United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF DISABILITY ADJUDICATION &
REVIEW, Mount Pleasant, MI, Employer
__________________________________________

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Appearances:
Lonnie L. Boylan, for the appellant
Office of Solicitor, for the Director

Docket No. 15-0728
Issued: June 14, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 3, 2015 appellant, through her representative, filed a timely appeal from a
December 23, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective October 1, 2013; and (2) whether
appellant met her burden of proof to establish continuing employment-related residuals or
disability after the termination of her compensation benefits.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant’s representative contends that OWCP failed to provide the impartial
medical examiner with a definition of temporary or permanent aggravation or contribution and a
proper statement of accepted facts (SOAF).
FACTUAL HISTORY
On January 7, 2012 appellant, then a 53-year-old legal assistant, filed an occupational
disease claim (Form CA-2) alleging that her advanced tricompartmental osteoarthritis was
employment related. She related that her left knee had been replaced on January 15, 20112 and
she returned to work in March 2011 with accommodations that included a seat close to a printer,
scanner, and bathroom.3 On September 15, 2011 appellant claimed that she was moved to a new
seat which aggravated her deteriorating condition. She stopped work on January 6, 2012.
On January 24, 2012 appellant underwent arthroscopic surgery performed by
Dr. Michael D. Austin, an orthopedic surgeon, to repair a tear of the medical meniscus of her
right knee.4
On April 23, 2012 OWCP accepted appellant’s claim for an aggravation of localized
unspecified osteoarthritis of the lower right knee and aggravation of a tear of the medial
mensicus of the right knee. It authorized Dr. Austin’s January 24, 2012 right knee surgery.
On June 21, 2012 Dr. Austin released appellant to return to work with restrictions, three
days a week for two months. Appellant worked with these restrictions until August 6, 2012. She
filed several claims for compensation (Form CA-7) for leave without pay for the period
commencing August 12, 2012.5
In support of her claims, appellant submitted a July 10, 2012 report by Dr. Cochran who
noted appellant’s history of injury, provided examination findings, and diagnosed right knee pain
secondary to internal derangment with underlying end-stage osteoarthritis that was likely
irritated by her work duties. He recommended right knee total replacement surgery. In work
status reports dated July 10 and 17, 2012, Dr. Cochran reiterated his diagnosis of right knee pain,
diagnosed right knee swelling, and indicated that appellant was scheduled to undergo right knee
total replacement on August 27, 2012. He advised that she was unable to work from August 6 to
November 27, 2012. On September 20, 2012 Dr. Cochran diagnosed localized osteoarthrosis of
the lower leg and ordered physical therapy and medical equipment following appellant’s
postsurgical total right knee arthroplasty.
2

The record indicates that appellant’s nonemployment-related left knee total replacement surgery was performed
on January 13, 2011 by Dr. Jason M. Cochran, an attending orthopedic surgeon.
3

Appellant began work at the employing establishment on August 23, 2010.

4

Previously, on November 30, 2010, Dr. Austin performed nonemployment-related right knee arthroscopic
surgery to repair a partial tear of the posterior horn of the medial meniscus and degenerative arthritis of appellant’s
right knee.
5

OWCP paid appellant wage-loss compensation on the supplemental payment rolls for various periods between
October 20, 2011 and August 11, 2012.

2

In a September 5, 2012 letter, OWCP advised appellant of the deficiencies of her
recurrence claim. It requested additional evidence in support of the claim and afforded her 30
days to respond to its inquiries.
By letter dated September 6, 2012, OWCP notified appellant of an October 8, 2012
appointment for a second opinion with Dr. Emmanuel N. Obianwu, a Board-certified orthopedic
surgeon. In an October 8, 2012 report, Dr. Obianwu reviewed the SOAF and medical record.
He provided findings on physical and x-ray examination and diagnosed tricompartmental
arthritis of the right knee and status post total left knee arthroplasty. Dr. Obianwu found that
appellant had sustained a temporary aggravation of her right knee osteoarthritis and medial
meniscus tear in 2011, “which no longer exists.” He found that her medial meniscus tear was not
related to a traumatic problem, but rather it was degenerative. Dr. Obianwu opined that
appellant’s employment did not cause any significant aggravation of her preexisting
osteoarthritis of the right knee. He related that her January 24, 2012 arthroscopic right knee
surgery may have aggravated her underlying condition. Dr. Obianwu did find a material
worsening of appellant’s aggravation of right knee osteoarthritis on August 6, 2012 based on his
review of the medical records, especially since she was working just three days a week. He
concluded that she could work eight hours a day with restrictions in a postion that did not require
physically demanding activities. Dr. Obianwu further concluded that a right knee total
replacement was required.
By letter dated October 24, 2012, OWCP requested that Dr. Obianwu clarify his
October 8, 2012 medical opinion as to when the temporary aggravation of appellant’s right knee
osteoarthritis had ceased, whether she continued to have an aggravation of her right medial
meniscus tear condition, and whether her work restrictions were solely due to her preexisting
work-related knee conditions.
In a November 13, 2012 supplemental report, Dr. Obianwu clarified that the
employment-related temporary aggravation of appellant’s preexisting right knee osteoarthritis
resolved six weeks after her January 24, 2012 knee surgery. He related that the right knee
medial meniscus tear had resolved with the performance of the medial mensicus repair surgery.
Dr. Obianwu concluded that appellant’s work restrictions were solely due to her preexisting
nonwork-related right knee osteoarthritis.
By letter dated November 15, 2012, OWCP asked appellant’s treating physician,
Dr. Cochran, to review Dr. Obianwu’s reports and provide an opinion as to whether appellant’s
accepted employment-related right knee conditions had resolved. In an undated report,
Dr. Cochran opined that appellant’s continuing pain was an acute and chronic irritation of her
preexisting condition. He related that he did not know whether appellant’s right knee condition
would be deemed work related or an aggravation of a preexisting condition. Dr. Cochran
advised that he supported appellant pursuing the matter as a work-related injury.
On November 30, 2012 OWCP found a conflict in medical opinion between Dr. Obianwu
and Dr. Cochran regarding whether appellant had any residuals of her work-related conditions,

3

her capacity for work, and the need to undergo right knee total replacement surgery.6 By letter
dated January 30, 2013, it referred her, together with a SOAF, the medical record, and a list of
questions, to Dr. James B. Wessinger, a Board-certified orthopedic surgeon, for an impartial
medical examination.
In a February 19, 2013 report, Dr. Wessinger noted appellant’s history of injury and
reviewed the medical record. He related that appellant had a desk job which required her to be
sedentary 75 percent of the time. Appellant was up and about getting files and using the copy
machine 25 percent of the time. She occasionally carried files weighing three to five pounds.
Appellant complained about postoperative right knee pain.
On physical examination of the right knee, Dr. Wessinger noted that she walked without
a cane or limp. He found a mild valgus deformity in the standing position. Range of motion was
-10 degrees with further flexion to 95 degrees versus 5 degrees of hyperextension on the left with
further flexion to 105 degrees. The right knee surgical scar had healed nicely. The knee was
stable and there was no tenderness. The right quadricep was one-half inch larger with minor
swelling present. There was no effusion. Dr. Wessinger provided an impression of status post
right knee arthroscopy two times with ultimate total knee replacement due to severe arthritis. He
did not find there to be a relationship between appellant’s severe knee arthritis and her federal
employment. Dr. Wessinger reviewed the right knee surgical reports of Dr. Austin and
Dr. Cochran and found no evidence of any significant acute pathology in the right knee. He
noted that torn menisci were commonly degenerative in nature in the presence of arthritis.
Dr. Wessinger opined that appellant’s job did not cause, significantly aggravate, or accelerate her
underlying right knee arthritis which required a total knee replacement. He concluded that she
had not reached maximum medical improvement (MMI) regarding her total knee replacement,
but she could return to her job in early April 2013 with possible restrictions.
On March 8, 2013 OWCP requested that Dr. Wessinger respond to the questions it sent
with appellant’s referral. In a March 15, 2013 addendum report, Dr. Wessinger referenced the
examination findings in his prior report dated February 19, 2013 and reiterated his diagnoses.
He advised that diagnostic testing was unnecessary. Dr. Wessinger noted that a September 30,
2010 x-ray, performed within one month of appellant’s hire, revealed severe patellofemoral
arthritis and advised that this finding did not support a work-related condition. He noted that
Dr. Austin’s November 30, 2010 arthroscopic surgery report found bare bone in the
patellofemoral joint. Dr. Wessinger related that it was virtually impossible for a joint to
degenerate to this extent in a three-month period. Based on his physical examination and review
of the medical record and SOAF, he reiterated his opinion and rationale regarding causal
relationship, appellant’s work capacity, and need for the January 24, 2012 right knee surgery.
Dr. Wessinger found that Dr. Austin’s surgical finding of bare bone degenerative changes did not
materially alter appellant’s knee pathology in a manner that would have required total right knee
replacement. He agreed with Dr. Obianwu that her employment did not cause the need for a
total knee replacement and that any restrictions required in the future were not work related.

