United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Piscataway, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1371
Issued: March 12, 2021

Case Submitted on the Record

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

JURISDICTION
On July 1, 2020 appellant, through counsel, filed a timely appeal from an April 8, 2020
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated July 17, 2019, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 8, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 17, 2016 appellant, then a 48-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on October 14, 2016 she sustained multiple injuries when
her vehicle was hit head on as she was waiting to make a left turn while in the performance of
duty. OWCP accepted the claim for facial laceration, sprain/strain of neck, lumbar sprain, and
contusion of the left knee. It expanded acceptance of appellant’s claim to include right shoulder
labral tear, right carpal tunnel syndrome, left knee lateral meniscus tear, bulging disc at L4-5 with
radiculopathy, and cervical disc displacement at C4-5, C5-6, and C6-7.
On June 5, 2017 Dr. Robert Greenblum, a Board-certified orthopedic surgeon, performed
authorized left knee arthroscopy, partial lateral meniscectomy, major synovectomy, and
chondroplasty of the lateral tibial plateau. He diagnosed complex tear of body and posterior horn
of lateral meniscus, diffuse synovitis, chondromalacia grade I to II medial tibial plateau and
trochlea and grade II to III lateral tibial plateau, and arthropathy of the left lower extremity with
degenerative osteoarthritis of the left knee.
On August 1, 2017 OWCP referred appellant for a second opinion examination, along with
a statement of accepted facts (SOAF), a set of questions, and the medical record to Dr. Timothy
Henderson, a Board-certified orthopedic surgeon, to determine the extent of her work-related
injuries, work tolerance limitations, and treatment recommendations.
In a September 13, 2017 report, Dr. Henderson diagnosed cervical neck sprain with disc
herniation at C5-6, C6-7, right shoulder sprain, lumbar back sprain with disc herniation at L4-5,
and left knee internal derangement with tear of the lateral meniscus. He opined that appellant had
residuals of the accepted conditions, which precluded her from performing the duties of a city
carrier assistant. Dr. Henderson further noted that she was not capable of performing any work at
this time secondary to her multiple injuries. He recommended that appellant continue an additional
two months of physical therapy three times a week, use anti-inflammatories, and be reevaluated in
three months. In a work capacity evaluation (Form OWCP-5c) Dr. Henderson noted that she was
unable to return to work and had not reached maximum medical improvement (MMI).
On October 13, 2017 appellant’s physician requested authorization for a transforaminal
epidural injection into the cervical region.
On October 16, 2017 OWCP requested that Dr. Henderson address whether appellant’s
request for authorization of interlinear cervical/thoracic injection, epidurography, and fluoroguide
spinal injection were medically necessary and causally related to her accepted work injury.
In an October 24, 2017 supplemental report, Dr. Henderson opined that based upon his
previous physical examination and review of the medical evidence the requested procedures were
not medically necessary or causally related to the accepted work injury and conditions.

2

On November 16, 2017 appellant’s physician requested authorization for a transforaminal
epidural injection into the lumbar/sacral region.
By decision dated January 23, 2018, OWCP denied authorization for lumbar and cervical
spine injections finding that the evidence of record did not support that they were medically
necessary to address the effects of the work-related injury.
On March 20, 2018 OWCP requested a supplemental opinion from Dr. Henderson. On
April 2, 2018 OWCP referred appellant for a second opinion examination, along with a SOAF, a
series of questions, and the medical record to Dr. Andrew Farber, an osteopath and Board-certified
orthopedic surgeon, to determine the extent of her work-related injuries, work tolerance
limitations, and treatment recommendations.
In an April 23, 2018 report, Dr. Farber diagnosed neck sprain, lumbar sprain, and status
post left knee arthroscopy. He noted subjective complaints of pain and radicular symptoms in the
neck and back, however, there was no objective evidence of restricted range of motion, weakness,
radiculopathy, or neurologic compromise. Dr. Farber noted that based on his physical examination
appellant did not have residuals related to the surgery performed on June 5, 2016. He opined that
she could return to work full-time full duty and did not require further treatment with regard to the
neck and back. In a Form OWCP-5c Dr. Farber indicated that appellant reached MMI and could
return to regular duty.
On July 17, 20184 OWCP request clarification from Dr. Farber. It requested that he
address whether the accepted conditions had resolved, specifically the facial laceration, neck
sprain, lumbar sprain, contusion of the left knee, right shoulder labral tear, right upper limb carpal
tunnel syndrome, left knee lateral meniscus tear, bulging disc at L4-5 with radiculopathy and
cervical disc displacement at C4-5, C5-6, and C6-7.
In a report dated July 19, 2018, Dr. Farber opined that all of the accepted work conditions
were resolved without residuals and appellant could return to work full-time full duty.
On December 17, 2018 OWCP notified appellant that it proposed to terminate her wageloss compensation and medical benefits as the weight of the medical evidence, represented by the
reports of Dr. Farber, established that she no longer had continued disability from work as a result
of her accepted employment injury.5 It afforded her 30 days to submit additional evidence or
argument if she disagreed with the proposed action.
Dr. Nancy Speez, Board-certified in physical medicine and rehabilitation, on March 14,
2018, diagnosed cervical disc displacement and myofascial pain and requested authorization for
trigger point injections.
On June 20, 2018 appellant was evaluated by Dr. Daniel Rothstein, Board-certified in
anesthesiology, who diagnosed lumbalgia, lumbar and cervical radiculopathy, lumbar and cervical
disc herniation, lumbar and cervical facet syndrome, cervicalgia, and cervical radiculopathy. He
opined that appellant continued to have severe debilitating low back pain with radiation into the
4

OWCP noted the date of the letter as July 17, 2017; however, this appears to be a typographical error.

5

OWCP listed Dr. Sean Lager as the second opinion physician; however, this was a typographical error.

3

lower extremities secondary to lumbar radiculopathy.
transforaminal epidural steroid injections.

Dr. Rothstein recommended bilateral

On January 7, 2019 appellant through counsel objected to the notice of proposed
termination and asserted that she continued to have residuals of her accepted conditions. She
indicated that Dr. Farber did not refer to all of the accepted conditions in his reports and noted that
his findings were contradicted by the prior second opinion physician, Dr. Henderson. Appellant
further asserted that she was sent to Dr. Henderson for a reexamination, but she was examined by
Dr. Farber which she found to be irregular.
On February 6, 2019 the medical examination scheduler for OWCP, Mitchell MCN,
reported that Dr. Henderson left his prior practice and was no longer performing referral
examinations as of February 19, 2018. They received an OWCP referral for reexamination on
March 30, 2018 and advised that Dr. Farber would be a suitable substitute for Dr. Henderson.
By decision dated February 7, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective February 8, 2019, finding that the reports from
Dr. Farber constituted the weight of the medical evidence and established that she was capable of
performing the physical requirements of her date-of-injury position.
On January 30, 2019, Dr. Joseph F. Altongy, a Board-certified orthopedist, treated
appellant for injuries sustained in a motor vehicle accident at work. He presented with persistent
pain in her lower back and left knee. Dr. Altongy diagnosed cervical and lumbar disc
displacement, cervical and lumbar radiculopathy, cervical and lumbar facet syndrome,
sprain/strain of the right shoulder, contusion of the right shoulder and left knee, right shoulder
impingement, chondromalacia of the left patella, and effusion of the left knee. He advised that
continued evaluation of the lumbar spine and left knee was medically necessary and recommended
a new magnetic resonance imaging scan of the lumbar spine and left knee.
On February 14, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review A hearing was held on June 3, 2019.
By decision dated July 17, 2019, an OWCP hearing representative affirmed the decision
dated February 7, 2019.
On April 3, 2020 appellant requested reconsideration. She contended that OWCP
improperly relied on the reports of Dr. Farber to terminate her benefits noting that he was “a regular
second opinion doctor for OWCP.” Appellant further indicated that his report contradicted the
initial second opinion physician’s findings. In support of her request, she resubmitted reports from
Dr. Henderson dated September 13 and October 24, 2017 and Dr. Altongy dated January 30, 2019,
previously of record.
By decision dated April 8, 2020, OWCP denied appellant’s request for reconsideration of
the merits of her claim.

4

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a
matter of right.6 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.7 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.8
A timely request for reconsideration, including all supporting documents, must set forth
arguments, and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.9 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In support of her request for reconsideration, appellant, through counsel, reiterated
arguments that OWCP had improperly terminated her wage-loss compensation and medical
benefits based on reports from Dr. Farber who contradicted the reports of Dr. Henderson, the first
second opinion physician. However, this argument was duplicative of an argument previously of
record and therefore does not constitute a basis for reopening the case.11 Appellant further asserted
that Dr. Farber was “a regular second opinion doctor for OWCP.” She did not show that OWCP
erroneously applied or interpreted a specific point of law, and did not advance a relevant legal
argument not previously considered by OWCP. Consequently, appellant is not entitled to further
review of the merits of her claim based on the first and second above-noted requirements under 20
C.F.R. § 10.606(b)(3).12

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.607.

