United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF AGRICULTURE,
McCLOUD RANGER STATION, McCloud, CA,
Employer
__________________________________________

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

Docket No. 07-1686
Issued: April 24, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 11, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated March 23, 2007 terminating her compensation benefits. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective April 15, 2007 on the grounds that she refused an offer of
suitable work.
FACTUAL HISTORY
This case has previously been before the Board on appeal. Appellant injured her right
knee and elbow on September 22, 1988 when she fell in the performance of duty. The Office
accepted her claim for right knee strain and right elbow contusion on January 26, 1989 and
entered her on the periodic rolls on February 28, 1989. The Office accepted the additional

conditions of subluxation of L5, bulging disc at L4-5 and sprain of the right knee on
July 26, 1991. The Office reduced appellant’s compensation benefits to reflect her capacity to
earn wages as a general clerk on May 18, 1992. Following a request for a review of the written
record, the Branch of Hearings and Review affirmed this decision on November 13, 1992. The
Office also accepted that appellant sustained a herniated disc at L4-5 due to her employment
injury and that she was totally disabled beginning November 25, 2000. The Office entered
appellant on the periodic rolls on July 26, 2001. By decision dated March 2, 2004, the Office
terminated appellant’s compensation benefits effective March 21, 2004 on the grounds that she
refused an offer of suitable work. In its March 25, 2005 decision,1 the Board reversed the
Office’s March 2, 2004 decision finding that the employing establishment made no effort to
determine whether reemployment was possible in the location where appellant resided,
Conception Junction, Missouri. The Office had an obligation to develop this aspect of the case
before determining that appellant had refused suitable work. The facts and the circumstances of
the case as set out in the Board’s prior decision are incorporated herein by reference.
Appellant filed a claim for compensation on May 11, 2005 and requested wage-loss
compensation from March 2004 through May 2005. The Office entered appellant on the
periodic rolls on June 2, 2005.
Appellant’s attending physician, Dr. Patrick B. Harr, a Board-certified family
practitioner, completed a form report on June 23, 2005 and noted that appellant continued to
experience back pain requiring narcotic pain medication. He stated that appellant was unable to
work eight hours a day and had limited ability to sit, stand or bend. In a treatment note of the
same date, Dr. Harr diagnosed chronic low back pain and stated that appellant had no palpable
tenderness in the lower lumbar spine, that she walked without an antalgic gait, that she could toe
raise and that she had no pain on straight leg raising.
In a letter dated September 30, 2005, the Office requested that the employing
establishment determine, based on appellant’s 2002 medical evaluations, whether there was a
medically suitable position available in Missouri. The Office stated that the employing
establishment should provide documentation of its efforts if there was no suitable position
available and then provide appellant with another job offer for the position in California.
The employing establishment telephoned the Office on February 15, 2006 and stated that
there was no suitable work position available for appellant in Missouri. The employing
establishment submitted a series of e-mails which stated that there were no appropriate positions
available to appellant in Missouri.
On August 17, 2006 the employing establishment again offered appellant the mail and
file clerk position previously offered in 2004 located at the employing establishment, McCloud,
California. The work requirements included no prolonged sitting, with position changes as
needed, walking up to two hours a day, no limitation on standing, reaching up to eight hours a
day, no twisting, pulling and lifting up to 10 pounds, no squatting, bending, kneeling or
climbing. By letter dated September 26, 2006, the Office informed appellant that the mail and
file clerk position in California was considered to be suitable work and allowed her 30 days to
1

Docket No. 04-1351 (issued March 25, 2005).

2

accept the position or offer her reasons for refusal. The Office informed appellant of the penalty
provision of 5 U.S.C. § 8106(c). Appellant responded on September 29, 2006 and alleged that
the offered position was not suitable as it was based on outdated medical information. She also
requested information regarding her relocation expenses and the search for suitable employment
within her current area.
In a letter dated November 9, 2006, the Office informed appellant that the current
position was found to be suitable based on the December 17, 2001 and March 13, 2002 reports
from Dr. John Olsen, a Board-certified neurosurgeon, and appellant’s attending physician. The
Office stated that Dr. Harr had not provided sufficient medical reasoning in support of his
opinion that appellant was unable to work. The Office stated that appellant’s reasons for
refusing the suitable work position were not valid and allowed her an additional 15 days to
accept the offered position.
The Office referred appellant for a second opinion evaluation on December 14, 2006 with
Dr. Edward J. Prostic, a Board-certified orthopedic surgeon. In a report dated January 30, 2007,
Dr. Prostic noted appellant’s history of injury, description of symptoms and diagnosed
degenerative disc disease with lumbar spinal stenosis. He stated: “It has been a progressive
problem facilitated by the work injury.” Dr. Prostic found that appellant had continued low back
distress and radicular symptoms and that she was not capable of performing her date-of-injury
position. He reviewed the offered mail and file clerk position and stated: “…[Appellant] is
physically capable to perform this job with minor restrictions.” Dr. Prostic completed a work
restriction evaluation and indicated that appellant could walk and stand for six hours a day, could
twist, bend and stoop for one hour a day and could lift 20 pounds for two hours a day.
In a letter dated March 1, 2007, the Office informed appellant that she had provided a
valid reason for refusing the suitable work position, that the position was based on old work
restrictions. The Office stated that Dr. Prostic found that appellant was capable of performing
the offered position and again allowed appellant 15 days to accept the file clerk position offered
by the employing establishment.
By decision dated March 23, 2007, the Office terminated appellant’s compensation
benefits effective April 15, 2007 finding that she refused an offer of suitable work based on
Dr. Prostic’s January 30, 2007 report.
LEGAL PRECEDENT
It is well settled that once the Office accepts a claim, it has the burden of justifying
termination or modification of compensation benefits.2 As the Office in this case terminated
appellant’s compensation under 5 U.S.C. § 8106(c), the Office must establish that she refused an
offer of suitable work. Section 8106(c) of the Federal Employees’ Compensation Act3 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. Section 10.517 of
2

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

5 U.S.C. § 8106(c)(2).

3

the applicable regulations4 provides that an employee who refuses or neglects to work after
suitable work has been offered or secured for the employee, has the burden of showing that such
refusal or failure to work was reasonable or justified and shall be provided with the opportunity
to make such showing before a determination is made with respect to termination of entitlement
to compensation. To justify termination of compensation, the Office must show that the work
offered was suitable and must inform appellant of the consequences of refusal to accept such
employment.5
The Office’s regulations also state:
“[The Office] shall advise the employee that it has found the offered work to be
suitable and afford the employee 30 days to accept the job or present any reasons
to counter [the Office’s] finding of suitability. If the employee presents such
reasons and [the Office] determines that the reasons are unacceptable, it will
notify the employee of that determination and that he or she has 15 days in which
to accept the offered work without penalty. At that point in time, [the Office’s]
notification need not state the reasons for finding that the employee’s reasons are
not acceptable.”6
If possible, the employer should offer suitable reemployment in the location where the
employee currently resides. If this is not practical, the employer may offer suitable
reemployment at the employee’s former-duty station or other location.7
ANALYSIS
The Board finds that the Office failed to meet its burden of proof to terminate appellant’s
compensation benefits on the basis that she refused an offer of suitable work. The Office found
that there was no contemporaneous medical evidence in the record supporting that appellant was
capable of performing the offered position of mail and file clerk. The Office referred appellant
for a second opinion evaluation with Dr. Prostic, a Board-certified orthopedic surgeon, who
examined appellant on January 30, 2007. Dr. Prostic stated that appellant could perform the
duties of a mail and file clerk “with minor restrictions.” He then indicated on his work
restriction evaluation that appellant could only stand for six hours a day. The mail and file clerk
position offered by the employing establishment and found suitable by the Office required
appellant to stand without limitation or up to eight hours a day. Appellant’s physical restrictions
as determined by Dr. Prostic, the second opinion physician, exceeded the job requirements of the
offered position in regard to the amount of standing that she was capable of performing. This
position cannot be considered suitable work. The Office failed to meet its burden of proof to

4

20 C.F.R. § 10.517(a).

5

Arthur C. Reck, 47 ECAB 339, 341-42 (1995).

