United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Crete, IL, Employer
__________________________________________

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

Docket No. 19-1030
Issued: November 22, 2019

Case Submitted on the Record

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

JURISDICTION
On April 10, 2019 appellant, through counsel, filed a timely appeal from a March 14, 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 March 14, 2019 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 abused its discretion by denying authorization for appellant’s
requested cervical/thoracic spine facet radiofrequency ablation (RFA).
FACTUAL HISTORY
On January 17, 2009 appellant, then a 34-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, she sustained injuries to the back of her head
and shoulders when she was involved in a vehicle accident while in the performance of duty. On
March 18, 2009 OWCP accepted her claim for neck sprain and paid intermittent wage-loss
compensation benefits on the supplemental roll as of August 24, 2009. It expanded acceptance of
the claim to include cervical strain and right rotator cuff tear on January 9, 2012.
In a report dated May 11, 2018, Dr. Neeraj Jain, Board-certified in pain medicine, reviewed
appellant’s history of injury, and noted that she continued to have neck pain as well as numbness
and tingling in her upper extremities. He diagnosed cervical facet syndrome, cervicalgia,
myofascial pain syndrome, headaches, occipital neuritis, and bilateral carpal tunnel. Dr. Jain
requested authorization for appellant to undergo bilateral C3, C4, C5, C6, and C7 RFA “left to be
followed by the right.”
In a development letter dated May 24, 2018, OWCP informed both appellant and Dr. Jain
that it was unable to authorize the requested procedure because the request was outdated as it was
not based on recent clinical findings. It noted that the evidence did not explain why this medical
procedure was necessary for treatment of the accepted conditions. OWCP advised appellant and
Dr. Jain of the evidence required for authorization of the requested treatment and afforded 30 days
for submission of the necessary evidence.
In a report dated June 19, 2018, Sana Atcha, a nurse practitioner indicated that appellant
reported waiting to receive bilateral C3, C4, C5, C6, and C7 RFA, and complained of persistent
pain. She reiterated the recommendation for appellant to receive the bilateral C3, C4, C5, C6, and
C7 RFA, and opined that appellant’s symptoms were directly related to “the injury.”
On June 20, 2018 Dr. Jain again requested authorization for cervical/thoracic facet RFA.
In separate development letter dated June 27, 2018, OWCP informed appellant and Dr. Jain
that it was unable to authorize the requested procedure because the request was outdated based on
the lack of recent clinical findings, and it did not explain how the need for the requested treatment
resulted from the accepted employment injury. It informed them of the evidence needed for
authorization, and afforded another 30 days for submission of the necessary evidence.
In reports dated May 19, July 5, August 2 and 7, 2018, Dr. Joseph Thometz, a Boardcertified orthopedic surgeon, related that he had examined appellant and noted her complaints of
right shoulder pain. He noted that Dr. Jain treated appellant for her neck condition.
In a report dated August 14, 2018, Dr. Christopher Morgan, a physical medicine and
rehabilitation specialist, diagnosed cervical facet syndrome, cervicalgia, myofascial pain
syndrome, headaches, occipital neuritis, and bilateral carpal tunnel. He noted that appellant had
twice received a cervical facet ablation, and that the procedure had twice been approved.
2

Dr. Morgan opined that this procedure was related to appellant’s January 17, 2009 employmentrelated motor vehicle accident.
On August 16, 2018 Dr. Jain again requested authorization for cervical/thoracic facet RFA.
By decision dated August 28, 2018, OWCP denied authorization of the requested
procedure finding that the evidence of record did not support that it was medically necessary to
address the effects of appellant’s accepted employment-related conditions.
On September 6, 2018 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative. She resubmitted reports from Dr. Jain, Dr. Thometz, and
Dr. Morgan. In addition, appellant submitted continuous reports dated November 26, 2018 and
January 9, February 7, and March 6, 2019 from Dr. Thometz.
On February 8, 2019 a telephonic hearing before an OWCP hearing representative was
held. Appellant explained that she had received the requested procedure on two prior occasions.
She explained that each procedure had reduced her pain for approximately two years and had
allowed her to be more productive at work.
By decision dated March 14, 2019, OWCP’s hearing representative affirmed OWCP’s
August 28, 2018 decision finding that it did not abuse its discretion in denying authorization for
the requested cervical/thoracic facet RFA as there was no medical explanation as to why the
requested procedure was medically necessary for treatment of conditions causally related to the
accepted January 17, 2009 employment injury.
LEGAL PRECEDENT
Section 8103 of FECA 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
the degree or the period of disability, or aid in lessening the amount of the monthly compensation.4
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.5
In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under section 8103, with the only limitation on OWCP’s
authority being that of reasonableness.6
To be entitled to reimbursement of medical expenses, a claimant has the burden of proof
to establish that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include

4

5 U.S.C. § 8103; see A.G., Docket No. 19-0113 (issued July 12, 2019); L.D., 59 ECAB 648 (2008).

5

B.J., Docket No. 18-1186 (issued July 9, 2019); Kennett O. Collins, Jr., 55 ECAB 648 (2004).

6

L.S., Docket No. 19-0388 (issued July 8, 2019); see D.K., 59 ECAB 141 (2007).

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supporting rationalized medical evidence.7 In order for a medical procedure to be authorized, a
claimant must submit evidence to show that the requested procedure is for a condition causally
related to an employment injury and that it is medically warranted. Both of these criteria must be
met in order for OWCP to authorize payment.8
ANALYSIS
The Board finds that OWCP did not abuse its discretion by denying authorization for
appellant’s cervical/thoracic spine facet RFA.
Appellant’s attending physicians, Drs. Jain and Morgan, indicated that the requested
procedure was needed based on the symptoms she was experiencing. In their reports they both
noted that she continued to experience neck pain as well as numbness and tingling in her upper
extremities, and that the cervical/thoracic spine facet RFA procedure would help remedy her
symptoms. However, the doctors did not provide a rationalized explanation, based upon medical
findings, that the proposed procedure was in fact medically necessary for her accepted conditions.9
Both physicians diagnosed cervical facet syndrome, cervicalgia, myofascial pain syndrome,
headaches, occipital neuritis, and bilateral carpal tunnel. However they did not explain why the
requested procedure was medically necessary to treat the accepted employment conditions of neck
sprain, cervical strain, and right rotator cuff tear. As noted above, to be entitled to reimbursement
of medical expenses, a claimant has the burden of establishing that the expenditures were incurred
for treatment of the effects of an employment-related injury or condition.10 The Board finds that
Drs. Jain’s and Morgan’s reports do not include a rationalized medical opinion which explains the
medical necessity for the cervical/thoracic spine facet RFA procedure in order to treat appellant’s
accepted conditions.11
OWCP also received a series of reports from Dr. Thometz, who noted appellant’s
continuing right shoulder complaints, but offered no opinion regarding the necessity of the
requested procedure. These reports therefore lack probative value regarding the issue of whether
the requested procedures were medically necessary due to the accepted employment injury.12
Appellant also submitted records from a nurse practitioner. However; the Board has held
that treatment notes signed by a nurse practitioner are not considered medical evidence as a nurse

7

A.G., supra note 4; M.B., 58 ECAB 588 (2007).

8

B.J., supra note 5; R.C., 58 ECAB 238 (2006).

9

A.G., supra note 4; R.C., Docket No. 12-0437 (issued October 23, 2012).

10

See L.S., Docket No. 19-0388 (issued July 8, 2019).

11

N.G., Docket No. 18-1340 (issued March 6, 2019); V.S., Docket No. 17-0874 (issued December 6, 2017).

12

See G.V., Docket No. 18-0482 (issued May 21, 2019).

