United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICES,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 19-0638
Issued: May 29, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On January 28, 2019 appellant filed a timely appeal from a November 19, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury due to the
accepted June 8, 2018 employment incident.
FACTUAL HISTORY
On June 15, 2018 appellant, then a 38-year-old lead military pay technician, filed a
traumatic injury claim (Form CA-1) alleging that on June 8, 2018 he sustained back and foot
injuries while in the performance of duty. He indicated that while he was moving furniture on that
date, one of the desks fell and hit his foot, causing him to strain his back.3 Appellant stopped work
on June 11, 2018.
In support of his traumatic injury claim, appellant submitted a June 11, 2018 report from
Patty Cockman, a nurse practitioner, who advised that appellant could return to work without
restrictions on June 14, 2018. In a June 13, 2018 report, Laurie Szoka, a nurse practitioner,
indicated that appellant could return to work without restrictions on June 23, 2018.
In a June 18, 2018 development letter, OWCP requested that appellant submit additional
evidence in support of his traumatic injury claim, including a physician’s opinion supported by a
medical explanation as to how the reported June 8, 2018 employment incident caused or
aggravated a medical condition. It provided a questionnaire for his completion which posed
questions regarding the reported employment incident and his receipt of medical treatment.
OWCP afforded appellant 30 days to submit the necessary evidence.
In response, appellant submitted a June 18, 2018 report from Ms. Cockman who advised
that he could return to work after being evaluated by a neurosurgeon. In a June 26, 2018 report,
Dr. Andrey Belayev, a Board-certified neurosurgeon, noted that he could not work from June 26,
2018 until approximately August 7, 2018 while he underwent treatment for a spinal injury.
By decision dated July 24, 2018, OWCP accepted that the June 8, 2018 employment
incident occurred as alleged; however, it denied his traumatic injury claim finding that he had not
established the medical component of fact of injury. It indicated that the medical evidence of
record did not include a specific diagnosis in connection with the accepted June 8, 2018
employment incident.
On August 13, 2018 appellant requested reconsideration of the July 24, 2018 decision and
submitted a completed questionnaire in which he discussed the medical treatment he received for
his back and right foot in connection with his claimed June 8, 2018 employment injury. He
maintained that he did not have any similar “disability or symptoms” prior to the June 8, 2018
incident. OWCP also received an August 8, 2018 statement in which an employing establishment
official advised that appellant reported injuring himself at work on June 18, 2018 when a desk he
was moving slipped from a hand truck to the floor.

3
Although appellant indicated in the Form CA-1 that he injured his left foot on June 8, 2018, this reference appears
to have been inadvertent as the medical evidence of record indicates that he injured his right foot on that date.

2

In support of his reconsideration request, appellant submitted a June 9, 2018 report from
Ms. Szoka who indicated that he reported that furniture hit his right foot on June 8, 2018.
Ms. Szoka noted appellant’s chief complaint of low back pain and detailed the physical
examination findings, including right-sided low back spasm and 5/5 strength in the lower
extremities. In a separate June 9, 2018 report, she diagnosed acute low back pain, muscle spasm,
right foot injury, and “struck by furniture without fall.”
In two reports dated June 11, 2018, Ms. Cockman noted that appellant reported that a desk
fell on his right foot, and she provided findings for the physical examination of his back and lower
extremities. On the same date, Dr. Raymond Gaskins, Board-certified in family medicine, advised
that appellant could return to work without restrictions on June 14, 2018. The findings of a
June 11, 2018 x-ray of appellant’s right foot, read by Dr. Terry L. Zacco, a diagnostic radiologist,
contained an impression of “unremarkable appearance of the right foot.”
Appellant was seen by Ms. Szoka again on June 13, 2018 and, in two reports from that
date, she provided further physical examination findings regarding his back and lower extremities.
In a June 13, 2018 report, Dr. Gaskins indicated that appellant could return to work without
restrictions on June 23, 2018. The findings of a June 14, 2018 magnetic resonance imaging (MRI)
scan of appellant’s lumbar spine contained an impression of central protrusion at L4-5 with
tendency for caudal migration, mild-combined stenosis at L4-5, degenerative disc disease at L4-5
and L5-S1, disc bulge at L5-S1 with annular fissure, and narrowing of the thecal sac secondary to
spinal epidural lipomatosis.
Appellant returned to Ms. Cockman on June 15, 2018 and, in two reports from that date,
she described her physical examination of his back and lower extremities. She also submitted a
June 15, 2018 emergency department discharge sheet signed on that date by Robin L. Jackson, a
nurse practitioner. In two June 18, 2018 reports, Ms. Cockman detailed examination findings from
that date. In a June 18, 2018 report, Dr. Gaskins indicated that appellant could return to work after
being evaluated by a neurosurgeon.4
In a June 26, 2018 report, Dr. Belayev indicated that he was asked to evaluate appellant for
chronic back pain and a new onset of back and leg pain which he reported arose after lifting
something heavy at work. He reported that, upon physical examination, the strength of appellant’s
lower extremities was “limited to pain with giveway weakness” and that appellant had “intact light
touch sensation throughout.” Dr. Belayev noted that an MRI scan of appellant’s lumbar spine
displayed left-sided severe neuroforaminal narrowing with some disc bulges compressing the
exiting and traversing nerve roots in that area. He recommended lumbar physical therapy, epidural
steroid injections, and a follow-up appointment.
In a July 18, 2018 report, Dr. Belayev opined that appellant could return to full-time work
on July 30, 2018.
By decision dated November 19, 2018, OWCP denied modification of its July 24, 2018
decision.

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The case record also contains an administrative document from a June 20, 2018 visit to an emergency department.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury.9
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident.10
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted June 8, 2018 employment incident.
Appellant submitted a June 26, 2018 report from Dr. Belayev, who indicated that he was
asked to evaluate appellant for chronic back pain and a new onset of back and leg pain which he
reported arose after lifting something heavy at work. Dr. Belayev noted that an MRI scan of
appellant’s lumbar spine displayed left-sided severe neuroforaminal narrowing with some disc
5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

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

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

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

10

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

11

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

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bulges compressing the exiting and traversing nerve roots in that area. The Board finds, however,
that Dr. Belayev’s June 26, 2018 report is of no probative value regarding appellant’s traumatic
injury claim because he did not indicate that appellant developed a specific diagnosed medical
condition in connection with the accepted June 8, 2018 employment incident which occurred when
a desk he was moving fell and hit his right foot. The Board has held that a medical report is of no
probative value on a given medical matter if it does not contain an opinion on that matter.12 In a
separate June 26, 2018 report, Dr. Belayev noted that appellant could not work from June 26, 2018
until approximately August 7, 2018 while appellant underwent treatment for a spinal injury. This
report also is of no probative value on the underlying issue of this case because he failed to provide
an opinion of the cause of his referenced spinal injury.13 Therefore, these reports of Dr. Belayev
are insufficient to establish appellant’s traumatic injury claim.
Appellant also submitted a June 11, 2018 report from Dr. Gaskins, who advised that
appellant could return to work without restrictions on June 14, 2018. On June 13, 2018
Dr. Gaskins indicated that appellant could return to work without restrictions on June 23, 2018. In
a June 18, 2018 report, he noted that appellant could return to work after being evaluated by a
neurosurgeon. These reports are of no probative value regarding the underlying issue of the present
case because Dr. Gaskins failed to provide a medical diagnosis in connection with the accepted
June 8, 2018 employment incident.14 Therefore, Dr. Gaskins’ reports are insufficient to establish
appellant’s claim.
Appellant submitted a series of reports from nurse practitioners, including those dated
June 11, 15, and 18, 2018 from Ms. Cockman, June 9 and 13, 2018 from Ms. Szoka, and June 15,
2018 from Ms. Jackson. However, these reports are of no probative value regarding his claim for
a June 8, 2018 traumatic injury because nurse practitioners are not considered physicians as
defined under FECA and their reports are not considered to be medical evidence.15
Appellant submitted a June 11, 2018 x-ray of his right foot and a June 14, 2018 MRI scan
of his lumbar spine. However, diagnostic studies standing alone lack probative value as they do

12

T.H., Docket No. 18-0704 (issued September 6, 2018).

