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

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

Docket No. 19-0697
Issued: September 4, 2019

Case Submitted on the Record

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

JURISDICTION
On February 13, 2019 appellant, through counsel, filed a timely appeal from a
December 28, 2018 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 has met his burden of proof to establish an injury causally
related to the accepted February 25, 2018 employment incident.
FACTUAL HISTORY
On February 25, 2018 appellant, then a 48-year-old mail handler, filed a notice of
recurrence (Form CA-2a) alleging that on February 25, 2018 he sustained a recurrence of disability
due to an April 18, 2016 employment injury to his lower back, neck, and left shoulder.3 He
asserted that he lifted a bag at work on February 25, 2018 and felt pain in the “same body part” as
he injured on April 18, 2016. On February 25, 2018 appellant also filed an occupational disease
claim (Form CA-2) alleging that he sustained a strain due to lifting bags to and from a higher level
while in the performance of duty. He reported that he first related his claimed condition and his
federal employment on February 25, 2018 and that he stopped work on February 25, 2018.
Appellant submitted a February 25, 2018 duty status report (Form CA-17) in which Osman
Hossain, a physician assistant, indicated that appellant reported injuring himself on that same date
due to lifting a 25-pound mailbag over his head and dumping out mail which caused a sharp pain
after lifting the mailbag. The physician assistant diagnosed severe left shoulder sprain/strain and
cervical, thoracic, and lumbar spine sprains/strains, and found that appellant was totally disabled
from work.
In a February 26, 2018 note, Dr. Muntaz Majeed, a Board-certified internist, indicated that
appellant was evaluated on that same date for a work-related injury. He advised that appellant was
excused from work for the period February 26 to March 5, 2018.
In a March 28, 2018 development letter, OWCP indicated that it was developing
appellant’s recurrence claim as a claim for a new traumatic injury due to lifting a mailbag on
February 25, 2018 because he had implicated a new employment incident. It requested that he
submit additional evidence in support of his traumatic injury claim, including a physician’s opinion
supported by a medical explanation as to how the reported February 25, 2018 employment incident
caused or aggravated a medical condition. OWCP provided a questionnaire for appellant’s
completion which posed various questions regarding the claimed February 25, 2018 employment
incident and his prior medical condition. It afforded him 30 days to respond.
In March 9 and 26, and April 7, 2018 duty status reports (Form CA-17), Dr. Majeed noted
that appellant reported that he lifted a heavy mailbag at work on February 25, 2018 and felt sharp
pain in his neck, left shoulder, and back. He listed diagnoses “due to injury” as acute
cervical/lumbar myofasciitis and left shoulder arthralgia, and opined that appellant was unable to
perform work.

3

Appellant’s recurrence claim was originally filed under OWCP File No. xxxxxx525, in which OWCP had accepted
that on April 18, 2016 he sustained sprains/strains of his lower back, neck, and left shoulder. He returned to limitedduty work for the employing establishment in December 2016 and to full-duty work in February 2017. Appellant’s
claims have not been administratively combined.

2

The findings of a March 20, 2018 magnetic resonance imaging (MRI) scan of appellant’s
cervical spine contained an impression of disc bulge at C4-5 impinging the anterior thecal sac and
disc herniation at C5-6 impinging the anterior thecal sac/right lateral recess. A March 20, 2018
MRI scan of the lumbar spine showed a disc bulge at L4-5 impinging the anterior thecal sac and a
disc bulge at L5-S1 impinging the anterior thecal sac/left neural foramen. A March 23, 2018 MRI
scan of the left shoulder revealed a posterior/superior labrum tear, anterior/superior perilabral cyst,
mild rotator cuff tendinitis, adhesive capsulitis of the rotator cuff interval/axillary recess, minimal
subacromial/subdeltoid bursitis, and mild acromioclavicular joint arthrosis.
In an April 16, 2018 attending physician’s report (Form CA-20), Dr. Majeed listed the date
of injury as February 25, 2018 and diagnosed acute cervical/lumbar myofasciitis and left shoulder
arthralgia. He checked a box marked “Yes” indicating that appellant’s condition was caused or
aggravated by an employment incident. Dr. Majeed indicated that appellant could not work and
recommended that appellant avoid: lifting, pushing, and pulling heavy objects; kneeling,
squatting, climbing/descending stairs; and prolonged sitting/standing.
By decision dated May 14, 2018, OWCP accepted that on February 25, 2018 appellant
lifted a bag over his head and dumped out mail in the performance of duty, as alleged, but it denied
the claim as he had not submitted medical evidence establishing a diagnosed medical condition
causally related to the accepted February 25, 2018 employment incident. It concluded that the
requirements had not been met to establish an injury or medical condition causally related to the
accepted employment incident.
On June 7, 2018 appellant requested a telephonic hearing with a representative of OWCP’s
Branch of Hearings and Review.4
During the hearing held on October 18, 2018 counsel advised that he agreed with OWCP
that appellant’s claim was appropriately developed as a claim for traumatic injury due to lifting a
mailbag over his head while at work on February 25, 2018. He argued that the reports of
Dr. Majeed established appellant’s claim.
Appellant submitted a February 25, 2018 narrative report in which Mr. Hossain indicated
that appellant reported injuring himself on the same date by lifting a mailbag (weighing
approximately 25 pounds) over his head and dumping out mail. Mr. Hossain indicated that
appellant reported only occasionally experiencing back, left shoulder, or back pain after returning
to full-duty work in February 2017. He diagnosed several neck, left shoulder, and thoracic/lumbar
spine conditions.
Appellant also submitted May 9, June 11, and September 28, 2018 duty status reports
(Form CA-17) in which Dr. Majeed described the February 25, 2018 employment incident.
Dr. Majeed listed diagnoses due to the reported injury as acute cervical/lumbar myofasciitis and
left shoulder arthralgia, and opined that appellant was unable to perform any work.
In a May 11, 2018 report, Dr. Vikas Varma, a Board-certified neurologist, noted that
appellant reported lifting a heavy mailbag at work on February 25, 2018 and feeling a sharp pain
4

Counsel became authorized with respect to the claim before OWCP in early July 2018.

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in his neck which radiated into his left shoulder and back. He reported his physical examination
findings noting intact muscle strength and intact pinprick sensation in the upper and lower
extremities with hypothesias to light touch in the calves. Dr. Varma diagnosed left cervical
radiculopathy, multiple cervical/lumbar disc herniations, stenosis at L5-S1, adhesive capsulitis,
and left rotator cuff syndrome/acromioclavicular joint arthritis with subacromial/subdeltoid
bursitis. In a May 11, 2018 duty status report (Form CA-17), he listed the date of injury as
February 25, 2018 and the diagnosis “due to injury” as brachial neuritis or radiculopathy, not
otherwise specified. Dr. Varma indicated that appellant could not return to work.
In an October 26, 2018 report, Dr. Majeed indicated that a review of the medical record
revealed that appellant lifted a heavy mailbag on February 25, 2018 and exacerbated the prior
April 18, 2016 injury to his neck, left shoulder, and back. He reported physical examination
findings, including reduced neck, left shoulder, and back range of motion, and diagnosed cervical
and lumbar myofasciitis and left shoulder arthralgia. Dr. Majeed opined that appellant’s present
condition was directly related to the February 25, 2018 employment incident, noting that the
mechanism of injury was entirely consistent with the clinical presentation. He noted, “Therefore,
the accident of [February 25, 2018] is the direct producing cause of [appellant’s] injury, symptoms,
and physical findings.”
By decision dated December 28, 2018, OWCP’s hearing representative affirmed the
May 14, 2018 decision noting that appellant had not submitted medical evidence establishing a
diagnosed medical condition causally related to the accepted February 25, 2018 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury.9
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, 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 incident.10
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 causal relationship.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted February 25, 2018 employment incident.
In multiple form reports dated between March 9 and September 28, 2018, Dr. Majeed
noted that appellant reported that he lifted a heavy mailbag at work on February 25, 2018 and felt
sharp pain in his neck, left shoulder, and back. He listed diagnoses “due to injury” as acute
cervical/lumbar myofasciitis and left shoulder arthralgia, and opined that appellant was unable to
perform work. However, these reports contain mere conclusory opinions without the necessary
rationale explaining how and why the February 25, 2018 employment incident was sufficient to
result in the diagnosed medical conditions. The Board has held that such opinions are of limited
probative value and are insufficient to meet a claimant’s burden of proof to establish a claim and,
therefore, these reports are insufficient to establish appellant’s claim for a February 25, 2018
employment injury.12 In a February 26, 2018 note, Dr. Majeed indicated that appellant was
evaluated on the same date for a work-related injury. He advised that appellant was excused from
work for the period February 26 to March 5, 2018. This report is of limited probative value because
Dr. Majeed did not support his ostensible opinion on causal relationship with medical rationale.13
In an April 16, 2018 form report, Dr. Majeed listed the date of injury as February 25, 2018
and diagnosed acute cervical/lumbar myofasciitis and left shoulder arthralgia. He checked a box
marked “Yes” indicating that appellant’s condition was caused or aggravated by an employment
activity. Dr. Majeed indicated that appellant could not work. Appellant’s burden of proof includes
the necessity of furnishing an affirmative opinion from a physician who supports his or her

8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

10

S.S., Docket No. 18-1488 (issued March 11, 2019).