6

On January 2, 2013 appellant underwent a right knee total arthroplasty performed by Dr. Cochran. OWCP did
not authorize her surgery. On January 14, 2013 Dr. Cochran released appellant to return to regular-duty work.

4

Dr. Wessinger questioned appellant’s resultant disability. He concluded that any future
treatment would be based on her nonoccupational degenerative condition.
By decision dated April 12, 2013, OWCP denied appellant’s claim for a recurrence of
disablity commencing August 6, 2012. It found that the weight of the medical evidence rested
with the impartial medical opinion of Dr. Wessinger.
On April 22, 2013 appellant, through counsel, requested a telephone hearing with an
OWCP hearing representative.
In a July 10, 2013 notice, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Wessinger’s impartial medical opinion. It
afforded her 30 days to submit additional evidence or argument regarding the proposed
termination.
In an August 5, 2013 letter, appellant disagreed with the proposed action, contending that
the reports of Dr. Obianwu and Dr. Wessinger were contradicted by the facts of her case. She
contended that the physicians’ opinions were based on diagnostic test results related to the left
knee rather than the right knee. Appellant also contended that neither physician had reviewed
the condition of her right knee prior to her injury or need for right knee replacement.
Appellant submitted diagnostic test results dated September 30 and October 5, 2010 from
Dr. Austin, Dr. Roger W. Hynes, a radiologist, and Dr. Mohammad Naveed, a Board-certified
radiologist, which addressed her left and right knee conditions. Dr. Austin’s October 11, 2010
and January 10, 2011 reports and progress notes also addressed appellant’s right knee conditions
and medical treatment, including the need for arthroscopic surgery.7
In a May 15, 2013 report, Dr. Vicki E. Chessin, a Board-certified family practitioner,
released appellant to return to work the next day, four hours a day until her next evaluation in
two weeks. On May 28, 2013 she noted that appellant was seeking social security disability due
to impairment from her degenerative arthritis which affected knees, and shoulders, resulting in
multiple prior surgeries including, bilateral knee replacements. It also caused pain, stiffness,
deformity, and swelling in her hands and fingers. Appellant provided examination findings and
opined that there was no surgical remedy. Dr. Chessin advised that medications were ineffective
and appellant was unable to work at her prior job, or any job in the future. She anticipated that
her degenerative arthritis would only progress. In a work capacity evaluation (Form OWCP-5c)
dated May 28, 2013, Dr. Chessin advised that appellant was unable to perform her usual job or
work eight hours a day with restrictions. She noted that appellant had unsuccessfully attempted
to work four hours a day.
On July 23, 2013 Dr. Cochran reported appellant’s history and examination findings. He
reiterated his diagnosis of preexisting degenerative arthritis. Dr. Cochran noted appellant’s
complaint that her right knee was functioning well prior to a change in her work status. He
advised that she had an apparent flare-up that was possibly related to her meniscal tear which
required total knee arthroplasty. Dr. Cochran noted that there were no complications during this
7

Appellant also provided a March 13, 2013 bilateral hand x-ray report.

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procedure and appellant subsequently had a functional outcome. He noted, however, that she
had reported an inability to work after August 6, 2012 as she had difficulty lifting her leg from
the gas pedal to the brake while driving. Appellant also reported pain and a fear of falling from
instability.
In a September 13, 2013 decision, an OWCP hearing representative affirmed the
April 12, 2013 denial of recurrence of disability. The hearing representative found that
Dr. Wessinger’s impartial medical opinion remained the weight of the medical evidence.
In an October 1, 2013 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that date, finding that the weight of the medical evidence rested
with the opinion of Dr. Wessinger.8
On September 26, 2014 appellant, through her representative, requested reconsideration
of the October 1, 2013 termination decision. He contended that Dr. Wessinger’s reports were not
rationalized and not entitled to the weight of the medical evidence. The representative cited the
Board’s decision in Patricia E. McNally9 and contended that OWCP did not provide
Dr. Wessinger with a definition of aggravation or contribution when it asked him to state
whether the aggravation of appellant’s right knee osteoarthritis was temporary or permanent. He
asserted that Dr. Wessinger’s reports were not based on a complete and proper factual and
medical background as he did not mention Dr. Obinawu’s October 8, 2012 x-rays of both knees
and the SOAF did not accurately quantify the percentage of time appellant performed the
physical requirements of her position.
In a December 23, 2014 decision, OWCP addressed appellant’s arguments and denied
modification of the October 1, 2013 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.10 It may not terminate compensation
without establishing that the disability had ceased or that it was no longer related to the
employment.11 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.12 The right to
8

In an October 4, 2013 decision, OWCP denied appellant’s claim for a right lower extremity schedule award. It
found that a June 26, 2013 report from Dr. Mitchell Z. Pollack, an emergency medicine physician, who opined that
appellant had 23 percent impairment of the right leg, was based on her right knee total arthroplasty which had not
been accepted or authorized. This decision was affirmed by an OWCP hearing representative on April 8, 2014. By
decision dated December 1, 2015, the Board affirmed the hearing representative’s April 8, 2014 decision. See
Docket No. 14-1921 (issued December 1, 2015).
9

Docket No. 05-338 (issued May 5, 2005).

10

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

11

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
12

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

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medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.13 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.14
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.15 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.16 When there exists opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.17
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits on October 1, 2013.
OWCP accepted appellant’s claim for an aggravation of localized unspecified
osteoarthritis of the lower right knee and aggravation of a tear of the medial mensicus of the right
knee. It terminated her wage-loss compensation and medical benefits effective October 1, 2013
finding that the accepted employment-related conditions had resolved without residuals or
disability based on the opinion of the impartial medical examiner, Dr. Wessinger.
OWCP had referred appellant to Dr. Wessinger to resolve a conflict in medical opinion
between Dr. Cochran and Dr. Obianwu as to whether she had any continuing employmentrelated residuals and disability and need for right knee surgery. Dr. Cochran, the treating
physician, opined that appellant’s right knee condition and need for total right knee arthroplasty
were due to factors of her employment and she remained totally disabled for work.
Dr. Obianwu, an OWCP referral physician, opined that appellant had no work-related residuals
or disability, that she could perform her usual job with restrictions, and that her total right knee
replacement was not necessitated by work factors. OWCP properly referred appellant to
Dr. Wessinger to resolve the conflict under 5 U.S.C. § 8123(a).

