United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, METROPOLITAN
DETENTION CENTER, Brooklyn, NY,
Employer
__________________________________________

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

Docket No. 21-1265
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On August 19, 2021 appellant, through counsel, filed a timely appeal from a July 2, 2021
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 to consider 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than eight
percent permanent impairment of his left small finger for which he previously received a schedule
award.
FACTUAL HISTORY
On March 7, 2017 appellant, then a 47-year-old material handler supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on February 26, 2017 he injured the left side of
his body and broke his left small finger when attempting to move a loaded laundry cart which
tipped over causing him to fall while in the performance of duty. He stopped work on February 26,
2017 and returned to work on March 7, 2017. On October 15, 2018 OWCP accepted the claim for
nondisplaced closed fracture of the distal phalanx of the left little finger and mallet finger of the
left little finger.
On July 13, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In support of his claim, appellant provided an August 3, 2017 report from Dr. John C.
L’Insalata, a Board-certified orthopedic surgeon. Dr. L’Insalata described his history of injury on
February 26, 2017 and diagnosed fracture of the distal phalanx of the left small finger with a bony
mallet component. On physical examination he found prominence over the dorsal aspect of the
distal interphalangeal (DIP) joint of the left small finger, lacking about two degrees of full
extension of the DIP joint, and 75 degrees of flexion with full strength, and intact sensory and
motor examination.
Dr. L’Insalata referred to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides)3 and utilized the diagnosis-based
impairment (DBI) rating method to find that, under Table 15-2 (Digit Regional Grid), page 392,
the class of diagnosis (CDX) for mallet injury including avulsion fracture was a class 1 impairment,
grade C, with a default value of six percent for the digit. He assigned a grade modifier for
functional history (GMFH) of 2 based on pain symptoms with daily activities per Table 15-7, page
406. Dr. L’Insalata assigned a grade modifier for physical examination (GMPE) of 1 due to mild
decreased range of motion (ROM) of the DIP joint, pursuant to Table 15-8, page 408. He assigned
a grade modifier for clinical studies (GMCS) of 2 for associated intra-articular fracture of the distal
phalanx, which healed with prominence and gapping at the articular surface pursuant to Table 159, page 410. Dr. L’Insalata utilized the net adjustment formula (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX) = (2-1) + (1-1) + (2-1) = +2, which resulted in a grade E or eight percent permanent
impairment of the left small finger, which he converted to one percent permanent impairment of
the left hand and one percent impairment of the left upper extremity, pursuant to Table 15-12, page
421.
On July 12, 2019 Dr. Nathan Hammel, a Board-certified orthopedic surgeon, serving as a
district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and the medical
3

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

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record, including Dr. L’Insalata’s August 3, 2017 findings. He concurred with Dr. L’Insalata’s
findings. Dr. Hammel indicated that the ROM method result could not be applied due to the lack
of triplicate measurements provided by Dr. L’Insalata. He found that the date of MMI was
August 3, 2017, the evaluation date by Dr. L’Insalata.
On October 28, 2020 OWCP requested that the DMA clarify whether the impairment rating
should be for the digit itself or extend into the adjoining area of the member, the hand or upper
extremity. In a November 17, 2020 report, the DMA found that appellant was entitled to eight
percent permanent impairment of his left small finger. He noted that consistent with OWCP
procedures the general loss of less than one digit should be computed in terms of impairments to
the digit itself and that the loss of two or more digits should be computed in terms of impairment
to the whole hand. 4 The DMA found as only one finger was involved the impairment was best
expressed as eight percent impairment of the left small finger.
By decision dated December 11, 2020, OWCP granted appellant a schedule award for eight
percent permanent impairment of his left small finger. The award ran for 1.2 weeks during the
period August 3 to 11, 2017.
On January 4, 2021 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which took place on April 21, 2021.
By decision dated July 2, 2021, the hearing representative affirmed OWCP’s December 11,
2020 decision. She found that the weight of the medical evidence established that appellant had
no greater than eight percent permanent impairment of his left finger for which he previously
received a schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA 5 and its implementing regulations 6 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 to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 7 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved the use
4

Federal (FECA) Procedure Manual, Part 2--Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5.e (March 2017); B.H., Docket No. 16-0252 (issued October 7, 2016); Charles B. Carey, 49 ECAB 528 (1998).
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. See also B.B., Docket No. 20-1187 (issued November 18, 2021); Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Chapter 2.808.5a. (March 2017).

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by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 9
In addressing upper extremity impairments, the sixth edition requires that the evaluator
identify the impairment CDX, which is then adjusted by a GMFH, GMPE, and GMCS. 10 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable. 12 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.13 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable. 14
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.15 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluatio n, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing th e higher
rating should be used.” (Emphasis in the original.)16

9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

A.M.A., Guides 383-492.

11

Id. at 411.

12

Id. at 461.

13

Id. at 473.

14

Id. at 474.

15

FECA Bulletin No. 17-06 (May 8, 2017).

16

A.M.A., Guides 477.

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The Bulletin further advises: “If the rating physician provided an assessment using the
ROM method and the [A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the
DMA should independently calculate impairment using both the ROM and DBI methods and
identify the higher rating for the CE [clams examiner].”17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP 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.18
ANALYSIS
The Board finds that this case is not in posture for decision.
In his August 3, 2017 report, Dr. L’Insalata provided one set of passive ROM
measurements for the left small finger. OWCP referred Dr. L’Insalata’s report to Dr. Hammel, its
DMA, who found that appellant had eight percent permanent impairment of the left small finger
under the DBI methodology. Dr. Hammel advised that Dr. L’Insalata’s report did not contain three
complete ROM measurements for the left small finger.
Pursuant to FECA Bulletin No. 17-06, if the ROM method of rating permanent impairment
is allowed, after review of the DBI rating, and the ROM findings are incomplete, the DMA should
advise as to the medical evidence necessary to complete the ROM method of rating if the medical
evidence of record is insufficient to rate appellant’s impairment using ROM. 19
Herein, OWCP did not follow the procedures outlined in FECA Bulletin No. 17-06 after
the DMA advised that the measurements for the left finger were incomplete and there was no
documentation to rate appellant’s permanent impairment utilizing the ROM methodology. 20
On remand OWCP shall obtain the necessary evidence as required under FECA Bulletin
No. 17-06 from Dr. L’Insalata.21 After it obtains the evidence necessary to complete the rating as
described above, the case shall be referred to a DMA to independently calculate impairment to the
left small finger using both ROM and DBI methods and identify the higher rating. 22 If
Dr. L’Insalata does not fully comply with the A.M.A., Guides, OWCP shall refer appellant to a
17

FECA Bulletin No. 17-06 (issued May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G.,
Docket No. 18-0329 (issued July 26, 2018).
18

See supra note 8 at Chapter 2.808.6f. (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

19

J.L., Docket No. 19-1684 (issued November 20, 2020); R.L., Docket No. 19-1793 (issued August 7, 2020); E.P.,
Docket No. 19-1708 (issued April 15, 2020).
20

C.H., Docket No. 20-0529 (issued June 16, 2021); J.L., R.L., id.; C.T., Docket No. 18-1716 (issued
May 16, 2019).
21

J.L., id.; J.S., Docket No. 19-0483 (issued October 10, 2019).

