M.R. and Department of Commerce, U.S. Census Bureau (Board decision, March 5, 2024)

ECAB remand decision. The Board affirmed termination of medical benefits and denial of continuing residuals but set aside the schedule award ruling. The impairment claim remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

The Board upheld termination of a Census Bureau employee’s medical benefits after finding that accepted injury residuals had ended. It also found that she had not proved continuing residuals after termination. A separate schedule award claim required more review because an impartial examiner questioned accepted facts rather than using them. The Board set aside that part and ordered further medical development.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.
• Outcome: Benefit termination affirmed; schedule award issue remanded.
• Key point: The impairment examiner could not disregard accepted facts when rating the claim.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
M.R., Appellant
)
)
and ) Docket No. 23-1052
)
Issued: March 5, 2024
DEPARTMENT OF COMMERCE, U.S. CENSUS )
BUREAU, Philadelphia, PA, Employer )
__________ )

Appearances: Case Submitted on the Record
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 7, 2023 appellant, through counsel, filed a timely appeal from a February 28, 2023 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.

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s medical benefits effective August 5, 2022 as she no longer had residuals causally related to her accepted March 14, 2002 employment injury; (2) whether appellant has met her burden of proof to establish continuing residuals on or after August 5, 2022 causally related to her accepted March 14, 2002 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. employment injury; and (3) whether appellant has met her burden of proof to establish permanent impairment of a scheduled member or function of the body, warranting a schedule award.

FACTUAL HISTORY

This case has previously been before the Board on different issues.3 The facts and circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

On March 29, 2002 appellant, then a 46-year-old field representative, filed a traumatic injury claim (Form CA-1) alleging that on March 14, 2002 she sustained neck sprain and other injuries in a motor vehicle accident while in the performance of duty. OWCP accepted her claim for cervical strain, cervical herniated nucleus pulposus, lumbar strain, and post-traumatic headaches.

On August 19, 2011 OWCP paid appellant wage-loss compensation for total disability from July 17, 2003 through August 2, 2011. In 2013, it paid her wage-loss compensation for total disability retroactive to March 1, 2012.

On January 4, 2017 OWCP referred appellant to Dr. Andrew Newman, an orthopedic surgeon, for a second opinion examination. It provided him with a statement of accepted facts (SOAF) setting forth the accepted conditions. The SOAF indicated that appellant had undergone two cervical discectomies.

In a report dated January 22, 2017, Dr. Newman discussed appellant’s history of a March 14, 2002 employment injury and her complaints of low back and neck pain and bilateral carpal tunnel syndrome. He noted that she had undergone a right knee replacement which she attributed to the employment injury, and also a cervical fusion at C5-6 and C6-7. Dr. Newman found that appellant had rheumatoid arthritis causing bilateral knee problems. On examination of the lumbar spine, he found evidence of symptom magnification. Dr. Newman opined that appellant had no further disability or need for medical treatment due to her March 14, 2020 employment injury. He asserted that she had work restrictions due to nonemployment-related degenerative changes in the cervical and lumbar spine and her right total knee replacement.

In an attending physician’s report (Form CA-20) dated February 27, 2017, Dr. Steven H.
Ressler, an anesthesiologist, diagnosed a herniated lumbar disc and provided findings of chronic low back and cervical pain after surgery. He checked a box marked “yes” that the condition was caused or aggravated by the March 14, 2002 motor vehicle accident and opined that appellant was totally disabled. In a narrative report of even date, Dr. Ressler diagnosed employment-related lumbar and cervical radiculopathy due to a herniated nucleus pulposus following lumbar and cervical surgery, chronic low back pain, and chronic cervical pain.

OWCP determined that a conflict existed between Dr. Newman and Dr. Ressler regarding appellant’s current condition and the extent of any employment-related disability. It referred her to Dr. Thomas O’Dowd, a Board-certified orthopedic surgeon, for an impartial medical examination.

