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

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

Docket No. 16-1349
Issued: May 10, 2017

Case Submitted on the Record

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

JURISDICTION
On June 14, 2016 appellant filed a timely appeal from a May 3, 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.2
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective June 9, 2015, as her accepted conditions had
ceased without residuals; and (2) whether appellant met her burden of proof to establish any
continuing employment-related residuals or disability on or after June 9, 2015.
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence on appeal after the May 3, 2016 decision was issued. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore,
the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On March 25, 1985 appellant, then a 39-year-old part-time clerk, injured her lower back
while handling a mail sack that weighed approximately 55 pounds. OWCP accepted her
traumatic injury claim (Form CA-1) for lumbosacral strain and herniated nucleus pulposus
(HNP) at L4-5 and L5-S1. Appellant received continuation of pay from March 26 through
May 9, 1985, and OWCP compensated her for lost wages for the period May 13 through
September 29, 1985, at which time she returned to work in a full-time, limited-duty capacity as a
distribution clerk. OWCP later accepted a recurrence of disability beginning February 21, 1988,
and paid appellant wage-loss compensation for temporary total disability through
August 22, 1992. Effective August 22, 1992, appellant returned to work as a part-time (4 hours),
modified distribution clerk. OWCP subsequently adjusted her wage-loss compensation based on
her earnings as a part-time, modified distribution clerk. On October 23, 1992 it issued a formal
loss of wage-earning capacity (LWEC) determination based on appellant’s part-time weekly
wages ($318.28) effective August 22, 1992.
Appellant stopped work on October 15, 1993 and subsequently filed a claim for
recurrence of disability (Form CA-2a). She reportedly stopped work due to a combination of her
lumbar pain and an emotional condition. By decision dated September 21, 1994, OWCP denied
appellant’s claimed recurrence of disability beginning October 15, 1993.3 Appellant continued
to receive FECA wage-loss compensation for the four hours a day based on the October 23, 1992
LWEC determination.4
Effective May 10, 2003, appellant did return to work part time (4 hours daily), as a
modified distribution clerk.
By letter dated May 19, 2013, OWCP advised both the employing establishment and
appellant that her recent reemployment would not affect her entitlement to FECA wage-loss
compensation for four hours a day because she had already been rated on the same position in
1992. It enclosed a copy of its October 23, 1992 LWEC determination.
For more than a decade afterwards, OWCP continued to compensate appellant for four
hours a day based on the October 1992 LWEC determination.
Appellant submitted a February 13, 2014 report from Dr. David Weiss, a rheumatologist,
who diagnosed chronic pain related to fibromyalgia. Dr. Weiss noted that appellant had a history
of a work-related lower back injury, multilevel degenerative disc disease, and osteoporosis.
OWCP referred appellant to Dr. Douglas Lurie, a Board-certified orthopedic surgeon, for
a second opinion evaluation to determine the nature and extent of her employment-related
3

OWCP found that appellant had not established that her accepted lumbar condition had materially worsened to
the extent that she was no longer capable of performing her part-time, modified distribution clerk position. It further
explained that it had not accepted a psychological/emotional condition in connection with appellant’s March 25,
1985 employment injury.
4

Although eligible for a disability retirement through the Office of Personnel Management, appellant elected to
continue to receive FECA wage-loss compensation.

2

conditions. In his June 26, 2014 report, Dr. Lurie reviewed a statement of accepted facts, the
history of the injury, and the medical evidence of record. He conducted a physical examination
and found that appellant showed no trouble getting up from a chair without assistance. Appellant
was easily able to get into a supine position and had a negative straight leg-raising test. She
exhibited no pain with range of motion of either of her hips and she had no tenderness to touch in
the hip bursa on both sides. In the prone position, appellant had no tenderness to touch in the
lumbar spine, no difficulty going from prone to standing with greater than 90 degrees of lumbar
flexion, and no obvious strength deficits, skin lesions, or deformity. Dr. Lurie diagnosed low
back pain with degenerative change and opined that appellant’s March 25, 1985 work injury was
unrelated to her current complaints. He noted that appellant had degenerative changes in her
back at multiple levels, but he did not see any correlation between her current symptoms and the
accepted conditions. Dr. Lurie concluded that appellant was capable of working regular duty and
any required work restrictions were due to age-related degenerative changes, and not
employment related.
Appellant submitted Dr. Weiss’ follow-up treatment reports dated July 21, November 17,
2014, and February 23, 2015. He diagnosed chronic low back pain and postmenopausal
osteoporosis. In his February 23, 2015 report, Dr. Weiss indicated that appellant’s chronic low
back pain caused her to be symptomatic most days of the week. Appellant also submitted a
February 23, 2015 diagnostic report regarding her calcium and serum levels.
On April 8, 2015 OWCP proposed to terminate wage-loss compensation and medical
benefits relying on Dr. Lurie’s June 26, 2014 report as her accepted conditions had ceased
without residuals. It afforded her 30 days to submit additional evidence or argument if she
disagreed with the proposed termination of FECA benefits.
In response, appellant submitted an April 20, 2015 diagnostic report regarding her
vitamin D levels.
By decision dated June 9, 2015, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that date. It found the weight of the evidence was afforded to the
opinion of Dr. Lurie.
On July 8, 2015 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. Prior to the hearing she submitted reports dated February 23,
2015 through January 21, 2016 from Dr. Weiss, who diagnosed chronic pain with fibromyalgia,
chronic low back pain with sciatica, spondylosis, degenerative disc disease, and intermittent
lumbar radiculopathy, in addition to osteoporosis with vitamin D deficiency. Dr. Weiss opined
that appellant’s conditions greatly interfered with her activities of daily living and household
chores.
On March 15, 2016 a telephonic oral hearing was held before an OWCP hearing
representative.
By decision dated May 3, 2016, OWCP’s hearing representative affirmed the June 9,
2015 termination decision finding that the weight of the evidence was afforded to the opinion of
Dr. Lurie.

