United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eau Claire, WI, Employer
__________________________________________

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

Docket No. 08-826
Issued: September 16, 2008

Case Submitted on the Record

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

JURISDICTION
On January 24, 2008 appellant filed a timely appeal from a December 7, 2007 decision of
the Office of Workers’ Compensation Programs denying her claim. 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 established that she sustained an emotional condition in
the performance of duty causally related to factors of her federal employment.
FACTUAL HISTORY
On May 17, 2007 appellant, then a 41-year-old mail handler, filed a Form CA-2,
occupational disease claim, alleging that factors of her federal employment caused anxiety and
depression. She stated that forced overtime, a stressful environment and harassment caused her
condition. Appellant stopped work on February 21, 2007, returned to work four hours a day on
April 16, 2007, six hours a day on April 30, 2007 and eight hours a day on May 7, 2007.

By letter dated June 26, 2007, the Office informed appellant of the evidence needed to
support her claim. In a May 17, 2007 statement, appellant alleged that she was harassed by
coworkers who felt she had been hired through connections and was forced to work overtime of
up to 10 hours a night for 6 nights a week for undetermined lengths of time. On one occasion,
after she had put in 10 hours, she was forced to work an additional 2 hours, on several occasions
she did not do her bid job and she was forced to work the majority of holidays. Appellant was
harassed by Chris Olson, a supervisor, who denied her leave requests, accused her of being the
girlfriend of Scott Rygiel, a union steward, provided contradictory work instructions and
constantly monitored her work. Ms. Olson allegedly told coworkers that she was using up her
sick leave and was then going to quit. Appellant noted that her depression became worse in
July 2006. On September 10, 2006 she went to urgent care and was prescribed an anti-anxiety
medication and in October 2006, her physician restricted her to 50 hours per week. Appellant
stated that she left work in the middle of her shift on February 21, 2007 because she became
anxious and depressed. She alleged that she was improperly denied leave in November 2006 and
January and February 2007 and that there was nothing inappropriate about her relationship with
Mr. Rygiel, noting that she would discuss management issues with him during her break.
Appellant also submitted a statement from union stewards Kris Bush and Robert W.
Harvey. They noted that on February 7, 2007 she approached them because she was extremely
upset and stressed from the excessive mandatory overtime that was being forced on the mail
handler craft and because she was harassed by Ms. Olson. In a February 13, 2007 statement,
Mr. Rygiel noted that on January 30, 2007 Ms. Olson denied appellant’s leave request for
February 20, 2007 and that when he discussed this with Ms. Olson, she “went off” on him,
saying she was tired of his girlfriend always getting off when she wanted and always getting her
way. Coworkers Janalee Kadler, Bruce Blum and Dave Marucheck advised that in March 2007
Ms. Olson told them that appellant was using up her sick leave and was not coming back to
work.
In a May 10, 2002 letter to all craft employees, James R. Hauger, plant manager, advised
that a step three decision had been settled regarding a class action grievance filed at the
employing establishment. Prior to the settlement, it had been the position of local management
that overtime would not be forced but that this violated the national agreement and was no longer
an option. Mr. Hauger stated that, to comply with the settlement agreement, mail handlers who
had placed their name on an overtime desired list would work up to 12 hours per day, 7 days a
week and mail handlers who had not placed their names on an overtime list would work up to
10 hours per day 6 days a week. In a January 12, 2007 letter, Roger Rihn, plant manager,
advised that until further notice, mail handlers would be scheduled to work 10 hours a day,
6 days a week and that the only exception was employees who had medical documentation
preventing them from working the schedule. He asked for volunteers to work 12-hour days.
Appellant also submitted minutes of a labor-management meeting dated October 5, 2006
in which Ms. Olson was discussed, additional comments regarding the meeting by union
representatives, copies of denied leave requests, work schedules of employees dating from
September 9, 2006 through February 16, 2007 and a statement signed by 10 coworkers on
October 20, 2007 attesting that they witnessed nothing inappropriate between appellant and
Mr. Rygiel.

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By report dated September 10, 2006, Dr. John Snyder, Board-certified in family
medicine, noted appellant’s complaint of stress at work. He diagnosed dyspnea, likely related to
work stress. Dr. Jodi Ritsch, Board-certified in family medicine, submitted reports dating from
October 24, 2006 to March 26, 2007, in which she diagnosed anxiety and depression.
Dr. Jay Collier, a Board-certified psychiatrist, submitted reports dating from an intake
assessment on January 18 through June 4, 2007. In reports dated March 6 and April 26, 2007,
Dr. William J. Weggel, a Board-certified psychiatrist, noted seeing appellant for medication
management and her report that her depression was caused by stress at work. He diagnosed
panic disorder without agoraphobia and major depressive disorder, single episode, moderate.
Appellant also submitted reports from Teresa Owens, a nurse practitioner, Linda Coffield, M.S.,
a therapist and Jackie T. Joday, M.S.W.
The employing establishment controverted the claim. In an August 15, 2007 statement,
Ms. Olson responded to appellant’s allegations, noting that she had a medical restriction for five
10-hour days and that her leave requests were denied because the leave board was filled. When
Mr. Rygiel asked that an exception be made, she told him that she did not play favorites.
Ms. Olson stated that, when trying to find appellant, she would be with Mr. Rygiel, either on the
dock or in the union office and that she had no idea why appellant was off work. She stated that
because no mail handlers were on the overtime list, all were being scheduled for 10 hours a day,
five or six days a week depending on applicable work restrictions. Ms. Olson also provided
comments to appellant’s May 17, 2007 statement, noting that management had the right to assign
job duties.
By decision dated December 7, 2007, the Office denied the claim on the grounds that,
appellant failed to establish a compensable factor of employment.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.3
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.4 When an employee experiences
1

Ronald K. Jablanski, 56 ECAB 616 (2005).

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Robert W. Johns, 51 ECAB 137 (1999).

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emotional stress in carrying out his employment duties and the medical evidence establishes that
the disability resulted from his emotional reaction to such situation, the disability is generally
regarded as due to an injury arising out of and in the course of employment. This is true when
the employee’s disability results from his emotional reaction to a special assignment or other
requirement imposed by the employing establishment or by the nature of his work.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.6 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.8 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.9
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Mere perceptions of harassment or discrimination are not
compensable under the Act. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. Rather, the issue is
whether the claimant under the Act has submitted sufficient evidence to establish a factual basis
for the claim by supporting his or her allegations with probative and reliable evidence.10

5

Lillian Cutler, supra note 2.

6

See Dennis J. Balogh, 52 ECAB 232 (2001).

7

Id.

8

Charles D. Edwards, 55 ECAB 258 (2004).

9

Kim Nguyen, 53 ECAB 127 (2001).

10

James E. Norris, 52 ECAB 93 (2000); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
566 (1991).

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ANALYSIS
Appellant alleged that she sustained a stress-related condition as a result of a number of
conditions at work. By decision dated December 7, 2007, the Office denied her claim on the
grounds that she did not establish a compensable factor of employment.
Regarding appellant’s allegations that she was improperly denied leave, improperly
monitored and assigned duties outside her craft, these are administrative functions of the
employing establishment. The Board has held that an administrative or personnel matter will be
considered to be an employment factor only where the evidence discloses error or abuse on the
part of the employing establishment. In determining whether the employing establishment erred
or acted abusively, the Board has examined whether the employing establishment acted
reasonably.11 In this case, the employing establishment explained that appellant’s leave was
denied because the leave board was full and she submitted no evidence to support her allegations
that she was improperly monitored or worked outside her craft. She therefore did not establish
that these administrative matters were compensable.12
Appellant also generally alleged that she was harassed by her coworkers and Ms. Olson.
For harassment or discrimination to give rise to a compensable disability, there must be evidence
that establishes that the acts alleged or implicated by the employee did, in fact, occur. Mere
perceptions of harassment or discrimination are not compensable and unsubstantiated allegations
of harassment or discrimination are not determinative of whether such harassment or
discrimination occurred. A claimant must establish a factual basis for his or her allegations with
probative and reliable evidence.13 Appellant has not submitted evidence to support that she was
harassed by her coworkers. She contended that comments made by Ms. Olson regarding her
relationship with Mr. Rygiel and her absence from work constituted harassment and submitted
the statements from coworkers who noted that Ms. Olson had referred to appellant as
Mr. Rygiel’s girlfriend and that they did not behave inappropriately. The coworkers also noted
that Ms. Olson said that appellant would not return from sick leave. The Board has recognized
the compensability of verbal abuse in certain situations. This, however, does not imply that
every statement uttered in the workplace will give rise to coverage under the Act.14 While the
statements made by Ms. Olson may have engendered unpleasant feelings, the Board finds that
they did not sufficiently affect the conditions of employment to constitute a compensable
employment factor.15 Appellant therefore did not establish a compensable employment factor
with respect to the claimed harassment.16

11

M.D., 59 ECAB ____ (Docket No. 07-908, issued November 19, 2007).

