United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., claiming as the widow of D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Federal Way, WA, Employer
__________________________________________

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

Docket No. 07-2044
Issued: February 26, 2008

Case Submitted on the Record

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

JURISDICTION
On July 30, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 28, 2007 decision, finding that she had received an overpayment
of compensation in the amount of $12,143.80 and denying waiver of the overpayment. 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 appellant received an overpayment of compensation in the
amount of $12,143.80 because she concurrently received Social Security Administration (SSA)
death benefits attributable to Federal Employees’ Retirement System (FERS) and benefits under
the Federal Employees’ Compensation Act for the period June 26, 2000 through March 17, 2007;
and, if so, (2) whether the Office properly denied waiver of the overpayment.
FACTUAL HISTORY
Appellant’s husband died in the performance of duty on June 26, 2000 when he was
electrocuted. At the time of his death, the employee was covered by FERS. On August 16, 2000

appellant filed a claim for death benefits under the Act on behalf of herself and her minor
daughter. At the time of her application, appellant informed the Office that she and her daughter
were also in receipt of social security death benefits.1 The Office paid compensation to appellant
and her daughter effective August 26, 2000. However, no adjustments were made for social
security benefits attributable to FERS.
In a March 7, 2007 memorandum to the file, a claims examiner stated that appellant and
her daughter had received an overpayment of compensation in the amount of $12,143.80, for the
period June 26, 2000 through March 17, 2007, due to the Office’s failure to include a FERS
offset. The record contains a document entitled “FERS Offset Calculation,” which ostensibly
calculated the total amount overpaid to appellant and her daughter for the period in question.
The document showed a breakdown for both appellant and her daughter as follows:
SSA rate with FERS: Appellant -- $18,042.45; Daughter -- $7,850.70
SSA rate [w/o] FERS: Appellant -- $16,187.30; Daughter -- $7,150.00
Difference:

Appellant -- $1,855.15; Daughter -- $700.70

Extension:

Appellant - $5,084.80; Daughter - $7,059.00

Total FERS offset due for Appellant: $5,084.80
Total FERS offset due for daughter - $7,059.00
Total due for Appellant and child - $12,143.80.
On April 9, 2007 the Office issued a preliminary finding that an overpayment of
$12,143.80 occurred for the period June 26, 2000 through March 17, 2007 because appellant and
her daughter concurrently received SSA death benefits and compensation benefits under the Act,
without offset for the amount of SSA death benefits attributable to FERS. The Office further
found that appellant was at fault in creating the overpayment because she knew or should have
reasonably known that she was accepting compensation to which she was not entitled. The
Office advised that, if appellant disagreed with the fact or amount of overpayment, she could
submit supporting evidence or arguments and request a prerecoupment hearing within 30 days.
The Office provided FERS overpayment calculation worksheets which showed the SSA rate with
FERS and the SSA rate without FERS for relevant time periods. The Office stated, “The
difference is what would have been offset or reduced from your FECA benefits.”
On April 25, 2007 appellant contested the overpayment and requested waiver. Stating
that she had fully disclosed her receipt of Social Security Death benefits, and had been advised
by the Office to apply for benefits under the Act, she contended that she was not at fault in the
creation of any overpayment. She further indicated that repayment of the overpayment would
create a hardship. Appellant also submitted a completed overpayment recovery questionnaire
dated April 27, 2007, in which she requested a telephone conference. Appellant reported that her
1

The record reflects that, in subsequent requests for continued compensation benefits, appellant indicated that she
and her daughter were in receipt of social security death benefits.

2

monthly income was $3,740.00, and that her expenses were $3,535.00 to $3,635.00. She
reported assets in the amount of $359,814.00. Appellant stated that the Office had not provided
evidence that she received FERS benefits in addition to her monthly benefits under the Act.
During the June 6, 2007 telephone conference, appellant reiterated her contention that she
should not be found to be at fault in the creation of the overpayment, as the benefits received
resulted from the advice of the Office and the employing establishment. The claims examiner
informed appellant that he found her to be without fault in creating the overpayment, but would
issue a separate decision as to waiver.
By decision dated June 28, 2007, the Office finalized the overpayment of compensation
in the amount of $12,143.80 for the period June 26, 2000 through March 17, 2007. The Office
found that appellant was not at fault in the creation of the overpayment, but that she was not
entitled to waiver, due to her ability to repay the overpayment amount. Appellant was instructed
to forward the entire amount of the overpayment to the Office immediately.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Act provides for limitations on the right to receive compensation and
states in pertinent part:
“(d) Notwithstanding the other provisions of this section, an individual receiving
benefits for disability or death under this subchapter who is also receiving benefits
under [S]ubchapter [3] of [C]hapter 84 of this title or benefits under [T]itle [2] of
the [SSA] shall be entitled to all such benefits, except that --”
***
“(2) in the case of benefits received on account of age or death under [T]itle [2] of
the [SSA,] compensation payable under this subchapter based on the federal
service of an employee shall be reduced by the amount of any such social security
benefits payable that are attributable to [f]ederal service of that employee covered
by [C]hapter 84 of this title.”2
FECA Bulletin No. 97-9 states: FECA benefits have to be adjusted for the FERS portion
of SSA benefits. The portion of the SSA benefit earned as a [f]ederal [e]mployee is part of the
FERS retirement package and the receipt of FECA benefits and [f]ederal retirement concurrently
is a prohibited dual benefit.3

2

5 U.S.C. § 8116(d)(2); see also 20 C.F.R. § 10.421(d); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Dual Benefits, Chapter 2.1000.4e, 11(a)-(b) (February 1995); FECA Bulletin No. 97-9 (issued February 3, 1997).
3

FECA Bulletin No. 97-9 (issued February 3, 1997).

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A final decision of the Office shall contain findings of fact and a statement of reasons.4
With respect to overpayment decisions, the Office must provide clear reasoning showing how the
overpayment was calculated.5
ANALYSIS -- ISSUE 1
The evidence supports that at the time of his death, the employee was a participant in
FERS. The record reflects that appellant and her daughter received full compensation benefits,
together with SSA death benefits from June 26, 2000 through March 17, 2007, without an offset
for social security benefits attributable to FERS. The portion of the SSA benefits attributable to
an employee’s federal service is part of the FERS retirement package, and the receipt of benefits
under the Act and federal retirement benefits concurrently is a prohibited dual benefit.6 Because
appellant concurrently received compensation under the Act and SSA death benefits, which were
not adjusted for FERS, during the period June 26, 2000 through March 17, 2007, the Board finds
that she erroneously received a dual benefit during that period of time. Therefore, the Board
affirms the fact of overpayment.
The Board finds that the Office has not adequately explained how it calculated the
amount of overpayment. The record includes a document entitled “FERS Offset Calculation,”
which ostensibly reflects the total amount overpaid to appellant and her daughter for the period
in question. The document indicates: the SSA rate with FERS for appellant and her daughter for
the period in question was $25,893.15 ($18,042.45 and $7,850.70, respectively); the SSA rate
without FERS was $23,337.30 ($16,187.30 and $7,150.00, respectively), reflecting a difference
of $2,555.85 ($1,855.15 and $700.70, respectively). The Office informed appellant that the
difference between the SSA rates with and without FERS was the amount that would have been
reduced from her benefits under the Act. The document further indicates that, by “Extension,”
the total FERS offset due for appellant and her daughter is $12,143.80 ($5,084.80 and $7,059.00,
respectively). However, the Office did not explain how it arrived at the “extension” figure,
which is identical to the alleged overpayment amount. The Board notes that multiplying
$2,555.85 by the number of months involved in the period of the overpayment does not yield
$12,143.80. As noted above, the Office is required to provide clear reasoning showing how the
overpayment was calculated.7 In this case, the Board is not able to determine from the
information and evidence submitted by the Office, the correct amount of overpayment.
Therefore, the case will be remanded to the Office for further development regarding the amount
of overpayment. The Office should fully explain its rationale and provide adequate
documentation to support its explanation. After such further development, the Office should
issue an appropriate decision.

