United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JERRY L. PETTIS MEMORIAL VETERANS
AFFAIRS MEDICAL CENTER,
Loma Linda, CA, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-2134
Issued: September 26, 2012

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 September 21, 2011 appellant, through her counsel, filed a timely appeal from an
August 7, 2011 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 August 7, 2011 decision, OWCP received additional evidence. The Board
may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

ISSUE
The issue is whether appellant has established that she sustained a recurrence of disability
on and after August 20, 2009 causally related to her accepted August 22, 2003 employment
injuries.
On appeal, counsel contends that OWCP erred in developing the claim as one for a
recurrence of disability; rather counsel believes it should have been handled as a termination
claim. He further contends that, if the case is properly handled as a recurrence, appellant has
clearly met her burden of proof to establish a recurrence or at the least to create a conflict in
medical evidence. If appellant has not met her burden of proof, counsel points to those situations
where causal relationship can be inferred when the recurrence takes place within 90 days of a
return to work.
FACTUAL HISTORY
On August 22, 2003 appellant, then a 45-year-old diagnostic radiologic technician, filed a
traumatic injury claim alleging that on that day she injured her lower back when she stumbled.3
OWCP accepted the claim for aggravation of L5-S1 spondylolisthesis, aggravation of acquired
spondylolisthesis, deviated nasal septum, scar conditions and fibrosis of the skin, closed nasal
bone fracture, which was expanded to include a consequential right knee sprain.4 Appellant
stopped work the day of the injury and was thereafter placed on the periodic rolls. She returned
to a limited-duty job on May 16, 2005 and stopped work on May 20, 2005. Appellant returned
to work on May 23, 2005 for four hours, but stopped again on May 24, 2005. OWCP continued
to pay compensation through the periodic rolls.
On December 17, 2008 OWCP referred appellant for a second opinion evaluation with
Dr. John Pierce Conaty, a Board-certified orthopedic surgeon, for an assessment of her medical
condition, extent of disability and appropriate treatment. On January 9, 2009 Dr. Conaty, based
upon a physical examination and review of the medical record and statement of accepted facts,
concluded that appellant continued to suffer from residuals of her accepted employment-related
condition but was capable of working eight hours with restrictions. He approved appellant’s
referral to vocational rehabilitation, within the noted restrictions. A work capacity evaluation
form dated January 10, 2009 found that appellant could sit up to six hours, walk and stand for
four hours, stoop for up to one hour, with no lifting, pushing or pulling more than 10 pounds for
up to one hour.
OWCP referred appellant to vocational rehabilitation on April 7, 2009. On June 22, 2009
the employing establishment offered appellant the position of medical support assistant working
eight hours per day based on the work restrictions provided by Dr. Conaty. According to the
rehabilitation counselor, appellant believed that she would not be able to sustain working at this
3

OWCP assigned claim number xxxxxx088.

4

OWCP combined claim number xxxxxx088 with claim number xxxxxx431, with the former number as the
master file number. Under claim number xxxxxx321 it accepted that appellant sustained lumbosacral strain due to a
July 10, 2002 traumatic injury.

2

position due to pain of getting in and out of a chair and asked that the job description be
forwarded to her treating physician. The rehabilitation counselor reportedly tried to comply but
could not reach the treating physician. With no changes in the job description, the position was
again offered to appellant by letter of July 24, 2009.
Appellant accepted the position offered by the employing establishment and returned to
work on August 3, 2009. After her first day at work, according to the rehabilitation counselor’s
report, appellant stated that she was in “horrendous pain … the worst pain she had ever been in
before.” She also found the room to be too small and the chair to be “hideous.” The
rehabilitation counselor reported the probability of successful return to work was guarded. She
noted that appellant was “annoyed that attempts [were] being made again to return her to work
because she [said] she [would] have to go through an ordeal of pain while she [attempted] to
return to work.”
Appellant was monitored in her new employment daily and according to the report from
the rehabilitation counselor there were regular complaints from appellant that the chair was
uncomfortable, the wheels of the chair did not roll easily enough, the room was too small, the
door was too hard to push open and she had nothing to do. The employing establishment
provided an ergonomic assessment by Monica Fry, an Agency Industrial Hygienist/Ergonomics
Assessor, and found her worksite to be appropriate but that appellant was sitting with her “left
leg over the right leg at the thigh.” Appellant was advised that she would need to sit
“ergonomically correct” in her chair. The employing establishment agreed to find appellant an
office without a door and one with a tiled floor to allow the chair to move more easily. Despite
the efforts of the employing establishment, the report concluded that the probability of successful
return to work was “poor.”
Appellant advised the rehabilitation counselor that she did not go to work on Friday,
August 21, 2009 due to extreme pain. She submitted an August 21, 2009 work status form
completed by Christopher Cody Blanchfield, a nurse practitioner, indicating that appellant was
disabled from work for the period August 21 to 31, 2009 due to incapacitating injury or pain.
Appellant was off work again through September 6, 2009 and after Labor Day returned to
work on September 8, 2009. The rehabilitation counselor reported that appellant submitted a
work status report of that date by Dr. Guirguis S. Hanna, a Board-certified physiatrist, who
placed her off work from September 9 through 18, 2009 for uncontrolled symptoms.
Appellant submitted a claim for wage-loss compensation (Form CA-7) requesting leave
buyback for the period August 21 to September 7, 2009.
In August 21, 2009 progress notes, Dr. Stacie A. Cruz, a treating Board-certified family
practitioner, diagnosed degeneration of lumbar or lumbosacral intervertebral disc and provided
physical findings. A review of systems was positive for back pain and tingling. Dr. Cruz found
that appellant was totally disabled from work for the period August 21 to 31, 2009.
In an August 31, 2009 progress note, Dr. Hanna indicated that appellant was seen for
complaints of low back pain. Diagnoses included spinal stenosis of the lumbar region, lumbar
radiculopathy and degeneration of lumbar intervertebral disc. Appellant related having difficulty

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sitting at work and that she felt worse after going back to work. A physical examination of the
lumbar back revealed tenderness, pain and decreased range of motion, a slightly abnormal gait
and decreased lower extremity sensation. Dr. Hanna placed appellant off work for the period
August 31 to September 6, 2009 due to uncontrolled symptoms.
A September 9, 2009 industrial work status form from a Dr. Renu Mittal, a treating
Board-certified orthopedic surgeon, placed appellant off work from September 9 to 18, 2009.
No reasons were provided for the disability.
A September 24, 2009 industrial work status form from Dr. Patricia Gayle McGhee, a
treating Board-certified family practitioner, indicated that appellant was unable to work from
September 21 to October 5, 2009 due to “uncontrolled symptoms.”
OWCP granted appellant’s request to change physicians to Dr. Jacob E. Tauber, a
treating Board-certified orthopedic surgeon.
In a letter dated October 5, 2010, OWCP informed appellant of the evidence required to
support a recurrence of disability where an employee returns to light-duty work.
On December 17, 2009 Dr. Tauber conducted a physical examination and diagnosed L4-5
and L5-S1 spondylolisthesis with sciatica. A physical examination revealed that appellant was
able to ambulate but with severe pain, severely limited lumbar motion, decreased pinprick in
both feet, straight leg raising elicited low back pain, intact deep tendon reflexes and intact motor
strength. Dr. Tauber opined that she had significant lumbar spine pathology and was temporarily
totally disabled. He noted that appellant’s claim had been accepted for aggravation of
preexisting spondylolisthesis at the L5-S1 level but that it should have been accepted for both
L4-5 and L5-S1. Dr. Tauber recommended an MRI scan of the lumbar spine and a nerve
conduction study of her back and lower extremities. He also recommended a pain management
program for appellant as well as a psychiatric evaluation. Dr. Tauber believed she would be a
candidate for decompression and fusion of the L4-5 and L5-S1 levels.
An electrodiagnostic consultation report, dated February 16, 2010, was prepared by
Dr. Aaron Coppelson, Board-certified in electrodiagnostic medicine, physical medicine and
rehabilitation and pain management. Dr. Coppelson’s report reflected “no evidence of peripheral
neuropathy” and “no evidence of lumbar radiculopathy” in the bilateral lower extremities.
Dr. Tauber provided supplemental reports dated February 25 and March 25, 2010 in
which he reported that appellant was seen for back pain and remained temporarily totally
disabled.
On March 31, 2010 appellant submitted a CA-7 form for wage-loss compensation for the
period August 20, 2009 to March 31, 2010.
Following the second claim for wage-loss compensation, Dr. Tauber submitted
supplemental reports indicating that appellant continued to be in pain, her status was unchanged
and she remained temporarily totally disabled. On September 30, 2010 appellant was seen by
Dr. Tauber for pain on coughing who found that her physical condition was unchanged.