3
Docket No. 15-0583 (issued August 26, 2015), Docket No. 19-0518 (issued September 12, 2019).

2
 In a report dated July 11, 2017, Dr. O’Dowd reviewed the history of appellant’s March 14, 2002 employment injury and her subsequent medical treatment, including surgery on her lumbar and cervical spine. He discussed her complaints of neck pain radiating into both arms and low back pain with intermittent radiation into the right side. Dr. O’Dowd noted that appellant had no significant complaints of headaches at the present time. He found some evidence of enhancement on physical examination. Regarding the cervical spine, Dr. O’Dowd found no objective evidence of the accepted cervical sprain/strain and herniation. He concluded that appellant’s accepted cervical condition had “completely resolved” and that she required no further medical treatment. Dr. O’Dowd further determined that she had no ongoing lumbar symptoms, noting that an examination revealed “no objective abnormalities.” He found that appellant required no further treatment. Dr. O’Dowd questioned whether her surgical treatment was related to her March 14, 2002 employment injury and indicated that he was unable to address whether she had a preexisting lumbar or cervical spine condition. He found that appellant no longer had disability due to her March 14, 2002 employment injury. In an accompanying work capacity evaluation (Form OWCP- 5c), Dr. O’Dowd determined that she could not climb or kneel and should change positions from sitting every two hours. He opined that appellant could return to her usual employment.

On March 6, 2018 OWCP advised appellant of its proposed termination of her wage-loss compensation and medical benefits as the evidence established that she no longer had any employment-related residuals or disability due to her March 14, 2002 employment injury. It afforded her 30 days to submit additional evidence or argument if she disagreed with the proposed termination.

In a report dated April 17, 2018, Dr. Ressler discussed appellant’s history of a cervical fusion in 2003 and lumbar discectomy in 2004. He advised that she had radiculopathy of the bilateral extremities treated with injections and nerve blocks. Dr. Ressler diagnosed cervical and lumbar facet disease causally related to the March 14, 2002 employment injury. He indicated that appellant had an “inability to return to meaningful employment as a result of the work[-]related injury and subsequent treatments for [appellant’s] ongoing cervical and lumbar ailments.” Dr. Ressler advised that she also had left knee and right shoulder pain unrelated to her 2002 employment injury that disabled her from her usual employment duties. He indicated that at most appellant could perform sedentary work, but could not drive or perform more than limited walking due to her knee condition.

By decision dated April 24, 2018, OWCP terminated appellant’s wage-loss compensation and medical benefits effective April 29, 2018. It found that the opinion of Dr. O’Dowd, the impartial medical examiner (IME), represented the special weight of the evidence and established that she no longer had residuals or disability due to her accepted March 14, 2002 employment injury.

On April 30, 2018 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

An oral hearing was held on August 28, 2018. On October 18, 2018 counsel resubmitted the July 17, 2003 and March 3, 2004 operative reports. He asserted that Dr. O’Dowd had failed to review the diagnostic studies and that Dr. Newman relied upon a SOAF that failed to indicate that appellant underwent a lumbar discectomy on February 2, 2004.

3
 By decision dated November 13, 2018, OWCP’s hearing representative affirmed in part and reversed in part the April 24, 2018 decision. He found that OWCP properly terminated appellant’s wage-loss compensation based on the opinion of Dr. O’Dowd, but that it had not met its burden of proof to terminate entitlement to medical benefits. The hearing representative instructed OWCP to obtain all diagnostic studies, update the SOAF to include all surgeries, and obtain a supplemental report from Dr. O’Dowd regarding whether she continued to have residuals of her accepted employment injury such that she required further medical treatment.