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practitioner is not a physician under FECA.13 The nurse practitioner’s opinion therefore is of no
probative value in establishing medical necessity of a requested procedure.14
As appellant has not submitted any rationalized medical opinion evidence explaining the
necessity of the cervical/thoracic facet RFA and its relationship to the accepted employment
conditions OWCP did not abuse its discretion in denying authorization.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying authorization for
appellant’s cervical/thoracic spine facet RFA.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 22, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
13

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).
14

See G.S., Docket No. 18-0911 (issued October 28, 2019).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
DEPARTMENT OF THE ARMY,
FORT BLISS TX, Employer
__________________________________________

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

Docket No. 17-0731
Issued: June 7, 2017

Case Submitted on the Record

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

JURISDICTION
On February 14, 2017 appellant filed a timely appeal from a December 20, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish more than 12 percent
permanent impairment of the left lower extremity and one percent impairment of the right lower
extremity for which he received a schedule award.
On appeal appellant contends that he is entitled to an additional 10 percent left lower
extremity permanent impairment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 27, 2012 appellant, then a 47-year-old supervisory firefighter, filed a traumatic
injury claim (Form CA-1) alleging that he injured his left knee when he was tripped during
physical training. OWCP accepted left knee sprains of the lateral collateral, medial collateral,
and cruciate ligaments, unspecified internal derangement of the left knee, and osteochondritis
dissecans, left. Appellant received wage-loss compensation and was placed on the periodic rolls.
He had left knee arthroscopic reconstruction on October 23, 2012.
Appellant returned to modified part-time work on January 23, 2013. On April 9, 2013
OWCP additionally accepted traumatic arthropathy of the left lower leg. Appellant began fulltime modified duty on July 29, 2013. While participating in work hardening, he injured his back
and groin. OWCP additionally accepted pain in pelvic region and thigh, sprain of pelvis, lumbar
sprain, thoracic or lumbosacral neuritis or radiculitis, sciatica, and unspecified sprain of hip and
thigh.
On July 29, 2014 appellant filed a claim for a schedule award (Form CA-7). He
submitted a June 6, 2014 report in which Dr. Andrew Palafox, a Board-certified orthopedic
surgeon, provided examination findings and advised that, in accordance with Table 16-3, Knee
Regional Grid, of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),2 appellant had a class 1
impairment. After applying modifiers for functional history and physical examination, he
concluded that appellant had 12 percent left lower extremity due to his knee injury. Dr. Palafox
also found that, in accordance with Table 16-4, Hip Regional Grid, appellant had an additional
1 percent impairment, for a total 13 percent permanent impairment, due to soft tissue injury to
his right hip. He concluded that maximum medical improvement (MMI) had been reached on
June 6, 2014. Dr. Ronald Blum, an OWCP medical adviser and Board-certified orthopedist,
agreed with Dr. Palafox’s analysis that appellant had 1 percent right lower extremity permanent
impairment, and 12 percent left lower extremity permanent impairment.
In a February 5, 2015 decision, appellant was granted a schedule award for 1 percent
right lower extremity permanent impairment and 12 percent left lower extremity permanent
impairment.3
On January 19, 2016 appellant underwent an authorized lumbar discectomy at L3-4. He
stopped work, received wage-loss compensation, and returned to full duty May 27, 2016.
On October 18, 2016 appellant filed an additional schedule award claim (Form CA-7). In
an August 30, 2016 report, Dr. Michael Boone, a Board-certified physiatrist, noted the history of
injury and described appellant’s medical and surgical care and his complaints of left knee and
right leg discomfort. He advised that, in accordance with the sixth edition of the A.M.A.,
2

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

3

Appellant began part-time work on June 4, 2015. He returned to full duty on July 10, 2015. By decision dated
October 6, 2015, OWCP found appellant at fault for the creation of an overpayment of compensation of $2,580.86
that occurred because he continued to receive FECA compensation after he returned to full-time work.

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Guides, appellant had a class 1 left lower extremity impairment for cruciate ligament injury,
which had a default value of 10 percent.4 He found modifiers of 1 for functional history,
physical examination, and clinical studies. After applying the net adjustment formula, Dr. Boone
concluded that appellant had a total of 10 percent left lower extremity permanent impairment.
He also noted that the lumbar spine was not ratable under FECA and found that August 30, 2016
was the date of MMI.
In a report dated October 27, 2016, Dr. Arthur S. Harris, an OWCP medical adviser and
Board-certified orthopedic surgeon, noted his review of the record including Dr. Boone’s report.
He advised that appellant had no additional right leg permanent impairment. Dr. Harris agreed
with Dr. Boone’s assessment that appellant had a total of 10 percent permanent impairment of
the left leg. He noted that, as appellant had previously received a schedule award for 12 percent
left lower extremity impairment, he was not entitled to an additional schedule award.
By decision dated December 20, 2016, OWCP found that appellant was not entitled to an
additional schedule award because the medical evidence of record did not establish additional
impairment.
LEGAL PRECEDENT
It is the claimant’s burden of proof to establish that he sustained a permanent impairment
of a scheduled member or function as a result of any employment injury.5
The schedule award provision of FECA6 and its implementing federal regulations,7 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.8 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
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

4

Although Dr. Boone did not specifically identify Table 16-3, Knee Regional Grid, it is clear from his analysis
that he used this table.
5

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

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

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

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and Health (ICF).10 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition is Class of Diagnosis (CDX), which
is then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination
(GMPE) and Clinical Studies (GMCS).11 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).12 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.13 Section 16.2a of the A.M.A., Guides, provides that if the
class selected is defined by physical examination findings or clinical studies results, these same
findings may not be used as grade modifiers to adjust the rating.14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.15 In determining entitlement to a
schedule award, preexisting impairment to the scheduled member is to be included.16
ANALYSIS
The Board finds that appellant has failed to establish more than 12 percent permanent
impairment of the left lower extremity and 1 percent permanent impairment of the right lower
extremity. The sixth edition of the A.M.A., Guides classifies the lower extremity impairment by
diagnosis, which is then adjusted by grade modifiers.17 Section 16.2a includes instructions for
performing an impairment analysis using the regional grids. This includes identifying a
diagnosis and applying the grade modifiers.18
By decision dated February 5, 2015, OWCP awarded 1 percent permanent impairment of
the right lower extremity and 12 percent permanent impairment of the left lower extremity.
On October 18, 2016 appellant filed an additional schedule award claim. Dr. Boone, in
his August 30, 2016 report, noted the history of injury and described appellant’s medical and
surgical care and his complaints of left knee and right leg pain. He advised that, in accordance
10

A.M.A., Guides, supra note 2 at 4, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
11

Id. at 494-531.

12

Id. at 521.

13

Id. at 23-28.

14

Id. at 500.

15

See supra note 9 at Chapter 2.808.6f (February 2013).

16

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

17

A.M.A., Guides, supra note 2 at 497-500.

18

Id. at 499-500.

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with the sixth edition of the A.M.A., Guides, appellant had a class 1 left lower extremity
impairment for cruciate ligament injury which had a default value of 10 percent. Dr. Boone
found grade modifiers of 1 each for functional history, physical examination, and clinical studies.
After applying the net adjustment formula, he concluded that had a total left lower extremity
permanent impairment of 10 percent with August 30, 2016 the date of MMI. Dr. Boone found
no additional right lower extremity permanent impairment.
In a report dated October 27, 2016, Dr. Harris, an OWCP medical adviser and Boardcertified orthopedic surgeon, noted his review of the record including Dr. Boone’s report. He
advised that appellant had no additional right leg impairment. The medical adviser agreed with
Dr. Boone’s assessment that appellant had 10 percent impairment of the left leg.
The degree of functional impairment to a scheduled member is essentially a medical
question that can only be established by probative medical opinion.19 Dr. Boone applied the
appropriate sections of the A.M.A., Guides to the clinical findings of record20 and concluded that
appellant had a total 10 percent left lower extremity permanent impairment. His opinion was
supported by Dr. Harris, OWCP’s medical adviser.
The Board finds that OWCP properly evaluated the permanent impairment consistent
with the A.M.A., Guides. As appellant had previously received a schedule award for 12 percent
left lower extremity impairment due to his knee condition, he was not entitled to an additional
schedule award, based on Dr. Boone’s finding of 10 percent left lower extremity impairment due
to his knee condition, which is less than the 12 percent previously awarded. Therefore, the
December 20, 2016 decision denying an additional schedule award was proper under the law and
facts of this case.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish more than 12
percent permanent impairment of the left lower extremity and 1 percent permanent impairment
of the right lower extremity.

