United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF DEFENSE, MCCORD AIR
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FORCE BASE, WA, Employer
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___________________________________________ )
M.S., Appellant

Appearances:

Docket No. 07-1799
Issued February 1, 2008

Case Submitted on the Record

Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 26, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 9, 2007, which denied his claim for a
lumbar condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he developed a
lumbar condition due to factors of his federal employment.
FACTUAL HISTORY
On September 20, 2005 appellant, then a 50-year-old store worker leader, filed a
traumatic injury claim alleging that he injured his back on July 2, 2005 while lifting watermelons

and placing them in a bin.1 He indicated that the injury was to the top of his spine and also to his
low back. Appellant stopped work on July 11, 2005 and remained off work until his retirement
on December 31, 2005.
Appellant submitted reports from Dr. Marvin Y. Hayami, a Board-certified internist,
dated July 15 to August 11, 2005, who noted that appellant had been treated since July 12, 2005
for back pain that occurred after he attempted to pick up a trailer hitch at work. Dr. Hayami
noted examination findings of muscle spasm and decreased range of motion of the lumbar
region. He advised that appellant worked in the produce department of the employing
establishment and his job duties required him to lift up to 60 pounds. In a July 22, 2005 note,
Dr. John R. Replogle, a Board-certified internist, advised that appellant would be excused from
work on August 1, 2005.
Appellant came under the treatment of Dr. Kristie J. Lowry, a Board-certified internist,
who noted in duty status reports dated September 8 and October 4, 2005, that he had a bulging
disc at L5-S1 with radiculopathy but would be able to work light duty subject to restrictions. In
subsequent reports, Dr. Lowry advised that appellant was totally disabled as of August 29 to
November 15, 2005 due to a low back injury and extensive spinal surgery. In a September 1,
2005 report, she obtained a history that appellant injured his back when bending over at home
and was diagnosed with a disc bulge at L5-S1. Dr. Lowry advised that appellant had
osteoarthritis of the spine which was caused by repetitive trauma from heavy lifting over a period
of years. On September 23, 2005 she diagnosed severe cervical spinal stenosis with spinal cord
impingement that would require surgery. Appellant submitted an operative report from
Dr. Brett A. Schlifka, an osteopath, dated September 29, 2005, who performed an anterior
cervical discectomy at C5-6 and C6-7 and diagnosed cervical myeloradiculopathy secondary to a
herniated nucleus pulposus at C5-6 and C6-7.
In a letter dated October 25, 2005, the Office advised appellant of the evidence needed to
establish his claim.
Appellant submitted a statement noting that, while at work on July 2, 2005, he
continuously lifted and carried watermelons from one bin to another in preparation for a produce
sale. On July 22, 2005 Dr. Replogle noted that appellant injured his back two weeks prior while
lifting a trailer onto a hitch. He stated that appellant reported developing radiating back pain
with numbness and diagnosed lower back pain with likely nerve root impingement at L5. In
reports dated August 1 to 29, 2005, Dr. Lowry noted that appellant reported injuring his back in
June 2005 when he dropped a trailer hitch. On August 11, 2005 she noted that appellant worked
in the produce section for 21 years and lifted 50- to 60-pound packages four hours per day.
Dr. Lowry diagnosed low back pain and advised that appellant was totally disabled. On
August 29, 2005 she saw appellant for severe persistent low back pain. Dr. Lowry noted that
appellant injured his back on July 11, 2005 while bending over to lift an item and felt a
“popping” and severe back pain. She observed that appellant worked as a produce stocker for
the past 23 years and had periodic low back pain. On September 8, 2005 Dr. Lowry noted
appellant’s multiple visits for low back pain since July 15, 2005.
1

Appellant also filed a CA-2, notice of occupational disease, alleging that on July 2, 2005 he was lifting
watermelons and injured his back. This claim was not signed by him but is part of the case record.

2

Treatment notes from Dr. Schlifka dated September 14 to 16, 2005, noted that appellant
was a commissary manager who felt a “pop” in his back on July 4, 2004. Thereafter, he
experienced diffuse lumbar pain. Dr. Schlifka diagnosed cervical myelopathy and lumbar
radiculopathy. On September 16, 2005 he noted that a magnetic resonance imaging (MRI) scan
of the lumbar spine revealed cord compression at C5-6 and C6-7 and diagnosed cervical
myeloradiculopathy and recommended a spinal fusion.
In an operative report dated
September 29, 2005, Dr. Schlifka performed an anterior cervical discectomy at C5-6 and C6-7
and diagnosed cervical myeloradiculopathy secondary to a herniated nucleus pulposus at C5-6
and C6-7. In reports dated October 12 and October 26, 2005, he advised that appellant was
progressing well postoperatively.
In a decision dated December 1, 2005, the Office denied appellant’s claim, finding the
evidence insufficient to establish that he experienced the claimed incident on July 2, 2005, as
alleged.
In a letter dated December 22, 2005, appellant requested an oral hearing that was held on
July 26, 2006. He testified that he worked in the produce department of the employing
establishment for 20 years and was responsible for stocking produce and unloading delivery
trucks. Appellant indicated that, on July 2, 2005, he was transferring 700-pound pallets of
watermelons into a bin for the period June 30 to July 2, 2005 and experienced severe low back
pain. He testified that he assisted his family member with hitching a trailer the following
weekend. Appellant indicated that he sought medical treatment but did not relate his pain, at that
time, to his prior work activities.
On October 2, 2006 the hearing representative set aside the December 1, 2005 decision
and remanded the case for further development. The hearing representative determined that
there was prima facie evidence of causal relationship between the diagnosed osteoarthritis and
disc bulge at L5-S1 and appellant’s work duties which required further development.2
On January 8, 2007 the Office referred appellant for a second opinion to Dr. David S.
Smith, a Board-certified orthopedic surgeon, to determine whether he developed a low back
condition as a result of his work duties. The Office provided Dr. Smith with appellant’s medical
records, a statement of accepted facts as well as a detailed description of his employment duties.
In a February 14, 2007 report, Dr. Smith reviewed the records and the medical history.
He noted findings upon physical examination of limited range of motion of the back on flexion,
extension, lateral bending and rotation with mild low back discomfort and some give-way
weakness with negative straight leg raises. Dr. Smith diagnosed cervical myeloradiculopathy,
status post anterior cervical discectomy at C5 to C7 and fusion with hardware and nonspecific
low back pain. He opined that appellant did not develop a specific work-related injury or an
occupational disease. Dr. Smith indicated that the medical records did not support an injury at
work despite appellant’s claims and noted that he did not believe a lifting injury would cause

2

The hearing representative found that the evidence supported that appellant experienced an occupational illness
from moving watermelons for a produce sale for each day from June 30 to July 2, 2005. The hearing representative
further advised that appellant’s claim would be developed as an occupational disease.