22

See J.L., id.; J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued
September 11, 2018).

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specialist in the appropriate field of medicine for a second opinion evaluation. Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

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

Docket No. 08-1214
Issued: October 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On March 18, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 21, 2007 denying her occupational
disease claim. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained an injury causally related to factors of her federal employment.
FACTUAL HISTORY
On September 26, 2007 appellant, a 45-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she developed back pain as a result of employment
activities. In a statement dated September 19, 2007, she reported that her back began bothering
her two months earlier. Appellant indicated that she became concerned and sought medical
attention when her condition failed to improve even after she took time off from work.

In a letter dated October 4, 2007, the Office informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her to submit details regarding the
employment duties she believed caused or contributed to her claimed condition, as well as a
comprehensive medical report from a treating physician, which contained symptoms, a
diagnosis, and an opinion with an explanation as to the cause of appellant’s diagnosed condition.
The record contains a September 14, 2007 report of an x-ray of the lumbar spine;
September 10, 2007 laboratory test results; and a September 19, 2007 report of a magnetic
resonance imaging (MRI) scan of the lumbar spine. In a report dated September 10, 2007,
Dr. Laura Mirsky, a Board-certified internist, related appellant’s complaints of left back pain and
some shooting pains in her left groin. She noted that appellant’s work duties included lifting
heavy bags. On examination, she found tenderness in the left lower back and negative straight
leg raising. Dr. Mirsky stated that appellant “most likely” had a muscle spasm. In a follow-up
report dated September 17, 2007, she noted that an x-ray of the spine showed “a lot of arthritis.”
In a report dated October 1, 2007, Dr. Thomas D. Hansen, a Board-certified
anesthesiologist, with a specialty in pain medicine, provided a diagnosis of lumbar disc
degeneration at S1. He stated that, for the past two months, appellant had been experiencing leftsided buttock and groin pain, particularly with forward flexion. Dr. Hansen noted that she
worked in a post office, where she performed quite a bit of lifting and forward flexion.
Appellant submitted an undated response to the Office’s October 4, 2007 letter. She
stated that she worked 12-hour days, 5 to 7 days per week. Activities that contributed to her
alleged back condition included constant bending, lifting and reaching.
By decision dated December 21, 2007, the Office denied appellant’s claim on the
grounds that she had not established a causal relationship between the diagnosed condition and
accepted work-related events.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim, including the fact that an injury was
sustained in the performance of duty as alleged,2 and that any disability and/or specific condition
for which compensation is claimed is causally related to the employment injury.3
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
1

5 U.S.C. §§ 8101-8193.

2

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). “When an
employee claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the manner alleged. He
must also establish that such event, incident or exposure caused an injury.” See also 5 U.S.C. § 8101(5) (“injury”
defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (“Occupational disease or Illness” and “Traumatic injury” defined).
3

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

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presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the 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 diagnosed condition is causally related to the employment factors identified by the claimant.4
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to the claimant’s diagnosed
condition. To be of probative value, the opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.5
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish a causal relationship.6
ANALYSIS
The Office accepted that the work-related events occurred as alleged, namely that
appellant’s work activities included lifting, bending and reaching. However, appellant’s claim
was denied on the grounds that she failed to establish that her claimed medical condition was
related to the established events. The Board finds that the medical evidence submitted by
appellant is insufficient to establish that her diagnosed medical condition was caused or
aggravated by factors of her federal employment. Therefore, she has failed to meet her burden of
proof.
On September 10, 2007 Dr. Mirsky related appellant’s complaints of left back pain and
some shooting pains in her left groin. She noted that appellant’s work duties included lifting
heavy bags. On examination, she found tenderness in the left lower back and negative straight
leg raising, and stated that appellant “most likely” had a muscle spasm. In a follow-up report
dated September 17, 2007, she noted that an x-ray of the spine showed “a lot of arthritis.”
Neither report contains a definitive diagnosis, or provides a fully rationalized opinion as to the
cause of appellant’s cervical condition. Therefore, they are of limited probative value.7
Although Dr. Mirsky mentioned that appellant’s work duties included lifting heavy bags, she did
not explain the nature of the relationship between appellant’s back condition and her
employment activities.8

4

Michael R. Shaffer, 55 ECAB 386 (2004). See also Solomon Polen, 51 ECAB 341, 343 (2000).

5

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

6

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 3 at 218.

7

Michael E. Smith, 50 ECAB 313 (1999).

8

Leslie C. Moore, supra note 5.

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In a report dated October 1, 2007, Dr. Hansen diagnosed lumbar disc degeneration at L5S1, and stated that appellant had been experiencing left-sided buttock and groin pain for the past
two months. He noted that appellant worked in a post office, where she performed quite a bit of
lifting and forward flexion. However, Dr. Hansen failed to provide an opinion as to the cause of
her diagnosed condition. He did not sufficiently describe appellant’s job duties, or explain the
medical process through which such duties would have been competent to cause the claimed
condition. For these reasons, Dr. Hansen’s report is of diminished probative value.
The remaining medical evidence of record consists of laboratory reports and reports of
MRIs and x-rays. As they do not contain an opinion as to the cause of appellant’s condition,
these reports are of limited probative value and are insufficient to establish appellant’s claim.9
Appellant expressed her belief that her alleged condition resulted from her duties as a
mail handler. However, the Board has held that the mere fact that a condition manifests itself
during a period of employment does not raise an inference that there is a causal relationship
between the two.10 Neither the fact that the condition became apparent during a period of
employment, nor the belief that the condition was caused or aggravated by employment factors
or incidents, is sufficient to establish causal relationship.11 Causal relationship must be
substantiated by reasoned medical opinion evidence, which appellant must submit. Therefore,
appellant’s belief that her condition was caused by the accepted work activities is not
determinative.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the doctor’s
opinion with medical reasons on the cause of her condition. Appellant failed to do so. As there
is no probative, rationalized medical evidence addressing how appellant’s claimed condition was
caused or aggravated by her employment, she has not met her burden of proof in establishing
that she developed an occupational disease in the performance of duty causally related to factors
of employment.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty.

9

Michael E. Smith, supra note 7.

10

See Joe T. Williams, 44 ECAB 518, 521 (1993).

11

Id.

