United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Harrisburg, PA, Employer
__________________________________________

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

Docket No. 20-0762
Issued: January 13, 2021

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 February 20, 2020 appellant filed a timely appeal from a January 27, 2020 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
ISSUE
The issue is whether appellant has met her burden of proof to establish a lower back
condition causally related to the accepted December 11, 2019 employment incident.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the January 27, 2020 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
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On December 11, 2019 appellant, then a 24-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her lower back when she picked up a tub
of spurs from the floor while in the performance of duty. On the reverse side of the claim form,
appellant’s supervisor noted that appellant had a preexisting back condition. Appellant stopped
work on December 11, 2019 and returned to work on December 13, 2019.
A December 11, 2019 report by Brooke Horrigan, a physician assistant, noted that
appellant presented with a workers’ compensation back injury. Ms. Horrigan diagnosed lumbar
pain and stated that appellant could return to light-duty work with restrictions.
In a December 13, 2019 report, Dr. Adedayo Ashana, a Board-certified orthopedic
surgeon, related that appellant complained of left-sided low back pain that started two days prior
when she bent over to pick something up and felt pain and numbness. Appellant’s pain increased
upon flexion, extension, reaching, laying supine, weight bearing, walking, and changing positions
and was alleviated by laying prone, sitting, and standing. Dr. Ashana related that appellant had a
preexisting L5-S1 central disc bulge and low back pain with associated radicular symptoms.
Appellant’s physical examination revealed a slightly antalgic gait and tenderness upon palpation
of the left superior iliac spine. Dr. Ashana noted that December 13, 2019 x-rays of appellant’s
lumbar spine displayed no evidence of fracture or dislocation or any change in comparison to
appellant’s August 26, 2019 lumbar spine x-rays. He diagnosed low back pain and stated that he
believed appellant simply had a contusion. Dr. Ashana indicated that she could return to work
with restrictions.3
In a December 19, 2019 development letter, OWCP informed appellant that additional
evidence was required to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and attached a questionnaire for her completion. OWCP
afforded appellant 30 days to submit the requested evidence.
OWCP subsequently received a September 5, 2019 lumbar spine magnetic resonance
imaging (MRI) scan interpreted by Dr. Kasim Ali, a Board-certified radiologist, which revealed a
central disc protrusion which impressed on the ventral thecal sac.
A December 16, 2019 e-mail from a coworker indicated that, on multiple occasions prior
to the alleged incident, appellant had related that she had problems with her back.
In a January 7, 2020 letter, the employing establishment asserted that appellant did not
immediately report her alleged injury and continued to case mail. It contended that she has a
preexisting back condition and argued that appellant’s medical documentation was insufficient to
establish a diagnosed medical condition and casual relationship.
A January 14, 2020 medical report by Dr. Michael Furman, Board-certified in physical
medicine and rehabilitation, noted that appellant presented with new symptoms of right lower
extremity numbness, tingling, and weakness. Dr. Furman related that on December 11, 2019
appellant was injured at work when she lifted a tub of spurs and felt shooting and aching pain in
3

On December 13, 2019 appellant accepted a limited-duty modified job offer.

2

her lower back. He stated that recently appellant developed pain radiating into her lower limbs,
posterior thighs, and calves that stopped at her ankle on her left side and at the dorsum of her foot
on her right side. Appellant’s pain was exacerbated with flexion, extension, reaching, weightbearing, standing, walking and driving and alleviated by laying prone. A physical examination
revealed tenderness in the lumbosacral spine and the bilateral posterior iliac spine, minimal pain
with extension and rotation, and positive slump for neural tension signs in the right lower limbs.
Dr. Furman indicated that on October 3, 2019 appellant received an injection in her lower back
and stated that appellant’s September 5, 2019 MRI scan of her lumbar spine revealed degenerative
disc disease of the L5-S1 disc with desiccation and protrusion and narrowing of the bilateral L5-S1
neural foramen, August 26, 2019 lumbar spine x-rays revealed scoliosis with minimal spondylosis
and narrowing of the L5-S1 foramen, and December 11, 2019 lumbar spine x-rays revealed slight
scoliosis and narrowing of the L5-S1 foramen. He diagnosed lumbar radiculopathy and opined
that appellant could continue working full-time with restrictions of sedentary work.
OWCP also received physical therapy notes.
By decision dated January 27, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish causal relationship between her
diagnosed back condition and her accepted December 11, 2019 employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including 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 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 whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and this component can be established only by medical evidence.8
4

Supra note 1.

5
F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).

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Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background. Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment incident.10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a lower back
condition causally related to the accepted December 11, 2019 employment incident.
Dr. Ashana’s December 13, 2019 medical report indicated that appellant complained of
left-sided low back pain that started two days prior when she bent over to pick something up and
felt pain and numbness. He related that appellant had a preexisting L5-S1 central disc bulge and
low back pain with associated radicular symptoms. Dr. Ashana diagnosed low back pain and
stated that he believed appellant simply had a contusion. As noted above, where a preexisting
condition exists involving the same body part, the medical evidence must differentiate the workrelated injury and preexisting condition.12 As Dr. Ashana did not specifically differentiate between
appellant’s preexisting condition and the effects of the accepted December 11, 2019 employment
incident, his report is insufficient to establish causal relationship.13
Dr. Furman’s January 14, 2020 medical report indicated that appellant presented with new
symptoms of right lower extremity numbness, tingling, and weakness. He related that on
December 11, 2019 appellant was injured at work when she lifted a tub of spurs and felt shooting
and aching pain in her lower back. Dr. Furman indicated that appellant’s September 5, 2019 MRI
scan of her lumbar spine revealed degenerative disc disease of the L5-S1 disc with desiccation and
protrusion and narrowing of the bilateral L5-S1 neural foramen, her August 26, 2019 lumbar spine
x-rays revealed scoliosis with minimal spondylosis and narrowing of the L5-S1 foramen, and her
December 11, 2019 lumbar spine x-rays revealed slight scoliosis and narrowing of the L5-S1
foramen, and additionally diagnosed lumbar radiculopathy. His opinion was conclusory in nature.
The Board has held that a medical opinion is of limited probative value if it is conclusory in

9

L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
12

Id.

13

See M.C., Docket No. 20-0125 (issued July 15, 2020).

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nature.14 A medical opinion must explain how the implicated employment factors physiologically
caused, contributed to, or aggravated the specific diagnosed conditions.15 As Dr. Furman did not
differentiate between appellant’s preexisting condition and the effects of the accepted
December 11, 2019 employment incident, and did not explain how physiologically the accepted
employment incident caused appellant’s low back conditions, his report is insufficient to establish
causal relationship.16
A December 11, 2019 medical report by Ms. Horrigan, a physician assistant, indicated that
appellant presented with a workers’ compensation back injury and diagnosed lumbar pain. The
Board has held, however, that certain healthcare providers such as physician assistants are not
considered physician[s] as defined under FECA.17 Consequently, their medical findings and/or
opinions will not suffice for purposes of establishing entitlement to FECA benefits.18 Thus, this
evidence is of no probative value and is insufficient to establish appellant’s claim.
Appellant also submitted physical therapy notes. The Board has held that reports signed
solely by a physical therapist are of no probative value as physical therapists are not considered
physicians as defined under FECA.19 These notes are therefore insufficient to establish appellant’s
claim.
Appellant additionally submitted a September 5, 2019 lumbar spine MRI scan. The Board
has held, however, that diagnostic studies, standing alone, lack probative value on the issue of
causal relationship as they do not provide an opinion on causal relationship between an
employment incident and a diagnosed condition.20
As appellant has not submitted sufficient medical evidence to establish a back condition
causally related to the accepted December 11, 2019 employment injury, the Board finds that she
has not met her burden of proof to establish her 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.

