United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 13-1007
Issued: September 11, 2013

Case Submitted on the Record

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

JURISDICTION
On March 19, 2013 appellant filed a timely appeal from a February 26, 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 has more than 50 percent impairment to her right leg and
35 percent impairment to her left leg, for which she received schedule awards.
FACTUAL HISTORY
Appellant, a 41-year-old letter carrier, filed a Form CA-2 claim for benefits on
August 21, 1999, alleging a left knee condition causally related to employment factors. OWCP
accepted the claim for a left knee sprain, left leg sprain and a meniscus tear of the left knee.

1

5 U.S.C. § 8101 et seq.

On August 30, 2000 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her left lower extremity.
By decision dated September 29, 2000, OWCP granted a schedule award for a seven
percent permanent impairment of the left leg. The schedule award ran for the period June 16 to
November 3, 2000, a total of 20.16 weeks of compensation.
By letter dated October 9, 2000, appellant requested an oral hearing which was held on
February 28, 2011.
By decision dated May 22, 2001, an OWCP hearing representative affirmed the
September 29, 2000 decision.
In 2002, OWCP accepted the condition of consequential right knee recurrent tear of the
right medial meniscus.
By decision dated February 3, 2003, OWCP granted appellant an additional 28 percent
permanent impairment award for the left leg and a 15 percent permanent impairment award for
the right leg.
On December 9, 2010 appellant underwent surgery for a total left knee replacement. The
procedure was performed by Dr. Richard Greenfield, Board-certified in sports medicine and a
specialist in orthopedic surgery. OWCP authorized the surgery.
On July 12, 2011 appellant filed a claim for additional schedule awards based on the
partial loss of use of her right and left lower extremities.
In a report dated August 19, 2011, Dr. Greenfield found that appellant had a 53 percent
right leg impairment and a 37 percent left leg impairment pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (fifth edition) (A.M.A.,
Guides). With regard to the right lower extremity, he found that she had persistent medial pain
which resulted in limited bending, stooping and squatting. Dr. Greenfield advised that appellant
could walk up and down stairs, but must do so slowly. He stated that she walked with a good
gait, with excellent alignment. Dr. Greenfield advised that active range of motion of the right
knee was 0 to 120 degrees with tenderness and crepitation. He obtained x-rays of the right knee
which showed bone-on-bone deformity, medially to the right knee. Dr. Greenfield stated that
subjective factors of disability for the right knee were slight, intermittent pain which became
slight, constant pain with prolonged standing and walking and moderate, occasional pain, when
she was doing stairs. Under Table 17-31, page 544, appellant had 50 percent impairment of the
right knee based on no articular cartilage remaining, medially. She had an additional 2 percent
right lower extremity impairment for persistent patellofemoral crepitation or a combined 53
percent right lower extremity impairment.
With regard to the left knee, Dr. Greenfield advised that appellant had achieved a good
result from her December 9, 2010 left total knee replacement. Appellant had occasional pain in
the left knee but was able to walk and had no instability. X-rays of the left knee indicated that it
was well aligned, with medial, lateral, anterior and posterior stability and no effusion.
Dr. Greenfield advised that active range of motion of the left knee was 0 to 90 degrees. He
stated that subjective factors of disability included minimal, intermittent pain, which became
2

slight, occasional pain with prolonged standing and slight, constant pain with going up and down
stairs. Dr. Greenfield rated a 37 percent left leg impairment based on the left knee replacement
under Table 17-35, page 549. Using the rating scale at page 549, he scored 45 points for mild
occasional pain; 18 points for 90 degrees of active range of motion; 10 points for good anterior
posterior stability; and 15 points for good medial lateral stability, for a total of 88 points.
Pursuant to Table 17-33 at page 547, a score of 88 points represented a 37 percent left lower
extremity impairment.
In a September 25, 2011 report, Dr. Leonard A. Simpson, a specialist in orthopedic
surgery and OWCP medical adviser, reviewed Dr. Greenfield’s August 19, 2011 report. He
found that appellant had a 50 percent right lower extremity impairment and a 21 percent left
lower extremity impairment under the sixth edition of the A.M.A., Guides. Dr. Simpson used
the diagnosis-based impairment method, finding that, under Table 16-3, pages 509 and 511,
Knee Regional Grid, Lower Extremity Impairments, the section for arthritis, appellant’s primary
right knee osteoarthritis yielded a class IV rating for primary knee joint arthritis, for no articular
cartilage interval remaining or a 50 percent default lower extremity impairment.”2 He
determined that she had a functional history grade modifier 1, to which he added 1 due to class 4
impairment, for a total grade modifier 2, a moderate problem, pursuant to the Adjustment Grid,
Functional History, at Table 16-6, page 516 of the A.M.A., Guides,3 functional history
adjustment for the lower extremities. With regard to the physical examination, Dr. Simpson
assigned a grade modifier 1 based on range of motion of 0 to 120 degrees with tenderness and
crepitation, plus 1 for class 4 impairment, for a total grade modifier 2, a moderate problem,
pursuant to Table 16-7, Section 16.3b, page 517 of the A.M.A., Guides, the table pertaining to
rating lower extremity impairments based on physical examination.4 He assigned no grade for
clinical studies pursuant to Section 16.3c and Table 16-8, page 519 of the A.M.A., Guides5 as
this was used for class placement. Using the net adjustment formula at page 521,6 Dr. Simpson
subtracted the grade modifier 1 from functional history and physical examination for a net
adjustment of minus three, which produced an adjusted class IV, grade A impairment of 50
percent for the right leg.
With respect to the leg, Dr. Simpson found that, under Table 16-3, pages 509 and 511,
diagnosis of left knee replacement, appellant had a good result based on good position; i.e., a
stable, functional postsurgical condition, which yielded a class 2 rating, for a 25 percent default
lower extremity impairment.”7 He determined that she had a functional history grade modifier 1,
a mild problem, noting her subjective complaints of minimal intermittent pain and slight
occasional pain with prolonged standing, slight constant pain with going up and down stairs.
With regard to physical examination, Dr. Simpson assigned a grade modifier 1, a mild problem,
based on range of motion of 0 to 90 degrees. He assigned no grade for clinical studies pursuant
2

A.M.A., Guides 509.

3

Id. at 516.

4

Id. at 517.

5

Id. at 519.

6

Id. at 521.

7

Id. at 509.

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to Section 16.3c and Table 16-8, page 519 of the A.M.A., Guides8 since this was used for class
placement. Using the net adjustment formula at page 521,9 Dr. Simpson subtracted the grade
modifier 1 from functional history and physical examination for a net adjustment of minus two,
to total an adjusted class 2, grade A impairment of 21 percent for the left leg. He concluded that
appellant had an additional 35 percent right lower extremity impairment and was not entitled to
any additional impairment for the left lower extremity.
By decision dated July 31, 2012, OWCP granted a schedule award for an additional 35
percent permanent impairment of the right leg. It denied an additional schedule award for the
left lower extremity. The right leg schedule award ran for the period June 3, 2012 to May 9,
2014 or a total of 100.8 weeks of compensation.
On August 24, 2012 appellant requested an oral hearing, which was held on
December 12, 2012.
By decision February 26, 2013, an OWCP hearing representative affirmed the July 12,
2012 decision.
LEGAL PRECEDENT
The schedule award provision of FECA10 and its implementing regulations11 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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.12 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.13
The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).14
Under the sixth edition, for upper extremity impairments the evaluator identifies the impairment
class for the diagnosed condition (CDX), which is then adjusted by grade modifiers based on
8

Id. at 519.

9

Id. at 521.

