United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Glassboro, NJ, Employer
__________________________________________

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

Docket No. 11-2136
Issued: July 16, 2012

Case Submitted on the Record

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

JURISDICTION
On September 23, 2011 appellant, through his attorney, filed a timely appeal from a
June 23, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim for an additional schedule award. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant has more than five percent impairment of the left lower
extremity and more than five percent impairment of the right lower extremity, for which he
received a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This is the third appeal before the Board. In a July 12, 2005 decision, the Board reversed
OWCP’s October 14, 2004 decision and found that there was a conflict in medical evidence
regarding permanent impairment of the legs.2 The Board found a medical conflict between
Dr. Ronald Brisman, a Board-certified neurosurgeon, and Dr. Terry Heiman-Patterson, an
attending Board-certified neurologist, on the issue of whether appellant’s neuropathy affecting
his feet was related to the accepted conditions and whether he had a permanent impairment of the
legs related to his accepted conditions. The Board noted that OWCP had accepted the claim for
an aggravation of plantar fasciitis and bilateral heel spurs and that he had bilateral plantar
fasciotomies and heel spur excision in 1997 and 1998. The Board advised that appellant
previously received a schedule award for five percent impairment of each leg on June 18, 2002.
In a July 20, 2010 decision,3 the Board set aside OWCP’s February 17, 2009 decision finding
that a supplemental report from Dr. Dhiraj K. Panda, a Board-certified neurosurgeon selected as
the impartial medical examiner, was needed on the issue of whether appellant had a small fiber
neuropathy and, if so, whether there was any permanent impairment of the legs pursuant to the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). The Board noted that any preexisting impairment, whether or not
work related, to the scheduled member was to be included in determining entitlement to a
schedule award. It advised that the hearing representative in the February 17, 2009 decision had
expanded the claim to include the condition of complex regional pain syndrome of both feet.
The facts and the medical history of the case are set forth in the Board’s prior decisions and
incorporated herein by reference.
On remand, following the Board’s July 20, 2010 decision, OWCP sent Dr. Panda letters
dated August 2 and 23, 2010 requesting a supplemental report on the issues of whether there was
a neuropathy and if there was a neuropathy and it was a preexisting condition, to provide an
impairment calculation under the sixth edition of the A.M.A., Guides. It requested that he
submit his report within 3 weeks (21 days). On August 30, 2010 Dr. Panda’s former office
called OWCP and indicated that Dr. Panda had been retired for over nine months and would not
be able to complete the requested report.
On September 17, 2010 OWCP referred appellant, the case record and an updated
statement of accepted facts to Dr. Ronald L. Gerson, a Board-certified orthopedic surgeon, to
resolve the medical conflict. In a November 15, 2010 report, Dr. Gerson noted the history of
injury and appellant’s treatment course. He reviewed the medical records, including diagnostic
studies and presented findings on physical, motor and neurological examination of the lower
extremities. Dr. Gerson diagnosed appellant’s employment-related conditions as plantar fasciitis
of both feet and stated that appellant was status post bilateral plantar fascia releases and heel spur
removals. He indicated that the medical records documented that since undergoing bilateral
plantar fascia releases and heel spur removals appellant was diagnosed by August 24, 1998
electromyogram as having a small fiber neuropathy. Dr. Gerson opined that appellant’s current
symptoms in both feet were a result of a small fiber neuropathy. He opined, however, that the
2

Docket No. 05-706 (issued July 12, 2005).

3

Docket No. 09-1636 (issued July 20, 2010).

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small fiber neuropathy was an unassociated condition and had no causal relation to the accepted
diagnosis of bilateral plantar fasciitis. Dr. Gerson indicated that, while the most common cause
of peripheral neuropathy in the United States was complications from diabetes mellitus, which
appellant did not have, there were many other causes for peripheral neuropathy and sometimes
the etiology could not be determined. He rationalized that it would be medically impossible for
the conditions of plantar fasciitis and heel spurs to cause a small fiber neuropathy. Dr. Gerson
also stated that the small fiber neuropathy would not be a ratable condition. He opined that,
while he did not have the records concerning the initial plantar fascia release and heel spur
removal procedures, appellant reached maximum medical improvement six months after the
procedures to both feet. Dr. Gerson stated that, while the medical records mentioned appellant
had been diagnosed with complex regional pain syndrome involving both lower extremities, he
did not meet the objective criteria under the A.M.A., Guides for the diagnosis of complex
regional pain syndrome. He indicated that findings of edema, decreased range of motion and
trophic changes (hair, nail and skin) were not present; there was no documentation of any
imaging study showing radiographic changes compatible with the diagnosis of complex regional
pain syndrome and there were no reported findings of trophic bone changes or osteoporosis.
Under Table 16-2, page 501 of the sixth edition of the A.M.A., Guides, Dr. Gerson assigned
Class 1 for appellant’s bilateral plantar fasciitis or the class of diagnosis (CDX). Under Table
16-7, page 517, he assigned a grade 1 modifier for the Physical Examination (GMPE) adjustment
as there were minimal palpatory findings without observed abnormalities. Under Table 16-8,
page 519, Dr. Gerson assigned a grade 2 modifier for the Clinical Studies (GMCS) adjustment
based on the July 7, 2008 magnetic resonance imaging scan studies of both ankles. Under Table
16-6, page 516, a grade 1 was provided for the Functional History (GMFH) adjustment due to
antalgic gait derangement. Dr. Gerson utilized the net adjustment formula of (GMFH – CDX)
+ (GMPE – CDX) + (GMCS – CDX) (1-1) + (1-1) + (2-1) to find a net adjustment of 1. Under
Table 16-2, page 501, he found that as the mid range impairment for plantar fasciitis was 1, the
net adjustment of 1 would render a final impairment of two percent for each foot.
On November 29, 2010 an OWCP medical adviser reviewed Dr. Gerson’s report. With
regard to impairment due to the bilateral peripheral neuropathy, he noted that Dr. Gerson did not
include any impairment due to the bilateral peripheral neuropathy as he felt it was not causally
related to the accepted condition of bilateral plantar fasciitis and bilateral heel spurs. The
medical adviser indicated that Dr. Gerson’s examination did not reveal any objective
neurological abnormalities; thus, there would be no additional impairment to apply. He further
noted that Dr. Gerson found no evidence of a complex regional pain syndrome. The medical
adviser concurred with Dr. Gerson that appellant reached maximum medical improvement six
months postoperatively. He also stated that Dr. Gerson correctly applied the A.M.A., Guides to
his examination findings and concurred with the final impairment rating of two percent.
However, the medical adviser stated that the impairment rating was two percent for each leg as
opposed to each foot.
By decision dated December 14, 2010, OWCP denied an additional schedule award based
on the reports of Dr. Gerson and the medical adviser. Appellant disagreed with the decision and
requested an oral hearing, which was held by videoconference on April 12, 2011. By decision
dated June 23, 2011, an OWCP hearing representative affirmed the December 14, 2010 decision.

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LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations4 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.5 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7 It is well established
that in determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, preexisting impairments of the body are to be
included.8
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).9 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on functional
history (GMFH), physical examination (GMPE) and clinical studies (GMCS).10 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 Before applying
the A.M.A., Guides, however, OWCP must determine whether the claimed impairment of a
schedule member is causally related to the accepted work injury.12
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

4

20 C.F.R. § 10.404.

5

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

6

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

7

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).
8

See Dale B. Larson, 41 ECAB 481, 490 (1990); supra note 7 at Chapter 3.700.3.b. (June 1993). This portion of
OWCP’s procedure provides that the impairment rating of a given scheduled member should include any preexisting
permanent impairment of the same member or function.
9

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
10

A.M.A., Guides (6th ed. 2009), pp. 383-419.

11

Id. at 411.

12

Michael S. Mina, 57 ECAB 379, 385 (2006).

