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

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

Docket No. 19-1468
Issued: September 9, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 26, 2019 appellant, through counsel, filed a timely appeal from a June 7, 2019
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 June 7, 2019 decision, OWCP received additional evidence and that appellant
submitted additional evidence on appeal. 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.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that the
acceptance of his claim should be expanded to include additional bilateral foot or ankle conditions;
and (2) whether he has established that he sustained a recurrence of total disability commencing
November 19, 2010 causally related to his accepted employment injuries.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.
On February 13, 2008 appellant, then a 57-year-old mail handler/Mark II operator, filed an
occupational disease claim (Form CA-2) alleging that his federal employment duties caused
degenerative joint disease of both feet and hallux valgus (a bunion deformity) on the right. This
claim was adjudicated by OWCP under File No. xxxxxx990 and accepted for hallux valgus
(acquired), bilateral, on March 31, 2008.
On November 28, 2009 appellant filed a second occupational disease claim alleging that
he had developed bilateral ankle conditions due to factors of his federal employment. This claim
was adjudicated by OWCP under File No. xxxxxx687 and on February 1, 2010 accepted for other
disorders of joint, ankle, and foot, bilateral. OWCP administratively combined the claims in
March 2010 with OWCP File No. xxxxxx990 serving as the master file.
On March 4, 2010 the Department of Veterans Affairs (VA) informed appellant that he had
a combined service-connected disability rating of 70 percent, 50 percent of which was due to
dermatophytosis (a fungal condition) with flattened arches of his feet.
On February 14, 2011 appellant filed a notice of recurrence (Form CA-2a) under OWCP
File No. xxxxxx687. He indicated that his foot conditions worsened to where he could no longer
bear weight or perform his employment duties.
Appellant had stopped work on
November 19, 2010.
By decision dated May 4, 2011, OWCP denied appellant’s claim for a recurrence of
disability.
On May 10, 2011 appellant requested a review of the written record by an OWCP hearing
representative.
OWCP continued to receive medical reports from appellant’s treating physicians, including
Dr. Andrea L. York, a Board-certified family practitioner, who diagnosed foot and ankle
osteoarthritis, and Dr. Austin Reeves, an attending podiatrist, who diagnosed osteochondritis.
Both physicians related that appellant’s diagnosed conditions were causally related to appellant’s
employment duties.

4

Order Dismissing Appeal, Docket No. 14-1806 (issued October 31, 2014); Docket No. 15-1013 (issued June 15,
2016); and Docket No. 19-0956 (issued February 8, 2019).

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By decision dated July 25, 2011, an OWCP hearing representative set aside the May 4,
2011 decision and remanded the case for OWCP to obtain a second opinion evaluation regarding
whether appellant was disabled for any period after November 19, 2010 as a direct result of his
employment-related injuries.
OWCP referred appellant to Dr. Robert E. Holladay, IV, a Board-certified orthopedic
surgeon, for a second opinion evaluation regarding appellant’s disability status. In a September 13,
2011 report, Dr. Holladay diagnosed dermatophytosis of feet, bilateral flat feet deformity, and
degenerative joint disease of both feet. In answers to OWCP questions, he noted that none of the
diagnosed foot conditions had been accepted as employment related. Dr. Holladay concluded that
appellant’s accepted bilateral foot and ankle conditions had not worsened to the point of total
disability on November 19, 2010, finding that appellant’s current foot and ankle conditions were
more likely related to his underlying preexisting conditions and had no relationship to a specific
employment injury.
By decision dated September 21, 2011, OWCP denied appellant’s claim that he sustained
a recurrence of disability on November 19, 2010, finding that the weight of the medical evidence
rested with the opinion of OWCP’s referral physician, Dr. Holladay.
Following further development of the claim, on March 29, 2012 OWCP expanded the
acceptance of the claim to include aggravation of osteochondritis dissecans, bilateral, ankle and
foot.
In April 2012, OWCP again referred appellant to Dr. Holladay for a second opinion
evaluation. In a May 24, 2012 report, Dr. Holladay advised that the record contemporaneous with
November 19, 2010 did not include objective evidence to support that the accepted conditions of
bilateral hallux valgus and osteochondritis dissecans had progressed or showed clinical change
such that they became totally disabling on that day or that appellant’s work activities aggravated
appellant’s service-related foot conditions such that on November 19, 2010 he was unable to work.
By decision dated June 8, 2012, OWCP denied appellant’s claim for a recurrence of
disability commencing November 19, 2010, finding that the weight of the medical evidence rested
with the opinion of Dr. Holladay.
Appellant submitted several requests for reconsideration of the denial of his recurrence
claim and submitted progress reports from his attending physicians in support thereof. OWCP
continued to deny modification of its prior decisions.
On March 31, 2015 appellant, through counsel, appealed OWCP’s February 3, 2015
decision denying modification to the Board. By decision dated June 15, 2016, the Board found a
conflict of medical opinion between appellant’s treating physicians and Dr. Holladay as to whether
appellant’s service-related foot condition or any other foot or ankle condition was aggravated by
his work duties, especially prolonged standing, and, if so, whether he became totally disabled
commencing November 19, 2010. The Board set aside the February 3, 2015 decision and
remanded the case to OWCP.5

5

Docket No. 15-1013 (issued June 15, 2016).

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On January 10, 2018 OWCP referred appellant to Dr. David D. Sanderson, a Boardcertified orthopedic surgeon, for an impartial medical evaluation. It provided a statement of
accepted facts (SOAF) and a set of questions.
In a February 14, 2018 report, Dr. Sanderson noted his review of the medical record and
the SOAF and appellant’s complaint of pain in both feet with ankle problems. He described
appellant’s employment history and work injuries and diagnosed diffuse palmoplantar
keratoderma affecting both feet and hands, pes planus with flat feet bilaterally, hallux valgus
bilaterally, mild, without any sign of bunion formation, and history of subchondral changes
bilaterally in the talus. Dr. Sanderson opined that there was a significant paucity of evidence to
verify either employment injury, and found no significant objective evidence to suggest that workrelated activities aggravated, accelerated, or precipitated appellant’s conditions, noting that pain
was a subjective complaint, and that appellant’s ankle/foot conditions occurred irrespective of
work activities. He concluded that appellant never had significant ankle arthritis, and that his
inability to work was related to the preexisting conditions of bilateral flat feet and diffuse plantar
keratoderma, or to personal issues.
By decision dated March 21, 2018, OWCP again denied modification of appellant’s
recurrence claim, finding that the special weight of the medical evidence rested with the opinion
of Dr. Sanderson.
Appellant, through counsel, filed an appeal with the Board on April 9, 2018. By decision
dated February 8, 2019, the Board found that a conflict of medical opinion remained between
appellant’s physicians and Dr. Sanderson because his opinion contradicted the SOAF. The Board
noted that the SOAF made clear that OWCP had accepted appellant’s conditions of hallux valgus
(acquired) bilateral, bilateral disorders of the ankle and foot joints, and bilateral ankle and foot
aggravation of osteochondritis dissecans. The Board found that Dr. Sanderson disregarded the
accepted conditions noted in the SOAF, and instead indicated that he could not verify the initial
employment incident and opined that appellant’s medical conditions were “irrespective of workrelated activities.” As such, his opinion was insufficient to resolve the existing conflict in the
medical opinion evidence as to whether appellant’s service-related foot condition or any other foot
or ankle condition was aggravated by his work duties, and, if so, whether he became totally
disabled from work commencing November 19, 2010. The Board set aside the March 21, 2018
decision and remanded the case to OWCP.6
During the pendency of that appeal, OWCP received additional medical evidence. In a
November 7, 2018 report, Dr. York noted that she first saw appellant in 2008. She described serial
foot and ankle x-rays and provided examination findings. Dr. York diagnosed chronic ankle and
foot pain, degenerative joint disease, and hallux valgus. She opined that the x-ray changes from
2002 to 2010 appeared to be a progression of degenerative disease which was “just as likely as not
due to wear and tear related to [appellant’s] job which involved long periods of standing and
walking.” Dr. York opined that his job likely aggravated the underlying condition, causing
recurrence and worsening pain to the point that he was unable to work.
In a November 12, 2018 report, Dr. Reeves described examination findings and diagnosed
chronic bilateral ankle osteoarthritis, bilateral hallux valgus, and chronic bilateral lichen planus,
6

Docket No. 18-0956 (issued February 8, 2019).

