United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., claiming as widower of H.P., Appellant
and
TENNESSEE VALLEY AUTHORITY,
WESTERN AREA RADIOLOGICAL
LABORATORY, Muscle Shoals, AL, Employer
__________________________________________

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

Docket No. 13-82
Issued: April 18, 2013

Case Submitted on the Record

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

JURISDICTION
On October 16, 2012 appellant, through her attorney, filed an appeal of a merit decision
of the Office of Workers’ Compensation Programs (OWCP) dated August 7, 2012. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that the employees’ death was causally
related to factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated April 13, 2011, the
Board set aside OWCP’s January 13, 2010 decision which denied appellant’s claim for survivor
1

5 U.S.C. §§ 8101-8193.

benefits and remanded the case due to a conflict in medical evidence.2 The Board found a
conflict in medical opinion existed between Dr. J. Alan Barksdale, the examining Board-certified
pathologist, and Dr. Mangesh Shukla, a Board-certified gastroenterologist, for appellant and
Dr. Ann MacIntyre, a Board-certified infectious disease specialist and OWCP referral physician,
on the issue of whether the employees’ death was causally related to her federal employment.
The facts and history as set forth in the Board’s previous decision is hereby incorporated by
reference.
The employee, a radiological chemist, died on November 19, 2005 at the age of 26. The
death certificate listed the cause of death as acute hemorrhage laryngotracheolbronchitis due to
or as a consequence of toxic shock syndrome and Waterhouse-Friderichsen syndrome. The
November 19, 2005 final pathology report showed nonspecific inflammatory involvement with a
very superficial infiltrate of lymphoid cells and rare plasma cells in the larmina propria.
Appellant, the employee’s husband, filed a claim for survivor’s benefits (Form CA-5) on
September 10, 2006 alleging that the employee was exposed to toxic fumes during the course of
her employment and that this exposure caused or contributed to her death. He asserted that she
handled a wide range of strong acids on a regular basis during the course of her work and that
she had increasing problems over time with respiratory infections and sore throats. Appellant
stated that the employee symptoms worsened when she was at work and improved when she was
away from the laboratory.
Following the Board’s April 13, 2011 decision, OWCP, by letters dated June 14 and
October 26, 2011, referred the employee’s case file and medical records, including an updated
statement of accepted facts and list of questions, to Dr. Stephen Threlkeld, an infectious disease
specialist, for an impartial medical examination.
In a January 17, 2012 medical report, Dr. Threlkeld detailed the factual and medical
history upon his review of the medical records and provided his analysis. He noted that while
there were two witnessed episodes of exposure to toxic fumes in her work area, no episodes were
described within a year of the employee’s death and any opinion based on exposure based on a
chronic basis was a matter of speculation. He reviewed the employee’s autopsy results and noted
there was no lung parenchymal inflammation or mention of any nasal or oropharyngeal mucosal
irritation, but gram-positive cocci were seen in the inflamed tracheal mucosa. Though more
recent unreported fume exposure could have occurred, Dr. Threlkeld stated that he would have
expected additional upper airway and distal airway irritation rather than a well demarcated area
of inflammation in the trachea and bronchi. He noted that the employee had pneumonia in
July 2005 and had recovered nicely with antibiotics. Dr. Threlkeld stated that she had
complained of indigestion, epigastric pain, heartburn and diarrhea. He stated that the employee’s
symptoms were blunted by Nexium and that a computerized tomography (CT) scan of
November 18, 2005 was negative. Dr. Threlkeld stated that when the November 18, 2005
surgery was performed, only small antral erosion was seen. He noted that the employee had
denied symptoms of various conditions during a gastrointestinal examination on November 7,
2005 and that no prior immune system evaluation had been done, although chronic adrenal
insufficiency appeared likely, which would make her vulnerable to systemic infection.
2

Docket No. 10-1345 (issued April 13, 2011).

2

Dr. Threlkeld noted an indication of infection in September when she complained of nasal
stuffiness and bronchitis. He concluded that the employee died from overwhelming infection
with sepsis and resulting arrhythmia. Appellant’s deterioration from tracheobronchitis to
septicemia probably was made more rapid by underlying adrenal insufficiency. Dr. Threlkeld
stated that there was no data to suggest clearly that the employee’s work exposure contributed to
her death. He advised that her medical history was complicated and there was no way to be sure
that there was no recent workplace exposure to toxic fumes and the record contained no data
consistent with recent workplace toxic fume exposure. Dr. Threlkeld explained for the reasons
he noted, he would have expected additional findings on autopsy and history if such inhalation
had played a significant role in her demise.
By decision dated February 24, 2012, OWCP denied appellant’s claim for survivor
benefits. It found that Dr. Threlkeld’s report was entitled to special weight accorded an impartial
medical specialist in establishing that the employee’s death was not causally related to the
established employment-related chemical exposure.
On March 14, 2012 appellant requested a telephone hearing before an OWCP hearing
representative, which was held on June 8, 2012.
In a May 25, 2012 report, Dr. Shukla noted that he had seen the employee beginning
July 10, 2002 through November 18, 2005. He stated that she had initially been seen for
heartburn, epigastric pain and nausea. Dr. Shukla noted that the employee had declined a
colonoscopy and gastroscopy in 2002, but underwent the procedures on November 18, 2005. He
termed the procedure uneventful. Dr. Shukla noted that a CT scan of the abdomen was normal
and that the employee had developed respiratory failure and expired on November 19, 2005. He
stated that her pain receptors could not distinguish between esophageal and tracheal pain and
acid blockers therefore did not help her symptoms, which had worsened since 2002. Dr. Shukla
stated that this further supported Dr. Barksdale’s opinion that the employee’s erosive
laryngotracheobronchitis was chronic in nature. He stated that exposure to sulfuric acid fumes
causes permanent damage to the trachea and airways and also causes laryngotracheobronchitis.
Dr. Shukla noted that the material safety data sheets (MSDS) state that the effects of exposure
may be delayed. He concluded that since the employee’s body could not distinguish between
esophageal and tracheal pain, her work exposure contributed to laryngotracheobronchitis and her
death.
By decision dated August 7, 2012, OWCP’s hearing representative affirmed the
February 24, 2012 decision. He found that Dr. Shukla’s May 25, 2012 report was not sufficient
to outweigh Dr. Threlkeld’s impartial medical opinion.
LEGAL PRECEDENT
An award of compensation in a survivor’s claim may not be based on surmise, conjecture
or speculation or an appellant’s belief that the employee’s death was caused, precipitated or
aggravated by the employment.3 Appellant has the burden of establishing by the weight of the
reliable, probative and substantial medical evidence that the employee’s death was causally
3

Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).

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related to an employment injury or to factors of his employment. As part of this burden, she
must submit a rationalized medical opinion, based upon a complete and accurate factual and
medical background, showing a causal relationship between the employee’s death and an
employment injury or factors of his federal employment. Causal relationship is a medical issue
and can be established only by medical evidence.4
The medical evidence required to establish causal relationship is rationalized medical
evidence. Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between an
employee’s diagnosed conditions and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the employee’s death and the accepted conditions or
employment factors identified by the employee.5
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.6 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
properly 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 proper factual and
medical background, must be given special weight.7
ANALYSIS
The Board previously found a conflict in medical opinion existed between the reports of
Drs. Barksdale and Shukla for appellant and Dr. MacIntyre for OWCP and remanded the case for
referral of the case file to an impartial medical specialist and to issue a de novo decision. On
remand, OWCP referred appellant to Dr. Threlkeld for an impartial medical evaluation.
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Threlkeld. In a January 17, 2012 report, Dr. Threlkeld reviewed the medical evidence and a
statement of accepted facts. He noted that OWCP had accepted two episodes of exposure to
toxic fumes but no episodes were described within a year of her death. Dr. Threlkeld reviewed
the employee’s autopsy results and medical history and noted what findings were missing if the
employee had had exposure based on a chronic basis. He concluded that the employee died from
overwhelming infection with sepsis and resulting arrhythmia. Appellant’s deterioration from
tracheobronchitis to septicemia probably was made more rapid by underlying adrenal
insufficiency. He stated that there was no data to suggest clearly that the employee’s work
exposure contributed to her death. Appellant noted that while her medical history was
4

Umberto Guzman, 25 ECAB 362 (1974); Mary J. Briggs, 37 ECAB 578 (1986).

