United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 15-0220 

Issued: August 5, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On November 5, 2014 appellant, through counsel, filed a timely appeal of a July 28, 2014 

merit decision of 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 to consider the merits of the case. 

ISSUES 

The issues are: (1) whether appellant has established that she developed a cervical 

condition as a result of her employment duties; (2) whether she has met her burden of proof to 

establish a recurrence of disability on or after May 27, 2010 due to her accepted employment 

injuries; and (3) whether appellant has more than 26 percent permanent impairment of her right 

upper extremity for which she received a schedule award. 

On appeal counsel argues that the report of the impartial medical examiner (IME) was not 

entitled to the weight of the medical evidence as he was not properly selected. He contends that 

 1

 5 U.S.C. § 8101 et seq.
2

there was no screen shot of the IME’s selection and no record of physicians who were bypassed, 

only the Form ME023. In the alternative, counsel argues that the IME’s report supported 

residual disability due to a cervical condition, that his report was not consistent with the 

statement of accepted facts (SOAF), and that he did not address the May 27, 2010 recurrence of 

disability associated with the removal of the spinal cord stimulator. 

FACTUAL HISTORY 

This case has previously been before the Board. Appellant has two occupational disease 

claims before OWCP. The relevant facts of both claims follows. 

On August 8, 2006 appellant, then a 39-year-old clerk, filed an occupational disease 

claim alleging that she developed carpal tunnel syndrome and a ganglion cyst as a result of her 

duties of casing letters and flats on a daily basis in OWCP File No. xxxxxx758. An 

electromyogram (EMG) study demonstrated mild carpal tunnel syndrome in the right hand. 

OWCP accepted this claim for right carpal tunnel syndrome and dorsal ganglion cyst, right wrist. 

Appellant underwent a right carpal tunnel release with tenosynovial biopsy and distal forearm 

fasciotomy on September 19, 2006. 

Appellant filed a claim for a recurrence of disability on July 30, 2007 due to her accepted 

conditions. On August 10, 2007 OWCP accepted the additional condition of reflex sympathetic 

dystrophy (RSD) of the right upper extremity. Appellant underwent the surgical insertion of two 

separate spinal stimulator leads on July 30, 2007 for a trial. She underwent permanent insertion 

of spinal stimulators on September 19, 2007 due to chronic regional pain syndrome (CRPS) in 

the right upper extremity. Appellant returned to light-duty work on January 24, 2008. 

By decision dated April 30, 2009, OWCP granted appellant a schedule award for 26 

percent impairment of the right upper extremity. An OWCP hearing representative affirmed this 

decision on December 2, 2009. 

Appellant appealed to the Board. The Board issued an Order Remanding Case on 

March 22, 2011,2

 finding that OWCP had improperly applied the fifth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment3

 (A.M.A., Guides), to 

appellant’s medical evidence of permanent impairment and remanded for review of the case 

under the sixth edition of the A.M.A., Guides.

4

Appellant filed a second occupational disease claim on October 30, 2009 alleging that she 

sustained a cervical spine injury as a result of heavy lifting and other work-related duties in 

OWCP File No. xxxxxx072. She underwent a computerized tomography (CT) scan of the 

cervical spine on September 24, 2009 which demonstrated central disc protrusions at C4-5 and 

C5-6. The disc protrusion at C5-6 resulted in marked spinal canal narrowing. In a note dated 

October 5, 2009, Dr. Steven Rosen, a Board-certified neurologist, reported that appellant 

 2

 Docket No. 10-1138 (issued March 22, 2011). 

3

 A.M.A., Guides, 5th ed. (2001). 

4 Id. at 6th ed. (2009). 
3

experienced increased severe left neck and upper extremity pain due to the herniated disc in 

addition to her chronic upper extremity pain. He found that she was totally disabled. On 

October 5, 2009 Dr. Rosen stated that this condition began in August 2009 and stated that 

appellant’s CT scan demonstrated a large central herniation at C5-6. 

Dr. Paul J. Marcotte, a Board-certified neurosurgeon, examined appellant on 

November 2, 2009 and noted her course of treatment and reported that appellant had progressive 

neck and arm symptoms which were in keeping with the lower cervical problem demonstrated on 

her CT scan. Appellant underwent an additional CT scan, which Dr. Marcotte had recommended 

on December 4, 2009. It demonstrated cervical spinal stenosis at C5-6 and nonfilling of the C6 

nerve root sleeves due to filling defect and disc herniation. On December 14, 2009 Dr. Marcotte 

reviewed this diagnostic study and opined that a discectomy and fusion was indicated. Appellant 

underwent an anterior cervical discectomy interbody fusion with iliac crest bone graft and 

plating at C5-6 on January 19, 2010. 

By decision dated January 20, 2010, OWCP denied appellant’s claim for an occupational 

cervical disease in OWCP File No. xxxxxx072, finding that the evidence was insufficient to 

establish that the events had occurred as alleged and that the record did not contain any medical 

evidence that provided a diagnosis that could be connected to the claimed events. 

On May 28, 2010 Dr. Marcotte performed a surgical removal of appellant’s spinal cord 

stimulator. He examined appellant on June 30, 2010 and found that appellant’s neck and arm 

pain had improved, but that she continued to experience residual pain in her neck and burning 

dysesthesias in her hands. Dr. Marcotte stated, “The origin of her ongoing symptoms is 

unclear.” 