In a report dated March 1, 2019, Dr. Arthur Becan, an orthopedic surgeon, discussed appellant’s complaints of pain and stiffness in her cervical spine radiating into her upper extremities bilaterally. He measured range of motion of the upper extremities and found full strength of the upper extremities with decreased sensation of the bilateral forearms at C6. Dr. Beacon further found 4/5 strength of the right quadriceps and gastrocnemius and 3/5 strength on the right and 2/5 strength on the left of the extensor hallucis longs, and a loss of sensation in the left lower leg in the L4 and L5 nerve root distribution. Referencing the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4 he found five percent permanent impairment of the right wrist and six percent permanent impairment of the left wrist due to entrapment neuropathy of the median nerve using Table 15-23 on page 449. Dr. Becan, citing The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition, (July/August 2009) (The Guides Newsletter), further found that appellant had 6 percent permanent impairment of each upper extremity due to a Class 1 sensory deficit of the C6 nerve root, for a combined 12 percent permanent impairment of each upper extremity.

For the lower extremities, Dr. Becan found that, under The Guides Newsletter, appellant had 6 percent impairment of the left lower extremity due to a class 1 sensory deficit at both L4 and L5, and 13 percent impairment due to a Class 1 motor strength deficit of the left extensor hallucis longus, for a total left lower extremity impairment of 23 percent. He further found 13 percent permanent impairment of the right lower extremity due to a motor strength deficit of the right extensor hallucis longus. Dr. Becan opined that appellant had reached maximum medical improvement (MMI) on March 1, 2019.

Appellant appealed OWCP’s November 13, 2018 termination decision to the Board. By decision dated September 12, 2019, the Board affirmed the November 13, 2018 decision, finding that OWCP properly terminated her wage-loss compensation effective April 29, 2018 as she no longer had disability causally related to her March 14, 2002 employment injury. The Board further found that appellant had not met her burden of proof to establish continuing employment-related disability on or after April 29, 2018.5

On November 6, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule award.

On November 18, 2019 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a district medical adviser (DMA), noted that Dr. Becan’s findings on examination showed

4
A.M.A., Guides (6th ed. 2009).
5
See Docket No. 19-0518 (issued September 12, 2019).

4 neurological deficits in excess of the degree of appellant’s disc herniation. He recommended that OWCP refer her for a second opinion examination.

On December 11, 2019 OWCP referred appellant to Dr. Stanley Askin, a Board-certified orthopedic surgeon, for an impairment evaluation.

In a report dated January 8, 2020, Dr. Askin reviewed appellant’s complaints of pain and numbness from her neck into her upper extremities and in her back radiating into her lower extremities bilaterally and her history of surgeries, including a right knee arthroplasty in 2008. On examination, he measured full range of motion of the neck, shoulders, elbows, forearms, wrists, fingers, and thumbs, normal strength testing of the upper extremities, and a negative Spurling’s test. Dr. Askin found a negative Phalen’s test and equivocal Tinel’s sign bilaterally with no evidence of right trigger thumb. He indicated that appellant “gave way” on manual muscles testing of the muscles of the hips, quadriceps, hamstrings, ankles, and toes, which he asserted was different than weakness. Dr. Askin found full range of motion of the lower extremities and a negative straight leg raise and Patrick’s test. He noted that the claim had been accepted for cervical strain, a cervical herniated nucleus pulposus, lumbar strain, and post-traumatic headaches. Dr. Askin found “no objective findings that are consequential to the accepted conditions” and that appellant’s subjective complaints failed to correspond to objective findings. He opined that she had no permanent impairment of any extremity due to the accepted employment injury and thus had a zero percent permanent impairment rating.

On January 16, 2020 Dr. Katz concurred with Dr. Askin’s finding of zero percent permanent impairment of the right and left upper and lower extremities according to The Guides Newsletter.

By decision dated January 28, 2020, OWCP denied appellant’s schedule award claim.

On February 3, 2020 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

Following a preliminary review, by decision dated April 29, 2020, OWCP’s hearing representative vacated the January 28, 2020 decision. She found that a conflict in medical opinion existed between Dr. Becan and Dr. Askin regarding the extent of any employment-related permanent impairment.

