United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Kearny, NJ,
Employer
__________________________________________

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

Docket No. 18-1726
Issued: April 2, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 13, 2018 appellant, through counsel, filed a timely appeal from a July 5,
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 her burden of proof to establish that her right
shoulder, right wrist/hand, and lumbar conditions are causally related to the accepted factors of
her federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as set forth in the
Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
On August 16, 2011 appellant, then a 51-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that she sustained right shoulder, right wrist/hand, and lower back injuries
due to performing her repetitive job duties.4 She indicated that she pushed mail trays on a roller
up a conveyor belt, dislodged mail trays on the conveyor belt when they became stuck, sleeved
mail trays with straps, and lifted and emptied mail bins when they were full. Appellant reported
that she first became aware of her claimed conditions in June 2007 and first became aware of their
relationship to her federal employment on August 10, 2011.5
She stopped work on
6
August 10, 2011 and did not return.
By decision dated November 15, 2011, OWCP denied appellant’s claim, finding that she
failed to submit evidence sufficient to establish that the claimed conditions were causally related
to the accepted factors of her federal employment. By decisions dated March 30, 2012 and
February 26, 2013, it denied modification of its denial of her claim for work-related occupational
conditions.7
Appellant subsequently appealed to the Board and, by decision dated September 9, 2013,8
the Board affirmed OWCP’s February 26, 2013 decision denying her claim for work-related
occupational conditions. The Board found that she failed to submit a rationalized, probative
medical opinion which related her alleged current right shoulder, right wrist/hand, and lower back
conditions to federal employment factors.

3

Docket No. 17-0533 (issued August 7, 2017); Docket No. 13-1043 (issued September 9, 2013).

4

OWCP assigned appellant’s claim OWCP File No. xxxxxx363.

5

Appellant reported that, approximately two months prior to filing her claim, she began working in a position which
involved handling a greater volume of mail. In an accompanying statement, she described additional work duties
including sweeping mail bins.
6

Appellant retired from the employing establishment on disability retirement commencing February 20, 2018. The
case record reflects that OWCP previously accepted, under a separate file (OWCP File No. xxxxxx560), that she
sustained a work-related lumbar sprain on March 8, 2010. This injury is not the subject of the present appeal.
7

In these decisions, OWCP found that the medical reports submitted by appellant did not contain adequate medical
rationale to establish her claim for work-related occupational diseases, including medical reports of Dr. Jeffrey F.
Augustin, an attending Board-certified orthopedic surgeon, and Dr. Shailendra Hajela, an attending Board-certified
physical medicine and rehabilitation physician.
8

Supra note 3.

2

On January 17, 2014 appellant, through counsel, requested reconsideration of her claim.
Counsel submitted an October 30, 2013 report from Dr. Augustin who indicated that a magnetic
resonance imaging (MRI) scan of her lumbosacral spine disclosed bulging annuli at T12-L1, L34, and L5-S1 and moderate disc protrusion at L5-S1.9 He discussed appellant’s work duties and
noted, “Repeated bending and lifting has caused [appellant] to have not only lumbar strain, but a
disc protrusion.” Dr. Augustin opined that there was a direct correlation between the “heavy work”
she performed and her “injuries of rotator cuff, lumbar strain, and disc protrusion.”
By decision dated February 28, 2014, OWCP denied appellant’s claim, finding that she
failed to submit evidence sufficient to establish that the claimed conditions were causally related
to factors of her federal employment.
On January 30, 2015 appellant, through counsel, requested reconsideration and submitted
a December 23, 2014 report from Dr. Hajela who advised that her history of injury might
predispose her to the premature development of lumbar spine osteoarthritis. Dr. Hajela diagnosed
lumbar dysfunction, lumbar radicular pain, lumbar disc protrusion at L4-5, bulging annuli at T12L1, L3-4, and L5-S1, and left hip bursitis. He noted that, based on appellant’s history, complaints,
examinations, test results, and lack of previous symptoms, it was his opinion, within a reasonable
degree of medical probability, that the diagnosed conditions were directly and causally related to
her repetitive work activities.
The findings of June 29, 2015 electromyogram (EMG) and nerve conduction velocity
(NCV) testing of appellant’s lower extremities showed reduced amplitude in the left and right
tibial motor nerves and increased insertional activity associated with several nerve distributions
which innervated the left anterior tibialis, left biceps femoris, and left paraspinal muscles. The
findings of a July 9, 2015 MRI scan of her lower back showed degenerative disc changes between
the T12 and S1 levels.
By decision dated August 15, 2016, OWCP denied modification of the February 28, 2014
decision, finding that appellant failed to submit a rationalized medical opinion establishing an
occupational condition as alleged.
On September 26, 2016 appellant, through counsel, requested reconsideration. Counsel
resubmitted a copy of the December 23, 2014 report of Dr. Hajela. By decision dated
November 29, 2016, OWCP denied modification of its August 15, 2016 decision.
Appellant subsequently appealed to the Board and, by decision dated August 7, 2017,10 the
Board affirmed OWCP’s November 29, 2016 decision, finding that she failed to submit a
rationalized, probative medical opinion relating her claimed right shoulder, right wrist/hand, and
lower back conditions to factors of her federal employment.
On June 5, 2018 appellant, through counsel, requested reconsideration of her claim.

9

The record includes the findings of December 4, 2009 MRI scan testing of the lumbosacral spine, which contains
an impression of bulging annuli at T12-L1, L3-4, and L5-S1 and moderate disc protrusion at L4-5 (rather than at L5S1 as reported by Dr. Augustin).
10

Supra note 3.

3

Appellant submitted an April 18, 2018 MRI scan of her lumbar spine which showed diffuse
annular bulges with facet hypertrophy and ligament thickening at L2-3, mild disc bulging with
facet hypertrophy and ligament thickening at L3-4, annular bulge with a small central sub
ligamentous midline disc protrusion at L4-5 (larger than bulge at L3-4), and diffuse annular bulge
with bulky facet hypertrophy at L5-S1.
The April 30, 2018 findings of EMG/NCV testing of appellant’s lower extremities revealed
unremarkle results with respect to the bilateral peroneal motor, tibial motor, superﬁcial peroneal
sensory, and sural sensory nerves.11
In a May 3, 2018 report, Melissa Gallagher, an attending physician assistant, indicated that
appellant presented complaining of back pain, which she reported had been present since she
suffered a back injury at work in 2011. She detailed the findings of her physical examination and
diagnosed hip bursitis, lumbar dysfunction, lumbar radiculopathy, and facet joint arthropathy.
By decision dated July 5, 2018, OWCP denied appellant’s claim, finding that she did not
establish work-related occupational conditions of her right shoulder, right wrist/hand, and lower
back.
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,12 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.13 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.14 To establish that an injury was sustained in the performance of duty in an
occupational disease claim, a claimant must submit the following: (1) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; (2) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; and (3) medical evidence
establishing that the diagnosed condition is causally related to the identified employment factors.15
The medical evidence required to establish causal relationship generally is rationalized medical

11

Appellant also submitted a copy of previously submitted June 29, 2015 EMG/NCV testing results.