5

Donna L. Mims, 53 ECAB 730 (2002).

6

5 U.S.C. § 8123(a). See also Raymond A. Fondots, 53 ECAB 637 (2002).

7

B.P., Docket No. 08-1457 (issued February 2, 2009); Gloria J. Godfrey, 52 ECAB 486 (2001).

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complicated and there was no way to be sure that there was no recent workplace exposure to
toxic fumes, he would have expected additional findings on autopsy and history if such
inhalation of workplace exposure on a chronic basis had played a significant role in her demise.
He did not indicate any basis on which to attribute the employee’s death to workplace exposures.
As noted, a reasoned opinion from a referee examiner is entitled to special weight.8 The
Board finds that Dr. Threlkeld provided a well-rationalized opinion based on a complete
background, an extensive and thorough review of the accepted facts and the medical record,
including autopsy findings. Dr. Threlkeld’s opinion that the employee did not sustain a medical
condition causally related to her accepted work-related exposure to toxic fumes is entitled to
special weight and represents the weight of the evidence.9
OWCP received a May 25, 2012 report from Dr. Shukla, who opined that the employee’s
work exposure contributed to laryngotracheobronchitis and her death. Dr. Shukla stated that the
employee pain receptors could not distinguish between esophageal and tracheal pain and the acid
blockers did not help her symptoms, which had worsened since 2002. He stated that this
supported that the employee’s erosive laryngotracheobronchitis was chronic in nature. While
Dr. Shukla provided a new reason to explain the cause of the employee’s burning chest pain, he
appears to rely on an opinion from Dr. Barksdale and did not detail the medical processes on
which this opinion was based. Dr. Shukla’s opinion also is premised on a finding that she had
chronic erosive laryngotracheobronchitis. Dr. Threlkeld clearly stated it was a matter of
speculation that any exposure to toxic fumes on a chronic basis could have been related to the
employee’s death as there were only two witnessed episodes of exposure to toxic fumes in her
work area and no episodes were described within a year of her death. Dr. Shukla, along with
Dr. Barksdale, was also on one side of the conflict that Dr. Threlkeld resolved. The Board finds
that the additional report from Dr. Shukla is insufficient to overcome the weight accorded
Dr. Threlkeld as the impartial medical examiner or to create a new conflict.10
For these reasons, appellant did not show that the employee’s death on November 19,
2005 was causally related to the established work-related events and OWCP properly denied the
claim for survivor’s benefits.
On appeal, counsel contended, without explanation, that OWCP’s decision was contrary
to fact and law. For reasons stated above, the Board finds that appellant did not submit sufficient
evidence establishing that the employee sustained an injury causally related to the accepted
work-related chemical exposure.
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.
8

Id.

9

Id.

10

See Jaja K Asaramo, 55 ECAB 200, 205 (2004) (submitting a report from a physician who was on one side of a
medical conflict that an impartial specialist resolved is, generally, insufficient to overcome the weight accorded to
the report of the impartial medical examiner or to create a new conflict).

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that the
employee’s death on November 19, 2005 was causally related to the established work-related
events.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 7, 2011 is affirmed.
Issued: April 18, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
ENVIRONMENTAL PROTECTION AGENCY,
REGION III, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 12-1808
Issued: March 15, 2013

Case Submitted on the Record

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

JURISDICTION
On August 29, 2012 appellant, through her attorney, filed a timely appeal of the June 13,
2012 decision of the Office of Workers’ Compensation Programs (OWCP) which affirmed the
denial of her claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty.
FACTUAL HISTORY
On October 27, 2011 appellant, then a 41-year-old environmental engineer, filed a
traumatic injury claim alleging that, on October 26, 2011, she injured her back while going
through a defective security turnstile gate. She did not stop work.
1

5 U.S.C. §§ 8101-8193.

Appellant was treated in an emergency room by a nurse practitioner on October 26, 2011.
She was diagnosed with back pain and muscle spasm. The nurse practioner prescribed Naprosyn
and Valium and recommended that appellant follow up with her treating physician. In an
attending physician’s report dated November 4, 2011, Dr. Laura Picciano, an osteopath, noted
that appellant reported tripping over a bar at her workplace. Her history was significant for
degenerative joint disease and a prior motor vehicle accident. Appellant reported fully
recovering from the automobile accident prior to this injury. Dr. Picciano noted with a
checkmark “yes” that appellant’s condition was caused or aggravated by an employment activity.
She opined that appellant was totally disabled from October 26 to December 7, 2011 and could
return to regular duty on December 8, 2011. Appellant underwent a magnetic resonance imaging
(MRI) scan of the lumbar spine on November 2, 2011 which revealed multilevel degenerative
changes of the lower lumbar spine with central disc bulges at L3-4, L4-5 and L5-S1. An MRI
scan of the cervical spine dated November 2, 2011 revealed degenerative changes of the cervical
spine with central disc bulges at C3-4 and C4-5. Appellant submitted a November 10, 2011
referral slip for physical therapy from Dr. Jay Zampini, a Board-certified orthopedic surgeon.
She underwent physical therapy on November 17, 2011.
By letter dated November 18, 2011, OWCP advised appellant of the evidence needed to
establish her claim. It requested that she submit a physician’s reasoned opinion addressing the
causal relationship of her claimed back condition to the October 26, 2011 incident.
Appellant submitted a November 29, 2010 MRI scan of the cervical spine showing a C45 subligamentous disc herniation paramedian to the right, C3-4 disc protrusion, and minimal
cervical spondylosis at C2-3, C6-7 and C7-T1. A November 29, 2010 MRI scan of the lumbar
spine revealed spondylosis at L3, L4-5 and L5-S1 with disc protrusions and stenosis with a small
annular tear at L5-S1.
On November 30, 2010 appellant was treated by Dr. Francis A. Kralick, an osteopath, for
low back pain which originated in 2005. Dr. Kralick noted that motor strength was normal and
sensation was diminished over the left lateral aspect of the leg. He diagnosed L5-S1
radiculopathy secondary to disc protrusion, disc bulging at L4-5 and L5-S1, cervical spine
compression without myelopathy and mechanical low back. In a November 4, 2011 attending
physician’s report, Dr. Picciano diagnosed cervical and lumbar spine degenerative disc disease
and cervical and lumbar strain. She noted that appellant reported tripping over a door at work on
October 26, 2011 and injuring her back. Dr. Picciano noted that appellant had preexisting
degenerative disc disease and a history of a motor vehicle accident from which she reported
being fully recovered. She checked a box “yes” that the condition was caused or aggravated by
work activity and noted that the injury occurred during ambulation at work. Dr. Picciano noted
that appellant was totally disabled from October 26 to November 7, 2011. Appellant also
submitted physical therapy notes.
The employing establishment submitted treatment notes from an employing
establishment nurse who saw appellant on October 26, 2011 for low back pain. Appellant
reported getting caught in the turnstile doors. The nurse recommended ibuprofen. On the same
day, appellant reported the pain was not resolving and she was referred to Hahnemann Hospital
for evaluation. The employing establishment also submitted two DVD discs from a security
camera on October 26, 2011 showing appellant at the first floor security gate. A witness