8

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees Compensation System (iFECS). Id. at Chapter 2.1602.4b.
9

Id. at § 10.606(b)(3); see B.R., Docket No. 19-0372 (issued February 20, 2020).

10

Id. at § 10.608.

11

See B.O., Docket No. 20-0156 (issued May 13, 2010).

12

20 C.F.R. § 10.606(b)(3); see D.S., Docket No. 18-0353 (issued February 18, 2020).

5

The underlying issue in this case is medical in nature, however, appellant did not submit
any relevant and pertinent new medical evidence with her April 3, 2020 request for
reconsideration.
Appellant resubmitted the reports from Dr. Henderson dated September 13 and
October 24, 2017 and Dr. Altongy dated January 30, 2019. As these reports repeat evidence
already in the case record, they are cumulative and do not constitute relevant and pertinent new
evidence. Providing additional evidence that either repeats or duplicates information already in
the record does not constitute a basis for reopening a claim.13 Therefore, it is insufficient to require
OWCP to reopen the claim for consideration of the merits. Because appellant has not provided
relevant and pertinent new evidence, she was not entitled to a review of the merits based on the
third requirement under section 10.606(b)(3).14
The Board therefore finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

13

S.F., Docket No. 18-0516 (issued February 21, 2020); James W. Scott, 55 ECAB 606, 608 n.4 (2004).

14

See 20 C.F.R. § 10.606(b)(3)(iii).

6

ORDER
IT IS HEREBY ORDERED THAT the April 8, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 12, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baton Rouge, LA, Employer
__________________________________________

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

Docket No. 07-2070
Issued: January 12, 2009

Case Submitted on the Record

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

JURISDICTION
On August 3, 2007 appellant’s timely appeal of the May 8, 2007 merit decision of the
Office of Workers’ Compensation Programs’ Branch of Hearings and Review finding he had not
established disability from November 4 through 28, 2004 causally related to his federal
employment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s claim on the grounds
that he failed to establish a recurrence of disability on November 2, 2004; and (2) whether the
Office properly determined that the issue presented was a recurrence of disability as of
November 4, 2004.
FACTUAL HISTORY
On April 21, 1999 appellant, then a 40-year-old maintenance mechanic, filed a traumatic
injury claim alleging that he developed a muscle strain of his left neck and shoulder while

pulling a motor assembly on April 16, 1999. On June 10, 1999 the Office accepted appellant’s
claim for sprain of neck.1 It entered appellant on the periodic rolls. Appellant returned to a
light-duty position on September 21, 2000. In a letter dated September 27, 2000, the Office
informed appellant that his compensation benefits would be reduced effective September 21,
2000 based on his reemployment as a modified maintenance mechanic with wages of $764.38
per week. By decision dated December 7, 2000, it reduced appellant’s compensation benefits to
zero on the grounds that his employment as a modified maintenance mechanic fairly and
reasonable represented his wage-earning capacity and that as his actual wages meet or exceeded
the wages of the job he held when injured he had no loss of wages. Appellant requested an oral
hearing on this decision on January 4, 2001. The hearing representative affirmed the Office’s
December 7, 2000 decision on July 30, 2001. The Board adopted this decision of the hearing
representative in a decision dated August 21, 2002. Appellant continued to claim intermittent
periods of wage-loss compensation due to medical treatment. The Office authorized
compensation payments.
Appellant filed a recurrence of disability claim on November 3, 2004 and alleged that on
November 2, 2004 he was pushing a dust mop and experienced severe muscle spasms in the
back, neck and shoulders. He also filed a claim for compensation on November 5, 2004
requesting compensation for leave without pay from November 4 to 5, 2004.
In a note dated November 3, 2004, appellant’s attending physician, Dr. Martin A.
Langston, a physician specializing in physical medicine and rehabilitation, indicated that
appellant was unable to work for five days and would return to work on November 8, 2004.
Appellant provided a note to his supervisor, Tim Lacombe, dated November 3, 2004 which
stated that while dust mopping in the performance of duty on November 2, 2004 he experienced
a severe muscle spasm in his back, neck and right shoulder. He stated that his pain increased and
that he sought medical treatment resulting in prescriptions for an additional muscle relaxer and
pain reliever. In a letter dated November 17, 2004, the Office requested additional medical
evidence in support of the alleged recurrence of disability.
Appellant filed an additional claim for compensation for the period November 15
through 26, 2004. In a note dated November 12, 2004, Dr. Langston indicated that appellant was
unable to work for two weeks. In a letter dated November 23, 2004, the Office requested that
appellant provide “the evidence requested below.” However, this letter did not include a request
for additional evidence. The Office allowed appellant 30 days for a response.
Dr. Langston completed a note on November 17, 2004 and listed appellant’s complaints
of ongoing posterior cervical pain. He stated that appellant’s magnetic resonance imaging (MRI)
scan showed a disc bulge at C6-7. Dr. Langston stated, “This certainly can account for his acute
cervical pain.” He found appellant totally disabled for 7 to 10 days. In a note dated
November 24, 2004, Dr. Langston indicated that appellant could return to work on
November 29, 2004. In a separate note of the same date, he recommended cervical epidural
steroid injections and released appellant to return to work on November 29, 2004 with additional
work restrictions. Appellant accepted a new light-duty position on December 6, 2004.
1

The hearing representative stated that the Office accepted appellant’s claim for aggravation of cervical strain at
C1-2 and C3-4.

2

By decision dated February 1, 2005, the Office denied appellant’s claim for a recurrence
of disability beginning November 4, 2004. It found that appellant failed to submit the necessary
medical evidence to establish his claim.
Appellant requested an oral hearing on
February 22, 2005.
Appellant underwent a cervical and thoracic MRI scan on February 28, 2007. The report
included documentation of appellant’s prior operative intervention, reversal of cervical lordosis,
prominent bulging or protrusion of the C4-5 intervertebral disc, bulging of the C3-4 disc and
C6-7 disc as well as cervical facet arthrosis. Dr. Langston examined appellant on March 2, 2007
and stated that appellant’s MRI scan demonstrated postsurgical changes of the cervical spine as
well as degenerative disc disease at C4-5 and C3-4. In a report dated March 8, 2007,
Dr. Kevin P. McCarthy, a Board-certified orthopedic surgeon, examined appellant’s February 28,
2007 MRI scan and found a right-sided posterolateral disc protrusion at C4-5 and bulging at C34 and C6-7.
Appellant testified at his oral hearing on April 2, 2007. He stated that since
November 19, 2004 he had worked in a sedentary position monitoring a computer terminal and
performing visual checks on the tray management system. Appellant stated that his initial
disability on November 4 and 5, 2004 was due to medication-related problems. He then
underwent an MRI scan which demonstrated a new disc bulge at C6-7. Appellant stated that his
symptoms had resolved by his return to work on November 29, 2004.
By decision dated May 8, 2007, the hearing representative affirmed the Office’s
February 1, 2005 decision denying appellant’s claimed recurrence of disability beginning
November 4, 2004. The hearing representative found that the record did not contain the
necessary medical opinion evidence to establish that appellant was totally disabled beginning
November 4, 2004 due to his accepted employment injury.2
LEGAL PRECEDENT
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.3

2

Following the Office’s May 8, 2007 decision, appellant submitted additional new evidence. As it did not
consider this evidence in reaching a final decision, the Board may not review the evidence for the first time on
appeal. See 20 C.F.R. § 501.2(c).
3

20 C.F.R. § 10.5(x).

3

Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of establishing by the weight of reliable, probative and
substantial evidence that the recurrence of disability is causally related to the original injury.
The burden includes the necessity of furnishing evidence from a qualified physician who, on the
basis of a complete and accurate factual and medical history, concluded that the condition is
causally related to the employment injury. Moreover, sound medical reasoning must support the
physician’s conclusion.4
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury. In this regard, medical evidence
of bridging symptoms between the recurrence of disability and the accepted injury must support
the physician’s conclusion of a causal relationship. While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.5
The Office’s procedure manual notes that the submission of an incorrect form, such as a
notice of traumatic injury6 rather than a notice of occupational disease is a technical error and
states:
“It is improper to deny a case on the basis that the claimant failed to submit the
correct form. The [claims examiner] must obtain the appropriate notice of injury
or disease if it does not already appear in file.”7
ANALYSIS
Appellant sustained an accepted cervical injury on April 21, 1999. He returned to lightduty work as a modified maintenance mechanic on September 21, 2000. Appellant filed a
recurrence of disability claim on November 3, 2004 alleging on November 2, 2004 he
experienced severe muscle spasms in the back, neck and shoulders while using a dust mop in the
performance of duty.
He then claimed compensation for total disability beginning
November 4, 2004.
In support of his claim for a recurrence of disability, appellant submitted several medical
reports from Dr. Langston, a physician specializing in physical medicine and rehabilitation,
supporting appellant’s claim for disability for work due to cervical pain and cervical
degenerative disc disease. He did not discuss the origin of appellant’s cervical conditions or
4

Ricky S. Storms, 52 ECAB 349, 351-52 (2001).