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ORDER
IT IS HEREBY ORDERED THAT the December 21, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 7, 2008
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SEALIFT COMMAND, Norfolk, VA, Employer
__________________________________________

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

Docket No. 11-1940
Issued: April 16, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 25, 2011 appellant filed a timely appeal from an April 26, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP), which denied his occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational back injury causally related to factors of his federal employment.
FACTUAL HISTORY
On June 11, 2010 appellant, then a 30-year-old boatswain mate, filed an occupational
disease claim alleging a deteriorating L5 disc with bulging as a result of his federal employment.
He related that he had problems with his lower back for the past six years since a 2004 work
1

5 U.S.C. § 8101 et seq.

accident.2 Appellant first realized his current condition was related to his employment duties on
May 30, 2010.
On July 15, 2010 OWCP advised appellant that the evidence submitted was insufficient
to establish his claim and requested additional evidence. It requested detailed information
regarding the activities he believed contributed to his condition and a comprehensive medical
report with a diagnosis, results of examinations and tests and a physician’s opinion with medical
reasons on the cause of his condition.
In support of his claim for occupational disease, appellant submitted a copy of a
February 29, 2004 traumatic injury claim alleging that on February 28, 2004 he sustained a
lumbar strain and experienced low back pain when he was working on the tank deck and slipped
off the ladder after the ship took a roll. He also submitted other documents pertinent to this
accepted 2004 traumatic injury.
In February 29 and March 1, 2004 follow-up examinations, a medical services officer
noted a February 2004 incident at work and stated that appellant felt much better. Examination
revealed full range of motion at his waist with no pain and normal gait. No numbness, weakness,
edema, erythema or ecchymosis was noted. Appellant was authorized to return to limited duty
with no heavy lifting.
Appellant submitted a May 10, 2004 claim for recurrence of disability due to a back
injury on and off since February 28, 2004. He was unable to perform his duties because when he
tried to lift something heavy his back would start to hurt. Appellant related that on April 30,
2004 he woke up and could barely move. His supervisor noted that after the original injury he
was assigned painting and advised to not do hard work.
In a January 4, 2005 injury report, it was noted that appellant hurt his back while lifting
self-contained breathing apparatus (SCBA) bottles in the mid-ship truck tunnel. Appellant also
submitted a January 4, 2005 traumatic injury claim alleging that on that day he sustained a
trapezius muscle strain and experienced back pain as a result of lifting SCBA bottles. OWCP
also accepted this claim for traumatic injury.
In May 1 and 30 and June 2, 2006 medical forms, a physician with an illegible signature
examined appellant for upper and lower back pain and noted a history of tenderness of his
thoracic and lumbar spine. X-rays were negative for fracture and dislocation. Appellant was
diagnosed with thoracic lumbar sprain and was authorized to remain off work until
May 31, 2006.
In a May 30, 2007 employee health record, a medical services officer noted that appellant
suffered from a chronic low back pain condition.
In a June 17, 2010 statement, appellant explained that he was chipping rust on the tank
deck of the USNS Kanawha in February 2004 when the ship took a roll causing the ladder he
2

The record indicates that appellant has accepted claims for injuries sustained on February 28, 2004, January 4,
2005 and March 24, 2007.

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was on to twist and fall from underneath him. He was left hanging from overhead on his safety
harness and felt a sharp pain in his back. In April 2010, appellant woke up around 6:00 and
could barely move due to pain in his lower back. He explained that his back would hurt on and
off over the following months. Around May 2010, appellant’s pain became excruciating and
would shoot down his left leg and into his foot. He was examined by an orthopedic specialist
and diagnosed with a deteriorating bulging disc.
In a June 1, 2010 form report, Dr. Lawrence Donato, an osteopathic physician
specializing in sports medicine, stated a diagnosis of L5-S1 disc bulge v/s a questionable
ruptured disc, prescribed prednisone, naprosyn, physical therapy and recommended that
appellant not work for the next two weeks.
In a June 28, 2010 report, a physician’s assistant stated that on May 30, 2010 appellant
fell while painting and jarred his back by a safety harness. He diagnosed lumbar disc rupture and
checked a box marked “yes” that appellant’s condition was caused or aggravated by an
employment activity.
In an undated statement received on August 16, 2010, appellant expressed his belief that
the injury to his back was a direct result of the February 2004 injury. Over the past six years, his
job required heavy-duty work such as responding to fire drills, wearing self-contained breathing
apparatuses, working on hoses for their stations for underway replenishments, fixing and
maintaining the trolleys and transferring heads on station rigs which took a toll on his back.
Appellant took leave and rested for one to two months at a time to cope with his back pain and
found that he needed longer and longer recuperation time. He related that he was examined by
several physicians over the years but no one accurately diagnosed him with a ruptured disc until
he was seen by an orthopedic specialist this year. Appellant also provided a description of his
employment duties as a boatswain mate.
In a decision dated September 27, 2010, OWCP denied appellant’s occupational disease
claim finding insufficient medical evidence to establish that he sustained a back condition as a
result of his work duties.
On October 26, 2010 appellant submitted a request for an oral hearing, which was held
on February 2, 2011. He stated that he received medical care for his back injury from the
medical services officer at his employing establishment or outside medical care for several years.
The medical providers informed appellant that nothing was broken and that he probably just
pulled a muscle. Appellant stated that he last received medical care for his back on the ship
because he was on a deployment. He described a specific November 23, 2009 incident for which
a Form CA-1 was filed, when he was going down to the helo deck for mustering the clearway
and the ladder well was so damp that he slipped down it. Appellant believed that this incident
reaggravated the lower discs inside his back. The hearing representative reviewed his medical
records and informed him that reports by a physician’s assistant were not sufficient to establish
his claim. Appellant also pointed out that the medical evidence attributed his condition to a 2004
injury, but he claims his injury resulted from the duties he performed for the past six years. He
explained that he returned to regular duties after the 2004 injury without knowledge that his
employment duties contributed to his worsening condition.

3

Following the hearing, appellant submitted an October 26, 2010 report by Dr. Timothy E.
Budorick, a Board-certified orthopedic surgeon, who stated that appellant was recently treated in
his practice by a physician’s assistant and related a history that he suffered from back and leg
symptoms since a 2004 work injury. Dr. Budorick believed that appellant’s long-term symptoms
had evolved and worsened to the point that recent surgery was required. He opined that this was
related to appellant’s prior work experience based on this history obtained.
In an October 26, 2010 work status report, a physician with an illegible signature noted a
diagnosis of lumbar disc herniation.
In an April 12, 2011 report, Dr. Eric Goldberg, a Board-certified neurologist, stated that
appellant sustained a work-related injury due to the physical nature of his job and experienced
significant left low back pain, which prevented him from bending, pushing, pulling and carrying
five pounds occasionally or frequently. Appellant underwent surgery in October 2010.
Dr. Goldberg reported that appellant’s condition was permanent and longstanding in nature and
opined that he was unable to return to work any time soon due to his worsening symptoms. He
noted that a magnetic resonance imaging scan report revealed granulation tissue pushing on the
L5-S1 nerve root.
By decision dated April 26, 2011, an OWCP hearing representative affirmed the
September 27, 2010 decision, finding insufficient medical evidence to establish that appellant
sustained a back condition causally related to his employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative and substantial evidence3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 In an occupational disease claim, appellant’s burden requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008) D.I., 59 ECAB 158 (2007); Ernest
St. Pierre, 51 ECAB 623 (2000).
6

I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658 (issued October 22, 2009).