Appellant was involved in a rear-end collision on June 30, 2010 and that she thereafter 

experienced diffuse pain in her neck, arms, and back. Dr. Marcotte opined that appellant had 

likely incurred a cervical strain as a result of the rear-end collision. Dr. Michael Martin Cohen, a 

Board-certified neurologist, examined appellant on August 26, 2010 and described her June 30, 

2010 motor vehicle accident. He diagnosed bilateral C6-7 radiculopathy, cervical strain with 

fibromyositis, lumbar strain with fibromyositis, and post-traumatic cephalgia. 

Appellant filed a claim for a recurrence of disability on September 16, 2010 in OWCP 

File No. xxxxxx758, alleging that beginning on May 27, 2010 she was totally disabled due to her 

previously accepted conditions of right carpal tunnel syndrome, dorsal ganglion cyst, and RSD.5

 

She sought treatment beginning September 21, 2010 through December 18, 2012 from 

Dr. Thomas M. Fagan, chiropractor, for neck and back pain. 

Appellant requested reconsideration on October 4, 2010 of the denial of her occupational 

cervical disease claim, OWCP File No. xxxxxx072. 

 5

 On February 29, 2008 Dr. Ira H. Solomon, a clinical psychologist, examined appellant and diagnosed 

adjustment disorder with mixed anxiety, depressed mood, and a chronic pain syndrome. He opined that this 

condition was the direct result of her January 20, 2004 employment injury. 
4

Appellant submitted September 14, 20, and October 19, 2010 reports from 

Dr. Michael R. McCoy, a Board-certified family practitioner, who noted that she had been 

working for the employing establishment for 24 years. Dr. McCoy noted that for several months 

prior to September 24, 2009, appellant had been developing worsening neck and upper extremity 

pain and weakness into her right lower extremity and was on limited duty due to her carpal 

tunnel syndrome, RSD, and neck pain. He opined that appellant ruptured a disc in her neck, and 

on September 24, 2009 had a CT scan performed, which documented a disc herniation at C5-6. 

Dr. McCoy noted that she underwent cervical fusion and bone allograft. He diagnosed cervical 

disc herniation at C5-6, right upper extremity radiculopathy, right lower extremity myelopathy 

secondary to disc herniation at C5-6, and status post cervical fusion. Dr. McCoy opined that 

appellant was symptomatic and disabled as a direct result of her work injuries. He reported, “It 

is my opinion that her injuries are work related. [Appellant] has no degenerative changes of the 

cervical spine that would cause her to have disc herniation. Thus, I must conclude that her 

disability is due to her work injuries.” Dr. McCoy concluded that appellant was misdiagnosed 

with carpal tunnel syndrome and RSD and that all of her symptoms were related to her cervical 

disc herniation. 

Dr. Todd Marc Kelman, an osteopath, examined appellant on September 21, 2010 and 

noted her neck pain, bilateral shoulder pain, and low back pain. He reported that appellant’s 

neck pain radiated down both arms into her hands. Dr. Kelman noted that appellant believed her 

symptoms were improving following her spinal surgery, but then she was involved in a motor 

vehicle accident on June 30, 2010 which resulted in back pain as well as pain traveling down 

both legs. He diagnosed post-traumatic exacerbation of bilateral cervical radiculopathy 

following C5-6 fusion, cervical strain and sprain with myofasciitis, bilateral shoulder tendinitis, 

and lumbar bilateral radiculopathy with lumbar strain. 

Counsel argued on October 28, 2010 that appellant’s recurrence of disability of her carpal 

tunnel syndrome claim was due to the removal of the spinal cord stimulator on May 28, 2010. 

By decision dated November 24, 2010, OWCP denied appellant’s claim for recurrence of 

disability in OWCP File No. xxxxxx758, on or after May 27, 2010, finding that her disability 

appeared to be due to disc herniations. Appellant requested a hearing. 

By decision dated January 12, 2011, OWCP denied modification of its January 20, 2010 

decision regarding the occupational cervical claim in OWCP File No. xxxxxx072. The claims 

examiner found that the evidence failed to establish that factors of appellant’s employment 

caused her current cervical disc condition. 

On January 30, 2011 appellant requested reconsideration, or in her words “expansion,” of 

the January 12, 2011 decision. In letters dated February 11 and March 2, 2011, she requested 

that her claim be expanded to include a herniated disc at C5-6. Appellant explained her 

treatment and her belief that she was misdiagnosed resulting in the accepted diagnoses. 

In a March 3, 2011 decision, OWCP denied appellant’s January 30, 2011 request for 

reconsideration as the evidence submitted was insufficient to warrant merit review. Dr. McCoy 

continued to opine that appellant’s cervical symptoms and disability were due to her workrelated injury. 
5

An OWCP hearing representative issued a decision on June 28, 2011 in OWCP File No. 

xxxxxx758, finding that appellant had not established a recurrence of disability on May 27, 2010 

causally related to her accepted right upper extremity injuries and affirming OWCP’s 

November 24, 2010 decision. Appellant filed another request for reconsideration. 

