United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF TREASURY, INTERNAL
REVENUE SERVICE, Richmond, VA, Employer
__________________________________________

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

Docket No. 12-1709
Issued: January 9, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 8, 2012 appellant filed a timely appeal from an August 3, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) which denied her traumatic injury
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on April 30, 2012.
FACTUAL HISTORY
On May 2, 2012 appellant, then a 34-year-old control clerk, filed a traumatic injury claim
alleging that on April 30, 2012 she strained a muscle in her lower back when she picked up
heavy boxes at work. She stated that each box probably weighed 50 pounds or more. Appellant
1

5 U.S.C. § 8101 et seq.

explained that her back started to hurt when she woke up the next day and got dressed. She
stopped work on May 1, 2012 and received continuation of pay.
In a May 7, 2012 report of occupational injury, illness, accident, or unsafe condition,
appellant and her supervisor noted that on April 30, 2012 she strained her lower back when she
lifted a few boxes at work. She stated that, when she woke up on May 1, 2012, her back started
to hurt.
On May 10, 2012 OWCP advised appellant that the evidence submitted was insufficient
to establish her claim and requested additional evidence.
In a May 3, 2012 emergency room report, Dr. Hillary P. Seematter, Board-certified in
emergency medicine, stated that appellant complained of transient left-sided chest pain but
denied radiation of pain and any modifying factors. A chest x-ray revealed no acute
cardiopulmonary processes. Examination revealed no chest wall tenderness and no clubbing,
cyanosis or edema in the extremities.
In a May 3, 2012 radiology report, Dr. Luke A. Wilson, a Board-certified diagnostic
radiologist, stated that appellant’s heart size and pulmonary vascularity were within normal
limits.
In a May 8, 2012 duty status report, a nurse practitioner noted that appellant sustained an
injury to the lower mid-section of her back on April 30, 2012. He authorized appellant to return
to work with restrictions of no lifting greater than 10 pounds and no bending for one month.
In a May 22, 2012 attending physician’s form, a nurse practitioner related appellant’s
complaints of back pain after lifting heavy boxes at work. She observed decreased range of
motion and diagnosed low back strain. The nurse practitioner stated that appellant was totally
disabled and authorized her to return to limited duty with no lifting greater than 10 pounds.
Appellant submitted May 8, 2012 hospital discharge forms. She also submitted various
witness statements from coworkers indicating that they saw her pick up a box off the floor to
place on a table and heard her say that it was heavy.
In a decision dated August 3, 2012, OWCP denied appellant’s claim on the grounds of
insufficient medical evidence. It accepted that the April 30, 2012 incident occurred as alleged
but denied the claim finding that the medical evidence did not establish that she sustained a
diagnosed condition as a result of the accepted condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative, and substantial evidence3
including that she sustained an injury in the performance of duty and that any specific condition
2
3

5 U.S.C. §§ 8101-8193.
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

2

or disability for work for which she claims compensation is causally related to that employment
injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.7 An employee may establish that the
employment incident occurred as alleged but fail to show that his disability or condition relates
to the employment incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.9 The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.10 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.11
ANALYSIS
Appellant alleges that on April 30, 2012 she strained her lower back when she picked up
heavy boxes at work. OWCP accepted that the April 30, 2012 incident occurred as alleged but
found that the medical evidence was insufficient to establish that appellant sustained any
diagnosed condition causally related to the accepted incident. The Board finds that appellant
failed to meet her burden of proof to provide sufficient medical evidence demonstrating that she
sustained a diagnosed back condition as a result of the April 30, 2012 employment incident.
Appellant submitted a May 3, 2012 emergency room report by Dr. Seematter who related
her complaints of transient left-sided chest pain. She noted that a chest x-ray revealed no acute
4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

11

James Mack, 43 ECAB 321 (1991).

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cardiopulmonary processes. Dr. Seematter did not mention any complaint of back pain, nor does
she mention the April 30, 2012 work incident. This evidence is not relevant to the issue of
whether appellant sustained a low back injury, as alleged. Dr. Seematter did not provide any
diagnosis of a back condition or medical opinion on how appellant’s alleged back pain was
causally related to the April 30, 2012 employment incident. The Board has found that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.12 This report is insufficient to
establish appellant’s claim. Similarly, Dr. Wilson’s radiology report is also insufficient to
establish her claim because he did not mention any complaints of back pain, or provide any
opinion on the cause of appellant’s alleged back conditions.
The record contains notes from a nurse practitioner who stated that appellant sustained an
injury to the lower mid-section of her back on April 30, 2012 after lifting heavy boxes at work.
The Board has held, however, that a nurse is not a physician as defined under FECA.13
Accordingly, their medical opinions regarding diagnosis and causal relationship are of no
probative medical value.14
Appellant contends on appeal that she wanted her medical bills paid and sick leave
restored. As noted, however, she has the burden of proof to establish that any specific condition
or disability for work for which she claims compensation, including medical benefits, is causally
related to that employment injury.15 As the record does not contain sufficient medical evidence
to establish that she sustained a diagnosed low back condition as a result of the April 30, 2012
employment incident. Appellant has not met her burden of proof in this case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained any diagnosed
condition causally related to the April 30, 2012 employment incident.

12

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

13

Section 8102(2) of the FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).
14

E.H., Docket No. 08-1862 (issued July 8, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

15

Supra note 4.

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ORDER
IT IS HEREBY ORDERED THAT the August 3, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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Appearances:
John Eiler Goodwin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-2021
Issued: August 8, 2018

Case Submitted on the Record

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

JURISDICTION
On September 28, 2017 appellant, through counsel, filed a timely appeal from an April 3,
2017 merit decision of the Office of Workers’ Compensation Programs2 (OWCP). Pursuant to the

1

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

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). By order dated March 14, 2018, the Board exercised its discretion and denied the request, finding
that the arguments presented on appeal could be adequately addressed based on a review of the case record. Order
Denying Oral Argument, Docket No. 17-2021 (issued March 14, 2018).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 23, 2015; and (2) whether appellant met
her burden of proof to establish continuing employment-related disability after March 23, 2015.
FACTUAL HISTORY
On November 13, 1974 appellant, then a 31-year-old secretary, filed a federal employee’s
notice of injury or occupational disease (CA-1 & CA-2 forms) alleging that working factors,
including 500 hours of overtime work performed from January 1972 to May 1973, and a pattern
of sexual harassment, intimidation, and threats by managers, caused stress, tension, nervous
exhaustion, and high blood pressure. She stopped work on May 16, 1973 and did not return.
In a report dated March 8, 1973, Dr. Arpad L. Masley, Jr., an attending Board-certified
surgeon, noted appellant’s history of cervical spine injuries sustained in a June 27, 1963
nonoccupational motor vehicle accident, and an emotional condition following the death of her
father in 1969, treated with medication. Appellant related that commencing in July 1972, she
experienced intractable headaches, nausea, anxiety, and severe tension due to her secretarial duties
at the employing establishment. Dr. Masley “advised a total disability retirement secondary to
psychiatric emotional disability precipitated by the tension of her job.” He referred appellant for
psychotherapy.
In a report dated March 10, 1973, Dr. Sean M. Killoran, an attending Board-certified
psychiatrist and neurologist, related appellant’s account of an increasingly hostile work
environment during the previous six months. On examination he noted appellant’s “preoccupation
with her unhappy employment” with feelings of persecution, depression, despair, and
hopelessness. Dr. Killoran diagnosed “[a]nxiety neurosis with depressive features and possible
paranoid decompensation.” He hospitalized appellant briefly in March 1973 due to an acute
episode of free-floating anxiety.
In a report dated April 9, 1973, Dr. Fred R. Lewis, an employing establishment physician,
noted that appellant had been working seven days a week in her secretarial position. Appellant
complained of weight loss, chronic headaches, nausea, and menorrhagia. Dr. Lewis diagnosed
chronic, severe depressive neurosis beginning in 1972. He found appellant disabled from work
for an indefinite period.
The employing establishment accepted appellant’s claim for disability retirement, effective
April 18, 1973. Appellant remained under medical treatment.