4

20 C.F.R. § 10.126 (1999).

5

James Tackett, 54 ECAB 611 (2003); Sandra K. Neil, 40 ECAB 924 (1989).

6

FECA Bulletin No. 97-9 (issued February 3, 1997).

7

James Tackett, supra note 5; Sandra K. Neil, supra note 5.

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CONCLUSION
The Board finds that appellant received an overpayment in compensation from June 26,
2000 through March 17, 2007, due to the concurrent receipt of social security death benefits and
workers’ compensation benefits, without offset for FERS. The Board finds, however, that the
case is not in posture for a decision regarding the amount of overpayment, and the case must be
remanded for further development on that issue. Therefore, it is premature to address appellant’s
eligibility for waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed as to the fact of overpayment, and set aside with
respect to the amount of overpayment and remanded to the Office for further action consistent
with this decision of the Board.
Issued: February 26, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1813
Issued: May 23, 2018

Case Submitted on the Record

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

JURISDICTION
On August 23, 2017 appellant, through counsel, filed a timely appeal from April 7 and
June 12, 2017 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether OWCP abused its discretion in denying authorization for
requested right hip replacement surgery; and (2) whether appellant met his burden of proof to
1

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

5 U.S.C. § 8101 et seq.

establish a right knee or hip condition commencing January 29, 2016 causally related to factors of
his federal employment from January 26 through 28, 2015.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
OWCP accepted that on January 26, 2006 appellant, then a 54-year-old custodian,
sustained a right medial meniscus tear when he stepped on a pallet jack while dumping trash and
fell, twisting his right knee. He underwent right knee arthroscopy on February 14, 2006.4 OWCP
also accepted that on November 30, 2007 appellant sustained left shoulder and right knee injuries
when his right knee gave way while moving a floor mat. Appellant asserted that he injured his
“pelvis” when he fell to the floor. Following the injuries, he returned to full duty for approximately
one year and was then assigned modified duty.
A November 30, 2007 right hip x-ray demonstrated shortening of the right femoral neck
without obvious fracture or dislocation, possibly due to a congenital or developmental cause.
Dr. Glenn Zuck, an attending osteopath Board-certified in orthopedic surgery, performed
an authorized repeat right knee arthroscopy on April 1, 2008, with partial medial and lateral
meniscectomies, chondroplasty, and debridement of a partial anterior cruciate ligament tear. In a
November 22, 2010 report, he obtained right hip x-rays demonstrating “changes about the humeral
head and proximal femur consistent with his preexisting diagnosis as a child [of] Legg-CalvePerthes disease.”5
Dr. Alvin Ong, an attending Board-certified orthopedic surgeon, submitted reports from
November 3, 2011 to May 21, 2013 in which he summarized appellant’s treatment for the accepted
injuries. On examination he found restricted motion of the right hip in all planes, a 0.25 inch leg
length discrepancy with the right leg shorter than the left. Dr. Ong obtained right hip x-rays which
demonstrated significant dysplasia “with evidence of previous Legg-Perthes syndrome.” He
diagnosed right hip dysplasia with Legg-Perthes syndrome accelerated and exacerbated by the
accepted injury. Dr. Ong also found continuing degeneration of the right knee. He opined that
appellant required a total right hip arthroplasty. Dr. Ong requested that OWCP authorize the
procedure.
On June 7, 2013 OWCP obtained a second opinion from Dr. Stanley Askin, a Boardcertified orthopedic surgeon, regarding whether the requested right hip arthroplasty was causally
3

Docket No. 15-1216 (issued September 22, 2016); Docket No. 11-0213 (issued September 21, 2011).

4
OWCP accepted the claim under File No. xxxxxx381, which it later doubled with the present claim, File No.
xxxxxx341. It also authorized an arthroscopic left rotator cuff repair, performed on June 13, 2008.
5

On January 3, 2012 OWCP obtained a second opinion from Dr. Kenneth P. Heist, Board-certified in orthopedic
surgery. Dr. Heist related appellant’s complaints of right knee instability, and right hip pain and stiffness. He found
restricted right hip motion in all planes and degenerative arthritis of both knees. Dr. Heist opined that appellant had
“degenerative joint disease that has been accelerated by his employment.”

2

related to the accepted injuries. Dr. Askin reviewed the medical record and a statement of accepted
facts (SOAF). He noted that appellant had insulin dependent diabetes mellitus and was obese. On
examination Dr. Askin observed a right-sided limp, a right knee effusion, medial compartment
osteoarthritis of the right knee, and limited right hip motion. He opined that appellant’s
degenerative arthritis of the right knee and rip hip was caused primarily by morbid obesity.
By decision dated June 21, 2013, OWCP denied appellant’s request to authorize a right hip
arthroplasty, based on Dr. Askin’s opinion. Following additional development,6 it issued
December 6, 2013 and March 17, 2015 decisions which affirmed the denial of requested right hip
arthroplasty.
On January 26, 2015 appellant returned to sedentary work for four hours a day clearing
carriers and performing clerical duties.
In January 29 and April 2, 2015 reports, Dr. Ong opined that walking back and forth across
the plant floor from January 26 to 29, 2015 worsened the accepted occupational injuries worsened
and aggravated preexisting Legg-Perthes disease and osteoarthritis of the right hip.
On May 11, 2015 under File No. xxxxxx985, appellant claimed a recurrence of disability
(Form CA-2a) commencing January 29, 2015. He contended that on January 26, 2015, he was
assigned to process new routes which required him to walk across the plant floor several times a
day. Appellant asserted that walking at work caused a significant increase in right knee and right
hip pain. He stopped work on January 29, 2015 and did not return. OWCP administratively
converted the recurrence claim to one for occupational disease and processed it under OWCP File
No. xxxxxx341.
To assess the nature and extent of appellant’s right knee condition under OWCP File No.
xxxxxx985, OWCP obtained a second opinion on May 12, 2015 from Dr. Noubar Didizian, a
Board-certified orthopedic surgeon. Dr. Didizian reviewed the medical record and a SOAF. On
examination, he observed a Trendelenburg gait on the right, limited right hip motion, and
crepitation in both patellae. Dr. Didizian opined that appellant’s right knee had deteriorated such
that he would require a total right knee arthroplasty. He commented that appellant’s Legg-Perthes
disease of the right hip had progressed naturally to degenerative osteoarthritis, independent of the
accepted injuries or other external factors. Dr. Didizian opined that appellant could perform
sedentary duty for four hours a day.
In an October 20, 2015 development letter, OWCP notified appellant of the type of
additional evidence needed to establish his claim for a new occupational disease of the right knee
and right hip. It requested that he submit factual evidence corroborating the identified work
factors, and a medical report explaining how and why those duties would cause the claimed right
hip and knee conditions. OWCP afforded appellant 30 days to submit such evidence.