11

J.L., Docket No. 18-1804 (issued April 12, 2019).

12

J.D., Docket No. 14-2061 (issued February 27, 2015).

13

Id.

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conclusion with sound medical reasoning.14 Dr. Majeed provided no rationale for his opinion on
causal relationship. The Board has held that when a physician’s opinion on causal relationship
consists only of checking “Yes” to a form question, without more by the way of medical rationale,
that opinion is of limited probative value and is insufficient to establish causal relationship.15
Therefore, Dr. Majeed’s April 16, 2018 report is insufficient to discharge appellant’s burden of
proof.
In a May 11, 2018 narrative report, Dr. Varma noted the February 25, 2018 employment
incident as described by appellant and diagnosed left cervical radiculopathy, multiple
cervical/lumbar disc herniations, stenosis at L5-S1, adhesive capsulitis, and left rotator cuff
syndrome/acromioclavicular joint arthritis with subacromial/subdeltoid bursitis. In a May 11,
2018 form report, he listed the date of injury as February 25, 2018 and the diagnosis “due to injury”
as brachial neuritis or radiculopathy, not otherwise specified.
Dr. Varma’s May 11, 2018 narrative report does not contain an opinion on the cause of the
diagnosed medical conditions. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition or disability is of no probative value on the
issue of causal relationship.16 As such, Dr. Varma’s May 11, 2018 narrative report is of no probative
value on the underlying issue of this claim.17 His May 11, 2018 form report contains a mere
conclusory opinion without the necessary rationale explaining how and why the February 25, 2018
employment incident was sufficient to result in the diagnosed medical condition. As noted, the
Board has held that, such an opinion is insufficient to meet a claimant’s burden of proof to establish
a claim and, therefore, the May 11, 2018 form report is insufficient to establish appellant’s claim for
a February 25, 2018 employment injury.18
In an October 26, 2018 report, Dr. Majeed indicated that a review of the medical record
revealed that appellant lifted a heavy mailbag on February 25, 2018 and exacerbated the prior
April 18, 2016 injury to his neck, left shoulder, and back. He opined that appellant’s present
condition was directly related to the February 25, 2018 accident, noting that it was the direct
producing cause of his injury, symptoms, and physical findings. The Board notes, however, that
Dr. Majeed’s October 26, 2018 report is of limited probative value on the underlying issue of the
present case because he did not provide adequate medical rationale in support of his opinion on
causal relationship.
Although Dr. Majeed asserted that the “mechanism of injury” was entirely consistent with
appellant’s clinical presentation, he did not adequately explain how the mechanism of injury on
February 25, 2018 was consistent with specific findings on physical examination and diagnostic
testing. Appellant had significant degenerative conditions of his neck, left shoulder, and back, and
14

J.A., Docket No. 18-1586 (issued April 9, 2019); Lillian M. Jones, 34 ECAB 379, 381 (1982).

15

Id.

16

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

17

Id.

18

See supra note 12.

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Dr. Majeed did not explain why appellant’s multiple complaints were not due to the natural
progression of nonwork-related disease processes. The Board has held that a report is of limited
probative value regarding causal relationship if it does not contain medical rationale explaining
how an employment activity could have caused or aggravated a medical condition.19 Therefore,
this report is insufficient to establish appellant’s claim.
Appellant also submitted February 25, 2018 reports of Mr. Hossain, a physician assistant.
The Board has held, however, that health care providers such as physician assistants are not
considered physicians as defined under FECA and their reports do not constitute competent
medical evidence.20 Therefore, these reports are of no probative value and are insufficient to meet
appellant’s burden of proof.
As the record does not contain a rationalized opinion on causal relationship between a
diagnosed medical condition and the accepted February 25, 2018 employment incident, the Board
finds that appellant has not met his burden of 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 to establish an injury due to
his accepted February 25, 2018 employment incident.

19

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

20

See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018);
P.S, Docket No. 17-0598 (issued June 23, 2017); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by state law).

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ORDER
IT IS HEREBY ORDERED THAT the December 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 4, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Long Branch, NJ, Employer
__________________________________________

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

Docket No. 13-1323
Issued: December 11, 2013

Case Submitted on the Record

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

JURISDICTION
On May 15, 2013 appellant filed a timely appeal from a January 15, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.2
ISSUE
The issue is whether appellant sustained any permanent impairment as a result of his
January 22, 1998 work injury warranting a schedule award.

1
2

5 U.S.C. §§ 8101-8193.

Appellant also submitted medical evidence on appeal. However, the Board has no jurisdiction to review this
evidence for the first time on appeal. 20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

FACTUAL HISTORY
On January 22, 1998 appellant, then a 54-year-old postal worker, was involved in a workrelated automobile accident while stopped at a traffic light. OWCP accepted his claim for a neck
strain and sprains of the shoulder and upper arm, acromioclavicular, bilateral. Appellant did not
stop work. He was prescribed work restrictions for light-duty work effective January 23, 1998,
the date of initial treatment following the accident. Appellant’s concurrent or preexisting
conditions include cervical degenerative disc disease, lumbar herniated disc, right ankle
arthroscopy with synovectomy in 2003; history of right foot fifth metatarsal fracture; and a
history of high blood pressure, asthma and diabetes. He had also been involved in a
nonemployment-related automobile accident on August 9, 1998.
On July 12, 2010 appellant filed a Form CA-7 claim for a schedule award. In an April 6,
2010 report, Dr. Padmaja R. Yatham, an anesthesiologist, found that under the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), appellant had seven percent impairment of the cervical spine based on four percent
impairment due to a cervical disc herniation and three percent for pain. He also rated 18 percent
upper extremity impairment and 24 percent whole person impairment.
In a May 4, 2010 report, Dr. Yatham noted a history of work-related injuries occurring on
January 22 and August 1998 and August 13, 2002. He noted a June 19, 2001 cervical spine
magnetic resonance imaging (MRI) scan showed a disc bulge at C5-6 and large left
posterolateral disc herniation at C5-6 and C6-7. On examination there was decreased cervical
spine motion, decreased strength, atrophy, sensory and motor deficits in the upper extremity.
Dr. Yatham listed an impression of lower back pain with lumbosacral strain or sprain and
cervicalgia with cervical radiculitis, right upper extremity radiculitis and cervical disc herniation
at C6-7 was provided. He opined that appellant reached maximum medical improvement.
Under the sixth edition of the A.M.A., Guides, Dr. Yatham opined that appellant had 25 percent
right upper extremity impairment and 3 percent right lower extremity impairment. A copy of his
impairment worksheet for the upper extremity was provided.
In a November 10, 2011 report, Dr. Henry J. Magliato, an OWCP medical adviser,
reviewed the statement of accepted facts and reports of Dr. Yatham. While Dr. Yatham
performed a schedule award evaluation on May 4, 2010, his narrative report did not explain how
he arrived at the impairment rating applying the A.M.A., Guides and his worksheets were poorly
filled out. Dr. Magliato noted that Dr. Yatham mixed up peripheral nerve impairment with the
upper extremity diagnostic grids. He also noted that, while the October 23, 2010 worksheet was
more detailed, it was not clear how Dr. Yatham arrived at either the 23 percent or 3 percent
impairment values. Dr. Magliato recommended a second-opinion examination.
In a March 6, 2012 report, Dr. Yatham listed an impression of lower back pain,
lumbosacral radiculitis and lumbar disc herniation. He stated that the MRI scan report noted
multiple disc herniations and lumbar spinal stenosis. Dr. Yatham noted that appellant did not
share such pain before the accident and opined that the disc herniations may be from the
accident. He did not have any office MRI scan reports to compare the previous studies.