14

C.M., Docket No. 19-0360 (issued February 25, 2020).

15

Id.; see also K.G., Docket No. 20-0625 (issued November 6, 2020).

16

Supra note 12.

17

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

18

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). See also supra note 10 at 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.K., Docket No. 20-0049 (issued April 10, 2020) (a physician assistant is
not considered a physician as defined under FECA).
19

Id.

20

M.M., Docket No. 20-0019 (issued May 6, 2020).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted December 11, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the January 27, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 13, 2021
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Washington, DC, Employer
__________________________________________

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

Docket No. 07-1414
Issued: October 19, 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 May 1, 2007 appellant filed a timely appeal from October 6, 2006 and April 16, 2007
decisions of the Office of Workers’ Compensation Programs adjudicating his claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant has more than a one percent impairment of his right upper
extremity for which he received a schedule award.
FACTUAL HISTORY
On March 15, 2004 appellant, then a 30-year-old special agent, sustained an open wound
with tendon involvement to his right wrist. He was attempting to gain entry to a suspect’s room
to execute a search warrant. Appellant used a knife in order to avoid damaging the door but the
knife slipped, cutting his wrist. On April 5, 2004 he underwent surgery consisting of repair of

the superficial branch of his right wrist radial nerve. On August 11, 2004 appellant submitted a
claim for a schedule award.
In notes dated May 25, 2005, Dr. Nader Paksima, an orthopedic surgeon, stated that
appellant had full range of motion of his right wrist and hand. Appellant continued to have some
numbness of the superficial branch of the radial nerve and some irritation to palpation over the
neuroma. Dr. Paksima found that appellant had a 15 percent impairment of his right hand based
on the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment.1 He did not explain how he calculated the 15 percent impairment with reference to
specific sections or tables of the A.M.A., Guides.
In a report dated November 29, 2005, Dr. Joseph Lopez, an orthopedic surgeon and an
Office referral physician, stated that appellant had no feeling in the dorsal aspect of the first web
space of his right hand. He had some dull pain in bad weather over the dorsal aspect of the first
web space of his right hand. Dr. Lopez found that appellant had a five percent impairment of his
right upper extremity due to sensory deficit of the radial nerve, based on Figures 16-8 and 16-48
at pages 449 and 488 of the fifth edition of the A.M.A., Guides. However, it is not clear how he
calculated the five percent impairment.
The Office found a conflict between Dr. Paksima and Dr. Lopez and referred appellant to
Dr. Arnold M. Illman, a Board-certified orthopedic surgeon, for an impartial medical evaluation.
In a May 19, 1996 report, Dr. Illman reviewed the history of appellant’s condition and
provided findings on physical examination. He stated:
“[Appellant] complains of change in sensation over the dorsal aspect of the index
finger and thumb over the first dorsal web space. This change in sensation is
present up to the proximal end of the carpal bones. [Appellant] states that he has
normal sensation in the third, fourth and fifth fingers and that he has absence of
sensation in the first web space. He does not claim any weakness or change in
dexterity of the hand and is working at his regular job. In summary, [appellant]
complains of persistent paresthesia over [the] above named areas. He stated that
initially he had paresthesia extending over a larger area of the dorsum of his hand,
extending up through the third and fourth fingers. This has disappeared.
“I carefully reviewed multiple notes concerning [appellant’s] injury, including the
operative report, which stated that the superficial radial nerve was repaired at the
level just proximal to the wrist and that at this time he is undergoing no further
treatment.”
***
“[Appellant] was noted to have a healed scar over the distal end of the radial side
of the forearm and that he had diminution of light touch sensation over the
dorsum of his thumb and index finger, with absence of sensation to light touch
1

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

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over the first web space. It has extended proximally to just to the level of the
wrist. [Appellant] had normal range of motion and normal strength.
“I utilized the [A.M.A., Guides, fifth edition] in [appellant’s] evaluation.… [He]
… sustained damage to the superficial radial nerve…. This sensory deficit could
be considered a Grade 4, which rates it at a severity level of between 1 and 25
percent. I feel that since there is some sensation present and only a portion of the
superficial radial nerve is involved, I selected 12 [percent] as the amount of loss,
as noted. In order to determine the impairment value of the entire upper
extremity, Table 16-15 selects the number 5 [percent] and, therefore, when one
multiplies 5 [percent] by 12, I calculate a 0.6 [percent] impairment loss of the
right upper extremity. I did not factor in any motor deficit, as the nerve that was
damaged is a pure sensory nerve and [appellant] did not demonstrate any motor
weakness and demonstrated full range of motion of all the joints of his wrist and
hand.”
On May 30, 2006 an Office medical adviser2 noted that Dr. Illman indicated that
appellant had a Grade 4 sensory deficit of the superficial radial nerve of his right wrist.
Dr. Illman selected a 12 percent impairment from Table 16-10 at page 482 of the A.M.A.,
Guides. Multiplying 12 percent by the maximum of 5 percent for the superficial radial nerve
from Table 16-15 at page 492 constituted a 0.6 percent impairment, rounded to 1 percent. The
Office medical adviser noted that Dr. Illman did not find any motor deficit or range of motor
deficit.
On October 6, 2006 the Office granted appellant a schedule award for 3.12 weeks3 from
May 19 to June 9, 2006 based on a one percent impairment of his right upper extremity.
Appellant requested a telephone hearing that was held on February 8, 2007. By decision
dated April 16, 2007, an Office hearing representative affirmed the October 6, 2006 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulation5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
2

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).
3

The Act provides for 312 weeks of compensation for 100 percent loss or loss of use, of an upper extremity.
5 U.S.C. § 8107(c)(1). Multiplying 312 weeks by one percent equals 3.12 weeks of compensation.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

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determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.6
Section 8123(a) of the Act provides that, “if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
[of Labor] shall appoint a third physician who shall make an examination.”7 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.8
ANALYSIS
Dr. Paksima found that appellant had a 15 percent impairment of his right upper
extremity. Dr. Lopez found that he had a five percent impairment. The Office properly found a
conflict between Dr. Paksima and Dr. Lopez and referred appellant to Dr. Illman for an impartial
medical evaluation.
Dr. Illman reviewed the history of appellant’s condition and provided findings on
physical examination. He found that appellant had persistent paresthesia and diminution of light
touch sensation over the dorsal aspect of the index finger and thumb and over the first dorsal web
space. Dr. Illman had normal sensation in the third, fourth and fifth fingers but an absence of
sensation in the first web space. Appellant had no weakness or change in dexterity of his right
hand. He had normal range of motion and normal strength. Dr. Illman noted that appellant
sustained damage to his superficial radial nerve and rated his sensory deficit at Grade 4 which
provides for an impairment percentage between 1 and 25 percent. He selected 12 percent
because there was some sensation present and only a portion of the superficial radial nerve was
involved. Dr. Illman multiplied the 12 percent impairment from Table 16-10 at page 482 of the
A.M.A., Guides by the maximum of 5 percent for the superficial radial nerve from Table 16-15
at page 492 which constituted a 0.6 percent impairment, rounded to 1 percent. He explained that
he found no impairment due to motor deficit because the nerve that was damaged is a pure
sensory nerve and appellant did not demonstrate any motor weakness and had demonstrated full
range of motion of all the joints of his wrist and hand.
The Board finds that the report of Dr. Illman is based upon a complete and accurate
factual background. Dr. Illman provided thorough medical rationale in support of his
impairment rating of appellant’s right upper extremity and explained how he applied relevant
sections of the A.M.A., Guides. Therefore, his report is entitled to special weight and establishes
that appellant has no more than a one percent impairment of his right upper extremity.