3

acute cervical myeloradiculopathy. He advised that no further treatment was indicated for the
residuals of the above diagnoses and recommended conservative treatment.
Appellant submitted an MRI scan of the lumbar spine dated August 29, 2006, which
revealed multilevel degenerative disc disease and degenerative joint disease. On October 31,
2006 Dr. Lowry indicated that appellant underwent a stress test that revealed multilevel
degenerative changes. On November 16, 2006 she advised that appellant underwent extensive
treatment for diffuse osteoarthritis and disc bulges in the cervical and lumbar area. Dr. Lowry
indicated that appellant sustained an injury on July 4, 2005 when lifting a heavy object and has
been disabled since. She noted that appellant initially presented with low back pain with lower
extremity weakness due to a disc bulge at L5-S1 but was found to have facet arthropathy at L1-2,
L2-3, L3-4 and L4-5 that contributed to his chronic low back pain. Appellant also underwent an
evaluation for progressive right arm numbness and pain and was found to have severe C5-6 and
C6-7 cervical spinal stenosis with spinal cord impingement requiring spinal surgery, including a
discectomy and spinal fusion, at C5 to C7. Dr. Lowry opined that spinal MRI scan findings
included diffuse osteoarthritis and disc bulges with spinal impingement and were occupationally
related. She indicated that this condition was a well-described phenomenon in literature in
which compressive, torsional, pulling and angular movements could result in soft tissue injuries
that increased the development of osteoarthritis. Dr. Lowry opined that appellant’s primary
job-related activity for the past 20 years was lifting and moving of agricultural goods which
placed a fair amount of strain on his back.
On February 28, 2007 the Office requested clarification from Dr. Smith. It asked that he
diagnose all of appellant’s low back conditions and address whether any diagnoses were caused
or aggravated by moving watermelons from June 30 to July 2, 2005. In a supplemental report
dated March 9, 2007, Dr. Smith diagnosed nonspecific low back pain. He noted that appellant’s
examination was essentially normal without radiculopathy despite his various complaints.
Dr. Smith indicated that the MRI scan revealed degenerative changes, but asserted those changes
were consistent with age and not the cause of his symptoms. He opined that appellant’s
diagnoses was not caused, aggravated, accelerated or precipitated by his moving watermelons
from the lower bin to an upper bin from June 30 to July 2, 2005.
In a decision dated April 9, 2007, the Office denied appellant’s claim on the grounds that
the weight of the evidence as established by the Office referral physician did not demonstrate
that appellant developed the diagnosed conditions as a result of his employment duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or his claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that the injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. These are the

4

essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by claimant. The
medical evidence required to establish causal relationship is generally 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 the
claimant’s diagnosed condition and the implicated employment factors. 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.4
ANALYSIS
On September 20, 2005 appellant filed a claim alleging that he developed a back
condition while performing his produce store worker duties. The Office denied appellant’s claim
finding that Dr. Smith’s reports did not demonstrate that he developed any diagnosed conditions
as a result of his employment duties.
The Board finds that there is a conflict in medical opinion between Dr. Smith, the Office
referral physician, and Dr. Lowry, appellant’s treating physician, both of whom are Boardcertified specialists in their respective fields.
Dr. Smith diagnosed cervical myeloradiculopathy, status post anterior cervical
discectomy at C5 to C7, fusion with hardware and nonspecific low back pain. He opined that the
activities of appellant’s employment duties would not have caused his low back conditions and
did not believe appellant developed a specific work-related injury or an occupational disease.
Dr. Smith further opined that the degenerative changes on the MRI scan were consistent with age
and not the cause of appellant’s symptoms. By contrast, Dr. Lowry, a treating physician, noted
that appellant’s job duties for the past 20 years required heavy lifting and moving of agricultural
goods and these activities contributed to appellant’s complaints of low back pain. She noted that
the compressive, torsional, pulling and angular movements of appellant’s job duties resulted in a
soft tissue injury that increased the development of osteoarthritis. Dr. Lowry opined that the
findings of the MRI scan of diffuse osteoarthritis and disc bulges with spinal impingement were
occupationally related. She has consistently supported that appellant developed diffuse
3

Gary J. Watling, 52 ECAB 357 (2001).

4

Solomon Polen, 51 ECAB 341 (2000).

5

osteoarthritis and disc bulges with spinal impingement while performing his produce leader
duties, while Dr. Smith found no objective orthopedic findings and did not believe that appellant
developed a specific work-related injury or an occupational disease but believed his degenerative
changes were related to age. The Board, therefore, finds that a conflict in medical opinion has
been created.
Section 8123 of the Act5 provides that, if there is a disagreement between the physician
making the examination for the United States and the employee’s physician, the Office shall
appoint a third physician who shall make an examination.6
The case, therefore, requires remand for an impartial medical specialist to resolve the
conflict in the medical opinions. On remand, the Office should refer the case record and a
statement of accepted facts to an appropriate physician to reevaluate the evidence pursuant to
section 8123(a) of the Act. Following this and such further development as the Office deems
necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8123(a); see also Charles S. Hamilton, 52 ECAB 110 (2000); Leonard M. Burger, 51 ECAB 369
(2000); Shirley L. Steib, 46 ECAB 39 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 9, 2007 is set aside and the case remanded to the Office for
further action consistent with this decision.
Issued: February 1, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, EVANSVILLE POST
OFFICE, Evansville, WI, Employer
__________________________________________

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

Docket No. 21-1077
Issued: March 16, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On July 6, 2021 appellant filed a timely appeal from a June 25, 2021 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 case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 21
percent permanent impairment of her left upper extremity for which she previously received
schedule award compensation.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 25, 2021 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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 25, 2012 appellant, then a 48-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she felt sharp pain in her upper left arm causally related
to factors of her federal employment including delivering mail and telephone books on May 22
and 23, 2013. OWCP initially accepted the claim for left rotator cuff strain. By decision dated
April 20, 2015, it expanded the acceptance of appellant’s claim to include other maladies of the
left shoulder region not elsewhere classified and calcifying tendinitis of left shoulder. OWCP paid
her wage-loss compensation on the supplemental rolls from February 18 through June 26, 2015.
Appellant retired effective April 30, 2015.
On July 7 and November 17, 2015 appellant filed claims for compensation (Form CA-7)
for a schedule award.
By decision dated June 13, 2016, OWCP granted appellant a schedule award for three
percent permanent impairment of the left upper extremity based upon the findings of appellant’s
attending physician, Dr. Peter Szachnowski, a rheumatologist, and the district medical adviser
(DMA). The period of the award was for 9.36 weeks and ran from February 24 through
April 29, 2016.
On July 5, 2016 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. By decision dated November 2, 2016, OWCP’s hearing
representative set aside the June 13, 2016 decision. The hearing representative found that OWCP’s
DMA failed to identify either the date of the report or the examination findings which he used to
calculate appellant’s permanent impairment, and date of maximum medical improvement (MMI).
By decision dated February 10, 2017, OWCP granted appellant a schedule award for an
additional two percent permanent impairment for a total of five percent left upper extremity
permanent impairment. The award was for 6.24 weeks and ran from April 30 to June 12, 2016.
On April 12, 2017 appellant requested reconsideration and submitted additional reports
from Dr. Szachnowski dated February 17 and April 3, 2017, which related appellant’s current
examination findings.
By decision dated July 11, 2017, OWCP denied appellant’s request for reconsideration of
the merits of the claim.
On August 7, 2017 appellant filed a timely appeal to the Board. By decision dated
August 3, 2018, the Board affirmed OWCP’s February 10, 2017 merit decision, finding that the
evidence of record was insufficient to establish that appellant had greater than five percent
permanent impairment of her left upper extremity for which she previously received a schedule
3

Docket No. 17-1732 (issued August 3, 2018).