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

12

Id.

13

Veronica Williams, 56 ECAB 367, 370 (2005).

14

A.M.A., Guides, supra note 2 at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.

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Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).15
The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16
ANALYSIS
OWCP accepted the conditions of bilateral sprains of unspecified sites, knee and leg;
bilateral tears of the medial meniscus of the knees; bilateral osteoarthritis in the lower legs, and
authorized surgery for total left knee replacement.
Appellant’s treating physician,
Dr. Greenfield, rated her permanent impairment utilizing the fifth edition of the A.M.A., Guides.
The Board notes that the sixth edition of the A.M.A., Guides is to be used in rating impairment
after May 1, 2009.17 Since Dr. Greenfield’s report was not in accordance with the appropriate
edition of the A.M.A., Guides, his rating of impairment is of reduced probative value.18 He did
however provide proper clinical findings describing appellant’s impairment.19
Dr. Simpson, OWCP’s medical adviser, reviewed Dr. Greenfield’s findings on physical
examination and applied the sixth edition of the A.M.A., Guides to rate impairment to
appellant’s lower extremities.
The Board notes that the A.M.A., Guides directs examiners to rate diagnosis-based
impairments for the lower extremities pursuant to Chapter 16. At page 497, Section 16.2a such
impairments are defined by class and grade.20 In accordance with this section, the examiner is
instructed to utilize the net adjustment formula outlined at pages 521-22 of the A.M.A., Guides,21
to obtain the proper impairment rating. Dr. Simpson rated right lower extremity impairment by
using the Knee Regional Grid, Lower Extremity Impairments Table 16-3, page 509 and 511 of
the A.M.A., Guides. He applied the section on arthritis and found that appellant had a class 4
rating for primary knee osteoarthritis with no cartilage interval remaining, for a default score of
50 percent lower extremity impairment. Dr. Simpson then utilized the net adjustment formula,
finding a grade modifier 2 for functional history and physical examination and no grade modifier
for clinical studies. He compared these net adjustments and calculated a class 4 default
impairment of minus three, for a grade C, 50 percent right lower extremity impairment.
As to the left lower extremity, Dr. Simpson used the diagnosis of total knee replacement
at Table 16-3, pages 509 and 511. He found that appellant had a class 2 rating for good result,
good position, stable, functional, for a default score of 25 percent lower extremity impairment.
Dr. Simpson then utilized the net adjustment formula, finding the grade modifiers of 1 for
15

Id. at 385-419.

16

Id. at 411.

17

See Linda Beale, 57 ECAB 429 (2006).

18

J.H., Docket No. 10-1927 (issued June 1, 2011).

19

If the clinical findings are fully described, any knowledgeable observer may correlate the findings with the
A.M.A., Guides. See Tara L. Hein, 56 ECAB 431 (2005).
20

A.M.A., Guides 497.

21

Id. at 521-22.

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functional history and physical examination and no grade modifier for clinical studies. He
compared these net adjustments and calculated a class 2 default impairment of minus two, for a
grade A, 21 percent left lower extremity impairment.
The Board finds that Dr. Simpson properly relied on the impairment guidelines set forth
at page 497, Section 16.2a to obtain the proper impairment ratings for appellant’s accepted
bilateral knee conditions. Based on his report, OWCP properly determined in its July 31, 2012
decision that appellant had an additional 35 percent impairment to her right leg but did not have
any additional impairment to her left lower extremity.
Appellant did not submit any other medical evidence rating impairment under the sixth
edition of the A.M.A., Guides. The Board will affirm OWCP’s February 26, 2013 decision.
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 50 percent impairment of her right leg and 35 percent
impairment to her left lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2013 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 11, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
DEPARTMENT OF COMMERCE, 2010
DECENNIAL CENSUS, Dallas, TX, Employer
__________________________________________

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Appearances:
Robert C. Ruhlin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1720
Issued: January 16, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On July 10, 2013 appellant, through her attorney, filed a timely appeal from the
January 16, 2013 nonmerit decision of the Office of Workers’ Compensation Programs’
(OWCP). Because more than one year elapsed between June 24, 2011, the last merit decision,
and the filing of this appeal on July 10, 2013, and pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
1
2

5 U.S.C. §§ 8101-8193.

For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal
of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20
C.F.R. §§ 501.2(c) and 501.3. The record also contains OWCP merit decisions dated February 14 and May 22,
2012, but appellant has not appealed these decisions. Appellant submitted additional evidence after OWCP’s
January 16, 2013 decision, but the Board cannot consider such evidence for the first time on appeal. See 20 C.F.R.
§ 501.2(c).

FACTUAL HISTORY
OWCP accepted that on May 14, 2010 appellant, then a 56-year-old crew leader,
sustained a neck strain, right shoulder closed acromioclavicular dislocation, right rotator cuff tear
and displacement of cervical intervertebral disc without myelopathy due to a work-related motor
vehicle accident. On March 16, 2011 Dr. Abraham S. Abdo, an attending Board-certified
orthopedic surgeon, performed a right rotator cuff repair which was authorized by OWCP.
Appellant received disability compensation for the periods March 16 to July 11, 2011 and
February 14 to June 16, 2012 on the daily rolls.
Emergency room records from May 14, 2010 contain findings regarding appellant’s neck
and right shoulder and show that she was released in stable condition. Appellant underwent
diagnostic testing on May 14 and June 16, 2010 and the findings reveal, inter alia, a right rotator
cuff tear and right subluxed acromioclavicular joint with degenerative changes. In a June 22,
2010 form report, an attending chiropractor indicated that appellant had been totally disabled
since May 20, 2010. There was no indication that a spinal subluxation had been determined
from x-ray testing.
In November 2010, appellant filed a Form CA-7 claiming entitlement to disability
compensation for the period May 16, 2010 to March 15, 2011.
Appellant submitted a January 5, 2011 report in which Dr. Abdo diagnosed cervical
strain and torn right rotator cuff due to the May 14, 2010 injury. In a January 12, 2011 report,
Dr. Abdo stated, “[Appellant] sustained an injury on the job on May 14, 2010 to her neck and
right shoulder. She has been unable to work since that time.” Appellant also submitted
additional diagnostic testing results from March and June 2011 and a May 25, 2011 report, in
which an attending physician discussed her neck condition but did not provide an opinion on
disability.
In a June 24, 2011 decision, OWCP denied appellant’s claim on the grounds that she did
not submit sufficient medical evidence to establish that she had work-related disability for the
period May 14, 2010 to March 15, 2011.
In a June 22, 2012 letter received by OWCP on June 27, 2012, appellant, through
counsel, requested reconsideration of OWCP’s June 24, 2011 decision. In the letter, counsel
argued that the January 5 and 12, 2011 reports of Dr. Abdo established her claim for workrelated disability for the period May 16, 2010 to March 15, 2011. The record does not contain
the envelope in which the reconsideration request was sent. Appellant submitted additional
medical evidence in support of the reconsideration request.
In a January 16, 2013 decision, OWCP denied appellant’s request for further review of
the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error. It stated:
“This refers to [appellant’s] recent letter requesting reconsideration of our
decision dated June 24, 2011.
[Her] letter was received June 27, 201[2].
According to the regulations in effect on the date the decision was issued, we will
not review a decision unless the request is received within one year of that
decision. We did consider [appellant’s] request under 20 C.F.R. [§] 10.607(b) to
2

determine whether [she] presented clear evidence that [OWCP’s] last merit
decision was incorrect…. [Appellant] did not present clear evidence of error.”
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.3
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.4
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes “clear
evidence of error.”5 OWCP’s regulations and procedure provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of error” on
the part of OWCP.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.7 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.11
As noted, OWCP’s regulations at 20 C.F.R. § 10.607(a) establish a one-year time limit
for requesting reconsideration. The one-year period begins on the date of the original decision
3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5a
(October 2011). OWCP’s procedure further provides, “The term ‘clear evidence of error’ is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made a mistake. For
example, a claimant provides proof that a schedule award was miscalculated, such as a marriage certificate showing
that the claimant had a dependent but the award was not paid at the augmented rate. Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued would have created a conflict in
medical opinion requiring further development, is not clear evidence of error.”
7