2

On May 10, 2012 OWCP referred appellant, together with a statement of accepted facts,
a list of questions, and the medical record, to Dr. Gerard M. Gerling, a Board-certified
neurologist, for a second-opinion examination. In a June 5, 2012 report, Dr. Gerling noted the
history of injury and provided findings on examination. He stated that appellant’s gait was wide
based, unsteady and antalgic in appearance with hypoactive reflexes but with no evidence of
muscle atrophy or focal weakness. Dr. Gerling noted that appellant was assigned to reduced
duties after the 1998 motor vehicle accident and had advanced degenerative spondylosis of the
cervical and lumbar spine as well as insulin-dependent diabetes mellitus. Appellant reported that
a marked disability began after the motor vehicle accident caused him to be in a light-duty work
restriction, until he retired in 2004. Dr. Gerling concluded that appellant was totally disabled as
a result of the degenerative changes, as seen on the diagnostic reports, along with his insulindependent diabetes mellitus.
In a June 13, 2012 addendum report, Dr. Gerling noted that the claim was accepted for
neck and bilateral shoulder strains, which were common in rear-end type collisions and typically
resolved in 10 to 14 days. Appellant had no objective evidence of injury and there was no
evidence that he had suffered a neurological or spinal injury as a result of the motor vehicle
accident. Dr. Gerling opined that the medical conditions appellant complained of were personal,
preexisting and/or idiopathic in nature.
By decision dated June 19, 2012, OWCP denied a schedule award finding that appellant
had no permanent impairment related to the accepted employment injuries.
In a June 26, 2012 letter, appellant, through counsel, requested an oral hearing which was
held on October 25, 2012. Counsel argued that Dr. Gerling’s report was insufficient to carry the
weight of the medical evidence as he provided a cursory opinion but failed to report specific
examination findings to support his conclusions and failed to consider electromyogram (EMG)
findings.
In an October 4, 2012 report, Dr. Yatham noted that appellant had been a patient since
July 2009. The diagnostic studies evidenced a cervical disc herniation, lumbar disc herniation
and nerve damage. Dr. Yatham stated that appellant was on multiple medications and had
chronic pain. He opined that appellant was disabled because of his condition.
In an October 22, 2012 letter, appellant reiterated that Dr. Gerling performed a cursory
examination and caused neck pain when the physician tried to move his neck.
By decision dated January 15, 2013, an OWCP hearing representative affirmed the
June 19, 2012 decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim, including that he or she sustained an injury in the

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performance of duty as alleged and that an employment injury contributed to the permanent
impairment for which schedule award compensation is alleged.3
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.4
The schedule award provision of FECA5 and its implementing regulations6 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. The A.M.A., Guides has
been adopted by the implementing regulations as the appropriate standard for evaluating
schedule losses.7 The effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.8
It is well established that in determining the amount of a schedule award for a member of the
body that sustained an employment-related permanent impairment, preexisting impairments of
the body are to be included.9
ANALYSIS
OWCP accepted a neck strain and bilateral shoulder strains due to a 1998 motor vehicle
accident. Appellant requested a schedule award. It denied the schedule award claim, finding
that the medical evidence had not established any permanent impairment related to the accepted
employment conditions. The Board finds that the record is not sufficient to establish that he has
any impairment caused by his accepted conditions.
Appellant came under Dr. Yatham’s care in July 2009. Dr. Yatham found diagnostic
evidence of a cervical disc herniation, a lumbar disc herniation and evidence of nerve damage.
3

See Bobbie F. Cowart, 55 ECAB 476 (2004). In Cowart, the employee claimed entitlement to a schedule award
for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant did not establish that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear. See also Veronica Williams, 56 ECAB 367,
370 (2005).
4

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

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

See Dale B. Larson, 41 ECAB 481, 490 (1990).

4

He rated permanent impairment. OWCP, however, never accepted a cervical disc herniation or a
low back condition as related to the January 22, 1998 motor vehicle accident. In a March 6,
2012 report, Dr. Yatham stated that the lumbar disc herniations could have been from the work
injury. This opinion is equivocal and is of little probative value.10 Dr. Yatham rated impairment
due to the cervical disc bulges and pain; but he did not explain how the conditions causing
permanent impairment were causally related to the accepted work injury. It is appellant’s burden
to prove that the condition for which a schedule award is sought is causally related to his or her
employment.11 Appellant must establish that impairment to a scheduled member was caused by
the accepted injury before impairment can be assessed.12
OWCP properly referred appellant to Dr. Gerling for a second-opinion examination for a
determination as to whether he had any impairment due to his accepted conditions. In a June 5,
2012 report, Dr. Gerling noted the history of injury and provided findings on examination. He
concluded that appellant was totally disabled as a result of his preexisting, advanced
degenerative spondylosis of the cervical and lumbar spine and insulin-dependent diabetes
mellitus. In a June 13, 2012 addendum report, Dr. Gerling noted that the claim was accepted for
neck and bilateral shoulder strains, which he explained were commonly diagnosed in rear-end
type collision and which usually resolved in 10 to 14 days. He concluded that appellant had no
objective evidence of injury or evidence that he sustained a neurological or spinal injury as a
result of the motor vehicle accident. The Board notes that, under the appropriate tables in the
A.M.A., Guides, no impairment is due to the accepted conditions of neck and bilateral shoulder
strains, which Dr. Gerling found had resolved. Resolved conditions typically are class 0, which
represents zero percent upper extremity impairment.13
The Board finds that OWCP properly relied upon the reports of Dr. Gerling to deny
appellant’s schedule award claim. Dr. Gerling reviewed the medical evidence and statement of
accepted facts and provided examination findings and provided reasoning for his conclusion that
appellant’s accepted conditions had resolved.14 Thus, appellant had sustained no permanent
impairment due to the accepted injuries. Furthermore, there is no report from appellant’s
physicians which indicate that the accepted conditions are still active.
For these reasons, appellant did not show that he sustained permanent impairment.
On appeal, appellant argued that Dr. Gerling did not provide a full examination, complete
with objective testing and only examined him for five minutes. He contends that his condition is
severe and has affected his way of living for the past 13 years. As noted, Dr. Gerling reviewed
appellant’s medical records, the statement of accepted facts and utilized findings on examination
10

See Kathy A. Kelley, 55 ECAB 206 (2004).

11

Veronica Williams, supra note 3.

12

See generally Thomas P. Lavin, 57 ECAB 353 (2006).

13

See e.g., A.M.A., Guides 401, Table 15-5. The Board notes that OWCP failed to route the medical record to its
medical adviser to review Dr. Gerling’s reports for an impairment determination.
14

Michael S. Mina, 57 ECAB 379 (2006).

5

to reach his stated conclusion. While appellant has evidence of preexisting conditions, these
conditions have not been accepted.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish entitlement to
a schedule award for permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the January 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington Township, OH, Employer
__________________________________________

