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

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

Docket No. 16-0588
Issued: August 8, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 8, 2016 appellant, through counsel, filed a timely appeal of a December 1,
2015 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 to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective
December 10, 2014 under 5 U.S.C. § 8113(b) for failing to cooperate with vocational
rehabilitation efforts.
On appeal counsel argues that the decision is contrary to fact and law.
FACTUAL HISTORY
On July 11, 1997 appellant, then a 47-year-old general clerk, filed an occupational
disease claim (Form CA-2) alleging that on July 24, 1996 she first became aware that her
bilateral thumb arthritis had been aggravated by her employment duties. OWCP accepted the
claim for aggravation of bilateral thumb arthritis and aggravation of bilateral wrist arthritis.3 It
placed appellant on the periodic rolls for temporary total disability effective April 10, 2011.4
On June 28, 2012 OWCP referred appellant to Dr. David K. Halley, a Board-certified
orthopedic surgeon, for a second opinion evaluation as to whether appellant continued to have
residuals from her accepted employment injuries and to determine her disability status. In a
July 16, 2012 report, Dr. Halley opined that appellant no longer had any residuals or disability
due to her accepted employment injuries and could return to work with no restrictions. He based
this opinion on a review of the employment injury history, medical evidence, statement of
accepted facts, and physical examination. Physical examination findings included 20 percent
right hand pinch strength when compared with the left hand, equal grip strength for kilogram
force, no sensory loss on light touch, no swelling of the thumbs, wrists, or fingers, no thenar
atrophy, negative bilateral Phalen’s test, negative bilateral squeeze test, and negative bilateral
Tinel’s sign. Dr. Halley opined that appellant’s complaints were subjective as there was no
supporting objective evidence of any residuals from the accepted aggravation of arthritis.
On August 30, 2012 OWCP received an April 24, 2012 attending physician’s report
(Form CA-20) from Dr. Joseph A. Ottaviano, a treating Board-certified family medicine
physician, indicating that appellant continued to have residuals and disability from her accepted
employment injuries. Dr. Ottaviano reported that she had severe osteoarthritis in the triscaple
and first carpometarsal joints which cause her to be disabled from performing repetitive work.
He noted his disagreement with Dr. Halley’s opinion that appellant’s accepted conditions had
resolved.
Dr. Ottaviano, in September 6, 2012 and March 20, 2013 reports, noted appellant’s
history of employment-related bilateral thumb and wrist arthritis. He noted that he concurred
with the opinion of Dr. James H. Rutherford, a second opinion Board-certified orthopedic
3

OWCP assigned File No. xxxxxx485. On October 16, 2015 it combined File Nos. xxxxxx728 and xxxxxx103
with xxxxxx485 as the master File No. Under File No. xxxxxx103, OWCP accepted the claim for temporary
aggravation of bilateral wrist arthritis which resolved effective May 10, 1994. It denied appellant’s claim for
aggravation of bilateral wrist arthritis under File No. xxxxxx728.
4

In a December 29, 2010 letter, the employing establishment notified OWCP that no work was available for
appellant within her restrictions due to the National Reassessment Process.

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surgeon, that her aggravation was permanent.5 Dr. Ottaviano indicated that he disagreed with
Dr. Halley’s opinion that appellant no longer had any residuals or disability due to her accepted
employment conditions.
On February 28, 2013 OWCP referred appellant for participation in vocational
rehabilitation services based on Dr. Halley’s opinion. By letter dated April 7, 2013, appellant
was referred to Georgia Boggs, a rehabilitation counselor, for development of a rehabilitation
program. OWCP determined that there was a conflict in the medical opinion evidence and
closed vocational rehabilitation efforts until resolution of the conflict. Ms. Boggs closed
appellant’s vocational rehabilitation file on April 17, 2013.
On June 13, 2013 OWCP referred appellant to Dr. Ralph G. Rohner, Jr., a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence between Drs. Halley
and Ottaviano on the issues of whether appellant continued to have residuals from her accepted
employment conditions and her work capability.
In a June 27, 2013 report, Dr. Rohner, based upon a review of the medical evidence,
statement of accepted facts, and physical examination, noted accepted conditions of aggravation
of bilateral carpometacarpal joint thumb arthritis and aggravation of bilateral wrist arthritis. He
concluded that appellant continued to have residuals and disability from her accepted conditions.
Dr. Rohner concurred with the restrictions set by Dr. Ottaviano, which included no repetitive
motion use of her thumbs.
On March 17, 2014 OWCP referred appellant for vocational rehabilitation services. It
informed the vocational rehabilitation counselor, Gordon McNamee, that Dr. Rohner’s opinion
represented the weight of medical evidence with respect to her ability to work.
On a March 22, 2014 Rehabilitation Action Form (Form OWCP-44), Mr. McNamee
provided details regarding appellant’s response to his telephone contact. He contacted appellant
on March 17, 2014 by telephone, she stated that she would not talk to him as she did not know
who he was. Appellant also requested to be called the following morning at 8:00 a.m., at that
time she requested to be contacted only in written communication and not by the telephone.
Mr. McNamee sent her a letter introducing himself on March 18, 2014 which was followed up
by text messages on March 18, 2014 and telephone calls on March 20, 21, and 22, 2014.
Messages were left on her answering machine on March 20, 21, and 22, 2014 as appellant did
not answer his repeated telephone calls. Mr. McNamee noted that he informed appellant that if
she did not respond by March 22, 2014 he would inform OWCP of her lack of cooperation and
that her benefits would be affected.
By letter dated March 27, 2014, an OWCP claims examiner advised appellant that section
8113(b) of FECA provided that, if an individual, without good cause, fails to apply for and
undergo vocational rehabilitation when so directed, and OWCP finds that in the absence of the
failure the individual’s wage-earning capacity would probably have substantially increased, it
may reduce prospectively the compensation based on what probably would have been the
5

Dr. Rutherford, in a January 7, 1998 report, diagnosed bilateral thumb arthritis and aggravation of bilateral wrist
arthritis. He opined that the aggravation by appellant’s repetitive work duties was permanent.

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individual’s wage-earning capacity had he not failed to apply for and undergo vocational
rehabilitation. The claims examiner further noted:
“Also, [s]ection 10.519 of Title 20 of the Code of Federal Regulations provide
that if an individual without good cause fails or refuses to participate in the
essential preparatory efforts as described above, OWCP will assume, in the
absence of evidence to the contrary, that the vocational rehabilitation effort would
have resulted in a return to work with no loss of wage-earning capacity, and
compensation will be reduced accordingly. In effect, this will result in a
reduction of compensation to zero.”
In a May 16, 2014 letter addressed to Mr. McNamee, appellant summarized statements
she believed that he made during a May 7, 2014 conversation.
On a May 19, 2014 Form OWCP-44, Mr. McNamee reported that appellant had
obstructed vocational rehabilitation by failing to appear at scheduled meetings and failing to
carry out agreed actions. He reported that her May 16, 2014 letter requested all communication
be written and was unresponsive to his telephone calls. Appellant did attend a scheduled
vocational evaluation on May 12, 2014, which Mr. McNamee noted still required his review.
Mr. McNamee reported that he sent her a letter dated May 19, 2014 informing her that her
request for written communication was unacceptable and that they needed to meet to discuss
vocational goals and select job titles to get her job search started.
By letter dated May 21, 2014, OWCP directed appellant to make a good faith effort to
participate in the rehabilitation effort within 30 days or, if she believed that she had good cause
for not participating in the effort, to provide reasons and supporting evidence of such good cause
within 30 days. It indicated that if these instructions were not followed within 30 days action
would be taken to reduce her compensation.
On a June 11, 2014 Form OWCP-44, Mr. McNamee reported that appellant had
obstructed vocational rehabilitation by failing to appear at scheduled meetings and failing to
carry out agreed actions. He reported a meeting was scheduled for June 12, 2014, which she
rescheduled to June 17, 2014.
Mr. McNamee, in a July 14, 2014 Form OWCP-44, reported that appellant had
obstructed vocational rehabilitation by failing to appear at scheduled meetings and failing to
carry out agreed actions. He reported that she changed her mind regarding two selected job titles
which had been verbally agreed upon and she refused to sign her vocational rehabilitation plan.
By letter dated July 15, 2014, OWCP again directed appellant to make a good faith effort
to participate in the rehabilitation effort within 30 days or, if she believed that she had good
cause for not participating in the effort, to provide reasons and supporting evidence of such good
cause within 30 days. It indicated that if these instructions were not followed within 30 days
action would be taken to reduce her compensation.
In an August 7, 2014 letter, Mr. McNamee advised appellant that she was required to
work with him to develop an employment plan, meet with him, and discuss goals and needs.