12
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
13

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
14

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).
15

C.D., id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

opinion evidence.16 The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the established employment factors.17
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her right
shoulder, right wrist/hand, and lumbar conditions are causally related to factors of her federal
employment.
As noted, the Board previously affirmed OWCP’s February 26, 2013 and November 29,
2016 decisions. OWCP’s latest decision, and the subject of the current appeal, was issued on
July 5, 2018. Findings made in prior Board decisions are res judicata absent any further review
by OWCP under section 8128 of FECA.18 Therefore, the current analysis will focus on the relevant
medical evidence received since OWCP’s November 29, 2016 merit decision, which is the
evidence that was not before the Board when it last reviewed appellant’s claim on August 7, 2017.
Appellant submitted a May 3, 2018 report from Ms. Gallagher, an attending physician
assistant, who indicated that appellant presented complaining of back pain which she reported had
been present since she suffered a back injury at work in 2011. Ms. Gallagher diagnosed hip
bursitis, lumbar dysfunction, lumbar radiculopathy, and facet joint arthropathy. This report does
not constitute competent medical evidence because a physician assistant is not considered a
“physician” as defined under FECA.19 As such, this evidence is insufficient to meet appellant’s
burden of proof.
Appellant also submitted an April 18, 2018 MRI scan of her lumbar spine which showed
degenerative disc disease changes, including disc bulges, at L2-3, L3-4, L4-5, and L5-S1. The
April 30, 2018 findings of EMG/NCV testing of her lower extremities revealed unremarkle results
with respect to the bilateral peroneal motor, tibial motor, superﬁcial peroneal sensory, and sural
sensory nerves. The Board notes, however, that these diagnostic testing reports would have no
probative value with respect to appellant’s claim for work-related occupational conditions because
the reports do not contain an opinion on the cause of the medical conditions described therein. The
Board has held that reports of diagnostic testing lack probative value as they do not provide an

16

F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

17

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

18

See B.R., Docket No. 17-0294 (issued May 11, 2018).

19

See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23,
2018); 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).

5

opinion on causal relationship between the accepted employment factors and a diagnosed
condition.20
As appellant has not submitted any rationalized medical evidence establishing that her right
shoulder, right wrist/hand, and lumbar conditions are causally related to accepted factors of her
federal employment, she has failed to meet her 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 her burden of proof to establish that her right
shoulder, right wrist/hand, and lumbar conditions are causally related to factors of her federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the July 5, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 2, 2019
Washington, DC

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

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

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

20
R.G., Docket No. 18-1045 (issued February 1, 2019). Appellant also submitted a copy of previously submitted
June 29, 2015 EMG/NCV testing results, which the Board has previously found to be insufficient to establish her
claim.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lexington, MS, Employer
__________________________________________

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

Docket No. 18-0904
Issued: November 27, 2018

Case Submitted on the Record

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

JURISDICTION
On March 27, 2018 appellant filed a timely appeal from an October 23, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a lumbar injury
causally related to the accepted June 9, 2017 employment incident.
FACTUAL HISTORY
On June 9, 2017 appellant, then a 51-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that, on that date, she experienced back pain and acute lumbar spasm as a result of

1

5 U.S.C. § 8101 et seq.

reaching over a counter to manually roll up a window. She stopped work on the date of injury and
has not returned.
In support of her claim appellant submitted a June 10, 2017 attending physician’s report
(Form CA-20) from Dr. L.C. Tennin, Jr., an attending Board-certified internist. Dr. Tennin related
a history of injury that on June 9, 2017 appellant experienced an acute onset of back pain while
lifting a window at work. He noted that she had a history of chronic low back pain. Dr. Tennin
provided findings on examination and diagnosed acute lumbar spasm. He checked a box marked
“yes” when asked whether he believed the condition was caused or aggravated employment
activity. Dr. Tennin indicated that appellant was totally disabled from her date of injury through
June 22, 2017. He advised that she could return to her regular-duty work on June 26, 2017.
In a June 22, 2017 letter, the employing establishment controverted appellant’s claim
noting that she failed to establish either fact of injury or that the claimed medical condition was
causally related to her employment.
OWCP, by development letter dated June 23, 2017, advised appellant of the deficiencies
of her claim and requested that she submit additional medical evidence, including a medical report
from her attending physician including a diagnosis, history of the injury, examination findings,
and a rationalized opinion explaining how the reported work incident caused or aggravated her
medical condition. OWCP afforded 30 days for submission of the necessary evidence.
OWCP subsequently received a series of additional reports from Dr. Tennin. In a June 27,
2017 return to work certificate, Dr. Tennin released appellant to return to work on July 23, 2017.
In a June 27, 2017 physical therapy referral slip, he ordered physical therapy, three times a week,
for four weeks and reiterated his diagnosis of lumbar spasm. Dr. Tennin, in a duty status report
(Form CA-17) dated July 1, 2017, restated appellant’s history of injury and described clinical
findings. He diagnosed low back pain due to injury. Dr. Tennin noted that she could not return to
her regular work duties, but she could work with restrictions.
OWCP also received July 3, 10, 12, and 14, 2017 daily notes from appellant’s physical
therapist who indicated a diagnosis of back muscle spasm.
By decision dated July 25, 2017, OWCP denied appellant’s traumatic injury claim. It
accepted that the June 9, 2017 incident occurred as alleged, but denied the claim as appellant failed
to establish a diagnosed medical condition causally related to the accepted employment incident.
OWCP explained that “spasm” was a symptom, not a medical diagnosis.
Additional daily notes dated July 17, 19, 24, and 26, 2017 were received from the same
physical therapist who reiterated his diagnosis of back muscle spasm.
By appeal request form and a letter received by OWCP on August 10 and 11, 2017,
respectively, appellant requested reconsideration of OWCP’s July 25, 2017 decision and submitted
additional medical evidence. She submitted an August 3, 2017 report from Dr. Tennin who again
described the June 9, 2017 employment incident and discussed findings on physical examination.
Dr. Tennin advised that the activity of reaching over a desk while lifting a window precipitated
and aggravated appellant’s chronic back pain condition.