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LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.5 After it has determined that an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.6 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability.8 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition, which would require
further medical treatment.9
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for a lumbosacral strain and HNP at L4-5 and L5-S1.
It subsequently terminated her wage-loss compensation and medical benefits effective June 9,
2015 based on the June 26, 2014 report from Dr. Lurie, a Board-certified orthopedic surgeon
serving as a second opinion examiner. On appeal, appellant contends that OWCP’s termination
is unjustified as the medical evidence of record established that her disability has neither ceased
nor lessened.
OWCP had referred appellant to Dr. Lurie for a second opinion evaluation to determine
the nature and extent of her accepted employment-related conditions. In his June 26, 2014
report, Dr. Lurie diagnosed low back pain with degenerative changes and opined that appellant’s
March 25, 1985 work injury was unrelated to her current complaints. He found that appellant
showed no trouble getting up out of a chair with no assistance and was easily able to get into a
supine position. Appellant’s straight leg-raising test was negative and she had no pain with
range of motion in the hips. She also had no tenderness to touch in the hip bursa on both sides
and no tenderness to touch in the lumbar spine. Appellant had greater than 90 degrees of lumbar
flexion and demonstrated no obvious strength deficits, skin lesions, or deformity. Dr. Lurie
noted that appellant had degenerative changes in her back at multiple levels, but he did not see
any correlation between her current symptoms and the accepted conditions. He concluded that
appellant was capable of working regular duty. Dr. Lurie explained that any work restrictions
would be due to appellant’s age-related degenerative changes.
The Board finds that Dr. Lurie’s report represented the weight of the medical evidence at
the time OWCP terminated benefits and that OWCP properly relied on his opinion in terminating
5

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

6

See I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

7

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

8

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

9

See James F. Weikel, 54 ECAB 660 (2003).

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appellant’s wage-loss compensation and medical benefits. Dr. Lurie had full knowledge of the
relevant facts and evaluated the course of appellant’s condition. He is also a specialist in the
appropriate field. Dr. Lurie’s opinion is based on a proper factual and medical history, and his
report contained a detailed summary of the history of the claim. Additionally, he addressed the
medical records, examined appellant, and reached a reasoned conclusion regarding appellant’s
conditions.10 At the time benefits were terminated, Dr. Lurie found no basis on which to
attribute any residuals or continued disability to appellant’s accepted conditions. His June 26,
2014 report is both probative and reliable evidence regarding appellant’s current lumbar
condition. Accordingly, the Board finds that Dr. Lurie’s opinion constitutes the weight of the
medical evidence and is sufficient to justify OWCP’s termination of benefits for the accepted
conditions.
In his reports, Dr. Weiss diagnosed chronic pain related to fibromyalgia, chronic low
back pain, and postmenopausal osteoporosis. He noted that appellant had a history of a workrelated lower back injury and multilevel degenerative disc disease, and reported that appellant’s
chronic low back pain caused her to be symptomatic most days of the week. However,
Dr. Weiss did not provide any medical rationale explaining how appellant’s current condition
was causally related to her March 25, 1985 employment injury. Thus, his reports are of
diminished probative value and insufficient to overcome the weight of Dr. Lurie’s report or to
create a medical conflict.11
Other medical evidence of record, including diagnostic test reports, is of limited
probative value as it does not contain an opinion from a physician as to whether appellant
continues to have residuals from the accepted lumbar conditions.
Accordingly, the Board finds that OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective June 9, 2015.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to the claimant. In order to
prevail, the claimant must establish by the weight of the reliable, probative, and substantial
evidence that she had an employment-related disability which continued after termination of
benefits.12

10

See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion are facts which determine the weight to be
given to each individual report).
11

See S.S., Docket No. 15-1160 (issued January 11, 2016). The weight of medical evidence is determined by its
reliability, its probative value, its convincing quality, the care of analysis manifested, and the medical rationale
expressed in support of the physician’s opinion. James Mack, 43 ECAB 321 (1991).
12

See A.B., Docket No. 14-1510 (issued October 23, 2014).

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ANALYSIS -- ISSUE 2
On appeal, appellant contends that she continues to suffer from her accepted lumbar
sprain and herniated discs. The Board finds, however, that appellant has not met her burden of
proof to establish any continuing employment-related residuals or disability.
After OWCP’s June 9, 2015 termination decision, appellant submitted additional medical
evidence which she felt established that she was entitled to compensation due to residuals or
disability of her accepted employment-related injuries. Given that the Board has found that
OWCP properly relied on the opinion of its referral physician, Dr. Lurie, in terminating
appellant’s compensation effective June 9, 2015, the burden shifts to appellant to establish that
she is entitled to compensation after that date. The Board has reviewed the additional evidence
submitted by appellant and finds that it is insufficient to establish that she had any continuing
employment-related residuals or disability after June 9, 2015.
In his reports dated February 23, 2015 through January 21, 2016, Dr. Weiss diagnosed
chronic pain with fibromyalgia, chronic low back pain with sciatica, spondylosis, degenerative
disc disease, intermittent lumbar radiculopathy, and osteoporosis with vitamin D deficiency. He
failed to provide a well-rationalized explanation as to how and whether these conditions, which
have not been accepted by OWCP, were causally related to appellant’s employment injuries.13
Thus, Dr. Weiss’ reports are of diminished probative value and insufficient to overcome the
weight accorded Dr. Lurie’s report as the second opinion examiner or to create a new conflict.14
Appellant may submit new evidence or argument with a 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 OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective June 9, 2015, as her accepted conditions had ceased without residuals.
The Board further finds that appellant has not met her burden of proof to establish any
continuing employment-related residuals or disability on or after June 9, 2015.

13

See T.M., Docket No. 08-975 (issued February 6, 2009) (for conditions not accepted or approved by OWCP as
being due to an employment injury, the claimant bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence).
14

See Dorothy Sidwell, 41 ECAB 857 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the May 3, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 10, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PATROL,
Santee, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0291
Issued: October 16, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On November 20, 2019 appellant filed a timely appeal from September 17 and October 11,
2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards docketed the appeal as No. 20-0291.1
On June 14, 2018 appellant, then a 48-year-old border patrol agent, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his left foot, including his big toe, while
in the performance of duty. He explained that when he was walking towards his service vehicle
his left foot was wedged between two rocks and he fell forward.

1

The Board notes that, following the October 11, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