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By decision dated November 18, 2010, OWCP denied appellant’s claim for a recurrence
of disability beginning August 20, 2009. It noted the reports of Dr. Cruz reflected that appellant
was not in any stress, that the neurological examination reflected normal gait but that her system
was positive for back pain and tingling. In Dr. Hanna’s report, OWCP found that there was a
decreased range of motion, tenderness and pain, diminished sensation in both lower limbs and an
abnormal gait. It noted that appellant was placed off work for uncontrolled symptoms. OWCP
noted there were no reasons given for the total disability slips from September 21, through
October 5, 2009. It further noted that Dr. Tauber found decreased sensation to pinprick in both
feet and severe pain and limited motion of the lumbar spine, but EMG and nerve conduction
studies found no evidence of peripheral neuropathy or lumbar radiculopathy. OWCP found that
she failed to establish a change in her job duties or an objective worsening of her condition.
A functional capacity evaluation was performed by Safety Works Medical, Inc.
Appellant was provided restrictions of “no lifting over 55 pounds from ground level. Limited
[or] prolonged standing, sitting or walking greater than 10 minutes without a change in position.”
On January 20, 2011 Dr. Tauber provided a supplemental report wherein he opined that
appellant’s disability was due to her severe pain, based on her physical examination and
abnormal magnetic resonance imaging (MRI) scan findings. He noted that her severe pain was
supported by decreased pinprick sensation in the dermatomal distribution. Dr. Tauber related
that appellant’s inability to tolerate long periods of sitting due to her severe pain is what prevents
her ability to work.
Appellant’s counsel provided Dr. Hanna with a list of physical restrictions for the
accepted position and requested a supplemental medical report. In a January 28, 2011 report,
Dr. Hanna stated that appellant was last seen on August 31, 2009 and noted her work restrictions.
Based on a review of the physical demands of the limited-duty job position and her objective and
subjective findings, he concluded that appellant could not perform the essential job demands due
to her residual impairment and the recommended work restrictions.
On February 15, 2011 appellant, through counsel, requested reconsideration. Counsel
claimed that appellant was never fit to return to work in the first place and that the job offered by
the employing establishment was not suitable.
On April 26, 2011 OWCP received Dr. Tauber’s April 18, 2011 report, in which he noted
that he had reviewed an April 14, 2011 functional capacity evaluation and provided findings
from the report.
OWCP received an April 14, 2011 supplemental report from Dr. Tauber, in which he
noted that appellant’s pain was progressing, straight leg testing was positive and there was pain
on motion and a June 29, 2011 report in which he indicated that appellant’s condition was
unchanged.
By decision dated August 7, 2011, OWCP denied modification. It reiterated counsel’s
argument but found that appellant had failed to provide sufficient medical evidence to support
disability and wage loss.

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LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden, the employee must
show 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.5
Whether a particular injury causes an employee to be disabled for 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.6 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurts too much to work, without objective findings of
disability being shown, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.7 The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.8
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.9
OWCP’s procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change, demonstrated by objective findings, in the medical condition
that resulted from a previous injury or occupational illness without an intervening injury or new
exposure to factors causing the original illness. It does not include a condition that results from a
new injury, even if it involves the same part of the body previously injured.10
Regarding recurrent disability within 90 days of a return to employment, the procedure
manual provides as follows:
5

K.S., Docket No. 08-2105 (issued February 11, 2009); Richard A. Neidert, 57 ECAB 474 (2006); Terry R.
Hedman, 38 ECAB 222 (1986).
6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Id.

8

Id.

9

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008); Hubert Jones, Jr., 57 ECAB 467 (2006); Phillip L. Barnes,
55 ECAB 426 (2004).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).

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“a. Burden of Proof. The claimant is not required to provide the same evidence as
for a recurrence claimed long after apparent recovery and return to work.
Therefore, in cases where recurring disability for work is claimed within 90 days
or less from the first return to duty, the focus is on disability rather than causal
relationship.
“b. Disability for Work. Assuming the requirements described in paragraph 5
above concerning causal relationship are met, the CE [claims examiner] should
ask the employee to submit a Form OWCP-5 and/or narrative statement from the
attending physician which describes the duties which the employee cannot
perform and the demonstrated objective medical findings that form the basis for
renewed disability for work.”11
Paragraph five of OWCP’s procedures, which is applicable to a recurrence of a medical
condition within 90 days of release from medical care, provides that, “The CE may accept the
attending physician’s statement supporting causal relationship between the claimant’s current
condition and the accepted condition, even if the statement contains no rationale unless” there is
clear evidence of an intervening injury, an intervening decision, the claim was originally
accepted for a temporary aggravation of a preexisting condition or the renewed claim involves a
different diagnosis from the accepted condition.12
ANALYSIS
OWCP accepted that in August 2003 appellant sustained aggravation of L5-S1
spondylolisthesis, aggravation of acquired spondylolisthesis, deviated nasal septum, scar
conditions and fibrosis of the skin, closed nasal bone fracture and a consequential right knee
sprain and paid wage-loss compensation for hours of work missed. Appellant returned to work
in 2005 but was returned to the periodic rolls shortly thereafter.
In 2008, appellant was seen by the second opinion physician, Dr. Conaty who found
appellant able to work for eight hours a day with restrictions. Based on Dr. Conaty’s restrictions,
the position of medical support assistant was offered to appellant. Appellant accepted in writing
the written offer of employment and returned to work on August 3, 2009. She worked in that
limited-duty position until August 20, 2009 at which point she stopped working. Appellant again
briefly returned to work on September 8, 2009 but stopped again on September 9, 2009.
In support of her request to return to total disability and full compensation benefits,
appellant relies on reports of various treating physicians. In order to meet her burden of proof,
she 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. There is no suggestion that the nature or
extent of the light-duty requirements changed. This case revolves solely on the issue of whether
appellant has established a change in the nature and extent of the accepted conditions.

11

Id. at Chapter 2.1500.6(a) and (b) (January 1995).

