United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, San Diego, CA, Employer
__________________________________________

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

Docket No. 08-321
Issued: June 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 13, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated November 9, 2007 reducing his compensation
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether the Office met its burden of proof in reducing appellant’s
compensation to zero based on its determination that the constructed position of an order clerk
represented his wage-earning capacity effective October 29, 2007.
FACTUAL HISTORY
On August 30, 2004 appellant, then a 33-year-old transportation security screener, filed a
traumatic injury claim alleging that he injured his upper back lifting a heavy bag in the
performance of duty on August 14, 2004. The Office accepted his claim for thoracic

strain/sprain on October 6, 2004. It entered appellant on the periodic rolls on January 12, 2005.
The Office later expanded his claim to include lumbar sprain/strain, L5-S1 disc herniation and
with radiculopathy and lumbar fusion as work related.
On August 29, 2005 appellant’s attending physician, Dr. Kamshad Raiszadeh, a Boardcertified orthopedic surgeon, performed an L5 laminectomy and decompression of the L5 nerve
root due to a L5-S1 herniated disc. He continued to support appellant’s total disability for work
through January 25, 2006. In reports dated April 12 and May 24, 2006, Dr. Raiszadeh found that
appellant was capable of working light duty. He recommended that appellant work 4 hours a day
with no lifting over 15 pounds, no baggage handling and no prolonged walking or standing over
20 minutes.
In a report dated June 28, 2006, Dr. Raiszadeh noted appellant’s history of injury and
medical history. He performed a physical examination finding that appellant had limited range
of motion in his spine, but normal sensation and motor examination. Dr. Raiszadeh reviewed
x-rays and found a solid fusion and good position of instrumentation. He diagnosed L5-S1 disc
injury with back and radicular symptoms which was improved after lumbar interbody fusion.
Dr. Raiszadeh opined that appellant’s objective signs of disability were his mild limitation of
lumbar range of motion and the surgical fusion with instrumentation. He listed appellant’s
subjective signs of disability as occasional back discomfort with no significant radiating pain
which could increase to moderate pain with increased lifting or bending. Dr. Raiszadeh found
that appellant could sit for up to 45 minutes without discomfort and had no difficulty standing if
allowed to change positions. He opined that appellant’s condition was permanent and stationary
and that appellant had “50 percent of preinjury capacity for performing bending, stooping,
lifting, pushing, pulling and climbing….” Dr. Raiszadeh stated that appellant could not return to
his date-of-injury position. On August 8, 2006 he noted that appellant experienced increased
back pain. Dr. Raiszadeh opined that this was likely “a self-limited aggravation of the symptoms
that should return to baseline.” He completed a work restriction evaluation on October 13, 2006
and indicated that appellant could work four hours a day. Dr. Raiszadeh restricted appellant to
20 minutes each of walking and standing as well as lifting up to 15 pounds for 20 minutes a day.
The employing establishment stated that there were no appropriate permanent light-duty
positions available for appellant on October 11, 2006.
The Office referred appellant for a second opinion evaluation on October 24, 2006 with
Dr. Thomas J. Sabourin, a Board-certified orthopedic surgeon. In a report dated November 13,
2006, Dr. Sabourin provided appellant’s history of injury and medical history. He noted that
appellant reported constant back pain with radiation which occurred regardless of activity.
Dr. Sabourin found that appellant’s lumbar range of motion was “grossly normal” and that
appellant did have pain with forward flexion and extension. He diagnosed degenerative disc
disease and thoracic strain and sprain. Dr. Sabourin opined that appellant could work in a
limited capacity eight hours a day including sitting, walking and standing for six hours a day. He
recommended periodic rest periods of sitting and standing lasting one to two minutes.
Dr. Sabourin found that appellant could push and pull up to 20 pounds for four hours a day and
could squat, kneel and climb for two hours a day each. He indicated that appellant should not
twist, bend or stoop. Dr. Sabourin indicated that appellant might need to stand or sit for rest
periods of one to two minutes. The Office provided Dr. Raiszadeh with a copy of Dr. Sabourin’s

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report and informed him that this report would provide the basis for appellant’s rehabilitation
position.
The Office referred appellant for vocational rehabilitation services on January 3, 2007.
The vocational rehabilitation counselor identified the positions of order clerk and merchant
patroller as within appellant’s work restrictions and reasonably available in sufficient numbers in
appellant’s commuting area. In a letter dated April 18, 2007, the Office informed appellant that
it would provide 90 days of placement services beginning April 23, 2007 to help him obtain
employment as either an order clerk or a merchant patroller.
Dr. Raiszadeh completed a work capacity evaluation on July 10, 2007 and indicated that
appellant could work six hours a day, sitting, walking and standing for six hours each. He
further found that appellant could push and pull up to 20 pounds for four hours a day and that
appellant could lift up to 20 pounds for two hours a day. Appellant could also squat, kneel and
climb for two hours. He required breaks of 1 to 2 minutes every 20 minutes.
The vocational rehabilitation counselor completed a report covering the period June 20 to
July 19, 2007 and stated that appellant had not maintained contact with his office and that job
placement was scheduled to end on July 23, 2007. He stated job leads had been forwarded to
appellant, but that he did not anticipate that appellant would return to work through job
placement efforts.
The vocational rehabilitation counselor opined that appellant was
vocationally and physically capable of performing the position of order clerk. The job
description included processing orders for material or merchandise through the mail, by
telephone or in person. This position was sedentary, requiring lifting up to 10 pounds
occasionally. The vocational rehabilitation counselor confirmed with the state employment
service that the position was performed in sufficient numbers so as to make it reasonably
available to appellant within his commuting area. He found that appellant met the specific
vocational preparation of three to six months as he was a high school graduate and completed a
certificate program in computer networking as well as having experience as a computer network
technician which required customer service skills.
In a letter dated September 5, 2007, the Office proposed to reduce appellant’s
compensation benefits based on his capacity to earn wages eight hours a day as an order clerk at
the rate of $640.00 per week. It found that appellant’s date-of-injury pay rate was $492.60 per
week and that he therefore had no loss of wage-earning capacity in the constructed position. The
Office reviewed Dr. Raiszadeh’s reports and found that he had suggested varying abilities to
work. It also noted that Dr. Raiszadeh had not responded to Dr. Sabourin’s report. The Office
concluded that Dr. Sabourin’s report was entitled to the weight of the medical opinion evidence
as his report was supported with detailed objective and subjective findings. It found that the
position of order clerk was within appellant’s physical abilities and that this position “fairly and
reasonably” represented his wage-earning capacity.
Appellant responded on September 12, 2007 and disagreed with the Office’s findings.
He alleged that Dr. Sabourin’s report was not sufficient to establish his physical restrictions.
Appellant submitted a note from Dr. Raiszadeh dated July 10, 2007 which stated that appellant
continued to require medication for pain control. Dr. Raiszadeh found that appellant was
neurovascularly intact with no numbness and no significant paraspinal muscle spasm. He noted