19

L.G., Docket No. 09-1517 (issued March 3, 2010).

20

See W.M., Docket No. 11-1706 (issued March 20, 2012).

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ORDER
IT IS HEREBY ORDERED THAT the December 20, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 7, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
UVALDE STATION, Uvalder, TX, Employer
__________________________________________

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

Docket No. 13-154
Issued: April 17, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 31, 2012 appellant filed a timely appeal of the October 15, 2012 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 schedule award case.
ISSUES
The issues are: (1) whether appellant established an employment-related binaural (both
ears) hearing loss entitling him to a schedule award; and (2) whether he was entitled to hearing
aids.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 19, 2012 appellant, then a 54-year-old border patrol agent, filed an
occupational disease claim alleging that on March 12, 2012 he first became aware of his hearing
loss and realized that his condition was caused by over 26 years of noise exposure related to
checkpoint operations, train checks, firearms qualifications, training and firearms instructor
duties. He stated that Dr. William C. Smith, a Board-certified otolaryngologist, was his
attending physician. In a March 20, 2012 narrative statement, appellant provided an employment
history, including positions in which he was exposed to noise at the employing establishment.
He stated that on March 15, 2012 his physician advised him that his hearing loss was almost
certainly caused by his exposure to firearms.
In a March 15, 2012 report, Dr. Smith reviewed an accompanying audiogram performed
on that date and advised that appellant had cerumen impaction in the external ear and tinnitus in
the inner ear.
By letter dated April 17, 2012, OWCP requested that the employing establishment
respond to appellant’s allegations and provide a copy of all medical examinations pertaining to
his hearing or ear problems, including any preemployment examinations and audiograms.
In an April 22, 2012 letter, the employing establishment stated that, during the course of
appellant’s employment and within the scope of his job, he was exposed to loud noises during a
10-hour workday, five days a week. Appellant was also exposed to high noise levels while
performing train and traffic check operations, checkpoint operations and quarterly firearms
qualifications. He was further exposed to high noise levels as a member of the Marfa Sector
Special Response Team. The employing establishment concurred with the information appellant
provided on March 20, 2012.
By letter dated September 6, 2012, OWCP referred appellant, together with a statement
of accepted facts, to Dr. Smith for an otologic examination and audiological evaluation to
determine whether appellant sustained hearing loss causally related to his federal employment
and, if so, whether the loss was ratable under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment2 (A.M.A., Guides). In a
September 20, 2012 report, Dr. Smith set forth findings on examination and diagnosed bilateral
mild high frequency sensorineural hearing loss, which he attributed to noise exposure in
appellant’s federal employment. He explained that the diagnosed condition was worse in the left
ear than right as appellant fired weapons with his right hand. An audiometric test was conducted
on the same day as Dr. Smith’s examination. Testing at the frequency levels of 500, 1,000,
2,000 and 3,000 hertz (Hz) revealed decibel losses of the right ear as 10, 10, 10 and 10,
respectively. Dr. Smith averaged the losses to determine that appellant had an average hearing
loss of 10 decibels. He then subtracted the fence of 25 decibels and multiplied the balance by
1.5, resulting in a zero percent right ear monaural hearing loss. Testing at the same frequency
levels noted above revealed decibel losses of 10, 15, 15 and 20, respectively, regarding the left
ear. Dr. Smith averaged the losses to obtain an average loss of 15 decibels. After subtracting a
2

A.M.A., Guides (6th ed. 2008).

2

fence of 25 decibels, he multiplied the remaining balance by 1.5 to calculate a zero percent left
ear monaural hearing loss. Dr. Smith concluded that appellant had no ratable hearing
impairment or need for hearing aids. He advised that the date of maximum medical
improvement was September 20, 2012.
On December 9, 2012 an OWCP medical adviser reviewed Dr. Smith’s report and the
September 20, 2012 audiometric test results. He agreed that appellant’s bilateral sensorineural
hearing loss was due to occupational noise exposure. The medical adviser applied the
audiometric data to OWCP’s standard for evaluating hearing loss under the sixth edition of the
(A.M.A., Guides) and following the same analysis determined that appellant had zero percent
binaural hearing loss. He advised that the date of maximum medical improvement was
September 20, 2012, the date of Dr. Smith’s examination. The medical adviser recommended
that hearing aids not be authorized.
In an October 15, 2012 decision, OWCP accepted appellant’s claim for bilateral hearing
loss, but determined that his hearing loss was not severe enough to be considered ratable under
the sixth edition of the A.M.A., Guides. It did not authorize hearing aids or additional medical
benefits.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 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 under the law, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The implementing regulations have adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.4 Effective May 1, 2009, schedule awards are determined
in accordance with the sixth edition of the A.M.A., Guides.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides points out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions.6 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.404.

5

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

See A.M.A., Guides 250.

3

calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.7
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.8 The A.M.A., Guides state that, if tinnitus
interferes with activities of daily living (ADLs), including sleep, reading (and other tasks
requiring concentration), enjoyment of quiet recreation and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained binaural sensorineural hearing loss due to workrelated noise exposure. It developed this claim by referring appellant to Dr. Smith who
examined appellant and obtained an audiogram on September 20, 2012. The Board notes,
however, that, prior to the referral, he served as appellant’s treating physician. Thus, the Board
finds that Dr. Smith was a treating physician and not an OWCP referral physician. On
September 20, 2012 Dr. Smith found that appellant had bilateral mild high frequency
sensorineural hearing loss due to his employment-related noise exposure as a border patrol agent.
The audiogram performed on that date revealed decibel losses of 10, 10, 10 and 10 at 500, 1,000,
2,000 and 3,000 Hz, respectively, for the right ear, which were averaged to total 10. The average
of 10 decibels, reduced by 25 decibels (the first 25 decibels were discounted as discussed above),
equals zero decibels. Testing of the left ear revealed decibel losses of 10, 15, 15 and 20, at 500,
1,000, 2,000 and 3,000 Hz, respectively, which were averaged to total 15. The average of 15
decibels, reduced by 25 decibels, equals 0 decibels. Based on this test, Dr. Smith determined
that appellant did not sustain a ratable binaural hearing loss.10 The Board finds that he properly
applied the A.M.A., Guides to the September 20, 2012 audiogram to determine that appellant did
not sustain a ratable hearing loss for schedule award purposes.11
On December 9, 2012 an OWCP medical adviser reviewed the otologic and audiologic
testing performed on appellant on September 20, 2012 and properly applied the applicable
standards of the A.M.A., Guides, to determine that he did not have a work-related ratable
binaural hearing loss. Consequently, the Board finds that the weight of the medical evidence
establishes that appellant has no ratable loss of hearing pursuant to the A.M.A., Guides.

7

J.H., Docket No. 08-2432 (issued June 15, 2009); E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger,
52 ECAB 462 (2001).
8

See A.M.A., Guides 249.