6

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

7

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).
8

See Roger Dingess, 47 ECAB 123 (1995); Glenn C. Chasteen, 42 ECAB 493 (1991).

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CONCLUSION
The Board finds that appellant has no more than a one percent impairment of his right
upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 16, 2007 and October 6, 2006 are affirmed.
Issued: October 19, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
AUDIE L. MURPHY MEMORIAL VETERANS
HOSPITAL, San Antonio, TX, Employer
__________________________________________

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

Docket No. 18-0562
Issued: January 23, 2020

Case Submitted on the Record

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

JURISDICTION
On January 23, 2018 appellant filed a timely appeal from an October 27, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 27, 2017 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her breast
cancer was causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On April 4, 2017 appellant, then a 43-year-old sleep disorder technician, filed an
occupational disease claim (Form CA-2) alleging that she developed right breast cancer due to
working rotating day/night shifts in the performance of duty. On the reverse side of the claim
form, the employing establishment indicated that she had stopped work on January 12, 2016 and
returned to work on January 18, 2016. It noted that appellant no longer worked the night shift
(8:00 p.m. to 8:00 a.m.), and was strictly on a tour of duty with daytime hours.
In a report dated March 23, 2016, Dr. Amy S. Lang, a Board-certified internist, advised
that appellant was under her care for breast cancer. She explained that appellant had worked as a
sleep study technician for many years and had spent the last four to five years working both day
and night shifts. Dr. Lang noted that “[t]here is evidence that rotating night shifts increases the
risk of developing breast cancer” and referred to an attached study from the Journal of the National
Cancer Institute. She recommended that appellant work regular shifts without rotating between
days and nights.
In an April 13, 2017 report, Dr. Judith L. Thompson, a Board-certified general surgeon,
noted that appellant was diagnosed with breast cancer. She indicated that appellant was working
rotating day and night shifts and that this was “now known to have several negative health
outcomes, notably related to breast cancer.” Dr. Thompson advised that she was in agreement
with appellant’s medical oncologist that appellant work regular shifts without rotation.
On May 23, 2017 OWCP received a supplemental statement from appellant. Appellant
explained that, when she was interviewed for her current position, she was informed that her
schedule would be: three, 12-hour shifts at night; every other Thursday; and a day shift for 8 hours.
She explained that, after working the rotating shifts for a considerable amount of time, she and her
coworkers expressed their concerns about working these shifts. Appellant noted that she and her
coworkers suggested alternate schedule ideas to alleviate the rotation back and forth; however,
nothing was changed. She explained that she had always worked nights and enjoyed the night
shift, but switching back and forth was difficult. Furthermore, since working at the employing
establishment, appellant had a number of health problems that she believed were medically linked
to shift work. She noted that the International Agency for Research on Cancer of the World Health
Organization labeled the working shift a “probable” carcinogen.
By development letter dated May 25, 2017, OWCP informed appellant that additional
factual and medical evidence was necessary to support her claim. It advised her of the type of
medical and factual evidence needed to establish her claim and provided a questionnaire for her
completion. OWCP afforded appellant 30 days to submit the necessary evidence.
On June 9, 2017 OWCP received a statement from M.W., a supervisor, who reported that
appellant and the other technicians were informed that they would work a rotating schedule. She
2

also indicated that she was apprised of appellant’s condition in December 2015, and appellant was
eventually switched to a day shift.
OWCP received an article on diseases and shift work from a nurse training program and
an article on shift work related to light at night and the risk of breast cancer.
Additionally, OWCP received a January 29, 2016 operative report from Dr. Thompson,
who performed appellant’s mastectomy, and a January 5, 2017 operative report from Dr. Alan J.
White, a surgical oncologist, who performed laparoscopic robotic assisted bilateral salpingo
oophorectomy. It also continued to receive diagnostic studies and pathology reports.
In reports dated February 25, 2016 and February 14, 2017, Dr. Lang reiterated appellant’s
cancer diagnosis and that she had undergone a right breast mastectomy. She indicated that
appellant was a sleep technician who, after 20 years of working nights, spent the last four years on
both day and night shifts, which “she believes may have contributed to her breast cancer
diagnosis.” Dr. Lang advised that appellant was now working only day shifts. Furthermore, she
noted that appellant’s family history included that her deceased maternal grandmother had breast
cancer, and her deceased maternal grandfather had bladder cancer. Dr. Lang also added that
appellant had quit smoking six years ago, previously smoking half a pack a day for 10 years.
OWCP received a copy of appellant’s response to its development questionnaire. In a
statement, appellant recounted the onset of her breast cancer.
OWCP also received treatment notes from Dr. Regina Fearmonti, a Board-certified general
and plastic surgeon, dating from August 19, 2016 to April 24, 2017, confirming that appellant had
undergone breast reconstruction surgery.
In an April 13, 2017 report, Dr. Thompson related that she has treated appellant for breast
cancer. She related that it was her understanding that appellant was working rotating day and night
shifts and that this was now known to have several negative health outcomes, notably related to
breast cancer. Dr. Thompson concluded that she was in agreement with appellant’s oncologist that
appellant work regular shifts, without rotation.
By decision dated October 27, 2017, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that her condition was causally related to
the accepted factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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

3

Supra note 1.

3

time limitation of FECA,4 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.5 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.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of a disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.7
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. A physician’s opinion on whether there is causal relationship between the
diagnosed condition and the implicated employment factor(s) must be based on a complete factual
and medical background. Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factor(s).8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her breast
cancer was causally related to the accepted factors of her federal employment.
The relevant evidence includes a report dated March 23, 2016 from Dr. Lang, who advised
that appellant was under her care for breast cancer. Dr. Lang explained that appellant had worked
as a sleep study technician for many years and spent the last four to five years working both day
and night shifts. She noted that “[t]here is evidence that rotating night shifts increases the risk of
developing breast cancer” and referred to an attached study from the Journal of the National Cancer
Institute. The Board has held, however, that newspaper clippings, medical texts, and excerpts from
publications are of no evidentiary value in establishing the causal relationship between a claimed
condition and an employee’s federal employment. Such materials are of general application and
are not determinative of whether the specific condition claimed is related to the particular
4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
D.K., Docket No. 19-1034 (issued November 4, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

C.M., Docket No. 18-1516 (issued May 8, 2019); Beverly A. Spencer, 55 ECAB 501 (2004).

8

A.P., Docket No. 19-1158 (issued October 29, 2019); see J.R., Docket No. 17-1781 (issued January 16, 2018);
I.J., 59 ECAB 408 (2008).