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Next, he noted that he left messages for her on August 6 and 7, 2014 asking her to call him and
requesting that she call him.
On August 14, 2014 appellant called and informed OWCP that she had returned to parttime work on August 12, 2014.
On September 15, 2014 appellant filed a claim for wage-loss compensation for
intermittent wage loss from August 12 to September 10, 2014.
By letter dated October 8, 2014, OWCP noted that the employing establishment indicated
that appellant had not returned to work at the employing establishment. It requested that she
provide pay stubs from her new employing establishment to verify dates of employment and her
earnings.
Mr. McNamee, in an October 23, 2014 Form OWCP-44, reported that appellant had
obstructed vocational rehabilitation by failing to appear at scheduled meetings and failing to
carry out agreed actions. He noted that she has not replied by telephone or in writing to his
request for confirmation of her employment.
By letter dated October 24, 2014, OWCP again advised appellant of its determination that
she had obstructed vocational rehabilitation efforts. It reiterated instructions from prior letters
sent regarding her obstruction of mandatory vocational rehabilitation services. Appellant was
again provided with 30 days to make a good effort to participate in vocational rehabilitation with
Mr. McNamee.
Subsequently, OWCP received a letter from appellant’s counsel stating that she had
returned to two part-time jobs on August 12, 2014. In the October 24, 2014 letter, received by
October 29, 2014, appellant detailed her employment and pay rates, with appropriate pay stubs,
for HR Imaging Partners, Inc. and Delaware County Center YMCA. On October 30 and
December 9, 2014 she submitted additional pay stubs to OWCP from HR Imaging Partners and
the YMCA.
By decision dated December 10, 2014, OWCP reduced appellant’s compensation to zero
under 5 U.S.C. § 8113(b) as her failure to undergo essential preparatory rehabilitation efforts did
not allow OWCP to determine what her wage-earning capacity would have been if she had
undergone testing and rehabilitation. It further found that she had been advised by letter dated
October 24, 2014 that she was to make a good faith effort to participate in vocational
rehabilitation, but she did not respond to the letter. Therefore, appellant had not shown good
cause for noncompliance.
On December 16, 2014 appellant requested an oral hearing before an OWCP hearing
representative, which her counsel changed to a request for a telephonic hearing by letter dated
January 7, 2015. A telephonic hearing was held on September 16, 2015. Appellant testified that
she returned to seasonal part-time work in July 2014 with HR Imaging Partners Inc. as a photo
assistant and started working part time for the YMCA on September 6, 2014.

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Subsequent to the hearing appellant submitted evidence covering the period 1993 to 2007
and the assignment to a different vocational rehabilitation counselor in 2013. She detailed the
errors she believed were made in her case.
By decision dated December 1, 2015, the hearing representative affirmed the
December 10, 2014 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.6 Section 8113(b) of FECA provides that
if an individual, without good cause, fails to apply for and undergo vocational rehabilitation
when so directed under section 8104 of FECA, OWCP, after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have substantially increased,
may reduce prospectively the monetary compensation of the individual in accordance with what
would probably have been his or her wage-earning capacity in the absence of the failure, until
the individual in good faith complies with the direction of OWCP.7
Section 10.519 of OWCP’s regulations provides:
“If an employee without good cause fails or refuses to apply for, undergo,
participate in, or continue to participate in a vocational rehabilitation effort when
so directed, OWCP will act as follows-(b) Where a suitable job has not been identified, because the failure or
refusal occurred in the early, but necessary stages of a vocational
rehabilitation effort (that is, interviews, testing, counseling, functional
capacity evaluations [(FCE)], and work evaluations) OWCP cannot
determine what would have been the employee’s wage-earning capacity.
(c) Under the circumstances identified in paragraph (b) of this section, in
the absence of evidence to the contrary, OWCP will assume that the
vocational rehabilitation effort would have resulted in a return to work
with no loss of wage-earning capacity, and OWCP will reduce the
employee’s monetary compensation accordingly (that is, to zero). This
reduction will remain in effect until such time as the employee acts in
good faith to comply with the direction of OWCP.”8
OWCP procedures provide that specific instances of noncooperation during the early
stages of vocational rehabilitation include a failure to appear for the initial interview, counseling
sessions, an FCE, other interviews conducted by the rehabilitation counselor, vocational testing

6

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

7

5 U.S.C. § 8113(b).

8

20 C.F.R. § 10.519.

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sessions and work evaluations, as well as lack of response or inappropriate response to directions
in a testing session after several attempts at instruction.9
OWCP’s procedures provide that a case which has been referred for vocational
rehabilitation can be closed if the injured worker has successfully returned to work or will return
to work shortly without benefit of rehabilitation intervention; or if the injured worker is not able
to work four hours per day and there is no possibility of improvement.10
ANALYSIS
OWCP accepted the claim for aggravation of bilateral thumb arthritis and aggravation of
bilateral wrist arthritis. Appellant was properly referred to Dr. Rohner to resolve the conflict in
the medical opinion evidence between Drs. Halley and Ottaviano on the issue of whether she
continued to have residuals and disability due to her accepted conditions. On March 6, 2014
OWCP referred appellant to vocational rehabilitation services based on Dr. Rohner’s impartial
medical examination who opined that she continued to experience employment-related residuals
and disability and could work with restrictions. By decision dated December 10, 2014, it
reduced appellant’s compensation under 5 U.S.C. § 8113(b) to zero for failing to show good faith
in participating with the early an necessary stages of vocational rehabilitation services as
directed. In a December 1, 2015 decision, an OWCP hearing representative affirmed its
December 10, 2014 decision adjusting appellant’s compensation effective October 19, 2014.
The Board finds that OWCP improperly reduced appellant’s compensation effective
December 10, 2014 as it did not consider that she had found employment.
While the record does reflect that appellant was not entirely compliant with her
vocational counselor’s efforts to initiate vocational rehabilitation, the statute does provide that
she can claim good cause for failure to participate in vocational rehabilitation. The
December 10, 2014 decision to reduce appellant’s compensation benefits found that she had not
established good cause for not complying with vocational rehabilitation because she had not
responded to OWCP’s October 24, 2014 letter. However, appellant did respond to the
October 24, 2014 letter, by letter dated October 23, 2014, received by OWCP on October 29,
2014 and with follow-up pay information received by OWCP on October 30, 2014 and
December 9, 2014 indicating that she returned to work in two part-time jobs within her
physician-imposed restrictions. OWCP did not evaluate or make findings as to whether this
information constituted good cause.
OWCP’s procedures state that once a claimant finds employment with the previous
employer, or a new employing establishment, the vocational rehabilitation effort moves to
“Employed” status.11 As noted above, OWCP’s procedures state that OWCP can close a case
where there has been referral for vocational rehabilitation if the employee successfully finds
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.17(b) (February 2011); see Sam S. Wright, 56 ECAB 358 (2005).
10

Id. at Part 8 -- Referrals for Rehabilitation, Referral Outcome, Chapter 8.200.7(a) (November 2013).