2

award. The Board, however, set aside OWCP’s July 11, 2017 nonmerit decision, finding that the
additional reports from Dr. Szachnowski, dated February 17 and April 13, 2017, constituted
pertinent new and relevant evidence warranting further merit review. The case was remanded for
further proceedings to be followed by a de novo decision.4
By decision dated May 8, 2019, OWCP granted appellant a schedule award for “an
additional” 16 percent left upper extremity permanent impairment for a total of 21 percent
permanent impairment of the left upper extremity. The award was for 49.92 weeks and ran for the
period April 15, 2019 through March 29, 2020.
On October 8, 2020 appellant filed a Form CA-7 claiming an increased schedule award.
In an October 13, 2020 development letter, OWCP acknowledged receipt of appellant’s
claim for an increased schedule award, noting that additional medical evidence was required to
determine permanent impairment utilizing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 It afforded her 30 days to
provide the requested information.
In a November 6, 2020 statement, appellant indicated that she visited Dr. Szachnowski for
injections in each shoulder to help alleviate the pain and to increase the mobility in her neck and
shoulder region. She also noted the symptomatology in her shoulders, which caused pain in the
shoulder/neck region.
OWCP received progress reports dated May 7, 2019 through December 18, 2020, wherein
from Dr. Szachnowski noted that appellant underwent subacromic injections for primary localized
osteoarthrosis, chronic tendinopathy, impingement phenomena and chronic rotator cuff
dysfunction in both shoulders. In the May 7, 2019 report, Dr. Szachnowski opined that appellant
was 30 percent “disabled.”
In a November 3, 2020 letter, Dr. Szachnowski indicated that appellant reached MMI in
January 2014 and was 30 percent “disabled” according to state workers’ compensation guidance.
He noted the rating was based on full internal and external rotation, full abduction, and 45 degrees
flexion because of pain and physical inability, i.e., motor abnormality.
On March 8, 2021 OWCP referred the record, including a statement of accepted facts
(SOAF), to Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving as a DMA. In a
March 19, 2021 report, Dr. Hammel indicated that the most recent clinical examination notes from
Dr. Szachnowski indicated that appellant had continued left shoulder pain. He noted that the
magnetic resonance imaging (MRI) scan of appellant’s left shoulder was normal and that prior
treatments included medication and activity modification. Dr. Hammel indicated that appellant
reached MMI on November 3, 2020. He indicated that a permanent impairment based on range of
motion (ROM) methodology could not be calculated as Dr. Szachnowski had not documented
formal examination findings and had not provided triplicate measurements. Under the diagnosis4

Id.

5

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

3

based impairment (DBI) methodology of the A.M.A., Guides, he opined that appellant had two
percent permanent left upper extremity impairment. Dr. Hammel assigned a class of diagnosis
(CDX) of 1, grade C with a default value of three percent for impingement syndrome, residual loss
under Table 15-5.6 He assigned grade modifier adjustments as follows: grade modifier for
functional history (GMFH) of 1 for continued pain; grade modifier for clinical studies (GMCS) of
0 for normal MRI; and found that grade modifier for physical examination (GMPE) was not
applicable as no formal examination was provided. Dr. Hammel explained that application of the
net adjustment formula resulted in a finding of -1 or grade B, which was equivalent to 2 percent
left upper extremity permanent impairment. He indicated that Dr. Szachnowski did not provide
calculations to support his impairment, which was rated under state workers’ compensation
guidance, in his November 3, 2020 report.7
By decision dated April 21, 2021, OWCP denied appellant’s claim for an increased
schedule award, finding that she was not entitled to greater than the 21 percent permanent
impairment of the left upper extremity previously awarded. It accorded the weight of the medical
evidence to its DMA’s report of March 19, 2021.
On June 15, 2021 appellant requested reconsideration.
In a letter of even date, she argued that she deserved additional compensation based on her
chronic shoulder pain, which affected her everyday routine and did not allow her to work.
Dr. Szachnowski’s progress notes dated December 18, 2020 and June 1, 2021 were
received. In the June 1, 2021 progress note, he reported that appellant essentially had chronically
torn rotator cuffs and was undergoing therapy/injections. Dr. Szachnowski indicated that both
shoulders have painful impingement phenomena, which were symptomatic with decreased ROM
on abduction.
In a June 1, 2021 letter, Dr. Szachnowski indicated that appellant has an incurable
condition consisting of rotator cuff tendinopathy with tears in rotator cuffs and inability to abduct
the shoulders above the left and right shoulder level. He indicated that she has reached MMI and
had committed to periodic injection of her shoulders, which would be life-long with no expectation
of change. Dr. Szachnowski indicated that appellant was previously granted a schedule award for
21 percent permanent impairment. He advised that appellant’s pain was a significant impairment,
which affected her activities of daily living and which permanently affected her ability to lift,
carry, elevate, lie on, and use her shoulders above her head.
By decision dated June 25, 2021, OWCP denied modification.

6

Under Table 15-5 a Class 1, grade C impingement syndrome with residual loss has a default value of three percent.

7

OWCP received duplicative medical evidence following the DMA’s report.

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LEGAL PRECEDENT
The schedule award provisions of FECA,8 and its implementing federal regulation, 9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 10 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 11
A claimant may seek an increased schedule award if the evidence establishes that he or she
sustained an increased impairment causally related to an employment injury. 12 The medical
evidence must include a detailed description of the permanent impairment. 13
Regarding the application of ROM or DBI impairment methods in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)
***
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Chapter 3.700.2 and Exhibit 1 (January 2010).
12

See T.W., Docket No. 20-1547 (issued October 4, 2021).

13

See K.F., Docket No. 18-1517 (issued October 9, 2019).