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aggravated by employment activity. He advised that appellant could not work in any employment
that required standing, noting that appellant’s ankle osteoarthritis and bunion deformity were
progressive and would worsen over time. Dr. Reeves concluded that appellant’s disability was
permanent, and he would continue to require palliative treatment.
On April 4, 2019 OWCP referred appellant, along with an updated SOAF, the medical
record, and a set of questions to Dr. Charles D. Varela, a Board-certified orthopedic surgeon, for
an impartial medical examination.
In a May 20, 2019 report, Dr. Varela noted complaints of continual bilateral lower
extremity pain that extended from approximately the mid leg distally over both feet, with the right
side being somewhat more symptomatic. He indicated that appellant was retired, ambulated
without a cane, and took no pain medication for his symptoms. Dr. Varela related that appellant
was 100 percent disabled from the VA for cardiac disease and hypertension. He described
extensive lower extremity examination findings and noted pes cavus feet bilaterally and dense
hyperkeratotic lesions over the posterior plantar surface of the feet extending posteriorly over the
heels, and very mild hallux valgus bilaterally. Right ankle x-ray that day demonstrated mildly
decreased joint space, primarily at the medial aspect with the joint space is maintained. Left ankle
x-ray revealed that joint spaces were maintained with no significant degenerative changes.
Dr. Varela reviewed a 2010 magnetic resonance imaging scan of the left ankle, noting that the
possible osteochondritis dissecans of the medial talar dome of the left ankle seen was based on
irregularity of the articular surface and bone marrow edema change in the medial talar dome with
no joint effusion appreciated. He diagnosed asymptomatic bilateral flat feet, hyperkeratosis of
plantar surface of bilateral feet, and possible mild degenerative arthritis of bilateral ankles by
history, minimally symptomatic. In answer to specific OWCP questions, Dr. Varela advised that
there was no evidence in the medical record or based on physical examination to suggest that
appellant had any work-related injury of any capacity. He indicated that his above-noted diagnoses
were chronic or congenital in nature, and that there was no evidence to support that any of
appellant’s work activities would be responsible for any of his nonspecific complaints. Dr. Varela
opined that there was no particular objective physical or clinical finding to suggest an actual injury
on physical examination. He advised that appellant’s hyperkeratotic disease, far preexisted
appellant’s purported work injury, and that his possible mild degenerative arthritis, which was
clinically asymptomatic with no physical findings to suggest this was a significant problem, was
most likely age related. Dr. Varela further noted that appellant’s bunion deformities were minimal
and not clinically signiﬁcant and were not work related. He maintained that most of appellant’s
complaints appeared to be primarily based on multiple notes by Dr. Reeves who attempted to
justify appellant’s exaggerated symptoms and indicated his disagreement with the findings and
conclusions of Dr. Reeves and Dr. York. Dr. Varela reiterated that there is no evidence to suggest
that appellant’s nonspecific foot complaints were based on objective physical or clinical findings,
noting that no evidence presented that these nonspecific findings would be related to any type of
work appellant may have done in the past, and no medical evidence that he sustained any type of
injury condition that would be responsible for his nonspecific complaints. He advised that there
was no evidence of an employment injury on or about November 19, 2010 that would have made
appellant unable to perform his job as a mail sorter. Dr. Varela related that, since appellant had
no speciﬁc injury or trauma, it was difficult to ascertain why appellant did not perform his
employment duties as of November 19, 2010, opining that he most likely exaggerated his
symptoms for secondary gain, while being misled by Dr. Reeves concerning the severity of the
symptoms. He concluded that, after his review of the medical records presented, he agreed with
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both Dr. Sanderson and Dr. Holladay that appellant did not have a work-related injury or condition
and only has congenital or age-related degenerative conditions. Dr. Varela found no orthopedic
disabling conditions or impairment, noting that appellant had congenital flat feet and
hyperkeratosis, which were not related to any specific activity, to include his duties as a mail carrier
or as an Army personnel clerk.
By decision dated June 7, 2019, OWCP denied modification of its denial of appellant’s
recurrence claim, finding that the special weight of the medical opinion evidence rested with the
opinion of Dr. Varela who provided an impartial medical evaluation and opined that appellant’s
bilateral foot and ankle conditions would have progressed irrespective of work duties, that work
did not aggravate appellant’s preexisting service-related conditions, and that his inability to work
beginning November 19, 2010 was not employment related.
LEGAL PRECEDENT -- ISSUE 1
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.7 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 employee.8
In any case, where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.9
Section 8123(a) of FECA provides that, if there is disagreement between an OWCPdesignated physician and the employee’s physician, OWCP shall appoint a third physician who
shall make an examination.10 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.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 impartial examiner to resolve the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.13

7

B.M., Docket No. 19-1341 (issued August 12, 2020).

8

T.S., Docket No. 20-0343 (issued July 15, 2020).

9

C.H., Docket No. 20-0440 (issued August 3, 2020).

10

5 U.S.C. § 8123(a); see S.N., Docket No. 19-1050 (issued July 31, 2020).

11

20 C.F.R. § 10.321; see V.S., Docket No. 19-1792 (issued August 4, 2020).

12

S.H., Docket No. 19-1033 (issued July 23, 2020).

13

See K.D., Docket No. 19-0281 (issued June 30, 2020); Y.A., 59 ECAB 701 (2008).

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ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that it is unnecessary for it to consider the evidence appellant
submitted prior to the issuance of OWCP’s March 21, 2018 decision because the Board considered
that evidence in its February 8, 2019 decision. Findings made in prior Board decisions are res
judicata absent further review by OWCP under section 8128 of FECA.14
On remand from the Board’s February 8, 2019 decision, OWCP properly referred appellant
to Dr. Varela for an impartial medical evaluation.
Upon referral of the medical record to Dr. Varela, a SOAF dated April 4, 2019 was also
provided. The SOAF covered both the master and subsidiary files in this claim. It documented
that on March 31, 2008 appellant’s claim was accepted for the condition of hallux valgus
(acquired) bilateral. On February 1, 2010 the claim was accepted for bilateral disorders of the
ankle and foot joints. On March 29, 2012 the acceptance of the claim was expanded to include the
conditions of bilateral ankle and foot aggravation of osteochondritis dissecans. The SOAF noted
other nonwork-related conditions and also set forth appellant’s medical history and the
employment duties of his employment positions.
In his May 20, 2019 report, Dr. Varela concluded that, after his review of the medical
records presented, appellant did not have a work-related injury or condition and only had
congenital or age-related degenerative conditions. He found no orthopedic disabling conditions
or impairment, noting that appellant had congenital flat feet and hyperkeratosis, which were not
related to any specific activity, to include his duties as a mail carrier.
The Board finds that Dr. Varela’s opinion contradicts the SOAF. The SOAF made clear
that OWCP had accepted, as work related, appellant’s conditions of hallux valgus (acquired)
bilateral, bilateral disorders of the ankle and foot joints, and bilateral ankle and foot aggravation
of osteochondritis dissecans as a result of his federal employment. OWCP procedures provide
that, when a referee physician selected by OWCP renders a medical opinion based on a SOAF
which is incomplete or inaccurate, or does not use the SOAF as the framework in forming his or
her opinion, the probative value of the opinion is seriously diminished or negated altogether.15
Herein, in direct contradiction of the SOAF, Dr. Varela disregarded the accepted conditions noted
in the SOAF and opined that none of appellant’s foot and ankle conditions were caused by his
federal employment. However, OWCP has already accepted that appellant’s work-related
activities resulted in the accepted conditions contained in the SOAF. As such, Dr. Varela failed to
follow the accepted conditions as set forth in the SOAF and, therefore, his opinion is insufficient
as a basis to determine whether appellant’s preexisting conditions have been aggravated or whether
he sustained a recurrence of disability. The Board has held that, if a referee physician does not
base his opinion on the SOAF, his opinion lacks a proper factual background and, thus, is not

14

M.D., Docket No. 20-0007 (issued May 13, 2020).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.11 (September 2010); see R.T., Docket No. 20-0081 (issued June 24, 2020); Roger W. Griffith, 51 ECAB
491 (2000).