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percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.13
When there exists an opposing medical opinion of virtually equal weight and rationale,
and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual and medical background, will be given special weight.14
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
his original report.15 However, when the impartial specialist is unable to clarify or elaborate on
his original report or if his supplemental report is also vague, speculative or lacking in rationale,
OWCP must submit the case record and a detailed statement of accepted facts to a second
impartial specialist for the purpose of obtaining his rationalized medical opinion on the issue.16
ANALYSIS
OWCP accepted that appellant sustained aggravation of plantar fasciitis, bilateral heel
spurs and bilateral complex regional pain syndrome of both feet. On June 18, 2002 it issued a
schedule award for five percent permanent impairment to each leg. Appellant requested an
additional schedule award. On the first appeal, the Board found a conflict in medical opinion on
the issue of whether the neuropathy affecting his feet was causally related to his accepted
conditions and whether he had a permanent impairment of the lower extremities related to his
accepted conditions. On the second appeal, the Board found that a supplemental report from
Dr. Panda, a Board-certified neurosurgeon and impartial medical examiner, was needed on the
issue of whether appellant had a small fiber neuropathy and, if so, whether there was any
permanent impairment of the legs pursuant to the sixth edition of the A.M.A., Guides. It noted
that any preexisting impairment, whether or not work related, to the scheduled member was to be
included in determining entitlement to a schedule award. While OWCP twice requested a
supplemental report from Dr. Panda as instructed, his former office advised that he had retired
and was unable to provide a report. Thus, it properly referred appellant to Dr. Gerson, a Boardcertified orthopedic surgeon, to resolve the conflict in medical opinion.17
In his November 15, 2010 report, Dr. Gerson diagnosed employment-related conditions
as plantar fasciitis of both feet and stated that appellant was status post bilateral plantar fascia
releases and heel spur removals. He found that appellant’s current symptoms in both feet were
13

See Federal (FECA) Procedure Manual, supra note 7, Chapter 2.808.6(d) (August 2002).

14

R.C., 58 ECAB 238 (2006); Bernadine P. Taylor, 54 ECAB 342 (2003).

15

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
16

Nancy Keenan, 56 ECAB 687 (2005); Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB
673 (1996).
17

See Nancy Keenan, id.

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the result of a small fiber neuropathy, but opined that the small fiber neuropathy was not causally
related to the accepted work-related conditions. Dr. Gerson indicated that there were several
causes for peripheral neuropathy and sometimes the etiology could not be determined. He
reasoned, however, that it was medically impossible for the conditions of plantar fasciitis and
heel spurs to cause a small fiber neuropathy. Dr. Gerson further found that appellant’s small
fiber neuropathy was diagnosed after he underwent his work-related surgeries; thus, the
condition was not a ratable condition in determining his schedule award. He also found that
appellant did not meet the objective criteria for the diagnosis of complex regional pain syndrome
under the A.M.A., Guides and there was no documentation of radiographic changes compatible
with complex regional pain syndrome or reported findings of trophic bone changes or
osteoporosis. Dr. Gerson stated that appellant reached maximum medical improvement from his
plantar fascia release and heel spur removal procedures six months after the procedures to both
feet and opined under the A.M.A., Guides that he had two percent impairment for each foot from
his employment-related bilateral plantar fasciitis.
OWCP’s medical adviser reviewed
Dr. Gerson’s report and concurred with the impairment rating, with the exception of noting that
the rating was for the lower extremities as opposed to the feet.
In determining that appellant’s impairment for the diagnosed condition of plantar fasciitis
for each foot, both Dr. Gerson and OWCP’s medical adviser referenced Table 16-2, page 508 of
the A.M.A., Guides, which provides a default impairment of one percent of the lower extremity
for the diagnosis of plantar fasciitis. Although the identified impairment involved the diagnosed
condition of plantar fasciitis for each foot, the rating under Table 16-2 pertains to the lower
extremity, not to each foot as Dr. Gerson noted. Dr. Gerson found under Table 16-6, page 516,
the GMFH was 1; under Table 16-7, page 517, the GMPE was 1; and under Table 16-8, page
519, GMCS was 2. He properly applied the net adjustment formula of (GMFH - CDX)
+ (GMPE - CDX) + (GMCS - CDX) (1-1) + (1-1) + (2-1) and found a net adjustment of 1. The
net adjustment of 1 renders a final lower extremity impairment rating of two percent for each leg.
As the two percent impairment rating to each leg is less than the previous award of five percent
impairment to each leg, appellant is not entitled to an additional schedule award.
On appeal, appellant’s counsel contends that Dr. Gerson’s report is insufficient to carry
the weight of the medical evidence. While he asserts Dr. Gerson’s physical examination was
deficient, a review of Dr. Gerson’s report indicates that he performed detailed testing of
appellant, including findings on physical, motor and neurological examination, which were
essentially normal with a bilateral short stance phase at both legs. Counsel also argues that
Dr. Gerson did not resolve the conflict in medical evidence with regard to the small fiber
neuropathy. However, Dr. Gerson clearly noted the presence of the small fiber neuropathy and
presented rationale as to why he believed that it was not employment related. He also
specifically indicated that the small fiber neuropathy should not be considered in the impairment
rating as it occurred subsequent to appellant’s work-related surgeries. As noted, any preexisting
impairment to the schedule member, whether or not work related, was to be included in
determining entitlement to a schedule award. The evidence does not show that this condition
was preexisting. Counsel next contends that the medical adviser resolved the conflict in medical
evidence by disagreeing with Dr. Gerson’s opinion that two percent impairment to each foot was
appropriate and instead two percent impairment to each lower extremity should apply. The
Board notes that the medical adviser was merely applying Dr. Gerson’s findings to the protocols
of the A.M.A., Guides and Table 16-2 clearly indicates that the impairment under that Table is
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for the lower extremity.18 The medical adviser properly applied the A.M.A., Guides in advising
that the impairment was for the lower extremities and not for the foot.19 Accordingly,
Dr. Gerson’s report is sufficiently detailed and well reasoned to constitute the weight of the
medical evidence. He based his report on a proper history of injury, detailed physical findings
and provided medical reasoning for his conclusions. Dr. Gerson’s medical report represents the
weight of the medical evidence. Thus, appellant did not establish his entitlement to an additional
schedule award.
CONCLUSION
The Board finds that appellant did not establish that he sustained any permanent
impairment causally related to his accepted conditions thereby entitling him to an additional
schedule award under 5 U.S.C. § 8107.
ORDER
IT IS HEREBY ORDERED THAT the June 23, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 16, 2012
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

18

A.M.A., Guides at 501.

19

See Federal (FECA) Procedure Manual, supra note 7, Developing and Evaluating Medical Evidence, Chapter
2.810.8.k (September 2010) (if a case has been referred for a referee evaluation to resolve the issue of permanent
impairment, it is appropriate for the OWCP medical adviser to review the calculations to ensure the referee
physician appropriately used the A.M.A., Guides).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 16-0479
Issued: July 12, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 15, 2016 appellant filed a timely appeal from an October 16, 2015 merit
decision and a December 1, 2015 nonmerit 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish a stress-related
condition in the performance of duty causally related to factors of her federal employment; and
(2) whether OWCP properly refused to reopen her claim for further review of the merits pursuant
to 5 U.S.C. § 8128(a).
On appeal, appellant asserts that full consideration was not given to her claim by OWCP.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 2, 2015 appellant, then a 55-year-old customer service supervisor, filed an
occupational disease claim (Form CA-2) alleging that bullying by the station manager caused
severe anxiety and elevated blood pressure. She had stopped work on November 1, 2014. In
support of appellant’s claim she submitted brief reports from Dr. M. Catherine Yoder, a Boardcertified family physician, dated November 3 to December 31, 2014, in which the physician
advised that appellant was suffering from severe stress and anxiety and was unable to work. On
December 31, 2014 she indicated that appellant would be incapacitated for one more month.
Appellant did not return to work.
In letters dated January 29, 2015, OWCP requested additional information from appellant
and the employing establishment.
In a January 2, 2015 statement, Brian Cox, manager of the Southport Station, advised that
Southport was appellant’s regular-duty station. He noted that she was detailed to the Clermont
Station from April 1 to May 18, 2013, then returned to Southport and was detailed to the
Wanamaker Station from December 14, 2013 to October 31, 2014. Mr. Cox reported that on
October 27, 2014 appellant was notified via e-mail that she was to return to Southport on
November 1, 2014 for a shift to begin at 10:00 a.m. He related that while he was en route to
work, he was called by Supervisor Simpson2 who told him that appellant arrived at work early.
Mr. Cox instructed Mr. Simpson to have appellant wait to talk with him. Mr. Cox indicated that,
when he arrived at work, she refused to enter his office. He informed appellant that if she had
acknowledged multiple e-mails and telephone calls that he sent her regarding her work hours,
she would have known her proper start time. Appellant related to him that she refused to work
under those conditions and threw a leave slip at him that was already filled out, left the building,
and did not return.
In a February 18, 2014 statement, Jennifer Johnson, customer services manager at the
Wanamaker Station, reported that appellant seemed fine while working there and performed
day-to-day supervisor duties. She indicated that appellant never mentioned that she was
overstressed or upset about anything.
In an undated statement, appellant related that on October 27, 2014 she was informed that
she would be returning to the Southport Station on November 1, 2014. She indicated that her
Form SF 50 stated that her off days were Sundays and Mondays, and that she worked 7:00 a.m.
to 4:00 p.m. Appellant continued that on October 28, 2014 Mr. Cox sent her a form that for no
reason changed her days off to Sundays and Fridays and amended her work hours to 8:00 a.m. to
5:00 p.m. She reported that she previously had issues with Mr. Cox about changing her schedule
prior to her detail to Wanamaker Station. Appellant noted that others had never been made to
return to Southport, and implied that it was racially motivated. She indicated that she felt
threatened by Mr. Cox, but reported to work at Southport on November 1, 2014 at 7:00 a.m.
Appellant related that when he arrived she was already anxious, shaking, and afraid of him. She
noted that Mr. Cox stated that he wanted all of his supervisors there each Monday, but she
2

The full name of Supervisor Simpson is not contained in the record of evidence.