9

Id. R.H., Docket No. 10-2139 (issued July 13, 2011); see also Robert E. Cullison, 55 ECAB 570 (2004).

10

A.M.A., Guides 249-51.

11

See S.G., 58 ECAB 383 (2007).

4

Dr. Smith’s March 15, 2012 report found that appellant had tinnitus. FECA does not list
tinnitus in the schedule of eligible members, organs or functions of the body. Therefore, no
claimant may directly receive a schedule award for tinnitus. Hearing loss is a covered function
of the body, so if tinnitus contributes to a ratable loss of hearing, a claimant’s schedule award
will reflect that contribution. The A.M.A., Guides provide that, if tinnitus interferes with ADLs,
up to five percent may be added to a measurable binaural hearing impairment.12 The Board has
repeatedly held, however, that there is no basis for paying a schedule award for a condition such
as tinnitus unless the evidence establishes that the condition caused or contributed to a ratable
hearing loss.13 Although appellant submitted medical evidence that provided a firm diagnosis of
tinnitus, as his hearing loss is not ratable, the Board will affirm OWCP’s October 15, 2012
decision finding that he was not entitled to a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of FECA 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
the degree of the period of disability or aid in lessening the amount of monthly compensation.14
OWCP must therefore exercise discretion in determining whether the particular service,
appliance or supply is likely to affect the purposes specified in FECA.15 Following medical
evaluation of a claim, if the hearing loss is determined to be nonratable for schedule award
purposes, other benefits such as hearing aids may still be payable if any employment-related
hearing loss exists.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied authorization for hearing aids. As noted,
hearing aids and other medical benefits may still be payable if an employment-related hearing
loss exists. While OWCP is obligated to pay for medical treatment of a work-related injury, the
employee has the burden of establishing that the expenditure is incurred for treatment of the
effects of such injury. Proof of causal relationship must include supporting rationalized medical
evidence.17 In the present case, OWCP properly found that appellant had not met this burden.
12

See supra note 8.

13

See Richard Larry Enders, 48 ECAB 184 (1996).

14

5 U.S.C. § 8103; Thomas W. Stevens, 50 ECAB 288 (1999).

15

Id. at § 8103.

16

See F.D., Docket No. 10-1175 (issued January 4, 2011); supra note 5, Medical Services and Supplies, Chapter
3.400.3(d)(2) (October 1990).
17

See Charlie A. Penney, Docket No. 04-1432 (issued October 5, 2004).

5

Appellant did not submit any rationalized medical evidence to establish entitlement to hearing
amplification. On the other hand, both Dr. Smith and OWCP’s medical adviser specifically
opined in their September 20 and December 9, 2012 reports, respectively, that amplification was
unwarranted. Thus, OWCP did not abuse its discretion in authorization for denying hearing aids.
CONCLUSION
The Board finds that appellant has failed to establish that he has an employment-related
ratable binaural (both ears) hearing loss entitling him to a schedule award. The Board further
finds that OWCP properly denied hearing aids.
ORDER
IT IS HEREBY ORDERED THAT the October 15, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 17, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, MURRAY HILL POST )
OFFICE, New York, NY, Employer
)
__________________________________________ )
R.R., Appellant

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

Docket No. 14-1685
Issued: December 1, 2014

Case Submitted on the Record

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

JURISDICTION
On July 30, 2014 appellant filed a timely appeal from the July 17, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which denied his 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 to review the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
June 9, 2014, as alleged.
FACTUAL HISTORY
On June 9, 2014 appellant, then a 44-year-old letter carrier, filed a traumatic injury claim
alleging that he was crossing an intersection that day when an emotionally disturbed man struck
him across the chest. He called the police and then called his supervisor, who arrived a few
1

5 U.S.C. § 8101 et seq.

minutes later. An ambulance was called for appellant, who had become anxious. Appellant’s
heart was racing and he had a severe headache. He was taken to a local emergency room
together with his supervisor.
OWCP notified appellant on June 13, 2014 that he should submit a report from a medical
doctor describing the work injury, providing a medical diagnosis, and explaining how the
medical condition was caused by work events. It received a patient call report dated
June 9, 2014 from the NYC system 911 provider.
In a decision dated July 17, 2014, OWCP denied appellant’s injury claim. It found that
the incident occurred as alleged, but he did not submit any medical evidence to establish a
diagnosed medical condition was causally related to the work incident. OWCP noted that it had
received an ambulance transport report, but it did not contain a diagnosis arising from the
June 9, 2014 incident.
On appeal, appellant requests coverage of his ambulance transportation to the emergency
room, as well as the medical examination and tests completed during his emergency room visit.2
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his or her duty.3 An employee seeking benefits
under FECA has the burden of proof to establish the essential elements of his or her claim.
When an employee claims that he or she sustained an injury in the performance of duty, he or
she must submit sufficient evidence to establish that he or she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He or she must also
establish that such event, incident or exposure caused an injury.4
Causal relationship is a medical issue,5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,6 must be
one of reasonable medical certainty7 and must be supported by medical rationale explaining the

2

On appeal, appellant submitted discharge documents from the New York University Langone Medical Center.
The Board’s review of a case is limited, however, to the evidence that was before OWCP at the time of its final
decision. Evidence not before OWCP at the time it issued its decision will not be considered by the Board for the first
time on appeal. 20 C.F.R. § 501.2(c)(1).
3

5 U.S.C. § 8102(a).

4

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

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

2

nature of the relationship between the diagnosed condition and the established incident or factor
of employment.8
ANALYSIS
OWCP accepted that the June 9, 2014 work incident occurred as alleged. The Board
finds that appellant has established a specific incident on June 9, 2014 when struck on the chest
while on his route. The question is whether this incident caused an injury.
Appellant failed to submit a narrative report from any physician explaining how the
accepted work incident caused a diagnosed medical condition. Without this rationalized medical
evidence, the record does not establish a valid case for compensation. Accordingly, the Board
finds that appellant did not meet his burden to establish that he sustained an injury in the
performance of duty on June 9, 2014. The Board will affirm OWCP’s July 17, 2014 decision.
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, appellant wants his initial medical expenses covered. He was transported by
ambulance to an emergency room shortly after the incident. Ordinarily, the employing
establishment will authorize treatment of a job-related injury by providing the employee a
properly executed Form CA-16 within four hours.9 However, a Form CA-16 authorization of
medical care was not issued in this case. Under 5 U.S.C. § 8103, however, OWCP has broad
discretion to approve unauthorized medical care which it finds necessary and reasonable in cases
of emergency or other unusual circumstances. Upon return of the case record, it shall determine
whether appellant’s ambulance transportation and initial medical care in the hospital emergency
room should be authorized pursuant to 20 C.F.R. § 10.304, which provides that in cases
involving emergencies or unusual circumstances, OWCP may authorize treatment in a manner
other than as stated in this subpart.10
CONCLUSION
The Board finds that appellant has not met his burden to establish that he sustained an
injury in the performance of duty on June 9, 2014. The record lacks a well-reasoned medical
opinion on the element of causal relationship.

8

See William E. Enright, 31 ECAB 426, 430 (1980).

9

20 C.F.R. § 10.300; Val D. Wynn, 40 ECAB 666 (1989).

10

See id. at § 10.304. See also J.D., Docket No. 14-936 (issued August 8, 2014); L.B., Docket No. 10-469
(issued June 2, 2010).