2

Appellant also submitted a June 20, 2017 lumbar spine x-ray report from Dr. Ralph P.
Wells, a Board-certified radiologist, who found spondylolysis of L3 with spondylolisthesis of L3
on L4 and severe associated degenerative changes.
Daily notes dated July 31 and August 2 and 4, 2017 from the same physical therapist again
provided a diagnosis of back muscle spasm.
By decision dated October 23, 2017, OWCP denied modification of its July 25, 2017
decision. It found that she had not submitted sufficient rationalized medical evidence to establish
causal relationship between her degenerative lumbar conditions and the accepted 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 by the weight of the reliable, probative, and substantial
evidence2 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.4 There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.5
The second component of fact of injury is whether the employment incident caused a
personal injury and generally can be established only by medical evidence.6 The evidence required
to establish causal relationship is rationalized medical opinion evidence, based upon complete
factual and medical background, showing a causal relationship between the claimed condition and
the identified incident.7 The belief of the claimant that a condition was caused or aggravated by
the employment is insufficient to establish a causal relationship.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
2

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

3

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

5

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

6

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
7

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

8

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

3

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 identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a lumbar injury
causally related to the accepted June 9, 2017 employment incident.
Appellant submitted a series of reports from her attending physician, Dr. Tennin.
Dr. Tennin’s June 10, 2017 Form CA-20 report described the June 9, 2017 employment incident,
noted appellant’s history of chronic low back pain, provided examination findings, and diagnosed
acute lumbar spasm. He failed, however, to provide a specific diagnosis. Spasm has been found
to be a symptom, not a diagnosis.10 Dr. Tennin did not diagnose an actual medical condition
causing the spasm or pain.11 Similarly, his July 1, 2017 Form CA-17 report reiterated appellant’s
history of injury. Dr. Tennin diagnosed low back pain due to injury and advised that while
appellant could not perform her regular work she could work with restrictions. The Board notes
that pain is a symptom, not a compensable medical diagnosis.12 In his August 3, 2017 report,
Dr. Tennin related a history of the June 9, 2017 employment incident and discussed findings on
physical examination. He opined that the accepted work incident precipitated and aggravated
appellant’s chronic back pain condition. Dr. Tennin failed to provide a diagnosis of appellant’s
lumbar condition which reportedly caused lumbar pain and spasm. To establish personal injury,
the medical evidence of record must document a diagnosed condition and must explain how that
condition is causally related to the accepted factors of employment. Lacking a firm diagnosis and
rationalized medical opinion regarding causal relationship, a medical report if of limited probative
value.13 As Dr. Tennin did not diagnose a medical condition and he did not provide a rationalized
medical explanation as to how appellant’s accepted employment incident caused the diagnosed
medical condition, his opinion is of limited probative value.
While Dr. Wells’ June 20, 2017 x-ray report did offer a diagnosis of spondylolysis of L3
with spondylolisthesis of L3 on L4 and severe associated degenerative changes. The Board has
held that diagnostic studies are of limited probative value as they do not address whether the
employment incident caused any of the diagnosed conditions.14

9

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

10

See J.G., Docket No. 17-1382 (issued October 18, 2017).

11

See D.K., Docket No. 17-1186 (issued June 11, 2018).

12

C.M., Docket No. 18-0146 (issued August 16, 2018).

13

See D.S., Docket No. 18-0061 (issued May 29, 2018).

14

See J.S., Docket No. 17-1039 (issued October 6, 2017).

4

Appellant submitted physical therapy records in support of her claim. However, physical
therapists are not considered physicians as defined under FECA. Thus, their reports are of no
probative value and are insufficient to establish appellant’s claim.15
The Board finds that appellant has failed to submit rationalized, probative medical evidence
sufficient to establish that her diagnosed lumbar condition is causally related to her employment
incident of June 9, 2017.16 Appellant therefore has not met her burden of proof.
On appeal appellant contends that she submitted sufficient medical evidence to establish
that she sustained a work-related back injury. An award of compensation may not be based on
surmise, conjecture, speculation, or on the employee’s own belief of causal relation.17 Appellant’s
honest belief that her accepted employment incident caused an injury, however sincerely held,
does not constitute medical evidence sufficient to establish the claim.18
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 her burden of proof to establish a lumbar injury
causally related to the accepted June 9, 2017 employment incident.

15

5 U.S.C. § 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law; J.G., Docket No. 15-0251 (issued April 13, 2015); A.C., Docket No. 08-1453 (issued November 18,
2008) (records from a physical therapist do not constitute competent medical opinion in support of causal relationship,
as physical therapists are not considered physicians as defined under FECA).
16

Supra note 13.

17

D.D., 57 ECAB 734 (2006).

18

See B.P., Docket No. 17-1572 (issued April 12, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the October 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 27, 2018
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
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and
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U.S. POSTAL SERVICE, SUNSET POINT POST )
OFFICE, Clearwater, FL, Employer
)
__________________________________________ )
S.G., Appellant

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

Docket No. 14-1154
Issued: December 15, 2014

Case Submitted on the Record

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

JURISDICTION
On April 21, 2014 appellant filed a timely appeal from a March 10, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation benefits effective
March 10, 2014 based on his actual earnings as a modified sales solution team member.
On appeal, appellant asserted that the position assigned to him was a makeshift job in a
pilot reemployment program that required recertification every six months. He contends that the
job required repetitive upper extremity motion in violation of his work restrictions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.2 In an order issued February 14, 2006, the
Board remanded the case to OWCP for further development as to the appropriate percentage of
left upper extremity impairment. In a decision dated October 6, 2008,3 the Board remanded the
case to OWCP for additional development regarding the percentage of permanent impairment of
the left upper extremity. The facts of the case as set forth in the Board’s prior decisions are
incorporated by reference.
On September 27, 2007 appellant accepted a rehabilitation job offer as a modified city
carrier at retained pay. By decision dated February 22, 2008, OWCP found that his actual
earnings as a modified city carrier fairly and reasonably represented his wage-earning capacity.
It reduced appellant’s monetary compensation to zero as his actual earnings equaled those of the
job and step of the position he held at the time of a January 26, 2007 recurrence of disability.4
Dr. Harry Steinman, an attending Board-certified orthopedic surgeon, provided
permanent work restrictions on June 8, 2008. He advised against lifting above shoulder level,
lifting more than 15 pounds, use of the hands above shoulder level and repetitive upper extremity
motion. Beginning in January 2009, appellant was followed by Dr. Thomas Odmark, an
attending Board-certified orthopedic surgeon, who noted that appellant was status post repeat
bilateral rotator cuff repair surgeries and bilateral shoulder impingement. Dr. Odmark renewed
Dr. Steinman’s work restrictions commencing July 8, 2009.
The employing establishment placed appellant on administrative leave effective
September 25, 2009 as there was no work available within his restrictions. Appellant received
wage-loss compensation on the periodic rolls.
On August 13, 2010 Dr. Odmark provided work restrictions, limiting lifting to 15 pounds
and no overhead activity. OWCP subsequently referred appellant for vocational rehabilitation.
A vocational rehabilitation counselor administered aptitude and interest tests. OWCP also
authorized appellant’s participation in a clerical computer training course. Dr. Odmark provided
updated work limitations on April 22, 2011, restricting lifting to 15 pounds with no overhead
reaching or lifting.
As the placement plan did not result in appellant’s reemployment, the vocational
rehabilitation counselor selected the positions of customer service representative (U.S.
Department of Labor, Dictionary of Occupational Titles (DOT) #239.362.014, and information
2

Docket No. 05-1507 (issued February 14, 2006). OWCP accepted that appellant sustained synovitis, bursitis,
osteoarthritis, a loose body, and superior labrum anterior and posterior (SLAP) tear of the left shoulder. Appellant
underwent surgery on June 10 and August 26, 2013.
3

Docket No. 08-1918 (issued October 6, 2008).

4

By decision dated October 15, 2008, OWCP granted appellant an additional schedule award for 18 percent
impairment of the left upper extremity, in addition to 5 percent schedule award issued previously. By decision dated
October 22, 2008, it granted him a schedule award for an additional 13 percent impairment of the right upper
extremity, in addition to the 9 percent previously awarded.