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

8

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

9

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

10

See Leona N. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

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and an application for reconsideration must be received by OWCP within one year of the date of
the OWCP decision for which review is sought for merit decisions issued on or after
August 29, 2011.12 For cases where review is sought for merit decisions issued prior to
August 29, 2011, timeliness is determined by the postmark on the envelope, if available.13
Otherwise, the date of the letter itself should be used.14
ANALYSIS
OWCP accepted that appellant sustained several medical conditions due to a May 14,
2010 work-related accident and she filed a Form CA-7 claiming entitlement to disability
compensation for the period May 16, 2010 to March 15, 2011. In a June 24, 2011 decision, it
denied her claim on the grounds that she did not submit sufficient medical evidence to establish
that she had work-related disability for the period May 14, 2010 to March 15, 2011. Appellant
requested reconsideration of this decision in a letter dated June 22, 2012.
In a January 16, 2013 decision, OWCP denied appellant’s request for further review of
the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
The Board finds, however, that OWCP improperly determined that appellant filed an
untimely request for reconsideration. OWCP indicated that her reconsideration request had to be
received within one year of its June 24, 2011 merit decision to be considered timely. The
standard noted by OWCP only applies to cases in which a claimant requests consideration of an
OWCP decision dated on or after August 29, 2011.15 Appellant requested reconsideration of a
June 24, 2011 merit decision, i.e., a merit decision issued prior to August 29, 2011 and therefore
the timeliness is determined by the postmark on the envelope, if available and by the date of the
reconsideration letter if the postmark is not available.16
As the case record does not contain the envelope that accompanied appellant’s request for
reconsideration, the date of the request itself must be used to determine the timeliness of her
request. The record shows that she requested reconsideration in a letter dated June 22, 2012. The
record therefore establishes that appellant filed her request within one year of OWCP’s June 24,
2011 decision. Consequently, OWCP improperly determined that her request for reconsideration
of the merits of her claim was untimely. Because it improperly found that appellant filed an
untimely reconsideration request, it also improperly applied the clear evidence of error standard in
evaluating that reconsideration request.
Therefore, OWCP’s January 16, 2013 decision shall be set aside and the case remanded to
OWCP for evaluation of appellant’s reconsideration request under the standards for a timely filed

12

See Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.4 (October 2011).

13

Id. at Chapter 2.1602.3(a) (May 1991).

14

See Douglas McLean, 42 ECAB 759, 761-62 (1991); William J. Kapfhammer, 42 ECAB 271, 272-74 (1990).

15

See supra note 12.

16

See supra notes 13 and 14.

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reconsideration request.
appropriate decision.

After such development it deems necessary, OWCP shall issue an
CONCLUSION

The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of OWCP.
Issued: January 16, 2014
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF LABOR, WAGE & HOUR
DIVISION, Dallas, TX, Employer
__________________________________________

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

Docket No. 14-1520
Issued: June 18, 2015

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 9, 2014 appellant filed a timely appeal from a June 3, 2014 merit decision of the
Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish wage-loss
compensation for the period November 5, 2010 to May 20, 2013.
On appeal appellant contends that her accepted medical conditions should be upgraded
based on medical evidence dating back to her first examination with an attending physician.
1

Appellant filed a timely request for oral argument. After exercising its discretion the Board, by order dated
May 1, 2015, denied her request because her arguments could be adequately addressed in a decision based on a
review of the case record. Order Denying Request for Oral Argument, Docket No. 14-1520 (issued May 1, 2015).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 26, 2010 appellant, then a 44-year-old human resources compensation
specialist, filed a traumatic injury claim alleging that on November 5, 2010 she bruised her
shoulders and upper back, and experienced pain in her neck, head, arms, and wrist at work.3 She
claimed that she was upset by all the events that had happened since her return to work on
October 6, 2010 and she was crying uncontrollably when she turned to put away her files and hit
her shoulder and upper back on the corner of a file cabinet behind her desk.
In a January 13, 2011 decision, OWCP accepted that the November 5, 2010 incident
occurred as alleged. It denied appellant’s claim, however, finding that the medical evidence
failed to establish that her cervical, bilateral shoulder and wrist, and lumbar conditions were
causally related to the accepted employment incident. After a request for a hearing, by decision
dated June 7, 2011, an OWCP hearing representative affirmed the January 13, 2011 decision.
Appellant filed numerous requests for reconsideration. In decisions dated July 29 and
September 21, 2011 and April 11, 2012, OWCP denied modification of its prior decisions based
on a merit review of her claim. It denied appellant’s requests for a merit review in decisions
dated September 30, 2011 and February 2, 2012.
On November 5, 2012 OWCP determined that a second opinion evaluation was necessary
to determine whether appellant had a diagnosed or preexisting condition that was caused or
aggravated by the accepted November 5, 2010 employment incident. By letter dated
November 26, 2012, it referred her, together with a statement of accepted facts and the medical
record, to Dr. Ivan J. Antosh, a Board-certified orthopedic surgeon.
In a December 28, 2012 medical report, Dr. Antosh reviewed a history of the
November 5, 2010 employment injuries and appellant’s medical records, noted her complaints,
and presented findings on examination. He found that she had significant neck pain and spasms
and bilateral shoulder tenderness and stiffness. Appellant also had significantly limited bilateral
shoulder range of motion, but did not find any upper extremity radicular findings. Dr. Antosh
stated that she had numerous underlying psychiatric diagnoses that obviously interfered with her
ability to participate effectively in his examination. Appellant gave minimal effort throughout
the examination resulting in a suboptimal physical examination. Despite a suboptimal physical
examination, Dr. Antosh stated that her subjective physical complaints, which included
headaches and pain in her neck, upper back, and entire bilateral upper extremities accompanied
by numbness, a pins and needles sensation, tingling, and weakness in her shoulders, arms, wrists,
and fingers seemed to correlate with what objective findings he could produce on examination.
He opined that it was reasonable that her neck and bilateral shoulder strain were caused by the
3

Appellant filed claims under OWCP File Nos. xxxxxx954, xxxxxx901, xxxxxx008, and xxxxxx205 for injuries
sustained on August 19, 2009, October 6, 2010, October 31, 2011, and September 21, 2012, respectively. OWCP
combined these claims into a master file assigned File No. xxxxxx954. It denied appellant’s claims for
compensation. The denial of these claims was affirmed by the Board in decisions dated January 12, 2012, April 1
and June 6, 2013, and September 11, 2014. See Docket Nos. 11-796 (issued January 12, 2012), 12-1899 (issued
June 6, 2013), and 14-655 (issued September 11, 2014), respectively. The file for the instant claim has not been
combined with the files from appellant’s previous claims.