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rationalized.16 As Dr. Varela’s opinion is inconsistent with the April 4, 2019 SOAF, it therefore
is insufficient to resolve the existing conflict in the medical opinion evidence.17
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence to see that justice
is done.18 As OWCP undertook development of the evidence by referring appellant to Dr. Varela,
it had the duty to secure an appropriate report based on a proper factual and medical background,
resolving the issues in the claim.19
Accordingly, as Dr. Varela’s report lacks a proper factual background, there remains an
unresolved conflict in the medical evidence. This case will be remanded to OWCP for further
development of the medical evidence. On remand OWCP should refer appellant, an updated
SOAF, and an updated list of questions that emphasize the importance of the accepted conditions,
to an appropriate Board-certified physician to resolve the existing conflict. After this and such
other development as OWCP deems necessary, it shall issue a de novo decision.20
CONCLUSION
The Board finds that this case is not in posture for decision.

16

See D.M., Docket No. 17-1563 (issued January 15, 2019); E.G., Docket No. 12-1011 (issued
November 28, 2012).
17

Id.

18

C.H., supra note 9; Jimmy A. Hammons, 51 ECAB 219 (1999).

19

See A.M., Docket No. 19-1602 (issued April 24, 2020).

20

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the June 7, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this decision of the Board.
Issued: September 9, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
AUGUSTA VETERANS ADMINISTRATION
MEDICAL CENTER, Augusta, GA, Employer
__________________________________________

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

Docket No. 11-1552
Issued: January 12, 2012

Case Submitted on the Record

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

JURISDICTION
On June 21, 2011 appellant filed a timely appeal of the February 25, April 14 and June 8,
2011 merit decisions of the Office of Workers’ Compensation Programs (OWCP) denying his
traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a left shoulder injury in the
performance of duty on November 16, 2010, as alleged.
On appeal, appellant contends that the medical evidence of record is sufficient to
establish his left shoulder injury of November 16, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 13, 2011 appellant, then a 69-year-old air conditioning equipment mechanic,
filed a traumatic injury claim alleging that on November 16, 2010 he strained muscles and
tendons in his neck and left upper arm and shoulder when he strained to open a roll-up door. The
employing establishment controverted his claim, contending that his medical diagnosis was not
related to the claimed injury. It also contended that appellant’s medical diagnosis of pain was
not compensable.
By letter dated January 19, 2011, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested that he submit factual and medical evidence,
including a rationalized medical opinion from an attending physician which described a history
of injury and provided dates of examination and treatment, findings, test results, a diagnosis
together with medical reasons on why the diagnosed condition was caused or aggravated by the
November 16, 2010 incident.
In a January 28, 2011 letter, appellant stated that, following his claimed injury, he sought
medical treatment from an employing establishment physician at the end of his work shift. He
was subsequently evaluated by Dr. Jewell B. Duncan, an attending Board-certified orthopedic
surgeon.
In a January 12, 2011 progress note, Dr. Duncan listed appellant’s complaint of
numbness and pain in his left shoulder and a history of his right shoulder surgery. She reviewed
the results of a left shoulder magnetic resonance imaging (MRI) scan which showed bursitic and
acromioclavicular (AC) joint arthritic changes. There were some changes in the rotator cuff but,
there was no significant retraction. Dr. Duncan noted that extensive conservative treatment
measures had failed. Appellant was a candidate for surgical decompression, an AC joint
resection and rotator cuff repair. On January 12, 2011 Dr. Duncan referred him for physical
therapy to treat his left shoulder conditions which included rotator cuff and supraspinatus
syndromes not otherwise specified and AC degenerative joint disease.
Medical records dated November 17, 2010 from the employing establishment health unit
provided a history obtained by Deidres Higgins, a physician’s assistant, that appellant
experienced pain in his left shoulder that radiated down to the right side of his neck across the
collarbone to the mid-upper arm as a result of helping someone open a stuck door at work.
Appellant was diagnosed as having left shoulder pain and degenerative joint disease and
hypertension. He was released to return to work with one-week physical restrictions.
In a February 25, 2011 decision, OWCP denied appellant’s claim, finding that the
November 16, 2010 incident occurred as alleged, but the medical evidence was insufficient to
establish a shoulder injury causally related to the accepted employment incident.
On March 14, 2011 appellant requested reconsideration.
In a January 7, 2011 report, Dr. Richard J. Kelly, a Board-certified radiologist, advised
that an MRI scan of appellant’s left shoulder showed hypertrophy of the AC joint with
supraspinatus impingement and hypertrophic tendinopathy-tendinosis with partial thickness and

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undersurface tearing. The outer fibers remained intact. The remaining rotator cuff tendons were
intact. There was evidence of probable internal impingement, degenerative arthritic changes of
the glenohumeral articulation with probable chondromalacia and an anterior loose body in the
subcoracoid recess and degenerative changes of the labrum. The biceps tendon and anchor were
intact.
An undated and unsigned request and informed consent form indicated that arthroscopic
surgery, possible rotator cuff repair and AC joint resection of the left shoulder were required to
treat appellant’s left shoulder bursitis with possible rotator cuff tear. The likely success of the
proposed surgery was good. Appellant would continue to experience problems if he did not
undergo the proposed surgery.
In an undated report, Dr. Duncan reiterated her prior diagnosis of left shoulder bursitis
and AC joint arthritis.
In an April 14, 2011 decision, OWCP denied modification of the February 25, 2011
decision. It found insufficient medical opinion addressing the causal relationship between the
diagnosed conditions and the accepted November 16, 2010 employment incident.
On April 20, 2011 appellant requested reconsideration.
In an April 19, 2011 report, Dr. Duncan opined that appellant’s left shoulder injury was a
direct result of the November 16, 2010 employment incident as he had no problems prior to the
claimed injury.
In a June 8, 2011 decision, OWCP denied modification of the April 14, 2011 decision. It
found that appellant failed to submit rationalized medical evidence establishing that he sustained
a left shoulder injury causally related to the accepted November 16, 2010 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within 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.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury of an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 3.

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established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.5
In order to meet his burden of proof to establish the fact that he sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that he actually
experienced the employment injury or exposure at the time, place and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS -- ISSUE
OWCP accepted that appellant lifted a roll-up door on November 16, 2010 while working
as an air conditioning equipment mechanic. The Board finds that the medical evidence of record
is insufficient to establish that his left shoulder condition was caused or aggravated by the
November 16, 2010 employment incident.
Dr. Duncan’s April 19, 2011 report found that appellant sustained a left shoulder injury
due to the accepted employment incident. She stated that he had no problems prior to the injury.
The fact that appellant had no problems prior to the employment incident, without more by way
of rationale, is insufficient to establish his claim. The Board finds that Dr. Duncan’s report is of
diminished probative value because she failed to provide sufficient medical rationale explaining
how lifting a roll-up door caused the injury.10 None of Dr. Duncan’s other reports provided a
medical opinion addressing the causal relationship between appellant’s left shoulder condition
and the accepted employment incident. She merely listed appellant’s diagnoses of AC joint
arthritis and bursitis, and rotator cuff and supraspinatus syndromes of the left shoulder and
addressed his physical restrictions. Medical evidence which does not offer any opinion

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

6

Linda S. Jackson, 49 ECAB 486 (1998).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Charles E. Evans, 48 ECAB 692 (1997).

10

John F. Glynn, 53 ECAB 562 (2002) (an opinion that a condition is causally related to an employment injury
because the employee was asymptomatic before the injury but symptomatic after it is insufficient, without
supporting rationale, to establish causal relationship).

4

regarding the cause of an employee’s condition is of limited probative value.11 For the stated
reasons, the Board finds that Dr. Duncan’s reports are insufficient to establish appellant’s claim.
The employing establishment health unit medical records do not constitute competent
medical evidence as they were completed by a physician’s assistant who is not a physician as
defined in FECA.12
The diagnostic test results of Dr. Kelly did not provide a medical opinion on the causal
relationship between the diagnosed left shoulder conditions and accepted employment incident.
The Board finds, therefore, that his reports are insufficient to establish appellant’s claim
The undated and unsigned request and informed consent form has no probative value, as
it is not established that the author is a physician.13
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a left shoulder injury causally related to the accepted
November 16, 2010 employment incident. Appellant did not meet his burden of proof.
On appeal, appellant contended that the medical evidence of record established that he
sustained a left shoulder injury on November 16, 2010 while in the performance of duty. As
stated, this evidence does not provide a rationalized medical opinion addressing the causal
relationship between his diagnosed left shoulder conditions and the accepted November 16, 2010
employment incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a left shoulder injury
in the performance of duty on November 16, 2010, as alleged.