13

See L.B., Docket No. 18-0533 (issued August 27, 2018) (medical evidence which does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal relationship). Appellant
also submitted an administrative document from a June 20, 2018 visit to an emergency department, but such a
nonmedical document would not have probative value regarding the underlying medical issue of this case. See S.M.,
Docket No. 18-0673 (issued January 25, 2019) (finding that medical causal relationship is established by the
submission of medical evidence).
14

See D.K., Docket No. 17-1549 (issued July 6, 2018).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners are not considered physicians under
FECA); K.W., 59 ECAB 271, 279 (2007).
15

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not address whether employment factors caused the diagnosed condition.16 For the above-noted
reasons, these documents fail to establish appellant’s claim.
As appellant has not submitted medical evidence relating a diagnosed medical condition to
his accepted June 8, 2018 employment incident, the Board finds that he has not met his burden of
proof to establish his traumatic injury claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury due to
the accepted June 8, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 29, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

C.S., Docket No. 19-1279 (issued December 30, 2019).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milan, MO, Employer
__________________________________________

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

Docket No. 08-702
Issued: June 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 10, 2008 appellant filed a timely appeal from a December 13, 2007 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant has more than 23 percent permanent impairment of his
right upper extremity.
FACTUAL HISTORY
Appellant’s October 11, 1993 occupational disease claim was accepted by the Office for
a rotator cuff tear of the right shoulder and ruptured right biceps muscle. He underwent surgery
on December 1, 1994. On June 15, 1999 the Office granted appellant a schedule award for 15
percent impairment of his right arm. The period of the schedule award ran from June 22, 1998 to
May 15, 1999, or 46.80 weeks of compensation. On April 18, 2002 the Office granted appellant
a schedule award for an additional 8 percent impairment of the right arm, for a total impairment

of 23 percent. The period of the second award ran from October 29, 2001 to April 21, 2002, or
24.96 weeks of compensation. An Office hearing representative affirmed the schedule award in
an April 11, 2003 decision.
Appellant requested reconsideration and submitted the June 12, 2003 note from
Dr. Ronald D. Carter, a Board-certified orthopedic surgeon, who provided an impairment rating
of 35 percent to the right upper extremity based on loss of strength and range of motion deficits.
Dr. Carter listed the following impairments for loss of range of motion of the shoulder: 7 percent
for abduction, 5 percent for flexion, 2 percent for extension, 1 percent for external rotation and 2
percent for internal rotation, for a total of 17 percent. He also listed the following impairments
due to loss of strength: 1 percent in extension, 4 percent in flexion, 6 percent in abduction, 3
percent in external rotation, 2 percent in internal rotation and 2 percent in adduction, for a total
of 18 percent. Dr. Carter added the strength and motion deficits to total 35 percent impairment.
On July 21, 2003 Dr. Daniel D. Zimmerman, an Office medical adviser, reviewed the
medical evidence and noted that Dr. Carter did not provide the measurement in degrees for loss
of range of motion affecting appellant’s right shoulder. Moreover, no citation was provided by
Dr. Carter to the tables applied in rating loss of strength of the right arm and that the total
impairment rating of 35 percent was not made with reference to the Combined Values Chart.
The medical adviser stated that Dr. Carter did not provide a history or findings on physical
examination such that the impairment rating did not conform to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (fifth edition). He concluded
that the rating by Dr. Carter was not sufficient to establish greater impairment.
In an August 14, 2003 decision, the Office found that appellant did not have more than 23
percent impairment of his right arm.
On December 11, 2003 appellant requested reconsideration of his claim. In a
September 24, 2003 report, Dr. Garth S. Russell, a Board-certified orthopedic surgeon, reviewed
the history of injury, noting that diagnostic testing had revealed a rotator cuff tear of the right
shoulder and the presence of carpal tunnel syndrome on the right. Appellant underwent surgery
on November 2, 1994 for the carpal tunnel condition and on December 1, 1994 for repair of the
rotator cuff tear. Following his return to work, he noted gradual weakness and pain in his right
shoulder and diagnostic testing revealed progressive degenerative changes in the right
acromioclavicular and glenohumeral joints. Dr. Russell noted marked atrophy over the biceps
tendon of the right arm, with the long head ruptured and a small mass retracted in the mid-biceps
area. Range of motion of the right shoulder included: 30 degrees of abduction, 50 degrees
internal rotation, 25 degrees external rotation, 100 degrees flexion and 25 degrees extension. On
an attached worksheet, Dr. Russell noted 2 percent impairment for elbow loss of strength and 35
percent impairment for shoulder loss of motion or a total impairment of 37 percent.
On January 19, 2004 Dr. Zimmerman reviewed Dr. Russell’s report and opined that he
did not properly apply the A.M.A., Guides. He noted that Dr. Russell did not report whether the
range of motion findings had been measured with a goniometer. Referencing Figure 16-44, page

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478, Dr. Zimmerman advised that the purported findings for external rotation and internal
rotation were not credible. He stated:
“Moreover, I have done a very large number of shoulder examinations. I have
never found, even in an individual with a through and through tear of the rotator
cuff, unrepaired, and an unrepaired biceps tendon, that there is weakness in every
plane of motion which appears to be the assertion of Dr. Russell in the work sheet
that he signed.
“This is not credible. There are [six] tendons insertions about the shoulder.
Residuals of a rotator cuff tear would not affect the strength of all 6 tendon
insertions except, perhaps, by pain inhibition which Dr. Russell did not consider
in the report of September 24, 2003 (Pain generally is considered in ROM.)”
(Emphasis in the original.)
The Office medical adviser concluded that Dr. Russell’s strength ratings were not acceptable
under the criteria at Table 16-35 and section 16.8c “Manual Muscle Testing.’”
In an August 14, 2003 decision, the Office denied appellant’s request for an additional
schedule award, finding no greater than 23 percent impairment of the right arm.
On September 10, 2004 appellant requested reconsideration and contended that he had
sustained a left shoulder condition as a consequence of his right shoulder injury. In a May 10,
2004 report, Dr. Brent Koprivicia, Board-certified in preventive and emergency medicine,
reviewed appellant’s history of injury and medical treatment. He diagnosed a work-related right
shoulder, wrist and hand injury, right carpal tunnel syndrome, degenerative right
acromioclavicular joint disease and recurrent massive rotator cuff tear. Dr. Koprivicia also
diagnosed a left shoulder injury which occurred as a consequence of compensatory overuse due
to the right shoulder injury. He rated appellant’s impairment as 46 percent to the right upper
extremity.
Using Table 16-34, page 509, of the A.M.A., Guides, Dr. Koprivicia determined that
appellant had a 20 percent impairment based on 38 percent grip strength loss and 33 percent
pinch strength loss. He noted that this impairment was due to the right carpal tunnel syndrome.
With respect to right shoulder impairment, appellant had a 20 percent strength deficit of elbow
flexion and forearm supination associated with the biceps weakness. Dr. Koprivicia referred to
Table 16-35, page 510, to find 5 percent impairment for flexor weakness, 4 percent for forearm
supinator weakness and 6 percent impairment for weakness of abduction, which represented “a
50 percent strength deficit” or a 3 percent upper extremity impairment. He found two percent
impairment based on a Grade 4 weakness for right shoulder flexor weakness. Dr. Koprivicia
rated loss of motion in the right shoulder under Figures 16-40, 16-43 and 16-46, as 6 percent
impairment for flexion and 0 percent impairment for extension; percent impairment for
abduction and 1 percent impairment for adduction; 2 percent impairment for external rotation
and 3 percent impairment for internal rotation, for a total loss of 17 percent. He found a total 32
percent impairment at the level of the shoulder based on loss of strength and range of motion.
Dr. Koprivicia combined the 20 percent carpal tunnel impairment with the 32 percent right
shoulder impairment to find a total 46 percent right upper extremity impairment.