12

See Jeral A. Gray, 57 ECAB 611 (2006).

13

James E. Norris, supra note 10.

14

V.W., 58 ECAB ____ (Docket No. 07-34, issued March 22, 2007).

15

See J.C., 58 ECAB ____ (Docket No. 07-530, issued July 9, 2007).

16

Robert Breeden, 57 ECAB 622 (2006).

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The Board has held that an emotional reaction to situations in which an employee is
trying to meet his or her position requirements is compensable.17 Overwork, as substantiated by
sufficient factual information to corroborate the claimant’s account of events, may be a
compensable factor of employment.18 In this case, the record supports that appellant worked
overtime on a regular basis. By letter dated May 10, 2002, Mr. Hauger, a plant manager,
described a grievance settlement under which mail handlers who had placed their name on an
overtime desired list would work up to 12 hours per day, seven days a week and the mail
handlers who did not place their names on the overtime list would work up to 10 hours per day
six days a week. In a January 12, 2007 letter, Mr. Rihn, a plant manager, advised that all mail
handlers would be scheduled to work 10 hours a day, six days a week, with the only exception to
these employees who had medical documentation preventing them from working the schedule.
He asked for volunteers to work 12-hour days.19 Ms. Olson confirmed that appellant worked
five 10-hour days weekly. The Board finds that this evidence is sufficient to substantiate
appellant’s allegations of overwork.20
As appellant has established a compensable employment factor, the Office must base its
decision on an analysis of the medical evidence. The case will therefore be remanded to the
Office to analyze and develop to medical evidence.21 After such further development deemed
necessary, the Office shall issue an appropriate decision on the merits of this claim.
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant
established that she sustained an emotional condition in the performance of duty causally related
to factors of her federal employment.

17

Tina D. Francis, 56 ECAB 180 (2004).

18

Bobbie D. Daly, 53 ECAB 691 (2002).

19

Appellant also submitted daily work schedules of employees. It is unclear from the schedules, however,
exactly what hours and what days she worked.
20

Bobbie D. Daly, supra note 18.

21

Tina D. Francis, supra note 17.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 7, 2007 be set aside and the case remanded to the
Office for proceedings consistent with this opinion of the Board.
Issued: September 16, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Isle, MN, Employer
__________________________________________

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Appearances:
Allen R. Webb, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1414
Issued: April 14, 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 May 18, 2009 appellant filed a timely appeal of a February 23, 2009 decision of the
Office of Workers’ Compensation Programs affirming the May 22, 2008 termination of his
compensation benefits. Pursuant to 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 the Office met its burden of proof to terminate appellant’s
compensation benefits for his left arm on May 22, 2008.
On appeal, counsel for appellant contends that the report of the impartial medical
specialist is not sufficient to represent the weight of medical opinion.
FACTUAL HISTORY
On July 27, 2005 appellant, then a 51-year-old rural carrier, filed an occupational disease
claim for numbness in his left little and ring fingers and his left forearm from hyperextending his
left arm while driving at work. He stopped work following his October 7, 2005 left ulnar nerve

anterior transposition surgery. Appellant returned to light duty on January 24, 2006 and missed
time from work intermittently thereafter. The Office accepted his claim for left lesion of the
ulnar nerve and left ulnar nerve anterior transposition surgery. It later accepted left shoulder
rotator cuff impingement syndrome. The Office paid appropriate compensation benefits.
On August 31, 2005 Dr. Peter Schmitz, a Board-certified orthopedic surgeon, diagnosed
left tardy ulnar nerve. On October 7, 2005 he performed left ulnar nerve anterior transposition
surgery. In reports dated December 19, 2005 and January 23, 2006, Dr. Schmitz noted
appellant’s continued complaint of left arm numbness. He also noted appellant’s complaint of
left shoulder pain and acromioclavicular (AC) joint tenderness. Dr. Schmitz indicated that xrays revealed AC joint degenerative arthrosis and he diagnosed impingement syndrome. On
May 23, 2006 he noted treating appellant for a work-related shoulder injury. Dr. Schmitz
indicated that appellant initially had a left shoulder injury that had become a bilateral shoulder
injury from the right shoulder compensating for the left shoulder. He opined that both were
work-related conditions. Dr. Schmitz submitted work status reports. In an August 2, 2006 work
status form, he advised that appellant could work with permanent restrictions as outlined in a
June 7, 2006 functional capacity evaluation (FCE) that found appellant could perform medium
work.
An August 1, 2006 report from Dr. Thomas Jetzer, Board-certified in occupational
medicine and an employing establishment physician, noted appellant’s history of ulnar
transposition with complaints of numbness not substantiated by testing or examination.
Dr. Jetzer also noted subclinical and asymptomatic carpal tunnel syndrome of which appellant
was not aware. He found no evidence of left hand or arm dysfunction with normal range of
motion as well as no shoulder abnormality. Dr. Jetzer opined that AC joint arthritis was due to
aging as it was bilateral. He advised that appellant could work under the restrictions in the FCE.
On November 29, 2006 the Office requested that an Office medical adviser address
whether appellant’s right shoulder condition was a consequential injury and whether his claim
should include bilateral shoulder spurs. On December 9, 2006 an Office medical adviser
reviewed the medical records and determined it was unclear when appellant’s bilateral shoulder
pain began to develop. He noted that the evidence inconsistently diagnosed AC joint arthritis
and he was unable to determine if this condition was aggravated by the accepted altered left
upper extremity mechanics to be considered a consequential injury. The medical adviser
recommended a second opinion. He stated that appellant’s bilateral shoulder spurs from his AC
joint arthritis were due to degenerative changes.
On January 10, 2007 the Office referred appellant to Dr. Paul Yellin, a Board-certified
orthopedic surgeon, for a second opinion. In a February 9, 2007 report, Dr. Yellin reviewed the
medical records and summarized the history of injury. On examination, he found normal range
of motion of the cervical spine, normal extension and normal range of motion of both shoulders
and wrists. Dr. Yellin stated that appellant’s left shoulder problem started at the same time he
developed numbness in his left little and ring fingers. He noted that appellant also started to
develop the same findings on the right hand. Appellant attributed these conditions to his work
activities but did not specify a specific onset date. Dr. Yellin opined that appellant’s left
shoulder degenerative spurring resulted from normal aging process and that using his arm in an
outstretched position at work did not cause degenerative left shoulder arthritis. He advised that

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appellant’s right shoulder condition was not the result of anything relating to the left arm, and
therefore the right AC joint arthritis was not consequential to the left arm condition. Dr. Yellin
opined that the AC joint arthritis of both shoulders was due to normal aging. He advised that
appellant could work regular full-time duties as a rural mail carrier. Dr. Yellin found no
objective pathologic disfunction to the upper extremities. There was no clinical abnormality,
loss of range of motion or loss of strength in either shoulder. Dr. Yellin advised that no further
medical treatment for the shoulders was required. He opined that the right ulnar nerve symptoms
were consistent with appellant’s work activities.
In a March 19, 2007 letter, the Office notified appellant that there was a conflict in
medical opinion between Dr. Schmitz, who found that appellant could only work five hours per
day with restrictions and that his bilateral AC joint arthritis was a consequential injury to the
accepted occupational injury, and Dr. Yellin, who found that appellant could work full-time
regular duty without restrictions and that his bilateral AC joint arthritis was not a consequential
injury. The Office referred appellant with a statement of accepted facts to Dr. Mark Gregerson, a
Board-certified orthopedic surgeon, to resolve the conflict.
In a May 14, 2007 report, Dr. Gregerson reviewed the medical evidence and summarized
the history of injury. Upon examination, he found full range of motion of the left elbow with the
ability to fully flex, extend, pronate and supinate without pain. Dr. Gregerson found no elbow
instability, good alignment and normal motion of the upper extremities. He noted no left hand
intrinsic atrophy. Regarding the right elbow, Dr. Gregerson found repetitive snapping of the
ulnar nerve in the medial epicondylar groove on range of motion causing tingling in the ulnar
two digits. He also found good alignment to the right elbow with full range of motion and no
instability. Dr. Gregerson indicated that both shoulders were tender to palpation over the
superior spur of the AC joint. X-rays of both shoulders taken during the examination revealed
subacromial spurring. Dr. Gregerson diagnosed ulnar nerve entrapment of both elbows status
post ulnar nerve subcutaneous release of the left elbow with ongoing ulnar nerve symptoms
bilaterally. He also diagnosed subacromial spurring with rotator cuff impingement in both
shoulders. Dr. Gregerson opined that the ulnar nerve entrapment, rotator cuff impairment and
subacromial spurring were not directly caused by appellant’s work duties as repetitive mail
delivery with the left arm could aggravate the left ulnar nerve entrapment or rotator cuff
impairment but could not cause right-sided symptoms. He stated that subacromial spurring and
rotator cuff impairment could be due to appellant’s individual anatomy. Dr. Gregerson advised
that appellant’s claim should not be expanded to include right shoulder AC joint arthritis or
bilateral shoulder spurs.
Dr. Gregerson noted that appellant’s current physical restrictions were secondary to his
preexisting conditions, which may have been aggravated over time by work and living activities
but that hyperextension of the left arm was not causally linked to the temporary restrictions
necessary for appellant’s condition. He opined that appellant did not require further treatment
for his accepted injuries but needed further testing including an EMG of both arms to determine
if he had permanent damage to his ulnar nerve and to confirm whether he had right elbow ulnar
nerve entrapment. Dr. Gregerson recommended a magnetic resonance imaging (MRI) scan of
both shoulders to determine the exact pathology of the shoulder. He noted that treatment
recommendations depended on the test results. Dr. Gregerson opined that appellant’s repetitive
mail sorting in the overhead position aggravated his preexisting conditions in both shoulders and