On July 30, 2018 appellant filed a claim for compensation (Form CA-7) for leave without
pay (LWOP) claiming wage-loss compensation for the period from July 30 to August 9, 2018.2
In an August 28, 2018 letter, OWCP’s selected physician, Dr. James Caviness, Boardcertified in preventive medicine, informed appellant’s attending physician, Dr. David Robinson,
an osteopath specializing in family practice, that his August 9, 2018 report indicated that
appellant’s physical examination revealed normal results and that appellant ambulated properly
and thus, he did not understand why appellant currently remained off of work. Dr. Caviness
requested that Dr. Robinson elaborate on his rationale for appellant’s total disability status and
asked that he consider recommending light or sedentary duty based on objective findings. He
added that he agreed that appellant’s workplace injury may have aggravated appellant’s
preexisting metatarsophalangeal joint osteoarthrosis and; therefore, he would recommend the
authorization of the referral to a podiatrist.
Dr. Robinson responded to Dr. Caviness, in a September 7, 2018 letter, and noted that he
was having a difficult time getting authorization from OWCP for diagnostic imaging necessary to
determine if appellant required further care. He indicated that appellant continued to experience
right foot neuritis, ankle pain, shoulder pain, right shoulder impingement, and pain in his
metatarsophalangeal joint which was possibly secondary degenerative joint disease. Dr. Robinson
explained that, despite that OWCP would not authorize a referral to a podiatrist or orthopedist to
conduct examinations to determine if there were additional conditions caused by the claimed
employment injury. Dr. Robinson additionally indicated that appellant was also unable to return
to him for further treatment because OWCP refused to approve the visit. He opined that appellant
still suffered from right shoulder impingement syndrome and right foot neuritis that was caused
by either tarsal tunnel syndrome or radiculopathy from the lumbar area secondary to his fall.
Dr. Robinson concluded that appellant could perform light duty, such as answering the telephone
or sitting for no longer than 45 minutes without a break, but could not participate in law
enforcement activities or engage in heavy lifting.
On May 3, 2019 OWCP accepted appellant’s claim for impingement syndrome of the right
shoulder and an aggravation of primary osteoarthritis of the left ankle and foot.
In a June 27, 2019 development letter, OWCP informed appellant that the documentation
received to date was insufficient to establish his claim for compensation for the period July 30,
2018 through June 2, 2019. It advised him that he should provide the second opinion report from
his case record to his treating physician for concurrence regarding his ability to work with
restrictions during the claimed period of disability. OWCP afforded appellant 30 days to submit
the necessary evidence.
By decision dated September 17, 2019, OWCP denied appellant’s compensation claim,
finding that the evidence of record was insufficient to establish that he was disabled for work for
the period July 30 2018 and continuing due to his accepted conditions. It noted receipt of specific

2
OWCP continued to receive CA-7 forms claiming compensation for LWOP for disability through
September 7, 2018.

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medical reports, but did not indicate receipt or review of the correspondence between
Drs. Caviness and Robinson.
On September 24, 2019 appellant requested reconsideration.
By decision dated October 11, 2019, OWCP denied modification of its September 17, 2019
decision. It again did not acknowledge receipt of the August 28, 2018 report from Dr. Caviness
or the September 7, 2018 report from Dr. Robinson.
The Board has duly considered the matter and finds that the case is not in posture for a
decision. In the case of William A. Couch,3 the Board held that when adjudicating a claim OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
OWCP’s September 17 and October 11, 2019 decisions did not reference or address the
August 28, 2018 correspondence from Dr. Caviness to Dr. Robinson, or Dr. Robinson’s
September 7, 2018 response to Dr. Caviness, which directly addressed the question of why he
considered appellant totally disabled for work during the period in question.
It is crucial that OWCP address all relevant evidence received prior to the issuance of its
final decision, as the Board’s decisions are final with regard to the subject matter appealed.4 The
Board finds that this case is not in posture for decision, as OWCP did not address the above-noted
evidence in its September 17 and October 11, 2019 decisions.5 On remand OWCP shall review
all evidence of record and, following any further development as it deems necessary, it shall issue
a de novo decision.

3

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

4

See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, id.
5

See V.C., Docket No. 16-0694 (issued August 19, 2016).

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IT IS HEREBY ORDERED THAT the October 11 and September 17, 2019 decisions of
the Office of Workers’ Compensation Programs are set aside and the case is remanded to OWCP
for further proceedings consistent with this order of the Board.
Issued: October 16, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JESSE BROWN VETERANS
ADMINISTRATION MEDICAL CENTER,
Chicago, IL, Employer
__________________________________________

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

Docket No. 16-0704
Issued: June 28, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 26, 2016 appellant timely appealed from an October 27, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since the last merit decision dated February 27, 2015 to the filing of the instant appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant abandoned his hearing request before OWCP’s Branch of
Hearings and Review.
1
2

5 U.S.C. §§ 8101-8193 (2006).

Appellant timely requested oral argument; however, after exercising its discretion, the Board denied his request
by order dated June 7, 2016. See Order Denying Request for Oral Argument, Docket No. 16-0704 (issued
June 7, 2016).

FACTUAL HISTORY
On April 16, 2002 appellant, then a 55-year-old locksmith, injured his back when he
slipped and fell on a wet floor while in the performance of duty. OWCP accepted appellant’s
claim for lumbar radiculopathy. In March 2003, he underwent an L5-S1 laminectomy,
discectomy and fusion. OWCP paid appellant wage-loss compensation and ultimately placed
him on the periodic compensations rolls. For several years, appellant continued to receive wageloss compensation for temporary total disability. Effective March 23, 2011, OWCP terminated
his wage-loss compensation and medical benefits. In a July 7, 2011 decision, a hearing
representative of the Branch of Hearings and Review affirmed the termination of wage-loss
compensation, but reversed OWCP’s decision terminating medical benefits.3
In August 2014, appellant filed a claim for a schedule award (Form CA-7). OWCP
received treatment records from the employing establishment, as well as January 11, 2013
treatment records from Dr. Fred H. Geisler, a Board-certified neurosurgeon, who diagnosed
lumbar disc degeneration. Additionally, OWCP received a September 29, 2014 report from
Dr. Jerrel H. Boyer, a neurosurgeon, who diagnosed lumbar degenerative disc disease, lumbar
spinal stenosis, cervical spine degeneration, cervical myelopathy, and cervical spinal stenosis.
OWCP’s district medical adviser reviewed the record on February 13, 2015, and found
no lower extremity motor or sensory deficits. Consequently, he determined that appellant had
zero (0) percent impairment of the lower extremities.
In a February 27, 2015 decision, OWCP denied appellant’s claim for a schedule award.
On March 6, 2015 counsel for appellant timely requested a hearing. The Branch of
Hearings and Review wrote to appellant on March 6, 2015 acknowledging receipt of the hearing
request. On August 27, 2015 it advised both appellant and counsel that a hearing was scheduled
for October 7, 2015 at 12:30 p.m. Eastern Time. The Branch of Hearings and Review also
provided the toll-free number and passcode. OWCP mailed the notice to appellant at his last
known address.
On September 1, 2015 counsel advised the Branch of Hearings and Review that he would
not be attending the October 7, 2015 hearing because he no longer represented appellant. He
similarly advised OWCP that he no longer represented appellant.
On September 10, 2015 OWCP acknowledged Alan J. Shapiro, Esquire’s withdrawal of
representation. Additionally, OWCP sent a copy of its September 10, 2015 correspondence to
appellant.
Appellant did not appear at the October 7, 2015 oral hearing.
3

The hearing representative found that although the weight of the medical evidence established that appellant
could return to his date-of-injury job, the evidence did not demonstrate that his accepted lumbar condition had
resolved without residuals. Consequently, the record did not support terminating appellant’s medical benefits.
OWCP subsequently revisited the issue of appellant’s entitlement to wage-loss compensation, but denied
modification by decision dated April 5, 2012.