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

Docket No. 07-2231
Issued: June 2, 2008

Case Submitted on the Record

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

JURISDICTION
On September 4, 2007 appellant, through counsel, filed a timely appeal from the
August 8, 2007 decision of an Office of Workers’ Compensation Programs hearing
representative, affirming the termination of his medical and wage-loss compensation benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage loss and
medical benefits effective December 29, 2006, on the grounds that he had no residuals or
disability related to his accepted employment injuries; and (2) whether appellant established
continuing disability or residuals related to his accepted employment injuries.
FACTUAL HISTORY
On October 5, 1998 appellant, then a 45-year-old letter carrier, injured his lower back
while bending to lift a heavy tray of mail. The Office accepted his claim for aggravation of a

bulging lumbar disc. On June 14, 1999 it expanded the claim to include disc herniations at L2-3
and L3-4. On February 3, 2000 the Office authorized microdiscectomy at L3-4 and L4-5.
Appellant elected not to proceed with the surgery.
On March 1, 2004 Dr. Scott West, a Board-certified osteopathic physician specializing in
neurological surgery, stated that appellant continued to experience low back pain, with radiation
into his right leg. He reported that a February 12, 2004 magnetic resonance imaging (MRI) scan
of appellant’s lumbar spine revealed severe bilateral foraminal stenosis and right-side herniation
at L2-3 with degenerative disc changes at other levels of the lumbar spine. Dr. West opined that
a microscopic decompression lumbar laminectomy at L2-3 would help resolve the right leg
symptoms.
On April 2, 2004 appellant filed a claim for compensation for leave without pay. In a
March 22, 2004 attending physician’s report, Dr. West stated that appellant was totally disabled
as of March 17, 2004. On May 5, 2004 he stated that, although appellant had undergone
extensive conservative treatment with some temporary improvements, the disc herniations seen
in the diagnostic studies revealed further degenerative disc changes and exacerbations of his
condition caused by the 1998 employment injury based on a “flow through phenomenon” and
that his ongoing work exacerbated his condition.
On May 24, 2004 appellant was seen by Dr. Gregory Fisher, a Board-certified orthopedic
surgeon, for a second opinion examination. Dr. Fisher noted that the herniation at L2-3 had
enlarged since the time of the original injury and was sufficient to cause appellant’s lower
extremity symptoms. He opined that surgery was warranted and related to appellant’s accepted
employment injury. The Office accepted appellant’s claim for recurrence of disability beginning
on March 16, 2007 and expanded his claim to include the herniated disc at L2-3.
On June 29, 2004 Dr. West performed a microscopic lumbar laminectomy with
discectomy at L2-3. At the beginning of September 2004, appellant again began to experience
low back and right leg pain. On November 28, 2004 he underwent a myelogram and a
computerized tomography (CT) scan, which revealed an extradural antior filling defect at L3-4
and L4-5, Grade 1 retrolisthesis of L3 on L4 and disc bulges at L3-4 and L4-5. There was no
definite evidence of nerve root impingement at L3-4 and L4-5. On December 29, 2004 Dr. West
stated that appellant was unable to return to work even with restrictions because of the
degeneration and instability of his lumbar spine and the amount of physical activity involved in
his position. On January 14, 2005 appellant was placed on the periodic rolls.
On February 10, 2005 the Office sought clarification from Dr. West about the cause,
degree and duration of appellant’s disability. Dr. West responded that appellant’s spinal changes
were related to both his preexisting degenerative disease and the aggravation caused by his
employment injury. He opined that appellant would be unable to return to his date-of-injury
position, but might be able to return to a very limited work if his pain management treatments
were successful. On April 12, 2005 Dr. Richard Donnini, an osteopathic physician specializing
in pain management, began treating appellant with medication, exercise and nerve root blocks.
On May 3, 2006 the Office referred appellant for a second opinion examination with
Dr. Pietro Seni, a Board-certified orthopedic surgeon. It provided Dr. Seni with a statement of

2

accepted fact, dated July 8, 2004, listing the physical requirements of appellant’s date-of-injury
position and his history of employment-related low back injuries, which occurred in 1980, 1989,
1993 and 1996. These injuries were accepted for lumbar strains and bulging discs and
subsequently closed. The statement noted that appellant’s 1998 employment injury was accepted
for aggravation of bulging lumbar disc with microdiscectomy at L3-4 and L4-5 and a herniated
disc at L2-3 with decompression lumbar laminectomy.
In a May 31, 2006 report, Dr. Seni advised that the statement of accepted facts provided
by the Office was inaccurate to the extent that it stated that appellant had undergone a
microdiscectomy at L3-4 and L4-5. He reported that appellant’s current symptoms included low
back pain that radiated into the lower extremities, right worse than left and numb toes. On
examination, Dr. Seni noted normal spinal curvature, normal sensation, symmetrical 1+ reflexes
and bilateral negative straight leg raising test. He found several paraspinal muscle trigger points
and limitations in forward flexion, backward extension and lateral bending. Manual muscle
testing was normal, but there was questionable weakness of the left extensor hallucis longus. In
a supine position, appellant had a restricted range of motion in his left hip and a positive straight
leg raising test at 60 degrees. Dr. Seni reviewed appellant’s diagnostic tests and reports. He
noted that an October 14, 2004 MRI scan showed postoperative scar tissue at L3-4, but no
recurrent hernia at L4-5. An x-ray taken on October 20, 2004 showed extradural defects at L3-4
and L4-5, but no evidence of nerve root impingement.
Dr. Seni diagnosed degenerative disc disease of the lumbar spine from L2 down, but
noted that it was difficult to establish the location of the pathology because appellant had a
sacralized L5 vertebra, which might have led to inconsistent identification of the discs in
previous diagnostic tests. He stated that his neurological examination did not reveal any
evidence of nerve root radiculopathy that could be attributed to independent nerve root
involvement. Dr. Seni opined that appellant sustained several temporary aggravations of his
underlying age-related degenerative disc disease during his time as a letter carrier that were dealt
with as they arose. He stated that the L2-3 disc herniation was a permanent aggravation that was
fully resolved by the June 2004 surgery. Dr. Seni opined that appellant’s remaining back pain
was related to his preexisting degenerative disc disease and not his 1998 employment injury. He
stated that appellant was unable to perform his date-of-injury duties because of his underlying
degenerative disc disease. Dr. Seni found that appellant would be able to perform a sedentary
position where he could alternate sitting and standing, with no bending, stooping or lifting more
than 15 pounds.
On July 7, 2006 Dr. West reported that appellant continued to complain of lower back
pain and lower extremity pain, numbness and weakness. He found tenderness, limited range of
motion, weakness in the extensor hallucis longus muscles and a positive straight leg raising test.
Dr. West opined that appellant had a low likelihood of success in any further operations and
recommended that he apply for disability retirement.
On July 12, 2006 Dr. West commented on Dr. Seni’s report, which he found to be
thorough and well thought out. He agreed that appellant “had several aggravations … which
aggravated his preexisting disease.” Dr. West opined that appellant could not “return to his
former type of duties” because of the physical nature of his work.

3

On August 29, 2006 the Office found a conflict between the medical opinions of
Dr. West and Dr. Seni and referred appellant for an impartial medical examination. On
September 18, 2006 Dr. John Wolf, a Board-certified orthopedic surgeon selected as the
impartial medical specialist, examined appellant and reviewed his medical record, including the
July 8, 2004 statement of accepted facts. He noted that, because Dr. West did not rebut
Dr. Seni’s findings, the only conflict appeared to be whether appellant could return to work.
Dr. Wolf stated that an October15, 2004 MRI scan showed “disc bulging at L1 and L2,” but no
recurrent disc herniation. A November 29, 2004 CT scan showed broad-based disc bulges at
L3-4 and L4-5, with possible nerve root impingement. Dr. Seni stated that appellant did not
undergo a microdiscectomy as indicated by the statement of accepted facts. On physical
examination Dr. Wolf found that appellant had no palpable muscle spasms, was able to bend to
15 degrees on each side without pain and had no evidence of lower extremity weakness, atrophy
or sensory deficit. He found full range of motion at both hips and positive leg raising bilaterally
due to tightness behind the knee and in the hamstrings. Dr. Wolf opined that appellant had no
residuals related solely to his employment injury or his surgery. He stated that appellant’s
residual of back pain radiating down both legs was related to his multilevel degenerative disc
disease. Dr. Wolf found that appellant should not return to his letter carrier position because his
spine was poorly suited to repetitive bending, twisting and lifting motions. He found that
appellant could perform a sedentary position with permanent restrictions. Dr. Wolf stated that
appellant had reached maximum medical improvement from his work-related injury.
On September 19, 2006 appellant underwent an x-ray and MRI scan of his lumbar spine
that showed normal motion on flexion and extension, status post right L2 and L3 laminectomies,
multilevel disc disease with facet arthropathy and slight retrolisthesis of L2 on L3 and L1 on L2.
In an October 13, 2006 report, Dr. West stated that these studies revealed postoperative changes.
He diagnosed post laminectomy syndrome.
On October 10, 2006 the Office sought clarification of Dr. Wolf’s opinion, who stated
that appellant’s current symptoms and inability to return to his date-of-injury position were due
solely to his preexisting degenerative disc disease and not his work-related disc herniation.
By notice dated November 17, 2006, the Office proposed termination of appellant’s
medical and wage-loss compensation benefits. It found that the opinion of Dr. Wolf carried the
weight of the medical opinion evidence and formed the medical basis for the decision. The
Office provided appellant 30 days to provide relevant evidence and arguments in opposition to
the termination.
Appellant submitted two patient progress forms from the Pain Evaluation & Management
Center of Ohio, dated August 4 and September 7, 2006, which listed the symptoms of and
treatments for his lower back pain.
By decision dated December 28, 2006, the Office terminated appellant’s benefits
effective December 29, 2006. It found that the new medical evidence was not relevant to the
issue of whether appellant’s disability or residuals were employment related.

