United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
PEACE CORPS, Washington, DC, Employer
__________________________________________

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

Docket No. 13-648
Issued: June 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 28, 2013 appellant filed a timely appeal of a July 31, 2012 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 met her burden of proof to establish that she sustained an
occupational disease while in the performance of duty.
FACTUAL HISTORY
On May 20, 2012 appellant, then a 25-year-old former Peace Corps volunteer, filed a
Form CA-2 alleging that she sustained an occupational disease while she served in Nicaragua.
She injured her left knee during a soccer match sometime in February 2011 and was referred for
physical therapy. Appellant’s condition was subsequently aggravated by the extensive, long1

5 U.S.C. § 8101 et seq.

distance bus travel required to attend the treatment sessions as well as routine walking on uneven
terrain. Her tour of duty lasted from July 2010 to May 12, 2012.
An April 14, 2011 left knee magnetic resonance imaging (MRI) scan obtained by
Dr. Pablo Barillas Rios, a radiologist in Nicaragua, was normal.
In a May 5, 2011 report, Dr. Dino Aguilar, an orthopedic surgeon in Nicaragua, evaluated
appellant and observed clinical signs of meniscal lesion. He diagnosed possible chronic left
meniscal lesion. In a June 27, 2011 follow-up report, Dr. Aguilar added that appellant had a
history of left knee pain “since more than a year ago.” He examined her, elicited medial patellar
pain and diagnosed left synovial plica syndrome.
Dr. Stephan L. Pro, a Board-certified orthopedic surgeon in Oregon, related in a July 19,
2011 report that appellant experienced ongoing left knee pain without any specific antecedent
trauma for the past two years. Appellant’s condition worsened when she adopted soccer as a
hobby while in Nicaragua. Physical examination and radiological findings were unremarkable.
Dr. Pro diagnosed possible left patellofemoral pain syndrome and recommended physical
therapy.2
In a March 21, 2012 report, Dr. Mariano Barahona, a Nicaraguan physician, reiterated
that appellant had a history of chronic left knee pain for more than two years. Appellant’s
condition deteriorated following 17 sessions of physical therapy and accompanying bus rides and
she exhibited signs of potential lateral meniscal lesion and patellofemoral symptoms.
Dr. Barahona reviewed the medical file and noted that the April 14, 2011 left knee MRI scan,
which did not show any visible abnormalities, could have nonetheless missed indications of
meniscal lesion and patellofemoral inflammation. He diagnosed chronic left knee pain and
synovial plica syndrome. In an April 27, 2012 Peace Corps close-of-service evaluation form,
Dr. Barahona examined appellant and observed positive McMurray’s and Apley’s tests.3
Dr. Robert H. Sandmeier, a Board-certified orthopedic surgeon in Oregon, advised in a
May 14, 2012 report that appellant experienced left knee pain “for many years” and was a former
Peace Corps volunteer in Nicaragua, where she “had to do a lot of walking.” Appellant’s present
condition “may have started after a blow to the knee in a soccer game” and was aggravated by
lengthy bus rides to her physical therapy sessions. Physical examination and radiological
findings were unremarkable. Dr. Sandmeier opined, “I do not believe [appellant’s] knee is the
source of the pain despite the fact she is feeling pain there.”
OWCP informed appellant in a June 26, 2012 letter that additional evidence was needed
to establish her claim. It gave her 30 days to submit a report from a qualified physician
explaining how work factors caused or contributed to a diagnosed injury. OWCP did not receive
a response.

2

The case record shows that appellant underwent physical therapy in Oregon for the period July 20 to 29, 2011.

3

Appellant provided additional medical documents for the period July 3, 2010 to May 12, 2012, the information
of which was immaterial to the present case or restated in other reports.

2

By decision dated July 31, 2012, OWCP denied appellant’s claim, finding the medical
evidence insufficient to establish that the accepted work factors were causally related to a
diagnosed injury.
LEGAL PRECEDENT
FECA provides that an injury or illness sustained by a Peace Corps volunteer when he or
she is outside the United States shall be presumed to have been sustained while in the
performance of duty and proximately caused by federal employment. This presumption may be
rebutted by evidence demonstrating that the injury or illness: (1) was caused by the volunteer’s
willful misconduct or intent to bring about injury to self or another; (2) was proximately caused
by the volunteer’s intoxication by alcohol or illegal drugs; (3) preexisted the period of service
abroad; or (4) manifested symptoms of, or consequent to, a preexisting congenital defect or
abnormality.4 If the presumption is rebutted by evidence showing that the injury or illness
preexisted the period of service abroad or manifested symptoms of, or consequent to, a
preexisting congenital defect or abnormality, the volunteer may still prove his or her claim and
be entitled to compensation if he or she submits substantial, probative and rationalized evidence
establishing that the injury or illness was proximately caused or materially aggravated,
accelerated or precipitated by factors or conditions of Peace Corps service.5
While Peace Corps volunteers are normally entitled to the presumption that an injury or
illness sustained while abroad is proximately related to federal employment, the presumption
will not arise if no injury or illness is diagnosed. Without a firm medical diagnosis, it is not
possible to ascertain whether the condition was preexisting or congenital.6
ANALYSIS
Appellant was a Peace Corps volunteer in Nicaragua for the period July 2010 to
May 12, 2012. She filed an occupational disease claim for a left knee injury sustained while
abroad. Drs. Aguilar, Barahona and Pro diagnosed left synovial plica and patellofemoral pain
syndromes. Initially, the presumption arises that appellant, as a Peace Corps volunteer, sustained
a work-related injury while in the performance of duty. As noted, this presumption is rebuttable.
The case record does not establish that appellant’s injury was a preexisting congenital defect or
the result of her willful misconduct, intent to bring about injury to herself or another or
intoxication by alcohol or illegal drugs; however, Drs. Aguilar, Barahona, Pro and Sandmeier
each indicated that she experienced left knee symptoms before her tour of duty commenced in
July 2010. Because the medical evidence notes that appellant’s condition preexisted her period
of service abroad, the presumption is rebutted. Therefore, to establish her claim, she must
submit substantial, probative and rationalized evidence proving that her injury was proximately
caused or materially aggravated, accelerated or precipitated by work factors.7
4

5 U.S.C. § 8142(c)(3); 20 C.F.R. § 10.730(a).

5

20 C.F.R. § 10.730(b)-(c).

6

S.S., 59 ECAB 152 (2007).

7

Charles S. Hamilton, 52 ECAB 110, 114-15 (2000).

3

Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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 In this case, the medical evidence does
not sufficiently establish that factors of appellant’s Peace Corps service caused or contributed to
a left knee injury. In March 21 and April 27, 2012 reports, Dr. Barahona opined that her
condition worsened due to the bus rides she took to attend 17 physical therapy appointments.
Similarly, Dr. Sandmeier stated in a May 14, 2012 report that appellant’s left knee pain was
aggravated by these lengthy bus rides. Neither Dr. Barahona nor Dr. Sandmeier, however,
pathophysiologically explained how walking on uneven terrain or riding a bus aggravated left
synovial plica and patellofemoral pain syndromes.9 In addition, Dr. Pro did not attribute the
injury to walking on uneven terrain or riding the bus to attend physical therapy sessions in a
July 19, 2011 report. Because he did not discuss the contributing employment factors described
by appellant, his report was of diminished probative value on the issue of causal relationship.10
The remaining medical evidence, namely Dr. Rios’ April 14, 2011 left knee MRI scan
report and Dr. Aguilar’s May 5 and June 27, 2011 reports, offered limited probative value on the
issue of causal relationship because none of these records addressed whether service in the Peace
Corps caused or contributed to a left knee condition.11 In the absence of rationalized medical
opinion evidence, appellant failed to meet her burden of proof.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained an occupational disease
while in the performance of duty.

8

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

9

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994). The Board also notes
Dr. Sandmeier’s conclusion that appellant’s symptoms did not originate from the knee.
10

See John W. Montoya, 54 ECAB 306 (2003).