4

opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
specified employment factors or incident.7 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.8
The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relation. Such a relationship must be
shown by rationalized medical evidence of a causal relation based upon a specific and accurate
history of employment conditions which are alleged to have caused or exacerbated a disabling
condition.9
ANALYSIS
The record reflects that OWCP has accepted that appellant sustained previous back
injuries dating back to February 2004 in the performance of his federal employment. Appellant
has submitted evidence that he received medical treatment for his back from 2004 to 2006 and
again in 2009. He further alleged that he has suffered from a continuing back condition since the
2004 incident that was aggravated by his job duties as a boatswain mate. OWCP accepted that
appellant’s duties as a boatswain mate included heavy-duty work, responding to fire drills,
wearing SCBAs, working on hoses, fixing and maintaining trolleys and transferring heads on
station rigs but denied his claim finding insufficient medical evidence to establish that he
sustained a back condition causally related those duties. The Board finds that appellant has
failed to provide sufficient medical evidence to establish that he sustained an occupational back
injury due to factors of his federal employment.
Dr. Donato diagnosed L5-S1 disc bulge or possible ruptured disc on June 1, 2010. He
did not offer any opinion regarding the cause of appellant’s current back condition. Dr. Donato’s
report is therefore of no probative value in establishing causal relationship.
In an October 26, 2010 report, Dr. Budorick noted that appellant was recently examined
in his practice by a physician’s assistant. He related that appellant suffered from back and leg
symptoms since a 2004 work injury and stated that appellant’s long-term symptoms had
worsened to the point that required surgery. Dr. Budorick opined that this was all related to
appellant’s prior work experience from the best that he could determine in reviewing his
situation and documentation. He did not, however, provide a firm diagnosis of appellant’s back
condition. Furthermore, Dr. Budorick related his back symptoms to a 2004 traumatic incident,
not appellant’s work duties, since his accepted traumatic injury. Although he refers to
7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

8

D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007); Solomon Polen, 51 ECAB
341 (2000).
9

Patricia J. Bolleter, 40 ECAB 373 (1988).

5

appellant’s prior work experience, he does not address specific work factors nor fully explain
how appellant’s work activities caused or aggravated any back condition. The Board finds that
Dr. Budorick did not provide a fully-rationalized opinion that explained how appellant’s
particular work factors contributed to or aggravated his condition.10 An accurate description and
explanation of the specific work factors that caused or aggravated appellant’s back symptoms is
especially warranted in this case where the record shows that he sustained several traumatic
injuries from 2004 to 2009.
Similarly, Dr. Goldberg stated in his April 12, 2011 report that appellant sustained a
work-related injury due to the physical nature of his job. He did not, however, address any
specific work factors or explain how those factors were causally related to any back condition.
Accordingly, these reports are insufficient to establish appellant’s claim.
Appellant also submitted several medical reports that were unsigned or bore illegible
signatures. He was examined for upper and lower back pain. The Board has previously held that
reports that are unsigned or that bear illegible signatures cannot be considered as probative
medical evidence because they lack proper identification.11
On appeal and during his hearing, appellant listed specific injuries and contended that
performing his job duties for the past six years worsened his back condition. While he has had
previous traumatic injury claims accepted for back injury, he has not submitted sufficient
medical evidence to establish that continued work duties worsened his back condition to cause
occupational injury. The Board has held that the mere fact that a condition manifests itself
during a period of employment does not raise an inference that there is a causal relationship
between the two.12 Neither the fact that the condition became apparent during a period of
employment nor the belief that the condition was caused or aggravated by employment factors is
sufficient to establish causal relationship.13 Causal relationship can only be shown by reasoned
medical opinion evidence, which appellant has not provided. As appellant has not provided such
rationalized medical opinion in this case, he has failed to meet his burden to proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an occupational back injury causally related to factors of his federal employment.

10

See J.C., Docket No. 11-532 (issued December 21, 2011).

11

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004); Merton J. Sills, 39 ECAB
572 (1988).
12

Roy L. Humphrey, 57 ECAB 238, 242 (2005).

13

Id; see also Joe T. Williams, 44 ECAB 518, 521 (1993).

6

ORDER
IT IS HEREBY ORDERED THAT the April 26, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 16, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Plains, NY, Employer
__________________________________________

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

Docket No. 08-1945
Issued: April 8, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 7, 2008 appellant filed a timely appeal from a February 1, 2008 decision of the
Office of Workers’ Compensation Programs concerning his schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the schedule award
claim.
ISSUE
The issue is whether appellant has greater than seven percent left lower extremity
impairment, for which he received a schedule award. On appeal, he notes that he was previously
awarded three percent impairment for pain which should have been added to the schedule award
determination as different impairment evaluation methods were used.
FACTUAL HISTORY
On June 8, 2002 appellant, then a 36-year-old letter carrier, filed an occupational disease
claim alleging that he sustained an injury to his left heel and arch while in the performance of
duty. The Office accepted the claim for left plantar fasciitis and calcaneus spur. On

February 17, 2004 appellant began employment as a paralegal with a law firm. By decision
dated May 6, 2004, the Office determined that his paralegal position fairly and reasonably
represented his wage-earning capacity.
Appellant requested a schedule award. In a September 26, 2005 report, Dr. Steven R.
Small, an orthopedic surgeon, described appellant’s physical condition and advised that he had
reached maximum medical improvement “a couple of years ago.” He found that he had a 15
percent impairment of the left lower extremity. On November 8, 2005 an Office medical adviser
opined that appellant had three percent impairment of the left lower extremity under Chapter 18
of the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).
By decision dated November 16, 2005, the Office granted appellant a schedule award for
a three percent impairment of the left lower extremity. The period of the award ran from
September 26 to November 25, 2005 for a total of 9.36 weeks of compensation.
By decision dated January 20, 2006, an Office hearing representative set aside the
November 16, 2005 decision and remanded the case for further development. He found that the
Office medical adviser did not provide rationale for rating three percent impairment for pain
under Chapter 18. Following clarification from its Office medical adviser, on February 23, 2006
appellant was found to have no more than three percent impairment of the left leg. On
August 30, 2006 an Office hearing representative affirmed the February 23, 2006 schedule
award. By decision dated January 26, 2007, the Office denied appellant’s request for
reconsideration.
On May 1, 2007 the Office received appellant’s request for reconsideration. Appellant
submitted an October 12, 2006 report from Dr. Samuel A. Hoisington, a Board-certified
orthopedic surgeon, who noted that appellant had significant left heel pain. Dr. Hoisington
provided an impression of left plantar fasciitis, left ankle dorsiflexion tightness, and mild left leg
calf atrophy and provided impairment testing, which included range of motion measurements.
He noted that there was a loss of dorsiflexion of the left ankle, which measured three degrees.
Dr. Hoisington also found a left calf atrophy of one centimeter on the right side. He opined that
appellant had 10 percent impairment to his left lower extremity under the federal guidelines for
permanent impairment.
On July 20, 2007 the Office asked that an Office medical adviser assess the percentage of
permanent impairment to appellant’s left leg. In a July 28, 2007 report, Dr. Morley Slutsky, the
medical adviser, advised that appellant reached maximum medical improvement on
October 12, 2006. Based on Dr. Hoisington’s examination, Dr. Slutsky found that appellant had
a seven percent left lower extremity impairment. Under Table 17-11, page 537 of the A.M.A.,
Guides, three degrees of extension/dorsiflexion equaled seven percent lower extremity
impairment. Dr. Slutsky also noted that, under Table 17-6, page 530 of the A.M.A., Guides, one
centimeter calf atrophy equaled three percent lower extremity impairment. However, under the
cross-usage chart at Table 17-2, page 526, the left calf atrophy and ankle range of motion
impairments could not be combined. Dr. Slutsky advised that, in the case where impairment
methods could not be combined, the impairment rating was based on the single largest