3

ORDER
IT IS HEREBY ORDERED THAT the July 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


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

)
)
)
)
)
)
)
)

Appearances:
Michael E. Woods, for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1709
Issued: August 16, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 13, 2015 appellant, through her representative, filed a timely appeal from an
April 29, 2015 nonmerit decision and a May 12, 2015 merit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant’s December 16,
2014 reconsideration request was untimely filed and failed to establish clear evidence of error;
and (2) whether it properly reduced appellant’s compensation effective August 24, 2014 based
on her capacity to earn wages in the constructed position of appointment clerk.
FACTUAL HISTORY
This case has previously been before the Board regarding the issue of appellant’s failure
to participate in vocational rehabilitation.3 The facts and circumstances outlined in the Board’s
prior decision are incorporated by reference. The facts relevant to the present appeal are set forth
below.
On April 23, 2004 appellant, then a 51-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging osteoarthritis due to repetitive motion. OWCP assigned the
claim file number xxxxxx260 and accepted osteoarthritis of the left thumb and hand. It
subsequently accepted an open wound of the left wrist with tendon involvement and mechanical
complications from the implant of an internal orthopedic device and graft.4 In March 2005,
appellant returned to modified-duty work under physical limitations performing light office
duties. By decision dated December 21, 2005, OWCP reduced her monetary benefits to zero as
her actual earnings fairly and reasonably represented her wage-earning capacity.
In June 2005, appellant filed a subsequent occupational disease claim (Form CA-2)
alleging that the repetitive motion of her job and left wrist and hand injury caused overuse of her
right shoulder. OWCP assigned the claim file number xxxxxx470 and accepted right rotator cuff
syndrome.
As of November 24, 2010, the employing establishment could no longer accommodate
appellant’s work restrictions under OWCP file number xxxxxx470 under the National
Reassessment Process (NRP). Accordingly, OWCP placed her on the periodic compensation
rolls, effective January 5, 2011. In May 2011, it combined appellant’s two occupational disease
claims, with file number xxxxxx260 designated as the master file.
On January 3, 2012 OWCP referred appellant to the nurse intervention program, and on
March 27, 2012 it referred her to vocational rehabilitation.
By decision dated April 11, 2013, OWCP suspended appellant’s compensation under
section 8113(b) of FECA and 20 C.F.R. § 10.519 because she failed to participate as required
with vocational rehabilitation efforts. Although appellant contended that she could not
participate with vocational rehabilitation due to fatigue, bilateral knee problems, kidney disease
and seizure disorder, the medical evidence of record did not establish that her total disability was

3

Docket No. 14-0372 (issued November 12, 2014).

4

On July 18, 2007 OWCP granted appellant a schedule award for 14 percent permanent impairment of her left
arm.

2

due to her accepted conditions. Her compensation was reduced to zero as of May 5, 2013, but
was reinstated on June 3, 2013 after she returned to vocational rehabilitation.
By decision dated September 11, 2013, an OWCP hearing representative affirmed the
April 11, 2013 decision suspending appellant’s compensation from May 5 to June 3, 2013.
Appellant appealed the September 11, 2013 decision to the Board.
After a period of educational training, the positions of appointment clerk, information
clerk, and telephone solicitor were identified by the vocational rehabilitation counselor. In a
letter dated January 7, 2014, OWCP advised appellant that these positions were suitable to her
medical and work restrictions. Appellant was advised that she would receive 90 days of
placement assistance to help locate suitable work in one of those positions provided she
cooperated with such effort. She was also advised that her wage-loss compensation benefits
would be reduced based upon the salary of one of those positions at the end of the 90-day
placement assistance period.
Following the 90-day placement assistance period, vocational rehabilitation services were
closed on April 9, 2014, as appellant failed to obtain employment. Despite appellant’s inability
to secure employment, the vocational rehabilitation specialist found her vocationally capable of
performing all targeted positons. He advised that, based on the November 20, 2012 opinion of
referee physician Dr. Bernie L. McCaskill, a Board-certified orthopedic surgeon, all targeted
positions remained vocationally and medically appropriate as they were within appellant’s
medical restrictions and existed in sufficient numbers within the reasonable commuting area.
The vocational rehabilitation specialist indicated that the Occupational Information Network
(O*NET) and the Occupational Employment Statistics from the U.S. Department of Labor,
Bureau of Labor Statistics confirmed availability of such positions in appellant’s geographical
area and provided numerous job leads and job fair information for appropriate positions.
On July 17, 2014 OWCP proposed reducing appellant’s compensation to reflect her
ability to earn wages as an appointment clerk at the pay rate of $328.00 per week. It indicated
that the evidence of record revealed that she was vocationally and physically capable of working
as an appointment clerk, that the position was reasonably available in her commuting area and
that it represented her wage-earning capacity. Appellant was advised that, if she disagreed with
this proposal, she had 30 days to respond.
Evidence submitted in response to the proposal to reduce her compensation included a
June 24, 2014 report of Dr. Jeff Fritz, an anesthesiologist, which contained an assessment of
chronic left shoulder injury with decreasing range of motion. The report noted that appellant did
not have transportation and driving was a problem for her.
In an August 15, 2014 telephone call, appellant stated that: she had been applying for
jobs but no one had returned her calls for employment, that she wanted another referee
examination performed as Dr. McCaskill was biased, and that her left thumb was functionally
limited.
In an August 13, 2014 statement, appellant’s representative contended that OWCP
utilized improper selection procedures to select Dr. McCaskill as the referee physician. He noted
that the case records contained an October 10, 2012 screen-shot bypass note indicating that
3

Dr. Benzel McMasters was bypassed because his appointment scheduler was unable to schedule
an appointment within a reasonable time and was given the bypass code 0. The representative
argued that OWCP selected Dr. McCaskill without waiting the mandatory two hours before
moving on to the next physician on the list. He further noted that Dr. McCaskill and
Dr. McMasters share the same office and staff. The representative additionally contended that
Dr. McCaskill’s report was vague and speculative and did not provide medical reasoning when
he found that the etiology of appellant’s condition was unknown. He further argued that the
medical record indicated that appellant had epilepsy as well as kidney disease and dysfunction
and she was unable to comply with the requirements of vocational rehabilitation. The
representative argued that OWCP should take into account both preexisting and subsequently
acquired conditions.
By decision dated August 18, 2014, OWCP reduced appellant’s compensation effective
August 24, 2014 based on her ability to earn wages as an appointment clerk. It found that the
evidence and arguments submitted did not alter its determination to reduce appellant’s
compensation. OWCP found appellant’s representative’s request for a new impartial medical
examiner was not supported by the evidence of file. It indicated that the position was sedentary
and that the physical requirements did not exceed the work restrictions as provided by
Dr. McCaskill in his referee report of November 20, 2012. OWCP noted that the position was
reasonably available in appellant’s commuting area and that the entry pay level for the position
was $328.00 per week. Using the Shadrick formula,5 it calculated the percentage of her loss of
wage-earning capacity (LWEC) based on this position.6
On September 11, 2014 appellant, through her representative, requested an oral hearing
before an OWCP hearing representative with regard to the August 18, 2014 LWEC
determination. In a September 11, 2014 letter, appellant’s representative set forth duplicative
arguments previously of record pertaining to Dr. McCaskill’s selection as the impartial medical
specialist and requested a new referee examination.
By decision dated November 12, 2014, the Board affirmed the September 11, 2013
decision, but found that there had been no conflict in medical opinion between appellant’s
treating physician, Dr. Mike Shah, a specialist in pain management, and OWCP’s second opinion
physician, Dr. Charles Mitchell, a Board-certified orthopedic surgeon, as to appellant’s capacity
for work due to the accepted work-related conditions. Therefore, the opinion of Dr. McCaskill,
the Board-certified orthopedic surgeon selected as the impartial medical specialist, was reduced
to that of a second opinion referral physician. The Board noted neither Dr. Shah, Dr. Mitchell,
nor Dr. McCaskill found appellant totally disabled from work due to residuals of her accepted
conditions and that the medical evidence of record did not support that appellant’s nonworkrelated medical conditions preexisted her injuries of 2004 or 2005. The Board therefore affirmed
OWCP’s September 11, 2013 decision which found that appellant had failed to cooperate in the
early stages of vocational rehabilitation efforts and thus properly reduced her compensation to
zero for the period May 5 to June 3, 2013.

