United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
OFFICE OF PROFESSIONAL
RESPONSIBILITY, El Paso, TX, Employer
__________________________________________

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

Docket No. 16-0448
Issued: November 9, 2016

Case Submitted on the Record

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

JURISDICTION
On January 11, 2016 appellant filed a timely appeal of an October 28, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a ratable hearing
loss warranting him to a schedule award.
FACTUAL HISTORY
On March 4, 2015 appellant, then a 52-year-old special agent, filed an occupational
disease claim (Form CA-2) alleging that on February 10, 2015 he first became aware of his
1

5 U.S.C. 8101 et seq.

hearing loss. He related this condition to his employment on that date and attributed it to his job
duties of inspecting commercial aircraft, container ships, cars, and trucks. Appellant submitted
an audiogram dated February 10, 2015.
OWCP referred appellant for a second opinion examination with Dr. William Carl Smith,
a Board-certified otolaryngologist, on March 19, 2015. In a report dated April 6, 2016,
Dr. Smith reviewed the statement of accepted facts (SOAF) and noted appellant’s employmentrelated noise exposure, which he found sufficient to have caused sensorineural hearing loss. He
found that appellant’s current audiological findings were not reliable, but demonstrated a
bilateral hearing loss. Dr. Smith noted that appellant was retested several times, but was
consistently able to respond to speech at a lower level than he indicated that he could hear the
pure tones. He recommended that appellant be retested.
On May 11, 2015 OWCP referred appellant for an additional second opinion evaluation
with Dr. John D. Edwards, a Board-certified otolaryngologist. In a report dated May 27, 2015,
Dr. Edwards reviewed the SOAF and noted that appellant was exposed to loud noises in ships
and armored personnel carriers prior to his employment-related noise exposures. He opined that
appellant’s workplace noise exposure was sufficient to cause sensorineural hearing loss.
Dr. Edwards diagnosed bilateral sensorineural hearing loss moderate mid to high frequency due
to his noise exposure. He concluded that appellant’s hearing loss was due to his work-related
noise exposure. Dr. Edwards recommended hearing aid amplification. Appellant’s audiogram
dated May 27, 2015 demonstrated testing at 500, 1,000, 2,000, and 3,000 hertz (Hz). On the
right at those frequencies, he demonstrated losses of 30, 20, 20, and 35 decibels (dBs) of air
conduction. On the left appellant demonstrated losses of 15, 15, 15, and 40 dB’s, respectively.
In his evaluation of this audiogram, Dr. Edwards provided appellant’s dB losses as 30, 20, 20,
and 30 on the right.
OWCP’s medical adviser reviewed Dr. Edwards’ report and found that appellant had
reached maximum medical improvement on May 27, 2015. He concluded that appellant’s
hearing loss was related to noise exposure in the performance of his job duties and recommended
authorizing hearing aids. OWCP’s medical adviser applied the hearing loss formula from the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).2 He added dB losses on the right listed in Dr. Edwards’ report, which he related as: 30,
20, 20, and 30 to reach 100 and averaged this sum to reach 25. OWCP’s medical adviser then
subtracted the fence of 25 as directed by the A.M.A., Guides to reach 0 and multiplied this
amount by 1.5 to reach a monaural loss on the right of 0 percent. He followed the same
procedure with the audiographic results of appellant’s left ear to reach a sum of 85, an average of
21.25, and after deducting the fence of 25, 0 percent monaural hearing loss.
On June 16, 2015 OWCP accepted appellant’s claim for bilateral hearing loss.
Appellant filed a claim for compensation (Form CA-7) requesting a schedule award on
June 23, 2015. By decision dated July 7, 2015, OWCP denied his claim for a schedule award,
finding that the medical evidence of record had not established a ratable hearing loss under the
A.M.A., Guides.
2

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

2

Appellant requested reconsideration of OWCP’s July 7, 2015 decision alleging that
Dr. Edwards had informed him that he did have hearing loss, but that he did not perform hearing
impairment ratings. Appellant contended that Dr. Edwards found that he had zero percent
impairment due to hearing loss and that he was being penalized on this basis.
By decision dated October 28, 2015, OWCP denied modification of its July 24, 2015
decision, finding that, although appellant’s claim was accepted for bilateral hearing loss, the
medical evidence of record did not establish a ratable impairment under the A.M.A., Guides. It
noted that he had not submitted medical evidence establishing greater impairment of his hearing.
OWCP explained how appellant’s impairment was calculated.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.5
OWCP’s procedures set forth requirements for the medical evidence used in evaluating
hearing loss. These include that the employee undergo both audiometric and otologic
examination; that the audiometric testing be performed by an appropriately certified audiologist;
that the otologic examination be performed by an otolaryngologist certified or eligible for
certification by the American Academy of Otolaryngology and that the audiometric and otologic
examination be performed by different individuals as a method of evaluating the reliability of the
findings. Further, all audiological equipment authorized for testing meet the calibration protocol
contained in the accreditation manual of the American Speech and Hearing Association; that the
audiometric test results include both bone and pure tone air conduction thresholds, speech
reception thresholds, and monaural discrimination scores. The otolaryngologist’s report is to
include: date and hour of examination; date and hour of employee’s last exposure to loud noise;
a rationalized medical opinion regarding the relation of the hearing loss to the employmentrelated noise exposure; and a statement of the reliability of the tests.6 The physician should be

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Effective May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700, Exhibit 1 (January 2010).
6

See I.J., 59 ECAB 408 (2008); see also Victor J. Woodhams, 41 ECAB 345 (1989).

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instructed to conduct additional tests of retests in those cases where the initial tests were
inadequate or there is reason to believe that the claimant is malingering.7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 dB is deducted
because, as the A.M.A., Guides points out, losses below 25 dB result in no impairment in the
ability to hear everyday speech under everyday conditions.8 The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five and then added to the greater loss and the total is divided by six to arrive at
the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.9 The Board has also noted OWCP’s policy to round the
calculated percentage of impairment to the nearest whole number.10
ANALYSIS
The Board finds that this case is not in posture for a decision.
Dr. Edwards submitted a medical report and an audiogram dated May 27, 2015
evaluating appellant’s hearing loss for schedule award purposes. He found that appellant’s
workplace exposure was sufficient to have caused his sensorineural hearing loss. Dr. Edward
provided audiometric test results. For the frequencies of 500, 1,000, 2,000, and 3,000 cycles per
second, the May 27, 2015 audiological diagram and audiological report demonstrate levels in the
left ear of 15, 15, 15, and 40 decibels. For the right ear, the May 27, 2015 audiological diagram
revealed for the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second losses of 30, 20,
20, and 35 decibels of air conduction. The audiological report recorded in the right ear levels at
the same frequencies, respectively, 30, 20, 20, and 30 rather than 35 dBs.
OWCP’s medical adviser applied the A.M.A., Guides to the medical report submitted
from Dr. Edwards, which conformed to the applicable criteria. The losses at the frequencies of
500, 1,000, 2,000, and 3,000 cycles per second were added and averaged and the fence of 25
decibels was deducted.11 The remaining amount was multiplied by 1.5 to arrive at the
percentage of monaural hearing loss. For levels recorded in the left ear of 15, 15, 15, and 40
dBs, the above formula derived zero percent monaural hearing loss.

7

Luis M. Vallanueva, 54 ECAB 666 (2003); See Federal (FECA) Procedure Manual, Part 3 -- Medical,
Requirements for Medical Reports, Chapter 3.600.8(a) (September 1996).
8

See A.M.A., Guides 250.

9

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 52 ECAB 462 (2001).

10

J.H., Docket No. 08-2432 (issued June 15, 2009); Robert E. Cullison, 55 ECAB 570 (2004). See supra note 5
at Chapter 3.700.4(b)(2)(b) (January 2010).
11

J.H., id.; Robert E. Cullison, id. See Federal (FECA) Procedure Manual, id.