12

Id. at Chapter 2.1500(5)(a) (May 2003).

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Appellant submitted reports from Drs. Cruz and McGhee indicating that appellant was
disabled for work. Dr. Cruz, in an August 21, 2009 progress note, diagnosed lumbar or
lumbosacral intervertebral disc degeneration and concluded that appellant was totally disabled
from work for the period August 21 to 31, 2009. She provided physical findings and concluded
that appellant was disabled from working. On September 24, 2009 Dr. McGhee indicated that
appellant was unable to work from September 21 to October 5 2009 due to uncontrolled
symptoms. Neither, Dr. Cruz nor Dr. McGhee provided any opinion as to the cause of
appellant’s disability. The Board has held that medical evidence that does not address the cause
of a claimant’s disability is of diminished probative value.13 Thus the reports from Drs. Cruz and
McGhee are insufficient to establish disability for the period August 21 to 31, 2009 and
September 21 to October 5, 2009 due to the accepted employment injuries. Further, although
these reports suggest that appellant was having pain sufficient to warrant a return to total
disability, for these conditions to return her to compensation it must be established that they were
related to the accepted conditions. Neither lumbar nor lumbosacral intervertebral disc
degeneration were accepted conditions. Appellant’s accepted back conditions were aggravation
of L5-S1 spondylolisthesis and aggravation of acquired spondylolisthesis. Thus the reports from
Drs. Cruz and McGhee are insufficient to establish a recurrence of the accepted employment
injuries.
Appellant also submitted progress notes and reports from Dr. Hanna, a treating Boardcertified physiatrist, who diagnosed lumbar spinal stenosis, lumbar radiculopathy and lumbar
intervertebral disc degeneration. Dr. Hanna placed her off work for the period August 31 to
September 17, 2009 due to uncontrolled symptoms but also did not provide any reason for her
need to be off work. Without such specificity, this report is insufficient to meet the burden of
proof necessary to establish a recurrence.
The form report from Mr. Blanchfield, a nurse practitioner, has no probative medical
value in establishing appellant’s recurrence claim. A nurse practitioner is not a physician as
defined under FECA.14
The record also contains reports from Dr. Tauber diagnosing L4-5 and L5-S1
spondylolisthesis with sciatica, providing physical findings and supporting appellant’s claim for
disability. On December 17, 2009 Dr. Tauber found appellant to be temporarily disabled due to
significant lumbar spine pathology. Subsequent supplemental reports indicated that appellant
was seen by him for back pain and that she remained temporarily disabled from working. On
January 20, 2011 Dr. Tauber attributed her disability to her severe pain which he found was
supported by a physical examination and abnormal MRI scan findings. He opined that appellant
was unable to perform her light-duty job due to her inability to tolerate long periods of sitting as
a result of her severe pain. The Board has consistently held that pain is a symptom, not a
13

A.D., 58 ECAB 149 (2006); Ellen L. Noble, 55 ECAB 530 (2004).

14

See B.B., Docket No. 09-1858 (issued April 16, 2010); L.D., 59 ECAB 648 (2008); G.G., supra note 2;
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).

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compensable medical diagnosis.15 Further, Dr. Tauber did not provide sufficient rationale
explaining how appellant’s diagnosed conditions and disability commencing August 20, 2009
were causally related to the accepted conditions of August 22, 2003. Thus his opinion is of little
probative value these reasons.16 For these reasons, the Board finds that Dr. Tauber’s reports are
insufficient to establish appellant’s claim.
In a January 28, 2011 report, Dr. Hanna stated that appellant was last seen on August 31,
2009 and noted her work restrictions. Based on a review of the physical demands of the limitedduty job position and her objective and subjective findings, he concluded that she was unable to
perform the essential job duties of the modified position. While Dr. Hanna opined that
appellant’s recurrence of disability was due to her inability to perform the light-duty job, he did
not provide any rationale or explanation supporting his conclusion and thus his opinion is of little
probative value.17 The opinion of a physician supporting causal relationship must be one of
reasonable medical certainty that the condition for which compensation is claimed is causally
related to federal employment and such relationship must be supported with affirmative
evidence, explained by medical rationale and be based upon a complete and accurate medical
and factual background.18 As Dr. Hanna failed to do this, his reports are insufficient to support
appellant’s burden of proof.
Appellant’s counsel has argued that the provision for recurrences within 90 days of return
to work should apply thereby relaxing the need for the medical evidence to support causal
relationship. The Board disagrees. OWCP’s procedure manual states this section applies in
cases where recurring disability for work is claimed within 90 days or less from the “first return
to duty.”19 Appellant’s accepted work injury occurred on August 23, 2003. Since then she
returned to work on May 16, 2005 and worked through May 20, 2005. Appellant again returned
to work on May 23, 2005 and stopped work on May 24, 2005. She returned to work again on
August 3 through 20, 2009 and worked again from September 8 through 9, 2009. As this is not
appellant’s “first return to duty,” this section is not applicable.
Counsel further argues that this case should have been handled as a termination of
benefits rather than a recurrence. He contends the burden of proof remained with OWCP as
appellant had never successfully returned to full duty. The Board finds this case is properly
adjudicated as a recurrence. There are situations where a claimant returns to work for a short
period of time and in those cases the Board has found that the burden remained with OWCP.20
Here appellant had accepted the employing establishment light-duty position in writing and had
returned to work from August 3 to 20, 2009 and again from September 8 to 9, 2009. The facts of
this case are distinguishable from that line of cases.
15

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

16

See Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

17

Albert C. Brown, 52 ECAB 152 (2000).

18

Conard Hightower, 54 ECAB 796 (2003).

19

Supra note 11.

20

Fred Reese, 56 ECAB 568 (2005); Janice Migut, 50 ECAB 166 (1998).

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As discussed above, appellant failed to provide evidence establishing that her disability
was due to the accepted conditions of aggravation of L5-S1 spondylolisthesis, aggravation of
acquired spondylolisthesis, deviated nasal septum, scar conditions and fibrosis of the skin, closed
nasal bone fracture and a consequential right knee sprain and consequently failed to meet her
burden. The record contains no report from her treating physician describing the duties she
could not perform or noting any objective evidence other than pain which would support
disability. In accordance with Board case law, in order to establish a recurrence of disability due
to a worsening of her condition, appellant must establish a change in the light-duty position
(which has not been alleged) or a change in the nature and extent of her accepted injury-related
condition such that she can no longer perform her light-duty employment.21 Appellant failed to
meet that burden.
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 established that she sustained a recurrence of
disability on and after August 20, 2009 causally related to her accepted August 22, 2003
employment injuries.

21

Richard A. Neidert, 57 ECAB 474 (2006); see J.F., 58 ECAB 124 (2006); Sherry A. Hunt, 49 ECAB 467
(1998); Glenn Robertson, 48 ECAB 344 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 7, 2011 is affirmed.
Issued: September 26, 2012
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
__________________________________________
J.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Media, PA, Employer
__________________________________________

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

Docket No. 10-606
Issued: April 20, 2011

Case Submitted on the Record

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

JURISDICTION
On January 5, 2010 appellant, through her attorney, timely appealed the November 10,
2009 merit decision of the Office of Workers’ Compensation Programs, which denied her claim
for wage-loss compensation. Pursuant to the Federal Employees’ Compensation Act1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.2
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for the period May 7
through December 21, 2007.