11

Supra note 8 at Chapter 2.813.11 (February 2011).

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work without rehabilitation assistance.12 OWCP’s procedures also provide that, if a question
remains as to whether employment obtained by a claimant during the vocational rehabilitation
process fairly and reasonably represents wage-earning capacity, OWCP can conference the issue
with the claimant.13 On August 14, 2014 appellant called and advised OWCP that she had
returned to part-time work with two employing establishments on August 12, 2014. She
subsequently submitted evidence regarding her hourly pay rate and pay stubs for the two
employers, HR Imaging Partners, Inc. and Delaware County Center YMCA.
OWCP failed to follow its procedures once the appellant informed OWCP that she had
returned to work and did not determine whether she had established good cause for failure to
cooperate with vocational rehabilitation efforts. The Board finds that OWCP failed to meet its
burden proof to reduce her monetary compensation to zero.
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation to zero
effective December 10, 2014 under 5 U.S.C. § 8113(b) for failing to cooperate with vocational
rehabilitation efforts.

12

Supra note 9.

13

Supra note 8, Vocational Rehabilitation Services, Chapter 2.813.14(d)(7) (February 2011).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 1, 2015 is reversed.
Issued: August 8, 2016
Washington, DC

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

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

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

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

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

Docket No. 08-2045
Issued: March 25, 2009

Case Submitted on the Record

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

JURISDICTION
On July 21, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated January 4, 2008 and a nonmerit decision dated April 22, 2008.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and
nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
developed stress and coronary artery disease due to her federal employment; and (2) whether the
Office properly refused to reopen appellant’s case for further consideration of the merits
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 6, 2007 appellant, then a 49-year-old letter carrier, filed a traumatic injury claim
alleging that on July 2, 2007 she developed tightness in her chest while sorting mail. She noted
that medical testing confirmed that she was having a heart attack and submitted medical evidence

diagnosing a myocardial infarction. In a letter dated July 18, 2007, the Office requested
additional factual and medical evidence in support of appellant’s claim and allowed 30 days for a
response. Appellant responded on August 17, 2007 and stated that her claim was actually for an
occupational disease. She attributed her heart attack to harassment by her supervisor. Appellant
stated that on February 15, 2007 her supervisor called the postal police on the grounds that
appellant refused to go home. She requested leave for February 15 and 16, 2007 which was
denied. Appellant informed her supervisor that she would not work overtime but was assigned
more than eight hours of work for February 15, 2007. Her supervisor also stood over her and,
after “an extended period of time,” appellant shouted and asked her supervisor to leave her alone.
Appellant then threatened to leave the building.
On March 17, 2007 appellant’s supervisor ordered her to take out catalogs which other
carriers were allowed to leave. Appellant did so, but felt this order was unfair. On March 21,
2007 she sought medical treatment and received a diagnosis of coronary spasms. On July 25,
2007 Dr. Christina Yu Ting, a physician specializing in preventative medicine, diagnosed
coronary artery disease and work stress.
By decision dated January 4, 2008, the Office denied appellant’s claim on the grounds
that she had not substantiated a compensable factor of employment as causing her stress and
coronary artery disease.
Appellant requested reconsideration. In a February 2, 2008 statement, she again alleged
that her stress and coronary conditions were work related due to harassment by her supervisor.
Appellant submitted articles from fellow employees complaining about supervisors and other
conditions at the employing establishment.
By decision dated April 22, 2008, the Office denied appellant’s request for
reconsideration on the grounds that she failed to submit relevant new evidence or argument in
support of her claim.
LEGAL PRECEDENT -- ISSUE 1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of a disease or condition for which compensation is claimed; (2) a factual
statement identifying the employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical opinion 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.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
1

Solomon Polen, 51 ECAB 341, 343-44 (2000).

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coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular of specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.3
Although the handling of leave requests and attendance matters are generally related to
employment, they are administrative functions of the employer and not duties of the employee.
As a general rule, a claimant’s reaction to administrative or personnel matters falls outside the
scope of the Act. However, to the extent that 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.4
The Board has held that the manner in which a supervisor exercises his or her discretion
falls outside the coverage of the Act. This principal recognizes that a supervisor or manager
must be allowed to perform their duties and that employee’s will at times disagree with actions
taken. Mere disagreement with or dislike of actions taken by a supervisor or manager will not be
compensable absent evidence establishing error or abuse.5
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact, occur.
Mere perceptions of harassment or discrimination are not compensable under the Act.6 A
claimant must substantiate allegations of harassment or discrimination with probative and
reliable evidence. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.7 A claimant must
establish a factual basis for his or her allegations of harassment or discrimination with probative
and reliable evidence.8
ANALYSIS -- ISSUE 1
Appellant submitted medical evidence diagnosing coronary artery disease and stress from
her employment. She alleged specific actions by her supervisor caused or contributed to her

2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).
4

James P. Guinan, 51 ECAB 604, 607 (2000).

5

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

6

Reco Roncoglione, 52 ECAB 454, 456 (2001).

7

Penelope C. Owens, 54 ECAB 684, 686 (2003).

8

Beverly R. Jones, 55 ECAB 411, 417 (2004).

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conditions. The Board must determine whether these actions constitute compensable factors of
employment.
Appellant requested leave for February 15 and 16, 2007, which were denied. As noted,
the denial of leave requests is an administrative matter. Appellant has not submitted any
evidence to establish error or abuse on the part of her supervisor in denying leave. She has not
established this as a compensable factor of her employment.
Appellant informed her supervisor that she would not work overtime on
February 15, 2007. In response, her supervisor allegedly assigned more than eight hours of
work. Appellant stated that her supervisor also watched her work. She shouted and asked her
supervisor to leave her alone. Appellant also threatened to leave the building. Eventually her
supervisor called the postal police on the grounds that appellant refused to go home. On
March 17, 2007 appellant’s supervisor directed her to take out catalogs which other carriers were
allowed to leave. Appellant did so, but felt this order was unfair. These allegations relate to the
supervisor’s discretion. As noted, the mere disagreement with or dislike of actions taken by a
supervisor or manager will not be compensable absent evidence establishing error or abuse.9
Appellant has not submitted any evidence to establish error or abuse by her supervisor to assign
work, to observe her working or to direct her to take out catalogs. She has not explained or
offered evidence that it was inappropriate for her supervisor to react to appellant’s shouts by
directing her to go home and calling the postal police when she failed to do so. As appellant has
not established error or abuse on the part of her supervisor in these actions, these implicated
actions are not compensable factors of employment.
Appellant has also alleged incidents that constituted harassment. However, she has not
provided any witness statements or other evidence to substantiate her allegations of harassment
with probative and reliable evidence. Appellant’s mere perception that she was harassed is not
sufficient to establish a compensable factor of employment.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.10
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,11 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
9

Linda J. Edwards-Delgado, supra note 5.