4

In a report dated December 15, 2006 and received by the Office on January 2, 2007,
Dr. West reiterated his opinion that appellant had degenerative disc disease and post
laminectomy syndrome and that he would be unable to return to his former type of employment.
On January 14, 2007 appellant, through counsel, requested an oral hearing. At the
hearing, held on May 23, 2007, he contended that the Office had not properly developed the
medical evidence and that Dr. Wolf’s decision was not based on a proper factual history.
By decision dated August 8, 2008, the Office hearing representative affirmed the
December 28, 2006 decision. She found that the impartial medical examiner was entitled to the
special weight of the medical evidence because he provided a comprehensive examination and a
report with a rationalized opinion on the cause of appellant’s disability. The Office hearing
representative noted that Dr. West offered no rationale or examination findings that supported
the claim that appellant had residuals or disability causally related to the accepted employment
injuries.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 The Office may not terminate compensation without
establishing that disability has ceased or that it is no longer related to the employment injury.2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.3
The Federal Employees’ Compensation Act provides that, if there is a disagreement
between a physician making an examination for the United States and the physician of the
employee, the Secretary must appoint a third physician to make an examination.4 Likewise, the
implementing regulations states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser or consultant, the Office must appoint a third physician to make an examination.
This is called a referee examination and the Office is required to select a physician who is
qualified in the appropriate specialty and who has had no prior connection with the case.5 It is
well established that, when a case is referred to an impartial medical specialist for the purpose of

1

Elaine Sneed, 56 ECAB 373 (2005).

2

Fred Reese, 56 ECAB 568 (2005).

3

James F. Weikel, 54 ECAB 660 (2003).

4

5 U.S.C. §§ 8101-8193, 8123(a).

5

20 C.F.R. § 10.321.

5

resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on
proper factual and medical background, must be given special weight.6
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for aggravation of lumbar disc bulge and disc
herniations at L2-3 and L3-4. The issue to be determined is whether the Office has met its
burden of proof to establish that appellant had no remaining disability or residuals related to his
accepted injuries.
On May 31, 2006 Dr. Seni, a Board-certified orthopedic surgeon, conducted a second
opinion examination. He noted that appellant’s L5 vertebra was sacralized, which might have
led to inconsistent disc numbering in some diagnostic tests. On examination, Dr. Seni found
trigger points in the paraspinal muscles, limitations in lumbar range of motion and possible
weakness of the left extensor hallucis longus. When lying down, appellant had restricted
movement in his left hip and a positive straight leg raising test at 60 degrees. Dr. Seni diagnosed
age-related degenerative disc disease of the lumbar spine from L2 down. He opined that
appellant had sustained several temporary aggravations of this underlying condition during his
time as a letter carrier, but that all of these, except for the herniated L2-3 disc, had resolved
without surgery. Dr. Seni stated that June 2004 surgery corrected appellant’s L2-3 herniation,
which had no remaining residuals. He opined that appellant’s remaining back pain was related
exclusively to his degenerative disc disease and that he had no disability related to his accepted
injuries. Dr. Seni stated that appellant could work only in a sedentary position because of his
underlying degenerative disc disease.
On July 12, 2006 Dr. West, an osteopathic physician specializing in neurological surgery,
stated that Dr. Seni’s report was thorough and well thought out. He concurred with the finding
that appellant had sustained several aggravations of his preexisting condition. Although it is
unclear from this statement whether Dr. West believed that the aggravations were permanent, in
an April 2, 2004 report, he stated that appellant’s employment injury had been a causal factor in
the degenerative spinal condition. He stated that appellant was unable to return to his previous
type of work and recommended that he take disability retirement.
The Office found a conflict of medical opinion evidence between Dr. West and Dr. Seni
on the cause and extent of appellant’s disability and referred him to an impartial medical
examiner to resolve the conflict.
On September 18, 2006 Dr. Wolf, a Board-certified orthopedic surgeon, conducted a
physical examination and review of appellant’s medical history. He utilized the statement of
accepted facts provided by the Office. Dr. Wolf indicated that, because Dr. West did not rebut
Dr. Seni’s findings, the primary conflict was whether appellant was capable of returning to work.
He noted that an October 15, 2004 MRI scan showed disc bulging at L1 and L2, but no recurrent
disc herniation and that a November 29, 2004 CT scan showed broad-based disc bulges at L3-4
and L4-5, with possible nerve root impingement. On physical examination, Dr. Wolf found no
palpable muscle spasms, 15 degrees of side bending on each side without pain, full range of
6

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

6

motion at both hips and no evidence of lower extremity weakness, atrophy or sensory deficit. He
noted positive leg raising tests bilaterally, but found that they were due to tightness behind the
knees and in the hamstrings. Dr. Wolf stated that appellant’s work injury was an aggravation of
a preexisting condition and was corrected by his surgery. He concurred with Dr. Seni’s opinion
that the back pain radiating down appellant’s legs was related to his multilevel degenerative disc
disease and not his employment injury or surgery. Dr. Wolf stated that, because of the
underlying condition, appellant could return to work only in a sedentary position. In a
subsequent report, he stated that appellant’s condition and his degree of disability were due
solely to his preexisting degenerative disease.
The Board finds that the report of Dr. Wolf is not entitled to the special weight of the
medical opinion evidence because it was based on an inaccurate statement of accepted facts and
was not sufficiently rationalized. The Board notes that Dr. Wolf relied on the Office’s July 8,
2004 statement of accepted facts, which failed to include herniation of the L3-4 disc as an
accepted condition.7 It is well established that medical opinions based on an incomplete or
inaccurate history are of diminished probative value.8 Because the herniation of L3-4 was not
included in the list of accepted conditions, Dr. Wolf made no findings and gave no opinions
related to its status or residuals. His opinion is therefore not based on a proper factual history.
The Board has also held that medical opinion that is not fortified by rationale is of diminished
probative value.9 Dr. Wolf gave no medical explanation for his opinions that appellant’s
ongoing disability was related solely to his preexisting condition and that his accepted conditions
had fully resolved. Although he made several clinical and diagnostic findings in his report, he
did not discuss them in his analysis and did not explain how they formed the basis for his
conclusions. For these reasons, the Office improperly relied on the opinion of Dr. Wolf to
establish that appellant had no remaining disability or residuals from the accepted injuries of disc
bulge aggravation and herniations of L2-3 and L3-4.
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation because the report of the impartial medical examiner was not sufficiently
rationalized to resolve the conflict of medical opinion.
CONCLUSION
The Board finds that the Office did not properly terminate appellant’s wage loss and
medical benefits, effective December 29, 2006, on the grounds that he had no residuals or
disability related to his accepted employment injuries.10

7

The statement of accepted facts also erroneously indicated that appellant had undergone a microdiscectomy at
L3-4 and L4-5. However, Dr. Wolf noted this error and did not use it as a basis for his decision.
8

Douglas M. McQuaid, 52 ECAB 382 (2001).

9

Cecilia M. Corley, 56 ECAB 662 (2005).

10

In light of the Board’s findings on the first issue, the second issue is moot.