2

On October 27, 2015 the Branch of Hearings and Review issued a decision finding that
appellant had abandoned his request for a hearing, which had been scheduled for
October 7, 2015. The decision noted that appellant had been afforded 30-days prior notice of the
scheduled hearing, which he had failed to attend. The hearing representative further noted that
there was no indication that appellant contacted the Branch of Hearings and Review either before
or after the scheduled hearing to explain his absence.
LEGAL PRECEDENT
A claimant dissatisfied with a decision on his or her claim is entitled, upon timely
request, to a hearing before an OWCP representative.4 Unless otherwise directed in writing by
the claimant, the hearing representative will mail a notice of the time, place and method of the
oral hearing to the claimant and any representative at least 30 days before the scheduled date.5 A
claimant who fails to appear at a scheduled hearing may request in writing within 10 days after
the date set for the hearing that another hearing be scheduled.6 Where good cause for failure to
appear is shown, another hearing will be scheduled and conducted by teleconference.7 The
“failure of the claimant to request another hearing within 10 days … shall constitute
abandonment of the request for a hearing.”8 With the exception of overpayment prerecoupment
hearings, where it has been determined that a claimant has abandoned his or her right to a
hearing, the Branch of Hearings and Review will issue a formal decision finding that the
claimant has abandoned his or her request for a hearing.9
ANALYSIS
On February 27, 2015 OWCP issued a final decision denying appellant’s claim for a
schedule award.10 The Branch of Hearings and Review received a timely request for a hearing
regarding the February 27, 2015 schedule award decision, which it acknowledged by letter dated
March 6, 2015. Several months later, the Branch of Hearings and Review provided appellant 30days advanced written notice of his hearing, which was scheduled for October 7, 2015. OWCP
mailed the August 27, 2015 notice of hearing to appellant’s address of record, and it has not

4

5 U.S.C. § 8124(b); 20 C.F.R. § 10.616(a) (2014).

5

20 C.F.R. § 10.617(b).

6

Id. at § 10.622(f).

7

Id.

8

Id.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
10

As previously noted, the February 27, 2015 merit decision is not currently before the Board. That decision predated appellant’s February 26, 2016 application for review (AB-1) by more than 180 days, and therefore, OWCP’s
February 27, 2015 decision is not subject to Board review. See 20 C.F.R. § 501.3(e).

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since been returned as undeliverable.11 Absent evidence to the contrary, a notice mailed in the
ordinary course of business is presumed to have been received by the intended recipient.12 This
presumption is commonly referred to as the “mailbox rule.”13 It arises when the record reflects
that the notice was properly addressed and duly mailed.14 The current record is devoid of
evidence to rebut the presumption that appellant received the Branch of Hearings and Review’s
August 27, 2015 notice of hearing.
Appellant did not appear for the October 7, 2015 scheduled hearing, and there is no
indication that he requested postponement of the hearing.15 Moreover, appellant did not submit a
written request within the 10-day period following the scheduled hearing explaining his absence
and requesting that another hearing be scheduled.16 The regulations provide that where good
cause for failure to appear is shown, another hearing will be scheduled and conducted by
teleconference.17
The record establishes that the Branch of Hearings and Review provided appellant at
least 30-days advanced written notice of his scheduled hearing. As previously indicated,
appellant did not request postponement of the hearing, nor did he attend the October 7, 2015
scheduled hearing. Lastly, appellant did not provide a written explanation for his absence within
the 10-day period following the previously scheduled hearing. Under the circumstances, the
hearing representative properly found that appellant abandoned his hearing request.
CONCLUSION
The Board finds that appellant abandoned his hearing request before the Branch of
Hearings and Review.

11

The Branch of Hearings and Review also sent a copy of the August 27, 2015 notice of hearing to counsel who
had filed the March 6, 2015 hearing request. Counsel subsequently advised both OWCP and the Branch of Hearings
and Review that he no longer represented appellant. He specifically advised the Branch of Hearings and Review
that he would not be present at the October 7, 2015 hearing. On September 10, 2015 OWCP acknowledged
Mr. Shapiro’s withdrawal of representation and provided appellant a copy of that letter.
12

Kenneth E. Harris, 54 ECAB 502, 505 (2003).

13

Id.

14

Id.

15

See 20 C.F.R. § 10.622(c).

16

Id. at § 10.622(f).

17

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the October 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 28, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Paoli, PA, Employer
__________________________________________

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)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0603
Issued: November 13, 2018

Case Submitted on the Record

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

JURISDICTION
On January 29, 2018 appellant, through counsel, filed a timely appeal from an August 21,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP abused its discretion by denying appellant authorization for
right shoulder surgery.
FACTUAL HISTORY
On May 21, 1996 appellant, then a 29-year-old mail processor, filed an occupational
disease claim (Form CA-2) alleging that working a sorting machine all day at work caused neck
and shoulder conditions. The claim was adjudicated by OWCP under File No. xxxxxx372.
Appellant stopped work on June 1, 1996 and returned to full-time limited-duty work on
August 26, 1996. On August 27, 1996 OWCP accepted cervical and right shoulder strains.
By decision dated January 22, 1998, OWCP terminated appellant’s wage-loss
compensation and medical benefits, based on the opinion of Dr. Steven Valentino, a Boardcertified osteopath practicing orthopedic surgery, who provided a second opinion evaluation for
OWCP in which he advised that appellant’s right shoulder strain and cervical strains had resolved.3
On February 6, 2003 appellant, then a part-time flexible letter carrier, filed an occupational
disease claim (Form CA-2) alleging that employment duties caused pain and numbness in both
arms that began in November 2002. The claim was adjudicated by OWCP under File No.
xxxxxx913. Dr. Adriana S. Prawak, an osteopath, who is a Board-certified physiatrist, saw
appellant in consultation on January 30, 2003 for complaints of bilateral elbow pain. She noted
that he denied shoulder pain. Dr. Prawak continued to treat appellant, and diagnosed bilateral
biceps tendinitis and medial epicondylitis. On May 22, 2003 OWCP accepted aggravation of
bilateral biceps tendinitis and aggravation of bilateral medial epicondylitis. It paid appellant wageloss compensation from January 27 to April 1, 2003. Lesion of the right ulnar nerve (cubital tunnel
syndrome) was later accepted under that claim.
On April 28, 2005 appellant, then a letter carrier, filed a traumatic injury claim (Form
CA-1) alleging that, on April 27, 2005, when lifting a parcel at work, he felt a pop and burn in the
right side of his neck with subsequent pain which radiated down his right upper extremity. He
stopped work on that day. OWCP adjudicated the claim under File No. xxxxxx966. Following an
initial denial on July 13, 2005, by decision dated November 7, 2005, a hearing representative with
OWCP’s Branch of Hearings and Review set aside the July 13, 2005 decision and remanded the
case for OWCP to administratively combine File Nos. xxxxxx966 and xxxxxx372. OWCP
subsequently combined these two files, with File No. xxxxxx966 serving as the master file.