2

November 5, 2010 employment incident. It did not appear that appellant’s arm and wrist pain
were related to this specific injury. Dr. Antosh did not believe that she had a preexisting
condition and appellant’s neck and shoulder pain appeared to have been caused by the work
injury which was not an aggravation of underlying pathology. He related that, since appellant
did not have adequate physical therapy to allow improvement, her condition was not at baseline.
Dr. Antosh stated that she had decreased range of motion of the neck and bilateral shoulders with
a positive Neer’s impingement test bilaterally. Appellant could benefit from pain control
modalities and range of motion. She needed ongoing psychiatric and pain specialist care for her
temporary condition that should resolve with an adequate course of conservative modalities.
Dr. Antosh stated that appellant had limited shoulder and cervical range of motion which would
support limitation in her work capacity during the period between her injury and his
examination. While appellant worked in a low demand position, he did not see any objective
reason why she could not tolerate sedentary desk work eight hours a day with the restrictions
outlined in an accompanying work capacity evaluation.
On March 8, 2013 OWCP asked Dr. Antosh to explain how the mechanism of injury
caused appellant’s diagnosed neck and bilateral shoulder strain and why he believed that she had
no preexisting conditions. Dr. Antosh was also asked to address whether a material change had
occurred in her underlying conditions on November 5, 2010.
In a March 27, 2013 addendum report, Dr. Antosh stated that, based on appellant’s
subjective description of her injury, it was reasonable to conclude that her neck and right
shoulder were aggravated by that specific work injury due to its sudden jarring nature while she
was in an awkward position. He suspected that a previously underlying shoulder condition was
aggravated by this minor injury which produced subacromial bursitis and pain. However, based
on this information and appellant’s current examination, Dr. Antosh could not conclude that any
issues regarding her left shoulder, arms, and wrists were related to that injury episode. He
believed that appellant developed subacromial bursitis as a result of the minor injury episode.
This led Dr. Antosh to believe that she had some mild underlying rotator cuff disease
(tendinopathy/tendinitis) which would have predisposed her to develop bursitis as a result of the
seemingly minor injury episode. Similarly, given appellant’s age her neck strain was likely an
aggravation of mild underlying degenerative cervical disease which was common. Dr. Antosh
related that based on his review of the medical records and the objective findings which were
limited by her cooperation with the examination he would not conclude that there was a material
change in her underlying conditions. Again, this likely represented an aggravation of chronic
and mild underlying conditions involving both the right shoulder and neck.
In a May 3, 2013 decision, OWCP accepted appellant’s claim for right shoulder
subacromial bursitis and neck sprain based on Dr. Antosh’s opinion. It stated that her claim
remained denied for left shoulder, bilateral wrist, and lumbar conditions. In a separate decision
dated May 3, 2013, OWCP notified appellant about the acceptance of her claim.
On May 29, 2013 OWCP requested that Dr. Antosh provide whether appellant’s accepted
right shoulder and neck conditions had returned to baseline or preinjury status and whether these
conditions had resolved. It also requested that he clarify appellant’s work capacity by providing
whether she had any period of disability that precluded her from performing the requirements of
her position.

3

In a June 10, 2013 addendum report, Dr. Antosh stated that appellant’s accepted right
shoulder and neck conditions had not returned to baseline or resolved completely based on his
review of the records and his December 28, 2012 physical examination. Appellant had chronic
pain residuals as outlined in his previous report. Dr. Antosh stated that a six-month course of
conservative modalities should be sufficient to allow resolution of her symptoms. Based on his
last physical examination there was evidence of ongoing subacromial bursitis (positive Neer’s
impingement test, reduced range of motion) and nonradicular cervical pain (cervical tenderness
to palpation, and reduced range of motion). Dr. Antosh related that these symptoms could be
considered chronic pain residuals as a result of appellant’s initial employment injury. He
recommended further treatment and provided her work restrictions. Dr. Antosh opined that
based on appellant’s job description, she could safely perform her sedentary/low demand duties.
He stated that there was no period of disability precluding her from performing the requirements
of her position.
On July 7, 2013 appellant filed a claim for compensation for leave without pay (LWOP)
from November 5, 2010 to May 20, 2013.
On August 27, 2013 appellant requested reconsideration of the denied condition in the
May 3, 2013 decision.
An August 28, 2013 report cosigned by Dr. Julia Franklin, a chiropractor, and
Dr. Ronnie D. Shade, an attending Board-certified orthopedic surgeon, noted appellant’s
complaints about being constantly harassed by her supervisor regarding her job performance and
medical appointments. Appellant also complained about pain in her neck, bilateral arms,
shoulders, wrists, legs, feet, and upper back. Drs. Franklin and Shade reviewed appellant’s
medical treatment and provided examination findings. The physicians assessed her as having
cervical radiculopathy, bilateral shoulder myofasciitis, bilateral carpal tunnel syndrome, stress,
chronic pain syndrome, and lumbar spinal stenosis foraminal at L4-5 and L5-S1. Appellant also
had major depressive disorder secondary to her November 5, 2010 employment injury and
stressor disorders sustained on the same date. It was noted that she had been off work since
September 2012.
Drs. Franklin and Shade suspected that appellant’s secondary emotional conditions were
directly related to her November 5, 2010 employment injury and impeded her ability to recover.
The physicians stated that she required mental and physical medical care to increase her
mobility, flexibility, self-esteem, and confidence, and to reduce her anxiety, depression, and
stress resulting from her November 5, 2010 work-related injury which had left her temporarily
totally disabled. Appellant was expected to recover from this injury and illness and return to
gainful employment.
Appellant submitted laboratory test results dated August 31, 2013.
In a September 18, 2013 bilateral upper extremity electromyogram and nerve conduction
velocity (EMG/NCV) studies report, Dr. Stephen J. Becker, a Board-certified physiatrist, found
EMG evidence of active C6-7 cervical radiculopathy and no NCV evidence of peripheral
neuropathy, plexopathy, or entrapments.

4

In an August 29, 2013 memorandum, the employing establishment challenged appellant’s
claimed period of disability, contending that it was incorrect. It referenced its July 29, 2013
e-mail which provided her leave record from 2010 until her termination on February 15, 2013.
Appellant had intermittent periods of work, LWOP, administrative leave, donated and annual
leave, credit hours, absent without leave, and sick leave from October 24, 2010 to
February 15, 2013.
By letter dated October 21, 2013, OWCP advised appellant about the type of medical
evidence needed to establish her claim.
In an October 28, 2013 decision, OWCP denied modification of the May 3, 2013
decision. It found that the evidence submitted was insufficient to establish that appellant
sustained a left shoulder, bilateral wrist, and lumbar conditions causally related to her accepted
November 5, 2010 employment injuries.
Treatment notes dated September 18 to October 17, 2013 from Dr. Shade addressed the
treatment of appellant’s spine and extremities with physical therapy. In a November 14, 2013
report, Dr. Shade reiterated his assessments of cervical radiculopathy, bilateral shoulder
myofasciitis, bilateral carpal tunnel syndrome, stress, chronic pain syndrome, lumbar spinal
stenosis foraminal at L4-5 and L5-S, major depressive disorder secondary to her November 5,
2010 employment injury, and stressor disorders sustained on the same date. Dr. Shade also
reiterated that he suspected that appellant’s secondary emotional conditions were directly related
to her November 5, 2010 employment injury and impeded her ability to recover and opined that
this injury resulted in her temporary total disability. On November 21, 2013 he reported that
when he initially evaluated appellant on November 24, 2010 she had sustained neck, bilateral
shoulder and wrist, and upper back injuries as a result of her work-related November 5, 2010
injury. Dr. Shade again noted her complaints of stress from her supervisor, headaches, and pain
in her neck, bilateral arms, shoulders, wrists, legs, and feet, and upper back. He found
comprehensive neurological and musculoskeletal issues supported by objective medical evidence
due to appellant’s conditions which had rendered her incapable of returning to work. Dr. Shade
noted her repetitive work duties and stated that she may experience periodic episodes of
increased pain, joint stiffness, aches, numbness, tingling, tenderness, and spasms of her shoulders
and wrists which may incapacitate her from performing any of her work duties. He opined that
appellant’s work activities and injuries to her shoulders, wrists, feet, neck, and back required
permanent limitations. Dr. Shade stated that, as a result of the multitudes of conditions
documented above, it was clear that she would have periodic episodes that would incapacitate
her from time to time. He placed appellant off work due to the severity of the symptoms listed
above.
In a January 8, 2014 decision, OWCP denied appellant’s claim for compensation from
November 5, 2010 through May 20, 2013. It found that the weight of the medical opinion
evidence rested with Dr. Antosh’s opinion that there was no period of disability precluding
appellant from performing her work duties.
On January 13, 2014 appellant requested an oral hearing before an OWCP hearing
representative. In a January 10, 2014 letter, she requested that her claim be upgraded to include
her emotional condition and additional physical conditions.