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that appellant had persistent symptoms likely due to disc irritation at L4-5 and that his condition
was permanent and stationary.
The Office initially reduced appellant’s compensation benefits to zero based on his
capacity to earn wages in the constructed position of order clerk on October 29, 2007 effective
November 25, 2007. The Office stated that appellant had not submitted additional evidence or
argument in response to the proposed reduction. In a letter dated November 5, 2007, appellant
alleged that his compensation should have been reduced not cancelled and that he did respond to
the proposed reduction of compensation. By decision dated November 9, 2007, the Office
informed appellant that the proposed reduction of his compensation was final effective
November 25, 2007. The Office reviewed appellant’s responses to the proposed reduction and
found that he failed to submit evidence establishing that he was not physically capable of
working as an order clerk eight hours a day. The Office concluded, “Evidence on file still
indicates that you are physically capable of working light duty eight hours a day, earning
$640.00 per week as an order clerk and that the position of order clerk is medically and
vocationally suitable for you and fairly represents your wage-earning capacity.”1
LEGAL PRECEDENT
Under section 8115(a) of the Federal Employees’ Compensation Act,2 in determining
compensation for partial disability, the wage-earning capacity of an employee is determined by
actual earnings if actual earnings fairly and reasonable represent the wage-earning capacity.
Generally wages actually earned are the best measure of a wage-earning capacity and, in the
absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity must be accepted as such measure.3 If the actual earnings do
not fairly and reasonably represent his or her wage-earning capacity, or if the employee has no
actual earnings, his or her wage-earning capacity is determined with due regard to the nature of
the injury, the degree of physical impairment, his or her usual employment, age, qualifications
for other employment, the availability of suitable employment and other factors and
circumstances which may affect wage-earning capacity in his or her disability condition.4
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service. Finally, application of the

1

Appellant requested a schedule award on July 10, 2007. As the Office has not issued a final decision on this
issue, the Board may not address this issue for the first time on appeal. 20 C.F.R. § 501.2(c).
2

5 U.S.C. §§ 8101-8193, 8115(a).

3

Selden H. Swartz, 55 ECAB 272 (2004).

4

Harley Sims, Jr., 56 ECAB 320, 323 (2005).

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principles set forth in Albert C. Shadrick,5 and codified section 10.403(d) of the Office’s
regulations6 will result in the percentage of employee’s loss of wage-earning capacity.
The Act provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.7 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician of an Office medical adviser or consultant, the Office shall
appoint a third physician to make an examination. This is called a referee examination and the
Office will select a physician who is qualified in the appropriate specialty and who has had no
prior connection with the case.8
ANALYSIS
Appellant has not returned to work. The Office must base its determination of whether
he is capable of performing work based on the nature of his injury and the degree of his physical
impairment. The Board finds that there is an unresolved conflict of medical opinion evidence
between appellant’s attending physician, Dr. Raiszadeh, a Board-certified orthopedic surgeon
and the Office referral physician, Dr. Sabourin, a Board-certified orthopedic surgeon, regarding
appellant’s ability to work eight hours a day.
Dr. Raiszadeh completed a detailed report on June 28, 2006 in which he noted appellant’s
history of injury and medical history. He performed a physical examination finding that
appellant had limited range of motion in his spine, but normal sensation and motor examination.
Dr. Raiszadeh reviewed x-rays and found a solid fusion and good position of instrumentation.
He diagnosed L5-S1 disc injury with back and radicular symptoms which was improved after
lumbar interbody fusion. Dr. Raiszadeh opined that appellant’s objective signs of disability were
his mild limitation of lumbar range of motion and the surgical fusion with instrumentation. He
listed appellant’s subjective signs of disability as occasional back discomfort with no significant
radiating pain which could increase to moderate pain with increased lifting or bending.
Dr. Raiszadeh found that appellant could sit for up to 45 minutes without discomfort and had no
difficulty standing if allowed to change positions. He opined that appellant’s condition was
permanent and stationary and that he had “50 percent of preinjury capacity for performing
bending, stooping, lifting, pushing, pulling and climbing….” Dr. Raiszadeh then completed a
work restriction evaluation on October 13, 2006 and indicated that appellant could work four
hours a day, 50 percent of his preinjury capacity. He restricted appellant to 20 minutes each of
walking and standing as well as lifting up to 15 pounds for 20 minutes a day.
Dr. Sabourin completed a report on November 13, 2006 providing appellant’s history of
injury and medical history. He found that appellant’s lumbar range of motion was “grossly
5

5 ECAB 376 (1953).

6

20 C.F.R. § 10.403(d).

7

5 U.S.C. §§ 8101-8193, 8123.

8

20 C.F.R. § 10.321.

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normal” and that appellant did have pain with forward flexion and extension and diagnosed
degenerative disc disease and thoracic strain and sprain. Dr. Sabourin opined that appellant
could work in a limited capacity eight hours a day including sitting, walking and standing for six
hours a day. He recommended periodic rest periods of sitting and standing lasting one to two
minutes. Dr. Sabourin found that appellant could push and pull up to 20 pounds for four hours a
day and could squat, kneel and climb for two hours a day each. He indicated that appellant
should not twist, bend or stoop. Dr. Sabourin indicated that appellant might need to stand or sit
for a rest period of one to two minutes.
Following the Office’s informational letter that Dr. Sabourin’s physical restrictions
would form the basis for appellant’s rehabilitation position,9 Dr. Raiszadeh completed a work
capacity evaluation on July 10, 2007 and indicated that appellant could work six hours a day,
sitting, walking and standing for six hours each. He followed the remainder of Dr. Sabourin’s
work restrictions as directed by the Office finding that appellant could push and pull up to 20
pounds for four hours a day and lift up to 20 pounds for two hours a day. Dr. Raiszadeh found
that appellant could also squat, kneel and climb for two hours. He noted that appellant required
breaks of 1 to 2 minutes every 20 minutes.
Drs. Sabourin and Raiszadeh both provided detailed reports with physical findings and
concluded that appellant was not capable of returning to his date-of-injury position. However,
they disagreed regarding the extent of appellant’s disability for work. Dr. Raiszadeh opined that
appellant could work only four hours a day with restrictions, later amended to six after
instruction from the Office, while Dr. Sabourin concluded that appellant could work eight hours
a day with restrictions. Due to this unresolved conflict of medical opinion, the Office has not
met its burden of proof to reduce appellant’s compensation benefits based on his capacity to earn
wages as an order clerk eight hours a day.
CONCLUSION
The Board finds that there is an unresolved conflict of medical opinion regarding
appellant’s ability to work eight hours a day and that the Office, therefore, failed to meet its
burden of proof to reduce appellant’s compensation benefits to zero based on his capacity to earn
wages in the constructed position of order clerk.

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Contrary to the Office’s assertion that it had requested comments from Dr. Raiszadeh regarding Dr. Sabourin’s
findings, the Office instead provided Dr. Raiszadeh with a copy of Dr. Sabourin’s report and informed him that this
report would provide the basis for appellant’s rehabilitation position.

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ORDER
IT IS HEREBY ORDERED THAT the November 9, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 9, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Babylon, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1817
Issued: February 27, 2013

Case Submitted on the Record

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

Appellant filed an application for review of the Office of Workers’ Compensation
Programs’ (OWCP) May 1, 2012 merit decision denying his traumatic injury claim. The appeal
was docketed as number 12-1817. The Board finds that this case is not in posture for a decision.
OWCP accepted appellant’s June 30, 1999 traumatic injury claim (File No. xxxxxx594)
for sprain tear and derangement of the right knee and derangement of the left knee. Appellant
underwent a complete right knee replacement and returned to full duty on June 13, 2011.
The present appeal involves appellant’s December 1, 2011 traumatic injury claim (File
xxxxxx130), in which he alleged that he sustained a right knee injury on November 20, 2011
when his knee gave out while he was walking on his mail route. Appellant noted that he first
filed a claim for a recurrence of disability under his 1999 accepted claim, but was told by OWCP
to file a new traumatic injury claim. Due to the overlapping nature of the claims, the medical
evidence contained in File xxxxxx594 will necessarily bear directly on appellant’s claim for
compensation in File xxxxxx130. Without reviewing the case record in File No. xxxxxx594, the
Board is unable to determine whether OWCP properly considered all relevant evidence in

rendering its final decision. Pursuant to its procedures, OWCP has determined that cases should
be combined where correct adjudication depends on cross-referencing between files.1
Because it is essential for the Board to review the medical evidence contained in
File No. xxxxxx594 in order to render a full and fair adjudication of the present appeal, this case
will be remanded for OWCP to consolidate case File No. xxxxxx594 with File No. xxxxxx130.
Reconstruction of the record will be followed by a de novo decision on the merits of the claim, in
order to protect appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
May 1, 2012 decision be set aside and the case remanded for further development consistent with
this order.
Issued: February 27, 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

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000); D.R., Docket No. 12-696 (issued July 25, 2012).