2

impairment method. He found the largest impairment was the seven percent left lower extremity
impairment based on loss of ankle range of motion.
By decisions dated July 30, 2007, the Office found appellant was entitled to an additional
schedule award of four percent for the left lower extremity. As appellant had already received a
three percent award, the Office granted an additional award of four percent left lower extremity
impairment. The period of the award ran from October 12 to December 31, 2006 for a total of
11.52 weeks of compensation.
On October 9, 2007 appellant requested reconsideration. He advised that he was married
and had a dependent and was entitled to compensation at the augmented compensation rate of 75
percent, as was previously awarded. Appellant noted that the prior award was for pain and
contended that, under Chapter 18, he should be rated for pain in addition to the seven percent
impairment rating for loss of use. He also questioned the use of Table 17-2 of the A.M.A.,
Guides. Appellant also contended that his foot was limited in loss of plantar flexion which was
the same motion of extension (dorsiflexion) but in the opposite direction. He opined that, under
Table 17-11, of the A.M.A., Guides, he was entitled to an award of an additional seven percent
loss for this loss in range of motion.
By decision dated October 10, 2007, the Office found that appellant’s schedule award
should have been paid at the augmented compensation rate of 75 percent. It noted that appellant
received $6,531.84 but should have been paid $7,344.00 for the period October 12 to
December 31, 2006. The Office paid the difference of $812.16 owed appellant.
On January 15, 2008 the Office requested that the medical adviser clarify whether the
medical evidence established greater impairment. In a January 24, 2008 report, Dr. Slutsky
advised that, based on the information presented, he was unable to rate appellant for pain
associated dysfunction.1 He further noted that pain impairments were added and were separate
from Table 17-2, which discusses the appropriate combination for the lower extremity
impairment methods. Dr. Slutsky advised that appellant was in error in contending that loss of
range of motion in the ankle in one direction would mean limited range of motion in another
direction. He advised that the muscles and nerve innervations which produce active range of
motion in one direction may be totally different than the muscles and nerves which innervate
range of motion in other directions. Additionally, all motion using those structures is not
affected equally. Dr. Slutsky advised that appellant see a treating physician for ankle range of
motion measurements. He further noted that Dr. Hoisington assigned 10 percent left lower
extremity impairment without documenting his calculations or providing any explanation as to
how he arrived at that rating. Dr. Slutsky reiterated that the medical evidence documented three
percent impairment for left calf atrophy and seven percent impairment for loss of ankle
dorsiflexion based on Dr. Hoisington’s physical examination. However, since Table 17-2 of the
A.M.A., Guides did not allow these two impairment methods to be combined, the largest
impairment (seven percent left lower extremity impairment for loss of ankle dorsiflexion) was
the final left lower extremity rating.

1

Dr. Slutsky stated that appellant could obtain a formal pain assessment from his treating physician.

3

By decision dated February 1, 2008, the Office found that appellant had not established
that he had more than seven percent impairment of the left lower extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 provides
for compensation to employees sustaining impairment from loss or loss of use of specified
members of the body. The Act, 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 sound discretion of the Office. 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. The A.M.A., Guides has been adopted by the
Office as a standard for evaluation of schedule losses and the Board has concurred in such
adoption.3 As of February 1, 2001, schedule awards are calculated according to the fifth edition
of the A.M.A., Guides.4
The standards for evaluating the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.5 Chapter 17 of
the A.M.A., Guides sets forth the grading schemes and procedures for evaluating impairments of
the lower extremities.6
Section 18.3b provides that pain-related impairment should not be used if the condition
can be adequately rated under another section of the A.M.A., Guides. Office procedures provide
that, if the conventional impairment adequately encompasses the burden produced by pain, the
formal impairment rating is determined by the appropriate section of the A.M.A., Guides.7
Office procedures further provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.8

2

5 U.S.C. §§ 8101-8193.

3

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

4

A.S., 58 ECAB ___ (Docket No. 06-1613, issued November 29, 2006). See FECA Bulletin No. 01-05 (issued
January 29, 2001).
5

See Paul A. Toms, 38 ECAB 403 (1987).

6

A.M.A. Guides 523-61, (5th ed. 2001) Chapter 17, The Lower Extremities.

7

Id. at 573, 588; Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit
4 (June 2003); see Richard B. Myles, 54 ECAB 379 (2003).
8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

4

ANALYSIS
In the present case, the Office originally granted appellant a schedule award for three
percent impairment to the left lower extremity for pain. Appellant subsequently submitted
medical evidence from Dr. Hoisington, who found 10 percent left lower extremity impairment.
However, Dr. Hoisington did not provide adequate findings on physical examination to support
the impairment rating or as to how he arrived at that estimate. It is well established that, when an
impairment rating by the examining physician does not conform to the protocols of the A.M.A.,
Guides, the Office may rely on the rating provided by the Office medical adviser.9
Dr. Slutsky found appellant had seven percent left lower extremity impairment based on
loss of range of motion of the left ankle. Under Table 17-11, page 537, three degrees of
extension/dorsiflexion is seven percent lower extremity impairment. Under Table 17-6, page
530, one centimeter calf atrophy equaled three percent lower extremity impairment. Dr. Slutsky
properly utilized Table 17-2, page 526 of the A.M.A., Guides, to rate impairment on the larger
loss. Under Table 17-2, page 562, he properly noted that left calf atrophy and ankle extension
range of motion deficits could not be combined. As more than one impairment method can be
used, the method that provides the higher rating should be adopted.10 In this case, appellant’s
ankle loss of motion allows seven percent impairment. While appellant contends he should also
be awarded for loss in plantar flexion, Dr. Slutsky properly determined that there were no
examination findings to support such an award. He advised that loss of range of motion in one
direction does not necessitate an equal loss in the opposite direction. Thus, Dr. Slutsky’s opinion
supports seven percent left lower extremity impairment based on loss of ankle extension range of
motion.
Dr. Slutsky also noted that he was unable to rate appellant for pain associated
dysfunction. While Dr. Hoisington noted that appellant had significant left heel pain, he did not
address whether a pain-related impairment was warranted or necessary. Thus, his report does not
provide a sufficient basis to rate pain under Chapter 17. Additionally, a review of the medical
evidence of record establishes that no physician provided any explanation to support a Chapter
18 pain rating. Thus, the Office medical adviser properly found no basis on which to attribute
additional impairment to pain.
The medical evidence establishes that appellant has no more than seven percent
permanent impairment to the left lower extremity for which he has received a schedule award.
In issuing the July 30, 2007 schedule award the Office properly subtracted the prior schedule
award of three percent impairment. There is no medical evidence in conformance with the
A.M.A., Guides to support any greater permanent impairment.