5

In reports dated November 24, 2010 to March 31, 2014, Dr. Shade reiterated his physical
and emotional diagnoses and opinion on causal relationship. He also assessed appellant as
having acute cervical strain with bilateral upper extremity radiculopathy, acute lumbar strain
with left lower extremity radiculitis, chronic pain, and post-traumatic stress disorder. Dr. Shade
advised that she was unable to work from December 8, 2010 to February 3, 2012. He stated that
appellant was reluctant to return to her prior stressful job environment and that she was waiting
for relocation to another city or state and a civil rights investigation. Dr. Shade strongly
recommended that she be transferred out of her work section due to her present medical and
mental condition. In his reports dated March 28 to June 6, 2012, he noted that appellant had
returned to her regular work duties on March 15, 2012. In an August 29, 2013 note, Dr. Shade
advised that her injuries were caused by the physical requirements of her human resources
compensation specialist job. He strongly opined that future treatment was reasonable and
necessary.
In a September 7, 2012 report, Dr. R. Anthony Moore, a Board-certified psychiatrist,
opined that appellant had a major depressive episode and paranoia resulting from her hostile
work environment. He stated that psychological testing corroborated findings of her continued
diminished work performance due to depression. Dr. Moore supported appellant’s motion for
disability retirement. In a November 19, 2012 note, he indicated that she had been off work
since September 21, 2012 and that she would be off work until January 12, 2013.4 In a
November 20, 2012 report, Dr. Moore provided a history of the November 5, 2010 employment
injury. He noted appellant’s complaint of chronic pain syndrome and depression. Appellant
filed an Equal Employment Opportunity complaint due to her work injuries and a supervisor who
had been particularly hard on her. Dr. Moore diagnosed major depressive episode secondary to
the November 5, 2010 employment injury and chronic pain syndrome with psychosocial factors
on Axis I. He stated that a diagnosis on Axis II was not applicable. On Axis III Dr. Moore
diagnosed injuries sustained on the job on November 5, 2010. On Axis IV he diagnosed
stressors related to injuries sustained on the job on the same date. Dr. Moore provided a score of
40 to 45 on Axis V. He opined that it was indisputably clear that the November 5, 2010
work-related injury caused appellant’s chronic pain syndrome and loss of capacity based on his
training, extensive examination, and objectivity. Appellant’s symptoms met the criteria for this
condition and major depressive episode. In notes dated December 17, 2012 and February 12,
2013, Dr. Moore advised that she would continue to be off work through April 1, 2013 due to her
continued stress and depression symptoms.
Hospital records dated September 10, 2013 addressed appellant’s hospitalization for
recurrent loss of consciousness and medical treatment on that date. A history was provided
which included, among other things, post-traumatic stress disorder, and obsessive compulsive
disorder.
In an August 7, 2012 report, Dr. Les Benson5 provided a history of the November 5, 2010
employment injuries and appellant’s medical and employment background, noted her
4

The Board notes that Dr. Moore inadvertently stated that appellant was off work until January 12, 2012 instead
of January 12, 2013 as his report is dated November 19, 2012.
5

The Board notes that the professional qualifications of Dr. Benson are not contained in the case record.

6

complaints, and presented findings on examination. He diagnosed right shoulder rotator cuff
tear, cervical intervertebral disc disorders, bilateral shoulder radiculopathy, and brachial neuritis
of the right wrist and hand due to her cervical intervertebral disc disorders. Dr. Benson opined
that appellant’s injuries were due to her human resources compensation specialist duties. The
basis for appellant’s injuries was striking her right shoulder on a sharp corner of a partially
opened file cabinet. Dr. Benson stated that when she rotated to her right and struck her shoulder,
her head, and neck continued to turn. The inertia forces caused this accident and in his opinion
caused a sprain or strain of the neck. It exceeded the positional forces in the neck and caused
displacement of a disc which now pushed on a nerve going down the neck causing brachial
symptoms which went down into the wrist. Because pressure was placed on the nerve, appellant
had symptoms on both sides and neck. In reports dated October 19 and November 20, 2012,
Dr. Benson addressed appellant’s left shoulder, wrist, and hand conditions and resulting
disability due to a September 21, 2012 incident at work. He advised that she was totally disabled
from September 22, 2012 to January 18, 2013.
In a January 15, 2014 report, Dr. Becker noted appellant’s continuing cervical symptoms
and provided findings on physical and neurological examination. He reviewed a September 18,
2013 electrodiagnostic study which demonstrated reproducible active denervation mostly in the
Form C6-7 distribution. Based on his review of EMG/NCV studies of appellant’s bilateral upper
extremities performed on the same day as his examination, Dr. Becker advised that a needle on
EMG testing was refused and no NCV evidence of generalized peripheral neuropathy,
plexopathy, or entrapments. He diagnosed appellant as having a possible bladder dysfunction.
Dr. Becker stated that her electrodiagnostic studies continued to demonstrate normal NCV’s of
the upper extremities and no evidence of generalized peripheral neuropathy or peripheral nerve
entrapments. He noted that one muscle was obtained which appeared to have some increased
insertional activity, although the study was not completed.
In a June 3, 2014 decision, an OWCP hearing representative affirmed the January 8, 2014
decision. He found that the medical evidence submitted was insufficient to outweigh the weight
accorded to Dr. Antosh’s opinion that appellant was not totally disabled for any period due to her
November 5, 2010 work injury.
LEGAL PRECEDENT
With respect to a claimed period of disability, an employee has the burden of establishing
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.6 The term disability is defined as the incapacity because of an
employment injury to earn the wages the employee was receiving at the time of the injury, i.e., a
physical impairment resulting in loss of wage-earning capacity.7
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
6

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

7

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).