1
2

5 U.S.C. §§ 8101-8193.

The record on appeal contains evidence received after the Office issued its November 10, 2009 decision. The
Board may not consider evidence that was not in the case record when the Office rendered its final decision.
20 C.F.R. § 501.2(c)(1) (2010).

FACTUAL HISTORY
Appellant, then a 47-year-old letter carrier, has an accepted claim for aggravation of
sciatica and aggravation of displacement of lumbar intervertebral disc, which arose on
June 1, 2006. Her injury occurred when she “twisted putting down a ½ tub” of flats. Appellant
previously sustained an employment-related lumbar strain and herniated disc. At the time of the
June 1, 2006 injury, she was performing limited-duty work as a consequence of her February 11,
2003 employment injury.3 Following the June 2006 injury, appellant received continuation of
pay for 45 days. The Office then paid her wage-loss compensation for the period of July 17,
2006 through May 6, 2007.
By decision dated February 27, 2008, the Office found that the medical evidence did not
establish appellant’s entitlement to wage-loss compensation on or after May 7, 2007.4
Appellant subsequently requested reconsideration.
In a May 8, 2008 report,
Dr. Dworkin, diagnosed traumatic sciatica and noted that she was having difficulty with walking
and sitting. He scheduled appellant for an epidural steroid injection.5 In a similarly dated (Form
CA-20) (attending physician’s report), Dr. Dworkin diagnosed recurrent traumatic sciatica. He
identified both February 11, 2003 and June 1, 2006 as the date of injury. Dr. Dworkin noted that
he first examined appellant on September 11, 2003 and had treated her since then. He also noted
that she had been totally disabled since June 1, 2006 and that her disability was ongoing. In the
“remarks” section of the report, Dr. Dworkin noted back and leg pain from discogenic pain
syndrome. He also provided a May 8, 2008 (Form CA-17) (duty status report), which indicated
that he had not yet advised appellant to return to work.
In a decision dated February 17, 2009, the Office denied modification of the February 27,
2008 decision.
On April 21, 2009 appellant requested reconsideration. The request was accompanied by
an April 23, 2009 Form CA-17, and a similarly dated Form CA-20, both from Dr. Dworkin. By
decision dated June 9, 2009, the Office again denied modification.
The Office referred appellant for a second opinion evaluation by Dr. Ronald M. Krasnick,
a Board-certified orthopedic surgeon. The stated purpose of the referral was to determine if
appellant continued to have residuals of the accepted work injuries and to clarify her injuryrelated diagnoses.
3

Appellant initially filed a claim for recurrence of disability (Form CA-2a). However, because she described a
new traumatic injury occurring on June 1, 2006, the Office treated it as a separate claim rather than a recurrence of
her February 11, 2003 injury.
4

On her December 13, 2007 (Form CA-7), appellant claimed temporary total disability for the period July 17,
2006 through December 21, 2007. The Office awarded compensation from July 17, 2006 through May 6, 2007
ostensibly based on the January 11, 29 and May 7, 2007 reports of her treating physician, Dr. Gerald E. Dworkin, a
Board-certified physiatrist, who found that she was totally disabled dating back to June 1, 2006. In a January 29,
2007 report, Dr. Dworkin indicated that appellant was bedridden three to four days a week and on May 7, 2007 he
indicated that her injury had yet to resolve. He also noted that her expected recovery date was undetermined.
5

Appellant subsequently received injections on July 21, 2008 and April 20, 2009.

2

In a report dated July 1, 2009, Dr. Krasnick advised that appellant’s diagnoses included
temporary aggravation of displacement of lumbar intervertebral disc without myelopathy and
temporary aggravation of sciatica. He noted that she had no objective evidence of radiculopathy;
however, she had continuing residuals, which he identified as a “tendency for recurrent back
pain, mechanical.” Dr. Krasnick also noted there was a “slight exaggeration of symptomatology
objectively.” Appellant also had recurrent muscle spasm and subjective complaints of low back
pain. Dr. Krasnick imposed limitations on bending and lifting in excess of 30 pounds. He
explained that, while appellant was unable to perform her usual occupation, she could perform
her modified duties.6 In response to the Office’s question regarding “[p]eriods of total disability
due to the work-related condition,” Dr. Krasnick indicated that appellant had been disabled from
June 1, 2006 to the present. He also stated that she had reached maximum medical improvement
and required no additional treatment and specifically no “additional injections.”
On August 17, 2009 the Office forwarded Dr. Krasnick’s report to Dr. Dworkin for his
review and comment. That same day it wrote him requesting a supplemental report that
specifically addressed the period during which the claimant was totally disabled by the effects of
the work injuries.... The Office also asked Dr. Krasnick to address when total disability ceased.
That day the Office also sought additional medical information from both Dr. Dworkin
and Dr. Krasnick. It also received appellant’s request for reconsideration dated August 13, 2009.
Counsel premised the request for reconsideration on Dr. Krasnick’s July 1, 2009 report, and
particularly his finding that appellant “[had] been disabled from June 1, 2006 to the present.”
In a supplemental report dated August 19, 2009, Dr. Krasnick indicated that appellant
sustained a lumbosacral strain/sprain on February 11, 2003 when she slipped and fell on ice and
snow. This initial injury rendered her partially disabled, but not totally disabled. Dr. Krasnick
explained that, while appellant was incapable of carrying the mail, she was able to case mail.
Appellant’s June 1, 2006 injury exacerbated her strain/sprain and despite conservative treatment,
she remained symptomatic. Dr. Krasnick stated that “[o]nce again [she] is a candidate for casing
mail,” and she should be seen as partially disabled. He concluded that appellant had “partial but
not complete disability from February 11, 2003 up until the present time.”
Dr. Dworkin did not respond to the Office’s August 17, 2009 request to comment on
Dr. Krasnick’s July 1, 2009 report, but the Office received various treatment records from the
Whalen Rheumatology Group. The records covered the period of June 6, 2006 through
October 27, 2009, representing approximately three dozen visits. Kelly A. O’Connor, a certified
registered nurse practitioner (CRNP), treated appellant during her numerous visits.
By decision dated November 10, 2009, the Office found that appellant was not totally
disabled from May 7 through December 21, 2007. Based on Dr. Krasnick’s opinion, it
determined that she was only partially disabled and capable of performing a modified position
similar to the one she held at the time of her June 1, 2006 injury.
6

In January 2007, the employing establishment offered appellant her previous limited-duty modified letter carrier
position. Appellant declined the offer on February 3, 2007 based on Dr. Dworkin’s January 29, 2007 report, which
indicated that she was bedridden three to four days a week and was unable to sit and stand for either short or long
periods of time.