On April 30, 2020 OWCP requested that Dr. Becan review and comment on the DMA’s November 18, 2019 and January 15, 2020 reports. In a June 3, 2020 response, Dr. Becan advised that his impairment rating set forth in his March 1, 2019 report was unchanged after review of the reports from Dr. Askin and the DMA, Dr. Katz.

On July 28, 2020 OWCP referred appellant to Dr. Ian B. Fries, a Board-certified orthopedic surgeon, for an impartial medical examination to resolve the conflict in medical opinion between Dr. Becan and Dr. Askin regarding the extent of her permanent impairment.

In a report dated May 30, 2021, Dr. Fries reviewed in detail the medical reports of record and appellant’s current complaints of cervical and low back pain radiating into the extremities. He noted that appellant complained of swelling of the wrists and fingers, knees, and ankles as well as frequent falls which she attributed to her low back condition. On examination Dr. Fries measured

5 range of motion of the bilateral shoulders, elbows, wrists, and fingers. He found negative Phalen’s sign and Tinel’s test and no sensory complaints. Dr. Fries further measured range of motion of the hips and found a negative straight leg raise and Steinmann test. He found mild varus/valgus laxity of the right knee without gross instability and some loss of sensation. Dr. Fries determined that appellant had mild swelling of the anterolateral ankles bilaterally. He diagnosed a herniated left C4-5 disc after an anterior cervical fusion at C5-6 and C6-7, a right L4-5 laminectomy and discectomy, a right shoulder labral tear, mild rotator cuff tendinosis, a paralabral cyst, and acromioclavicular (AC) degeneration after surgery, a right total knee replacement and debridement, post left knee arthroscopic debridement, and bilateral carpal tunnel syndrome after releases. Dr. Fries opined that the July 17, 2003 cervical surgery and March 13, 2004 lumbar surgery were not causally related to appellant’s employment injury. He noted that “[s]prains and strains do not require discectomies and/or fusions.” Dr. Fries indicated that cervical disc herniations could appear spontaneously and did not prove trauma. He found that there were “no current diagnoses in the upper or lower extremities connected to the March 14, 2004 motor vehicle accident.” Dr. Fries opined that appellant had no ratable impairment of the right upper extremity using the range of motion method as she had full motion. Using the diagnosis-based impairment method, he identified the class of diagnosis (CDX), AC joint disease, as a Class 1 impairment according to Table 15-5 on page 403, which yielded eight percent permanent impairment after the application of grade modifiers. Dr. Fries further found one percent permanent impairment of each upper extremity due to carpal tunnel syndrome according to Table 15-23 on page 449 of the A.M.A., Guides, for a total of nine percent permanent impairment of the right upper extremity and one percent permanent impairment of the left upper extremity.

For the lower extremities, Dr. Fries referenced Table 16-3 on page 511 and found 21 percent permanent impairment of the right lower extremity due to appellant’s right total knee replacement. He further found two percent permanent impairment of the left lower extremity due to a meniscal injury using Table 16-3 on page 509. Dr. Fries related that both the upper and lower extremity impairment ratings were for conditions unrelated to appellant’s March 14, 2002 employment injury. He asserted that she did not have “permanent partial upper or lower extremity impairments due to the March 14, 2002 accident.”

In a June 9, 2021 addendum to his July 11, 2017 report, Dr. O’Dowd advised that appellant’s cervical and lumbar strains had completely resolved. He asserted that her cervical fusion at C5-6 and C6-7 appeared successful and that she required no further treatment. Dr. O’Dowd noted that studies after appellant’s surgery showed no new pathology or another herniated disc “of a significant residual nature.” He related, “Therefore, [appellant] has long since recovered and requires no further treatment in regard to the motor vehicle accident of March 14, 2002 and regarding the cervical disc herniation.” Dr. O’Dowd advised that a 2013 magnetic resonance imaging (MRI) scan showed no objective abnormalities showing ongoing lumbar strain/sprain and noted that appellant’s headaches and post-traumatic headaches had resolved based on her lack of complaints at the time of examination. He concluded that there was no “objective evidence of an ongoing symptom complex of [appellant’s] work related and accepted cervical strain/sprain, cervical herniated nucleus pulposus, lumbar strain, and post-traumatic headaches. This was not present historically nor present physically at the time. Therefore, [appellant] certainly did not require any further treatment at that time.” Dr. O’Dowd concluded that appellant required no further medical treatment due to her March 14, 2002 employment injury.