OWCP’s medical adviser reviewed appellant’s schedule award claim in OWCP File No. 

xxxxxx758 on July 5, 2011 and reported that an October 5, 2009 CT scan demonstrated a large 

central disc herniation at C5-6, but that this was not consistent with appellant’s mechanism of 

injury and was not an accepted condition. He noted, “The fact that the claimant has improved 

with stellate ganglion blocks represents a therapeutic test confirm the diagnosis of RSD and 

complex regional pain syndrome of the left upper extremity.” The medical adviser applied the 

sixth edition of the A.M.A., Guides to appellant’s diagnosed conditions of carpal tunnel 

syndrome and RSD and found a class 2 impairment of the median nerve.6

 OWCP’s medical 

adviser stated that the default value grade C was 17 percent impairment. He found that 

appellant’s complex regional pain syndrome was class 2, moderate, grade C with a default value 

of 20 percent.7

 OWCP’s medical adviser found that appellant had grade modifier 2 for 

functional history,8

 physical examination,9 and clinical studies.10 He concluded that appellant 

had 20 percent impairment of the right upper extremity. 

By decision dated July 18, 2011, OWCP reviewed appellant’s schedule award claim as 

directed by the Board in its March 22, 2011 Order Remanding Case in Docket No. 10-1138 and 

found that, under the sixth edition of the A.M.A., Guides, appellant had 20 percent rather than 

26 percent impairment of her right upper extremity. 

Counsel requested an oral hearing before an OWCP hearing representative regarding the 

July 18, 2011 decision. 

Dr. McCoy submitted reports dated January 12 and 31, as well as June 29 and July 26, 

2011 and opined that appellant had work-related neck pain and radicular symptoms into both 

upper extremities. He reported that appellant initially worked at the employing establishment in 

a heavy-duty capacity and suffered a disc herniation which was not diagnosed. Dr. McCoy 

documented in his report, “It is my opinion within a reasonable degree of medical certainty that 

[appellant] remains symptomatic and disabled as a direct result of her work injury.” 

On September 27, 2011 appellant again requested reconsideration under xxxxxx758. 

In an October 3, 2011 narrative report, Dr. McCoy opined that appellant’s medical care 

had been substandard. He reported, “Given the four-year delay in her treatment of the nerve 

 6

 A.M.A., Guides, 436, Table 15-21. 

7 Id. at 454, Table 15-26. 

8 Id. at 406, Table 15-7. 

9 Id. at 408, Table 15-8. 

10 Id. at 410, Table 15-9. 
6

damage to her nervous system secondary to cervical cord compression has left her with some 

permanent residuals of pain, numbness, tingling, and weakness in her arms and legs.” 

Dr. McCoy noted that appellant’s symptoms continued due to the delay in her accurate diagnosis 

of cervical disc herniation with radiculopathy. He opined that her diagnosed cervical condition 

was solely due to her work activities. 

On December 20, 2011 OWCP denied modification of its June 28, 2011 decision which 

found that appellant had not submitted sufficient medical opinion evidence to establish a 

recurrence of disability on May 27, 2010 due to her August 8, 2006 claim accepted for right 

carpal tunnel syndrome, ganglion cyst, and RSD. 

OWCP hearing representative issued a decision on January 10, 2012 finding that 

appellant had no more than 26 percent impairment of her right upper extremity for which she had 

received a schedule award. 

Appellant appealed OWCP’s December 20, 2011 and January 10, 2012 decisions in 

OWCP File No. xxxxxx758 to the Board. The Board assigned Docket No. 12-1061. 

Counsel requested reconsideration of appellant’s cervical claim, OWCP File No. 

xxxxxx072, on March 22, 2012 based on Dr. McCoy’s October 3, 2011 report. 

By decision dated April 11, 2012, OWCP denied modification of the January 12, 2011 

cervical decision. 

Dr. Rosen continued to provide a series of bilateral transforaminal injections throughout 

2012 to treat appellant’s brachial plexitis and persistent pain and radiculitis following cervical 

fusion. On August 21, 2012 Dr. McCoy reported appellant’s neck and right upper extremity 

pain. He found continued weakness in the right upper extremity with limited grip, pinch, and 

apposition strength. Dr. McCoy diagnosed right carpal tunnel syndrome on September 19, 2012. 

In a note dated December 18, 2012, he repeated his diagnosis and added right sciatic RSD. 

Appellant underwent a magnetic resonance imaging (MRI) scan on November 6, 2012 

which demonstrated her cervical fusion at C5-6 and disc protrusions at C4-5 and C6-7. On 

November 9, 2012 Dr. Rosen reported that appellant did well following her cervical fusion in 

January 2010, but requested treatment on May 8, 2012 following a motor vehicle accident in 

June 2010. He diagnosed a new disc herniation at C6-7 and sympathetically mediated pain. 

On November 26, 2012 the Board issued an Order Remanding Case11 finding that 

appellant’s cervical condition and upper extremity condition claims should be combined and that 

OWCP should issue de novo decisions on the issues of recurrence of disability and permanent 

impairment. 

Upon return of the case record, OWCP combined the claims, with OWCP File No. 

xxxxxx758 as the master file, and undertook further development. 