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statement from Sergeant Robert Conway noted that, on October 26, 2011, he witnessed appellant
approach the gates which opened only half way and then stopped.
A July 25, 2011 MRI scan of the lumbar spine revealed three disc abnormalities in the
lower lumbar spine from L3-4 through L5-S1, no change in the central protrusion at L3-4 and
L4-5, with a small right central herniation at L5-S1 equal or smaller than previously seen. A
July 25, 2011 MRI scan of the cervical spine showed unchanged central herniation at C3-4 with
cord impingement, small right central disc herniation at C4-5 with cord impingement slightly
decreased and slight bulging at C7-T1.
A November 25, 2011 attending physician’s report from Dr. Picciano diagnosed C4-5
and L5-S1 spinal stenosis.
Appellant reported crashing into the turnstile doors on
October 26, 2011. Dr. Picciano checked a box “yes” that appellant’s condition was caused or
aggravated by her work. She opined that appellant was totally disabled since October 26, 2011
and her condition was uncertain due to myelopathy and worsening degenerative joint disease. In
a December 9, 2011 report, Dr. Picciano noted treating appellant since 2007. Appellant
presented on October 28, 2011 and reported that while at work she walked through a turnstile
door which malfunctioned causing her to strike the door and experience shooting back pain. She
noted recovering from her prior back injuries before the work accident in October 2011.
Dr. Picciano noted findings upon examination of limited range of motion of the cervical and
lumbar spine secondary to pain with no focal weakness. She diagnosed cervical and lumbar
strain with a history of degenerative disc disease. Dr. Picciano opined that appellant aggravated
her herniated disc from a previous injury and had increased impingement of the spinal cord and
radiculopathy.
In a statement dated December 4, 2011, appellant noted that on October 26, 2011 while
exiting the security doors at the employing establishment she approached the doors and they
stopped only part way open and she impacted the stationary doors. She reported shooting pain
through the low back into the legs. Appellant noted a preexisting back injury including herniated
discs and pain.
On December 30, 2011 OWCP denied appellant’s claim on the grounds that the medical
evidence was insufficient to establish that her back condition was related to the October 26, 2011
incident.
On January 9, 2012 appellant requested a telephonic oral hearing which was held on
March 5, 2012. She submitted physical therapy notes from November 17 to December 15, 2011,
previously of record.
In a decision dated June 13, 2012, an OWCP hearing representative affirmed the
December 30, 2011 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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 filed within the applicable time limitation

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of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or occupational disease.2
To determine whether an employee actually sustained an injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.3 The second component of fact of
injury is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6
ANALYSIS
OWCP accepted that appellant worked as an environmental engineer and that on
October 26, 2011 as she struck security doors at work. On November 18, 2011 it advised her of
the medical evidence needed to establish her claim. The Board finds that appellant did not
submit a sufficient medical evidence from a physician explaining how the October 26, 2011
work incident caused or aggravated her back condition.
In a December 9, 2011 report, Dr. Picciano noted a history of injury and diagnosed
cervical and lumbar strain with a history of degenerative disc disease. She opined that appellant
aggravated a herniated disc from a prior injury and had increased impingement of the spinal cord
2

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

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Id.

5

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

6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

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and radiculopathy. Although Dr. Picciano generally supported causal relationship, she did not
explain the basis of her conclusion regarding the causal relationship between appellant’s
herniated disc, impingement of the spinal cord and radiculopathy and the October 26, 2011 work
incident.7 Dr. Picciano did not explain the nature by which appellant struck the turnstile or the
reason such incident contributed to appellant’s preexisting degenerative disease. She did not
address other nonwork factors, including a prior motor vehicle accident in which she sustained
lumbar and cervical conditions. In a November 4, 2011 attending physician’s report,
Dr. Picciano noted that appellant reported tripping over a bar at her workplace on
October 26, 2011, a history different than striking a turnstile door. She diagnosed cervical and
lumbar spine degenerative disc disease and cervical and lumbar strain. Dr. Picciano checked a
box “yes” that the condition was caused or aggravated by her work, noting that the injury
occurred during ambulation at work. In a November 25, 2011 attending physician’s report, she
diagnosed C4-5 and L5-S1 spinal stenosis and checked a box “yes” that appellant’s condition
was employment related. The Board has held that an opinion on causal relationship which
consists only of a physician checking “yes” to a medical form report question on whether the
claimant’s condition was related to the history given is of little probative value. Without any
explanation or rationale for the conclusion reached, such report is insufficient to establish causal
relationship.8
The other medical reports submitted by appellant are insufficient to establish her claim as
they either predate the claimed October 26, 2011 incident or do not address whether the
October 26, 2011 work incident caused or aggravated her back condition.
Appellant also submitted records from nurses. However, this evidence is of no probative
medical value. The Board has held that nurses are not competent to render a medical opinion
under FECA.9 Likewise, evidence records from physical therapists are of no probative medical
value in establishing appellant’s claim.10 Therefore, these reports are insufficient to meet
appellant’s burden of proof.
For these reasons, OWCP properly found that appellant did not meet her burden of proof
in establishing her claim.

7

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
8

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

9

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law).
10

See id.; Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that a medical opinion, in
general, can only be given by a qualified physician).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment.
ORDER
IT IS HEREBY ORDERED THAT the June 13, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Minneapolis, MN,
Employer
__________________________________________

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

Docket No. 21-1308
Issued: March 30, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 9, 2020 appellant filed a timely appeal from a March 31, 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 31, 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 additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant met her burden of proof to establish more than 23 percent
permanent impairment of her left lower extremity, for which she previously received a schedule
award.
FACTUAL HISTORY
This case has previously been before the Board on a different issue.3 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On December 9, 2009 appellant, then a 33-year-old pharmacy technician, filed a traumatic
injury claim (Form CA-1) alleging that on November 10, 2009 she injured her left knee when she
tripped over a stack of totes. OWCP accepted the claim for left knee strain and authorized left
kneecap repair/arthroscopic surgery, which was performed on July 26, 2012. It also authorized
the removal of left support implant, which was performed on February 7, 2014, and total left knee
arthroplasty, which was performed on January 21, 2015.
On December 17, 2015 appellant filed a claim for compensation (Form CA-7) for a
schedule award.
By decision dated February 8, 2016, OWCP granted appellant a schedule award for 23
percent left lower extremity permanent impairment. The award ran 66.24 weeks for the period
January 23, 2016 to April 30, 2017 and was based on the impairment rating of Dr. Ann M. Reiner,
an occupational and environment physician, and the January 14, 2016 report of Dr. David I.
Krohn, a Board-certified internist, serving as an OWCP district medical adviser (DMA). The
diagnostic basis for the schedule award was appellant’s total knee replacement.
By decision dated July 29, 2016, OWCP expanded acceptance of the claim to include left
leg sprain, left lower leg joint pain, left gait abnormality, closed dislocation of patella, c ramp in
limb, and venous embolism and thrombosis of deep vessels of the lower extremity.
On December 2, 2019 appellant filed a Form CA-7 claim for an increased schedule award.
On January 8, 2020 OWCP referred appellant, along with the case record, an updated
statement of accepted facts (SOAF), and a series of questions to Dr. Chester A. DiLallo, a Boardcertified orthopedic, for a second opinion evaluation regarding permanent impairment of
appellant’s left lower extremity. The January 8, 2020 SOAF provided to Dr. DiLallo included past
treatment modalities and noted that appellant previously received a schedule award for 23 percent
permanent impairment of the left lower extremity.
In a report dated February 4, 2020, Dr. DiLallo noted his review of the SOAF and
appellant’s medical records. He determined that appellant had reached MMI on February 4, 2020.
Upon examination of the left knee, Dr. DiLallo found a slightly shortened stance on the left side,
3

Docket No. 18-1620 (issued May 6, 2019).

2

tenderness in the inferior patella and lateral side of the knee in the collateral ligaments region, no
effusion, some slight medial instability, and the patella could not be subluxed by manual pressure.
He also reported full left knee extension and flexion to 120 degrees. Dr. DiLallo referred to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides),4 Knee Regional Grid and noted that, for the left knee, the diagnostic key factor was a
total knee replacement arthroplasty with a good result (good position, stable, and functional).5 He
noted a grade modifier for functional history (GMFH) of 3 based on a pain disability questionnaire,
which yielded a raw score of 113. Dr. DiLallo found that a grade modifier for clinical studies
(GMCS) was not applicable and that no other grade modifiers were applicable.6 He explained that
application of the net adjustment formula resulted in a finding of -+1 or grade D, which was the
equivalent of 25 percent permanent impairment of the left lower extremity.
On February 7, 2020 OWCP referred Dr. DiLallo’s report, the medical record, and SOAF,
to Dr. David J. Slutsky, a Board-certified orthopedic surgeon serving as a district medical adviser
(DMA). In a report dated March 21, 2020, Dr. Slutsky noted his disagreement with Dr. DiLallo’s
impairment rating of 25 percent left lower extremity permanent impairment. Based on his review
of Dr. DiLallo’s report and SOAF, Dr. Slutsky calculated 21 percent left lower extremity
permanent impairment. In reaching this determination, he assigned a class of diagnosis (CDX) for
the diagnosis of total knee replacement with fair or good result of class 2 7 (class 2, default value
of 25 percent). 8 Dr. Slutsky assigned a GMFH of 0 as Dr. DiLallo related that appellant had no
gait derangement, a grade modifier for physical examination (GMPE) of 2 due to general palpatory
tenderness and no instability and no GMCS as it was used to define the class of impairment. 9 He
explained that application of the net adjustment formula resulted in a finding of -2 or grade A,
which was the equivalent of 21 percent permanent impairment of the left lower extremity. 10
Dr. DiLallo noted that this was less than her prior impairment rating.
By decision dated March 31, 2020, OWCP denied appellant’s claim for an increased
schedule award.