6

Counsel submitted reports from Dr. Ong dated from January 7, 2014 to January 29, 2015. Dr. Ong opined that
the accepted January 26, 2006 employment incident exacerbated quiescent Legg-Perthes disease, precipitating
degeneration and eventual immobility of the right hip.

3

By decision dated December 18, 2015, under OWCP File No. xxxxxx341, OWCP denied
appellant’s occupational disease claim for a right hip and knee condition commencing
January 29, 2015.
In a December 29, 2015 letter, counsel requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review, held April 18, 2016. At the hearing, appellant stated
that he began work at the employing establishment as a clerk on February 14, 1987, and
transitioned to the custodial craft in 2005. After the two accepted injuries, he performed full-duty
custodial work for about one year, then was assigned to part-time light duty as a custodian.
Appellant was subsequently assigned to clear carrier accountables, a sedentary clerical job, for
four hours a day. He alleged that, in December 2014, he was informed that his job had been
abolished. Appellant accepted a sedentary clerical position in late December 2014. When he
reported for duty on January 26, 2015, he was assigned work that required him to walk across the
plant floor several times a day, a distance of at least 100 feet. Appellant asserted that walking on
the plant floor aggravated his right hip and right knee, totally disabling him.
Appellant submitted additional medical evidence. On March 15, 2016 Dr. Ong reviewed
Dr. Didizian’s opinion. He attributed appellant’s right knee and right hip conditions to the
January 26, 2006 and November 30, 2007 accepted injuries. Dr. Ong opined that appellant was
unable to perform his light-duty job as of January 2015 as his right hip and knee deformities, leg
length discrepancy, and significant antalgic gait disabled him from walking across the workroom
floor as required by his new duties. He opined that appellant required total right hip and right knee
replacements. A June 30, 2006 progress report noted that appellant planned to participate in a
weight reduction program before having surgery.
By decision dated July 5, 2016, under OWCP File No. xxxxxx341, an OWCP hearing
representative set aside the December 18, 2015 decision, finding that Dr. Ong’s reports were
sufficient to warrant additional development. OWCP directed that on remand of the case,
appellant, the medical record, and a SOAF should be referred to an appropriate specialist to
ascertain if his work duties caused or aggravated his right hip and right knee conditions.
By decision dated September 22, 2016,7 the Board set aside OWCP’s March 17, 2015
decision finding that there was a conflict of medical opinion between Dr. Ong, for appellant, and
Dr. Askin, for the government, regarding the etiology of appellant’s right hip condition. The Board
directed OWCP to refer appellant to an impartial medical examiner to resolve the conflict.
On remand of the case, under OWCP File No. xxxxxx985, OWCP selected Dr. Ian B. Fries,
a Board-certified orthopedic surgeon, as impartial medical examiner. It provided him a
September 27, 2016 SOAF which listed the accepted injuries and authorized surgeries, and
summarized appellant’s work history.

7

Docket No. 15-1216 (issued September 22, 2016).

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Dr. Fries provided a November 15, 2016 report8 in which he reviewed the medical record
and SOAF. He commented that there were no medical records from the January 26, 2006
occupational injury. Dr. Fries noted that appellant had related a knee injury while playing football
in high school, which required “a likely open medial meniscectomy.” Appellant was also injured
in a 1981 motor vehicle accident, which “fractured his pelvis and ribs.” On examination Dr. Fries
observed an antalgic gait, inability to bear full weight on his right leg, a 20 degree flexion
contracture of the right knee, severely restricted motion of the lumbar spine and right hip, surgical
scars of the right knee, severely restricted lumbar motion, and morbid obesity. Appellant also had
insulin-dependent diabetes mellitus. Dr. Fries diagnosed Legg-Perthes disease of the right hip
with secondary degenerative osteoarthritis, degenerative osteoarthritis of the right knee, diabetes
mellitus, bilateral diabetic neuropathy and edema of the lower extremities, atrial fibrillation, and
morbid obesity. He opined that appellant’s right hip condition was attributable entirely to
congenital Legg-Perthes disease, an idiopathic condition that progressed naturally to degenerative
osteoarthritis unrelated to any musculoskeletal trauma. Dr. Fries noted that, while a right hip
arthroplasty might be medically necessary, it was unrelated to the accepted injuries. He
commented that appellant was a poor surgical candidate due to obesity, diabetes, and cardiac
issues.
On December 8, 2016 OWCP doubled OWCP File No. xxxxxx341 with OWCP File No.
xxxxxx985, with the latter as the master claim number.
By decision dated December 13, 2016, under File No. xxxxxx341, OWCP denied
appellant’s claim for a new occupational disease commencing January 29, 2016, based on
Dr. Fries’ opinion as the weight of the medical evidence.
In a December 21, 2016 letter, OWCP requested that Dr. Fries review additional medical
records regarding the January 26, 2006 employment injury from OWCP File No. xxxxxx381, and
indicate any change in his prior opinion.
In a December 23, 2016 letter, appellant advised that the limited-duty job he accepted was
for four hours of sedentary duty daily with no walking. Upon reporting January 26, 2015, the
postmaster added additional carrier routes to appellant’s clearance duties, which required him to
walk approximately 100 feet across the plant floor several times a day.
Pursuant to the July 5, 2016 remand decision, under OWCP File No. xxxxxx341, OWCP
obtained a January 6, 2017 second opinion report from Dr. William Dinenberg, a Board-certified
orthopedic surgeon. Dr. Dinenberg reviewed the medical record and a SOAF. On examination he
observed an antalgic gait and significantly restricted right hip motion. Dr. Dinenberg opined that
appellant’s preexisting Legg-Perthes disease of the right hip was aggravated and accelerated by
the November 30, 2007 employment injury, which resulted in degenerative changes that would
require a total right hip arthroplasty. Appellant also required a total right knee arthroplasty.
Dr. Dinenberg opined that appellant remained totally disabled for work due to sequelae of the
accepted injuries.

8
The first page of the report is dated November 15, 2016. The subsequent pages of the report are dated
November 17, 2016.

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In a January 9, 2017 supplemental report, Dr. Fries noted that appellant had a right knee
injury in adolescence while playing football, which required an arthroscopy to repair a probable
torn ACL and meniscus. As appellant had a second right medial meniscal tear on January 26, 2006
with two subsequent surgeries, his right knee was likely not functioning normally before
November 30, 2007. Dr. Fries opined that the medical record prior to November 30, 2017 did not
document a right hip injury. He explained that appellant’s “advancing right hip degenerative
arthritis secondary to Legg-Perthes disease [was] not due to work-related injury sustained on
November 30, 2007” or to any other employment factor.”
By decision dated January 31, 2017, OWCP denied appellant’s request to authorize a total
right hip arthroplasty, based on Dr. Fries’ opinion.
In a February 7, 2017 letter, counsel requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review, held May 9, 2017. At the hearing, he contended that
Dr. Fries’ opinion was insufficient to resolve the conflict of medical opinion as it was incomplete
and poorly rationalized.
By decision dated April 7, 2017, OWCP affirmed the denial of a new occupational disease
claim under OWCP File No. xxxxxx341. It accepted that appellant walked 100 feet across the
plant floor several times a day from January 26 to 29, 2015 as alleged. OWCP found, however,
that the medical evidence of record did not support a causal relationship between the accepted
work factors and a right knee or hip condition.
By decision dated June 12, 2017, under OWCP File No. xxxxxx985, OWCP denied
authorization of a total right hip replacement, based on Dr. Fries’ opinion as the weight of the
medical evidence.
LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of FECA states in pertinent part: “The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely
to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of
the monthly compensation.”9
The Board has found that OWCP has great discretion in determining whether a particular
type of treatment is likely to cure or give relief.10 The only limitation on OWCP’s authority is that
of reasonableness.11 Abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts. It is not enough to merely show that the evidence

9

5 U.S.C. § 8103.

10

Vicky C. Randall, 51 ECAB 357 (2000).