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

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

Docket No. 09-1049
Issued: November 10, 2009

Case Submitted on the Record

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

JURISDICTION
On March 12, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated December 31, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he required
a right knee arthroplasty due to his accepted employment injury.
FACTUAL HISTORY
On November 22, 2006 appellant, then a 42-year-old letter carrier, filed an occupational
disease claim for a right knee condition due to climbing stairs in the performance of duty on
September 1, 2006.
Dr. Mark Goddard, a Board-certified radiologist, performed a magnetic resonance
imaging (MRI) scan on October 13, 2006 which demonstrated a complex complete tear of the
posterior horn of the medial meniscus with a small parameniscal cyst as well as patellar

contusion and chondromalacia along the medial patellar facet. Dr. Manuel P. Daugherty, Jr., a
Board-certified orthopedic surgeon, performed a video arthroscopy of the right knee with partial
medial meniscectomy on November 3, 2006.
By decision dated March 2, 2007, the Office denied appellant’s claim for an
employment-related injury.
Appellant requested a review of the written record on
March 3, 2007. By decision dated May 4, 2007, the Branch of Hearings and Review reversed
the March 2, 2007 decision and accepted his claim for tear of the medial meniscus of the right
knee.
In a report dated August 20, 2007, Dr. Daugherty found that appellant had moderate
effusion of the right knee with course patellofemoral crepitus. He diagnosed pain in the right
knee, chondromalacia patella and status postmedial meniscectomy of the right knee. On
September 5, 2007 Dr. Daugherty diagnosed osteoarthritis of the right knee and found mild
swelling with tenderness medially and laterally. In a note dated September 13, 2007, he again
diagnosed osteoarthritis of the knees, right worse than the left.
On January 29, 2008 appellant requested authorization for right knee arthroplastic
surgery. Dr. Daugherty examined appellant on May 9, 2008 and found audible patellofemoral
crepitus in the right knee and weakness in appellant’s right quadriceps. He diagnosed pain in the
right knee and moderately severe osteoarthritis of the right knee. Dr. Daugherty made similar
findings on June 10 and 17, 2008. He noted that x-rays confirmed medial compartment
narrowing in the right knee and on June 17, 2008 stated that appellant wanted to consider
undergoing a total knee replacement. Dr. Daugherty stated that he would consult with his
colleagues regarding this proposal.
The Office requested that the district medical adviser consider appellant’s request for a
total knee arthroplasty. In a report dated August 5, 2008, the Office medical adviser denied his
request finding that appellant did not submit a medical report with results of Dr. Daugherty’s
consultations with his colleagues. In a letter dated August 7, 2008, the Office requested that
appellant submit additional evidence establishing that the total knee arthroplasty was medically
necessary and causally related to his accepted employment injury. It allowed 30 days for a
response.
On July 29, 2008 Dr. Daugherty stated that appellant was troubled by a severely
degenerated right knee with severe patellofemoral crepitance in the right knee with mild
quadriceps wasting and tenderness. He noted that appellant wanted to undergo the total knee
arthroplasty because he was unable to take nonsteroidal anti-inflammatory drugs (NSAIDS) for
pain. Dr. Daugherty stated that appellant had failed the injection regimen and “really there is
nothing else to do, except the replacement….”
In a report dated September 2, 2008, Dr. Daugherty related appellant’s course of
treatment including the 2006 video arthroscopy with partial medial meniscectomy and injections
of Visco supplementation. He noted that the time of appellant’s video arthroscopy he “did not
appear contrary to clinical impression, to have much in the way of articular cartilaginous
damage.” Dr. Daugherty noted that appellant was severely incapacitated by knee pain and
unable to use NSAIDS and that appellant requested a total knee arthroplasty. He stated,

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“[B]ecause of his significant difficulty he is having and really having no other alternatives, he
felt this would be an avenue that he wanted to pursue.” Dr. Daugherty opined that appellant had
substantially increased pain following the partial meniscectomy as part of the stabilizing
structure was removed. He stated that the increased pain and the inability to take appropriate
medications were the reasons that the total knee arthroplasty was being considered.
In a letter dated September 8, 2008, the Office informed appellant that a second opinion
evaluation was necessary to determine whether the proposed total knee arthroplasty was
medically necessary and related to his accepted employment injury. Dr. Charlton Barnes, a
Board-certified orthopedic surgeon, completed a second opinion evaluation on
December 3, 2008. He noted appellant’s history of injury and performed a physical examination
finding that appellant had right knee flexion of 105 degrees and lacked 5 degrees of extension.
Dr. Barnes noted that appellant had a markedly underdeveloped right thigh and numbness in his
right calf in a glove-like distribution. He diagnosed chondromalacia of the patella which was
work related. Dr. Barnes stated that appellant’s employment injury had not resolved and
recommended physical therapy. He opined:
“Clinically, I do not feel he needs a total knee at this time. What he really needs
is an arthroscopy to determine how severe damage inside his knee is. He may
have fairly severe damage to his right patellar area and intercondylar notch and he
might be justified in having an Avon procedure, but I do not see evidence of
cartilaginous loss significant enough to do a unicompartmental or
bicompartmental knee replacement. My overall impression is patient that is
postmedial meniscectomy, right knee, with some limitation of full extension of
his right knee and questionable chondromalacia of the right patellar intercondylar
notch area.”
By decision dated December 31, 2008, the Office denied appellant’s request for right
knee arthroplasty. It found that the weight of the medical opinion evidence rested with
Dr. Barnes.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act provides for the furnishing
of services, appliances and supplies prescribed or recommended by a qualified physician which
the Office, under authority delegated by the Secretary, considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of monthly
compensation.1 In interpreting section 8103(a), the Board has recognized that the Office has
broad discretion in approving services provided under the Act to ensure that an employee
recovers from his or her injury to the fullest extent possible in the shortest amount of time.2 The

1

5 U.S.C. §§ 8101-8193, 8103(a).

2

R.L., 60 ECAB ___ (Docket No. 08-855, issued October 6, 2008); Dale E. Jones, 48 ECAB 648, 649 (1997).

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Office has administrative discretion in choosing the means to achieve this goal and the only
limitation on the Office’s authority is that of reasonableness.3
While the Office is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.4 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.5 Therefore, in order to prove that
the surgical procedure is warranted, appellant must submit evidence to show that the procedure
was for a condition causally related to the employment injury and that the surgery was medically
warranted. Both of these criteria must be met in order for the Office to authorize payment.6
ANALYSIS
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for right knee arthroplasty. Although the requested procedure was deemed to be work related,
appellant did not meet his burden to establish that it was medically warranted.
Appellant’s attending physician, Dr. Daugherty, a Board-certified orthopedic surgeon,
noted that appellant had a severely degenerated right knee with severe patellofemoral crepitance
in the right knee with mild quadriceps wasting and tenderness. He noted that appellant’s knee
pain had increased following the partial meniscectomy and that appellant was unable to use
NSAIDS to control his pain. However, Dr. Daugherty also noted that at the time of appellant’s
video arthroscopy the visual signs of articular cartilaginous damage did not correlate with
appellant’s clinical findings. His reports suggest that appellant requested the surgery and that
appellant believed that the total knee replacement surgery was his best treatment option.
Dr. Daugherty did not clearly offer an opinion that this surgery was medically warranted. His
report states that the total knee arthroplasty was being considered not that he was recommending
this course of treatment.
The medical evidence of record does not establish that the requested surgery is the best or
only reasonable treatment available. Dr. Barnes, a Board-certified orthopedic surgeon, and
Office second opinion physician, disagreed that a total knee replacement was currently
appropriate for appellant. He recommended an arthroscopy to determine how severe his internal
knee damage was and suggested that an Avon procedure might be appropriate. However,
Dr. Barnes concluded that he did not see evidence of cartilaginous loss significant enough to do a
unicompartmental or bicompartmental knee replacement.