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elbows. In a May 14, 2007 work capacity evaluation, he found that appellant could work eight
hours per day with restrictions that included “limited” reaching above the shoulders, repetitive
elbow movements, and pulling, pushing and lifting overhead.
On February 12, 2007 Dr. Schmitz noted that the numbness, tingling and weakness in
appellant’s left hand had localized to the ulnar distribution. He also noted some right hand ulnar
nerve symptoms. Dr. Schmitz found AC joint arthritis in both shoulders and limited appellant to
working five hours daily within restrictions set forth in the FCE. On August 13, 2007 he
reviewed Dr. Gregerson’s report and concurred with his assessment that appellant’s anatomy and
overhead work activities caused his condition. Dr. Schmitz continued noting appellant’s work
status and restrictions.
On June 19, 2007 the Office requested clarification from Dr. Gregerson regarding
whether appellant continued to experience residuals of his accepted work condition and whether
he had other conditions as a result of his employment. It also coordinated diagnostic testing as
Dr. Gregerson recommended. In a report dated August 31, 2007, from an unidentified source,
nerve conduction testing indicated right and left cubital tunnel syndrome and mild abnormal
distal motor latency in the left medial nerve.
In an October 10, 2007 supplemental report, Dr. Gregerson noted that appellant would
not undergo an EMG or MRI scan per his recommendation. He also noted that the record
contained an August 31, 2007 unsigned progress note discussing the findings of a nerve
conduction test, but that the test results were not available for his review. Dr. Gregerson
diagnosed bilateral ulnar nerve entrapment and status post left ulnar nerve subcutaneous release
and bilateral rotator cuff impingement. He opined that it was possible that the left arm ulnar
nerve symptoms were aggravated by repeated mail delivery but that this would not explain
appellant’s right arm symptoms. Therefore, appellant’s ulnar nerve entrapment was partially due
to his ulnar nerve anatomy as well as work- and nonwork-related activities. Dr. Gregerson
opined that overhead repetitive lifting and casing of mail could lead to aggravated rotator cuff
impingement, which was grossly caused by appellant’s own anatomy. However, this was not
clear as appellant did not undergo an MRI scan. Dr. Gregerson stated that appellant had
continued ulnar nerve symptoms on the left. He advised that appellant’s work activities
temporarily aggravated his preexisting shoulder and elbow condition. Dr. Gregerson also stated
that appellant’s work activities were not the direct cause of his aggravated preexisting bilateral
rotator cuff impingement and left ulnar nerve entrapment. He further noted that there was no
material change to alter appellant’s preexisting condition as a result of work activities.
Dr. Gregerson opined that, based on the statement of accepted facts and accepted conditions,
appellant should avoid heavy repetitive overhead lifting to protect his elbow and shoulder. He
stated that these restrictions were permanent and related to his preexisting anatomical condition,
not his work activities which only temporarily aggravated this condition. In an October 10, 2007
work capacity evaluation, Dr. Gregerson indicated that appellant could work eight hours per day
within restrictions.
In an August 30, 2007 MRI scan report, Dr. William Schwartau, a Board-certified
diagnostic radiologist, found mild supraspinatus tendinitis of the right shoulder and mild
degenerative changes about the AC joint of the left shoulder.

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On December 4, 2007 the Office requested that Dr. Gregerson clarify the conflicting
restrictions listed in both work capacity evaluations. In a December 17, 2007 supplemental
report, Dr. Gregerson noted he was submitting a new work capacity evaluation that superseded
previous evaluation forms and was based on information provided to him. In a work capacity
evaluation of the same date, he indicated that appellant could work eight hours per day with
restrictions on reaching above the shoulder, repetitive elbow movement and pushing, pulling and
lifting all limited to five hours per day. Dr. Gregerson also indicated “see supplemental report
dated October 10, 2007” regarding causal responsibility for restrictions.
On March 12, 2008 the Office proposed to terminate appellant’s compensation. It
accepted that he sustained a resolved temporary aggravation of preexisting left shoulder rotator
cuff impingement syndrome; however, the weight of the medical evidence rested with
Dr. Gregerson who determined that appellant’s work-related condition had resolved without
residuals of the accepted conditions.
In a March 25, 2008 report, Dr. Schmitz noted that appellant continued to have ulnar
neuropathy and sensory ulnar deficits on the left side. He also noted that previous EMG results
showed evidence of early carpal tunnel syndrome and cubitus tardy ulnar nerve on the right side.
Dr. Schmitz recommended that appellant continue to work within limitations outlined in the
FCE. He also opined that all of these conditions were work aggravated conditions.
In a May 22, 2008 decision, the Office terminated appellant’s compensation benefits
effective that day.
Appellant requested an oral hearing which was held on November 13, 2008. In a July 14,
2008 report, Dr. Robert Wengler, a Board-certified orthopedic surgeon, advised that appellant
presented with residuals of tardy ulnar nerve palsy of the left upper extremity developed as a
function of work activities as a rural carrier. He indicated that this activity stressed the ulnar
nerve as it traversed the ulnar notch behind the elbow and ultimately resulted in tardy ulnar
palsy. Dr. Wengler provided an impairment rating for appellant’s condition. He opined that
appellant was not capable of returning to preinjury work but could work eight hours per day
within restrictions. In another report of the same date, Dr. Wengler noted appellant’s complaint
of numbness in the fourth and fifth fingers on the left hand as well as weakness. Upon
examination, he found tardy ulnar nerve palsy of the left upper extremity and status post ulnar
nerve transposition without relief of symptoms. Dr. Wengler also noted further orthopedic
intervention was not necessary. On October 15, 2008 he provided a revised impairment rating.
In a February 23, 2009 decision, an Office hearing representative affirmed the May 22,
2008 decision, finding the weight of medical evidence rested with Dr. Gregerson who
determined that appellant’s disability and symptoms were not residuals of his accepted work
injury.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.1 After it has determined that an employee has disability
1

Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

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causally related to his federal employment, the Office may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.2 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.3 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, the Office must establish that the claimant no
longer has residuals of an employment-related condition, which requires further medical
treatment.4
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.5 When a case is referred to an
impartial medical specialist for the purpose of resolving a conflict in medical opinion, the
opinion of such specialist, if sufficiently well rationalized and based on a proper background,
must be given special weight.6
ANALYSIS
The Office properly determined that a conflict existed in the medical evidence as to
whether appellant had any disability or residuals due to his accepted left arm condition and
whether his AC joint arthritis was due to his work. Appellant’s treating physician, Dr. Schmitz,
submitted reports indicating that appellant had continuing left arm residuals and bilateral AC
joint arthritis due to the accepted occupational injury, which limited his ability to work, while the
second opinion physician, Dr. Yellin, opined that appellant could work full-time regular duty
without restrictions as appellant’s AC joint arthritis condition was age related. The Office
referred appellant to Dr. Gregerson for an impartial examination to resolve the medical conflict.
The Board finds that Dr. Gregerson’s opinion is equivocal and not well rationalized.
Therefore, it is insufficient to resolve the conflict between Drs. Schmitz and Yellin. In a
May 14, 2007 report, Dr. Gregerson failed to directly address whether appellant’s accepted
conditions resulted in continued residuals or disability. He also did not clearly identify
appellant’s preexisting conditions or distinguish how those conditions, and not appellant’s
accepted conditions, required continued work restrictions. Dr. Gregerson concluded that
appellant’s work limitations were secondary to his preexisting conditions. However, he
inconsistently stated that appellant’s preexisting conditions “may have been aggravated” from
work activities while later subsequently noting that such conditions were not causally linked to
the temporary restrictions necessary for appellant’s condition.

2

Vivien L. Minor, 37 ECAB 541 (1986).

3

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

4

E.J., 59 ECAB ___ (Docket No. 08-1350, issued September 8, 2008).

5

B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009).

6

Y.A., 59 ECAB ___ (Docket No. 08-254, issued September 9, 2008).