2

clerk (DOT #237.367.022) as within his medical limitations and vocational abilities. The
vocational rehabilitation counselor performed a labor market survey to determine whether entry
level positions were available for both positions in appellant’s commuting area.
By notice dated February 1, 2012, OWCP advised appellant that it proposed to modify
the 2008 loss of wage-earning capacity determination by reducing his wage-loss compensation
benefits based on his ability to earn $457.60 a week in the selected position of customer service
representative. Appellant was afforded 30 days to present evidence or argument. He did not
respond to OWCP’s notice.
By decision dated March 7, 2012, OWCP reduced appellant’s wage-loss compensation
effective March 11, 2012 under sections 8106 and 8115 of FECA,5 based on his ability to earn
$457.60 a week in the constructed position of customer service representative.
On January 23, 2013 appellant accepted a position with the employing establishment as a
modified sales solution team member at retained pay of $56,508.00 a year. The employing
establishment noted that the offer was modified due to his accepted conditions. The job required
answering the telephone, making telephone calls, computer keyboarding, using a computer
mouse, clerical tasks, sitting, and standing. Appellant began work on February 11, 2013.
Appellant sought treatment from Dr. Scott M. Wisotsky, an attending Board-certified
orthopedic surgeon. On January 21, 2013 Dr. Wisotsky renewed Dr. Odmark’s restrictions
against lifting over 15 pounds and any overhead activity. In a June 20, 2013 report, he diagnosed
bilateral shoulder impingement and rotator cuff tears. Dr. Wisotsky also restricted appellant
from repetitive work.
Appellant stopped work on June 21, 2013 as the employing establishment could not
accommodate the additional restriction against repetitive motion. OWCP placed him on the
periodic rolls effective June 21, 2013. In a July 15, 2013 memorandum, it stated that the
wage-earning capacity determination required modification as appellant had been vocationally
rehabilitated. OWCP noted that there was no error in the original wage-earning capacity
determination and that his physical condition had not worsened.
In an August 23, 2013 letter, the employing establishment asserted that the modified sales
solution team position required very little repetitive work and no lifting. The job remained open
and available.
In a September 16, 2013 report, Dr. Wisotsky advised that appellant was not at maximum
medical improvement.6 He diagnosed bilateral rotator cuff syndrome, impingement and possible
rotator cuff tears. Dr. Wisotsky restricted appellant from overhead reaching, repetitive use of
upper extremity, no lifting away from the body, and no overhead lifting.

5

5 U.S.C. §§ 8106 and 8115.

6

A September 6, 2013 arthrogram of the left shoulder showed a SLAP lesion, supraspinatus tendinosis with
partial thickness tear, a partial tear of the biceps tendon, acromioclavicular arthrosis, and impingement.

3

On September 26, 2013 the employing establishment offered appellant the modified sales
solution team member job which he had worked from February 11 to June 21, 2013, stating that
it required “very little repetitive work and no lifting.” It noted that the position required fine
manipulation of a keyboard from four to eight hours a day and use of a computer mouse.
On September 30, 2013 Dr. Wisotsky noted that appellant continued to work light duty
and made approximately 1,500 calls a day. He advised that appellant had positive impingement
of both shoulders and would need to remain on limited duty with no repetitive use of the upper
extremities. The record contains a copy of an October 1, 2013 letter from the employing
establishment to Dr. Wisotsky, received by OWCP on October 11, 2013. The employing
establishment asked Dr. Wisotsky to check either “yes” or “no” as to whether appellant could
return to work in the sedentary capacity as a “customer care agent.” There is a checkmark on the
“yes” line, indicating that appellant could perform the job. Appellant returned to work on
October 10, 2013 at retained pay of $56,508.00 a year.
In an October 17, 2013 report, Dr. Wisotsky opined that appellant needed surgical
revision of the previous decompression and resection of the left rotator cuff, but was unable to
undergo arthroscopy secondary to a stent placement. He noted that appellant remained on the
same restrictions against repetitive use of the bilateral upper extremities, no lifting away from the
body or overhead.7
On January 23, 2014 appellant accepted a position as a modified sales solution team
member at his previous retained pay salary. The duties included keyboarding for four to eight
hours a day intermittently and using a telephone.
By decision dated March 10, 2014, OWCP reduced appellant’s wage-loss compensation
under sections 8106 and 8115 of FECA on the grounds that he had no loss of wage-earning
capacity. It noted that his medical benefits remained unaffected. OWCP noted that the current
pay rate for appellant’s job and step as of January 26, 2007 when disability recurred was
$1,086.70, equal to his actual earnings as a modified sales solution team member. It found that
actual earnings were the best measure of earning capacity.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction of benefits.8 Under section 8115(a), wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her
wage-earning capacity. If the actual earnings do not fairly and reasonably represent his or her
wage-earning capacity or if the employee has no actual earnings, his or her wage-earning
capacity is determined with due regard to the nature of the injury, the degree of physical
impairment, his or her usual employment, age, qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect wage7

On October 21, 2013 OWCP approved Dr. Wisotsky’s request to authorize left shoulder arthroscopy.

8

David W. Green, 43 ECAB 883 (1992).

4

earning capacity in his or her disabled condition.9 In determining an employee’s wage-earning
capacity, OWCP may not rely on a makeshift or odd lot position or one not reasonably available
on the open labor market.10 Compensation payments are based on the wage-earning capacity
determination.11
ANALYSIS
OWCP accepted that appellant sustained bilateral shoulder impingement, bilateral rotator
cuff tears, bilateral tendon conditions, and carpal tunnel syndrome in the performance of duty,
requiring multiple surgeries. Dr. Steinman, an attending Board-certified orthopedic surgeon,
provided permanent work restrictions on June 8, 2008 against lifting more than 15 pounds, using
his hands above shoulder level, and repetitive motion of the upper extremities. Dr. Odmark, an
attending Board-certified orthopedic surgeon, reduced these restrictions on August 13, 2010,
limiting lifting to 15 pounds with no overhead activity.
Following a vocational rehabilitation effort, OWCP reduced appellant’s wage-loss
compensation effective March 11, 2012 based on his ability to earn wages in the selected
position of customer service representative.
Appellant then accepted an employing
establishment position as a modified sales solution team member, answering the telephone and
using a computer. He began work on February 11, 2013 at full salary with retained pay.
Dr. Wisotsky, an attending Board-certified orthopedic surgeon, restricted appellant from
repetitive use of the upper extremities as of June 20, 2013. Appellant stopped work again on
June 21, 2013 as the modified position was no longer within his medical restrictions.
Dr. Wisotsky renewed appellant’s restrictions, including prohibiting repetitive use of the hands
and arms, in reports through September 16, 2013.
The employing establishment offered appellant a modified sales solution team position at
retained pay. Appellant accepted the job on January 23, 2014, with keyboarding for up to eight
hours a day. By March 10, 2014 decision, OWCP reduced his wage-loss compensation to zero
on the grounds that he had no loss of wage-earning capacity, based on his actual earnings. In
Michael E. Moravec,12 the Board noted that actual earnings are the preferred measure of
wage-earning capacity if they fairly and reasonably represent such capacity.13 The Board stated:
“This view constitutes a natural extension of the generalized principle of workers’
compensation law that wage-earning capacity is a measure of the employee’s
ability to earn wages in the open labor market under normal employment

9

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

10

E.W., Docket No. 14-584 (issued July 29, 2014); Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35
ECAB 581 (1984).
11

See Sharon C. Clement, 55 ECAB 552 (2004).