6

20 C.F.R. § 10.516.

7

20 C.F.R. § 10.508 (1999). This regulation applies to both those employees who are no longer on agency rolls
and those employees who continue on the agency rolls.

4

terminate appellant’s compensation benefits based on a refusal of a suitable work position based
on the medical evidence.
CONCLUSION
The Board finds that the current medical evidence does not support that appellant was
capable of performing the duties of the alleged “suitable work” position and that the Office,
therefore, failed to meet its burden of proof to terminate her compensation benefits effective
April 15, 2007.
ORDER
IT IS HEREBY ORDERED THAT the March 23, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE NAVY, BUREAU OF
MEDICINE & SURGERY, San Diego, CA,
Employer
__________________________________________

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

Docket No. 19-0830
Issued: September 20, 2019

Case Submitted on the Record

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

JURISDICTION
On March 9, 2019 appellant filed a timely appeal from a March 6, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 6, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
On January 18, 2019 appellant, then a 46-year-old registered dental hygienist, filed an
occupational disease claim (Form CA-2) alleging that due to repetitive motion and position over
time he developed a cervical herniated disc while in the performance of duty. He identified
December 26, 2018 as the date he first realized that his condition was caused or aggravated by
factors of his federal employment. Appellant stopped work on December 26, 2018 and returned
to modified work on December 27, 2018.
Appellant submitted a December 26, 2018 work status report from Dr. Avelina Sandoval,
a Board-certified family medicine physician, who related that appellant was able to perform
modified duty until January 9, 2019.
In a January 7, 2019 report, Dr. Nena M. Rocha, a Board-certified family medicine
physician, diagnosed moderate-to-mild cervical degenerative changes based on her review of an
x-ray. She noted that appellant worked as a dental hygienist, but that he was currently unable to
hold instruments to perform his employment duties. Dr. Rocha expressed concern that his current
symptoms might be caused by nerve impingement and recommended he avoid repetitive motion
to prevent aggravation of his symptoms.
A January 8, 2019 magnetic resonance imaging scan revealed multilevel cervical
degenerative disc disease.
OWCP also received a January 14, 2019 consultation report signed by Annette RamoHaggan, a nurse practitioner, cosigned by Dr. Daniel V. White, a Board-certified neurosurgeon,
diagnosing C4-5 herniated disc with moderate stenosis and severe bilateral foraminal stenosis and
severe C5-6 stenosis and severe bilateral foraminal stenosis.
In a February 1, 2019 development letter, OWCP advised appellant of the factual and
medical deficiencies of his claim and instructed him as to the additional information necessary to
establish his claim. It also included a questionnaire which inquired as to the work factors which
he believed caused him to sustain an occupational disease and asked that he describe the frequency
and duration of the identified factors. Appellant was afforded 30 days to submit additional
evidence and respond to OWCP’s inquiries.
In response to OWCP’s request appellant submitted a February 25, 2019 report from
Dr. F. Kevin Yoo, a Board-certified neurosurgeon, who provided examination findings, reviewed
diagnostic tests and diagnosed subtle evidence of cervical myelopathy, very large C4-5 disc
herniation, and severe stenosis from a C5-6 disc osteophyte complex. Dr. Yoo related that
appellant believed that his condition had been caused by having his neck in certain positions for
extended periods of time as a dental hygienist on December 26, 2018.

2

By decision dated March 6, 2019, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that he sustained an injury in the
performance of duty, as no clarifying statement regarding the duties he believed caused or
aggravated his condition had been submitted. As such, it concluded that the requirements had not
been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 filed within the applicable time
limitation of FECA,4 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.5 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.6
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”7 To establish that an injury was
sustained in the performance of duty in an occupational disease claim, a claimant must submit:
(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 identified employment
factors.8
The employee’s burden of proof includes the submission of a detailed description of the
employment factors or conditions, which he or she believes caused or adversely affected a
condition for which compensation is claimed.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he sustained
an injury in the performance of duty.
3

Supra note 1.

4

T.W., Docket No. 18-0788 (issued July 22, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

T.W., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); Gary J. Watling, 52 ECAB 278 (2001); Elaine
Pendleton, 40 ECAB 1143 (1989).
6

T.W., id.; K.M., Docket No. 15-1660 (issued September 16, 2016); Delores C. Ellyett, 41 ECAB 992 (1990).

7

20 C.F.R. § 10.5(q).

8

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).

9

T.W., supra note 4; J.C., Docket No. 16-1663 (issued January 18, 2017); Lori A. Facey, 55 ECAB 217 (2004).

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To establish a claim for compensation in an occupational disease claim, an employee must
submit a statement which identifies the factors of employment believed to have caused his or her
condition.10 Appellant failed to provide sufficient detail to establish that, an occupational exposure
occurred as alleged because he did not adequately describe the circumstances of his injury, the
duties he was performing which caused his injury or the mechanism of injury.11
In a February 1, 2019 development letter, OWCP requested that appellant respond to its
questionnaire and provide detailed information concerning the job activities he believed
contributed to his alleged cervical injury. While it received a February 25, 2019 medical report
from Dr. Yoo noting that appellant attributed his condition to repetitive motion from his dental
hygienist position, there is no information from appellant describing the specific employmentrelated activities which he believed contributed to his condition and the amount of time he spent
engaging in such activities.12 Absent this evidence, as was requested in the questionnaire sent to
appellant, it cannot be determined whether the history of injury provided in the medical evidence
of record corresponds with his alleged injury.
The Board finds that the record lacks sufficient factual evidence to establish the specific
details of how the claimed injury occurred. As appellant has not established the factual aspect of
his claim, the medical evidence regarding causal relationship need not be addressed.13
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 his burden of proof to establish an injury in the
performance of duty, as alleged.

10

E.V., Docket No. 19-0447 (issued June 25, 2019); H.O., Docket No. 17-1176 (issued November 27, 2018).

11

Id.

12

L.W., Docket No. 19-0196 (issued July 2, 2019); D.C., Docket No. 18-0082 (issued July 12, 2018).