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OWCP’s medical adviser then applied the A.M.A., Guides to the findings in appellant’s
right ear as detailed in audiological report submitted by Dr. Edwards. As noted above, this
report listed appellant’s hearing at the applicable frequencies as 30, 20, 20, and 30 dBs.
OWCP’s medical adviser did not address or reference the discrepancy with regard to findings of
the audiological diagram, which listed appellant’s hearing at the applicable frequencies as 30, 20,
20, and 35 dBs. Application of the A.M.A., Guides to these variant findings in the right ear
results in a possibility of a ratable hearing loss for schedule award purposes. On remand OWCP
should request clarification of appellant’s hearing loss on the right from Dr. Edwards based on a
complete, accurate, and internally consistent audiometric test results. After this and such other
development as OWCP deems necessary, it should issue an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for a decision as to the extent of
appellant’s hearing loss for schedule award purposes.
ORDER
IT IS HEREBY ORDERED THAT the October 28, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and remanded.
Issued: November 9, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jackson, MI, Employer
__________________________________________

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

Docket No. 13-1702
Issued: December 2, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 9, 2013 appellant, through her attorney, filed a timely appeal of the June 4, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty causally
related to factors of her federal employment.
On appeal, appellant’s attorney contends that OWCP’s June 4, 2013 decision is contrary
to fact and law.

1

5 U.S.C. § 8101 et seq.

On May 27, 2006 appellant, then a 40-year-old rural carrier, filed an occupational disease
claim alleging that she sustained upper and lower back pain and a herniated disc as a result of
bending, lifting and sitting for extended periods of time at work.
FACTUAL HISTORY
This case has previously been before the Board. In an August 26, 2009 decision, the
Board affirmed OWCP’s decisions dated January 23 and October 6, 2008, finding that appellant
had not established that she sustained an injury in the performance of duty.2 The Board accorded
special weight to the December 21, 2007 medical opinion of Dr. Emmanuel N. Obianwu, a
Board-certified orthopedic surgeon and impartial medical specialist, who found that appellant’s
cervical and lumbar conditions were not causally related to her established employment duties.3
In a September 22, 2011 decision, the Board affirmed an October 4, 2010 OWCP decision, again
finding that appellant had not sustained an injury while in the performance of duty.4 The Board
found that the additional medical evidence submitted from an attending physician who was on
one side of the conflict was insufficient to outweigh the special weight accorded to
Dr. Obianwu’s impartial medical opinion or to create a new conflict. The facts of the case as set
forth in the Board’s prior decisions are incorporated by reference.
On June 7, 2012 appellant, through her attorney, requested reconsideration before
OWCP. In an April 26, 2012 medical report, Dr. Strzoda reviewed Dr. Obinawu’s report. She
stated that his finding that appellant’s cervical and lumbosacral spine conditions had no
connection to her federal employment was fallacious. Dr. Strzoda related that Dr. Obianwu
examined appellant at a time when she was no longer performing her job duties and, therefore,
she had a paucity of physical findings. When appellant was performing her job regularly, she
had recurrent exacerbations of pain in her neck and lower back. Dr. Strzoda stated that the
chronic nature of the problem in appellant’s spine was caused by her job after many years
performing required movements. She noted that rural mail carriers perform multiple movements
during their work shifts, including repetitive bending, twisting and lifting up to 70 pounds.
When loading or unloading mail hampers, appellant could not lift properly. She had to bend
over into a hamper to place or remove parcels and full trays of mail which required an improper
gait balance. These movements increased appellant’s risk of back injury due to improper body
mechanics. Dr. Strzoda advised that the daily repetitive activities lead to her back and neck
problems. It was also noteworthy that appellant’s neck and back symptoms had improved since
avoiding work. The antidepressant she used had neuropathic pain treatment effects which helped
her pain. Appellant did not have depression or anxiety that accompanied her back and neck pain.
Tricyclic antidepressant pain medications were commonly used to treat patients with neuropathic
pain. Dr. Strzoda strongly recommended that appellant no longer perform her repetitive work
2

Docket No. 09-431 (issued August 26, 2009).

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The Board found that OWCP properly referred appellant to Dr. Obianwu to resolve the conflict in the medical
opinion evidence between Dr. Cheryl Strzoda, an attending Board-certified family practitioner, Dr. Allen G. Clague,
an attending neurologist, and Dr. Bruce D. Abrams, a Board-certified orthopedic surgeon and OWCP referral
physician, regarding whether appellant’s cervical and lumbosacral spine conditions were causally related to the
accepted employment factors.
4

Docket No. 11-143 (issued September 22, 2011).

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duties or at the minimum perform such duties only on a limited-time basis so as not to exacerbate
the pain associated with her spinal pathology. She noted that appellant’s workplace could not
accommodate these restrictions.
In a June 4, 2013 decision, OWCP affirmed the denial of appellant’s occupational disease
claim. It found that Dr. Strzoda’s April 26, 2012 report was not sufficiently rationalized to
outweigh the special weight accorded to Dr. Obianwu’s impartial medical opinion.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.8 Neither the fact that appellant’s
condition became apparent during a period of employment nor her belief that the condition was
caused by her employment is sufficient to establish a causal relationship.9

5

5 U.S.C. §§ 8101-8193.

6

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

7

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

8

Victor J. Woodhams, supra note 7.

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

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Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.10 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
properly referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based on proper factual and
medical background, must be given special weight.11
ANALYSIS
The Board previously found that the report of Dr. Obianwu, a Board-certified orthopedic
surgeon and impartial medical specialist, was entitled to special weight regarding appellant’s
claimed employment-related injury. Appellant requested reconsideration before OWCP and
submitted an additional report from Dr. Strzoda, a Board-certified family practitioner and her
attending physician. The Board notes that Dr. Strzoda was on one side of the conflict in medical
opinion that Dr. Obianwu resolved.
Dr. Strzoda opined that appellant’s daily repetitive work activities caused her back and
neck conditions. She recommended that appellant refrain from performing these activities, or at
a minimum perform them on a limited basis to avoid an exacerbation of her spinal pain.
Dr. Strzoda disagreed with Dr. Obianwu’s opinion that appellant’s cervical and lumbosacral
spine conditions were not caused by her federal employment. She stated that her examination
took place when appellant was no longer performing her job duties, and thus, there were a
paucity of physical findings. Dr. Strzoda related that when appellant regularly performed her
work duties, which included repetitive bending, twisting, lifting up to 70 pounds and loading or
unloading mail hampers, she experienced a recurrent exacerbation of her chronic spinal
problems. She indicated that these movements required an improper gait balance which
increased appellant’s risk of back injury. Dr. Strzoda noted appellant’s use of an antidepressant
to treat her neuropathic pain and the employing establishment’s inability to accommodate her
restrictions.
While Dr. Strzoda opined that the established work factors caused appellant’s cervical
and lumbar problems, she failed to provide examination findings or a definitive diagnosis.12
Further, she did not provide a sufficiently rationalized medical opinion explaining why the
performance of the established work duties required an improper gait balance which caused
appellant’s cervical and lumbar conditions. Dr. Strzoda found that, if appellant continued to
perform these duties, her spinal pain would be exacerbated. However, the Board has held that
fear of future injury is not compensable.13 Dr. Strzoda was on one side of the conflict that

10

5 U.S.C. § 8123(a). See also Raymond A. Fondots, 53 ECAB 637 (2002).

11

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

12

The Board has held that pain is a symptom, rather than a compensable medical diagnosis. C.F., Docket No. 081102 (issued October 10, 2008); Robert Broome, 55 ECAB 339, 342 (2004).
13

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

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Dr. Obianwu resolved. The additional report from her is insufficient to overcome the weight
accorded Dr. Obianwu as the impartial medical examiner or to create a new conflict.14
On appeal, counsel contended that OWCP’s decision was contrary to fact and law. The
Board finds that appellant did not submit sufficient medical evidence to establish that she
sustained an injury while in the performance of duty causally related to the established work
duties.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an injury in the
performance of duty causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 2, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

14

Jaja K Asaramo, 55 ECAB 200, 205 (2004).