7

reliable, probative, and substantial medical evidence.8 The medical evidence required to
establish a period of employment-related disability is rationalized medical evidence.9
Rationalized medical evidence is medical evidence based on a complete factual and medical
background of the claimant, of reasonable medical certainty, with an opinion supported by
medical rationale.10 The Board, however, will not require OWCP to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of disability
for which compensation is claimed.11 To do so, would essentially allow an employee to selfcertify their disability and entitlement to compensation.12
ANALYSIS
OWCP accepted that appellant sustained right shoulder subacromial bursitis and neck
sprain while in the performance of duty on November 5, 2010. Appellant claimed compensation
for disability from November 5, 2010 to May 20, 2013. She has the burden of establishing by
the weight of the substantial, reliable, and probative evidence, a causal relationship between her
claimed disability for that period and the accepted conditions.13 The Board finds that appellant
did not submit sufficient medical evidence to establish employment-related disability for the
period claimed due to her accepted injuries.14
The Board finds that the opinion of Dr. Antosh, an OWCP referral physician, represents
the weight of the medical evidence on whether appellant was disabled commencing November 5,
2010 through May 20, 2013 due to the accepted work injuries. Dr. Antosh submitted reports
dated December 28, March 27, and June 10, 2013. He initially opined that appellant’s neck and
bilateral shoulder strain appeared to have been caused by the November 5, 2010 employment
injury and that she had no preexisting condition. Dr. Antosh noted that she had a low demand
position and opined that there was no objective reason why she could not perform sedentary desk
work eight hours a day with restrictions. Upon being asked to further explain his opinion, he
described, on March 27, 2013, how the November 5, 2010 employment injury aggravated
appellant’s current and underlying neck and right shoulder conditions. Dr. Antosh stated that
review of medical records and objective findings did not identify a material change in her
underlying conditions. He was again asked to further explain his opinion and advised, on
June 10, 2013, that appellant had chronic pain residuals of her underlying and accepted right
shoulder and neck conditions based on his review of medical records and his December 28, 2012
examination findings. Dr. Antosh, however, stated that her conditions would resolve following
six months of conservative treatment. He reviewed appellant’s job description and opined that
8

See Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

Leslie C. Moore, 52 ECAB 132 (2000).

11

Sandra D. Pruitt, 57 ECAB 126 (2005).

12

See William A. Archer, 55 ECAB 674 (2004); supra note 9.

13

See Amelia S. Jefferson, 57 ECAB 183 (2005).

14

Alfredo Rodriguez, 47 ECAB 437 (1996).

8

she could perform her sedentary/low demand work duties and that there was no period of
disability precluding her from performing these duties. Dr. Antosh’s opinion, which is based on
a complete and accurate medical background and supported by rationale, constitutes the weight
of the evidence and establishes that her disability from November 5, 2010 to May 20, 2013 was
not due to the accepted employment injuries.
All remaining evidence is insufficient to establish that appellant was totally disabled from
work during the claimed period due to the accepted right shoulder and neck injuries. In several
reports, Dr. Shade found that appellant had cervical, bilateral shoulder and wrist, lumbar, and
emotional conditions, chronic pain, and was temporarily totally disabled due to the November 5,
2010 employment injuries.15 He stated that she required permanent work restrictions.
Appellant’s cervical, bilateral shoulder and wrist, lumbar, and emotional conditions, and chronic
pain conditions were not accepted as work related by OWCP. For conditions not accepted by
OWCP as being employment related, it is the employee’s burden to provide rationalized medical
evidence sufficient to establish causal relation.16
Appellant relies upon the medical opinions of Dr. Shade in support of her claim. The
Board finds three primary deficiencies in Dr. Shade’s reports. Dr. Shade did not explain how
hitting appellant’s shoulder and back on the corner of a file cabinet caused her conditions and
resultant disability. Further, the Board has long held that pain is a symptom, not a compensable
medical diagnosis.17 Dr. Shade’s remaining reports and notes did not provide any opinion
addressing whether appellant was totally disabled for work from November 5, 2010 to May 20,
2013 due to the accepted employment injuries. The Board has held that medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.18 For the stated reasons, the Board finds that
Dr. Shade’s reports are insufficient to establish appellant’s claim.
Appellant also relies upon the medical opinion of Dr. Moore, whose reports and notes
found that she had major depressive episode and chronic pain syndrome, and that she was
disabled for work from September 21, 2012 to April 1, 2013 due to the accepted employment
injuries. As stated, OWCP has not accepted her claim for an emotional or pain condition as a
result of the November 5, 2010 work injury and there is no reasoned medical evidence to support
such a conclusion.19 Moreover, Dr. Moore did not provide any rationale explaining how the
accepted right shoulder and cervical injuries caused appellant’s disability. The Board has held

15

The Board notes that Dr. Franklin, a chiropractor, who cosigned the August 28, 2013 report with Dr. Shade, is
not a physician as defined under FECA as she did not diagnose subluxation by x-ray. 5 U.S.C. § 8102(2), 20 C.F.R.
§ 10.311.
16

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).
17

C.F., Docket No. 08-1102 (issued October 10, 2008).

18

K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, supra note 16; Michael E. Smith, 50
ECAB 313 (1999).
19

See cases cited, supra note 17.

9

that a medical opinion not supported by medical rationale is of little probative value.20 The
Board finds that Dr. Moore’s reports are insufficient to establish appellant’s claim.
Appellant also contends the opinions of Dr. Benson are supportive. Dr. Benson’s
August 7, 2012 report found that appellant sustained right shoulder rotator cuff tear, cervical
intervertebral disc disorders, bilateral shoulder radiculopathy, and brachial neuritis of the right
wrist and hand due to her cervical intervertebral disc disorders as a result of the November 5,
2010 work injuries. He described how hitting her right shoulder on a sharp corner of a partially
opened file cabinet caused her conditions. Dr. Benson indicated that, when appellant rotated to
her right and struck her shoulder, her head and neck continued to turn, which he advised resulted
in a cervical sprain or strain. He stated that the inertia forces caused this accident and her neck
sprain or strain which exceeded the positional forces in the neck and resulted in displacement of
a disc. Dr. Benson related that the disc currently pushed on a nerve going down the neck and
caused appellant’s brachial symptoms which went down into her wrist. Since pressure was
placed on the nerve, appellant developed symptoms on both sides and neck. Although
Dr. Benson opined that appellant’s conditions were causally related to the accepted employment
incident, his opinion is not sufficiently rationalized as it does not clearly explain the mechanism
of injury of how the November 5, 2010 employment incident caused appellant’s diagnosed
conditions and resulting disability for the period claimed. OWCP has not accepted any other
conditions and, thus, appellant bears the burden of proof to establish that these conditions are
employment related.21 Moreover, Dr. Benson did not explain why either of appellant’s accepted
injuries, right shoulder subacromial bursitis and neck sprain, would result in total disability from
November 5, 2010 to May 20, 2013. His remaining reports are also insufficient to establish
appellant’s claim. Dr. Benson attributed her left shoulder, wrist, and hand conditions and total
disability from September 22, 2012 to January 18, 2013 to a September 21, 2012 work injury.
This evidence is not relevant to the issue in this case, namely, whether appellant was totally
disabled for work from November 5, 2010 to May 20, 2013 due to the accepted November 5,
2010 employment injuries. Further, the Board notes that appellant’s claim for the September 21,
2012 injury was denied by OWCP and the denial was affirmed by the Board on
September 11, 2014.22
Dr. Becker’s September 18, 2013 and January 15, 2014 diagnostic test results and report
did not provide an opinion stating that appellant’s diagnosed cervical radiculopathy and any
resultant total disability during the claimed period were causally related to the November 5, 2010
work injuries.23

20

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

21

See cases cited, supra note 17.

22

Docket No. 14-655 (issued September 11, 2014).

23

See cases cited, supra note 19.

10

Similarly, the September 10, 2013 hospital records failed to provide a rationalized
medical opinion to establish that appellant’s emotional conditions and any resultant total
disability during the claimed period were causally related to the accepted employment injuries.24
The Board finds that Dr. Antosh’s opinion that appellant was not totally disabled for
work during any period represents the weight of the medical evidence and the additional medical
evidence submitted is insufficient to create a conflict in opinion regarding whether she had any
total disability from November 5, 2010 to May 20, 2013 related to the accepted November 5,
2010 injuries. Therefore, appellant has not met her burden of proof.
On appeal appellant contended that her accepted medical conditions should be upgraded,
based on medical evidence dating back to her first examination with an attending physician. As
discussed above, she did not submit sufficiently rationalized medical evidence to establish that
she sustained additional medical conditions that were caused, aggravated, or a consequence of
the accepted November 5, 2010 injuries.
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 appellant did not meet her burden of proof to establish wage-loss
compensation for the period November 5, 2010 to May 20, 2013.