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should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM, where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 15
ANALYSIS
The Board finds that appellant has not established greater than 21 percent permanent
impairment of the left upper extremity for which she previously received schedule award
compensation.
Preliminarily, the Board notes that findings made in its prior decision are res judicata
absent any further review by OWCP under section 8128 of FECA. 16 The Board, therefore, will
not review the evidence addressed in its prior appeal.
Following the Board’s August 3, 2018 decision, by decision dated May 8, 2019, OWCP
granted appellant a schedule award for an additional 16 percent left upper extremity permanent
impairment for a total of 21 percent permanent impairment of the left upper extremity. Appellant
subsequently filed a claim for an increased schedule award and submitted additional reports from
Dr. Szachnowski.
Dr. Szachnowski opined, in his May 7, 2019 report and November 3, 2020 letter, that
appellant was 30 percent “disabled.” In his November 3, 2020 letter, Dr. Szachnowski indicated
that appellant reached MMI in January 2014. Under state workers’ compensation guidance, he
opined appellant had 30 percent “disability” based on examination findings of full internal and
external rotation, full abduction and 45 degrees flexion because of pain and physical inability, i.e.,
motor abnormality. In its October 13, 2020 development letter, OWCP had advised appellant that
the evidence should support an increased permanent impairment under the sixth edition of the
A.M.A., Guides. Dr. Szachnowski, however, failed to provide an opinion on permanent
impairment based on the sixth edition A.M.A., Guides.17 Thus, Dr. Szachnowski’s impairment
14

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

15

Supra note 13.

16

M.S., Docket No. 20-0276 (issued September 15, 2021); G.W., Docket No. 19-1281 (issued December 4, 2019);
Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
17

M.A., Docket No. 19-1732 (issued September 9, 2020); L.C., Docket No. 19-0564 (issued September 16, 2019).

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rating lacks probative value and is insufficient to establish appellant’s claim for an increased
schedule award.
OWCP routed Dr. Szachnowski’s reports and letter to its DMA, Dr. Hammel.18 In a
March 19, 2021 report, Dr. Hammel properly determined that appellant had two percent permanent
left upper extremity permanent impairment under the DBI rating methodology for impingement
syndrome, residual loss. Regarding appellant’s rating under the ROM methodology, Dr. Hammel
found that Dr. Szachnowski had not conducted a formal examination and had not provided
triplicate ROM measurements.
As there is no evidence establishing greater than 21 percent permanent impairment of the
left upper extremity, the Board finds that OWCP properly denied appellant’s claim for an increased
schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 16, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

18

Supra note 13 at Chapter 2.808.6(e) (March 2017); see also A.K., Docket No. 19-1927 (issued March 31, 2021);
K.S., Docket No. 20-1397 issued March 19, 2021); Tommy R. Martin, 56 ECAB 273 (2005).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hammond, IN, Employer
__________________________________________

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

Docket No. 17-1820
Issued: February 5, 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 August 24, 2017 appellant filed a timely appeal from a July 24, 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 the claim.2
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its July 24, 2017 decision. 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. 20 C.F.R. § 501.2(c)(1). Therefore, evidence not before OWCP at the time of the July 24, 2017 decision
will not be considered by the Board for the first time on appeal. Id.

FACTUAL HISTORY
On June 6, 2017 appellant, then a 35-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 26, 2017 he sprained his right knee in the performance of
duty. He reportedly advised his supervisor that “his knee was hurting from a previous injury.”3
Medical evidence from Dr. Irene Mary O’Neill, an occupational medicine specialist, was
submitted in support of his claim. In a May 26, 2017 work status summary, Dr. O’Neill noted
that appellant was walking down steps, slipped, and twisted his right knee on
December 10, 2015. She noted that the purpose of appellant’s visit was a new workers’
compensation injury with a May 22, 2017 date of injury. Dr. O’Neill diagnosed a sprain of
unspecified site of the right knee and provided restrictions starting May 26, 2017. In another
May 26, 2017 work status summary, she indicated that appellant was a letter carrier who strained
his right distal hamstring tendons while descending stairs on December 10, 2015 and
May 22, 2017. A sprain of unspecified site of the right knee was provided. In a June 16, 2017
work status summary, Dr. O’Neill diagnosed a sprain of unspecified site of the right knee. The
date of injury was again reported as May 22, 2017.
In duty status reports (Form CA-17) dated May 26, June 2 and 16, 2017, Dr. O’Neill
noted that appellant slipped on steps while delivering mail on May 22, 2017. She noted that this
was a new injury and diagnosed sprain of unspecified site of the right knee as due to injury.
In June 2, 2017 patient visit discharge instructions, Dr. O’Neill noted a sprain of
unspecified site of the right knee and indicated that appellant could return to work with
restrictions on May 26, 2017.
By letter dated June 22, 2017, OWCP advised appellant as to the type of medical and
factual evidence required to establish his claim. He was afforded 30 days to provide this
information.
OWCP subsequently received a May 26, 2017 narrative statement from appellant.
Appellant indicated that on Monday, May 22, 2017, he started to feel pain on his right knee
while delivering his mail route and the pain did not stop until May 26, 2017. He further stated
that the pain was from his right knee which he previously injured in 2016. Appellant requested
to return to the doctor as he felt the pain again.
In a June 23, 2017 duty status report (Form CA-17), Dr. O’Neill noted that on May 26,
2017 appellant had descended stairs and sprained posterior right knee. She affirmed her prior
diagnosis. Appellant was released to work with restrictions.
By decision dated July 24, 2017, OWCP denied appellant’s claim because he failed to
establish that the claimed incident occurred as alleged. It found that the mechanism of injury did
not match appellant’s statement.

3
Under OWCP File No. xxxxxx061, appellant has an accepted traumatic injury claim for right knee sprain, which
arose on December 10, 2015.

2

LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.4 The phrase
“sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of arising out of and in the course of
employment.5 An employee seeking benefits under FECA has the burden of proof to establish
that an injury occurred while in the performance of duty.6 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. The second component is whether the employment incident caused a
personal injury, and generally, this can be established only by medical evidence.7
An employee has the burden of proof to establish the occurrence of an injury at the time,
place, and in the manner alleged, by a preponderance of the reliable, probative, and substantial
evidence.8 An injury does not have to be confirmed by eyewitnesses to establish that an
employee sustained an injury in the performance of duty, but the employee’s statements must be
consistent with the surrounding facts and circumstances and his subsequent course of action.9
A claimant must provide detailed factual information regarding the alleged employment
incident or incidents.10 It must be clear what specific incidents appellant are alleging, when they
occurred, and other relevant details of the circumstances surrounding the claimed injury.11 The
Board has also held that a claimant cannot establish fact of injury if there are inconsistencies in
the evidence that cast serious doubt as to whether the specific event or incident occurred at the
time, place, and in the manner alleged.12 Such circumstances as late notification of injury, lack
of confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient

4

5 U.S.C. § 8102(a).

5

Valerie C. Boward, 50 ECAB 126 (1998).

6

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

7

See John J. Carlone, 41 ECAB 354, 357 (1989).

8

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

9

Charles B. Ward, 38 ECAB 667, 67-71 (1987).

10

J.N., Docket No. 17-0032 (issued April 21, 2017).

11

D.F., Docket No. 15-1745 (issued February 11, 2016).

12

Gene A. McCracken, 46 ECAB 593 (1995); Mary Joan Coppolino, 43 ECAB 988 (1992).