4

employment factors alleged by the employee.9 Without explaining how, physiologically, these
employment duties caused or contributed to the diagnosed condition, Dr. Lang’s opinion on causal
relationship is of limited probative value.10
Likewise, in progress notes dated February 25, 2016 and February 14, 2017, Dr. Lang
advised that appellant was a sleep technician who, after 20 years of working nights, spent the last
4 years on both day and night shifts, which “she believes may have contributed to her breast cancer
diagnosis.” However, she merely repeated appellant’s opinion regarding the cause of appellant’s
condition and did not provide her own opinion on causal relationship.11 These progress notes are
therefore insufficient to establish causal relationship.
In an April 13, 2017 report, Dr. Thompson noted that appellant was working rotating day
and night shifts and that this was “now known to have several negative health outcomes, notably
related to breast cancer.” She agreed that appellant should work regular shifts without rotation.
However, Dr. Thompson did not provide rationale explaining how appellant’s specific work
schedule of rotating shifts caused or aggravated the diagnosed condition.12 Thus, this report is also
insufficient to establish causal relationship.
OWCP also received reports documenting appellant’s surgical procedures. However, these
reports provide no opinion regarding the cause of her breast cancer. Medical evidence that does
not offer an opinion regarding the cause of an employee’s condition is of no probative value on
the issue of causal relationship.13
Similarly, OWCP received diagnostic reports; however, the Board has held that diagnostic
studies lack probative value as they do not provide an opinion on causal relationship.14
Appellant also submitted a series of articles regarding breast cancer. As explained above,
the Board has held that newspaper clippings, medical texts, and excerpts from publications are of
no evidentiary value in establishing the causal relationship between a claimed condition and an
employee’s federal employment. Such materials are of general application and are not

9

See A.G., Docket No. 18-0281 (issued July 12, 2018); R.O., Docket No. 08-1133 (issued October 8, 2008);
William C. Bush, 40 ECAB 1064, 1075 (1989) (excerpts from publications lack probative value in resolving medical
questions unless a physician shows the applicability of the general medical principles discussed in the articles to the
specific factual situation in a case).
10

M.M., Docket No. 19-0061 (issued November 21, 2019); see L.M., Docket No. 14-0973 (issued August 25, 2014);
R.G., Docket No. 14-0113 (issued April 25, 2014); K.M., Docket No. 13-1459 (issued December 5, 2013); A.J.,
Docket No. 12-0548 (issued November 16, 2012).
11

C.N., Docket No. 14-1805 (issued December 8, 2014).

12

Supra note 8.

13

M.W., Docket No. 18-1624 (issued April 3, 2019); S.B., Docket No. 18-1296 (issued January 24, 2019).

14

See I.C., Docket No. 19-0804 (issued August 23, 2019).

5

determinative of whether the specific condition claimed is related to the particular employment
factors alleged by the employee.15
As appellant has not submitted rationalized medical evidence sufficient to establish causal
relationship between her breast cancer and the accepted factors of her federal employment, the
Board finds that she has not met her burden of proof.16
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her breast
cancer was causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

15

William C. Bush, 40 ECAB 1064, 1075 (1989).

16

Supra note 8.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
NATIONAL GUARD, McGUIRE AIR FORCE
BASE, NJ, Employer
__________________________________________

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

Docket No. 10-303
Issued: October 14, 2010

Case Submitted on the Record

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

JURISDICTION
On November 13, 2009 appellant filed a timely appeal of an August 14, 2009 decision of
the Office of Workers’ Compensation Programs affirming the termination of his compensation
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective January 7, 2009.
FACTUAL HISTORY
On February 13, 2007 appellant, then a 50-year-old electronic integrated systems
mechanic, filed a traumatic injury claim alleging that on February 9, 2007 he strained his
shoulder while lifting a navigation unit up a ladder. He stopped work on August 21, 2007 to

undergo surgery. Appellant returned to light duty on October 15, 2007. The Office accepted his
claim for right shoulder sprain. It paid compensation benefits.
Initial reports from Dr. John Salvo, a Board-certified orthopedic surgeon, diagnosed right
shoulder impingement, possible partial cuff tear and possible superior labral tear from anterior to
posterior (SLAP). He recommended right shoulder arthroscopy and SLAP repair, which he
performed on August 21, 2007. In an August 30, 2007 attending physician’s report, Dr. Salvo
diagnosed SLAP tear and adhesive capsulitis. He noted that appellant was totally disabled from
August 21 to November 21, 2007. Dr. Salvo advised that appellant could resume regular work
on November 21, 2007 but would decide if light duty was appropriate two months after the date
of surgery. In an October 11, 2007 work capacity evaluation, he indicated that appellant was not
able to perform his usual job. Dr. Salvo advised that appellant could perform desk work but no
use of the right upper extremity until November 21, 2007, then restricted duty.
On February 6, 2008 the Office referred appellant, with a statement of accepted facts, to
Dr. Zohar Stark, a Board-certified orthopedic surgeon, for a second opinion.1 In a May 8, 2009
report, Dr. Stark summarized appellant’s history of injury and noted his complaint of right
shoulder discomfort. His examination revealed that appellant was able to walk with a normal
reciprocating heel/toe gait. Appellant’s spine revealed no tenderness over the spinous process of
the cervical, thoracic or lumbosacral vertebrae. There was also no tenderness over the
paracervical, paradorsal or paralumbar muscles. Dr. Stark noted that the range of motion of the
cervical and lumbosacral spines was preserved and that there was no sensory or motor deficit to
the extremities. He found that the right shoulder had well-healed arthroscopic scars with some
tenderness over the lateral portal. Dr. Stark noted that appellant’s shoulder range of motion was
preserved except for the last 10 degrees of abduction and forward flexion. He also noted that
internal rotation was reduced by about 20 degrees compared to the left shoulder. Dr. Stark
indicated that impingement and apprehension tests were negative bilaterally. He reviewed
appellant’s medical records and diagnostic tests. Dr. Stark opined that there were no objective
findings to indicate that shoulder impingement still existed. He further opined that appellant’s
condition had resolved and there was no medical evidence that appellant suffered from any other
injury except a shoulder injury. Dr. Stark advised that appellant was not disabled by his workrelated injury and he could return to his preinjury position with no restrictions. He indicated that
no further medical treatment or testing was necessary. In a work capacity evaluation of the same
date, Dr. Stark indicated that appellant could perform his usual job.
In a May 30, 2008 report, Dr. Salvo noted that appellant was doing very well and had a
little trouble reaching up in the back. He diagnosed status post right shoulder SLAP repair.
Dr. Salvo indicated that appellant was cleared for full activity with no restrictions. He advised
that appellant return for a follow up in six months.
On June 3, 2008 appellant noted that he was filing a schedule award claim and submitted
Form CA-7 claiming a schedule award on July 28, 2008.

1

Appellant did not attend his scheduled appointment as he was in Ohio training for a new position. On May 2,
2008 the Office referred him for a rescheduled appointment with Dr. Stark.

2

In support of his schedule award claim, appellant submitted a March 17, 2008 report of
Dr. David Weiss, an osteopath specializing in family medicine, who provided a history of injury
and noted appellant’s complaint of right shoulder pain and stiffness and right arm weakness. He
also noted appellant’s report of exacerbated pain at work, difficulty with household chores and
self care and difficulty with overhead reaching and lifting with the right arm. Upon examination,
Dr. Weiss found that the right shoulder revealed well-healed portal arthroscopy scars. He found
anterior cuff tenderness and reported right shoulder range of motion measurements. Dr. Weiss
noted reviewing the medical records consisting of a February 20, 2007 magnetic resonance
imaging (MRI) scan and Dr. Salvo’s reports and physical therapy notes. He diagnosed posttraumatic acromioclavicular arthropathy with right shoulder impingement, glenoid labral tear
(SLAP lesion) to the right shoulder, chronic post-traumatic rotator cuff tendinopathy of the right
shoulder, status post subacromial decompression to the right shoulder and status post repair of
the glenoid labral tear of the right shoulder. Dr. Weiss opined that the February 9, 2007 work
injury caused the subjective and objective findings on examination. Based on the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A.,
Guides), appellant had 1 percent impairment for reduced right shoulder flexion, 10 percent
impairment for right shoulder resection arthroplasty, and 3 percent pain-related impairment for a
total of 14 percent right arm impairment. Dr. Weiss noted that appellant reached maximum
medical improvement on March 17, 2008.2
In a June 26, 2008 decision, the Office terminated appellant’s compensation benefits
effective that day finding the weight of the medical evidence supported no disability or need for
continued medical treatment due to the accepted injury as it had resolved. Appellant requested
an oral hearing on July 2, 2008.
In an October 15, 2008 decision, an Office hearing representative reversed the June 26,
2008 decision finding that the Office failed to issue a pretermination notice advising appellant
that his compensation benefits were being terminated.
On November 20, 2008 the Office issued a notice of proposed termination of appellant’s
compensation benefits finding that the weight of the medical evidence demonstrated that he had
no continued injury-related disability.
In a December 3, 2008 statement, appellant objected to the proposed termination
asserting that Drs. Salvo and Weiss noted that appellant still suffered from residuals of his work
injury. He further asserted that their opinions created a conflict with the second opinion
physician and that appellant should be referred to a referee examination. Appellant requested an
additional 30 days to submit medical evidence establishing that appellant suffered from residuals
of his work injury.
In a January 7, 2009 decision, the Office terminated appellant’s compensation benefits
effective that day finding that the Office did not receive any evidence sufficient to alter its
2