11

Lecil E. Stevens, 49 ECAB 673 (1998).

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could be construed so as to produce a contrary factual conclusion.12 For a surgery to be authorized,
a claimant must submit evidence to show that the requested procedure is for a condition causally
related to the employment injury and that it is medically warranted. Both of these criteria must be
met in order for OWCP to authorize payment.13
Section 8123(a) of FECA provides that when there is a disagreement between the physician
making the examination for the United States and the physician of the employee, a third physician
shall be appointed to make an examination to resolve the conflict.14 When there are opposing
medical reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical evidence.15
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for a right medial meniscus tear sustained on
January 26, 2006 when he stepped on a pallet jack, and left shoulder and right knee injuries
sustained on November 30, 2007 when he fell while moving a floor mat. It authorized a
February 14, 2006 right knee arthroscopy, an April 1, 2008 right knee arthroscopy, and June 13,
2008 arthroscopic left rotator cuff repair. Dr. Ong subsequently requested that OWCP authorize
a total right hip arthroplasty.
As noted, on a prior appeal,16 the Board found a conflict in the medical evidence between
Dr. Ong, for appellant, and Dr. Askin, for OWCP, with regard to whether the proposed right hip
arthroplasty was necessitated by the accepted January 26, 2006 and November 30, 2007
employment injuries. To resolve the conflict, it properly referred appellant to Dr. Fries, a Boardcertified orthopedic surgeon, pursuant to section 8123(a) of FECA, for an impartial medical
examination and an opinion on the matter.17
The Board finds that the well-rationalized opinion of Dr. Fries constitutes the special
weight of the medical evidence regarding whether the requested right hip arthroplasty would be
necessitated by residuals of appellant’s January 26, 2006 and November 30, 2007 work injuries.
In his November 16, 2016 and January 9, 2017 reports, Dr. Fries accurately described
appellant’s history and presented a thorough review of his medical records from both traumatic
injury claims and the occupational disease claim. He also provided detailed findings on clinical
examination. Dr. Fries explained that appellant’s congenital Legg-Perthes disease was idiopathic
in nature and had progressed in the expected manner according to the medical literature. He

12

Rosa Lee Jones, 36 ECAB 679 (1985).

13

R.C., 58 ECAB 238 (2006).

14

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

15

Delphia Y. Jackson, 55 ECAB 373 (2004).

16

See supra note 7.

17

5 U.S.C. § 8123(a).

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emphasized that the course of Legg-Perthes disease was unaffected by the accepted injuries or any
other external musculoskeletal trauma.
The Board finds that Dr. Fries’ opinion that the need for the recommended total right hip
arthroplasty was not causally related to the accepted injuries is entitled to the special weight
accorded a referee examiner and represents the weight of the evidence.18 The evidence establishes
that the need for right hip surgery was not causally related to the accepted conditions. OWCP did
not abuse its discretion in denying authorization.19
On appeal counsel contends that Dr. Fries’ opinion is of insufficient probative value to
resolve the conflict of opinion as it was based on an inaccurate SOAF that did not refer to
diagnostic imaging performed after the 2006 and 2007 employment injuries.20 The Board finds,
however, that the SOAF accurately listed appellant’s accepted injuries and authorized surgeries.
Also, the medical record provided to Dr. Fries contained the imaging studies performed after both
accepted injuries. Dr. Fries mentioned those studies in his reports.
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.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA21 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.22 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.23
An occupational disease is defined as a condition produced by the work environment over
a period longer than a single workday or shift.24 To establish that an injury was sustained in the
performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of the disease or condition for which
18

Manuel Gill, 52 ECAB 282 (2001).

19

L.D., 59 ECAB 648 (2008).

T.G., Docket No. 07-2231 (issued June 2, 2008) in support of the proposition that a physician’s report is not
entitled to the weight of the medical evidence if based on an inaccurate SOAF); A.C., Docket No. 07-2423 (issued
May 15, 2008); and counsel cited to Gwendolyn Merriweather, 50 ECAB 11 (1999).
20

21

Supra note 2.

22

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

23

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

24

20 C.F.R. § 10.5(q).

8

compensation is claimed; (2) factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; and (3) medical
evidence establishing that the employment factors identified by the claimant were the proximate
cause of the condition for which compensation is claimed or, stated differently, medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.25
Section 8123(a) of FECA provides that when there is a disagreement between the physician
making the examination for the United States and the physician of the employee, a third physician
shall be appointed to make an examination to resolve the conflict.26 When there are opposing
medical reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical evidence.27
ANALYSIS -- ISSUE 2
On May 11, 2015 appellant claimed that he sustained right knee and right hip pain which
he attributed to increased walking at work from January 26 to 29, 2015. In support of his claim,
he provided January 29 and April 2, 2015 reports from Dr. Ong. Dr. Ong opined that walking
back and forth across the plant floor from January 26 to 29, 2015 worsened the accepted right hip
and knee injuries, and worsened and aggravated Legg-Perthes disease and osteoarthritis of the
right hip.
OWCP obtained a second opinion from Dr. Didizian who opined in a May 12, 2015 report
that appellant had significant degeneration of the right knee and hip. Dr. Didizian attributed
appellant’s right knee condition to the accepted November 30, 2007 injury, and the right hip
condition to idiopathic Legg-Perthes disease.
OWCP initially denied the claim by decision dated December 18, 2015 and set aside by
July 5, 2016 decision with instructions to refer appellant for a second opinion to determine if his
work duties caused or aggravated the right hip and knee conditions. It referred appellant to
Dr. Dinenberg who provided a January 6, 2017 report. Dr. Dinenberg did in fact opine that the

25

Solomon Polen, 51 ECAB 341 (2000).

26

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

27

Delphia Y. Jackson, 55 ECAB 373 (2004).

9

November 30, 2007 occupational injury aggravated and accelerated appellant’s Legg-Perthes
disease of the right hip.
Dr. Ong opined that walking at work from January 26 to 29, 2015 caused a worsening of
appellant’s right knee and hip symptoms. In contrast, Dr. Didizian and Dr. Dinenberg attributed
appellant’s condition to sequelae of the November 30, 2007 employment injury. The Board finds
that this difference of medical opinion constitutes a conflict of medical opinion requiring resolution
by an impartial medical examiner.28
On remand of the case, OWCP shall prepare an updated SOAF and refer it, the medical
record, and appellant to an appropriate specialist or specialists to resolve the conflict regarding
whether increased walking at work from January 26 to 29, 2015 caused or aggravated any medical
condition. Following this and any other development deemed necessary, it shall issue a de novo
decision in the case.
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying authorization for
requested right hip replacement surgery. The Board further finds that the second issue is not in
posture for a decision.

28

Id.