6
 In another addendum report dated July 7, 2021, Dr. O’Dowd reviewed Dr. Fries’ findings and concurred with his conclusions, except for his finding that appellant had reached MMI on the date of his examination rather than in 2012. He noted that her accepted employment injuries included cervical strain/sprain, a cervical herniated nucleus pulposus, and lumbar strain/sprain. Dr. O’Dowd related that based on his previous physical examination and review of the medical records he found “no objective evidence of any ongoing symptom complex of these accepted injuries. There were no neurological defects. There were no physical findings of any residual problems related to the above injuries.” He opined that appellant had no residuals and required no further medical treatment as a result of her accepted March 14, 2002 employment injury.

On August 31, 2021 OWCP notified appellant of its proposed termination of her medical benefits as the special weight of the evidence established that she no longer had any employment- related residuals due to her accepted March 14, 2002 employment injury. It afforded her 30 days to submit additional evidence or argument if she disagreed with the proposed termination.

In a September 21, 2021 response, appellant’s counsel asserted that Dr. Fries’ report did not conform to the SOAF as he found that her cervical and lumbar surgeries were unrelated to her March 14, 2002 employment injury.

By decision dated August 5, 2022, OWCP terminated appellant’s medical benefits effective that date, finding that Dr. O’Dowd’s June 9 and July 7, 2021 reports constituted the special weight of the evidence and established that she had no further need for medical treatment causally related to her accepted March 14, 2002 employment injury.

By separate decision also dated August 5, 2022, OWCP denied appellant’s claim for a schedule award. It accorded the special weight of the medical evidence to Dr. Fries’ May 30, 2021 report which established that she had no permanent impairment causally related to her March 14, 2002 employment injury.

On August 16, 2022 appellant, through counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.

In reports dated September 12 and October 12 and 19, 2022, Dr. Arfan Qureshi, an osteopath, noted appellant’s complaints of low back pain radiating to her thigh, left shoulder pain, and right more than left knee pain. He reviewed the results of diagnostic studies and provided findings on examination. Dr. Qureshi diagnosed chronic low back pain due to disc protrusions, foraminal stenosis, and bilateral facet arthropathy at L4-5 and L5-S1, right more than left shoulder pain likely due to subacromial bursitis, bilateral knee pain after a right total knee replacement, and left neck pain due to myofascial pain syndrome. He provided pain management.

On September 28, 2022 Dr. Qureshi provided steroid injections. On October 27, 2022 he performed radiofrequency ablations at L3-4, L4-5, and L5-S1, bilaterally.

An MRI scan of the lumbar spine dated December 15, 2022 revealed lumbar degenerative changes at multiple levels with stenosis, foraminal narrowing, and nerve root effacement, most prominent on the right at L5-S1.

7
 A telephonic hearing was held on December 15, 2022. During the hearing, counsel asserted that Dr. Fries’ report lacked rationale, failed to reference The Guides Newsletter, and was outside the SOAF.

In a January 10, 2023 response, the employing establishment noted that appellant had over 20 nonemployment-related conditions and also preexisting injuries to her back.

By decision dated February 28, 2023, OWCP’s hearing representative affirmed both August 5, 2022 decisions.

