral meniscus of the right knee. Referring to Table 16-3, Dr. Thompson rated
appellant for a meniscal injury, which represented a CDX of 1, with a default lower extremity
permanent impairment of two percent. He assigned a GMFH of zero noting there was no gait
derangement, a GMPE of one for minimal palpatory findings consistently documented without
observed abnormalities, and a GMCS of one based on diagnostic studies that confirmed a meniscal
tear. Dr. Thompson explained that, pursuant to the net adjustment formula, appellant would
receive a net adjustment of minus one, which would then result in grade B, with a two percent
permanent impairment of the right lower extremity. He further noted that appellant had good range
of motion (ROM) and did not qualify for impairment based on ROM deficit.
In an updated DMA review dated November 7, 2018, Dr. Kuhn reproduced his August 20,
2018 analysis and responded to Dr. Thompson’s October 17, 2018 second opinion report. He
noted that Dr. McSweeney had found no palpable tenderness or palpatory findings on examination
on April 3, 2018 while Dr. Thompson had found lateral joint line tenderness to palpation, resulting
in Dr. Thompson’s assigning a GMPE modifier of 1 in calculating appellant’s permanent
impairment. Dr. Kuhn explained that, by the fact that these examination findings were different,
it indicated that the palpatory findings were inconsistent. Therefore, a GMPE of zero was most
accurate.
On January 9, 2019 OWCP requested that Dr. Kuhn address Dr. Thompson’s ROM
measurements in his October 17, 2018 report and whether these measurements changed his
opinion regarding appellant’s percentage of permanent impairment.
In an updated DMA review dated January 18, 2019, Dr. Kuhn observed that Dr. Thompson
had measured knee flexion of 130 degrees, which was normal according to Table 16-22 on page
549, and knee extension of zero, which was in the normal range according to the same table. Using
the ROM method and referring to Table 16-25 on page 550, these measurements would result in
zero percent right lower extremity impairment. Dr. Kuhn explained that as the ROM method
resulted in a lower rating than the diagnosis-based impairment (DBI) method, the DBI calculation
should be used.

4

The DMA found the same for GMFH (0), GMPE (0), and GMCS (1) as Dr. McSweeney.

3

By decision dated April 10, 2019, OWCP granted appellant a schedule award for one
percent permanent impairment of the right lower extremity. The period of the award ran for 2.88
weeks from April 3 through 23, 2018.
LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.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 extremity
to be rated. With respect to 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 509.9 After the CDX is determined
from the Knee Regional Grid (including identification of a default grade value), the net adjustment
formula is applied using the GMFH, GMPE, and GMCS. The net adjustment formula is (GMFH
- CDX) + (GMPE - CDX) + (GMCS - CDX).10 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.11
In some instances, a DMA’s opinion can constitute the weight of the medical evidence.12
This occurs in schedule award cases where an opinion on the percentage of permanent impairment
and a description of physical findings is on file from an examining physician, but the percentage
estimate by this physician is not based on the A.M.A., Guides.13 In this instance, a detailed opinion
by a DMA may constitute the weight of the medical evidence as long as he or she explains his or
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also id. Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

See A.M.A., Guides 509-11 (6th ed. 2009).

10

Id. at 515-22.

11

Id. at 23-8.

12

J.H., Docket No. 18-1207 (issued June 20, 2019); M.P., Docket No. 14-1602 (issued January 13, 2015); supra
note 8 at Chapter 2.810.8(j) (September 2010).
13

Id.

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her opinion, shows values and computation of impairment based on the A.M.A., Guides, and
considers each of the reported findings of impairment.14 If the attending physician misapplied the
A.M.A., Guides, no conflict would exist because the attending physician’s report would have
diminished probative value and the opinion of the DMA would constitute the weight of medical
opinion.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than one
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.
In support of his schedule award claim, appellant submitted an impairment evaluation
report from Dr. McSweeney dated April 3, 2018. Based on physical examination and the Knee
Regional Grid of the A.M.A., Guides, Table 16-3, Dr. McSweeney calculated a permanent
impairment rating of two percent of appellant’s right lower extremity.
OWCP referred appellant to Dr. Thompson, for a second opinion evaluation on October 17,
2018 as to the extent of his permanent impairment. Based on physical examination and reference
to the Knee Regional Grid, Dr. Thompson calculated a permanent impairment rating of two
percent of appellant’s right lower extremity.
The DMA, Dr. Kuhn, who reviewed the reports of both Dr. McSweeney and
Dr. Thompson, found that appellant had one percent permanent impairment of the right lower
extremity based on his right lateral meniscus tear. The Board has held that, when an attending
physician’s report gives an estimate of permanent impairment, but it is not based on proper
application of the A.M.A., Guides, OWCP may follow the advice of the DMA if he or she has
properly applied the A.M.A., Guides.16 In his August 20 and November 7, 2018 reports, as well
as his January 18, 2019 report, the DMA properly applied the A.M.A., Guides to the physical
examination findings of Drs. McSweeney and Thompson. He noted that the physical examinations
of record were inconsistent with regard to palpatory findings and tenderness, and, as such, a GMPE
of zero was most accurate, as opposed to the GMPE of one as assigned by Dr. Thompson.
Dr. McSweeney and Dr. Kuhn both recommended the same grade modifiers, but only Dr. Kuhn
provided a calculation of the net adjustment formula.17 The Board finds that the DMA accurately
summarized the relevant medical evidence, provided detailed findings on examination, and
reached conclusions about appellant’s condition which comported with his findings, and with the
appropriate provisions of the A.M.A., Guides.18 The DMA’s report therefore carries the weight
14

Id.

15

Id.

16

See J.D., Docket No. 19-0414 (issued August 19, 2019); P.L., Docket No. 17-0355 (issued June 27, 2018); see
also Ronald J. Pavlik, 33 ECAB 1596 (1982).
17

The Board notes that Dr. McSweeney made an arithmetical error in his calculation of the net adjustment formula.

18

See J.M., Docket No. 18-1387 (issued February 1, 2019).