11

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the July 31, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 4, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 07-622
Issued: June 13, 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 8, 2007 appellant filed a timely appeal from an October 4, 2006 Office of
Workers’ Compensation Programs’ nonmerit decision. Because more than one year has elapsed
between the last merit decision dated September 8, 2005 and the filing of this appeal on
January 8, 2007, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for
reconsideration of his claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
This is the second appeal before the Board. On December 23, 2004 appellant, a 55-yearold custodian, filed a traumatic injury claim, alleging that he injured his right hand in the
performance of duty. By decision dated February 14, 2005, the Office denied appellant’s claim.
In a September 8, 2005 decision, an Office hearing representative affirmed the February 14, 2005

decision. On February 9, 2006 the Board affirmed the Office’s decisions.1 The complete facts
of this case are set forth in the Board’s February 9, 2006 decision and are herein incorporated by
reference.
By letter dated August 16, 2006, appellant requested reconsideration, noting that he had
previously faxed new medical evidence to the Board during the period his appeal was pending.
Appellant did not resubmit any evidence to the Office in support of his request for
reconsideration.
By decision dated October 4, 2006, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by submitting
relevant and pertinent evidence not previously considered by the Office.2 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.3
ANALYSIS
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law. He did not advance a relevant legal argument not previously
considered by the Office. Appellant did not submit relevant and pertinent evidence not
previously considered by the Office. He did not submit any medical evidence in connection with
his August 16, 2006 reconsideration request. Thus, the request did not contain any new and
relevant evidence for the Office to review. Although appellant contended that he had submitted
additional evidence to the Board during the time his appeal was pending, he did not submit this
evidence to the Office.4 Any new evidence which supports appellant’s claim must be submitted
to the Office, together with a request for reconsideration.5 As appellant did not submit the new
evidence to the Office for review, the Board finds that the Office properly refused to reopen
appellant’s claim for reconsideration.

1

Docket No. 06-68 (issued February 9, 2006).

2

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

3

Howard A. Williams, 45 ECAB 853 (1994).

4

20 C.F.R. § 501.2(c).

5

20 C.F.R. § 10.606.

2

CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for
reconsideration on the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 4, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 13, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
DEPARTMENT OF THE INTERIOR, U.S.
BUREAU OF RECLAMATION,
Boulder City, CA, Employer
__________________________________________

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

Docket No. 08-1804
Issued: April 7, 2009

Case Submitted on the Record

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

JURISDICTION
On June 10, 2008 appellant filed a timely appeal from a May 22, 2008 decision of the
Office of Workers’ Compensation Programs granting a schedule award for two percent right
lower extremity impairment. 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 two percent permanent impairment of his
right lower extremity, for which he received a schedule award.
FACTUAL HISTORY
On August 8, 2007 appellant injured his right knee at work. He claimed that he kneeled
on false floor tiles to adjust a computer rack shelf and afterward was unable to stand or straighten
his leg from the knee. On April 9, 2008 the Office accepted a right knee meniscus tear. On
September 19, 2007 appellant’s treating physician performed a diagnostic arthroscopy and an

arthroscopic medical meniscectomy to excise his torn medial meniscus. In an October 3, 2007
medical report, Dr. Michael Ravitch, a Board-certified orthopedic surgeon, advised that
appellant’s injury was related to his employment. He also opined that appellant’s knee was
stable, without evidence of ligamentous injury or deficiency and had a full range of motion in
flexion and extension.
On March 25, 2008 Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon,
conducted a second opinion examination. Physical examination revealed a 0 to 125 degree range
of motion in appellant’s right knee and a 0 to 135 degree range of motion in his left knee.
Further, circumferential measurements showed a difference of one centimeter of the right thigh.
Dr. Swartz diagnosed appellant with status post partial medial meniscectomy for a medial
meniscus tear, finding sufficient evidence that the injury was related to his work. She contended
that appellant did not continue to suffer residuals of the injury, noting that he was off work for
approximately one month but was currently working regular duty.
Appellant’s case was referred to an Office medical adviser for a determination of any
impairment. On April 18, 2008 the medical adviser summarized appellant’s treatment history,
noting that Dr. Swartz found that appellant’s right knee had a demonstrated range of motion of
0 to 125 degrees with one centimeter of right thigh atrophy. Referring to Table 17-33 at page
546 of the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides) (5th ed. 2001), the medical adviser concluded that appellant had a two percent
impairment of the right lower extremity due to residuals from the partial medial meniscectomy.
He also found that the date of maximum medical improvement was March 25, 2008, the date of
Dr. Swartz’ examination.
On May 14, 2008 appellant filed a claim for a schedule award. In a decision dated
May 22, 2008, the Office granted a schedule award for two percent permanent impairment to
appellant’s right lower extremity, with March 25, 2008 as the date of maximum medical
improvement.
On appeal, appellant argues that the date of maximum medical improvement should be
October 12, 2007, the date of his last postoperative appointment.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 and its implementing
regulations2 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.
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

1

5 U.S.C. §§ 801-8193.

2

20 C.F.R. § 10.404.

2

stands applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.3
For lower extremity impairments due to meniscectomies or ligament injuries involving
the knees, Table 17-1, page 525 of the A.M.A., Guides directs the clinician to utilize section
17.2j, beginning at page 545, as the appropriate method of impairment assessment.4 Section
17.2j, entitled Diagnosis-Based Estimates, instructs the clinician to assess the impairment using
the criteria in Table 17-33 at page 546, entitled Impairment Estimates for Certain Lower
Extremity Impairments.5 According to Table 17-33, a partial medial meniscectomy is equivalent
to a two percent impairment of the lower extremity.6
The A.M.A., Guides provide for three separate methods for calculating the impairment of
an individual: anatomic, functional and diagnosis based.7 The evaluating physician must
determine which method best describes the impairment of a specific individual based on patient
history and physical examination.8 When uncertain about which method to use, the evaluator
should calculate the impairment using different alternatives and choose the method or
combinations of methods that gives the clinically accurate impairment rating.9 If more than one
method can be used, the method that provides the higher impairment rating should be adopted.10
ANALYSIS
The Office accepted the case for a tear of the meniscus of the right knee. Following an
examination by Dr. Swartz, an Office medical adviser reviewed the record to rate permanent
impairment using the A.M.A., Guides. The Board notes that Dr. Swartz did not provide an
impairment rating utilizing the A.M.A., Guides. In an April 18, 2008 report, the Office medical
adviser referred to Table 17-33 of the A.M.A., Guides,11 determining that appellant had a two
percent impairment of the lower extremity due to his partial medial meniscectomy. He also
noted that appellant had a one centimeter atrophy of the right thigh. According to Table 17-6 of
the A.M.A., Guides, using the anatomic method of measurement, a one centimeter atrophy of the
thigh allows a range of three to eight percent impairment of the lower extremity.12
3

Id.

4

A.M.A., Guides 525.

5

Id. at 545.

6

Id. at 546.

7

Id. at 525.

8

Id. at 548, 555.

9

Id. at 526, 555.

10

Id. at 527.

11

Id. at 546.

12

Id. at 530.

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As noted, if more than one impairment method can be used for rating permanent
impairment, the method that provides the higher impairment rating should be adopted.13 It is the
responsibility of the evaluating physician to explain why a particular method was chosen.14
Here, the Office medical adviser used the diagnostic-based estimate, resulting in two percent
impairment. However, the anatomic method allows from three to eight percent impairment of a
lower extremity due to atrophy.15 He did not explain the reason for selecting the diagnostic
method and the Board therefore finds that his opinion is insufficient to establish the degree of
appellant’s permanent impairment.16 The case will be remanded to the Office to seek
clarification from the Office medical adviser regarding appellant’s permanent impairment.
The Board notes that, on appeal, appellant argues that the date of maximum medical
improvement should be October 12, 2007, the date of his last postoperative appointment.
Maximum medical improvement “means that the physical condition of the injured member of the
body has stabilized and will not improve further.”17 The determination of whether maximum
medical improvement has been reached is based on the probative medical evidence of record and
is usually considered to be the date of the evaluation which is accepted as definitive by the
Office.18
The record does not contain any medical evidence of an October 12, 2007 postoperative
appointment and there is no probative evidence to support maximum medical improvement on
this date. In determining maximum medical improvement, the Office properly used the
March 25, 2008 date of the second opinion examination and report of Dr. Swartz. In this report,
she advised that appellant was not suffering from any residuals of his injury. The Office medical
adviser properly used March 25, 2008 as the date of maximum medical improvement in his
evaluation determining appellant’s permanent impairment.
CONCLUSION
The Board finds that this case is not in posture for a decision and will be remanded for
further development of the medical evidence. After such further development as the Office
deems necessary, it should issue an appropriate merit decision.
13

Id. at 526.

14

Id. See also P.C., 58 ECAB___ (Docket No. 07-410, issued May 31, 2007).

15

Table 17-2, the cross-usage chart, precludes combining a diagnosis based impairment estimate of the lower
extremity with a muscle atrophy rating. See supra note 4 at 526.
16

See James R. Hill, Sr., 57 ECAB 583 (2006) (where the Board remanded the case for clarification from the
Office medical adviser as to the reason for choosing one rating method over another. The adviser determined that
appellant had two percent impairment of his lower extremity based on the diagnostic-based rating for a medial
meniscectomy. The record reflected that appellant also had a one centimeter atrophy of his thigh, which could result
in a three to eight percent impairment of the lower extremity using the anatomic method of measurement).
17

Marie J. Born, 27 ECAB 623 (1976), petition for recon., denied, 28 ECAB 89 (1976).