4

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

5

Id. at 511, Table 16-3.

6

Id. at 516, Table 16-6.

7

Dr. Slutsky noted a class 3 instead of class 2. However, this appears to be a typographical error as he refers the
midrange of 25 percent. The midrange is 25 percent for a class 2 while the midrange for a class 3 is 37 percent.
8

Supra note 6.

9

Id. at 516, Table 16-6, 517, Table 16-7, and 519, Table 16-8.

10

Id. at 521.

3

LEGAL PRECEDENT
The schedule award provisions of FECA,11 and its implementing federal regulations,12 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. FECA,
however, does not specify the manner in which the percentage loss of a membe r 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 2009.13 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. 14
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the left knee, the relevant position of the left leg for the present case,
reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509. 15 After CDX is
determined from the Knee Regional Grid (including identification of a default grade value), the
net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).16 Evaluators are directed to provide
reasons for their impairment rating choices, including the choices of diagnosis from regional grids
and calculations of modifier scores. 17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
extent of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified.18

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

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 Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
14

M.T., Docket No. 21-0169 (issued October 14, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
15

See supra note 5 at 509-11.

16

Id. at 515-22.

17

Id. at 23-28; see D.W., Docket No. 21-0840 (issued November 30, 2021); R.V., Docket No. 10-1827 (issued
April 1, 2011).
18

See supra note 16 at Chapter 2.808.6(f) (March 2017).

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 23
percent permanent impairment of her left lower extremity for which she previously received a
schedule award.
In a February 4, 2020 report, Dr. DiLallo, based upon a review of the medical records, a
SOAF, and series of questions, diagnosed a total left knee replacement. He provided a permanent
impairment rating based upon the sixth edition of the A.M.A., Guides. Dr. DiLallo assigned a
CDX for the diagnosis of total knee replacement with fair or good result of class 2 based on a good
result and a GMFH of 3 based on a pain disability questionnaire which yielded a raw score of 113.
He applied the net adjustment formula and calculated 25 percent permanent impairment of the left
lower extremity based upon the DBI methodology.
OWCP referred Dr. DiLallo’s report to the DMA, Dr. Slutsky. In a report dated March 21,
2021, Dr. Slutsky found 21 percent left lower extremity permanent impairment. He disagreed with
Dr. DiLallo’s finding of 25 percent left lower agreement impairment, which he explained was due
to the difference in the application of the GMFH. Dr. Slutsky explained that he determined
appellant GMFH of 0 rather than GMFH 3, as found by Dr. DiLallo, which he explained was based
Dr. DiLallo’s finding of no gait derangement.
Dr. Slutsky properly reviewed the medical evidence and evaluated appellant’s impairment
of the left lower extremity in accordance with the A.M.A., Guides, as a GMFH of 0 rather than
GMFH of 3, based upon no gait derangement. The Board further finds that Table 17-12, cited by
Dr. DiLallo as the basis for finding a GMFH of 3 is inapplicable as it pertains to the pelvis and not
the knee.
As there is no medical evidence of record in conformance with the sixth edition of the
A.M.A., Guides, establishing that appellant has greater impairment than that which was previously
awarded, the Board finds that appellant has not met her burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish greater than 23
percent permanent impairment of her left lower extremity for which she previously received a
schedule award.

5

ORDER
IT IS HEREBY ORDERED THAT the March 31, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 30, 2022
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, PHILADELPHIA
BULK MAIL CENTER, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-930
Issued: November 23, 2011

Case Submitted on the Record

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

JURISDICTION
On March 2, 2011 appellant, through her attorney, filed a timely appeal from a
February 15, 2011 schedule award decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant has a left upper extremity impairment greater than one
percent.
On appeal her attorney asserts that additional accepted conditions of traumatic
arthropathy of the hand, joint hand pain and sprain of wrist were not considered in the
impairment rating.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 10, 2004 appellant, then a 44-year-old mail handler, sustained injury to her left
upper extremity while driving a power jack. She stopped work that day and returned to modified
duty in October. On August 12, 2005 OWCP accepted that she sustained left hand tendinitis.
On January 24, 2011 appellant submitted a schedule award claim. In an undated report,
Dr. Daisy A. Rodriguez, a Board-certified internist, advised that the ratable diagnoses were
tenosynovitis of the left hand/wrist; traumatic arthropathy of the left hand; joint pain of the left
hand; sprain of the left wrist; herniated discs at C2-3, C3-4, C4-5 and C5-6, preexisting with
exacerbation; cervical radiculopathy; and chronic pain. Dr. Rodriguez stated that maximum
medical improvement was reached on May 11, 2010. She provided a left upper extremity
impairment evaluation in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).2
Under the wrist regional grid, for wrist sprain, appellant had a default value of one percent. She
found that appellant’s QuickDASH score of 103 was severe, for a grade modifier for functional
history adjustment of three, a zero adjustment for physical examination, and found that an
adjustment for clinical studies not applicable. Dr. Rodriguez applied the net adjustment formula,
which yielded an adjustment of one, for two percent impairment due to wrist sprain. She then
followed the same procedure for a diagnosis of wrist tenosynovitis/tendinitis, reaching the same
conclusion that appellant had two percent impairment due to tenosynovitis. Dr. Rodriguez
determined that appellant had a seven percent digital impairment for post-traumatic degenerative
joint disease and one percent impairment due to peripheral nerve radiculopathy. She concluded
that appellant had combined left upper extremity impairment of eight percent. Dr. Rodriguez
attached a September 23, 2010 electrodiagnostic report, in which Dr. Byrne L. Solberg, a Boardcertified physiatrist, noted findings consistent with cervical radiculopathy which he advised were
directly related to a work injury of September 23, 2010, stating that the findings were not seen on
a previous study of December 12, 2006.3
On January 31, 2011 OWCP forwarded the record, including a statement of accepted
facts, to an OWCP medical adviser for review. The transmittal memorandum and the statement
of accepted facts noted that the only accepted condition was left hand tendinitis. In a February 5,
2011 report, Dr. Morley Slutsky, a medical adviser Board-certified in occupational medicine,
reviewed the medical record. He noted that the accepted condition was left hand tendinitis and
advised that the date of maximum medical improvement was September 7, 2010, the date of
Dr. Rodriguez’s most recent examination. Dr. Slutsky stated that, in accordance with the sixth
2

A.M.A., Guides (6th ed. 2008).

3

The record also contains an August 12, 2009 report in which Dr. Dennis W. Ivill, an attending Board-certified
physiatrist, provided examination findings noting no atrophy in any extremity. In an October 1, 2010 report,
Dr. Rodriguez noted the history of injury in 2004, appellant’s complaints and her review of the September 23, 2010
electrodiagnostic study. She reported that appellant had a second work injury on December 13, 2005.
Dr. Rodriguez indicated that examination was performed on September 7, 2010, provided examination findings, and
diagnosed tenosynovitis of the left hand/wrist; traumatic arthropathy of the left hand; joint pain of the left hand;
sprain of the left wrist; herniated discs at C2-3, C3-4, C4-5 and C5-6, preexisting with exacerbation; cervical
radiculopathy and chronic pain. On October 2, 2010 she noted her review of medical records. Also attached were a
disability questionnaire, and an activities of daily living questionnaire.