3

5 U.S.C. § 8101 et seq.

2

In a report dated February 23, 1974, Dr. Killoran diagnosed chronic severe depressive
neurosis. He found that appellant remained totally disabled from work.
On November 6, 1974 appellant filed a claim for compensation on account of injury or
occupational disease (Form CA-4, revised July 1970) commencing on her last day of work. The
employing establishment indicated that she had retired on May 16, 1973, and was in a leave
without pay (LWOP) status as of March 7, 1975.
In a July 9, 1976 statement, the employing establishment acknowledged that during the
Vietnam War, appellant had been responsible for “typing the most urgent items. At times there
was considerable pressure to get items typed so waterfront work was not delayed. Appellant was
also responsible for the large filing system” and the work of two to three other clerk-typists.
“During the period January 1, 1972 through May 16, 1973, [appellant] worked 500 hours of
overtime.”
On February 10, 1977 OWCP obtained a second opinion regarding causal relationship
between appellant’s emotional condition and the identified work factors from Dr. Hugo Van
Dooren, a Board-certified psychiatrist and neurologist. Dr. Van Dooren reviewed the medical
record and an August 2, 1976 statement of accepted facts (SOAF). On examination he noted that
appellant was “extremely anxious and quite tearful” during his interview, with a severely
depressed mood and affect. Dr. Van Dooren diagnosed severe depressive neurosis with a
psychosomatic gastrointestinal condition. He opined that appellant’s “psychiatric disorders are
causally related to her employment conditions” of excessive overtime, harassment, and sexual
harassment. Dr. Van Dooren found appellant totally and permanently disabled from work.
On March 4, 1977 OWCP accepted that appellant sustained depressive neurosis in the
performance of duty due to the work factors corroborated by the employing establishment.
Appellant elected to receive FECA benefits in lieu of Office of Personnel Management (OPM)
retirement benefits, effective March 7, 1973. OWCP paid her wage-loss compensation for total
disability retroactive to February 23, 1973, with an offset for Civil Service Retirement benefits
previously paid. It also paid medical benefits. Appellant remained under psychiatric treatment
with Dr. Killoran.
In a report dated November 13, 1978, Dr. Killoran agreed with Dr. Van Dooren’s
February 10, 1977 opinion. He noted that appellant presented with disfiguring scarring of the face
and chest due to dermatitis which had not been present during his prior consultations. Dr. Killoran
opined that appellant was “severely and permanently disabled from her neuropsychiatric disorder.”
He explained that although her symptoms had been brought under control, “the resulting aftermath
ha[d] been devastating in terms of her emotional development and stability.” Dr. Killoran opined
that “the stress she endured while working for the Federal Government was a large contributing
factor in her present symptom complex.
Dr. Killoran opined in a report dated March 6, 1989 that appellant continued to suffer from
“an atypical affective disorder associated with severe somatoform symptomatology and anxiety.”
Although her depression had improved, appellant had become severely withdrawn due to facial
disfigurement from dermatitis. Dr. Killoran found appellant totally disabled from work due to her
psychiatric conditions.

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In a report dated September 30, 1997, Dr. Killoran explained that while appellant’s
presentation remained unchanged, the diagnostic terminology for her condition had changed. “The
patient has been diagnosed as having a depressive neurosis, though the present DSM IV MultiAxial System would more accurately describe the condition that led to her decompensation as a
major depressive disorder, recurrent type, severe with transient psychotic features (296.34) and
associated anxiety. A secondary, but also extremely debilitating condition is the patient’s severe
neurodermatitis” being followed by a dermatologist. Despite a variety of medications, appellant
had “recurrent depressive symptoms and compulsive excoriation of her skin lesions.” Dr. Killoran
found appellant totally disabled from work.
In a work capacity evaluation, psychiatric/psychological conditions (OWCP-5a) report
dated September 8, 2000, Dr. Curtis H. Holder, an attending Board-certified psychiatrist, found
appellant totally disabled from work due to generalized anxiety disorder with atypical features
with stress-related neurodermatitis.
On February 8, 2002 OWCP obtained a second opinion on the causal relationship of
appellant’s continuing condition to the accepted depressive neurosis from Dr. Michael K.
Friedman, an osteopathic physician Board-certified in psychiatry. He opined that appellant
remained totally disabled from work due to depressive disorder not otherwise specified with
psychotic features, and rule out body dysmorphic disorder. Dr. Friedman found that these
conditions remained related, in part, to the accepted work factors.4
On December 6, 2012 OWCP obtained a second opinion regarding the nature and extent
of appellant’s ongoing condition from Dr. Jeffrey J. Hanson, a Board-certified psychiatrist, who
opined that the condition accepted as work related was no longer present. Dr. Hanson opined that
appellant’s ongoing condition was caused solely by an idiopathic personality disorder.
On June 13, 2013 OWCP obtained a second opinion regarding the nature and extent of
appellant’s ongoing condition from Dr. Mark Koenen, a Board-certified psychiatrist. Dr. Koenen
diagnosed recurrent, severe major depressive disorder with a reported history of psychotic features,
currently in partial remission. He opined that the accepted condition had not resolved. In an
August 1, 2013 supplemental report, Dr. Koenen clarified that any “stressors from the early 1970s
that exacerbated” underlying depression and anxiety “likely resolved decades ago.”

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By decision dated January 18, 2011, OWCP terminated appellant’s monetary compensation and medical benefits
based on the August 2010 opinion of Dr. Gary Hudak, a Board-certified psychiatrist and second opinion physician
who found the accepted condition had ceased without residuals. An OWCP hearing representative vacated the
termination by decision dated August 23, 2011, finding that Dr. Hudak was asked inappropriate leading questions.
The hearing representative directed that Dr. Hudak’s report be excluded from the case record. On October 13 and
November 10, 2011 OWCP obtained an updated second opinion from Dr. Douglas Robinson, a Board-certified
psychiatrist, but indicated that it would exclude his reports from the case record. By decision dated August 1, 2012,
it terminated appellant’s monetary compensation and medical benefits based on the March 3, 2012 opinion of
Dr. Daniel A. Kodner, a Board-certified psychiatrist and second opinion physician, who opined that the accepted
depressive neurosis had ceased with no residuals. On August 20, 2012 appellant, through counsel, requested an oral
hearing. By decision dated September 25, 2012, an OWCP hearing representative reversed OWCP’s August 1, 2012
decision, finding that OWCP had asked Dr. Kodner inappropriate leading questions. The hearing representative
further found that OWCP had committed reversible error by retaining Dr. Hudak’s and Dr. Robinson’s reports in the
case record. The hearing representative directed that Dr. Kodner’s report be excluded from the case record.