13

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
14

A.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

15

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
16

20 C.F.R. § 10.321.

17

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

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In his February 19, 2013 report, Dr. Wessinger reviewed appellant’s history, the
statement of accepted facts, and provided findings on examination. He determined that
appellant no longer had residuals of her accepted employment-related right knee injuries.
Dr. Wessinger reported essentially normal examination findings for the right knee with the
exception of mild valgus deformity in the standing position, diminished range of motion, and a
right quadricep that was one-half inch larger with minor swelling present. He reported that
appellant was status post right knee arthroscopy two times with ultimate total knee replacement
for severe arthritis. Dr. Wessinger found no evidence of any significant acute pathology in
appellant’s right knee based on his review of the right knee surgeries performed by Dr. Austin
and Dr. Cochran. He explained that torn menisci were commonly degenerative in nature in the
presence of arthritis. Dr. Wessinger concluded that appellant’s job did not cause, significantly
aggravate, or acelerate her underlying right knee arthritis. He further concluded that, although
she had not reached MMI from her right knee total replacement, she could return to her regular
job in early April 2013 and possibly with restrictions.
OWCP requested a supplemental report from Dr. Wessinger to further respond to the
questions it had presented.18 On March 15, 2013 Dr. Wessinger reiterated that appellant’s
underlying right knee arthritis was not causally related or aggravated by her federal employment
and that although she had not reached MMI regarding her total knee replacement, she was able to
return to her regular job duties in early April 2013 with restrictions. He advised that these
restrictions were not work related. Dr. Wessinger further advised that any future treatment
would be based on appellant’s nonwork-related degenerative right knee condition. He explained
that his opinion on causal relationship was based on his physical examination and review of the
medical record and SOAF. Dr. Wessinger related that the September 30, 2010 right knee x-ray
finding of severe patellofemoral arthritis, within one month of appellant’s hire, did not support a
work-related condition. He noted Dr. Austin’s November 30, 2010 surgical finding of bare bone
in the patellofemoral joint and found that it was virtually impossible for a joint to degenerate to
the extent of appellant’s condition within three months. Dr. Wessinger opined that Dr. Austin’s
January 24, 2012 right knee surgery was not warranted or work related, explaining that there was
no evidence of any significant acute pathology in the knee. He noted that torn menisci were very
commonly degenerative in nature in the presence of arthritis. Dr. Wessinger concluded that this
surgery did not materially alter appellant’s knee pathology such that total right knee replacement
was required. He reiterated that the need for total knee replacement was due to preexisting bare
bone degenerative changes.
The Board finds that Dr. Wessinger had an accurate knowledge of the relevant facts and
evaluated the course of appellant’s condition. Dr. Wessinger is a specialist in the appropriate
field. At the time benefits were terminated, he determined that appellant had no work-related
residuals or disability for full-time employment and that total right knee replacement surgery was
not warranted. His opinion as set forth in his February 19 and March 15, 2013 reports is
probative and reliable evidence. The Board finds that his opinion is entitled to special weight

18

When OWCP secures an opinion from an impartial medical specialist for the purpose of resolving a conflict in
the medical evidence and the opinion from the specialist requires clarification or elaboration, OWCP has the
responsibility to secure a supplemental report from the specialist. Phillip H. Conte, 56 ECAB 213 (2004).

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and constitutes the weight of the medical evidence and is sufficient to justify OWCP’s
termination of compensation benefits for the accepted conditions.
The Board further finds that the remaining medical evidence submitted prior to OWCP’s
termination of compensation does not overcome the weight of Dr. Wessinger’s reports or create
a new conflict in medical evidence.
Dr. Chessin provided a May 15, 2013 report releasing appellant to part-time work and her
May 28, 2013 report found that appellant was totally disabled for work. However, Dr. Chessin
failed to provide a report opining whether she had any disability causally related to the accepted
work injuries. The Board has found that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.19
Dr. Cochran’s July 23, 2013 report found that appellant had preexisting degenerative
arthritis. He opined that a flare-up of her right knee problem was “possibly” related to her
meniscal tear which required surgery. The Board finds that Dr. Cochran’s opinion on causal
relationship is speculative in nature, and, thus of little probative value.20 Moreover, the Board
notes that he was on one side of the conflict that Dr. Wessinger resolved. The Board finds that
the additional report from Dr. Cochran is insufficient to overcome the weight accorded
Dr. Wessinger as the impartial medical examiner or to create a new conflict.21
Other medical reports provided by appellant prior to the termination of benefits either
predate the termination or do not address how any continuing condition or disability is casually
related to the accepted conditions.22
Consequently, OWCP met its burden of proof to terminate appellant’s compensation and
medical benefits on October 1, 2013.
LEGAL PRECEDENT -- ISSUE 2
It is well established that after termination or modification of benefits, clearly warranted
on the basis of the evidence, the burden for reinstating compensation benefits shifts to appellant.
In order to prevail, appellant must establish by the weight of the reliable, probative, and

19

C.B., Docket No. 09-2027 (issued May 12, 2010); A.F., 59 ECAB 714 (12, 2008); A.D., 58 ECAB 149 (2006);
Michael E. Smith, 50 ECAB 313 (1999).
20

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty the opinion must not be speculative or equivocal; the opinion should be
expressed in terms of a reasonable degree of medical certainty).
21

Jaja K. Asaramo, 55 ECAB 200 (2004) (reports from a physician who was on one side of a medical conflict
that an impartial specialist resolved, are generally insufficient to overcome the weight accorded the opinion of the
impartial physician or to create a new conflict).
22

See cases cited, supra note 19.

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substantial evidence that he or she had an employment-related disability or residuals which
continued after termination of compensation benefits.23
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained an aggravation of localized unspecified
osteoarthritis of the lower right knee and aggravation of a tear of the medial mensicus of the right
knee. It properly terminated her wage-loss compensation and medical benefits effective
October 1, 2013 based on the opinion of Dr. Wessinger, the referee physician, who found that
residuals and disability from the accepted employment-related right knee conditions had ceased.
The burden now shifts to appellant to demonstrate that she continued to have residuals or
disability for work on and after October 1, 2013 due to the accepted injuries.24
Subsequent to the termination of benefits, appellant did not submit any new medical
evidence.
Before OWCP and on appeal before the Board, appellant’s representative contended that
Dr. Wessinger’s reports were not entitled to the weight of the medical evidence. He cited to
Patricia E. McNally25 and contended that OWCP did not provide Dr. Wessinger with a definition
of an aggravation or contribution when it asked him to state whether the aggravation of
appellant’s right knee osteoarthritis was temporary or permanent in nature. However, the facts in
the present case can be distinguished from Patricia E. McNally. In Patricia E. McNally, the
Board found that an impartial medical specialist’s opinion on causal relationship was insufficient
to resolve the underlying conflict of whether the employee’s work-related injuries aggravated her
preexisting left knee condition and caused or contributed to the need for surgery. The Board
found that the physician had not addressed whether the injury-related aggravation or period of
symptoms was temporary or permanent in the questions provided him and OWCP had not
requested clarification from him as to whether the aggravation was temporary or permanent.
In the instant case, Dr. Wessinger did not initially address the question of whether the
aggravation of appellant’s right knee osteoarthritis was temporary or permanent in nature.
However, OWCP requested a supplemental report. In response, Dr. Wessinger clearly opined
that appellant’s federal employment had not caused, significantly aggravated, or accelerated her
underlying right knee arthritis. He further opined that her January 24, 2012 right knee total
replacement surgery was not work related and indicated that it was necessitated by her
preexisting degenerative condition. Thus, the Board finds that the case cited by appellant’s
representative is not applicable to the instant case.
Appellant’s representative also contended that Dr. Wessinger’s reports were not based on
a complete and proper factual and medical background as it did not mention Dr. Obinawu’s
October 8, 2012 x-rays of both knees and the SOAF did not accurately quantify the percentage of
23

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992).