2

edition of the A.M.A., Guides, appellant’s primary diagnosis of the left hand region was
tendinitis which he rated under Table 15-3, finding that appellant had a class C impairment for a
default value of one percent. He then applied the grade modifiers. Dr. Slutsky agreed with
Dr. Rodriguez’s assessment of a zero grade modifier for physical examination and that a
modifier for clinical studies was not applicable. He disagreed with her assessment for functional
history, stating that, as her modifier for functional history was more than two grades larger than
that of the physical examination grade modifier, the functional history grade modifier was
deemed unreliable and should be excluded. Dr. Slutsky applied the net adjustment formula and
concluded that appellant had a one percent impairment of the left upper extremity.
By decision dated February 15, 2011, appellant was granted a schedule award for a one
percent impairment of the left upper extremity, or a total of 3.12 weeks, to run from September 7
to 28, 2010.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulation,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition will be used.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).11
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

A.M.A., Guides, supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
10

Id. at 385-419.

11

Id. at 411.

3

OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
While appellant asserts on appeal that the additional conditions of traumatic arthropathy
of the hand, joint hand pain, and sprain of wrist had been accepted, the record before the Board
indicates that the accepted condition in this case is left hand tendinitis with no other accepted
conditions.13 As to the degree of appellant’s left upper extremity impairment, the Board finds
that she is entitled to a one percent impairment.
While it is well established that in determining entitlement to a schedule award, a
preexisting impairment to the scheduled member is to be included,14 there is no evidence that
appellant’s cervical radiculopathy preexisted the April 10, 2004 left wrist employment injury. In
his September 23, 2010 report, Dr. Solberg, an attending physiatrist, advised that his
electrodiagnostic findings were the result of a work injury of September 23, 2010 and had not
been seen on a previous study of December 12, 2006. Therefore, Dr. Rodriguez’s rating for
peripheral nerve neuropathy would not be included in the instant claim, as the left upper
extremity injury in this case occurred in April 2004, well before Dr. Solberg’s 2010 findings.
Likewise, there is no indication that appellant had a preexisting thumb condition. Dr. Ivill, an
attending physiatrist, who examined appellant in August 2009, noted no atrophy on physical
examination of all four extremities.15 The Board also notes that Dr. Rodriguez duplicated her
rating for wrist sprain and tendinitis. Under Table 15-3, Wrist Regional Grid, these are
considered the same diagnosis.16 Therefore, only one of the diagnoses should be considered in
rating impairment.
As noted by OWCP’s medical adviser, Dr. Slutsky, section 15.2a of the A.M.A., Guides
provides that in rating impairment, the most applicable diagnosis for the region is to be
assessed,17 which in this case would be wrist tendinitis. Table 15-3 provides that a wrist
sprain/strain or tendinitis with residual symptoms is a class 1 impairment with a default grade of
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
13

The Board notes that in his letter of appeal, appellant’s attorney included a “cut and paste” from the ACS Web
Bill Processing Portal of OWCP. This stated that appellant was eligible for certain codes including those for
tenosynovitis of the hand/wrist; traumatic arthropathy of the hand; joint hand pain, and sprain of the wrist. The ACS
Web Bill Processing Portal is not contained in the record before the Board. Moreover, the fact that OWCP
authorized and paid for some medical treatment does not establish that the condition for which appellant received
treatment was employment related. G.A., Docket No. 09-2153 (issued June 10, 2010).
14

Peter C. Belkind, 56 ECAB 580 (2005).

15

Supra note 3.

16

A.M.A., Guides, supra note 2 at 395.

17

Id. at 389.

4

C or one percent. Both Dr. Rodriguez and Dr. Slutsky agreed in this determination, in a physical
examination modifier of zero, and in finding that a modifier for clinical studies was not
applicable. The physicians, however, differed in applying the grade modifier for functional
history. Dr. Rodriguez advised that appellant was entitled to a grade modifier of three.
Dr. Slutsky, however, properly noted that section 15.3a of the A.M.A., Guides provides that, if
the grade for functional history differs by two or more grades from that described by physical
examination or clinical studies, the functional history should be assumed unreliable and is to be
excluded from the grading process.18 Dr. Rodriguez’s grade modifier of three for functional
history was more than two grades greater than her physical examination modifier of zero. Thus,
her modifier for functional history is excluded in accordance with the A.M.A., Guides.
The maximum class 1 impairment for a wrist sprain/strain/tendinitis under Table 15-3 is
two percent and the default grade of C yields one percent impairment.19 Both Dr. Rodriguez and
Dr. Slutsky rated appellant’s class 1 impairment at grade C. This can be modified, as explained
in section 15.3.20 The Board finds that OWCP’s medical adviser properly utilized Table 15-3,
Wrist Regional Grid, identified the proper grade modifiers, and applied the net adjustment
formula, in reaching his conclusion that appellant had a one percent left upper extremity
impairment.
There is no other medical evidence of record addressing the extent of her permanent
impairment under the appropriate edition of the A.M.A., Guides, which supports any greater
impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a one percent permanent impairment of
the left upper extremity.

18

Id. at 406-07.

19

Id. at 395.

20

Id. at 405-19.

5

ORDER
IT IS HEREBY ORDERED THAT the February 15, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 23, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tyrone, PA, Employer
__________________________________________

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

Docket No. 18-1382
Issued: February 14, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 2, 2018 appellant, through counsel, filed a timely appeal from a May 22, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the May 22, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “the Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish total disability for
the periods December 19, 2014 to February 21, 2015, August 23, 2015 to January 13, 2016, and
February 27, 2016 to February 10, 2017 causally related to his accepted July 22, 2013 employment
injury.
FACTUAL HISTORY
On July 22, 2013 appellant, then a part-time rural carrier associate filed a traumatic injury
claim (Form CA-1) alleging that he injured his right forearm when lifting flats of mail while at
work that day. He stopped work on the date of injury. The employing establishment noted that
appellant had previously injured his right arm prior to working at the employing establishment
when his arm was crushed in a printing press and his middle, ring, and little fingers were totally
amputated, and his index finger partially amputated. On August 14, 2013 OWCP accepted the
claim for sprain of elbow and forearm, right.
On December 17, 2014 appellant filed a notice of recurrence (Form CA-2a) indicating that,
on December 11, 2014, his right arm and fingers hurt daily due to constant use. He stopped work
on December 12, 2014. The employing establishment indicated that, following the employment
injury, appellant worked restricted duty until he was released to full duty without restrictions on
September 3, 2014.
In a work status note dated December 15, 2014, Dr. Christopher J. Lincoski, an attending
orthopedic surgeon, provided restrictions that appellant could perform no heavy lifting, pushing,
or pulling greater than five pounds and no grasping for more than three hours.
In December 2015 OWCP referred appellant to Dr. Victoria M. Langa, a Board-certified
orthopedic surgeon, for a second opinion evaluation. By report dated January 14, 2016, Dr. Langa
noted a history that in 2000 or 2001 appellant had a very significant injury when his right hand
was caught in a printing press and he lost the middle, ring, and small finger in their entirety, and
the index digit just distal to the proximal interphalangeal (PIP) joint. The thumb was spared.
Dr. Langa indicated that appellant had a very prolonged postoperative course and apparently
returned to gainful employment in 2005. She reported that a July 22, 2013 employment injury was
accepted for sprain of the right elbow/forearm. Dr. Langa noted that appellant reported that,
following his release to regular job duties in September 2014, he was almost immediately having
problems due to weakness of grip. She explained that appellant did not have a true grip due to his
missing fingers so that his complaint of weakness of grip was actually referring to pinch strength
between his thumb and the remaining index finger digit. Dr. Langa continued that he reported that
Dr. Lincoski placed him on permanent restrictions which the employing establishment was unable
to accommodate, and that he was taken off work on December 18, 2014. She noted that appellant
also complained of a persistent muscle herniation through a fascial defect in his distal volar
forearm with some occasional associated discomfort in that area. Following physical examination
Dr. Langa diagnosed fascial defect of the right forearm with muscular herniation sustained on
July 22, 2013. She concluded that appellant had long since reached maximum medical
improvement, and his right forearm condition was medically stable.
Dr. Lincoski provided a January 23, 2017 duty status report (Form CA-17) in which he
diagnosed right elbow tendinitis and fascial herniation due to the employment injury. He provided
2