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In a SOAF dated October 9, 2013, OWCP noted that the following work factors had been
proven as factual and had occurred in the performance of duty: that appellant “was responsible
for typing most of the urgent items,” at times under considerable time pressure; that appellant was
responsible for a large filing system; that appellant was responsible for the work of two to three
other clerk-typists; and that appellant worked 500 hours of overtime between January 1972 and
May 1973. It noted that it had accepted that appellant sustained depressive neurosis in the
performance of duty.
On December 2, 2014 OWCP formulated questions to be posed to a new second opinion
physician to determine whether appellant “continue[d] to suffer the effects of her May 16, 1973
accepted industrial injury.” Question 4 asked “what medical rationale or evidence is there to
support that [appellant’s current condition is still connected to the May 16, 1973 industrial injury.”
Question 5 inquired as to whether it was necessary for OWCP to “separate out the extent of the
accepted disability” from “other medical conditions or personal problems.”
On January 8, 2015 OWCP obtained a second opinion regarding the nature and extent of
appellant’s ongoing condition from Dr. Michael Ruthrauff, a Board-certified psychiatrist.
Dr. Ruthrauff reviewed the medical record and October 9, 2013 SOAF. On examination he
observed mild psychomotor retardation, blunted and restricted affect, and fair insight and
judgment. Dr. Ruthrauff noted that appellant was no longer taking psychotropic medications or
under psychiatric treatment. He diagnosed recurrent, severe major depressive disorder with a
reported history of psychotic features, currently in partial remission, a possible chronic dysthymic
disorder, a resolved past history of benzodiazepine dependence, and passive dependent personality
traits. In response to the December 2, 2014 questions, Dr. Ruthrauff opined that appellant had
“chronic dysthymic disorder, which is more similar to the old category of depressive neurosis.”
He explained that, while the depressive neurosis remained present, it was “difficult to believe that
at this time 40 years later that her present degree of disability is related to the original work stress
back in 1970s” or “the original occupational incident of May 16, 1973.” Dr. Ruthrauff elaborated
that “[s]olely as it pertains to the industrial incident of May 16, 1973 she is capable of full-time
gainful employment without restrictions, although from an unrelated standpoint she may not be
and likely is completely disabled.”
By notice dated February 3, 2015, OWCP notified appellant of its proposal to terminate
her wage-loss compensation and medical benefits as Dr. Ruthrauff’s report indicated that the
accepted depressive neurosis had ceased without residuals. It afforded her 30 days to submit
additional evidence or argument. Appellant did not submit additional evidence within the time
allotted.
By decision dated March 23, 2015, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that date as the accepted depressive neurosis had ceased without
residuals. It accorded Dr. Ruthrauff the weight of the medical evidence.
On April 14, 2015 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review, held by video conference on February 22, 2017. During the
hearing, counsel contended that the questions posed to Dr. Ruthrauff inaccurately attributed the
accepted condition to a single May 16, 1973 incident, and inappropriately asked him to apportion
causation between the accepted condition and idiopathic problems. Counsel also argued that new

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medical evidence from Dr. Antone B. Pryor, an attending licensed clinical psychologist, created a
conflict of medical opinion with Dr. Ruthrauff’s report. He submitted additional evidence.
In an April 1, 2015 report of a March 26, 2017 examination, Dr. Pryor reviewed
Dr. Ruthrauff’s January 8, 2015 report and disagreed with his conclusion that appellant’s condition
was no longer work related. He noted that Dr. Ruthrauff failed to provide “objective assessment
data” or probative medical rationale to differentiate between any underlying psychiatric condition
and the effects of the accepted depressive neurosis. Dr. Pryor contended that Dr. Ruthrauff also
failed to explain why he disagreed with Dr. Killoran’s consistent support for causal relationship
over a 24-year period.
By decision dated April 3, 2017, OWCP’s hearing representative affirmed OWCP’s
March 23, 2015 decision which terminated appellant’s wage-loss compensation and medical
benefits. The hearing representative found that Dr. Pryor’s report contained insufficient medical
rationale to create a conflict with Dr. Ruthrauff’s well-rationalized opinion.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to
justify modification or termination of benefits.5 Having determined that an employee has a
disability causally related to his federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.6 Its burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.8 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.9
OWCP’s procedures provide, “[w]hen the DMA [district medical adviser], second opinion
specialist or referee physician renders a medical opinion based on a SOAF which is incomplete or
inaccurate or does not use the SOAF as the framework in forming his or her opinion, the probative
value of the opinion is seriously diminished or negated altogether.”10

5

Y.D., Docket No. 17-0461 (issued July 11, 2017); Bernadine P. Taylor, 54 ECAB 342 (2003).

6

Id.

7

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

8

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

9

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

10
Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600(3)
(October 1990). Y.D., supra note 5.

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ANALYSIS
The Board finds that OWCP did not meet its burden of proof to justify termination of
appellant’s wage-loss compensation and medical benefits.
OWCP accepted that appellant sustained depressive neurosis due to overwork and being
required to meet tight deadlines in the performance of duty from January 1972 to May 1973. By
decision dated March 23, 2015, it terminated appellant’s wage-loss compensation and medical
benefits effective that day based on the opinion of Dr. Ruthrauff, a Board-certified psychiatrist
second opinion physician. OWCP’s hearing representative affirmed the March 23, 2015
termination decision on April 3, 2017.
The Board finds, however, that the termination was improper as Dr. Ruthrauff’s opinion
was not based on the SOAF provided to him. To assure that the report of a medical specialist is
based upon a proper factual background, OWCP provides information to the physician through the
preparation of a SOAF.11 The SOAF provided to Dr. Ruthrauff indicated correctly that appellant’s
accepted depressive neurosis was caused by a pattern of overwork and meeting deadlines from
January 1972 to May 1973. Dr. Ruthrauff was therefore required to base his opinion on the work
factors noted in the SOAF which were found to have caused the accepted emotional condition.
Instead, he opined that it was “difficult to believe” that appellant’s condition continued to be
related to the “original occupational incident of May 16, 1973.” He found appellant capable of
full-time employment “[s]olely as it pertains to the industrial incident of May 16, 1973.”
Dr. Ruthrauff did not explain whether appellant remained disabled from work due to the accepted
work factors.
The Board notes that the list of questions provided to Dr. Ruthrauff referred twice to a
“May 16, 1973 industrial injury,” implying that a single traumatic incident caused appellant’s
depressive neurosis. The questions were thus phrased inaccurately. Nevertheless, OWCP
instructed Dr. Ruthrauff to frame his opinion within the history provided by the SOAF, not the list
of questions. As he failed to do so, Dr. Ruthrauff’s opinion is of diminished probative value and
insufficient to represent the weight of the medical evidence.12
The Board also notes that Question 5 asked Dr. Ruthrauff whether it was necessary for
OWCP to “separate out the extent of the accepted disability” from idiopathic conditions or
nonindustrial stressors. However, there is no apportionment under FECA.13 Any contribution to
appellant’s continuing condition by the accepted work factors would render her ongoing condition
compensable.14

11

Federal (FECA) Procedure Manual, Chapter 3.600(3) (October 1990).

12

Y.D., supra note 5.

13

G.G., Docket No. 17-0504 (issued August 8, 2017); Beth C. Chaput, 37 ECAB 158 (1985) (it is not necessary to
show a significant contribution of employment factors to a diagnosed condition to establish causal relationship).
14

Id.