5

of the medical evidence and establishes that appellant has one percent permanent impairment of
the right lower extremity.19
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than one
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 3, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

19

See F.T., Docket No. 16-1236 (issued March 12, 2018).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, North Syracuse, NY,
Employer
__________________________________________

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

Docket No. 12-1344
Issued: December 21, 2012

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 June 6, 2012 appellant, through his attorney, filed a timely appeal from the April 2,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) finding 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 over the merits of this case.2

1
2

5 U.S.C. §§ 8101-8193.

In an October 10, 2012 letter to the Clerk of the Board, appellant indicated that he was no longer represented by
counsel and stated that counsel was “not available to represent me at the hearing and I will make arrangements to
appear before the Board.” Under Board procedure, “A request for oral argument must be submitted in writing to the
Clerk. The application must specify the issue(s) to be argued and provide a statement supporting the need for oral
argument. The request must be made no later than 60 days after the filing of the appeal.” 20 C.F.R. § 501.5(b).
Appellant did not file a timely request for oral argument. The Board, in its discretion, will deny the request and
consider this matter on the record.

ISSUES
The issues are:
(1) whether appellant received a $25,697.97 overpayment of
compensation; (2) whether appellant was at fault in the creation of the overpayment, thereby
precluding waiver of recovery; and (3) whether OWCP properly required repayment of the
overpayment by deducting $1,000.00 from appellant’s compensation payments every 28 days.
FACTUAL HISTORY
OWCP accepted that on March 7, 2006 appellant, then a 50-year-old lead transportation
security officer, sustained a left knee strain and left medial meniscus tear due to turning around
after screening a passenger. On May 5, 2006 he underwent a left medial meniscectomy and, on
October 9, 2006, he had a left partial medial meniscectomy for a retear of the medial meniscus.
On June 18, 2007 appellant underwent a left total knee replacement. The surgical procedures
were authorized by OWCP.
Appellant returned to full duty as of April 1, 2008. On August 22, 2008 he filed a claim
for a schedule award due to his work injuries. In a December 17, 2008 award of compensation,
OWCP granted appellant a schedule award for a 50 percent permanent impairment of his left leg.
The award ran for 144 weeks from July 11, 2008 to April 14, 2011.
In a December 30, 2008 letter, appellant requested that the remainder of his schedule
award be paid in one lump sum. In a February 5, 2009 letter, OWCP advised him that any lumpsum payment would represent full and final compensation payment for the period of the award
even if he sustained a recurrence of disability.
After appellant’s request for a lump-sum schedule award payment was denied, an OWCP
hearing representative issued an October 19, 2009 decision allowing for payment of the
remainder of his schedule award in a lump sum.
On October 22, 2009 appellant signed an agreement to accept a lump-sum payment of his
schedule award. With this statement, he agreed that payment of such lump sum would represent
full and final settlement of his schedule award for the period November 22, 2009 to April 14,
2011 and that no further monetary compensation benefits would be extended for the duration of
the schedule award. OWCP subsequently issued a lump-sum payment to appellant in the amount
of $41,694.42, which covered the period November 22, 2009 to April 14, 2011.3
OWCP accepted that on March 24, 2010 appellant sustained left knee, left hip and right
hand contusions when he tripped and fell to the floor at work.4 Appellant stopped work on
March 24, 2010. In an April 2, 2010 report, Dr. Timothy H. Izant, an attending Board-certified
orthopedic surgeon, adviseded that appellant was totally disabled due to his March 24, 2010 left
3

Appellant received periodic scheduled payments from July 11, 2008 to November 21, 2009.

4

OWCP also accepted that appellant sustained a mechanical complication of an internal orthopedic device in
connection with his authorized surgery. Appellant’s March 24, 2010 injury was developed under a different case
file than his March 7, 2006 injury.

2

knee injury. In connection with his March 24, 2010 work injury, appellant claimed and began to
receive wage-loss compensation starting June 4, 2010.
In a letter dated April 22, 2011, the employing establishment notified OWCP that
appellant had submitted CA-7 forms and was paid compensation for wage loss starting June 4,
2010 under the case file for his March 24, 2010 injury, which involved the same part of his body
(the left leg) as his March 7, 2006 injury. A review was requested to determine if appellant was
overpaid as he had received the schedule award lump sum through April 14, 2011. In a May 5,
2011 letter, an OWCP District Director determined that appellant received an impermissible dual
payment of schedule award and wage-loss compensation. He indicated that OWCP would issue
a decision on the matter.
In a May 5, 2011 decision, OWCP issued a letter decision denying appellant’s
entitlement to schedule award benefits for the period June 4, 2010 to April 14, 2011 for the
reason that he was not entitled to dual workers’ compensation benefits for temporary total
disability and a schedule award for the same period. On September 13, 2011 an OWCP hearing
representative reversed the May 5, 2011 decision and directed OWCP to address the issue of the
overpayment under the case file for appellant’s March 24, 2010 injury.
In a February 17, 2012 letter, OWCP advised appellant of its preliminary determination
that he received a $25,697.97 overpayment of compensation. It explained that he was overpaid
$25,697.97 because he received a lump-sum schedule award for the period November 22, 2009
to April 14, 2011 under the case file for his March 7, 2006 injury while he received wage-loss
compensation for the period June 4, 2010 to April 14, 2011 under the case file for his March 24,
2010 injury.5 OWCP noted that appellant’s March 7, 2006 and March 24, 2010 injuries had been
accepted for the same part of the body, i.e., the left leg. Therefore, he was prohibited from
receiving schedule award and wage-loss compensation at the same time. It made a preliminary
determination that he was at fault in the creation of the overpayment because he accepted
payments that he knew or reasonably should have known were incorrect. OWCP stated that
appellant was at fault in creating the overpayment because he signed an October 22, 2009
statement that he understood and agreed that no further monetary compensation benefits would
be extended to him for the duration of the schedule award (July 11, 2008 to April 14, 2011).
However, appellant claimed and received compensation for wage-loss compensation for the
period June 4, 2010 to April 14, 2011. OWCP provided him an opportunity to challenge the
overpayment and directed him to complete a financial information questionnaire (Form OWCP20), which it indicated was attached to the letter.6
The record includes documents showing that appellant received compensation for wageloss compensation for the period June 4, 2010 to April 14, 2011 in the amount of $25,697.97.
The payment history showed that he received $25,265.20 for the period June 4, 2010 to April 9,
5

OWCP actually stated that appellant received lump-sum schedule award compensation for the period July 11,
2008 to April 14, 2011. However, appellant actually received periodic payments of schedule award compensation
for the period July 11, 2008 to November 21, 2009.
6

The record also contains a February 17, 2012 decision, in which OWCP determined that appellant had not been
entitled to receive wage-loss compensation for the period June 4, 2010 to April 14, 2011, because he had received
schedule award compensation for the same period.