5

Id.

6

The Office’s regulations define a traumatic injury as a condition of the body caused by a specific event or
incident, or series of events or incidents, within a single workday or shift. Such condition must be caused by
external force, including stress or strain, which is identifiable as to time and place of occurrence and member or
function of the body affected. 20 C.F.R. § 10.5(ee).
7

Federal FECA Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.4(b) (January 2003).

4

attribute this condition to appellant’s accepted employment injury in 1999. Dr. Langston did not
provide an opinion on the causal relationship between appellant’s current cervical condition and
his accepted April 16, 1999 neck sprain. As he failed to provide the necessary medical opinion
evidence on the causal relationship between appellant’s current cervical degenerative disc and
his April 16, 1999 neck strain, his reports do not meet appellant’s burden of proof and are not
sufficient to establish that appellant has sustained a recurrence of disability.
Appellant also submitted a report dated March 8, 2007 from Dr. McCarthy, a Boardcertified orthopedic surgeon, diagnosing a disc protrusion at C4-5. Dr. McCarthy failed to
provide a history including appellant’s April 16, 1999 employment injury, did not discuss the
cause of appellant’s disc protrusion and did not provide any medical evidence supporting
appellant’s claim for a recurrence of disability due to his April 16, 1999 cervical strain.
Appellant has not submitted the necessary medical evidence to establish that his current
cervical conditions and alleged recurrence of total disability are due to his accepted 1999
employment injury. The Board finds that he failed to meet his burden of proof.
The Office adjudicated the issue of whether appellant had established a recurrence of
disability from November 4 through 28, 2004. However, the Board notes that appellant’s claim
does not fall within the definition of a recurrence of disability. Appellant did not experience a
spontaneous change in a medical condition which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment which caused the illness.
He had new exposure to his work, pushing a dust mop on November 2, 2004, which he felt
resulted in muscle spasms in his neck, back and shoulder. This claim should more appropriately
be developed as a claim for a traumatic injury as appellant sustained a condition of the body,
muscle spasms, caused by a specific event or incident, pushing a dust mop, within a single
workday or shift, on November 2, 2004. Proceedings under the Act are not adversarial in nature;
the Office is not a disinterested arbiter and shares responsibility in the development of the
evidence.8 It is the duty of the claims examiner to develop a claim based on the facts at hand and
not solely on the basis of the type of claim filed.9 Appellant has consistently described the
current onset of neck pain as arising on November 2, 2004 while pushing a dust mop. On
remand, the Office should provide appellant with a notice of traumatic injury claim form to
complete if he believes that his condition could have resulted from his November 2, 2004
employment activities.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a recurrence of total disability on November 4, 2004 due to his accepted 1999 neck
strain, as alleged. However, the Board further finds that appellant’s November 2, 2004 injury
should have been developed as a new traumatic injury and that the Office should provide
appellant with the opportunity to develop this claim in accordance with his factual statements
and the Office’s procedures.
8

Walter A. Fundringer, Jr., 37 ECAB 200, 204 (1985).

9

Ronald D. Gustafson, Docket No. 04-1076 (issued August 9, 2004).

5

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2007 decision of the Office of Workers’
Compensation Programs’ is affirmed in part and remanded in part for additional development
consistent with this decision of the Board.
Issued: January 12, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
DEPARTMENT OF COMMERCE, PATENT &
)
TRADEMARK OFFICE, Alexandria, VA,
)
Employer
)
___________________________________________ )
Y.A., Appellant

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

Docket No. 16-0943
Issued: August 16, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 4, 2016 appellant filed a timely appeal of a March 22, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury in
the performance of duty on January 8, 2016.
FACTUAL HISTORY
On February 2, 2016 appellant, then a 44-year-old engineering patent examiner, filed a
traumatic injury claim (Form CA-1) alleging that on January 8, 2016 he injured his back, head,
1

5 U.S.C. § 8101 et seq.

and neck when the back support of his office chair broke. He explained that he fell backwards
onto the floor and hit his head, arm, and shoulder. Appellant stopped work on January 12, 2016
and returned on January 19, 2016. The employing establishment controverted continuation of
pay because the medical evidence did not provide a diagnosis for disability from work.2
Appellant noted that he was injured when he leaned on his office chair. He explained that he did
not do anything “special” and just leaned back and the back support loosened. Appellant noted
that he fell all the way to the floor hitting his head and his left arm twisted. He further noted that
afterwards, he felt pain in his back. Appellant indicated that he did not know what to do as no
one was there. He explained that it was not “life threatening,” but he needed to rest and he
wanted to make the employing establishment aware of the incident.
In a January 12, 2016 treatment note, Dr. Rachel Harold, an internist, advised that
appellant was seen at a Department of Veterans Affairs clinic to receive medical care. She
requested that he be excused from work for a few days.
In a February 9, 2016 letter, OWCP advised appellant that additional factual and medical
evidence was needed. It informed him of the type of evidence needed to support his claim and
requested that he submit such evidence within 30 days. No response or evidence was received.
By decision dated March 22, 2016, OWCP denied appellant’s claim as he did not submit
medical evidence that diagnosed a condition in connection with the work event.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA,3 and that an injury was sustained in the performance
of duty.4 These are the essential elements of each compensation claim, regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
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 In some traumatic injury cases, this
component can be established by an employee’s uncontroverted statement on the Form CA-1.7
2

Appellant completed the box that lost time was covered by leave, leave without pay, or continuation of pay.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

6

Julie B. Hawkins, 38 ECAB 393, 396 (1987).

7

John J. Carlone, 41 ECAB 354 (1989).

2

Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.9
ANALYSIS
In this case, OWCP accepted that on January 8, 2016 the back of his chair broke and he
fell backwards to the floor.
However, OWCP found the medical evidence insufficient to establish that the
employment incident caused an injury. The medical evidence contains no diagnosis and no
reasoned explanation of how the specific employment incident on January 8, 2016 caused or
aggravated an injury.10 For example, the record contains only a January 12, 2016 treatment note
from Dr. Harold who noted treating appellant. In that note, Dr. Harold advised that appellant
was seen at the clinic to receive medical care and requested that he be excused from work for a
few days. However, she did not diagnose a specific condition or specifically address causal
relationship. The Board finds that, in the absence of a medical report providing a diagnosed
condition and a reasoned opinion on causal relationship with the employment incident, appellant
has failed to meet his burden of proof.11
In a February 9, 2016 letter, OWCP informed appellant of the type of evidence needed to
support his claim and requested that he submit such evidence within 30 days. However,
appellant did not submit any additional evidence. Because the medical report submitted by him
does not address how the January 8, 2016 activities at work caused or aggravated a medical
condition, this report is of limited probative value12 and is insufficient to establish that the
January 8, 2016 employment incident caused or aggravated a specific injury.
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.

8

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

10

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
11

Deborah L. Beatty, 54 ECAB 340 (2003).

12

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

3

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
injury in the performance of duty on January 8, 2016.
ORDER
IT IS HEREBY ORDERED THAT the March 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 16, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Lompoc, CA, Employer
__________________________________________