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On October 6, 2004 Dr. Zimmerman noted that the report of Dr. Koprivicia placed
extensive weight on strength deficits which were associated with severe pain. Therefore, the
reported results were based on pain inhibition rather than on definitive muscular deficit. The
Office medical adviser noted that a rating for pain was already incorporated into the range of
motion values such that Dr. Koprivicia essentially doubled the weighting for pain. Moreover, he
stated that there was insufficient medical documentation to permit acceptance of a consequential
left shoulder injury. The Office medical adviser concluded that Dr. Koprivica’s report was not
sufficient to establish greater impairment of the right shoulder.
In an October 19, 2004 decision, the Office again denied appellant’s claim for an
additional schedule award.
In an October 31, 2004 report, Dr. Koprivicia noted his disagreement with the opinion of
Dr. Zimmerman. He stated that appellant had objective evidence of atrophy of the rotator cuff
on clinical examination which objectively supported weakness, not merely based on limitation
due to pain. An arthrogram obtained on May 24, 2001 showed a recurrent full thickness rotator
cuff tear that was not surgically corrected and which supported weakness on a structural basis.
Dr. Koprivicia noted that Dr. Carter had also suggested an increased impairment based on
strength deficit.
On October 12, 2005 appellant requested reconsideration and submitted a January 4,
2005 note from Dr. Carter who diagnosed left carpal tunnel syndrome and a partial tear of the
rotator cuff of the left shoulder.
On January 2, 2006 Dr. Zimmerman contrasted the range of motion losses as reported,
noting that those of Dr. Carter were substantially better than those obtained by Dr. Koprivica.
He stated that Dr. Koprivicia did not provide the girth measurements to support his finding of
atrophy. Moreover, the strength impairment percentages provided by Dr. Koprivicia did not
correlate with the weakness percentages set forth at Table 16-35 and were not similar to those
reported by Dr. Carter. Dr. Zimmerman noted that manual strength testing was volitional and
dependent upon the cooperation of the individual being evaluated and inhibited by pain.
By decision dated January 4, 2006, the Office denied appellant’s request for an increased
schedule award.
On April 27, 2006 appellant requested reconsideration and submitted an April 5, 2006
note from Dr. Carter together with a November 28, 2005 functional capacity evaluation (FCE).
The FCE reported the work demand level as sedentary and listed several validity results as
invalid for the left and right grip strength. Three range of motion trials for the right shoulder
found: 75, 75 and 74 degrees flexion; 46, 47 and 44 degrees extension; 61, 59 and 64 degrees
abduction; 57, 57 and 53 degrees internal rotation and 22, 23 and 19 degrees external rotation.
Dr. Carter addressed the FCE results but did not provide any impairment rating for the right
shoulder.
On May 8, 2006 the Office medical adviser noted that the additional medical evidence
did not permit consideration of an increased impairment rating.

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By decision dated August 14, 2006, the Office denied appellant’s request for an
additional schedule award.
On October 20, 2006 appellant requested reconsideration. In an August 21, 2006 report,
Dr. Koprivicia stated that the Office medical adviser excluded consideration of strength deficits
and reiterated that appellant had objective weakness related to the tear of his biceps muscle. He
noted that appellant was unable to lift any resistance overhead, which suggested a Grade 3
weakness addressed in his prior report. The FCE revealed 13 of 16 valid measurements in terms
of measuring shoulder strength, consistent with the 30 to 50 percent range for strength deficit
found at Table 16-35. Dr. Koprivicia reiterated that appellant had severe impairment greater
than the 23 percent already awarded.
On December 17, 2006 Dr. Zimmerman noted that Dr. Koprivicia provided no
impairment rating or information sufficient to permit use of Table 16-35.
By decision dated January 23, 2007, the Office denied appellant’s request for an
additional schedule award.
On March 20, 2007 appellant requested reconsideration. He submitted a CA-7 claim for
an increased schedule award.
On April 6, 2007 the Office denied appellant’s request for reconsideration without further
merit review.
Appellant again requested reconsideration on September 17, 2007. He submitted the
September 5, 2007 report of Dr. Allen J. Parmet, Board-certified in occupational medicine.
Dr. Parmet diagnosed right rotator cuff tear with recurrence and residual atrophy, supraspinatus
and infraspinatus, unrepaired right biceps tear with atrophy, right carpal tunnel syndrome and
right frozen shoulder due to rotator cuff tear and biceps tear. Range of motion for the right
shoulder included 80 degrees abduction, 40 degrees adduction, 120 degrees flexion, 50 degrees
extension, 20 degrees external rotation and 50 degrees internal rotation. Dr. Parmet found 4/5
motor strength bilaterally of the shoulder and upper arm musculature and found osteoarthritic
changes in the hands. He found a 4 percent impairment of the hand based on abnormal thumb
motion, a 7 percent impairment of the hand based on second digit abnormal motion, an 8 percent
hand impairment based on abnormal motion of the third digit, a 3 percent hand impairment due
to abnormal fourth digit motion and a 10 percent hand impairment based on fifth digit motion
impairment. This converted to 32 percent impairment of the hand or 29 percent upper extremity
impairment using Table 16-2. At the elbow, Dr. Parmet stated that there was abnormal motion
causing five percent impairment. He found 12 percent shoulder impairment based on abnormal
motion which, when combined with the hand and elbow, yield 41 percent impairment of the
upper extremity using the Combined Values Chart. Dr. Parmet stated that appellant had a good
outcome from his carpal tunnel surgery and noted that the A.M.A., Guides, recommended an
impairment rating not to exceed five percent. He advised that appellant had “very significant

5

muscular loss and atrophy of the shoulder” due to his shoulder surgery and unrepaired biceps and
rotator cuff tears. In addressing the FCE, Dr. Parmet stated:
“Clearly, the examination should be accepted with significant strength deficits
and, in fact, [appellant] has, in reality, no functional use of his right upper
extremity above shoulder level and can only raise his arm above shoulder level
through a small portion of the normal arc. Therefore, I would assign an additional
10 percent strength loss to the shoulder. The summary of these impairments,
using the combined values table, therefore is 50 percent of the right upper
extremity permanent partial impairment. Given the severity of the frozen
shoulder, this value actually underestimates the limitations imposed on [appellant]
by that condition alone and does not encompass any factor of pain which could be
rendered in accordance with Chapter 18 of the A[.]M[.]A[.,] Guides to the
Evaluation of Permanent Impairment….”
On November 19, 2007 Dr. Zimmerman noted that the only accepted condition was to the
right shoulder and that the Office had not accepted any condition involving other locations of the
right upper extremity. As to loss of range of motion, he applied the findings of Dr. Parmet to the
A.M.A., Guides, noting that 120 degrees of flexion was 4 percent impairment; 80 degrees of
abduction was 5 percent impairment; 50 degrees internal rotation was 2 percent impairment; 20
degrees external rotation was 1 percent impairment; 50 degrees extension was 0 (zero) percent
impairment and 40 degrees adduction was 0 percent impairment, or a total 12 percent right upper
extremity impairment. Dr. Zimmerman noted that Dr. Parmet referred to Table 16-35, but did
not provide grades for any plane of motion as directed at page 510. As Dr. Parmet’s loss of
strength impairment rating failed to conform to the A.M.A., Guides, it did not support an
increased schedule award.
In a December 13, 2007 decision, the Office denied appellant’s claim for an additional
schedule award for his right upper extremity.
LEGAL PRECEDENT
The schedule award provision of the Act1 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body.2 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 Office as the appropriate standard
for evaluating schedule losses.3

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

Id.; see Billy B. Scoles, 57 ECAB 258 (2005).

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In rating impairment of the upper extremity, Chapter 16 of the A.M.A., Guides states that
strength measurements are functional tests largely influenced by subjective factors that are
difficult to control.4 Therefore, the A.M.A., Guides do not assign a large role to such
measurements. Section 16.8a provides that, in a rare case, an examiner may rate loss of strength
should it represent an impairing factor not adequately considered by other methods. An example
of this situation is loss of strength due to a severe muscle tear that healed leaving a palpable
muscle defect. However, the A.M.A., Guides reiterate that impairment ratings based on
objective anatomic findings take precedence as decreased strength cannot be rated in the
presence of decreased motion or painful conditions that prevent effective application of maximal
force in the region being evaluated.5
ANALYSIS
The Office accepted appellant’s claim for aggravation of a rotator cuff tear of the right
shoulder and a rupture of the long head of the right biceps muscle. Appellant was granted
previous schedule awards in 1999 and 2002 for a total 23 percent impairment of his right upper
extremity. The Board finds that the case is not in posture decision as to whether he has greater
impairment.
Initially, the Board notes that much of the medical evidence submitted by appellant does
not conform to the protocols of the A.M.A., Guides. In addition to loss of range of motion
findings, each examining physician also rated impairment due to loss of strength. None of their
reports, however, adequately address the principle stated at section 16.8 that: “[d]ecreased
strength cannot be rated in the presence of decreased motion” or other painful conditions.
(Emphasis in the original.)
Dr. Carter provided an impairment rating of 35 percent which was derived from a 17
percent loss of range of motion and 18 percent loss of strength. His June 13, 2003 note does not
provide any physical findings or measurements in degrees of range of motion. Dr. Carter did not
address why, under the circumstances of this case, any impairment for strength deficit was
appropriate. The method he used to determine the loss of strength ratings is not readily apparent
as he failed to provide any reference to the tables or figures found at Chapter 16. Moreover, it
appears that Dr. Carter added the 17 percent range of motion loss to the 18 percent loss of
strength. This further reduces the probative value to his impairment rating. These defects were
not cured in the additional notes he submitted to the record.
Dr. Russell provided loss of range of motion findings but did not correlate them to the
charts at Figure 16-40, Figure 16-43 and Figure 16-46. Rather, he utilized a chart at Figure
16-1a. Moreover, his report is unclear as to the extent of any loss due to adduction or abduction.
Dr. Russell stated that appellant abducted actively to 30 degrees which represents seven percent

4

A.M.A., Guides 507, § 16.8.