3

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by the Office is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
4

See Debra S. King, 44 ECAB 203, 209 (1992).

5

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986).

6

See Cathy B. Millin, 51 ECAB 331, 333 (2000).

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The only limitation on the Office’s authority in approving, or disapproving, services
under the Act is that of reasonableness. In the instant case, appellant requested authorization of a
total knee arthroplasty. The Office obtained the opinions of a second-opinion examiner and
consulted with its medical adviser to ascertain whether or not the proposed surgery was
medically necessary. After considering all of the medical evidence of record, the Office
concluded that authorization for the requested surgery should be denied. The Board finds that
the Office’s refusal to authorize the total knee arthroplasty was reasonable and did not constitute
an abuse of discretion.7 Appellant has not met his burden of showing that the proposed total
knee arthroplasty was medically warranted.
CONCLUSION
The Board finds that the Office did not abuse its discretion in refusing to authorize
appellant’s request for total knee arthroplasty.
ORDER
IT IS HEREBY ORDERED THAT the December 31, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7

Daniel J. Perea, supra note 3.

5


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

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

Docket No. 13-803
Issued: September 18, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 21, 2013 appellant, through her attorney, filed a timely appeal from a
November 26, 2012 decision of the Office of Workers’ Compensation Programs (OWCP)
terminating his compensation benefits. 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 OWCP properly terminated appellant’s wage-loss compensation
effective June 28, 2011 on the grounds that she refused an offer of suitable work.
On appeal, counsel contends that OWCP deprived appellant of due process by failing to
provide notification that an April 5, 2012 job offer was suitable work. Alternatively, he asserts
that an impartial examiner’s opinion was poorly rationalized such that the April 5, 2012 job offer
exceeded appellant’s medical restrictions. Counsel requests that OWCP reinstate compensation
retroactive to the June 28, 2011 termination.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on April 3, 2002 appellant, then a 44-year-old letter carrier,
sustained internal derangement of the right knee while evading a dog. The case was assigned
File No. xxxxxx409. Appellant underwent right knee arthroscopy on September 13, 2002 to
repair a partial tear of the anterior cruciate ligament. She returned to work in a limited-duty
position in October 2002. Dr. Hitesh Patel, an attending Board-certified family practitioner,
submitted reports from 2006 through 2009 limiting lifting to 10 pounds and standing to four
hours a day.
OWCP subsequently accepted that on September 24, 2009 appellant sustained a closed
dislocation of the right shoulder and cervical radiculopathy when she tripped and fell on a floor
mat.2 Appellant stopped work on September 24, 2009. The case was assigned File
No. xxxxxx666. Dr. Ronald M. Selby, an attending Board-certified orthopedic surgeon, held her
off work indefinitely due to the accepted conditions.3 Appellant received compensation for total
disability as of November 3, 2009.
On August 31, 2010 the employing establishment offered appellant a light-duty job for
four hours a day as a modified letter carrier, pulling down mail two to four hours a day,
delivering mail one to two hours a day, standing up to four hours a day and lifting limited to 10
pounds. Appellant accepted the job on August 31, 2010. She received wage-loss compensation
for four hours a day from August 30, 2010 to June 27, 2011. Dr. Patel continued limiting her to
working four hours a day through March 28, 2011, with lifting limited to 10 pounds.
On December 5, 2010 OWCP obtained a second opinion from Dr. David Rubinfeld, a
Board-certified orthopedic surgeon, who diagnosed cervical radiculitis and a dislocated right
shoulder, noting that he could not examine appellant’s right knee as she would not sit on the
examination table. In a January 15, 2011 report, Dr. Rubinfeld found appellant able to work
eight hours a day, with pulling, pushing, lifting and squatting limited to four hours, kneeling
limited to three hours and climbing limited to two hours. He limited pushing and pulling to 40
pounds and lifting to 30 pounds.
In an April 26, 2011 report, Dr. Patel diagnosed internal derangement of the right knee
with a meniscal and anterior cruciate ligament tear. He found appellant able to work four hours a
day, with walking, climbing and kneeling for up to one hour, and lifting limited to 10 pounds.
Dr. Patel renewed these restrictions on May 26, 2011.
On April 28, 2011 the employing establishment offered appellant a full-time job as a
modified letter carrier. The position required three hours standing and reaching, six hours
walking, four hours lifting and up to eight hours driving. Lifting was limited to 30 pounds, and
2

OWCP initially denied the claim by December 10, 2009 decision finding that causal relationship was not
established. Upon additional development, it accepted the claim in a February 19, 2010 decision.
3

A March 18, 2010 magnetic resonance imaging (MRI) scan of the cervical spine showed moderate to severe left
foraminal stenosis at C4-5 and a mild disc bulge at C5-6 with mild right foraminal stenosis. A May 5, 2010 right
shoulder MRI scan showed supraspinatus tendinopathy, a subchondral cyst, a small cyst at the humeral neck, and
fluid in the subdeltoid burs and subcoracoid recess. A July 15, 2010 electromyogram (EMG) and nerve conduction
velocity (NCV) study of the right arm was normal.

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pushing and pulling to 40 pounds. The employing establishment advised OWCP that appellant
refused the position.
By letter dated May 3, 2011, OWCP advised appellant that the offered position was
suitable work within the limitations provided by Dr. Rubinfeld. It advised her of the penalty
provision under section 8106(c) of FECA for refusing suitable work. OWCP afforded her 30
days to either accept the offered position or provide valid reasons for his refusal.
In a May 27, 2011 letter, appellant, through her representative, responded that her work
limitations due to the accepted right knee injury prevented her from performing the April 28,
2011 job offer.
In a June 7, 2011 letter, OWCP advised appellant that it had considered her reasons for
refusal and found them unacceptable. It afforded her 15 days in which to accept the position or
her wage-loss compensation benefits would be terminated. OWCP noted that no further reasons
for refusal would be considered. On June 24, 2011 the employing establishment confirmed that
the offered modified letter carrier position remained open and available to appellant.
By decision dated June 28, 2011, OWCP terminated appellant’s wage-loss compensation
benefits and schedule award entitlement effective that day under 5 U.S.C. § 8106(c) on the
grounds that she refused an offer of suitable work.
In a July 2, 2011 letter, appellant, through her attorney, requested an oral hearing, held
October 17, 2011.4 At the hearing, she and two witnesses to the examination asserted that
Dr. Rubinfeld’s examination was incomplete and unprofessional.5
Following the hearing, appellant submitted a May 16, 2011 report from Dr. Patel, stating
that the accepted injuries necessitated continued work restrictions. In an October 21, 2011
report, Dr. Patel explained that appellant had cervical neuritis and a right shoulder sprain causing
numbness and paresthesias in the right arm. He diagnosed a right medial meniscus and anterior
cruciate ligament tear. Dr. Patel renewed his prior work restrictions through November 2, 2011.
Appellant continued to work four hours a day through December 2011.6
By decision dated and finalized December 2, 2011, an OWCP hearing representative set
aside OWCP’s June 28, 2011 decision in part. He affirmed the termination of compensation but
also found a conflict of medical opinion between Dr. Rubinfeld, for the government, and
Dr. Patel, for appellant, regarding appellant’s injury-related conditions and her work capacity.
The hearing representative also directed the doubling of the two accepted claims. OWCP
doubled the claims on January 12, 2012.
4

In an August 26, 2011 letter, appellant’s attorney requested that OWCP subpoena Dr. Patel and Dr. Rubinfeld.
OWCP denied the request for subpoenas on September 14, 2011 as counsel did not explain why a subpoena was the
only means to obtain the physicians’ opinions. The denial of subpoenas is not before the Board on the present
appeal.
5

In a November 14, 2011 letter, appellant’s attorney asserted that Dr. Rubinfeld’s refusal to assist her in climbing
onto the examination table was an attempt to trick her into exceeding her physical limitations.
6

Appellant received compensation for intermittent work absences from January 16 to February 10 and April 23 to
May 4, 2012.