11

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

12

See 5 U.S.C. § 8101(2).

13

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the June 8, April 14 and February 25, 2011
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 12, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Drakesboro, KY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-134
Issued: December 19, 2012

Case Submitted on the Record

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

JURISDICTION
On October 19, 2011 appellant, through his attorney, filed a timely appeal from a July 25,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant established that he sustained pneumoconiosis in his
federal employment; and (2) whether he sustained permanent impairment of his lungs due to his
accepted chronic bronchitis condition.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 9, 2005 appellant, then a 61-year-old electrician, filed an occupational disease
claim pneumoconiosis and chronic obstructive lung disease as a result of his federal
employment. He first realized the relationship of his pulmonary condition to his employment on
April 21, 2005. Appellant also filed a claim for a schedule award. The record reflects that he
retired on January 22, 1999.
In a May 7, 2005 report, Dr. Glen Baker, a Board-certified pulmonary disease specialist
and certified B-reader, examined appellant on April 30, 2005. He noted appellant’s work history
of exposure to coal dust, asbestos and other irritants and a 10-year history of smoking for 5 to 6
years of one pack a day and then of smoking four to five pipes a day. Appellant quit smoking
approximately 20 years prior. Dr. Baker listed findings on physical examination and noted that
pulmonary function studies were interpreted to reflect a mild obstructive ventilatory defect. He
listed an impression of occupational pneumoconiosis, category 1/0, with changes secondary to
coal dust and possible asbestos; chronic bronchitis based on cough, sputum production and
wheezing; chronic obstructive pulmonary disease with mild obstructive defect with mild
improvement following bronchodilators. Under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), he rated a
class 2 impairment or 10 to 25 percent whole person impairment.
Appellant was referred to Dr. Kenneth Anderson, a Board-certified pulmonary disease
specialist, for a second opinion evaluation. On December 5, 2006 Dr. Anderson reviewed the
statement of accepted facts, appellant’s history of occupational exposure and smoking history.
He listed findings on examination and pulmonary function studies, noting that appellant
exhibited symptoms of dyspnea and a cough with symptoms consistent with chronic bronchitis.
Dr. Anderson found that appellant had no radiographic evidence of pneumoconiosis, rated 0/1,
with small opacities noted but no pleural abnormalities. The pulmonary function studies
demonstrated early/mild obstructive disease with no hyperinflation or evidence of restrictive
lung disease. Appellant had a normal diffusion capacity of carbon monoxide. Dr. Anderson
attributed the pulmonary findings to appellant’s previous history of tobacco use. He agreed that
appellant’s federal work history of exposure was an etiology of the chronic bronchitis but found
no significant evidence to suggest asbestosis or pneumoconiosis. As to appellant’s complaint of
smothering at night, Dr. Anderson noted this suggested sleep apnea unrelated to his prior federal
employment.
On January 17, 2007 an OWCP medical adviser noted that Dr. Anderson found appellant
had chronic bronchitis due to his federal employment but attributed the obstructive lung disease
to his prior tobacco use. Based on Dr. Anderson’s examination and pulmonary testing, he opined
that appellant had no impairment under the fifth edition of the A.M.A., Guides. On January 25,
2007 OWCP accepted the claim for chronic bronchitis.
In a May 18, 2007 decision, OWCP denied appellant’s schedule award claim finding that
he had no ratable impairment to his lungs.
Appellant requested an oral hearing. In an August 24, 2007 decision, an OWCP hearing
representative set aside the May 18, 2007 decision based on a conflict in medical opinion

2

between Dr. Baker and Dr. Anderson regarding appellant’s diagnosed pulmonary conditions and
any permanent impairment. OWCP was directed to amend the statement of accepted facts to
reflect appellant’s work exposure to coal dust and asbestos.
Appellant was initially referred to Dr. Manoj H. Majmudar, a Board-certified pulmonary
specialist, for an impartial medical examination. In an October 22, 2007 report, Dr. Majmudar
found that appellant’s pulmonary condition was due to cigarette smoking. He found no evidence
of asbestos-related disease or pneumoconiosis. In a November 16, 2007 decision, OWCP denied
the schedule award claim. By decision dated June 17, 2008, an OWCP hearing representative
vacated the November 16, 2007 decision and remanded the case to obtain a supplemental report
from Dr. Majmudar. In an August 14, 2008 addendum, Dr. Majmudar stated that his review of
chest x-rays did not demonstrate pneumoconiosis but showed cardiomegaly with marked chronic
obstructive pulmonary disease changes and hyperinflation of the lung. He reiterated that
appellant’s condition was due to prior cigarette smoking and that any lung condition could be
aggravated by coal dust and asbestos exposure.
In an August 27, 2008 decision, OWCP denied appellant’s schedule award claim.
Appellant requested a hearing. In a June 5, 2009 decision, OWCP’s hearing representative
vacated the August 27, 2008 decision, finding that Dr. Majmudar’s supplemental report was not
sufficient to resolve the conflict. OWCP was directed to refer appellant to a new impartial
Board-certified pulmonary specialist and B-reader.2
OWCP referred appellant to Dr. William C. Houser, a Board-certified pulmonary
specialist, for an impartial examination. In a March 16, 2010 report, Dr. Houser reviewed
appellant’s medical and occupational history and the statement of accepted facts. He obtained
pulmonary function studies and reviewed studies by Drs. Baker, Anderson, Majmudar and Selby.
Dr. Houser stated that a chest x-ray was obtained by Daniel W. Whitehead, a Board-certified
radiologist and B-reader, who found category 0/1 (no) pneumoconiosis plus some atelectasis at
the left base. Pulmonary function testing showed normal total lung capacity and reduced
expiratory reserve volume secondary to obesity.3 Dr. Houser assessed chronic bronchitis and
found no evidence of pneumoconiosis. He stated that on May 7, 2005 Dr. Baker reported
readings of two chest x-ray films from February 2 and April 20, 2005, findings of q and s on the
first film and s and t on the second film, opacities in the mid and lower lung zones category 1/0
pneumoconiosis. He noted a forced vital capacity 4.22 L (89 percent of predicted) and FEV1
2.83 L (76 percent of predicted). Dr. Houser explained that Dr. Baker’s finding was not class 2
pneumoconiosis but 1/0 pneumoconiosis and, under the sixth edition of the A.M.A., Guides,
2

The record reflects that appellant was referred to Dr. Jeffrey Selby, a Board-certified pulmonologist and Breader, for a second opinion evaluation. After OWCP obtained his report and requested supplementation, it noted
the error in the referral for a second opinion rather than impartial evaluation.
3

The slow vital capacity was normal (80 percent of predicted) whereas forced vital capacity was only 60 percent
of predicted and forced expiratory volume (FEV1) was 56 percent of predicted. The single breath diffusion capacity
and airway resistance measurements were normal. Due to appellant’s submaximal effort, he repeated the
spirometry. Dr. Houser indicated the best value was 3.12 L for a forced vital capacity (67 percent of predicted) and
FEV1 2.66L (60 percent of predicted). Peak flow measures were a maximum of 72 percent of predicted. As O2
saturation at rest was 94 percent it was not necessary to obtain blood gas. As single breath diffusion capacity was
normal, a CBC was not obtained.