5

Albert C. Shadrick, 5 ECAB 376 (1953).

6

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992).

4

On December 16, 2014 appellant requested reconsideration of the September 11, 2013
suspension decision for her failure to participate in the early stages of vocational rehabilitation
efforts. Her representative noted that the Board had affirmed the finding that appellant had failed
to cooperate with the early stages of vocational rehabilitation and had reduced referee physician
Dr. McCaskill’s opinion to that of a second opinion physician. He contended that there
continued to be a conflict of medical opinion as to appellant’s ability to participate in vocational
rehabilitation and OWCP failed to meet its burden of proving that appellant was able to
participate in vocational rehabilitation. A copy of a November 27, 2012 medical report of
Dr. Shah previously of record7 and new medical reports of Dr. Fritz dated November 3 and
December 8, 2014 were submitted to demonstrate the continued conflict in medical opinion.
In his November 3, 2014 report, Dr. Fritz indicated that appellant had a right shoulder
injury with an accepted condition of right rotator cuff syndrome. He reviewed the magnetic
resonance imaging (MRI) scan studies of the right shoulder from May 23, 2005, November 24,
2008, and April 9, 2013 and indicated that the MRI scan dating back to 2005 demonstrated that
appellant’s work injury had not ceased and she still had significant pathology. On examination
appellant had significantly decreased strength and decreased range of motion. Dr. Fritz advised
that her prognosis was poor and she was not a surgical candidate due to other medical problems.
In his December 8, 2014 report, he disagreed with Dr. McCaskill’s November 20, 2012 findings
that there was no hand atrophy and that appellant had full range of motion of the
metacarpophalangeal joint and radial abduction of 60 degrees. Dr. Fritz cited to the evidence of
record as well as his own examination findings. He also disagreed with Dr. McCaskill’s findings
with regard to her shoulder injury.
On March 12, 2015 a hearing was held with regard to the August 18, 2014 OWCP
decision that the selected position of appointment clerk fairly and reasonably represented
appellant’s wage-earning capacity. At the hearing, appellant’s representative noted that
Dr. McCaskill’s report had never been submitted to Dr. Shah for his concurrence; therefore,
OWPC erred. He indicated that appellant’s treatment was transferred from Dr. Shah to Dr. Fritz
and resubmitted Dr. Fritz’s rebuttal report of December 8, 2014. At the hearing, the hearing
representative advised appellant, through her representative, that, in order to create a conflict of
opinion, the actual work restriction issue had to be addressed, and that Dr. Fritz had not
discussed appellant’s work restrictions or whether she could perform the duties of the
appointment clerk job. Appellant’s representative noted that the job offer came in after
Dr. McCaskill’s report. He also contended that appellant’s personal injury worsened so that she
was totally disabled.
Following the hearing, the record was held open for 30 days. Evidence from Dr. Fritz
included a prescription note dated March 24, 2015 and a progress report of the same date, which
indicated that appellant had chronic work-related left hand injury that was prone to flare ups.
Requests for medical authorization were also received.
By decision dated April 29, 2015, OWCP denied appellant’s December 16, 2014 request
for reconsideration of the April 11, 2013 decision affirming the suspension of compensation for
7

The record reflects that Dr. Shah’s November 27, 2012 report was previously considered on September 19,
2013, December 16, 2014, and January 28, 2015.

5

May 5 to June 3, 2013. OWCP found that the request for reconsideration was untimely filed and
failed to establish clear evidence of error.
By decision dated May 12, 2015, OWCP’s hearing representative affirmed OWCP’s
August 18, 2014 decision which reduced appellant’s compensation effective August 24, 2014
based on her ability to earn wages as an appointment clerk.
LEGAL PRECEDENT -- ISSUE 1
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is received within one year of the date of that decision.8
The one-year period begins on the date of the original decision. However, a right to
reconsideration within one year accompanies any subsequent merit decision on the issues. This
includes any hearing or review of the written record decision, any denial of modification
following reconsideration, any merit decision by the Board, and any merit decision following
action by the Board, but does not include prerecoupment hearing decisions.9
Its regulations state that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth section 10.607 of OWCP regulations, if
the claimant’s application for review shows clear evidence of error on the part of OWCP.10 In
this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on
the prior evidence of record.11
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.12

8

20 C.F.R. § 10.607(a) (2011).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (October 2011).

10

20 C.F.R. § 10.607(b) (2011); Cresenciano Martinez, 51 ECAB 322 (2000).

11

See Alberta Dukes, 56 ECAB 247 (2005).

12

Robert G. Burns, 57 ECAB 657 (2006).

6

ANALYSIS -- ISSUE 1
In its April 29, 2015 decision, OWCP improperly determined that appellant had failed to
file a timely application for review. The Board has reviewed the record on appeal and remands
the case to OWCP for application of the correct standard of review because appellant’s request
for reconsideration was timely submitted.
An application for reconsideration must be received by OWCP within one year of the
date of a merit review of the claim, including any merit review by the Board.13 The last merit
decision of record, regarding appellant’s failure to participate in vocational rehabilitation, was
the Board’s November 12, 2014 decision, which affirmed OWCP’s September 11, 2013
decision. The Board found that OWCP properly reduced appellant’s compensation to zero from
May 5 to June 3, 2013 for failing to cooperate with the early stages of vocational rehabilitation.
Because appellant’s reconsideration request on that issue was received on December 16, 2014,
within one year of the last merit decision dated November 12, 2014, the Board concludes that the
request was timely.14
The Board notes that OWCP’s April 29, 2015 decision erroneously noted that appellant
requested reconsideration of its April 11, 2013 decision. As reflected in the procedural history,
on September 11, 2013 an OWCP hearing representative had affirmed the April 11, 2013
decision which suspended appellant’s compensation from May 5 to June 3, 2013. By merit
decision dated November 12, 2014, the Board affirmed the September 11, 2013 decision.
In its April 29, 2015 decision denying appellant’s reconsideration request, OWCP applied
the clear evidence of error legal standard. This standard is the appropriate standard only for
cases in which a reconsideration request is untimely filed.15 Since OWCP erroneously reviewed
the evidence submitted by appellant in support of her reconsideration request under the clear
evidence of error standard, the Board will remand the case to OWCP for application of the
standard for reviewing a timely request for reconsideration as set forth at 20 C.F.R.
§ 10.606(b)(3).
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.16 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally

13

20 C.F.R. § 10.607.

14

C.V., Docket No. 14-1293 (issued February 23, 2015); J.N., Docket No. 12-1543 (issued February 12, 2013).

15

See Donna M. Campbell, 55 ECAB 241 (2004).

16

H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB
197 (2005).

7

disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.17
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee, if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent the employee’s
wage-earning capacity or if the employee has no actual wages, the wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, the
employee’s usual employment, age, qualifications for other employment, the availability of
suitable employment, and other factors and circumstances which may affect his or her wageearning capacity in his or her disabled condition.18 Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment
conditions.19 The job selected for determining wage-earning capacity must be a job reasonably
available in the general labor market in the commuting area in which the employee lives.20 The
fact that an employee has been unsuccessful in obtaining work in the selected position does not
establish that the work is not reasonably available in her commuting area.21
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles
(DOT) or otherwise available in the open market, that fit the employee’s capabilities with regard
to his or her physical limitations, education, age, and prior experience. Once this selection is
made, a determination of wage rate and availability in the labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick22 and codified by regulations at 20 C.F.R. § 10.40323
should be applied. Subsection(d) of the regulations provide that the employee’s wage-earning
capacity in terms of percentage is obtained by dividing the employee’s actual earnings or the pay
rate of the position selected by OWCP, by the current pay rate for the job held at the time of the
injury.24
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,
17

20 C.F.R. §§ 10.402, 10.403.

18

5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB
584 (1996).
19

Albert L. Poe, 37 ECAB 684, 690 (1986).