On January 12, 2009 an Office medical adviser reviewed Dr. Weiss’ report and concurred that appellant had 14
percent right arm impairment. In a May 28, 2009 decision, the Office issued appellant a schedule award for 14
percent impairment of the right arm. It paid him compensation for 43.68 weeks from March 17, 2008 to
January 16, 2009. Appellant has not appealed this decision.

3

recommendation to terminate compensation benefits. It also noted that Dr. Stark’s report
represented the weight of the medical evidence, and therefore, there was no conflict in medical
opinion.
On January 13, 2009 appellant requested an oral hearing that was held on May 29, 2009.
He requested that the Office reverse its decision denying compensation benefits as appellant
required continued medical treatment.
In an August 14, 2009 decision, an Office hearing representative affirmed the January 7,
2009 decision finding that the Office properly accorded the weight of the medical evidence to
Dr. Stark.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 After it has determined that an employee has disability
causally related to his federal employment, the Office may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, the Office must establish that the claimant no
longer has residuals of an employment-related condition, which requires further medical
treatment.6
ANALYSIS
The record reflects that appellant sustained an injury on February 9, 2007 to his right
shoulder. The Office accepted his claim for right shoulder sprain and authorized right shoulder
surgery. It terminated appellant’s compensation benefits effective January 7, 2009 based on the
report from Dr. Stark.
In a May 8, 2009 report, Dr. Stark noted the history of appellant’s February 9, 2007 work
injury and advised there were no objective findings to support that appellant’s right shoulder
impingement condition persisted. He supports his opinion by noting that his examination
revealed that the range of motion of the cervical and lumbosacral spines was preserved with no
sensory or motor deficit to the extremities. Dr. Stark also noted that appellant’s right shoulder
had well-healed arthroscopic scars with some tenderness over the lateral portal and that the range
of motion was generally preserved with some noted limitations. He further explained that
3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
4

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

5

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

6

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

4

impingement tests were negative bilaterally. After reviewing appellant’s record and conducting
his own examination, Dr. Stark determined that appellant’s work-related right shoulder condition
had resolved without residuals and without continued disability due to the work injury. He stated
that there were no objective findings to indicate that the accepted condition still existed.
Dr. Stark further determined that appellant could perform his preinjury position without
restrictions.
The Board finds that Dr. Stark’s report represents the weight of the medical evidence and
that the Office properly relied on his reports in terminating appellant’s benefits. Dr. Stark’s
opinion is based on proper factual and medical history and his report contained a detailed
summary of this history. Moreover, he analyzed this information in addition to his own
examination findings to reach a reasoned conclusion regarding appellant’s condition.7 Dr. Stark
found no basis on which to attribute any residuals or continued disability to his employment
injury.
Although the record contains other medical reports, none are sufficient to create a conflict
or overcome Dr. Stark’s report. Dr. Weiss’ March 17, 2008 report rated appellant’s permanent
impairment for schedule award purposes. He noted appellant’s report of exacerbated pain at
work, difficulty with household chores and self-care and difficulty with overhead reaching and
lifting with the right arm. Dr. Weiss’ examination revealed limited range of motion of
appellant’s right shoulder. He diagnosed post-traumatic acromioclavicular arthropathy with right
shoulder impingement, glenoid labral tear (SLAP lesion) to the right shoulder, chronic posttraumatic rotator cuff tendinopathy of the right shoulder, status post subacromial decompression
to the right shoulder and status post repair of the glenoid labral tear of the right shoulder.
Dr. Weiss broadly opined that the February 9, 2007 work injury caused the subjective and
objective findings on examination, but this is not relevant to the issue presently on appeal. He
did not provide any medical rationale explaining how these diagnosed conditions were the result
of appellant’s work-related injury.8 Moreover, Dr. Weiss’ report did not address whether further
treatment was required or discuss whether any work-related condition caused any disability for
work.
Additionally, Dr. Salvo in his May 30, 2008 report, supported full activity with no
restrictions.
There is no other medical evidence contemporaneous with the termination of appellant’s
compensation benefits which supports that he had any continuing employment-related condition.
Consequently, the weight of the medical evidence rests with Dr. Stark and establishes that
appellant had no residuals due to his accepted right shoulder condition.

7

See Naomi Lilly, 10 ECAB 560 (1959) (the opportunity for and thoroughness of examination, the accuracy and
completeness of the doctor’s knowledge of the facts and medical history, the care of analysis manifested and the
medical rationale expressed in support of the doctor’s opinion are factors which enter into the weight of an
evaluation).
8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

5

On appeal, appellant asserts that he is entitled to additional medical treatment as the
evidence does not establish that he recovered from residuals of his work injury. He asserts that
an impairment rating from Dr. Weiss and an Office medical adviser support that he still has
residuals of his work injury. As noted, the reports of Dr. Weiss and the Office medical adviser
only addressed appellant’s right shoulder condition as it pertained to calculating an impairment
rating for schedule award purposes. The physicians did not address the issue regarding whether
appellant’s right shoulder condition had resolved or whether he had any continued disability
from work or residuals requiring continuing medical treatment.9 Therefore these reports are of
limited probative value regarding whether appellant has continuing residuals of the work injury
that require medical treatment.10 Appellant also asserts that Dr. Stark’s report was contradictory
as he noted loss of range of motion of the right shoulder but opined that appellant’s condition
had resolved. As noted, Dr. Stark’s opinion that appellant’s right shoulder had resolved was
supported by objective findings. Although he noted some motion limitations, Dr. Stark did not
indicate that this caused any disability or need for continuing medical treatment.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective January 7, 2009.

9

See Lyle E. Dayberry, 49 ECAB 369 (1998) (disability is not synonymous with physical impairment which may
or may not result in an incapacity to earn wages).
10

See Gary L. Loser, 38 ECAB 673 (1987) (although the evidence indicated that appellant had sustained a
permanent impairment of his legs because of work-related thrombophlebitis, it did not demonstrate that his
condition prevented him from returning to his work as a chemist or caused any incapacity to earn the wages he was
receiving at the time of injury). See also B.S., 61 ECAB ___ (Docket No. 09-195, issued October 9, 2009) (a
termination of compensation based on a finding that a claimant no longer had residuals of any employment-related
condition did not preclude consideration of a schedule award for accepted conditions).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 14, 2009 is affirmed.
Issued: October 14, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Laredo, TX, Employer
__________________________________________

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

Docket No. 21-1110
Issued: March 3, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 8, 2021 appellant filed a timely appeal from a June 30, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish permanent impairment
of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On February 25, 2020 appellant, then a 40-year-old criminal investigator, filed a traumatic
injury claim (Form CA-1) alleging that on January 29, 2020, he injured his right wrist when
1