13

L.W., id.; V.F., 58 ECAB 321 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the March 6, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 20, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
MOBILITY COMMAND, CHARLESTON AIR
FORCE BASE, SC, Employer
__________________________________________

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

Docket No. 13-804
Issued: July 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On February 20, 2013 appellant filed a timely appeal from the November 30, 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 case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she had disability
from July 16 to October 5, 2012 for four hours per day due to her October 26, 2000 work injury.
FACTUAL HISTORY
OWCP accepted that on October 26, 2000 appellant, then a 47-year-old licensed practical
nurse, sustained a torn medial meniscus and post-traumatic arthropathy of her right knee. The
injury occurred when she stood up from a sitting position and felt a sharp pain in the back of her
1

5 U.S.C. §§ 8101-8193.

right knee. Appellant stopped work on October 26, 2000 and returned to work on November 6,
2000 as a lead medical support technician. She later began working on a full-time basis as a
modified medical records technician, a position which was sedentary in nature.
On December 8, 2000 appellant underwent arthroscopic surgery of her right knee with
partial lateral meniscectomy and resection of plica-type scar in the supra-patellar pouch. The
procedure was authorized by OWCP.
In a May 20, 2002 decision, OWCP granted appellant a schedule award for a 10 percent
permanent impairment of her right leg. The award ran for 28.8 weeks from April 23 to
November 10, 2002.
Appellant filed several claims for compensation (Form CA-7) alleging that she was
totally disabled on July 20 and 27, August 3, 10, 17, 18 and 19, 2011 due to her October 26,
2000 work injury. In brief reports dated July 20 and 27, August 3 and 10, 2011, Dr. John M.
Graham, Jr., an attending Board-certified orthopedic surgeon, indicated that he treated her right
knee on those dates by providing sodium hyaluronate injections. He generally noted that
appellant complained of discomfort in her right knee.
In a November 29, 2011 decision, OWCP denied appellant’s claim that she had workrelated total disability on July 20 and 27, August 3, 10, 17, 18 and 19, 2011, noting that she did
not submit sufficient medical evidence to support her claim. However, it did accept that she
should be paid for the time she attended OWCP-authorized medical appointments on July 20 and
27, August 3 and 10, 2011.
The findings of June 6, 2012 x-ray testing of appellant’s right knee revealed moderately
severe medial compartment joint space narrowing with associated marginal osteophytes. No
acute bony injury was observed.
In a June 20, 2012 report, Dr. Graham indicated that appellant complained of pain upon
range-of-motion testing of her right knee. He diagnosed unspecified osteoarthrosis of the right
knee and indicated that she should be limited to sedentary work for only four hours per day.
Appellant filed CA-7 forms alleging that she was disabled for four hours per day from
July 16 to October 5, 2012.2
Appellant submitted a July 16, 2012 report in which Dr. Graham stated that she continued
to complain of restricted right knee motion and pain when engaging in right knee flexion. He
indicated that she reported pain upon range-of-motion testing of her right knee and noted that her
right knee had normal stability. Dr. Graham diagnosed unspecified osteoarthrosis of the right
knee and indicated that appellant should be limited to sedentary work for only four hours per
day. He stated that she should continue with a home exercise program and “activity

2

In addition to claiming that she was disabled from work for four hours on July 16, 2012, appellant claimed that
she should receive compensation for four hours in connection with the July 16, 2012 examination by Dr. Graham.

2

precautions.”3 In a July 16, 2012 form report, Dr. Graham noted that appellant could return to
work on July 16, 2012 for four hours per day. In a July 18, 2012 form report, he stated that she
could return to sedentary work on July 17, 2012 for four hours per day. Dr. Graham indicated
that appellant’s next appointment was for September 19, 2012.
In an August 6, 2012 letter, OWCP requested that appellant submit additional evidence in
support of her claim. In an August 20, 2012 statement, appellant indicated that she continued to
experience pain, swelling, instability and popping in her right knee.
In an August 21, 2012 form report, Dr. Graham noted that appellant’s history of injury
“goes back to 2009” and diagnosed osteoarthritis of the right knee. In response to a question
regarding whether the observed condition was caused or aggravated by a work activity, he stated,
“Prolonged standing or walking may aggravate condition.” Dr. Graham indicated that appellant
could only perform sedentary work for four hours per day. In an August 21, 2012 work
restriction form, he stated that she could only perform sedentary work for four hours per day,
noting that working eight hours per day “may aggravate condition.” Appellant could sit for four
hours per day and walk or stand for two hours per day, but she could not engage in bending,
stooping, squatting, kneeling or climbing.
In a September 19, 2012 report, Dr. Graham stated that appellant continued to complain
of pain and swelling in her right knee as well as pain in her right knee at rest and with activity.
He noted that she reported pain with range-of-motion testing of her right knee and that mild
crepitus was observed. Dr. Graham stated that all ligaments in appellant’s right knee appeared to
be stable. He diagnosed unspecified osteoarthrosis of the right knee and indicated that she
should be limited to sedentary work for only four hours per day. Dr. Graham injected appellant’s
right knee with methylprednisolone acetate and stated that she should return in two months for a
recheck of her condition. In a September 19, 2012 form report, he indicated that she was
permanently released to sedentary work with restrictions, including no squatting, climbing,
stooping and no standing or walking for over two hours per day. Appellant also could not
engage in “excessive running or cutting.” He also submitted physical therapy reports, a page
from an undated functional evaluation report completed by a physical therapist and a report
containing physical findings signed by a person with an illegible signature. In an October 22,
2012 form report, Dr. Graham indicated that appellant could return to sedentary work on
October 22, 2012.
In a November 30, 2012 decision, OWCP denied appellant’s claim that she had disability
from July 16 to October 5, 2012 for four hours per day due to her October 26, 2000 work injury.
It found that she did not submit sufficient medical evidence to support her claim.4

3

A copy of the July 16, 2012 report, which was submitted at a later date, contains an attached note in which
Dr. Graham stated, “These restrictions are permanent and updated.”
4

However, OWCP determined that appellant should be paid compensation in connection with the July 16, 2012
examination with Dr. Graham.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.5 Whether a particular employment injury causes disability for
employment and the duration of that disability are medical issues, which must be proved by a
preponderance of reliable, probative and substantial medical evidence.6 The medical evidence
required to establish a causal relationship between a claimed period of disability and an
employment injury is rationalized medical opinion evidence. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.7
ANALYSIS
OWCP accepted that on October 26, 2000 appellant sustained a torn medial meniscus and
post-traumatic arthropathy of her right knee due to standing up from a sitting position and
authorized December 2000 right knee surgery, which included partial lateral meniscectomy and
resection of plica-type scar in the supra-patellar pouch. Appellant began working on a full-time
basis as a modified medical records technician, a position which was sedentary in nature. She
filed CA-7 forms alleging that she was disabled for four hours per day from July 16 to October 5,
2012 due to her October 26, 2000 work injury and OWCP denied her claim on the grounds that
she did not submit sufficient medical evidence in support thereof.
The Board finds that appellant did not submit sufficient medical evidence to establish that
she had disability from July 16 to October 5, 2012 for four hours per day due to her October 26,
2000 work injury.
Appellant submitted a July 16, 2012 report in which Dr. Graham, an attending Boardcertified orthopedic surgeon, stated that she continued to complain of restricted right knee
motion and pain when engaging in right knee flexion. Dr. Graham indicated that she reported
pain upon range-of-motion testing of her right knee and noted that her right knee had normal
stability. He diagnosed unspecified osteoarthrosis of the right knee and indicated that appellant
should be limited to sedentary work for only four hours per day.8 In a July 16, 2012 form report,
Dr. Graham noted that she could return to work on July 16, 2012 for four hours per day and, in a
5

J.F., Docket No. 09-1061 (issued November 17, 2009).

6

W.D., Docket No. 09-658 (issued October 22, 2009).

7

See E.J., Docket No. 09-1481 (issued February 19, 2010).

8

Dr. Graham later indicated that these restrictions were permanent.