12

46 ECAB 492 (1995).

13

Id. at 498.

5

conditions rather than in a makeshift position or other position at retained pay not
necessarily reflective of true wage-earning capacity.”14
The record on appeal reflects that appellant accepted the modified sales solution team
position that required computer keyboarding for up to eight hours a day. On appeal, appellant
contends that the job was a pilot program renewed every six months and makeshift, but his return
to work at retained pay does not establish a loss in wage-earning capacity. As used in FECA, the
term “disability” means the incapacity because of an injury in employment to earn wages the
employee was receiving at the time of the injury.15
The Federal (FECA) Procedure Manual provides that, if an employee has actual earnings
that do not fairly and reasonably represent his wage-earning capacity, a formal loss of
wage-earning capacity should not be issued but compensation payable for a period in which the
employee has earnings should be reduced to reflect such earnings.16 In this case, OWCP’s
formal loss wage-earning capacity determination is not supported by the medical evidence of
record; however, given appellant’s full salary at retained pay, he has no disability as defined
under FECA.
CONCLUSION
The Board finds that the March 10, 2014 formal wage-earning capacity should be set
aside. Appellant’s earnings of retained pay equivalent to those when injured preclude a finding
of disability.

14

Id. See also Stanley B. Plotkin, 51 ECAB 700 (2000).

15

See William H. Kong, 53 ECAB 394 (2002); Shirley A. Temple, 48 ECAB 404 (1997).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Chapter 2.815.5(e) (June 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the March 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: December 15, 2014
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 10-356
Issued: October 19, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 20, 2009 appellant, through her attorney, filed a timely appeal of an
August 14, 2009 Office of Workers’ Compensation Programs’merit decision. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than 23 percent permanent impairment of her left
upper extremity and 5 percent of the right upper extremity for which she received schedule
awards.
FACTUAL HISTORY
This case has previously been on appeal before the Board. On November 12, 2004
appellant, then a 50-year-old clerk, filed an occupational disease claim alleging that she
developed a bilateral wrist condition as a result of her federal employment. She underwent an
electromyogram (EMG) and nerve conduction studies on December 7, 2004 which demonstrated
bilateral carpal tunnel syndrome and mild Guyon’s canal syndrome bilaterally. On April 11,

2005 the Office accepted the claim for bilateral carpal tunnel syndrome. Dr. A. Lee Osterman, a
Board-certified orthopedic surgeon, performed left median nerve decompression and neurolysis,
as well as flexor tenosynovectomy and bursectomy on July 26, 2006. An electromyogram dated
June 20, 2005 demonstrated carpal tunnel syndrome on the right and very borderline carpal
tunnel syndrome on the left. Dr. Osterman performed a right median nerve decompression and
neurolysis and flexor tenosynovectomy and bursectomy of the right wrist on October 4, 2005.
Appellant underwent an additional EMG on March 27, 2006 which demonstrated mild median
nerve neuropathy at the right wrist.
By decision dated April 25, 2006, the Office denied appellant’s claim for a recurrence of
disability beginning February 4, 2006. Appellant requested a review of the written record on
May 18, 2006. By decision dated August 28, 2006, the hearing representative affirmed the
April 25, 2006 decision. Appellant through her attorney requested reconsideration on
December 11, 2006. The Office denied modification by decision dated February 2, 2007. In the
January 15, 2008 decision and order, the Board found that appellant had not established a
recurrence of disability on or after February 4, 2006 and affirmed the Office’s decisions.1 The
facts and the circumstances of the case as set out in the Board’s prior decision are adopted herein
by reference.
Appellant requested a schedule award and submitted a report from Dr. David Weiss, an
osteopath, dated September 9, 2008. He stated that appellant’s March 27, 2006 EMG
demonstrated mild medial nerve neuropathy. Dr. Weiss reported no thenar or hypothenar
atrophy. He found normal range of motion in both hands with positive Tinel’s and Phalen’s
signs. The right hand had normal opposition strength and resisted thumb abduction. Dr. Weiss
found loss of grip strength on the right with 14 kilograms on the right and 30 kilograms on the
left. He also found three kilograms of pinch testing on the right and seven kilograms on the left.
The left hand demonstrated 4/5 resisted thumb abduction and normal opposition strength.
Dr. Weiss found two-point discrimination was 10 millimeters on the left and 6 millimeters on the
right. He concluded that appellant had loss of motor strength in the left thumb of 9 percent,
Grade 2 sensory deficit of the left median nerve resulting in 10 percent impairment for 18
percent impairment of the left upper extremity. Dr. Weiss reported 20 percent impairment due to
right lateral pinch deficit and 3 percent impairment due to pain under Chapter 18 for a total right
upper extremity impairment of 23 percent. He provided citations to the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.
The district medical adviser, Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon, reviewed appellant’s claim on December 21, 2008. He noted that Dr. Weiss’
examination of the right hand demonstrated no thenar or hypothenar atrophy and that sensory
examination demonstrated diminished light touch over the left median nerve and two-point
discrimination of 10 millimeters (mm) on the left median nerve. Dr. Berman found that
Dr. Weiss’ calculations did not indicate any sensory deficit in the right upper extremity. He
concluded that as there was no evidence of atrophy it would not be appropriate to consider an
award for weakness. Dr. Berman further noted that under the A.M.A., Guides decreased strength
cannot be rated in the presence of painful conditions. He reviewed Dr. Weiss’ recommendation
1

Docket No. 07-1670 (issued January 15, 2008).

2

of a pain-related impairment of three percent and disagreed that either this or a decreased
strength rating were appropriate. Dr. Berman opined that appellant’s clinical picture correlated
with normal sensibility and opposition strength with abnormal sensory and/or motor latencies or
abnormal EMG of the thenar muscles and a permanent impairment rating of five percent of the
right upper extremity based on findings of no atrophy and normal strength testing.
In regard to the left upper extremity, Dr. Berman noted that Dr. Weiss’ examination
demonstrated no thenar or hypothenar atrophy with loss of thumb strength of 4/5. He opined that
two-point discrimination of 10 mm is very abnormal and noted there was diminished light touch
over the left median nerve. Dr. Berman found that appellant had abnormal two-point
discrimination which was a Grade 3 deficit of 60 percent, multiplied by the sensory value of the
median nerve of 39 percent to reach 23 percent permanent impairment of the left upper
extremity. He found that motor strength award may not be granted according to the A.M.A.,
Guides.
By decision dated January 13, 2009, the Office granted appellant schedule awards for 23
percent impairment of her left upper extremity and 5 percent impairment of her right upper
extremity. Appellant, through her attorney, requested an oral hearing. She testified at the oral
hearing on May 27, 2009. In a decision dated August 14, 2009, the hearing representative
affirmed the January 13, 2009 decision, finding that the district medical adviser’s report
represented the weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 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, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses. Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.4
In evaluating carpal tunnel syndrome, the A.M.A., Guides provide that, if after an
optimal recovery time following surgical decompression, an individual continues to complain of
pain, paresthesias or difficulties in performing certain activities three possible scenarios can be
present. The first situation is: Positive clinical finding of median nerve dysfunction and
electrical conduction delay(s): The impairment due to residual CTS [carpal tunnel syndrome] is
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