10

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
11

5 U.S.C. §§ 8101-8193, § 8128(a).

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considered by the Office.12 When a claimant fails to meet one of the above standards, the Office
will deny the application for reconsideration without reopening the case for review on the
merits.13
ANALYSIS -- ISSUE 2
Appellant requested reconsideration on February 2, 2008 and again alleged that her stress
and coronary conditions were work related due to harassment from her supervisor. Her factual
statements were repetitive of those she had presented before the Office issued the January 4,
2008 decision. These statements were not relevant and pertinent new evidence and were not
sufficient to require the Office to reopen appellant’s claim for consideration of the merits.
Appellant submitted articles regarding the employing establishment. Excerpts from
publications regarding the employing establishment are not relevant to appellant’s claim as these
documents did not directly address the factual scenarios implicated by appellant and therefore
cannot constitute corroborative evidence substantiated appellant’s alleged employment incidents.
Appellant failed to submit any relevant new evidence in support of her request for
reconsideration and the Office properly declined to reopen her claim for consideration of the
merits.
CONCLUSION
The Board finds that appellant failed to substantiate a compensable factor of employment
as causing or contributing to her diagnosed stress or coronary artery disease and therefore failed
to meet her burden of proof in establishing her claim for an occupational disease. The Board
further finds that the Office properly declined to reopen appellant’s claim for consideration of the
merits on April 22, 2008.

12

20 C.F.R. § 10.606(b)(2).

13

20 C.F.R. § 10.608(b).

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ORDER
IT IS HEREBY ORDERED THAT the April 22 and January 4, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 25, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF TRANSPORTATION,
INTERNAL REVENUE SERVICE,
Florence, KY, Employer
__________________________________________

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

Docket No. 11-410
Issued: November 21, 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 December 17, 2010 appellant filed a timely appeal from a November 22, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which affirmed the
termination of her compensation benefits. Pursuant to the Federal Employees’ Compensation
Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.2
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits for her accepted injury effective June 7, 2010.

1
2

5 U.S.C. §§ 8101-8193.

OWCP also issued June 22 and July 8, 2010 decisions denying claims for intermittent wage loss. Appellant has
not appealed from these decisions.

FACTUAL HISTORY
On August 15, 2005 appellant, then a 51-year-old clerk, was injured when she slipped on
a wet floor and twisted her body. OWCP accepted her claim for lumbar strain and a herniated
lumbar disc. Appellant stopped work on August 15, 2005 and returned to work at part-time,
limited duty, four hours a day on November 8, 2005. She stopped work on December 5, 2005
and returned on December 8, 2006, to part-time, limited-duty work, six hours per day and
reduced her hours to four hours a day on October 15, 2007.
A September 16, 2005 magnetic resonance imaging (MRI) scan of the lumbar spine
revealed L2-3 moderate diffuse disc bulge and a mild diffuse disc bulge at L4-5. A December 7,
2005 electromyogram (EMG) revealed early radiculopathy. Appellant came under the treatment
of Dr. Michael J. Bertram, a Board-certified physiatrist, who diagnosed work-related lumbar
sprain as well as left paracentral myofascial pain and gluteal pain, left sacroiliac joint sprain, disc
herniation at L2-3 and possible left S1 radiculitis. Dr. Bertram treated appellant conservatively
and opined that she was totally disabled. He noted that appellant was involved in a nonworkrelated motor vehicle accident on January 12, 2006 and sustained injuries to her right shoulder,
right knee, hip, ribs, elbow and wrist. Dr. Bertram advised that she had a work-related injury on
August 15, 2005, lumbar and left sacroiliac joint sprain, left lumbosacral myofascial pain, disc
herniation at L2-3, degenerative disc disease and underlying discogenic pain. He recommended
appellant work six hours per day with restrictions.
OWCP referred appellant to Dr. E. Gregory Fisher, a Board-certified orthopedic surgeon,
for a second opinion. In a September 14, 2007 report, Dr. Fisher noted that examination of the
back revealed no objective radicular signs over the lower extremities to show a herniated disc.
He also noted generalized pain over the left lumbar region and left buttock, limited range of
motion of the back, normal reflexes and normal motor and sensation. Dr. Fisher opined that the
accepted lumbar sprain resolved within two to three months after injury and that appellant’s
current symptoms related to degenerative disc disease. He did not expect her condition to
improve and opined that she could return to work limited duty for four hours per day.
Appellant submitted reports from Dr. Rajbir S. Minhas, a Board-certified orthopedist,
dated July 13 to November 9, 2007, who treated her for back pain. He diagnosed chronic pain
syndrome, degenerative disc disease, low back pain, lumbosacral radiculitis, herniated disc of the
lumbar spine and facet joint syndrome.
On January 30, 2008 OWCP requested that Dr. Fisher clarify whether appellant could
work more than four hours per day since her treating physician has returned her to work six
hours per day with restrictions. In a February 13, 2008 report, Dr. Fisher opined that appellant
could work six hours per day with restrictions. On May 8, 2008 appellant underwent a
functional capacity evaluation which revealed that her functional tolerance and lifting
capabilities were below the requirement to return to full-time work as a clerk and noted that she
had difficulty with sedentary demands. In reports dated May 2, 2008 to August 20, 2009,
Dr. Minhas diagnosed chronic pain syndrome, degenerative disc disease, low back pain,
lumbosacral radiculitis, herniated disc of the lumbar spine and facet joint syndrome. He noted
that appellant was working four hours per day and stopped.

2

On December 2, 2009 OWCP referred appellant to Dr. Fisher for an opinion regarding
whether she had disability or residuals attributable to the accepted work injury. In a December 9,
2009 report, Dr. Fisher reviewed her history and the medical record. Examination of the back
revealed pain over the left lumbar region and sacral areas, no muscle spasms or atrophy, limited
range of motion of the back, normal reflexes and normal motor power and sensation. Dr. Fisher
opined that there were no objective findings showing that the accepted back conditions were
present. He noted that the objective findings of decreased range of motion were not caused by
the accepted lumbar sprain which resolved within two to three months after injury but rather due
to degenerative disc disease. Dr. Fisher advised that clinical examination revealed no evidence
of a herniated disc or radiculopathy over the lower extremities and indicated that the MRI scan in
2007 noted a disc bulge and not a herniation. He indicated that the MRI scan revealed
degenerative disc disease, spondylosis, lumbar disc bulging and facet joint hypertrophy which
were unrelated to the work injury but rather related to age and the normal degenerative
progression. Dr. Fisher noted that appellant had no objective findings to support residuals of the
accepted lumbar strain and herniated disc. He found that she did not require further treatment for
her accepted conditions since they resolved several years ago; but she required treatment for
nonwork-related conditions due to the normal aging process. In a work capacity evaluation,
Dr. Fisher noted that appellant could return to work full time without restrictions related to her
work injuries but restrictions related to her nonwork-related conditions.
By letter dated December 28, 2009, OWCP requested that Dr. Bertram review the report
of Dr. Fisher and address whether appellant had residuals of her accepted work condition. In a
report dated January 22, 2010, Dr. Bertram noted the history of the work injury and listed
findings of tenderness of the lower back, muscle spasms, limited range of motion, normal
strength in the lower extremities, diminished reflexes and normal sensory examination. He noted
diagnoses left-sided back and buttock pain, an underlying lumbosacral sprain, degenerative disc
disease and protrusion in the lumbar spine and myofascial pain. Dr. Bertram opined that
appellant’s symptoms were the same as she had with her original injury and were directly related
to the original injury. He advised that appellant could work light duty, four hours per day with a
lifting restriction of 15 pounds. Dr. Bertram continued submitting treatment notes reporting
appellant’s status, findings, diagnoses and work restrictions.
OWCP found that a conflict in medical opinion arose between Dr. Bertram, appellant’s
treating physician, who found she had residuals of her work-related injuries and could work part
time, four hours per day, limited duty, and Dr. Fisher, the referral physician, who determined that
appellant’s work-related conditions had resolved and she could return to work with restrictions
related only to her nonindustrial lumbar degenerative disc disease.
On March 23, 2010 OWCP referred appellant to Dr. Alan R. Kohlhaas, a Board-certified
orthopedic surgeon, to resolve the conflict. In an April 7, 2010 report, Dr. Kohlhaas indicated
that he reviewed the records provided to him and examined appellant. He noted her history, the
work injury and her treatment following the injury. Appellant reported that her pain was located
in her low back over the left sacroiliac joint and radiated proximally up her back on the left side
and down into the back of her knee. On examination, Dr. Kohlhaas found her slightly obese and
standing straight with a normal, although slow gait. There was no muscle atrophy. Appellant
had tenderness to palpation on the left side over the S1, limited range of lumbar motion and
intact sensation. Straight-leg raising in the supine position was negative to 80 degrees on both