3

2011 and $432.77 for the period April 10 to 14, 2011. OWCP attached a copy of the October 22,
2009 statement regarding appellant’s lump-sum payment for his schedule award.
On March 2, 2012 OWCP reissued its preliminary overpayment letter because it had
neglected to attach a Form OWCP-20 with its February 27, 2012 letter. It provided appellant 30
days to complete and submit the OWCP-20 form.
In an April 2, 2012 decision, OWCP finalized the determination that appellant received a
$25,697.97 overpayment of compensation. It found that he was at fault in the creation of the
overpayment, thereby precluding waiver of recovery. OWCP noted that appellant did not
provide any financial information and directed recovery of the overpayment by deducting
$1,000.00 from his compensation payments every 28 days.7
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.8 Section 8129(a) of FECA provides, in pertinent part, “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”9
Section 8116(a) of FECA provides that while an employee is receiving compensation or
if he has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.10
Under OWCP’s procedure, a schedule award for one injury may be paid concurrently
with compensation for wage loss paid for another injury, as long as the two injuries do not
involve the same part of the body and/or extremity.11
ANALYSIS -- ISSUE 1
The record establishes that appellant received a $25,697.97 overpayment in the form of
an impermissible dual payment of compensation for the period June 4, 2010 to April 14, 2011.
On March 7, 2006 appellant sustained a work-related left knee strain and left medial meniscus
7

OWCP indicated that, through this recovery method, the overpayment would be absorbed on about
May 3, 2012.
8

5 U.S.C. § 8102(a).

9

Id. at § 8129(a).

10

Id. at § 8116(a).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a(4) (January 2010). See also L.S., Docket No. 08-270 (issued July 2, 2009).

4

tear. In connection with this injury, he received a schedule award on December 17, 2008 for a
50 percent permanent impairment of his left leg. The award ran for 144 weeks from July 11,
2008 to April 14, 2011.
At appellant’s request, OWCP issued a lump-sum payment in the amount of $41,694.42
which covered the period November 22, 2009 to April 14, 2011.12 Subsequently, on March 24,
2010 appellant sustained left knee, left hip and right hand contusions and he claimed and
received wage-loss compensation in connection with this injury for the period June 4, 2010 to
April 14, 2011. The Board notes that the March 7, 2006 and March 24, 2010 injuries involve the
same part of his body, i.e., his left leg. Therefore, appellant may not receive schedule award
compensation and wage-loss compensation for the same period.13 The payment records reflect
that appellant received his lump-sum schedule award for the period June 4, 2010 to April 14,
2011, and also received wage-loss compensation payments equaling $25,697.97. For these
reasons, OWCP properly determined that appellant received a $25,697.97 overpayment of
compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) 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.14 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 this
subchapter or would be against equity and good conscience.”15 No waiver of payment is
possible if appellant is not “without fault” in helping to create the overpayment.16
In determining whether an individual is not “without fault” or alternatively, “with fault,”
section 10.433(a) of Title 20 of the Code of Federal Regulations provides in relevant part:
“An individual is with fault in the creation of an overpayment who-(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
12

Appellant received periodic payments of schedule award compensation for the period July 11, 2008 to
November 21, 2009.
13

See supra note 10.

14

5 U.S.C. § 8129(a).

15

Id. at § 8129(b).

16

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

5

(3) Accepted a payment which he or she knew or should have known to be
incorrect….”17
Section 10.433(c) of OWCP’s regulations provide:
“Whether or not OWCP determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”18
ANALYSIS -- ISSUE 2
OWCP found appellant at fault in the creation of the $25,697.97 overpayment under the
third standard described above, i.e., he accepted payments which he knew or should have known
to be incorrect. The Board finds that OWCP properly determined that he was at fault in the
creation of the overpayment.
Appellant requested a lump-sum payment of his schedule award. On October 22, 2009
he signed an agreement to accept the lump-sum settlement of the schedule award for his left leg
impairment. He agreed that payment of the lump sum would represent full and final settlement
of his schedule award for the period November 22, 2009 to April 14, 2011 and that no further
monetary compensation benefits would be extended for the duration of the schedule award.
Therefore, appellant knew or should have known that he could not receive any other
compensation benefits for the period represented by schedule award lump sum. The record
reflects that he received schedule award compensation for his left leg impairment and wage-loss
benefits (for an injury that also involved his left leg) for the period June 4, 2010 to
April 14, 2011. This constitutes a prohibited full payment. Appellant knew or should have
known that he was accepting incorrect payments for the period June 4, 2010 to April 14, 2011.
Even though OWCP may have been negligent in issuing his compensation for wage loss for a
period that he received schedule award compensation, this does not excuse his acceptance of
payments which he knew or should have been expected to know should have been returned to
OWCP.19 For these reasons, it properly found that appellant was at fault in the creation of the
$25,697.97 overpayment. Because appellant was at fault in the creation of the overpayment,
OWCP properly determined that he was not entitled to waiver of recovery of the overpayment.20
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of Title 20 of the Code of Federal Regulations provides that if an
overpayment of compensation has been made to one entitled to future payments, proper
17

20 C.F.R. § 10.433(a).

18

Id. at § 10.433(c).