3

pulmonary impairment would be class 1. He reviewed the reports of Drs. Anderson, Majmudar
and Selby and concluded that the fairly substantial variation in spirometry values was due to
appellant’s submaximal effort. Dr. Houser explained that tests which were less effort related,
such as lung volume study, slow vital capacity and single breath diffusion capacity, were
uniformly normal. Using the best postbronchodilator results, he found there was no pulmonary
impairment. Using the tests that appeared to be valid, the lowest degree of impairment would be
no more than two percent (class 1A). Dr. Houser opined that appellant’s chronic bronchitis was
secondary to exposure to dust, smoke and fumes from his work as well as from his prior cigarette
smoking. He explained that chronic bronchitis associated with physiologic changes was
obstructive in nature. In some cases, simple chronic bronchitis was not associated with any
pulmonary impairment and 30 to 40 percent of patients with chronic obstructive pulmonary
disease/chronic bronchitis who have airway obstruction showed some bronchodilator response.
On April 13, 2010 an OWCP medical adviser recommended that additional clarification
be obtained from Dr. Houser regarding the noted discrepancy in prior pulmonary function tests.
He noted that Dr. Houser had not signed the studies obtained on pulmonary testing.
On April 21, 2010, Dr. Houser stated that medical literature advised that there should be
no more than 10 to 12 percent variation in the forced vital capacity and FEV1 when retesting the
same individual on different days and times within a one-year period of time. He determined
that the two best sets of pulmonary function studies, obtained for Drs. Anderson and Selby,
found either normal or near normal pulmonary function. Dr. Anderson specifically noted that the
guidelines were not met. Dr. Selby’s testing, the most recent, was normal for the forced vital
capacity and FEV1 was at the lower limits of normal. Dr. Houser stated that there was no
impairment under the sixth edition of the A.M.A., Guides using Dr. Shelby’s tests. Dr. Anderson
reiterated that the testing obtained of appellant in his own office and lab revealed submaximal
effort. Dr. Houser opined that his studies did not provide valid results nor did the testing
obtained for Drs. Majmudar, Baker and Anderson, each due to evidence of submaximal effort.
He noted that appellant was not weak or frail, and since some of the nonvoluntary testing was
normal, the presence of lung disease would adequately explain his diminished peak flow rates.
Dr. Houser recommended against further testing as it was likely to show submaximal effort. He
noted that the lung testing that was not based upon voluntary effort. The lung volume study,
slow vital capacity, and single breath diffusion capacity rates were uniformly normal, as were the
airway resistance measurements. Dr. Houser stated that individuals with obstructive airway
disease generally showed signs of increased airway resistance. Individuals with pneumoconiosis
or interstitial lung disease or emphysema showed a reduction in single breath capacity testing.
Dr. Houser concluded that appellant’s normal total lung capacity excluded any clinically
significant restrictive lung disease. He stated that the case was relatively straightforward but was
complicated by Dr. Baker’s misinterpretation or misrepresentation that appellant had class 2
pulmonary impairment, rather than class 2 pneumoconiosis and a series or invalid pulmonary
function results due to submaximal patient effort. Dr. Houser signed the pulmonary function
report from March 16, 2010.
On May 11, 2010 the OWCP medical adviser found that Dr. Houser answered all
questions and clarified that the discrepancies found on pulmonary testing were due to
submaximal effort. For this reason, the recent pulmonary function test obtained for Dr. Houser
were not valid and repeat testing was not indicated. The medical adviser noted that Dr. Houser

4

found the only valid pulmonary function test to be for Dr. Selby in 2009 that was reported
normal. He concurred with the result and stated that appellant had no ratable permanent
impairment. The medical adviser noted that Dr. Houser determined that Dr. Baker had rated
impairment based on invalid pulmonary function test studies.
By decision dated May 14, 2010, OWCP denied appellant’s schedule award claim. It
also determined that he did not establish pneumoconiosis as a result of his federal employment.
The weight of the medical opinion was accorded to Dr. Houser, as the impartial specialist.
Appellant requested a hearing, which was held on September 1, 2010. In an August 5,
2010 statement, Dr. Baker stated that review of a September 10, 2009 CT showed thickening of
the interlobular septa. There also appeared to be diffuse thickening of pulmonary parenchymal
consistent with early coal workers pneumoconiosis. In an August 2, 2010 form regarding
appellant’s March 16, 2010 chest x-ray, Dr. Baker again listed a 1/0 profusion with small
opacities but indicated there were no pleural abnormalities consistent with pneumoconiosis.
In a September 3, 2010 report, Dr. Baker addressed the pulmonary studies obtained for
Drs. Anderson, Majmudar, Selby and Houser. He stated that appellant’s pulmonary impairment
worsened since he was first examined in 2005.
Dr. Baker stated that occupational
pneumoconiosis, chronic bronchitis and chronic obstructive pulmonary disease were progressive
and could cause gradual worsening of his impairment. He noted that it was generally felt that
obstructive airway disease, regardless of etiology, resulted in inflammatory lung changes despite
removal from the offending agent and continued inflammation would result in progressive lung
damage. Dr. Baker opined that appellant’s worsened condition was due to occupational
pneumoconiosis, chronic bronchitis and chronic obstructive pulmonary airway disease.
By decision dated October 21, 2010, an OWCP hearing representative set aside the
May 14, 2010 decision to seek clarification from Dr. Houser as to whether appellant had
evidence of chronic obstructive pulmonary disease and pneumoconiosis. Dr. Houser was also to
address the two percent class 1A impairment to which he referred.
In a November 23, 2010 report, Dr. Houser noted that Dr. Baker had performed the initial
examination and listed category 1 pneumoconiosis (not category 2) and class 2 pulmonary
function impairment. One of the initial interpretations was that appellant had category 2
pneumoconiosis. Dr. Houser stated that the chest radiograph performed at his facility was read
as category 0/1 pneumoconiosis by Dr. Whitehead, a B-reader. He stated that category 0/1 was
negative for pneumoconiosis; the minimal threshold for a positive chest radiograph was category
1/0 pneumoconiosis. Regarding the pulmonary function studies, Dr. Houser reiterated that there
was a great discrepancy between those performed by Drs. Baker, Anderson, Majmudar, Selby
and the studies he obtained. The only explanation for the degree of discrepancy in repeated
pulmonary function measurements was patient effort, not underlying disease. Dr. Houser stated
that, while the diagnosis provided for the pulmonary function study testing conducted in his
laboratory was chronic obstructive pulmonary disease; this was not a firm diagnosis, rather an
indication from testing. He explained that chronic obstructive pulmonary disease included both
emphysema and chronic bronchitis. Dr. Houser stated that the diagnosis of chronic bronchitis
was clinical, which the American Thoracic Society defined as “chronic cough with sputum
production for at least three months in two consecutive years.” He found that appellant had

5

chronic bronchitis, which was one form of chronic obstructive pulmonary disease. Dr. Houser
stated that the diagnosis associated with class 1A impairment, two percent, was chronic
bronchitis, based upon the studies for Dr. Anderson. He indicated that other spirometry
measures did not represent valid or reproducible results. Dr. Houser opined that appellant did
not have pneumoconiosis and noted that Dr. Baker was the only physician to have supported a
finding of pneumoconiosis. The evaluations provided by the other physicians of record did not
support such a diagnosis on chest x-ray or CT scan.
In a December 14, 2010 report, OWCP’s medical adviser concurred with Dr. Houser’s
opinion that appellant did not have pneumoconiosis causally related to his federal employment.
He noted that Dr. Houser clarified that appellant had chronic bronchitis, a form of chronic
obstructive pulmonary disease. The medical adviser noted that the diagnosis of chronic
obstructive pulmonary disease and chronic bronchitis were one in the same. Dr. Houser found
the diagnosis associated with class 1A impairment, two percent, was chronic bronchitis based on
the best pulmonary function tests. The medical adviser noted that there were great discrepancies
in the pulmonary testing or record which was attributed to poor and variable effort by appellant.
By decision dated January 3, 2011, OWCP denied the schedule award claim. It also
found that the medical evidence did not support pneumoconiosis as related to appellant’s federal
employment. The weight of medical opinion was accorded to Dr. Houser.
Appellant requested a hearing, which was held on May 3, 2011. He submitted a
January 2011 letter inviting him to participate in a national clinical trial of medication for
treatment of chronic obstructive pulmonary disease.
In a July 25, 2011 decision, an OWCP hearing representative affirmed the January 3,
2011 decision.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.4
The medical evidence required to establish a causal relationship is 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.5
4