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doubt on an employee’s statements in determining whether a prima facie case has been
established.13
ANALYSIS
Appellant filed a traumatic injury claim alleging a right knee injury on May 26, 2017.
OWCP denied appellant’s claim, finding that the injury did not occur in the manner alleged.
It is undisputed that appellant was in the performance of duty on May 26, 2017.
However, the factual evidence of record does not support appellant’s claim of a traumatic injury
on May 26, 2017.
Appellant did not provide a clear statement as to what specific activity contributed to his
right knee injury. He did not describe any specific incident occurring on May 26, 2017, or any
work activity he performed on that day beyond the general statement of “delivering my route.”
A traumatic injury is defined as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift.14
Appellant’s CA-1 form did not provide a detailed account of the alleged incident or
corroborating evidence. In his May 26, 2017 statement, he also presented no evidence regarding
the specific mechanism of injury, as required in a claim for traumatic injury, nor did he allege
that he experienced a specific event, incident, or exposure at a definite time, place, and in a
specific manner.15 Rather, appellant stated that he started to feel pain on his right knee while
delivering his route on Monday, May 22, 2017 and the pain did not stop until May 26, 2017. He
noted that the pain was from his right knee which he had previously injured in 2016.16 Appellant
did not reference exactly what duties he was performing on May 26, 2017 that either caused or
aggravated his right knee condition. His recitation of the facts does not support his allegation
that a specific event occurred which caused a work-related injury.17 It is noted that Dr. O’Neill
indicated in her June 23, 2017 duty status report that on May 26, 2017 appellant was descending
stairs and sprained his posterior right knee.
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 USC § 8128(a)
and 20 CFR §§ 10.605 through 10.607.

13

Robert A. Gregory, 40 ECAB 478, 483 (1989).

14

20 C.F.R. § 10.5(ee).

15

See Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54 ECAB 174 (2002).

16
The evidence of file reflects that appellant had previously injured his right knee and had sought treatment for a
right knee injury on May 22, 2017.
17

Paul Foster, 56 ECAB 208 (2004) (the Board found that appellant had failed to establish fact of injury where
his allegations were vague and undocumented and did not relate with specificity the cause or immediate
consequences of the claimed injury).

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CONCLUSION
The Board finds that appellant has not established that an injury was sustained in the
performance of duty on May 26, 2017, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the July 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, El Toro, CA, Employer
__________________________________________

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Appearances:
Ronald S. Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-743
Issued: September 11, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 18, 2014 appellant, through counsel, filed a timely appeal from the
November 18, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
denying his request for merit review. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit
decision. Because more than 180 days elapsed from issuance of the last merit decision of OWCP
on November 16, 2011 to the filing of this appeal, the Board lacks jurisdiction to review the
merits of the case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

At the time the present appeal was filed, appellant, through counsel, requested an oral argument with the Board;
however, in a June 11, 2014 letter, the oral argument request was withdrawn.

FACTUAL HISTORY
In July 1991, OWCP accepted that appellant, then a 37-year-old environmental
protections specialist, sustained an anxiety disorder and an episode of Xanax dependency,
resolved. Appellant claimed that he sustained stress due to the duties of his job, including
dealing with the management of hazardous waste. He stopped work on July 2, 1990 and later
returned to light-duty work.
Appellant subsequently claimed that his angina was aggravated by his accepted anxiety
disorder. On June 23, 1996 OWCP accepted the consequential condition of aggravation of
angina decubitus. In mid-2003, appellant had a heart attack and, in August 2003, he underwent
triple bypass surgery. In late 2007, he sustained a second heart attack and in November 2007
and January 2008 he underwent additional surgical procedures, including a left heart
catheterization and stent of the saphenous vein graft. Appellant claimed that his 2003 and 2007
heart attacks were related to his accepted work conditions.3
In a February 6, 2009 decision, OWCP denied appellant’s claim finding that he did not
submit sufficient medical evidence to establish that his heart attacks in 2003 and 2007 were due
to his accepted conditions. In a June 4, 2009 decision, it denied modification of the February 6,
2009 decision.
In a decision dated May 7, 2010,4 the Board affirmed OWCP’s February 6 and June 4,
2009 decisions, finding that the March 10, 2008 report of Dr. David H.S. Iansmith, an attending
Board-certified cardiologist, and the March 17, 2009 report of Dr. Frank A. McGrew, III, an
attending Board-certified cardiologist, did not establish that appellant’s heart attacks in 2003 and
2007 were due to his accepted conditions.5 The Board noted that Dr. Matthew Smolin, a Boardcertified cardiologist serving as an OWCP referral physician, determined in August 12 and
December 3, 2008 reports that appellant’s accepted work conditions did not contribute to his
heart attacks.
In a February 2, 2011 letter, Dr. McGrew noted that appellant had been under his care
since February 2009. He briefly described appellant’s 2003 and 2007 heart attacks and stated:
“Based on the affidavit included in [appellant’s] chart describing his job
description with the [employing establishment] at the time of the above
mentioned cardiac events it is certainly possible that the responsibilities described
were stress inducing in [his] case and a contributing factor to his health.”

3

Appellant was not working for the employing establishment at the time of his 2003 and 2007 heart attacks.

4

Docket No. 09-1864 (issued May 7, 2010).

5

In his March 17, 2009 report, Dr. McGrew mentioned appellant’s 2003 and 2007 heart procedures and noted
that he was a new patient under his care for coronary arterial disease. He stated, “In my opinion [appellant’s]
anxiety disorder has a major impact on his heart. Also, his heart attacks are related to his anxiety disorder which
was documented by his previous cardiologist, Dr. Iansmith as well.”

2

Dr. McGrew noted that, in addition to his current cardiac diagnosis of hypertension,
hyperlipidemia and coronary artery disease, appellant also was under psychiatric care for a long
history of anxiety disorder which frequently increased his episodes of angina. He stated:
“After reviewing [appellant’s] previous medical reports as well as my own
observations since he has been in my care, it is my opinion that [his] angina
pectoris and anxiety disorder are related and were contributing factors to [his]
2003 and 2007 myocardial infarctions. His worsening anxiety continues to be a
risk for future cardiac events.”
In a January 28, 2011 report, Dr. Robert Buchalter, an attending Board-certified
psychiatrist, stated that appellant had generalized anxiety disorder with panic episodes and
obsessive-compulsive traits. He noted that appellant’s injury-related condition was still
medically present and disabling. In a January 28, 2011 letter, Dr. Buchalter stated: “In my
opinion, [appellant’s] anxiety disorder contributed to his heart attack.”
In a May 23, 2011 decision, OWCP denied appellant’s claim. It found that he did not
submit sufficient medical evidence to establish that he sustained heart attacks in 2003 and 2007
due to his accepted work conditions. OWCP found that the medical evidence from Dr. McGrew
and Dr. Buchalter did not provide a rationalized medical opinion on how appellant’s 2003 and
2007 heart attacks were work related.
In a June 21, 2011 report, Dr. McGrew stated that appellant had myocardial infarctions in
2003 and 2007 and noted that he had a stress anxiety disorder, which aggravated and increased
his episodes of angina. He noted that appellant attempted to return to work for a short time in
2002 and 2003 in the private car sales industry and despite coronary high risk, this employment
increased his high blood pressure. Dr. McGrew stated: “In June 2003, [appellant’s] house
burned down. This would certainly aggravate angina and induce a heart attack and it did so in
his case of 2003.” At that time, appellant’s accepted conditions were stress reaction disorder,
drug dependency and aggravation of angina. Dr. McGrew indicated that appellant wanted to
return to work, but that these conditions prevented him from doing so. He referenced his
February 2, 2011 report and stated:
“[B]ased on the affidavit of [appellant’s] job description with the [employing
establishment], that aspect of his job responsibilities described were [sic] stress
inducing in [his] case [and] are still contributing factors to his health….”
***
“[Appellant] will suffer from this at work or no work[-]related factors or
stressors.”
In a decision dated November 16, 2011, OWCP affirmed its May 23, 2011 decision
finding that appellant did not submit rationalized medical evidence to support his claim. It found
that the June 21, 2011 report of Dr. McGrew did not establish that the heart attacks in 2003 and
2007 were work related.