 11 Docket No. 12-1061 (issued November 26, 2012). 
7

By decision dated February 28, 2013, OWCP denied appellant’s claims for a recurrence 

of disability beginning May 27, 2010 and a schedule award. It found that the medical evidence 

did not establish that appellant had an employment-related disc herniation as Dr. McCoy did not 

implicate specific work duties. OWCP stated that appellant’s claim for an increased schedule 

award was denied as her disc herniation was not an accepted condition. 

Counsel initially requested an oral hearing before an OWCP hearing representative, 

which he changed to a request for a review of the written record on June 24, 2013. 

Dr. McCoy examined appellant on March 19, 2013 and diagnosed carpal tunnel 

syndrome as well as cervical strain/sprain. 

Appellant appealed the April 11, 2012 decision denying her claim for cervical injury to 

the Board on November 2, 2012. In a decision dated May 7, 2013,12 the Board found that 

appellant’s cervical condition claim was not in posture for a decision noting that Drs. McCoy and 

Rosen consistently indicated that appellant sustained an employment-related cervical condition. 

The Board further found that appellant had provided sufficient details of her job activities. The 

Board remanded the case for OWCP to formulate a SOAF and refer appellant for additional 

medical examination. 

Dr. Rosen examined appellant on May 14, 2013 and reported that appellant had an 

anterior cervical fusion from C4-7 in January 2013. He noted that she had pain from herniated 

discs and neuropathic pain consistent with a sympathetically mediated pain syndrome as well as 

a brachial plexus injury. Dr. Rosen also noted that appellant developed increasing back, buttock, 

and leg pain following her June 2010 automobile accident. 

OWCP referred appellant for a second opinion evaluation with Dr. Robert F. Draper, a 

Board-certified orthopedic surgeon on June 12, 2013. In a report dated June 27, 2013, 

Dr. Draper noted that appellant’s current claim was for herniated cervical disc due to her 

employment. He reviewed her job duties, medical treatment, and prior claims. Dr. Draper found 

that appellant exhibited exaggerated responses throughout her physical examination including 

shaking her hands in a nonphysiologic manner. He found that appellant evinced generalized 

diffuse global weakness in all muscles tested which he believed to be exaggerated responses. 

Dr. Draper noted that appellant did not put forth maximum effort for range of motion testing for 

the lumbar spine and demonstrated normal stance and gait. He also found global diffuse 

weakness in all muscles tested in the lower extremities. Dr. Draper found a slightly positive 

Tinel’s sign in the median nerve of the right wrist with no thenar or hypothenar atrophy. 

In regard to appellant’s cervical disc disease, Dr. Draper opined that this condition was 

preexisting and nonemployment related. He reported that this condition was not related to 

appellant’s job functions or employment and was not permanently aggravated by employment 

activities. Dr. Draper opined that appellant’s cervical disc disease was the natural result of the 

aging process. He noted, “I do not conclude that the cervical spine disc pathology and associated 

cervical spine surgeries should be added to the accepted conditions.” Dr. Draper found that 

 12 Docket No. 12-1518 (issued May 7, 2013). 
8

appellant could not perform her date-of-injury position due to her accepted conditions and 

provided work restrictions. 

On August 22, 2013 OWCP issued a decision denying appellant’s claim for an additional 

employment-related cervical condition. It noted that Dr. Draper, the second opinion physician, 

did not support that appellant’s cervical condition was related to her employment. Instead he 

found that appellant had a preexisting, nonemployment-related degenerative disc disease at C4-5, 

C5-6, and C6-7. 

OWCP hearing representative conducted a review of the written record and issued a 

decision on September 9, 2013 vacating OWCP’s decisions on the issues of recurrence of 

disability and increased schedule award, finding that to avoid piecemeal adjudication OWCP 

must first determine whether appellant’s cervical condition was causally related to her 

employment. 

Dr. Rosen continued to provide transforaminal injections. On October 1, 2013 he stated 

that appellant’s right hand pain decreased at least 70 percent. Dr. Rosen diagnosed spreading 

CRPS and recommended surgical reimplantation of her stimulator. 

Appellant requested a hearing of the August 22, 2013 decision. 

By decision dated November 7, 2013, OWCP hearing representative found a conflict of 

medical opinion evidence between Drs. McCoy and Draper and remanded the claim for 

additional development. 

OWCP referred appellant for an impartial medical examination with Dr. Stanley Askin, a 

Board-certified orthopedic surgeon, on February 6, 2014. The record contains the Form ME023, 

appointment schedule notification identifying Dr. Askin as the selected referee dated 

February 6, 2014. There is also documentation that no bypasses were available and that 

Dr. Askin was located 1.69 miles from appellant’s zip code dated February 6, 2014. This 

documentation states, “This report serves as certification that the Medical Management 

application in the integrated Federal Employees’ Compensation System (iFECS) was used to 

schedule this appointment.” 