18

Mark Holloway, 55 ECAB 321 (2004). See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3(a) (June 2003).

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ORDER
IT IS HEREBY ORDERED THAT the May 22, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this opinion.
Issued: April 7, 2009
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.B., Appellant
and
U.S. POSTAL SERVICE, TEMPLE HILLS
POST OFFICE, Temple Hills, MD, Employer
__________________________________________

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

Docket No. 16-0060
Issued: February 2, 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 October 13, 2015 appellant filed a timely appeal from an August 14, 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 over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment to a scheduled member.
FACTUAL HISTORY
On December 9, 2005 appellant, then a 45-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 21, 2005 she injured her right shoulder carrying a

1

5 U.S.C. § 8101 et seq.

heavy satchel. OWCP accepted the claim for a sprain of the right shoulder and upper arm, a
sprain of the right rotator cuff, a right lipoma, and a right localized superficial mass or lump.
On September 18, 2007 appellant underwent repair of a torn right rotator cuff. She
underwent a second shoulder surgery on March 9, 2009.
On December 19, 2014 appellant filed a claim for a schedule award (Form CA-1). By
letter dated January 8, 2015, OWCP requested that she submit an impairment evaluation from
her attending physician indicating whether she had reached maximum medical improvement and
providing the extent of any permanent impairment in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). It allotted appellant 30 days to submit the requested medical evidence. Appellant did
not respond within the time allotted.
By decision dated February 23, 2015, OWCP denied appellant’s claim for a schedule
award as she had failed to submit any medical evidence supporting a permanent impairment of a
scheduled member or function.
In a March 3, 2015 duty status report, a physician found that appellant had reduced
motion and pain, diagnosed right shoulder strain, and listed work restrictions. In a May 5, 2015
duty status report, a physician diagnosed right shoulder sprain and tendinitis and provided
physical limitations.2
On May 18, 2015 appellant requested reconsideration.3 In an accompanying May 7, 2015
statement, she questioned the denial of her schedule award, noting that she carried mail for more
than 20 years and sustained a work injury. Appellant submitted a February 3, 2015 magnetic
resonance imaging (MRI) scan report of her right shoulder. The MRI scan report revealed severe
osteoarthritis of the glenohumeral joint, loose bodies, and a full-thickness or near full-thickness
tear in the supraspinatus tendon.
By decision dated August 14, 2015, OWCP denied modification of its February 23, 2015
decision. It found that appellant had not submitted an impairment evaluation in support of her
claim.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to an employee sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
2

The names of the physicians are not legible.

3

Appellant listed two OWCP file numbers on her request for reconsideration. However, OWCP considered the
evidence from the current file number xxxxxx054.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

2

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.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
Appellant has the burden under FECA to establish that she sustained a permanent
impairment of a scheduled member or function as a result of her employment injury entitling her
to a schedule award.8 Before the A.M.A., Guides can be utilized a description of impairment
must be obtained from her physician. In obtaining medical evidence required for a schedule
award, the evaluation made by the attending physician must include a description of the
impairment including, where applicable, the loss in degrees of active and passive motion of the
affected member or function, the amount of any atrophy or deformity, decrease in strength or
disturbance of sensation or other pertinent descriptions of the impairment. This description must
be in sufficient detail so that the claims examiner and others reviewing the file will be able to
clearly visualize the impairment with its resulting restrictions and limitations.9
ANALYSIS
OWCP accepted that appellant sustained a sprain of the right shoulder and upper arm, a
sprain of the right rotator cuff, a right lipoma, and a right localized superficial mass or lump due
to a November 21, 2005 employment injury. Appellant had surgery to repair a torn right rotator
cuff on September 18, 2007, and a subsequent shoulder surgery on March 9, 2009.
On December 19, 2014 appellant filed a claim for a schedule award, but did not submit
an impairment evaluation or other medical evidence establishing permanent impairment. She
has the burden of proof to submit medical evidence supporting that she has a permanent
impairment of a scheduled member or function of the body.10 Appellant provided 2015 duty
status reports finding that she had work limitations and a right shoulder MRI scan report.
Neither the duty status reports nor the MRI scan report addressed the relevant issue of whether
she has a permanent impairment of the right upper extremity. As noted, appellant must submit
an evaluation of an attending physician that includes a description of impairment that is in
sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations.11 Moreover, as the

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993).

9

D.M., Docket No. 11-775 (issued October 11, 2011); Peter C. Belkind, 56 ECAB 580 (2005).

10

See A.C., Docket No. 13-1408 (issued November 15, 2013); D.H., supra note 8.

11

See supra note 9.

3

authors of the duty status reports cannot be identified as physicians, they do not constitute
competent medical evidence and are of no probative value.12
Appellant failed to provide probative medical evidence establishing a permanent
impairment due to her accepted right shoulder condition and thus has not met her burden of
proof.13
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member.
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 2, 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

See I.M., Docket No. 15-1318 (issued December 10, 2015); Merton J. Sills, 39 ECAB 572 (1988).

13

See P.L., Docket No. 13-1592 (issued January 7, 2014).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, London, KY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1642
Issued: August 11, 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 June 22, 2009 appellant filed a timely appeal of an April 29, 2009 decision of the
Office of Workers’ Compensation Programs affirming the September 26, 2008 termination of his
compensation 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 benefits for his lumbar condition effective September 26, 2008.
FACTUAL HISTORY
On December 13, 2006 appellant, then a 58-year-old mail handler, filed a traumatic
injury claim alleging that on that date he injured his left hip after being hit by a hamper full of
mail. He stopped worked on January 5, 2007 and returned to light duty on February 5, 2007.

Appellant worked intermittently thereafter. The Office accepted his claim for aggravated lumbar
degenerative disc disease. It paid appellant appropriate compensation.
In a March 16, 2007 attending physician’s report, Dr. Richard Larson, Board-certified in
family medicine, noted that appellant had injured his back “some years ago” in a motor vehicle
accident that resulted in lumbar degenerative disc disease and L4-5 nerve root impingement. He
stated that appellant was treated for the accident at a Veterans Affairs (VA) hospital. Dr. Larson
noted that appellant was injured at work on two occasions. He diagnosed degenerative disc
disease with left radiculopathy, lumbar spine chronic back pain and multiple back injuries.
Dr. Larson found that appellant was partially disabled from January 5 to February 5, 2007 and
totally disabled since March 5, 2007. He advised that appellant was unable to resume any form
of work. In April 11 and July 23, 2007 reports, Dr. Larson reiterated that appellant was
permanently disabled.
In an April 2, 2007 statement, appellant advised that he was injured on November 1, 2006
when “nerves burnt in his back at the VA Hospital.” On November 29, 2006 he was hit in the
back by an all-purpose container (APC) full of mail, but he did not stop work.1 Appellant
reported being struck on the front left side of his hip on December 13, 2006 by a hamper of mail.
He submitted additional reports from Dr. Larson.
On November 20, 2007 the Office referred appellant with a statement of accepted facts to
Dr. Richard Sheridan, a Board-certified orthopedic surgeon, for a second opinion evaluation. In
a January 28, 2008 report, Dr. Sheridan examined appellant’s lumbar spine and found normal
sitting and standing stations and no abnormal rotation or flexion. He also noted that appellant
walked with a left leg limp. Upon examination of the lower extremities, Dr. Sheridan found that
supine straight leg raising signs elicited complaints of low back pain on the respective sides. He
also found full motion of the hip and no evidence of alopecia or pedal edema. Dr. Sheridan
reviewed appellant’s lumbar spine x-ray from April 13, 2007 that revealed broad left paracentral
disc protrusion at L5-S1. He opined that there were no objective findings to support residuals
from the accepted medical condition which had resolved without residuals. Dr. Sheridan stated
that appellant’s symptoms were indicative of a temporary aggravation that had subsided. He
advised that there were no objective findings to support disability from the compensable injury
and that appellant was able to perform his regular duties as a mail handler with respect to the
accepted condition. Dr. Sheridan opined that there was no need for further treatment of the
accepted injury.
In a March 26, 2008 duty status report, Dr. Larson found muscle spasm and pain to the
left hip, upper thigh and left buttock. He found that appellant had lost 90 percent range of
motion of his lumbosacral spine and advised that appellant could not perform his job even with
restrictions. On June 3, 2008 Dr. Larson opined that appellant’s upcoming consultation with an

1

Appellant alleges that he filed a traumatic injury claim for the November 29, 2006 incident. However, the
record contains no evidence pertaining to any such claim.