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related that she told him he had sent her home on a Monday after working one hour. Appellant
asserted that he was only doing this to her and it was a form of harassment. She stated that she
could not work in such an environment and left, went to a clinic where she was diagnosed with
anxiety and elevated blood pressure, and that the following Monday her treating physician took
her off work.
Appellant also submitted an e-mail dated August 23, 2013 regarding staffing for
vacations, and e-mails dated October 31, 2014 sent by her to District Manager Holly Burrell, in
which appellant requested to stay at Wanamaker because she had serious issues with Mr. Cox.
Ms. Burrell informed appellant that everyone was being returned to their regular stations, and she
would address appellant’s concerns in a meeting, but that appellant should report to Southport.
In a response, appellant maintained that, although Southport was her assignment of record, she
also had assigned hours and scheduled days off, and had serious issues with Mr. Cox and his
management, such that the inspector general should have been called. She advised that she
would follow instructions, but under protest. Ms. Burrell replied that appellant should see her
that day, noting that her e-mail appeared very accusatory and defensive.
In a second statement appellant maintained that Mr. Cox screamed at her on several
occasions, would stand behind her while she was working on the computer, expected her to
complete route inspections in eight hours, which was impossible, and would change her
reporting times and off days so that he did not have to pay her eight hours. She indicated that
she became very upset when she was informed that she had to return to Southport. Appellant
related that, when she returned, she had a flashback about what Mr. Cox had done in the past and
was so upset that she had to leave and seek medical care.
By correspondence dated November 3, 2014, appellant was informed by the employing
establishment that the medical documentation for her claimed absence did not say that she was
incapacitated from performing her supervisory duties. She also provided an assignment order
dated October 27, 2014 advising her to report to her home installation at 8:00 a.m. on
November 1, 2014 and that her days off were Friday and Sunday. Copies of processed clock
rings from pay period 18 to pay period 26 in 2013 had handwritten notations, apparently made
by appellant, indicating that she was sent home when she was not needed on her off day, that she
was charged with unscheduled annual leave when her parents were in an automobile accident,
that her off day was changed to Wednesday after working her off day, that she worked some
when she was supposed to be on vacation, that her off day was changed to Friday without her
approval, and that Mr. Cox changed her off day on other occasions.
Correspondence dated February 6, 2015 indicated that appellant had filed an Equal
Employment Opportunity (EEO) discrimination claim that was being processed.
In an undated statement Tom Oberting, a former union steward at Southport indicated
that he had observed that Mr. Cox had issues with women who worked for him and intimidated
supervisors until they requested transfers. He specifically stated that he saw Mr. Cox threaten
appellant with discipline because she would not discipline her carriers for small infractions, and
would stand behind her, watching her every move, would change her hours and days off, and
would force her to work longer hours.

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In a January 31, 2015 report, Diane M. Zaragoza, M.A., an intake clinician, advised that
appellant was evaluated and would begin psychiatric outpatient treatment beginning
February 2, 2015. In a February 12, 2015 report, Dr. Mohammad Kamal, a Board-certified
psychiatrist, indicated that appellant reported a lot of bad issues at work including bullying and
harassment by the station manager, and that this caused anxiety, depression, panic attacks, and
anger. Dr. Kamal diagnosed adjustment disorder with mixed features of depression and anxiety,
moderate-to-severe, panic disorder without agoraphobia, post-traumatic stress disorder, and
hypertension, mainly work related. He prescribed medication and advised that appellant’s
prognosis was fair.
In a March 12, 2015 statement, Ms. Johnson reported that while appellant worked at the
Wanamaker Station, she was not on automatic rings and worked hours when needed, which led
to minor problems entering time.
In a March 16, 2015 statement, Mr. Cox challenged appellant’s allegations, asserting that
he never bullied or threatened her. He indicated that she saw any type of managing or
performance discussion as an attack, and that he monitored the performance of all supervisors.
Mr. Cox noted that, when he first became her manager, appellant had difficulty completing her
duties, that she felt that rules and instructions did not apply to her, and only wanted to work
when and where she pleased. He specifically replied to each of her allegations regarding leave
and pay, indicating that he was unaware of some of the circumstances she reported. Mr. Cox
concluded by stating that the employing establishment was ever-changing, and any changes to
appellant’s schedule were made for the needs of the employing establishment.
In an undated statement, Brian K. Blane, a former manager at the Wanamaker Station,
advised that appellant was not detailed to Wanamaker due to any threatening, intimidating, or
volatile situation at Southport, but due to operational reasons and her requests for a change in
position. He further indicated that he talked with her about moving back to Southport Station,
and she never indicated that she feared for her safety due to any actions of Mr. Cox. Shannon
Blue, a city carrier at the Mapleton Station, indicated in an undated statement that on one
occasion when appellant was a supervisor there, appellant became very upset about personal
issues.
By decision dated April 22, 2015, OWCP denied the claim, finding that appellant did not
establish an injury arising out of employment.
On June 24, 2015 appellant requested reconsideration. She again questioned being forced
to return to Southport Station, and further alleged that Mr. Cox improperly charged her with 80
hours absent-without-leave (AWOL) when she had approved Family Leave, and that her EEO
claim had been accepted. Appellant also alleged that he had shared her personal medical records
with others including his manager. She noted including statements from other employees
regarding Mr. Cox’s harassing behavior.
In support of her reconsideration request, appellant submitted duplicate copies of
evidence previously of record and an annual leave calendar. In a November 3, 2014 treatment
note, Dr. Yoder noted seeing appellant for an anxiety attack. She described appellant’s report of
increased anxiety due to a hostile work environment, stating that appellant was forced to return

4

to an employing establishment where she had a significant conflict with the manager. Dr. Yoder
diagnosed depression/anxiety and advised that appellant could not work. In a June 19, 2015
report, Dr. Kamal noted that appellant had been treated in an intensive outpatient program since
February 2015. He related that she indicated that her anxiety began due to her hostile work
environment when her immediate supervisor began bullying her. Dr. Kamal reiterated his
diagnoses and advised that appellant was unable to work due to experiencing anxiety, panic
attacks, sleep disturbance, ruminating thoughts, and other symptoms of post-traumatic stress.
The only coworker statement submitted was a duplicate of former union steward Oberting’s
undated statement.
By merit decision dated October 16, 2015, OWCP denied modification of the April 22,
2015 decision.
Appellant again requested reconsideration on November 9, 2015. She alleged that
OWCP had not thoroughly reviewed her file. Appellant attached a copy of the employing
establishment’s policy on workplace harassment dated June 10, 2014. Also included was an
EEO affidavit dated April 30, 2015 from Donna M. Pepienbrock, identified by appellant as an
employee she supervised. She stated that Mr. Cox told her that he was so mad at appellant that
he wanted to fire her and that he hated her, that she witnessed him standing over her, that he
would intervene in her work decisions, had changed her starting times, and days off.
Ms. Pepienbrock also implied that Mr. Cox improperly sent appellant to the north side of town
for a meeting.
By decision dated December 1, 2015, OWCP denied appellant’s request for
reconsideration without conducting a merit review. It noted that she did not submit any evidence
with her request.
LEGAL PRECEDENT -- ISSUE 1
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that appellant has
an emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to appellant’s condition; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to appellant’s stress-related condition.3 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor.4 When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.5

3

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

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

Id.

5

Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.7 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.8 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.9 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.10 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.11
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.12 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.13
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.14
With regard to emotional claims arising under FECA, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other employing
establishments, such as the Equal Employment Opportunity Commission, which is charged with
statutory authority to investigate and evaluate such matters in the workplace. Rather, in
6

28 ECAB 125 (1976).

7

See Robert W. Johns, 51 ECAB 137 (1999).

8

Supra note 5.

9

J.F., 59 ECAB 331 (2008).

10

M.D., 59 ECAB 211 (2007).

11

Roger Williams, 52 ECAB 468 (2001).

12

Charles D. Edwards, 55 ECAB 258 (2004).

13

Kim Nguyen, 53 ECAB 127 (2001).

14

James E. Norris, 52 ECAB 93 (2000).