3

LEGAL PRECEDENT
When the Office accepts that an employee sustained an employment-related injury and
advises the employee that she must file a Form CA-7 with supporting medical evidence to
establish a period of disability, the employee retains the burden of proof to establish continuing
disability until the Office advises the employee that it has placed the claim on the periodic rolls
and that CA-7 forms with supporting evidence are no longer needed.7 As explained in the Office
regulations, “It is the employee’s responsibility to submit Form CA-7. Without receipt of such
claim, [the Office] has no knowledge of continuing wage loss. Therefore while disability
continues, the employee should submit a claim on Form CA-7 each two weeks until otherwise
instructed by [the Office].”8
Benefits are available only while the effects of a work-related condition continue.9
Compensation for wage loss due to disability is available only for any periods during which an
employee’s work-related medical condition prevents him or her from earning the wages earned
before the work-related injury.10
The physician’s opinion must be based on the facts of the case and the complete medical
background of the employee, must be one of reasonable medical certainty and must include
objective findings in support of its conclusions.11 Subjective complaints of pain are not
sufficient, in and of themselves, to support payment of continuing compensation.12 Likewise,
medical limitations based solely on the fear of a possible future injury are also not sufficient to
support payment of continuing compensation.13
ANALYSIS
Based on Dr. Dworkin’s reports the Office accepted appellant’s June 1, 2006
employment-related injury and paid her almost a year’s worth of wage-loss compensation for
temporary total disability through May 6, 2007. While the Office paid appellant for an extensive
period of time (294-calendar days) based on the Form CA-7 submitted, it did not place her on the
7

Carlos A. Marrero, 50 ECAB 117, (1998); Donald Leroy Ballard, 43 ECAB 876 (1992).

8

20 C.F.R. § 10.102 (b) (1). The Board notes that the Office procedure manual suggests that “[w]here prolonged
(over 90 days) or permanent disability is expected, compensation for wage loss should be paid on the periodic rolls.”
Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Cases, Chapter 2.812.4
(March 2010). As the Board explained in Lan Thi Do, 46 ECAB 366 (1994), if the short-term rolls is utilized and
wage-loss benefits are paid continuously for over a year, the claim should have been paid on the periodic rather than
short-term rolls and appellant is entitled to pretermination notice prior to termination of compensation.
9

Id. at § 10.500(a).

10

Id.

11

Id. at § 10.501(a)(2).

12

Id.

13

Id.

4

periodic compensation rolls. The burden therefore remained on appellant to establish continuing
disability.
The contemporaneous medical evidence from Dr. Dworkin, dated May 7, 2007, indicated
that appellant’s injury had yet to resolve. Dr. Dworkin also noted that appellant’s expected
recovery date was undetermined. This report did not provide a definitive assessment regarding
the extent and anticipated duration of any employment-related disability.
Although Dr. Dworkin indicated that appellant remained totally disabled, his May 8,
2008 and April 23, 2009 reports did not adequately explain how her June 1, 2006 employment
injury continued to preclude her from performing any and all work. These reports were cursory.
The Whalen Rheumatology Group treatment records are also insufficient because there is no
clear indication that the nurse practitioner’s findings were reviewed and approved by a physician.
A nurse practitioner is not considered a “physician” under the Act.14
The Office therefore referred appellant to Dr. Krasnick, who initially found that she
“[had] been disabled from June 1, 2006 to the present.” Dr. Krasnick’s July 1, 2009 report also
indicated that she continued to have residuals of her employment injury, but she was capable of
performing her previous modified duties. The Office requested a supplemental report to clarify
the timeframe that appellant was totally disabled as a result of her employment injuries.15 In his
August 19, 2009 supplemental report, Dr. Krasnick indicated that appellant “had partial but not
complete disability from February 11, 2003 up until the present time.” The Office relied upon
his opinion to find that appellant was not totally disabled for the claimed period of May 7 to
December 21, 2007. It further found that appellant was able to perform the modified position the
employing establishment offered her in January 2007.
Once the Office undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.16 Rather than
clarifying matters, Dr. Krasnick’s August 19, 2009 supplemental report undermined what
appeared to be a finding that appellant had been totally “disabled from June 1, 2006 to the
present.” His subsequent statement that she had “partial but not complete disability from
February 11, 2003 up until the present time” not only contradicted his previous report, but also
ran afoul of the Office’s decision to award wage-loss compensation for temporary total disability
from July 17, 2006 through May 6, 2007. Dr. Krasnick essentially provided two contradictory
findings regarding the extent of any disability attributable to appellant’s June 1, 2006
employment injury. Accordingly, the case shall be remanded to the Office to resolve any and all
inconsistencies arising from Dr. Krasnick’s July 1, 2009 Office-directed examination. After the
Office has developed the case to the extent it deems necessary, a de novo decision shall be issued
regarding appellant’s claimed entitlement to wage-loss compensation on or after May 7, 2007.
14

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); see, e.g., L.D., 59 ECAB 648, 656 (2008); Roy L. Humphrey, 57
ECAB 238, 242 (2005).
15

Counsel ascribed an improper motive for seeking a supplemental report from Dr. Krasnick. However, there is
noting in the record to support counsel’s allegation that the Office’s request was “intended solely to manufacture
evidence unfavorable to [appellant].”
16

Richard F. Williams, 55 ECAB 343, 346 (2004).

5

CONCLUSION
The case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 10, 2009 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision.
Issued: April 20, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Coatesville, PA, Employer
__________________________________________

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)
)
)
)
)

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

Docket No. 21-0709
Issued: December 29, 2021

Case Submitted on the Record

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

JURISDICTION
On April 9, 2021 appellant filed a timely appeal from a December 7, 2020 merit decision
and a February 22, 2021 nonmerit 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish a right shoulder
condition causally related to the accepted June 14, 2020 employment incident; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 15, 2020 appellant, then a 67-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that, on that date, she injured her right shoulder wh ile providing care to a patient
in the performance of duty. She did not initially stop work.
By development letter dated June 26, 2020, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. OWCP afforded appellant 30 days to
provide the necessary evidence.
In a June 5, 2020 work capacity evaluation (Form OWCP-5c), Dr. Carl E. Becker, a Boardcertified orthopedic surgeon, noted appellant’s work restrictions with regard to reaching, pushing,
and pulling.
A June 15, 2020 employing establishment report of employee’s emergency treatment noted
by checkmark that appellant had a work-related injury and that she had limited use or her right
upper extremity with restrictions on lifting, pulling, and pushing. The signature on the form is
illegible.
In a June 25, 2020 report, Dr. Becker related that appellant was seen for “shoulder pain
after a pulling motion on June 14, 2020.” He noted that she had a history of four prior surgeries
on her right shoulder.” Dr. Becker related that appellant’s pain began after pulling a sheet when
changing a patient at work and noted that x-rays revealed a high riding humeral head and anchors
from a previous rotator cuff repair. He indicated that she related that she was doing well until “this
most recent incident which I think may have exacerbated her pain.” Dr. Becker indicated that he
recommended a reverse total shoulder arthroplasty of the right shoulder.
A July 13, 2020 operative report indicated that Dr. Becker performed a right reverse total
shoulder arthroplasty. A July 14, 2020 discharge summary noted a diagnosis of resolved rotator
cuff insufficiency of the right shoulder. X-rays of appellant’s right shoulder on July 31, 2020,
revealed a reverse total shoulder arthroplasty in good shoulder position with no evidence of any
wear, loosening, or subsidence.
By decision dated August 4, 2020, OWCP found that appellant had established that the
incident occurred as alleged however, it denied the claim, finding that the evidence of record was
insufficient to establish the medical component of the third basic element, fact of injury. It
explained that pain was a symptom and not a diagnosis and that rotator cuff insufficiency was not
a specific diagnosis.
In a July 29, 2020 treatment note, Dr. Becker noted that appellant was two weeks’ status
post right reverse total shoulder arthroplasty and was doing well.
In an August 4, 2020 attending physician’s report (Form CA-20), Dr. Becker diagnosed
rotator cuff insufficiency, marked a box “Yes” in response to whether he believed the condition
was caused or aggravated by an employment activity, and indicated that he performed a reverse
shoulder arthroplasty.