permanent restrictions of three to four hours of simple grasping per day and a five-pound weight
restriction.
On January 26, 2017 OWCP expanded acceptance of the claim to include right forearm
fascial herniation.
On February 10, 2017 appellant accepted a limited-duty assignment delivering Express and
Priority Mail and verifying undeliverable bulk business mail for 2.5 hours daily, 6 days a week.
Simple grasping was limited to .75 hours. He returned to this position on February 11, 2017 and
received compensation on the supplemental rolls based on his wage-earning capacity.
Appellant filed three claims for compensation (Form CA-7) on May 24, 2017 for the
periods December 19, 2014 to February 21, 2015, August 23, 2015 to January 13, 2016, and
February 27, 2016 to February 10, 2017. The employing establishment verified that he was on
leave-without-pay (LWOP) for the periods claimed.
By development letter dated September 19, 2017, OWCP informed appellant of the
medical evidence needed to establish disability. It noted that Dr. Lincoski’s December 14, 2014
report provided no diagnosis or medical rationale regarding appellant’s continued absence from
work. OWCP afforded appellant 30 days to submit the necessary evidence.
Appellant thereafter submitted a February 17, 2014 treatment note in which Dr. Lincoski
diagnosed right fascial herniation, resolved biceps tendinitis, and status post finger amputation.
He advised that the fascial herniation and biceps tendinitis had healed, noting that appellant mostly
had overuse given that he had limited function in his ability to use his right hand due to a prior
injury. Dr. Lincoski recommended four hours of restricted duty daily, indicating that restrictions
were permanent, and that appellant’s symptoms were due to overuse from the prior injury. In a
December 15, 2014 treatment note, he noted that appellant presented with a new problem, pain
over the lateral aspect of the right elbow. Right elbow examination demonstrated tenderness over
the right lateral epicondyle with positive Cozen and Mills tests. There was very mild tenderness
over the right biceps, and the fascial herniation was not tender to palpation. Dr. Lincoski
diagnosed asymptomatic right fascial herniation, resolved biceps tendinitis, and symptomatic right
lateral epicondylitis. He recommended medication, permanent work restrictions, and a short
course of physical therapy with home exercise.
In a January 23, 2017 report, Dr. Lincoski noted seeing appellant for follow-up.4 He
reported that appellant’s fascial herniation was unchanged, and that there was no tenderness over
the medial or lateral condyle of the right elbow. Dr. Lincoski diagnosed right fascial herniation,
and provided permanent restrictions of no heavy pushing, pulling, or lifting greater than five
pounds, and no grasping for more than three to four hours.5
By decision dated November 16, 2017, OWCP denied appellant’s claims for disability
compensation for the periods December 19, 2014 to February 21, 2015, August 23, 2015 to
January 13, 2016, and February 27, 2016 to February 10, 2017. It found Dr. Lincoski’s reports
4

The record does not indicate that appellant saw Dr. Lincoski between December 15, 2014 and January 23, 2017.

5

Appellant also submitted additional treatment notes from Dr. Lincoski that are not relevant to the periods of
disability claimed in this appeal.

3

were of insufficient rationale to establish disability for work due to the accepted July 22, 2013
employment injury. On November 27, 2017 appellant, through counsel, requested a hearing before
an OWCP hearing representative.
In November 2017 OWCP referred appellant to Dr. Langa for subsequent second opinion
evaluation. Dr. Langa was asked to provide an opinion regarding whether appellant continued to
suffer residuals of the accepted conditions and his work capabilities.
By report dated December 13, 2017, Dr. Langa noted that she had previously examined
appellant in January 2016. She diagnosed fascial defect of the right forearm with muscular
herniation. Dr. Langa advised that the fascial herniation was permanent in nature, but was not
disabling and that the accepted July 22, 2013 employment injury did not aggravate the preexisting
devastating injury to his right hand. She opined that appellant should be able to perform full work
duties as a rural carrier, and that he required no further treatment for the forearm fascial defect.
During the hearing, held on April 12, 2018, counsel maintained that, because appellant’s
light-duty position was withdrawn in December 2014, he was entitled to wage-loss compensation.
Appellant testified that he was placed on full duty in the Fall of 2014, and that in December 2014
full duty required too much grabbing which caused right arm pain and loss of grip ability. He
maintained that he reported this to the postmaster who sent him home because no light-duty work
was available, and that he did not return to work until February 14, 2017 when he began a parttime light-duty position. Appellant testified that he had resigned from the employing
establishment on February 5, 2018 and began work at a chemical plant where he performed no
physical labor, just monitored machines. The hearing representative advised appellant that to
support disability he should submit medical or factual evidence that substantiated that there had
been a withdrawal of light-duty work or that the disability stemmed from the July 2013
employment injury. The record was held open for 30 days. Nothing further was submitted.
By decision dated May 22, 2018, an OWCP hearing representative affirmed the
November 16, 2017 decision. He found Dr. Lincoski’s reports insufficient to establish entitlement
to wage-loss compensation for the three intermittent periods claimed between December 19, 2014
and February 10, 2017 because he did not explain how any need for work restrictions stemmed
from the July 22, 2013 employment-related lifting injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.7 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.8 Whether a particular injury causes an employee to

6

Supra note 2.

7

See D.W., Docket No. 18-0644 (issued November 15, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005).

8

Id.

4

become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.9
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.10 Furthermore, whether a particular injury
causes an employee to be disabled from employment and the duration of that disability are medical
issues which must be proved by a preponderance of the reliable, probative and substantial medical
evidence.11
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.12 Rationalized medical evidence is medical
evidence which includes a physician’s detailed medical opinion on the issue of whether there is
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical background
of the claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.13 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.14
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish total disability
for the periods December 19, 2014 to February 21, 2015, August 23, 2015 to January 13, 2016,

9

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

10

Id.

11

T.O., Docket No. 17-1177 (issued November 2, 2018); Fereidoon Kharabi, 52 ECAB 291 (2001).

12

D.W., Docket No. 18-0644 (issued November 15, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

13
C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
14

D.W., supra note 12; Dennis M. Mascarenas, 49 ECAB 215 (1997).

15

See B.K., Docket No. 18-0386 (issued September 14, 2018).

5

and February 27, 2016 to February 10, 2017 causally related to his accepted July 22, 2013
employment injury.
The record indicates that prior to his federal employment, appellant sustained a significant
injury to his right arm when his hand was crushed in a printing press which caused amputation of
his middle, ring, and little fingers and partial amputation of his index finger. The employing
establishment reported that appellant had been released to full duty on September 3, 2014, and this
was acknowledged by him at the April 12, 2018 hearing. Appellant stopped work on
December 12, 2014, and in reports dated December 15, 2014, Dr. Lincoski, an attending
orthopedic surgeon, described examination findings, diagnosed asymptomatic right fascial hernia,
resolved biceps tendinitis, and symptomatic right lateral epicondylitis. He provided restrictions
that appellant could perform no heavy lifting, pushing, or pulling greater than five pounds and no
grasping for more than three hours.16 Dr. Lincoski, however, did not indicate whether the
restrictions were due to appellant’s accepted sprains of the right elbow and forearm and right
forearm fascial herniation or due to his prior serious right upper extremity injury. He provided no
additional medical evidence until a January 23, 2017 duty status report in which he diagnosed right
elbow tendinitis and fascial herniation and provided permanent restrictions of three to four hours
of simple grasping per day and a five-pound weight restriction.
The Board finds Dr. Lincoski’s reports are insufficient to establish that appellant was
totally disabled due to the conditions caused by the July 22, 2013 lifting injury at work.
Dr. Lincoski did not explain in any of his reports whether appellant’s restrictions and/or disability
were due to the very serious nonemployment-related previous injury that caused amputation of
three fingers and partial amputation of the fourth or by the July 22, 2013 employment injury. He
did not express specific knowledge of appellant’s job duties or explain why he could not perform
the specific duties due to the employment injury. Thus, Dr. Lincoski’s reports are insufficient to
meet appellant’s burden of proof to establish total disability for any of the periods claimed.17
OWCP referred appellant to Dr. Langa who provided a January 14, 2016 report in which
she described both right upper extremity injuries and noted that, following his release to regular
job duties in September 2014, appellant reported that he immediately began having problems with
his grip. Dr. Langa explained that appellant did not have a true grip due to the absence of three of
his fingers of his right extremity and merely had pinch between his thumb and remaining portion
of his index finger. She opined that he had reached maximum medical improvement with regard
to his right forearm which was medically stable. Dr. Langa did not comment on his work
capabilities. OWCP again referred appellant to Dr. Langa, and in a December 13, 2017 report, she
advised that appellant’s fascial defect was permanent, but was not disabling, and that the accepted
July 22, 2013 employment injury did not aggravate appellant’s preexisting injury to his right hand.
Dr. Langa opined that appellant should be able to perform full work duties as a rural carrier.