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

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Docket No. 21-0205
Issued: December 17, 2020

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On November 20, 2020 appellant filed an appeal from an April 29, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0205.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180th day following the April 29, 2020 decision was October 26, 2020. As appellant
did not file an appeal with the Board until November 20, 2020, more than 180 days after the
April 29, 2020 OWCP decision, the Board finds that the appeal docketed as No. 21-0205 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

a reason to explain the failure to timely file an appeal with supporting documentation sufficient
to establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0205 is dismissed.
Issued: December 17, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

Id. at § 501.6(d).

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

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

Docket No. 07-694
Issued: June 26, 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 January 16, 2007 appellant filed a timely appeal from the September 14, 2006
decision of the Office of Workers’ Compensation Programs terminating her wage-loss and
medical benefits. 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 appellant’s
compensation for wage-loss and medical benefits effective September 14, 2006.
FACTUAL HISTORY
On September 9, 2004 appellant, then a 41-year-old letter carrier, sustained a traumatic
injury to her lower back when she bent over while seat belted in her vehicle to retrieve a piece of
mail. On September 21, 2004 she was diagnosed with lumbar strain. Appellant has not worked
since September 29, 2004. Her claim was accepted by the Office for a lumbar strain.

On October 19, 2004 appellant underwent a magnetic resonance imaging (MRI) scan,
which revealed mild to moderate disc degeneration and broad-based disc herniation at L4-5,
impingement of the L5 nerve root, and mild disc degeneration with desiccation and mild
circumferential posterior bulging at L2-3. On October 25, 2004 Dr. Jos Cové, a Board-certified
orthopedic surgeon, reviewed the MRI scan results and noted that they were “mostly longstanding changes, although the slight protrusion of L4-5 may be more recent.” On physical
examination, he found limited spinal range of motion, significant weakness in the left leg and
hyperthesia in her left foot and shin. Dr. Cové found the amount of neural impingement to be
relatively mild and recommended an epidural injection and physical therapy. He stated that
appellant would not be able to return to work in her current condition.
Appellant began physical therapy on November 15, 2004 and underwent a transforaminal
epidural injection on December 10, 2004. On December 16, 2004 she was released from
physical therapy because the treatment was unlikely to improve her condition. On December 17,
2006 Dr. Cové reported that the epidural injections had provided only short-term relief. On
December 21, 2004 he requested authorization for a L5 laminectomy and foraminotomy.
On December 28, 2004 the Office requested that Dr. Cové provide a rationalized medical
opinion addressing appellant’s employment injury to the diagnosed L5 radiculopathy and foot
drop. Dr. Cové responded on January 4, 2005, stating that appellant had preexisting bulging
discs and degenerative changes which were asymptomatic until her injury. He stated that
appellant’s leg symptoms and weakness were present from the time of the accepted employment
injury and were thus employment related. On January 28, 2005 Dr. Cové stated that the
relatively small disc herniation at L4-5 was significant enough to cause her current symptoms.
He noted that even very minor injuries, such as the bending accident described by appellant, can
lead to disc herniation and subsequent pinched nerve symptoms.
On January 25, 2005 Dr. Carlos Morávek, who is Board-certified in physical medicine
and rehabilitation, conducted an electrodiagnostic evaluation of appellant’s left lower extremity.
He diagnosed severe acute left L5 radiculopathy based on definite acute denervation and
minimal chronic reinnervation changes.
On March 1, 2005 the Office referred appellant to Dr. David Smith, an orthopedic
surgeon, to determine the necessity of the requested laminectomy. Dr. Smith diagnosed bilateral
L5 radiculopathy, secondary to L5-S1 herniated nucleus pulposus and degenerative disc disease.
He found that the radiculopathy was directly caused by the accepted employment injury and that
appellant’s degenerative disc disease was aggravated by the injury. Dr. Smith opined that the
requested laminectomy would relieve the symptoms related to appellant’s radiculopathy, but was
unlikely to resolve the low back pain associated with her degenerative disc disease. In her
current condition appellant could do sedentary work and restricted from repetitive lifting over 10
pounds, walking over one half-hour at a time, repetitive stair climbing and squatting. On
April 25, 2005 the Office authorized the spinal laminectomy, which was performed on
March 28, 2005.
Following the surgery, appellant was referred to physical therapy for rehabilitation and
work conditioning. On July 11, 2005 her therapy was interrupted by the onset of unrelated
gastrointestinal symptoms that caused persistent nausea and vomiting. On September 21, 2005

2

Dr. Cové reported that appellant’s gastrointestinal symptoms had improved, and that she was
experiencing dull pain in both legs that was centered on her knees and feet. He stated that her
back pain had not changed with surgery and that there was not a typical radicular pattern to her
pain. Appellant exhibited a fair range of motion and x-rays of her spine were similar to those
taken immediately after the surgery. Dr. Cové opined that degenerative changes played a role in
her pain and spinal instability. He recommended a new spinal MRI scan and electromyogram of
her lower extremities to determine the origin of her symptoms. On November 15, 2005 Dr. Cové
released appellant to four hours of work per day with a maximum weight limit of 25 pounds.
Appellant did not return to work.
On January 27, 2006 appellant underwent an MRI scan of her lumbar spine, which
revealed degenerative disc disease, facet degenerative joint disease, mild left L4-5 neural
foraminal stenosis, and an enlarged gallbladder. On February 3, 2006 Dr. Cové reported that
appellant’s foot drop had improved since her surgery and that her only current complaint was
back pain, which increased with walking, activity and prolonged sitting. He reviewed
appellant’s MRI scan and noted preexisting degenerative changes at L2-3 and advanced
degenerative changes at L4-5 with endplate edema. Dr. Cové opined that these findings were
“relatively normal” and contained no evidence of neural impingement. He diagnosed chronic
back pain with discogenic features and no radiculopathy. Dr. Cové noted that she had not yet
completed the work conditioning physical therapy and he recommended a discography. He
stated that surgical stabilization or fusion at L4-5 was an option for appellant.
On February 16, 2006 the Office referred appellant for a second opinion evaluation with
Dr. Joan Sullivan, a Board-certified orthopedic surgeon. In a report dated March 20, 2006,
Dr. Sullivan stated that appellant reported her pain as a dull constant ache that sometimes
radiated up to her midthoracic spine. On physical examination, Dr. Sullivan reported that
appellant could flex forward 50 degrees, extend 20 degrees, bend laterally 30 degrees on the
right and left, rotate 30 degrees on the left without pain and rotate 20 degrees on the right with
pain. She stated that the Waddell testing was “positive 3/4” with her reporting pain with right
and left en bloc rotation, shoulder compression, light palpitation of the thoracic and lumbosacral
spine, deep palpitation of the lumbar spine and palpitation of the right sacroiliac joint.
Dr. Sullivan found full motor strength in the lower extremities, but noted somewhat inconsistent
decreased sensation over the dorsum of the left foot.
Dr. Sullivan diagnosed lumbar strain with bilateral L5 radiculopathy secondary to an L5S1 herniated disc, which she found to be industrially related and degenerative disc disease, which
preexisted but was temporarily aggravated by the accepted injury. She noted that aggravation
would have ceased three months following appellant’s surgery and that the subsequent
progression of her degenerative disc disease was not due to the surgery. Dr. Sullivan opined that
residuals from the accepted September 9, 2004 injury had resolved and that any symptoms
appellant currently had were caused by her preexisting disease. She stated that appellant could
not return to her full-time duties without permanent restrictions on the amount of weight she
could lift, carry or pull. Dr. Sullivan noted that appellant had a very strong disability conviction
that would make it hard to return her to work. She did not recommend any further treatment.
On February 17, 2006 Dr. Cové completed a work capacity evaluation indicating that
appellant could work in a light-duty position eight hours per day with restrictions on sitting,