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

3

rated according to the sensory and/or motor deficits as described earlier.5 In this situation, the
impairment due to residual carpal tunnel syndrome is evaluated by multiplying the grade of
severity of the sensory or motor deficit by the respective maximum upper extremity impairment
value resulting from sensory or motor deficits of each nerve structure involved. When both
sensory and motor functions are involved the impairment values derived for each are combined.
In the second scenario there is normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal EMG testing of the thenar muscles, a residual CTS is still
present and an impairment rating not to exceed five percent of the upper extremity may be
justified. The final scenario is normal sensibility (two-point discrimination and SemmesWeinstein monofilament testing), opposition strength and nerve conduction studies, in which
case there is no objective basis for an impairment rating.6
The A.M.A., Guides state, “In compression neuropathies, additional impairment values
are not given for decreased grip strength.”7 The A.M.A., Guides note that carpal tunnel
syndrome is the most common of nerve compression lesions.8
The fifth edition of the A.M.A., Guides allows for an impairment percentage to be
increased by up to three percent for pain by using Chapter 18, which provides a qualitative
method for evaluating impairment due to chronic pain. If an individual appears to have a painrelated impairment that has increased the burden on his or her condition slightly, the examiner
may increase the percentage up to three percent. However, examiners should not use Chapter 18
to rate pain-related impairments for any condition that can be adequately rated on the basis of the
body and organ impairment systems given in other chapters of the A.M.A., Guides.9
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides his opinion is of diminished probative value in
establishing the degree of permanent impairment and the Office may rely on the opinion of its
medical adviser to apply the A.M.A., Guides to the findings reported by the attending
physician.10
ANALYSIS
Appellant’s accepted condition was bilateral carpal tunnel syndrome. She underwent
surgical carpal tunnel releases on both hands. Appellant also underwent postsurgical
electrodiagnostic studies on March 27, 2006 which demonstrated positive findings on the right.
Dr. Weiss, an osteopath, provided his findings on physical examination. He opined that
appellant had 23 percent impairment of the right upper extremity and 18 percent impairment of
5

A.M.A., Guides 495.

6

Silvester DeLuca, 53 ECAB 500 (2002). A.M.A., Guides 495.

7

A.M.A., Guides 494.

8

Id. at 495.

9

Federal Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003); A.M.A.,
Guides at 18.3(b); see also Philip Norulak, 55 ECAB 690 (2004).
10

Linda Beale, 57 ECAB 429, 434 (2006).

4

the left upper extremity. The district medical adviser, Dr. Berman, a Board-certified orthopedic
surgeon, reviewed Dr. Weiss’ findings and concluded that appellant had five percent impairment
of the right upper extremity and 23 percent impairment of the left upper extremity.
The Board finds that this case is not in posture for decision as neither physician
appropriately applied the A.M.A., Guides to appellant’s physical findings. As noted above,
appellant had normal electrodiagnostic testing of the left upper extremity. While Dr. Weiss
stated that appellant’s March 27, 2006 EMG demonstrated mild medial nerve neuropathy, the
Board notes that this test report stated that appellant had borderline slow median motor
conduction across the right wrist and that the remainder of the test results were within normal
limits. There was no mention in the March 27, 2006 report of left wrist findings. Therefore in
accordance with the A.M.A., Guides, appellant could not receive a rating impairment of more
than five percent of the left upper extremity as she did not have positive electrodiagnostic
findings regarding this extremity. Both Drs. Weiss and Berman awarded appellant more than
five percent impairment of the left upper extremity in contradiction of the applicable edition of
the A.M.A., Guides. Therefore these reports are of diminished probative value and cannot
establish appellant’s permanent impairment of the left upper extremity.
In regard to appellant’s right upper extremity, she had an abnormal EMG finding of
borderline slow median motor conduction across the right wrist. The A.M.A., Guides provide
that in this situation if appellant has clinical findings of median nerve dysfunction her
impairment could be rated based on the impairment of the median nerve.11 Dr. Weiss found loss
of grip and pinch strength on the right. However, the A.M.A., Guides provide that grip strength
should not be accorded an additional impairment value in a compression neuropathy such as the
diagnosed condition of carpal tunnel syndrome. Dr. Weiss did not provide findings of any other
motor deficit of the right upper extremity. As Dr. Berman noted, Dr. Weiss did not indicate any
sensory deficit in the right upper extremity and did not accord an impairment rating for a sensory
condition in this extremity. Based on the preceding statements, there is no evidence in the record
of clinical findings of median nerve dysfunction on the right. Without clinical findings
corresponding to the electrodiagnostic testing, there is no medical evidence supporting a
schedule award for the right upper extremity.
Dr. Weiss found that appellant had three percent impairment of the right upper extremity
due to pain under Chapter 18 of the A.M.A., Guides. As noted above, the A.M.A., Guides
provide that examiners should not use Chapter 18 to rate pain-related impairments for any
condition that can be adequately rated on the basis of the body and organ impairment systems
given in other chapters of the A.M.A., Guides. Dr. Weiss did not offer any explanation as to
why appellant’s pain-related impairment could not be rated based on a sensory impairment of the
medial nerve. Therefore based on the A.M.A., Guides, appellant is not entitled to an additional
three percent impairment rating for pain in found in Chapter 18.
On appeal, appellant’s attorney argued that there was an unresolved conflict of medical
opinion evidence between Dr. Weiss and Dr. Berman, the district medical adviser. As noted
above, neither Dr. Weiss nor Dr. Berman appropriately applied the A.M.A., Guides to the
11

A.M.A., Guides 495.