4

July 18, 2012 form report, he stated that she could return to sedentary work on July 17, 2012 for
four hours per day.
The submission of these reports does not establish appellant’s disability claim, because
Dr. Graham did not provide a clear opinion that her claimed disability for four hours per day
beginning July 16, 2012 was due to her October 26, 2000 work injury or any other work-related
condition. Dr. Graham did not provide any notable description of her medical history or detail
the conditions accepted by OWCP as due to the incident on October 26, 2000 when she stood up
from a sitting position. Moreover, he did not explain how appellant’s right knee condition
prevented her from working for four hours each day beginning July 16, 2012. Appellant’s job in
July 2012 was sedentary in nature and required minimal walking and standing. Although
Dr. Graham noted that she reported symptoms such as pain on right knee motion, she
complained of such symptoms well before July 2012 and he did not explain why she could only
perform her sedentary work for four hours per day beginning July 16, 2012.
In an August 21, 2012 form report, Dr. Graham indicated that appellant’s history of
injury “goes back to 2009” and diagnosed osteoarthritis of the right knee. In response to a
question regarding whether the observed condition was caused or aggravated by a work activity,
he stated, “Prolonged standing or walking may aggravate condition.” Dr. Graham indicated that
appellant could only perform sedentary work for four hours per day. In an August 21, 2012
work restriction form, he stated that she could only perform sedentary work for four hours per
day, noting that working eight hours per day “may aggravate condition.” While Dr. Graham now
appeared to relate appellant’s disability for four hours per day to a work cause, he did not
provide a rationalized explanation for this opinion. He did not describe her accepted work
conditions in any detail or explain how they could have caused disability for four hours per day.9
Rather, Dr. Graham appears to have restricted appellant to working for only four hours per day
based on a perception that she might be injured at some point in the future if she worked eight
hours per day. However, it is well established that the possibility of future injury constitutes no
basis for the payment of compensation.10
In a September 19, 2012 report, Dr. Graham stated that appellant continued to complain
of pain and swelling in her right knee as well as pain in her right knee at rest and with activity.
He noted that she reported pain with range-of-motion testing of her right knee and that mild
crepitus was observed, but pointed out that all ligaments in her right knee appeared to be stable.
Dr. Graham again diagnosed unspecified osteoarthrosis of the right knee and indicated that
appellant should be limited to sedentary work for only four hours per day.11 In his
September 2012 reports, he also failed to provide a rationalized opinion explaining how her
October 26, 2000 work injury limited her to only working four hours per day. Dr. Graham did

9

Moreover, Dr. Graham provided an inaccurate medical history by indicating that appellant’s right knee
problems dated from 2009.
10

Gaeten F. Valenza, 39 ECAB 1349, 1356 (1988).

11

In a September 19, 2012 form report, Dr. Graham indicated that appellant was permanently released to
sedentary work with restrictions, including no squatting, climbing, stooping and no standing or walking for over two
hours per day. Appellant also could not engage in “excessive running or cutting.”

5

not describe the conditions accepted by OWCP as being caused by the October 26, 2000 work
incident or explain how these conditions caused disability from appellant’s sedentary work.
Appellant also submitted physical therapy reports and a page from an undated functional
evaluation report completed by a physical therapist. However, as causal relationship is a medical
question that can only be resolved by medical opinion evidence, the reports of nonphysicians, such
as physical therapists, cannot be considered by the Board in adjudicating that issue.12 On appeal,
appellant argued her continuing right knee symptoms showed that she had the claimed workrelated disability between July and October 2012, but her own opinion on the cause of her
claimed disability has no probative value.
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 that she had
disability from July 16 to October 5, 2012 for four hours per day due to her October 26, 2000
work injury.

12

Arnold A. Alley, 44 ECAB 912, 920-21 (1993); Jane A. White, 34 ECAB 515 (1983).

6

ORDER
IT IS HEREBY ORDERED THAT the November 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carol Stream, IL, Employer
__________________________________________
Appearances:
Vivian Henderson, for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0829
Issued: November 30, 2020

Case Submitted on the Record

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

On February 27, 2020 appellant, through her representative, filed a timely appeal from a
February 20, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
under File No. xxxxxx633.2 The Clerk of the Appellate Boards docketed the appeal as No.
20-0829.
On September 17, 2011 appellant, then a 55-year-old automation clerk, filed a traumatic
injury claim (Form CA-1) alleging that earlier that day she sustained injuries to her feet, knees,
head, elbows, shoulders, and a uterine prolapse with vaginal bleeding when loading trays of mail
onto the top of a five-tier letter rack while in the performance of duty.

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
Appellant timely requested oral argument before the Board. See 20 C.F.R. § 501.5(b). In light of the Board’s
disposition of this appeal, the oral argument request is denied.

Prior to appellant’s September 19, 2011 traumatic injury claim, OWCP accepted:
February 2, 2002, right shoulder, right hand, and cervical spine sprains under File No. xxxxxx155;
July 16, 2006, left de Quervain’s and left radial styloid tenosynovitis under File No. xxxxxx949;
January 11, 2008, bilateral lower leg contusions under File No. xxxxxx926;3 August 1, 2008, right
forearm and facial contusions under File No. xxxxxx256; May 1, 2009, bilateral tarsal tunnel
syndrome under File No. xxxxxx696; and an August 7, 2009, lumbar sprain under File No.
xxxxxx298. Additionally, under OWCP File No. xxxxxx944, appellant claimed bilateral carpal
tunnel syndrome, bilateral tarsal tunnel syndrome, conditions of the bilateral shoulders, elbows,
and cervical spine on May 14, 2019. By decision dated March 31, 2020 under OWCP File No.
xxxxxx944, an OWCP hearing representative remanded the claim for further development of the
medical evidence and directed OWCP to administratively combine appellant’s claims under File
Nos. xxxxxx155, xxxxxx541, xxxxxx949, xxxxxx696, xxxxxx926, xxxxxx298, and xxxxxx944,
as they concerned the same parts of the body. OWCP combined the claims under File No.
xxxxxx926 effective April 17, 2020.
Appellant also filed two prior claims for uterine prolapse. Under OWCP File No.
xxxxxx496, appellant claimed a uterine prolapse and pelvic relaxation syndrome due to repetitive
lifting on or before May 1, 2009. Under OWCP File No. xxxxxx787, appellant claimed a uterine
prolapse caused by repetitive heavy lifting on or before February 1, 2011. OWCP denied both
claims. Additionally, appellant filed an occupational disease claim under OWCP File No.
xxxxxx281 for a March 1, 2006, right shoulder injury related to pushing postal containers and
carts, which OWCP also denied.
By decision dated December 2, 2011 and reissued December 20, 2011, OWCP denied
appellant’s traumatic injury claim under File No. xxxxxx633, finding that the medical evidence of
record was insufficient to establish causal relationship between diagnosed musculoskeletal
conditions, uterine prolapse, and appellant’s employment duties. Following the submission of
additional medical evidence, it again denied appellant’s claim by decision dated April 19, 2012.
On May 8, 2012 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. By decision dated August 20, 2012, an OWCP hearing
representative denied appellant’s claim as the medical evidence of record failed to differentiate
between the effects of the employment-related injury and appellant’s prior upper extremity, lower
extremity, spinal, and uterine conditions. In denying the claim, the hearing representative
referenced medical evidence from OWCP File Nos. xxxxxx281, xxxxxx298, xxxxxx496, and
xxxxxx787.
On April 23, 2013 appellant requested reconsideration of OWCP’s April 19, 2012 decision.
By decision dated May 1, 2013, OWCP denied appellant’s request for reconsideration, finding that
it untimely filed and failed to demonstrate clear evidence of error. Appellant then appealed to the
Board.

3
Under OWCP File No. xxxxxx926, on August 5, 2013, OWCP granted appellant schedule awards for four percent
permanent impairment of the right lower extremity and two percent permanent impairment of the left lower extremity.