3

walking, standing, pushing, pulling and lifting. He explained that she needed to change positions
three times an hour. On April 11, 2006 Dr. Cové informed the Office that he disagreed with two
of Dr. Sullivan’s findings. He stated that appellant’s condition, which he characterized as singlelevel disc degeneration and hypermobility at L4-5, was not a temporary aggravation. Dr. Cové
also disagreed that appellant had reached maximum medical improvement and recommended a
discogram to determine the cause of appellant’s ongoing symptoms.
The Office found a conflict of medical opinion between Dr. Cové and Dr. Sullivan. On
June 6, 2006 it referred appellant to Dr. Donald Hubbard, a Board-certified osteopath, selected as
the impartial medical specialist. On July 14, 2006 Dr. Hubbard reviewed the medical record and
conducted an impartial examination. He found that appellant had a normal gait, some limitations
in thoracic range of motion and slight discomfort in the low back with en bloc rotation.
Dr. Hubbard reported that in the straight leg raise test she experienced pain in her right low back
in the supine position and was limited by tight hamstrings or sciatic tension. He stated that the
reverse straight leg raise was positive bilaterally for midline L3-4 back pain. Dr. Hubbard found
full motor strength in appellant’s lower extremities, but noted tenderness to touch at the
paraspinal muscles from L1 to the lumbosacral levels.
Dr. Hubbard stated that appellant’s current diagnoses included multi-level degenerative
disc disease and degenerative joint disease, right knee pain, and finger numbness, none of which
were related to the accepted employment injury. He stated that the record was consistent with
the historical diagnoses of lumbar strain and temporary acceleration and aggravation of
preexisting asymptomatic lumbar degenerative disease and facet degenerative joint disease.
Dr. Hubbard found that appellant had experienced acute compression of her left L5 spinal nerve
root, which caused sciatica, radiculopathy and weakness in her left lower extremity. He stated
that the compression was successfully treated with a laminectomy and partial facetectomy that
caused no permanent structural damage to the spinal column. Appellant’s current low back
condition was consistent with the natural history and progression of degenerative disc disease
and degenerative joint disease. Dr. Hubbard opined that appellant had recovered from her workrelated injury and was therefore able to perform her date-of-injury position. He stated that no
other medical treatment was needed to treat the work-related condition.
On August 3, 2006 the Office proposed termination of appellant’s medical and wage-loss
benefits based on Dr. Hubbard’s opinion that she had no remaining disability or residuals related
to her accepted employment injury. Appellant was given 30 days to submit additional evidence
or arguments in opposition to this proposal.
On August 16, 2006 appellant disputed Dr. Hubbard’s findings and had contacted
Dr. Cové to review his report. No additional medical evidence was received by the Office.
By decision dated September 14, 2006, the Office terminated appellant’s medical and
wage-loss benefits. It found that Dr. Hubbard’s opinion was entitled to the special weight of the
medical evidence because it was rationalized and thorough.

4

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
The Federal Employees’ Compensation Act provides that, if there is a disagreement
between a physician making an examination for the United States and the physician of the
employee, the Secretary must appoint a third physician to make an examination.4 Likewise, the
implementing regulation states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser or consultant, the Office must appoint a third physician to make an examination.
This is called a referee examination and the Office is required to select a physician who is
qualified in the appropriate specialty and who has had no prior connection with the case.5 It is
well established that, when a case is referred to an impartial medical specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on
proper factual and medical background, must be given special weight.6
ANALYSIS
The Office accepted appellant’s September 21, 2004 traumatic injury claim for lumbar
sprain. Appellant stopped working on September 29, 2004 and has not returned. The issue to be
determined is whether the Office has met its burden of proof that appellant had no remaining
disability or residuals when it terminated her benefits effective September 14, 2006.
The Office properly referred appellant to Dr. Hubbard, a Board-certified orthopedic
surgeon, to resolve the conflict of medical opinion between Dr. Sullivan and Dr. Cové, both
Board-certified orthopedic surgeons, as to whether her current condition was caused by her
accepted employment injury. On July 14, 2006 Dr. Hubbard reviewed all the pertinent medical
records and conducted a thorough impartial medical examination. He found that appellant had a
normal gait, but that she had some limitations in thoracic range of motion and slight low-back
pain during en bloc rotation. Dr. Hubbard reported that in the supine straight leg raise test she
experienced pain in her right low back and was limited by tight hamstrings or sciatic tension and
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).

4

5 U.S.C. §§ 8101-8193, 8123(a).

5

20 C.F.R. § 10.321.

6

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

5

that the reverse straight leg raise was positive bilaterally for midline L3-4 back pain. He found
full motor strength in appellant’s lower extremities, but noted tenderness to touch at the
paraspinal muscles from L1 to the lumbosacral levels.
Dr. Hubbard found that appellant’s current diagnoses of multi-level degenerative disc
disease and degenerative joint disease were not related to her accepted employment injury. He
stated that the record established that appellant sustained a lumbar strain and an acute
compression of her left L5 spinal nerve root, which had temporarily accelerated and aggravated
her preexisting conditions and caused sciatica, radiculopathy and weakness in her left lower
extremity. Dr. Hubbard stated that the compression was successfully treated with a laminectomy
and partial facetectomy and that the surgery caused no permanent structural damage to the spinal
column. He found that appellant’s current low back condition was consistent with the natural
history and progression of degenerative disc disease and degenerative joint disease. Dr. Hubbard
opined that appellant had recovered from her work-related injury, could work without
restrictions and needed no further treatment for any residuals. The Board finds that the opinion
of Dr. Hubbard is entitled to the special weight of the medical evidence because it is well
rationalized and based on a thorough physical examination and review of the medical history.
The Office proposed termination of appellant’s compensation based on Dr. Hubbard’s
opinion that appellant had no remaining disability or residuals related to her accepted
employment injury. The Board finds that the Office properly relied on this opinion, which
resolved the conflict of medical opinion between appellant’s treating physician and the Office’s
second opinion physician. As Dr. Hubbard’s report constitutes the special weight of the medical
evidence, the Office met its burden of proof to terminate appellant’s wage-loss and medical
benefits.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation for wage-loss and medical benefits effective September 14, 2006.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 14, 2006 is affirmed.
Issued: June 26, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF THE NAVY,
COMMANDER NAVAL INSTALLATION,
INACTIVE FACILITY, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 09-1447
Issued: February 23, 2010

Case Submitted on the Record

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

JURISDICTION
On May 20, 2009 appellant filed a timely appeal of a February 17, 2009 decision of the
Office of Workers’ Compensation Programs which affirmed a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than 10 percent permanent impairment of the left
leg for which he received a schedule award.
FACTUAL HISTORY
This is the second appeal before the Board. In a May 17, 2001 decision, the Board
reversed a February 1, 1999 decision of the Office, finding that it erred in reducing appellant’s

wage-loss compensation based on his capacity to earn wages as a telemarketer.1 The Board
found that the medical evidence was insufficient to establish that appellant had the capacity to
perform the duties of the selected position. The facts and circumstances of the case are set forth
in the Board’s prior decision and incorporated herein by reference.2
On February 28, 2006 appellant filed a claim for a schedule award.3 In an October 6,
2005 report, Dr. Nicholas Diamond, an osteopath, diagnosed post-traumatic synovitis to the left
knee, suprapatellar plica and degenerative changes of lateral surface, status post arthroscopy and
excision of plica of the left knee, chronic left knee tenosynovitis and post-traumatic
osteoarthritis. He stated that, under the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A. Guides) fifth edition,4 appellant had 30 percent impairment of
the left leg. The examination revealed well-healed portal arthroscopy scars, an effusion, medial,
infra and suprapatellar tenderness, restricted range of motion with medial joint space tenderness,
crepitus with patellofemoral compression and crepitus within the medial joint compartment.
Dr. Diamond noted manual muscle strength testing of the gastrocnemius musculature and
quadriceps was Grade 4 on the left side. He noted that appellant complained of left knee pain
and stiffness daily that waxed and waned, with episodes of swelling and instability.
Dr. Diamond found 12 percent impairment for Grade 4 motor strength deficit of the left
quadriceps,5 17 percent impairment for Grade 4 motor strength deficit of the left gastrocnemius6
and 3 percent for pain-related impairment.7
In a report dated November 7, 2007, an Office medical adviser determined that appellant
had 10 percent impairment of the left leg.8 He reviewed the October 6, 2005 report of
Dr. Diamond and questioned rating impairment based on strength deficit. The medical adviser
1