5 U.S.C. § 8101 et seq.

attempting to perform a bridge maneuver during survival training while in the performance of duty.
He asserted that he heard and felt something “pop” in his right wrist.
On May 14, 2020 OWCP accepted the claim for sprain of unspecified part of right wrist
and hand, and other instability of the right wrist.
In a May 21, 2020 report, Dr. Michael Jones, a Board-certified orthopedic surgeon
specializing in surgery of the hand, provided a history of injury and treatment. On examination of
the right upper extremity, he noted mild subluxation of the ulna with manipulation with the forearm
in full supination. Dr. Jones diagnosed a right wrist sprain. He recommended an MRI scan of the
right wrist to assess whether the TFCC remained detached at the insertion of the ulnar fovea.
A June 3, 2020 MRI scan of the right wrist demonstrated a TFCC tear at its ulnar
attachment with a small bony flake and fluid around the ulnar styloid, small central perforation of
the TFCC with fluid in the distal radioulnar joint, tears of the ulnar collateral and radial collateral
ligaments, thickening and mild intrasubstance increased thickening and mild intrasu bstance
increased signal in the extensor carpi ulnaris tendon compatible with tendinosis, and a small
amount of fluid in the carpometacarpal joint of the right thumb.
In a June 17, 2020 report, Dr. Jones noted that appellant experienced intermittent slight
soreness on the ulnar side of the right wrist, which appellant attributed to his return to full duty.
On examination, he found no abnormalities of the right wrist. Dr. Jones returned appellant to fullduty work with no restrictions.
In a June 17, 2020 Form OWCP-5c, Dr. Jones diagnosed a right wrist sprain with
instability. He returned appellant to full-duty work with no restrictions.
On June 17, 2020 Dr. Jones referred appellant for an impairment rating. On June 26, 2020
his office requested OWCP authorization for an impairment rating to be performed by Snowden
Orthopedic and Occupational Rehabilitation.
In a July 21, 2020 impairment rating, Thomas I. Washington, a physical therapist with
Snowden Orthopedic and Occupational Rehabilitation, reviewed a history of injury and treatment.
On examination of the right upper extremity, he observed right wrist flexion at 50 degrees, right
wrist extension at 40 degrees, radial deviation at 15 degrees, ulnar deviation at 25 degrees, forearm
supination at 75 degrees, and forearm pronation at 70 degrees. Appellant completed a QuickDASH
questionnaire, scored at 18. Mr. Washington provided an impairment rating referring to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),2 utilizing the diagnosis-based impairment (DBI) method, to find that, under
Table 15-3, page 396, the class of diagnosis (CDX) for TFCC injury with residual findings,
resulted in a class 1 impairment with a default value of eight. He assigned a grade modifier for
functional history (GMFH) of 1 according to Section 15.3a, page 406 of the A.M.A., Guides, based
on his clinical observations and functional history, a grade modifier for physical examination
(GMPE) of 1 according to Table 15-8, page 408, for minimal palpatory findings consistently
documents, and a grade modifier for clinical studies of (GMCS) of 1 for June 3, 2020 MRI findings
2

A.M.A., Guides (6 th ed. 2009). Table 15-3 is entitled “Wrist Regional Grid: Upper Extremity Impairments.”

2

according to Table 15-9, page 410. Applying the net adjustment formula, (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX), or (1-1) + (1-1) + (1-1) = 0, Mr. Washington calculated a net
adjustment of zero. He therefore found an eight percent permanent impairment of the right upper
extremity.
On September 9, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated September 16, 2020, OWCP advised appellant of the
additional evidence needed to establish his schedule award claim. It noted that the impairment
rating received was insufficient to support his claim as it had not been countersigned by a qualified
physician. OWCP requested that appellant submit his physician’s opinion as to whether appellant
had attained maximum medical improvement (MMI), the date MMI had been reached, the clinical
findings indicating that the employment condition had reached a fixed and stable state, a detailed
description of all pertinent findings, and a final rating of permanent impairment according to the
applicable criteria of the A.M.A., Guides. It afforded him 30 days to respond.
On October 14, 2020 Dr. Jones examined appellant, noted findings, and provided ROM
measurements of the hand and wrist. He opined that appellant had attained MMI. Dr. Jones
reviewed the impairment rating performed by Mr. Washington and concurred with the rating. He
maintained appellant on full duty with no physical restrictions.
On November 10, 2020 OWCP referred the case record, along with a statement of accepted
facts (SOAF) noting Mr. Washington’s July 21, 2020 impairment rating, to Dr. Arthur S. Harris,
a Board-certified orthopedic surgeon serving as a District Medical Adviser (DMA), for a
permanent impairment rating of the right upper extremity.
Dr. Harris submitted a May 11, 2021 report in which he found that appellant had attained
MMI as of the July 21, 2020 impairment evaluation. He reviewed Mr. Washington’s calculations
and references to the A.M.A., Guides, and concurred with the methodology and calculations as
presented. Dr. Harris found that appellant had eight percent permanent impairment of the right
upper extremity utilizing the DBI method, based on the diagnosed right wrist TFCC tear. He
commented that the range of motion (ROM) rating method would have also resulted in an eight
percent permanent impairment of the right upper extremity.
By decision dated June 30, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record did not support permanent impairment of a scheduled member
or function of the body.
LEGAL PRECEDENT
The schedule award provisions of FECA 3 and its implementing federal regulations, 4 set
forth the number of weeks of compensation payable to employees sustaining permanent
3

Supra note 1.

4

20 C.F.R. § 10.404.

3

impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage loss of a member shall be determined.
The method used in making such a determination is a matter which rests in the discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified
edition of the A.M.A., Guides, published in 2009. 5 The Board has approved the use by OWCP of
the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the
body for schedule award purposes. 6
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 7 OWCP’s procedures provide
that, to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the da te on which this
occurred, describes the impairment in sufficient detail so that it can be visualized on review, and
computes the percentage of impairment in accordance with the A.M.A., Guides.8
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment CDX, which is then adjusted by GMFH, GMPE, and GMCS. 9 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable. 11 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.12 Adjustments for functional history may be made if the evaluator determines that the

5

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
6

See K.J., Docket No. 19-1492 (issued February 26, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018);
Isidoro Rivera, 12 ECAB 348 (1961).
7

See T.H., Docket No. 19-1066 (issued January 29, 2020); D.F., Docket No. 18-1337 (issued February 11, 2019);
Tammy L. Meehan, 53 ECAB 229 (2001).
8

See 5 U.S.C. § 8101(19); J.K., Docket Nos. 19-1420 and 19-1422 (issued August 12, 2020); Francesco C.
Veneziani, 48 ECAB 572 (1997).
9

Supra note 2 at 383-492.

10

Id. at 411.

11

Id. at 461.

12

Id. at 473.

4

resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.13
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments. 14 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“Upon initial review of a referral for upper extremity impairment evaluatio n, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)15
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 17
ANALYSIS
The Board finds that appellant has established that he sustained eight percent permanent
impairment of the right upper extremity, warranting a schedule award.
The record establishes that on June 26, 2020, Dr. Jones, a Board-certified orthopedic
surgeon specializing in surgery of the hand, referred appellant for an impairment rating by
Snowden Orthopedic and Occupational Rehabilitation which was performed by Mr. Washington,
a physical therapist, on July 21, 2020. On October 14, 2020 Dr. Jones examined appellant, noted
13

Id. at 474.

14

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

15

Id.

16

Id.; see also H.H., Docket No. 19-1530 (issued June 26, 2020); A.G., Docket No. 18-0329 (issued July 26, 2018).

17

Supra note 5 at Chapter 2.808.6(f); J.M., Docket No. 20-0602 (issued October 8, 2021); P.W., Docket No.
19-1493 (issued August 12, 2020).