2

independent medical examiner, an orthopedist, was inappropriate as appellant had a neurologic,
muscular and soft tissue problem, not an orthopedic problem.2
On May 13, 2008 the Office referred appellant with a statement of accepted facts to
Dr. Edward Kahn, a Board-certified orthopedic surgeon, for a referee examination to resolve the
conflict in medical opinion between Drs. Larson and Sheridan regarding appellant’s work-related
residuals and disability.
In a July 3, 2008 report, Dr. Kahn provided a detailed summary of appellant’s injury and
medical treatment. He noted that appellant was struck by a container of mail while at work on
November 29 and December 13, 2006. Dr. Kahn also noted that appellant reported being
involved in a motor vehicle accident in May 2004 from which he developed low back pain and
left leg pain that were essentially the same as he currently experienced except worse. Appellant
reported that he was treated for a motor vehicle accident in June 2004 at the VA Hospital and
continued to be treated for chronic pain, including epidural and facet joint injections. Dr. Kahn
noted that appellant’s low back pain preceded his work-related injury. He noted that appellant
complained of low back pain localized primarily to the left buttock and front and back thigh pain
that tingled into his left foot. Upon examination, Dr. Kahn found that appellant walked with an
exaggerated limp using a cane and could not heel or toe walk secondary to complaints of pain.
Appellant’s back was straight with normal lumbar lordosis, but that palpation elicited pain out of
proportion to the amount of pressure applied to the skin. Palpation did not reveal any muscle
spasm. Dr. Kahn reported that applied axial pressure elicited loud complaints of pain localized
to the low back, but that during the examination appellant was able to twist around several times
to show exactly where the back pain was located. Manual muscle testing of dorsiflexors and
plantar flexors of the ankle were normal.
Dr. Kahn reviewed the x-rays of record and found that disc spaces were generally well
maintained with no instability or fractures. A lumbar spine magnetic resonance imaging (MRI)
scan from May 13, 2007 showed mild degeneration of the L5-S1 disc with facet arthropathy at
L5-S1 and some narrowing of neural foramen on the left side. A repeat MRI scan dated April 7,
2008 showed mild degeneration of L5-S1 disc and some narrowing of neural foramen on the left
side secondary to facet overgrowth. Dr. Kahn diagnosed lumbar sprain. He advised that neither
of the accepted work incidents caused a new onset of pain but an exacerbation of a preexisting
problem from the May 2004 motor vehicle accident. Dr. Kahn noted signs of symptom
magnification and an inconsistent physical examination with grossly positive Waddell signs.
While appellant had some degree of pain, it was difficult to determine what was real. The MRI
scans were primarily degenerative with no acute processes occurring and did not correlate with
appellant’s subjective complaints. Dr. Kahn advised that there were no objective findings to
support residuals from appellant’s accepted condition as his complaints related to preexisting
problems following the May 2004 motor vehicle accident. He found no evidence of ongoing
injury as a result of the November 29 or December 13, 2006 incidents at work. Dr. Kahn
advised that complaints related to the motor vehicle accident should have been resolved by this
time. He determined that appellant’s work capacity was unsupported by objective findings as his
psychosocial overlay clouded whether he could return to work. Dr. Kahn stated that a functional
2

Dr. Larson retired on June 13, 2008. Dr. Shelley Stanko, Board-certified in family medicine, became his new
treating physician beginning August 2008.

3

capacity evaluation would not be beneficial as it would find the same inconsistencies making it
impossible to determine appellant’s actual work capacity. He concluded that there were no
residuals of either the November or December 2006 injuries. Appellant’s ongoing complaints
were based on the 2004 motor vehicle accident injury for which he recommended continued pain
treatment and psychological counseling. Ongoing medical treatment for the accepted injury was
not necessary.
On August 12, 2008 the Office issued a notice of proposed termination of compensation
benefits, finding that the weight of medical evidence, resting with Dr. Kahn, established that the
accepted medical condition had resolved without the need for additional medical treatment.
In an August 12, 2008 duty status report, Dr. Stanko diagnosed degenerative disc disease
with radiculopathy. She determined that appellant was not able to work. In a work status report,
Dr. Stanko noted that appellant was excused from work indefinitely due to his work-related
injury.
On August 28, 2008 appellant disagreed with the proposed termination. He noted that the
2004 motor vehicle accident occurred two and a half years prior to the November 2006 work
injury at which time his problems had stabilized allowing him to perform his usual job.
Appellant also noted continuing treatment at the VA Hospital for pain but never sought treatment
there for his work injuries. He objected to the manner in which the second opinion and referee
examinations were conducted.
In a September 26, 2008 decision, the Office terminated appellant’s compensation
benefits effective that date finding that the report of Dr. Kahn represented the weight of medical
opinion.
On October 9, 2008 appellant requested a review of the written record. He objected to
Dr. Kahn being considered the weight of medical opinion, asserting that he had not been
properly examined. Appellant submitted reports from Dr. Stanko.
In an April 29, 2009 decision, an Office hearing representative affirmed the
September 26, 2008 decision, finding the weight of the medical evidence properly rested with
Dr. Kahn.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 After it has determined that an employee has disability
causally related to his federal employment, the Office may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5 The right to medical benefits for
3

Id.; Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

4

Vivien L. Minor, 37 ECAB 541 (1986).

5

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

4

an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, the Office must establish that the claimant no
longer has residuals of an employment-related condition, which requires further medical
treatment.6
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.7 When a case is referred to an
impartial medical specialist for the purpose of resolving a conflict in medical opinion, the
opinion of such specialist, if sufficiently well rationalized and based on a proper background,
must be given special weight.8
ANALYSIS
The Office properly determined that a conflict in medical opinion arose as to whether
appellant had any disability or residuals due to his accepted lumbar degenerative disc disease.
Appellant’s treating physician, Dr. Larson, found that appellant was totally disabled from work
due to residuals of his December 13, 2006 injury. He determined that appellant had chronic
lumbar back pain, continued pain of the left hip, thigh and buttock and had lost 90 percent range
of motion of his lumbar spine. On the other hand, the second opinion physician, Dr. Sheridan,
advised that there were no objective findings to support residuals or disability from the accepted
injury. He noted that the aggravation of appellant’s condition had resolved without the need for
further treatment. The Office properly referred appellant to Dr. Kahn for an impartial medical
examination to resolve the conflict in medical opinion as to whether appellant had any continued
disability or residuals due to the accepted lumbar condition.9
In a July 3, 2008 report, Dr. Kahn examined appellant and determined that he had no
residuals from the accepted work injury. He reviewed the medical record, reported findings on
examination and reviewed diagnostic testing. Dr. Kahn’s examination revealed inconsistencies
and symptom magnification as appellant’s back was straight with normal lumbar lordosis but
regarding palpation of the back he complained of pain out of proportion to the amount of
pressure applied. During examination, appellant elicited loud complaints of pain when the
physician applied axial pressure but appellant was able to twist around several times during
examination to show where his back pain was located. Dr. Kahn noted that appellant walked
with an exaggerated limp using a cane. Although the x-rays of record revealed mild
degeneration of the L5-S1 disc, this finding did not correlate with appellant’s subjective
complaints as his disc spaces were generally well maintained with no instability or fractures.
Furthermore, Dr. Kahn found that work injury caused a temporary exacerbation of a preexisting
6

E.J., 59 ECAB ___ (Docket No. 08-1350, issued September 8, 2008).

7

B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009).

8

Y.A., 59 ECAB ___ (Docket No. 08-254, issued September 9, 2008).

9

See 5 U.S.C. § 8123(a) (section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a third physician
who shall make an examination).

5

condition from the May 2004 motor vehicle accident. There were no objective findings to
support residuals from appellant’s accepted work injury and his ongoing complaints were due to
his May 2004 injury. Dr. Kahn found that there was no evidence of acute injury as a result of the
December 13, 2006 work injury and that appellant’s incapacity to work was not due to residuals
of his accepted condition. Appellant’s ongoing symptoms and need for continued pain treatment
were due to the motor vehicle accident and not to residuals of the December 13, 2006 work
injury. Dr. Kahn’s findings were based on proper factual and medical history as he had a
statement of accepted facts and his report accurately summarized relevant medical evidence. He
found no basis on which to attribute a continuing condition or disability to the December 13,
2006 work injury.
The Board finds that Dr. Kahn’s opinion is sufficiently well rationalized and based upon
a proper factual background such that it is entitled to special weight10 and establishes that
residuals of the employee’s accepted conditions had resolved.
The Board also finds that medical evidence submitted by appellant after Dr. Kahn’s
report is insufficient to overcome the weight of his opinion or to create another conflict.
Appellant submitted reports dated August 12, 2008 from Dr. Stanko that diagnosed degenerative
disc disease with radiculopathy and advised that appellant was indefinitely unable to work due to
his work-related injury. However, Dr. Stanko did not provide a reasoned or rationalized medical
opinion supporting that appellant had any continuing condition or disability causally related to
the accepted work injury.11 She did not attempt to explain the reasons any continuing condition
or disability would be causally related to the December 13, 2006 work injury that was accepted
for aggravated lumbar degenerative disc disease. Consequently these reports are insufficient to
overcome the report of Dr. Kahn or to create another conflict of medical opinion. Appellant did
not provide any other additional medical evidence supporting a continuing work-related
condition or disability.
For these reasons, the Office met its burden of proof to terminate appellant’s
compensation benefits effective September 26, 2008.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits for his lumbar condition effective September 26, 2008.