2

In an August 25, 2020 attending physician’s first report, Dr. Becker diagnosed instability
of right shoulder and advised that appellant could not use her right shoulder until approximately
October 13, 2020. He noted that he was first consulted on June 25, 2020, appellant’s condition
developed due to an injury at work, and she underwent a right reverse total shoulder replacement
on July 13, 2020.
On September 9, 2020 OWCP received appellant’s request for reconsideration.
OWCP received a March 16, 2017 magnetic resonance imaging (MRI) scan of appellant’s
right shoulder read by Dr. Victor Longo, III, a Board-certified diagnostic radiologist and osteopath,
who compared the findings to an MRI scan of the right shoulder from June 18, 2013. Dr. Longo
noted a full-thickness rotator cuff tear of the supraspinatus and infraspinatus tendons, with
retraction and fatty muscular infiltration, and severe biceps tendinosis.
In a September 14, 2020 Form CA-20, Dr. Becker diagnosed rotator cuff insufficiency,
marked the box “Yes” in response to whether he believed the condition was caused or aggravated
by an employment activity, and indicated that he performed a reverse shoulder arthroplasty. He
completed a September 14, 2020 Form OWCP-5c indicating that appellant could not work from
July 15 to October 22, 2020.
In an October 27, 2020 Form CA-20, Dr. Becker indicated that appellant sustained a
shoulder injury on June 14, 2020, and underwent a reverse total shoulder replacement on
July 13, 2020. He noted that appellant had a preexisting condition and that she had undergone
previous shoulder surgery. Dr. Becker noted that x-rays of appellant’s right shoulder showed a
high riding humeral head and anchors from the prev ious surgery. He again diagnosed right
shoulder pain and insufficiency of right rotator cuff , and marked a box “Yes” indicating that he
believed the condition was caused or aggravated by an employment activity . Dr. Becker noted
that appellant aggravated the shoulder pain by pulling a sheet while changing a patient.
In an October 27, 2020 Form OWCP-5c, Dr. Becker indicated that appellant had
permanent work restrictions.
By decision dated December 7, 2020, OWCP modified the August 4, 2020 decision to find
that a diagnosis of right rotator cuff insufficiency and instability of right shoulder had been
established. However, the claim remained denied as appellant had not established that the
diagnosed conditions were causally related to the accepted work incident.
On January 8, 2021 appellant requested reconsideration.
On January 8, 2021 OWCP received an undated Form CA-20 from Dr. Becker, who
repeated his prior findings. It also received a copy of Dr. Becker’s June 25, 2020 report.
By decision dated February 22, 2021, OWCP denied reconsideration of the merits of
appellant’s claim.

3

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant. 6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence. 7 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 diagnosed condition and specific employment factors identified by the employee. 8
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,

2

Id.

3

See H.H., Docket No. 20-0839 (issued May 25, 2021); C.G., Docket No. 20-0957 (issued January 27, 2021); J.W.,
Docket No. 18-0678 (issued March 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178
(2007); Joe D. Cameron, 41 ECAB 153 (1989).
4

J.S., Docket No. 18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No. 18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

C.G., supra note 3; S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

7

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8

R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J., 59
ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted June 14, 2020 employment incident.
In a June 25, 2020 report, Dr. Becker noted that appellant was seen for right shoulder pain
after a pulling motion on June 14, 2020. He noted that appellant related that her pain began after
pulling a sheet when changing a patient at work. Dr. Becker opined that it was “this most recent
incident which I think may have exacerbated her pain.” The Board consistently has held that pain
is a symptom and not a compensable medical diagnosis. 10 In an August 25, 2020 attending
physician’s first report, Dr. Becker diagnosed instability of right shoulder and indicated the
condition developed due to an injury at work. These reports from Dr. Becker failed to provide a
definitive diagnosis, distinguish the effects of appellant’s preexisting previous shoulder repair
conditions from the claimed employment-related aggravation, and sufficiently explain how the
June 14, 2020 employment incident caused an aggravation of a diagnosed condition.11 These
reports therefore are insufficient to establish that appellant had a diagnosed right shoulder
condition causally related to the June 14, 2020 employment incident.
In CA-20 forms dated August 4, September 14, and October 27, 2020, Dr. Becker
diagnosed right shoulder pain and insufficiency of right rotator cuff , marked the box “Yes” in
response to whether he believed the condition was caused or aggravated by an employment
activity, and indicated that appellant aggravated the right shoulder pain by pulling a sheet while
changing a patient at work. The Board has held that an opinion on causal relationship which
consists of a physician checking a box in response to a form question, without supporting medical
rationale explaining how the employment activity caused the diagnosed condition , is of little
probative value. 12 While Dr. Becker noted that appellant had previous right shoulder surgery, he
did not explain with medical rationale how he concluded that the diagnosed condition was
aggravated by the June 14, 2020 incident at work. 13 These reports are therefore of diminished

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); J.D.,
Docket No. 20-0404 (issued July 22, 2020); K.G., Docket No. 18-1598 (issued January 7, 2020); M.S., Docket No.
19-0913 (issued November 25, 2019).
10

A.G., Docket No. 20-1319 (issued May 19, 2021); T.S., Docket No. 20-0343 (issued July 15, 2020); J.P., supra
note 3; Joe D. Cameron, supra note 3.
11

Id.; L.R., Docket No. 16-0736 (issued September 2, 2016).

12

See O.N., Docket No. 20-0902 (issued May 21, 2021); see A.R., Docket No. 19-0465 (issued August 10, 2020);
C.T., Docket No. 20-0020 (issued April 29, 2020); M.R., Docket No. 17-1388 (issued November 2, 2017); Gary J.
Watling, 52 ECAB 278 (2001).
13

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

5

probative value and insufficient to establish that appellant’s diagnosed conditions should be
accepted as employment related. 14
Appellant submitted a June 5, 2020 Form OWCP-5c which revealed restrictions for work,
a June 15, 2020 report of employee’s emergency treatment which noted that appellant had limited
use or her right upper extremity, a July 13, 2020 operative report which revealed that Dr. Becker
performed a right reverse total shoulder arthroplasty, a July 14, 2020 discharge summary which
revealed a resolved diagnosis of rotator cuff insufficiency of the right shoulder, a July 29, 2020
treatment note in which Dr. Becker noted that appellant was two weeks’ status post right reverse
total shoulder arthroplasty, a September 14, 2020 Form OWCP-5c from Dr. Becker which
indicated no work from approximately July 15 to October 22, 2020, and an October 27, 2020 Form
OWCP-5c from Dr. Becker which indicated that appellant had permanent work restrictions. These
reports, however, did not offer a medical opinion regarding the cause of appellant’s diagnosed
conditions. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship. 15
The July 31, 2020 x-rays and March 16, 2017 MRI scan also do not constitute probative
medical evidence, as the Board has held that diagnostic tests lack probative value on the issue of
causal relationship. 16
As appellant has not submitted rationalized medical evidence establishing that her
diagnosed medical conditions were causally related to the accepted employment incident of
June 14, 2020, the Board finds that she has not met her burden of proof.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 17
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a

14

Id.