20 C.F.R. § 10.115(e), (f) (2009); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

6

When there exist opposing medical opinions of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual and
medical background, will be given special weight.6
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
the original report.7 However, when the impartial specialist is unable to clarify or elaborate on
the original report or if a supplemental report is also vague, speculative or lacking in rationale,
OWCP must submit the case record and a detailed statement of accepted facts to a second
impartial specialist for the purpose of obtaining a rationalized medical opinion on the issue.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained chronic bronchitis in his federal employment as
an electrician. It denied that he developed pneumoconiosis causally related to his work duties.
The Board finds that the weight of medical evidence, as represented by the opinion of
Dr. Houser, the impartial specialist, establishes that appellant did not sustain pneumoconiosis.
Dr. Baker, an attending physician, opined that appellant had occupational
pneumoconiosis due to his federal employment. Dr. Anderson, a second opinion physician,
found that appellant did not have radiographic evidence of pneumoconiosis and attributed his
pulmonary condition to his tobacco use. Due to this disagreement between appellant’s physician
and OWCP’s second opinion physician, OWCP properly found that there was a conflict of
medical opinion necessitating referral to an impartial medical specialist.
OWCP initially designated Dr. Majmudar as the impartial medical examiner; but his
reports were found insufficient to resolve the conflict in medical opinion. It then referred
appellant to a second impartial medical specialist, Dr. Houser, to resolve the conflict in medical
opinion.9
Dr. Houser provided an accurate history of injury and provided detailed findings on
physical examination. He obtained additional x-rays from Dr. Daniel Whitehead, a Boardcertified specialist and certified B-reader, who found no evidence (category 0/1) to support the
diagnosis of pneumoconiosis related to appellant’s occupational exposure. The pulmonary
function testing obtained for Dr. Houser showed normal total lung capacity and a reduced
6

R.C., 58 ECAB 238 (2006); Bernadine P. Taylor, 54 ECAB 342 (2003). See 5 U.S.C. § 8123(a).

7

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
8

Nancy Keenan, 56 ECAB 687 (2005); Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB
673 (1996).
9

While OWCP referred appellant to Dr. Selby prior to Dr. Houser, it noted the error of requesting a second
opinion examination rather than an impartial review.

7

expiratory reserve volume that he attributed to appellant’s obesity. Dr. Houser agreed that
appellant had chronic bursitis due to his federal employment. He reviewed the pulmonary
testing obtained by the physicians of record and noted significant variations that were due to
submaximal effort by appellant. The tests that were not effort related, such a lung volume, slow
vital capacity and single breath diffusion capacity were uniformly normal. Using the test that
appeared to be most valid, the lowest degree of impairment would be no more than two percent,
class 1A. Dr. Houser found no evidence of pneumoconiosis and explained that Dr. Baker’s
findings from the February 2 and April 20, 2005 x-rays were not class 2 pneumoconiosis but 0/1.
In an April 21, 2010 supplement, Dr. Houser stated that the pulmonary function studies
obtained for Dr. Selby represented the best effort and revealed that appellant had normal or near
normal pulmonary function. He stated that the other pulmonary function tests, including that
from his office, were not valid due to appellant’s submaximal efforts. Dr. Houser reiterated that
appellant was not weak or frail and that the nonvoluntary test results were normal. He noted that
the absence of any clinically significant restrictive disease excluded the diagnosis of
pneumoconiosis. Dr. Houser noted that Dr. Baker’s report had complicated the matter by
misinterpreting a series of pulmonary function results. On November 23, 2010 he noted the
discrepancy in the pulmonary function testing. Dr. Houser stated that appellant had chronic
bronchitis, a form of chronic obstructive pulmonary disease and the diagnosis was associated
with a class 1A impairment. All the other spirometry results did not show valid or reproducible
results that could be explained by submaximal effort rather than underlying disease.
On December 14, 2010 an OWCP medical adviser reviewed Dr. Houser’s reports and
concurred that appellant did not have pneumoconiosis. He stated that Dr. Houser clarified the
diagnosis by noting that chronic bronchitis was a form of chronic obstructive pulmonary disease.
The Board finds that Dr. Houser’s opinion is sufficient to establish that appellant did not
sustain pneumoconiosis causally related to his federal employment. Dr. Houser supported that
appellant had chronic bronchitis, the accepted condition and a form of chronic obstructive
pulmonary disease. He based his opinion on the statement of accepted facts and review of the
medical record. Dr. Houser obtained diagnostic testing and provided extensive medical rationale
for his conclusion that the x-rays did not support a finding of pneumoconiosis. He advised that
only Dr. Baker had supported this diagnosis, but noted that it was not confirmed by the other
examining physicians. The Board finds that Dr. Houser’s opinion is well rationalized and based
on a complete, accurate factual and medical history. Therefore, OWCP properly accorded his
opinion special weight.
On September 3, 2010 Dr. Baker opined that appellant’s pulmonary condition had
worsened since the 2005 evaluation and was due to occupational pneumoconiosis, chronic
bronchitis and chronic obstructive pulmonary disease. With regard to the diagnosed
pneumoconiosis, he provided limited objective evidence to establish a positive pneumoconiosis
diagnosis. Dr. Baker concluded that a September 10, 2009 CT scan appeared to be diffuse
thickening of pulmonary parenchymal consistent with early coal workers pneumoconiosis.
However, in the August 2, 2010 form regarding the reading of appellant’s March 16, 2010 chest
x-ray, he specifically opined that, while appellant had 1/0 profusion of small opacities, there
were no pleural abnormalities consistent with pneumoconiosis. The March 16, 2010 chest x-ray
was negative for pneumoconiosis. As Dr. Baker was on one side of the conflict that Dr. Houser

8

resolved, the additional reports from the physician are insufficient to overcome the weight
accorded Dr. Houser’s report as the impartial medical specialist or to create a new conflict.10
Dr. Houser supported that appellant has chronic bronchitis, a form of chronic obstructive
pulmonary disease, causally related to federal employment. He did not find that appellant has
pneumoconiosis causally related to his work as an electrician.
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.
On appeal, counsel argued that the objective testing of record supported the causal
relationship between appellant’s pneumoconiosis and his employment. As noted, however,
Dr. Houser provided a well-rationalized opinion based on a complete background, review of the
accepted facts and medical records and examination findings. His opinion is entitled to the
special weight of medical opinion.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of FECA,11 and its implementing federal regulations,12 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.13 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.14 The claimant has the
burden of proving that the condition for which a schedule award is sought is causally related to
his or her employment.15
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained chronic bronchitis but denied his claim for a
schedule award. As noted, it properly found a conflict as to the extent and nature of any
permanent pulmonary impairment.

10

Dorothy Sidwell, 41 ECAB 857, 874 (1990).

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

Id. at § 10.404(a).

14

FECA Bulletin No. 09-03 (issued March 15, 2009); see also Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
15

Veronica Williams, 56 ECAB 367, 370 (2005).

9

Dr. Houser, the impartial specialist, initially opined that, based upon pulmonary testing
which appeared to be valid, the lowest degree of impairment would be no more than two percent,
or class 1A. He noted that there was a fairly substantial variation in spirometry values due to
appellant’s submaximal effort. In an April 21, 2010 report, Dr. Houser indicated that the two
best sets of pulmonary function studies, obtained for Dr. Anderson and Dr. Selby, indicated
either normal or near normal pulmonary function. Dr. Anderson specifically noted that the
guidelines were not met while Dr. Selby’s testing was normal for the forced vital capacity and
the FEV1 was at the lower limits of normal. Using Dr. Selby’s tests, he opined that there was no
impairment under the sixth edition of the A.M.A., Guides.
On May 11, 2010 an OWCP medical adviser agreed that Dr. Selby’s pulmonary function
tests of 2009 and 2010 were normal and there was no ratable impairment. On November 23,
2011 Dr. Houser clarified that his earlier impairment rating of two percent or class 1A was based
on studies performed by Dr. Anderson. On December 14, 2010 an OWCP medical adviser noted
the diagnosis associated with class 1A impairment or two percent was based on the best
pulmonary function tests.
The Board finds that additional clarification is required. Dr. Houser found that the only
valid pulmonary function tests were performed by Dr. Selby and there was no ratable impairment
as those values were normal. However, he later indicated a class 1A impairment of two percent
for chronic bronchitis based on Dr. Anderson’s pulmonary function studies. Dr. Houser should
clarify whether Dr. Anderson’s pulmonary function testing is valid and explain how he rated two
percent impairment. Table 5-4, page 88 of the A.M.A., Guides provides a default rating of six
percent for a class 1 impairment based on pulmonary dysfunction. Page 87 of the A.M.A.,
Guides states that, after the preliminary impairment rating is obtained, it is then adjusted based
on results from nonkey factors, such as history and physical examination. In evaluation the
cause of abnormality in any of the listed measures, only valid pulmonary dysfunction consistent
with and concordant with the validated pathology should be considered. If the individual is
considered to have no impairment, all the listed criteria of the objective testing section in Table
5-4 except for VO2 max (maximal oxygen uptake) must be met. For all other classes, at least one
of the listed criteria must be fulfilled. Dr. Houser did not provide sufficient explanation as to
how an impairment rating of two percent was obtained, but did attribute the impairment to the
accepted chronic bronchitis. Consequently, the Board will remand the case to OWCP to obtain a
supplemental report from Dr. Houser conforming with the sixth edition of the A.M.A., Guides.
Following such further development as deemed necessary, it should issue an appropriate
decision.
CONCLUSION
The Board finds that appellant did not establish that he sustained pneumoconiosis
causally related to his federal employment. The case is not in posture for decision as to whether
appellant established permanent impairment due to his accepted chronic bronchitis.