5

Id. at 508.

7

impairment;6 internal rotation was to 50 degrees which represents two percent impairment;7
external rotation of 25 degrees represents eight percent impairment;8 100 degrees of flexion
represents five percent impairment;9 and 25 degrees of extension represents two percent
impairment.10 He did not provide any finding regarding adduction and stated that there “was no
active abduction or external rotation with resistance.” However, as noted, Dr. Russell listed 30
degrees of active abduction. This renders appellant’s range of motion impairment rating of
diminished probative value as it appears incomplete and the physician was unclear on how the
impairment estimates he listed under the chart at Figure 16-1b were derived.11 Moreover, having
found decreased motion of the shoulder, Dr. Russell did not address the admonition found at
section 16.8a when he also rated decreased strength.12
Dr. Koprivicia rated impairment to appellant’s right upper extremity as 46 percent based
upon loss of motion and strength of the right wrist, elbow, forearm and shoulder. He found 70
degrees of active abduction which represents 5 percent impairment; 30 degrees of adduction
which represents 1 percent impairment; 90 degrees of flexion which represents 6 percent
impairment; 50 degrees of extension which represents 0 percent impairment; 45 degrees internal
rotation which represents 3 percent impairment; and 10 degrees external rotation which
represents 2 percent impairment, or a total 17 percent impairment. Dr. Koprivicia stated that he
rated impairment for the right shoulder girdle, based on biceps weakness, supraspinatus
weakness and evidence of a recurrent tear of the rotator cuff. He noted that, even though there
was decreased motion present, “the manual muscle testing of the specific muscle groups was
possible with effective application and demonstration of maximal force capabilities clinically.”
Dr. Koprivicia stated that the principles section under 16.8a “does not apply in this clinical
situation.” He went on to rate impairment due to loss of strength under Table 16-35. The Board
finds, however, that Dr. Koprivicia did not provide a cogent explanation for departing from the
principles section of 16.8a, noting only that they did “not apply” and he was able to make
clinical measurements. He did not adequately address why such ratings were made in the
presence of decreased motion and other painful conditions. Dr. Koprivicia also rated 20 percent
impairment based on 38 percent grip strength loss and 33 percent pinch strength loss due to
carpal tunnel syndrome. He did not address the section of the A.M.A., Guides pertaining to
compression neuropathies or to the specific provision at page 495 addressing the three scenarios

6

Id. at 477, Figure 16-43.

7

Id. at 479, Figure 16-46.

8

Id.

9

Figure 16-40 at 476.

10

Id.

11

As noted by Dr. Zimmerman, the A.M.A., Guides state that active motion takes precedence and that actual
measured goniometer readings or linear measurements are recorded. A.M.A., Guides 451.
12

Section 16.8a provides an example for measuring loss of strength due to a severe muscle tear that leaves a
palpable muscle defect. Dr. Russell noted a small mass retracted in the mid-biceps area but did not otherwise
address how this factored into his loss of strength estimate.

8

by which carpal tunnel may be rated.13 This, in turn, further reduces the probative value of
Dr. Russell’s opinion. His additional reports of record did not further clarify his reasons for
departing from the principles articulated in the A.M.A., Guides.
Dr. Parmet provided an impairment rating of 50 percent to the right upper extremity. He
found 12 percent impairment based on loss of range of motion to the shoulder which, when
combined with loss of range of motion of the elbow (5 percent) and digits of the hand (converted
to 29 percent impairment of the upper extremity), totaled 41 percent impairment under the
Combined Values Chart. Dr. Parmet went on to address carpal tunnel, noting that the A.M.A.,
Guides recommended an impairment not to exceed five percent at page 495. Addressing the loss
of strength to appellant’s right shoulder, Dr. Parmet stated that appellant had no function use of
his right upper extremity above shoulder level for which he would assign an additional 10
percent loss.14 Dr. Parmet did not address which tables from Chapter 16 were applied in making
the loss of strength impairment estimate and, as noted, failed to comment on the provisions of
section 16.8a.
In turn, the reports of Dr. Zimmerman, the Office medical adviser, are also of diminished
probative value. In reviewing the range of motion examination of Dr. Russell, he stated that the
purported findings for external rotation and internal rotation were not credible. Dr. Russell
found external rotation to 25 degrees and internal rotation to 50 degrees which, under Figure 1646, represent impairments of eight percent and two percent. It is not readily apparent to the
Board how these values were found not to be credible by the medical adviser. Similarly, in the
material at section 16.8a, the principles provide an example of a situation where “loss of strength
due to a severe muscle tear that healed leaving a palpable muscle defect” may be rated
separately. The evidence reflects that appellant has such a muscle tear to his biceps, as
Dr. Russell noted a small mass retracted in the mid-biceps area. In reviewing the report of
Dr. Parmet, the medical adviser noted that the only accepted condition in this claim was for the
right shoulder. However, the Office also accepted the ruptured right biceps tear of the forearm.
In light of this, it is not readily apparent that an impairment rating involving the forearm or
elbow should be excluded from consideration. In addition, it is well established under Board
case precedent that, in determining the extent of impairment for purposes of a schedule award,
preexisting impairment to the scheduled member is to be included.15 Dr. Zimmerman
improperly isolated consideration of the medical evidence to appellant’s right shoulder range of
motion without adequately addressing whether any preexisting impairment was established by
the medical evidence of record.
For these reasons, the Board will remand the case to the Office for referral of appellant to
an appropriate medical specialist for examination and opinion on the nature and extent of
permanent impairment to his right upper extremity. The Office should prepare a statement of
13

The A.M.A., Guides provide that sensory deficits (pain) and/or motor deficits (weakness) are to be evaluated
according to the method described in section 16.b. Moreover, in compression neuropathies, additional impairment
values are not given for decreased strength. Page 494.
14

Dr. Parmet commented that he did not give consideration to any sensory impairment under Chapter 18, noting
that he would leave it to the Office medical adviser to add any rating for pain.
15

See Michael C. Milner, 53 ECAB 446 (2002); Lela M. Shaw, 51 ECAB 372 (2000).

9

accepted facts and inquire whether, under the circumstances, loss of strength should be rated in
the presence of loss of range of motion and whether there is any preexisting impairment affecting
the member that should also be considered. After such other development as the Office deems
necessary, it shall issue a merit decision on appellant’s entitlement to an increased schedule
award.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 13, 2007 schedule award decision of
the Office of Workers’ Compensation Programs be set aside. The case is remanded for further
action in conformance with this decision of the Board.
Issued: June 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


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

)
)
)
)
)
)
)
)

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

Docket No. 07-1317
Issued: October 5, 2007

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 April 18, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 19, 2006 denying her traumatic injury
claim and its March 14, 2007 nonmerit decision denying her request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant sustained a traumatic injury while in the
performance of duty on November 15, 2004; and (2) whether the Office properly refused to
reopen appellant’s case for further review of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On April 28, 2006 appellant, a 53-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on November 15, 2004 she tore her left meniscus while going up to a