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.6 The right to medical benefits for an accepted condition is not limited to the period of entitlement for disability.7 To terminate authorization for medical treatment, OWCP must establish that appellant no longer has residuals of an employment-related condition, which would require further medical treatment.8

Section 8123(a) of FECA provides in pertinent part: “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.”9 In situations where there exist opposing medical reports of virtually equal weight and rationale and the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual background, must be given special weight.10

ANALYSIS -- ISSUE 1

The Board finds that OWCP met its burden of proof to terminate appellant’s medical benefits effective August 5, 2022, as she no longer had residuals causally related to her accepted March 14, 2002 employment injury.

OWCP properly determined that there was a conflict in the medical opinion between Dr. Ressler, appellant’s treating physician, and Dr. Newman, an OWCP second opinion physician, regarding whether appellant continued to have disability or residuals causally related to the accepted employment injury. In order to resolve the conflict, it referred her, pursuant to 5 U.S.C.

6
See L.M., Docket No. 22-0342 (issued August 25, 2023); T.C., Docket No. 20-1163 (issued July 13, 2021); Paul L.
Stewart, 54 ECAB 824 (2003).
7
L.K., Docket No. 20-0443 (issued August 8, 2023); E.J., Docket No. 20-0013 (issued November 19, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019); Furman G. Peake, 41 ECAB 361 (1990). 8 A.J., Docket No. 18-1230 (issued June 8, 2020); R.P., Docket No. 18-0900 (issued February 5, 2019).
9
5 U.S.C. § 8123(a).
10
See J.P., Docket No. 23-0075 (issued March 26, 2023); C.M., Docket No. 20-1647 (issued October 5, 2021);
James P. Roberts, 31 ECAB 1010 (1980).

8
§ 8123(a), to Dr. O’Dowd, for an impartial medical examination and an opinion on the issue.11 Based on his July 11, 2017 report, OWCP terminated appellant’s wage-loss compensation effective April 29, 2018, which the Board affirmed by decision dated September 12, 2019.12 Thus, the Board notes that it is unnecessary for the Board to consider the evidence she submitted prior to the issuance of OWCP’s November 13, 2018 merit decision as the Board considered it in its September 12, 2019 decision.13 Findings made in prior Board decisions are res judicata absent further merit review by OWCP under section 8128 of FECA.14

OWCP subsequently requested a supplemental opinion from Dr. O’Dowd regarding whether appellant had continued residuals of her accepted employment injury necessitating further medical treatment.

In an addendum report dated June 9, 2021, Dr. O’Dowd found that appellant had no further residuals of her cervical strain, lumbar strain, cervical disc herniation, and post-traumatic headaches based on the lack of objective findings on prior physical examination and historically. He noted that her cervical disc herniation had been successfully treated with surgery and that subsequent studies showed no new pathology or another herniated disc of significance. Dr. O’Dowd further indicated that studies showed no objective evidence of the lumbar strain/sprain. He opined that appellant required no further medical treatment as a result of her March 14, 2002 employment injury. On July 7, 2021 Dr. O’Dowd reviewed Dr. Fries’ report and concurred with his conclusions. He reiterated that, based on his review of the medical records and findings on prior examination, appellant had no objective evidence of her work injuries, no neurological defects, or any physical findings showing the need for further medical treatment.

Dr. O’Dowd based his opinion on a prior factual and medical history of detailed findings on prior examination.15 He further provided a well-rationalized opinion that appellant had no further residuals causally related to her accepted employment injury, explaining that findings on examination and objective studies demonstrated no continued employment-related condition that required further medical treatment.16 The Board therefore finds that Dr. O’Dowd’s opinion, as the IME, is accorded the special weight of the medical evidence and establishes that appellant no longer had residuals causally related to the accepted March 14, 2002 employment injury. Accordingly, OWCP met its burden of proof to terminate her medical benefits, effective August 5, 2022.

11
Id.
12
Supra note 6.
13
Id.
14
M.J., Docket No. 20-1565 (issued January 24, 2023); B.D., Docket No. 20-1365 (issued December 21, 2022);
M.D., Docket No. 19-0510 (issued August 6, 2019); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998). 15 S.V., Docket No. 23-0474 (issued August 1, 2023); J.S., Docket No. 20-1409 (issued September 1, 2021).
16
J.P., supra note 10; J.S., id.