2

By order dated March 25, 2014,4 the Board set aside OWCP’s May 1, 2013 decision,
finding that appellant’s April 23, 2013 reconsideration request, was timely filed within one year
of the August 20, 2012 merit decision.
By decision dated July 16, 2014, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish causal relationship between the accepted
September 17, 2011 incident, and the claimed musculoskeletal and uterine conditions.
In a letter dated June 30, 2015 and received by OWCP on July 23, 2015, appellant
requested reconsideration.
By decision dated October 19, 2015, OWCP denied modification, finding that the medical
evidence of record was insufficient to establish causal relationship. It noted that appellant’s claim
for uterine prolapse also implicated evidence under File No. xxxxxx496.
On December 10, 2019 appellant requested reconsideration of OWCP’s October 19, 2015
decision.
By decision dated February 20, 2020, OWCP denied reconsideration finding that
appellant’s December 10, 2019 reconsideration request was untimely filed and failed to
demonstrate clear evidence of error.
The Board, having duly considered the matter, finds that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication depends on cross-referencing between files and where two or more injuries
occur to the same part of the body.5 In the present claim, appellant alleged injuries to her head,
upper and lower extremities, and uterus. OWCP previously accepted that appellant sustained:
de Quervain’s tenosynovitis and radial styloid tenosynovitis under File No. xxxxxx926; right
forearm and facial contusions under File No. xxxxxx256; a lumbar sprain under File No.
xxxxxx944; and bilateral tarsal tunnel syndrome under File No. xxxxxx696. There is also
extensive medical evidence in OWCP File No. xxxxxx496 regarding the claimed uterine prolapse.
For a full and fair adjudication, the claims in OWCP File Nos. xxxxxx256, xxxxxx496, and
xxxxxx633 should be combined with the claims administratively combined under File No.
xxxxxx926.
Under its procedures, OWCP has determined that cases should be combined where a new
injury case is reported for an employee who previously filed an injury claim for the same part of

4

Supra note 2.

5
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

3

the body and where correct adjudication depends on cross-referencing between files.6 This will
allow OWCP to consider all relevant claim files in developing this schedule award claim.7
Accordingly, the Board will remand the case to OWCP to administratively combine OWCP
File Nos. xxxxxx256, xxxxxx496, and xxxxxx633 with the claims under Master File No.
xxxxxx926. Following this and other such development as deemed necessary, OWCP shall issue
a de novo merit decision on appellant’s claim.
IT IS HEREBY ORDERED THAT the February 20, 2020 decision of the Office of
Workers’ Compensation programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: November 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6

Id. at Chapter 2.400.8(c)(1); W.W., Docket No. 19-0884 (issued June 16, 2020); L.P., Docket Nos. 18-1558, 181568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867, 17-1868 (issued April 18, 2018); W.S., Docket No.
15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576 (issued March 9, 2015).
7

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
GENERAL SERVICES ADMINISTRATION,
SOUTHEAST SUNBELT REGION -- FEDERAL
ACQUISITION SERVICE, CPC,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 11-161
Issued: September 19, 2011

Case Submitted on the Record

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

JURISDICTION
On October 26, 2010 appellant filed a timely appeal from a May 5, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) regarding her schedule award claim.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than 12 percent impairment of the right arm, for
which she received a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On December 17, 2008 appellant, then a 67-year-old property disposal specialist, injured
her right arm and shoulder when she slipped on water in a hallway and fell. OWCP accepted the
claim for right shoulder rotator cuff tear and paid benefits. Appellant worked limited duty
following her injury before returning to full duty.
On October 7, 2009 appellant requested a schedule award. In a September 9, 2009
report, Dr. Alexandra J. Strong, a Board-certified orthopedic surgeon, reported that when she
first evaluated appellant on January 6, 2009 for right shoulder pain following the December 17,
2008 work injury, there was decreased strength and a magnetic resonance imaging (MRI) scan
was ordered. Appellant was next seen on February 10, 2009. The MRI scan showed a large tear
with retraction that involved the supraspinatus, infraspinatus and subscapularis. The biceps
tendon was dislocated medially from the bicipital groove. Changes were also noted in the
posterior labrum, acromioclavicular (AC) joint arthropathy and some glenohumeral degenerative
change. Dr. Strong stated that, when appellant was last evaluated on April 7, 2009, she had good
range of motion and the x-rays indicated that her humeral head was high riding. Appellant
reported occasional pain and discomfort, for which she took Advil or Tylenol. Dr. Strong stated
that appellant had degenerative changes in her glenohumeral joint and that her rotator cuff tear
was likely irreparable. Appellant also felt that she was getting rotator cuff arthropathy.
Dr. Strong stated that a reverse total shoulder replacement might be indicated if appellant’s
condition worsened. As appellant reported no significant pain to the point she wanted to undergo
surgical intervention, Dr. Strong opined that maximum medical improvement had been reached.
Based on Table 15-5 of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (hereinafter), Dr. Strong rated appellant
with 25 percent impairment of the right upper extremity.
On November 13, 2009 an OWCP medical adviser reviewed Dr. Strong’s September 9,
2009 report. He agreed that appellant reached maximum medical improvement as of
September 9, 2009; however, Dr. Strong’s impairment rating could not be used as it was not
supported by sufficient examination findings. The medical adviser advised that, under Table
15-5, Shoulder Regional Grid, pages 401-405 of the A.M.A., Guides, appellant had a number of
ratable conditions which could be used. He stated that page 387 of the A.M.A., Guides indicated
that, if there were two significant diagnoses, the diagnosis with the highest impairment rating
should be used. Under Table 15-5, a complete rotator cuff tear with normal motion equaled a
default impairment of 5 percent; a labral tear and degenerative SLAP lesion with normal motion
equaled a default impairment of 3 percent; glenohumeral degenerative joint disease with
subluxation or shoulder joint dislocation mild equaled an impairment range of 8 to 12 percent;
and an AC joint arthropathy with impingement equaled a default impairment of 3 percent. Since
Dr. Strong reported that appellant had good range of motion and very little pain, she opined that
the impairment rating most favorable to appellant would be glenohumeral degeneration at the
upper level of 12 percent because of the severity of x-ray changes and the high riding humeral
head.
By decision dated November 23, 2009, OWCP granted appellant a schedule award for 12
percent right arm impairment. The award ran from September 9, 2009 to May 29, 2010, for a
total of 37.44 weeks.

2

On December 17, 2009 appellant requested a hearing before an OWCP hearing
representative. In a January 13, 2010 report, Dr. Strong reiterated her previous contacts with
appellant and findings. She concluded that appellant had a massive irreparable rotator cuff tear
with degenerative changes indicative of early rotator cuff arthropathy of the shoulder which
would require a reverse total shoulder replacement if the arthritis progressed. Based on Table
16-27, Dr. Strong stated that appellant had 20 percent impairment of the upper extremity.
A hearing was held on March 10, 2010. Appellant testified that she had no problems
with her right shoulder prior to the December 17, 2008 work injury and that she had no new
injuries of the right shoulder after the December 17, 2008. The hearing representative noted that
it did not appear that the sixth edition of the A.M.A., Guides contained a Table 16-27. He
allowed 30 days for Dr. Strong to submit a report explaining any disagreement with the medical
adviser’s opinion and explaining her impairment percentage.
In an April 14, 2010 report, Dr. Strong opined that, based on Table 15-5, page 401 of the
A.M.A., Guides, appellant had 20 percent right upper extremity impairment based on massive
unrepairable rotator cuff tear and a distal clavicle bicep subscapular tear.
By decision dated May 5, 2010, OWCP’s hearing representative affirmed the prior
decision.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations2 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.3 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.4 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),

2

20 C.F.R. § 10.404.

3

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

4

Ronald R. Kraynak, 53 ECAB 130 (2001).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