Docket No. 00-162 (issued February 1, 1999). On July 26, 1990 appellant sustained a left knee injury that was
accepted for left knee contusion and internal derangement. The Office authorized arthroscopic surgery of the left
knee with excision of a plica infection which was performed on October 3, 1990.
2

On September 10, 2002 the Office terminated compensation benefits finding that the weight of the medical
evidence established that appellant had no continuing disability or residuals of the July 26, 1990 injury. On
April 12, 2005 a hearing representative affirmed the September 10, 2002 decision. On December 5, 2006 the Office
denied modification of the prior decision.
3

There was medical evidence in the prior appeal which is relevant to the current claim before the Board. An
August 1, 1990 magnetic resonance imaging (MRI) scan of the left knee revealed a small focal area of increased
signal intensity in the medial meniscus which might represent degenerative change. A January 22, 1991 MRI scan
of the left knee showed a small knee effusion with possible horizontal tear involving the posterior horn of the lateral
meniscus. A September 19, 1991 MRI scan of the left knee revealed meniscal degenerative changes with a vertical
tear peripherally in the posterior horn of the medial meniscus which might be healed and minimal chondromalacia
within the patellofemoral joint.
4

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

5

Id. at 532, Table 17-8.

6

Id.

7

Id. at 574, Figure 18-1.

8

Id. at 546-547, Table 17-33.

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noted that under section 16.8a, decreased strength cannot be rated in the presence of painful
conditions. Therefore, Dr. Diamond’s rating of impairment for pain and strength deficit was
improper. The medical adviser recommended two percent impairment for the left knee partial
medial meniscectomy,9 five percent impairment for pain/crepitance of the patellofemoral due to
arthritis10 and three percent for pain-related impairment.11 He advised that the patellofemoral
crepitation was documented on examination and MRI scan. Under the Combined Values
Chart,12 appellant had 10 percent permanent impairment of the left leg and reached maximum
medical improvement on October 6, 2005.
On March 31, 2008 the Office granted appellant a schedule award for 10 percent
permanent impairment of the left lower extremity. The period of the award was from October 6,
2005 to April 25, 2006.
On April 3, 2008 appellant requested an oral hearing which was held on August 21, 2008.
In a decision dated February 17, 2009, the hearing representative affirmed the Office
decision dated March 31, 2008.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act13 and its
implementing regulations14 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.15
ANALYSIS
On appeal, appellant contends that he has more than 10 percent impairment of his left leg.
The Office accepted his claim for left knee contusion and internal derangement. Arthroscopic
surgery was performed on October 3, 1990. The Board finds that there is a conflict in medical
opinion between the Office medical adviser and Dr. Diamond, appellant’s treating physician.
9

Id. at 546, 17-33.

10

Id. at 544, Table 17-31.

11

Id. at 574, Figure 18-1.

12

Id. at 604.

13

5 U.S.C. § 8107.

14

20 C.F.R. § 10.404 (1999).

15

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

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On November 7, 2007 the Office medical adviser advised that appellant sustained a 10
percent impairment of the left lower extremity. He noted that appellant had two percent
impairment of the left knee due to a partial medial meniscectomy,16 five percent impairment for
pain/crepitance of the patellofemoral17 and three percent for pain-related impairment.18 The
cross-usage chart at Table 17-2 allows combining a diagnoses-based estimate with arthritis. By
contrast, Dr. Diamond in his report dated October 6, 2005 also applied the A.M.A., Guides and
found that appellant had 30 percent impairment of the left leg. He noted that in accordance with
the A.M.A. Guides appellant had 12 percent impairment for Grade 4 motor strength deficit of the
left quadriceps,19 17 percent impairment for Grade 4 motor strength deficit of the left
gastrocnemius20 and 3 percent for pain-related impairment.21 Dr. Diamond found that the
July 26, 1990 injury was the cause of appellant’s impairment based on loss of strength. He
supported an increased impairment rating of the left lower extremity while the Office medical
adviser opined that appellant sustained no more than a 10 percent permanent impairment of the
left lower extremity.22
Section 8123(a) of the Act 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.”23 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.24
The case will be remanded to the Office for referral of appellant to an impartial medical
specialist to determine appellant’s left lower extremity impairment under the standards of the
A.M.A., Guides. After such further development as the Office deems necessary, an appropriate
decision should be issued on appellant’s claim.

16

Id. at 546, Table 17-33.

17

Id. at 544, Table 17-31.

18

Id. at 574, Figure 18-1.

19

Id. at 532, Table 17-8.

20

Id.

21

Id. at 574, Figure 18-1.

22

The Board notes that both physicians erroneously attributed pain-related impairment under Chapter 18 of the
A.M.A., Guides. See id. The Board has held that physicians should not use Chapter 18 to rate pain-related
impairments for any condition that can be adequately rated on the basis of the body and organ impairment systems
given in other chapters of the A.M.A., Guides. See Linda Beale, 57 ECAB 429 (2006); Frantz Ghassan, 57 ECAB
349 (2006).
23

5 U.S.C. § 8123(a).

24

William C. Bush, 40 ECAB 1064, (1989).

4

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 17, 2009 and March 31, 2008
decisions of the Office of Workers’ Compensation Programs are set aside and the case is
remanded for further action consistent with this decision.
Issued: February 23, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 12-108
Issued: May 23, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 21, 2011 appellant filed a timely appeal from a September 26, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The last merit decision of
record was OWCP’s April 22, 2010 decision. Because more than 180 days elapsed from the last
merit decision to the filing of this appeal on October 21, 2011, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the Board lacks
jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely.
1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

FACTUAL HISTORY
On August 6, 2008 appellant, then a 56-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on July 30, 2008 she sustained a left jaw and lower back injury when
she was struck on the left side of her face by a patient when attempting to place him in mitten
restraints. OWCP accepted the claim for aggravation of cervical sprain and facial contusions.
Appellant submitted a claim for compensation Form CA-7 documenting leave without
pay for the period December 14 to 18, 2009. She also submitted a claim for compensation Form
CA-7 documenting leave without pay for the period December 19, 2009 to January 3, 2010. In
support of her claim, appellant submitted medical reports dated August 5, 2008 to March 8, 2010
addressing her treatment.
In a February 25, 2010 medical report, Dr. Dewey H. Jones, a Board-certified orthopedic
surgeon, reported that appellant continued to have pain from a back injury that occurred in 2008
when she had to tackle a patient. He stated that her injury probably aggravated the degenerative
processes which may not have been symptomatic because she did not have any significant
problems with her back before her 2008 injury.
By decision dated April 22, 2010, OWCP denied appellant’s claim for compensation for
the period December 19, 2009 to January 3, 2010.3 It noted that Dr. Jones’ February 25, 2010
medical report indicated that appellant may have sustained an aggravation of the lumbar
degenerative disc disease but he did not provide medical rationale to support disability for the
period December 19, 2009 to January 3, 2010.
Appellant submitted various medical reports and physical therapy notes dated
December 22, 2009 to September 20, 2011. On July 14, 2011 she refiled a Form CA-7 for leave
without pay for the period December 19, 2009 to January 3, 2010. Appellant also filed a claim
for a schedule award.
By letter dated July 18, 2011, OWCP informed appellant that it had received her July 14,
2011 Form CA-7 but had already issued a decision on April 22, 2010 denying her claim. It noted
that appeal rights were provided with that decision and attached a copy of those appeal rights.
On August 8, 2011 appellant requested an oral hearing before the Branch of Hearings and
Review of the April 22, 2010 OWCP decision. She stated that she was placed on early disability
retirement as of August 25, 2010 due to aggravation of her degenerative disc disease from her
July 30, 2008 traumatic injury and submitted various treatment notes in support of her claim.
By decision dated September 26, 2011, the Branch of Hearings and Review denied
appellant’s request for an oral hearing finding that her request was not made within 30 days of
the April 22, 2010 OWCP decision. The Branch of Hearings and Review further determined that
the issue in the case could equally well be addressed by requesting reconsideration from OWCP

3

On January 12, 2012 OWCP denied appellant’s claim for compensation for the period December 14
to 18, 2009.