20

Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See
Glen L. Sinclair, 36 ECAB 664, 669 (1985).
21

See Leo A. Chartier, 32 ECAB 652, 657 (1981).

22

Supra note 5.

23

20 C.F.R. § 10.403.

24

Id. at § 10.403(d).

8

including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from postinjury or subsequently acquired conditions.25 Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation. Additionally, the job
selected for determining wage-earning capacity must be a job reasonably available in the general
labor market in the commuting area in which the employee lives.26 OWCP is not obligated to
actually secure employment for appellant.27 Additionally, the Board has held that a wageearning capacity determination must be based on a reasonably current medical evaluation.28
ANALYSIS -- ISSUE 2
In 2004 OWCP accepted that appellant sustained osteoarthritis of the left thumb and
hand, an open wound of left wrist with tendon involvement and mechanical complications of
internal orthopedic device, implant, and graft. In 2005 under claim, file number xxxxxx470, it
accepted right rotator cuff syndrome. Appellant continued to work as a modified rural letter
carrier until November 24, 2010 when the employing establishment could no longer
accommodate her work restrictions. She was placed on the periodic rolls in receipt of
compensation for total disability as of January 5, 2014.
OWCP reduced appellant’s
compensation benefits effective August 24, 2014 based on her ability to earn wages as an
appointment clerk, a decision that was affirmed by the hearing representative on May 12, 2015.
The Board finds that OWCP improperly determined that appellant was physically capable
of performing the selected position of an appointment clerk. The Board notes that the opinion of
Dr. McCaskill is not that of an impartial medical specialist, but that of a second opinion referral
physician. In its November 12, 2014 decision, the Board had determined that there was no
conflict in medical opinion at the time appellant was referred to Dr. McCaskill, which rendered
his opinion that of a second opinion referral physician.29

25

James Henderson, Jr., 51 ECAB 268 (2000).

26

Id.

27

Phillip S. Deering, 47 ECAB 692 (1996).

28

See M.A., 59 ECAB 624 (2008). See Carl C. Green, Jr., 47 ECAB 737, 746 (1996) (six-month-old medical
reports are reasonably current for purposes of wage-earning capacity determination); Cf. Keith Hanselman, 42
ECAB 680 (1991) (two-year-old medical report and year-old work restriction evaluation forms were not reasonably
current for wage-earning capacity determination); Anthony Pestana, 39 ECAB 980 (1988) (three-year-old medical
evaluation is not reasonably current for wage-earning capacity determination).
29

See Docket No. 14-372 (issued November 12, 2014). The Board specifically found that Dr. Shah offered
insufficient medical reasoning pertaining to appellant’s residuals and work limitations to warrant application of
section 8123 of FECA.

9

The appointment clerk position was listed as sedentary and the duties do not exceed the
restrictions set forth by Dr. McCaskill. In this case, however, the medical evidence upon which
OWCP relied to determine appellant’s ability to work an appointment clerk was stale.30
Dr. McCaskill’s November 20, 2012 opinion regarding appellant’s ability to work was
based on an examination of appellant conducted nearly nine months prior to OWCP’s reduction
of compensation effective August 24, 2014. His opinion would not provide a reasonably
accurate assessment of appellant’s medical condition and ability to work around the time OWCP
adjusted her compensation. While the Board has had occasion to evaluate the probative value of
older medical reports and, because cases differ, it has never adopted a rigid standard.31
The Board further notes that Dr. McCaskill’s November 20, 2012 report, as well as older
medical reports previously of record, did not discuss appellant’s disability as of August 24, 2014
when her compensation was reduced. While Dr. McCaskill opined that appellant’s restrictions
were related to difficulties grasping with her left hand because of thumb dysfunction and pain,
none of the physicians of record, including Dr. Shah, Dr. Mitchell, Dr. McCaskill, found
appellant totally disabled for work due to residuals of her accepted conditions. The Board has
held that stale medical evidence cannot form the basis for current evaluation of residual
symptomology or disability determination.32
For this reason, the Board finds that
Dr. McCaskill’s reports are of limited probative value regarding appellant’s ability to work as an
appointment clerk in August 2014.
OWCP therefore improperly reduced appellant’s
compensation effective August 24, 2014 based on her capacity to earn wages as an appointment
clerk.33
CONCLUSION
The Board finds that since OWCP evaluated appellant’s timely reconsideration request
under the wrong standard the April 29, 2015 decision of OWCP will be set aside and the case
remanded to OWCP for proper consideration of appellant’s timely request for reconsideration.
The Board further finds that OWCP improperly reduced appellant’s compensation effective
August 24, 2014 based on her capacity to earn wages as an appointment clerk.

30

See R.B., Docket No. 14-0594 (issued September 4, 2015).

31

Id.

32

See Keith Hanselman, supra note 28; see also Ellen G. Trimmer, 32 ECAB 1878 (1981).

33

In light of the disposition of this case, appellant’s contentions on appeal will not be addressed.

10

ORDER
IT IS HEREBY ORDERED THAT the April 29, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this opinion and the May 12, 2015 OWCP decision is reversed.
Issued: August 16, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1820
Issued: February 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 19, 2014 appellant, through her attorney, filed a timely appeal of a July 21,
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.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation for
wage-loss and medical benefits effective June 30, 2013; (2) whether appellant had any
continuing employment-related residuals or disability after June 30, 2013.
On appeal, counsel argues that the decision is contrary to law and fact.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 14, 2007 appellant, then a 50-year-old tax examining technician, filed a
traumatic injury claim alleging that on that date she injured her back and spine when the arms
broke on her chair, she fell backwards out of the chair, hit her spine on the chair’s arms, and
banged her leg when her arm got stuck in the chair. OWCP accepted the claim for a lumbar
sprain/strain, back contusion, and right knee contusion.
Appellant stopped work on
December 14, 2007 and returned to light duty working four hours a day on April 28, 2008.
OWCP accepted her claim for a recurrence of disability beginning May 28, 2008 and
subsequently placed her on the periodic rolls for temporary total disability.
On December 12, 2012 OWCP referred appellant to Dr. Andrew J. Gelman, a Boardcertified orthopedic surgeon, to resolve a conflict in medical opinion between Dr. Stuart J.
Gordon, an OWCP referral physician, and Dr. William L. Chollak, an attending physician, to
clarify the cause and extent of her accepted employment injury and whether there continued to
be any residuals or disability.
In a January 23, 2013 report, Dr. Gelman, based upon a review of the medical evidence,
statement of accepted facts, medical history, and physical examination, concluded that appellant
no longer had any residuals or disability due to the accepted lumbar sprain/strain, back
contusion, and right knee contusion. A physical examination revealed a morbidly obese
individual, lower back paravertebral musculature superficial discomfort complaints, negative
sciatic tension testing, negative straight leg raise, negative Laseque’s test, no right knee
instability, crepitance with right knee passive manipulation, and right knee range of motion from
10 to 85 degrees. Dr. Gelman noted that appellant exhibited symptoms of right knee
osteoarthritis and low back pain, which were unrelated to the December 14, 2007 employment
injury. He related that from the history and her description that she sustained a minor trauma
from the December 14, 2007 employment injury, which had resolved. Dr. Gelman opined that
appellant’s current medical treatment was due to the degenerative disease process which was not
caused or aggravated by the accepted employment injury based on the medical reports and
objective evidence. In a work capacity evaluation form (Form OWCP-5c), he indicated that she
was capable of performing her date-of-injury position with no restrictions.
On April 11, 2013 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Gelman’s opinion that she no longer had any
residuals or disability due to her accepted employment injuries. Appellant was given 30 days to
respond to the proposed termination.
In a May 15, 2013 report, Dr. Chollak reiterated that his opinion that appellant continued
to be totally disabled due to her accepted December 14, 2007 employment injury. He opined that
her landing on her back and right knee after her chair broke caused a significant injury to her
right knee and back as it aggravated her underlying arthritis. Dr. Chollak related that increased
activity causes appellant increased pain. In concluding, he opined that he did not believe she was
capable of tolerating full-time work even in a sedentary job.
By decision dated June 6, 2013, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective June 30, 2013. It found that the opinion of Dr. Gelman, an