3

Dr. Valentino noted that upper extremity examination demonstrated normal range of motion about the shoulders,
elbows, wrists and hands. Shoulder examination was negative for instability or impingement. Evaluation of the
acromioclavicular joint, clavicle, sternoclavicular joint, rotator cuff, glenohumeral articulation, labral area and
bicipital tendon area were normal. Instability, impingement and sulcus sign were negative. There was no evidence of
residual shoulder strain. Allen’s, Wright’s, Roos’, Phalen’s, reverse Phalen’s, ulnar stretch, and Tinel’s signs were
negative. Tinel’s signs specifically over the brachial plexus and thoracic outlet were negative, indicating there was
no evidence of thoracic outlet syndrome or brachial plexitis. Additionally, there were no findings to substantiate any
evidence of reflex sympathetic dystrophy.

2

By decision dated February 20, 2007, issued under File No. xxxxxx966, OWCP accepted
aggravation of cervical disc disease, cervical radiculopathy, and herniated cervical disc without
myelopathy at C5-6, C6-7, and C7-T1. It also authorized cervical spine surgery that was performed
on June 7, 2005.
On June 18, 2007 OWCP combined all three files with File No. xxxxxx913 the latter
serving as the master file.
Appellant began receiving wage-loss compensation from OWCP on the supplemental rolls
for disability from work beginning March 26, 2008, the date that he underwent right ulnar nerve
decompression surgery. He briefly returned to work on April 14, 2008, and, thereafter, OWCP
placed him on the periodic compensation rolls. Appellant has not returned to work.
Bilateral shoulder x-rays on September 20, 2013 demonstrated no acute fracture or
dislocation, and soft tissue were grossly intact. Mild degenerative change was seen at the left
acromioclavicular joint space.
In February 2015 appellant began pain management with Dr. Philip S. Kim, Boardcertified in anesthesia and pain medicine, for complaints of neck pain radiating to both upper
extremities. Dr. Kim implanted an intrathecal pump and catheter on March 1, 2016 and provided
follow-up care, noting appellant’s continued complaint of severe radiating neck pain.
In an April 7, 2016 report, Dr. Sucharitha Shanmugam, a Board-certified rheumatologist,
saw appellant in consultation regarding osteoarthritis in the neck and right hand. She also noted
complaints of chronic neck and back pain. Dr. Shanmugam diagnosed chronic neck and back pain,
dorsalgia, and trigger finger, right middle finger and injected the middle finger of appellant’s right
hand. She again injected appellant’s right middle finger on October 14, 2016.
Dr. Kim continued to treat appellant for chronic neck and low back pain. On January 13,
2017 he noted that appellant had a new problem, that for two months he had throbbing, stabbing,
and achy pain in his right shoulder, worse with movement. Dr. Kim described tenderness of the
right shoulder with range of motion, and referred appellant for consultation with Dr. Jack E.
Kazanjian, an osteopath, who practices orthopedic surgery.
In a January 24, 2017 report, Dr. Kazanjian noted that appellant was disabled from work
due to a work injury and had cervical spine surgery and ulnar nerve decompression surgery in the
past. He noted that appellant described continuous upper extremity pain, but did not know if it
was from his cervical spine or his shoulder. Arm pain was reproduced with neck motion. Right
shoulder range of motion was diminished. X-ray of the right shoulder that day demonstrated no
joint narrowing or abnormality. Dr. Kazanjian diagnosed right shoulder pain, chronic pain
syndrome, and a history of multiple surgeries and neuropathic pain. He recommended a
computerized tomography (CT) arthrogram of the right shoulder. A February 28, 2017 right
shoulder CT arthrogram demonstrated a full-thickness tear within the distal supraspinatus tendon.
In a report dated March 2, 2017, Dr. Kazanjian noted that appellant had indicated his right
shoulder pain, which was different from his neck pain, was worsening. He reviewed the CT
arthrogram and diagnosed right shoulder full-thickness supraspinatus tendon tear and

3

acromioclavicular joint degenerative joint disease with synovitis. Dr. Kazanjian recommended
surgical repair and requested authorization.
On March 21, 2017 OWCP asked its medical adviser to provide an opinion regarding the
medical necessity of the requested surgery. It attached a July 22, 2016 addendum to its statement
of accepted facts (SOAF). This listed accepted conditions of aggravation of bilateral biceps
tendinitis, aggravation of bilateral epicondylitis, lesion of the right ulnar nerve, aggravation of
cervical disc disease, cervical radiculopathy, and herniated cervical disc at C5-6, C6-7, and C7-T1
without myelopathy.4
In a report dated April 10, 2017, Dr. Todd Fellars, a Board-certified orthopedic surgeon
and OWCP medical adviser, indicated that he had reviewed the record including the SOAF. He
noted that appellant was not working and discussed his medical history, objective studies, and
physical examination findings. Dr. Fellars opined that the proposed right shoulder arthroscopy
was not causally related to the accepted medical conditions, noting that a rotator cuff tear had not
been accepted and that there was no evidence that it was employment related. He further opined
that the proposed arthroscopic surgery was not medically necessary, advising that there was no
documentation of focused physical therapy or shoulder injections to support that appellant had
failed nonoperative treatment.
By decision dated April 20, 2017, OWCP denied authorization for a right arthroscopic
rotator cuff repair.
On April 26, 2017 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review. Counsel submitted a May 17, 2017 operative report
which indicated that Dr. Kazanjian performed arthroscopic decompression with acromioplasty of
the right shoulder with distal clavicle excision and posterior capsular release. Dr. Kazanjian noted
that appellant had a long-standing history of right shoulder pain and described the CT arthrogram
findings. Postoperative diagnoses were full-thickness supraspinatus tendon tear, acromioclavicular degenerative joint disease, and impingement syndrome of the right shoulder.
The hearing was held on July 12, 2017. Counsel argued that the SOAF forwarded to
OWCP’s medical adviser was incomplete because it did not mention appellant’s 2002 arm injury
and, therefore, Dr. Fellars based his opinion on an incorrect history. He maintained that, at a
minimum, a conflict in the medical opinion evidence had been created between the opinions of
Dr. Kazanjian and Dr. Fellars.
By decision dated August 21, 2017, OWCP’s hearing representative affirmed the April 20,
2017 decision. He found that appellant had not met his burden of proof to establish that a right
rotator cuff tear was causally related to an accepted injury, noting that Dr. Kazanjian did not
provide an opinion as to whether the rotator cuff tear was caused by an accepted injury. The
hearing representative conceded that the SOAF provided Dr. Fellars did not describe appellant’s
1996 or 2002 employment injuries accepted for right shoulder strain, but indicated that, under this
4

On March 29, 2017 OWCP expanded the acceptance of the claim to include adjustment disorder with mixed
anxiety and depression, based on a second opinion evaluation completed by Dr. Irving S. Wiesner, a Board-certified
psychiatrist.