2

and submitting evidence not previously considered which establishes that she is entitled to the
claimed wage-loss compensation benefits.4
LEGAL PRECEDENT
A claimant for compensation not satisfied with a decision by OWCP is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.5 According to 20 C.F.R. § 10.615, a claimant
shall be afforded a choice of an oral hearing or a review of the written record.6 The regulations
provide that a request for a hearing or review of the written record must be made within 30 days
as determined by the postmark or other carrier’s date marking, of the date of the decision.7 A
claimant is not entitled to a hearing or a review of the written record as a matter of right if the
request is not made within 30 days of the date of the OWCP decision.8 OWCP has discretion,
however, to grant or deny a request that is made after this 30-day period.9 In such a case, it will
determine whether to grant a discretionary hearing and, if not, will so advise the claimant with
reasons.10
ANALYSIS
Appellant requested an oral hearing on August 8, 2011. Her request was made more than
30 days after the date of issuance of OWCP’s April 22, 2010 decision. Therefore, OWCP
properly found in its September 26, 2011 decision that appellant was not entitled to an oral
hearing as a matter of right because her request for an oral hearing was not made within 30 days
of its April 22, 2010 decision.11
Appellant submitted medical documents after OWCP’s April 22, 2010 merit decision.
However, she did not submit a written request for an oral hearing by May 22, 2010, 30-calendar
days from OWCP’s April 22, 2010 decision. Because appellant’s request was postmarked
April 8, 2011, it is untimely.
4

The Board notes that appellant submitted additional evidence after OWCP rendered its September 26, 2011
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
5

5 U.S.C. § 8124(b)(1).

6

20 C.F.R. § 10.615.

7

Id. at § 10.616(a).

8

See James Smith, 53 ECAB 188 (2001).

9

Herbert C. Holley, 33 ECAB 140 (1981).

10

Id.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602 (May 1991).

3

Although appellant’s request for oral hearing was untimely, OWCP has the discretionary
authority with respect to granting the request and it must exercise such discretion.12 In its
September 26, 2011 decision, it properly exercised its discretion by stating that it had considered
the matter and had denied appellant’s request for an oral hearing because the issue regarding
wage-loss compensation could be addressed through a reconsideration application. The Board
has held that the only limitation on OWCP’s authority is reasonableness and an abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deduction from
established facts.13 In this case, the evidence of record does not indicate that OWCP abused its
discretion in its denial of appellant’s request for an oral hearing.
On appeal, appellant contends that she has provided extensive documentation and proof
to establish her claim for compensation for the period December 19, 2009 to January 3, 2010.
As noted, the Board does not have jurisdiction over the merits of this case and therefore will not
review evidence submitted by appellant.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the January 12, 2012 merit decision, pursuant to
5 U.S.C. § 8128(a)
CONCLUSION
The Board finds that OWCP properly denied appellant’s August 8, 2011 request for an
oral hearing.

12

See Cora L. Falcon, 43 ECAB 915 (1992).

13

Daniel J. Perea, 42 ECAB 214, 221 (1990).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 26, 2011 is affirmed.
Issued: May 23, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix City, AL, Employer
__________________________________________

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

Docket No. 18-0459
Issued: August 2, 2018

Case Submitted on the Record

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

JURISDICTION
On January 2, 2018 appellant filed a timely appeal from a July 6, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
the last merit decision dated February 5, 2016, to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction to review the merits of the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP’s July 6, 2017 decision. The Board’s
jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision. Therefore, the
Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
P.W., Docket No. 12-1262 (issued December 5, 2012).

FACTUAL HISTORY
On December 16, 2015 appellant, then a 39-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that her federal employment duties caused left arm and
shoulder pain, as well as muscle spasms. In an attached statement she indicated that the pain began
approximately two weeks prior and had worsened with time, noting that she saw a physician on
December 7, 2015 and was diagnosed with muscle spasms.
In a development letter dated December 24, 2015, OWCP informed appellant of the type
of evidence needed to submit to establish her claim. This was to include medical evidence from a
qualified physician containing a medical explanation as to how work activities caused, contributed
to, or aggravated a medical condition. OWCP afforded appellant 30 days to respond. No
additional evidence was received.
By decision dated February 5, 2016, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that an injury and/or events occurred as alleged. It
noted that she did not respond to its December 24, 2015 development letter.
On May 8, 2017 appellant requested reconsideration. She submitted a statement of
certification that had been forwarded by OWCP with the December 24, 2015 development letter,
which she signed on April 20, 2017. In statements dated May 1 and June 9, 2017, appellant
indicated that she had bilateral shoulder pain that began in November 2015 and increased as time
passed, especially during the heavy workload during the holiday season. She related that the pain
increased again in November 2016, and that she had constant daily pain at present, and decreased
shoulder range of motion. Appellant described medical care and physical therapy, and noted that
the severe pain made her miss work.
Medical evidence submitted included a March 23, 2017 report in which Dr. William Allen
Whitten, Board-certified in family medicine, noted a complaint of bilateral shoulder pain, right
worse than left. Right shoulder examination demonstrated limited range of motion and tenderness
to palpation. Dr. Whitten noted that a right shoulder x-ray was normal and diagnosed bursitis of
right shoulder, acute pain of right shoulder, and acromioclavicular joint separation, right.
On April 3, 2017 Dr. Robert H. Bush, a Board-certified family medicine physician and
associate of Dr. Whitten, noted that appellant was now complaining of neck, left arm, and left
shoulder pain that began three to four days prior. Physical examination findings included
tenderness over the left scapular region and some restriction to left shoulder range of motion.
Dr. Bush diagnosed left anterior shoulder pain.
In a form report dated May 31, 2017, Dr. Kevin D. Lokkesmoe, a family medicine
physician, noted a date of injury of May 24, 2017. Under “Description” he wrote, “work-related
left shoulder trapezius strain with muscle spasm.” Dr. Lokkesmoe referred appellant to an
employing establishment physician.

2

Appellant also submitted laboratory reports, physical therapy notes, patient visit
information, and a disability slip signed by a registered nurse indicating that appellant was treated
on March 31, 2017 and could return to work on April 2, 2017.3
In a July 6, 2017 decision, OWCP denied appellant’s request for reconsideration, finding
that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, an
application for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.4 When determining the one-year period for requesting
reconsideration, the last day of the period should be included unless it is a Saturday, Sunday, or a
federal holiday.5 Timeliness is determined by the document receipt date, as indicated by the
“received date” in OWCP’s Integrated Federal Employees’ Compensation System.6 The Board
has found that the imposition of the one-year limitation does not constitute an abuse of
discretionary authority granted OWCP under section 8128 of FECA.7
OWCP may not deny an application for review solely because the application was untimely
filed. When an application for review is untimely filed, it must nevertheless undertake a limited
review to determine whether the application demonstrates clear evidence of error.8 OWCP’s
regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
application for review demonstrates clear evidence of error on the part of OWCP.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit, and
must manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to prima facie shift the
3

The signature of the nurse is illegible.