6

evaluating claims for workers’ compensation under FECA, the term “harassment” is
synonymous, as generally defined, with a persistent disturbance, torment or persecution, i.e.,
mistreatment by coemployees or workers. Mere perceptions and feelings of harassment will not
support an award of compensation.15
ANALYSIS -- ISSUE 1
Appellant has not alleged that her emotional condition was due to any specific job duties.
Rather, she has alleged that she was harassed and worked in a hostile work environment, and that
Mr. Cox, the branch manager, bullied and threatened her and inappropriately changed her
schedule and days off. Appellant also alleged that she was inappropriately returned to her home
station from a detail, that errors were made in her time and pay, and that Mr. Cox improperly
shared her medical records.
As a general rule, a claimant’s reaction to administrative or personnel matters falls
outside the scope of FECA.16 The Board has long held that disputes regarding leave,17 the
assignment of work,18 assessment of work performance,19 a change in a duty shift,20 are
administrative functions of the employing establishment and, absent error or abuse, are not
compensable.21 Absent evidence establishing error or abuse, a claimant’s disagreement or
dislike of such a managerial action is not a compensable factor of employment.22
In this case appellant submitted no evidence to substantiate her claims. Ms. Burrell and
Mr. Cox explained that all supervisors were being returned to their station of record, and
appellant submitted no evidence to show that her workstation or schedule were changed
inappropriately. Although appellant submitted a leave schedule and evidence about clock rings,
she did not submit any evidence such as earnings and leave statements that would demonstrate
error or abuse in these matters. Likewise, she submitted no corroborating evidence to support
her allegation that her medical records were improperly shared. Because appellant has not
submitted any evidence corroborating these allegations, they cannot be deemed compensable
factors of employment.
Appellant also alleged that employing establishment management, especially Mr. Cox,
treated her unfairly. Generally, complaints about the manner in which a supervisor performs his
or her duties or the manner in which a supervisor exercises his or her discretion fall, as a rule,
15

Beverly R. Jones, 55 ECAB 411 (2004).

16

Carolyn S. Philpott, 51 ECAB 175 (1999).

17

Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

18

Robert W. Johns, 51 ECAB 137 (1999).

19

Elizabeth W. Esnil, 46 ECAB 606 (1995).

20

Peggy R. Lee, 46 ECAB 527 (1995).

21

Supra note 11.

22

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

7

outside the scope of coverage provided by FECA. This principle recognizes that a supervisor or
manager in general must be allowed to perform his or her duties and employees will, at times,
dislike the actions taken. Mere disagreement or dislike of a supervisory or managerial action
will not be compensable, absent evidence of error, or abuse.23 Here again, the record contains no
corroborating evidence that Mr. Cox, or any other employing establishment supervisor or
manager, treated appellant in a disrespectful or unfair manner. As there is no evidence of error
or abuse in discharging management duties, this allegation is not compensable.24
Regarding appellant’s contention that she was subjected to harassment at work by
Mr. Cox, who bullied and threatened her and treated her in a discriminatory manner, mere
perceptions of harassment or discrimination are not compensable under FECA25 and
unsubstantiated allegations of harassment or discrimination are not determinative of whether
such harassment or discrimination occurred. A claimant must establish a factual basis for his or
her allegations with probative and reliable evidence.26 Although appellant indicated that she had
filed an EEO claim, the record does not contain an EEO decision. Former union steward
Mr. Oberting’s statement is insufficient to meet her burden of proof. While he generally
supported appellant’s contentions regarding Mr. Cox, he did not provide specific dates or
describe situations with sufficient specificity.
Appellant submitted insufficient evidence to show a persistent disturbance, torment, or
persecution, i.e., mistreatment by employing establishment management.27 She therefore did not
establish a factual basis for her claim of harassment by probative and reliable evidence.28
For the foregoing reasons, appellant has not established a compensable factor of
employment under FECA and therefore has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty. As appellant failed to establish a
compensable employment factor, the Board need not address the medical evidence of record.29
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of the October 16, 2015 decision on the merits of
appellant’s claim, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

23

Id.

24

See David C. Lindsey, Jr., 56 ECAB 263 (2005).

25

Supra note 13.

26

Id.

27

Supra note 14.

28

See Robert Breeden, 57 ECAB 622 (2006).

29

Katherine A. Berg, 54 ECAB 262 (2002).

8

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.30 Section 10.608(a) of the Code of Federal Regulations provides that
a timely request for reconsideration may be granted if OWCP determines that the employee has
presented evidence and/or argument that meets at least one of the standards described in section
10.606(b)(3).31 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.32 Section 10.608(b) provides that when a request for
reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.33
ANALYSIS -- ISSUE 2
With her November 9, 2015 reconsideration request, appellant did not allege or
demonstrate that OWCP erroneously applied or interpreted a specific point of law or advance a
relevant legal argument not previously considered by OWCP. Consequently, she was not
entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b).34
With respect to the third above-noted requirement under section 10.606(b)(3), with her
November 9, 2015 request for reconsideration, appellant submitted a copy of the employing
establishment’s policy on workplace harassment dated June 10, 2014 and an April 30, 2015
statement from Ms. Pepienbrock, who supported some of appellant’s contentions regarding
Mr. Cox.
OWCP, in its December 1, 2015 decision, incorrectly found that appellant had submitted
no relevant and pertinent new evidence in support of her request for reconsideration. The Board
finds that appellant’s reconsideration request was accompanied by the workplace harassment
policy (not previously of record) and a new statement which was supportive of the allegations of
workplace harassment. The Board further finds that this new evidence is relevant and pertinent
to her claim. As appellant submitted new evidence not considered by OWCP that is relevant and
pertinent to the issue of whether she established her emotional condition claim, she is entitled to
a review of the merits of her claim under section 10.606(b)(3) of OWCP’s regulations.35 The
30

5 U.S.C. § 8128(a).

31

20 C.F.R. § 10.608(a).

32

Id. at § 10.608(b)(1)-(3).

33

Id. at § 10.608(b).

34

Id. at § 10.606(b)(2).

35

Id. at § 10.606(b)(2); see T.F., Docket No. 10-1701 (issued May 3, 2011).

9

case shall therefore be remanded to OWCP to consider whether the submissions with her
November 9, 2015 reconsideration request are sufficient to establish an employment factor
which may give rise to a compensable disability under FECA. The Board will therefore set aside
OWCP’s December 1, 2015 decision. After this and such further development deemed
necessary, OWCP shall issue an appropriate decision.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an emotional
condition in the performance of duty causally related to factors of her federal employment. The
Board further finds that OWCP improperly denied her November 9, 2015 request for a merit
review pursuant to section 8128(a) of FECA.
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed. The December 1, 2015 decision is set aside, and
the case is remanded to OWCP for proceedings consistent with this opinion of the Board.
Issued: July 12, 2016
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.J, Appellant
and
DEPARTMENT OF THE ARMY, U.S. CORPS
OF ENGINEERS, Memphis, TN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket Nos. 21-0467 &
20-0812
Issued: March 24, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL IN DOCKET NO. 21-0467 AND
DISMISSING PETITION FOR RECONSIDERATION
IN DOCKET NO. 20-0812
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 4, 2021 appellant sought an appeal from a purported October 19, 2020
decision of the Office of Workers’ Compensation Programs. The Clerk of the Appellate Boards
assigned Docket No. 21-0467.
The Board has duly considered the matter and notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act
(FECA).1 This jurisdiction encompasses any final decision issued by OWCP within 180 days of
the date appellant filed his appeal. 2 As of the filing of the current appeal, the most recent OWCP
decision was dated February 11, 2020. However, by an October 19, 2020 decision in Docket No.
20-0812, the Board affirmed OWCP’s February 11, 2020 decision, finding that OWCP properly
denied appellant’s request for reconsideration as it was untimely filed and failed to demonstrate

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
2

clear evidence of error.3 As there is no final adverse decision issued by OWCP within 180 days
of the filing of this appeal4 over which the Board may properly exercise jurisdiction, the Board
concludes that the appeal docketed as No. 21-0467 must be dismissed.
To the extent that appellant’s February 4, 2021 appeal may be construed as a timely petition
for reconsideration of the Board’s October 19, 2020 decision in Docket No. 20-0812, the Board
notes that its decision became final upon the expiration of 30 days from the date of issuance. 5
Further, as appellant did not file his disagreement with the Board’s October 19, 2020 decision until
February 4, 2021, this submission may not be deemed as a timely petition for reconsideration as it
was filed in excess of 30 days from the date of issuance. 6 Thus, the petition for reconsideration of
the October 19, 2020 Board decision must be dismissed as untimely filed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0467 is dismissed.
IT IS FURTHER ORDERED THAT the petition for reconsideration in Docket No.
20-0812 is dismissed as untimely filed. 7

3

Docket No. 20-0812 (issued October 19, 2020).