10

See Y.A., 59 ECAB ___ (Docket No. 08-254, issued September 9, 2008) (when a case is referred to an impartial
medical specialist for the purpose of resolving a conflict in medical opinion, the opinion of such specialist, if
sufficiently well rationalized and based on a proper background, must be given special weight).
11

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated April 29, 2009 and September 26, 2008 are affirmed.
Issued: August 11, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Bedford Park, IL, Employer
)
___________________________________________ )
D.J., Appellant

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

Docket No. 16-0965
Issued: October 5, 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 April 6, 2016 appellant filed a timely appeal of a March 24, 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 this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury
causally related to a May 15, 2015 employment incident.
FACTUAL HISTORY
On June 5, 2015 appellant, then a 52-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on May 15, 2015 she injured her left foot when she
stepped on a rock, which caused a painful lump in her left foot, in the performance of duty. She
1

5 U.S.C. § 8101 et seq.

did not initially stop work. The employing establishment indicated that appellant “never
mentioned walking on a rock prior to the initial reporting of the incident.” It was noted that she
“only mentioned from time to time that her foot was bothering her.”
In a June 5, 2015 statement, appellant indicated that, on or around May 15, 2015, she was
on her route when she stepped on a large rock. She advised that, a few days later, she noticed a
lump under her foot. Appellant related that it hurt the more she walked. She indicated that on
May 27, 2015 she went to the urgent care center and was placed off work as her foot was hurting
and swollen. Appellant noted that on June 5, 2015 the pain intensified the more she walked.
On May 26, 2015 Dr. Steven Lubera, an emergency medicine physician, treated appellant
for left foot pain and swelling.
By letter dated November 19, 2015, OWCP noted that appellant’s claim initially
appeared to be a minor injury that resulted in minimal or no lost time from work and was
administratively handled to allow a limited amount of medical payments. However, appellant’s
claim was now being reopened for formal adjudication. OWCP informed her of the type of
evidence needed to support her claim and afforded her 30 days to submit such evidence.
In a June 24, 2015 treatment note, Dr. Robert Sheffey, a podiatrist, noted that appellant
presented with complaints of pain in the left forefoot. He advised that she had stepped on a rock
while at work on May 5, 2015, shortly began experiencing pain, and noticed a lump on the
bottom of her foot which remained painful and swollen. Dr. Sheffey indicated that it became
more pronounced with activity. He related that appellant had been informed that she had plantar
fasciitis and was told to follow up with a physician. Dr. Sheffey explained that she tried ice and
heat with no alleviation of symptoms. On examination, appellant had pain on palpation at the
second metatarsophalangeal joint of the left foot, moderate pain on palpation of the second
interspace left, moderate discomfort on range of motion at the second metatarsophalangeal joint,
and edema at the plantar aspect of the left forefoot centrally located at the second metatarsal
phalangeal joint. Dr. Sheffey diagnosed enthesopathy, limb pain, and edema. He reviewed
x-rays and explained that appellant appeared to be suffering from capsulitis of the second
metatarsophalangeal joint of the left foot. Dr. Sheffey opined that her injury was consistent with
stepping on a rock. He noted that the pain was present since the first time of stepping on a rock
while at work. Dr. Sheffey placed appellant off work for four weeks.
In a July 25, 2015 treatment note, Dr. Sheffey reported that appellant presented for
continued treatment for capsulitis of the second metatarsophalangeal joint of the left foot.
Appellant continued to have discomfort, but was much improved. Dr. Sheffey diagnosed
dermatophytosis of nail, plantar fascial fibromatosis, enthesopathy, plantar nerve lesion, limb
pain, edema, hammer toe, and hallux valgus. He administered ultrasound therapy and electrical
stimulation to the left foot along with strapping bilaterally to off-load metatarsal heads.
Dr. Sheffey applied an “Unnas boot compressive wrap” to control swelling. He indicated that
appellant would return to work on Monday and that she could remove the wrappings at that
point. Dr. Sheffey explained that, if her condition did not resolve, a bunionectomy and
hammertoe correction might be needed.

2

On November 25, 2015 Dr. Sheffey noted, in an attending physician’s report the history
of appellant stepping on a rock and sustaining an injury to her left foot. He checked the box
marked “yes” in response to whether she had a history of “concurrent or preexisting injury or
disease” and described the injury as “hallux valgus and hammer toes.” Dr. Sheffey advised that
x-rays revealed capsulitis with hallux valgus and hammer toes. He diagnosed capsulitis on the
second metatarsophalangeal joint. Dr. Sheffey checked the box marked “yes” in response to
whether he believed that the condition was caused or aggravated by an employment activity. He
explained that the second metatarsophalangeal joint was injured and remained painful due to the
work incident and appellant remained disabled. Dr. Sheffey also completed a duty status report
of the same date advising that she remained disabled for work.
Appellant explained, in a November 24, 2015 statement that, on May 12, 2015 while
delivering mail, she stepped on a large piece of broken concrete, that her foot started to hurt, but
that she kept working. She noted that a few days later she noticed a lump in the middle of the
foot on the bottom which was very painful and inflamed. Appellant advised that she began
treatment with Dr. Sheffey. She also noted that she had been disciplined for failing to timely
notify her supervisor of the incident on May 12, 2015.2
By decision dated December 28, 2015, OWCP denied appellant’s claim finding that the
medical evidence failed to establish an injury causally related to the accepted May 15, 2015 work
incident.
On January 6, 2016 appellant requested reconsideration. She indicated that her claim was
denied because she had a preexisting condition. Appellant advised that she was attaching new
medical evidence that would clarify the details of her condition.
In a January 6, 2016 report, Dr. Sheffey explained that he was providing rationale
regarding appellant’s proposed surgery. He indicated that she had severe capsulitis of the second
metatarsophalangeal joint. Dr. Sheffey noted that appellant had underlying progressive
deformities that include a hallux valgus deformity and a hammer digit deformity of the second
digit. He explained that either of these two “together or isolated may cause capsulitis or as in
[appellant’s] case, prevent a capsulitis from healing.” Dr. Sheffey further noted that there was a
high percentage of the population with one or two of the deformities and the “vast percentage
never experience the condition of capsulitis. Prior to [appellant’s] injury she was not
experiencing capsulitis.” Dr. Sheffey noted:
“In my opinion [appellant] suffered an injury to the second metatarsophalangeal
joint causing capsulitis or an inflammation of the second metatarsophalangeal
joint. Due to the fact that she has underlying deformities of hammer digit
syndrome and hallux valgus there is significant pressure at the second
metatarsophalangeal joint, which is preventing this condition from healing. Were
it not for these underlying deformities I am confident that conservative treatment
2

On November 21, 2015 appellant claimed a recurrence of disability on November 18, 2015 due to her claimed
May 12, 2015 injury. She advised that she stopped work on November 21, 2015. In a December 8, 2015 letter,
OWCP advised appellant that she had not experienced a recurrence under FECA because her initial claim had not
been accepted.