10

ORDER
IT IS HEREBY ORDERED THAT the July 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed, in part, denying the condition of pneumoconiosis.
The decision is set aside for further development on the schedule award claim.
Issued: December 19, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11


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

)
)
)
)
)
)
)
)

Appearances:
David P. McCormack, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0235
Issued: September 10, 2019

Case Submitted on the Record

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

JURISDICTION
On November 13, 2017 appellant, through counsel, filed a timely appeal from a May 16,
2017 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
3

5 U.S.C. § 8101 et seq.

Together with his appeal to the Board, appellant submitted a timely request for oral argument pursuant to 20
C.F.R. § 501.5(b). By order dated August 9, 2018, the Board exercised its discretion and denied the request as
appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted
on the record. Order Denying Request for Oral Argument, Docket No. 18-0235 (issued August 9, 2018).

ISSUE
The issue is whether appellant has met his burden of proof to establish more than 31 percent
permanent impairment of the left lower extremity, for which he previously received a schedule
award.
FACTUAL HISTORY
On October 13, 2004 appellant, then a 50-year-old letter carrier, filed traumatic injury
claim (Form CA-1) alleging that he sustained an injury as a result of twisting his left knee causing
a pop while in the performance of duty. OWCP initially accepted the claim for synovitis/sprain of
the left knee and authorized a January 25, 2005 left knee surgery. Appellant underwent an
authorized total left knee arthroplasty on September 20, 2010. He subsequently returned to fulltime modified-duty work on April 25, 2011 based on a second opinion examination dated
March 23, 2011 by Dr. Medhat A. Kader, a Board-certified orthopedic surgeon, who opined that
he was capable of sedentary work with restrictions. Appellant returned to full-duty work on
July 12, 2011.
In an October 27, 2011 report, Dr. Robert M. Shalvoy, a Board-certified orthopedic
surgeon, indicated that appellant presented for a one year reevaluation of his left total knee
arthroplasty. Dr. Shalvoy noted that appellant had soreness and swelling at the end of the day and
complained of soft tissue clicking in the suprapatellar pouch. Upon physical examination he found
some residual soft tissue swelling in the left knee compared to the right, and some residual quad
atrophy. Range of motion (ROM) testing showed some crepitus in the suprapatellar pouch, but no
tenderness to palpation. ROM was 0 to 130 degrees of flexion without laxity or instability in the
left knee. Appellant’s calves were soft bilaterally and motor, sensory, and reflex function were
symmetrically intact. Dr. Shalvoy found good pulses and capillary refill in both feet. He reviewed
an x-ray taken that day and found no evidence of settling, loosening, or fracture in the left knee.
Dr. Shalvoy opined that appellant had reached maximum medical improvement (MMI) one year
after surgery and was capable of performing regular duty. He concluded his report indicating that
appellant had 37 percent permanent impairment of the left lower extremity.
In an April 30, 2013 report, Dr. Shalvoy noted that appellant had significant swelling and
stiffness by the end of his workday walking his route, which was aggravated by walking stairs.
Appellant’s ROM had diminished to 105 degrees and Dr. Shalvoy explained that this was
associated with his swelling. He opined that appellant’s condition was consistent with a class 3
diagnosis with mild motion deficit as per Table 16-23, page 539, of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).4 Dr. Shalvoy concluded that there was no additional modifier.
In an August 23, 2013 report, Dr. Byron V. Hartunian, a Board-certified orthopedic
surgeon, diagnosed status post left total knee replacement for end-stage degenerative arthritis of
the left knee, anterior and medial synovitis of the left knee, and sprain of the left knee.
Dr. Hartunian conducted a physical examination and found that appellant could sit and stand
4

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

2

independently and ambulate in a normal heel/toe manner without a noticeable limp. While
standing, there was a three-degree valgus alignment through the left knee and a three-degree varus
alignment through the right knee. Appellant was able to squat 50 percent of normal, restricted by
limited mobility of his left knee and anteromedial discomfort. Regional examination of the left
knee indicated a well-healed anterior longitudinal scar, not stretched, discolored, or elevated.
There was visible swelling about the left knee, palpable effusion, and a three-quarter of an inch
measurable swelling circumferentially at the midpoint of the patella of the left knee compared to
the right side. The ROM of the left knee, measured with a goniometer and performed three times
with the highest range recorded, was flexion of 106 degrees and extension zero degrees. This
compared to 135 degrees of flexion on the right with zero degree of extension. There was moderate
tenderness to palpation of the patellofemoral joint and anterior medial joint line. There was no
ligament laxity on stressing the knee. Examination of the left hip, ankle, and foot demonstrated
no tenderness at those joints, full ROM, no ligament laxity of the ankle or foot, and normal
neurovascular examination of the left lower extremity. Dr. Hartunian determined that appellant
had reached MMI on October 27, 2011, one year after undergoing the left total knee replacement
surgery performed by Dr. Shalvoy.
Dr. Hartunian provided an opinion of the extent of appellant’s permanent impairment.
Utilizing Table 16-3,5 Knee Regional Grid, of the A.M.A., Guides, he opined that appellant’s
condition was consistent with a class 3 diagnosis for the diagnosis of total knee replacement
because the physical examination indicated a mild motion deficit per Table 16-25.6 Dr. Hartunian
did not assign a grade modifier for clinical studies (GMCS) because x-rays at the one-year followup confirmed the diagnosis. He assigned a grade modifier of 2 for physical examination (GMPE)
because moderate palpatory findings were consistently documented and supported by the observed
abnormalities. Dr. Hartunian assigned a grade modifier of zero for functional history (GMFH)
because there was no antalgic limp. Appellant completed an American Academy of Orthopedic
Surgeons (AAOS) lower limb questionnaire7 and Dr. Hartunian found that appellant’s answers
warranted a grade modifier of 3 for severe deficit. Dr. Hartunian noted that the A.M.A., Guides
“indicate that the higher grade modifier 3 is to be used in the calculation.” Using the net adjustment
formula (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), he calculated that appellant had a
net adjustment of (0-3) + (3-3) + (n/a) = -1, equaling a class 3, grade B impairment. Based on
these calculations, Dr. Hartunian concluded that appellant had 34 percent permanent impairment
of the left lower extremity.
On August 29, 2013 appellant filed a claim for a schedule award (Form CA-7).

5

Id. at 549.

6

Id. at 550.

7

The A.M.A., Guides explain on page 516 that inventories must be widely accepted and have documented
reliability and validity. The AAOS lower limb instrument is one inventory that may be used. Information and scoring
is provided at the AAOS website. An inventory is used only to assist the examiner in defining the grade for functional
history and does not serve as a basis for defining further impairment nor does the score reflect an impairment
percentage (see Table 16-6).