3

In a decision dated February 15, 2013,6 the Board affirmed OWCP’s November 16, 2011
decision, finding that appellant did not submit sufficient medical evidence to establish that he
sustained heart attacks in 2003 and 2007 due to his accepted conditions. It found that the
medical evidence from Dr. McGrew did not provide adequate medical rationale on the issue of
causal relationship.
In a November 5, 2013 letter received on November 11, 2013, appellant, through counsel,
requested reconsideration of his claim. Counsel submitted a new report from Dr. McGrew dated
October 30, 2013. Dr. McGrew stated that he hoped that his report would assist appellant in
showing that his heart attacks in 2003 and 2007 were related to his accepted work-related
condition of aggravation of angina decubitus. He understood that, in federal workers’
compensation cases, an accident or condition must contribute to the development of an additional
condition in order to be related. Dr. McGrew noted that an additional condition can be related as
an accepted condition even if the accident or the accepted condition is not the sole cause or
primary cause of the secondary condition, which in this case was appellant’s heart attacks. By
that standard, appellant’s accepted condition of aggravation of angina was a contributing factor
in the development and occurrence of his heart attacks. Dr. McGrew stated that, to clarify his
previous opinions, the fact that an aggravation of angina had been accepted meant that it had
been accepted that appellant would have increased angina attacks in the future, whether he was
employed or not. He indicated that the high stress level of appellant’s job (including handling
drug interdiction, monitoring large shipments of gold and working on the case of the siege at
Waco, TX) would involve increased blood pressure as well as other physiological symptoms
which eventually formed the basis for the accepted aggravation. Dr. McGrew stated that, once
this type of aggravation began, there was no basis for asserting that the aggravation would
simply go away. He stated:
“[Appellant] also suffers a continuing anxiety reaction which necessarily
continue[s] to aggravate and compromise his cardiovascular condition, thus the
aggravation of angina continued indefinitely. Although I have previously
mentioned catastrophic events in [appellant’s] life such as his house burning
down, which may have played a part in increasing anxiety even further, thus
putting additional stressors on his cardiovascular system; such an event in and of
itself would only be one factor in a myriad of many, along with his continuing
aggravation of angina, in causing the perfect storm necessary to initiate a heart
attack. [Appellant’s] increased blood pressure due to stress, a restriction in his
coronary vessels unable to manage the pressure of the blood, ultimately lead to an
infarction.
“The important consideration, which I understand is not mirrored by Dr. Smolin,
is that [appellant’s] cardiovascular system has been compromised significantly by
his aggravation of angina, that his aggravation continues unabated and this
condition, by itself, is a competent producing cause of further deterioration of his
cardiac condition. If [appellant’s] cardiac condition continues to decline,

6

Docket No. 12-906 (issued February 15, 2013).

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certainly within a reasonable medical probability, his angina will be a significant
cause of the deterioration and/or further a cardiac incident.”
In a November 18, 2013 decision, OWCP denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that Dr. McGrew’s October 30,
2013 report was similar to his previously submitted reports of record.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.8 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.9 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.10 The Board has held that the submission of evidence
or argument which repeats or duplicates evidence or argument already in the case record11 and the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.12
ANALYSIS
OWCP issued a merit decision on November 16, 2011 which denied appellant’s claim
that his heart attacks in 2003 and 2007 were related to his accepted work conditions.13 Appellant
requested reconsideration of this decision on November 11, 2013.
As noted above, the Board does not have jurisdiction over an OWCP merit decision. The
issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In his
application for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. He did not advance a new and relevant legal argument.
7

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.607(a).

10

Id. at § 10.608(b).

11

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

12

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

13

OWCP accepted that appellant sustained an anxiety disorder, an episode of Xanax dependency and the
consequential condition of aggravation of angina decubitus.

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In support of his reconsideration request, appellant submitted an October 30, 2013 report
of Dr. McGrew, an attending Board-certified cardiologist. The Board finds that this constitutes
new and relevant evidence which requires OWCP to reopen appellant’s claim for a merit
review.14
In his October 30, 2013 report, Dr. McGrew indicated that a given work-related condition
needed only to partially contribute to an additional condition for that additional condition to be
considered work related. He stated that, by this standard, appellant’s accepted condition of
aggravation of angina was a contributing factor in the development and occurrence of his heart
attacks in 2003 and 2007. Dr. McGrew noted that, to clarify his previous opinions, the fact that
aggravation of angina had been accepted meant that it had been accepted that appellant would
have increased angina attacks in the future, whether he was employed or not. He indicated that
the high stress level of appellant’s job (including handling drug interdiction, monitoring large
shipments of gold and working on the case of the siege at Waco, TX) would involve increased
blood pressure as well as other physiological symptoms that eventually formed the basis for the
accepted aggravation. Dr. McGrew stated that, once this type of aggravation began, there was no
basis for asserting that the aggravation would simply go away. He noted that he had previously
mentioned other stressors such as appellant’s house burning down, but indicated that “such an
event in and of itself would only be one factor in a myriad of many, along with his continuing
aggravation of angina, in causing the perfect storm necessary to initiate a heart attack.”
In its November 18, 2013 decision, OWCP denied appellant’s reconsideration request
indicating that Dr. McGrew’s October 30, 2013 report was similar to his previously submitted
reports which were reviewed by OWCP and deemed insufficient to meet appellant’s burden of
proof. The Board notes, however, that the October 30, 2013 report of Dr. McGrew contains
significantly greater relevant medical discussion than his previously submitted reports with
respect to the relevant issue of this case, i.e., whether appellant’s heart attacks in 2003 and 2007
were related to his accepted work conditions. For example, in his March 17, 2009 report,
Dr. McGrew made a conclusory statement on causal relationship, without further elaboration,
when he stated, “In my opinion [appellant’s] anxiety disorder has a major impact on his heart.
Also, his heart attacks are related to his anxiety disorder which was documented by his previous
cardiologist….” In his February 2, 2011 report, he indicated that it was “certainly possible” that
appellant’s work stress was “a contributing factor to his health.” Dr. McGrew again made a
conclusory statement on causal relationship when he stated, “[I]t is my opinion that [appellant’s]
angina pectoris and anxiety disorder are related and were contributing factors to [his] 2003 and
2007 myocardial infarctions.” In a portion of his June 21, 2011 report, he indicated that
appellant’s 2003 heart attack was induced by the nonwork factor of his house burning down. In
another portion of the report, Dr. McGrew posited that appellant’s work duties contributed to his
health without clearly indicating whether a work-related condition contributed to his heart
attacks in 2003 and 2007.15

14

See D.M., Docket No. 10-1844 (issued May 10, 2011); Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

15

The Board also notes that the October 30, 2013 report of Dr. McGrew also contains greater relevant medical
discussion than the previously submitted reports of appellant’s other attending physicians.