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

Docket No. 08-2050
Issued: August 4, 2009

Case Submitted on the Record

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

JURISDICTION
On July 21, 2008 appellant filed a timely appeal from Office of Workers’ Compensation
Programs’ decisions dated January 2 and June 23, 2008. Under 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits; and (2) whether appellant has established continuing disability after
January 20, 2008, causally related to the accepted employment injury.
FACTUAL HISTORY
Appellant, a 49-year-old correctional counselor, injured his lower back on February 16,
2000, when he was thrown on his back during a self-defense training exercise. He filed a claim
for benefits on February 17, 2000, which the Office accepted for lumbar strain and laxity of the
left sacroiliac joint. Appellant returned to light duty on March 12, 2001. He filed a claim for
recurrence of his employment-related lower back condition on July 10, 2001, claiming that he

sustained a recurrence of his work-related lumbar strain as of July 9, 2001. The Office accepted
the claim for recurrence of lower back strain. It paid compensation for temporary total disability
and placed him on the periodic rolls.
In an April 18, 2002 report, Dr. Barry J. Ross, Board-certified in physical and
rehabilitative medicine, stated that appellant was developing worsening adjustment disorder
related to his chronic pain syndrome. He advised that appellant needed appropriate counseling
for pain management and cognitive and behavioral strategy development. Dr. Ross referred him
to a psychologist, Dr. Annelie S. Purdy, Ph.d and a specialist in pain management, for
psychological evaluation.
In a May 13, 2002 report, Dr. Purdy stated that appellant complained of residual pain and
felt emotionally overwhelmed, lost and confused regarding the insecurity of his future, economic
problems and uncertainty. She indicated that he experienced hopelessness, anxiety and increased
irritability due to his workers’ compensation litigation and his economic problems. Dr. Purdy
stated that appellant was not currently on medication but noted that he briefly received outpatient
therapy while serving in the military during the Vietnam War; he denied suicidal ideation and
homicidal ideation. She related that appellant experienced depression, anxiety and occasional
hallucinations, although she did not notice any paranoid tendencies or psychotic features.
Dr. Purdy diagnosed moderate depressive disorder, symptomatology and residuals from
post-traumatic stress disorder stemming from his war experiences, aggravated by feelings of
vulnerability induced by his work injury and anxiety disorder. She recommended therapy with a
psychologist familiar with chronic pain patients.
In a February 24, 2004 report, Dr. Wesley E. Griffitt, Board-certified in neurosurgery,
noted that appellant had complaints of chronic back pain, which he rated a 5 on a scale of
1 to 10. He stated that diagnostic tests showed no evidence of herniated discs, though a
electromyelogram showed evidence of chronic mid-lower radiculopathy with findings of
degenerative disc disease at L4-5 and a broad-based disc bulge eccentric to the left with some
possible neuroforaminal narrowing on the left. Dr. Griffitt stated that there was no evidence of
significant stenosis. He diagnosed chronic low back pain with history of a lumbar strain and
sacroiliac instability. Dr. Griffitt did not recommend surgical intervention in the low back based
on his examination, his review of the most recent magnetic resonance imaging (MRI) scan study
and appellant’s complaints; he opined that appellant would benefit most with conservative
measures.
To determine appellant’s current condition and to ascertain whether he still suffered
residuals from his accepted condition, the Office referred him for a second opinion examination
with Dr. Edward J. Prostic, Board-certified in orthopedic surgery.
In a report dated September 5, 2007, Dr. Prostic stated findings on examination, reviewed
the medical history and the statement of accepted facts and advised that appellant appeared to
have no more than lumbar sprain and strain caused by his February 2000 work-related accident.
He stated that appellant complained of a constant ache in the center of his low back at the waist
level with radiation across the back and upward. Dr. Prostic also related that he experienced
stiffness and soreness when he awakened in the morning which worsened with sitting, standing,
walking, bending, squatting, twisting, lifting, pushing, pulling, coughing, sneezing and inclement

2

weather. He stated, however, that appellant’s subjective complaints far outweighed the objective
findings. Dr. Prostic opined that he was capable of light-duty work which required limited
mobility and enabled him to change position as needed. He advised that appellant would benefit
from reconditioning efforts if his psychological condition could be improved. Dr. Prostic stated
that his “deconditioning” was predominantly due to psychological distress and other social
factors rather than his orthopedic injury.
In an October 5, 2007 supplemental report, Dr. Prostic stated that appellant’s overall
examination and inability to return to work were highly suggestive of psychological
decompensation. He advised that if appellant were to undergo a thorough psychological
evaluation, he would show either a very high depression scale or very high scores for
hypochondria and hysteria with a lower score for depression. Dr. Prostic stated that based upon
the results of his 2003 MRI scan and the lack of objective physical evidence he saw no physical
reason why appellant could not be able to return to work as a correctional officer. He advised
that, assuming that appellant was deconditioned, reconditioning exercises should allow him to
return to his previous employment. Dr. Prostic stated that the only reasons that would not be
possible would be psychological barrier to improvement, malingering or significant worsening of
his condition subsequent to his 2003 psychological evaluation. He asserted that, even if
appellant underwent a new MRI scan and showed more impressive pathology, his inability to
walk on his heels and toes and inability to flex, extend or laterally bend would be largely due to
either psychological distress or malingering.
On November 16, 2007 the Office issued a proposed termination of compensation claim
to appellant. It found that the weight of the medical evidence, as represented by the opinion of
Dr. Prostic, the second opinion physician, established that his accepted, employment-related
lower back strain had resolved. The Office noted that Dr. Prostic had stated that there was no
physical reason appellant could not return to his job as a correctional officer. While Dr. Prostic
noted a psychological component to appellant’s inability to work, the Office noted that it had
never accepted a psychological condition. Thus, it found that the only factors preventing
appellant from returning to work were nonwork related. The Office allowed appellant 30 days to
submit additional evidence or legal argument in opposition to the proposed termination.
Appellant did not submit any additional medical evidence.
By decision dated January 2, 2008, the Office terminated appellant’s compensation,
finding that Dr. Prostic’s opinion represented the weight of the medical evidence.
By letter dated January 11, 2008, appellant’s attorney requested an oral hearing, which
was held on April 11, 2008. At the hearing, appellant stated that he had a psychiatric condition
stemming from the February 2000 work incident which the Office had accepted. He asserted
that he had requested psychiatric care from the Office and noted that it had approved a
psychiatric consultation. Appellant’s attorney attended the hearing and argued that appellant had
a psychological condition which required further development of the medical evidence. He
noted that Dr. Prostic had indicated that there was a psychological component to appellant’s
inability to return to work and that appellant had been referred for psychological counseling to
assist with pain management. Counsel therefore contended that the Office was required to obtain
an opinion from a psychiatric specialist regarding this psychological component of appellant’s
accepted low back condition and to further develop the medical evidence regarding this issue.

3

By decision dated June 23, 2008, an Office hearing representative affirmed the January 2,
2008 termination decision, finding that the Office met its burden to terminate compensation.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened to order to justify termination or modification of compensation benefits.1
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.2
ANALYSIS -- ISSUE 1
In this case, the Office based its decision to terminate appellant’s compensation on the
opinion of Dr. Prostic, the Office referral physician. In his report dated September 5, 2007,
Dr. Prostic noted that he continued to complain of low back pain and stiffness but appeared to
have no more than some minor symptomatology from the lumbar sprain and strain caused by his
February 2000 work injury. He stated that appellant was capable of light-duty work, which
required limited mobility and enabled him to change position as needed. Dr. Prostic further
stated that appellant’s subjective complaints far outweighed the objective findings and that he
would benefit from reconditioning efforts if his psychological condition could be improved. He
advised that appellant’s “deconditioning” was predominantly due to psychological distress and
other social factors, as opposed to his orthopedic injury. Dr. Prostic reiterated in his October 5,
2007 report, that appellant’s overall examination and inability to return to work were highly
suggestive of psychological decompensation. He stated that in light of the lack of objective
physical evidence he saw no physical reason why appellant could not be able to return to work as
a correctional officer, provided that he underwent psychological counseling and undertook a
thorough reconditioning exercise program return to his previous employment. The Office relied
on the opinion of Dr. Prostic, finding that appellant had no residual disability for work resulting
from the accepted employment injury.
The Board finds that the Office properly found that Dr. Prostic’s referral opinion
represented the weight of the medical evidence and negated a causal relationship between
appellant’s current condition and his accepted February 2000 work injury. Dr. Prostic stated that
it was possible that appellant could return to his former job as a correctional officer if he
commenced retraining and psychological counseling. He opined, however, that in any case he
was capable of returning to light duty with restrictions. Dr. Prostic’s report is sufficiently
probative, rationalized and based upon a proper factual background. The Office therefore
properly relied on his opinion in its January 2, 2008 termination decision.

1

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

2

Id.

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LEGAL PRECEDENT -- ISSUE 2
Once the Office properly terminated appellant’s compensation in its January 2, 2008
decision, the burden of proof shifted to him to establish continuing disability.3
ANALYSIS -- ISSUE 2
Appellant did not submit any additional medical evidence. Instead, his attorney argued
that the Office was required to obtain an opinion from a psychiatric specialist regarding the
psychological component of appellant’s condition and further develop the medical evidence. He
stated that the Office erred in relying on Dr. Prostic’s opinion to terminate compensation because
he indicated that there was a psychological component to appellant’s inability to return to work
and because a psychiatric problem had previously been noted in his medical history. The Board
finds that the Office properly rejected this argument. Although Dr. Prostic noted that a
psychological component was affecting appellant’s overall ability to return to work and stated
that he could benefit from a psychological reconditioning program, this does not diminish the
probative value of his opinion; he opined that appellant could return to light duty even if he did
not undergoing rehabilitative training and psychological therapy. While appellant’s treating
physician, Dr. Ross, did diagnose adjustment disorder and refer him to Dr. Purdy for
psychological counseling and testing in May 2002, Dr. Purdy did not present a probative,
rationalized medical opinion indicating that appellant had a psychological condition causally
related to employment factors. Further, the Office never accepted a psychiatric condition and
appellant never filed a claim based on a psychological condition causally related to his 2000
lumbar strain injury. There is no other indication in the record that a psychological component
contributed to appellant’s inability to work until Dr. Prostic’s September and October 2007
reports. As stated above, Dr. Prostic did not condition his opinion that appellant could return to
gainful employment on a requirement that he undergo additional retraining and psychological
counseling. He examined appellant and reviewed the medical record to determine whether he
still experienced disability related to his 2000 lumbar strain injury. On the basis of this
examination and review, Dr. Prostic concluded that appellant could return to gainful
employment. Thus, the Office hearing representative properly found in his June 23, 2008
decision that appellant had submitted no evidence sufficient to undermine the Office’s finding, in
its January 2, 2008 termination decision, that the opinion of Dr. Prostic represented the weight of
the medical evidence. The Board therefore affirms the June 23, 2008 and January 2, 2008 Office
decisions.
CONCLUSION
Under the circumstances described above, the Board finds that the Office met its burden
of proof to terminate appellant’s compensation benefits and he has not established an
employment-related continuing disability following the termination of his benefits.