5

physical findings in the record. The Board finds that there is no appropriately rationalized
medical evidence correlated with the A.M.A., Guides in the record to support appellant’s
schedule award.
CONCLUSION
The Board finds that none of the medical evidence in the record correlates appellant’s
documented physical findings with the appropriate sections of the A.M.A., Guides. On remand,
the Office should refer appellant and a statement of accepted facts to a second opinion physician
to determine if she has any permanent impairment of her upper extremities entitling her to a
schedule award.12
ORDER
IT IS HEREBY ORDERED THAT August 14, 2009 decision of the Office of Workers’
Compensation Programs is set aside and remanded for further development consistent with this
decision of the Board.
Issued: October 19, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

The Board notes that appellant’s claim should now be developed under the sixth edition of the A.M.A., Guides.
For schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides,
published in 2008. FECA Bulletin No. 09-03 (issued March 15, 2009).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Alexandria Bay, NY, Employer
__________________________________________

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

Docket No. 18-0146
Issued: August 16, 2018

Case Submitted on the Record

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

JURISDICTION
On October 26, 2017 appellant, through counsel, filed a timely appeal from an August 23,
2017 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 the claim.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its August 23, 2017 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from considering this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant met his burden of proof to establish a lumbar condition
causally related to the accepted September 28, 2016 employment incident.
FACTUAL HISTORY
On September 28, 2016 appellant, then a 44-year-old customs and border control officer,
filed a traumatic injury claim (Form CA-1) alleging that he sustained a back injury that day while
participating in self-defense tactics training. He stopped work that day. No evidence was
submitted with appellant’s claim.
In an October 3, 2016 development letter, OWCP requested additional factual and medical
evidence. Appellant was afforded 30 days to submit the necessary evidence.
The employing establishment provided an authorization for examination and/or treatment
(Form CA-16) dated September 28, 2016. Linda M. Dietsche, a nurse practitioner, filled out Part
B of the form on September 29, 2015. She provided diagnoses of lower muscle sprain and S1 joint
lumbar sprain and indicated that appellant was unable to work. Ms. Dietsche noted that appellant
had a history of lower back pain with degenerative joint disease of the spine dating back to 2015.
In an October 5, 2016 note, Jessica L. Robbins, a registered physician assistant, advised
that appellant was unable to work and that he was being referred to an orthopedic group. In her
report of October 5, 2016, she noted that he injured his back while in a self-defense class for work
while doing stretches. Ms. Robbins noted that appellant was obese, had degenerative disc disease,
and had experienced similar back pain two years ago for which he underwent physical therapy.
She provided an assessment of strain of muscle, fascia, and tendon of the lower back. Ms. Robbins
opined that appellant was totally disabled from work as a result of the September 28, 2016
employment injury.
On October 13, 2016 Dr. Richard J. Distefano, a Board-certified orthopedic surgeon,
reported that appellant was engaged in self defensive tactics/ground fighting when he experienced
low back, bilateral buttocks pain. The lumbar spine x-rays were noted as having no fractures,
dislocations, or other significant abnormalities. Dr. Distefano provided an assessment of acute
lumbar herniated nucleus pulposus (HNP) at L5-S1. He opined that appellant was totally disabled
from work as a result of his work injury. In November 8 and 14, 2016 attending physician’s reports
(Form CA-16), Dr. Distefano opined that appellant’s acute HNP lumbar spine was due to the
September 28, 2016 work injury and that he was totally disabled from work. Progress notes which
indicated that appellant was totally disabled were also submitted.
A November 10, 2016 magnetic resonance imaging (MRI) scan of appellant’s lumbosacral
spine indicated that there was central canal stenosis and foraminal narrowing at the L3-4 and L4-5
levels without encroachment to the exiting lumbar nerve roots. Comparisons were made with a
previous lumbar spine series performed on October 13, 2016.
In a November 10, 2016 report, Dr. Distefano reported examination findings and indicated
that the November 10, 2016 lumbar MRI scan showed left L4-5 protrusion. He continued to opine

2

that appellant’s acute lumbar HNP at L4-5 was due to the employment incident and that appellant
was totally disabled.
On November 21, 2016 appellant underwent a sacroiliac joint injection performed by
Dr. Bhupinder Bolla, a Board-certified anesthesiologist. In a November 21, 2016 report, Dr. Bolla
indicated that the onset of appellant’s back pain began on September 28, 2016 and was precipitated
by a work-related ground fighting training when appellant flipped another trainee on the ground,
spun around, and felt a pop in his back. He noted that appellant indicated that he had intermittent
back pain for years prior to the incident, but the pain was now constant and more severe. Dr. Bolla
reported examination findings, reviewed diagnostic studies, and provided an assessment of
sacroiliitis not elsewhere classified, spinal stenosis of lumbar region, spondylosis without
myelopathy or radiculopathy, lumbar region, lumbar spondylosis without myelopathy, and other
intervertebral disc degeneration and displacement, lumbosacral and lumbar region. In a separate
November 21, 2016 note, he indicated, by circling “yes” to a question, whether the incident
appellant described was the competent medical cause of his injury. Copies of an incomplete
doctor’s initial report and referral form dated November 21, 2016 signed by Dr. Bolla were also
provided.
OWCP also received appellant’s October 24, 2016 supplemental statement and the
employing establishment’s October 19, 2016 response.
By decision dated December 23, 2016, OWCP accepted that the September 28, 2016
employment incident occurred as alleged. It denied the claim, however, finding that the medical
evidence submitted was insufficient to establish that appellant’s diagnosed conditions were
causally related to the accepted employment incident.
On January 19, 2017 appellant requested reconsideration.
In a January 12, 2017 report, Dr. Distefano indicated that on September 28, 2016 appellant
felt pain while doing self-defensive tactics/ground fighting. He indicated that appellant had flipped
another trainee and felt sharp pain. Dr. Distefano opined that “I do feel that the injury on
September 28, 2016 while [appellant] was doing self -defense tactics/ground fighting was the
complement producing injury that resulted in his L4-5 disc herniation, resulting in his present pain
complaints and resulting in his present disability.”
By decision dated January 26, 2017, OWCP denied modification of its previous decision.
On May 5, 2017 appellant, through counsel, requested reconsideration. Counsel argued
that the medical evidence of record and Dr. Distefano’s new report of March 16, 2017 established
causal relationship.
In a March 16, 2017 report, Dr. Distefano noted that appellant was under his orthopedic
care for an L4-5 disc herniation. He indicated that he reviewed appellant’s medical records,
history, and performed a physical examination. Dr. Distefano opined that appellant’s self-defense
tactics during training caused the L4-5 disc herniation when he flipped another participant on
September 28, 2015. He explained that the flipping action would have caused the necessary force
to cause the L4-5 disc herniation and that the disc herniation was the direct and natural
consequence from appellant’s self-defense maneuver of flipping his opponent. Dr. Distefano
3

indicated that the disc herniation, which was diagnosed by MRI scan lumbar spine on
November 10, 2016, was not degenerative in nature, but a consequence of appellant’s physical
maneuvering on September 28, 2016. He noted that appellant did not suffer any intervening
injuries to his lumbar spine since the September 28, 2016 work incident. Dr. Distefano also noted
that, prior to the September 28, 2016 work injury, appellant had no back complaints and was
asymptomatic.
By decision dated August 23, 2017, OWCP denied modification of its prior decision. It
again found that appellant had not submitted rationalized medical evidence sufficient to establish
causal relationship between his diagnosed lumbar conditions and the accepted employment
incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.5
To determine whether an employee sustained a traumatic 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 that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a personal
injury.7 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
4

Supra note 2.