6

Therefore, the case is remanded to OWCP in order to conduct a proper merit review of
appellant’s claim pursuant to 5 U.S.C. § 8128(a). In conjunction with conducting this merit
review, OWCP shall issue an appropriate merit decision regarding his claim that his heart attacks
in 2003 and 2007 were related to his accepted work conditions.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a). The case is remanded to OWCP for
further development.
ORDER
IT IS HEREBY ORDERED THAT the November 18, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: September 11, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phyllis, KY, Employer
__________________________________________

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

Docket No. 14-675
Issued: June 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 3, 2014 appellant, through her attorney, filed a timely appeal of a
November 20, 2013 Office of Workers’ Compensation Programs’ (OWCP) merit decision.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on April 16, 2013, as alleged.
FACTUAL HISTORY
On April 17, 2013 appellant, then a 51-year-old postmaster, filed a traumatic injury claim
alleging that on April 16, 2013 she picked up a tub of flats and experienced pain in her right

1

5 U.S.C. § 8101 et seq.

thumb. The employing establishment provided appellant with an authorization for examination
or treatment, Form CA-16.
OWCP requested additional factual and medical evidence in a letter dated April 19, 2013.
Dr. Anbu K. Nadar, a Board-certified orthopedic surgeon, completed a form report on May 13,
2013 and diagnosed sprained right thumb. He indicated that appellant provided a history of
injuring her right thumb at work and indicated with a checkmark “yes” that her condition was
caused or aggravated by an employment activity.
By decision dated May 22, 2013, OWCP denied appellant’s claim on the grounds that she
failed to establish a causal relationship between her accepted employment incident and her
diagnosed right thumb strain.
Appellant requested a review of the written record on June 6, 2013 by an OWCP hearing
representative. Dr. Nadar completed a report on June 4, 2013 and stated that he examined
appellant on April 16, 2013 for a work-related injury. He stated that appellant picked up a tub of
magazines weighing 10 to 15 pounds and hurt her right thumb. Dr. Nadar reported that appellant
stated that it felt like her thumb popped and she experienced pain and swelling. He treated
appellant for a sprain of the right thumb. Dr. Nadar stated, “It [i]s my opinion her current
symptoms to her right thumb are causally related to the work-related injury of April 16, 2013.”
Appellant submitted a narrative statement asserting that on April 16, 2013 she reached to
pick up a tub of flats including magazines and felt a severe pain in her right thumb causing her to
drop the tub. Her thumb began to swell and the pain worsened. Appellant sought treatment from
Dr. Nadar and returned to work on July 12, 2013 with continued thumb pain and swelling.
By decision dated November 20, 2013, an OWCP hearing representative found that
appellant had established that she lifted a tub of mail on April 16, 2013 and felt pain in her right
thumb. He further found that the medical evidence was not sufficient to establish that any
diagnosed condition was causally related to this incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.3 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.4
2

5 U.S.C. §§ 8101-8193.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

2

OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”5 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. 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.6 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.7 A medical report is of limited probative value
on a given medical question if it is unsupported by medical rationale.8 Medical rationale
includes a physician’s detailed opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment activity. The
opinion of the physician must be based on a complete factual and medical background of the
claim, must be one of reasonable medical certainty, and must be supported by medical reasoning
explaining the nature of the relationship between the diagnosed condition and specific
employment activity or factors identified by the claimant.9
ANALYSIS
Appellant filed a traumatic injury claim alleging that on April 16, 2013 she injured her
right thumb lifting a tub of mail. She has submitted sufficient factual evidence to establish that
the employment incident occurred as alleged. Appellant also submitted medical evidence from
Dr. Nadar diagnosing a right thumb strain. However, the Board finds that Dr. Nadar’s reports
are not sufficiently detailed and well-reasoned to establish a causal relationship between
appellant’s diagnosed condition and her employment incident.
Dr. Nadar completed a form report on May 13, 2013 and diagnosed sprained right thumb.
He noted that appellant provided a history of injuring her right thumb at work. In response to the
question of whether her diagnosed condition was due to her employment, Dr. Nadar placed a
check mark “yes.” The Board has held that an opinion on causal relationship which consists only
of a physician checking “yes” to a medical form report question on whether the claimant’s
condition was related to the employment given is of little probative value. Without any
explanation or rationale for the conclusion reached, such report is insufficient to establish causal
relationship.10 Dr. Nadar did not provide any explanation for his opinion and this opinion is not

5

20 C.F.R. § 10.5(ee).

6

John J. Carlone, 41 ECAB 354 (1989).

7

J.Z., 58 ECAB 529 (2007).

8

T.F., 58 ECAB 128 (2006).

9

A.D., 58 ECAB 149 (2006).

10

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

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sufficient to establish a causal relationship between appellant’s diagnosed right thumb sprain and
her employment incident.
Following OWCP’s denial of her claim, appellant submitted additional medical evidence
from Dr. Nadar, dated June 4, 2013, who stated that he examined her on April 16, 2013 for a
work-related injury and that she picked up a tub of magazines weighing 10 to 15 pounds
resulting in pain in her right thumb. Dr. Nadar diagnosed sprain of the right thumb. He stated,
“It [i]s my opinion her current symptoms to her right thumb are causally related to the workrelated injury of April 16, 2013.” While Dr. Nadar provided a clear opinion that he believed that
appellant’s right thumb condition was due to her accepted employment incident, he failed to
provide the necessary medical reasoning explaining how the lifting incident resulted in a thumb
sprain. As he did not provide a detailed explanation of how lifting a tub of mail could result in
appellant’s right thumb sprain, his report is not sufficient to meet appellant’s burden of proof.11
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 submitted the necessary medical opinion evidence
to establish that she sustained a traumatic injury in the performance of duty on April 16, 2013, as
alleged.