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For the above reasons, the Board finds that OWCP has not met its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits, effective March 23, 2015.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective March 23, 2015. In light of the Board’s
disposition on the first issue, the second issue is moot.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated April 3, 2017 is reversed.
Issued: August 8, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albany, NY, Employer
__________________________________________

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Appearances:
Katherine Smith, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1176
Issued: December 22, 2011

Case Submitted on the Record

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

JURISDICTION
On April 14, 2011 appellant, through his attorney, filed a timely appeal of an October 22,
2010 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed an
emotional condition in the performance of duty due to factors of his federal employment.
On appeal, counsel argued that the employing establishment erred in issuing a
disciplinary action as found by the arbitrator and that appellant established a compensable factor
of employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 5, 2009 appellant then a 42-year-old custodian, filed an occupational disease
claim alleging that he developed an aggravation of severe depression, anxiety and post-traumatic
stress disorder due to his improper termination on June 20, 2007. He submitted a note from his
physician, Dr. Kevin W. George, a psychiatrist, diagnosing depressive disorder, anxiety disorder
and post-traumatic stress disorder. Dr. George stated that appellant had difficulty dealing with
being fired from the employing establishment.
Appellant submitted an opinion and award of arbitrator dated June 8, 2007 addressing the
issue of whether the employing establishment had just cause to issue discipline including the
suspension from June 19 through October 3, 2006. The employing establishment issued a notice
of removal to him on May 18, 2006 based on the charges of unacceptable conduct, failure to
work in a safe manner, unauthorized usage of postal equipment, failure to follow instructions and
failure to work for a fair days pay.
On April 9, 2006 appellant’s supervisor found him in a locked room, sitting in a chair
with his shoes off defragmenting his computer and watching a DVD on a postal computer.
Appellant was not authorized to be in the room and was not on break. He then left the
employing establishment on nine different occasions after being advised to remain in his work
area. The employing establishment reduced the notice of removal to a time-served suspension or
105 days. The union alleged: that appellant was newly hired on February 2, 2006; that he was
not on the workroom floor without his shoes; that he had no prior discipline; and that he was
never told that the locked room was off limits.
The arbitrator found that appellant’s grievance must be sustained. He found that the
employing establishment had failed to establish two of the charges in the notice of removal, but
had established unacceptable conduct, failure to follow instruction and failure to provide a fair
days work for a fair days pay. The arbitrator noted that the employing establishment reduced the
notice of removal as appellant had no prior discipline. He further found that the length of the
suspension was excessive and that the action was therefore punitive and not corrective. The
arbitrator reduced the suspension from 105 days without pay to 7 days. He stated that the
employing establishment failed to establish by the preponderance of the credible evidence that it
had just cause to issue the suspension from June 19 to October 3, 2006.
In a letter dated September 29, 2006, the employing establishment unilaterally reduced
his removal action to a time served suspension and directed appellant to report to work on
October 3, 2006. On December 27, 2007 it proposed to separate him on the grounds that he
could not met the requirements of his position. The employing establishment issued a disability
separation decision on January 18, 2009.
OWCP referred appellant for a second opinion evaluation on August 12, 2009. It asked
that the physician answer whether appellant developed an emotional condition as a result of the
notice of removal that was changed to a time service suspension, whether he developed an
emotional condition was a result of the termination of his employment and whether he was
disabled for any period due to emotional condition. In a report dated September 3, 2009, a
Dr. Melvin J. Steidhart, noted the history of injury and diagnosed adjustment disorder with

2

depression and anxiety due to his termination from his job with the employing establishment. He
stated that appellant had been disabled for two years but was not currently disabled.
Dr. Steidhart completed a work capacity evaluation and indicated that appellant could work eight
hours a day, but stated that the job was the source of his stress and that it would be ill-advised for
him to return to his job. He stated that appellant could work anywhere other than the employing
establishment.
By decision dated October 14, 2009, OWCP denied appellant’s claim. It accepted as a
compensable factor of employment that the letter of removal was reduced to a time served
suspension. However, OWCP found that the termination of appellant’s employment was not in
the performance of duty. It relied on Dr. Steidhart’s report noting that appellant’s diagnosed
conditions were due to his termination from the employing establishment.
Appellant requested an oral hearing on November 6, 2009. Counsel argued that OWCP
incorrectly interpreted the medical evidence and incorrectly found that the final termination from
the employing establishment was not compensable.
In a decision dated February 18, 2010, the Branch of Hearings and Review remanded the
case to OWCP for additional factual and medical development.
In a letter dated March 8, 2010, OWCP requested additional factual evidence from
appellant regarding the factors to which he attributed his emotional condition. Appellant did not
respond. By decision dated May 7, 2010, OWCP denied his claim stating that he did not respond
to the requests for additional factual evidence that is necessary to determine if he had any
compensable factors of employment. Appellant requested a review of the written record on
June 4, 2010. Counsel argued that she had responded in a letter dated April 30, 2010 and stated
that the claims examiner failed to properly consider the arbitrator’s finding of the excessive and
punitive discipline by the employing establishment which established error and abuse by the
employing establishment.
The employing establishment submitted a letter dated September 16, 2010 relating facts
in the case including appellant’s notice of removal in 2006, the unilateral reduction to a time
served suspension, the reduction by the arbitrator of the 105-day suspension to 7 days. It argued
that there was no error or abuse in the issuance of the notice of removal or the 105-day
suspension as the employing establishment had done a good faith analysis. Counsel responded
on September 21, 2010 and stated that, although some discipline was warranted, the employing
establishment erred in issuing the notice of removal and the 105-day suspension time served.
She alleged that the seven-day suspension issued by the arbitrator was appropriate and that if the
employing establishment had issued appropriate discipline appellant would not have developed
his emotional condition. Counsel argued that his psychological injury was the direct result of the
employing establishment’s error in issuing excessive and punitive discipline.
By decision dated October 22, 2010, the hearing representative found that appellant’s
reaction to the disciplinary action was not a compensable factor and that the arbitrator’s decision
did not establish error or abuse on the part of the employing establishment.

3

LEGAL PRECEDENT
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,2 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.3 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.4 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.5 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
person injury sustained in the performance of duty within the meaning of FECA. Thus disability
is not covered when it results from an employee’s fear of a reduction-in-force, nor is disability
covered when it results from such factors as an employee’s frustration in not being permitted to
work in a particular environment or to hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.7 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.8 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.9
ANALYSIS
The Board finds that this case is not in posture for decision. Appellant filed an emotional
condition claim alleging that he developed depression, anxiety and post-traumatic stress disorder
2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Robert W. Johns, 51 ECAB 136 (1999).

5

Cutler, supra note 2.

6

Id.

7

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

8

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
9

Roger Williams, 52 ECAB 468 (2001).

4

as a result of his notice of removal and 105-day suspension without pay. In support of his claim
he submitted medical evidence diagnosing emotional conditions and an arbitrator’s decision
finding that his grievance should be upheld as the employing establishment improperly issued
the letter of removal and improperly unilaterally changed the letter of removal to a 105-day
suspension of pay.
In Thomas D. McEuen, the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
under FECA as such matters pertain to procedures and requirements of the employer and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the factual circumstances surrounding the administrative
or personnel action established error or abuse by the employing establishment’s superiors in
dealing with the claimant. Absent evidence of such error or abuse, the resulting emotional
condition must be considered self-generated and not employment generated. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.10
The Board finds that the employing establishment committed error in the administrative
actions of issuing the letter of removal. The record establishes that appellant’s actions were
worthy of discipline, however, the arbitrator found that the notice of removal was inappropriate
as appellant had no prior disciplinary actions on his record and as the employing establishment
did not establish two of the charges. The Board finds that he has established compensable
factors of employment in regard to the initial notice of removal which apparently required a
history of prior disciple. The employing establishment knew or should have known that its
notice of removal was not justified in the facts of appellant’s employment.
As appellant has alleged and substantiated error or abuse on the part of the employing
establishment in its notice of record, he has established a compensable factors of employment
and OWCP must now consider the medical evidence.11 The case is remanded to OWCP for this
purpose. After such further development as deemed necessary, OWCP should issue an
appropriate decision on this claim.12
The Board finds that appellant has established compensable factors of employment as
argued by counsel on appeal.
CONCLUSION
Appellant has established a compensable factor of employment and the case must be
remanded for development of the medical evidence.