4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see
also M.A., Docket No. 13-1783 (issued January 2, 2014).
6

Federal (FECA) Procedure Manual, id. at Chapter 2.1602.4(b) (February 2016).

7

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

8

See 20 C.F.R. § 607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

9

Id. at § 607(b); supra note 5 at Chapter 2.1602.5(a) (February 2016).

3

weight of the evidence in favor of the claimant and raise a substantial question as to the correctness
of OWCP’s decision.10
OWCP procedures note that the term “clear evidence of error” is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
an error. Evidence such as a detailed, well-rationalized medical report which, if submitted before
the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.11 The Board makes an independent determination of
whether a claimant has demonstrated clear evidence of error on the part of OWCP.12
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
reconsideration request. Its procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original decision.13 As appellant’s
reconsideration request was received on May 8, 2017, more than one year after the February 6,
2016 OWCP merit decision denying her claim, her request for reconsideration was untimely
filed.14 Consequently, she must demonstrate clear evidence of error by OWCP in its February 5,
2016 decision.15
The Board further finds that appellant failed to demonstrate clear evidence of error. The
underlying issue in this case is whether she established a shoulder condition causally related to
factors of her federal employment.
With her reconsideration request appellant merely related that she had bilateral shoulder
pain that began in November 2015 and described medical care. She submitted evidence including
laboratory reports, physical therapy notes, patient visit information, and a disability slip signed by
a registered nurse. However, these reports do not constitute medical evidence under section
8101(2) of FECA.16

10

Robert G. Burns, 57 ECAB 657 (2006).

11

Supra note 5 at Chapter 2.1602.5(a) (February 2016); J.S., Docket No. 16-1240 (issued December 1, 2016).

12

See D.S., Docket No. 17-0407 (issued May 24, 2017).

13

20 C.F.R. § 10.607(a).

14

Id.

15

M.W., Docket No. 17-0892 (issued May 21, 2018).

16

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); Sean O’Connell, 56 ECAB 195 (2004)
(reports by nurse practitioners and physician assistants are not considered medical evidence as these persons are not
considered physicians under FECA). 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their
practice as defined by State law).

4

Appellant also submitted reports from Dr. Whitten and Dr. Bush. None of these reports
discussed a cause of any diagnosed condition and are thus insufficient to raise a substantial
question as to the correctness of OWCP’s decision.17 While a report from Dr. Lokkesmoe noted
a description of work-related left shoulder strain and muscle spasm, this too is insufficient to
demonstrate clear evidence of error. He did not describe appellant’s work duties and did not
explain how or why any diagnosed condition was caused by work.
The term “clear evidence of error” is intended to represent a difficult standard, and the
argument provided here is not the type of positive, precise, and explicit evidence which manifested
on its face that OWCP committed an error.18 Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in
medical opinion requiring further development, is not clear evidence of error.19
As the evidence and argument submitted are of insufficient probative value to prima facie
shift the weight in favor of appellant and raise a substantial question as to the correctness of the
February 6, 2016 OWCP decision, appellant has not demonstrated that OWCP committed error.20
OWCP thus properly denied her untimely request for merit reconsideration on that basis.21
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

17

See T.W., Docket No. 13-0594 (issued August 5, 2013).

18

Supra note 10.

19

E.D., Docket No. 16-0708 (issued January 17, 2017).

20

P.S., Docket No. 17-1707 (issued February 9, 2018).

21

20 C.F.R. § 10.607(b); see D.G., 59 ECAB 455 (2008).

5

ORDER
IT IS HEREBY ORDERED THAT the July 6, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 2, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
U.S. POSTAL SERVICE, BROOMFIELD POST
OFFICE, Broomfield, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0213
Issued: January 11, 2022

Case Submitted on the Record

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

JURISDICTION
On December 7, 2020 appellant, through counsel, filed a timely appeal from an October 1,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

The Board notes that, following the October 1, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

Federal Employees’ Compensation Act3 (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 abused its discretion by denying appellant’s request for
authorization of total right knee replacement surgery.
FACTUAL HISTORY
This case has previously been before the Board on a different issue. 4 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On December 6, 2012 appellant, then a 41-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on December 4, 2012 she injured both knees, her right
hand and wrist, her left arm and shoulder, and her neck when she fell down concrete steps while
in the performance of duty. She stopped work on December 6, 2012. On December 26, 2012
OWCP accepted the claim for sprain of the right knee, sprain of the bilateral shoulders, and
bilateral wrist sprain. It authorized wage-loss compensation beginning January 22, 2013. On
April 1, 2013 OWCP expanded the acceptance of the claim to include right anterior cruciate
ligament tear and tear of the posterior horn of the right medial meniscus. On June 13, 2013 it
further expanded the acceptance of the claim to include bilateral trigger finger, bilateral radial
styloid tenosynovitis, and bucket tear of the left medial meniscus. 5
On May 30, 2018 appellant requested that OWCP authorize a total knee replacement. On
September 14, 2018 she underwent a right knee magnetic resonance imaging (MRI) scan, which
demonstrated a posterior horn medial meniscus complex tear including a radial defect of the root
ligament attachment and peripheral meniscus extrusion identified as a chronic tear with postsurgical change superimposed on acute tearing, anterior cruciate ligament ganglion cystic changes
and scarring, scarring within the infrapatellar fat body, retropatellar grade 3 chondromalacia, and
mild joint effusion.
In an October 10, 2018 report, appellant’s attending physician, Dr. Daniel Hamman, a
Board-certified orthopedic surgeon, examined her due to sharp, aching, throbbing, right knee pain
with numbness and tingling down the lateral calf and into the lateral toes. On physical examination
he found well-healed incisions from her prior arthroscopy, full strength, mild pseudo -laxity to
valgus testing, and pain along the medial joint line and shift with mild patellofemoral crepitus.
Dr. Hamman reviewed appellant’s October 10, 2018 x-rays, which demonstrated joint space
narrowing of the medial compartment with osteophytosis, mild -to-moderate patellofemoral

3

5 U.S.C. § 8101 et seq.

4

Docket No. 19-1495 (issued March 3, 2020).

5

On April 18, 2015 the employing establishment separated appellant from employment. On July 2, 2015 appellant
received a third-party settlement.

2

arthritis, and osteophytosis posteriorly, grade 2-3. He diagnosed primary osteoarthritis of the right
knee.
On February 21, 2019 Dr. Hamman requested authorization for a right total knee
arthroplasty. In a February 25, 2019 report, he noted appellant’s history of injury and history of
right knee medical treatment. Dr. Hamman determined that appellant’s right knee arthritis had
progressed to the point that, in his opinion, another arthroscopy would not be very effective in
relieving her pain. He noted that appellant was considering right total knee arthroplasty.
In a February 27, 2019 development letter, OWCP requested additional medical evidence
and testing supporting appellant’s requested right total knee arthroplasty. It further noted that her
claim was referred to a district medical adviser (DMA) for review. OWCP afforded appellant 30
days for response.
In a March 4, 2019 report, Dr. Nathan Hammel, a Board-certified orthopedic surgeon
serving as a DMA, reviewed appellant’s medical record and noted that right knee arthritis was not
an accepted condition. He opined that the requested surgery was not medically necessary. The
DMA found mild-to-moderate arthritis with preservation of joint space. He further noted that, as
appellant was under 50 and on chronic opioids, pain relief was unpredictable such that the request
was not medically necessary.
On March 8, 2019 OWCP advised appellant of the disagreement between Dr. Hamman and
the DMA regarding the necessity of her requested right total knee replacement. It afforded her 30
days to submit additional supporting medical evidence. OWCP noted that, if appellant did not
provide additional medical evidence within the allotted period, a decision would be made based
on the evidence of record.
Appellant resubmitted Dr. Hamman’s February 25, 2019 report. She also provided a
March 11, 2019 report from Dr. Gregory Reichhardt, a Board-certified physiatrist, diagnosing
right knee pain following an arthroscopy and reviewing her January 29, 2018 right knee MRI scan.
On May 7, 2019 appellant underwent right knee total arthroplasty. Dr. Hamman reported
grade 4 changes of the medial femoral condyle and grade 3 to 4 changes of the patella.
By decision dated November 19, 2019, OWCP denied authorization for the right total knee
arthroplasty. It found that appellant had not submitted evidence establishing that this procedure
was medically necessary. On November 27, 2019 appellant, through counsel, requested a
telephone hearing before a representative of OWCP’s Branch of Hearings and Review.
On November 25, 2019 OWCP referred appellant, a statement of accepted facts (SOAF),
and a series of questions to Dr. John Douthit, a Board-certified orthopedic surgeon, for a second
opinion evaluation to assess her work-related condition.
In a December 16, 2019 report, Dr. Douthit described appellant’s history of injury and
noted that she had undergone a left total knee replacement. He reviewed her medical records and
performed a physical examination. Dr. Douthit found good range of motion in both knees, good
stability of the total knee replacement with some slight anterior posterior laxity, and no joint
effusions. He also noted that appellant had a right total knee replacement, but found that a total
3