3

sides while, in the sitting position, she could straight-leg raise to 90 degrees with good active leg
and ankle motion. Dr. Kohlhaas noted there were no objective findings to show residuals of the
work-related lumbar strain and herniated lumbar disc. He indicated that the available MRI scan
reports did not reveal a herniated disc. Dr. Kohlhaas advised that his examination showed that
the point of maximum tenderness appeared to be over an area which was not part of the accepted
condition, which was also consistent with Dr. Bertram’s January 22, 2010 findings. He opined
that there were no residuals of the work-related lumbar strain and herniated disc and noted that
appellant could return to work in her original job as a file clerk, full time and without
restrictions. Dr. Kohlhaas noted that she did not have any restrictions based on her work-related
conditions and required no further treatment for her accepted conditions. He indicated that
appellant’s current treatment was for conditions not accepted by OWCP.
On May 5, 2010 OWCP issued a notice of proposed termination of compensation benefits
based on Dr. Kohlhaas’ report.
From May 5 to June 4, 2010 Dr. Bertram treated appellant for ongoing back and left
buttock pain related to underlying disc pathology as well as lumbosacral and sacroiliac joint
sprain. He recommended a sacroiliac joint injection which was performed on May 17, 2010.
Dr. Bertram advised that appellant could not work due to severe pain. In a May 11, 2010 report,
he noted that she was treated for a lumbosacral sprain which included the sacroiliac joint and
underlying disc protrusion. Dr. Betram advised that appellant’s symptoms had been consistent
since her work injury and he disagreed with Dr. Kohlhaas’ characterization of his previous
findings. He noted that appellant’s condition was still symptomatic which impaired her ability to
stand, walk or sit for prolonged periods. Dr. Bertram diagnosed ongoing chronic left-sided back
and buttock pain, underlying lumbosacral sprain with pain, degenerative disc disease and disc
protrusions at L2-3, L4-5, and L5-S1 with discogenic pain and overlay myofascial pain.
By decision dated June 7, 2010, OWCP terminated appellant’s compensation benefits
effective that date, finding that Dr. Kohlhaas’ report represented the weight of the medical
evidence. It established that appellant had no continuing residuals of her accepted injuries.
Appellant requested a telephonic hearing which was held on September 29, 2010. She
submitted reports from Dr. Bertram dated March 29 to June 4, 2010, previously of record. In a
May 25, 2010 report, Dr. Bertram reviewed Dr. Kohlhaas’ opinion and disagreed with his
findings concerning appellant’s pain in the lumbosacral region and left sacroiliac joint region.
He noted that she experienced pain in the lumbosacral junction and the sacroiliac joint region
since the original injury. Dr. Bertram indicated that appellant’s symptoms had not significantly
improved and she was unable to return to full duty but could continue at her previous work
restrictions. In an October 5, 2010 report, he noted the history of the work injury and her
continuing symptoms in the same region as the work injury. Dr. Bertram noted findings,
diagnoses and recommended further testing. In an October 18, 2010 letter to appellant’s
attorney, he noted the findings of the September 16, 2005 MRI scan.
In a decision dated November 22, 2010, the hearing representative affirmed the June 7,
2010 OWCP decision.

4

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 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.4 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.5
ANALYSIS
OWCP accepted appellant’s claim for work-related lumbar strain and herniated lumbar
disc. OWCP determined that a conflict in medical opinion existed between appellant’s attending
physician, Dr. Bertram, who indicated that appellant had residuals of her work-related injuries
and could work part time, four hours per day with restrictions, and Dr. Fisher, an OWCP referral
physician, who determined that appellant’s work-related conditions had resolved and she had no
work restrictions due to her work injury. Consequently, OWCP referred appellant to
Dr. Kohlhaas to resolve the conflict.6
Dr. Kohlhaas reviewed appellant’s history, reported findings and noted that she exhibited
no objective complaints or findings due to the accepted conditions. He noted that there were no
objective findings to show residuals of the work-related lumbar strain and herniated lumbar disc.
Dr. Kohlhaas noted appellant’s complaints of pain on palpation on the left side over the S1 but
there was no muscle atrophy and sensation was intact. He also noted that the area of her most
intense symptoms did not correlate with the conditions accepted by OWCP. Dr. Kohlhaas
opined that there were no residuals of the work-related lumbar strain and herniated disc and
noted that appellant could return to work in her original job as a file clerk, full time and without
restrictions. He advised that appellant had no restrictions based on her work-related conditions
and required no further treatment for her accepted conditions.
The Board finds that the opinion of Dr. Kohlhaas is sufficiently well rationalized and
based upon a proper factual background such that it is entitled to special weight and establishes
that residuals of appellant’s work-related lumbar strain and herniated lumbar disc have ceased.
Where there exists a conflict of medical opinion and the case is referred to an impartial specialist

3

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

4

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

5

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

6

In situations when there exists opposing medical report 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 background, must be given special weight.

5

for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, is entitled to special weight.7
Thereafter, appellant submitted reports from Dr. Bertram who treated her for ongoing
back and left buttock pain related to underlying disc pathology as well as lumbosacral and
sacroiliac joint sprain. In a May 11, 2010 report, Dr. Bertram made diagnoses and noted that
appellant’s condition was still symptomatic and impaired her ability to stand, walk or sit for
prolonged periods. In a May 25, 2010 report, he noted reviewing Dr. Kohlhaas’ report and
disagreed with his findings. Dr. Bertram stated that Dr. Kohlhaas was incorrect in stating that
appellant had a new pain area as she experienced pain in the lumbosacral junction and the
sacroiliac joint region since he started treating her. However, the Board notes that Dr. Kohlhaas
did not find that appellant had a “new” pain area but rather observed that the area of maximum
tenderness reported by appellant was not in an area that was consistent with the accepted
conditions. In reports dated July 2 to October 18, 2010, Dr. Bertram noted diagnoses and
treatment. However, none of Dr. Bertram’s reports specifically provide new medical reasoning
to explain how any continuing condition or disability was causally related to the August 15, 2005
work injury. Furthermore, Dr. Bertram was on one side of a conflict that was resolved by
Dr. Kohlhaas. Such reports are generally to overcome the weight of the impartial medical
examiner or to create a new conflict.8 Appellant submitted no other current medical evidence
supporting that her work-related conditions had not resolved.
Consequently, this medical evidence is insufficient to overcome the weight accorded
Dr.Bertram’s report or to create a new conflict in the medical evidence. The Board finds that
Dr. Kohlhaas opinion constitutes the weight of the medical evidence and establishes that
appellant’s work-related conditions and disability have resolved.
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 benefits effective
June 7, 2010.