10

See M.D. 59 ECAB 211 (2007); Richard J. Dube, 42 ECAB 916, 920 (1991).

11

The Board notes that OWCP initially referred appellant to a second opinion physician, but that Dr. Steidhart did
not address the questions posed.
12

Tina E. Francis, 56 ECAB 180 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development.
Issued: December 22, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MARION VETERANS CENTER, Marion, IN,
Employer
__________________________________________

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

Docket No. 11-1051
Issued: October 25, 2011

Case Submitted on the Record

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

JURISDICTION
On March 15, 2011 appellant filed a timely appeal from the February 15, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
merit review. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit decision. The last merit
decision of record was the November 3, 2009 decision of OWCP. Because more than 180 days
elapsed between this decision to the filing of the appeal on March 15, 2011, the Board lacks
jurisdiction to review the merits of this claim.2

1
2

20 C.F.R. § 8101 et seq.

For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal
of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20
C.F.R. §§ 501.2(c) and 501.3.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
OWCP accepted that appellant sustained sciatica of the left side and a herniated disc at
L5-S1 due to running to answer a code blue alarm. On February 16, 1999 she underwent
discectomy surgery at L4-5 which was authorized by OWCP. Appellant received wage-loss
compensation for periods of disability.
In January 2000, appellant filed a claim for a schedule award due to her accepted work
injuries. In a January 30, 2002 decision, OWCP granted her a schedule award for a four percent
permanent impairment of her left leg. The award was based on an opinion of Dr. Jeffrey K.
Kachmann, an attending Board-certified neurosurgeon.
In an August 27, 2007 report, Dr. Kachmann determined that appellant had a 33 percent
permanent impairment of her left leg. OWCP found that he did not adequately explain how he
rated this impairment rating and referred her to Dr. Charles Kershner, a Board-certified
orthopedic surgeon, for further evaluation and an opinion on impairment. In a January 22, 2008
report, Dr. Kershner determined that appellant had a 29 percent permanent impairment of “both
lower extremities” under the standards of the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (5th ed. 2001).
In a December 17, 2008 decision, OWCP granted appellant schedule awards for an
additional 25 percent permanent impairment of her left leg and a 29 percent permanent
impairment of her right leg. The awards were based on the January 22, 2008 report of
Dr. Kershner.
In a January 13, 2009 report, Dr. Kershner clarified that his January 22, 2008 report
denoted 29 percent impairment as a combined value for both legs. There is no indication in the
record that this report was solicited by OWCP.3 In a February 10, 2009 report, an OWCP
medical adviser determined that the examination findings of Dr. Kershner did not show any
impairment in appellant’s legs noting that the physician used a table of the A.M.A., Guides
intended for the evaluation of impairment of the back.
OWCP referred appellant to Dr. Alois E. Gibson, a Board-certified orthopedic surgeon,
for further evaluation of her leg impairment. In an April 28, 2009 report, Dr. Gibson determined
that appellant had a nine percent permanent impairment of her left leg and a nine percent
permanent impairment of her right leg under the standards of the sixth edition of the A.M.A.,
Guides.

3

In a March 24, 2009 letter to appellant, an OWCP official stated with respect to the January 13, 2009 report of
Dr. Kershner, “The report was apparently obtained by your employing agency without our knowledge.”

2

In a November 3, 2009 decision, OWCP amended the December 17, 2008 decision. It
granted appellant a schedule award for a five percent permanent impairment of her left leg and a
nine percent permanent impairment of her right leg.4
In a February 7, 2011 letter, received on February 10, 2011, appellant stated that she
realized that the time frame for a challenge had passed but “requested reconsideration because of
medical issues. She received OWCP’s November 3, 2009 decision, the same month that her
90-year-old mother became extremely ill. Appellant’s mother was in and out of the hospital for
months and passed away early in 2010. Appellant noted that the health of her 94-year-old father
started to decline and he also needed care prior to his death later in 2010. Her husband was also
hospitalized to rule out cardiac problems and most recently her son had lower back problems that
required medical and surgical care. Appellant stated that she was working on a full-time basis
and was trying to care for her family. She stated that OWCP concerns, were not at the top of her
“to do list.” Appellant indicated that an OWCP official told her that it frequently took medical
issues in to account in the appeal process. She stated, “I feel that an injustice was done to me
and would like to appeal the amended award, but I need a waiver for the listed time frame.”
Appellant did not submit any evidence in support of her reconsideration request.
In a February 15, 2011 decision, OWCP denied appellant’s request for further review of
the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error. It found that she requested reconsideration in a February 7,
2001 letter received more than one year after the issuance of its November 3, 2009 decision and
her application for review did not establish clear evidence of error in that decision.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.5
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.6
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes “clear
evidence of error.”7 OWCP regulations and procedure provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in

4

OWCP noted that, on January 30, 2002, appellant had received a schedule award for a four percent permanent
impairment of her left leg.
5

20 C.F.R. § 10.607(a).

6

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

7

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

3

20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of error” on
the part of OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.13
ANALYSIS
In its February 15, 2011 decision, OWCP properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request was filed on
February 10, 2011, more than one year after OWCP’s November 3, 2009 decision and therefore
she must demonstrate clear evidence of error on the part of OWCP in issuing this decision.
In connection with her untimely reconsideration request, appellant asserted that medical
problems of family members prevented her from requesting reconsideration of her claim at an
earlier date and requested a waiver of the time frame for reconsideration. However, she did not
identify any basis on which the one-year time period for filing a timely reconsideration request
should be waived in her case. More importantly, appellant’s argument does not tend to show that
OWCP erred in issuing its December 3, 2009 schedule award decision because the relevant issue
of the present case, i.e., the extent of her permanent leg impairment, is medical in nature and
generally would be resolved by the submission of probative medical evidence. She did not
submit any evidence in connection with her reconsideration request. On appeal, appellant argued
that an agency official improperly contacted an OWCP referral physician and OWCP improperly
used a supplemental report produced by that physician to further develop her claim. However,
she did not identify any relevant precedent, combined with the evidence of record that would
clearly show that OWCP improperly developed her claim for schedule award compensation.
This argument would not tend to show that OWCP’s November 3, 2009 decision was in error.

8

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c)
(January 2004). OWCP procedure further provides, “The term ‛clear evidence of error’ is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made an error (for
example, proof that a schedule award was miscalculated).”
9

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

10

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

11

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

12

See Leona N. Travis, supra note 10.

13

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

4

For these reasons, appellant has not demonstrated clear evidence of error on the part of
OWCP in issuing its November 3, 2009 decision. She did not submit the type of positive,
precise and explicit evidence which manifests on its face that OWCP committed an error. The
argument submitted by appellant does not raise a substantial question concerning the correctness
of OWCP’s November 3, 2009 decision and OWCP properly determined that she did not show
clear evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 13-1987
Issued: January 16, 2014

Case Submitted on the Record

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

JURISDICTION
On August 28, 2013 appellant filed a timely appeal from a March 4, 2013 merit decision
and a July 2, 2013 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.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on December 21, 2012; and (2) whether
OWCP properly denied appellant’s request for review of the written record as untimely filed
under 5 U.S.C. § 8124.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its July 2, 2013 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to
OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).