6

In an October 10, 2007 supplemental report, Dr. Gregerson did not specifically discuss
appellant’s accepted conditions and therefore failed to address whether the accepted conditions
resulted in continued residuals or disability. Also, his conclusions were supported by
contradictory findings. For example, Dr. Gregerson opined that appellant’s work activities
temporarily aggravated his preexisting shoulder and elbow condition, but that it was not the
direct cause of his aggravated preexisting bilateral rotator cuff impingement and left ulnar nerve
entrapment. The Board has found that an employment injury does not have to be a direct cause
of a condition to be compensable under the Act.7 Dr. Gregerson concluded that appellant’s
permanent work restrictions were due to his preexisting anatomical condition, not his work
activities which only temporarily aggravated this condition. He did not specify when the
temporary aggravation had ceased.
Dr. Gregerson’s December 17, 2007 supplemental report and work capacity evaluation
listed appellant’s work restrictions without further addressing whether such restrictions applied
to appellant’s accepted conditions. Despite his recommendation for further diagnostic testing,
Dr. Gregerson never performed additional testing and his reports do not consider the August 30,
2007 MRI scan of appellant’s shoulders.
Dr. Gregerson did not adequately explain the apparent inconsistencies between finding
that appellant had fully recovered from his work injuries while noting that his work duties had
aggravated his left arm and shoulder conditions. His opinion is of diminished probative value as
it contains insufficient medical rationale to support that appellant no longer has residuals or
disability from his accepted condition.8
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits. There remains an unresolved conflict in the medical evidence.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits for his left arm condition effective May 22, 2008.

7

It is not necessary for the work injury, by itself, to have caused a condition for it to be compensable. It need
only to have contributed to it. Where a person has a preexisting condition which is not disabling but which becomes
disabling because of aggravation causally related to the employment, then regardless of the degree of such
aggravation, the resulting disability is compensable. It is not necessary to prove a significant contribution of factors
of employment to a condition for the purpose of establishing causal relationship. If the medical evidence revealed
that a work factor contributed in any way to the employee’s condition, such condition would be considered
employment related for the purpose of compensation benefits. Arnold Gustafson, 41 ECAB 131 (1989).
8

Willa M. Frazier, 55 ECAB 379 (2004) (the Board has held that medical conclusions unsupported by rationale
are of little probative value).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 23, 2009 is reversed.
Issued: April 14, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, BILLINGS
PROCESSING & DISTRIBUTION CENTER,
Billings, MT, Employer
__________________________________________

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

Docket No. 07-2181
Issued: February 14, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 24, 2007 appellant filed a timely appeal from an August 14, 2007 merit
decision of the Office of Workers’ Compensation Programs that granted him a schedule award
for one percent permanent impairment of each arm. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he had greater
than one percent permanent impairment of the right arm and one percent permanent impairment
of the left arm, for which he received a schedule award.
FACTUAL HISTORY
On February 26, 2005 appellant, then a 55-year-old clerk, filed an occupational disease
claim stating that he developed bilateral carpal tunnel syndrome in the performance of duty. He
did not initially stop work. In an April 18, 2005 note, Dr. Jeffrey N. Hansen, a Board-certified

hand surgeon and orthopedic surgeon, diagnosed carpal tunnel syndrome. After appropriate
development, the Office accepted appellant’s claim for bilateral carpal tunnel syndrome. On
September 12, 2005 the Office approved bilateral wrist endoscopies.
Appellant underwent a right endoscopic carpal tunnel release on October 4, 2005.
Dr. Hansen performed the procedure and recorded preoperative and postoperative diagnoses of
symptomatic carpal tunnel syndrome. On December 5, 2005 he performed a left endoscopic
carpal tunnel release and recorded preoperative and postoperative diagnoses of left carpal tunnel
syndrome. In a December 14, 2005 report, Dr. Hansen noted that appellant was recovering well
from his surgery and his “preoperative symptoms have abated completely.” On February 8, 2006
Dr. Mark S. Hegyes, a family practitioner practicing with Dr. Hansen, advised that appellant was
ready to return to full duty without restrictions.
On April 12, 2006 appellant claimed a schedule award.
In a June 30, 2006 impairment rating, Dr. Hansen concluded that appellant had five
percent permanent impairment of the right arm and five percent permanent impairment of the left
arm. He based his impairment rating on “the obligate loss of pinch and grip strength that
happens from transecting the transverse carpal ligament.” Dr. Hansen noted that he used the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (A.M.A.,
Guides), fifth edition1 Table 16-15 on page 4922 in calculating appellant’s impairment. In a
June 23, 2006 work capacity evaluation he advised that appellant had reached maximum medical
improvement and could perform his regular job.
In an August 26, 2006 report, an Office medical adviser reviewed the record and
Dr. Hansen’s impairment rating and concluded that the rating was incomplete because the doctor
did not provide a full narrative explanation of his calculations and conclusions. He explained
that Dr. Hansen must address appellant’s ongoing symptoms “as well as measurements of two
point discrimination, use of Tables 16-10a3 and 16-11a4 with grading of both sensor and motor
deficits as appropriate.” The medical adviser also noted that the A.M.A., Guides do not provide
for additional impairment ratings for loss of grip and pinch strength.
In a January 26, 2007 report, Dr. Hansen noted that appellant had reached maximum
medical improvement on April 12, 2006 and had “a minimum of symptoms” since returning to
work. He stated that appellant had Grade 4 sensory disturbance and pain residual, which he
noted was typical following a successful bilateral carpal tunnel release. Using Table 16-10 on
page 482 of the A.M.A., Guides,5 Dr. Hansen explained that the upper extremity impairment
resulting from peripheral nerve disorders ranged from one to 25 percent of “the allowable
1

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

2

Id. at 492, Table 16-15.

3

Id. at 482, Table 16-10.

4

Id. at 484, Table 16-11.

5

Supra note 3.

2

impairment for the median nerve.” He stated that Table 16-15 on page 492 of the A.M.A.,
Guides6 indicated that sensory deficit or pain allowed for up to 39 percent impairment of the
upper extremity. Dr. Hansen explained that appellant’s impairment was in the middle range of
Grade 4 and detailed: “Multiplying 39 percent by something in the middle of the range of one to
25 percent, which I choose to be 13 percent, gives us a 5 percent impairment of the upper
extremity due to sensory deficit or pain.” He also noted that appellant had “some motor deficit
and the appropriate rating is obtained.” Dr. Hansen concluded that appellant had five percent
impairment of the right upper extremity and five percent impairment of the left upper extremity.
The Office medical adviser reviewed Dr. Hansen’s January 26, 2007 impairment rating
and provided a February 23, 2007 response. He stated that the impairment rating was based on
loss of pinch and grip strength yet referred to Table 16-15 on page 492 of the A.M.A., Guides.7
The Office medical adviser stated that if Dr. Hansen intended to recommend an impairment
rating based on loss of strength, he must utilize one of the impairment rating methods described
in section 16.8 of the A.M.A., Guides8 and provide the results of dynamometer testing.
On March 5, 2007 Dr. Hansen advised that he did not rate appellant’s impairment based
on loss of strength and did not suggest that Table 16-159 addressed grip or pinch strength. He
explained that appellant’s impairment rating, which he again calculated at five percent of each
arm, was a “typical impairment rating based on sensory deficit and pain.” Dr. Hansen concluded
that appellant’s impairment rating was “based on numbness and pain, as referred to in Table
16-15, page 492.”10
On June 1, 2007 the Office medical adviser stated that Dr. Hansen’s March 5, 2007
response did not address the requested information. Dr. Hansen recommended that the Office
refer appellant for a second opinion examination to determine the degree of his permanent partial
impairment due to his accepted carpal tunnel syndrome.
Appellant provided a May 7, 2007 report from Dr. Hansen, who concluded that
appellant’s impairment was now in the middle range of Grade 3 impairment for sensory deficit
and pain, a “higher rating than we had suggested previously.” Dr. Hansen stated that he used
Table 16-10 on page 482 of the A.M.A., Guides11 to determine appellant’s sensory deficit and
pain grade and rated his impairment to the median nerve of the wrist based on Table 16-15 on

6

Supra note 2.

7

Id.

8

Id. at 507-11.

9

Supra note 2.

10

Id.

11

Supra note 3.