5

findings, and provided ROM measurements of the hand and wrist. He opined that appellant had
attained MMI. Dr. Jones reviewed the impairment rating performed by Mr. Washington and
concurred with the rating.18
Consistent with its procedures, OWCP properly referred the case record to Dr. Harris,
serving as DMA, for an opinion regarding appellant’s permanent impairment in accordance with
the sixth edition of the A.M.A., Guides.19 In his May 11, 2021 report, Dr. Harris agreed that
appellant had sustained an eight percent permanent impairment of the right upper extremity based
on the diagnosed TFCC tear.
The Board finds that the DMA, Dr. Harris, properly considered the findings contained in
the July 21, 2020 impairment evaluation, as reviewed and approved by Dr. Jones, and explained
that appellant’s current impairment was eight percent total permanent impairment of the right
upper extremity based on the diagnosed right wrist TFCC tear. In addition, the DMA properly
utilized the DBI method and considered the ROM method to rate appellant’s accepted upper
extremity condition pursuant to FECA Bulletin No. 17-06.
Therefore, the Board finds that appellant has established eight percent permanent
impairment of the right upper extremity, based upon the reports of Dr. Jones and DMA Dr. Harris.
Consequently, OWCP’s June 30, 2021 decision must be reversed, and the case returned to OWCP
for payment of the schedule award for an eight percent permanent impairment of the right upper
extremity.
CONCLUSION
The Board finds that appellant has established that he sustained eight percent permanent
impairment of the right upper extremity, warranting a schedule award.

18

The Board has held that a report may be considered as probative medical evidence when either signed or reviewed
by a qualified physician. Merton J. Sills, 39 ECAB 572, 575 (1988); see also D.J., Docket No. 21-0414 (issued
October 14, 2021); R.H., Docket No. 20-1684 (issued August 27, 2021); M.W., Docket No. 19-1667 (issued
June 29, 2020).
19

P.T., Docket No. 21-0138 (issued June 14, 2021); see S.C., Docket No. 20-0769 (issued January 12, 2021).

6

ORDER
IT IS HEREBY ORDERED THAT the June 30, 2021 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Alexandria, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1855
Issued: July 2, 2010

Case Submitted on the Record

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

JURISDICTION
On July 13, 2009 appellant filed a timely appeal from an April 30, 2009 merit 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 this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s medical
benefits on March 24, 2008 on the grounds that he had no disabling residuals of an October 8,
1994 employment injury. On appeal appellant asserts that his condition has worsened and he
cannot work.
FACTUAL HISTORY
On October 8, 1994 appellant, then a 42-year-old nursing assistant, filed a Form CA-1,
traumatic injury claim, alleging that he injured his lower back that day when he was slammed
against the wall by an agitated patient. The claim was accepted for lumbar strain and appellant

returned to modified duty.1 By decision dated October 17, 1995, the Office found that his actual
earnings as a modified nursing assistant fairly and reasonably represented his wage-earning
capacity, noting that he had zero loss and, in a September 10, 2004 decision, it determined that a
clerical assistant position fairly and reasonably represented his wage-earning capacity, again
noting a zero loss. By decision dated May 17, 2005, an Office hearing representative affirmed
the September 10, 2004 decision.2 Appellant stopped work on June 29, 2006, and began filing
CA-7 claims for compensation, beginning that day. He received wage-loss compensation for the
date June 29, 2006 only.
In a September 25, 2006 report, Dr. Robert E. Holladay, IV, a Board-certified orthopedic
surgeon, and Office referral physician, diagnosed lumbar strain/sprain with preexisting
degenerative disc disease and advised that appellant could work eight hours with permanent
restrictions. The employing establishment submitted an investigative report dated November 22,
2006 advising that appellant was under surveillance from November 18 to 22, 2006. The report
concluded that appellant was viewed running errands each day and showed no restrictions in his
movements. On November 28, 2006 Dr. Davidson disagreed with Dr. Holladay’s report and
recommended a functional capacity evaluation (FCE) and neurosurgical evaluation. She
continued to advise that appellant was totally disabled.
The Office determined that a conflict in medical evidence had been created regarding the
extent of appellant’s disability and work capabilities and on November 21, 2006 referred him to
Dr. David R. Willhoite, Board-certified in orthopedic surgery, who provided a December 11,
2006 report in which he diagnosed chronic lumbar strain with a chronic pain syndrome and
advised that appellant could work 32 hours a week with permanent restrictions. On January 24,
2007 the employing establishment offered appellant a modified position of medical support
assistant for 32 hours a week that was in agreement with Dr. Willhoite’s restriction and, in a
response dated January 25, 2007, appellant stated that he could not accept or decline the position
until it had been reviewed by Dr. Davidson. The Office determined that the offered position was
suitable and, by decision dated March 16, 2007, terminated appellant’s wage-loss compensation
and schedule award compensation benefits on the grounds that he declined an offer of suitable
work. He timely requested a hearing that was held on July 9, 2007.

1

Appellant initially returned to four hours of modified duty daily and on July 19, 1995 to eight hours of modified
duty. In 1999 he underwent nonemployment-related cervical spine surgery. Based on an April 13, 2004 report from
Dr. John P. Sandifer, an Office referral physician Board-certified in orthopedic surgery, appellant was detailed to a
light-duty medical assistant position on June 2, 2004.
2

On July 11, 2005 appellant began modified duty in a medical support position in the medical administrative
service, based on restrictions provided by Dr. Vanda Davidson, an attending Board-certified orthopedic surgeon, of
sitting and standing as tolerated, walking up to 1 hour; no pushing, pulling, squatting, climbing or twisting; no lifting
more than five pounds; reaching above shoulder up to 1.5 hours daily; and bending, stooping and kneeling up to 0.5
hours daily. Appellant also submitted reports from Dr. Stephen P. Katz, who practices pain management, in which
he noted appellant’s complaints of chronic neck and back pain and described his medication regimen. In reports
beginning on June 29, 2006, Dr. Davidson diagnosed a degenerative lumbar disc aggravated with prolonged sitting
and advised that appellant should be off work and that he could only work sedentary duty with sitting and standing
at liberty. An August 3, 2006 magnetic resonance imaging (MRI) scan of the lumbar spine was interpreted as
essentially negative with minimal disc bulges at L4-5 and L5-S1. In September 2006, appellant was seen by
Dr. Arsham Naalbandian, a Board-certified neurologist, who diagnosed persistent and progressive symptoms of pain
involving the low back and lower extremities with sensory involvement at L5. Electromyography (EMG) and nerve
conduction study on September 6, 2006 demonstrated possible mild L5 radiculopathy.