9
 LEGAL PRECEDENT -- ISSUE 2

When OWCP properly terminates appellant’s wage-loss compensation and medical benefits, the burden of proof shifts to her to establish continuing disability or residuals, on or after that date, causally related to the accepted employment injury.17 To establish causal relationship between continuing residuals and the accepted employment injury, an employee must submit rationalized medical evidence based on a complete medical and factual background, supporting such a causal relationship.18

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met her burden of proof to establish residuals of her accepted employment injury on or after August 5, 2022.

Following the termination of her medical benefits, appellant submitted reports from Dr. Qureshi dated September and October 2022. Dr. Qureshi diagnosed chronic low back pain due to disc protrusions, foraminal stenosis, and bilateral facet arthropathy at L4-5 and L5-S1, right more than left shoulder pain likely due to subacromial bursitis, bilateral knee pain after a right total knee replacement, and left neck pain due to myofascial pain syndrome. He provided pain management, including steroid treatments and radiofrequency ablation. Dr. Qureshi did not, however, address the relevant issue of whether appellant continued to require further medical treatment on or after August 5, 2022 due to her accepted employment injury, and thus his opinion is of limited probative value.19

As the medical evidence of record is insufficient to establish that appellant sustained continuing residuals on or after August 5, 2022, causally related to her accepted March 14, 2002 employment injury, the Board finds that she has not met her burden of proof.20

LEGAL PRECEDENT -- ISSUE 3

The schedule award provisions of FECA,21 and its implementing federal regulations,22 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

17
See L.K., Docket No. 20-0443 (issued August 8, 2023); C.C., Docket No. 19-1062 (issued February 6, 2020).
18
See A.V., Docket No. 23-0230 (issued July 28, 2023); C.L., Docket No. 18-1379 (issued February 3, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).
19
L.K., supra note 17; R.R., Docket No. 19-0173 (issued May 2, 2019).
20
See R.G., Docket No. 22-0165 (issued August 11, 2022).
21
5 U.S.C. § 8107.
22
20 C.F.R. § 10.404.

10 the A.M.A., Guides as the uniform standard applicable to all claimants.23 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.24

It is the claimant’s burden of proof to establish permanent impairment of a scheduled member or function of the body as a result of an employment injury.25 OWCP’s procedures provide that, to support a schedule award, the file must contain competent medical evidence, which shows that the impairment has reached a permanent and fixed state and indicates that the date on which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.26

Neither FECA nor its implementing regulations provide for a schedule award for impairment to the back or to the body as a whole.27 Furthermore, the back is specifically excluded from the definition of organ under FECA.28 The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to rating spinal nerve impairments consistent with sixth edition methodology. For peripheral nerve impairments to the upper or lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides Newsletter is to be applied.29 The Board has recognized the adoption of this methodology for rating extremity impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform standard applicable to each claimant for a schedule award for extremity impairment originating in the spine.30

When there exist opposing medical reports of virtually equal weight and rationale and the case is referred to an IME for the purpose of resolving the conflict, the opinion of such specialist,

23
Id. at 10.404(a).
24
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (March 2017); see also id. at Chapter 3.700.2 and Exhibit 1 (January 2010). 25 V.D., Docket No. 22-0123 (issued April 20, 2023); J.P., Docket No. 21-0801 (issued December 22, 2021);
Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001). 26 Supra note 24 at Chapter 2.808.5 (March 2017).
27
G.W., Docket No. 23-0600 (issued September 20, 2023); K.Y., Docket No. 18-0730 (issued August 21, 2019);
L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004). 28 See 5 U.S.C. § 8101(19); see also T.M., Docket No. 23-0211 (issued August 10, 2023); G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziani, 48 ECAB 572 (1997). 29 Supra note 24 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.
30
C.J., Docket No. 21-1389 (issued July 24, 2023); E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

11 if sufficiently well rationalized and based upon a proper factual background, must be given special weight.31

ANALYSIS -- ISSUE 3

The Board finds that the case is not in posture for decision with regard to appellant’s schedule award claim.