3

would have ultimately been successful in resolving [appellant’s] symptoms.
Conservative treatment on [appellant] has been exhausted and unfortunately, she
continues to experience pain that in my opinion is due [to] the fact that these
underlying deformities are impeding her ability [to] heal due to increased pressure
at the second metatarsophalangeal joint. At this point in order to resolve [her]
painful capsulitis which, was initiated by her work injury … I believe [that] the
deformities need to be corrected to decrease the pressure at the second
metatarsophalangeal joint and allow her foot to heal. Failure to surgically correct
these deformities [will] likely result in continued pain for this patient.”
In a February 24, 2016 statement of accepted facts (SOAF), OWCP noted that appellant
continued to work until July 6, 2015. Appellant then worked one hour per day from July 6 to 15,
2015 and four hours per day from July 20, 2015. Thereafter, she returned to work full duty on
July 28, 2015 and stopped work again on November 21, 2015.
On February 24, 2016 OWCP requested that an OWCP medical adviser review the record
and the SOAF and thereafter address whether appellant’s condition of capsulitis of the second
metatarsophalangeal joint was work related. It also requested an opinion with regard to the
requested surgery from Dr. Sheffey. OWCP advised that the claim had not been accepted.
In a March 7, 2016 report, OWCP medical adviser noted appellant’s history of injury and
treatment along with the SOAF. He found that the proposed surgery to correct the deformities
was causally related to the accepted medical condition as there was a temporal relationship
between the industrial injury of May 15, 2015 and the proposed surgery. The medical adviser
found however that the treating physician had failed to support his diagnosis of hammertoe
syndrome with evidence of radiographs demonstrating the degree of hammertoe and had failed to
explain the conservative treatment he had ordered. He further opined that there was no medical
evidence to support capsulitis of the left foot. The medical adviser explained that capsulitis was
normally diagnosed with a magnetic resonance imaging (MRI) scan of the foot, which was not
present in this case. He related that the treating physician had not explained what imaging
modality was used to diagnose severe capsulitis of the foot. The medical adviser concluded that
the medical evidence was insufficient to support that the capsulitis of the left foot was medically
connected to the injury of May 15, 2015.
By decision dated March 24, 2016, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish 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 timely filed within the
applicable time limitation period of FECA,3 and that an injury was sustained in the performance

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

of duty.4 These are the essential elements of each compensation claim, regardless of whether the
claim is predicated upon a traumatic injury, or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.6 In some traumatic injury cases, this
component can be established by an employee’s uncontroverted statement on the Form CA-1.7
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.9
ANALYSIS
Appellant has alleged that on May 15, 2015 she sustained an injury to her left foot in the
performance of duty. The evidence supports that the claimed event occurred. Therefore, the
Board finds that appellant stepped on a rock at work as alleged.
However, with regard to the medical evidence, the Board finds the case not in posture for
decision. Dr. Sheffey explained that appellant had severe capsulitis of the second metatarsophalangeal joint that required surgery. He determined that she had underlying progressive
deformities to include a hallux valgus deformity and a hammer digit deformity of the second
digit and opined that either of these two together or isolated could cause capsulitis or prevent a
capsulitis from healing. Dr. Sheffey pointed out that prior to appellant’s injury, she had not
experienced capsulitis. He opined that she had injured the second metatarsophalangeal joint
causing capsulitis or an inflammation of the second metatarsophalangeal joint. Due to the fact
that appellant also had preexisting underlying deformities of hammer digit syndrome and hallux
valgus, there was significant pressure at the second metatarsophalangeal joint preventing the
condition from healing. Dr. Sheffey explained that conservative treatment had been exhausted
and that to resolve her painful capsulitis, surgery was indicated to decrease the pressure at the
second metatarsophalangeal joint and allow appellant’s foot to heal.
4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

6

Julie B. Hawkins, 38 ECAB 393, 396 (1987).

7

John J. Carlone, 41 ECAB 354 (1989).

8

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

9

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

5

On February 24, 2016 OWCP asked its medical adviser to review the matter. In a
March 7, 2016 report, the medical adviser noted appellant’s history of injury and treatment along
with the SOAF. Regarding the proposed surgery, he explained that the proposed surgery, to
correct the deformities, was causally related to the accepted medical condition as there was a
temporal relationship between the industrial injury of May 15, 2015 and the proposed surgery.
The medical adviser found, however, that the proposed surgery to correct the deformities was not
medically necessary as there was a lack of x-rays showing the degree of hammertoe or evidence
showing failure of conservative management to justify surgery. In response to whether the
capsulitis of the left foot was medically connected to the injury of May 15, 2015 he opined that
there was no medical evidence to support capsulitis of the left foot. The medical adviser noted
that an MRI scan was normally used to diagnose capsulitis, but there was no MRI scan present in
this case. He related that it was unclear to him how the condition had been diagnosed as the
treating physician had not identified the imaging method he had used. The medical adviser
concluded that the medical evidence was therefore insufficient to support that the capsulitis of
the left foot was medically connected to the injury of May 15, 2015.
The Board finds that the medical adviser’s report is contradictory. Further, medical
development is needed with regard to whether appellant has a diagnosed condition that was
caused or aggravated by stepping on a rock on May 15, 2015. The medical adviser opined “yes”
that the proposed surgery was causally related to an accepted medical condition, but “no” in
response to whether the proposed surgery to correct the deformities was medically necessary.
He also opined that the diagnosed adhesive capsulitis was not due to the May 15, 2015 work
incident finding that there was no medical evidence to support that appellant had that condition
due to a lack of diagnostic testing. The Board notes that, contrary to the medical adviser’s
statement, no condition has been accepted by OWCP as employment related. Thus, the medical
adviser’s opinion is of limited probative value as it is not based on an accurate factual
background.10 Finally, he did not clearly explain why he suggested that surgery was warranted
for a condition he deemed to be accepted while later opining that left foot capsulitis was not
causally related to the work incident. Therefore, the Board finds that the case must be remanded
for further development of the medical evidence and a reasoned opinion regarding whether
appellant has a work-related condition to the employment incident and, if so, whether any such
conditions necessitate surgery.
Once OWCP undertakes development of the record, it has the responsibility to obtain an
evaluation, which will resolve the issue involved in the case.11 The case is remanded to OWCP
to refer appellant to an appropriate Board-certified specialist for a rationalized medical opinion
on whether the May 15, 2015 work incident caused or aggravated a diagnosed left foot condition.
Following 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.
10

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history have little probative value).
11

See Robert Kirby, 51 ECAB 474, 476 (2000); Mae Z. Hackett, 34 ECAB 1421 (1983).

6

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and remanded.
Issued: October 5, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, PROCESSING &
)
DISTRIBUTION CENTER, West Palm Beach, FL, )
Employer
)
____________________________________________ )
J.K., Appellant

Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 14-171
Issued: April 7, 2014

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 October 30, 2013 appellant, through his representative, filed a timely appeal from an
August 13, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an employment-related recurrence of disability
beginning July 25, 2012.
FACTUAL HISTORY
On July 29, 2009 appellant, then a 54-year-old mail handler, filed a traumatic injury
claim alleging that on July 22, 2009 he sustained an injury to his left hand when it got caught
1

5 U.S.C. § 8101 et seq.

between a dumper and a pallet, File No. xxxxxx969. OWCP accepted the claim for a crush
injury to the left hand. Appellant stopped work on July 23, 2009 and returned to work for four
hours per day on August 21, 2009.
He resumed his regular employment duties on
September 11, 2009.
On July 9, 2012 appellant filed an occupational disease claim alleging that he sustained
carpal tunnel syndrome causally related to factors of his federal employment. OWCP accepted
the claim, assigned subsidiary File No. xxxxxx018, for left carpal tunnel syndrome.
In a work restriction evaluation dated July 25, 2012, Dr. Ramon A. Berenguer, an
internist, diagnosed a crush injury to the left hand and a collateral ligament injury. He advised
that appellant should remain off work for five weeks.
An August 8, 2012 nerve conduction velocity (NCV) study revealed bilateral carpal
tunnel syndrome, C8 to T1 radiculopathy and double crush syndrome.
On August 15, 2012 appellant filed a claim for compensation from July 25 to August 10,
2012 under File No. xxxxxx969.
By letter dated August 21, 2012, OWCP requested additional factual and medical
information regarding appellant’s alleged disability beginning July 25, 2012.
In a narrative report dated July 25, 2012, received by OWCP on August 21, 2012,
Dr. Berenguer discussed appellant’s history of a crush injury to his left hand on July 22, 2009
when it was “pinned between the pallet, dumper and conveyor belt. It took a forklift to remove
the pressure so his hand could be released. Following the accident, [he] experienced
excruciating pain, swelling and numbness in the left hand.” Dr. Berenguer diagnosed a left hand
crush injury and left ring and middle finger proximal interphalangeal (PIP) joint and collateral
ligament injuries.
In a report dated August 17, 2012, Dr. Berenguer noted that appellant was status post a
left hand crush injury with continued “weakness of the hand and fingers with a ‘clicking’ of the
wrist when he flexes and extends it. [Appellant] continues to have almost constant pain of the
hand and fingers.”2 On examination, Dr. Berenguer found muscle atrophy of the hand and digits
with pain in the PIP area of the third and fourth fingers and decreased sensation of the dorsum,
palm and fingers. He diagnosed a left hand crush injury, left ring and middle finger PIP
collateral ligament injury, possible nerve damage of the left hand and carpal tunnel syndrome.
Dr. Berenguer found that appellant should remain off work and referred him for a magnetic
resonance imaging (MRI) scan study.3
2

In a form report dated August 17, 2012, Dr. Berenguer diagnosed a left hand crush injury and a PIP joint
collateral injury. He found that appellant should remain off work for five weeks. In another form report dated
August 17, 2012, Dr. Berenguer diagnosed a left hand crush injury and left middle and ring finger collateral
ligament injury. He checked “yes” that the condition was caused or aggravated by employment and found that
appellant was totally disabled from July 24 to September 21, 2012.
3

A September 10, 2012 MRI scan study of the left wrist showed a possible bone contusion of the ulnar styloid

tip.