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 8, 2007 and December 28, 2006 are reversed.
Issued: June 2, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 14-220
Issued: May 2, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 12, 2013 appellant filed a timely appeal from a September 5, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim and his request to subpoena witnesses. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an injury in the performance of duty on February 10, 2010; and (2) whether OWCP
properly denied his request for subpoenas.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 9, 2011 appellant, then a 45-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on February 10, 2010 his preexisting Type 1 diabetes was
aggravated when he had to work a double capacity shift by himself, causing his blood sugar to
drop. He stated that his supervisors forced him to seek emergency treatment at the hospital even
though he would have recovered with a break.
By letter dated November 27, 2012, OWCP informed appellant that the evidence received
was insufficient to establish his claim. It requested additional factual and medical evidence and
asked that he respond to the provided questions within 30 days. OWCP also requested the
employing establishment to provide additional factual information with respect to appellant’s
traumatic injury claim.
By letter dated December 8, 2012, appellant responded that, on February 10, 2010, he
was working a double capacity job because his supervisor refused to replace his coworker. He
was restricted from taking breaks without informing his supervisor. Appellant went to go find
his supervisor to take his first break but his blood sugar had begun to fall due to his Type 1
diabetes. He began to sweat, experience cramped muscles and had difficulty walking.
Appellant’s coworkers helped him to the break room and his supervisors made him to go to the
hospital by way of ambulance despite his protests. He noted that his supervisors overreacted and
unnecessarily removed him from work. Appellant stated that, if he had been allowed to take his
break, he would have been able to resume work as it would have given him a chance to raise his
blood sugar.
He argued that management failed to provide him with reasonable
accommodations.
Appellant submitted narrative statements dated June 6, 2010 and July 1, 2011 recounting
the February 10, 2010 employment incident. He stated that his medical treatment for emergency
services should have been covered by the employing establishment or OWCP. Appellant further
reiterated that he was forced to go to the hospital by his supervisors and no one ever told him he
needed to file a Form CA-1 for immediate removal from work due to injury and payment of his
medical bills.
Appellant also submitted a February 10, 2011 statement from Michelle Frankovich and a
February 14, 2011 statement from Ashwin Patel, his coworkers. They supported his assertions
regarding the February 10, 2010 employment incident.
In medical reports dated February 7, 2008 and June 29, 2009, Dr. Anne Missavage, a
Board-certified surgeon, reported that appellant was a severe diabetic and was being treated for
an infection in the third right toe. The toe required amputation on January 17 and
February 11, 2008. Appellant stated that he constantly worked on his feet, was required to work
overtime and had been doing more than one bid job. Dr. Missavage noted that he required work
restrictions due to his diabetes so that he could appropriately adjust his insulin doses with breaks
for foot elevation.
In medical reports dated February 6 and July 10, 2009 and September 21, 2010,
Dr. David Wenkert, Board-certified in internal medicine, reported that appellant suffered from

2

Type 1 diabetes with highly variable blood sugar. Appellant required a consistent schedule
every day during his work shift so that he could adequately plan his meals and insulin doses in
order to control his blood sugar. He indicated that he was required, with no advanced notice, to
change job positions frequently during his shift at work.
In a February 10, 2010 Ingham Regional Medical Center Emergency Room (ER) report,
Dr. Shannon Wiggins, a doctor of osteopathic medicine, reported that appellant had a history of
diabetes and was transported from work after his blood sugar dropped. She diagnosed low blood
glucose and resolved hyperkalemia. Appellant was admitted overnight and released on
February 11, 2010.
By decision dated May 21, 2013, OWCP denied appellant’s claim on the grounds that the
evidence was insufficient to establish that he sustained an injury. It found that the February 10,
2010 incident occurred as alleged; that he was working two positions by himself, and that he was
unable to take regularly scheduled breaks. OWCP found that the evidence failed to provide a
firm medical diagnosis which could be reasonably attributed to the accepted incident. It further
noted that the evidence did not establish that a medical condition arose or was aggravated by the
February 10, 2010 employment incident.
On January 14, 2013 appellant requested an oral hearing before the Branch of Hearings
and Review.
On February 9, 2013 appellant requested that OWCP’s hearing representative issue a
subpoena for Ms. Frankovich and Mr. Patel, his coworkers, to establish his allegations on
February 10, 2010 and to verify that he was unnecessarily sent to the hospital despite his
protests.
On April 1, 2013 OWCP’s hearing representative denied appellant’s request for
subpoenas stating that the facts surrounding his claim had been established and the case was
denied due to a lack of medical evidence. The hearing representative noted that it was unclear
how the subpoena request was relevant to the issue at hand which involved a medical issue and
that appellant could submit written statements from the individuals. Appellant was also
informed that he could bring witnesses to testify at the hearing.
At the May 8, 2013 hearing, appellant testified that he was required to do extra work
because his workstation was understaffed which caused his blood sugar to drop. He further
stated that his supervisors forced him to go to the hospital on February 10, 2010 despite his
protests. Appellant requested that the employing establishment pay for his hospital bills. He
was advised of the medical evidence needed to establish his claim. The record was held open for
30 days.
By decision dated September 5, 2013, OWCP’s hearing representative affirmed the
January 4, 2013 decision finding that the evidence of record failed to establish a diagnosed
condition which could be reasonably attributed to the accepted employment incidents. The
hearing representative also noted that appellant had established that he was forced to go to the
hospital, against his wishes, on February 10, 2010 by employing establishment management.

3

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.5 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. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.6
ANALYSIS -- ISSUE 1
OWCP accepted that the February 10, 2010 incidents occurred as alleged. Appellant was
working two positions on that day and was not allowed to take regularly scheduled breaks. He
was also required by management to seek medical treatment at a hospital. OWCP denied
appellant’s claim on the grounds that it lacked sufficient medical evidence to support an injury
related to the February 10, 2010 incident. The Board finds that he did not submit sufficient

2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

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

4

Elaine Pendleton, supra note 2.

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

4

medical evidence to support that he sustained an injury causally related to the February 10, 2010
employment incident.7
In a February 10, 2010 emergency room report, Dr. Wiggins advised that appellant had a
history of diabetes and was transported from work after his blood sugar dropped. She diagnosed
low blood glucose and hyperkalemia, resolved. Appellant was admitted overnight and released
on February 11, 2010.
Dr. Wiggins’ failed to provide any explanation regarding the cause of appellant’s
condition on February 10, 2010. She did not address his medical history other than noting his
preexisting diabetes condition. Dr. Wiggins did not state that appellant’s condition was work
related or offer a rationalized opinion on the issue of causal relationship.8 Medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.9 The opinion of a physician supporting causal
relationship must rest on a complete factual and medical background supported by affirmative
evidence, address the specific factual and medical evidence of record and provide medical
rationale explaining the relationship between the diagnosed condition and the established
incident or factor of employment.10 Dr. Wiggins’ report is insufficient to meet appellant’s
burden of proof.11
The remaining medical evidence of record is also insufficient to establish appellant’s
traumatic injury claim. The reports of Dr. Missavage reference appellant’s diabetes and right toe
amputation, recommending a stable work schedule with breaks. The reports predating the
February 10, 2010 employment incident are therefore irrelevant to establish an injury that day.
Dr. Wenkert provided a diagnosis of Type 1 diabetes and recommended a consistent work
schedule so that appellant could adequately plan his meals and insulin doses in order to control
his blood sugar. This evidence is not sufficient to establish appellant’s case.
OWCP accepted that the employing establishment required appellant to seek medical
treatment at a hospital on February 10, 2010. It regulations provide that in unusual or emergency
circumstances it may approve payment for medical expenses incurred.12 OWCP may approve
payment for medical expenses incurred even if a Form CA-16 authorizing medical treatment and
expenses has not been issued and the claim is subsequently denied; payment in such situations
must be determined on a case-by-case basis.13 It did not consider whether emergency
7

See Robert Broome, 55 ECAB 339 (2004).

8

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
9

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

10

See Lee R. Haywood, 48 ECAB 145 (1996).

11

Supra note 9.

12

20 C.F.R. § 10.304.

13

G.S., Docket No. 13-1731 (issued December 3, 3013).

5

circumstances or unusual circumstances were present or whether this was a situation in which
reimbursement of medical expenses was appropriate. OWCP is required to exercise its
discretion to determine whether medical care has been authorized or whether unauthorized
medical care involved emergency or unusual circumstances and is therefore reimbursable
regardless of whether the underlying claim for benefits has been accepted or denied. The
circumstances of the case warrant additional development of this issue. On return of the record,
OWCP should issue a de novo decision on the issue of reimbursement of medical expenses.14
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8126 of FECA provides that the Secretary of Labor, on any matter within her
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.15 The implementing regulations provide that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers or other relevant
documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained
by other means and for witnesses only where oral testimony is the best way to ascertain the
facts.16 In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.17 Section
10.619(a)(1) of the implementing regulations provide that a claimant may request a subpoena
only as a part of the hearings process and no subpoena will be issued under any other part of the
claims process.
To request a subpoena, the requestor must submit the request in writing and send it to the
hearing representative as early as possible, but no later than 60 days (as evidenced by postmark,
electronic marker or other objective date mark) after the date of the original hearing request.18
OWCP’s hearing representative retains discretion on whether to issue a subpoena. The function
of the Board on appeal is to determine whether there has been an abuse of discretion.19 Abuse of
discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of

14

Id.