19

Supra note 17.

20

See supra notes 15 and 16.

6

adjustment shall be made by decreasing subsequent payments of compensation, “taking into
account 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 hardship.”21
When an individual fails to provide requested information on income, expenses and assets,
OWCP should follow minimum collection guidelines, which state in general that government
claims should be collected in full and that, if an installment plan is accepted, the installments
should be large enough to collect the debt promptly.22
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the $25,697.97 overpayment by
deducting $1,000.00 from appellant’s compensation payments every 28 days, OWCP took into
consideration the factors set forth in section 10.441. It found that this method of recovery would
minimize any resulting hardship on appellant. Appellant failed to provide any information on his
income, expenses or assets. In compliance with its implementing regulations, OWCP required
the deduction of installment payments that were large enough to collect the full debt in a prompt
manner. Therefore, OWCP properly required repayment of the overpayment by deducting
$1,000.00 from appellant’s compensation payments every 28 days.
CONCLUSION
The Board finds that appellant received a $25,697.97 overpayment of compensation and
that he was at fault in the creation of the overpayment, thereby precluding waiver of recovery of
the overpayment. The Board further finds that OWCP properly required repayment of the
overpayment by deducting $1,000.00 from his compensation payments every 28 days.

21

20 C.F.R. § 10.441.

22

Gail M. Roe, 47 ECAB 268 (1995). See 20 C.F.R. § 10.438(b). Failure to submit requested financial
information within 30 days shall result in a denial of waiver.

7

ORDER
IT IS HEREBY ORDERED THAT the April 2, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 2012
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________

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

Docket No. 14-1425
Issued: October 22, 2014

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 June 2, 2014 appellant, through counsel, filed a timely appeal from the March 14,
2014 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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective July 28, 2013 on the grounds that he had no
residuals of his April 18, 2005 work injury after that date.
FACTUAL HISTORY
OWCP accepted that on April 18, 2005 appellant, then a 55-year-old transportation
security screener, sustained lumbago, right knee contusion, right hip bursitis, lumbar radiculitis,
1

5 U.S.C. §§ 8101-8193.

permanent aggravation of right hip arthritis, permanent aggravation of degenerative disc disease
of the low back and spinal stenosis at the L3-4, L4-5 and L5-S1 levels.2
In an October 15, 2009 report, Dr. Kenneth Botwin, an attending Board-certified
internist, stated that appellant was totally and permanently disabled due to several work-related
conditions, including spinal stenosis of the lumbar region, lumbosacral radiculitis and
degenerative joint disease of the lumbar region.
In a report dated November 20, 2009, Dr. Narinder Aujla, a Board-certified orthopedic
surgeon serving as an OWCP referral physician, found that appellant’s work-related conditions
had resolved. He advised that appellant could only perform limited-duty work, but that his work
restrictions were due to nonwork-related conditions.
In February 2010 OWCP determined that there was a conflict in medical opinion between
Dr. Botwin and Dr. Aujla on the issue of whether appellant had residuals of his April 18, 2005
work injury. In order to resolve the conflict, it referred appellant, pursuant to section 8123(a) of
FECA, to Dr. Emmanuel Scarlatos, a Board-certified orthopedic surgeon, for an impartial
medical examination and an opinion on the matter.
In a March 31, 2010 report, Dr. Scarlatos discussed appellant’s work and medical
histories and reported findings on physical examination of appellant. He diagnosed degenerative
disc disease with grade 1 spondylolisthesis of L4 on L5 and L5 on S1; degenerative arthrosis of
the hips -- rule out focal avascular necrosis of the femoral heads; acquired bilateral foraminal
stenosis at L4-5 and L5-S1; and resolved capsuloligamentous sprain of the right knee.
Dr. Scarlatos opined that appellant’s low back and right buttock symptoms were due to his
preexisting degenerative changes and stated, “There is no evidence to suggest that there has been
an aggravation of this pathology….” Dr. Scarlatos noted that appellant was capable of engaging
in some form of light or modified duties and stated that any work restrictions were “predicated
upon the preexisting degenerative changes noted in the lumbar spine as well as the hips.”
Appellant could not, however, return to his regular work for the employing establishment.
In a May 19, 2010 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits effective June 6, 2010. It found the March 31, 2010 report of Dr. Scarlatos
established that appellant had no residuals of his April 18, 2005 work injury. In a December 17,
2010 decision, an OWCP hearing representative affirmed the May 19, 2010 decision.
In a decision dated October 19, 2011,3 the Board reversed the December 17, 2010
decision. The Board found that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective June 6, 2010. The Board found that the
March 31, 2010 report of Dr. Scarlatos was not sufficiently rationalized to constitute the weight
of the medical evidence with respect to appellant’s continuing work-related residuals.
Dr. Scarlatos failed to address the fact that appellant’s claim was accepted for permanent
aggravation of right hip arthritis and permanent aggravation of degenerative disc disease of the
2

Appellant’s employment injuries were attributed to lifting a stack of plastic bins on April 18, 2005 and an
incident on the same date when he twisted his trunk while tripping on a floor mat.
3

Docket No. 11-735 (issued October 19, 2011).