2

On September 24, 2012 appellant filed a recurrence of disability claim beginning July 24,
2012 causally related to his July 22, 2009 employment injury. He related that he had sought
medical treatment and physical therapy intermittently since 2009.
In a report dated September 12, 2012, Dr. Berenguer discussed appellant’s history of a
left hand crush injury on July 22, 2009 when his hand was pinned between a mail dumper and a
pallet.4 He related that a July 27, 2012 NCV study revealed carpal tunnel syndrome, a crush
injury and C8-T1 radiculopathy. Dr. Berenguer diagnosed a left hand crush injury and left
middle and ring finger PIP from a collateral ligament injury. He stated, “The event of injury is
well documented and corresponds to the complaints by [appellant] and the physical findings.
[Appellant] exhibits the inability to use his left hand to a capacity which would be needed in a
position requiring grasping or gripping any object.”
On October 3, 2012 OWCP referred appellant to Dr. David B. Lotman, a Board-certified
orthopedic surgeon, for a second opinion examination regarding the extent of his current
condition.
On September 20, 2012 Dr. Samy F. Bishai, a Board-certified orthopedic surgeon,
discussed appellant’s history of a July 22, 2009 crush injury to his left hand. He noted that
appellant “subsequently recovered well enough to work and he worked for some time until
recently on July 24, 2012 he was unable to work due to an increase in the amount of pain that he
experiences in his left hand, weakness of the hand and numbness of the left hand.” Dr. Bishai
determined that an NCV study revealed bilateral carpal tunnel syndrome. He diagnosed a crush
injury to the left hand and a PIP collateral ligament injury to the left ring and long finger.
By decision dated October 12, 2012, OWCP found that appellant had not established that
he sustained a recurrence of disability beginning July 25, 2012 causally related to his July 22,
2009 employment injury.
In a statement dated October 1, 2012, received by OWCP on February 13, 2013,
appellant described his work injury. He related that, after the pallet pinned his hand between the
dumper and belt, he hit the emergency stop and screamed in pain. It required a forklift to “take
the weight off of the dumper so the pallet could be loosened and my hand removed.” Appellant
was taken by ambulance to the hospital.
On October 17, 2012 appellant requested a telephone hearing before an OWCP hearing
representative.
In a report dated November 1, 2012, Dr. Lotman diagnosed a resolved crush injury to the
left hand and wrist and left carpal tunnel syndrome. He found that appellant had no “significant
work-related disability other than some restricted wrist motion” due to the July 22, 2009 injury.

4

In form reports dated August 29, 2012, Dr. Berenguer diagnosed a left hand crush injury and collateral ligament
injury of the left middle and ring finger at the PIP joint. He checked “yes” that the condition was employment
related and found that appellant was totally disabled from July 24 to September 21, 2012.

3

A telephone hearing was held on February 13, 2013. Appellant related that after he
returned to work in 2009 following his injury, he performed his usual work duties until
July 2012. He experienced continual pain and developed left carpal tunnel syndrome. Appellant
stopped work due to both his crush injury and left carpal tunnel syndrome and requested
compensation under both file numbers.
On March 13, 2013 Dr. Bishai reviewed Dr. Lotman’s report and disagreed with his
findings. Contrary to Dr. Lotman, Dr. Bishai stated that appellant’s injury was not minor but
instead a significant crush injury with a collateral ligament injury of the left ring and long finger
at the PIP joint. He stated, “[Dr. Lotman] is even questioning the value of the electrodiagnostic
nerve condition studies that [appellant] has that showed positive findings.” Dr. Bishai opined
that appellant was “indeed disabled and he has difficulty using his hands the crush injury of his
left hand left him with residual findings and being that it is the dominant hand, this makes it very
difficult for him to use his hand….”
On May 15, 2013 Dr. Berenguer concurred with Dr. Bishai’s determination that appellant
sustained a serious crush injury. He found that appellant was unable to perform his employment
duties.
In a decision dated June 3, 2013, an OWCP hearing representative vacated the
October 12, 2012 decision. He determined that OWCP should double File No. xxxxxx018,
accepted for left carpal tunnel syndrome, into the current file number. The hearing
representative instructed OWCP to refer appellant for another second opinion examination to
determine if he was disabled due to either accepted employment injury beginning July 24, 2012.
On June 18, 2013 OWCP referred appellant to Dr. Peter J. Millheiser, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated July 22, 2013,
Dr. Millheiser reviewed the evidence of record and diagnosed post left hand contusion and crush
injury. On examination he found no left hand atrophy but left hand numbness. Dr. Millheiser
stated, “Tinel’s sign is equivocal. On doing Phalen’s test there is pain throughout the entire
anterior wrist.” He found that there was “no organic basis for the sensory findings and they do
not bear any relation to reality. Testing for carpal tunnel syndrome was equivocal. It is to be
noted that this was a mild contusion/crush injury of the hand and [appellant] was able to work for
a number of years following the incident.” Dr. Millheiser concluded that appellant could work
without restrictions.5
By decision dated August 13, 2013, OWCP determined that appellant had not established
a recurrence of disability beginning July 25, 2012 causally related to his July 22, 2009 work
injury.
On appeal appellant, through his representative, asserts that he continued to experience
problems due to his accepted employment injury.

5

The record contains progress reports dated July 17, 2013 from Dr. Berenguer and July 30, 2013 from Dr. Bishai.

4

LEGAL PRECEDENT
A “recurrence of disability” means an inability to work after an employee has returned to
work caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.6
A claimant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between his recurrence of disability and his employment
injury.7 This burden includes the necessity of furnishing medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disabling condition is causally related to employment factors and supports that conclusion with
sound medical reasoning.8
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.9 The implementing regulations state 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 OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. 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.10
ANALYSIS
OWCP accepted that appellant sustained a crush injury to his left hand on July 22, 2009.
It further accepted that he sustained left carpal tunnel syndrome due to factors of his federal
employment under File No. xxxxxx018. Following his July 22, 2009 employment injury,
appellant returned to work for four hours per day on August 21, 2009 and to his regular full-time
employment on September 11, 2009. He stopped work on July 25, 2012 and filed a claim for
compensation.
The Board finds that the case is not in posture for decision due to a conflict in medical
opinion. Dr. Berenguer and Dr. Bishai, appellant’s attending physicians, diagnosed a significant
crush injury to the left hand and a PIP collateral ligament injury of the left middle and ring
finger. The physicians opined that he was unable to work beginning July 25, 2012 due to
residuals of his employment injuries. Dr. Lotman, an OWCP referral physician, however, found
that appellant had no disability due to his July 22, 2009 work injury. Dr. Millheiser, another
6

20 C.F.R. § 10.5(x).

7

Carmen Gould, 50 ECAB 504 (1999).

8

Mary A. Ceglia, 55 ECAB 626 (2004).

9

5 U.S.C. § 8123(a).

10

20 C.F.R. § 10.321.

5

OWCP referral physician, found that appellant had no work restrictions as a result of either his
carpal tunnel syndrome or his left crush injury.
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.11 As a conflict exists between appellant’s
physicians, Dr. Berenguer and Bishai and OWCP referral physicians Dr. Lotman and
Dr. Millheiser, the case will be remanded for OWCP to refer him for an impartial medical
examination to determine whether he sustained a recurrence of disability beginning July 25, 2012
due to either his July 22, 2009 employment injury or his accepted left carpal tunnel syndrome.
Following such development as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 13, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: April 7, 2014
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

11

5 U.S.C. § 8123(a); see also R.C., 58 ECAB 238 (2006).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cape Coral, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-888
Issued: May 25, 2010

Case Submitted on the Record

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

JURISDICTION
On February 19, 2009 appellant timely appealed the January 22, 2009 merit decision of
the Office of Workers’ Compensation Programs, which denied her claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the schedule award
claim. Although appellant did not specifically request review, the Board also has jurisdiction
over the Office’s April 21, 2008 merit decision.
ISSUES
The issues are: (1) whether the Office properly declined to reimburse appellant for
certain medical expenses incurred between November 2001 and December 2004; and
(2) whether appellant is entitled to a schedule award for permanent impairment of the left lower
extremity.
FACTUAL HISTORY
This case was previously on appeal. Appellant, a 54-year-old rural carrier associate, was
involved in an employment-related motor vehicle accident (MVA) on February 2, 1996. Her
claim was initially accepted for cervical strain, left leg contusion and left wrist fracture.