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On January 20, 2012 OWCP selected Dr. Edward Krisiloff, a Board-certified orthopedic
surgeon, as impartial medical examiner. Dr. Krisiloff submitted a March 13, 2012 report
reviewing the medical record and a statement of accepted facts. On examination, he noted a
dropped right shoulder without, a stable right knee with pain on flexion and painful cervical
spine motion. Dr. Krisiloff found appellant able to work eight hours a day with walking,
standing, reaching and twisting up to six hours, pushing, pulling and lifting up to 20 pounds for
up to four hours and no climbing. He stated that these restrictions were permanent and pertained
to the accepted right knee injury.
In an April 2, 2012 letter, OWCP requested that the employing establishment offer
appellant a job within the restrictions provided by Dr. Krisiloff. On May 2, 2012 the employing
establishment offered appellant a full-time position as a modified city carrier, with walking,
standing and reaching up to six hours and lifting up to 20 pounds for four hours a day. Appellant
responded that the position violated her physician’s restrictions limiting her to working four
hours a day. She submitted a May 2, 2012 duty status report from Dr. Patel, renewing previous
restrictions limiting appellant to working four hours a day light duty with lifting up to 10 pounds,
sitting and standing for four hours and walking for one hour.
By decision dated May 29, 2012, OWCP affirmed the termination of appellant’s wageloss compensation benefits and schedule award entitlement on the grounds that she refused the
April 28, 2011 offer of suitable work, based on Dr. Krisiloff’s opinion as the weight of the
medical evidence.
On June 1, 2012 appellant requested an oral hearing, held telephonically on
October 5, 2012. At the hearing, counsel contended that both the April 28, 2011 and April 5,
2012 job offers exceeded the work limitations given by Dr. Krisiloff. In an October 15, 2012
letter, he noted that the May 29, 2012 decision did not mention the April 5, 2012 job offer and
that appellant was not afforded due process in responding to the April 5, 2012 job offer. Counsel
submitted a June 8, 2012 report from Dr. Patel renewing prior restrictions.
By decision dated and finalized November 26, 2012, an OWCP hearing representative
affirmed OWCP’s May 29, 2012 decision, based on Dr. Krisiloff’s opinion as the weight of the
medical evidence. The hearing representative found that the differences between the work
limitations provided by Dr. Krisiloff and those of the April 5, 2012 job offer were not dispositive
as the weight of the medical evidence established that injury-related conditions had resolved.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits. It has authority under section 8106(c)(2) of FECA to terminate
compensation for any partially disabled employee who refuses or neglects to work after suitable
work is offered. To justify termination, OWCP must show that the work offered was suitable,
that appellant was informed of the consequences of her refusal to accept such employment and
that she was allowed a reasonable period to accept or reject the position or submit evidence or

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provide reasons why the position is not suitable.7 In this case, it terminated appellant’s
compensation under section 8106(c)(2) of FECA, which provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or
secured for the employee is not entitled to compensation.”8
OWCP regulations provide factors to be considered in determining what constitutes
“suitable work” for a particular disabled employee, include the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.9 The issue of
whether an employee has the physical ability to perform a modified position offered by the
employing establishment is primarily a medical question that must be resolved by medical
evidence.10
Section 8106(c) will be narrowly construed as it serves as a penalty provision, which may
bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.11 Section 10.517(a) of FECA’s implementing regulations provide that an
employee who refuses or neglects to work after suitable work has been offered or secured by the
employee, has the burden of showing that such refusal or failure to work was reasonable or
justified.12 Pursuant to section 10.516, the employee shall be provided with the opportunity to
make such a showing before a determination is made with respect to termination of entitlement
to compensation.13
ANALYSIS
OWCP accepted that appellant sustained internal derangement of the right knee, cervical
radiculopathy and a closed dislocation of the right shoulder. Appellant performed light duty for
four hours a day through March 28, 2011. Dr. Rubinfeld, a Board-certified orthopedic surgeon
and second opinion physician, found her able to work eight hours a day light duty as of
December 5, 2010. Dr. Patel, an attending Board-certified family practitioner, limited appellant
to working four hours a day through April 26, 2011.

7

See Ronald M. Jones, 52 ECAB 190 (2000); see also Maggie L. Moore. 42 ECAB 484 (1991), reaff’d on recon.,
43 ECAB 818, 824. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining
Wage-Earning Capacity, Chapter 2.814.10 (July 1997) (The claims examiner must make a finding of suitability,
advise the claimant that the job is suitable and that refusal of it may result in application of the penalty provision of
5 U.S.C. § 8106(c)(2) and allow the claimant 30 days to submit his or her reasons for refusing the job. If the
claimant submits evidence and/or reasons for refusing the job, the claims examiner must carefully evaluate the
claimant’s response and determine whether the claimant’s reasons for doing so are valid).
8

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

9

Rebecca L. Eckert, 54 ECAB 183 (2002); see 20 C.F.R. § 10.500(b).

10

Kathy E. Murray, 55 ECAB 288 (2004).

11

Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

12

20 C.F.R. § 10.517(a); Ronald M. Jones, 52 ECAB 190 (2000).

13

Id. at § 10.516.

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OWCP offered appellant a full-time light-duty position on April 28, 2011, based on
Dr. Rubinfeld’s opinion. As appellant refused the position, OWCP issued a June 28, 2011
decision terminating her wage-loss compensation benefits and schedule award entitlement.
However, on December 2, 2011, an OWCP hearing representative set aside the June 28, 2011
decision in part due to a medical conflict regarding appellant’s ability to work and her injuryrelated conditions.14
Dr. Krisiloff, a Board-certified orthopedic surgeon selected as impartial medical
examiner, submitted a March 13, 2012 report finding appellant able to perform full-time lightduty work with restrictions. OWCP then requested that the employing establishment offer her a
job based on Dr. Krisiloff’s restrictions. The employing establishment offered appellant a fulltime modified city carrier position on May 2, 2012. Appellant declined the position as Dr. Patel
limited her to working four hours a day. Based on her refusal of the May 2, 2012 job offer,
OWCP issued a May 29, 2012 decision affirming the June 28, 2011 termination. Following a
hearing, counsel contended that the May 29, 2012 termination was invalid as OWCP failed to
provide a pretermination notice regarding the May 2, 2012 job offer. The November 26, 2012
decision affirmed the May 29, 2012 termination invoking the penalty provisions under 5 U.S.C.
§ 8106(c).
The Board finds that OWCP did not afford appellant proper due process in terminating
her monetary compensation benefits.15
OWCP did not issue a new notice advising appellant that the May 2, 2012 job offer was
found to be suitable work or afford her 30 days to submit her reasons for refusing the position.
Such notice is required by OWCP’s implementing regulations at 20 C.F.R. § 10.516 and by
OWCP’s procedures.16 After appellant submitted reasons for refusal on May 2, 2012, she was
entitled to a second notice from OWCP evaluating the reasons for refusing the job. If the reasons
were considered invalid, allowing her 15 days to accept the offered work without penalty.
OWCP did not comply with its implementing regulations and procedures by failing to provide

14

Although the December 2, 2012 decision found that OWCP met its burden of proof to terminate wage-loss
benefits, it also found a medical conflict regarding appellant’s ability to work and her injury-related conditions. As
explained, section 8106(c) will be narrowly construed as it serves as a penalty provision, which may bar an
employee’s entitlement to compensation based on a refusal to accept a suitable offer of employment. See infra,
note 11. The Board finds that OWCP did not sufficiently explain how the affirmation of the termination of benefits,
while simultaneously finding an unresolved medical conflict, was consistent with the narrow construction of
5 U.S.C. § 8106(c).
15

Maggie L. Moore, supra note 7.