2

In a September 25, 2007 decision, an Office hearing representative remanded the case to
the Office, noting that the Office did not make a formal determination regarding appellant’s
claims for wage loss subsequent to June and July 2006. She found that the statement of accepted
facts provided Dr. Holladay did not discuss appellant’s physical requirements of either his
regular or light-duty jobs, noted that appellant was initially referred to Dr. Parsons for an
impartial evaluation and then to Dr. Willhoite without further explanation which would not allow
him to be considered an impartial specialist.3 The hearing representative concluded that, due to
the numerous problems in the record, the Office’s determination that the January 24, 2007 job
offer was suitable was premature, further noting that, because appellant received no wage-loss
compensation, the burden remained with him to prove his inability to work. She found that
appellant had not established that he was forced to work outside his restrictions and further noted
that the Office had the obligation to seek clarification from Dr. Holladay. Upon remand, the
Office was to seek employment information from the employing establishment, update the
statement of accepted facts to reflect the physical requirements of appellant’s regular and
modified duties and obtain a supplementary report from Dr. Holladay regarding appellant’s work
capabilities.
On November 9, 2007 the Office forwarded an updated statement of accepted facts to
Dr. Holladay and asked that he provide a report regarding appellant’s work capabilities.4 In a
December 3, 2007 report, Dr. Holladay advised that the September 25, 2006 evaluation did not
demonstrate any objective residual of the lumbar strain/sprain, that appellant’s ongoing clinical
complaints could only be explained as related to preexisting degenerative disc disease and that he
could physically perform the job duties of medical support assistant, the position offered on
January 24, 2007. In a December 6, 2007 report, Dr. Davidson noted appellant’s complaint of
aching, throbbing lower back pain, paraspinous muscle spasm on examination and positive
straight leg raising.
On December 27, 2007 the Office determined that a conflict in medical evidence had
been created regarding whether appellant continued to have residuals due to the October 8, 1994
employment injury, and referred him to Dr. John G. Andrew, a Board-certified orthopedic
surgeon, for an impartial evaluation. In a January 29, 2008 report, Dr. Andrew noted the history
of injury, his review of the medical records and appellant’s complaint of continuous back pain
with radiation to both lower extremities. He provided physical examination findings, advising
that there was no muscle spasm or tenderness noted. Active straight leg raising was positive and
passive straight leg raising negative. All joints of the lower extremities demonstrated full normal
range of motion and appellant walked on his heels and toes without difficulty. Dr. Andrew
reported that appellant complained of hyposthesias in a stocking distribution of the left lower
extremity from the waist to the toes and found no other sensory deficits. Deep tendon reflexes
and the lower extremities were symmetrical and equal. In answer to specific Office questions,
Dr. Andrew advised that there were no clinical or objective findings of lumbar strain and that the
record did not support a material worsening of appellant’s work-related condition. He concluded

3

An Office appointment schedule notification form found in the record identifies the physician as “Dr. Parsons.”
On that same day, the Office referred appellant to Dr. Willhoite.
4

The statement of accepted facts included a description of the physical requirements of the medical support
position appellant was performing when he stopped work and the physical requirements of the medical support
assistant position he was offered on January 24, 2007.

3

that, based on his examination, there was no objective evidence to prevent appellant from acting
as a normal uninjured man.5
On February 22, 2008 the Office proposed to terminate appellant’s compensation benefits
on the grounds that the medical evidence, as characterized by Dr. Andrew’s report, established
that he no longer suffered disabling residuals due to the accepted lumbar strain. It noted that
appellant failed to participate in a scheduled FCE but that this examination was not necessary
because Dr. Andrew provided an unequivocal and well-rationalized medical opinion.6 A
March 3, 2008 FCE noted that appellant demonstrated inconsistent effort but that he could safely
work an eight-hour day in a light physical demand position with restrictions to prolonged sitting,
standing, bending and stooping and that he be allowed frequent postural breaks. In a March 3,
2008 work capacity evaluation, Dr. Andrew advised that appellant could work eight hours daily
in a light category, with sitting, walking and standing limited to four hours continuously and no
bending or stooping. Appellant did not respond to the proposed termination and, by decision
dated March 24, 2008, the Office finalized the termination of appellant’s medical and wage-loss
benefits.
On August 22, 2008 appellant, through his attorney, requested reconsideration and
submitted treatment notes from Dr. Davidson dated March 11, 2008 through April 23, 2009 in
which the physician advised that appellant had been followed by her since 1994. She advised
that appellant was retired and that he complained of persistent radiating back pain, worse in cold
weather and with standing, occasional numbness and tingling in both feet, burning and stinging
of the legs at night and muscle cramps, and that he was unable to do a lot of things around the
house that he would like to. Examination findings included paraspinous muscle spasm,
decreased back range of motion and low back soreness. In reports dated April 15, 2008 to
March 31, 2009, Dr. Katz noted appellant’s ongoing complaints of neck and low back
discomfort. He diagnosed intervertebral disc disease with L5 radiculopathy and failed back
syndrome and described appellant’s medication regimen for pain relief.
In a merit decision dated April 30, 2009, the Office denied modification of the March 24,
2008 decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment. Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To

5

Appellant was also scheduled for an FCE following his evaluation by Dr. Andrew, but he did not attend the test,
and by letter dated January 30, 2008 was advised to reschedule the examination within 15 days or face suspension of
benefits. By decision dated February 19, 2008, the Office finalized the proposed suspension. In a February 14,
2008 letter received by the Office on February 20, 2008, appellant’s attorney stated that appellant was told by
Dr. Andrew’s office manager that he was free to go after his examination and he then returned home.
6

Id.

4

terminate authorization for medical treatment, the Office must establish that appellant no longer
has residuals of an employment-related condition, which require further medical treatment.7
Section 8123(a) of the Federal Employees’ Compensation Act8 provides that if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.9 When the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.10
ANALYSIS
The Office, in its March 24, 2008 and April 30, 2009 decisions, indicated that it was
terminating appellant’s compensation and entitlement to medical treatment. As the Office was
not paying him compensation, however, it improperly characterized the issue as termination of
wage-loss compensation. The issue is whether appellant has residuals of his employment injury
entitling him to further medical treatment.
The Board finds that the Office met its burden of proof to terminate appellant’s medical
benefits on March 24, 2008. The accepted condition is lumbar strain due to an October 8, 1994
employment injury. The Office determined that a conflict in medical evidence had been created
regarding whether appellant continued to have residuals of the employment injury and properly
referred him to Dr. Andrew, Board-certified in orthopedic surgery, for an impartial evaluation.
In a January 29, 2008 report, Dr. Andrew noted the history of injury, his review of the medical
records and appellant’s complaint of continuous back pain. He provided physical examination
findings and advised that there were no clinical or objective findings of lumbar strain, that the
record did not show a worsening of appellant’s work-related condition and concluded that, based
on his examination, there was no objective evidence to prevent appellant from acting as a normal
uninjured man.
The Board finds that, as Dr. Andrew provided a comprehensive, well-rationalized opinion
in which he clearly advised that there were no clinical or objective findings of lumbar strain, that
the record did not support a material worsening of appellant’s work-related condition and that,
based on his examination, there was no objective evidence to prevent appellant from acting as a
normal uninjured man, his opinion is entitled to the special weight accorded an impartial
examiner and constitutes the weight of the medical evidence.11 The Office therefore properly
terminated appellant’s medical benefits on March 24, 2008.12

7

Fred Simpson, 53 ECAB 768 (2002).

8

5 U.S.C. §§ 8101-8193.

9

Id. at § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

10

Manuel Gill, 52 ECAB 282 (2001).

11

See Sharyn D. Bannick, 54 ECAB 537 (2003).

12

Manuel Gill, supra note 10.

5

CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s medical
benefits effective March 24, 2008.13
ORDER
IT IS HEREBY ORDERED THAT the April 30, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 2, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

The Board notes that the Office has not adjudicated appellant’s claim for compensation for the period after he
stopped work on June 29, 2006. The record indicates that in a September 10, 2004 decision, the Office determined
that his clerical position fairly and reasonably represented his wage-earning capacity, noting a zero loss. Office
procedures provide that if a formal loss of wage-earning capacity decision has been issued, the rating should be left
in place unless the claimant requests resumption of compensation for total wage loss. In that instance, the claims
examiner will need to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity.” Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining WageEarning Capacity, Chapter 2.814.9(a) (December 1995). Once the wage-earning capacity of an injured employee is
determined, a modification of such determination is not warranted unless there is a material change in the nature and
extent of the injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated, or the
original determination was, in fact, erroneous. The burden of proof is on the party attempting to show a
modification of the wage-earning capacity determination. Stanley B. Plotkin, 51 ECAB 700 (2000).

6