4

claim, wage-loss compensation and medical benefits were terminated by OWCP in 1998. He
further indicated that appellant had not worked for nine years when the CT scan was completed
and, absent rationale by the treating physician, the results of this study were not probative as to
causal relationship. The hearing representative discussed Dr. Fellars’ findings and concluded that
the weight of the medical evidence established that the proposed surgery was not necessary to treat
an employment-related condition.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of monthly compensation.5
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
has the burden of establishing that the expenditure is incurred for treatment of the effects of an
employment-related injury or condition.6
In interpreting section 8193 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.7 Abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts. It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.8 To be entitled to
reimbursement of medical expenses, a claimant has the burden of establishing that the expenditures
were incurred for treatment of the effects of an employment-related injury or condition. Proof of
causal relationship in a case such as this must include supporting rationalized medical evidence.9
In order for a surgical procedure to be authorized, a claimant must submit evidence to show that
the surgery is for a condition causally related to an employment injury and that it is medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.10
ANALYSIS
The Board finds that OWCP did not abuse its discretion by denying authorization for right
shoulder surgery.
OWCP accepted appellant’s 2003 and 2005 claims for aggravation of bilateral biceps
tendinitis, aggravation of bilateral epicondylitis, lesion of the right ulnar nerve, aggravation of
5

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

6

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

7

See D.K., 59 ECAB 141 (2007).

8

Minnie B. Lewis, 53 ECAB 606 (2002).

9

M.B., 58 ECAB 588 (2007).

10

R.C., 58 ECAB 238 (2006).

5

cervical disc disease, cervical radiculopathy, herniated cervical disc at C5-6, C6-7, and C7-T1
without myelopathy, and adjustment disorder with mixed anxiety and depression. The 1996 claim,
accepted for right shoulder and cervical strains, was terminated by OWCP in 1998 because the
accepted conditions had resolved.
For a surgical procedure to be authorized, a claimant must submit evidence sufficient to
establish that the surgery is for a condition causally related to an employment injury and that it is
medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.11
Dr. Kim, who began treating appellant in 2015, first mentioned increased right shoulder
pain in January 2017, over eight years after appellant stopped work in April 2008. He did not
discuss a cause of appellant’s increased right shoulder pain and referred him to Dr. Kazanjian.
Medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship.12 Thus Dr. Kim’s opinion is insufficient
to meet appellant’s burden of proof.
Dr. Kazanjian first saw appellant on January 24, 2017 and noted that appellant provided a
history that he had always had upper extremity pain, but did not know if it was from his cervical
spine or his shoulder. He diagnosed right shoulder pain, chronic pain syndrome, and history of
multiple cervical spine surgeries, and neuropathic pain. Dr. Kazanjian recommended a CT
arthrogram of the right shoulder.
The Board has held that, when diagnostic testing is delayed, uncertainty mounts regarding
the cause of the diagnosed condition and a question arises as to whether that testing in fact
documents the injury claimed by the employee. The greater the delay in testing, the greater the
likelihood that an event not related to employment has caused or worsened the condition for which
the employee seeks compensation. When the delay becomes so significant that it calls into
question the validity of an affirmative opinion based at least in part on the testing, such delay
diminishes the probative value of the opinion offered.13 In this case a CT arthrogram of the right
shoulder was not performed until February 28, 2017, many years after the 1996, 2002, and 2005
employment injuries, and almost nine years after appellant stopped work in April 2008. While the
CT arthrogram demonstrated a full-thickness tear within the supraspinatus tendon which was
repaired by Dr. Kazanjian on May 17, 2017, in that report he merely indicated that appellant had
a long-standing history of right shoulder pain. Dr. Kazanjian did not provide a rationalized opinion
explaining how any of the accepted conditions or employment factors caused a right shoulder

11

Id.

12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13

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

6

rotator cuff tear or the need for surgery.14 His opinion is, therefore, insufficient to establish that
the right shoulder surgery was for an employment-related condition.15
As noted by Dr. Fellars, OWCP’s medical adviser, a right shoulder rotator cuff tear has not
been accepted as employment related. He opined that the surgery was not causally related to the
accepted medical conditions. Appellant has the burden to prove that conditions not accepted by
OWCP are causally related to the accepted employment injuries through the submission of
rationalized medical evidence.16 He has not submitted such evidence and has, thus, failed to show
that the right rotator cuff tear was employment related.17 OWCP’s medical adviser also indicated
that the proposed surgery was not medically necessary. He explained that there was no
documentation of focused physical therapy or shoulder injections to support that appellant had
failed nonoperative treatment.
While counsel asserts on appeal that the SOAF forwarded to Dr. Fellars contained a fatal
flaw, because it did not mention a prior 2002 right arm injury, the record indicates that the accepted
conditions of the 2002 claim, aggravation of bilateral biceps tendinitis, aggravation of bilateral
epicondylitis, and lesion of the right ulnar nerve, were included in the SOAF forwarded to
Dr. Fellars. As to the 1996 claim accepted for right shoulder strain, as noted by the hearing
representative in his August 21, 2017 decision, this claim was terminated in 1998. Furthermore,
as explained above, appellant did not submit a rationalized explanation regarding the cause of the
diagnosed right shoulder rotator cuff tear.18 Thus, contrary to counsel’s argument on appeal, no
conflict in medical evidence was created.
The only limitation on OWCP’s authority in approving or disapproving service under
FECA is one of reasonableness.19 In the instant case, appellant requested right shoulder surgery.
His physician Dr. Kazanjian did not provide a rationalized opinion explaining how the
recommended surgery was caused by appellant’s accepted conditions, and was therefore
insufficient to meet appellant’s burden of proof.20 Dr. Fellars, OWCP’s medical adviser, clearly
opined that the requested surgery was not warranted for the accepted conditions. Absent sufficient
explanation as to why the proposed surgery was causally related to the accepted conditions, the
Board finds that OWCP acted reasonably in denying appellant’s request for right shoulder
surgery.21

14

See V.S., Docket No. 17-0874 (issued December 6, 2017).

15

R.C., supra note 10.

16

See Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

17

See C.V., Docket No. 17-1159 (issued April 6, 2018).

18

R.C., supra note 10.

19

D.K, supra note 7.

20

R.C., supra note 10.

21

B.L., Docket No. 15-1452 (issued September 20, 2016).