Dr. Askin submitted a report dated February 26, 2014 and reported that he examined 

appellant and reviewed the SOAF. He noted that appellant stated her June 30, 2010 automobile 

accident resulted in low back pain only. Dr. Askin found no signs of RSD in examination of her 

hands. He stated that appellant was inconsistent in the manner in which she moved, as she 

moved more freely and spontaneously than when directed to do so. Dr. Askin noted that 

appellant offered little effort in muscle testing, but all muscle were contractile. He found no 

muscle spasm in the lower back and noted that appellant reported pain over the entire lower 

portion of her neck, over both trapezii, posterior shoulders, and anterior shoulders. Dr. Askin 

mentioned Dr. McCoy’s March 19, 2013 report. He diagnosed right carpal tunnel syndrome, 

dorsal ganglion cyst right wrist, compartment syndrome of the right upper extremity, benign 

neoplasm, and RSD of the right upper limb. Dr. Askin opined that appellant’s objective 

conditions were degenerative processes that were likely present independent of her employment 

activities. He opined, “It does not make sense to continue to invoke carpal tunnel syndrome as 
9

an explanation of her complaints.” Dr. Askin also opined that appellant’s disc disease was not an 

explanation of her complaints as appellant had undergone surgical treatment with no reduction of 

symptoms. 

Dr. Askin noted that he was to provide an opinion with reasoning as to whether 

appellant’s cervical condition was related to her employment. He stated that it was possible for 

baseline degenerative changes to be provoked by an injury or even by overuse activities, but 

found that these possibilities were not consistent with appellant’s history. Dr. Askin further 

noted that appellant had received treatment for disc disease, but continued to have persistent 

complaints which “should mean that cervical disc disease has been conclusively ruled out as an 

explanation for her complaints notwithstanding any potential attribution to her employment.” He 

found no explanation for a consequential disc disease due to employment or medical treatment. 

Dr. Askin concluded that with respect to physical maladies appellant had fully recovered. 

He noted that appellant had received appropriate treatment for carpal tunnel syndrome, that there 

were no objective signs of RSD, and no manifestation of compartment syndrome. 

By decision dated March 5, 2014, in File No. xxxxxx072, OWCP denied appellant’s 

claim for a cervical condition based on Dr. Askin’s report. It found that she had not established a 

causal relationship between her diagnosed cervical condition and her employment duties. 

In appellant’s claim accepted for right upper extremity injuries, File No. xxxxxx758, 

OWCP issued a second decision on March 10, 2014 finding that, based on Dr. Askin’s report, 

appellant’s cervical condition was not causally related to her employment. It noted that 

Dr. Askin found that appellant’s demonstrated abilities were inconsistent as her range of motion 

was better spontaneously than that demonstrated when tested. OWCP determined that appellant 

had not established a recurrence of disability beginning May 27, 2010. It further found that 

appellant had not established entitlement to an increased schedule award as the condition of disc 

herniation was not accepted as employment related. 

Counsel on March 14, 2014 requested an oral hearing before an OWCP hearing 

representative. 

Appellant underwent reinsertion of her spinal cord stimulator on March 5, 2014 and 

experienced pain relief in her hands and lower extremities. She continued to experience neck 

pain. Dr. Rosen reprogramed her stimulator to provide coverage in her neck, shoulder, arms, 

both legs, and trunk. 

An oral hearing before an OWCP hearing representative took place on June 9, 2014. 

Counsel argued that Dr. Askin’s report was not sufficiently well reasoned to constitute the 

weight of the medical opinion evidence. He referenced Dr. McCoy’s October 3, 2011 report and 

stated that Dr. Askin did not address the issues raised by that report. Counsel stated that 

Dr. Askin did not address a conflict between Drs. Draper and McCoy regarding whether cervical 

disc herniation with right radiculopathy should have been an accepted condition due to the 2004 

occupational disease claim. He asserted that Dr. Askin did not review the relevant reports from 

Dr. McCoy. 
10

In the decision dated July 28, 2014, OWCP hearing representative found that appellant 

had not established a recurrence of disability in 2009 due to increasing neck and upper extremity 

pain as a result of her accepted employment injuries. She affirmed OWCP’s March 10, 2014 

decision in this regard. The hearing representative also found that the March 5, 2014 decision 

denying appellant’s occupational cervical disease claim was correct in finding that Dr. Askin was 

entitled to special weight. She also affirmed the March 10, 2014 denial of an increased schedule 

award based on cervical symptomatology. 

LEGAL PRECEDENT -- ISSUE 1 

 OWCP regulations define an occupational disease as “a condition produced by the work 

environment over a period longer than a single workday or shift.”13 To establish that an injury 

was sustained in the performance of duty in an occupational disease claim, a claimant must 

submit the following: (1) medical evidence establishing the presence or existence of the disease 

or condition for which compensation is claimed; (2) a factual statement identifying employment 

factors alleged to have caused or contributed to the presence or occurrence of the disease or 

condition; and (3) medical evidence establishing that the employment factors identified by the 

claimant were the proximate cause of the condition for which compensation is claimed or, stated 

differently, medical evidence establishing that the diagnosed condition is causally related to the 

employment factors identified by the claimant. The evidence required to establish causal 

relationship is rationalized medical opinion evidence, based upon a complete factual and medical 

background, showing a causal relationship between the claimed condition and identified factors. 