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3 (October 1990).
See also Tommy R. Martin, 56 ECAB 273 (2005).
10

See A.M.A., Guides 527.

5

CONCLUSION
The Board finds that appellant did not establish that he has more than seven percent
permanent impairment to the left lower extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2008 and July 30, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 8, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sag Harbor, NY, Employer
__________________________________________

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

Docket No. 17-0751
Issued: July 12, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 17, 2017 appellant, through counsel, filed a timely appeal from a
November 22, 2016 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.

ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability on or after February 3, 2016 causally related to her accepted employment
injury.
FACTUAL HISTORY
On March 6, 2014 appellant, then a 50-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained an occupational disease of her left thumb
in the form of basal joint instability caused by sorting and delivering mail over time. She
indicated that she first became aware of her claimed condition on March 3, 2014 and first
realized on March 6, 2014 that it was caused or aggravated by factors of her federal employment.
Appellant did not stop work around the time she filed her occupational disease claim.
On March 24, 2014 OWCP accepted that appellant sustained localized primary
osteoarthritis of her left hand.
Appellant stopped work on September 24, 2015 and, on that date, Dr. Steven Puopolo, an
attending Board-certified orthopedic surgeon, performed OWCP-authorized left thumb surgery,
including excision of trapezium, ligament reconstruction and tendon interposition utilizing
autograft, and extensor pollicis brevis to abductor pollicis longus tendon transfer.
OWCP paid appellant disability compensation on the daily roll from September 24 to
December 18, 2015.
In a December 11, 2015 duty status report (Form CA-17), Dr. Puopolo provided various
work restrictions, including lifting no more than 15 pounds and engaging in pushing or pulling
for no more than four hours per day.
On December 18, 2015 appellant returned to work full time as a modified rural carrier.
The limited-duty assignment involved casing mail for one to three hours per day and delivering
mail for one to four hours per day. The physical requirements of the position included lifting,
carrying, pushing, and pulling 10 to 15 pounds for one to four hours per day; sitting, standing,
walking, and twisting for one to eight hours per day; and bending, stooping, and driving a
vehicle for one to eight hours per day.
In a January 27, 2016 initial consultation report, Dr. Teresa Habacker, an attending
Board-certified hand surgeon, noted that appellant reported injuring her left thumb at work two
years prior. Appellant described her job as involving driving and sorting/delivering mail, and
she complained of intermittent shooting pain in her right thumb and the palmar side base of her
right hand.
Dr. Habacker noted that, upon physical examination, appellant exhibited
tenderness/pain at the base of the left thumb, but indicated that both of her hands and thumbs had
full range of motion, that sensation was intact, and that there was no erythema and minimal
edema. She diagnosed primary osteoarthritis of the left hand and degenerative joint disease of
the left basal joint, and she advised that she was considering “the possibility of three issues,”
namely carpal tunnel syndrome, trigger thumb, or neuroma, the last condition being the least

2

likely possibility. Dr. Habacker recommended that appellant undergo electromyogram (EMG)
and nerve conduction study (NCS). She indicated that appellant should not use her left hand.
In a January 27, 2016 attending physician’s report (Form CA-20), Dr. Habacker listed the
date of injury as March 3, 2014, diagnosed primary osteoarthritis of the left hand and
degenerative joint disease of the left basal joint, and checked a box marked “yes” indicating the
diagnosed conditions were due to the employment activity.3 She indicated that appellant was
totally disabled from January 27, 2016 until her follow-up appointment. In a January 27, 2016
form entitled “Work Capacity Evaluation Musculoskeletal Conditions” (Form OWCP-5c),
Dr. Habacker indicated that appellant could not perform her usual work and could only perform
work that did not require use of her left hand.
Appellant stopped work on February 3, 2016, and she filed a claim for a recurrence of
disability (Form CA-2a) on February 5, 2016 claiming a recurrence of total disability beginning
February 3, 2016 due to her accepted employment injury.4
In a February 22, 2016 report, Dr. Habacker reported examination findings of no
erythema/edema, less than full left thumb abduction, and tenderness at the thenar eminence of
the left thumb base and along the September 24, 2015 surgery incision site. She indicated that
recent EMG and NCS showed very mild carpal tunnel syndrome and she diagnosed carpal tunnel
syndrome of the left upper limb, primary osteoarthritis of the left hand, and degenerative joint
disease of the left basal joint. Dr. Habacker posited that the left carpal tunnel syndrome was
caused and exacerbated by the swelling associated with the degenerative joint disease of the left
thumb. She indicated that appellant could not use her left hand.
The record contains physical therapy records from March 2016 in which appellant
complained to her therapist of sharp, shooting pains which randomly occurred in both of her
thumbs, even when she was resting.
By letter dated March 15, 2016, OWCP requested that appellant submit additional factual
and medical evidence in support of her claim for recurrence of disability.
In response, OWCP received appellant’s April 1, 2016 narrative statement in which she
asserted that she stopped work on February 3, 2016 because there was no modified work
available within the limitations provided by Dr. Habacker. Appellant noted her belief that her
claimed disability was work related because her pain never went away.
OWCP also received a March 14, 2016 medical report from Dr. Habacker, who noted
examination findings of no erythema/edema, bilateral deformity of the small fingers, scaphoid
tubercle tenderness, and normal thumb range of motion. There was a positive Finkelstein’s test
in the left wrist, but sensation was reported as intact. Dr. Habacker diagnosed left wrist pain,
carpal tunnel syndrome of the left upper limb, primary osteoarthritis of the left hand, and
3

Dr. Habacker did not describe any employment activity on the form.

4

Appellant actually listed the date of recurrence of total disability as January 3, 2016, but the employing
establishment indicated that appellant did not stop work until February 3, 2016.