5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7
John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty and must be supported by medical rationale, explaining the nature of the relationship between the diagnosed
condition and appellant’s specific employment factor(s). Id.
8

Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

4

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his lumbar
conditions were causally related to the accepted September 28, 2016 employment incident.
Medical evidence submitted to support a claim for compensation should reflect a correct
factual and medical history, and the physician should offer a medically-sound explanation of how
the claimed work event caused or aggravated the claimed condition.11 No physician did so in this
case.
Appellant submitted several narrative reports from Dr. Distefano. In his October 13, 2016
report, Dr. Distefano reported that appellant was doing self-defensive tactics/ground fighting when
he experienced low back, bilateral buttock pain. He provided an assessment of acute lumbar HNP
at L5-S1. Dr. Distefano opined, in his October 13 and November 16, 2016 reports and in
November 8 and 14, 2016 Form CA-16 reports, that appellant’s acute lumbar HNP was due to the
September 28, 2016 work injury. However, Dr. Distefano failed to explain with medical rationale
how engaging in self-defensive tactics/ground fighting caused or aggravated appellant’s lumbar
spine condition. Without explaining how physiologically the act of engaging in self-defensive
tactics/ground fighting caused or contributed to the diagnosed condition, Dr. Distefano’s opinion
is of limited probative value.12 A mere conclusion without the necessary rationale explaining how
and why the physician believes that a claimant’s accepted exposure resulted in the diagnosed
condition is insufficient to meet appellant’s burden of proof.13 Furthermore, the mere fact that a
disease or condition manifests itself during a period of employment, nor the belief that the back
condition had been caused by the identified employment factor, is sufficient to establish causal
relationship.14
In his January 12, 2017 report, Dr. Distefano explained that on September 28, 2016
appellant felt pain when he flipped another officer during self-defensive tactics/ground fighting.
The Board notes that pain is a symptom and not a compensable medical diagnosis.15 Dr. Distefano
diagnosed L4-5 disc herniation which he opined resulted from the self-defensive tactics ground
fighting appellant had performed. However, he again failed to provide a rationalized discussion
which explained how the self-defensive tactics/ground fighting could have caused, aggravated or
contributed to the diagnosed L4-5 disc herniation. Thus, Dr. Distefano’s opinion is of insufficient

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 7.

11

D.D., Docket No. 13-1517 (issued April 14, 2014).

12

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

13

G.M., Docket No. 14-2057 (issued May 12, 2015); Cecelia M. Corley, 56 ECAB 662 (2005).

14

Daniel O. Vasquez, 57 ECAB 559 (2006).

15

See G.C., Docket No. 17-0537 (issued July 20, 2017).

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rationale to establish a back condition causally related to the September 28, 2016 accepted
employment incident.16
In his March 16, 2017 report, Dr. Distefano related that, when appellant flipped another
trainee, the necessary force was created to cause the L4-5 disc herniation. However, contrary to
Dr. Distefano’s comment that appellant had no back complaints and was asymptomatic prior to
the September 28, 2016 employment incident, the record indicates that appellant had a preexisting
lumbar condition.17 Ms. Robbins, a physician assistant, reported in her October 5, 2015 report
that appellant had similar back pain two years prior and had undergone physical therapy. Dr. Bolla
also noted in his November 21, 2016 report that appellant had intermittent back pain for years prior
to the September 28, 2016 work incident. As such, Dr. Distefano’s opinion is insufficient to
establish causal relationship as it is not based on a complete factual and medical background.18
In his November 21, 2016 reports, Dr. Bolla indicated that the onset of appellant’s back
pain began on September 28, 2016 and was precipitated by a work-related ground fighting training
when appellant flipped another trainee and spun around while on the ground and felt a pop in his
back. He noted that appellant had intermittent back pain for years prior to the incident, but the
pain was now constant and more severe. Dr. Bolla provided an assessment of sacroiliitis not
elsewhere classified, spinal stenosis of lumbar region, spondylosis without myelopathy or
radiculopathy, lumbar region, lumbar spondylosis without myelopathy, and other intervertebral
disc degeneration and displacement, lumbosacral and lumbar region. By circling “yes” he
indicated that the incident appellant described was the competent medical cause of his injury. The
Board has held that a checkmark or other marking on a form report, without supporting rationale,
is of limited probative value, and is insufficient to establish the claim.19 Dr. Bolla, however, failed
to provide medical rationale explaining how the accepted employment incident on September 28,
2016 either caused or contributed to appellant’s lumbar condition. As noted, a physician’s opinion
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s).20 Again, the need for medical
rationale is particularly important as the evidence of record indicates that appellant had a
preexisting lumbar condition.21 Thus, the Board finds that Dr. Bolla’s November 21, 2016 reports
are insufficient to establish that appellant sustained an employment-related injury on
September 28, 2016.

16

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

17

In any case where a preexisting condition involving the same part of the body is present and the issue of causal
relationship therefore involves aggravation, acceleration, or precipitation, the physician must provide a rationalized
medical opinion that differentiates between the effects of the work-related injury or disease and the preexisting
condition. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e.
18

Victor J. Woodhams, supra note 7.

19

See V.B., Docket No. 17-1847 (issued April 4, 2018).

20

Id.

21

See supra note 17.

6

Other diagnostic medical evidence of record, including the November 10, 2016 lumbar
MRI scan, are of limited probative value and insufficient to establish the claim as they do not
specifically address whether the diagnosed conditions were causally related to the September 28,
2016 employment incident. 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.22
The reports from Ms. Robbins, a physician assistant, and Ms. Dietsche, a registered nurse
practitioner, are also of limited probative value on the issue of causal relationship. Certain
healthcare providers such as physician assistants, nurse practitioners, physical therapists, and
social workers are not considered “physician[s]” as defined under FECA.23 Consequently, their
medical findings and/or opinions will not suffice for purposes of establishing entitlement to FECA
benefits.24
It is appellant’s burden of proof to establish a diagnosed condition causally related to the
accepted September 28, 2016 work incident. The opinion of a physician supporting causal
relationship must be one of reasonable medical certainty that the condition for which compensation
is claimed is causally related to federal employment and such relationship must be supported with
affirmative evidence, explained by medical rationale and be based upon a complete and accurate
medical and factual background of the claimant.25 As the medical evidence of record does not
provide the necessary rationale based on a complete and accurate medical and factual background
of appellant, explaining how and why the accepted September 28, 2016 work incident resulted in
a diagnosed back condition, it is insufficient to establish an injury caused by this incident. Thus,
the Board finds that appellant has failed to meet his burden of proof.26
On appeal counsel asserts that appellant does not need to rule out other causes of injury
when the mechanism of injury is otherwise clear. For the reasons set forth above, the Board finds
that appellant has not met his burden of proof to establish that his lumbar conditions are causally
related to the accepted September 28, 2016 work incident.

22

Willie M. Miller, 53 ECAB 697 (2002).

23

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

24
K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
25

Patricia J. Glenn, 53 ECAB 159 (2001).

26

The Board notes that the file contains a Form CA-16 authorization. A properly completed Form CA-16
authorization may constitute a contract for payment of medical expenses to a medical facility or physician, when
properly executed. The form creates a contractual obligation, which does not involve the employee directly, to pay
for the cost of the examination or treatment regardless of the action taken on the claim. On return of the case record
OWCP should review the Form CA-16 to determine appellant’s entitlement to medical expense. See 20 C.F.R.
§ 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).

7

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 that his lumbar
condition is causally related to the September 28, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 16, 2018
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