3

Physical Examination (GMPE) and Clinical Studies (GMCS).6 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
proving rationale for the percentage of impairment specified.8
ANALYSIS
OWCP accepted that appellant sustained a right shoulder rotator cuff tear due to a
December 17, 2008 employment injury. Appellant requested a schedule award and provided a
September 9, 2009 report from Dr. Strong, who advised that she reached maximum medical
improvement and had 25 percent permanent impairment of the right upper extremity based on
Table 15-5 of the A.M.A., Guides. Dr. Strong did not fully address the diagnosis upon which her
impairment rating was based or explain how she arrived at this rating under Table 15-5.9 As she
did not explain in her September 9, 2009 report how her impairment rating comported with the
A.M.A., Guides, it is of limited probative value.10
Under the sixth edition of the A.M.A., Guides, impairments of the upper extremities are
covered by Chapter 15. Section 15-2, entitled Diagnosis-Based Impairment, indicates that
diagnosis-based impairment is the primary method of evaluation of the upper limb.11 The initial
step in the evaluation process is to identify the impairment class by using the corresponding
diagnosis-based regional grid. OWCP’s medical adviser, in a November 13, 2009 report,
correctly indicated that, when the patient has two or more significant diagnoses, the examiner
should use the diagnosis with the highest causally-related impairment rating for the impairment
calculation.12 The medical adviser reviewed Dr. Strong’s findings and utilized the Shoulder
Regional Grid, Table 15-5 and identified all the impairments based on appellant’s diagnosed
conditions. As the condition of glenohumeral degenerative joint disease with subluxation or
shoulder joint dislocation provided the greatest impairment rating, he selected it for the
impairment calculation. The Board notes this properly fits into a class 1 AC joint injury or
6

A.M.A., Guides 494-531.

7

Id. at 521.

8

See note 5, Chapter 2.808.6(d) (August 2002).

9

Discussion of how the A.M.A., Guides criteria were applied to medical information that generated the specific
rating is required for an impairment rating to be consistent with the A.M.A., Guides. A.M.A., Guides 28.
10

I.F., Docket No. 08-2321 (issued May 21, 2009) (an opinion which is not based upon the standards adopted by
OWCP and approved by the Board as appropriate for evaluating schedule losses is of diminished probative value in
determining the extent of permanent impairment).
11

An opinion which is not based upon the standards adopted by OWCP and approved by the Board as appropriate
for evaluating schedule losses is of little probative value in determining the extent of a claimant’s permanent
impairment. I.F., id.
12

A.M.A., Guides 387.

4

disease, on page 403 of the A.M.A., Guides, where there is complete disruption of AC joint
capsule and coracoclavicular ligaments, which has a default impairment of 10 percent.
After determining the impairment class and default grade, OWCP’s medical adviser
considered applicable grade modifiers.13 The medical adviser considered the severity of
appellant’s class 1 condition, noting the severity of x-ray and examination findings and
concluded that her impairment should be adjusted from the default impairment of 10 percent to
the maximum impairment within class 1 for the impairing diagnosis, 12 percent. OWCP
properly awarded appellant compensation for 12 percent impairment of her right arm.
Thereafter, appellant submitted additional reports from Dr. Strong dated January 13 and
April 14, 2010. These reports do not establish that she has greater than 12 percent impairment of
the right upper extremity. In the January 13, 2010 report, Dr. Strong opined that appellant had
20 percent right upper extremity impairment based on Table 16-27; but, she did not explain the
findings on examination or the manner by which the impairment rating was calculated.
Moreover, there is no Table 16-27 in the sixth edition of the A.M.A., Guides. In her April 14,
2010 report, Dr. Strong opined that appellant had 20 percent impairment of the right upper
extremity based on Table 15-5, page 401, for massive unrepairable rotator cuff tear and distal
clavicle bicep subscapular tear. Again, she did not fully explain how she arrived at this rating
under Table 15-5 and explain how or why the medical adviser was incorrect in his 12 percent
rating. Dr. Strong did not address what diagnosis-based impairment that she used on page 401.
The Board notes that there is no diagnosis-based impairment on page 401 of the A.M.A., Guides
that provides for 25 percent arm impairment. Thus, appellant has not submitted any evidence, in
conformance with the A.M.A., Guides, showing that she has greater than 12 percent impairment
of the right upper extremity.
On appeal, appellant sets forth her belief as to why Dr. Strong did not provide adequate
explanations for her impairment ratings. As noted, medical reports that are not in conformance
with the A.M.A., Guides are of limited probative value in establishing permanent impairment.14
For the above-noted reasons, Dr. Strong’s reports are insufficient to establish that appellant has
any greater impairment than that which OWCP has issued a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she has more than 12 percent right
upper extremity impairment.

13

The grades range from A to E, with A representing eight percent upper extremity impairment and E
representing 12 percent upper extremity impairment. A.M.A., Guides 403, Table 15-5. The net adjustment formula
is found at page 411 of the A.M.A., Guides.
14

See supra note 10.

5

ORDER
IT IS HEREBY ORDERED THAT the May 5, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 19, 2011
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.O., JR., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hickory, NC, Employer
__________________________________________

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Appearances:
Daniel F. Read, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1149
Issued: March 15, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 22, 2021 appellant, through counsel, filed a timely appeal from a February 26,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider 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

The Board notes that, following the February 26, 2021 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
3

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 24, 2018; and (2) whether appellant has
met his burden of proof to establish continuing disability or residuals on or after January 24, 2018.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On May 20, 1997 appellant, then a 51-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that he injured his shoulders and left finger due to factors of
his federal employment. OWCP accepted the claim for right shoulder adhesive capsulitis, bilateral
rotator cuff sprain/strain, left brachial neuritis or radiculitis, and left trigger finger. It paid appellant
wage-loss compensation on the supplemental rolls, commencing November 5, 2003, and on the
periodic rolls, commencing July 3, 2011.
Appellant underwent authorized surgeries for left trigger thumb release on February 27,
1997; left ulnar nerve transposition on October 8, 1997; left shoulder arthroscopy and rotator cuff
repair on January 25, 1998; right shoulder arthroscopy on November 5, 2003; right shoulder
examination under anesthesia on May 30, 2004; and repair of a right rotator cuff tear on
September 22, 2010.5
In reports dated August 15, 2016 and June 12, 2017, appellant’s attending physician,
Dr. Stephen Sladicka, a Board-certified orthopedic surgeon, noted his history of injury beginning
on May 19, 1997 and listed the accepted conditions including right shoulder adhesive capsulitis,
right brachial neuritis, radiculitis, sprain of the left shoulder, upper arm, left trigger finger, and
bilateral rotator cuff injuries. He noted that appellant had difficulty lifting with pain in his right
shoulder. Dr. Sladicka also described his date-of-injury position and found that he was
permanently totally disabled due to his accepted conditions.
On July 6, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions to Dr. Joseph Estwanik, a Board-certified orthopedic surgeon,
for a second opinion examination and evaluation.
In a July 28, 2017 report, Dr. Estwanik discussed appellant’s factual and medical history
and reported the findings of his physical examination. He found that his trigger finger symptoms
had resolved, but that he continued to have residual loss of motion of his shoulders. Dr. Estwanik
determined that appellant required no further medical treatment for the accepted conditions. He
opined that he exhibited multiple concurrent non-work-related disabilities. Dr. Estwanik found
that appellant was totally disabled from work.

4

Order Remanding Case, Docket No. 20-0142 (issued September 29, 2020).

5

On August 10, 2000 OWCP granted appellant a schedule award for 25 percent permanent impairment of his left
arm. On January 11, 2005 it granted an additional schedule award for 13 percent permanent impairment of his right
upper extremity.