24

Virginia Davis-Banks, id.

25

Supra note 9.

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time appellant performed the physical requirements of her positions. Dr. Wessinger provided a
review of appellant’s medical history. While Dr. Wessinger did not summarize every report in
the record, this does not mean that these reports were not reviewed. There is no requirement that
an examining physician must list every medical report reviewed.26 Moreover, the Board notes
that Dr. Wessinger’s quantification of the time appellant spent performing her work duties was
based on her description of her work duties. The Board finds that Dr. Wessinger’s reports
provided sufficient discussion of the medical evidence of record and accurately discussed the
requirements of appellant’s position.
On appeal, appellant’s representative further contends that Dr. Wessinger failed to
provide sufficient medical rationale to support his medical opinion. Dr. Wessinger, however,
explained the basis for his opinion that appellant no longer had any residuals or disability
causally related to her accepted employment injuries and, as discussed, his reports represent the
special weight of the evidence.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective October 1, 2013 and that she has failed to meet her
burden of proof to establish continuing employment-related residuals or disability after the
termination of her compensation benefits.

26

S.N., Docket No. 12-123 (issued June 12, 2012).

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ORDER
IT IS HEREBY ORDERED THAT the December 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 14, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.B., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 12-1055
Issued: November 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 12, 2012 appellant filed a timely appeal from an October 20, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision of October 18, 2010 and 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 does not have jurisdiction to review the merits of this case. The Board notes that appellant
submitted new evidence on appeal. However, the Board lacks jurisdiction to review evidence for
the first time on appeal.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 501.2(c).

On appeal, appellant reiterated the merits of her case and described her problems with her
hearing since the last decision. She explained why she believed that her hearing loss was related
to her federal employment. Appellant submitted new evidence on appeal.
FACTUAL HISTORY
On March 1, 2010 appellant, then a 59-year-old human resources specialist, filed an
occupational disease claim alleging that she suffered a hearing loss in both of her ears due to
noise from plane engines during her extensive airplane travel during her federal employment.
The employing establishment controverted the claim and contended, inter alia, that appellant
was not exposed to noise in her federal employment, noting that her office was noise free and
that she traveled for work every two years, if that often. By letter dated April 2, 2010, appellant
responded to a request for further information from OWCP by describing her noise exposure at
work, first as a data transcriber and then as a personnel management specialist. In her statement,
she contended that she was exposed to warehouse noise when she was a supply clerk for the
employing establishment. Appellant noted that in her most recent assignment as a human
resources specialist she was required to travel to various places on small airplanes with
extremely loud engines. She noted that during a trip to and from Denver in 2000 she
experienced severe pain in her ears. Appellant also noted that in 2007 she was exposed to a
constant barrage of traffic noise while at work. Finally, she noted that for approximately three to
four years she was required to wear a headset which exposed her to high frequency noise and
static.
By decision dated April 28, 2010, OWCP denied appellant’s claim as it found that the
evidence submitted was insufficient to establish that the event occurred as alleged.
On August 17, 2010 appellant requested reconsideration and submitted additional
evidence in support of her claim.
By decision dated October 18, 2010, OWCP denied modification of its prior decision. It
found that this evidence was not sufficient to show a causal relationship between factors of
appellant’s federal employment and her hearing loss.
On October 12, 2011 appellant requested reconsideration. In her statement, she described
her exposure to workplace noise. In support of her claim, appellant submitted position
descriptions that were already in the record. She also submitted a March 24, 2008 memorandum
by the Industrial Hygiene Program Manager for the employing establishment which detailed
noise exposure for various positions.
By decision dated October 20, 2011, OWCP denied appellant’s request for
reconsideration without conducting a merit review.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.5 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.6
ANALYSIS
OWCP denied appellant’s claim because she failed to establish an employment factor or
incident and as such did not show that her hearing loss was causally related to her federal
employment. On appeal, appellant makes various arguments that address the merits of her case.
However, the last merit decision in this case was issued on October 18, 2010 at which point
OWCP denied modification of the decision denying her claim. As previously stated, this
decision was issued over 180 days prior to the filing of this appeal and, accordingly, the Board
does not have jurisdiction to review the merits of the case.7 The only issue before the Board is
whether OWCP properly denied appellant’s reconsideration request.
The Board notes that the arguments appellant made in her most recent reconsideration
request were a repetition of the arguments she made in her correspondence of April 2, 2010. In
addition to these repetitive arguments, appellant submitted copies of position descriptions with
her reconsideration request that were already in the record. The Board has held that submission
of evidence or argument which repeats or duplicates that already in the case record does not
constitute a basis for reopening a case.8 The only piece of new evidence, the March 24, 2008
memorandum by the Industrial Hygiene Program Manager for the employing establishment, does
not specifically address the noise exposure for appellant. The Board has held that the submission
of evidence or argument which does not address the particular issue involved does not constitute
a basis for reopening a case.9 Because appellant did not show that OWCP erroneously
interpreted a specific point of law, advance a relevant legal argument not previously considered
3

Id. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

Id. at § 501.3(e).

8

S.J., Docket No. 10-1318 (issued February 3, 2011); Edward W. Malaniak, 51 ECAB 279 (2000).

9

D.B., Docket No. 10-2036 (issued May 13, 2011); Edward Mathew Diekemper, 31 ECAB 224, 225 (1979).

3

or submit relevant and pertinent new evidence not previously considered by OWCP, it did not
abuse its discretion in denying appellant’s request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 20, 2011 is affirmed.
Issued: November 21, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Niles, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0985
Issued: November 7, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 5, 2019 appellant filed a timely appeal from an October 12, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
have elapsed since OWCP’s last merit decision, dated July 20, 2017, 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 this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 28, 2017 appellant, then a 57-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 15, 2016 she sustained an injury to her right shoulder
when she lifted a heavy package while in the performance of duty. On the reverse side of the claim
form, the employing establishment checked boxes marked “yes” indicating that she was in the
performance of duty on October 15, 2016 and that it was in agreement with her account of the
claimed employment incident.
In a report dated January 27, 2017, Dr. Daniel Sohn, a Board-certified orthopedic surgeon,
noted appellant’s history of injury. Based on x-ray interpretations, he diagnosed right shoulder
right impingement syndrome and right incomplete rotator cuff tear or rupture of right shoulder.
In a report dated April 18, 2017, Dr. Sohn reviewed appellant’s magnetic resonance
imaging (MRI) scan dated April 3, 2017. He noted impressions of incomplete rotator cuff tear or
rupture of right shoulder, and right shoulder left impingement syndrome.
In a development letter dated June 8, 2017, OWCP advised appellant that when her claim
was submitted it appeared to be a minor injury that necessitated minimal or no lost time from work
and payment of a limited amount of medical expenses had been administratively approved. It
explained that her claim was being reopened for consideration because the medical bills had
exceeded $1,500.00. OWCP further informed appellant of the deficiencies of her claim, advised
her of the type of factual and medical evidence needed, and provided a questionnaire for her
completion. It afforded her 30 days to submit the necessary evidence.
In a report dated June 27, 2017, Dr. Sohn indicated that appellant complained of right
shoulder pain. He diagnosed right subacromial impingement.
By decision dated July 20, 2017, OWCP denied appellant’s claim finding that the evidence
of record was insufficient to establish that her diagnosed condition was causally related to the
accepted October 15, 2016 employment incident.
OWCP received additional evidence. An April 2, 2017 MRI scan related diagnoses of:
distal supraspinatus and infraspinatus tendinopathy with probable focal perforation of the distal
supraspinatus tendon; acromioclavicular osteoarthritis; superior labrum anterior posterior of the
glenoid labrum; and high-grade partial tear of the long head biceps tendon.
OWCP also received duplicate copies of Dr. Sohn’s previously submitted reports. A
March 22, 2018 duty status report (Form CA-17) noted appellant’s work restrictions.
Appellant also submitted answers to OWCP’s factual questionnaire, as well as a narrative
statement dated June 10, 2018 wherein she described her right shoulder symptoms.