4

Supra note 2.

5

20 C.F.R. § 501.6(d).

6

See id. at § 501.7(a).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).
7

2

Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, OAKLAND PARK
POST OFFICE, Fort Lauderdale, FL, Employer
__________________________________________

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)
)
)
)
)
)
)

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

Docket No. 07-363
Issued: June 5, 2007

Case Submitted on the Record

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

JURISDICTION
On November 21, 2006 appellant filed a timely appeal from the October 4, 2006 decision
of the Office of Workers’ Compensation Programs denying modification of its decision to
terminate her wage-loss compensation. Pursuant to 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 the Office met its burden of proof to terminate appellant’s
compensation for wage-loss benefits effective March 6, 2006; and (2) whether she met her
burden of proof in establishing that she had continuing disability or residuals after March 6,
2006, causally related to the September 4, 2003 employment injury.
FACTUAL HISTORY
On September 12, 2003 appellant, then a 33-year-old letter carrier, filed a traumatic
injury claim, Form CA-1, alleging that she twisted her left knee when she slipped as she stepped
out of her vehicle on September 4, 2003. She was initially diagnosed with a strained knee and

placed on light duty. On January 30, 2004 Dr. Joseph Fernandez, a Board-certified orthopedic
surgeon, diagnosed recurrent medial meniscal tear, central aspect lateral meniscal tear and patella
instability. By decision dated February 13, 2004, the Office accepted appellant’s claim for tears
of the medial meniscus and the lateral meniscus.
On April 8, 2004 appellant underwent an authorized arthroscopic surgery on her left
knee. Following her surgery, Dr. Fernandez placed appellant on temporary disability and the
Office placed her on its periodic rolls. On May 26, 2004 the Office requested an update on
appellant’s condition from Dr. Fernandez who responded on July 7, 2004 that appellant’s
recovery from the surgery was fair, but that he could not yet ascertain when she could return to
work.
On May 27, 2004 the Office referred appellant’s case to nurse Marilyn Van Houten for
case management. In her initial report, dated July 20, 2004, Ms. Van Houten noted that
appellant’s condition had worsened since falling on the bathroom floor on May 31, 2004. She
stated that Dr. Fernandez had ordered a magnetic resonance imaging (MRI) scan to determine
why appellant’s pain had not diminished. Dr. Fernandez reported on August 4, 2004 that the
MRI scan revealed a recurrent tear on the medial meniscus. He recommended another surgery to
repair the damage.
The Office authorized the surgery, which was performed on
August 17, 2004.
On November 1, 2004 Dr. Fernandez released appellant to work with limitations of 7
hours of sitting, 30 minutes of walking, 40 minutes of standing, no twisting and no driving. In
Ms. Van Houten’s November 5, 2004 report, she noted that Dr. Fernandez indicated that
appellant should be able to sit or stand every five minutes to change positions. She also stated
that appellant felt that she could only drive 20 to 30 minutes at a time, which would make it
difficult to get to work, which was far from her home.
On November 24, 2004 appellant underwent a functional capacity evaluation. Therapist
Brian Imler found that appellant could meet all of the requirements of her letter carrier position
except lifting. He stated that she could sit, drive, reach and grasp continuously; stand, walk,
half-squat and bend at the waist frequently and squat occasionally. In a report dated
December 13, 2004, Dr. Fernandez disagreed with the finding that appellant could sit and drive
continuously, stating that “at a certain point she has significant pain.” He stated that she would
have permanent restrictions and disability from her injury and opined that she would be unable to
return to her job as a letter carrier. On January 19, 2005 Dr. Fernandez explained that
patellofemoral symptoms like appellant’s make it difficult to sit for extended periods of time,
particularly with the knees bent. He stated that she was limited to driving 15 to 20 minutes at a
time. Dr. Fernandez found that appellant had reached maximum medical improvement and had
permanent loss of motion, atrophy of the quadriceps and weakness.
On February 3, 2005 the employing establishment offered appellant a light-duty position
at her date-of-injury duty station based on Dr. Fernandez’s November 1, 2004 work restrictions,
including the restriction against driving. On February 7, 2005 appellant rejected the position
based on the advice of Dr. Fernandez. In an attached report dated February 7, 2005,
Dr. Fernandez stated that appellant had a permanent driving restriction of 15 to 20 minutes and
that, if she needed to travel more than that to get to work, she would “need to be granted a

2

hardship transfer for transportation necessities.” On February 15, 2005 the employing
establishment asked the Office for a suitability determination of the rejected position. On
February 17, 2005 the Office informed the employing establishment that it needed more
information about appellant’s driving limitations before it could make a determination about the
suitability of the offered light-duty position. On the same date, the Office requested additional
information about the restriction from Dr. Fernandez.
On April 6, 2005 Dr. Fernandez reported that appellant was experiencing sharp severe
stabbing pain in the anterior aspect of the left knee. He diagnosed patellofemoral dysfunction in
the left knee with weak quadriceps.
On April 19, 2005 appellant was referred to Dr. Ismael Montane, a Board-certified
orthopedic surgeon, for a second opinion of her remaining disability and the causal relationship
between her employment injury and her current medical condition. On May 12, 2005
Dr. Montane reviewed her medical history and conducted a physical and diagnostic examination.
He reported that she complained of persistent pain in the left knee, including shooting pain from
the medial to lateral aspects and a burning sensation along the anterior aspect of the knee,
proximal leg and medial patella. Dr. Montane found that her left knee range of motion was 10 to
75 degrees and that she had complete motor strength, normal sensation, and equal and “brisk”
deep tendon reflexes in the lower extremities, though she did walk with a slight limp. He
diagnosed genu valgus, internal derangement of the left knee with medial meniscus tear,
chondromalacia patella and femoral condyle, patella femoral instability and status post medial
transfer tibial tubercle. Dr. Montane found that all of these conditions were medically connected
to the accepted employment injury. He noted that appellant’s subjective complaints outweighed
the objective findings, but found that she had continuous problems with her left knee.
Dr. Montane found that she had reached maximum medical improvement on February 17, 2005,
six months after her second surgery. He stated that her torn medical meniscus was directly
connected to her employment injury and that the other diagnosed conditions, which were
consistent with a short obese woman with bilateral genu valgus, were preexisting, but may have
been aggravated by the employment injury. Dr. Montane opined that appellant continued to
suffer residuals from the injury, but that she should improve. He stated that appellant had
physical limitations attributable both to her employment injury and her preexisting conditions,
but that she was employable in a position that did not require prolonged standing or walking.
Dr. Montane agreed with the functional capacity evaluation and found that she should have no
limitations on driving an automobile with automatic transmission, because her right leg, which is
used for accelerating and breaking, was unimpaired.
On July 11, 2005 Dr. Fernandez reported that appellant had experienced several episodes
of her quadriceps giving way because of muscle weakness and fatigue. He noted that her range
of motion, which he found to be 0 to 85 degrees, had diminished by 5 degrees. Dr. Fernandez
stated that a stationary bike would allow her to progress physically and prevent worsening of her
condition.
On August 12, 2005 Dr. Montane submitted a work capacity evaluation form noting that
appellant could perform all aspects of her usual job except lifting and carrying more that 30
pounds. He stated that she could sit and drive a vehicle for eight hours per day and walk and