2

low back. The Board noted that Dr. Scarlatos’ opinion was of limited probative value regarding
appellant’s work-related residuals because it was not based on a complete and accurate factual
and medical history. Dr. Scarlatos also failed to address whether all of appellant’s accepted
work-related conditions had resolved; or whether appellant had disability or the need for medical
care due to the work-related spinal stenosis. He stated that appellant continued to have
symptoms in his right hip, but he did not provide any specific discussion of whether the accepted
right hip bursitis had resolved.
In a February 27, 2012 report, Dr. Botwin addressed the results of appellant’s diagnostic
testing and reported findings on physical examination. He diagnosed spinal stenosis of the
lumbar region, degeneration of lumbar and cervical discs, thoracic/lumbosacral neuritis or
radiculitis, lumbar myofascial pain, joint hip pain, gait disturbance and sacroiliitis. Dr. Botwin
stated that appellant was totally disabled on a permanent basis. On June 6, 2012 he diagnosed
the same conditions and noted each of these conditions, except for sacroiliitis, were related to
appellant’s April 18, 2005 work injury. Dr. Botwin reiterated that appellant was totally disabled.
On July 30, 2012 OWCP referred appellant to Dr. Jonathan Black, a Board-certified
orthopedic surgeon, for a second opinion examination in order to evaluate whether appellant
continued to have wage loss and the need for medical treatment due to his April 18, 2005 work
injury.
In a September 19, 2012 report, Dr. Black discussed appellant’s April 18, 2005 work
injury and reported the findings of his physical examination of appellant. He noted that
appellant’s right knee contusion had resolved and stated that the physical examination did not
confirm evidence of an active lumbar radiculopathy. Dr. Black stated that there was no evidence
on physical examination of ongoing bursitis in appellant’s right hip and that diagnostic testing
did not show the existence of significant hip arthritis. He noted that appellant primarily
complained of low back pain and right hip pain, but opined that these complaints were related to
age-related degenerative findings and deconditioning rather than the April 18, 2005 work injury.
Dr. Black stated that appellant’s work-related injuries had resolved. He did not believe that
appellant was capable of performing his date-of-injury position as a transportation security
screener, but noted that the work restrictions he was imposing were based on age-related findings
and not on the work-related injury. In an attached September 19, 2012 work restrictions form,
Dr. Black stated that appellant could work eight hours per day with restrictions of lifting 30
pounds for three hours per day.
OWCP determined that a conflict in medical opinion arose between Dr. Botwin and
Dr. Black regarding whether appellant continued to have residuals of his April 18, 2005
employment injury. In order to resolve the conflict, it referred appellant, pursuant to section
8123(a) of FECA, to Dr. Robert B. McShane, a Board-certified orthopedic surgeon, for an
impartial medical examination.
In an April 29, 2013 report, Dr. McShane discussed the mechanism of appellant’s
April 18, 2005 work injury and detailed the diagnostic testing of his hips and back. He noted
that appellant presently complained of right hip pain and low back pain with occasional radiation
into both legs. A magnetic resonance imaging (MRI) scan testing of appellant’s back from
February 2012 showed mild central and right neuroforaminal stenosis at L3-4, moderate central
and bilateral neuroforaminal stenosis at L4-5, grade 1 spondylolisthesis at L4-5, moderate central
3

and bilateral foraminal stenosis at L5-S1 and grade 1 spondylolisthesis at L5-S1. On
examination of his back, appellant voluntarily flexed to 30 degrees, extended to 30 degrees and
bent to his sides to 20 degrees. He displayed no spasms in his lumbar musculature and there was
normal sensation in both legs. Appellant’s right hip internal rotation was normal, but external
rotation was limited at 50 degrees. Dr. McShane noted that appellant complained of some mild
right groin pain and that he was minimally tender to deep palpation over the greater trochanteric
bursa. Appellant had some mild tenderness in the right sciatic notch, but not the left sciatic
notch. Dr. McShane felt that appellant’s complaints of low back and hip pain were age related
and were unrelated to the episodes that occurred on April 18, 2005. He found that appellant was
not capable of performing his date-of-injury position as a transportation security screener. This
disability was not due to the April 18, 2005 work injury, but rather was due to appellant being
eight years older, somewhat overweight and deconditioned, and not having worked in the last
eight years. Dr. McShane stated that appellant was capable of working a light-duty position as
described in an attached work restrictions form.4 He further stated:
“It is my opinion that [appellant] has sustained a temporary aggravation of
preexisting lumbar spondylolysis and degenerative arthritis of his right hip. His
temporary right knee contusion has resolved completely.
[Appellant]
degenerative lumbar spondylolysis and mild degenerative arthritis of the right hip
both preexisted the April 18, 2005 work injury. I do not find any evidence that
the patient currently has any severe hip arthritis or any [avascular necrosis
(AVN)] based on his February 2012 MRI [scan] of the pelvis. I feel that the
patient’s temporary aggravation of these preexisting conditions has resolved at
this point. The patient’s description of his injuries would suggest a minor twisting
injury to his back, and a minor twisting injury to his right leg. Diagnostic studies
in the form of x-rays and MRI [scan] very shortly after his injuries suggested
significant degenerative changes in his low back, which would certainly be
preexisting. Mild arthritis of the hip in a 55-year-old would not be unusual, and
the patient’s follow[-]up MRI scan of the pelvis failed to show any evidence of
any AVN or significant degenerative changes.”
***
“The patient’s aggravation to his preexisting degenerative changes is temporary. I
would opine that the aggravation ceased one year status post his injuries. He does
not have any permanent residuals from his April 18, 2005 injuries.”
In a June 7, 2013 letter, OWCP advised appellant that it proposed to terminate his wageloss compensation and medical benefits on the grounds that he ceased to have residuals of his
April 18, 2005 work injury. It noted that the proposed termination action was supported by the
April 29, 2013 report of Dr. McShane, the impartial medical specialist. Appellant was provided
with 30 days from the date of the letter to submit evidence and argument challenging OWCP’s
proposed action.
4

In an April 29, 2013 work restrictions form, Dr. McShane indicated that appellant could work eight days with
restrictions of lifting, pushing and pulling 40 pounds and squatting or climbing for two hours per day. Appellant
could perform each of the following activities for four hour per day: sitting, walking, standing, twisting, bending,
stopping, operating a motor vehicle, lifting, pushing and pulling.