The belief of a claimant that a condition was caused or aggravated by the employment is not 

sufficient to establish causal relation.14

When there are opposing reports of virtually equal weight and rationale, the case will be 

referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides 

that, if there is disagreement between the physician making the examination for the United States 

and the physician of the employee, the Secretary shall appoint a third physician who shall make 

an examination and resolve the conflict of medical evidence.15 This is called a referee 

examination and OWCP will select a physician who is qualified in the appropriate specialty and 

who has no prior connection with the case.16

In situations where there are 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 on a proper 

factual background, must be given special weight.17

 13 20 C.F.R. § 10.5(q). 

14 Lourdes Harris, 45 ECAB 545, 547 (1994). 

15 5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006). 

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

17 Nathan L. Harrell, 41 ECAB 401, 407 (1990). 
11

ANALYSIS -- ISSUE 1 

Appellant alleged that as a result of her employment duties she developed an additional 

cervical spine condition. Dr. Rosen first diagnosed a herniated cervical disc in October 2009. 

Dr. Marcotte attributed appellant’s neck and arm symptoms to disc herniation and cervical spinal 

stenosis in December 2009. Dr. McCoy provided a series of reports attributing appellant’s 

cervical condition to her employment and alleging that her initially diagnosed conditions of 

carpal tunnel syndrome and RSD were misdiagnoses. In the May 7, 2013 decision, the Board 

found that Drs. McCoy and Rosen supported appellant’s claim for an employment-related 

cervical condition and remanded the case for OWCP to undertake further development of the 

medical evidence. 

Following the Board’s decision, OWCP referred appellant for a second opinion 

evaluation with Dr. Draper, who reviewed appellant’s job duties, medical treatment, and 

performed a physical examination. Dr. Draper found that appellant was not reliable in her 

response to testing. He opined that appellant’s cervical condition was preexisting and not related 

to her employment. Dr. Draper concluded that her cervical disc disease was the natural result of 

the aging process. 

The Board finds that there was a conflict of medical opinion evidence between 

appellant’s physicians, Drs. McCoy and Rosen, and the second opinion physician, Dr. Draper, 

regarding the causal relationship of appellant’s cervical disc disease to her employment. Due to 

this conflict of medical evidence, the Board finds that OWCP properly referred appellant to an 

impartial medical examiner to resolve the conflict pursuant to 5 U.S.C. § 8123(a). 

On appeal counsel argues that Dr. Askin was not properly selected to serve as the IME. 

Contrary to counsel’s argument, the Board finds that there is sufficient evidence of record which 

documents that Dr. Askin was selected through the appropriate rotational system to ensure 

against bias and prejudice.18 To select an impartial medical examiner, OWCP uses the Medical 

Management Application (MMA) with a strict rotational feature.19 In this case, it utilized the 

MMA, as evidence by the ME023 form, provided information that no additional physicians were 

selected or bypassed through the MMA, and included documentation that the MMA was used to 

schedule the appointment with Dr. Askin. Therefore the Board finds that Dr. Askin was properly 

selected to serve as IME. 

The Board further finds that Dr. Askin’s February 26, 2014 report is entitled to the 

weight of the medical evidence and does not support appellant’s claim for cervical disc disease 

as a result of her employment duties. Dr. Askin reviewed the statement of accepted facts and 

examined appellant. He found that appellant was inconsistent in the manner in which she 

moved. Dr. Askin opined that appellant’s cervical condition was present independent of her 

employment activities. He noted that, while it was possible for baseline degenerative changes to 

be provoked by overuse activities, this was not consistent with appellant’s history. Dr. Askin 

 18 B.B., Docket No. 14-1575 (issued February 18, 2015). 

19 H.W., Docket No. 14-1319 (issued February 3, 2015); Federal (FECA) Procedure Manual, Part 3 -- Medical, 

OWCP Directed Medical Examinations, Chapter 3.500.6 (May 2013). 
12

also discounted that appellant’s cervical disc disease was responsible for her current 

symptomatology as she had received two surgical treatments for this condition. 

Dr. Askin’s report was based on a proper factual background and included a review of the 

medical evidence. There is no requirement, as posited by counsel, that Dr. Askin list all the 

reports or address all arguments in his report. The Board finds that Dr. Askin’s report was 

consistent with the SOAF. Dr. Askin provided findings on examination and reviewed 

appellant’s diagnoses and treatments. He reported that appellant’s cervical condition was neither 

caused nor aggravated by her employment based on a review of her employment and medical 

history. As Dr. Askin provided a clear opinion discounting a causal relationship between 

appellant’s cervical disc disease and her employment and supported this opinion with medical 

reasoning, the Board finds that this report is entitled to the special weight of the medical 

evidence and does not support appellant’s claim for cervical disc disease resulting from her 

employment. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

LEGAL PRECEDENT -- ISSUE 2 

A recurrence of disability means an inability to work after an employee has returned to 

work, caused by a spontaneous change in a medical condition which had resulted from a 

previous injury or illness without an intervening injury or new exposure to the work environment 

that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his 

or her work-related injury or illness is withdrawn or when the physical requirements of such an 

assignment are altered so that they exceed his or her established physical limitations.20

 When an employee, who is disabled from the job he or she held when injured on account 

of employment-related residuals, returns to a light-duty position or the medical evidence of 

record establish that he or she can perform the light-duty position, the employee has the burden 

to establish by the weight of the reliable, probative, and substantial evidence a recurrence of total 

disability and show that he or she cannot perform such light duty. As part of this burden, the 

employee must show a change in the nature and extent of the injury-related condition or a change 

in the nature and extent of the light-duty requirements.21 This burden includes the necessity of 

furnishing medical evidence from a physician who, on the basis of a complete and accurate 

factual and medical history, concludes that the disabling condition is causally related to 

employment factors and supports that conclusion with sound medical reasoning.22

 20 20 C.F.R. § 10.5(x). 