24

Id.

11

ORDER
IT IS HEREBY ORDERED THAT the June 3, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 18, 2015
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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
INTERNAL REVENUE SERVICE,
PHILADELPHIA FIELD OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1230
Issued: September 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On May 10, 2012 appellant, through counsel, filed a timely appeal from a May 7, 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 this claim.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss and medical
compensation benefits effective November 28, 2011 on the grounds that an accepted lumbar
strain had ceased without residuals.
On appeal, counsel contends that OWCP did not properly select the impartial medical
examiner. He also asserts that appellant was entitled to wage-loss compensation benefits from
May 2006 through November 28, 2011.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This is the second appeal before the Board in this case. By decision and order issued
November 20, 2007,2 the Board affirmed a May 30, 2006 OWCP decision denying continuation
of pay. The facts of the case as set forth in the Board’s prior decision are incorporated herein by
reference. The relevant facts of the case are presented below.
OWCP accepted that on February 24, 2005 appellant, then a 32-year-old tax examiner,
sustained a lumbosacral strain when she slipped and fell on ice. Appellant stopped work on
February 24, 2005 and did not return. OWCP authorized six weeks of total disability
compensation, paid through April 8, 2005. Appellant did not file ongoing claims for wage-loss
compensation.
In an August 31, 2005 report, Dr. Gary D. Yeoman, an osteopath and a Board-certified
orthopedic surgeon, noted that appellant fell on a bus on January 19, 2005, prior to the
February 24, 2005 slip and fall. He opined that there was “no objective data to differentiate
which accident was responsible for the herniated discs.”
In March 2 and 13, 2006 reports, Dr. Anthony W. Salem, a Board-certified orthopedic
surgeon second opinion physician, opined that appellant’s lumbar and bilateral knee conditions
were due to congenital factors and morbid obesity. He opined that any effects of the
February 24, 2005 slip and fall would have resolved in six weeks.
By decision dated May 30, 2006, OWCP denied wage-loss compensation on and after
April 8, 2005 on the grounds that the medical evidence did not establish that sequelae of the
February 24, 2005 slip and fall disabled her for work more than six weeks after the incident.
Dr. Leonard A. Bruno, an attending Board-certified neurosurgeon, submitted reports from
June 30, 2006 to February 20, 2007 attributing a left-sided L4-5 disc herniation with left-sided
L5-S1 radiculitis and partial radiculopathy to the accepted February 24, 2005 slip and fall.3
OWCP found a conflict in medical opinion between Dr. Bruno, for appellant, and
Dr. Salem, for the government, regarding the nature and extent of any injury-related disability.
To resolve the conflict, on September 19, 2007, it selected Dr. E. Michael Okin, a Boardcertified orthopedic surgeon, as impartial medical examiner.4 Dr. Okin submitted a March 18,

2

Docket No. 07-1470 (issued November 20, 2007).

3

Dr. Simon Galapo, a Board-certified pain management specialist, submitted reports from April 24 to
September 18, 2007. He diagnosed lumbar degenerative disc disease “as a direct result of a work-related accident”
on February 24, 2005, based on appellant’s account of events. Dr. Galapo submitted reports through July 2009
noting continued symptoms and diffuse arthralgias.
4

OWCP initially selected Dr. Rushton Scott, a Board-certified orthopedic surgeon, as impartial specialist.
Appellant presented a valid reason for being unable to attend the appointment. As Dr. Scott was no longer available,
OWCP appointed Dr. Okin. On November 19, 2007 it suspended appellant’s compensation due to her failure to
attend a scheduled appointment with Dr. Okin. After further development, OWCP found that it did not properly
advise appellant of the appointment and vacated the suspension.

2

2008 report opining that the accepted lumbosacral strain exacerbated underlying lumbar
degenerative disc disease.
On December 10, 2008 appellant sustained right wrist and right knee fracture when she
fell down 20 steps in her apartment building. She underwent two arthroscopic surgeries on her
right knee and open fixation of the right wrist.
By notice dated January 20, 2009 and finalized February 26, 2009, OWCP terminated
appellant’s compensation benefits effective February 26, 2009 based on Dr. Okin’s opinion.
Following a telephonic hearing, held January 6, 2011, it issued a March 30, 2011 decision setting
aside its February 26, 2009 decision. OWCP found that Dr. Okin’s report was insufficiently
rationalized and remanded the case to obtain a supplemental report.
As Dr. Okin retired from practice on July 26, 2011, OWCP selected Dr. Menachem
Meller, a Board-certified orthopedic surgeon, as impartial medical examiner. Counsel objected
as OWCP had disqualified Dr. Meller due to demonstrated bias.
On September 20, 2011 counsel requested to participate in selection of a new impartial
medical examiner. In a September 21, 2011 letter, OWCP presented him with “the names of the
next three orthopedic physicians in the PDS [Physicians Directory System]:” Dr. Stuart Trager,
Dr. Walter Dearoff and Dr. William Simon. On September 23, 2011 counsel selected Dr. Trager
but also asserted that OWCP did not properly utilize the PDS system to choose the three
specialists. In a September 29, 2011 letter, OWCP advised counsel that the three doctors were
selected in accordance with the Medical Management Application (MMA).
The record contains a Form ME023 showing that OWCP selected Dr. Trager as impartial
medical examiner and MMA screen captures. A screen capture for Dr. Simon imaged on
October 17, 2011 indicated that Dr. Trager had been selected. OWCP also generated a bypass
history summary table noting that Dr. Okin was bypassed on July 11, 2011 as he was unable to
schedule an appointment, Dr. Mark Rekant was bypassed on July 11 and September 20, 2011 as
he was a subspecialist in a different area of practice, Dr. Dearolf was bypassed on September 20,
2011 as OWCP could not reach his office, and Dr. Meller was bypassed on September 20, 2011
as either he or OWCP cancelled the appointment. OWCP scheduled an appointment with
Dr. Trager, who examined appellant on October 26, 2011 and submitted a report.
In an October 3, 2011 letter, OWCP advised appellant of her appointment with
Dr. Trager to resolve a medical conflict in her case. Dr. Trager submitted an October 26, 2011
report reviewing the medical record and statement of accepted facts. On examination, he noted
restricted lumbar motion, lumbar paraspinal tenderness, lateral joint line tenderness in the left
knee and an inability to heel and toe stand “due to complaints of discomfort and weakness.”
Dr. Trager noted that appellant used a walker to ambulate and wore bilateral knee sleeve braces.
He opined that it was “not possible to conclude with any degree of medical certainty that the
MRI scan changes noted or ongoing complaints of the back and knee would be related to the slip
and fall accident rather than the preexisting degenerative conditions of the back and knees which
clearly predated this accident as well as the prior motor vehicle accident.” Dr. Trager opined that
a “limited period of increased symptoms may be associated with [the slip and fall accident];
however, as [appellant] was symptomatic prior to the described slip and fall and clearly did have