4

Appellant submitted an April 3, 2013 pharmacy form, but he did not submit any
additional medical evidence in response to OWCP’s June 7, 2013 letter.
By decision dated July 18, 2013, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective July 28, 2013 on the grounds that he had no residuals of his
April 18, 2005 work injury after that date. It founds that the weight of the medical evidence
rested with the well-rationalized opinion of Dr. McShane.
Appellant requested a telephone hearing with an OWCP hearing representative. During
the hearing held on December 23, 2013, counsel asserted that the April 29, 2013 opinion of
Dr. McShane was defective since he failed to recognize that OWCP had accepted that appellant
sustained permanent aggravation of his right hip arthritis, permanent aggravation of his
degenerative disc disease and spinal stenosis at L3-4, L4-5 and L5-S1. Counsel stated that
Dr. Botwin provided new medical reports which showed that appellant continued to have
residuals of his April 18, 2005 work injury.
In a March 14, 2014 decision, OWCP’s hearing representative affirmed OWCP’s July 18,
2013 termination decision noting that the weight of the medical evidence continued to rest with
the opinion of Dr. McShane. The hearing representative indicated that Dr. McShane provided
medical rationale for his opinion that appellant’s work-related conditions had resolved. OWCP’s
hearing representative stated:
“Although the claimant’s representative has indicated the impartial medical
evaluator did not accept or recognize the accepted employment injuries, it is the
opinion of this reviewer that although he only accepted such as [sic] temporary
aggravation of degenerative disc disease and spinal stenosis at L3-L4 and L5-S1
(rather than permanent), he has clearly and with rationale indicated the
employment injuries to have resolved.”
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.5 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.7
Section 8123(a) of FECA provides in pertinent part: “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 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
5

I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986).

6

Charles E. Minniss, 40 ECAB 708, 716 (1989).

7

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

8

5 U.S.C. § 8123(a).

5

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.9
ANALYSIS
OWCP accepted that on April 18, 2005 appellant sustained lumbago, right knee
contusion, right hip bursitis, lumbar radiculitis, permanent aggravation of right hip arthritis,
permanent aggravation of degenerative disc disease of the low back and spinal stenosis at the
L3-4, L4-5 and L5-S1 levels.
OWCP determined that there was a conflict in the medical opinion between Dr. Botwin,
an attending Board-certified internist, and Dr. Black, a Board-certified orthopedic surgeon acting
as an OWCP referral physician, on the issue of whether appellant continued to have residuals of
his April 18, 2005 work injury. To resolve the conflict, OWCP properly referred appellant,
pursuant to section 8123(a) of FECA, to Dr. McShane, a Board-certified orthopedic surgeon, for
an impartial medical examination and an opinion on the matter.10
The Board finds that the April 29, 2013 report of Dr. McShane is not sufficiently
rationalized to constitute the weight of the medical evidence regarding appellant’s work-related
residuals.11
In his April 29, 2013 report, Dr. McShane failed to acknowledge that appellant’s claim
was accepted for permanent aggravation of right hip arthritis and permanent aggravation of
degenerative disc disease of the low back. He stated, “It is my opinion that [appellant] has
sustained a temporary aggravation of preexisting lumbar spondylolysis and degenerative arthritis
of his right hip.” This omission calls into question the probative weight to be accorded
Dr. McShane’s opinion. Because his opinion is not based on a complete and accurate factual and
medical history, it is of limited probative value on the relevant issue of this case.12
Dr. McShane’s opinion is of limited probative value for the further reason that he failed to
indicate whether all of appellant’s accepted work-related conditions had resolved. For example,
he did not clearly indicate whether appellant no longer had disability or the need for medical care
due to the accepted work-related spinal stenosis at L3-4, L4-5 and L5-S1. Appellant complained
of pain radiating from his low back down into his legs and diagnostic testing showed foraminal
encroachment at multiple lumbar disc levels, but Dr. McShane did not discuss whether the workrelated condition of lumbar radiculitis had resolved. For these reasons, Dr. McShane did not
provide a rationalized medical opinion showing that appellant ceased to have work-related
residuals causing wage loss or the need for medical care due to his April 18, 2005 work injury.
Given that there is an unresolved conflict in the medical opinion evidence regarding whether
appellant continues to have wage loss and the need for medical treatment due to his April 18,
9

R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 1010 (1980).

10

See supra note 8.

11

See supra note 9.

12

See William Nimitz, Jr., 30 ECAB 567 (1979) (finding that a medical opinion must be based on a complete and
accurate factual and medical history).

6

2005 work injury, OWCP did not meet its burden of proof to terminate his wage-loss
compensation and medical benefits effective July 28, 2013.13
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective July 28, 2013 on the grounds that he had
no residuals of his April 18, 2005 work injury after that date.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 22, 2014
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