10

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated June 12, 2017 is affirmed, and the April 7, 2017 decision set aside and the case is
remanded for additional development consistent with this decision.
Issued: May 23, 2018
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE INTERIOR, BUREAU )
OF LAND MANAGEMENT, Boise, ID, Employer )
__________________________________________ )
D.F., Appellant

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

Docket No. 15-0403
Issued: February 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 10, 2014 appellant filed a timely appeal from a November 18, 2014 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 more than 38 percent permanent
impairment of the right upper extremity for which he had received a schedule award.
FACTUAL HISTORY
On September 9, 1996 appellant, then a 48-year-old employee, filed a traumatic injury
claim (Form CA-1) alleging that on August 18, 1996 while loading cargo he injured his right
rotator cuff. OWCP accepted the claim for a right rotator cuff tear, a sprain of the shoulder and
1

5 U.S.C. § 8101 et seq.

upper arm at the right supraspinatus, and right biceps tendon degeneration. Appellant underwent
authorized right rotator cuff repairs on December 2, 1996 and March 5, 1997. He filed a claim
for a schedule award (Form CA-7) on March 2, 1997.
OWCP had previously accepted that appellant sustained a right rotator cuff tear due to a
December 28, 1989 employment injury, assigned file number xxxxxx657. On April 17, 1990
appellant had also undergone a right rotator cuff repair under file number xxxxxx657. In a
decision dated September 9, 1991, OWCP granted him a schedule award for 10 percent
permanent impairment of the right arm. The period of the award ran for 31.20 weeks from
July 8, 1991 to February 11, 1992.
By decision dated May 5, 1998, OWCP granted appellant a schedule award for 38
percent permanent impairment of the right arm. The period of the award ran for 118.56 weeks
from February 3, 1998 to May 12, 2000.
On November 1, 2012 OWCP accepted a recurrence of a medical condition. On
August 6, 2013 Dr. Kirk Lewis, an attending Board-certified orthopedic surgeon, performed an
authorized right shoulder arthroscopic debridement of the glenohumeral joint, and a biceps
tenotomy.
In an impairment evaluation report dated January 24, 2014, Dr. Lewis related that
appellant was medically stationary following his surgery. He noted, “[Appellant] has endstage
glenohumeral arthrosis of his right shoulder with a global rotator cuff tear and subsequent biceps
tenotomy. [Appellant] is severely limited with function and strength.” Dr. Lewis advised that
[appellant] had a full-thickness tear of two rotator cuff tendons and a partial tear of a third
tendon, for a class 3 impairment. He further found grade IV glenohumeral arthrosis. Dr. Lewis
obstensibly utilized the diagnosis-based impairment (DBI) methodology for rating permanent
impairment and opined that appellant had 50 percent right upper extremity impairment, under the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009) (A.M.A., Guides).
On February 13, 2014 appellant filed a claim for an increased schedule award.
On August 13, 2014 an OWCP medical adviser advised that Dr. Lewis should provide
detailed findings on examination, including measurements for range of motion (ROM), perform
a QuickDASH (disabilities of the arm, shoulder, and hand) assessment, and explain his use of the
A.M.A., Guides.
By letter dated August 19, 2014, OWCP requested that Dr. Lewis provide a formal
impairment evaluation in accordance with the A.M.A., Guides and enclosed the August 13, 2014
report of OWCP’s medical adviser for his review.
In a report dated October 16, 2014, Dr. Lewis reviewed appellant’s history of four right
upper extremity surgeries.2 He opined that appellant had reached maximum medical
2

On October 22, 2014 OWCP had referred appellant for a second opinion examination. However, it cancelled
the examination after it received the October 16, 2014 report from Dr. Lewis.

2

improvement on January 24, 2014. Dr. Lewis found symmetrical sensation and less than five
millimeters of two-point discrimination in the median, ulnar and radial nerves. He determined
that appellant had “severe atrophy of the infraspsinatus and supraspinatus tendons of both
shoulders which is symmetric.” Appellant also had bilateral positive impingement and a positive
Hawkins’ test, which Dr. Lewis indicated was “difficult to interpret because of his poor active
strength in both the right and left shoulders.” Dr. Lewis obtained ROM measurements and
determined that, for the right shoulder, 50 degrees abduction yielded six percent impairment, 45
degrees forward flexion yielded nine percent impairment, 20 degrees extension yielded two
percent impairment, 20 degrees adduction yielded two percent impairment, 10 degrees internal
rotation yielded four percent impairment, and negative 10 degrees external rotation yielded two
percent impairment. He also provided passive ROM findings and ROM measurements for the
left side. Dr. Lewis further found that appellant had crepitus of the right glenohumeral and
acrominal humeral joints. Without citation to any rating methodology in the A.M.A., Guides he
combined the ROM impairments to find 25 percent right upper extremity permanent impairment.
Dr. Lewis determined that appellant had a QuickDASH score of 52, for a grade modifier of 2.
He further found grade modifiers of two for physical examination and functional history, for a
net adjustment of zero and a total right upper extremity impairment of 25 percent.
On November 5, 2014 an OWCP medical adviser reviewed the October 16, 2014 report
of Dr. Lewis. He concurred with Dr. Lewis’ use of ROM methodology for evaluation of
appellant’s shoulder impairment. The medical adviser noted that the A.M.A., Guides provided
that measurements for ROM should be “rounded off to the nearest 10 degrees.”3 He concurred
with Dr. Lewis’ impairment findings for ROM with the exception of adduction, finding that 20
percent adduction yielded 1 percent rather than 2 percent impairment.4 Combining the ROM
findings yielded 24 percent right upper extremity impairment. The medical adviser further
determined that appellant’s QuickDASH score was 70 rather than 52, which yielded a grade
modifier for functional history of 3 rather than 2.5 He found that this increased the total right
upper extremity permanent impairment to 25 percent.
By decision dated November 18, 2014, OWCP denied appellant’s claim for an increased
schedule award. It found that he had already received a schedule award for 38 percent right
upper extremity impairment. As appellant had failed to submit an impairment rating establishing
a higher percentage of impairment, he thus failed to meet his burden to obtain an additional
award.
On appeal, appellant argues that Dr. Lewis found that he had 50 percent permanent
impairment due to his weakness and difficulty performing activities of daily living. He asserts
that following his 1998 schedule award he had additional arthritis, a torn rotator cuff, and a
frayed tendon. Appellant also notes that he had surgery in August 2013, rather than March 2013
as found by the medical adviser. He argues that tests are insufficient to demonstrate his pain and
loss of strength with movement.
3

A.M.A., Guides 461.

4

Id. at 475, Table 15-34.

5

Id. at 306, 477, Tables 15-7, 15-36.

3

LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of the Office of Workers’
Compensation Programs.6 Section 8107 of FECA sets forth the number of weeks of
compensation to be paid for the permanent loss of use of specified members, functions, and
organs of the body.7 FECA, however, does not specify the manner by which the percentage loss
of a member, function, or organ shall be determined. To ensure consistent results and equal
justice under the law, good administrative practice requires the use of uniform standards
applicable to all claimants. Through its implementing regulations, OWCP adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.8
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A., Guides issued a 52-page document entitled “Clarifications and
Corrections, Sixth Edition, Guides.” The document included various changes to the original text,
intended to serve as an erratum/supplement to the first printing of the A.M.A., Guides. In
April 2009, these changes were formally incorporated into the second printing of the sixth
edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).9 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.10
ANALYSIS
The issue on appeal is whether appellant is entitled to an increased schedule award of the
right upper extremity.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.11
6

See 20 C.F.R. §§ 1.1-1.4.