3

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the June 23 and January 2, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 4, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL TRANSFER CENTER,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 21-0840
Issued: November 30, 2021

Case Submitted on the Record

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

JURISDICTION
On May 12, 2021 appellant filed a timely appeal from a February 1, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish greater than two
percent permanent impairment of the right lower extremity for which he previously received a
schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 10, 2018 appellant, then a 48-year-old material handler, filed a traumatic injury
claim (Form CA-1) alleging that he injured his left ankle and right knee that day when he stepped
on an uneven sidewalk, rolled his left ankle, and fell onto his right knee while in the performance
of duty.
On April 10, 2018 OWCP accepted appellant’s claim for right knee contusion, other
internal derangements of right knee, right medial meniscus tear, and right knee lateral collateral
ligament sprain.
On April 11, 2019 Dr. Brian Levings, an osteopathic physician Board-certified in
orthopedic surgery, performed OWCP-authorized right knee arthroscopy with partial lateral
meniscectomy, chondroplasty of the patella, and lateral retinacular release.
In a July 19, 2019 report, Dr. Levings noted arthritic changes of the right knee, which were
not symptomatic prior to the January 10, 2018 employment injury. On examination he found full
flexion, mild patellar crepitation, a positive patellofemoral grind test, grade 0 drawer and anterior
drawer signs, and a negative McMurray test. Dr. Levings diagnosed right knee patellofemoral
syndrome, right patella internal derangement, chondromalacia of the right patella, right lateral
meniscus tear due to old injury, and right knee post-traumatic osteoarthritis. He released appellant
to full duty effective July 19, 2019. Dr. Levings released appellant from care on August 30, 2019.
On October 31, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In support of his claim, appellant submitted an October 22, 2019 report by Dr. John W.
Ellis, a Board-certified family practitioner. Dr. Ellis provided a history of injury and treatment,
and noted that appellant had attained maximum medical improvement (MMI) as of that da te. On
examination of the right knee he noted arthroscopic scars, crepitation with movement of the
patella, laxity of the medial collateral ligament with 6 degrees of movement, and laxity of the
lateral collateral ligament with 8 degrees of movement, and flexion limited to 100 degrees based
on three trials of range of motion. Dr. Ellis diagnosed right knee contusion, other internal
derangements of right knee, other tear of right medial meniscus and sprain of lateral collateral
ligament of right knee. He indicated that he would provide an impairment rating using the
diagnosis-based impairment (DBI) method. Utilizing Table 16-3 (Knee Regional Grid), page 510,
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),2 Dr. Ellis determined that appellant’s class of diagnosis (CDX) for mild lateral
collateral ligament laxity resulted in a class 1 impairment with a default value of 10. He noted a
grade modifier for functional history (GMFH) of 1, mild, and a grade modifier for physical
examination (GMPE) of 1 due to a mild loss of flexion. Dr. Ellis noted no applicable grade
modifier for clinical studies (GMCS). After applying the net adjustment formula (GMFH-CDX)
+ (GMPE-CDX), or (1-1) + (1-1), he determined that appellant had a net adjustment score of zero,
which resulted in 10 percent permanent impairment of the right lower extremity due to lateral
collateral ligament laxity. Referring to Table 16-3, page 509, of the A.M.A., Guides, Dr. Ellis
2

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

2

determined that the CDX for lateral meniscectomy resulted in a class 1 impairment with a default
value of 2. He noted a GMFH of 1 and GMPE of 1. Applying the net adjustment formula to
calculate a net adjustment of zero, he found two percent permanent impairment of the right lower
extremity due to lateral meniscectomy. Dr. Ellis noted that, using the range of motion (ROM)
method, appellant had 10 percent permanent impairment of the right lower extremity according to
Table 16-23 (Knee Motion Impairments). He explained that, according to Section 16-2
(Diagnosis-Based Impairment), page 497 of the A.M.A., Guides, only one diagnosis was
appropriate. Dr. Ellis opined that, as the meniscectomy was a contributing factor to ligamentous
laxity, the appropriate diagnosis was lateral collateral ligament laxity of the lateral retinacular
release, equaling 10 percent permanent impairment of the right lower extremity.
On April 24, 2020 OWCP forwarded Dr. Ellis’ report, the medical record, and statement
of accepted facts (SOAF) to Dr. Morley Slutsky, a Board-certified orthopedic surgeon, to serve as
a district medical adviser (DMA). In a May 10, 2020 report, Dr. Slutsky reviewed the SOAF and
medical record. He opined that, according to the DBI rating method, appellant had two percent
impairment of the right lower extremity for partial lateral meniscectomy according to Table 16-3.
Dr. Slutsky noted that no other examiner had assessed lateral collateral ligament laxity, which was,
therefore, an unreliable finding and would not be included in impairment calculations. He opined
that the DBI method should be utilized as it appropriately described appellant’s diagnosed
condition, and the impairment did not meet the criteria under Section 16.7, page 543 to allow
application of the ROM method. Additionally, Dr. Slutsky noted that Dr. Ellis “documented only
one measurement per each joint motion” and, as such, the measurements were not valid for rating
purposes.
OWCP, in a development letter dated September 1, 2020, requested that appellant ask
Dr. Ellis to review Dr. Slutsky’s May 10, 2020 report and submit an addendum/supplemental
report addressing the differences between the impairment ratings.
In a September 24, 2020 letter, Dr. Ellis noted that he had reviewed Dr. Slutsky’s
impairment rating. He contended that Dr. Slutsky erred by noting that Dr. Ellis had performed
only one measurement for each joint motion whereas he had provided three.
On December 3, 2020 OWCP forwarded Dr. Ellis’ September 24, 2020 letter to
Dr. Slutsky for review. It requested that Dr. Slutsky submit an addendum report addressing
Dr. Ellis’ contentions.
In a December 24, 2020 report, Dr. Slutsky acknowledged that Dr. Ellis had provided
appropriate ROM measurements, but that the ROM rating method was inappropriate as ROM was
used as a grade modifier. He reiterated that appellant had two percent permanent impairment of
the right lower extremity for partial lateral meniscectomy.
By decision dated February 1, 2021, OWCP granted appellant a schedule award for two
percent permanent impairment of the right lower extremity. The award ran for 5.76 weeks from
October 22 through December 1, 2019. OWCP noted that the schedule award was based on the
October 22, 2019 report of Dr. Ellis and the December 24, 2020 DMA report by Dr. Slutsky.

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LEGAL PRECEDENT
The schedule award provisions of FECA3 and its implementing regulations 4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member 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 and the Board has conc urred in such
adoption.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards. 6
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the right knee, the relevant position of the right leg for the present
case, reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.7 After CDX
is determined from the Knee Regional Grid (including identification of a default grade value), the
net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).8 Evaluators are directed to provide
reasons for their impairment rating choices, including the choices of diagnosis from regional grids
and calculations of modifier scores. 9
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
extent of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified.10
Section 8123(a) of FECA, which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician (known as a referee physician or impartial medical
specialist) who shall make an examination. 11 This is called a referee examination and OWCP will
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404 (a); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); see also Chapter 3.700.2 and Exhibit 1 (January 2010).
7

See A.M.A., Guides (6 th ed. 2009) 509-11.

8

Id. at 515-22.

9

Id. at 23-28; see R.V., Docket No. 10-1827 (issued April 1, 2011).

10

See supra note 6 at Chapter 2.808.6(f) (March 2017).