13

See Gail D. Painton, 41 ECAB 492, 498 (1990); Craig M. Crenshaw, Jr., 40 ECAB 919, 922-23 (1989)
(finding that termination action was not supported when there was continuing conflict in medical opinion evidence
regarding work-related residuals).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.J., Appellant
and
U.S. POSTAL SERVICE, HUDSON PARK
STATION, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 13-144
Issued: August 7, 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 October 29, 2012 appellant, through counsel, filed a timely appeal from an
October 17, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
concerning a schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he is entitled to more than a 12 percent
impairment of the right upper extremity, for which he received a schedule award.
On appeal appellant’s counsel contends that OWCP erred in excluding an impairment
rating and failing to include consequential conditions when rating appellant’s impairment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 10, 1995 appellant, then a 30-year-old letter carrier, filed an occupational
disease claim alleging that his cervical condition was due to his employment duties. He stated
that he first became aware of cervical herniation and deterioration on June 18, 1994, but did not
realize that it was employment related until October 18, 1994. OWCP accepted the claim for
aggravation of degenerative cervical disc at C6-7 and a C6-7 disc herniation.
On June 13, 2012 appellant filed a claim for a schedule award. In support of his request,
he submitted a May 15, 2012 report from Dr. David Weiss, an examining osteopath specializing
in family practice, who reviewed medical evidence, provided phyiscal findings and diagnosed
cumulative and repetititve trauma disorder, occupational cervical spine syndrome,
myeloradiculopathy, C4-5 and C6-7 herniated nucleus pulposus, progressive multilevel
discogenic cervical disease at C3-4, C4-5, C5-6 and C6-7, progressive cervical spine discogenic
disease with compressed myelopathy at C3-4 and C5-6 and status post C6-7 anterior cervical
discectomy and fusion. Dr. Weiss determined that appellant had a 25 percent right upper
extremity impairment using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).2 In reaching this determination,
Dr. Weiss found a one percent impairment for a class 1 sensory deficit of the right C7 nerve root
(radial) using Table 15-7, Table 15-9 and Table 15-21, pages 406, 410 and 441. Next, he found
a one percent impairment for a sensory deficit of the right C6 nerve root (axillary) using Table
15-21, page 436. Dr. Weiss then found a 23 percent right upper extremity impairment for a class
2 moderate motor strength deficit of the right wrist (extensor/radial) using Table 15-21, page
441.
An OWCP medical adviser reviewed Dr. Weiss’ impairment rating and concluded that
his use of the A.M.A., Guides was incorrect as Dr. Weiss used nerves rather than nerve roots in
his calculations. He also noted that Dr. Weiss incorrectly used the radial axillary and femoral
nerves in his impairment rating when these nerves were not involved. Using Proposed Table 1,
Spinal Nerve Impairment, Upper Extremity Impairments, OWCP’s medical adviser found a one
percent impairment due to mild sensory deficit and a five percent impairment due to motor
deficit at the C6 and C7. Combining the impairment ratings resulted in a six percent right upper
extremity impairment based on C6 sensory and motor deficits and a six percent right upper
extremity based on C7 sensory and motor impairment. Adding these together totals 12 percent
right upper extremity impairment.
By decision dated October 17, 2012, OWCP granted appellant a 12 percent permanent
impairment of his right upper extremity. The award was for 37.44 weeks of compensation for
the period May 15, 2012 to February 1, 2013.

2

Dr. Weiss also calculated a 24 percent right lower extremity impairment based on the femoral and sciatic nerve
roots and right hip flexor motor strength deficits. He also found a one percent left upper extremity impairment
based on radial nerve sensory deficits.

2

LEGAL PRECEDENT
Under section 8107 of FECA3 and section 10.404 of the implementing federal
regulations,4 schedule awards are payable for permanent impairment of specified body members,
functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.5
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.6 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back or spine,7 no claimant is
entitled to such an award.8
Amendments to FECA, however, modified the schedule award provisions to provide for
an award for permanent impairment to a member of the body covered by the schedule regardless
of whether the cause of the impairment originated in a scheduled or nonscheduled member. As
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to a limb even though the cause of the impairment
originated in the spine.9
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as
federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine,
the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with
sixth edition methodology.10 OWCP has adopted this approach for rating impairment of the
upper or lower extremities caused by a spinal injury, as provided in Chapter 3.700 of its
procedures.11 For peripheral nerve impairments to the upper or lower extremities resulting from

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404

5

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

6

W.D., Docket No. 10-274 (issued September 3, 2010); William Edwin Muir, 27 ECAB 579 (1976).

7

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

8

W.D., supra note 6; Timothy J. McGuire, 34 ECAB 189 (1982).

9

W.D., supra note 6; Rozella L. Skinner, 37 ECAB 398 (1986).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, FECA Transmittal No.
10-04 (issued January 9, 2010); Exhibit 4 (January 2010).
11

Id. at (Exhibits 1, 4).

3

spinal injuries, OWCP procedures indicate that The Guides Newsletter Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009) is to be applied.12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.13
ANALYSIS
OWCP accepted appellant’s occupational disease claim for aggravation of degenerative
cervical disc at C6-7 and a C6-7 disc herniation. By decision dated October 17, 2012, OWCP
granted appellant a 12 percent right upper extremity impairment. The issue on appeal is whether
appellant has established that he is entitled to a schedule award for a greater impairment.
Appellant’s physician, Dr. Weiss, opined that appellant had a 25 percent right upper
extremity impairment based on sensory deficits of the nerve root at C6 and C7 and motor deficits
of the right wrist. OWCP’s medical adviser disagreed and opined that Dr. Weiss incorrectly
applied the A.M.A., Guides. In support of his opinion, OWCP’s medical adviser related that
Dr. Weiss incorrectly used the radial axillary nerve in his impairment rating and that using nerve
roots was the more appropriate calculation method.
The Board finds Dr. Weiss’ report to be of limited probative value. Dr. Weiss did not
apply the A.M.A., Guides properly. As noted above, for peripheral nerve impairments to the
upper or lower extremities resulting from spinal injuries, OWCP procedures indicate that The
Guides Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth edition
(July/August 2009) is to be applied.14 Dr. Weiss did not refer to The Guides Newsletter or
identify any appropriate table in rating upper extremity impairment under the A.M.A., Guides.
Accordingly, the Board finds that Dr. Weiss did not properly apply the A.M.A., Guides when
rating appellant’s permanent impairment. The Board has held that an opinion that is not based
upon standards adopted by OWCP and approved by the Board as appropriate for evaluating
schedule losses is of limited probative value in determining the extent of permanent
impairment.15
The Board finds that OWCP’s medical adviser properly reviewed the medical record and
evaluated appellant’s impairment in accordance with the procedures found at Exhibit 4 of
Chapter 3.700.16 OWCP’s medical adviser noted that OWCP can only recognize extremity
12

See G.N., Docket No. 10-850 (issued November 12, 2010); see also supra note 10 at Exhibit 1. The Guides
Newsletter is included as (Exhibit 4).
13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).
14

R.T., Docket No, 12-1133 (issued November 5, 2012).

15

T.C., Docket No. 12-1319 (issued November 5, 2012).

16

Supra note 10.