15

5 U.S.C. § 8126(1).

16

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

17

Id.

18

20 C.F.R. § 10.619(a)(1).

19

See Gregorio E. Conde, supra note 16.

6

judgment or actions taken which are clearly contrary to logic and probable deduction from
established facts.20
ANALYSIS -- ISSUE 2
On January 14, 2013 appellant requested a hearing. By letter dated February 9, 2013, he
requested subpoenas to compel the attendance of Ms. Frankovich and Mr. Patel, his coworkers,
who were present during the February 10, 2010 employment incident. By letter dated April 1,
2013, finalized in the September 5, 2013 decision, OWCP’s hearing representative denied
appellant’s request for subpoenas stating that he had established the factual portion of his claim.
The witnesses had submitted to the record and their attendance was not relevant to the issue on
appeal, which required the submission of medical evidence.
The Board finds that OWCP’s hearing representative properly denied appellant’s
subpoena request. Appellant did not establish why a subpoena was the best method to obtain the
evidence in question or why there was no other means by which the testimony could be obtained.
As noted, the individuals for whom the subpoenas were requested had provided written
statements to the record. An abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic
and probable deduction from established facts.21 The mere showing that the evidence would
support a contrary conclusion is insufficient to prove an abuse of discretion. The Board finds
that the hearing representative did not abuse his discretion in denying appellant’s request for
subpoenas.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that his low
blood glucose and hyperkalemia is causally related to the accepted February 10, 2010
employment incident. In addition, the Board further finds that OWCP properly denied
appellant’s request for a subpoena.

20

Claudio Vazquez, 52 ECAB 496 (2001).

21

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the September 5, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 2, 2014
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Brunswick, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1657
Issued: March 2, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 22, 2009 appellant, through her representative, filed a timely appeal from the
March 5, 2009 merit decision of the Office of Workers’ Compensation Programs, which denied a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case.
ISSUE
The issue is whether appellant has reached maximum medical improvement, warranting
consideration of a schedule award.
FACTUAL HISTORY
On October 18, 2005 appellant, then a 42-year-old carrier technician, sustained an injury
in the performance of duty while throwing flats with her left hand. The Office accepted her
claim for left shoulder tendinitis and brachial neuritis or radiculitis not otherwise specified.
On April 28, 2008 appellant filed a claim for a schedule award. She submitted the
September 4, 2007 evaluation of Dr. Steven M. Allon, an orthopedic surgeon, who examined her

and diagnosed a bulging disc at C6-7, left C7 radiculopathy, left supraspinatus tendinosis, and
status post epidural, facet and trigger point injections. Dr. Allon determined that appellant had a
left upper extremity impairment of 13 percent. He also found that she had reached maximum
medical improvement by the date of his examination.
On October 3, 2008 the Office wrote to Dr. Yasin N. Khan, appellant’s attending pain
specialist: “You have submitted multiple reports which seem to indicate that your patient’s
conditioning may be worsening and/or has not reached a plateau ([m]aximum [m]edical
[i]mprovement). Do you feel your patient has reached maximum medical improvement or have
they reached a state where their condition will not worsen or improve?”
In a decision dated October 28, 2008, the Office denied appellant’s claim for a schedule
award. It explained that in order for consideration to be given to the payment of a schedule
award, the medical evidence must demonstrate that the residuals of the injury have reached a
relatively fixed and permanent state, known as maximum medical improvement. The Office
found that the medical evidence in appellant’s file indicated that her condition had not yet
reached maximum medical improvement.
The Office subsequently received an October 24, 2008 report from Dr. Khan, who stated:
“While we are certain that she is not at maximum medical improvement, we do
not feel as though her condition has worsened. [Appellant] presented to us back
in June of 2007 and started a series of cervical facet injections. She was slated to
undergo facet nerve rhizotomy but did not follow-up secondary to issues with her
insurance. [Appellant] returned to us in July of 2008 where we again attempted to
schedule similar procedures. She is currently in the process of undergoing these
treatments and had last injection on October 8, 2008. [Appellant] is scheduled to
return in approximately two weeks for a costochondral joint injection. We will
continue to keep you updated on her progress.”
Dr. Khan noted that appellant’s diagnoses had not changed since her initial consultation
and had failed to improve “as she has been somewhat limited in the number of treatments that
she has received.” He stated that the treatments were reasonable and necessary to help control
her symptoms from likely chronic pain conditions.
On November 13, 2008 Dr. Khan noted that appellant denied any specific response to
two cervical facet injections and wanted to hold off any trigger point injections for her left
shoulder pain. He would see her back in one month for a routine follow up. Dr. Khan added:
“At this time, we do feel [appellant] is at maximum medical improvement. We do
not feel that her condition is worsening but has plateaued in a sense that she has
not improved since her initial visit in June of 2007. She will continue to need
treatment providing symptomatic relief. The treatment at this time should not be
considered curative but again palliative. We are hoping that she will continue to
improve with time and the ability to minimize over use of the affected extremity
given the fact that imaging to date has demonstrated minimal pathology….”

2

In a decision dated March 5, 2009, the Office reviewed the merits of appellant’s case and
denied modification of its prior decision. It found that, while Dr. Khan reported that appellant
had attained maximum medical improvement, he also stated that she would continue to improve
with time, which meant she had not attained maximum medical improvement.
On appeal, appellant argues that Dr. Khan clearly indicated that she had reached
maximum medical improvement.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.2
The A.M.A., Guides explains that impairment should not be considered permanent until
the clinical findings indicate that the medical condition is static and well stabilized:
“It is understood that an individual’s condition is dynamic. Maximal medical
improvement refers to a date from which further recovery or deterioration is not
anticipated, although over time there may be some expected change. Once an
impairment has reached [maximum medical improvement], a permanent
impairment rating may be performed.”3
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence.4
ANALYSIS
Dr. Allon, the orthopedic surgeon who saw appellant for an impairment rating, found that
she had reached maximum medical improvement by September 4, 2007, the date of his
evaluation. He did not explain how he came to this conclusion.5
Dr. Khan, the treating pain specialist, reported on October 24, 2008 that he was “certain”
appellant was not at maximum medical improvement. He explained that appellant had failed to
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

American Medical Association, Guides to the Evaluation of Permanent Impairment 19 (5th ed. 2001); see Orlando
Vivens, 42 ECAB 303 (1991) (a schedule award is not payable until maximum improvement -- meaning that the
physical condition of the injured member of the body has stabilized and will not improve further -- has been reached).
4

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

5

Medical conclusions unsupported by rationale are of little probative value. Ceferino L. Gonzales, 32 ECAB 1591
(1981); George Randolph Taylor, 6 ECAB 968 (1954).

3

improve because she had received a somewhat limited number of treatments. This contradicted
Dr. Allon’s finding.
Three weeks later, Dr. Khan changed his mind: “At this time, we do feel [appellant] is at
maximum medical improvement.” He repeated that she had not improved since her initial visit
in June 2007, but this time he mentioned nothing about her limited number of treatments.
Dr. Khan explained instead that her treatments were to be considered palliative, not curative. He
stated: “We are hoping that she will continue to improve with time….” As the Office indicated,
continuing improvement does not suggest maximum medical improvement.
So the record is one of contradictory evidence. Dr. Khan contradicted Dr. Allon by
expressing his certainty that appellant was not at maximum medical improvement. A short time
later, he contradicted himself by stating that appellant was at maximum medical improvement,
but noted she would continue to improve.
The Board finds that this evidence is insufficient to establish maximum medical
improvement. Appellant bears the burden of proof to establish her entitlement to a schedule
award. The medical evidence she has submitted to support her claim is inconsistent on the
preliminary issue of maximum medical improvement. As this element is a condition precedent
to consideration of a schedule award, the Board finds that appellant has not met her burden of
proof. The Board will affirm the Office’s March 5, 2009 decision.
CONCLUSION
The Board finds that the evidence is insufficient to establish that appellant has reached
maximum medical improvement, an element critical to her receipt of a schedule award.