11

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

4

select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case. 12 When there exists opposing 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 upon a proper factual
background, must be given special weight. 13
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted appellant’s claim for right knee contusion, other internal derangements of
the right knee, right medial meniscus tear, and right knee lateral collateral ligament sprain. On
October 31, 2019 appellant filed a schedule award claim due to his accepted condition.
In support of his schedule award claim, appellant submitted a report from his physician,
Dr. Ellis, dated October 22, 2019 utilizing both the DBI and ROM methods to calculate a right
knee impairment. Utilizing Table 16-3, page 510, of the A.M.A., Guides,14 Dr. Ellis determined
a class 1 CDX for mild lateral collateral ligament laxity, a GMFH of 1, and a GMPE of 1.
Application of the net adjustment formula resulted in a net adjustment score of zero, which resulted
in 10 percent permanent impairment of the right lower extremity due to lateral collateral ligament
laxity. Dr. Ellis also calculated 2 percent permanent impairment of the right lower extremity due
to lateral meniscectomy, but explained that the 10 percent permanent impairment for ligamentous
laxity better described appellant’s impairment as the meniscectomy contributed to ligamentous
laxity. He explained that, utilizing the ROM method, appellant also had 10 percent permanent
impairment of the right lower extremity according to Table 16-23 (Knee Motion Impairments).
However, Dr. Ellis found that, according to Section 16-2 of the A.M.A., Guides, which allowed
for only one rating methodology, the DBI method rating for ligamentous laxity was the most
appropriate for appellant’s presentation. He ultimately concluded that appellant had 10 percent
permanent impairment of the right lower extremity due to lateral collateral ligament laxity.
In reports dated May 10 and December 24, 2020, Dr. Slutsky, the DMA found appellant
had two percent permanent impairment of the right lower extremity for status post lateral
meniscectomy according to Table 16-3. He opined that Dr. Ellis’ finding of lateral collateral
ligament laxity was unreliable as it had not been observed by another clinician .
As Dr. Ellis, appellant’s attending physician, and Dr. Slutsky, an OWCP DMA, disagree
regarding the nature and extent of appellant’s right lower extremity permanent impairment, the
Board finds that a conflict in medical opinion exists. 15 As noted above, if there is a disagreement
between an employee’s physician and OWCP’s physician, OWCP shall appoint a third physician,
12

20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

13

See Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

14

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

15

L.E., Docket No. 20-1505 (issued June 7, 2021); C.B., Docket No. 20-0258 (issued November 2, 2020).

5

known as a referee physician or impartial medical specialist, who shall make an examination. 16
Because the reports of Dr. Ellis and Dr. Slutsky are virtually of equal weight, appellant must be
referred to an impartial medical examiner to resolve the existing conflict in the medical opinion
evidence regarding the extent of the permanent impairment of his right lower extremity. 17
On remand OWCP shall refer appellant, along with the case record and SOAF, to a
specialist in the appropriate field of medicine for an impartial medical evaluation an d a rationalized
opinion as to the extent of his right lower extremity permanent impairment. Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision
regarding appellant’s schedule award claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: November 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board
16

5 U.S.C. § 8123(a); see R.S. and S.T., supra note 11.

17

M.M., Docket No. 18-0235 (issued September 10, 2019); L.W., Docket No. 19-1208 (issued July 19, 2019).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Plentywood, MT, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1698
Issued: May 16, 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 August 2, 2017 appellant filed a timely appeal from a June 26, 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 has established permanent impairment of his left upper
extremity, warranting a schedule award.
FACTUAL HISTORY
On December 10, 2008 appellant, then a 36-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that he was injured in a snowmobile accident while in the
1

5 U.S.C. § 8101 et seq.

performance of duty. He stopped work the next day, December 11, 2008. OWCP accepted the
claim for fractures of the spinous processes at C5, C6, C7, and T1, a nondisplaced fracture of the
right orbit, a closed head injury with loss of consciousness, subjective visual disturbances not
otherwise specified that had resolved as of December 4, 2009, left brachial plexus lesions, and
postconcussion syndrome. Appellant returned to part-time employment on April 15, 2009 and to
his regular full-time work on December 9, 2009.
On November 4, 2013 appellant filed a claim (Form CA-7) for a schedule award. On
November 13, 2013 OWCP requested that he submit a report from his attending physician
addressing the extent of permanent impairment using the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2
In a report dated December 20, 2013, Dr. Michael S. McManus, Board-certified in
occupational medicine, discussed appellant’s history of injury and his current complaints of left
paracervical pain and left upper extremity dysesthesia with some weakness. On examination, he
found tenderness at the left paracervical region, mild left upper arm atrophy, 4/5 strength testing
of the left wrist and elbow on extension, and decreased sensation to pinprick and light touch of the
left upper extremity. Dr. McManus reviewed the results of objective studies and diagnosed a
closed head injury with loss of consciousness, residual cognitive deficit and personality changes,
a healed nondisplaced fracture of the posterolateral wall of the right orbit, status post fracture
spinous process at C5 through T1, left brachial plexus, resolved left knee strain, and resolved
thoracic and lumbar strains. Referencing Table 15-20 on page 435 of the A.M.A., Guides, he
identified the diagnosis as class one left trunk brachial plexopathy, which yielded a default value
of three percent for the sensory deficit and nine percent for the motor deficit. Dr. McManus
applied grade modifiers and concluded that appellant had 16 percent permanent impairment of the
left arm due to brachial plexus of the lower trunk.
Dr. Kenneth D. Sawyer, an orthopedic surgeon and OWCP medical adviser, reviewed the
evidence on February 12, 2014. He asserted that appellant did not initially complain of left upper
extremity symptoms after his injury. Dr. Sawyer opined that Dr. McManus’ impairment
evaluation was insufficient to support a schedule award as OWCP had not accepted brachial
plexopathy as an accepted condition and as objective test results and findings did not support the
diagnosis. He determined that appellant had no left arm impairment.
By decision dated February 14, 2014, OWCP denied appellant’s schedule award claim. It
found that the opinion of Dr. Sawyer constituted the weight of the evidence and established that
he had no permanent impairment due to his accepted employment injury.
Appellant timely requested an oral hearing before an OWCP hearing representative. After
an August 13, 2014 hearing, in an October 24, 2014 decision, OWCP’s hearing representative
vacated the February 14, 2014 decision. He noted that appellant had left arm symptoms within a
month of his injury. The hearing representative found that a conflict in medical opinion existed
between Dr. McManus and OWCP’s medical adviser regarding whether appellant sustained left
brachial plexopathy due to the December 10, 2008 work injury and whether he had permanent
2

6th ed. (2009).

2

impairment as a result of the condition. He remanded the case for OWCP to refer him to an
impartial medical examiner (IME) to resolve the conflict.
On December 18, 2014 OWCP referred appellant to Dr. Joseph Carney, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a report dated January 16, 2015,
Dr. Carey found “some obvious decreased muscle mass in the left upper arm region” with 5/5
strength and intact sensation. He opined that appellant sustained left brachial plexopathy due to
the employment injury based on the mechanism of injury. Dr. Carney found, however, that he had
no permanent impairment due to his brachial plexus according to Table 15-20 on page 435 of the
A.M.A., Guides.
On January 29, 2015 OWCP expanded acceptance of appellant’s claim to include left
brachial neuritis or radiculitis. On February 3, 2015 it expanded acceptance of the claim to include
postconcussion syndrome.
Dr. Sawyer reviewed the evidence on February 3, 2015 and concurred with the findings of
Dr. Carney that appellant had no permanent impairment of the left upper extremity.
In a February 17, 2015 decision, OWCP denied appellant’s claim for a schedule award. It
found that Dr. Carney and OWCP’s medical adviser represented the weight of the medical
evidence and established that he had no permanent impairment due to his work injury.
Dr. L.J. Weaver, an OWCP medical adviser, reviewed the evidence on February 17, 2015.
The medical adviser indicated that Dr. Carney’s finding of no sensory deficit was unclear given
appellant’s symptoms of pain and paresthesia. Dr. Weaver asserted that muscle atrophy was an
objective measure of motor dysfunction. The medical adviser recommended that OWCP refer
appellant to a neurologist to determine the extent of any permanent impairment.
An April 8, 2015 electromyogram (EMG) and nerve conduction velocity (NCV) study
revealed findings “consistent with [a] history of brachial plexus injury involving [the] lower trunk
and “with at least mild axonal loss and reinnervation since [the] injury of 2008.”
Appellant, on March 1, 2015, requested a telephone hearing with an OWCP hearing
representative. Following a preliminary review on September 9, 2015 OWCP’s hearing
representative vacated the February 17, 2015 decision. She discussed Dr. Weaver’s finding that it
was unclear why Dr. Carney had found no sensory deficit or loss of strength given appellant’s
sensory complaints and the objective findings of atrophy. The hearing representative remanded
the case for OWCP to obtain clarification from Dr. Carney regarding his impairment evaluation
and to provide him with the results of the April 8, 2015 electrodiagnostic testing.
In an addendum dated September 28, 2015, provided by Dr. Carney related that he had
reviewed the February 17, 2015 EMG/NCV and Dr. Weaver’s February 17, 2015 report. He
agreed with Dr. Weaver that appellant should be evaluated by a neurologist given the findings on
electrodiagnostic testing.
On October 16, 2015 OWCP referred appellant to Dr. John S. Wendt, a Board-certified
neurologist, for a second opinion examination. In a report dated October 21, 2015, Dr. Wendt
described his complaints of pain and tingling with some weakness in his arm with periodic
3