7

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
8

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010);
10

Isidoro Rivera, 12 ECAB 348 (1961).

11

T.H., Docket No. 14-0943 (issued November 25, 2016).

4

The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.12 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.13
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the November 18, 2014
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.

12

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

13

Supra note 11.

5

ORDER
IT IS HEREBY ORDERED THAT the November 18, 2014 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.14
Issued: February 13, 2017
Washington, DC

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

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

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

14

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member
of the Board effective November 16, 2015.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.N., Appellant
and
U.S. POSTAL SERVICE, DOWNTOWN POST
OFFICE, Wichita, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0070
Issued: March 9, 2022

Case Submitted on the Record

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

JURISDICTION
On October 22, 2020 appellant, through counsel, filed a timely appeal from an August 21,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the August 21, 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 authorization of
additional surgery.
FACTUAL HISTORY
On October 25, 2014 appellant, then a 36-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on that date she twisted her left ankle when she stepped
off of a porch onto grass while in the performance of duty. 4 OWCP accepted the claim for left
ankle sprain. Appellant returned to limited duty and, as of May 12, 2015, worked full-time regular
duty. On June 18, 2015 OWCP accepted an additional condition of left tarsal syndrome. On
June 23, 2015 appellant underwent an OWCP-authorized left tarsal tunnel release with neurolysis
and an additional nonauthorized left partial plantar fascia release which were performed by
Dr. Shawn Morrow, a Board-certified orthopedic foot and ankle surgeon. OWCP paid appropriate
benefits and she returned to full-time work in a limited-duty capacity on August 10, 2015.
On October 27, 2015 appellant saw Dr. Steven Howell, a Board-certified orthopedic
surgeon, specializing in ankle and foot surgery. On November 20, 2015 Dr. Howell requested
authorization for additional surgery involving incision of left foot fascia, decompression of tibial
nerve, partial removal of ankle/heel, and partial removal of foot bone. Additional requests were
submitted on January 5, March 9, and June 15, 2016.
On September 16, 2016 OWCP forwarded appellant’s medical record and a statement of
accepted facts (SOAF) to Dr. William Tontz, a Board-certified orthopedic surgeon serving as a
district medical adviser (DMA), to determine whether her requested surgery was medically
necessary and causally related to her accepted left ankle sprain and left tarsal tunnel syndrome. In
a September 20, 2016 report, Dr. Tontz opined that there was evidence of a temporal relationship
between the October 25, 2014 employment injury and the proposed incision of foot fascia,
decompression of tibia nerve, partial removal of ankle/heel and partial removal of foot bone, but
there was insufficient evidence in the case record of failed conservative management to support
plantar fascia release. He thereafter concluded that the proposed incision of foot fascia,
decompression of tibia nerve, partial removal of ankle/heel, and partial removal of foot bone were
not medically necessary.
On November 17, 2016 OWCP referred appellant, along with the medical record and a
SOAF, to Dr. Michael J. Johnson, a Board-certified orthopedic surgeon, for a second opinion
evaluation. In a November 22, 2016 report, Dr. Johnson reviewed the medical record and the
SOAF and indicated that appellant had received appropriate conservative treatment since her last
surgical procedure, which had not improved enough to allow her to return to full duty. He opined
that only the decompression of tibia nerve (tarsal tunnel release revision) was medically necessary
and causally related to the accepted left tarsal tunnel syndrome. Dr. Johnson opined that the other
4
At the time of injury, appellant was working with medical restrictions under a traumatic injury under OWCP File
No. xxxxxx267. In that claim, OWCP accepted that her fall on August 13, 2016 resulted in right hand contusion, head
contusion, chondromalacia patellae, right knee, nondisplaced fracture of base of fifth metacarpal bone, right hand, and
carpal tunnel syndrome, right upper limb. It has administratively combined these claims, with OWCP File No.
xxxxxx493 serving as the master file.

2

proposed procedures were not causally related to the employment injury or the accepted
conditions. He indicated that the proposed incision of plantar fascia/plantar fascia release was not
related to the accepted diagnosis or secondary to mechanism of injury, the removal of bone
spur/partial removal of ankle/heel was due degenerative/arthritis and not traumatic injury, and the
partial resection of bone/ossicia excision/partial removal of foot bone was a
congenital/developmental deformity to navicular bone which preexisted the employment injury.
On January 17, 2017 OWCP provided Dr. Morrow a copy of Dr. Johnson’s second opinion
report and requested whether he agreed that only the decompression of tibia nerve surgery was
causally related to the October 25, 2014 employment injury and the accepted left tarsal tunnel
syndrome condition. On February 10, 2017 Dr. Morrow concurred with Dr. Johnson’s opinion.
On March 7, 2017 Dr. Howell disagreed with Dr. Johnson’s opinion on causal relation. He
opined that the increased dorsal impingement of the navicular was due to some loss of arch
secondary to the plantar fascial release, which was secondary to employment-related plantar
fasciitis. In a March 21, 2017 report, Dr. Howell also opined that appellant’s talonavicular
spurring was causally related to the accepted conditions. He explained that she had no pain prior
to her injury which worsened after her surgery, consistent with an os naviculare secundum that
loosened up with her original injury and the subsequent spurring was impinging more following
the slight loss of the arch support after the plantar fascial release. Dr. Howell indicated that this
preexisting condition was worsened by the employment injury.
On March 27, 2017 OWCP found a conflict in medical opinion between Dr. Howell and
Dr. Johnson regarding causal relationship and the medical necessity of the specific proposed
surgical procedures. It referred appellant to Dr. Sami Framjee, a Board-certified orthopedic
surgeon, for an impartial medical evaluation.
However, OWCP found that Dr. Framjee had not answered the questions submitted. On
May 18, 2018 it related that appellant would be referred for a new impartial medical evaluation.
On September 13, 2018 OWCP referred appellant, an updated SOAF and a series of
questions, to Dr. Dale D. Dalenberg, a Board-certified orthopedic surgeon, for an impartial
medical evaluation. The SOAF noted that the accepted conditions were a left ankle sprain and left
tarsal tunnel syndrome, and that on June 23, 2015 appellant underwent a left tarsal tunnel release
with neurolysis and left partial plantar fascia release. In its series of questions, OWCP specifically
inquired as to whether the recommended incision of foot fascia, decompression of tibia nerve,
partial removal of ankle/heel, and partial removal of foot bone were medically necessary for, and
causally related to, the accepted conditions of the accepted left ankle sprain and left tarsal tunnel
syndrome.
In a December 21, 2018 report, Dr. Dalenberg noted that appellant was examined on
October 4, 2018. He advised that the proposed procedures were unlikely to improve her condition
and that failure to address her dorsal foot pain and popping by not addressing the talonavicular
joint problem would leave ongoing complaints. Dr. Dalenberg explained that there was no
evidence that performing another tarsal tunnel release would make any difference and the areas of
numbness did not support that it was just tarsal tunnel syndrome. He opined that the proposed
decompression of the tibial nerve was not medically necessary as it had already been performed,
it did not help or had worsened appellant’s symptoms, and it would not fully address her
3