FACTUAL HISTORY
On December 23, 2012 appellant, then a 62-year-old city mail carrier, filed a traumatic
injury claim (Form CA-1) alleging that on December 21, 2012 he sustained a left knee strain
when he twisted his knee when stepping on a curb. He notified his supervisor, stopped work and
first sought medical treatment on December 22, 2012.
A December 22, 2010 emergency room (ER) note and Duty Status Report (Form CA-17)
were submitted by Crystal Mumford, a physician’s assistant, which provided appellant with work
restrictions.
In a December 22, 2012 medical report, Dr. Andrea Allman, a physician of osteopathic
medicine, reported that appellant presented to the ER with left knee pain. She noted that his
current episode started the previous day and that the problem occurred constantly. Dr. Allman
further stated that appellant was on his mail route the day before when he stepped up on a curb
and twisted his left knee, causing a sharp pain. Appellant complained of pain in his left knee
when bending and weight bearing. Physical examination of the left knee revealed normal range
of motion, no swelling, no effusion, no ecchymosis, no deformity, no laceration, no erythema,
normal alignment, no lateral collateral ligament (LCL) laxity, normal patellar mobility, no bony
tenderness, normal meniscus and no medial collateral ligament (MCL) laxity. Dr. Allman
diagnosed left knee pain.
By letter dated January 24, 2013, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised of the medical evidence needed and
asked that his physician submit a narrative medical report within 30 days.
In support of his claim, appellant submitted a January 28, 2013 Form CA-17 signed by a
physician’s assistant,3 January 3 and February 3, 2013 notes diagnosing left knee strain from
Judy Kammra, another physician’s assistant, and a February 20, 2013 therapy note from
Christina Kline, a physical therapist.
By decision dated March 4, 2013, OWCP denied appellant’s claim on the grounds that
the evidence was insufficient to establish that he sustained an injury because he did not submit
any medical evidence containing a medical diagnosis in connection with the accepted
December 21, 2012 employment incident.
In an appeal request form received on April 8, 2013, appellant requested review of the
written record.
In support of his claim, appellant resubmitted medical evidence already of record as well
as CA-17 forms dated January 3 to February 5, 2013 providing work restrictions from
Dr. Daniel P. Stewart, Board-certified in emergency medicine. In a February 5, 2013 note,
Dr. Stewart diagnosed left knee strain.4

3

The signature is illegible.

4

The reports of Dr. Stewart were co-signed by PA Kammra.

2

By decision dated July 2, 2013, the Branch of Hearings and Review denied appellant’s
request for review of the written record finding that his request was not made within 30 days of
the March 4, 2013 OWCP decision.5 The Branch of Hearings and Review further determined
that the issue in the case could equally well be addressed by requesting reconsideration from
OWCP and submitting evidence not previously considered which establishes that he sustained an
injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.7
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.8 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.9 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.10
5

The Branch of Hearings and Review noted that appellant’s request for review was received on April 8, 2013.
The original envelope was scanned into the iFECS record but the postmark was illegible after scanning. It noted
that the filing date used in the decision was the date stamped by the Branch of Hearings and Review.
6

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

7

Michael E. Smith, 50 ECAB 313 (1999).

8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

10

James Mack, 43 ECAB 321 (1991).

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ANALYSIS -- ISSUE 1
OWCP accepted that the December 21, 2012 incident occurred as alleged. The issue,
therefore, is whether appellant submitted sufficient medical evidence to establish that the
employment incident caused a left knee injury. The Board finds that he did not submit sufficient
medical evidence to support that he sustained an injury causally related to the December 21,
2012 employment incident.11
In a December 22, 2012 medical report, Dr. Allman reported that appellant presented to
the emergency room with a current episode of left knee pain which had started when appellant
was on his mail route the previous day, stepped on a curb and twisted his left knee. She noted
that appellant had a history of constant knee pain. Dr. Allman’s physical examination revealed
no abnormality of the left knee. She diagnosed left knee pain and failed to provide a firm
medical diagnosis of appellant’s left knee condition. Dr. Allman’s diagnosis of left knee pain is
a description of a symptom rather than a clear diagnosis of a compensable medical condition.12
Her report does not constitute probative medical evidence because she fails to provide a clear
diagnosis and does not adequately explain the cause of appellant’s injury.13 The Board notes that
Dr. Allman’s report fails to provide a rationalized medical opinion causally relating a diagnosed
condition to factors of employment and is therefore of little probative value.
The remaining medical evidence of record is also insufficient to establish a diagnosed
condition causally related to the December 21, 2012 employment incident. The treatment notes
and CA-17 forms from Ms. Mumford and Ms. Kammra; as well as Ms. Kline are of no probative
value. Registered nurses, licensed practical nurses, physician’s assistants, physical and
occupational therapists, are not “physicians” as defined under FECA. Their opinions are
therefore of no probative value.14 The Board notes that it is well established that a physician’s
signature is required on a report in order for it to be considered as medical evidence.15 In the
instant case, the record is without rationalized medical evidence establishing a diagnosed
medical condition causally related to the accepted December 21, 2012 employment incident.
Thus, appellant has failed to establish his burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

11

See Robert Broome, 55 ECAB 339 (2004).

12

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. C.F.,
Docket No. 08-1102 (issued October 10, 2008).
13

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

14

5 U.S.C. § 8102(2) of FECA provides as follows: (2) ‘physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law.
15

B.M., Docket No. 11-725 (issued February 17, 2012).

4

LEGAL PRECEDENT -- ISSUE 2
A claimant for compensation not satisfied with a decision by OWCP is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.16 According to 20 C.F.R. § 10.615, a claimant
shall be afforded a choice of an oral hearing or a review of the written record.17 The regulations
provide that a request for a hearing or review of the written record must be made within 30 days
as determined by the postmark or other carrier’s date marking, of the date of the decision.18 A
claimant is not entitled to a hearing or a review of the written record as a matter of right if the
request is not made within 30 days of the date of OWCP’s decision.19 OWCP has discretion,
however, to grant or deny a request that is made after this 30-day period.20 In such a case, it will
determine whether to grant a discretionary hearing and, if not, will so advise the claimant with
reasons.21
ANALYSIS -- ISSUE 2
In the present case, appellant requested review of the written record and OWCP found
that the reconsideration request was received on April 8, 2013.22 His request was made more
than 30 days after the date of issuance of OWCP’s prior decision dated March 4, 2013.
Therefore, OWCP properly found in its July 2, 2013 decision that appellant was not entitled to an
oral hearing or examination of the written record as a matter of right because his request for
review of the written record was not made within 30 days of its March 4, 2013 decision.23
OWCP, however, has the discretionary authority to grant a hearing if the request was not
timely filed. In its July 2, 2013 decision, it considered the issue involved and properly exercised
its discretion when it denied appellant’s hearing request and determined that he could equally
well address the issue of establishing a diagnosed condition causally related to the December 21,
2012 incident by requesting reconsideration and submitting new evidence. The Board has held
that the only limitation on OWCP’s authority is reasonableness. Abuse of discretion is generally
shown through proof of manifest error, clearly unreasonable exercise of judgment or actions
taken which are contrary to both logic and probable deduction from established facts.24 In the
16

5 U.S.C. § 8124(b)(1).

17

20 C.F.R. § 10.615.

18

Id. at § 10.616(a).