21 Terry R. Hedman, 38 ECAB 222 (1986). 

22 See Nicolea Bruso, 33 ECAB 1138, 1140 (1982). 
13

ANALYSIS -- ISSUE 2 

Appellant returned to light-duty work on January 24, 2008 following her August 8, 2006 

occupational disease claim accepted for right carpal tunnel syndrome, dorsal ganglion cyst right 

wrist, as well as RSD of the right upper extremity. She filed a recurrence of disability on 

September 16, 2010 alleging that beginning on May 27, 2010 she was totally disabled due to 

these conditions. 

Dr. Marcotte surgically removed appellant’s spinal cord stimulator on May 28, 2010. In 

a note dated June 30, 2010, he stated that appellant’s neck and arm pain had improved, but that 

she continued to experience residual pain in her neck and hands. Dr. Marcotte stated that the 

origin of appellant’s symptoms was unclear. His report does not support a recurrence of total 

disability due to appellant’s accepted employment-related injuries. Dr. Marcotte did not opine 

that appellant was totally disabled and did not offer any reasoning relating her condition or 

disability to her work. 

On June 30, 2010 appellant was involved in a rear-end collision in an automobile which 

resulted in cervical strain according to Dr. Marcotte. Dr. Cohen reported appellant’s automobile 

accident and diagnosed bilateral C6-7 radiculopathy, cervical strain, lumbar strain, and posttraumatic cephalgia. Dr. Kelman reported that appellant’s symptoms were improving until her 

June 30, 2010 automobile accident. He diagnosed post-traumatic exacerbation of bilateral 

cervical radiculopathy, cervical strain, bilateral shoulder tendinitis, and lumbar radiculopathy as 

a result of this accident. The reports from Drs. Marcotte, Cohen, and Kelman do not support that 

appellant sustained a spontaneous change in a medical condition which had resulted from a 

previous injury or illness without an intervening injury. Instead Drs. Kelman, Marcotte, and 

Cohen attribute the change in appellant’s condition after June 30, 2010 to her nonemploymentrelated automobile accident and resulting injuries. 

Counsel argued that appellant’s recurrence of disability beginning on May 27, 2010 was 

the result of Dr. Marcotte’s surgical removal of her spinal cord stimulator. The record does not 

contain any medical evidence in support of this argument and counsel’s opinion is not medical 

evidence and so it is insufficient to meet appellant’s burden of proof in establishing a recurrence 

of disability. 

Appellant also sought treatment from Dr. Fagan, a chiropractor, beginning 

September 21, 2010. Under FECA a chiropractor is a physician only to the extent that the 

reimbursable services are limited to treatment consisting of manual manipulation of the spine to 

correct a subluxation as demonstrated by x-ray to exist.23 Appellant’s chiropractic records from 

Dr. Fagan did not provide x-rays demonstrating a subluxation of the spine. Accordingly, the 

Board finds that these reports are not considered probative medical evidence and cannot establish 

 23 Section 8101(2) of FECA provide as follows: (2) “physician” includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners with the scope of their practice as defined 

by State law. The term physician includes chiropractors only to the extent that their reimbursable services are 

limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by 

x-ray to exist and subject to regulation by the Secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988); P.R., 

Docket No. 14-1007 (issued August 13, 2014). 
14

a recurrence of disability. The Board therefore finds that appellant has not met her burden of 

proof to establish that beginning on May 27, 2010 she was totally disabled due to these 

conditions. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

LEGAL PRECEDENT -- ISSUE 3 

The schedule award provision of FECA24 and its implementing regulations25 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment for 

the loss of use of scheduled members or functions of the body. FECA, however, does not 

specify the manner in which the percentage loss of a member shall be determined. The method 

used in making such determination is a matter which rests in the discretion of OWCP. For 

consistent results and to ensure equal justice, the Board has authorized the use of a single set of 

tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the 

degree of permanent impairment according to the standards set forth in the specified edition of 

the A.M.A., Guides.

26

Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table 

15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.27 In 

Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the categories 

functional history, physical examination, and clinical studies. The grade modifier levels are 

averaged to arrive at the appropriate overall grade modifier level and to identify a default rating 

value. The default rating value may be modified up or down by one percent based on functional 

scale, an assessment of impact on daily living activities.28

The A.M.A., Guides provide specific guidelines for an impairment rating to the upper 

extremities from CPRS including RSD. The diagnosis of CRPS must be confirmed based on the 

diagnostic criteria provided in Table 15-24.29 If the diagnosis is confirmed, the number of 

objective diagnostic criteria points is determined under Table 15-25.30 The impairment is then 

 24 5 U.S.C. §§ 8101-8193, 8107. 

25 20 C.F.R. § 10.404. 