2

On July 14, 2018 appellant requested reconsideration of OWCP’s July 20, 2017 decision.
By decision dated October 12, 2018, OWCP denied appellant’s request for reconsideration
of the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA3 does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With her timely request for reconsideration, appellant neither showed that OWCP
erroneously applied or interpreted a specific point of law, nor advanced a relevant legal argument
not previously considered by OWCP. Consequently, she is not entitled to review of the merits of
her claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
A claimant may be entitled to a merit review by submitting relevant and pertinent new
evidence, however, the Board finds that appellant has not submitted any such evidence in this

3

Supra note 1.

4
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. The one-year period begins on
the next day after the date of the original contested decision. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016).
7

Id. at § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

3

case.9 After OWCP’s July 20, 2017 decision, appellant submitted an April 2, 2017 MRI scan
report and a March 22, 2018 duty status report (Form CA-17). The submission of this evidence
does not require reopening of the claim for review of the merits because this evidence
is irrelevant to the underlying issue of causal relationship. The Board has held that the submission
of evidence or argument which does not address the particular issue involved does not constitute
a basis for reopening a case.10 OWCP also received copies of Dr. Sohn’s previously submitted
reports. Evidence that repeats or duplicates evidence already in the case record does not constitute
a basis for reopening a case.11 Appellant did submit a narrative statement and a response to
OWCP’s factual questionnaire, however, the underlying issue of causal relationship is a medical
issue which must be addressed by relevant medical evidence not previously considered.12 Her own
factual discussion of her claim does not constitute relevant medical evidence.13 Thus, appellant is
also not entitled to a review of the merits of her claim based on the third above-noted requirement
under 20 C.F.R. § 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

9

L.E., Docket No. 19-0470 (issued August 12, 2019); B.T., Docket No. 18-1397 (issued January 15, 2019); supra
note 7; see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 08-1569 (issued
December 9, 2008).
10

T.B., Docket No. 19-0029 (issued June 21, 2019).

11

M.C., Docket No. 18-0841 (issued September 13, 2019).

12

See A.M., Docket No. 18-1033 (issued January 8, 2019); see also Bobbie F. Cowart, 55 ECAB 746 (2004).

13

See B.R., Docket No. 17-1661 (issued January 4, 2018); James A. Long, 40 ECAB 538 (1989).

4

ORDER
IT IS HEREBY ORDERED THAT the October 12, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, MIDTOWN STATION, )
New York, NY, Employer
)
__________________________________________ )
S.K., Appellant

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

Docket No. 08-2245
Issued: August 20, 2009

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 August 13, 2008 appellant filed a timely appeal of a June 27, 2008 nonmerit decision
of the Office of Workers’ Compensation Programs, denying his request for reconsideration
because it was not timely filed and failed to establish clear evidence of error. Because more than
one year has elapsed between the most recent merit decision dated December 29, 2004 and the
filing of the appeal, the Board lacks jurisdiction to review the merits of his claim pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. In an October 29, 2007 order, the Board
dismissed appellant’s appeal of an Office hearing representative’s December 29, 2004 decision
which affirmed as modified the Office’s September 9, 2004 decision, denying his schedule

award claim.1 It found that the record did not contain a final decision of the Office issued within
one year of the filing of the appeal on March 20, 2007. The Board stated that the most recent
decision was the December 29, 2004 decision. The facts and the history relevant to the present
appeal are hereafter set forth.2
In the December 29, 2004 decision, the Office hearing representative denied appellant’s
schedule award claim because he had not yet reached maximum medical improvement based on
a November 12, 2004 medical report of Dr. Andrew A. Merola, an attending Board-certified
orthopedic surgeon, which stated that appellant was continuing to recover from his accepted
employment-related back injury. The hearing representative found that it was premature to
consider appellant’s claim for a schedule award and, thus, he was not entitled to a schedule
award.
By letter dated March 16, 2008, appellant requested reconsideration. In a February 8,
2008 report and an April 29, 2008 work capacity evaluation (Form OWCP-5c), Dr. Merola
opined that appellant was permanently and totally disabled. In an April 11, 2008 report, he
stated that appellant sustained lumbar spinal stenosis. Dr. Merola opined that appellant sustained
a 75 percent impairment of both lower extremities based on the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides 552, Table 17-37) (5th ed.
2001). In an April 29, 2008 form report, he stated that appellant’s lumbar spinal stenosis was
caused by the accepted April 19, 2002 employment-related incident.
By decision dated June 27, 2008, the Office found that appellant’s March 16, 2008 letter
requesting reconsideration was dated more than one year after the December 29, 2004 merit
decision and was untimely. It further found that the evidence he submitted did not establish clear
evidence of error in the Office’s denial of his schedule award claim.3
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act4 does not entitle a claimant
to a review of an Office decision as a matter of right.5 The Office, through its regulations, has
imposed limitations on the exercise of its discretionary authority under section 8128(a). Section
10.607(a) of the Office’s implementing regulations provide that an application for

1

Docket No. 07-1136 (issued October 29, 2007) (Order Dismissing Appeal).

2

On April 19, 2002 appellant, then a 48-year-old letter carrier, filed a traumatic injury claim alleging that on that
date he sustained a lower back injury. While sitting in his truck another truck backed into him. By letter dated
July 22, 2002, the Office accepted appellant’s claim for back derangement and authorized a lumbar laminectomy
and fusion which was performed on February 24, 2004. On April 2, 2004 appellant filed a claim for a schedule
award.
3

On October 1, 2008 the Office issued a decision granting appellant a schedule award for a 51 percent
impairment of both lower extremities, representing a 26 percent impairment of the right lower extremity and a 25
percent impairment of the left lower extremity. This decision is null and void because it was issued while the case
was on appeal before the Board on the same issue, pursuant to appellant’s August 13, 2008 request for an appeal.
See Douglas Billings, 41 ECAB 880 (1990).
4

5 U.S.C. § 8128(a).

5

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

2

reconsideration must be sent within one year of the date of the Office decision for which review
is sought.6
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.8 The evidence must be positive, precise and explicit and
must be manifest on its face that the Office committed an error.9 Evidence that does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by the Office 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 the Office.12
The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of the Office such that the Office abused its discretion in
denying merit review in the face of such evidence.13
ANALYSIS
The Board finds that appellant failed to file a timely application for review of the
December 29, 2004 merit decision. In implementing the one-year time limitation, the Office’s
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original Office decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues.14
The most recent merit decision was issued by the Office hearing representative on
December 29, 2004, denying appellant’s schedule award claim on the grounds that he had not
reached maximum medical improvement.
As his March 16, 2008 letter requesting
reconsideration was made more than one year after the Office hearing representative’s
December 29, 2004 decision, it was not timely filed.
6

20 C.F.R. § 10.607(a).

7

Id. at § 10.607(b); see also Alberta Dukes, 56 ECAB 247 (2005).