2

On August 10, 2017 OWCP requested a supplemental report from Dr. Estwanik to clarify
his opinion on the issue of appellant’s employment-related residuals and disability.
In an August 23, 2017 supplemental report, Dr. Estwanik opined that appellant’s right
shoulder adhesive capsulitis had resolved, and referred to his prior report. He further opined that
he had excellent internal and external rotation, but his restricted efforts at forward flexion and
abduction supported a finding of full range of motion (ROM) of the right shoulder without
adhesions. Dr. Estwanik determined that appellant had attempted to demonstrate loss of ROM.
He further found that, while appellant was totally disabled from work due to non-employmentrelated conditions, he was capable of full-duty work based only on his accepted employment
injuries.
In a notice dated December 15, 2017, OWCP advised appellant that it proposed to
terminate his wage-loss compensation and medical benefits because he no longer had residuals or
disability causally related to his accepted employment-related conditions. It found that the weight
of the medical evidence rested with Dr. Estwanik, who found that he had no objective findings to
support further ongoing disability or residuals caused by his employment-related conditions.
OWCP afforded appellant 30 days to submit evidence challenging the proposed terminatio n action.
No response was received.
By decision dated January 24, 2018, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective that date.
On February 7, 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
July 10, 2018.
Following the oral hearing, appellant provided additional evidence, including an April 17,
2018 report from Ian Welliver, a physician assistant.
Appellant underwent a right shoulder magnetic resonance imaging (MRI) scan on May 16,
2018, which demonstrated severe hypertrophic AC joint changes, possible tears of the anterior
supraspinatus, and infraspinatus tendons and labrum tears.
In a July 27, 2018 note, Dr. Carey McKain, a Board-certified orthopedic surgeon, found
marked loss of ROM of the shoulders with a positive Speed test bilaterally. He reviewed
diagnostic studies and found deteriorated rotator cuffs on both sides with multiple partial tearings,
significant arthrosis, and severe arthritis with spurs in both acromioclavicular (AC) joints.
By decision dated September 17, 2018, the hearing representative affirmed OWCP’s
January 24, 2018 termination decision.
On August 11, 2015 Dr. Michael P. Bunch, a Board-certified orthopedic surgeon, noted
that appellant’s shoulder pain did not improve with epidural spinal injections.
On April 18, 2019 appellant, through counsel, requested reconsideration. Counsel
provided a series of notes dated September 13, 2017 through May 16, 2018 from nurse
practitioners.

3

In treatment notes dated November 21, 2016 through February 26, 2018, Dr. David L.
Cabral, an internist, noted appellant’s history of repetitive motion injuries to the shoulders and left
elbow at work and resultant surgeries. He reviewed his bilateral shoulder x-rays and found AC
joint osteophytosis. Dr. Cabral also reported left elbow calcific tendinopathy.
In an undated narrative report, Dr. Karyn Weston Rahn, Board-certified in occupational
medicine, noted reviewing appellant’s history of work-related injuries of his bilateral shoulders
and his medical history. She described his job duties and current bilateral shoulder symptoms. On
physical examination Dr. Rahn found that appellant gave full and reasonable effort. She found no
atrophy in appellant’s right shoulder, but tenderness over the AC joint, subacromial region,
supraspinatus and infraspinatus capsule with limited ROM and decreased strength. Dr. Rahn
reported positive Speed’s and active compression test, positive Hawkins, Neer, and infraspinatus
tests. She found that appellant continued to have significant impairments of the left and right
shoulders, which were directly related to his work duties. Dr. Rahn explained using his shoulders
repetitively hundreds of times a day to throw, sort, and carry mail resulted in significant damage
to the bilateral shoulder joints and surrounding tissues including rotator cuff and labral tears. She
found that appellant was totally disabled from work due to his accepted bilateral shoulder
conditions and required bilateral shoulder replacements. Dr. Rahn further explained her
disagreement with Dr. Estwanik’s findings and conclusions regarding appellant’s adhesive
capsulitis.
By decision dated July 2, 2019, OWCP denied modification of its prior decisions.
Appellant appealed to the Board. By order dated September 29, 2020, the Board directed
OWCP to review the additional medical evidence in support of the April 18, 2019 reconsideration
request, including new medical reports dated November 2016 to February 2018 by Dr. Cabral and
issue a de novo decision.6
By decision dated February 26, 2021, OWCP again denied modification of its prior
decisions.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it has the burden of proof to
justify termination or modification of an employee’s benefits.7 The right to medical benefits for
an accepted condition is not limited to the period of entitlement for disability compensation. 8 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.9 OWCP’s

6

Id.

7

L.L., Docket No. 18-1426 (issued April 5, 2019); C.C., Docket No. 17-1158 (issued November 20, 2018); I.J., 59
ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541 (1986).
8

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
9

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

4

burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background. 10
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination. 11 For a conflict to arise, the opposing physicians’ opinions must be of
virtually equal weight and rationale. 12 In situations where the case is properly referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist,
if sufficiently well rationalized and based upon a proper factual background, must be given special
weight.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 24, 2018.
Dr. Estwanik noted in his July 28 and August 23, 2017 reports that appellant had no
objective signs of right shoulder adhesive capsulitis, left trigger finger, bilateral rotator cuff
sprain/strain, and left brachial neuritis or radiculitis. He concluded that appellant had no disability
or need for further medical treatment due to the accepted employment-related conditions.
Dr. Estwanik further concluded that appellant was totally disabled from work due to
nonemployment-related conditions.
On June 12, 2017 Dr. Sladicka noted appellant’s history of injury on May 19, 1997 and
listed the accepted conditions including right shoulder adhesive capsulitis, right brachial neuritis,
radiculitis, sprain of the left shoulder, upper arm, left trigger finger, and bilateral rotator cuff
injuries and found that he was totally disabled.
As Dr. Estwanik concluded that appellant was able to resume his date-of-injury position
without restrictions and Dr. Sladicka concluded that he remained totally disabled for work, there
is an unresolved conflict in the medical evidence. OWCP should have resolved the conflict of
medical opinion evidence before terminating compensation. 14 As it failed to resolve the conflict
of medical opinion evidence, the Board finds that OWCP did not meet its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits, effective January 24, 2018.

10

See M.C., Docket No. 20-1396 (issued November 22, 2021); R.P., Docket No. 17-1133 (issued January 18, 2018).

11

5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S., Docket No. 10-1704 (issued
May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
12

M.C., supra note 10; P.R., Docket No. 18-0022 (issued April 9, 2018).

13

See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31
ECAB 1010 (1980).
14

M.C., supra note 10; K.L., Docket No. 19-0729 (issued November 6, 2019); P.P., Docket No. 17-0023 (issued
June 4, 2018).

5

CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective January 24, 2018.15
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2021 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

15

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chamblee, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Tim Egbuchunam, for the appellant
Office of Solicitor, for the Director

Docket No. 10-866
Issued: November 24, 2010

Case Submitted on the Record

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

JURISDICTION
On February 17, 2010 appellant, through his representative, filed a timely appeal from the
January 15, 2010 merit decision of the Office of Workers’ Compensation Programs, which
denied authorization for right hip surgery. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly denied authorization for right hip surgery.
FACTUAL HISTORY
On July 30, 2005 appellant, then a 47-year-old letter carrier, sustained an injury in the
performance of duty: “Due to wet surface on metal step-up in the LLV I slip and twisted my
right hip and then attempted to grab something, pulled my right shoulder.” The Office accepted
his claim for sprain/strain of the right shoulder, arm, right hip and thigh. It also later accepted
degeneration of a lumbosacral disc, lumbar postlaminectomy syndrome and congenital
spondylolisthesis.