discoloration. On examination he found no sensory loss or reduced muscle strength. Dr. Wendt
opined that appellant had no impairment of the upper extremity due to brachial plexus based on
the lack of objective findings.
Dr. Sawyer reviewed the evidence on November 2, 2015 and concurred with Dr. Wendt’s
finding that appellant had no permanent impairment of his left upper extremity.
By decision dated November 9, 2015, OWCP denied appellant’s schedule award claim,
finding that the weight of the medical evidence did not establish that he had a work-related
permanent impairment. On November 13, 2015 appellant requested an oral hearing.
An April 4, 2016 magnetic resonance imaging (MRI) scan of appellant’s cervical spine
showed no evidence of nerve root impingement and old fractures of the T1 and T2 spinous
processes.
Following a preliminary review, in a decision dated April 12, 2016, OWCP’s hearing
representative set aside the November 9, 2015 decision. He found that OWCP had erred in
referring appellant for a second opinion examination rather than for an impartial medical
examination. The hearing representative remanded the case for OWCP to obtain a report from an
IME sufficient to resolve the conflict in medical opinion.
A May 3, 2016 Form ME023, appointment schedule notification, indicates that OWCP
scheduled an appointment with Dr. Linda M. Wray, a Board-certified neurologist. The record
contains a series of bypass screens providing the reasons that OWCP bypassed other physicians
prior to the selection of Dr. Wray, including that the physicians did not perform impartial medical
examinations, had retired, had relocated, or had no valid telephone number.
OWCP, on May 5, 2016, referred appellant to Dr. Linda M. Wray, a Board-certified
neurologist, for an impartial medical examination. In a letter dated May 23, 2016, appellant
advised OWCP that he had previously requested to participate in the selection of the IME. He
maintained that research established that Dr. Wray was biased and also asserted that she worked
with Dr. Wendt. Appellant noted that she acted for the employing establishment in 31 cases before
the Board of Industrial Insurance Appeals in Washington State. He cited the case of J.S.3 In
support of his request to participate in selecting an IME. Appellant submitted a decision and order
from the Board of Industrial Insurance Appeals for the State of Washington finding that
Dr. Wray’s examination was less focused than that of another physician and that her finding that
a claimant could return to her regular work was “not credible, and undermines her opinion on
impairment.”
In a May 23, 2016 response, OWCP requested that appellant submit evidence documenting
that Dr. Wray worked with Dr. Wendt or evidence supporting that she acted for the employing
establishment in 30 other cases.4 It further noted that it had not received a prior request to be
involved in the selection process for the IME.

3

Docket No. 10-2198 (issued July 26, 2011).

4

By decision dated July 25, 2016, OWCP denied appellant’s request to expand the acceptance of his claim to

4

On May 26, 2016 appellant again requested to participate in the selection of the IME.5 He
asserted that his case was similar to J.S. and Geraldine Foster,6 in which the Board found that the
claimants submitted sufficient evidence of bias to warrant participating in selecting the IME.
Appellant provided the address of a website that he maintained showed the other 30 times
Dr. Wray participated in cases for the state. He noted that OWCP had bypassed eight physicians
before selecting Dr. Wray. On June 13, 2016 appellant requested that OWCP issue a decision
regarding whether Dr. Wray was biased or lacked credibility.
In a report dated June 14, 2016, Dr. Wray noted that she initially allowed appellant to
videotape the examination until she received “notification that videotaping was not permitted in
the setting of this exam[ination].” She discussed his complaints of left arm pain that increased
with activity, some weakness, and periodic redness and tingling. On examination, Dr. Wray
measured circumference of the biceps as 30 centimeters on the right and 29.6 centimeters on the
left, and forearm circumference of 27 centimeters on the right and 26.4 centimeters on the left.
She found intact sensation in the fingers and indicated that appellant complained of severe pain
left elbow pain and left median nerve pain at the wrist with percussion. Dr. Wray found “no
neurologic permanent impairment of the left upper extremity.” She noted that OWCP had accepted
fractures of multiple spinous processes and an injury to the left brachial plexus. Dr. Wray related,
“However, at present, there is no clinical objective evidence of cervical radiculopathy or brachial
plexopathy. [Appellant] has normal strength, normal sensation to sharp and two-point
discrimination, normal reflexes and no evidence of muscle atrophy in the left upper extremity.”
She opined that appellant had reached maximum medical improvement (MMI) within six to nine
months of his injury.
In a report dated June 15, 2016, Dr. Arthur Watanabe, a Board-certified radiologist,
discussed appellant’s symptoms of pain in his cervical spine, left subscapular region, left shoulder,
and left upper arm. On examination he found no motor or sensory loss of the upper extremity, but
reduced range of motion of the left upper extremity with “palpable tenderness over the left greater
tuberosity.” Dr. Watanbe diagnosed neck and shoulder pain and recommended a shoulder MRI
scan study and further studies regarding the cervical spine. On August 10, 2016 he performed a
steroid injection on appellant’s left shoulder.
In an August 16, 2016 letter, OWCP asked that Dr. Watanabe provide a copy of the MRI
scan study and address whether appellant had reached MMI.
An MRI scan study arthrogram of the left shoulder dated June 22, 2016, received by OWCP
on September 6, 2016, revealed no internal derangement and no atrophy of the rotator cuff
muscles.
On September 7, 2016 OWCP informed Dr. Wray that appellant continued to receive
treatment for his left shoulder and that one of his physicians had recommended surgery. It
include a right elbow fracture.
5

Appellant sent a similar letter on June 6, 2016 requesting participation in selecting the IME.

6

54 ECAB 435 (2003).

5

requested that she review the current treatment notes relevant to his left shoulder and explain
whether her opinion regarding his left upper extremity condition had altered.
Dr. Wray, in a supplemental report dated September 13, 2016, discussed the progress
reports submitted subsequent to her June 14, 2016 examination. She noted that diagnostic studies
did not reveal an abnormality and that repeated injections to the neck and shoulder area had “no
reported benefit.” Dr. Wray did not find a recommendation for surgery from a physician from the
medical evidence contained in the record and noted that Dr. Watanabe’s examination yielded
normal objective findings. She opined that her opinion was unchanged from her June 14, 2016
report.
Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as OWCP medical
adviser, reviewed the evidence on October 20, 2016 and opined that appellant had no left upper
extremity impairment based on the findings by Dr. Wray.
In a decision dated November 15, 2016, OWCP denied appellant’s schedule award claim.
It found that the report from Dr. Wray and OWCP’s medical adviser established that he had no
permanent impairment of his left upper extremity.
Appellant, on November 23, 2016, requested an oral hearing. At the telephone hearing,
held on May 23, 2017, appellant related that a state workers’ compensation board found that
Dr. Wray was not credible. He asserted that he had demonstrated bias under Board case law.
Appellant maintained that OWCP’s procedures did not require that he establish bias or
unprofessional conduct to participate in the selection of the IME, but instead submit evidence
documenting such bias or conduct. He contended that a judge’s finding that Dr. Wray was not
credible was sufficient to allow him to participate in the selection of the IME. Appellant also
questioned why OWCP did not allow the examination to be recorded.
By decision dated June 26, 2017, OWCP’s hearing representative affirmed the
November 15, 2016 decision. He found that appellant had not provided evidence of bias by
Dr. Wray as the state board did not find that she was either unprofessional or biased. The hearing
representative further found no evidence that Dr. Wray worked with Dr. Wendt and that OWCP
adequately documented reasons for bypassing other physicians. He determined that her opinion
constituted the weight of the evidence and established that appellant had no permanent
employment of his left upper extremity.
On appeal appellant contends that OWCP purposefully selected Dr. Wray after bypassing
other physicians. He asserts that she is not ethical and consistently testified for companies rather
than injured workers. Appellant maintains that she had been reprimanded for judicial authorities
for lying and questions why OWCP bypassed multiple physicians.

6

LEGAL PRECEDENT
The schedule award provisions of FECA,7 and its implementing federal regulations,8 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.9 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.10
The sixth edition requires identifying the impairment Class of Diagnosis (CDX) condition,
which is then adjusted by grade modifiers based on Functional History (GMFH), Physical
Examination (GMPE) and Clinical Studies (GMCS).11 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).
Section 8123(a) of FECA provides that, if there is 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.12 When there exists 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 upon a proper factual background, must be given special
weight.13
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.14 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. OWCP’s medical adviser may review the opinion, but the resolution of the conflict is the
responsibility of the impartial medical specialist.15

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
11

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

12

5 U.S.C. § 8123(a).

13

See Darlene R. Kennedy, 57 ECAB 414 (2006).