16

Federal (FECA) Procedure Manual, supra note 7.

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adequate notice.17 These procedural defects render the May 29 and November 26, 2012
decisions erroneous.18 Therefore, OWCP’s November 26, 2012 decision will be reversed.19
The November 26, 2012 decision will be reversed. The case will be returned to OWCP
for reinstatement of appellant’s monetary compensation.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and schedule award entitlement.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 26, 2012 is reversed.
Issued: September 18, 2013
Washington, DC

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

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

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

17

Id. See 20 C.F.R. § 10.516.

18

Maggie L. Moore, supra note 7.

19

The Board notes that the hearing representative’s November 26, 2012 decision affirmed the termination both
under 5 U.S.C. § 8106(c) and because the weight of the medical evidence established that she no longer has
residuals of her injury-related conditions. For the reasons noted, infra, OWCP did not meet its burden of proof
under section 8106(c). Furthermore, OWCP did not provide any notice to appellant, prior to the November 26,
2012, decision that it was seeking to terminate benefits on the grounds that all residuals of work-related conditions
had resolved. The Board notes that OWCP procedures contemplate such notice. See Federal (FECA) Procedure
Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.6 (March 1997).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.O., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
PINE BLUFF ARSENAL, Pine Bluff, AR,
Employer
__________________________________________

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

Docket No. 19-1437
Issued: January 2, 2020

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 June 24, 2019 appellant, through counsel, filed a timely appeal from a May 22, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a pulmonary
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On June 27, 2018 appellant, then a 51-year-old industrial worker, filed an occupational
disease claim (Form CA-2) alleging that she developed idiopathic pulmonary fibrosis in both lungs
due to factors of her federal employment. She indicated that she first became aware of her
condition on December 20, 2016 and first realized it was caused or aggravated by factors of her
federal employment on January 5, 2017. Appellant stopped work on April 26, 2018.
In a narrative statement accompanying her claim, appellant related that she had worked for
the employing establishment for over 10 years, since March 10, 2008, and in approximately
June 2016 she started experiencing shortness of breath, severe body aches, and joint pain, along
with pain in her upper left abdomen and stomach. She went to a doctor who found a spot on her
left lung. Appellant explained that on her first day back to work after having a lung biopsy, on
November 30, 2016 her supervisor sent her back to work on the M-295 line and, after being in
there for about 30 minutes, she began having trouble breathing and became nauseated and lightheaded. She was also having joint pain and her stomach was hurting. Appellant stated that these
were the same symptoms she was experiencing before she had her biopsy. Her supervisor then
moved her to work in “ICEMP,” which was dusty, dirty, and where pallets and tri-walls were
covered in bird droppings, animal feces, and bees.
In support of her claim, appellant submitted a position description indicating that she
worked both inside and outside, occasionally in areas that were drafty, and the nature of her work
was dirty, dusty, greasy, and the area could be noisy.
An operative report dated November 30, 2016 from Dr. Lee A. Forestiere, a Boardcertified general surgeon, indicated that appellant had been diagnosed with bilateral lower lobe
interstitial infiltrates with honeycombing. He noted that the findings were consistent with
pulmonary fibrosis/progressive shortness of breath on exertion. Dr. Forestiere indicated that she
had undergone a left thoracoscopy with wedge biopsies of the left lower lobe and lingular segment
of the left upper lobe.
In medical records dated September 14 and 19, October 20, and November 17, 2016 and
January 19 and November 12, 2017, Joe Steele, a certified physician assistant, diagnosed
pulmonary (lung) disease and abdominal pain and recommended that appellant work in an area
free of dust or other airborne particulates.
In a report dated December 20, 2016, Dr. Ali Al-Nashif, a Board-certified internist,
diagnosed pulmonary fibrosis/usual interstitial pneumonia, shortness of breath, bilateral clubbing,
tobacco use, gastroesophageal reflux disease (GERD), obstructive sleep apnea, and anxiety. He
reported that appellant underwent a video-assisted thoracic surgery (VATS) with open lung biopsy
on the left lung on December 7, 2016 and still had some occasional shortness of breath with
exertion, none at rest, but that her condition had improved. On January 11, 2017 Dr. Al-Nashif

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indicated that appellant went back to work and reported that her work environment had a lot of
dust and chemicals and that she was very short of breath.
On June 20, 2017 Dr. Arthur C. Okwesili, a Board-certified occupational medicine
specialist, indicated that appellant had a medical condition that worsened when she wore a
respirator, worked in a dusty environment, or was in a hot/excessively humid environment. He
found that appellant could not wear a respirator and had a medical condition that made it difficult
to breathe while wearing a respirator. Dr. Okwesili advised that per her pulmonologist, appellant
could not work in a dusty environment.
In a development letter dated July 20, 2018, OWCP advised appellant of the factual and
medical evidence necessary to establish her claim. It attached a questionnaire for her completion.
OWCP afforded appellant 30 days to submit the necessary evidence.
In response, appellant submitted a safety data sheet confirming her exposure to sorbent
powder in the workplace. She also submitted a narrative statement in response to OWCP’s
questionnaire, wherein she again outlined her alleged exposures to substances she believed
contributed to her pulmonary conditions. Appellant also confirmed that she smoked half a pack
of cigarettes per day for approximately 20 years.
In progress reports dated November 7, 2017 and July 11, 2018, Dr. Al-Nashif diagnosed
idiopathic pulmonary fibrosis and moderate chronic obstructive pulmonary disease (COPD). He
also reported that appellant had a productive cough for several months and wheezed.
Dr. Al-Nashif indicated that she had no emergency room visits or hospitalizations and continued
to smoke half a pack of cigarettes daily.
In an undated statement, appellant’s supervisor indicated that she started complaining that
she felt light-headed and dizzy on September 13, 2016. She thereafter summarized appellant’s
daily work activities. Appellant’s supervisor denied that appellant had to work with items that
were covered with mold, mildew, or animal feces.
By decision dated October 5, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish the implicated employment factors. It concluded,
therefore, that appellant had not met the requirements to establish that she sustained an injury as
defined by FECA.
On October 22, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
March 14, 2019. Appellant provided testimony and the hearing representative held the case record
open for 30 days to submit additional evidence.
Appellant subsequently submitted three witness statements from coworkers who testified
that there was dust, mildew, mold, animal feces, animal urine, water, sludge, and sometimes dried
up blood in their workplace.
By decision dated May 22, 2019, OWCP’s hearing representative denied the claim, as
modified, finding that the factual evidence of record was sufficient to establish that appellant was
exposed to sorbent powder, dust, mildew, mold, animal feces, and animal urine at work. However,
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the hearing representative further found that the medical evidence of record was insufficient to
establish a causal relationship between appellant’s diagnosed pulmonary condition(s) and the
accepted factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).9

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

H.A., Docket No. 18-1466 (issued August 23, 2019); T.H., 59 ECAB 388, 393 (2008).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a pulmonary
condition causally related to the accepted factors of her federal employment.
A November 30, 2016 operative note from Dr. Forestiere indicated that appellant had been
diagnosed with bilateral lower lobe interstitial infiltrates with honeycombing, consistent with
pulmonary fibrosis, and that a left lobe thoracoscopy had been performed. Dr. Forestiere,
however, offered no opinion regarding causal relationship. 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.10 This report is therefore insufficient to establish appellant’s claim.
A series of reports from Dr. Al-Nashif provided diagnoses, but also failed to provide an
opinion on causal relationship. As explained above, these reports are of no probative value as they
do not contain an opinion on causal relationship.11
Dr. Okwesili reported on June 20, 2017 that appellant had a medical condition that
worsened when she wore a respirator and worked in a dusty, hot, or excessively humid
environment. However, he merely repeated the history of injury as reported by appellant, without
providing his own opinion regarding whether appellant’s condition was work related. The mere
recitation of patient’s history does not suffice for purposes of establishing causal relationship.12
Dr. Okwesili’s report is, therefore, insufficient to establish appellant’s claim.
The September 14, 2016 to November 12, 2017 reports from Mr. Steele, a certified
physician assistant, are also insufficient to establish appellant’s claim because physician assistants
are not considered “physicians” as defined under FECA. Therefore, his opinion does not constitute
competent medical evidence.13
As appellant has not submitted rationalized medical evidence to support her claim that she
sustained a pulmonary condition causally related to the accepted factors of her federal
employment, the Board finds that she has not met her burden of proof to establish a claim.