19

See James Smith, 53 ECAB 188 (2001).

20

Herbert C. Holley, 33 ECAB 140 (1981).

21

Id.

22

The Board notes that though the postmark date from appellant’s appeal request form was not legible after it was
scanned into the iFECS system, the Branch of Hearings and Review documented the April 8, 2013 received date as
evidence of the date of appeal. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of
the Written Record, Chapter 2.1601.4(a) (October 2011) (If the postmark is not legible, the request will be deemed
timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is untimely).
23

Id.

24

Teresa M. Valle, 57 ECAB 542 (2006); Daniel J. Perea, 42 ECAB 214 (1990).

5

present case, OWCP did not abuse its discretion in denying a discretionary hearing and properly
denied appellant’s request for a hearing under section 8124 of FECA.25
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
developed a left knee injury in the performance of duty on December 21, 2012. The Board also
finds that OWCP properly denied his request for review of the written record as untimely.
ORDER
IT IS HEREBY ORDERED THAT the July 2 and March 4, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 16, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

25

See Hubert Jones, Jr., 57 ECAB 467 (2006); D.F., Docket No. 11-42 (issued August 1, 2011).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, NORTHERN
ILLINOIS PERFORMANCE CLUSTER,
Carol Stream, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-610
Issued: August 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 26, 2007 appellant filed a timely appeal of the November 29, 2007 merit
decision of the Office of Workers’ Compensation Programs, which found that she received an
overpayment of compensation, and an April 30, 2007 Office hearing representative’s schedule
award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUES
The issues are: (1) whether appellant has established more than 15 percent right upper
extremity impairment and more than 10 percent left upper extremity impairment, for which she
received schedule awards; (2) whether appellant received an overpayment of $4,852.01 for the
period November 20, 2004 through July 8, 2006; and (3) whether the Office properly denied
waiver of the overpayment.

FACTUAL HISTORY
On September 4, 2003 appellant, a 39-year-old mail processor clerk, filed an
occupational disease claim for bilateral wrist and arm pain she attributed to her employment.
The Office accepted her claim for bilateral carpal tunnel syndrome, bilateral tendinitis of the
hands and wrists, and bilateral cubital tunnel syndrome and paid appropriate benefits.1 Appellant
was unable to work from November 2003 through September 2004 as a result of several
surgeries to her hands. She returned to work in a limited-duty position.
On April 20, 2005 appellant filed a Form CA-7 claim for a schedule award. In an
April 13, 2005 report, Dr. Jacob Salomon, a general surgeon, reviewed medical records and set
forth his examination findings of November 20, 2004. He opined that appellant had 34 percent
left arm impairment and 22 percent right arm impairment under the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). Dr. Salomon
advised that appellant had de Quervain’s syndrome and arthritis of the thumbs and included such
conditions in the impairment rating.
The Office forwarded Dr. Salomon’s report, together with the medical evidence of file
and a statement of accepted facts, to an Office medical adviser for review. In an October 9, 2005
report, the Office medical adviser found that appellant reached maximum medical improvement
on November 20, 2004, the date of Dr. Salomon’s examination. Based on the findings contained
in Dr. Salomon’s April 13, 2005 report, the Office medical adviser opined that appellant had 21
percent right arm impairment and 14 percent left arm impairment.
By decision dated November 22, 2005, the Office granted appellant schedule awards for
21 percent right upper extremity impairment and 14 percent left upper extremity impairment.
The period of the schedule award was 109.20 weeks, from November 20, 2004 through
December 24, 2006.
Appellant disagreed with the Office’s November 22, 2005 decision and requested an oral
hearing before an Office hearing representative. By decision dated March 2, 2006, an Office
hearing representative found the case not in posture for decision due to a medical conflict
between Dr. Salomon and the Office medical adviser. The hearing representative found that,
while the medical adviser based his opinion on the physical findings noted in Dr. Salomon’s
report, he did not address why he disagreed with Dr. Salomon’s impairment rating. The hearing
representative further noted that there was no indication that the Office had accepted appellant’s
de Quervain’s syndrome and arthritis of the thumbs as work related, thus clarification was
needed with respect to bilateral thumb impairment. The case was remanded to the Office for
referral to an impartial medical examiner.
The Office referred appellant, together with a copy of the medical record, a statement of
accepted facts, and a list of questions, to Dr. Mukund Komanduri, a Board-certified orthopedic
1

The record reflects appellant had five separate surgeries, including the carpal tunnel release of the right hand,
carpal tunnel release of the left hand, two separate de Quervain’s releases, and revision of her keloid scar of her right
wrist.

2

surgeon, for an impartial medical evaluation to assess appellant’s bilateral upper extremity
impairment pursuant to the A.M.A., Guides. In a May 2, 2006 report, Dr. Komanduri noted the
history of injury, his review of the medical record, and presented findings on examination. He
noted a substantial diminishment of grip strength and thenar atrophy, as well as weakness of her
thumb abductors. Tenderness and pain over all of her incisions and scars with a positive Tinel’s
sign over her right cubital tunnel was also noted. Appellant had chronic fatigue and pain and
discomfort associated with her eight-hour workday. Examination findings revealed abductor
pollicis brevis (APB) strength in both hands as 4/5, full motion of the metacarpophalangeal (MP)
thumb joints and interphalangeal (IP) joints and full adduction in both thumbs. Both wrists had a
mildly positive Finkelstein maneuver, with full flexion of 60 degrees and full extension of 70
degrees, and full supination and pronation. Radial and ulnar deviation was normal.
Dr. Komanduri advised that appellant’s multiple levels of nerve entrapment and tendon
triggering were a classic picture for other causes, such as an autoimmune disorder,
hypothyroidism, diabetes or obesity. He advised that, until those conditions have been proven
not to exist, he could not assign causality to all of appellant’s complaints. Dr. Komanduri stated
that it was reasonable to assign causality for her carpal tunnel syndrome to her work activities
and possibly even the de Quervain’s tenosynovitis. However, he opined that the cubital tunnel
syndrome, which was only confirmed in the right elbow, the alleged lateral epicondylitis and
shoulder pain were not causally connected to her work activities at this time. Dr. Komanduri
stated that appellant reached maximum medical improvement on or about January 2005. He
further stated that his findings, in correlation with A.M.A., Guides, were substantially less than
that reported by Dr. Salomon and opined that he would rate such deficits as 11 percent of the
right arm and 7 percent of the left arm.
In a July 18, 2006 report, an Office medical adviser opined that appellant had a 15
percent impairment of the right arm and a 10 percent impairment of the left arm based on the
findings contained in Dr. Komanduri’s May 2, 2006 report. He noted that the range of motion
findings for both the thumb and wrist on both sides were documented as full in Dr. Komanduri’s
report as therefore resulted in no impairment. For the finding of loss of strength of 4/5 of the
APB, the medical adviser awarded three percent impairment for both the left and right arms
under Table 16-11, page 484 and Table 16-15, page 492 of the A.M.A., Guides. For
impairments due to pain in the right arm, he awarded 12 percent impairment. Under Table 1610, page 482 and Table 16-15, page 492 of the A.M.A., Guides, the medical adviser calculated a
two percent impairment resulting from a Grade 3 sensory deficit in the distribution of the dorsal
radial sensory nerve branch to the wrist; five percent impairment resulting from Grade 4 sensory
deficit in the distribution of the median nerve, and five percent impairment resulting from a
Grade 4 sensory deficit in the distribution of the ulnar nerve. Utilizing the Combined Values
Chart, he found that appellant had 12 percent right arm impairment from pain/sensory deficits.
For impairments due to pain in the left arm, the medical adviser awarded seven percent
impairment. Under Table 16-10, page 482 and Table 16-15, page 492 of the A.M.A., Guides, he
calculated two percent impairment resulting from a Grade 3 sensory deficit in the distribution of
the dorsal radial sensory nerve branch to the wrist and five percent impairment resulting from
Grade 4 sensory deficit in the distribution of the ulnar nerve. Utilizing the Combined Values
Chart, the medical adviser found that appellant had seven percent right arm impairment from
pain/sensory deficits. He used the Combined Values Chart to find 15 percent right arm
impairment and 10 percent left arm impairment. The medical adviser stated that, under page 494