3

page 492.12 He concluded: “If we use the mid range of [appellant’s] described symptomatology,
which is 40 percent multiplied by 39, we end up with a 16.9 percent or rounded off to 17 percent
impairment of the upper extremity.” Dr. Hansen explained that appellant’s levels of sensory
deficit and pain were mild to moderate, did not severely interfere with his daily living activities
and were a typical result of successful carpal tunnel release surgery.
On July 2, 2007 the Office referred appellant, along with a statement of accepted facts, to
Dr. Allen M. Weinert, a Board-certified physiatrist, for a second opinion examination to
determine his level of permanent partial impairment for schedule award purposes.
In a July 31, 2007 report, Dr. Weinert noted appellant’s complaints of numbness and
weakness as well as pain in the palm and thenar regions of each hand radiating into his wrists.
He noted that appellant reported that certain physical activities, including gripping and pushing
heavy items, aggravated his pain. Upon physical examination, Dr. Weinert found that appellant
had full range of motion in both arms. He diagnosed status post bilateral endoscopic carpal
tunnel releases with residual thenar region pain and complaints of intermittent hand numbness
and decreased grip strength and advised that appellant had reached maximum medical
improvement. Dr. Weinert concluded that appellant had one percent impairment of the right
upper extremity and one percent impairment of the left upper extremity based on Table 18-313
and Chapter 1814 of the A.M.A., Guides, due to his “class one or mild pain disorder.”
On August 3, 2007 the Office medical adviser concurred with Dr. Weinert’s assessment
and impairment rating. He stated that the impairment rating was consistent with the A.M.A.,
Guides and “appears to reflect the clinical presentation, signs, symptoms and accepted
diagnoses.” Accordingly, the medical adviser recommended that the Office grant appellant a
schedule award for one percent impairment of the right upper extremity and one percent
impairment of the left upper extremity.
On August 14, 2007 the Office granted appellant a schedule award for one percent
permanent impairment of the right upper extremity and one percent permanent impairment of the
left upper extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act15 and its
implementing regulations16 set forth the number of weeks of compensation payable to employees
12

Supra note 2. The Board notes that Dr. Hansen stated that he referred to Table 16-5 on page 492 of the
A.M.A., Guides. As Table 16-5 is on page 447 of the A.M.A., Guides and as the calculations referenced by
Dr. Hansen are found in Table 16-15 on page 492, the Board concludes that this was an inadvertent typographical
error.
13

Id. at 575, Table 18-3.

14

Id. at 565-91.

15

5 U.S.C. § 8107.

16

20 C.F.R. § 10.404 (1999).

4

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.17
ANALYSIS
The Board finds that appellant did not meet his burden of proof in establishing that he
had more than one percent impairment of the right upper extremity and one percent impairment
of the left upper extremity, for which he received a schedule award. The Office based its
schedule award determination on Dr. Weinert’s second opinion report, with which the medical
adviser concurred. Dr. Weinert found that appellant had full and complete range of motion of
both upper extremities but nonetheless recommended that the Office grant a schedule award for
one percent impairment of the right upper extremity and one percent impairment of the left upper
extremity due to mild pain disorder based on Table 18-3 on page 575 of the A.M.A., Guides.18
The A.M.A., Guides specifically provide that “examiners should not use [Chapter 18] to rate
pain-related impairment for any condition that can be adequately rated on the basis of the body
and organ impairment rating systems given in other chapters of the A.M.A., Guides.”19 The
Board has also recognized that physicians 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.20 The Board notes that
Dr. Weinert did not explain why appellant’s impairment could not be adequately rated on the
basis of the body and organ impairment rating systems detailed in other chapters of the A.M.A.,
Guides. Dr. Weinert’s report does not establish that appellant was entitled to a schedule award
for more than one percent impairment of the right upper extremity and one percent impairment
of the left upper extremity.
In support of his schedule award claim, appellant provided several reports from
Dr. Hansen, who based his impairment ratings on appellant’s complaints of sensory deficit and
pain. In Dr. Hansen’s June 30, 2006 report, he calculated appellant’s impairment at five percent
of the right upper extremity and five percent of the left upper extremity based on Table 16-15 on
page 492 of the A.M.A., Guides.21 Table 16-15 concerns upper extremity impairment due to
17

See id.

18

A.M.A., Guides 575, Table 18-3.

19

Id. at 571; see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 4 (June 2003); Linda Beale, 57 ECAB __ (Docket No. 05-1536, issued February 15, 2006).
20

See Frantz Ghassan, 57 ECAB __ (Docket No. 05-1947, issued February 2, 2006) (appellant’s physician
improperly attributed three percent left leg impairment to Chapter 18 of the A.M.A., Guides but the physician did
not explain why this pain-related impairment could not be adequately rated by applying Chapter 17 of the A.M.A.,
Guides).
21

A.M.A., Guides 492, Table 16-15.

5

sensory or motor deficits.22 However, Dr. Hansen did not explain how he arrived at his
recommended impairment rating or upon which nerve he based his calculations. Table 16-15
identifies impairment values for numerous peripheral nerves,23 but he did not provide details
explaining how he applied the table. Dr. Hansen also indicated that “successful carpal tunnel
release” yielded an upper extremity impairment value of five percent, based on “the obligate loss
of pinch and grip strength that happens from transecting the transverse carpal ligament,” but did
not describe how Table 16-15, which applies to sensory deficit, involved loss of pinch or grip
strength.
Following the Office medical adviser’s review of the file, Dr. Hansen provided a
January 26, 2007 report and impairment rating, reiterating his previous findings. He stated that
appellant had Grade 4 sensory deficit or pain pursuant to Table 16-10 of the A.M.A., Guides and
calculated five percent impairment based on Tables 16-10 and 16-15. Dr. Hansen identified the
median nerve as the applicable nerve and multiplied its total allowable impairment of 39 percent
by 13 percent, a variable he found to be approximately the middle of the range of impairment for
Grade 4 sensory deficit. He also noted that appellant had “some motor deficit” but did not
provide further details or consider motor deficit in his impairment rating. The Board finds that
Dr. Hansen did not provide a full and detailed explanation in support of his conclusions.
Dr. Hansen did not discuss his physical examination findings or describe how he came to
conclude that appellant had midlevel Grade 4 sensory deficit. He also did not fully explain why
he chose 13 percent as the specific variable with which to multiply the range of possible
impairment of the median nerve and did not provide discussion or explanation supporting his
impairment rating. Dr. Hansen also did not discuss appellant’s motor deficit, if any or explain
why he did not utilize that impairment rating method to determine appellant’s permanent partial
impairment.
Following an additional review by the Office medical adviser, Dr. Hansen provided a
third report on March 5, 2007. Dr. Hansen indicated that he had not characterized Table 16-15
as relating to loss of strength and reiterated that appellant’s rating of five percent impairment for
the right upper extremity and five percent impairment for the left upper extremity was “a typical
impairment rating based on sensory deficit and pain.” He did not, however, provide additional
explanation or discussion detailing his physical examination findings or supporting his
conclusions concerning appellant’s level of physical impairment. Finally, appellant provided a
May 7, 2007 report from Dr. Hansen, who opined that appellant’s impairment for sensory deficit
and pain had increased to Grade 3. Although Dr. Hansen again noted that he applied the
A.M.A., Guides, Tables 16-1024 and 16-15,25 he did not detail the results of his physical
examination or explain his reasons for concluding that appellant’s pain syndrome had worsened
and did not discuss the specific measures he used in calculating appellant’s new impairment
rating. Accordingly, the Board finds that Dr. Hansen did not provide sufficient explanation or

22

Id.

23

Id.

24

Supra note 3.

25

Id. at 592, Table 16-15.

6

rationale to establish that appellant was entitled to a schedule award for more than one percent
impairment of the right upper extremity and one percent impairment of the left upper extremity.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
was entitled to a schedule award for greater than one percent permanent impairment of the right
upper extremity and one percent permanent impairment of the left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 14, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., claiming as widow of T.H., Appellant
and
DEPARTMENT OF ENERGY, BONNEVILLE
POWER ADMINISTRATION, Portland, OR,
Employer
__________________________________________

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

Docket No. 14-861
Issued: July 14, 2014

Case Submitted on the Record

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

JURISDICTION
On March 4, 2014 appellant filed a timely appeal of an October 18, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that the employee’s
death was causally related to his employment exposures.
FACTUAL HISTORY
On July 31, 2012 appellant filed a claim for compensation by widow noting that the
employee, a personnel officer, died on December 12, 2011 at 82 years old due to fibrotic lung
1