objectively demonstrated numbness. Dr. Dalenberg explained that the proposed excision of the
plantar fascia was not for an accepted condition and was not medically necessary with a
predominant complaint of dorsal pain and foot/ankle popping and pain. He further opined that the
proposed bone removal, particularly removal of the plantar calcaneal spur, was not related to the
accepted conditions and, while it was usually done in conjunction with plantar fascia release, he
opined that it would not appreciably improve appellant’s symptoms. Dr. Dalenberg also advised
that the proposed partial resection of bone/ossicle excision/partial removal of foot bone was not
medically necessary or causally related to the accepted left ankle sprain and left tarsal tunnel
syndrome. He explained that there was evidence of an old dorsal lip avulsion fracture, which was
akin to an ankle sprain, but was never diagnosed or treated. This condition was probably subtly
unstable given her popping complaint, and management was usually c onservative treatment.
Dr. Dalenberg also advised that late surgical treatment was not standard and may be considered
controversial.
By decision dated February 19, 2019, OWCP denied authorization of the requested surgical
procedures. The special weight of the medical evidence was accorded to th e opinion of
Dr. Dalenberg, the impartial medical examiner (IME).
On February 25, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held telephonically on
June 7, 2019.
OWCP received additional evidence, including x-rays of appellant’s left foot dated
October 4, 2018, which noted small plantar spur and mild degenerative spurring along the dorsal
midfoot.
In an April 2, 2019 report, Dr. Howell indicated that the x-rays taken that day of appellant’s
left foot showed prominent spurring with a very small surface area for weight bearing on the
plantar aspect of her heel directly where she was tender on examination. Appellant also had
numbness and tingling on the bottom of her foot consistent with tarsal tunnel syndrome, which he
believed that had not been completely decompressed, and spurring at the dorsum of the
talonavicular joint. Dr. Howell opined that he could help her with the surgery he previously
offered and outlined his proposed approach. He noted that appellant had been evaluated by an
orthopedist who was not a foot/ankle expert. Dr. Howell questioned the opinion that her condition
would not improve as it was not certain that her tarsal tunnel condition had been adequately
released. He noted that appellant would also benefit by a simple removal of the spurring from the
talonavicular joint and disagreed with Dr. Dalenberg that the talonavicular ligaments would be
involved.
By decision dated June 18, 2019, an Office hearing representative set aside OWCP’s
February 19, 2019 decision and remanded the case to OWCP for further development and a de
novo decision. The hearing representative directed OWCP to have Dr. Dalenberg review
Dr. Howell’s April 2, 2019 report.
In a July 1, 2019 letter, OWCP requested that Dr. Dalenberg review Dr. Howell’s April 2,
2019 report and issue a supplemental report.

4

In a November 20, 2019 addendum, Dr. Dalenberg reviewed Dr. Howell’s April 2, 2019
report and indicated that his concern was that the results of the tarsal tunnel release were uncertain.
He noted that literature documented worse results with revision release, and that results could be
compromised by adhesive neuritis and intraneural damage, which could be the reason for
appellant’s ongoing symptoms. Dr. Dalenberg explained that appellant had a predominance of
dorsal foot pain and popping during his examination, which was not anatomically related to a tarsal
tunnel syndrome diagnosis, and he believed that performing the same surgery would not be
warranted, as the prior procedure had not been successful, and her current symptoms were not due
to tarsal tunnel syndrome. He noted that he had performed various procedures about the foot and
ankle and indicated that he had similar credentials to Dr. Howell. Dr. Dalenberg also noted that
he was called upon by OWCP to weigh in on whether the proposed surgery was for conditions
specified in the SOAF and whether such treatments were likely to be successful. He reiterated his
concern that, while distal release was an indication for revision tarsal tunnel release, it may not be
successful. Dr. Dalenberg also explained that the basis of his medical opinion was the fact that a
large part of appellant’s symptomatology (dorsal foot pain and popping) had nothing to do with
the accepted tarsal tunnel syndrome. He agreed with Dr. Howell that ligament reconstruction
around the talonavicular joint or fusion was not standard with this clinical presentation and
explained that this was mentioned in his prior report as ideas on how to address the dorsal foot
pain and popping. Dr. Dalenberg agreed with dorsal fragment excision but explained that the
procedure was unrelated to the accepted ankle sprain, and tarsal tunnel syndrome.
By decision dated February 25, 2020, OWCP again denied authorization of the requested
surgical procedures. It accorded the special weight of the medical to the opinion of Dr. Dalenberg,
the IME.
On March 4, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held telephonically on
June 11, 2020.
In a July 2, 2020 report, Dr. Howell indicated that he did not understand Dr. Dalenberg’s
opinion that appellant’s symptoms on the dorsum of the foot were unsubstantiated by her other
complaints. He explained that her dorsal foot pain was consistent with talonavicular spurring and
the numbness on the bottom of her foot was consistent with an incompletely released tarsal tunnel.
Dr. Howell opined that appellant had a reasonable chance of responding satisfactorily to the
proposed surgical procedure.
By decision dated August 21, 2020, OWCP’s hearing representative affirmed the
February 25, 2020 decision.
LEGAL PRECEDENT
Section 8103 of FECA 5 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce

5

Supra note 2 at § 8103.

5

the degree, or the period of disability, or aid in lessening the amount of monthly compensation. 6
In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad discretion
in approving services provided, with the only limitation on OWCP’s authority being that of
reasonableness. 7
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition. 8 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence. 9 In order to prove that the procedure is
warranted, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted. Both of these criteria must
be met in order for OWCP to authorize payment. 10
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 11
For a conflict to arise the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.12 Where OWCP has referred the case to an IME to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper
factual background, must be given special weight. 13 If the IME is unable to clarify or elaborate on
his original report, or if his supplemental report is vague, speculative, or lacking in rationale,
OWCP shall refer appellant to a new IME.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for authorization of
additional surgery.
OWCP properly found that a conflict in medical opinion existed between Dr. Howell,
appellant’s attending physician, who recommended incision of foot fascia, decompression of tibia
nerve, partial removal of ankle/heel and partial removal of foot bone, and Dr. Johnson, the second
6

Id., see also N.G., Docket No. 18-1340 (issued March 6, 2019).

7

D.S., Docket No. 19-1698 (issued June 18, 2020); D.W., Docket No. 19-0402 (issued November 13, 2019); see
also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment, or administrative actions which are
contrary to both logic, and probable deductions from established facts).
8

See R.M., Docket No. 19-1319 (issued December 10, 2019); Debra S. King, 44 ECAB 203, 209 (1992).

9

Id.; see also K.W., Docket No. 18-1523 (issued May 22, 2019); Bertha L. Arnold, 38 ECAB 282 (1986).

10

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

11

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; K.C., Docket No. 18-0378 (issued June 18, 2019).

12

Id.

13

J.H., Docket No. 19-0513 (issued September 24, 2019).

14

See C.E., Docket No. 19-1923 (issued March 30, 2021); M.S., Docket No. 18-1228 (issued March 8, 2019); R.H.,
Docket No. 17-1903 (issued July 5, 2018).