14

Supra note 10 at Chapter 2.808.6(f) (March 2017).

15

Id. at Chapter 2.808.g (March 2017).

7

OWCP’s procedures further provide that a claimant who asks to participate in selecting the
referee physician or who objects to the selected physician should be requested to provide his or
her reason for doing so. OWCP is responsible for evaluating the explanation offered. Examples
of circumstances under which the claimant may participate in the selection include documented
bias by the selected physician and documented unprofessional conduct by the selected physician.
If the reason is considered acceptable, OWCP will prepare a list of three specialists, including a
candidate from a minority group if indicated and ask the claimant to choose one. This is the extent
of the intervention allowed by the claimant in the process of selection or examination. If the reason
offered is not considered valid, a formal denial of the claimant’s request, including appeal rights,
may be issued if requested.16
Unlike the selection of second opinion examining physicians, the selection of a referee
physician is made on a strict rotational basis. The selection of a physician to perform a referee
medical examination is done by using Medical Management Application (MMA).17 The MMA
contains the names of physicians who are Board-certified in certain specialties. The services of
all available and qualified Board-certified specialists will be used as far as possible to eliminate
any inference of bias or partiality. This is accomplished by selecting physicians (in the designated
specialty in the appropriate geographic area) in alphabetical order as listed in the roster and
repeating the process until the list is exhausted.18
The MMA contains an automatic and strict rotational scheduling feature. This application
provides for consistent rotation among physicians and records the information needed to document
the selection of the physician.19 Selection of a referee physician should be made only through the
MMA (absent exceptional circumstances) and OWCP may not dictate which physician will serve
as a referee examiner.20 The Board has placed great importance on the appearance as well as the
fact of impartiality and only if the selection procedures which were designed to achieve this result
are scrupulously followed by the selected physician carries the special weight accorded to an
impartial medical specialist.21
ANALYSIS
OWCP accepted that appellant sustained fractures of the spinous processes at C5, C6, C7,
and T1, a nondisplaced fracture of the right orbit, closed head injury with loss of consciousness,
subjective visual disturbances resolved as of December 4, 2009, left brachial plexus lesions, and
postconcussion syndrome due to a December 10, 2008 employment injury. On November 4, 2013
appellant filed a claim for a schedule award.
16

Supra note 10 at Chapter 3.500.4(f) (July 2011).

17

Id. at 3.500.4b (July 2011).

18

Id. at 3.500.4(b)(6) (July 2011)

19

Id. at 3.500.5 (May 2013).

20

Id. at 3.500.5(b) (May 2013).

21

See N.R., Docket No. 16-1613 (issued February 7, 2017); J.O., Docket No. 14-0039 (issued April 2, 2014).

8

OWCP determined that a conflict in medical opinion evidence arose between
Dr. McManus, an attending physician who found 16 percent permanent impairment of the left arm
due to brachial plexus of the lower trunk, and Dr. Sawyer, an OWCP medical adviser who found
that he had no left arm permanent impairment. It initially referred appellant to Dr. Carney, a
Board-certified orthopedic surgeon, for an impartial medical examination. However, on
February 17, 2015 an OWCP medical adviser recommended appellant referral to a neurologist to
determine the extent of any left arm impairment. On September 28, 2015 Dr. Carney concurred
with the OWCP medical adviser’s recommendation that a neurologist evaluate appellant given the
findings on electrodiagnostic testing.
OWCP, on May 5, 2016, referred appellant to Dr. Wray, a Board-certified neurologist, for
an impartial medical examination. On May 23, 2016 appellant requested that OWCP allow him
to participate in the selection of the IME, asserting that Dr. Wray was biased, consistently testified
for employers, and worked with Dr. Wendt, an OWCP referral physician. On May 26, 2016 he
also noted that OWCP had bypassed eight physicians prior to selecting Dr. Wray. As noted,
OWCP’s procedures provide that a claimant may be allowed to participate in selecting the referee
physician when he or she provides a valid reason for the request, for example, documented bias by
the selected physician or documented unprofessional conduct by the selected physician.22 In
support of his request, appellant submitted a decision from the State of Washington’s Board of
Industrial Insurance Appeals finding that Dr. Wray’s opinion that a claimant could resume her
usual employment was “not credible and undermines her opinion on impairment.” He asserts that
under the Board’s findings in Geraldine Foster and J.S., he has met the requirement to submit
evidence of documented bias and thus should be allowed to participate in the selection of the IME.
In Geraldine Foster,23 the claimant timely objected to the selection of the IME and
requested to participate in the IME’s selection. She submitted court decisions from the State of
Pennsylvania denigrating the credibility and integrity of the physician selected by OWCP as the
IME. In J.S.,24 the Board reviewed a state workers’ compensation judge’s finding that the
physician selected as IME was “as a whole preposterous throughout, offensive at times, ill willed
and entirely not credible.” The Board found that the judge’s determination was sufficient to show
documented bias such that appellant should be allowed to participate in selecting the IME.
The circumstances of the present case can be distinguished from the Board’s finding of
documented bias in Geraldine Foster and J.S. In this case the judge for the State of Washington’s
Board of Industrial Insurance Appeals found that Dr. Wray’s opinion was not credible and that her
examination was less focused than that of another physician. The judge, while discrediting the
weight accorded Dr. Wray’s opinion, did not find that she either lacked integrity or provided
preposterous testimony. In J.D.,25 the claimant submitted two insurance decisions finding that a
physician opinion negating disability was not credible. The Board found that, while the court may
have discredited the weight to be afforded to the opinion, that fact without more was not sufficient
22

See supra note 16.

23

Supra note 6.

24

Supra note 3.

25

Docket No. 12-0920 (issued February 15, 2013).

9

to demonstrate bias. Similarly, the finding that Dr. Wray’s opinion was not credible, without more,
is insufficient to constitute documented evidence of bias in this case.26
The Board also finds that Dr. Wray was properly selected to perform the impartial medical
examination as the record supports that OWCP followed its established procedure in her selection.
The record contains a Form ME023 documenting the selection of Dr. Wray and a log of bypassed
physicians, including bypass codes and explanations of why each physician was bypassed, and a
certification that the MMA had been used to select the referee physician. The logs indicated that
OWCP bypassed eight physicians prior to selecting Dr. Wray either because the physician did not
perform impartial medical examinations, had retired or relocated, or as the telephone number was
no longer valid. The Board finds that OWCP provided adequate documentation to establish that
it properly utilized its MMA system in selecting Dr. Wray.27
When a case is referred to an impartial medical examiner for the purpose of resolving a
conflict, the opinion of such specialist, is sufficiently well rationalized and based on a prior factual
and medical background, must be given special weight.28 The Board finds that Dr. Wray’s report
is entitled to special weight and establishes that appellant has no ratable permanent impairment of
the left upper extremity.
On June 14, 2016 Dr. Wray reviewed appellant’s complaints of left arm pain worse with
activity, weakness, and intermittent redness and tingling. On examination, she reported
measurements of biceps and forearm circumference, found normal strength, sensation, reflexes,
and no left upper extremity atrophy. Dr. Wray concluded that appellant had no neurological
impairment of the left arm or objective evidence demonstrating cervical radiculopathy or brachial
plexopathy. She asserted that he had no permanent impairment of the left upper extremity from a
neurological standpoint. In a supplemental report dated September 13, 2016, Dr. Wray reviewed
the recent progress reports and diagnostic studies and related that her opinion regarding the
question of permanent impairment was unchanged. Her opinion is well rationalized and based on
a proper factual and medical history. Dr. Wray accurately summarized the relevant medical
evidence, provided detailed findings on examination and reached conclusions about appellant’s
condition which comported with her findings.29 As her report is detailed, well rationalized and
based on a proper factual background, her opinion is entitled to the special weight accorded an
IME.30
On appeal appellant contends that OWCP purposefully selected Dr. Wray after bypassing
other physicians, that she testified for companies instead of injured workers, and that she had been
reprimanded for lying. He also notes that OWCP bypassed multiple physicians prior to selecting

26

Id.

27

See S.L., Docket No. 14-1250 (issued December 2, 2015); B.H., Docket No. 14-0423 (issued June 26, 2014).

28

See M.S., Docket No. 15-1064 (issued June 15, 2016); V.G., 59 ECAB 635 (2008).

29

Manuel Gill, 52 ECAB 282 (2001).

30

Supra note 21.

10

Dr. Wray. As discussed, however, appellant has not submitted sufficient evidence to document
bias by Dr. Wray, and OWCP properly used its MMA system in selecting her as IME.
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 employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established permanent impairment of his left upper
extremity, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 16, 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

11