3

degenerative joint disease of the left basal joint. She recommended a magnetic resonance
imaging (MRI) scan to rule out ganglion cyst at the left wrist and indicated that appellant could
not use her left hand. In a March 23, 2016 Form CA-17, Dr. Habacker listed the date of injury as
September 24, 2015 and indicated that appellant could not use her left hand. In an undated
attending physician’s report (Form CA-20), she listed the date of injury as March 3, 2014 and
diagnosed primary osteoarthritis of the left hand and left carpal tunnel syndrome “causally
related to the injury.”
The findings of the April 20, 2016 testing of appellant’s left wrist revealed postsurgical
changes and small joint effusions.
By decision dated May 19, 2016, OWCP denied appellant’s claim for a work-related
recurrence of disability on or after February 3, 2016. It found that appellant had not established
a work stoppage on or after February 3, 2016 due to a spontaneous change, without an
intervening cause, in the accepted condition of localized primary osteoarthritis of the left hand.5
OWCP indicated that the record did not contain a rationalized medical opinion explaining how
the accepted work-related condition worsened to the point that appellant was further disabled.
Additionally, it noted that Dr. Habacker had not explained how appellant’s diagnosed left carpal
tunnel syndrome was related to the accepted condition of localized primary osteoarthritis of the
left hand.
Appellant disagreed with the May 19, 2016 decision and requested a review of the
written record by a representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a February 17, 2016 report of EMG and NCS which contained an
impression of very mild left median neuropathy at the wrist.
In a report dated June 8, 2016, Dr. Habacker indicated that, upon physical examination,
the Tinel’s sign was negative for appellant’s left wrist. She included a diagnosis of left carpal
tunnel syndrome.
In a report dated June 9, 2016, Dr. Habacker opined that appellant’s disability beginning
February 3, 2016 was work related because she had persistent symptoms even while performing
limited-duty work and there were no other incidents to explain her symptoms. She indicated that
appellant had left carpal tunnel syndrome that “may be precipitated by and/or aggravated by
swelling.” Dr. Habacker found that appellant was 40 percent disabled, that she should limit left
hand usage as tolerated, and that she should refrain from lifting, carrying, pushing, or pulling 25
pounds. She noted that the diagnosis was “left hand/wrist pain [status post] surgery for
aggravated arthritis.”
On June 27, 2016 Dr. Habacker diagnosed primary osteoarthritis of the left hand, left
wrist pain, and Dupuytren’s contracture disease (also known as palmar fascial fibromatosis).

5

OWCP also indicated that appellant had not established a recurrence of disability due to a withdrawal of her
light-duty assignment for reasons other than misconduct, nonperformance of job duties, downsizing, or the existence
of a loss of wage-earning capacity determination.

4

She indicated that the Dupuytren’s contracture disease was caused by the same work that caused
the accepted left thumb arthritis.
In a June 29, 2016 Form CA-20, Dr. Habacker diagnosed Dupuytren’s contracture
disease and primary osteoarthritis and indicated that these conditions were “exacerbated by work
activity.” She found total disability from January 26, 2016 to the present.
In an August 30, 2016 report, Dr. Elizabeth White-Fricker, an attending Board-certified
family practitioner, diagnosed left wrist pain, bone spur, Dupuytren’s contracture disease, and
repetitive strain injury.
In several reports dated between July 18 and October 27, 2016, Dr. Juan Gargiulo, an
attending Board-certified anesthesiologist, diagnosed left hand pain, chronic pain syndrome,
primary osteoarthritis of the left hand, and left carpal tunnel syndrome.
By decision dated November 22, 2016, OWCP’s hearing representative affirmed the
May 19, 2016 decision. She found that appellant had not met her burden of proof to establish a
recurrence of disability on or after February 3, 2016 due to the accepted condition of localized
primary osteoarthritis of the left hand. In reaching this determination, the hearing representative
noted that attending physicians discussed medical conditions which were not accepted as related
to appellant’s localized primary osteoarthritis of the left hand.
LEGAL PRECEDENT
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 resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.6 Recurrence of disability also means an inability to work that takes place
when a light-duty 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 established physical
limitations.7 Generally, a withdrawal of a light-duty assignment would constitute a recurrence of
disability where the evidence established continuing injury-related disability for regular duty.8 A
recurrence of disability does not apply when a light-duty assignment is withdrawn for reasons of
misconduct, nonperformance of job duties, or other downsizing, or where a loss of wage-earning
capacity determination is in place.9
Absent a change or withdrawal of a light-duty assignment, a recurrence of disability
following a return to light duty may be established by showing a change in the nature and extent
6

20 C.F.R. § 10.5(x).

7

Id.

8

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).

9

20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, id. at Chapter 2.1500.2b
(June 2013).

5

of the injury-related condition such that the employee could no longer perform the light-duty
assignment.10
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish that the recurrence is causally related
to the original injury.11 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes that the condition is causally related to the employment
injury.12 The physician’s opinion must be based on a complete and accurate factual and medical
history and supported by sound medical reasoning.13
ANALYSIS
OWCP accepted that appellant’s occupational disease claim for localized primary
osteoarthritis of the left hand. Appellant stopped work on September 24, 2015 and, on the same
date, she underwent OWCP-authorized left thumb surgery, including excision of trapezium,
ligament reconstruction and tendon interposition utilizing autograft, and extensor pollicis brevis
to abductor pollicis longus tendon transfer. She returned to work on December 18, 2015 as a
full-time modified rural carrier with restrictions including lifting, carrying, pushing, and pulling
no more than 15 pounds. Appellant stopped work on February 3, 2016 and claimed a recurrence
of disability beginning that date due to her accepted work condition.
The Board finds that appellant failed to submit sufficient medical evidence to establish a
recurrence of disability on or after February 3, 2016 due to the accepted employment condition
of localized primary osteoarthritis of the left hand.
In reports dated beginning in late-January 2016, Dr. Habacker, an attending physician,
found that appellant had disability from work due to localized primary osteoarthritis of the left
hand. For example, in a January 27, 2016 attending physician’s report, she listed the date of
injury as March 3, 2014, diagnosed primary osteoarthritis of the left hand and degenerative joint
disease of the left basal joint, and checked a box marked “yes” indicating the diagnosed
conditions were due to the employment factors. Dr. Habacker indicated that appellant was
totally disabled from January 27, 2016 until her follow-up appointment in February 2016. The
Board has held that when a physician’s opinion on causal relationship consists only of checking
“yes” in response to a form question, without more by the way of medical rationale, that opinion
has little probative value and is insufficient to establish causal relationship. Appellant’s burden
includes the necessity of furnishing an affirmative opinion from a physician who supports his or
her conclusion with sound medical reasoning.14 Dr. Habacker’s report is of limited probative value
regarding appellant’s recurrence of disability claim because she did not provide any explanation of
10

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

11

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.1500.5 and 2.1500.6.

12

See S.S., 59 ECAB 315, 318-19 (2008).

13

Id. at 319.

14

Lillian M. Jones, 34 ECAB 379, 381 (1982).