10

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018) (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).
11

Id.

12

J.G., Docket No. 19-1116 (issued November 25, 2019); see J.G., Docket No. 17-1382 (issued October 18, 2017).

13

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). E.T., Docket No. 17-0265 (issued
May 25, 2018) (physician assistants are not considered physicians under FECA).

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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 has not met her burden of proof to establish a pulmonary
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the May 22, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 2, 2020
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., (deceased), Appellant
and
DEPARTMENT OF AGRICULTURE,
INSPECTION OPERATIONS PROGRAM,
Minneapolis, MN, Employer
__________________________________________

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Docket No. 13-1829
Issued: February 27, 2014

Appearances:
Elliot Andalman, Esq., for the appellant
Office of Solicitor, for the Director

ORDER GRANTING MOTION TO REMAND
AND CANCEL ORAL ARGUMENT
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On August 1, 2013 the employee, through his attorney, filed an application for review of
a February 4, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) which
affirmed the termination of appellant’s wage-loss compensation benefits on the grounds that he
refused an offer of suitable work. Oral argument was requested. The Board docketed the appeal
as No. 13-1829. An oral argument was scheduled for March 6, 2014 at 11:00 a.m.
By motion dated February 19, 2014, the Director of OWCP requested that the Board set
aside the February 4, 2013 decision, cancel the oral argument scheduled for March 6, 2014 and
remand the case. The Director noted that the February 4, 2013 decision considered only some of
the employee’s accepted and nonemployment-related conditions, and did not properly consider
whether the position was available in the employee’s commuting area. By letter dated
February 24, 2014, the employee’s representative consented to the Solicitor’s motion to remand
the case and cancel the oral argument scheduled for March 6, 2014.1
1

It was noted that the employee passed away on October 21, 2013 and a substitution of Personal Representative
of the Estate would be filed as soon as the Letter of Representative was received from the Probate Court.

The Board has duly considered the matter and concludes that upon the Director’s motion
and the consent of the representative of record, the February 4, 2013 OWCP decision is set aside,
the oral argument scheduled for March 6, 2014 is cancelled, and the case is remanded for further
development. Following any further development deemed necessary, OWCP shall issue a de
novo decision on the merits.
IT IS HEREBY ORDERED THAT the February 4, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: February 27, 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

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

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

Docket No. 10-1943
Issued: May 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 21, 2010 appellant filed a timely appeal from a February 17, 2010 schedule
award decision of the Office of Workers’ Compensation Programs and an April 12, 2010
nonmerit decision. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she has
more than an eight percent impairment of the right upper extremity for which she received a
schedule award; and (2) whether the Office properly refused to reopen appellant’s claim for
further review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant asserts that she is entitled to an increased schedule award because
her right shoulder condition has worsened.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 14, 2001 appellant, then a 43-year-old mail processor, filed an occupational
disease claim, alleging that right shoulder impingement with rotator cuff tear and medial
epicondylitis were caused by repetitious job duties. The Office accepted as employment-related
a right rotator cuff tear and right shoulder tendinitis. On July 9, 2001 Dr. Thomas L.P. Johnson,
a Board-certified orthopedic surgeon, performed arthroscopic subacromial decompression and
mini-arthrotomy with rotator cuff repair of the right shoulder. Appellant returned to full-time
sedentary duty on September 12, 2001.2 By decision dated May 1, 2003, the Office found that
her actual earnings as a mail processing clerk fairly and reasonably represented her wage-earning
capacity with zero loss.
On May 13, 2003 appellant was granted a schedule award for an eight percent
impairment of the right arm. She resigned from the employing establishment on February 5,
2005, stating that it was for personal reasons.
In a July 2, 2008 report, Dr. George M. Hill, a Board-certified orthopedic surgeon, noted
appellant’s previous federal employment and that she currently worked in private employment
making automobile parts. He advised that bilateral shoulder range of motion was decreased, and
diagnosed bilateral, chronic rotator cuff tears with bilateral shoulder pain. A July 22, 2008
magnetic resonance imaging scan of the right shoulder demonstrated postoperative changes
versus partial tear and hypertrophic osteoarthritic change of the acromioclavicular joint. On
October 29, 2008 Dr. Hill performed arthroscopic repair of the right rotator cuff tear. Appellant
stopped work at that time and was placed on the wage-loss compensation rolls.
A March 6, 2009 functional capacity evaluation (FCE), signed by Dr. Hill on March 19,
2009, advised that the overall results were questionable due to inconsistent effort. The report
provided right shoulder range of motion measurements and advised that the measurements
obtained during the test did not reflect observed range of motion when distracted.3 Lifting was
restricted to 40 pounds. In a July 22, 2009 report, Dr. Hill advised that appellant felt that her
shoulder was no better since the surgery. He stated that she could work as described in the FCE.
On August 6, 2009 appellant filed a schedule award claim, and in an August 20, 2009
report, Dr. Guillermo Pujadas, a Board-certified orthopedic surgeon and Office medical adviser,
noted the previous schedule award and October 2008 surgery. He advised that the date of
maximum medical improvement (MMI) was March 6, 2009 and noted that the right shoulder

2

On March 9, 1998 appellant filed an occupational disease claim that was accepted for left shoulder impingement
and left rotator cuff tear. On July 7, 1999 Dr. Johnson performed arthroscopic repair on the left. On October 26,
2001 appellant was granted a schedule award for a seven percent permanent impairment of the left shoulder. The
left shoulder claim was adjudicated under Office file number xxxxxx800, and the right under file number
xxxxxx852. On June 7, 2007 the claims were doubled, with the former becoming the master file.
3

The FCE reported right shoulder flexion of 105 degrees, extension of 52 degrees, adduction of 56 degrees,
abduction of 90 degrees, internal rotation of 40 degrees and external rotation of 72 degrees.