3

of the A.M.A., Guides, additional impairment values are not given for decreased grip in
compression neuropathies. He additionally advised that maximum medical improvement was
obtained on November 20, 2004, as previously reported.
By decision dated August 15, 2006, the Office granted appellant a schedule award for 15
percent right arm impairment and 10 percent left arm impairment.
Also on August 15, 2006 the Office notified appellant of its preliminary determination
that she received an overpayment in the amount of $4,852.01 for the period November 20, 2004
through May 19, 2006 based on the fact that the schedule award of her upper extremities had
been recalculated. From its compensation worksheets, the Office noted that she had received
$56,594.36 in benefits for a permanent impairment rating for 14 percent left upper extremity
impairment and 21 percent right upper extremity impairment for the period November 20, 2004
through July 8, 2006 when she should have been paid $51,742.35 in benefits for 15 percent right
upper extremity impairment and 10 percent left upper extremity impairment for the period
November 20, 2004 through May 19, 2006. The Office further informed appellant of its
preliminary determination that she was without fault in creating the overpayment and requested
that she submit financial information within 30 days. It noted that waiver would be denied if she
failed to furnish the information requested.
Appellant disagreed with the Office’s August 15, 2006 schedule award determination and
requested an oral hearing, which was held February 14, 2007. In a March 6, 2007 report,
Dr. Salomon noted his findings on examination and opined that appellant had 39 percent left arm
impairment and 38 percent right arm impairment under the A.M.A., Guides.
By decision dated April 30, 2007, an Office hearing representative affirmed the Office’s
August 15, 2006 schedule award determination. The hearing representative found that the
weight of the medical opinion evidence was represented by Dr. Komanduri and the Office
medical adviser.2
By decision dated November 29, 2007, the Office finalized the overpayment
determination and found that appellant was not entitled to waiver of the $4,852.01 overpayment
of compensation created as a result of the schedule award recalculation. It directed that appellant
either repay the overpayment in full or contact the Office to arrange a repayment plan.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act3 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of

2

The Office’s hearing representative noted that appellant did not wish to address the overpayment issue at the
hearing.
3

5 U.S.C. § 8107.

4

permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.4
Office procedures5 provide that upper extremity impairment secondary to carpal tunnel
syndrome and other entrapment neuropathies should be calculated using section 16.5d and
Tables 16-10, 16-11 and 16-15.6
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.7 When the Office 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, the Office must secure a
supplemental report from the specialist to correct the defect in his original report.8
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.9
ANALYSIS -- ISSUE 1
Due to the conflict in the medical opinion evidence between Dr. Salomon and the Office
medical adviser as to the permanent impairment of appellant’s right and left upper extremity
conditions, the Office properly referred appellant to Dr. Komanduri for an impartial medical
examination. After obtaining Dr. Komanduri’s opinion, the Office then sought an opinion from
an Office medical adviser.
The Board has carefully reviewed Dr. Komanduri’s report of May 2, 2006 which
determined appellant’s impairment to her left and right arms. Although Dr. Komanduri
determined that appellant sustained 11 percent impairment of the right upper extremity and 7
percent impairment of the left upper extremity, it is not clear how he made this rating in
accordance with the relevant standards of the A.M.A., Guides.10 Dr. Komanduri noted
4

See 20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th ed.
2001). See also Linda Beale, 57 ECAB 429 (2006).
5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003). See also Cristeen Falls, 55 ECAB 420 (2004).
6

A.M.A., Guides 491, 482, 484, 492, respectively; see Joseph Lawrence, Jr., 53 ECAB 331 (2002).

7

J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Gloria J. Godfrey, 52 ECAB 486 (2001).

8

Phillip H. Conte, 56 ECAB 213 (2004).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
10

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

5

appellant’s complaints of pain; found that the APB strength in both hands was 4/5; and that the
range of motion findings for MP thumb joints and IP joints, the thumb, and the wrist were
normal. However, he failed to cite to the tables or charts of the A.M.A., Guides to support his
impairment rating or provide any rationale for his findings. Additionally, the Board notes that
Dr. Komanduri disagreed with some of the conditions accepted by the Office.11 Dr. Komanduri
also noted that he could not assign causality to all of appellant’s complaints. To the extent that
he did not consider impairment caused by preexisting conditions, the Board has held that, in
determining entitlement to a schedule award, preexisting impairment to the scheduled member is
to be included.12
The medical adviser utilized the findings in Dr. Komanduri’s May 2, 2006 report and
determined that appellant had 15 percent right upper extremity impairment and 10 percent left
upper extremity impairment. The Board has held that to properly resolve a conflict in medical
opinion, it is the impartial medical specialist who should provide a reasoned opinion as to a
permanent impairment to a scheduled member of the body in accordance with the A.M.A.,
Guides. An Office medical adviser may review the opinion, but the resolution of the conflict is
the responsibility of the impartial medical specialist.13 As the Office did not request a
supplemental opinion from Dr. Komanduri, the selected impartial medical specialist, the Board
finds that the conflict in medical opinion remains unresolved.
The case will be remanded for the Office to secure a supplemental report from
Dr. Komanduri regarding the extent of appellant’s permanent impairment of the right and left
upper extremities. If Dr. Komanduri is unable to clarify or elaborate on his opinion or if the
opinion is not forthcoming, the Office should refer the case to another appropriate impartial
medical examiner.14 After such further development as the Office deems necessary, it should
issue a de novo decision on the extent and degree of any employment-related impairment
involving appellant’s upper extremities which may entitle appellant to a schedule award.15
CONCLUSION
The Board finds that the conflict in the medical evidence was not properly resolved and
the case requires further development.

11

For example, the Office accepted bilateral cubital tunnel syndrome as employment related but Dr. Komanduri
indicated that this was not employment related. A medical report that does not adequately reflect the basic facts is
of little probative value. See Vernon R. Stewart, 5 ECAB 276, 280 (1953).
12

Peter C. Belkind, 56 ECAB 580, 586 (2005).

13

See Richard R. LeMay, 56 ECAB 341 (2005); Thomas J. Fragale, 55 ECAB 619 (2004).

14

See Nancy Keenan, 56 ECAB 687 (2005); see also Leonard W. Waggoner, 35 ECAB 461 (1983).

15

Due to the disposition of the schedule award issue, the fact and amount of any overpayment are not established.

6

ORDER
IT IS HEREBY ORDERED THAT the November 29 and April 30, 2007 decisions of
the Office of Workers’ Compensation Programs be set aside. The case is remanded for further
development consistent with this decision of the Board.
Issued: August 22, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7