6

why appellant’s work-related left hand osteoarthritis rendered her unable to perform her modifiedduty work. She did not describe the work-related condition in any detail or explain the medical
process through which it could cause disability during the claimed period.
In a report dated February 22, 2016, Dr. Habacker reported examination findings of no
erythema/edema, less than full left thumb abduction, and tenderness at the thenar eminence of
the left thumb base and along the September 24, 2015 surgery incision site. She indicated that
recent EMG and NCS testing showed very mild carpal tunnel syndrome and she diagnosed
carpal tunnel syndrome of the left upper limb, and primary osteoarthritis of the left hand.
Dr. Habacker posited that the left carpal tunnel syndrome was caused and exacerbated by the
swelling associated with the degenerative joint disease of the left hand/thumb and suggested that
this condition prevented appellant from using her left hand. However, she did not provide any
explanation of the medical process of how appellant could have developed left carpal tunnel
syndrome from swelling associated with work-related degenerative joint disease of the left
hand/thumb. In addition, the basis for the statement that appellant had left hand swelling is
unclear as Dr. Habacker repeatedly indicated that she had no erythema/edema in the hand. In
other reports of record, Dr. Habacker found a work-related cause for the left carpal tunnel
syndrome, but these reports do not contain any notable explanation for this finding. For
example, in an undated Form CA-20, received in April 2016, she listed the date of injury as
March 3, 2014 and diagnosed primary osteoarthritis of the left hand and left carpal tunnel
syndrome “causally related to the injury” without providing any other explanatory comments.
These reports are of limited probative value due to their lack of a rationalized medical opinion on
causal relationship. The Board has held that a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is
unsupported by medical rationale.15
In a report dated June 9, 2016, Dr. Habacker opined that appellant’s disability beginning
February 3, 2016 was work related because she had persistent symptoms even while performing
limited-duty work and there were no other incidents to explain her symptoms. However, this
opinion is of limited probative value regarding appellant’s claimed recurrence of disability
because the Board has held that the fact that a condition manifests itself or worsens during a period
of employment,16 or that work activities produce symptoms revelatory of an underlying
condition,17 does not raise an inference of causal relationship between a claimed
condition/disability and employment factors. In the same report, Dr. Habacker indicated that
appellant had left carpal tunnel syndrome that “may be precipitated by and/or aggravated by
swelling.” She further noted that appellant was 40 percent disabled, that she should limit left
hand usage as tolerated, and that she should refrain from lifting, carrying, pushing, or pulling
more than 25 pounds. Dr. Habacker again failed to explain the medical process through which
swelling from appellant’s accepted left hand condition could cause left carpal tunnel syndrome.
Her opinion is of limited probative value for the further reason that it is speculative in nature.
The Board has held that an opinion which is speculative is of limited probative value regarding the
15

C.M., Docket No. 14-88 (issued April 18, 2014).

16

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

17

Richard B. Cassel, 32 ECAB 1910, 1917 (1981).

7

issue of causal relationship.18 Dr. Habacker noted that appellant’s diagnosis was “left hand/wrist
pain [status post] surgery for aggravated arthritis,” but she did not provide a rationalized medical
opinion that the accepted left hand condition caused disability from work. For these reasons, this
report does not provide support for a finding that appellant sustained a recurrence of disability on
or after February 3, 2016 due to her accepted work condition. In other reports, Dr. Habacker
suggested other conditions might be related to the accepted employment injury, such as left wrist
ganglion, left trigger finger, or neuroma, but she did not provide a clear opinion in this regard.19
On June 27, 2016 Dr. Habacker diagnosed primary osteoarthritis of the left hand and
Dupuytren’s contracture disease (also known as palmar fascial fibromatosis). She indicated that
the Dupuytren’s contracture disease was caused by the same work that caused the accepted left
thumb arthritis. In a June 29, 2016 Form CA-20, Dr. Habacker diagnosed Dupuytren’s
contracture disease and primary osteoarthritis and indicated that these conditions were
“exacerbated by work activity.” She found total disability from January 26, 2016 to the present.
Although Dr. Habacker suggested that this disability was due to work-related Dupuytren’s
contracture disease, these reports are of limited probative value in establishing appellant’s
recurrence of disability claim because she did not provide an explanation of how the diagnosed
condition of Dupuytren’s contracture disease was related to the accepted work injury, localized
primary osteoarthritis of the left hand. She did not describe the medical process through which
the same work duties that contributed to the localized primary osteoarthritis of the left hand had
caused Dupuytren’s contracture disease.
In other brief reports of record, Dr. Habacker found disability after February 3, 2016 and
suggested that the disability was related to the accepted condition of localized primary
osteoarthritis of the left hand.20 For example, in a June 29, 2016 Form CA-20, Dr. Habacker
diagnosed primary osteoarthritis of the left hand and found total disability from January 26, 2016
to the present. However, she did not provide a clear opinion that the disability was due to the
accepted condition of localized primary osteoarthritis of the left hand or otherwise provide a
rationalized medical report relating the disability to the condition. In other reports, Dr. Habacker
related the period of disability to a “March 3, 2014” or “September 24, 2015” injury, but she did
not provide any further explanation for such opinions.21
In several reports dated between July 18 and October 27, 2016, Dr. Gargiulo, an
attending physician, diagnosed left hand pain, chronic pain syndrome, and left carpal tunnel
syndrome. In an August 30, 2016 report, Dr. Elizabeth White-Fricker, an attending physician,
diagnosed left wrist pain, bone spur, Dupuytren’s contracture disease, and repetitive strain injury.
18

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956).

19

With respect to the possibility of a left wrist ganglion, Dr. Habacker obtained a left wrist MRI scan which did not
show any such condition.
20

In a number of these reports, Dr. Habacker indicated that appellant was disabled because she could not use her
left hand at all. She did not describe objective findings on examination or diagnostic testing that would justify such
a level of disability.
21

March 3, 2014 is the date appellant indicated on her Form CA-2 that she first became aware of her claimed left
hand condition and September 24, 2015 is the date of her left hand surgery.

8

However, these reports are of limited probative value on the relevant issue of this case because
neither physician provided an opinion that the diagnosed conditions were related to the accepted
work injury, localized primary osteoarthritis of her left hand, or that appellant was disabled on or
after February 3, 2016. The Board has held that medical evidence which does not offer a clear
opinion regarding the cause of an employee’s condition/disability is of limited probative value on
the issue of causal relationship.22
Appellant may submit additional evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence
of disability on or after February 3, 2016 causally related to her accepted employment injury.

22

See Charles H. Tomaszewski, 39 ECAB 461 (1988). Appellant submitted an April 1, 2016 letter in which she
asserted that she stopped work on February 3, 2016 because there was no modified work available within the
limitations provided by Dr. Habacker. However, she did not submit any evidence to support this assertion and she
has not established a recurrence of disability on or after February 3, 2016 due to a withdrawal of a light-duty
assignment. See supra note 10.

9

ORDER
IT IS HEREBY ORDERED THAT the November 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 12, 2017
Washington, DC

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

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

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

10