7

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a) (if there is a disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary shall appoint a third
physician who shall make an examination).
8

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 22, 2010 is affirmed.
Issued: November 21, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 13-1357
Issued: October 29, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 20, 2013 appellant filed a timely appeal from a March 19, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than 180 days has elapsed between the last merit decision dated
November 2, 2012 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
her claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review March 19, 2013 nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant argues that OWCP erred in denying authorization to transfer medical
supervision to another medical facility.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 13, 2005 appellant, then a 44-year-old mail handler, filed an occupational
disease claim alleging that on April 6, 2005 she first became aware of bilateral foot and leg pain.
She noted that it was not until October 6, 2005 that she realized the condition was employment
related. OWCP accepted the claim for bilateral plantar fasciitis, which was expanded to include
left ankle sprain, left ankle fracture and left distal fibular fracture.2
In correspondence dated September 29, 2012, appellant requested authorization to change
her attending physician from Dr. Paul J. Papanek of Kaiser Permanente, a Board-certified
occupational physician and Board-certified family practitioner, to Dr. I. Grant Orlin of
Performance Medical and Rehabilitation Center, Inc.. She informed OWCP that Dr. Papanek
had retired and was no longer practicing medicine.
By decision dated November 2, 2012, OWCP denied appellant’s request to transfer
medical treatment from Kaiser Permanente. It advised her to locate another physician at Kaiser
Permanente in the Occupational Medicine department to be her treating physician.
On March 11, 2013 appellant requested reconsideration.
By decision dated March 19, 2013, OWCP denied reconsideration on the grounds that the
evidence submitted was insufficient to warrant merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.6

2

By decision dated May 23, 2006, OWCP granted appellant a schedule award for a 15 percent permanent
impairment of the left foot and a 6 percent permanent impairment of the right foot.
3

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
4

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
5

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).
6

20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

2

ANALYSIS
On March 11, 2013 appellant requested reconsideration. However, she did not show that
OWCP erroneously applied or interpreted a point of law or submit any relevant and pertinent
new evidence or new relevant argument not previously considered by OWCP with her request.
Because she did not meet any of the three criteria under 20 C.F.R. § 10.606(b)(3), appellant is
not entitled to further review of the merits of her claim.7 Thus, OWCP properly denied her
March 11, 2013 request for reconsideration.
As the Board has no jurisdiction over the merits of appellant’s claim, her contention on
appeal is moot.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen her case for
further review of the merits under 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 19, 2013 is affirmed.
Issued: October 29, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7

A.K., Docket No. 09-2032 (issued August 3, 2010); W.C., 59 ECAB 372 (2008); Susan A. Filkins, supra note 4.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BAY PINES VETERANS MEDICAL CENTER,
Bay Pines, FL, Employer
__________________________________________

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

Docket No. 17-1571
Issued: November 27, 2017

Case Submitted on the Record

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

JURISDICTION
On July 12, 2017 appellant filed a timely appeal from a January 17, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established more than three percent permanent impairment
of the right leg for which she previously received a schedule award.
On appeal appellant asserts that the medical evidence of record establishes that she is
entitled to a schedule award for left upper extremity conditions, that OWCP should schedule a
second opinion impairment evaluation, and that OWCP procedures do not require that the sixth

1

5 U.S.C. § 8101 et seq.

edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides)2 always be used.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On September 19, 2013 appellant, then a 53-year-old sign language interpreter, fell in a
parking lot at work and injured her knees and left arm. In October 2013 she transferred to a
position as an Equal Employment Opportunity (EEO) assistant. In October 2014 appellant
moved from Florida to South Carolina and transferred to a Veterans Affairs facility there.
OWCP accepted the claim for left knee contusion, left wrist sprain, left elbow/forearm
sprain, right knee bursitis, left carpal tunnel syndrome, and left ulnar nerve lesion.
By decision dated October 21, 2015, OWCP granted appellant as schedule award for
three percent permanent impairment of the right leg. The date of maximum medical
improvement was noted as April 16, 2015 and the period of the award ran from April 16 to
June 15, 2015. Appellant subsequently appealed to the Board.
During the pendency of the appeal, appellant submitted an April 4, 2016 report from
Dr. Barry D. Oliver, a Board-certified orthopedic surgeon, who noted her complaints of bilateral
hand and wrist pain with progressive numbness and tingling. Following physical examination
Dr. Oliver diagnosed bilateral cubital tunnel syndrome and bilateral Guyon’s canal syndrome.
Appellant transferred to an EEO specialist position with the Department of the Navy in
Washington, DC, in June 2016 and moved from South Carolina to Virginia.
In a treatment note dated October 20, 2016, Dr. Ryan M. Jander, Board-certified in
orthopedic and hand surgery, noted seeing appellant for evaluation of her left arm. He noted the
employment injury, a past history of left elbow decompression surgery on April 1, 2014, and
described left arm examination findings, noting dysesthetic symptoms in the medial forearm,
paresthesias in the distribution of the ulnar nerve over the hand and fingers, and a positive
Tinel’s at the wrist. Dr. Jander diagnosed ulnar neuropathy.
On December 12, 2016 appellant filed a claim for an additional schedule award (Form
CA-7). By letter dated December 13, 2016, OWCP noted that she had previously received a
schedule award for three percent permanent impairment of the right lower extremity. It informed
appellant of the medical evidence needed to support her claim.
In a December 19, 2016 response, appellant requested that OWCP send her for an
impairment evaluation.
2

A.M.A., Guides (6th ed. 2009).

3

Docket No. 16-0475 (issued July 14, 2016).

2

By decision dated January 17, 2017, OWCP denied appellant’s claim for an additional
schedule award. It noted that the medical evidence of record did not establish right lower
extremity permanent impairment greater than the three percent previously awarded.
LEGAL PRECEDENT
It is the claimant’s burden of proof to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of any employment injury.4
The schedule award provisions of FECA5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.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, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition is Class of Diagnosis (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 Under Chapter 2.3, evaluators are directed to provide
reasons for their impairment rating choices, including choices of diagnoses from regional grids
and calculations of modifier scores.12 Section 16.2a of the A.M.A., Guides, provides that if the
class selected is defined by physical examination findings or clinical studies results, these same
findings may not be used as grade modifiers to adjust the rating.13
4

See Tammy L. Meehan, 53 ECAB 229 (2001).

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
Supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.”
9

10

Id. at 494-531.

11

Id. at 521.

12

Id. at 23-28.

13

Id. at 500.