4

impairment resulting from the nerve roots. He reviewed the record and found a six percent
impairment due to sensory and motor deficits of the C7 nerve root and a six percent impairment
due to sensory and motor deficits of the C6 nerve root, resulting in a total 12 percent right upper
extremity impairment. There is no medical evidence in conformance with the A.M.A., Guides
showing a greater impairment. Accordingly, OWCP properly granted appellant a schedule
award for a 12 percent right upper extremity impairment.
On appeal appellant’s attorney asserted that OWCP erred in failing to consider
appellant’s consequential injuries in calculating an impairment rating. For conditions not
accepted by OWCP as being employment related, it is appellant’s burden to provide rationalized
medical evidence sufficient to establish causal relation.17 Dr. Weiss did not provide any medical
rationale explaining why conditions of cumulative and repetititve trauma disorder, occupational
cervical spine syndrome myeloradiculopathy, C4-5 herniated nucleus pulposus, progressive
multilevel discogenic cervical disease at C3-4, C4-5, C5-6 and C6-7, progressive cervical spine
discogenic disease with compressed myelopathy at C3-4 and C5-6 were caused by the accepted
conditions and, thus, his opinion is insufficient to establish causal relationship.18
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established entitlement to a greater than 12 percent
impairment of the right upper extremity.

17

Alice J. Tysinger, 51 ECAB 638 (2000).

18

Deborah L. Beatty, 54 ECAB 340 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 17, 2012 is affirmed.
Issued: August 7, 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.B., Appellant
and
DEPARTMENT OF LABOR, WAGE & HOUR
DIVISION, Montgomery, AL, Employer
__________________________________________

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Appearances:
John Bennett, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1043
Issued: September 5, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 7, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 19, 2007, denying modification of the
termination of compensation effective February 19, 2006. 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 the Office met its burden of proof to terminate compensation for
wage-loss and medical benefits effective February 19, 2006.
FACTUAL HISTORY
On June 26, 2000 appellant, then a 43-year-old investigator, filed an occupational disease
claim (Form CA-2) alleging that she sustained an emotional condition causally related to her
federal employment. The reverse of the claim form indicated that appellant stopped working on
June 7, 2000. On December 14, 2000 the Office accepted the claim for depression. The
compensable work factors accepted by the Office included that appellant’s work involved

confrontational situations and the position as acting district director required informing
employees of the need to take action, handle monthly reports and review case files, which
created animosity among coworkers of the same grade level. Appellant began receiving
compensation for temporary total disability.
The Office referred appellant, together with a statement of accepted facts and medical
records, to Dr. David Harwood, a psychiatrist, for a second opinion examination. In a report
dated October 31, 2005, Dr. Harwood provided a history and results on examination. He
diagnosed depression and dysthemic disorder. In response to a question as to appellant’s current
condition and whether it was self-generated, Dr. Harwood stated:
“I think the initial disabling psychiatric event was a direct causation from
employment factors. Regarding her current emotional condition, the symptoms
would have not initially manifested themselves without the job-related distress,
but I am hard pressed to see how the work-related issues continue to fuel the
symptoms. At this point, I feel the claimant’s condition is self-generated for a
variety of reasons including chronic low-grade depression are [sic] possible
secondary gain.”
In response to a question as to when the effects of the employment factors would be
expected to cease and whether appellant’s emotional condition would have progressed to its
current level without exposure to employment factors, Dr. Harwood stated, “The effects of the
employment factors would, in my opinion, have expected to cease. The claimant’s emotional
condition would not have progressed to its current level without the exposure to compensable
federal employment factors, however, they appear to me to be self-sustaining at this point.”
In a letter dated December 14, 2005, the Office notified appellant that it proposed to
terminate compensation for wage-loss and medical benefits based on the report from
Dr. Harwood. By decision dated January 25, 2006, the Office terminated compensation for
wage-loss and medical benefits effective February 19, 2006.
Appellant requested reconsideration by letter received on February 2, 2006. The Office
denied the request without merit review of the claim in a decision dated March 16, 2006.
Appellant again requested reconsideration, which was denied without merit review in a decision
dated June 15, 2006.
By letter dated October 18, 2006, appellant again requested reconsideration. Appellant
submitted a report dated September 29, 2006 from Dr. Clemmie Palmer, a psychiatrist, who
opined that appellant’s major depression was causally related to work-related stress.
In a decision dated January 19, 2007, the Office reviewed the case on its merits and
denied modification.

2

LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.2 The right
to medical benefits is not limited to the period of entitlement to disability. To terminate
authorization for medical treatment, the Office must establish that appellant no longer has
residuals of an employment-related condition that require further medical treatment.3
ANALYSIS
The Office based its decision to terminate compensation for wage-loss and medical
benefits on the October 31, 2005 report from Dr. Harwood. The accepted condition in this case
was depression and it is the Office’s burden of proof to terminate compensation. According to
the Office, Dr. Harwood provided an opinion that appellant no longer had an employmentrelated emotional condition.
The report of Dr. Harwood, however, does not provide a reasoned medical opinion that is
sufficient to meet the Office’s burden of proof. Dr. Harwood stated that he did not see how
work-related issues continue to fuel the symptoms and opined that the current condition was selfgenerated for a “variety of reasons.” He does not provide a clear explanation of those reasons,
noting only chronic low grade depression and possible secondary gain. The accepted condition
in this case was depression, and Dr. Harwood does not explain how a continuing low-grade
depression supports an opinion that the condition was self-generated.
In addition, Dr. Harwood stated that appellant’s emotional condition would not have
progressed to its current level without exposure to compensable work factors. This statement
would support a finding that there was some continuing contribution to appellant’s condition
from federal employment. If Dr. Harwood believed that there was no current contribution from a
compensable employment factor, he must explain his opinion in view of his statement regarding
the progression of appellant’s condition. The October 31, 2005 report does not provide any
additional explanation.
The Board therefore finds that the October 31, 2005 report from the second opinion
psychiatrist does not provide a reasoned medical opinion on the issues presented. It is the
Office’s burden of proof and the evidence of record is not sufficient to meet the Office’s burden
in this case.

1

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

2

Mary A. Lowe, 52 ECAB 223, 224 (2001).

3

Frederick Justiniano, 45 ECAB 491 (1994).

3

CONCLUSION
The Office did not meet its burden of proof to terminate compensation for wage-loss and
medical benefits effective February 19, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 19, 2007 is reversed.
Issued: September 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4