4

ORDER
IT IS HEREBY ORDERED THAT the March 5, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 2, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE ARMY, TOOELE
ARMY DEPOT, Tooele, UT, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 17-0344
Issued: February 15, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On November 29, 2016 appellant filed a timely appeal from a June 2, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
assigned Docket No. 17-0344.2
On June 25, 2013 appellant, then a 59-year-old former equipment specialist, filed an
occupational disease claim (Form CA-2) for a hearing disorder (tinnitus) and chronic sinusitis,
which allegedly arose in the performance of duty on or about February 11, 2013. He attributed his
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20
C.F.R. § 501.3(e)-(f). One hundred and eighty days from June 2, 2016, the date of OWCP’s last merit decision, was
November 29, 2016. Because using December 5, 2016, the date the Clerk of the Appellate Boards received the appeal,
would preclude review of the June 2, 2016 decision, the date of the postmark is considered the date of filing. The date
of the U.S. Postal Service postmark is November 29, 2016, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
2

The Board notes that following the June 2, 2016 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

hearing condition to workplace noise, which included exposure to loud machines and
pneumatic/electric equipment. Appellant voluntarily retired effective May 3, 2011.
On January 29, 2014 OWCP accepted appellant’s claim for binaural sensorineural hearing
loss. By separate decision dated January 29, 2014, it found that he was not entitled to a schedule
award because there was no ratable impairment in either ear. OWCP also declined to accept
tinnitus.3
Appellant subsequently requested an oral hearing before OWCP’s Branch of Hearings and
Review. He also submitted additional medical evidence. By decision dated November 25, 2014,
the hearing representative vacated OWCP’s January 29, 2014 schedule award decision, and
remanded the case for further medical development regarding whether appellant had a ratable
hearing loss.
On remand, OWCP referred appellant for a second opinion evaluation. In a January 6,
2015 report, Dr. Stewart E. Barlow, a Board-certified otolaryngologist and OWCP referral
physician, diagnosed bilateral high-frequency sensorineural hearing loss and tinnitus, which he
attributed to appellant’s federal civilian occupational noise exposure. He found 3.4 percent hearing
impairment, plus an additional 4 percent permanent impairment due to tinnitus, for a total binaural
hearing impairment of 7.4 percent.
In a January 8, 2015 report, OWCP’s DMA agreed with Dr. Barlow’s 7.4 percent
permanent impairment rating, but found that the results of the latest audiogram, dated January 6,
2015, were unrelated to appellant’s accepted occupational noise exposure. He noted that appellant
retired in May 2011 and did not have a ratable hearing impairment as of December 16, 2013. The
DMA explained that noise-induced hearing loss stops as soon as the claimant/employee is no
longer exposed to hazardous workplace noise, which in this case was May 3, 2011. He further
explained that the December 16, 2013 audiogram results, which showed no ratable impairment,
were representative of appellant’s work-related damage. As such, the increased impairment
demonstrated on appellant’s January 6, 2015 audiogram was unrelated to his federal workplace
exposure.
By decision dated January 15, 2015, OWCP again denied appellant’s claim for a schedule
award. It explained that the ratable hearing impairment noted on the January 6, 2015 audiogram
was unrelated to appellant’s employment as he had not been exposed to hazardous workplace
noise(s) since May 3, 2011. OWCP also declined to expand the claim to include tinnitus as an
accepted condition.
Appellant timely requested reconsideration and submitted additional medical evidence.4

3
OWCP based its findings on the December 16, 2013 evaluation of Dr. Craig W. Anderson, a Board-certified
otolaryngologist and OWCP referral physician, as well as the January 24, 2014 opinion of its district medical adviser
(DMA). The DMA explained that appellant was not eligible for a tinnitus rating because there was no ratable hearing
impairment in either ear as demonstrated by the December 16, 2013 audiogram.
4
In a March 13, 2015 report, Dr. Barlow indicated that appellant’s hearing loss and tinnitus were due to noise
exposure encountered in his federal civilian employment.

2

OWCP subsequently declared a conflict in medical opinion between the DMA and
Dr. Barlow, the second opinion examiner, regarding whether appellant’s tinnitus was causally
related to his accepted employment exposure. In a January 22, 2016 statement of accepted facts
(SOAF), it noted that the claim had been accepted for “binaural sensorineural hearing loss….”
OWCP also noted that appellant’s work environment included “exposure to high level noise and
required use of protective equipment.” It referred appellant to Dr. Justin D. Gull, a Board-certified
otolaryngologist, to resolve the purported conflict in medical opinion.
In a May 16, 2016 report, Dr. Gull diagnosed bilateral sensorineural hearing loss and
bilateral tinnitus. Based on the results of an April 28, 2016 audiogram, he calculated 8.47 percent
binaural hearing impairment, which included 5 percent impairment due to tinnitus. However,
Dr. Gull concluded that appellant’s hearing loss was not due to noise exposure encountered in his
federal civilian employment. He explained that preexisting asymmetry in hearing combined with
presbycusis led to appellant’s hearing loss. In his narrative report, Dr. Gull reiterated his belief
that appellant’s “symptoms” and his “impairment” were “unrelated to his employment.”
In a May 27, 2016 report, another DMA reviewed Dr. Gull’s findings and calculated 8.1
percent binaural hearing impairment, which included 4 percent impairment due to tinnitus.5
By decision dated June 2, 2016, OWCP denied modification of its January 15, 2015
schedule award decision. It found that Dr. Gull, the “referee examiner,” represented the weight of
the medical evidence, which demonstrated that there was no causal relationship between
appellant’s binaural hearing impairment and his federal employment exposure that ended
May 3, 2011.6
The Board finds that the case is not in posture for decision regarding appellant’s claimed
entitlement to a schedule award. OWCP erroneously declared a conflict in medical opinion
between its DMA and an OWCP referral physician (2nd opinion), Dr. Barlow. As neither physician
was appellant’s treating physician, OWCP improperly declared a conflict in medical opinion.7
Absent a true conflict in medical opinion, Dr. Gull’s May 16, 2016 opinion cannot be afforded
determinative weight as an impartial medical evaluation. However, even as a second opinion
evaluation, Dr. Gull’s finding regarding the cause of appellant’s binaural hearing loss/impairment
lacks probative value.
The January 22, 2016 SOAF clearly delineated that appellant’s claim had been accepted
for employment-related “binaural sensorineural hearing loss….” Dr. Gull ostensibly disagreed
with OWCP regarding the cause of appellant’s accepted hearing condition. He offered a contrary
opinion noting that the current hearing loss was due to a combination of age-related change and
an asymmetry that preexisted his employment. An OWCP referral physician’s findings, be it a
second opinion or impartial medical evaluation, must be based on the factual underpinnings of the
5

In a June 1, 2016 supplemental report, the DMA recommended hearing aids.

6

In a separate June 2, 2016 decision, OWCP authorized hearing aids.

7

See 5 U.S.C. § 8123(a); 20 C.F.R. § 10.321(b); S.G., 58 ECAB 383, 387 (2007) (a conflict may only exist between
an employee’s physician and a physician designated or approved by OWCP); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11a (September 2010).

3

claim, as set forth in the SOAF.8 The SOAF should be the framework of the referral physician’s
opinion.9 As Dr. Gull’s May 16, 2016 second opinion evaluation is inconsistent with OWCP’s
January 22, 2016 SOAF, his opinion on causal relationship is of diminished probative value.10
Once OWCP undertakes development of the record, it must do a complete job in procuring
medical evidence that will resolve the relevant issues in the case.11 Because of the above-noted
deficiencies in Dr. Gull’s report, additional medical development is warranted. Accordingly, the
June 2, 2016 schedule award decision shall be set aside, and the case remanded for further medical
development. After such further development as OWCP deems necessary, it shall issue a de novo
decision regarding appellant’s entitlement to a schedule award.
IT IS HEREBY ORDERED THAT the June 2, 2016 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this order.
Issued: February 15, 2019
Washington, DC

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

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

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

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.2c
(September 2009).
9

Id. at Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.3f and 3.500.4g (June 2015).

10

Id. at Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3a (October 1990).

11

See A.P., Docket No. 17-0813 (issued January 3, 2018); Richard F. Williams, 55 ECAB 343, 346 (2004).

4