5 U.S.C. § 8101 et seq.

disease and acute kidney failure. She identified his work-related condition as melanoma.2 The
employee worked with the Atomic Energy Commission from July 2, 1962 through
September 10, 1964. He retired on March 22, 1978 from the employing establishment. The
death certificate listed the employee’s cause of death as pneumonia and acute kidney failure.
Appellant submitted the employee’s medical records. On August 17, 2009 the employee
underwent a computerized tomography (CT) scan of the chest which demonstrated abnormalities
concerning interstitial lung disease. The CT scan findings revealed fibrosis more than expected
for his age with multiple bilateral pulmonary nodules. In a report dated August 24, 2009,
Dr. Allen B. Adolphe, a Board-certified internist, reviewed the employee’s CT scan findings and
noted that he had been exposed to nuclear weapons in the distant past and stated, “whether this is
in relation to that [the CT scan findings] is unknown.”
Dr. Richard E. Crowell, a Board-certified pulmonologist, had examined the employee on
September 17, 2009. The employee reported a history of smoking about two packs of cigarettes
a day for 20 years. He also noted that he had worked for two years at the Atomic Energy
Commission transporting radioactive and other types of waste. The employee stated that he
wore a badge religiously and was never told that it exhibited any exposure problems.
Dr. Crowell stated that the employee did not appear to have any unusual environmental or
occupational exposures with regard to his interstitial lung changes.
The employee underwent a second CT scan of the chest on October 26, 2011 which
demonstrated multiple pulmonary opacities largely similar to the prior CT scan, with a slight
interval worsening of fibrotic lung disease. He also had new nonspecific ground-glass opacities.
The medical records establish that the employee sought treatment from his physician on
November 3, 2011 due to hypoxia and was sent to the hospital due to pneumonia. The employee
requested a discharge but worsened at home and returned to the hospital where he was placed on
mechanical ventilation. He was diagnosed with a history of interstitial lung disease of unknown
etiology. The employee developed kidney dysfunction. The hospital records reflect that he died
on December 12, 2011 with the diagnoses of respiratory failure, hypertension, sepsis,
encephalopathy, anemia and diabetes.
In support of her claim, appellant stated that the employee worked as a courier for the
Atomic Energy Commission transporting radioactive and explosive materials. She alleged that
he was exposed to radiation, beryllium, asbestos powder, gaseous materials and other toxic
substances. Appellant asserted that the employee left the Atomic Energy Commission to return
to college. After graduation, the employee worked for the Air Force and retired from the
Bonneville Power Administration in 1978. Appellant noted that the employee had 31 skin
biopsies, 478 liquid nitrogen procedures and 3 Efudex skin treatments. The employee was
diagnosed with two basal cell carcinomas, two melanomas, five squamous cell carcinomas and
prostate cancer.

2

Appellant also filed a claim with the Energy Employees Occupational Illness Compensation Program Act on
May 7, 2012.

2

By decision dated June 19, 2013, OWCP denied appellant’s claim. It found that the
medical evidence was insufficient to support a causal relationship between the employee’s death
and his federal employment with the Atomic Energy Commission.
Appellant requested reconsideration on September 28, 2013. She submitted a form report
dated August 9, 2013 signed by Dr. Adolphe based on a December 12, 2009 examination of the
employee. The report listed a history of prior exposure to “nuclear weapons” and diagnosed
pulmonary fibrosis. Dr. Adolphe stated that the employee’s pneumonia was exacerbated by
underlying pulmonary fibrosis and acute renal failure. He indicated with a checkmark “yes” that
the employee’s death was due to exposure to the history of injury as listed.
By decision dated October 18, 2013, OWCP reviewed the merits of appellant’s claim and
denied modification of the June 19, 2013 decision. It found that the medical evidence was not
sufficient to establish the causal relationship between the employee’s diagnosed conditions
resulting in his death and his federal employment exposures.
LEGAL PRECEDENT
A claimant for compensation has the burden of proving by the weight of the reliable,
probative and substantial evidence that the employee’s death was causally related to his federal
employment. This burden includes the necessity of furnishing medical opinion evidence of a
cause and effect relationship based on a proper factual and medical background.3
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.4 Rationalized medical opinion evidence is medical evidence which
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 factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant,5
must be one of reasonable medical certainty,6 and must be supported by medical reasoning
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.7
ANALYSIS
The employee, a former federal employee, died on December 12, 2011 after a monthlong hospitalization. The death certificate listed the employee’s cause of death as pneumonia
and acute kidney failure. Appellant attributed the employee’s death to employment-related
3

Timothy Forsyth (James Forsyth), 41 ECAB 467, 470 (1990); Carolyn P. Spiewak (Paul Spiewak), 40 ECAB 552,
560 (1989).
4

See Naomi A. Lilly, 10 ECAB 560, 572-73 (1959).

5

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

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

3

exposure to nuclear and explosive materials including radiation, beryllium, asbestos powder,
gaseous materials and other toxic substances from 1962 through 1964.
Appellant provided medical reports generally discussing the relationship between the
employee’s diagnosed lung condition and his employment duties. The August 24, 2009 report
from Dr. Adolphe noted that the employee was exposed to nuclear weapons. He stated, “whether
this is in relation to that [the CT scan findings] is unknown.” Dr. Adolphe did not provide a
clear opinion that the employee’s diagnosed condition was due to his employment exposures.
Further, it was based on a physical examination in 2009, several years prior to the employee’s
death on December 12, 2011. Without a definite opinion on the relationship between the
employee’s employment and his diagnosed conditions and resulting death lacks probative value.
In his September 17, 2009 report, Dr. Crowell noted the employee’s reported history of
smoking about two packs of cigarettes a day for 20 years and working for 2 years for the Atomic
Energy Commission transporting radioactive and other types of waste. He related the
employee’s statement that he wore a badge religiously and was never told that it exhibited any
exposure problems. Dr. Crowell had found that the employee did not have any unusual
environmental or occupational exposures in regard to his interstitial lung changes. This report
does not support that the employee’s contention that his employment caused or contributed to his
diagnosed interstitial lung disease as Dr. Crowell discounted any employment exposures. As
noted, it was submitted in 2009, several years prior to the employee’s death.
Dr. Adolphe submitted a form report dated August 9, 2013 together with a clinic note
from a January 12, 2009 examination. The employee listed a history of prior exposure to nuclear
weapons and was diagnosed with pulmonary fibrosis. Dr. Adolphe stated that the employee’s
pneumonia was exacerbated by underlying pulmonary fibrosis and acute renal failure. He
provided a checkmark “yes” that the employee’s death was due to the history of injury as listed
on the form. The Board has held that an opinion on causal relationship which consists only of a
physician checking “yes” on a form report is of diminished probative value. Without any
explanation or rationale for the conclusion reached, such report is insufficient to establish causal
relationship.8 Dr. Adolphe did not provide sufficient explanation for relating the employee’s death
to specific factors of his federal employment. Due to the insufficiency of medical evidence,
appellant has failed to meet her burden of proof.
CONCLUSION
The Board finds that appellant has not submitted the necessary rationalized medical
opinion evidence to establish a causal relationship between the employee’s exposure and his
death and has not, therefore, met her burden of proof to establish her death benefits claim.

8

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

4

ORDER
IT IS HEREBY ORDERED THAT the October 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 14, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Trenton, NJ, Employer
__________________________________________

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Appearances:
Carolyn B. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2016
Issued: August 25, 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 October 13, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ schedule award decision dated April 21, 2009. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule award case.
ISSUE
The issue is whether appellant has more than an 11 percent permanent impairment to his
left upper extremity.
FACTUAL HISTORY
This is the third appeal in this case before the Board. Appellant injured his left arm on
October 30, 1991. The Office accepted a claim for left shoulder sprain and authorized
arthroplasty surgery on April 3, 1992. By decisions dated January 4 and November 15, 1996, it
denied appellant’s claim for a schedule award for his left upper extremity. In a decision issued
January 14, 1999,1 the Board found that there was a conflict in the medical evidence on the issue
1

Docket No. 97-1173 (issued January 14, 1999).

of whether he sustained any permanent impairment due to his October 30, 1991 employment
injury. It therefore set aside the November 15, 1996 decision of the Office hearing
representative and remanded the case for referral to an impartial medical specialist.
By decision dated October 13, 1999, the Office granted appellant a schedule award for a
seven percent permanent impairment of the left arm based on a March 10, 1999 report from
Dr. Alexander Fasulo, a referee medical examiner and Board-certified orthopedic surgeon. By
decision dated June 28, 2000, an Office hearing representative affirmed the October 13, 1999
Office decision. Appellant’s attorney requested reconsideration and submitted an October 31,
2000 report from Dr. David Weiss, an osteopath, who found that appellant had a 48 percent
impairment of the left upper extremity pursuant to the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides). By decision dated March 9, 2001,
the Office denied modification of the October 13, 1999 Office decision.
In a decision issued on March 7, 2002,2 the Board found that there was a conflict in the
medical evidence on the issue of whether appellant sustained any additional permanent
impairment to his left upper extremity due to his October 30, 1991 employment injury. The
Board stated that the Office’s October 13, 1999 decision was proper at the time it was issued, as
it was based on the weight of the medical evidence in the record at the time of the decision. It
noted, however, that subsequent to the Office’s decision appellant submitted the October 31,
2000 report of Dr. Weiss, who calculated a 48 percent impairment rating of the left upper
extremity based on a different set of factors. This created a conflict in the medical evidence
regarding the precise impairment rating applicable to his left upper extremity. The Board set
aside the March 9, 2001 Office decision and remanded the case for referral to an impartial
medical specialist. The complete facts of this case are set forth in the Board’s January 14, 1999
and March 7, 2002 decisions and are herein incorporated by reference.
The Office referred appellant for an impartial examination with a referee physician,
Dr. Stanley R. Askin, Board-certified in orthopedic surgery, who stated in an April 13, 2002
report that appellant did not have any measurable impairment of the left shoulder or left upper
extremity causally related to the original work injury.
By decision dated April 25, 2002, the Office found that appellant was not entitled to an
additional schedule award for his left upper extremity.
By letter dated April 30, 2002, appellant’s attorney requested a hearing, which was held
on October 19, 2004.
By decision dated January 19, 2005, an Office hearing representative found that
Dr. Askin did not provide sufficient medical rationale to support his conclusion that appellant did
not sustain a measurable permanent impairment from his October 30, 1991 work injury. The
hearing representative therefore remanded the case to the district Office and instructed it to
request a supplemental report from Dr. Askin, which would clarify his opinion and contain the
requisite supporting medical rationale.