16

Of interest, in a February 17, 2014 treatment note, prior to the period of claimed disability, Dr. Lincoski opined
that appellant mostly had overuse given that he had limited function in his ability to use his right hand due to a prior
injury. At that time he recommended four hours of restricted duty daily, indicating that these restrictions were
permanent, and that appellant’s symptoms were overuse from his prior injury.
17

See E.M., Docket No. 18-0275 (issued June 8, 2018)

6

The issue of disability from work can only be resolved by competent medical evidence.18
In the absence of sufficient medical evidence, the Board finds that the medical evidence of record
is insufficient to establish that appellant was totally disabled for the claimed period. Dr. Lincoski
did not explain with sufficient rationale why appellant could not perform his job duties due to the
accepted conditions.19
Furthermore, contrary to counsel’s assertion on appeal that appellant was entitled to
compensation because there was no work available within his restrictions, by appellant’s own
testimony at the April 12, 2018 hearing, he was working full duty through December 18, 2014.
The medical evidence of record does not establish that appellant required work restrictions due to
his accepted conditions during the time periods involved.20
The Board finds that appellant did not submit sufficient rationalized medical opinion
evidence to establish that he was disabled from work for the successive periods commencing
December 19, 2014 due to accepted conditions and was thus entitled to wage-loss compensation
for the periods claimed.21
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish total disability
for the periods December 19, 2014 to February 21, 2015, August 23, 2015 to January 13, 2016,
and February 27, 2016 to February 10, 2017 causally related to his accepted July 22, 2013
employment injury.

18

R.C., 59 ECAB 546 (2008).

19

See A.D., Docket No. 18-0255 (issued July 2, 2018).

20

When an employee, who is disabled from the job he or she held when injured on account of employment-related
residuals, returns to a light-duty position or the medical evidence establishes that light duty can be performed, the
employee has the burden to establish by the weight of reliable, probative and substantial evidence a recurrence of total
disability. As part of this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements. M.S., Docket No. 18-0877
(issued November 21, 2018); Terry R. Hedman, 38 ECAB 222 (1986).
21

N.R., Docket No. 14-0114 (issued April 28, 2014).

7

ORDER
IT IS HEREBY ORDERED THAT the May 22, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 14, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jersey City, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1007
Issued: June 15, 2021

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 April 5, 2020 appellant, through counsel, filed a timely appeal from a February 28,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award effective September 15, 2019, as he refused an
offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On December 19, 2008 appellant, then a 45-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 2, 2008 he sustained an injury to his right arm and
hand while pushing a mail cart up a hill while in the performance of duty. He stopped work on
December 3, 2008. On April 7, 2011 OWCP accepted the claim for a superior labrum anterior and
posterior (SLAP) tear of the right shoulder, and cervical radiculopathy. On September 16, 2014 it
accepted the claim for displacement of cervical disc at C5-6 on the left. OWCP paid appellant
compensation on the supplemental rolls beginning January 1, 2011 and on the periodic rolls
beginning July 31, 2011.
On May 14, 2009 appellant underwent a right shoulder arthroscopic synovectomy and
debridement, arthroscopic repair of SLAP lesion, and limited acromioplasty and subacromial
bursectomy. On November 11, 2013 he underwent arthroscopic acromioplasty, arthroscopic
debridement of partial labral tear, and autologous tissue platelet graft of the right shoulder.
On November 6, 2018 OWCP referred appellant to Dr. William Dinenberg, a Boardcertified orthopedic surgeon, for a second opinion examination to determine the extent and degree
of appellant’s work injury-related residuals, if any.
In a November 30, 2018 report, Dr. Dinenberg noted appellant’s history of injury and
medical treatment. He related appellant’s physical examination findings and opined that appellant
could work full time with restrictions. Dr. Dinenberg explained that appellant remained
symptomatic regarding the right shoulder secondary to persistent impingement with diminished
range of motion and positive impingement sign on the right shoulder and that appellant’s accepted
right shoulder condition had not resolved. He noted that brachial neuritis was not indicated on the
statement of accepted facts and that appellant had subjective complaints of right upper radicular
symptomatology not objectively seen on examination. Dr. Dinenberg opined that the displacement
of appellant’s C5-6 herniated disc had not resolved. He advised that appellant could not return to
his full work duties and would need permanent restrictions as a result of his cervical spine and
right shoulder conditions. Dr. Dinenberg indicated that appellant could participate in vocational
rehabilitation. He completed a work capacity evaluation (Form OWCP-5c) and provided work
restrictions to include no reaching above the right shoulder, and pushing, pulling, and lifting
limited to no more than three hours and 20 pounds.
In a March 18, 2019 report, Dr. David Lalli, an osteopathic physician Board-certified in
orthopedic surgery, noted appellant’s history of injury and medical treatment. He examined
appellant and diagnosed bicipital tendinitis of the right shoulder, complete rotator cuff tear and
rupture of the right shoulder, strain of the muscle tendon and rotator cuff of the right shoulder, and
superior glenoid labrum lesion of the right shoulder, subs. Dr. Lalli also completed a duty status

2

report (Form CA-17), wherein he indicated appellant’s work restrictions, including lifting/carrying
no more than five pounds continuously and intermittently during an eight-hour day.
On April 1, 2019 the employing establishment offered appellant a part-time flexible carrier
position. It listed appellant’s medical restrictions as lifting, pushing, and pulling up to three hours
per day and up to 20 pounds, and no reaching above the right shoulder. The physical requirements
of the position were listed as: sit/stand/walk; simple grasping; fine manipulation; pushing/pulling/
lifting up to 20 pounds; and reaching/driving. OWCP clarified by a memorandum of telephone
call (Form CA-110) with the employing establishment that the position was full time, not part
time.
On April 8, 2019 appellant refused to sign the modified offer. In a letter dated April 9,
2019, he noted that he had refused the job offer and explained that the only reason he refused the
job offer in New Jersey was that he had lived in Florida since 2009. Appellant requested a clerical
position in Lougham, Florida.
By letter dated July 9, 2019, the employing establishment requested that OWCP determine
whether the offered position was suitable. It noted that a 50-mile search was completed from
appellant’s place of residence in Florida with a negative outcome.
By letter dated July 18, 2019, OWCP advised appellant of its determination that the fulltime city carrier position offered by the employing establishment was suitable based on
Dr. Dinenberg’s Form OWCP-5c and recommended work restrictions. It noted that appellant’s
residence in a different geographical location from where the injury occurred was not a valid
reason for refusing an offer of suitable employment and that it had confirmed, by letter dated
July 9, 2019, that no suitable work was available in his current commuting area. The employing
establishment informed appellant that his compensation would be terminated, if he did not accept
the position or provide good cause for not doing so within 30 days of the date of the letter.
By letter dated July 26, 2019, counsel argued that it was “difficult to believe that
[employing establishments] in Florida within 50 miles of [appellant’s home] had no window clerk
jobs or light jobs that he could handle.”
In a letter dated August 19, 2019, the employing establishment confirmed that the modified
permanent assignment offer remained available “indefinitely as long as [appellant] does not have
medical which compels a change in restrictions.”
By letter dated August 19, 2019, OWCP advised appellant that he had not provided a valid
excuse for refusing to accept the offered position. It notified him that he had 15 days to accept the
offered position or his entitlement to wage loss and schedule award benefits would be terminated.
In a letter dated August 26, 2019, counsel argued that OWCP did not explain why his legal
arguments were invalid and that the burden was on the employing establishment to show that a
search was made near appellant’s home.
By decision dated September 9, 2019, OWCP terminated appellant’s compensation
benefits and entitlement to a schedule award effective September 15, 2019, because he refused an
offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It found that Dr. Dinenberg’s
3