On September 23, 2005 appellant provided the following history of injury: “Patient
states he was performing his usual duties as a letter carrier when he slipped on a wet surface and
began to fall when he grabbed the mirror with his hand to attempt to break his fall.”
On April 26, 2007 Dr. Thomas Branch, appellant’s orthopedic surgeon, described the
history of injury as follows: “On July 30, 2005 [appellant] was climbing up into the postal truck.
His foot slipped and he twisted around to the side slamming his right hip and back into the truck
while his right hand was holding the mirror.”
On April 7, 2009 Dr. Branch related the history of injury: “He sustained an on[-]the[-]
job injury July 30, 2005 when he fell out of his mail truck striking his right side and back with
enough force to sustain a lower back fracture which required stabilization surgery in
February 2008.… Recently, it was discovered that the hip has completely deteriorated.”
Dr. Branch noted that appellant reported no injury or complaints to the right hip prior to his onthe-job injury, and he had no signs or symptoms of a systemic or biological arthritis as a cause of
the right hip deterioration. He added that the left hip appeared normal.
X-rays showed a severe collapse of the right hip.
relationship and the need for surgery:

Dr. Branch addressed causal

“[Appellant’s] right hip arthritis more likely than not falls into the category of
mechanical arthritis related to the original fall and on[-]the[-]job injury. It is
likely that the fall damaged the hip creating chondrolysis or other kind of
chondral damage that has caused or contributed to its current condition and need
for a total hip replacement. The need for back surgery and the changes in gait and
function due to the back surgery additionally underscores the connection between
the hip deterioration and his on[-]the[-]job injury.”
An Office medical adviser reviewed Dr. Branch’s report, noting that the accepted
condition was right hip strain. He advised: “Total hip replacement is not an appropriate
treatment for a strain injury.”
On June 24, 2009 Dr. Barry Koffler, an orthopedic surgeon and second opinion
physician, agreed that surgery was warranted but not as a result of the July 30, 2005 injury. He
stated: “The treatment [total hip replacement] is indicated, but there is no documentation of any
temporal relationship between the patient’s injury in 2005 and the present problem from which
he suffers at the present time. He relates very clearly that the hip pain from which he suffers
now has been a problem for the last year. There is no documentation that it was a problem
before the last year.”
Appellant underwent a total right hip replacement on July 20, 2009.
On August 10, 2009 the Office denied authorization for the right hip surgery. It found
that Dr. Koffler represented the weight of the medical evidence because he reviewed the medical
record and the statement of accepted facts.
On September 10, 2009 Dr. John W. Ellis, appellant’s osteopath, related the history of
injury: “On July 30, 2005 [appellant] stepped out of his … mail truck and slipped. He grabbed
2

the mirror handle and swung in the air hitting his right hip and straining his right shoulder, right
hip and right back.” Dr. Ellis diagnosed, among other things, contusion of the right hip with
internal derangement requiring hip surgery on July 20, 2009 and concluded that this diagnosis
arose out of and in the course of employment. He stated:
“As [appellant] swung on the [postal truck], he strained his right shoulder, right
wrist and back. He contused his right hip and right knee. The right knee
improved. The back continued to hurt with deranged discs requiring back surgery
of February 28, 2006. The right hip continued to hurt requiring the right hip
replacement surgery on July 20, 2009.”
On September 22, 2009 Dr. Branch reported on diagnostic testing:
“[Appellant] returns today with the MRI [magnetic resonance imaging] scan of
the left hip confirming the absence of avascular necrosis. Clearly, his right hip
issue is more likely than not related to the injury on the job and not avascular
necrosis. As you know AVN or avascular necrosis tends to be bilateral in nature
and since his left hip is normal it is more likely than not the cause of his right hip
degeneration.”
On January 15, 2010 the Office reviewed the merits of appellant’s claim and denied
modification of its August 10, 2009 decision.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act provides that the United
States shall furnish to an employee who is injured while in the performance of duty the services,
appliances and supplies prescribed or recommended by a qualified physician that the Secretary
of Labor considers likely to cure, give relief, reduce the degree or the period of any disability or
aid in lessening the amount of any monthly compensation.1 The Office must therefore exercise
discretion in determining whether the particular service, appliance or supply is likely to effect the
purposes specified in the Act.2 The only limitation on the Office’s authority is that of
reasonableness.3
The Office’s obligation to pay for medical treatment under section 8103 of the Act
extends only to treatment of employment-related conditions and appellant has the burden of
establishing that the requested treatment is for the effects of an employment-related condition.
Proof of causal relation must include rationalized medical evidence.4 Medical conclusions
1

5 U.S.C. § 8103(a). These services include surgery and hospitalization. Federal (FECA) Procedure Manual,
Part 3 -- Medical, Overview, Chapter 3.100.2.a (October 1990).
2

See Marjorie S. Geer, 39 ECAB 1099 (1988) (the Office has broad discretionary authority in the administration of
the Act and must exercise that discretion to achieve the objectives of section 8103).
3

Daniel J. Perea, 42 ECAB 214 (1990).

4

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

3

unsupported by rationale are of little probative value.5 Medical conclusions based on inaccurate
or incomplete histories are also of little probative value.6
ANALYSIS
Appellant seeks authorization for his right total hip replacement on July 20, 2009. He has
the burden of establishing that the surgery was for the effects of an employment-related
condition.
Supporting his request are reports from Dr. Branch, his orthopedic surgeon, and Dr. Ellis,
his osteopath. However, these doctors based their opinions on a history of injury that differs
materially from what is found in the factual and medical evidence contemporaneous to the
July 30, 2005 injury at work. The contemporaneous evidence indicates that appellant slipped
and twisted his hip and was diagnosed with a sprain/strain. Two years later, Dr. Branch reported
that appellant slammed his right hip and back into the truck, striking his right side and back with
enough force to sustain a lower back fracture. Dr. Ellis also described an impact injury,
reporting that appellant swung in the air hitting his right hip and contusing it. To the extent that
this unsupported history of forceful impact led these doctors to conclude that appellant’s total hip
replacement was a result of what happened on July 30, 2005, the Board finds their opinions to be
of diminished probative value.
Dr. Branch noted that appellant had no signs or symptoms of a systemic or biological
arthritis as a cause of the right hip deterioration and he noted that the left hip appeared normal.
He concluded that appellant’s hip arthritis was mechanical, but he did not soundly explain, how
the slip and twist incident on July 30, 2005 contributed to total hip replacement four years later.
Dr. Branch did not address what clinical findings from the date of injury forward supported his
opinion. He did not explain how changes in gait and function due to back surgery caused
unilateral hip deterioration. Dr. Ellis offered no reference to the medical record to support his
view that appellant suffered a contusion and internal derangement on July 30, 2005. He simply
stated that the right hip “continued to hurt requiring the right hip replacement surgery.” Because
these reports lack sufficient rationale to establish a causal relationship between the work incident
on July 30, 2005 and appellant’s hip replacement on July 20, 2009, the Board finds that they are
of diminished value.
Dr. Koffler based his opinion on a proper medical history. He reviewed the medical
record and the statement of accepted facts, and he did not support a temporal relationship
between the incident in 2005 and appellant’s current hip problem in 2009. Indeed, appellant
made clear that his hip pain had been a problem “for the last year.” Absent any bridging
documentation of an internal hip injury, Dr. Koffler concluded that right hip surgery was not a
result of the July 30, 2005 injury.

5

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

6

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).

4

The Office has broad discretionary authority under section 8103 of the Act. Given the
lack of convincing supporting evidence and the lack of bridging documentation, the Board finds
that the Office acted reasonably in denying authorization for appellant’s total right hip
replacement. The Board will therefore affirm the Office’s January 15, 2010 decision.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying authorization for
right hip surgery.
ORDER
IT IS HEREBY ORDERED THAT the January 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 24, 2010
Washington, DC

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

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

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

5