15

See B.S., Docket No. 20-0895 (issued June 15, 2021); see D.C., Docket No. 19-1093 (issued June 25, 2020); see
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
16

See V.W., Docket No. 20-0693 (issued June 2, 2021); A.F., Docket No. 17-1514 (issued April 10, 2018); C.B.,
Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).
17

5 U.S.C. § 8128(a).

6

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 18
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought. 19 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits. 20 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 21
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, and did not advance a relevant legal argument not previously considered by OWCP. It
therefore properly determined that her request did not warrant a review of the merits of the claim
based on the first and second requirements of section 10.606(b)(3). 22
In support of her reconsideration request, appellant submitted an undated Form CA-20
from Dr. Becker, who repeated his prior f indings, and a copy of his June 25, 2020 report. The
Board notes that this evidence is duplicative of evidence previously considered by OWCP.
Evidence which repeats or duplicates evidence already of record has no ev identiary value and does
not constitute a basis for reopening a case. 23 As appellant did not provide relevant and pertinent
new evidence, she is not entitled to a merit review based on the third requirement under 20 C.F.R.
§ 10.606(b)(3). 24 Therefore, OWCP properly determined that her request did not warrant a review
of the merits of the claim based on the third requirement of section 10.606(b)(3).
As appellant has not met any of the regulatory requirements under 20 C.F.R.
§ 10.606(b)(3), pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

18

20 C.F.R. § 10.606(b)(3).

19

Id. at § 10.607(a).

20

Id. at § 10.608(a).

21

Id. at § 10.608(b).

22

See M.C., Docket No. 18-1278 (issued March 7, 2019); see S.M., Docket No. 17-1899 (issued August 3, 2018).

23

R.B., Docket No. 21-0035 (issued May 13, 2021); V.L., Docket No. 19-0069 (issued February 10, 2020); A.K.,
Docket No. 19-1210 (issued November 20, 2019); R.S., Docket No. 19-0312 (issued June 18, 2019); Richard Yadron,
57 ECAB 207 (2005).
24

See T.W., Docket No. 18-0821 (issued January 13, 2020).

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted June 14, 2020 employment incident. The Board further
finds that OWCP properly denied appellant’s request for reconsideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 7, 2020 and February 22, 2021
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 29, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Massapequa Park, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for appellant
Office of Solicitor, for the Director

Docket No. 14-1943
Issued: May 4, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 8, 2014 appellant, through counsel, filed a timely appeal from a July 30,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of disability commencing
March 24, 2012.
FACTUAL HISTORY
OWCP accepted that on April 2, 1991 appellant, then a 27-year-old letter carrier,
sustained a left shoulder sprain when he tripped and fell on stairs. Appellant did not stop work at
the time of injury. OWCP later expanded the claim to accept left cervical radiculitis, left
1

5 U.S.C. § 8101 et seq.

shoulder impingement, an intervertebral disc disorder with myelopathy, and a herniated C6-7
disc.
Dr. Eric Putterman, an attending Board-certified orthopedic surgeon, limited appellant to
working for four hours a day. Appellant worked four hours a day as a modified letter carrier
from December 19, 1992 onward. He received compensation for the remaining four hours.2
By decision dated March 8, 1994, OWCP found that the part-time modified letter carrier
position that appellant began on December 19, 1992 fairly and reasonably represented his wageearning capacity. It reduced his compensation beginning March 6, 1994, based on his actual
earnings.
On April 25, 1995 Dr. Putterman performed left shoulder arthroscopy to repair anterior
and posterior labral tears with acromioclavicular impingement.
Appellant received
compensation for work absence through June 1996, when he returned to light-duty work.3
Dr. Putterman increased appellant’s schedule from four to six hours a day through
September 2001.4
On February 15, 2002 appellant claimed a recurrence of disability commencing
January 29, 2002 while on light duty.5 He returned to work for four hours a day as of
July 24, 2002 as a modified letter carrier. OWCP issued wage-loss compensation for the
remaining four hours a day.
OWCP issued an informal wage-earning capacity determination dated March 25, 2003,
based on appellant’s actual earnings of $409.95 a week as a part-time modified letter carrier.
Appellant continued to work four hours a day in the modified position through May 2007.
OWCP accepted a recurrence of disability commencing June 28, 2007 as work was not available
within his medical restrictions. Appellant continued to work part-time light duty up to four hours
a day and claimed compensation for the remaining hours.
In a November 12, 2008 memorandum, OWCP noted that the March 8, 1994 wageearning capacity determination should have been vacated by the April 25, 1995 surgery and
subsequent 13 months of total disability. It advised that there was no current wage-earning
capacity determination in effect. OWCP continued to issue wage-loss compensation.

2

Dr. William A. Healy, Jr., a Board-certified orthopedic surgeon performing a fitness-for-duty examination for
the employing establishment, found appellant able to work eight hours a day, limited duty, as of
September 29, 1993.
3

OWCP obtained a second opinion from Dr. Healy on February 29, 1996, who opined that appellant could
perform sedentary work for eight hours a day.
4

Dr. Putterman noted on June 1, 2006 that magnetic resonance imaging (MRI) scan studies demonstrated
continued degeneration in the cervical spine and left shoulder.
5

A January 4, 2002 MRI scan arthrogram of the left shoulder revealed no evidence of rotator cuff or labral tear,
and mild instability of the left shoulder.

2

On November 6, 2009 Dr. Putterman restricted appellant to working no more than four
hours a day due to increasing cervical radiculopathy and left shoulder instability. Beginning on
March 4, 2010 appellant worked four hours a day.
On December 14, 2011 appellant accepted a light-duty job offer as a modified letter
carrier for two hours a day, working from 6:00 a.m. to 8:00 a.m. The job required up to one hour
of reaching, up to one hour of throwing or casing mail, and up to one hour of delivering express
mail. The position was within Dr. Putterman’s restrictions.
In a December 21, 2011 report, Dr. Putterman diagnosed recurrent subluxation of the left
shoulder.6 As of March 15, 2012, he restricted appellant from driving before 9:00 a.m., due to
the sedating effect of medications prescribed for the accepted injuries.
On April 6, 2012 appellant claimed a recurrence of disability commencing March 24,
2012 as the employing establishment withdrew his light-duty job. He also asserted that casing
mail aggravated his neck and left shoulder, disabling him from work. Appellant stopped work
on March 24, 2012. He claimed compensation from March 24 to April 6, 2012.
In an April 13, 2012 letter, the employing establishment clarified that it had not
withdrawn appellant’s light-duty position. Appellant was precluded from performing the job as
Dr. Putterman prohibited driving before 9:00 a.m. and appellant’s duty shift was from 6:00 a.m.
to 8:00 a.m.7
By decision dated September 24, 2012, OWCP denied the claim finding that appellant
had not established a basis for modifying the March 8, 1994 wage-earning capacity decision.
Appellant requested a telephonic hearing that was held on February 12, 2013. During the
hearing, he asserted that his condition had worsened such that he could no longer perform his
light-duty job. In support of this contention, appellant submitted an October 12, 2012 report
from Dr. Phillip N. Fyman, an attending Board-certified anesthesiologist, recommending trigger
point and epidural injections.8 On March 14, 2013 Dr. Mitchell Goldstein, an attending Boardcertified orthopedic surgeon, opined that “repetitive work motion and activity” increased
appellant’s “cervical spine and shoulder orthopedic pathology forcing him to stop work.”
Dr. Putterman continued to restrict appellant to working four hours a day, with no driving before
9:00 a.m.
In a May 7, 2013 decision, an OWCP hearing representative set aside the September 24,
2012 decision. He found that the March 8, 1994 wage-earning capacity decision was erroneous
6

A February 22, 2012 cervical MRI scan showed a C3-4 disc herniation, posterior disc-osteophyte complexes
from C2 to C7, causing mild central canal stenosis from C3 to C7 with compression of the right C4, C6, and C7
nerve roots. A February 23, 2012 MRI scan arthrogram left shoulder showed an anterior labral tear. March 1, 2012
electromyogram and nerve conduction velocity studies showed bilateral mild median neuropathy at the wrists, worse
on the left, without evidence of cervical radiculopathy.
7

On September 10, 2012 Dr. Putterman restricted appellant from casing mail.