3

stand for six hours per day. Dr. Montane recommended 15-minute breaks, but did not state their
frequency.
On August 30, 2005 the Office provided Dr. Montane’s report and the functional capacity
evaluation to Dr. Fernandez for comment. On September 12, 2005 Dr. Fernandez responded that
he disagreed with both, stating that his recommendations were more accurate because he had
worked with appellant since January 2004 and seen her in the office over 15 times. He noted
that functional capacity evaluations, which were interpreted by physical therapists and not
physicians, could be “highly inaccurate” because there was a significant amount still to be
learned about them. Dr. Fernandez reiterated his opinion that appellant could drive for only 15
to 20 minutes at a time and stated that hand controls and hand brakes could be useful.
On October 7, 2005 the employing establishment submitted an investigative report of
appellant’s activities to the Office, including a 30-minute surveillance video compilation and
photographs. The report was based on surveillance of appellant’s walking and driving activities
on nine days from May 31 to September 27, 2005. It included evidence that, on certain days, she
sat for as long as two hours without standing, drove for as long as an hour, carried groceries and
other objects, walked around stores and climbed stairs at a graduation ceremony held in a
stadium. Most of the observed periods of driving were 25 minutes or less at a time.
By letter dated November 25, 2005, the Office informed appellant that she was being
referred to an impartial medical examiner, Dr. Richard Glatzer, a Board-certified orthopedic
surgeon, to resolve the conflict between Dr. Fernandez and Dr. Montane. On December 27,
2005 the employing establishment supplemented its October 7, 2005 investigative report with
surveillance conducted on December 13, 2005, the day of appellant’s examination by
Dr. Glatzer.
On January 17, 2006 Dr. Glatzer reported the findings of his physical examination and
medical history review. He reported that appellant underwent left knee arthroscopy in 1987 for a
softball injury. Dr. Glatzer stated that the record did not contain a copy of a 2003 MRI scan
report, the August 17, 2004 surgery report or the pathology reports from either the April or
August 2004 surgeries. In his physical examination, he noted that appellant walked without a
limp and could walk on her heels and toes but that she was areflexic in both legs. Dr. Glatzer
stated that her left knee had a range of motion from 0 to 80 degrees and that she had mild laxity
of the lateral collateral ligament. He found no other abnormalities in either leg. Dr. Glatzer’s
review of anterior-posterior view x-rays of both knees showed narrowing of the medial joint
lines. The left knee x-ray showed a tibial screw in the proximal tibial condyle and a shift of the
tibial tubercle, which might also be “old Osgood-Schlatter’s disease.”
Dr. Glatzer found that appellant could return to her full job duties without any
restrictions. He opined that she did have a permanent medical impairment in her knee, which he
described as “tightness,” but stated that it was based “solely on the surgical intervention of
Dr. Fernandez” and not on the accepted employment injury. Dr. Glatzer also stated that
appellant’s obesity was a major and unexplored cause of her disability and found that weight
reduction had not been raised as a treatment option. He noted that “weight reduction in women
can rapidly reduce knee pains and any continuing degenerative changes in the knee that may be
occurring.” Dr. Glatzer stated that the employing establishment’s investigative report, including

4

the video, provided clear evidence that appellant was able to “walk well and drive her car, which
should not preclude her being able to do the same thing on the job.” He stated that, in his
opinion, appellant would be unable to walk in sandals or flip-flops, as revealed by the video and
photographs, if she truly had an unstable left knee. Dr. Glatzer stated that the only objective
findings of residuals from the accepted injury were scars from her operations. He noted that
range of motion was “purely subjective” and that he felt that there “was a certain degree of
functional overlay” on the part of appellant. Dr. Glatzer found that appellant had reached
maximum medical improvement and was in need of no further treatment.
On January 25, 2006 the Office issued a notice of proposed termination of appellant’s
wage-loss benefits on the basis of Dr. Glatzer’s report. It informed her that she would continue
to receive medical benefits as long as treatment was needed for her accepted condition. The
Office stated that Dr. Glatzer’s report demonstrated that appellant’s accepted injury no longer
prevented her from performing her regular duties.
On February 24, 2006 appellant responded to the notice of proposed termination with
arguments against the sufficiency of Dr. Glatzer’s report and a new medical report from
Dr. Fernandez. She argued that Dr. Glatzer’s medical opinion was not based on as complete a
medical history as that of Dr. Fernandez, and that he did not request the documents, including
pathology reports and an MRI scan, whose absence he mentioned in his report. Appellant
contended that Dr. Glatzer’s opinions were largely based on the employing establishment’s
surveillance video rather than on medical rationale. She stated that the investigative report
emphasized by Dr. Glatzer did not show her doing anything outside of Dr. Fernandez’s
restrictions. Appellant stated that she never claimed that she was unable to work, only that she
was unable to take a job that was outside her medical restrictions. She provided the February 22,
2006 report of Dr. Fernandez, in which he stated that the only unreasonable aspect of the position
offered by the employing establishment is that it would require her to drive 104 miles per day to
travel to and from her duty station. Dr. Fernandez indicated that his review of the surveillance
video showed her walking on flat surfaces, which he would expect her to be able to do, and
descending steps at a graduation ceremony in a manner that allowed her to place most of the
weight on the right leg. In an updated duty status report, Dr. Fernandez indicated that appellant
was subject to the following limitations: five hours of carrying less than 30 pounds, two hours of
standing, four hours of walking, no climbing, two hours of twisting, one hour of pulling, four
hours of reaching above the shoulder, and two hours of driving a vehicle.
By decision dated March 6, 2006, the Office terminated appellant’s wage-loss benefits on
the grounds that she had not submitted evidence sufficient to establish her ongoing disability. It
found that she had the burden of bringing all necessary medical evidence with her to the
examination and therefore that the missing evidence was not Dr. Glatzer’s responsibility. The
Office noted that Dr. Fernandez did not provide objective evidence or medical reasoning to
support his opinion that appellant was unable to drive for 104 miles each day. It also found that
Dr. Glatzer provided an opinion that was fully rationalized and based on a complete and accurate
medical history.
On June 22, 2006 appellant requested reconsideration of the termination of her wage-loss
benefits. She submitted a copy of the September 22, 2003 MRI scan report that revealed “minor
signal change in the free edge of the mid-body of the lateral meniscus” and the operative notes of

5

her 1987 surgery for osteochondritis dissecans of the medial femoral condyle. Appellant also
submitted the March 29, 2006 report of Dr. Fernandez, who opined that she sustained a patellar
subluxation or dislocation when she slipped on September 4, 2003. Dr. Fernandez noted that
appellant’s 1987 operative report revealed no evidence of instability or other dysfunction of the
left knee patella. He stated that she had no problems with her knee from the time of her 1987
surgery until her accepted employment injury. Dr. Fernandez stated in his previous surgical
reports that he had mistakenly reported that changes to the medial aspect of the patella were
postsurgical changes from appellant’s 1987 injury. As he now knew that her previous operation
had nothing to do with the patella, he opined that those changes were new damage to the patellar
medial retinaculum consistent with a dislocation. Dr. Fernandez reported that, after her surgery
in April 2004, appellant developed severe athrofibrosis and therefore underwent another
operation in August 2004. He stated that appellant had permanent quadriceps atrophy on the left
side as compared with the right, as evidenced by differences of one and one and three-quarter
inches respectively at three and six inches above the patella. Dr. Fernandez stated that this
atrophy lead to patellofemoral dysfunction, which caused fatigue with extended walking or
exertion and difficulty going up and down stairs, but no difficulty with uneven surfaces. He
explained that fatigue and patellofemoral dysfunction with quadriceps atrophy would make it
difficult for appellant to drive 104 miles each day and that her reaction time could therefore be
significantly compromised.
By decision dated October 4, 2006, the Office issued a decision denying modification of
the previous decision. It found that the March 29, 2006 report of Dr. Fernandez was relevant but
lacked objective findings to support his findings of physical limitations. It found that the weight
of the medical evidence rested with Dr. Glatzer, who found that appellant could return to work as
a letter carrier without restriction.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 The Office may not terminate compensation without
establishing that disability has ceased or that it is no longer related to the employment injury.2
The Federal Employees’ Compensation Act provides that, if there is a disagreement
between a physician making an examination for the United States and the physician of the
employee, the Secretary must appoint a third physician to make an examination.3 Likewise, 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 or an Office
medical adviser or consultant, the Office must appoint a third physician to make an examination.
This is called a referee examination and the Office is required to select a physician who is
qualified in the appropriate specialty and who has had no prior connection with the case.4 It is
1

Elaine Sneed, 56 ECAB ___ (Docket No. 04-2039, issued March 7, 2005).

2

Mary A. Lowe, 52 ECAB 223, 224 (2001).