knee replacement as she has had on her left knee would not be indicated. Dr. Douthit opined that
all of appellant’s conditions appear to be related to the fall she sustained at work in 2012. He
further noted that her conditions and injuries may have been aggravated by excessive weight and
with preexisting degenerative disease of the knees. Dr. Douthit noted that appellant felt that all
her conditions were precipitated and accelerated by her work-related fall. He listed the residuals
of her accepted employment injury and reported that appellant had chronic bilateral knee problems
on the left, a total knee replacement, and on the right, aggravated osteoarthritis. Dr. Douthit noted
that appellant had excessive weight with a gastroplasty and had lost 100 pounds of weight, which
would have had a bearing on the deterioration of her knees. He opined that appellant had no
indications for further surgery on her knees.
On February 4, 2020 an OWCP hearing representative conducted a preliminary review and
found that the case was not in posture for decision as Dr. Douthit indicated that appellant
experienced a work-related aggravation of her preexisting right knee osteoarthritis. The hearing
representative set aside OWCP’s November 19, 2019 decision and remanded the case for
clarification through a supplemental report from Dr. Douthit regarding appellant’s accepted right
knee conditions and whether the right total knee replacement was medically necessary.
On February 12, 2020 OWCP requested a supplemental report from Dr. Douthit addressing
whether appellant’s May 7, 2019 right knee surgery was medically necessary due to accepted
employment injuries.
In a February 12, 2020 supplemental report, Dr. Douthit noted that appellant reported
falling on both knees, and that both knees had deteriorated over time and required surgery. He
further noted that it was accepted that the fall “contributed” to the arthritis in her knees although
it was more probable that she had arthritis from her excessive weight. He reviewed the May 7,
2019 operative report and found that Grade 4 loss of articular cartilage of the medial femoral
condyle and grade 3-4 loss of the patella would justify a total knee replacement of the right knee.
By decision dated March 17, 2020, OWCP again denied authorization of the total right
knee arthroplasty, finding that the evidence of record did not support that it was medically
necessary to address the effects of the employment-related injury.
On March 24, 2020 appellant, through counsel, requested a telephone hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on July 17, 2020.
By decision dated October 1, 2020, OWCP’s hearing representative affirmed the
March 17, 2020 OWCP decision.
LEGAL PRECEDENT
Section 8103(a) of FECA 6 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed by or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce

6

Supra note 3.

4

the degree or the period of disability, or aid in lessening the amount of the monthly compensation. 7
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
determining whether a particular type of treatment is likely to cure or give relief. 8 The only
limitation on OWCP’s authority is that of reasonableness. 9
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditures are for treatment of the effects of an
employment-related injury or condition. 10 Proof of causal relationship in a case such as this must
include supporting rationalized medical evidence. 11 In order for a surgical procedure to be
authorized, appellant must establish that the procedure is for a condition causally related to the
employment injury and that the procedure was medically warranted. 12 Both of these criteria must
be met in order for OWCP to authorize payment. 13
Abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise
of judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.14
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant underwent total right knee replacement on May 7, 2019.
OWCP referred appellant for a second opinion examination with Dr. Douthit. In his
December 16, 2019 report, Dr. Douthit opined that all of appellant’s conditions appear to be
related to the fall she sustained at work in 2012. He further noted that her conditions and injuries
may have been aggravated by excessive weight and with preexisting degenerative disease of the
7

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

8

J.K., Docket No. 20-1313 (issued May 17, 2012); R.C., Docket No. 18-0612 (issued October 19, 2018); W.T.,
Docket No. 08-0812 (issued April 3, 2009).
9

D.C., Docket No. 18-0080 (issued May 22, 2018); Mira R. Adams, 48 ECAB 504 (1997).

10

R.M., Docket No. 19-1319 (issued December 10, 2019); J.T., Docket No. 18-0503 (issued October 16, 2018);
Debra S. King, 44 ECAB 203, 209 (1992).
11

K.W., Docket No. 18-1523 (issued May 22, 2019); C.L., Docket No. 17-0230 (issued April 24, 2018); M.B., 58
ECAB 588 (2007); Bertha L. Arnold, 38 ECAB 282 (1986).
12

T.A., Docket No 19-1030 (issued November 22, 2019); Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E.
Benton, 15 ECAB 48, 49 (1963).
13

J.L., Docket No. 18-0990 (issued March 5, 2019); R.C., 58 ECAB 238 (2006); Cathy B. Millin, 51 ECAB 331,
333 (2000).
14

D.S., Docket No. 18-0353 (issued February 18, 2020); E.L., Docket No. 17-1445 (issued December 18, 2018);
L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); Daniel J. Perea, 42 ECAB 214 (1990).

5

knees. Dr. Douthit noted that appellant had excessive weight with a gastroplasty and had lost 100
pounds of weight, which would have had a bearing on the deterioration of her knees.
In his February 12, 2020 supplemental report, Dr. Douthit noted that appellant reported
falling on both knees, and that both knees deteriorated over time requiring surgery. He further
noted that it was accepted that the fall “contributed” to the arthritis in her knees although it was
more probable that she had arthritis from her excessive weight. Dr. Douthit reviewed the May 7,
2019 operative report and found that Grade 4 loss of articular cartilage of the medial femoral
condyle and Grade 3-4 loss of the patella would justify a total knee replacement of the right knee.
However, while Dr. Douthit supported medical necessity of the total right knee arthroplasty, he
did not explain whether appellant’s accepted employment injury caused or contributed to the need
for that surgical procedure.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done. 16 Once OWCP undertakes to develop the medical evidence fu rther, it has the
responsibility to do so in a manner that will resolve the relevant issues in the case. 17
arbiter.15

As Dr. Douthit has not explained whether the requested surgery was causally related to the
accepted employment injury, further development is required. The case must, therefore, be
remanded to OWCP for clarification. On remand OWCP shall request clarification from
Dr. Douthit on whether appellant’s total right knee replacement was causally related to the
accepted injury. If Dr. Douthit is unavailable or unwilling to provide another supplemental
opinion, OWCP shall refer appellant, a SOAF, and list of questions to a new second opinion
physician in the appropriate field of medicine for a rationalized medical opinion on whether
appellant’s total right knee replacement surgery was medically necessary due to appellant’s
accepted December 4, 2012 employment injury. Following this and other such further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

15

N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 2019); B.A.,
Docket No. 17-1360 (issued January 10, 2018).
16

M.T., id., S.S., Docket No. 18-0397 (issued January 15, 2019); see also Donald R. Gervasi, 57 ECAB 281, 286
(2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).
17

M.T., id.; T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the October 1, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 11, 2022
Washington, DC

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

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

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

7