8

Nancy Marcano, 50 ECAB 110, 114 (1998).

9

Leona N. Travis, 43 ECAB 227, 241 (1991).

10

Darletha Coleman, 55 ECAB 143 (2003).

11

Leona N. Travis, supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919 (1992).

13

Pete F. Dorso, 52 ECAB 424 (2001).

14

Larry L. Litton, 44 ECAB 243 (1992).

3

The underlying issue in this case is whether the Office properly denied appellant’s
schedule award claim, on the grounds that he had not reached maximum medical improvement
regarding his accepted March 19, 2002 employment-related back condition. The Board finds
that Dr. Merola’s February 8, 2008 report and April 29, 2008 OWCP-5c form which found that
appellant was permanently and totally disabled and his April 29, 2008 report which stated that
appellant’s lumbar spinal stenosis was caused by the accepted April 19, 2002 employment
incident do not establish clear evidence of error. This evidence does not provide an opinion as to
whether appellant had reached maximum medical improvement and, thus, sustained an
employment-related permanent impairment entitling him to a schedule award.
Dr. Merola’s April 11, 2008 report found that appellant suffered from lumbar spinal
stenosis resulting in a 75 percent impairment of his bilateral lower extremities based on the
A.M.A., Guides. The Board finds that this evidence does not establish clear evidence of error. It
notes that appellant’s schedule award claim was denied because there was no medical evidence
establishing that he had reached maximum medical improvement. Dr. Merola did not address
the date of appellant’s maximum medical improvement. In order to be eligible for a schedule
award, medical evidence must establish that maximum medical improvement had been
reached.15 For the stated reasons, the evidence submitted by appellant does not raise a
substantial question concerning the correctness of the Office’s prior decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 27, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2009
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
15

James E. Earle, 51 ECAB 567 (2000).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, NEW JERSEY
INTERNATIONAL & NATIONAL
DISTRIBUTION CENTER, Jersey City, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1095
Issued: March 29, 2022

Case Submitted on the Record

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

JURISDICTION
On April 29, 2020 appellant, through counsel, filed a timely appeal from a December 18,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted March 31, 2014 employment incident.
FACTUAL HISTORY
This case has previously been before the Board. 3 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 March 31, 2014 appellant, then a 48-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his right shoulder when picking up a foot
locker while in the performance of duty. He stopped work on the date of injury.
In an April 1, 2014 report, Dr. Norman Penera, a Board-certified internist, diagnosed right
shoulder strain and advised that appellant was unable to work in any capacity at that time.
An April 4, 2014 right shoulder magnetic resonance imaging (MRI) scan demonstrated
degenerative changes of the acromioclavicular (AC) joint, extensive thickening, and abnormal
signal within the supraspinatus, subscapularis, and biceps tendons. It also revealed probable focal
full-thickness tear of the distal supraspinous tendon.
In an April 9, 2014 referral order, Dr. Penera diagnosed a full-thickness supraspinatus
rotator cuff tear.
In an April 22, 2014 medical report, Dr. Faisal Mahmood, an attending Board-certified
orthopedic surgeon, noted findings on his physical examination and advised that appellant suffered
from a right shoulder full-thickness supraspinatus rotator cuff tear with subacromial impingement.
He also diagnosed bursitis, AC joint hypertrophy/arthritis, biceps tendinitis, and labial fraying.
Based on these findings, Dr. Mahmood recommended arthroscopic surgery. In a note of even date,
he requested that appellant be excused from work until June 22, 2014.
By decision dated May 28, 2014, OWCP accepted that the March 31, 2014 employment
incident occurred, as alleged. However, it denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that his diagnosed right shoulder conditions were
causally related to the accepted March 31, 2014 employment incident.
OWCP subsequently received additional reports dated April 1 and 9, 2014 from Dr. Penera
who continued to treat appellant. Dr. Penera diagnosed right shoulder strain of the rotator cuff
capsule and reiterated his prior diagnosis of right shoulder full-thickness rotator cuff tear.
On June 6, 2014 appellant requested a review of the written record by a representative of
OWCP’s Branch and Hearings Review. He also provided a June 2, 2014 letter from Dr. Mahmood
who noted a history of his treatment of appellant’s injury. Dr. Mahmood reiterated his prior
3

Docket No. 19-0587 (issued July 22, 2019).

2

diagnoses and opined that appellant’s injury pattern was consistent with an injury sustained while
lifting an overhead object or repetitive use of the rotator cuff musculature leading to a fu llthickness tear and, as such, he concluded that the injury appellant sustained was causally related
to the employment incident on March 31, 2014.
OWCP subsequently received an attending physician’s report (Form CA-20) dated
May 20, 2014 in which Dr. Mahmood again noted a history of appellant’s accepted March 31,
2014 injury. Dr. Mahmood reiterated his diagnoses and checked a box marked “Yes,” indicating
that these conditions had been caused or aggravated by an employment activity of lifting overhead.
By decision dated August 19, 2015, an OWCP hearing representative affirmed the May 28,
2014 decision.
On November 5, 2015 appellant, through counsel, requested reconsideration of the
August 19, 2015 decision and submitted a November 3, 2015 letter from Dr. Mahmood, who noted
that appellant reported that lifting a foot locker weighing approximately 65 to 70 pounds at work
on March 31, 2014 led to his inability to fully abduct his shoulder. Dr. Mahmood further noted
that appellant related that, prior to this incident, he had full range of motion of the shoulder. He
explained that that, while MRI scan findings demonstrated some degenerative signs consistent
with regular use, including AC joint arthropathy, appellant also had a full-thickness tear of the
rotator cuff muscle, which was not a preexisting condition as he was able to abduct his shoulder
prior to the work-related incident. Because appellant could no longer abduct his shoulder since
the accepted March 31, 2014 incident, Dr. Mahmood concluded that appellant’s full-thickness
rotator cuff tear was consistent with a traumatic injury sustained during the accepted employment
incident.
By decision dated May 13, 2016, OWCP denied modification of the August 19, 2015
decision.
On July 5, 2016 appellant, through counsel, requested reconsideration and submitted a
June 14, 2016 letter from Dr. Mahmood, who continued to opine that appellant sustained a workrelated right shoulder condition and that there was a causal relationship between his condition and
the accepted March 31, 2014 employment incident.
By decision dated March 7, 2017, OWCP denied modification of its prior decision.
On September 13, 2017 appellant, through counsel, requested reconsideration.
By decision dated December 11, 2017, OWCP denied modification of its prior decision.
On July 18, 2018 appellant, through counsel, requested reconsideration and submitted an
addendum note dated July 11, 2018 from Dr. Mahmood, who reiterated his prior opinion that
appellant’s right shoulder injuries were work related.
By decision dated October 16, 2018, OWCP denied modification of its December 11, 2017
decision.