3

By decision dated January 17, 2014, OWCP expanded appellant’s claim and accepted
medial meniscus tear of the left knee and post-traumatic arthritis of the left knee.
On March 26, 2014 Dr. Morley Slutsky, a Board-certified occupational medicine specialist
serving as a district medical adviser (DMA), reviewed the medical evidence of record and
determined that appellant’s date of MMI was October 27, 2011, one year after she had her left total
knee replacement surgery performed by Dr. Shalvoy. He concurred with Dr. Hartunian that
appellant’s most impairing diagnosis was total knee replacement with mild motion deficit, which
was a class 3 diagnosis. The DMA disagreed with Dr. Hartunian’s impairment rating, which had
indicated that appellant’s AAOS score was consistent with a GMFH of 3. He explained that the
AAOS score was unreliable and used only as an “adjuvant,” not the main determinate of the
GMFH. The DMA explained that there was no documentation of a positive Trendelenburg and
appellant did not have an antalgic gait, nor did he require the use of a single gait aid or external
orthotic device for stabilization. He opined that this was consistent with appellant’s ability to
function per Table 16-6’s criteria8 and, as such, appellant’s GMFH was 1 for his finding of only a
mild problem. The DMA concurred with Dr. Hartunian’s GMPE of 2 due to tenderness to
palpation/crepitation and swelling and that a GMCS was not applicable in this case. Using the net
adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), he calculated that
appellant had a net adjustment of (1-3) + (2-3) + (n/a) = -2, equaling a class 3, grade A impairment.
Based on these calculations, the DMA concluded that appellant had 31 percent permanent
impairment of the left lower extremity.
Dr. Hartunian was provided a copy of the DMA’s report for his review and comment. In
a June 4, 2014 letter, he noted that the only conflict in medical opinion was in relationship to the
GMFH for the left knee. Dr. Hartunian explained that he disagreed with the DMA and explained
that he had used Table 16-5 on page 515 of the A.M.A., Guides to determine his grade modifiers
by using the highest class modifier as the value for each adjustment in the net adjustment
calculation. He further indicated that he did not understand why the DMA had found the AAOS
score to be unreliable. Dr. Hartunian noted that the “[A.M.A.,] Guides provides that, ‘If any of
these factors [within Table 16-5] are determined by the examiner to be unreliable or inconsistent
they should be excluded in the grading adjustment. I found no basis for so concluding.’” He
emphasized that, as suggested by the A.M.A., Guides that he was the examining physician and had
an opportunity to interact with his patient significantly during the examination and found him
sincere and honest, and thus the AAOS questioner was likely valid. Dr. Hartunian reiterated his
opinion that appellant’s GMFH was 3. He further explained his belief that the DMA had
misconstrued the exclusion provision for GMFH in this case and that there was no support for the
finding of a GMFH of 1 in the record or within the A.M.A., Guides.
By decision dated September 5, 2014, OWCP granted appellant a schedule award for 31
percent permanent impairment of the left lower extremity. It noted that it had relied on the report
of the DMA, finding that he had provided an explanation of the deficiency in the report of
Dr. Hartunian and noted that a copy of the DMA report was attached to the decision. The award
ran for 89.28 weeks for the period October 27, 2011 to July 12, 2013.

8

Id. at 516.

4

On September 1, 2015 appellant, through counsel, requested reconsideration and submitted
a March 11, 2014 report from Dr. Hartunian, which reiterated that the only disagreement with the
DMA’s rating impairment was the GMFH.
In two supplemental reports dated October 10 and November 11, 2015, the DMA reiterated
that there was no documentation of a positive Trendelenburg, appellant did not have an antalgic
gait, he did not require the use of a single gait aid or external orthotic device for stabilization, and
these findings were consistent with appellant’s ability to function per Table 16-6’s criteria and, as
such, his GMFH was 1.
By decision dated November 18, 2015, OWCP denied modification of its prior schedule
award decision.
On January 19, 2016 appellant, through counsel, requested reconsideration.
By decision dated March 23, 2016, OWCP denied modification of its prior schedule award
decision.
On March 20, 2017 appellant, through counsel, requested reconsideration.
By decision dated May 16, 2017, OWCP denied modification of its prior schedule award
decision.
LEGAL PRECEDENT
The schedule award provisions of FECA and its implementing regulations 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. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as a standard for evaluation of schedule losses and
the Board has concurred in such adoption.9 For schedule awards after May 1, 2009, the impairment
is evaluated under the sixth edition of the A.M.A., Guides, published in 2009.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 In determining impairment for the lower extremities under the sixth edition
9

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.806.6.6a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
11
A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement (6th ed. 2009).

5

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 knee, the relevant portion of the leg for the present
case, reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.12 After the
class of diagnosis (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).13 Under
Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices,
including choices of diagnoses from regional grids and calculations of modifier scores.14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through a DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.15
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.16 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no prior connection with the case.17
When there exists opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical examiner (IME) 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.18
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that appellant’s claim for synovitis/sprain of left knee, medial meniscus
tear of the left knee, and post-traumatic arthritis of the left knee and authorized two left knee
surgeries which were performed on January 25, 2005 and September 20, 2010.
In support of his claim for a schedule award, appellant submitted an August 23, 2013 report
of his attending physician, Dr. Hartunian. Utilizing Table 16-3, Knee Regional Grid, of the
A.M.A., Guides, Dr. Hartunian opined that appellant’s condition was consistent with a class 3
12

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

13

Id. at 494-531.

14

Id. at 23-28.

15

Id. See C.K., Docket No. 09-2371 (issued August 18, 2010).

16

5 U.S.C. § 8123(a).

17

20 C.F.R. § 10.321.

18

J.T., Docket No. 18-0503 (issued October 16, 2018).

6

diagnosis for section total knee replacement because the physical examination indicated a mild
motion deficit per Table 16-25. He did not assign a GMCS, he assigned a GMPE of 2, and a
GMFH of 0 because there was no antalgic limp. Dr. Hartunian had appellant complete an AAOS
lower limb questionnaire and found that appellant’s answers warranted a grade modifier of 3 for
severe deficit. He explained that the A.M.A. Guides indicate that the higher grade modifier of 3
was to be used in the net adjustment formula. Using the net adjustment formula, Dr. Hartunian
calculated that appellant had a net adjustment of (0-3) + (3-3) + (n/a) = -1, equaling a class 3, grade
B impairment. Based on these calculations, he concluded that appellant had 34 percent permanent
impairment of the left lower extremity.
In accordance with its procedures, OWCP properly referred the case record to a DMA,
Dr. Slutsky, who reviewed the clinical findings of Dr. Hartunian’s reports and determined that
appellant had 31 percent permanent impairment of the left lower extremity based upon
Dr. Hartunian’s objective findings. The DMA concurred with the rating of the examining
physician, but disagreed with Dr. Hartunian’s GMFH of 3. He explained that the AAOS score
was unreliable and used only as an “adjuvant,” not the main determinate of the GMFH. The DMA
further explained that per Table 16-6’s criteria, appellant’s GMFH was 1 for a mild deficit. He
concurred with Dr. Hartunian’s GMPE of 2 and that a GMCS was not applicable in this case.
Using the net adjustment formula, the DMA calculated that appellant had a net adjustment of (13) + (2-3) + (n/a) = -2, equaling a class 3, grade A impairment. Based on these calculations, he
concluded that appellant had 31 percent permanent impairment of the left lower extremity.
The DMA’s report was provided to Dr. Hartunian who replied by a June 4, 2014 letter
providing his rationale for providing a GMFH of 3 per Table 16-6 of the A.M.A., Guides based
upon his physical examination of appellant and review of his AAOS scoring. Dr. Hartunian further
explained that it was his opinion that the DMA had misconstrued the proper use of Table 16-6 and
the use of the GMFH.
Dr. Hartunian’s June 4, 2014 letter was provided to the DMA who, in two additional
reports, continued to disagree over the proper grade modifier under Table 16-6.
The Board finds that, as the reports of Dr. Hartunian and DMA Dr. Slutsky are virtually of
equal weight, a conflict of medical opinion exists as to the proper GMFH and the appropriate use
of the AAOS lower limb questionnaire. Referral to an IME is therefore required.
On remand OWCP shall refer appellant, along with the case record and a statement of
accepted facts, to an appropriate specialist for an impartial evaluation and report which includes a
rationalized opinion as to the extent of appellant’s left lower extremity permanent impairment. In
its referral letter, the independent examining physician shall be asked to provide specific rationale
on the GMFH assigned to the left lower extremity along with an explanation as to the appropriate
use of the AAOS lower limb questionnaire and Table 16-6, Functional History Adjustment -Lower Extremities. Following this and such further development 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.

7

ORDER
IT IS HEREBY ORDERED THAT the May 16, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.
Issued: September 10, 2019
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

8