second step to deliver mail. The official supervisor’s report reflected that she did not stop
working until March 31, 2006, when she first reported that alleged incident to her supervisor.1
In an undated statement, appellant indicated that, when she fell on November 15, 2004,
she did not immediately realize that she was seriously injured. She alleged that, when she
reported the accident to her supervisor three days later, she was told that it was too late to report
the incident.
On April 20, 2006 the employing establishment challenged the claim, contending that
appellant did not allege that her condition was job related until her insurance company refused to
cover the costs of her treatment. In a statement dated April 10, 2006, Francisco Ortiz, supervisor
of customer service for the employing establishment, indicated that appellant “never” reported
that she hurt herself on November 15, 2004, but rather told him that she sustained an “off-the-job
injury.” He stated that, after undergoing left knee surgery in February 2005, she returned to light
duty in May 2005 and stopped working on March 31, 2006. Mr. Ortiz indicated that, on
April 14, 2006 appellant told him that, on November 15, 2004, she had tripped at 160-45 Willets
Point Boulevard at approximately 11:30 a.m., but had been afraid to report the incident at that
time.
In a statement dated April 20, 2006, station manager John Zucchi indicated that, on
April 14, 2006, appellant informed him that she wanted to claim a November 15, 2004 injury,
because her insurance would not cover the cost of a magnetic resonance imaging (MRI) scan.
Appellant explained that she had not notified management earlier of her injury because she was
“scared.”
In support of her claim, appellant submitted a December 10, 2004 radiograph of her
knees, which provided an impression of mild degenerative osteoarthritis of the lateral joint
compartment of the left knee. A January 11, 2005 report of an MRI scan of the left knee
revealed a degenerative tear of the posterior horn and body lateral meniscus; radial tear of the
body medial meniscus; and moderate degenerative osteoarthritis lateral femorotibial
compartment. The record contains February 1, 2005 presurgical instructions from New York
Hospital, Queens and February 2, 2005 postoperative discharge instructions.
Appellant submitted reports from Dr. Walter A. Besser, a Board-certified orthopedic
surgeon. On January 18, 2005 Dr. Besser stated that appellant had sustained an injury to her left
knee, resulting in torn medial and lateral menisci and osteoarthritis of the lateral compartment of
the left knee joint, which required surgery. In notes dated April 1 and 20, 2005, he stated that,
following arthroscopy of the left knee, appellant was able to return to light duty. In duty status
reports dated September 6 and December 6, 2005, Dr. Besser indicated that appellant could work
with restrictions.
In a note dated March 23, 2005, Dr. Richard Dauhajre, a Board-certified physiatrist,
opined that appellant would require physical therapy for an additional eight weeks prior to
returning to work. Appellant submitted a March 28, 2006 duty status report from Dr. Gai-Fu
1

The Board notes that although appellant’s signature on the CA-1 form is dated April 28, 2006, it was received
by the Office on April 20, 2006.

2

William Yang, a Board-certified physiatrist, who stated that she tore her left meniscus on
November 15, 2004, when she fell while delivering mail. Dr. Yang indicated that he had
examined appellant on March 28, 2006.
Appellant submitted notes and reports from Dr. Shi-Cheng Chiang, a Board-certified
physiatrist. In disability slips dated April 1 and 15, 2006, he stated that appellant had undergone
a left knee arthroscopy on February 2, 2005 and was unable to work due to left knee pain. The
record also contains Dr. Chiang’s April 15, 2006 prescription for physical therapy and an
illegible duty status report dated April 23, 2005.
On April 27, 2006 the Office notified appellant that the evidence submitted was
insufficient to establish her claim. Appellant was advised to provide additional documentation,
including a firm diagnosis and a physician’s opinion as to how the alleged November 15, 2004
incident resulted in the diagnosed condition. The Office specifically asked appellant to provide a
detailed description as to how the injury occurred; statements from any witnesses or other
documentation supporting her claim; and the reason she delayed reporting the incident.
In a statement dated April 21, 2006, appellant indicated that she was in distress and was
nervous and confused when she submitted her first report; that she delayed in reporting the
incident because she did not “notice” that her injury was very serious and thought it would heal
at work; and that she did not know she was required to fill out a CA-1. On April 26, 2006 the
employing establishment refuted appellant’s allegation that she was nervous and confused when
she provided her original statement.
Appellant submitted hospital records and an operative report dated February 2, 2005 from
Dr. Besser, reflecting that he performed an arthroscopy of the left knee; partial lateral and medial
meniscectomies; abrasion chondroplasty of the patellofemoral joint compartment of the knee;
and synovectomy of the three compartments of the knee joint. In an initial pain assessment,
appellant stated that she had experienced pain since November 15, 2004. In an April 17, 2005
duty status report, Dr. Chiang opined that appellant was able to work four hours per day with
restrictions. He noted that the date of injury was November 15, 2004. Appellant submitted
physical therapy progress notes and treatment notes for the period February 21, 2005 to
March 27, 2006. Notes dated November 9, 2005, bearing an illegible signature, reflect
appellant’s report that she experienced left knee pain after a November 15, 2004 fall. Notes
dated April 15, 2006, also bearing an illegible signature, reflected appellant’s report that she had
experienced pain in her left knee for some time without a recent injury.
In a May 1, 2006 statement, appellant provided details of the alleged November 15, 2004
incident. She reported that at 11:20 a.m. on the date in question, while she was carrying “a lot of
mail,” she fell forward on the second step at 160-45 Willets Point Boulevard, injuring both
knees, especially the left; when she checked her knees, she noticed a gash and a bruise; when a
pedestrian passed by and asked if she was “O.K.,” appellant allegedly said that she was “fine;”
she rested on the steps for 7 to 10 minutes; though she felt a lot of pain, she forced herself to
continue her route; after finishing her route, she returned to her van for a Band-Aid for her knee;
and near the end of her route, she met a coworker, Tin Wai Tse, to whom she allegedly reported
the accident. Appellant stated that she was afraid to inform her boss of the incident immediately
and when she finally reported it to him on November 17, 2004, due to increased pain, he

3

informed her that it was too late to report the event and that she had to continue her route
regardless of her injury. She stated that she filed a traumatic injury claim after discovering that
she had a torn meniscus and talking with a union representative. Appellant also indicated that
she was unable to locate the witness. In a May 2, 2006 statement, she indicated that, on
November 17, 2004, she informed her supervisor, Eddie Rivera, that she fell while on duty.
Appellant further stated that after she received the results of the January 11, 2005 MRI scan, she
reported the details of the November 15, 2004 incident to Mr. Ortiz and informed him that she
required surgery.
Appellant submitted a May 1, 2006 witness statement from a coworker, Mr. Tse, who
stated that in mid-November 2004, he had previously arranged to help appellant deliver mail on
her route. When Mr. Tse met appellant near the end of her route, she was limping and appeared
to be in pain. Appellant allegedly told Mr. Tse that she had fallen to her knees onto the steps of
Willets Point Boulevard while delivering mail that morning, that “her knees were hurting and
that she was in too much pain to finish her route.” When Mr. Tse offered to help appellant finish
her route, she declined his assistance. He stated that he did not mention the incident to anyone at
the employing establishment.
Appellant submitted a report dated April 26, 2006 from Dr. William C. Wang, a treating
physician, who stated that appellant injured her left knee on November 15, 2004, when she fell
down during a mail delivery. Dr. Wang indicated that she first visited his office on
November 22, 2004, stating that she was having difficulty climbing stairs due to knee pain. His
physical examination at that time revealed a small open wound in the left knee and mild
swelling. Dr. Wang found limited range of motion in left knee flexion. McMurray’s test was
positive in the left knee. Lachman’s and anterior drawer tests were negative. Strength was 5-/5
in the left leg. Sensation was normal. DTR was 2+ throughout. The diagnosis at that time was
left knee injury, ruling out meniscus tear. Dr. Wang noted that a January 11, 2005 MRI scan of
the left knee revealed a degenerative tear of the posterior horn and body lateral meniscus; radial
tear body medial meniscus; moderate degenerative osteoarthritis; and lateral femorotibial
compartment. In a May 12, 2006 disability slip, he indicated that appellant was unable to work
for two weeks due to left knee pain. On May 13, 2006 Dr. Wang stated that appellant sustained a
left knee injury at work on November 15, 2004. He recommended light-duty work for three
months. On May 23, 2006 Dr. Wang opined that appellant could return to light-duty work. In a
May 22, 2006 “Medical Justification for Light Duty,” he restricted appellant from lifting more
than 25 pounds; reaching above the shoulder for more than 6 hours; pushing or pulling for more
than 5 hours; and walking for more than 2.5 hours.
On May 19, 2006 Dr. Besser diagnosed post-traumatic chondromalacia patella of the left
knee. He related appellant’s report that she had fallen as she was climbing steps on
November 15, 2004, while delivering mail. The record contains disability slips from
Drs. Chiang and Yang for the period April 1 to 29, 2006 and physical therapy notes dated
November 9, 2005.
In a merit decision dated June 15, 2006, the Office denied appellant’s claim, finding that
the evidence was insufficient to establish that appellant had sustained an injury on
November 15, 2004. The Office concluded that the medical evidence failed to establish a causal
relationship between appellant’s diagnosed condition and the claimed event.