3

On January 17, 2019 appellant, through counsel, appealed to the Board. By decision dated
July 22, 2019, the Board affirmed OWCP’s October 16, 2018 decision, finding that appellant had
not met his burden of proof to establish a right shoulder condition causally related to the accepted
Match 31, 2014 employment incident. 4
On December 5, 2019 appellant, through counsel, requested reconsideration and submitted
an October 28, 2019 medical report from Dr. David Weiss, a Board-certified orthopedic surgeon,
who examined appellant and reviewed his history of treatment and diagnostic studies. Dr. Weiss
conducted a physical examination and diagnosed a post-traumatic full-thickness rotator cuff tear
to the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an
aggravation of preexisting quiescent age-related acromioclavicular joint arthropathy to the right
shoulder. He explained that an impingement syndrome occurred when one raised his or her arm
to shoulder height and above, and the space between the acromion and the rotator cuff narrowed.
Dr. Weiss indicated that the acromion could then rub against or impinge the tendon in the rotator
cuff causing irritation and pain. He further explained that this compression could cause attenuation
on the tendon and predispose appellant to tearing of the rotator cuff. Dr. Weiss noted that for a
person with aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to
repetitive use had even less space in the area and that shoulder elevation would cause a greater
impingement and a greater probability of shoulder tendinopathy. He noted that the MRI scan
revealed that appellant had degenerative changes of the acromioclavicu lar joint predisposing him
to an impingement syndrome. Dr. Weiss opined that lifting a 65- to70-pound heavy plastic
footlocker from the ground above the shoulder at the time of the accepted March 31, 2014
employment incident led to significant impingement and caused the full thickness rotator cuff tear
of the supraspinatus tendon. He noted that, when evaluating occupational risk factors with
shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence that
awkward postures like sustained shoulder postures with more than 60 degrees of flexion and
abduction could lead to the diagnosed pathology. Dr. Weiss concluded that the accepted
March 31, 2014 employment incident was the dominant-producing cause of appellant’s injury.
By decision dated December 18, 2019, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition f or which compensation is claimed is causally related to the

4

Docket No. 19-0587 (issued July 22, 2019).

5

Supra note 2.

6

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

4

employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employ ee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury and can be established only by medical evidence. 9
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 10 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that findings made in prior Board decisions are res judicata,
absent further review by OWCP under section 8128 of FECA. It is, therefore, unnecessary for the
Board to consider the evidence appellant submitted prior to the issuance of OWCP’s October 16,
2018 decision as the Board considered that evidence in its July 22, 2019 decision.12
In support of his request for reconsideration, appellant submitted an October 28, 2019
medical report from Dr. Weiss who diagnosed a post-traumatic full-thickness rotator cuff tear to
the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an aggravation
of preexisting quiescent age-related AC joint arthropathy to the right shoulder. Dr. Weiss
explained that an impingement syndrome occurred when one raised his or her arm to shoulder
height and above, and the space between the acromion and the rotator cuff narrowed. He related
that the acromion could then rub against or impinge the tendon in the rotator cuff causing irritation
7

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
8

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
10

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
11

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
12

C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., Docket No. 20-0007 (issued May 13, 2020).

5

and pain. Dr. Weiss noted that this compression could cause attenuation on the tendon and
predispose appellant to tearing of the rotator cuff. He further explained that for a person with
aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to repetitive use had
even less space in the area and that shoulder elevation would cause a greater impingement and a
greater probability of shoulder tendinopathy. Dr. Weiss noted that the MRI scan revealed that
appellant had degenerative changes of the acromioclavicular joint predisposing him to an
impingement syndrome. He opined that lifting a 65- to70-pound heavy plastic footlocker from the
ground to above the shoulder led to significant impingement and caused the full thickness rotator
cuff tear of the supraspinatus tendon. Dr. Weiss explained that, when evaluating occupational risk
factors with shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence
that awkward postures like sustained shoulder postures with more than 60 degrees of flexion and
abduction led to the diagnosed pathology.
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done. 13
Dr. Weiss is a Board-certified physician who is qualified in his field of medicine to render
rationalized opinions on the issue of causal relationship. The Board finds that, although his opinion
is insufficiently rationalized to establish causal relationship, it does raise an uncontroverted
inference regarding causal relationship between the diagnosed conditions and the accepted
March 31, 2014 employment incident sufficient to require further development of the case record
by OWCP.14 Thus, the Board finds that Dr. Weiss’ opinion is sufficient to require further
development of the record by OWCP. 15
The Board will therefore remand the case for further development of the medical evidence.
On remand, OWCP shall prepare a statement of accepted facts and obtain a rationalized opinion
from a physician in the appropriate field of medicine as to whether the accepted employment
incident caused, contributed to, or aggravated the diagnosed right shoulder c onditions.16 If the
physician opines that the diagnosed conditions are not causally related, he or she must explain with
rationale how or why their opinion differs from that of Dr. Weiss. 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.

13

C.R., Docket No. 20-1102 (issued January 8, 2021); K.P., Docket No. 18-0041 (issued May 24, 2019).

14

See B.F., Docket No. 20-0990 (issued January 13, 2021); Y.D., Docket No. 19-1200 (issued April 6, 2020).

15

See A.D., Docket No. 20-0758 (issued January 11, 2021); C.R., Docket No. 20-0366 (issued December 11, 2020);
John J. Carlone, supra note 9; Horace Langhorne, 29 ECAB 820 (1978).
16

C.G., Docket No. 20-1121 (issued February 11, 2021); A.G., Docket No. 20-0454 (issued October 29, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the December 18, 2019 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: March 29, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WHITEMAN AIR FORCE BASE, MO,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Docket No. 16-1561
Issued: January 9, 2017

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

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 26, 2016 appellant filed a timely appeal from a June 22, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant has more than two percent permanent impairment of the
left lower extremity for which he received a schedule award.
FACTUAL HISTORY
On July 18, 2012 appellant, then a 53-year-old aircraft overhaul leader, sustained a left
knee injury when he missed a rung while descending an aircraft step ladder and fell. OWCP
1

5 U.S.C. § 8101 et seq.

accepted appellant’s claim for left knee sprain and expanded his claim to include tear of the
medial meniscus of the left knee and synovitis. Appellant did not stop work but returned to light
duty. Appellant underwent arthroscopic surgery on November 14, 2012. He was off work from
November 12 to December 2, 2012 after undergoing surgery and returned to full duty on
January 14, 2013. Appellant retired on June 8, 2015.
Appellant was treated by Dr. Robert F. Greiner II, an osteopath, from July 31 to
October 9, 2012, for the July 18, 2012 work-related left knee injury when he fell while
descending a ladder. He diagnosed left knee pain and sprain and strain of the knee and leg. On
November 14, 2012 the physician performed left knee arthroscopic surgery, partial medial
meniscectomy and arthroscopic three compartment major synovectomy. Dr. Greiner diagnosed
left knee meniscus tear. A left knee magnetic resonance imaging (MRI) scan on September 21,
2012 revealed an intrasubstance signal of the posterior horn of the medial meniscus suspicious
for a tear, a small subchondral lesion at the medial femoral condyle peripherally, probably
degenerative, and a possible small nonacute subchondral fracture.
On March 3, 2016 appellant filed a claim for a schedule award (Form CA-7). He
submitted a July 28, 2015 report from Dr. Greiner who noted that appellant presented with
radiating left knee pain and a limp. Left knee findings included crepitus in the patellofemoral
region, intact anterior and posterior cruciate ligament, intact medial and lateral collateral
ligaments, negative McMurray’s sign, and strength of 4/5. Dr. Greiner diagnosed left knee pain,
internal derangement of the knee and sprain and strain of the medial collateral ligament of the
knee. He noted that appellant had reached maximum medical improvement for the left knee. In
an August 31, 2015 report, Dr. Greiner opined that based on appellant’s medical history, clinical
findings and physical examination of July 28, 2015, he sustained 16 percent permanent
impairment of the left knee in accordance with the sixth edition of the A.M.A., Guides2 as a
result of the work-related injury. He indicated that appellant’s work-related injury led to
permanent loss of physical function. In a March 17, 2016 report, Dr. Greiner reiterated that,
based on appellant’s medical history, clinical findings, and physical examination of July 28,
2015, appellant had permanent impairment of 16 percent of the left knee in accordance with the
A.M.A., Guides as a result of the work injury. He based his findings on range of motion of the
knee from the prior examination and the related surgery.
In a report dated April 14, 2016, an OWCP medical adviser reviewed Dr. Greiner’s report
and disagreed with his findings. He indicated that Dr. Greiner referenced no tables or charts and
provided no worksheets, narrative, or calculations to explain the method by which he arrived at
his determination. Further, the medical adviser indicated that Dr. Greiner based his rating
determination on range of motion findings. However, the examinations of July 7 and 28, 2015
failed to document left knee range of motion measurements. He recommended appellant be
referred to a second opinion physician for an impairment evaluation.
On April 21, 2016 OWCP referred appellant for a second opinion to Dr. Kala
Danushkodi, a Board-certified physiatrist, for a determination of whether he had permanent
impairment attributable to his accepted conditions. In a report dated May 10, 2016,
2