3

5 U.S.C. §§ 8101-8193, 8123(a).

4

20 C.F.R. § 10.321.

6

well established that, when a case is referred to an impartial medical specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on
proper factual and medical background, must be given special weight.5
ANALYSIS
The Office accepted appellant’s September 12, 2003 claim for tears of the lateral
meniscus and medial meniscus in her left knee. Based on the medical opinion of Dr. Fernandez,
a Board-certified orthopedic surgeon, the Office authorized her surgeries of April and
August 2004 and placed her on the periodic rolls for temporary total disability. The issue to be
determined in whether the Office has met its burden of proof that appellant’s disability had
ceased when it terminated her wage-loss benefits effective March 6, 2006.
Dr. Fernandez released appellant for work on November 1, 2004 with restrictions on
walking, standing and driving. A functional capacity evaluation conducted on November 24,
2004 found that appellant had no restrictions on continuous sitting or driving. Dr. Fernandez
disagreed with these results. On February 1, 2005 the employing establishment offered appellant
a light-duty position at her date-of-injury duty station that met Dr. Fernandez’s limitations.
However, based on the restrictions of Dr. Fernandez, she refused the position because she would
have to drive 52 miles each way to get to work and back.
In order to determine the suitability of the offered position, the Office sought a second
opinion from Dr. Montane, a Board-certified orthopedic surgeon, who found that appellant had
no restrictions on continually sitting or driving, but that she should not work in a position that
required extensive standing or walking. To resolve the conflict between the opinions of
Dr. Fernandez and Dr. Montane, the Office referred appellant to impartial medical examiner
Dr. Glatzer, a Board-certified orthopedic surgeon, who found that appellant had no residuals
from her accepted employment injury and that she could return to full duty without restrictions.
He opined that she had permanent medical impairment in her left knee, but stated that it was
based “solely on the surgical intervention of Dr. Fernandez,” which he found to be unnecessary,
unreasonable and unrelated to the September 4, 2003 employment injury. Based on
Dr. Glatzer’s opinion that appellant was able to return to work in full capacity, the Office
terminated appellant’s wage-loss benefits, after finding that an additional report by
Dr. Fernandez challenging this finding was not adequately rationalized.
The Board finds further that the report of Dr. Glatzer is not sufficiently rationalized to
carry the weight of the medical evidence. In his physical examination, he found that appellant
had no reflexes in her legs and that her left knee had a diminished range of motion and mild
laxity of the lateral collateral ligament. Dr. Glatzer indicated that appellant had “tightness” in
her left knee, which he found to be a permanent medical impairment. In spite of these findings,
he found that appellant was able to return to full duty. The rationale that he provided for this
finding was that the employing establishment’s surveillance video showed her driving and
“walking well” while running errands, that range of motion tests were “purely subjective,” and

5

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

7

that appellant would not have been able to walk in flip-flops if her left knee was unstable. The
Board finds that this is insufficient to establish that appellant’s disability had ceased.
The Board notes that Dr. Glatzer did not explain the basis for his determination that
appellant would be able to meet the full requirements of her date-of-injury position merely
because she could walk and drive while running errands. Dr. Glatzer did not explain how
appellant’s ability to run errands corresponded with her ability to work in her date-of-injury
position as a letter carrier. The Board notes that Dr. Fernandez found that all of appellant’s
activities, as seen on the surveillance video, were within the work restrictions that he issued. The
Board finds that the evidence showing appellant running errands is insufficient, by itself, to
establish that she is able to return to her full-duty position without restrictions.
Dr. Glatzer discounted appellant’s limited range of motion as evidence of physical
limitations by stating that it was a purely subjective test and that he suspected “functional
overlay” on appellant’s part. This evidence is ambiguous, however, in light of the fact that he
also found permanent impairment of appellant’s left knee in the form of “tightness.” Dr. Glatzer
also opined that appellant’s ability to walk in flip-flops or sandals indicated that she had no
instability of the left knee. However, he did not explain the medical basis for this opinion. The
Board finds that this rationale is not sufficient to establish that appellant has no remaining
disability related to her employment injury.
Dr. Glatzer also stated that the “major cause of appellant’s disability” was her gross
obesity. He noted that “weight reduction in women can rapidly reduce knee pains and any
continuing degenerative changes in the knee that may be occurring.” The Board finds however
that Dr. Glatzer provided no explanation of how or why he determined that obesity was “the
major cause” of appellant’s “disability.”
The Board finds that the Office did not meet its burden of proof in relying on
Dr. Glatzer’s opinion as it is not adequately rationalized to establish that appellant has no
remaining disability related to her employment injury.
CONCLUSION
The Board finds that Office did not meet its burden of proof to terminate appellant’s
compensation for wage-loss benefits effective March 6, 2006.6

6

In view of the disposition of the case, the issue of whether appellant has established continuing disability or
residuals resulting from the September 4, 2003 employment injury is moot.

8

ORDER
IT IS HEREBY ORDERED THAT the October 4, 2006 decision of the Office of
Workers’ Compensation Programs is reversed and remanded for development consistent with
this opinion.
Issued: June 5, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9


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

)
)
)
)
)
)
)
)

Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0173
Issued: March 23, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 24, 2020 appellant, through counsel, filed a timely appeal from a June 1,
2020 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.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective November 22, 2019, as he no longer had
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.

disability or residuals causally related to his accepted December 1, 2006 employment injury; and
(2) whether appellant met his burden of proof to establish continuing disability or residuals
causally related to his accepted December 1, 2006 employment injury after November 22, 2019.
FACTUAL HISTORY
On December 8, 2006 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 1, 2006 he sustained a back injury when two dogs
attacked him from behind and he twisted his back while in the performance of duty. He stopped
work on the date of the claimed injury and returned to limited-duty work several months later.3
OWCP assigned OWCP File No. xxxxxx368 to the claim and accepted it for lumbar sprain and
lumbago.4
Appellant received treatment for his December 1, 2006 employment-related back injury
from several attending physicians, including Dr. David A. Bundens, a Board-certified orthopedic
surgeon, and Dr. Laura E. Ross, an osteopath and Board-certified orthopedic surgeon. X-rays of
appellant’s lumbar spine from December 21, 2006 contained an impression of degenerative
changes of the lumbar discs, predominately at L5-S1. On January 4 and 12, 2010 Dr. Bundens
indicated that appellant was performing his regular duties on a full-time basis with some
complaints of back discomfort. Appellant stopped work on June 19, 2010. In an October 14, 2013
report, Dr. Ross diagnosed lumbar herniation and radiculitis of the right leg.
OWCP engaged in extensive development of the medical evidence between 2013 and 2018,
including referral to three OWCP referral physicians and two impartial medical specialists.5 In a
June 29, 2018 report, Dr. Roy B. Friedenthal, a Board-certified orthopedic surgeon who served as
the second of the two impartial medical specialists, reported the findings of his May 17, 2018
physical examination and determined that appellant did not have any work-related residuals or
disability.6

3

OWCP paid appellant wage-loss compensation on the supplemental rolls for intermittent periods of disability
from work commencing December 11, 2009.
4

Under a separate claim, assigned OWCP File No. xxxxxx201, OWCP previously accepted that appellant sustained
a right wrist strain and right knee tenosynovitis when he pushed a plastic tub on September 29, 2000. Under another
separate claim, assigned OWCP File No. xxxxxx165, it accepted that he sustained a lumbar sprain related to carrying
telephone books on November 28, 2001. Appellant commenced working in a light-duty position on November 29,
2001 and returned to his regular duties on December 19, 2001. After a period of disability related to OWCPauthorized right wrist surgery performed on April 4, 2004 in connection with his claim under OWCP File No.
xxxxxx201, he returned to his regular duties in June 2005.
5

Commencing March 8, 2015, OWCP placed appellant on the periodic rolls and paid him wage-loss compensation
for total disability.
6

OWCP had determined that there was a conflict in the medical opinion evidence between Dr. Ross and
Dr. Andrew Newman, a Board-certified orthopedic surgeon who served as an OWCP referral physician. In a June 1,
2017 report, Dr. Newman determined that appellant’s December 1, 2006 employment injury had resolved. In a July 7,
2017 report, Dr. Ross opined that appellant continued to have residuals of the December 1, 2006 lumbar sprain and
that he was totally disabled.

2

In a July 30, 2018 report, Dr. Ross indicated that appellant’s current diagnosed conditions
that were causally related to the December 1, 2006 employment injury included multilevel lumbar
disc protrusions with herniations at L1-2 and L3-4 and disc bulges at multiple levels with annular
tears at L1-2, L3-4, and L4-5. She indicated that objective findings of the injury still existed,
including spasm in the lumbar spine. Dr. Ross advised that appellant was medically able to return
to work with restrictions of lifting no more than 10 pounds, and working no more than eight hours
at a time. She advised that appellant could sit for five hours in total, and stand for three hours
altogether with breaks.
In a March 6, 2019 notice, OWCP advised appellant that it proposed to terminate his wageloss compensation and medical benefits as he no longer had residuals or disability causally related
to his accepted December 1, 2006 employment injury. It informed appellant that the special weight
of the medical opinion evidence rested with the report of Dr. Friedenthal, the impartial medical
specialist. OWCP afforded appellant 30 days to submit evidence and argument challenging the
proposed action.
Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still
had bilateral spasms in his lumbar spine and indicated that his current work status was “out of
work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of
appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel
lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with
annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild
chondromalacia patella and joint effusion. Dr. Ross repeated her prior findings and noted, “[h]is
speciﬁc work-related condition has not resolved.” He indicated that appellant was medically able
to return to work with restrictions of lifting no more than 10 pounds and working no more than 8
hours at a time. Appellant was able to sit for 45 to 60 minutes continuously, stand for
approximately 30 minutes continuously, sit for five hours altogether, and stand for three hours
altogether with breaks. Dr. Ross differed with Dr. Friedenthal’s assessment that appellant merely
sustained a lumbar strain, as this is not what was noted on his magnetic resonance imaging (MRI)
scan of the lumbar spine. She disagreed with Dr. Friedenthal’s assessment that the aggravation of
appellant’s condition ceased when he returned to full-duty work three or four months after
December 1, 2006.
Appellant, through counsel, argued that Dr. Friedenthal’s June 29, 2018 report did not
contain adequate medical rationale in support of its conclusions and that all of the relevant medical
documents were not provided to Dr. Friedenthal for review.
In early-September 2019, OWCP determined that it would not pursue action based on the
Dr. Friedenthal’s opinion, which had been based on a physical examination conducted on
May 17, 2018.
OWCP then referred appellant, along with a statement of accepted facts (SOAF) and series
of questions, for a second opinion examination and evaluation with Dr. Stanley Askin, a Boardcertified orthopedic surgeon. It requested that he provide an opinion regarding whether appellant
continued to have residuals of his accepted December 1, 2006 employment injury.