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ANALYSIS
The Board finds that appellant has not established impairment greater than three percent
for the right leg, for which she previously received a schedule award. Dr. Oliver and Dr. Jander
provided the only medical evidence not previously reviewed by the Board. Neither physician,
however, provided an impairment evaluation. There is, therefore, no probative medical evidence
establishing a greater degree of impairment to the right leg.14
On appeal appellant maintains that the record establishes entitlement to a left upper
extremity schedule award. The January 17, 2017 OWCP schedule award decision, however,
does not include a specific finding regarding appellant’s left upper extremity. The Board’s
jurisdiction is limited to reviewing final decisions of OWCP.15
Appellant further asserts on appeal that OWCP should send her for an impairment
evaluation. However, it is her burden of proof to establish that she has permanent impairment or
increased impairment of a scheduled member or function as a result of any employment injury.16
Finally, appellant also asserts that OWCP procedures do not require application of the
sixth edition of the A.M.A., Guides. However, OWCP’s procedures provide and the Board has
long held that for decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is
used to calculate schedule awards.17
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established more than three percent permanent
impairment of the right leg for which she previously received a schedule award.

14

See M.P., Docket No. 15-0383 (issued July 1, 2015).

15

20 C.F.R. § 501.2(c); see J.B., Docket No. 09-2191 (issued May 14, 2010).

16

See supra note 4.

17

B.M., Docket No. 09-2231 (issued May 14, 2010); see supra note 9.

4

ORDER
IT IS HEREBY ORDERED THAT the January 17, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 27, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Plainfield, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-2250
Issued: August 12, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On September 8, 2010 appellant’s counsel timely appealed the June 1, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed her right
upper extremity schedule award. The appeal was assigned Docket No. 10-2250.1
Appellant, a 49-year-old service representative, injured herself in the performance of duty
on May 24, 2000 when she fell while attempting to get up from a chair. OWCP accepted her
claim for left wrist sprain, aggravation of lumbosacral sprain, bilateral knee and ankle sprain,
bilateral medial meniscus tear and cervical myelopathy. Appellant has thus far received schedule
awards for 12 percent impairment of the left and right lower extremities and 10 percent
impairment of the left and right upper extremities. The only issue currently before the Board is
the extent of appellant’s right upper extremity impairment. OWCP initially awarded her 10
percent for the right upper extremity on October 23, 2008.2 However, the Branch of Hearings &
Review set aside the October 23, 2008 award and remanded the case to OWCP for further
medical development. OWCP later referred appellant to Dr. William K. Fleming, a Board1

Pursuant to the Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101-8193 (2006), and 20 C.F.R.
§§ 501.2(c) and 501.3 (2010), the Board has jurisdiction over the merits of this case.
2

The award was based on the then-applicable fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (2001).

certified orthopedic surgeon.3 In a report dated May 27, 2009, Dr. Fleming found no permanent
impairment of the right upper extremity under the fifth edition of the A.M.A., Guides (2001). By
decision dated June 3, 2009, OWCP denied appellant’s claim for a schedule award based on
Dr. Fleming’s May 27, 2009 report.4 Because it neglected to provide a copy of the June 3, 2009
decision to appellant’s counsel, OWCP reissued the decision on November 16, 2009. In a
decision dated June 1, 2010, the Branch of Hearings & Review affirmed OWCP’s November 16,
2009 decision, albeit for a different reason. OWCP’s hearing representative did not believe a
conflict existed. She also acknowledged that Dr. Fleming applied the fifth edition of the A.M.A.,
Guides rather than the sixth edition, which OWCP adopted effective May 1, 2009. Rather than
rely on Dr. Fleming’s May 27, 2009 report, the hearing representative found that the DMA’s
March 20, 2009 right upper extremity impairment rating (10 percent) represented the weight of
the medical evidence. The DMA’s report was also based on application of the fifth edition of the
A.M.A., Guides.
The Board finds that the case is not in posture for decision. At the time OWCP and the
hearing representative issued their respective decisions, the fifth edition of the A.M.A., Guides
(2001) was no longer applicable. Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).5 Neither the DMA nor
Dr. Fleming based their respective opinions on the sixth edition of the A.M.A., Guides. The
procedure manual provides that all permanent partial impairment calculations made on or after
May 1, 2009 must be based on the sixth edition of the A.M.A., Guides (2008).6 Both OWCP and
the hearing representative erred in basing their respective decisions on medical evidence that
applied the outdated fifth edition of the A.M.A., Guides.7 Accordingly, the case is remanded to
OWCP for further medical development followed by a de novo decision regarding appellant’s
entitlement to a schedule award for right upper extremity impairment in accordance with the
A.M.A., Guides (6th ed. 2008).

3

OWCP selected Dr. Fleming to resolve a conflict in medical opinion between appellant’s physician,
Dr. David O. Weiss, who found 28 percent impairment of the right upper extremity and the district medical adviser
(DMA), Dr. Willie E. Thompson, who found 10 percent right upper extremity impairment.
4

Following receipt of Dr. Fleming’s May 27, 2009 report, OWCP did not refer the case record to its medical
adviser prior to issuing the June 3, 2009 decision.
5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7b(4) (January 2010).
7

OWCP further erred by not forwarding Dr. Fleming’s May 27, 2009 report to its medical adviser for review.
The procedure manual provides that after obtaining all necessary medical evidence, the file should be routed to the
DMA for an opinion concerning the nature and percentage of impairment. Federal (FECA) Procedure Manual, Part
2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6d (October 2004).

2

IT IS HEREBY ORDERED THAT the June 1, 2010 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.
Issued: August 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bronx, NY, Employer
__________________________________________

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

Docket No. 11-1454
Issued: January 12, 2012

Case Submitted on the Record

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

JURISDICTION
On May 24, 2011 appellant, through her attorney, filed a timely appeal from a
January 25, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a five percent permanent impairment to her
left leg.
FACTUAL HISTORY
On November 1, 2004 appellant, then a 36-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 29, 2004 she injured her left ankle when she fell
while in the performance of duty. OWCP accepted the claim for a left ankle sprain on
1

5 U.S.C. § 8101 et seq.

January 13, 2005. Appellant also filed a claim for injury on April 28, 2005. This claim was
accepted for a strain of the lateral collateral ligament of the left ankle.2 Appellant underwent left
ankle arthroscopic surgery on December 23, 2005.
In a report dated December 5, 2007, Dr. David Weiss, an osteopath, provided a review of
the history and results on examination. With respect to a permanent impairment of the left leg,
he opined that appellant had a 42 percent impairment based on motor deficits and pain.
Dr. Weiss indicated that he used the fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides).
In a report dated December 15, 2008, OWCP’s medical adviser noting that appellant had
a 20 percent left leg impairment under the A.M.A., Guides. OWCP found that a conflict existed
and selected Dr. Martin Barschi, a Board-certified orthopedic surgeon, as a referee physician to
resolve the conflict.3
In a report dated April 15, 2009, Dr. Barschi provided a history and results on
examination. Referring to the fifth edition of the A.M.A., Guides, he opined that appellant had a
13 percent left leg permanent impairment. He noted mild muscle weakness and pain.
By letter dated June 12, 2009, OWCP advised Dr. Barschi that as of May 1, 2009 all
impairment evaluations must be based on the sixth edition of the A.M.A., Guides. In a report
dated July 13, 2009, Dr. Barschi noted that appellant did not have limitation on range of motion
in the left ankle. He stated that she appeared to have mild decreased strength against resistance
in eversion and inversion and a magnetic resonance imaging (MRI) scan showed a partial tear in
the anterior talofibular ligament. Dr. Barschi referred to “section” 16-2 of the A.M.A., Guides
and again opined that appellant had a 13 percent left leg permanent impairment. With respect to
date of maximum medical improvement, he stated “the approximate year would have been in the
year 2006 or 2007.”
In a November 18, 2009 letter, OWCP advised Dr. Barschi that appellant also had an
accepted left ankle injury on April 28, 2005, and enclosed medical evidence from that file. By
report dated December 21, 2009, Dr. Barschi stated that, under section 16-2 of the sixth edition,
there was a five percent impairment (grade B) for mild weakness in eversion/inversion, five
percent (grade B) for the partial tear of the anterior talofibular ligament and three percent (grade
A) for pain.