6

opinion physician, who opined that only the recommended decompression of the tibia nerve was
medically necessary and causally related to the accepted left tarsal tunnel syndrome.
Consequently, it referred her to Dr. Framjee, an IME, to resolve the conflict in medical opinion
pursuant to 5 U.S.C. § 8123(a). However, Dr. Framjee was unable to clarify or elaborate on his
original report in response to OWCP’s questions and it was unlikely that he would respond to an
additional request for clarification. OWCP, therefore, properly referred appellant to a new IME.15
It referred her to Dr. Dalenberg, serving as the new IME, to resolve the conflict in medical opinion.
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Dalenberg, who examined appellant, reviewed the medical evidence, and found that the
authorization of additional surgery regarding decompression of tibial nerve was not medically
necessary and additional surgery involving incision of lef t foot fascia, partial removal of
ankle/heel, and partial removal of foot bone were not medically necessary, or causally related to,
the accepted left ankle sprain and left tarsal tunnel syndrome.
The record reflects that Dr. Dalenberg was provided with a SOAF, which listed the
accepted conditions and noted appellant’s June 23, 2015 surgery involved a left tarsal tunnel
release with neurolysis and left partial plantar fascia release. The left partial plantar fascia release
was not authorized by OWCP and was for a condition which OWCP had not accepted. 16
Dr. Dalenberg also provided a series of questions which specifically requested that he provide
medical rationale to support his opinion on the medical necessity for the proposed surgery
involving incision of foot fascia, decompression of tibia nerve, partial removal of ankle/heel, and
partial removal of foot bone.
In his December 21, 2018 report, Dr. Dalenberg opined that the proposed decompression
of the tibial nerve was not medically necessary as it had already been performed, it did not help or
had worsened appellant’s symptoms, and it would not fully address her objectively demonstrated
numbness. He opined, however, that the proposed incision of the plantar fascia, and the partial
removal of ankle/heel, and foot bone were not medically necessary or causally related to the
accepted left ankle sprain and left tarsal tunnel syndrome. Dr. Dalenberg explained that incision
of the plantar fascia was not medically necessary for a predominant complaint of dorsal pain and
foot/ankle popping and pain and, while removal of plantar calcaneal spurs was usually done in
conjunction with plantar fascia release, it would not appreciably improve appellant’s symptoms.
With regard to the proposed partial resection of bone/ossicle excision/partial removal of foot bone,
he explained that it was not medically necessary as appellant had a dorsal foot sprain which was
probably subtly unstable given her popping complaint and management was usually closed.
In response to Dr. Howell’s April 2, 2019 report, Dr. Dalenberg, in his November 21, 2019
report, reiterated that it was not medically warranted to repeat the tarsal tunnel release. He
explained that the results of the tarsal tunnel release was uncertain, noting literature documented
worse results with revision release, that the original surgery had not been successful, and that the
15

Id.

16

When an employee claims that, a condition not accepted or approved by OWCP was due to an employment
injury, he or she bears the burden of proof to establish that the condition is causally related to the employment injury.
See T.E., Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K.
Asaramo, 55 ECAB 200 (2004).

7

results could be compromised by adhesive neuritis and intraneural damage. Dr. Dalenberg further
indicated that appellant’s symptomatology (dorsal foot pain and popping) were from something
other than tarsal tunnel syndrome and was not anatomically related to the accepted tarsal tunnel
syndrome. The Board further notes that, while he agreed with the dorsal fragment excision and
that such removal was usually done in conjunction with plantar fascia release, he opined that the
procedure was not for a diagnosis in the SOAF and was unrelated to the accepted ankle sprain and
tarsal tunnel syndrome. As previously discussed, OWCP has not accepted an employment-related
plantar fasciitis condition and appellant has failed to meet her burden of proof to establish her
burden of proof.
In situations where the case is referred to an IME for the purpose of resolving a medical
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight. 17 The Board finds that Dr. Dalenberg provided
a well-rationalized opinion based on a complete background, his review of the SOAF, the medical
record, and his examination findings. Thus, Dr. Dalenberg’s opinion that the requested procedures
were not medically warranted for the accepted conditions is entitled to the special weight of the
evidence.18
The Board further finds that Dr. Howell’s reports, are insufficient to overcome the special
weight accorded to Dr. Dalenberg because reports from a physician who was on one side of a
medical conflict resolved by an IME are insufficient to overcome the special weight accorded the
report of the IME or create a new conflict. 19
The only limitation on OWCP’s authority in approving or denying service under FECA is
one of reasonableness. 20 OWCP obtained an impartial medical examination by Dr. Dalenberg who
opined that the requested surgical procedures were not med ically warranted for the accepted
conditions. It, therefore, had sufficient evidence upon to deny surgery and did not abuse its
discretion.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for authorization of
additional surgery.

17

See D.S., Docket No. 19-1698 (issued June 18, 2020); C.W., Docket No. 17-0918 (issued January 5, 2018);
Patricia J. Glenn, 53 ECAB 159 (2001).
18

See D.S., id., P.F., Docket No. 16-0693 (issued October 24, 2016).

19

J.M., Docket No. 18-1387 (issued February 1, 2019); D.M., Docket No. 17-1992 (issued September 12, 2018);
S.F., Docket No. 17-1427 (issued May 16, 2018).
20

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

8

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2022
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Orlando, FL, Employer
__________________________________________
Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 19-1230
Issued: January 6, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On May 13, 2019 appellant, through counsel, filed a timely appeal from a November 14,
2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 19-1230.
On August 11, 2016 appellant, then a 53-year-old rural mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that she had injured her left knee on that date when lifting a tray of
mail while in the performance of duty. Her left knee diagnosis included contusion, bursitis, joint
effusion, cruciate ligament strain, meniscal tear, and internal derangement.
By decision dated February 2, 2017, OWCP found that appellant had not established that
the August 11, 2016 employment incident occurred as alleged. Appellant timely requested
reconsideration and submitted additional factual and medical evidence. By decision dated June 8,
2017, OWCP modified its prior decision, finding that appellant had established both the factual
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.

and medical components of fact of injury. However, appellant’s claim remained denied because
the medical evidence of record was insufficient to establish that her diagnosed conditions were
causally related to the accepted August 11, 2016 employment incident.
On July 14, 2017 appellant requested reconsideration. By decision dated August 18, 2017,
OWCP denied modification to its June 8, 2017 decision finding that the evidence of record was
insufficient to establish causal relationship between the accepted August 11, 2016 employment
incident and appellant’s diagnosed conditions.
On August 20, 2018 appellant, through counsel, requested reconsideration. By decision
dated November 14, 2018, OWCP denied appellant’s request for reconsideration finding that the
request was untimely filed and failed to demonstrate clear evidence of error.
The Board has duly considered the matter and finds that appellant’s August 20, 2018
request constituted a timely request for reconsideration. Section 10.607(a) of OWCP’s
implementing regulations provides that a request for reconsideration must be received by OWCP
within one year of the date of the decision for which review is sought.2 When determining the
one-year period for requesting reconsideration, the last day of the period should be included unless
it is a Saturday, Sunday or a legal holiday.3 One year following OWCP’s August 18, 2017 merit
decision was Saturday, August 18, 2018. As the last day of the one-year filing period fell on a
weekend, appellant had until the close of business on Monday, August 20, 2018 to timely request
reconsideration. Because OWCP received appellant’s request on August 20, 2018, the Board finds
that it was timely filed. The clear evidence of error standard utilized by OWCP in its November 14,
2018 decision is appropriate only for untimely reconsideration requests.4 Therefore, the Board
will set aside OWCP’s November 14, 2018 decision and remand the case for an appropriate
decision applying the correct standard for timely requests for reconsideration.

2

20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
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).
3

Federal (FECA) Procedure Manual, id.

4

See 20 C.F.R. § 10.607(b).

2

IT IS HEREBY ORDERED THAT the November 14, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: January 6, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3