4

On July 12, 2006 appellant requested reconsideration. She alleged that she never told
anyone that her injury was not work related; that she informed coworkers of the November 15,
2004 incident; and that she was not informed of her rights under the Federal Employees’
Compensation Act when she reported the incident.
Appellant submitted a July 7, 2006 report from Dr. Besser, who reported appellant’s
claim that she fell on stairs while at work delivering mail, sustaining an injury to her right and
left knee. Dr. Besser diagnosed post left knee arthroscopy and status post work-related injury to
left knee. He stated: “I feel that the accident at work is a competent and aggravating cause of
the injury to her left knee.” In an August 18, 2006 letter, Dr. Besser repeated the history of
injury and diagnosed post-traumatic chondromalacia patella of the left knee. Appellant also
submitted copies of previously submitted medical reports.
In an August 11, 2006 statement, Bobbie Soloman of the employing establishment noted
that appellant alleged that her injury was job related only after discovering that her insurance
would not pay for certain treatment. He noted that appellant was seen twice by employing
establishment medical doctors and each time she stated that her condition was not job related.
Mr. Solomon provided a copy of an April 25, 2005 authorization for medical attention form,
which was completed by appellant, her supervisor and a physician, whose signature is illegible.
Both appellant and her supervisor indicated in their designated sections that the identified illness
or injury, “left knee surgery,” was not job related.
By decision dated September 19, 2006, the Office modified its June 15, 2006 decision to
reflect that the fact of injury was not established, as the evidence did not substantiate that the
claimed event occurred as alleged.
On October 12, 2006 appellant requested reconsideration, reiterating her claims that she
notified her coworkers of the November 15, 2004 incident; that she failed to report the incident
within 24 hours because she did not believe she was seriously injured; and that she told her
supervisors about her pain, but they would not file a report. In a letter dated October 8, 2006,
she stated that she was submitting evidence regarding the accusation of requesting light duty for
a nonwork-related condition. Appellant submitted a copy of a May 11, 2006 letter to the
employing establishment, expressing her desire to participate in the job bidding process. She
stated that she had injured her left knee in mid-November 2004 and hoped to be able to work full
duty within six months. Appellant also submitted a copy of a May 20, 2006 light-duty
application; a May 29, 2006 letter from appellant to the employing establishment regarding the
status of her request for light duty; an October 1, 2006 return-to-work slip from Dr. David Y.
Zhang, a Board-certified cytopathologist; letters dated October 3 and November 17, 2006 from
Dr. Besser, who reiterated his belief that appellant sustained a work-related injury to her left
knee on November 15, 2004; and copies of previously-submitted medical documents.
On March 14, 2007 the Office denied appellant’s request for reconsideration, on the
grounds that the evidence submitted was immaterial or irrelevant and, therefore, insufficient to
warrant merit review.

5

LEGAL PRECEDENT -- ISSUE 1
The Act2 provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.3 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, “arising out of and in the
course of employment.”4
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.5 When an employee claims that she sustained a
traumatic injury in the performance of duty, she must establish the “fact of injury,” namely, she
must submit sufficient evidence to establish that she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged and that such event, incident or
exposure caused an injury.6
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial
doubt on a claimant’s statements. The employee has not met her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.7
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
2

5 U.S.C. § 8101 et seq.

3

5 U.S.C. § 8102(a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum,
1 ECAB 1 (1947).
5

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Paul Foster, 56 ECAB ___ (Docket No. 04-1943, issued December 21, 2004); see also Betty J. Smith,
54 ECAB 174 (2002); Tracey P. Spillane, 54 ECAB 608 (2003). 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(ee).
7

See Betty J. Smith, supra note 6.

8

Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.10
ANALYSIS -- ISSUE 1
On September 19, 2006 the Office found that the evidence did not substantiate that the
claimed event occurred as alleged. The Board finds that appellant has failed to meet her burden
of proof in establishing that she sustained a traumatic injury to her left knee on
November 15, 2004.
Appellant noted on her April 28, 2006 CA-1 form that she tore her left meniscus while
going up to a second step to deliver mail. In her initial report, she provided no detailed account
of the incident, which allegedly occurred 16 months prior to the filing of the claim.
Subsequently, appellant stated that at 11:20 a.m. on the date in question, while she was carrying
“a lot of mail,” she fell forward on the second step at 160-45 Willets Point Boulevard, injuring
both knees, especially the left; that she noticed a gash and a bruise on her knees; that a pedestrian
passed by and asked if she was “O.K;” and that she rested on the steps for 7 to 10 minutes. Her
recitation of the facts is not supported by the evidence of record and does not establish her
allegation that a specific event occurred which caused an injury.11 Moreover, there are
inconsistencies in the evidence which cast serious doubt on the validity of her claim.
Appellant’s allegation that she reported a November 15, 2004 work-related injury to the
employing establishment contemporaneously with the alleged incident is not consistent with the
surrounding facts and circumstances of this case. She claimed to have reported the incident to
her supervisor, Mr. Rivera, on November 17, 2004 and to Mr. Ortiz on January 11, 2005.
However, Mr. Ortiz denied appellant’s allegation, stating that she told him that she sustained an
“off-the-job” injury. He indicated that appellant did not claim to have sustained an injury on
November 15, 2004 until April 14, 2006. The employing establishment controverted appellant’s
claim, noting that she did not allege that her injury was job related until she discovered that her
insurance would not pay for certain treatment. In an April 25, 2005 authorization for medical
attention form, both appellant and her supervisor indicated in their designated sections that the
identified illness or injury, “left knee surgery,” was not job related.
9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

John W. Montoya, 54 ECAB 306 (2003).

11

See Dennis M. Mascarenas, supra note 9.

7

The difficulty with appellant’s claim lies in the paucity of medical evidence
contemporaneous with the alleged November 14, 2005 incident. Such evidence constitutes the
most reliable substantiation that an injury did, in fact, occur as alleged,12 particularly, as here,
where appellant waited over a year to file her claim.13 There are no contemporaneous medical
reports of record reflecting that appellant was treated for a knee injury on or around
November 15, 2004. The earliest report submitted was a December 10, 2004 radiograph, which
provided an impression of mild degenerative osteoarthritis of the lateral joint compartment of the
left knee. A January 11, 2005 report of an MRI scan of the left knee revealed a degenerative tear
of the posterior horn and body lateral meniscus; radial tear of the body medial meniscus; and
moderate degenerative osteoarthritis lateral femoroibial compartment. Neither report reflected a
traumatic injury to the knee; rather, both reports reflected a degenerative condition. On
January 18, 2005 Dr. Besser stated that appellant had sustained an injury to her left knee,
resulting in torn medial and lateral menisci and osteoarthritis of the lateral compartment of the
left knee joint, which required surgery. However, he did not provide any details regarding
where, when or how the injury occurred. Dr. Besser’s February 2, 2005 operative report and
related hospital records indicate that appellant underwent an arthroscopy of the left knee; partial
lateral and medical meniscectomies; abrasion chondroplasty of the patellofemoral joint
compartment of the knee; and synovectomy of the three compartments of the knee joint. An
initial pain assessment reflected appellant’s claim that she had experienced pain since
November 15, 2004. However, these records do not contain a history of injury indicating that
appellant fell while delivering mail on November 15, 2004.
Medical reports submitted substantially after the alleged incident are insufficient to
establish that the event occurred as alleged on November 15, 2004. On April 17, 2005
Dr. Chiang identified November 15, 2004 as the date of injury. He did not describe, however,
how or where the injury occurred; nor did he indicate whether it was work related. On
March 28, 2006 Dr. Yang stated that appellant tore her left meniscus on November 15, 2004,
when she fell while delivering mail. On May 19 and July 7, 2006 Dr. Besser related appellant’s
report that she had fallen as she was climbing steps on November 15, 2004, while delivering
mail. These reports, written more than a year after the alleged incident, do not confirm that the
incident occurred. They do not contain a detailed history of the incident or description of a
resulting injury, which would support a physician’s knowledge of the facts surrounding the
incident.
On April 26, 2006 Dr. Wang stated that appellant injured her left knee on November 15,
2004, when she fell down during a mail delivery. He indicated that she was having difficulty
climbing stairs due to knee pain when she first visited his office on November 22, 2004.
Dr. Wang provided findings of his physical examination of appellant at that time; however, he
did not provide a contemporaneous report or copies of his notes relating to the November 22,
2004 office visit.14 He noted that a January 11, 2005 MRI scan of the left knee revealed a
12

Glen Warren Denessen, 26 ECAB 299 (1975).

13

See Dorothy M. Kelsey, 32 ECAB 998 (1981).

14

The Board has held that contemporaneous evidence is entitled to greater weight than later evidence. See
Eileen R. Kates, 46 ECAB 573 (1995); Katherine A. Williamson, 33 ECAB 1696 (1982); Arthur M. Meyers,
23 ECAB 111 (1971).