2

impartial medical examiner, that appellant no longer had any residuals or disability due to her
accepted December 14, 2007 injury, was entitled to the special weight of the evidence.
On June 20, 2013 appellant requested a telephonic hearing before an OWCP hearing
representative. The hearing was held on November 19, 2013.
In a January 27, 2014 decision, the hearing representative affirmed the June 6, 2013
decision terminating appellant’s wage-loss compensation and medical benefits.
In a letter dated March 12, 2014, counsel requested reconsideration. In support of her
request, appellant submitted a February 27, 2014 report by Dr. Chollak, who stated that she has
been his patient for years and diagnosed her current condition as right knee degenerative arthritis
and lumbar/back spine with intermittent sciatic radiation. Dr. Chollak related that she continued
to suffer from severe symptoms sustained as a result of the December 14, 2007 employment
injury. Appellant complained of constant pain no matter what position she is in. Dr. Chollak
noted that prior to her December 14, 2007 employment injury she had no symptoms and worked
with minimal discomfort. Currently appellant was doing no activity or work to keep her pain
within a reasonable range. Dr. Chollak noted that her right knee problems aggravate her back
problems and vice versa. He noted that due to appellant’s constant pain complaints she is unable
to stand or sit for any length of time without her pain increasing. In concluding, Dr. Chollak
opined that the December 14, 2007 injury was the cause of her intermittent sciatica, continuous
back pain, and escalating right knee degenerative arthritis. He opined that appellant was totally
disabled from any type of work.
By decision dated July 21, 2014, OWCP denied modification.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.2 After it has determined that an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.3 Its burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.5 To terminate authorization for medical treatment, OWCP must

2

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

3

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

4

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

5

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

3

establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.6
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.7 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective June 30, 2013. The accepted conditions are lumbar
sprain/strain, back contusion, and right knee contusion. OWCP properly determined that a
conflict in medical evidence had been created between the opinions of appellant’s treating
physician, Dr. Chollak, and Dr. Gordon, an OWCP referral physician, regarding the cause and
extent of her accepted condition and whether the conditions had resolved with no residuals. It
referred appellant to Dr. Gelman, Board-certified in orthopedic surgery, for an impartial medical
evaluation.
Dr. Gelman conducted an impartial medical examination on June 3, 2010 as well as
reviewing appellant’s history of injury and medical history. He diagnosed lumbar contusion and
congenital genu valgus. Dr. Gelman performed an extensive review of the medical records
which led him to opine that appellant’s accepted injury had resolved and that her low back pain
and right knee osteoarthritis were unrelated to the accepted December 14, 2007 employment
injury. In support of this conclusion, he related that she sustained a minor trauma on
December 14, 2007 based on review of her medical history prior to the injury and medical
reports from the date of injury. Dr. Gelman concluded that there was no objective evidence
supporting any disability and that appellant’s preexisting conditions had not been aggravated by
the December 14, 2007 injury. He found that her current medical condition and disability were
due to a nonemployment-related degenerative disease condition. Dr. Gelman further concluded
that appellant could return to her date-of-injury job without restrictions resulting from the
December 14, 2007 employment injury.
The Board finds that Dr. Gelman’s report was entitled to the special weight of the
medical evidence. Dr. Gelman provided a detailed report reviewing the medical and
employment injury history, medical records, and physical examination findings. He explained
why he determined that appellant’s current condition was not due to her employment as the
initial injury was a minor trauma which would not have permanently aggravated her preexisting
conditions and that the objective evidence did not support any continuing residuals or disability.
6

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

7

5 U.S.C. § 8123(a). See S.R., Docket No. 09-2332 (issued August 16, 2010); Y.A., 59 ECAB 701 (2008);
Darlene R. Kennedy, 57 ECAB 414 (2006).
8

A.R., Docket No. 09-1566 (issued June 2, 2010); M.S., 58 ECAB 328 (2007); Bryan O. Crane, 56 ECAB
713 (2005).

4

Dr. Gelman opined that her current medical condition was due to the preexisting degenerative
disease process, which had not been caused or aggravated by the December 14, 2007
employment injury. As his report is based on a proper factual history, provided findings and
included medical reasoning, supporting his conclusions, the Board finds that OWCP met its
burden of proof to terminate appellant’s compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s wage-loss compensation and
medical benefits, the burden shifted to her to establish disability causally related to her accepted
injury.9
ANALYSIS -- ISSUE 2
Following OWCP’s June 6, 2013 termination of appellant’s compensation and medical
benefits effective June 30, 2013, which was affirmed by an OWCP hearing representative on
January 27, 2013, counsel requested reconsideration and submitted additional new evidence
consisting of an additional report from Dr. Chollak.
Dr. Chollak submitted an additional February 27, 2014 report of appellant’s claim for
total disability and medical residuals following the termination of her compensation benefits. He
reiterated that his findings and opinion that she continued to be totally disabled as a result of the
injuries sustained on December 14, 2007. Dr. Chollak opined that the December 14, 2007 injury
caused a permanent aggravation of appellant’s preexisting right knee degenerative arthritis,
intermittent sciatic radiation, and lumbar/back condition. As he was on one side of a conflict
which was resolved by Dr. Gelman and his report does not otherwise provide new findings or
medical rationale, Dr. Chollak’s February 27, 2014 report is insufficient to establish there were
any continuing conditions or residuals due to the accepted July 29, 2009 work injury.10
Moreover, OWCP has not accepted the conditions of right knee degenerative arthritis or
intermittent sciatic radiation.11 Where a claimant claims that a condition not accepted or
approved by OWCP was due to her employment injury, she bears the burden of proof to
establish that the condition is causally related to the injury through the submission of rationalized
medical evidence.12 Dr. Chollak has not provided any supporting rationale explaining how
appellant’s condition was a result of her accepted employment injury beyond noting that the
injury was the cause of her current conditions. The Board has held opinions unsupported by
rationale are entitled to little probative value.13 For the reasons set forth above, Dr. Chollak’s
February 27, 2014 report is insufficiently rationalized to create a conflict of medical opinion with
9

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

10

See I.J., 59 ECAB 408 (2008); Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101,
1115 (1992); Dorothy Sidwell, 41 ECAB 857 (1990).
11

Charles W. Downey, 54 ECAB 421 (2003); Alice J. Tysinger, 51 ECAB 638 (2000).

12

M.D., Docket No. 11-1737 (issued April 3, 2012); F.H., Docket No. 10-1267 (issued March 7, 2011); JaJa K.
Asaramo, 55 ECAB 200, 214 (2004).
13

T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

5

Dr. Gelman. Appellant has failed to meet her burden of proof to establish continuing residuals or
disability due to her accepted conditions.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds the attorney’s arguments are not
substantiated.
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).
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits and that she has failed to meet her burden of proof to
establish any continuing disability or medical residuals on or after June 30, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 21, 2014 is affirmed.
Issued: February 10, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6