11

Where an employing establishment properly executes a Form CA-16, which authorizes medical treatment as a
result of an employee’s claim for an employment-related claim, it creates a contractual obligation to pay for the cost
of the treatment regardless of the action taken on the claim. Tracey P. Spillane, 54 ECAB 608 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the November 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 24, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
U.S. POSTAL SERVICE, CINCINNATI
PERFORMANCE CLUSTER, Pittsburgh, PA,
Employer
__________________________________________

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

Docket No. 10-127
Issued: August 18, 2010

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 October 19, 2009 appellant timely appealed a September 8, 2009 merit decision of the
Office of Workers’ Compensation Programs denying his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant established that he sustained a right shoulder condition as
a consequence of his employment conditions.
FACTUAL HISTORY
This case has previously been before the Board. In a June 19, 2009 decision, the Board
affirmed, as modified, a June 27, 2008 Office decision finding that appellant did not meet his
burden of proof to establish that he sustained a right shoulder condition as a consequence of his
accepted conditions of lumbar strain, aggravation of degenerative disc disease and depressive

disorder.1 Appellant attributed his right shoulder condition to a February 2006 fall caused by his
accepted low back conditions. The Board found that the medical evidence was insufficient to
meet his burden of proof. The facts of the claim as set forth in the Board’s prior decision are
incorporated herein by reference.
Following the June 27, 2008 Office decision, appellant submitted evidence. In an
August 2, 2004 report, Dr. Richard Lingreen, a Board-certified anesthesiologist, diagnosed
cervicalgia, cervical herniated nucleus pulposus without myelopathy and cervical nerve root
injury syndrome. Possible surgical procedures were discussed. In March 4 and September 12,
2008 reports, Dr. John Gilbert, a Board-certified neurologist, noted that appellant had work
injuries in 1984 and 1989. He diagnosed lumbar stenosis, lumbar degenerative disc disease,
lumbago, lumbosacral pain, lumbar sciatica, lumbar nerve root injury, lumbar spondylosis
without myelopathy, hip pain, lower leg pain, numbness/tingling, anxiety, depression, insomnia
and muscle spasms. In a March 4, 2008 report, Dr. Gilbert noted that appellant had increased
falls recently. He discussed appellant’s progress as well as possible surgical procedures.
In a June 28, 2009 letter, appellant’s attorney requested reconsideration. In an August 9,
2008 report, Dr. Gary A. Shearer, a Board-certified family practitioner, reviewed a history of
appellant’s back injury. He indicated that appellant sustained an injury to the right shoulder as a
result of back spasms which caused his legs to go out. Dr. Shearer explained that appellant was
totally asymptomatic of any shoulder problems prior to the fall and had been essentially totally
disabled since. He opined that the right shoulder pathology was directly related to his workers’
compensation injury. Dr. Shearer also opined that appellant’s back condition was not a natural
progression of the disease. Had appellant not been injured in 1984, he would not have been
disabled or in pain for years. Dr. Shearer advised that appellant’s complaints and physical
findings were consistent, he had a positive nerve conduction study and a surgical problem in his
shoulder. Chart notes of June 19, 2009 were submitted. In a September 3, 1996 report,
Dr. Shearer stated that appellant had chronic back pain with degenerative disc disease of the
lumbosacral spine. He found appellant’s conditions were permanent and caused total disability
from any active employment.
In a September 8, 2009 decision, the Office denied modification of its prior decisions. It
found that appellant’s right shoulder condition was not a consequence of his accepted back
conditions. The Office found the evidence submitted was not sufficient to overcome the medical
opinion of Dr. Fisher, the second opinion examiner.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.2
The subsequent injury is compensable if it is the direct and natural result of a compensable
1

Docket No. 08-2125 (issued June 19, 2009). The Board also modified the Office’s decision to reflect that the
Office should not have analyzed the claim as a recurrence of disability since appellant never returned to work.
2

Albert F. Ranieri, 55 ECAB 598 (2004).

2

primary injury.3 With respect to consequential injuries, the Board has stated that, where an
injury is sustained as a consequence of an impairment residual to an employment injury, the new
or second injury, even though nonemployment related, is deemed, because of the chain of
causation to arise out of and in the course of employment and is compensable.4 However, a
claimant bears the burden of proof to establish his claim for a consequential injury and as part of
this burden, must present rationalized medical opinion evidence, based on a complete factual and
medical background showing causal relationship. Rationalized medical evidence is evidence
which relates a work incident or factors of employment to a claimant’s condition, with stated
reasons of a physician.5 Such opinion of the physician must be one of reasonable medical
certainty and must be supported by medical reasoning explaining the nature of the relationship
between the diagnosed condition and the employment.6
ANALYSIS
The Office accepted that appellant’s June 28, 1984 work injury resulted in lumbar strain,
aggravation of degenerative disc disease and depressive disorder.
In an August 9, 2008 report, Dr. Shearer opined that appellant’s right shoulder pathology
was directly related to the accepted employment injury. He found that appellant sustained injury
to his shoulder as a result of back spasms which caused his legs to go out. Dr. Shearer advised
that appellant’s back condition was not a natural progression of a disease and explained that, had
he not been injured in 1984, he would not have become disabled. The Board finds that
Dr. Shearer did not provide sufficient medical rationale explaining the reasons appellant’s legs
gave out as a direct and natural result of the accepted lumbar strain or aggravation of
degenerative disc disease rather than an independent intervening cause or other nonwork-related
condition. Dr. Shearer did not explain the processes by which the lumbar strain and aggravation
of degenerative disc disease would cause such weakening or instability to the legs so as to cause
appellant to fall in 2006. The need for such rationale is especially important as the fall occurred
in February 2006, more than 20 years after the work injury. Dr. Shearer’s earlier report of
September 3, 1996, predated the February 2006 fall and are not relevant to the issue on appeal.
The medical evidence from Dr. Gilbert and Dr. Lingreen discusses appellant’s treatment
for his current lumbar condition and provide diagnoses related to the lumbar spine. While
Dr. Gilbert mentioned appellant’s work injuries, neither physician provided a specific discussion
on how any of the work injuries would cause the fall in question.7 While Dr. Gilbert noted
appellant was experiencing increased falls in his March 4, 2008 report, he did not indicate how
the February 2006 fall was related to appellant’s work injury or the accepted conditions.

3

Id.; Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

4

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

5

Charles W. Downey, 54 ECAB 421 (2003).

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

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. A.D., 58 ECAB 149 (2006); Conrad Hightower, 54 ECAB
796 (2003).

3

Dr. Lingreen’s report predated the 2006 fall. Thus, these reports are not probative regarding how
the accepted conditions caused the February 2006 fall that resulted in a right shoulder injury.
The other medical evidence provided by appellant offered no opinion on the issue of
causal relationship and are insufficient to establish appellant’s claim.
It is appellant’s burden of proof to submit the necessary medical evidence to establish a
consequential injury. He did not meet his burden of proof as the medical evidence submitted is
insufficient to establish a consequential relationship between his diagnosed right shoulder
condition and his work injury. Appellant failed to submit sufficient medical evidence which
demonstrated how his right shoulder condition arose as a natural consequence of his accepted
injuries of lumbar strain and aggravation of degenerative disc disease rather than as a result of an
intervening cause.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained a right shoulder condition as a consequence of his accepted conditions.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 8, 2009 is affirmed.
Issued: August 18, 2010
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

4