3

a documentation of degenerative changes involving the neck and back in advance of the fall … I
do not believe it is possible to opine that the ongoing complaints would be related to the slip and
fall on black ice rather than her underlying conditions.” He further noted that appellant
underwent prior surgeries on both knees predating the accepted accident.
Appellant was separated from the employing establishment effective November 19, 2011.
In a November 28, 2011 decision, OWCP terminated compensation benefits effective that
day finding that the medical evidence established that the accepted February 24, 2005 injury had
resolved without residuals. It found that the medical evidence established that appellant’s
“preexisting degenerative conditions were not affected by her February 24, 2005 work incident.”
OWCP accorded Dr. Trager’s opinion as the weight of the medical evidence.
On December 19, 2011 appellant claimed wage-loss compensation for the period
October 18, 2005 to November 28, 2011. In a January 11, 2012 letter, OWCP noted that it could
not process the claims as the record did not demonstrate that the February 24, 2005 injury totally
disabled appellant for work for the claimed period.
Counsel requested a review of the written record. He submitted a February 19, 2012
statement requesting that OWCP issue wage-loss compensation from October 18, 2005 to
November 28, 2011.
By decision dated and finalized May 7, 2012, an OWCP hearing representative affirmed
the November 28, 2011 decision terminating appellant’s wage-loss and medical benefits. The
hearing representative found that Dr. Trager’s opinion as impartial medical examiner established
that appellant no longer had disabling residuals of the accepted lumbosacral sprain or an
aggravation of underlying degenerative disc disease. Therefore, appellant was no longer entitled
to wage-loss compensation or medical benefits. Regarding counsel’s request that OWCP pay
appellant compensation for the period prior to November 28, 2011, the hearing representative
found that there “was no expectation of compensation benefits as [appellant] was not in receipt
of” wage-loss compensation benefits and the benefits were previously denied.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to his or her federal employment, it may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment,

5

Bernadine P. Taylor, 54 ECAB 342 (2003).

6

Id.

7

Roger G. Payne, 55 ECAB 535 (2004).

4

OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.8
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 (known as
a referee physician or impartial medical specialist) who shall make an examination.9 In
situations where there are opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual
background, must be given special weight.10
OWCP’s procedures further provide that a claimant who asks to participate in selecting
the referee physician or who objects to the selected physician should be requested to provide his
or her reason for doing so. It is responsible for evaluating the explanation offered. Examples of
circumstances under which the claimant may participate in the selection include (but are not
limited to): (a) Documented bias by the selected physician; (b) Documented unprofessional
conduct by the selected physician; (c) A female claimant who requests a female physician when
a gynecological examination is required; or (d) A claimant with a medically documented
inability to travel to the arranged appointment when an appropriate specialist may be located
closer. Simple preference for examination in a particular location will not be considered a valid
reason. If the reason is considered acceptable, the scheduler will prepare a list of three
specialists available through the MMA within the Integrated Federal Employees’ Compensation
System (iFECS), including a candidate from a minority group if indicated, and ask the claimant
to choose one. This is the extent of the intervention allowed by the claimant in the process of
selection or examination. If the reason offered is not considered valid, a formal denial on the
claimant’s request, including appeal rights, may be issued if requested.11
ANALYSIS
OWCP accepted that appellant sustained a lumbar strain on February 24, 2005 and
authorized wage-loss compensation through April 8, 2005. She received six weeks of
compensation for temporary total disability but did not submit ongoing claims.
Dr. Yeoman, an attending physician, opined on August 31, 2005 that he could not
ascertain if appellant’s herniated lumbar discs were related to a nonoccupational January 19,
2005 incident or to the accepted injury. OWCP then obtained a second opinion from Dr. Salem
who stated on March 2, 2006 that appellant’s lumbar and bilateral knee conditions were due only
to congenital factors and morbid obesity. Appellant then provided reports from Dr. Bruno, an

8

Pamela K. Guesford, 53 ECAB 726 (2002).

9

5 U.S.C. § 8123.

10

Anna M. Delaney, 53 ECAB 384 (2002).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.4(f) (July 2011).

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attending physician, who opined that the February 24, 2005 incident caused herniated L4-5 and
L5-S1 discs.
OWCP found a conflict between Dr. Bruno and Dr. Salem. To resolve the conflict, it
selected Dr. Okin, a Board-certified orthopedic surgeon, as impartial medical examiner. OWCP
terminated appellant’s compensation and medical benefits effective February 26, 2009 based on
Dr. Okin’s opinion. Following additional development, it vacated the February 26, 2009
termination and appointed Dr. Meller, a Board-certified orthopedic surgeon, as the new impartial
medical specialist in the case, but later disqualified him due to past demonstrated bias. At
counsel’s request, OWCP supplied a list of three specialists generated by OWCP’s MMA:
Dr. Dearoff, Dr. Simon and Dr. Trager. Counsel selected Dr. Trager but contended that the list
of three specialists was not prepared using the appropriate selection procedures.
The record contains an ME023 iFECS report, produced under the MMA system, stating
that an impartial medical examination was scheduled with Dr. Trager. There is no evidence that
the three physicians from whom appellant was allowed to select -- Drs. Trager, Dearoff and
Simon -- were improperly chosen. The record also contains bypass screen shots for other
physicians, including Dr. Okin, who was bypassed because he could not schedule an
appointment, Dr. Rekant, who specialized in a different field of medicine than needed,
Dr. Dearolf, who was bypassed as OWCP could not reach his office and Dr. Meller whose
appointment was cancelled.
The Board finds that the record sufficiently verifies that OWCP properly utilized its
MMA system in selecting Dr. Trager as the impartial medical examiner. 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.12 As OWCP has
met its affirmative obligation to establish that it properly followed its selection procedures, the
Board finds that counsel’s argument is not substantiated.13
Dr. Trager submitted an October 26, 2011 report reviewing the medical record and
statement of accepted facts. He performed a detailed clinical examination and presented his
findings. Dr. Trager explained that it could not be determined to any degree of medical certainty
that the accepted slip and fall accident caused the degenerative lumbar and bilateral knee
changes. The preexisting degenerative conditions clearly predated the accepted lumbar strain.
He opined that the accepted February 24, 2005 slip and fall would have caused only a “limited
period of increased symptoms.” Based on Dr. Trager’s opinion, OWCP terminated appellant’s
compensation benefits effective November 28, 2011. Following a review of the written record, it
affirmed the November 28, 2011 termination on May 7, 2012.
Dr. Trager’s report was based on a review of the complete medical record a physical
examination and a statement of accepted facts and provides a rationalized explanation that the
12

See N.C., Docket No. 12-1718 (issued April 11, 2013); T.T., Docket No. 12-1358 (issued April 11, 2013); P.B.,
Docket No. 12-1393 (issued December 18, 2012).
13

B.N., Docket No. 12-1394 (issued August 5, 2013).

6

accepted lumbar strain resolved after a brief period and that the ongoing knee and back
conditions were due to preexisting conditions. The Board finds that Dr. Trager’s opinion is
sufficient to meet OWCP’s burden of proof in terminating appellant’s wage-loss compensation
and medical benefits.14
By a February 19, 2012 statement and on appeal, counsel contends that appellant was
entitled to wage-loss compensation from October 18, 2005 to November 28, 2011. Appellant
filed claims for this period on December 19, 2011. The Board finds that as there has been no
finding of disability beyond April 8, 2005, there would be entitlement to compensation benefits.
As stated above, the medical evidence of record did not demonstrate that the accepted lumbar
strain disabled appellant for work on and after April 8, 2005. Therefore, appellant has not
established entitlement to wage-loss compensation after that date.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss and medical
compensation benefits effective November 28, 2011 on the grounds that an accepted lumbar
strain had ceased without residuals.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 7, 2012 is affirmed.
Issued: September 12, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

14

Anna M. Delaney, supra note 10.

7