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

2

Dr. Danushkodi noted a history of appellant’s work-related condition and subsequent treatment.
She noted examination findings of no swelling or effusion, mild patellofemoral crepitus, mild
tenderness of the right medial femoral condyle, negative anterior drawer signs, negative varus
and valgus stress testing, normal knee range of motion, mild pain with knee hyperflexion, mildly
antalgic gait, normal manual strength in the leg, and intact sensory examination. Dr. Danushkodi
diagnosed left knee partial medial meniscectomy. She noted, pursuant to Table 16-3, page 511
of the A.M.A., Guides, Knee Regional Grid, Medial Meniscus tear, status post partial
meniscectomy, appellant was a class 1 impairment, grade C, with default impairment of two
percent of the left leg. Dr. Danushkodi noted that pursuant to Table 16-6, the grade modifier for
Functional History (GMFH) was 1 for antalgic limp; pursuant to Table 16-7, the grade modifier
for Physical Examination (GMPE) was 1 for palpatory findings; and pursuant to Table 16-8, the
grade modifier for Clinical Studies (GMCS) was not applicable as it was used in the diagnosis
grid. She utilized the net adjustment formula to find a net adjustment of zero which would place
appellant at grade C with two percent permanent left lower extremity impairment.
In a May 26, 2016 report, the medical adviser agreed with Dr. Danushkodi’s impairment
rating determination of two percent permanent impairment of the left lower extremity.
In a decision dated June 22, 2016, OWCP granted appellant a schedule award for two
percent permanent impairment of the left lower extremity. The period of the award was from
May 10 to June 19, 2016.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 For decisions issued
beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be used.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).7 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment Class of Diagnosis (CDX) condition, which is then adjusted by grade
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

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

3

modifiers based on functional history, physical examination, and clinical studies.8 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9 The grade
modifiers are used on the net adjustment formula described above to calculate a net adjustment.
The final impairment grade is determined by adjusting the grade up or down the default value C,
by the calculated net adjustment.10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with the OWCP medical
adviser providing rationale for the percentage of impairment specified.11
ANALYSIS
OWCP accepted the claim for left knee sprain, left knee medial meniscus tear, and left
knee synovitis. It authorized a left knee arthroscopic surgery which was performed on
November 14, 2012. On June 22, 2016 appellant received a schedule award for two percent
permanent impairment of his left lower extremity. The Board finds that appellant has not met his
burden of proof to establish more than two percent permanent impairment.
In support of his request appellant submitted a report from Dr. Greiner dated July 28,
2015 who noted that his examination of the left knee revealed crepitus in the patellofemoral
region, intact anterior and posterior cruciate ligament, intact medial and lateral collateral
ligaments, and strength of 4/5. Dr. Greiner diagnosed left knee pain, internal derangement of the
knee and sprain and strain of the medial collateral ligament of the knee. He noted that appellant
reached maximum medical improvement for the left knee. In reports dated August 31, 2015 and
March 17, 2016, Dr. Greiner opined that based on appellant’s medical history, clinical findings
and physical examination of July 28, 2015, appellant had permanent impairment of 16 percent of
the left knee under the A.M.A., Guides as a result of the work-related condition. On March 17,
2016 he indicated that he based his findings on range of motion of the knee from the prior
examination and the related surgery. However upon review of Dr. Greiner’s reports dated July 7
and 28, 2015, he fails to document range of motion figures for the left knee and did not otherwise
explain how he arrived at his impairment rating pursuant to specific provisions of the A.M.A.,
Guides. Dr. Greiner failed to cite tables or charts in the A.M.A., Guides to support his
impairment rating or provide his calculations in support of his determination. It is well
established that when an attending physician’s report provides an estimate of impairment but

8

Id. at 494-531.

9

Id. at 521.

10

A.M.A., Guides 497.

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

4

does not address how the rating was made under the A.M.A., Guides, it is of little probative
value.12
OWCP referred appellant for a second opinion evaluation to Dr. Danushkodi. In a
May 10, 2016 report, Dr. Danushkodi diagnosed left knee post partial medial meniscectomy.
She properly noted that, under Table 16-3, page 511 of the A.M.A., Guides, Knee Regional Grid,
Medial Meniscus Tear status post partial meniscectomy, appellant was a class 1 impairment,
grade C, with a default impairment rating of two percent. Dr. Danushkodi noted pursuant to
Table 16-6, page 516, the grade modifier for functional history was 1 for appellant’s antalgic
limp; pursuant to Table 16-7, page 517, the grade modifier for physical examination was 1 for
positive palpatory findings; and pursuant to Table 16-8, the grade modifier for clinical studies
was not applicable as it was used in the diagnosis grid. She properly utilized the net adjustment
formula to find a net adjustment of zero which would place appellant at grade C for two percent
of the left leg. Dr. Danushkodi opined that appellant had two percent permanent impairment of
the left leg.
In a May 26, 2016 report, OWCP’s medical adviser reviewed Dr. Danushkodi’s May 10,
2016 report. He agreed with the diagnosis and class of diagnosis used by Dr. Danushkodi. The
medical adviser also agreed that appellant’s functional history grade modifier, GMFH, was 1;
that his physical examination grade modifier (GMPH) was 1, and that GMCS was not applicable.
Using the net adjustment formula the medical adviser concurred with a net adjustment of zero for
a final grade of C which yields two percent impairment of the left lower extremity.
The Board finds that OWCP’s medical adviser and Dr. Danushkodi properly calculated
permanent impairment under the A.M.A., Guides. There is no current medical evidence in
accordance with the A.M.A., Guides which supports that appellant sustained more than two
percent permanent impairment for the left leg for which he previously received a schedule
award.
On appeal appellant asserts that Dr. Greiner performed an impairment evaluation under
the A.M.A., Guides on August 31, 2015 and determined that he had 16 percent permanent
impairment of the left lower extremity. Appellant advised that he also submitted a March 17,
2016 report from Dr. Greiner who attached his office notes and operative report. He asserts that
Dr. Greiner’s report supports that he has 16 percent permanent impairment. However, as noted
above, Dr. Greiner’s report failed to clearly explain how he arrived at 16 percent left lower
extremity impairment rating under the A.M.A., Guides. Appellant also contended that the
second opinion physician examined him for seven minutes, that she was not thorough, and that
she failed to mention his pain in her report. The Board found that Dr. Danushkodi’s report was
sufficiently rationalized and properly based on the sixth edition of the A.M.A., Guides.
Appellant has offered no evidence to support his contentions.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
12

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).

5

CONCLUSION
The Board finds that appellant has not established that he has more than two percent
permanent impairment of the left lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6