3

In a September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical
history and reported the findings of his physical examination. He noted that appellant showed full
range of motion of his elbows, forearms, wrists, fingers, and thumbs, and that muscle function of
the trapezii, latissimus dorsi, pectoralis major, deltoids, triceps, wrist flexors, and wrist extensors
was intact bilaterally. Appellant reported that, when he moved his right wrist, there was pain in
the radial aspect of his forearm, but not over the wrist joint proper. Dr. Askin reported that the
Finkelstein’s test for de Quervain’s tendinitis and testing for the intersection syndrome were
negative for the respective conditions. He indicated that appellant reported pain in the radial aspect
of his right forearm, but that this was “a subjective report without objective manifestation.”
Straight-leg raising was negative to 90 degrees while seated and appellant’s low back muscles
relaxed appropriately on alternate leg stance from which it is concluded that there was no present
muscle spasm. Dr. Askin noted that appellant offered 80 degrees of forward flexion and 10 degrees
of side-bending to each side, which was quite reasonable for a 62-year-old person. Examination
of appellant’s knees revealed full range of motion and normal ligamentous function. Dr. Askin
opined that appellant ceased to have residuals of the accepted lumbar sprain and lumbago
conditions sustained on December 1, 2006, noting that he had no objective findings other than the
fact that he examined as a rather typical 62-year-old man. He indicated, “[appellant] does not have
any concurrent nonwork-related disability, apart from the fact that when a person is 62 years of
age he is not as physically capable as when he was 20 years of age, but that is a biologically
imposed consequence of senescence.” Dr. Askin advised that there was nothing identifiably
objective that would preclude appellant’s resumption of his employment activities.
By decision dated November 22, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date, as he no longer had residuals or disability
causally related to his accepted December 1, 2006 employment injury. It found that the weight of
the medical evidence rested with the opinion of Dr. Askin.
On December 2, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a December 9, 2019 duty status report (Form CA-17) from Dr. Scott
Fried, a Board-certified orthopedic surgeon, who diagnosed right wrist sprain/tenosynovitis and
recommended work restrictions. In a December 9, 2019 work capacity evaluation report (Form
OWCP-5c), he also recommended work restrictions. Appellant also submitted a functional
capacity evaluation (FCE) report, signed by Dr. Fried on December 6, 2019, which showed that
appellant could lift or carry up to 10 pounds.
During the hearing held on April 6, 2020, counsel argued that the weight of the medical
opinion evidence rested with the opinion of Dr. Ross who found continuing employment-related
residuals and disability.
By decision dated June 1, 2020, OWCP’s hearing representative affirmed the
November 22, 2019 decision.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.7 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 8 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.9
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation. 10 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.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation benefits and medical benefits, effective November 22, 2019.
The weight of the medical evidence is represented by the thorough, well-rationalized
opinion of Dr. Askin, the OWCP referral physician. The September 27, 2019 report of Dr. Askin
establishes that appellant had no residuals or disability due to his accepted December 1, 2006
employment injury after November 23, 2019.
In his September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical
history and reported the findings of his physical examination. He opined that appellant ceased to
have residuals of the accepted lumbar sprain and lumbago conditions sustained on December 1,
2006, noting that he had no objective findings other than the fact that he examined as a rather
typical 62-year-old man. Dr. Askin indicated, “[appellant] does not have any concurrent nonworkrelated disability, apart from the fact that when a person is 62 years of age he is not as physically
capable as when he was 20 years of age, but that is a biologically imposed consequence of
senescence.” He advised that there was nothing identifiably objective that would preclude
appellant’s resumption of his employment activities.
The Board has reviewed the opinion of Dr. Askin and finds that it has reliability, probative
value and convincing quality with respect to its conclusions regarding the relevant issue of
7

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
8

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
9

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

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).
11

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

5

continuing residuals/disability related to the December 1, 2006 employment injury. Dr. Askin
provided a thorough factual and medical history and accurately summarized the relevant medical
evidence. He provided medical rationale for his opinion by explaining that appellant had no
objective findings of the accepted lumbar sprain and lumbago.12
Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still
had bilateral spasms in his lumbar spine and indicated that his current work status was “out of
work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of
appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel
lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with
annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild
chondromalacia patella and joint effusion. Dr. Ross indicated that appellant sustained these
injuries due to the December 1, 2006 work-related incident and found that he still had ﬁndings
including spasm in the lumbar spine. She recommended work restrictions and noted, “[h]is
speciﬁc work-related condition has not resolved.”
The Board finds, however, that Dr. Ross’ reports are of limited probative value with respect
to OWCP’s termination action because it has not been accepted that appellant sustained her abovedetailed diagnosed conditions in connection with the December 1, 2006 employment injury.
Dr. Ross has not otherwise explained, with medical rationale, how such injuries were sustained by
appellant on December 1, 2006. The Board has held that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/level of disability has an employment-related cause.13 Therefore, these reports
are insufficient to support appellant’s claim that OWCP improperly terminated compensation.
As the evidence of record is insufficient to overcome the weight accorded to Dr. Askin, the
Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 2
When OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish continuing residuals or disability after that date, causally related to the accepted
employment injury. 14 To establish causal relationship between the condition as well as any
attendant disability claimed and the employment injury, an employee must submit rationalized

12

See W.C., Docket No. 18-1386 (issued January 22, 2019); D.W., Docket No. 18-0123 (issued October 4, 2018);
Melvina Jackson, 38 ECAB 443 (1987) (regarding the importance, when assessing medical evidence, of such factors
as a physician’s knowledge of the facts and medical history, and the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion).
13

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

14

See S.M., Docket No. 18-0673 (issued January 25, 2019); C.S., Docket No. 18-0952 (issued October 23, 2018);
Manuel Gill, 52 ECAB 282 (2001).

6

medical evidence based on a complete medical and factual background, supporting such causal
relationship.15
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish continuing
disability or residuals causally related to his accepted December 1, 2006 employment injury after
November 22, 2019.
After OWCP’s November 22, 2019 decision terminating appellant’s compensation
effective the same date, appellant submitted additional medical evidence , which he felt showed
that he was entitled to compensation after November 22, 2019 due to residuals of his December 1,
2006 employment injury. Given that the Board has found that OWCP properly relied on the
opinion of the OWCP referral physician, Dr. Askin, in terminating appellant’s compensation
effective November 22, 2019, the burden shifts to appellant to establish that he is entitled to
compensation after that date.
Appellant submitted a December 9, 2019 duty status report from Dr. Fried who diagnosed
right wrist sprain/tenosynovitis and recommended work restrictions. In a December 9, 2019 work
capacity evaluation report, Dr. Fried also recommended work restrictions. Appellant also
submitted an FCE report, signed by Dr. Fried on December 6, 2019, which showed that appellant
could lift or carry up to 10 pounds. The Board has reviewed the additional evidence submitted by
appellant and finds that it is not of sufficient probative value to establish that he had
residuals/disability related to his December 1, 2006 employment injury after November 22, 2019.
As noted above, it has not been accepted that appellant sustained a wrist injury on December 1,
2006 and none of these reports contains an opinion that appellant had residuals/disability due to
the accepted lumbar sprain or lumbago conditions. The Board has held that medical evidence that
does not offer an opinion regarding work-related residuals or disability is of no probative value on
the issue of causal relationship.16
As appellant has not submitted any rationalized medical evidence establishing tha t he had
employment-related disability or residuals after November 22, 2019, causally related to the
accepted December 1, 2006 employment injury, he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation benefits and medical benefits, effective November 22, 2019. The Board further

15

Id.

16

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

7

finds that appellant has not met his burden of proof to establish continuing disability or residuals
causally related to his accepted December 1, 2006 employment injury after November 22, 2019.
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8