OWCP properly determined that a conflict arose between Dr. Becan, appellant’s attending physician, and Dr. Askin, an OWCP referral physician, regarding whether she had ratable permanent impairment of a scheduled member or function of the body causally related to her accepted employment injury. It referred her to Dr. Fries for an impartial medical examination in accordance with 5 U.S.C. § 8123(a).

In his May 30, 2021 report, Dr. Fries found that appellant’s cervical surgery on July 17, 2003 and lumbar surgery on March 13, 2004 both authorized by OWCP, were unrelated to the accepted employment injury. He further questioned whether she had sustained a herniated cervical disc due to her work injury. The Board has held that, if an IME does not use the SOAF as the framework in forming his or her opinion, the probative value of the opinion is seriously diminished or negated altogether.32 Further, the Board notes that it is the function of the medical expert to give an opinion only on medical questions, not to find facts.33 As Dr. Fries may not disregard the accepted facts of the case, the Board finds that his report is not entitled to the special weight of the medical opinion evidence.34

It is well established that proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement to compensation, OWCP shares the responsibility in the development of the evidence to see that justice is done.35 Once it undertakes development of the record, it must do a complete job in procuring medical evidence that will resolve the relevant issues in the case.36

Additionally, in a situation where OWCP secures an opinion from an IME for the purpose of resolving a conflict in the medical evidence and the opinion from such IME requires clarification

31
V.K., Docket No. 21-1006 (issued September 25, 2023); D.C., Docket No. 23-0455 (issued August 28, 2023);
Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001); James P. Roberts, supra note 10. 32 See D.C., Docket Nos. 22-0020 & 22-0297 (issued April 24, 2023); Q.S., Docket No. 20-0701 (issued November 10, 2021); T.M., Docket No. 20-1143 (issued December 14, 2020); D.F., Docket No. 20-1286 (issued June 17, 2021). 33 D.C., id.; S.D., Docket No. 17-1271 (issued November 7, 2017); S.J., Docket No. 09-1355 (issued May 20, 2010);
Paul King, 54 ECAB 356 (2003).
34
D.C., id.; L.L., Docket No. 15-0672 (issued September 23, 2016); Richard Higgins, Docket No. 04-0183 (June 21, 2004).
35
See S.H., Docket No. 21-1380 (issued September 22, 2023); J.R., Docket No. 19-1321 (issued February 7, 2020);
S.S., Docket No. 18-0397 (issued January 15, 2019).
36
Id., see also R.M., Docket No. 16-0147 (issued June 17, 2016).

12 or elaboration, it has the responsibility to secure a supplemental report from the examiner for the purpose of correcting the defect in the original opinion.37 Accordingly, the Board finds that OWCP should have referred the case back to Dr. Fries for a supplemental report for clarification, or to a new IME. Consequently, the case is remanded for further medical development regarding appellant’s entitlement to a schedule award for permanent impairment of a scheduled member or function. After this and other such further development as necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that OWCP met its burden of proof to terminate appellant’s medical benefits effective August 5, 2022, as she no longer had residuals causally related to her accepted March 14, 2002 employment injury, and that she has not met her burden of proof to establish residuals of her accepted employment injury on or after August 5, 2022. The Board further finds that the case is not in posture for decision regarding whether she is entitled to a schedule award for a permanent impairment of a scheduled member or function of the body.

ORDER

IT IS HEREBY ORDERED THAT the February 28, 2023 decision of the Office of Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded for further proceedings consistent with this decision of the Board.

Issued: March 5, 2024
Washington, DC

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

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

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

37
J.C., Docket No. 20-0064 (issued September 4, 2020); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988); see also James P. Roberts, supra note 10.

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