7

Appellant may submit new evidence or argument with a 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 OWCP properly exercised its discretion by denying appellant
authorization for right shoulder surgery.
ORDER
IT IS HEREBY ORDERED THAT the August 21, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Decatur, IL, Employer
__________________________________________

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

Docket No. 10-515
Issued: November 16, 2010

Case Submitted on the Record

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

JURISDICTION
On December 14, 2009 appellant filed a timely appeal from an October 13, 2009
schedule award decision of the Office of Workers’ Compensation Programs. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule award
claim.
ISSUE
The issue is whether appellant has established more than 25 percent impairment of the
right lower extremity, for which she received a schedule award.
FACTUAL HISTORY
On November 15, 2005 appellant, then a 64-year-old sales and service clerk, filed an
occupational disease claim alleging that her duties aggravated her bilateral knee arthritis. She
was first aware of this condition on September 15, 1998, but did not realize that her employment
duties aggravated it until July 29, 2003. The Office accepted the claim for aggravation of

osteoarthritis to both knees. On December 13, 2006 it authorized total right knee replacement
surgery, which occurred on January 3, 2007.1
On April 3, 2008 Dr. M. Stephen Huss, a treating Board-certified orthopedic surgeon,
noted appellant had total right knee arthroplasty surgery on January 7, 2007. He advised that she
reached maximum medical improvement on January 11, 2008. Dr. Huss reported that x-rays
revealed an excellent result for her total right knee arthroplasty.
On April 20, 2008 appellant filed a claim for a schedule award.2
In a February 5, 2009 report, Dr. Lawrence K. Li, a second opinion Board-certified
orthopedic surgeon, diagnosed minimal left knee osteoarthritis and successful right knee total
replacement.
On July 21, 2009 the Office received an October 6, 2008 impairment rating form and
treatment notes from Dr. Keith L. Fabrique, an examining physician, who noted that appellant
had a total right knee replacement, no ankylosis and mild medial lateral laxity. Range of motion
findings included 110 degrees right knee flexion, normal extension of 0 degrees.
On July 24, 2009 the Office forwarded the case record to an Office medical adviser for
review of appellant’s accepted bilateral knee osteoarthritis condition. In a July 27, 2009 report,
Dr. David H. Garelick, the Office medical adviser, concluded that appellant had 25 percent right
lower extremity impairment. Using Table 16-3, p. 511 of the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment, he determined that
based on “a good result following a total knee replacement” that there was 25 percent
impairment of the right lower extremity.
On December 31, 2009 the Office issued a schedule award for an additional 19 percent
permanent impairment of the right lower extremity, or 54.72 weeks of compensation, payable
from January 11, 2008 to January 28, 2009.3 It noted that total impairment of the right leg was
25 percent less the previous payment of 6 percent in file number xxxxxx733.”

1

On June 26, 2009 the Office found that, as appellant’s actual earnings as a sales service and distribution clerk
fairly and reasonably represented her wage-earning capacity, she had no loss of wage-earning capacity and reduced
her compensation benefits.
2

Under file number xxxxxx733, the Office accepted appellant’s August 23, 2002 occupational disease claim for
bilateral tarsal tunnel syndrome. On October 6, 2006 it issued a schedule award for one percent right lower
extremity impairment. In an August 2, 2007 decision, appellant received an additional five percent impairment of
her right leg for a total of six percent impairment.
3

Total loss of a lower extremity entitles a claimant to 288 weeks of compensation. 5 U.S.C. § 8107(c)(2).
Compensation for partial loss of use is proportionate. Section 8107(c)(19). Nineteen percent of 288 weeks of
compensation is 54.72 weeks of compensation. The Office began the period of the schedule award after total
disability ended on January 11, 2008 and appellant was cleared to return to limited duty.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.6 Effective
May 1, 2009, the Office adopted the sixth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.7
It is well established that preexisting impairments to the scheduled member are to be
included when determining entitlement to a schedule award.8 Office procedures state that any
previous impairment to the member under consideration is included in calculating the percentage
of loss except when the prior impairment is due to a previous work-related injury, in which case
the percentage already paid is subtracted from the total percentage of impairment.9
ANALYSIS
The Office accepted the condition of aggravation of bilateral knee osteoarthritis in the
current claim and bilateral tarsal tunnel syndrome in file number xxxxxx733. In its October 13,
2009 decision, the Office granted an additional schedule award of 19 percent for her right lower
extremity. In reaching this determination, the Office informed appellant that her total right lower
extremity impairment was 25 percent, less the 6 percent paid under file number xxxxxx733.
Dr. Garelick, the Office medical adviser, reviewed the medical reports of record and
determined that appellant had a right knee replacement with a good result that represented a 25
percent impairment of her right leg.10 He properly applied Table 16-3 on page 511 of the
A.M.A., Guides which allows for an impairment rating up to 25 percent in situations where a
person has a good result following knee replacement surgery. The statement of accepted facts

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
8

Michael C. Milner, 53 ECAB 446, 450 (2002); Raymond E. Gwynn, 35 ECAB 247 (1983).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7(a)(2) (January 2010).
10

A.M.A., Guides 511 (6th ed. 2009) (Table 16-3).

3

provided that Dr. Garelick contained no information regarding file number xxxxxx733 including
the prior schedule award for a six percent right leg permanent impairment.
Office procedures indicate that referral to an Office medical adviser is appropriate when a
detailed description of the impairment from a physician is obtained.11 The Board notes that the
Office did not include a clear listing of each of the accepted conditions and schedule awards
received. Office procedures indicate that accepted conditions must be included in a statement of
accepted facts and further provides that, when an Office medical adviser renders a medical
opinion based on a statement of accepted facts which is incomplete or inaccurate or does not use
the statement of accepted facts as the framework in forming his or her opinion, the probative
value of the opinion is diminished.12 In this case, the Office medical adviser did not have a
complete statement of accepted facts for review. Since the Office medical adviser rendered his
medical opinion based on an incomplete factual statement omitting appellant’s previous schedule
award issued under file number xxxxxx733, the probative value of his report is reduced. The
case will be remanded for further medical development and clarification as to the factual aspects
of appellant’s previous claim under file number xxxxxx733.
On remand, the Office should combine the files for appellant’s right lower extremity
conditions and specifically note the previous schedule award received under file number
xxxxxx733.13 It should submit the medical record and an updated statement of accepted facts to
its Office medical adviser for a supplemental report as to the extent of permanent impairment.
After such development as the Office deems necessary, an appropriate merit decision shall be
issued.
CONCLUSION
The Board finds the case is not in posture for decision as to the extent of appellant’s right
lower extremity impairment.

11

See J.Q., 59 ECAB 366 (2008); Thomas J. Fragale, 55 ECAB 619 (2004). Federal (FECA) Procedure Manual,
Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(d) (January 2010).
12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8
(February 2000) regarding the Office procedures for doubling case files.