2

Docket No. 01-1629 (issued March 7, 2002).

2

In a March 19, 2005 report, Dr. Askin stated that based on clinical examination he did not
believe that appellant was impaired to any substantial degree. He based his medical rationale for
finding that appellant did not sustain a permanent impairment greater than seven percent on his
full range of motion, absence of muscle deficit and atrophy and concomitant ability to work full
duty at the time he examined him. Dr. Askin stated that appellant sustained an injury which had
responded to the passage of time and adequate treatment.
By decision dated May 2, 2005, the Office found that appellant was not entitled to an
additional schedule award.
By letter dated May 6, 2005, appellant’s attorney requested an oral hearing.
By decision dated December 29, 2005, an Office hearing representative again set aside
the Office’s schedule award decision. It found that Dr. Askin failed to appreciate the concept of
impairment for compensation purposes and failed to provide medical rationale for his
conclusions. The hearing representative remanded for referral to a new impartial medical
specialist.
The Office referred appellant for a referee medical examination with Dr. Howard
Zeidman, Board-certified in orthopedic surgery, who submitted a report dated May 10, 2006.
Dr. Zeidman rated appellant a 20 percent left upper extremity impairment based on a 50 percent
loss of grip strength pursuant to Table 16-34 at page 509 of the A.M.A., Guides.
In a July 12, 2006 report, an Office medical adviser stated that Dr. Zeidman’s 20 percent
impairment rating was not rendered in accordance with the A.M.A., Guides because Dr. Zeidman
provided no quantifiable values to support his finding of a 50 percent loss of grip strength; the
medical adviser noted that Dr. Zeidman stated that he used a Jamar dynameter to measure grip
strength but did not include any actual values in his report.
In a December 11, 2006 report, Dr. Zeidman noted that he had reevaluated appellant on
November 30, 2006, at which time he recorded a 29 percent loss of grip strength based on testing
with a Jamar dynameter, which yielded a 20 percent left upper extremity impairment under Table
16-34.
In a January 11, 2007 report, an Office medical adviser found that Dr. Zeidman’s finding
of a 29 percent loss of grip strength equaled a 10 percent left upper extremity impairment under
Table 16-34.
By decision dated January 18, 2007, the Office granted appellant an additional 3 percent
impairment to the left arm, for a total 10 percent impairment.
By letter dated January 29, 2007, appellant’s attorney requested a hearing, which was
held on May 17, 2007. Counsel argued that Dr. Zeidman’s report should be invalidated because
he was not properly selected from the Physician’s Directory System (PDS).
By decision dated June 1, 2007, an Office hearing representative found that Dr. Zeidman
was not properly selected from the PDS. He therefore remanded the case for referral to another
impartial medical specialist.
3

The Office referred appellant to an impartial medical specialist, Dr. Ian B. Fries, Boardcertified in orthopedic surgery, who found in a February 5, 2007 report that appellant had a seven
percent impairment of the left upper extremity based on the following calculations: a one
percent impairment for loss of flexion based on 140 degrees range of motion pursuant to Figure
16-40 at page 476 of the A.M.A., Guides; a two percent impairment for loss of abduction based
on 120 degrees range of motion pursuant to Figure 16-43 at page 477 of the A.M.A., Guides and
a two percent impairment for loss of flexion based on 140 degrees range of motion pursuant to
Figure 16-46 at page 479 of the A.M.A., Guides. Dr. Fries also accorded a two percent
impairment for “consistent left shoulder pain with overhead work.”3 He did not find any
impairment for grip strength. Dr. Fries opined that grip strength evaluation was incidental to
local shoulder pathology and therefore was not useful in determining shoulder impairment. He
advised that while appellant had mildly decreased left grip strength by dynamometer this was not
reflected in measurable forearm atrophy or isolated muscle weakness in the left upper extremity.
Dr. Fries stated that page 453 of the A.M.A., Guides indicated that, “if a contralateral
‘normal’ joint has less than average mobility, the impairment value(s) corresponding to the
uninvolved joint may serve as a baseline and are subtracted from the calculated impairment for
the involved joint.”4 He then stated that, if appellant had right shoulder permanent motion
residuals from his prior injury, then the right shoulder could not be used as a basis for
determining left shoulder impairment; this would increase the calculated left shoulder
impairment due to motion deficits as much as 10 percent.
In a September 28, 2007 report, an Office medical adviser, Dr. Arnold T. Berman, Boardcertified in orthopedic surgery, reviewed Dr. Fries’ report and found that appellant had an
11 percent impairment of the left upper extremity. He stated that Dr. Fries did not apply the
tables in the A.M.A., Guides correctly and did not add up the numbers correctly. Relying on
Dr. Fries’ findings on examination, Dr. Berman made the following calculations:
“Utilizing page 476, Figure 16-40 ... the right shoulder is 140 degrees of flexion
which represents three percent impairment and the left upper extremity equals 140
degrees of extension. This also represents three percent impairment. Extension
of the right and left shoulders are 50 and 55 degrees respectively and this
represents zero percent impairment.
“Utilizing page 477, Figure 16-43 … the left shoulder is 120 degrees of abduction
which is equivalent to three percent impairment and the right shoulder 150
degrees of abduction which is equivalent to one percent impairment. Adduction
is 30 degrees bilaterally.
“Therefore, according to page 477, Figure 16-43 ... both right and left sides are
equivalent to one percent impairment.

3

Dr. Fries noted that appellant had rated his left shoulder pain as a 6 on a scale of 1 to 10, depending on the type
of work he was doing.
4

A.M.A., Guides 453.

4

“Utilizing page 479, Figure 16-46 ... external rotation of the left shoulder is
70 degrees which equals zero percent impairment and external rotation of the
right shoulder equals 90 degrees which equals zero percent impairment. Internal
rotation of the left shoulder equals 30 degrees which is four percent impairment
and 40 degrees internal rotation of the right shoulder equals three percent
impairment.
“Therefore, the left shoulder has 3 percent impairment due to flexion, 3 percent
impairment due to abduction, 1 percent due to adduction and 4 percent due to
internal rotation for a total of ... 11 percent impairment utilizing the Combined
Values Chart for the left shoulder.”
Dr. Berman further found that appellant had an eight percent impairment in the right
shoulder based on three percent impairment for loss of flexion, three percent impairment due to
loss of internal rotation, one percent impairment due to loss of abduction and one percent due to
loss of extension.
By decision dated October 5, 2007, the Office granted appellant an additional 1 percent
impairment to the left upper extremity, for a total 11 percent impairment of the left upper
extremity.
By letter dated October 16, 2007, appellant’s attorney requested a hearing which was
held on February 21, 2008. Counsel argued that Dr. Fries’ report should be invalidated because
he was not properly selected from the PDS and because Dr. Berman, the Office medical adviser,
found that his report lacked sufficient medical rationale.
By decision dated May 12, 2008, an Office hearing representative set aside the October 5,
2007 Office decision. She rejected the argument of appellant’s attorney that Dr. Fries was not
properly selected pursuant to PDS guidelines. The hearing representative further stated that it
was proper for Dr. Berman to reject Dr. Fries’ impairment calculations and devise his own
calculations based on the same range of motion findings made by Dr. Fries.5 She stated,
however, that Dr. Berman did not indicate that he fully addressed the other factors to be
considered for a left upper extremity impairment, such as pain, loss of strength and sensory
deficit, especially given that Dr. Fries noted that he accorded an additional two percent for pain.
The hearing representative therefore set aside the October 5, 2007 Office decision and remanded
for referral to Dr. Berman to obtain a supplemental report addressing the additional factors to be
considered in determining a left upper extremity impairment. She directed the Office to ask
Dr. Berman to explain with medical rationale whether Dr. Fries’ additional findings, including
pain, are ratable under the A.M.A., Guides.
5

Where an examining physician has provided a description of physical findings but failed to properly apply the
A.M.A., Guides, a detailed opinion by the Office medical adviser giving an impairment rating based on the reported
findings and the A.M.A., Guides may constitute the weight of medical evidence. Tommy R. Martin, 56 ECAB
273 (2005). See Federal (FECA) Procedure Manual, Part 2 -- Developing and Evaluating Medical Evidence,
Reviews of District Medical Advisers, Chapter 2.810.7(h) (April 1993). When an Office medical adviser explains
his or her opinion, shows values and computation of impairment based on the A.M.A., Guides and considers each of
the reported findings of impairment, his or her opinion may constitute the weight of medical evidence.