8

degenerative tear of the posterior horn and body lateral meniscus; radial tear body medial
meniscus; moderate degenerative osteoarthritis; and lateral femorotibial compartment. But
Dr. Wang did not attempt to explain how the alleged November 15, 2004 incident caused
appellant’s condition. On May 13, 2006 he again stated, without explanation, that appellant
sustained a left knee injury at work on November 15, 2004. Dr. Wang’s reports are not
inconsistent with the history of injury provided by appellant. However, these reports, submitted
17 months after the alleged incident, are insufficient to establish that appellant sustained a workrelated injury on November 15, 2004.
The witness statement provided by appellant is also insufficient to establish the fact of
injury. Mr. Tse stated that in mid-November 2004, when he met appellant near the end of her
route, she was limping and appeared to be in pain. Appellant allegedly told Mr. Tse that she had
fallen on her knees onto the steps of Willets Point Boulevard while delivering mail that morning,
that “her knees were hurting and that she was in too much pain to continue her route.” Mr. Tse
was unable to recall the exact date of the alleged incident, which he admittedly did not witness.
He also acknowledged that he did not mention the incident to anyone at the employing
establishment. Mr. Tse’s statement does not establish that appellant fell on her knees at the time,
place and in the manner alleged.
The Board finds that appellant has failed to establish the fact of injury: she did not
submit sufficient evidence to establish that she actually experienced an employment incident at
the time, place and in the manner alleged or that the alleged incident caused her condition. As
appellant has not met her burden of proof to establish that she sustained an injury in the
performance of duty, it is not necessary to discuss the probative value of the medical reports.15
LEGAL PRECEDENT -- ISSUE 2
The Act16 provides that the Office may review an award for or against compensation
upon application by an employee (or his or her representative) who receives an adverse decision.
The employee may obtain this relief through a request to the district Office. The request, along
with the supporting statements and evidence, is called the “application for reconsideration.”17
The application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that the Office erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes
relevant and pertinent new evidence not previously considered by the Office.18
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence or argument that meets at least one of these standards. If

15

Id.

16

5 U.S.C. § 8101 et seq.

17

20 C.F.R. § 10.605.

18

Id. at § 10.606.

9

reconsideration is granted, the case is reopened and the case is reviewed on its merits.19 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.20
ANALYSIS -- ISSUE 2
Appellant’s October 12, 2006 request for reconsideration neither alleged, nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, she did not advance a relevant legal argument not previously considered by the
Office. Appellant merely reiterated her earlier contentions. Consequently, she is not entitled to a
review of the merits of her claim based on the first and second above-noted requirements under
section 10.606(b)(2).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by the Office. The Office denied appellant’s claim on the grounds that the fact of
injury was not established, as the evidence did not substantiate that the claimed event occurred as
alleged. However, the evidence submitted in support of appellant’s request for reconsideration
was either duplicative or irrelevant to the issue at hand.
Appellant submitted a copy of a May 11, 2006 letter to the employing establishment,
expressing her desire to participate in the job bidding process, and indicating that she had injured
her left knee in mid-November 2004 and hoped to be able to work full duty within six months.
She also submitted a copy of a May 20, 2006 light-duty application, reflecting her allegation that
she sustained a work-related injury on November 15, 2004 and a follow-up letter to the
employing establishment, dated May 29, 2006, regarding the status of her request for light duty.
Appellant provided letters dated October 3 and November 17, 2006 from Dr. Besser, who
repeated his statement that appellant sustained a work-related injury to her left knee on
November 15, 2004.
These documents merely reiterated information regarding the
circumstances surrounding the alleged injury. The Board notes that similar information was
considered prior to the issuance of the Office’s September 19, 2006 decision. Appellant also
submitted copies of medical documents, which were previously considered by the Office.
Material which is repetitious or duplicative of that already in the case record is of no evidentiary
value in establishing a claim21 and does not constitute a basis for reopening a case.22 Appellant
also submitted an October 1, 2006 return-to-work slip from Dr. Zhang. This document is not
relevant to the issue decided by the Office, namely whether appellant established that the
incident occurred at the time, place and in the manner alleged. This type of information is prima
facie insufficient to warrant merit review.

19

Donna L. Shahin, 55 ECAB 192 (2003).

20

20 C.F.R. § 10.608.

21

Lawrence Ellis Myers, 27 ECAB 262 (1976).

22

Richard L. Byrd, 25 ECAB 353 (1974).

10

The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her October 12, 2006 request for reconsideration.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a traumatic injury to her left knee in the performance of duty on November 15, 2004.
The Board further finds that the Office properly refused to reopen appellant’s claim for merit
review.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 14, 2007 and September 19, 2006 are affirmed.
Issued: October 5, 2007
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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
TENNESSEE VALLEY AUTHORITY,
DIVISION OF TRANSPORTATION SYSTEMS
ENGINEERING & CONSTRUCTION,
Paris, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Mark Nolan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0402
Issued: November 13, 2019

Case Submitted on the Record

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

JURISDICTION
On December 13, 2018 appellant, through counsel, filed a timely appeal from an
August 17, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).

1

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

Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.3
ISSUE
The issue is whether OWCP abused its discretion by denying authorization for appellant’s
lumbar surgery.
FACTUAL HISTORY
On August 24, 2016 appellant, then a 65-year-old survey technician, filed a traumatic
injury claim (Form CA-1) alleging that on March 1, 2016, he was cutting a tree while in the
performance of duty, when it fell and hit his head and right shoulder, causing him to fall to the
ground with a hard jolt. He did not indicate that he had stopped work.
In an August 12, 2016 report, Dr. Keith Starkweather, a Board-certified orthopedic
surgeon, diagnosed a complete right shoulder rotator cuff tear or rupture of the right shoulder and
labral tear of the long head of the right biceps tendon. He recommended surgery.
On September 8, 2016 OWCP accepted the claim for strain of muscle, fascia, and tendon
of long head of biceps of right arm, and complete rotator cuff tear or rupture of the right shoulder.
On September 16, 2016 Dr. Starkweather performed a right shoulder arthroscopy with
arthroscopic rotator cuff repair.
In a December 7, 2016 report, Dr. Starkweather indicated that appellant related that he also
hurt his lower back and began having low back pain after his employment injury. He noted that
appellant had a prior lumbar fusion surgery in 2008 at L4-5, and indicated that he had reviewed a
2008 lumbar magnetic resonance imaging (MRI) scan and a June 14, 2016 lumbar MRI scan.
Dr. Starkweather restricted appellant from work and opined that it was likely that the employment
injury had aggravated his preexisting lumbar spinal stenosis and degenerative disc disease.
On January 6, 2017 OWCP expanded acceptance of the claim to include aggravation of
spinal stenosis, lumbar region, and aggravation of disc degeneration, lumbar region. It paid
appellant wage-loss compensation benefits on the supplemental rolls as of January 18, 2017 and
on the periodic rolls effective March 5, 2017.
In a February 21, 2017 report, Dr. Richard Lebow, a Board-certified neurosurgeon, noted
appellant’s history of injury and treatment. He indicated that appellant had severe low back pain

2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the August 17, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