4

ORDER
IT IS HEREBY ORDERED THAT the October 13, 2009 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with the above opinion.
Issued: November 16, 2010
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-644
Issued: September 28, 2011

Case Submitted on the Record

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

On January 19, 2010 appellant filed a timely appeal from the August 14, 2009 merit
decision of the Office of Workers’ Compensation Programs (OWCP) terminating his
compensation.
OWCP accepted appellant’s August 25, 2006 claim for lumbar sprain and paid
compensation for periods of disability. On February 8, 2007 OWCP determined that there was a
conflict in the medical opinion between appellant’s attending physicians and Dr. Steven
Valentino, a Board-certified orthopedic surgeon serving as an OWCP referral physician.1
On June 9, 2008 OWCP referred appellant to Dr. Richard G. Schmidt, a Board-certified
orthopedic surgeon, for an impartial medical examination and opinion on his continuing work-

1

OWCP initially referred the case to Dr. John Duda, a Board-certified orthopedic surgeon, for an impartial
medical examination and opinion on his continuing work-related residuals. In a September 8, 2007 decision, OWCP
terminated appellant’s compensation effective September 18, 2007 based on a May 1, 2007 report of Dr. Duda. In a
May 28, 2008 decision, an OWCP hearing representative reversed the September 8, 2007 decision on the grounds
that Dr. Duda’s opinion was not sufficiently well rationalized to justify termination of appellant’s compensation.

related residuals.2 The record contains a printout (bearing the heading “IFECS Report:
ME023 -- Appointment Schedule Notification”) which indicated that the appointment with
Dr. Schmidt was scheduled for July 7, 2008.
In a July 29, 2008 decision, OWCP terminated appellant’s compensation effective
July 28, 2008 based on a July 7, 2008 report of Dr. Schmidt. In a November 5, 2008 decision, an
OWCP hearing representative set aside OWCP’s July 29, 2008 decision and remanded the case
to OWCP in order to obtain a supplemental report from Dr. Schmidt. OWCP obtained a
December 8, 2008 report from Dr. Schmidt and, in a January 21, 2009 decision, terminated
appellant’s compensation effective January 21, 2009 based on the opinion of Dr. Schmidt.
Appellant requested a hearing before an OWCP hearing representative. At the May 28,
2009 hearing, counsel argued that there was no evidence that Dr. Schmidt was chosen by using
the Physicians’ Directory System (PDS), the computerized system for selecting impartial
medical specialists.
In an August 14, 2009 decision, OWCP’s hearing representative affirmed the January 21,
2009 decision.
The Board finds that OWCP has not met its burden of proof to terminate appellant’s
compensation benefits as it has not established that Dr. Schmidt was selected in a fair and
unbiased manner.
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of impartial medical specialists
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that impartial
medical specialists will be selected on a strict rotating basis in order to negate any appearance
that preferential treatment exists between a particular physician and OWCP.3
OWCP has an obligation to verify that it selected Dr. Schmidt in a fair and unbiased
manner. It maintains records for this very purpose.4 The Board has placed great importance on
the appearance as well as the fact of impartiality, and only if the selection procedures which were
designed to achieve this result are scrupulously followed may the selected physician carry the
special weight accorded to an impartial specialist. OWCP has not met its affirmative obligation
to establish that it properly followed its selection procedures.
Before OWCP and on appeal to the Board, counsel objected to Dr. Schmidt’s selection on
the grounds there is insufficient evidence of record to establish that he was selected on a proper
2

Dr. Schmidt was also asked to address whether several conditions should be added as accepted work injuries,
including abdominal wall and umbilical hernia, rectus abdominal sprain and strain, L5-S1 herniated disc and L5-S1
radiculopathy, bilaterally.
3

Raymond J. Brown, 52 ECAB 192 (2001).

4

M.A., Docket No. 07-1344 (issued February 19, 2008).

2

rotational basis using the PDS. Counsel argued that the file does not reveal whether Dr. Schmidt
was selected from the PDS and there is no image of his selection from the PDS. The record
contains a printout (bearing the heading “IFECS Report: ME023 -- Appointment Schedule
Notification”) which indicated that the appointment with Dr. Schmidt was scheduled for
July 7, 2008. While this evidence suggests that Dr. Schmidt might have been selected from the
PDS, the ME023 alone is insufficient to substantiate proper selection of the impartial specialist
under OWCP procedures. The evidence is not adequate to establish that Dr. Schmidt was
properly selected in compliance with the rotational system using the PDS.5 OWCP’s decision
terminating appellant’s compensation benefits must be reversed due to an unresolved conflict in
medical opinion.
IT IS HEREBY ORDERED THAT the August 14, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 28, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5

See A.R., supra note 13.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MATERIAL COMMAND, Texarkana, TX,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-853
Issued: October 25, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On March 7, 2012 appellant filed a timely appeal from October 31, 2011 and
February 23, 2012 merit decisions of the Office of Workers’ Compensation Programs (OWCP)
which denied his occupational disease claim. The Board assigned Docket No. 12-853.
On August 9, 2011 appellant, then a 59-year-old heavy mobile equipment mechanic
helper, filed an occupational disease claim alleging that he suffered from hearing loss as a result
of working around a noisy environment at work. He stated that he first became aware of his
hearing loss and realized that it resulted from his employment on July 11, 2011.
By letter dated August 15, 2011, the employing establishment controverted appellant’s
claim as duplicative because he had an approved hearing loss claim under OWCP case number
xxxxxx315.
On October 31, 2011 OWCP denied appellant’s claim finding that he had not established
that the alleged employment events occurred as described and he had not submitted medical
evidence to establish that he sustained hearing loss as a result of his federal employment. It
concluded that he had not established fact of injury.
On November 8, 2011 appellant filed a request for reconsideration.

In an August 4, 2011 memorandum, Patricia E. Chisum, an employing establishment
health technician in audiology, noted that appellant was evaluated and identified as having a
significant change in his hearing. She submitted audiograms dated February 23, 2009, and
July 11 and August 4, 2011.
By decision dated February 23, 2012, OWCP denied modification of appellant’s claim. It
stated that while the claim had initially been denied because appellant had not established fact of
injury, with medical evidence, the case record continued to lack sufficient factual evidence to
support the mechanism of injury.
OWCP procedures require that cases should be combined where proper adjudication
depends on cross-referencing evidence between files.1 In the instant appeal, it appears that, for a
full and fair adjudication, appellant’s hearing loss claims should be combined pursuant to OWCP
procedures. The August 4, 2011 memorandum from the employing establishment suggests that
appellant sustained a significant worsening of his hearing. Given that he had a prior accepted
hearing loss claim, the Board is unable to determine whether any change in his hearing
constitutes an increased loss related to his initial claim, or a new injury. Accordingly, the case is
remanded to OWCP for reconstruction and proper assemblage of the case record, followed by
issuance of an appropriate decision.
IT IS HEREBY ORDERED THAT the February 23, 2012 and October 31, 2011
decisions of the Office of Workers’ Compensation Programs are set aside and the case is
remanded for further action consistent with this order of the Board.
Issued: October 25, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

1

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

2