5

In a June 26, 2008 report, Dr. Berman reviewed the Office’s instructions and reiterated
that appellant had an 11 percent impairment of the left upper extremity. With regard to whether
appellant had any additional impairment for loss of strength he noted that the A.M.A., Guides at
section 16.8a, page 508,6 indicates that decreased strength cannot be rated in the presence of
decreased motion or painful conditions. As appellant had decreased motion and a painful
condition, Dr. Berman found that an impairment based on decreased strength was not warranted.
Regarding an impairment for pain, appellant stated that none of the three situations listed in the
A.M.A., Guides at page 570-71 which would warrant an impairment rating based on pain applied
to him. These included: where there is excess pain in the context of verifiable medical
conditions that cause pain; when there are well-established pain syndromes without significant
identifiable organ dysfunction to explain the pain or where there are other associated pain
syndromes. Dr. Berman also noted that Dr. Fries did not indicate any objective sensory deficit
that would justify an additional award. He therefore concluded that appellant had no additional
ratable impairment greater than 11 percent for the left upper extremity and 8 percent for the right
upper extremity.
By decision dated July 25, 2008, the Office found that appellant was not entitled to an
additional schedule award for his left upper extremity greater than the 11 percent already
awarded.
By letter dated September 2, 2008, appellant’s attorney requested an oral hearing, which
was held on January 13, 2009. She argued that the portion of the A.M.A., Guides at page 508
which indicates that decreased strength cannot be rated in the presence of decreased motion or
painful conditions, section 16.8a, also stipulates that strength loss cannot be considered where
pain is so great that it does not allow full strength to be applied, which is not indicated in
Dr. Fries’ report. Counsel also asserted that Dr. Berman arbitrarily disregarded Dr. Fries’
recommendation that appellant should be accorded a two percent impairment for pain. Finally,
she noted that Dr. Berman indicated that, in the event that appellant also manifested right
shoulder impairment from the 1999 work injury, then the right shoulder should not be used as the
basis for determining left shoulder impairment; this would increase his left shoulder impairment
due to range of motion deficit by as much as 10 percent. Counsel noted that Dr. Berman also
found that appellant had an eight percent right upper extremity impairment and contended that
appellant should be granted an award based on this finding, regardless of whether the right
shoulder impairment was causally related to the 1999 work injury. She therefore argued that the
Office’s July 25, 2008 decision should be set aside and the case should be remanded to Dr. Fries
for clarification; alternatively, she contended that appellant should be referred to a new impartial
examiner.
By decision dated April 21, 2009, an Office hearing representative affirmed the July 25,
2008 Office decision.

6

A.M.A., Guides 508.

6

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act7 set forth the
number of weeks of compensation to be paid for permanent loss or loss of use of the members of
the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.8 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides fifth edition as the standard to be used for evaluating schedule
losses.9 For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used to
calculate schedule awards.10 The claimant has the burden of proving that the condition for which
a schedule award is sought is causally related to his or her employment.
In situations where there are opposing medical reports and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.11
With regard to rating loss of strength, section 16.8 of the A.M.A., Guides note that such
measurements are functional tests influenced by subjective factors that are difficult to control.
Therefore, the A.M.A., Guides do not assign a large role to such measurements. Section 16.8a
states:
“In a rare case, if the examiner believes the individual’s loss of strength represents
an impairing factor that has not been considered adequately by other methods in
the A.M.A., Guides, the loss of strength may be rated separately…. If the
examiner judges that loss of strength should be rated separately in an extremity
that presents other impairments, the impairment due to loss of strength could be
combined with the other impairments, only if based on unrelated etiologic or
pathomechanical causes. Otherwise the impairment ratings based on objective
anatomic findings take precedence. Decreased strength cannot be rated in the
presence of decreased motion, painful conditions, deformities or absence of parts
that prevent effective application of maximal force in the region to be evaluated.”12

7

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

8

Id. at § 8107(c)(19).

9

20 C.F.R. § 10.404.

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
As of May 1, 2009, the sixth edition will be used. FECA Bulletin No. 09-03 (issued March 15, 2008).
11

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

12

Supra note 6.

7

ANALYSIS
In the present case, the Office found that appellant was not entitled to an award greater
than the 11 percent for left upper extremity impairment already awarded based on Dr. Berman’s
opinion. Dr. Berman reviewed Dr. Fries’ report and rated a three percent impairment for left
shoulder range of motion deficit based on 140 degrees flexion pursuant to Figure 16-40 at page
476 of the A.M.A., Guides; a three percent impairment for left shoulder range of motion deficit
based on 120 degrees abduction based on Figure 16-43 at page 477 of the A.M.A., Guides; a one
percent impairment for left shoulder range of motion deficit based on 30 degrees adduction based
on Figure 16-43 at page 477 of the A.M.A., Guides and a four percent impairment based on
30 degrees of internal rotation pursuant to Figure 16-46 at page 479 of the A.M.A., Guides.
These findings were proper and in conformance with the applicable tables of the A.M.A.,
Guides.13 In addition, Dr. Berman properly rejected the two percent impairment Dr. Fries
awarded for pain based on the criteria he cited at page 570-71 of the A.M.A., Guides; this was
within his discretion as Office medical adviser.
The Board finds that Dr. Berman’s opinion constituted a sufficient basis for an award
based on an 11 percent left upper extremity impairment. The Office therefore properly found
that his opinion constituted the weight of the medical evidence. On appeal, counsel contends
that the Office medical adviser erred by not according an impairment for left grip strength. She
also contends on appeal that the rating by the examining physician should take precedence over
that of the Office medical adviser.
As noted, the A.M.A., Guides at section 16.8 do not assign a large role to grip or pinch
strength measurements as they are too influenced by subjective factors. In light of the principles
found at section 16.8, appellant’s attorney provided no explanation as to why appellant’s loss of
strength could not be adequately considered with reference to the other methods of the A.M.A.,
Guides. Dr. Fries merely listed measurements obtained on grip and pinch strength testing. He
did not find any impairment for grip strength, stating that grip strength evaluation was incidental
to local shoulder pathology and therefore was not useful in determining shoulder impairment.
Dr. Fries opined that while appellant had mildly decreased left grip strength by dynamometer
this was not reflected in measurable forearm atrophy or isolated muscle weakness in the left
upper extremity. Counsel argued that appellant was able to exercise maximal force on testing
despite pain; however, the report of Dr. Fries is silent on this point.
In addition, the Board notes that, while the report of an examining physician may be
found to constitute the weight of medical opinion, such physician should clearly address the
principles of the A.M.A., Guides in explaining how an impairment rating is reached. Absent
such explanation, the Office may rely on the opinion of its medical adviser.14 Although
Dr. Berman, the Office medical adviser, did not agree with Dr. Fries’ impairment calculations,
he properly applied the A.M.A., Guides to the findings on examination reported by Dr. Fries and
13

These findings for loss of range of motion are supported by the figures and tables referenced in subchapter
16.4i, “Shoulder Motion Impairment,” at pages 474-77 of the A.M.A., Guides. The Board notes that Dr. Berman
accorded a greater degree of impairment for loss of flexion and abduction than did Dr. Fries.
14

See Tommy R. Martin, supra note 5.

8

explained in his June 26, 2008 supplemental report why he did not find any impairment based on
pain, loss of strength or sensory deficit. The Board finds that the Office did not abuse its
discretion by relying counsel on the Office medical adviser’s rating.
Counsel also contends that the Office erred by failing to ask Dr. Fries for clarifying
information regarding a right upper extremity impairment. She argues that this clarification was
required in light of Dr. Fries’ opinion that the comparison of range of motion deficits in the right
and left upper extremities might yield additional impairment for the accepted left upper
extremity condition. The Board rejects this argument. The A.M.A., Guides at page 453 provide
that, if a contralateral “normal” joint has a less than average mobility, the impairment values
corresponding to the uninvolved joint can serve as a baseline and are subtracted from the
calculated impairment for the involved joint. The rationale for this decision must be explained in
the physician’s report. Measurements and comparison of the normal joint is the exception not
the rule. Dr. Fries did not provide the necessary explanation to establish this exception should be
applied, i.e., that the “normal” joint has less than average mobility.
As there is no other medical evidence establishing that appellant sustained any additional
permanent impairment, the Board finds that he is entitled to an 11 percent impairment of the left
upper extremity. The Board therefore affirms the April 21, 2009 decision of the Office hearing
representative.
CONCLUSION
The Board finds that appellant has no more than an 11 percent impairment of his left
upper extremity.

9

ORDER
IT IS HEREBY ORDERED THAT the April 21, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 25, 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

10