Appellant resumed work following her February 2, 1996 injury. On March 31, 1998 the Office
expanded the claim to include panic disorder.1
Appellant stopped work on October 21, 2001. She was briefly hospitalized later that
same month for treatment of recurrent major depressive disorder with psychosis. Appellant filed
a claim for wage-loss compensation (Form CA-7) for the period October 21, 2001 through
October 2, 2002, which the Office denied. She also filed a separate occupational disease claim
with an October 22, 2001 date of injury, which was similarly denied (xxxxxx341). Appellant has
not returned to work since her October 2001 hospitalization.
When the case was previously on appeal, appellant sought reimbursement for various
medical expenses.2 On October 17, 2006 the Director, on behalf of the Office, moved to remand
the case so that the Office could combine appellant’s two claims and ascertain whether she had
timely requested reimbursement. Because the disputed medical bills were not part of the record
submitted on appeal, the Board was unable to properly adjudicate the medical reimbursement
issue, and therefore, it granted the Director’s motion.3
On remand, the Office again denied appellant’s request for reimbursement. However, the
Branch of Hearings & Review set aside the Office’s January 24, 2007 decision because the
Office had not attempted to obtain copies of appellant’s medical bills as it had indicated it would
in its October 17, 2006 motion to remand. In her January 18, 2008 decision, the hearing
representative directed the Office to fully comply with the Board’s November 1, 2006 order.
In an April 21, 2008 decision, the Office itemized 36 separate requests for
reimbursement, the majority of which were for services rendered during calendar year 2004. The
services included family practice office visits (9), prescription reimbursements (8), psychiatric
treatment (11), including two psychiatric office visits in March 2002, and several unspecified
office visits (8).4 The Office denied reimbursement for the claimed services on the basis that
there was no evidence indicating that appellant had timely requested reimbursement. In addition,
it noted that any psychiatric bills were denied because “we have not accepted a psychiatric
condition....”
On June 6, 2008 appellant filed a claim for an increased schedule award. She had
previously received an award for 30 percent impairment of the left upper extremity. In support
of her latest claim, appellant submitted a June 6, 2008 form report from Joseph P. Pagano, MD,
1

At the time, appellant was under the care of Dr. Jerry S. Kantor, a Board-certified psychiatrist. After her
employment-related MVA, appellant experienced panic attacks while driving her mail truck. She had been seeing
Dr. Kantor since August 15, 1996. In a March 9, 1998 report, Dr. Kantor indicated that appellant was receiving
treatment for post-traumatic stress disorder (PTSD), panic disorder, simple phobic disorder and early major
depressive disorder, all of which were related to her February 2, 1996 MVA. While the Office authorized
Dr. Kantor to treat appellant for panic disorder, it did not otherwise comment on his diagnoses of employmentrelated PTSD, simple phobic disorder and early major depressive disorder. The Office authorized psychotherapy for
only six months.
2

Docket No. 06-1133.

3

The Board’s November 1, 2006 order is incorporated herein by reference.

4

These nonspecific “office visit[s]” were with the Florida Clinical Practice Association, Inc.

2

who found 20 percent impairment of the left lower extremity ostensibly due hip, knee and ankle
pain.
Dr. H.P. Hogshead, a Board-certified orthopedic surgeon and district medical adviser
(DMA), reviewed the claim on June 16, 2008 and advised that the medical record did not contain
sufficient objective findings from which to base an evaluation of orthopedic impairment of the
left lower extremity. The DMA recommend a second opinion examination by an orthopedist.
By letter dated June 18, 2008, the Office advised appellant of the DMA’s finding. It
further indicated that it planned to schedule her for a second opinion medical examination.
Ultimately, the Office did not schedule appellant for a second opinion examination, but instead
issued a January 22, 2009 decision based on the existing evidence of record. It found that
appellant had not established entitlement to a schedule award in excess of the 30 percent left
upper extremity award she received on February 7, 2000.
LEGAL PRECEDENT -- ISSUE 1
An injured employee is entitled to receive all medical services, appliances or supplies
which a qualified physician prescribes or recommends and which the Office considers necessary
to treat the work-related injury.5 To be considered for payment, medical bills must be submitted
by the end of the calendar year after the year when the expense was incurred, or by the end of the
calendar year after the year when the Office first accepted the claim as compensable, whichever
is later.6
ANALYSIS -- ISSUE 1
The record includes several medical reimbursement forms (CA-915) dated March 12,
2008, which the Office received on April 22, 2008. From this information, the Office culled 36
unpaid medical expenditures ostensibly incurred between March 2002 and December 2004.7
According to it, not one of the 36 expenditures was timely filed. The Board notes, however, that
appellant timely filed invoices for office visits on November 13, 2001 and March 6, 2002. The
Office received both invoices (explanation of benefits) on December 19, 2002. While the abovenoted invoices were timely filed, the record does not clearly demonstrate that the medical
services appellant received on November 13, 2001 and March 6, 2002 were for the treatment of
her work-related injury. Both invoices simply note the doctor’s name and “office visit” as the
type of service rendered. There is no other information on the invoice/explanation of benefits
that related the particular service to either a specific medical diagnosis or appellant’s February 2,
1996 employment injury. Absent this type of clarification, one cannot reasonably conclude that
the medical services were for the treatment of a work-related injury. As to the remaining 34
requests for reimbursement from March 18, 2002 through December 13, 2004, the record does
5

20 C.F.R. § 10.310(a) (2008).

6

Id. at §§ 10.336 and 10.803. If there is any doubt as to whether a specific service, appliance or supply is
necessary to treat the work-related injury, the employee should consult with the Office prior to obtaining it. Id. at
§ 10.336.
7

The Office mistakenly identified one $15.00 expenditure for a “Psy Visit” as occurring on November 13, 2004
instead of November 13, 2001.

3

not establish that appellant submitted any of the requests by the end of the calendar year after the
year when the expense was incurred, as required under 20 C.F.R. § 10.336. Accordingly, the
Board affirms the Office’s decision to deny reimbursement for the 36 itemized medical
expenditures between November 2001 and December 2004.8
LEGAL PRECEDENT -- ISSUE 2
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.9 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.10 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).11
ANALYSIS -- ISSUE 2
In February 2000, appellant received a schedule award for 30 percent impairment of the
left upper extremity. She filed her latest claim on June 6, 2008. The Office contacted
appellant’s treating physician, Dr. Pagano, and explained the type of medical evidence required
to substantiate the claim for a schedule award. Dr. Pagano submitted three form reports, which
the Office provided him for calculating impairment of the hip, knee and ankle. On each of the
forms, Dr. Pagano noted 20 percent lower extremity impairment due to pain. He did not provide
a narrative report or otherwise identify specific objective and subjective findings that supported
his 20 percent impairment rating. Dr. Pagano also did not specifically reference the A.M.A.,
Guides (5th ed. 2001). When Dr. Hogshead, the DMA, reviewed Dr. Pagano’s findings, he
concluded that the medical record did not contain sufficient objective findings from which to
base an evaluation of orthopedic impairment of the left lower extremity.
Dr. Pagano provided no objective basis for his pain-related left lower extremity
impairment rating of 20 percent. Furthermore, he did not provide any explanation of how a left
leg contusion sustained some 12 years prior would currently manifest itself as joint pain in the
hip, knee and ankle. Dr. Pagano did not provide an impairment rating in accordance with the
A.M.A., Guides (5th ed. 2001). The record is also devoid of sufficient medical findings that
8

The Office’s statement that a psychiatric condition had not been accepted is clearly erroneous. The record
indicates that the Office accepted the condition of panic disorder in 1998. There is also medical evidence dating
back to 1998 that links several other psychiatric diagnoses to appellant’s February 2, 1996 employment-related
MVA. The Office’s finding with respect to the acceptance of any psychiatric conditions albeit incorrect, was
superfluous given that the refusal to reimburse appellant for the above-noted medical expenses can be affirmed on
an alternative basis.
9

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation.
§ 8107(c)(2) (2006).
10

20 C.F.R. § 10.404.

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

4

5 U.S.C.

would enable the DMA to provide an impairment rating with respect to appellant’s left lower
extremity. Although it is not entirely clear why the Office did not refer appellant for a second
opinion examination, the Board notes that the onus is not on the Office to develop appellant’s
schedule award claim.12 Accordingly, the Office properly denied appellant’s claim for a
schedule award with respect to her left lower extremity based on the record.
CONCLUSION
Appellant has not established entitlement to a schedule award for her left lower
extremity. The Board further finds that the Office properly denied appellant’s request for
reimbursement for certain medical expenditures incurred between November 2001 and
December 2004.
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2009 and April 21, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 25, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

12

An employee seeking benefits under the Act has the burden of proof to establish the essential elements of her
claim. Amelia S. Jefferson, 57 ECAB 183, 187 (2005).

5