26 For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides. 

A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and 

Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -- 

Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

27 A.M.A., Guides 449, Table 15-23. 

28 A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the 

function scale score. A.M.A., Guides 448-49. 

29 A.M.A., Guides 453, Table 15-24. 

30 Id. at Table 15-25. 
15

calculated using Table 15-26 for the arms.31 The default value is adjusted in accord with grade 

modifiers for functional history, physical examination, and clinical studies. The rating for CRPS 

is not combined with any other impairment for the same extremity.32

ANALYSIS -- ISSUE 3 

On April 30, 2009 OWCP granted appellant a schedule award for 26 percent impairment 

of the right upper extremity under the fifth edition of the A.M.A., Guides based on her accepted 

employment injuries of right carpal tunnel syndrome, RSD and dorsal ganglion on the right. On 

March 22, 2011 the Board remanded the case for OWCP to apply the proper edition of the 

A.M.A., Guides. 

By decision dated July 18, 2011, OWCP found that appellant had 20 percent impairment 

of the right upper extremity. On November 26, 2012 the Board issued a second Order 

Remanding Case33 finding that appellant’s cervical condition and upper extremity condition 

claims should be combined and that OWCP should issue de novo decisions on the issues of 

recurrence of disability and increased schedule award. Following the Board’s directives, OWCP 

and its hearing representatives issued decisions on March 10 and July 28, 2014 respectively, 

finding that appellant was not entitled to an increased schedule award based on cervical 

symptomatology. 

As previously found, the Board notes that appellant has not established that she sustained 

an additional cervical disc condition as a result of her accepted employment duties. Therefore, 

appellant is not entitled to a schedule award for this condition on these grounds. She would also 

be entitled to a schedule award for impairment to her upper extremity for her cervical condition 

if it was a preexisting condition.34 The record does not establish that appellant’s cervical 

condition was preexisting such that any impairment to her extremities as a result of this condition 

should be included in her impairment rating. Dr. McCoy opined that appellant had no 

preexisting cervical condition prior to her 2006 employment injury, while Dr. Draper suggested 

that appellant’s cervical condition was age related and thus did not preexist her 2006 

occupational disease claim. 

OWCP’s medical adviser reviewed appellant’s schedule award claim on July 5, 2011 and 

evaluated the accepted conditions of carpal tunnel syndrome and RSD. He reviewed the sixth 

edition of the A.M.A., Guides and found a class 2 impairment of the median nerve.35 OWCP 

medical adviser stated that the default value grade C was 17 percent impairment. He did not 

apply the provisions of the A.M.A., Guides specifically related to carpal tunnel syndrome. The 

Board is unable to determine why he based his impairment rating of this condition solely on 

 31 Supra note 7. 

32 Id. at 452. 

33 Docket No. 12-1061 (issued November 26, 2012). 

34 P.M., Docket No. 14-1437 (issued December 18, 2014). 

35 A.M.A., Guides 436, Table 15-21. 
16

Table 15-21, Peripheral Nerve Impairment, rather than applying the Entrapment Neuropathy 

provisions as recommended by the A.M.A., Guides.

36 Therefore, the medical adviser did not 

appropriately evaluate appellant’s right carpal tunnel syndrome in accordance with the A.M.A., 

Guides. 

OWCP’s medical adviser also found that appellant’s RSD was class 2, moderate, grade C 

with a default value of 20 percent.37 He found that appellant had grade modifier 2 for functional 

history,38 physical examination,39 and clinical studies.40 The medical adviser concluded that 

appellant had 20 percent impairment of the right upper extremity. 

The Board notes that the medical adviser did not provide the specific diagnostic criteria 

for RSD requested by the A.M.A., Guides, and did not determine the number of objective 

diagnostic criteria points for this condition as required by the A.M.A., Guides. The Board is 

unable to apply the appropriate Table 15-26, CRPS: Upper Extremity Impairments, to OWCP 

medical adviser’s findings and determine whether he reached an accurate permanent impairment 

calculation.41 The Board therefore finds that the extent of appellant’s permanent impairment is 

not in posture for decision. 

On remand, OWCP should request a proper application of the delineated provisions of 

the A.M.A., Guides and issue a de novo decision regarding appellant’s permanent impairment for 

schedule award purposes. 

CONCLUSION 

The Board finds that appellant has not established that she developed cervical disc 

disease as a result of her accepted employment injury. The Board further finds that appellant has 

not established that she sustained a recurrence of disability on or after May 27, 2010 due to her 

accepted employment injuries. The Board also finds that further development of the medical 

evidence is necessary to determine appellant’s permanent impairment for schedule award 

purposes. 

 36 Id. at 432, 440, Table 15-23. 

37 Supra note 7. 

38 Id. at 408, Table 15-7. 

39 Id. at 410, Table 15-8. 

40 Supra note 10. 

41 T.J., Docket No. 13-751 (issued July 3, 2013); W.B., Docket No. 11-088 (issued January 9, 2012). 
17

ORDER 

IT IS HEREBY ORDERED THAT the July 28, 2014 decision of Office of Workers’ 

Compensation Programs is affirmed in part and remanded in part consistent with this decision of 

the Board. 

Issued: August 5, 2015 

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