November 30, 2018 report constituted the weight of the medical evidence and established that
appellant could perform the duties of the offered modified position. OWCP also related that the
employing establishment had confirmed that no suitable work was available within appellant’s
current commuting area.
On September 16, 2019 counsel requested a telephonic hearing, which was held before a
representative of OWCP’s Branch of Hearings and Review on January 6, 2020. During the
hearing, counsel argued that Dr. Lalli’s March 18, 2019 report found that appellant was five foot
six, that appellant was unable to reach up above that height, and that this precluded appellant from
putting mail in boxes as required in the job description. Counsel argued that the offered job was
not within appellant’s work restrictions. He also argued that appellant had resided in Florida for
the past 10 years, and that he should not have to move to another area, as there were multiple post
offices within 50 miles of his Florida residence.
In a letter dated February 3, 2020, L.T., an employing establishment specialist, noted that
a search for a position was conducted near appellant’s place of residence and attached a copy of a
“Priority for Assignment Worksheet” signed on February 11, 2019. L.T. explained that one office
wanted to employ appellant within his medical restrictions, however, they did not have a funded
vacancy. L.T. indicated that all other offices had a negative response. L.T. also noted that the
only hiring in appellant’s area was for noncareer employment, with no benefits and no guarantee
of 40 hours per week, which excluded appellant’s career position.
By decision dated February 28, 2020, OWCP’s hearing representative affirmed the
September 9, 2019 termination decision, finding that the report of the second opinion physician,
Dr. Dinenberg, was entitled to the weight of the medical evidence and that the offered position
was suitable based on Dr. Dinenberg’s work restrictions. The hearing representative also found
that no rationalized conflicting medical evidence was submitted and that the employing
establishment properly assessed the availability of positions near appellant’s place of residence.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification of
compensation benefits.3 Section 8106(c)(2) of FECA4 provides that a partially disabled employee
who refuses or neglects to work after suitable work is offered to, procured by or secured for the
employee is not entitled to compensation.5 To justify termination of compensation, it must show
that the work offered was suitable and must inform appellant of the consequences of refusal to
accept such employment.6 Section 8106(c) will be narrowly construed as it serves as a penalty

3

T.M., Docket No. 18-1368 (issued February 21, 2019); Linda D. Guerrero, 54 ECAB 556 (2003).

4

Supra note 2.

5

Id. at § 8106(c)(2); see also M.J., Docket No. 18-0799 (issued December 3, 2018); Geraldine Foster, 54 ECAB
435 (2003).
6

J.V., Docket No. 17-1944 (issued December 18, 2018); Ronald M. Jones, 52 ECAB 190 (2000).

4

provision, which may bar an employee’s entitlement to compensation based on a refusal to accept
a suitable offer of employment.7
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.8 Section
10.516 of OWCP’s regulations provide that it will advise the employee that the work offered is
suitable and provide 30 days for the employee to accept the job or present any reasons to counter
OWCP’s finding of suitability.9
Before compensation can be terminated, however, OWCP has the burden of proof to
demonstrate that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work, and establishing that a position has been offered within the employee’s
work restrictions and setting forth the specific job requirements of the position.10 In other words,
to justify termination of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision,
OWCP has the burden of showing that the work offered to and refused by appellant was suitable.11
Once OWCP establishes that the work offered is suitable, the burden of proof shifts to the
employee who refuses to work to show that the refusal or failure to work was reasonable or
justified.12 The determination of whether an employee is physically capable of performing a
modified assignment is a medical question that must be resolved by medical evidence.13 OWCP
procedures state that acceptable reasons for refusing an offered position include medical evidence
of inability to do the work.14
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, pursuant to 5 U.S.C. § 8106(c)(2),
effective September 15, 2019.15

7

S.B., Docket No. 18-0039 (issued October 15, 2018); Joan F. Burke, 54 ECAB 406 (2003).

8

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 6.

9

Id. at § 10.516.

10

M.H., Docket No. 17-0210 (issued July 3, 2018).

11

J.V. supra note 6; Linda Hilton, 52 ECAB 476 (2001).

12

20 C.F.R. § 10.517(a).

13

D.M., Docket No. 17-1235 (issued February 15, 2018); Gayle Harris, 52 ECAB 319 (2001).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5(a)(4)
(June 2013).
15

See E.W., Docket No. 19-1711 (issued July 29, 2020); C.E., Docket No. 19-0614 (issued November 1, 2019).

5

In its February 28, 2020 termination decision, OWCP found that the April 1, 2019 job offer
was suitable based on the work restrictions provided by Dr. Dinenberg in his November 30, 2018
report. The Board finds that OWCP improperly relied on Dr. Dinenberg’s November 30, 2018
report in determining that the modified position offered by the employing establishment
constituted suitable employment.16
Dr. Dinenberg indicated that appellant could work with restrictions including no reaching
above the right shoulder, and pushing, pulling, and lifting for no more than three hours and 20
pounds. The Board notes that the position offered by the employing establishment listed
appellant’s medical restrictions as being no reaching above the right shoulder, and lifting, pushing,
and pulling three hours per day up to 20 pounds. However, the employing establishment listed the
physical requirements of the position to include: sit/stand/walk; simple grasping; fine
manipulation; pushing/pulling/lifting up to 20 pounds; and reaching/driving. The employing
establishment did not specify what type of reaching appellant would be required to perform as part
of the physical requirements of the position. This is important as Dr. Dinenberg indicated that
appellant could not reach above the right shoulder. The physical requirements of the position did
not specify that no reaching above the shoulder would be required. Thus, the Board finds it is
unclear whether the duties described are within appellant’s medical restrictions, provided by
Dr. Dinenberg.17 The Board also notes that appellant’s treating physician, Dr. Lalli, completed a
Form CA-17 on March 18, 2019 wherein he indicated appellant’s work restrictions, including
lifting/carrying no more than five pounds continuously and intermittently during an eight-hour
day. The job offer, however, would require lifting and carrying up to 20 pounds a day. OWCP
did not specifically address Dr. Lalli’s restrictions.
The Board has held that in order for OWCP to meet its burden of proof in a suitable work
termination, the medical evidence should be clear and unequivocal that the claimant could perform
the offered position.18 The issue of whether a claimant is able to perform the duties of the offered
employment position is a medical one and must be resolved by probative medical evidence. While
OWCP found that Dr. Dinenberg’s opinion contained sufficient medical rationale to support that
appellant could perform the physical duties contained in the offered position,19 OWCP did not
request that he review a job offer, which clearly explained the physical requirements of the offered
position, and provide a reasoned opinion as to its suitability for appellant.20 The medical evidence
of record, therefore, fails to establish that the offered position was suitable.
As a penalty provision, section 8106(c)(2) of FECA must be narrowly construed.21 Based
on the evidence of record, the Board finds that OWCP improperly determined that the modified
position offered to appellant constituted suitable work within his physical limitations and
16

R.A., Docket No. 19-0065 (issued May 14, 2019).

17

M.E., Docket No. 18-0808 (issued December 7, 2018).

18

P.P., Docket No. 18-1232 (issued April 8, 2019).

19

See G.M., Docket No. 18-1236 (issued June 18, 2019).

20

See S.Y., Docket No. 17-1032 (issued November 21, 2017).

21

D.H., Docket No. 17-1014 (issued October 3, 2017).

6

capabilities. Consequently, OWCP has not met its burden of proof to justify the termination of his
compensation benefits and entitlement to a schedule award.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award effective September 15, 2019.
ORDER
IT IS HEREBY ORDERED THAT the February 28, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 15, 2021
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