2

The two claims were combined with the October 29, 2004 claim as the master file. By decision dated June 1,
2010, the Board affirmed a January 8, 2009 decision terminating medical benefits for the April 28, 2005 injury.
Docket No. 09-1742 (issued June 1, 2010).
3

FECA provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). The implementing regulations state 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 OWCP
medical adviser, OWCP shall appoint a third physician to make an examination. This is called a referee
examination and it will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321 (1999).

2

OWCP’s medical adviser submitted a January 31, 2010 report noting that Dr. Barschi did
not properly apply the A.M.A., Guides. He noted that Table 16-2 requires identification of the
specific diagnostic criteria enumerated in the table and application of grade modifiers for
functional history, examination and clinical studies. The medical adviser agreed that the date of
maximum medical improvement was April 15, 2009. In a letter dated March 1, 2010, OWCP
requested that Dr. Barschi submit a supplemental report properly applying Table 16-2.
In a report dated March 23, 2010, Dr. Barschi identified an ankle ligament injury under
Table 16-2, with a default impairment of five percent. He found grade modifier of 1 for
Functional History (GMFH), Physical Examination (GMPH) and Clinical Studies (GMCS),
resulting in no adjustment from the default value. Dr. Barschi concluded that appellant had a
five percent permanent impairment to the left leg. By report dated May 9, 2010, OWCP’s
medical adviser concurred with Dr. Barschi. In a June 5, 2010 report, he opined that, given
Dr. Barschi’s opinion that maximum medical improvement was reached in 2006 or 2007, and
Dr. Weiss’ report dated December 5, 2007 regarding permanent impairment, the date of
maximum medical improvement would be December 5, 2007.
By decision dated July 28, 2010, OWCP issued a schedule award for a five percent
permanent impairment to the left leg. The period of the award was 14.40 weeks from
December 5, 2007.
Appellant requested a hearing before an OWCP hearing representative by letter dated
August 6, 2010. A hearing was held on December 6, 2010. Appellant argued that OWCP
procedures provide for only one request for clarification from a referee physician, while in this
case there were several requests for clarification.
By decision dated January 25, 2011, OWCP’s hearing representative affirmed the
July 28, 2010 schedule award decision.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.6 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 OWCP procedures provide that, effective

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

See Ronald R. Kraynak, 53 ECAB 130 (2001); August M. Buffa, 12 ECAB 324 (1961).

7

20 C.F.R. § 10.404 (1999).

3

May 1, 2009, all schedule awards are to be calculated under the sixth edition of the A.M.A.,
Guides.8
With respect to leg impairment based on a diagnosed ankle condition, the A.M.A.,
Guides provides a regional grid at Table 16-2.9 The class of impairment (CDX) is determined
based on specific diagnostic criteria, and then the default value for the identified CDX is
determined. The default value (grade C) may be adjusted by using grade modifiers for GMFH,
Table 16-6, GMPE, Table 16-7 and GMCS, Table 16-8. The adjustment formula is (GMFH -CDX) + (GMPE -- CDX) + (GMCS -- CDX).10
ANALYSIS
In the present case, there was a disagreement between appellant’s attending physician,
Dr. Weiss, and an OWCP medical adviser with respect to the degree of employment-related
permanent impairment to the left leg. Dr. Weiss found a 42 percent impairment, and a medical
adviser found a 20 percent impairment. The physician chosen as a referee physician pursuant to
5 U.S.C. § 8123(a), Dr. Barschi, initially submitted an April 15, 2009 applying the fifth edition
of the A.M.A., Guides. As noted above, any decision issued after May 1, 2009 must be based on
the sixth edition. Since OWCP had not issued a decision by May 1, 2009, a supplemental report
was necessary to resolve the conflict. In addition, Dr. Barschi did not have medical records from
the April 25, 2005 injury, which also involved the left ankle.
Dr. Barschi submitted a December 21, 2009 report applying Table 16-2 of the A.M.A.,
Guides. He did not, however, properly apply the table. Dr. Barschi did not cite the diagnostic
criteria enumerated in the table, the default value for the criteria or properly adjust the default
value based on the grade modifiers. OWCP properly requested that he clarify his report. In his
March 23, 2010, Dr. Barschi properly applied Table 16-2. For mild ligamentous laxity in the
ankle, the default (grade C) impairment is five percent. Dr. Barschi then found a grade modifier
of 1 (mild problem) for each of the adjustment factors: GMFH, GMPE and GMCS. Applying
the adjustment formula noted above, there is no adjustment from the default value of five
percent.
The Board accordingly finds that the referee physician properly determined the left leg
impairment under the sixth edition. It is well established that when a case is referred to a referee
specialist for the purpose of resolving a conflict, the opinion of such specialist, if sufficiently
well rationalized and based on a proper factual and medical background, must be given special
weight.11 Dr. Barschi’s opinion represents the weight of the medical evidence in this case.

8

FECA Bulletin No. 09-03 (March 15, 2009); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700 (January 2010).
9

A.M.A., Guides 501-508, Table 16-2.

10

The net adjustment is up to +2 (grade E) or -2 (grade A).

11

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

4

The number of weeks of compensation for a schedule award is determined by the
compensation schedule at 5 U.S.C. § 8107(c). For complete loss of use of the leg, the maximum
number of weeks of compensation is 288 weeks. Since appellant’s loss was five percent, she is
entitled to five percent of 288 weeks or 14.40 weeks of compensation. It is well established that
the period covered by a schedule award commences on the date that the employee reaches
maximum medical improvement from residuals of the employment injury.12 In this case, OWCP’s
medical adviser concluded that based on the evidence the date of maximum medical improvement
was the date of examination by Dr. Weiss. The award therefore properly runs for 14.40 weeks
commencing on December 5, 2007.
On appeal, appellant argues OWCP delayed issuing a schedule award decision utilizing the
fifth edition of the A.M.A., Guides and deprived appellant of due process and property rights. The
Board has addressed this issue in previous cases and found there is no vested right to a decision
under the fifth edition and there is no deprivation of a due process or property right.13
Appellant contends that Dr. Barschi cannot represent the weight of the evidence because
OWCP’s memorandum of telephone call dated June 16, 2009 indicated that he did not have a
copy of the sixth edition at that time, but the report on which the schedule award was based is
dated March 23, 2010. Dr. Barschi utilized a copy of the sixth edition as he cited Table 16-2 and
properly applied its provisions. His report was based on a complete background and represents
the weight of the evidence. Appellant also argued that a referee physician can only be asked
once for clarification per OWCP procedures. There is no specific limitation in OWCP
procedures for only one request for clarification.14 OWCP noted that the report did not appear to
properly apply Table 16-2 and requested clarification. There is no evidence of error in this
regard.
CONCLUSION
The Board finds that the evidence does not establish more than a five percent permanent
impairment to the left leg.

12

Albert Valverde, 36 ECAB 233, 237 (1984).

13

See, e.g., J.M. Docket No. 11-404 (issued October 26, 2011).

14

OWCP’s procedures indicate that, if the referee’s report is vague or unrationalized, the claims examiner should
secure a supplemental report to correct the defect. Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing
and Evaluating Medical Evidence, Chapter 2.810.11 (September 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 25, 2011 is affirmed.
Issued: January 12, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6