2

following his March 1, 2016 employment injury, which radiated down the back of both legs and
into his knees. Dr. Lebow recommended a lumbar fusion from L3 to L5.
On April 7, 2017 OWCP received a request for authorization for lumbar spine fusion from
L3 to L5, and insertion of a spinal fixation device.
On April 10, 2017 OWCP referred the request for authorization to an OWCP district
medical adviser (DMA).
OWCP received a May 5, 2017 report from Dr. Nizar Souayah, a Board-certified
neurologist serving as a DMA. Dr. Souayah determined that there was no clear evidence that
appellant exhausted all conservative therapies, including adequate trials of physical therapy and
epidural injections. He indicated that appellant’s neurological examination was not focal, and he
found no clear evidence of instability, fracture, or spinal cord compression that required surgery
without documentation of failed conservative therapies. Dr. Souayah also noted that there was no
documentation of a recent electromyography (EMG) scan supporting a diagnosis of lumbar
radiculopathy.
On June 1, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. Deborah St. Clair, a Board-certified orthopedic surgeon. In a report dated June 20, 2017,
Dr. St. Clair reviewed the statement of accepted facts (SOAF), appellant’s history of injury, his
medical records, and noted appellant’s reports of back pain. She examined him and noted that
there was “evidence of disease and symptom magnification.” Dr. St. Clair explained that appellant
had failed surgery, had chronic pain, and did not follow the usual wellness curve of improvement.
She opined that he would not benefit from lumbar fusion surgery. Dr. St. Clair explained that the
“decompression of spinal stenosis will get people walking further before claudication, but is not
very effective in pain claims.” She opined that she did not expect improvement with time or with
repeated surgery for appellant’s back or his shoulder.
By decision dated August 7, 2017, OWCP denied authorization for the requested lumbar
spine fusion surgery. It found that the weight of the medical opinion evidence rested with
Dr. St. Clair who concluded that the requested treatment was not medically necessary for
appellant’s accepted employment injury.
On October 24, 2017 appellant, through counsel, requested reconsideration.
In an August 17, 2017 report, Dr. Lebow noted that he had followed appellant since
February 21, 2017. He indicated that appellant was doing well until he was struck by a large tree
limb falling on his back. Dr. Lebow explained that appellant had worsening back and leg
symptoms. He indicated that he had reviewed appellant’s lumbar MRI scan from June 14, 2016,
which revealed L4-5 decompression and fusion. Dr. Lebow found appellant currently had L3-4
spondylolisthesis and advised that the L3 bone moved forward on L4. He also noted that there
was “very severe spinal stenosis behind this.” Dr. Lebow related that given appellant’s severe
symptoms as well as his failure to respond to extensive conservative therapy over the past year, he
had recommended surgery in the form of an L3 through L5 decompression and fusion. He opined
that it was “irresponsible and dangerous” to deny this surgery for appellant as he was getting
weaker in his legs, had very severe spinal stenosis, and was suffering from excruciating back and

3

leg pain. Dr. Lebow concluded that denying appellant the requested surgery placed him at risk for
not only lower extremity paralysis, but also bowel and bladder dysfunction on top of the pain and
suffering that he was enduring.
In a September 6, 2017 report, Dr. Lebow noted that appellant had severe spinal stenosis
at L3-4 and spondylolisthesis, with an underlying L4-5 fusion decompression. He explained that
the conditions were worsened by the employment injury and repeated the request for an L3 to L5
decompression and fusion.
In a September 25, 2017 operative report, Dr. Lebow noted that he performed an L3-4
decompressive lumbar laminectomy for medial facetectomy for stenosis, L3-5 posterior
arthrodesis, L3-5 posterior arthrodesis, L3-5 posterior instrumentation, pedicle screws and rods,
insertion of biomechanical device, DePuy titanium interbody cage at L3-4, L3-4 posterior
interbody arthrodesis, and bone marrow aspirate of iliac crest through separate stab fascial incision.
In an October 18, 2017 report, Dr. Starkweather noted that appellant was recovering well
from his lumbar spine surgery. He indicated that appellant had reached maximum medical
improvement.
By decision dated January 16, 2018, OWCP denied modification of the August 7, 2017
decision. It found that the new evidence was not sufficient to support that the lumbar surgery was
medically indicated.
Appellant, through counsel, requested reconsideration on June 19, 2018 and submitted
additional medical evidence.
A February 19, 2018 MRI scan of appellant’s lumbar spine read by Dr. Vineet Sharma, a
Board-certified diagnostic radiologist, revealed severe degenerative changes of the lumbar spine
at L2-3 and L5-S1, including moderate degrees of foraminal and central canal stenosis.
OWCP received February 7 and 23, 2018 treatment notes from Dr. Lebow. Dr. Lebow
noted that appellant continued to have pain in his back and diagnosed lumbar radiculopathy. He
noted that he had reviewed the recent MRI scan results and there was disease at L2-3. Dr. Lebow
related that he would reexamine appellant in a year.
Dr. Lebow provided a June 13, 2018 response to questions from counsel. He indicated that
his objective findings included severe spinal stenosis, spondylolisthesis, and prior adjacent level
fusion. Dr. Lebow responded “yes” with regard to whether he agreed that appellant underwent an
L3-5 surgical decompression and fusion with a diagnosis of lumbar spinal stenosis and lumbar
spondylolisthesis, which was more probable than not the result of the March 1, 2016 employment
injury, and that appellant had required treatment for his lumbar spinal stenosis and lumbar
spondylolisthesis, resulting in L3-4 decompression and fusion.
OWCP received treatment notes dated May 2 and 30, June 20 and 27, and July 11, 25,
and 30, 2018, from Dr. Peter Kroll, Board-certified in pain medicine. Dr. Kroll diagnosed chronic
pain, failed back syndrome of lumbar spine, degenerative disc disease of the lumbar spine, rotator
cuff syndrome of right shoulder, neck pain, and lumbar spondylosis.

4

By decision dated August 17, 2018, OWCP denied modification of the January 16, 2018
decision.
LEGAL PRECEDENT
Section 8103 of FECA4 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or period of disability, or aid in lessening the amount of monthly compensation.5 While
OWCP is obligated to pay for treatment of employment-related conditions, the employee has the
burden of proof to establish that the expenditure is incurred for treatment of the effects of an
employment-related injury or condition.6
Section 10.310(a) of OWCP’s implementing regulations provides that an employee is
entitled to receive all medical services, appliances, or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related injury.7
In interpreting section 8103, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time. It therefore has broad administrative discretion in choosing means to achieve this goal. The
only limitation on OWCP’s authority is that of reasonableness.8
Section 8123(a) of FECA provides, in pertinent part: “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.”9 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.10
ANALYSIS
The Board finds that this case is not in posture for decision.

4

5 U.S.C. § 8103.

5

See J.L., Docket No. 18-0990 (issued March 5, 2019); Thomas W. Stevens, 50 ECAB 288 (1999).

6

D.C., Docket No. 18-0080 (issued May 22, 2018); Kennett O. Collins, Jr., 55 ECAB 648 (2004).

7

20 C.F.R. § 10.310(a).

8

J.T., Docket No. 18-0503 (issued October 16, 2018); D.K., 59 ECAB 141 (2007); Daniel J. Perea, 42 ECAB 214,
221 (1990).
9

5 U.S.C. § 8123(a).

10

V.K., Docket No. 18-1005 (issued February 1, 2019).

5

In a June 20, 2017 report, Dr. St. Clair, an OWCP second opinion examiner, reviewed
appellant’s medical records and a SOAF. She indicated that his physical examination revealed
evidence of disease, symptom magnification, a failed surgery, and chronic pain. Dr. St. Clair
opined that appellant would not benefit from lumbar fusion surgery. She explained that the
decompression of spinal stenosis was not very effective in pain claims. The DMA concurred with
her findings.
In support of his request for authorization of surgery, appellant submitted several reports
from his treating physician, Dr. Lebow. In his August 17, 2017 report, Dr. Lebow explained that
appellant was doing well until the employment injury during which a tree limb fell on his back.
He described appellant’s worsening back and leg symptoms, reviewed the lumbar MRI scan from
June 14, 2016, noted that currently appellant’s L3 bone had moved forward on L4, and indicated
that there was “very severe spinal stenosis behind this.” Dr. Lebow recommended surgery in the
form of an L3 through L5 decompression and fusion “given his severe symptoms as well as his
failure to respond to extensive conservative therapy over the past year.” He also indicated that
appellant was getting weaker in his legs, had severe spinal stenosis, and was suffering from
excruciating back and leg pain. Dr. Lebow explained that denying the surgery placed appellant at
risk of lower extremity paralysis and bowel and bladder dysfunction.
The Board finds that the report of Dr. St. Clair is in equipoise with the report of Dr. Lebow
with regard to whether appellant’s lumbar surgery should be authorized.
Both physicians provide a description of the employment injury and both discuss the
medical evidence and their physical findings, while Dr. St. Clair opined that the surgery was not
medically necessary, Dr. Lebow opined that it was necessary. Both physicians provided rationale
in support of their respective opinions. The Board, therefore, finds that a conflict in medical
opinion has been created regarding whether appellant’s lumbar surgery should be authorized.
Section 8123 of FECA provides that if there is a disagreement between the physician making the
examination for the United States and the employee’s physician, OWCP shall appoint a third
physician who shall make an examination.11
The case will be remanded to OWCP to refer appellant, the medical record, and a SOAF,
to an appropriate specialist to obtain an impartial medical opinion regarding whether lumbar
surgery should be authorized. Following this and any other development deemed necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

11
5 U.S.C. § 8123(a); see W.B., Docket No. 17-1994 (issued June 8, 2018); see also A.D., Docket No. 17-1855
(issued February 26, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the August 17, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
action consistent with this decision of the Board.
Issued: November 13, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

7