2

range of motion measurements, found on the FCE, were invalid. Dr. Pujadas recommended
clarification of the range of motion measurements in all directions.4
By letter dated September 30, 2009, the Office informed appellant of the type evidence
needed to establish entitlement to an increased schedule award. A note to Dr. Hill was
appended, informing him that the impairment was to be evaluated in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides).5 In a report dated October 28, 2009, Dr. Hill advised
that appellant was last seen on July 22, 2009 and that MMI was reached on February 25, 2009.
He provided range of motion measurements, noting 120 degrees of flexion, 52 degrees of
extension, 56 degrees of adduction, 90 degrees of abduction, 40 degrees of internal rotation and
70 degrees of external rotation, and stated that the impairment measurements were based on
range of motion measurements both “when and when not aware of measurements.” Dr. Hill
concluded that, in accordance with the fourth edition of the A.M.A., Guides, appellant had an 11
percent impairment of the right upper extremity.
On November 16, 2009 the Office asked that Dr. Hill provide an impairment analysis in
accordance with the sixth edition of the A.M.A., Guides and to provide right shoulder range of
motion measurements. In a December 21, 2009 decision, it denied appellant’s claim for an
additional schedule award on the grounds that the record did not contain a medical report in
accordance with the sixth edition of the A.M.A., Guides. On December 31, 2009 appellant
requested reconsideration and submitted a December 14, 2009 report in which Dr. Hill
referenced page 403 of the sixth edition of the A.M.A., Guides, and advised that appellant had a
class 1 impairment due to a rotator cuff injury, full thickness tear, for an 11 percent right upper
extremity impairment. He attached a copy of page 403 of the sixth edition, Table 15-5, Shoulder
Regional Grid.
In a January 12, 2010 report, Dr. Pujadas noted his review of Dr. Hill’s December 14,
2009 report and advised that the physician did not explain how he reached his impairment rating.
The Office medical adviser again recommended getting clarification of appellant’s right shoulder
range of motion measurement in all directions. In a merit decision dated February 17, 2010, the
Office found that Dr. Hill provided no rationale for his impairment rating and denied
modification of the December 21, 2010 decision. Appellant again requested reconsideration on
March 25, 2010, and submitted a March 22, 2010 report in which Dr. Hill advised that MMI was
reached on April 1, 2009 and provided the same range of motion measurements as in his
October 29, 2009 report. By decision dated April 2, 2010, the Office denied appellant’s
reconsideration request.

4

By decision dated September 22, 2009, the Office terminated appellant’s monetary compensation, effective
September 26, 2009, on the grounds that her physician had released her to modified duty, and at the time she
resigned from the employing establishment, she was performing sedentary duty. Appellant did not file an appeal of
this decision with the Board.
5

A.M.A., Guides (6th ed. 2008).

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LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act, and its implementing federal regulations,6 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 for all claimants, the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions
after February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule
awards.8 For decisions issued after May 1, 2009, the sixth edition will be used.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition, Class for Diagnosis (CDX), which is
then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination
(GMPE) and Clinical Studies (GMCS).11 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).12
The sixth edition of the A.M.A., Guides also provides for an impairment rating for loss of
range of motion. Under section 15.7, the sixth edition states that range of motion is to be used as
a stand-alone rating when other grids refer to this section or when no other diagnosis-based
sections for the upper extremity are applicable for impairment rating of a condition.13
ANALYSIS -- ISSUE 1
The Board finds this case is not in posture for decision as to the degree of right upper
extremity impairment, and thus the case will be remanded to the Office for further development.
The accepted conditions relevant to this claim are right rotator cuff tear and right shoulder
tendinitis. The record reflects that appellant was granted a schedule award on May 13, 2003 for
an eight percent impairment of the right arm and on August 6, 2009 she filed a claim for an
additional schedule award.
6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

9

FECA Bulletin No. 09-03 (issued March 15, 2009).

10

A.M.A., Guides, supra note 5 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
11

Id. at 385-419.

12

Id. at 411.

13

Id. at 461.

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In an August 20, 2009 report, Dr. Pujadas, an Office medical adviser, properly noted that
the range of motion values provided on the March 2009 FCE were invalid and recommended
clarification of right upper extremity of range of motion in all directions. In an October 28, 2009
report, Dr. Hill, an attending orthopedist, provided right shoulder range of motion measurements
and an impairment rating in accordance with the fourth edition of the A.M.A., Guides. He noted
that appellant was last seen on July 22, 2009 and advised that she had an 11 percent right upper
extremity impairment, stating that the range of motion measurements were done “when and
when not aware of measurements.” Subsequent to May 1, 2009, the appropriate edition of the
A.M.A., Guides to be used for determining impairments is the sixth edition.14 A medical
opinion, such as Dr. Hill’s October 28, 2009 report, not based on the appropriate edition of the
A.M.A., Guides, is of diminished probative value in determining the extent of a claimant’s
permanent impairment.15
Following an Office request that he provide an impairment evaluation in accordance with
the sixth edition of the A.M.A., Guides, in a December 14, 2009 report, Dr. Hill again found that
appellant had an 11 percent right upper extremity impairment. In a brief, two-line report, he
stated that, in accordance with page 403 of the sixth edition, appellant had a class 1 impairment
for rotator cuff injury, full thickness tear. Under Table 15-5, Shoulder Regional Grid, on page
403 of the sixth edition, a full-thickness rotator cuff injury can be rated as class 0, for no
impairment, or class 1, for a “residual loss, functional with normal motion,” and provides that a
class 1 impairment would be in a range from three to seven percent.16 As noted above, under the
sixth edition, for upper extremity impairments the evaluator identifies the impairment class for
the diagnosed condition, which is then adjusted by grade modifiers. Dr. Hill merely provided a
conclusory impairment rating of 11 percent under the sixth edition and did not address how he
rated impairment based on the appropriate formula and grade modifiers described above.
Accordingly, Dr. Hill’s December 14, 2009 report is insufficient to establish that appellant is
entitled to an additional right upper extremity schedule award.
Table 15-5, however, marks the shoulder impairment diagnosis due to a rotator cuff
injury with an asterisk. The asterisk indicates that, if motion loss is present, the shoulder
impairment may alternatively be assessed using loss of range of motion.17 The record contains
two right shoulder range of motion measurements, those done at the March 2009 FCE that were
deemed invalid, and those provided by Dr. Hill on October 28, 2009. In his October 28, 2009
report, Dr. Hill indicated that he had last seen appellant on July 22, 2009. His report dated
July 22, 2009 did not include range of motion measurements. It is therefore unclear when the
range of motion measurements provided in the October 28, 2009 report were completed.
Moreover, in his January 12, 2010 report, Dr. Pujadas referenced his August 20, 2009 and the
FCE range of motion findings. He, however, did not indicate that he had reviewed the range of
motion findings provided by Dr. Hill on October 28, 2009. Nonetheless, in his January 12, 2010
14

Supra note 9.

15

Fritz A. Klein, 53 ECAB 642 (2002).

16

A.M.A., Guides, supra note 5 at 403.

17

Id.

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report, Dr. Pujadas again requested clarification of right shoulder range of motion in all
directions, and there is nothing in the case record to indicate that the Office asked Dr. Hill for
further clarification or further developed the evidence prior to issuing the merit decision on
February 17, 2010 denying modification of the December 21, 2010 decision.
The Board also notes that the record contains contradictory dates of MMI. Dr. Pujadas
consistently advised that it was reached on March 6, 2009. Dr. Hill, however, initially advised
that MMI was reached on February 25, 2009, yet later stated that the date of MMI was
April 1, 2009.
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
the Office shares responsibility in the development of the evidence. Once the Office has begun
an investigation of a claim, it must pursue the evidence as far as reasonably possible. It has an
obligation to see that justice is done.18 Without a detailed report comporting with the standards
of the sixth edition of the A.M.A., Guides, the Board is unable to determine whether appellant
has an increased impairment due to the accepted right upper extremity conditions that would
entitle her to an additional schedule award. Accordingly, as there is no medical evidence of
record that fully comports with the A.M.A., Guides or provides a complete analysis of
appellant’s right upper extremity impairment, the Board finds that the case is not in posture for
decision. The case is remanded to the Office for further development on the extent of
impairment of appellant’s right upper extremity in accordance with the sixth edition of the
A.M.A., Guides.
In light of the Board’s findings regarding Issue 1, Issue 2 is rendered moot.
CONCLUSION
The Board finds that the case is not in posture for decision as to the extent of appellant’s
right upper extremity impairment.

18

A.A., 59 ECAB 726 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 12 and February 17, 2010 be set aside and the case
remanded to the Office for proceedings consistent with this opinion of the Board.
Issued: May 16, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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