8

Dr. Fyman ordered a February 6, 2013 functional capacity evaluation, finding impairments of both shoulders.

3

as appellant was a full-time employee before the date of injury and OWCP did not explain how a
part-time job was found suitable. The hearing representative found that, as there was no wageearning capacity decision properly in place, OWCP must consider whether appellant established
a disability beginning March 24, 2012. He found that the record required further development
and remanded the case for OWCP to obtain a second opinion regarding whether appellant had a
recurrence of disability or whether he sustained a work injury between December 2011 and
March 2012 due to new occupational exposures.
Appellant submitted additional medical evidence. In an April 30, 2013 report,
Dr. Goldstein opined that appellant’s duties as of December 2011 aggravated his left shoulder,
such that he was not able to work as of March 2012. He found appellant totally disabled for
work through October 2013 due to left shoulder instability, a labral tear, and herniated cervical
discs.9 In an August 12, 2013 report, Dr. Putterman diagnosed chronic left shoulder
impingement and cervical radiculopathy. He opined that both conditions were related to the
accepted injury.
On November 5, 2013 OWCP obtained a second opinion from Dr. David Benatar, a
Board-certified orthopedic surgeon, who reviewed the medical record and a statement of
accepted facts. On examination, Dr. Benatar noted restricted left shoulder motion due to pain.
He diagnosed status post occupational injury with cervical stenosis and possible cervical
radiculopathy, and “left shoulder status post arthroscopy with MRI scan evidence of further
labrum injury and possible impingement.” Dr. Benatar opined that it could not be determined if
appellant’s work duties between December 2011 and March 2012 aggravated or accelerated his
condition as he had only examined appellant considerably after March 2012. He found appellant
able to perform light-duty work, noting that appellant could change his medication schedule to
avoid being sedated while driving.
By decision dated November 21, 2013, OWCP denied appellant’s claim for a recurrence
of disability, on the grounds that the medical evidence did not establish that his condition had
worsened such that he was no longer able to perform his assigned light-duty job. It accorded the
weight of the medical evidence to Dr. Benatar.
In a May 1, 2014 letter, counsel requested reconsideration. He asserted that the medical
evidence established that appellant was totally disabled for work as of March 2012. Counsel also
contended that there was a conflict of medical opinion between Dr. Benatar and Dr. Goldstein
regarding whether appellant’s condition worsened such that he was no longer able to work. He
submitted additional reports from Dr. Goldstein dated from January 13 to July 7, 2014, finding
appellant totally and permanently disabled for work. Dr. Goldstein opined that casing mail from
December 2011 to March 2012 aggravated the accepted conditions, requiring increased
medication, and preventing him from driving during his shift.
By decision dated July 30, 2014, OWCP affirmed the prior decision, finding that
appellant did not establish a spontaneous worsening of the accepted conditions.
9

On July 29, 2013 appellant refused a light-duty job offer for four hours a day, requiring casing mail up to four
hours, and reaching above the shoulder with the right arm up to two hours. He contended that he was medically
unable to work and was in the process of applying for disability retirement.

4

LEGAL PRECEDENT
OWCP’s implementing regulations define a “recurrence of disability” as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.10 This term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury is
withdrawn or when the physical requirements of such an assignment are altered such that they
exceed the employee’s physical limitations.11 Appellant has the burden of establishing that there
was no medically appropriate light duty available for the claimed period.12
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 the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative, and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.13 This includes the necessity of
furnishing medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the disabling condition is causally related to
employment factors and supports that conclusion with sound medical reasoning.14 An award of
compensation may not be made on the basis of surmise, conjecture, speculation, or on
appellant’s unsupported belief of causal relation.15
ANALYSIS
On April 6, 2012 appellant claimed a recurrence of disability commencing
March 24, 2012 while on light duty. OWCP denied the claim on September 24, 2012.
Following additional development, it issued November 21, 2013 and July 30, 2014 decisions
denying the recurrence claim.16

10

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).
11

J.F., 58 ECAB 124 (2006).

12

Id.

13

Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986).

14

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

15

Patricia J. Glenn, 53 ECAB 159 (2001); Ausberto Guzman, 25 ECAB 362 (1974).

16

As there was no formal wage-earning capacity determination in place, the November 21, 2013 and July 30,
2014 decisions properly addressed the issue of recurrence of disability. Federal (FECA) Procedure Manual, Part 2 -Claims, Reemployment, Determining Wage-Earning Capacity, Chapter 2.1501.1 (June 2013).

5

Appellant has the burden of providing sufficient rationalized medical evidence supporting
a spontaneous worsening of the accepted cervical radiculitis and left upper extremity injuries.17
However, he did not assert or establish that the accepted conditions deteriorated on their own.
Rather, appellant contended that casing mail at work from December 2011 to March 2012
aggravated his neck and left shoulder conditions. Dr. Goldstein, an attending Board-certified
orthopedic surgeon, supported appellant’s assertions. He opined that repetitive upper extremity
motion at work from December 2011 through March 2012 aggravated appellant’s cervical spine
and left shoulder, totally disabling him for work. Dr. Goldstein thus attributed appellant’s
condition on and after March 24, 2012 to new work factors, an intervening cause negating the
claimed relationship between the accepted injuries and appellant’s ongoing condition.18
Dr. Fyman, an attending Board-certified anesthesiologist, and Dr. Putterman, an attending
Board-certified orthopedic surgeon, did not address causal relationship in their reports. As none
of appellant’s physicians opined that the accepted neck and left shoulder conditions worsened
spontaneously on and after March 24, 2012, their opinions are insufficient to meet appellant’s
burden of proof.19
Alternatively, appellant claimed that the employing establishment withdrew light duty on
March 24, 2012. The Board has held that withdrawal of a light-duty job formulated to comply
with an employee’s work-related medical limitations can constitute a recurrence of disability.20
However, there was no withdrawal of light duty in this case. The employing establishment
stated in an April 13, 2012 letter that appellant’s light-duty position remained open and available.
Appellant also contended that his light-duty job was effectively withdrawn as Dr. Putterman
restricted him from driving before 9:00 a.m. due to medication side effects, precluding him from
delivering mail before 8:00 a.m. as required. However, Dr. Benatar, a Board-certified orthopedic
surgeon and second opinion physician, explained that Dr. Putterman’s restriction was
unnecessary, as appellant could change his medication schedule to be alert and able to drive
before 9:00 a.m.
The Board finds that appellant did not submit sufficient medical evidence to establish a
spontaneous worsening of the accepted injuries, or a withdrawal of light duty. OWCP’s July 30,
2014 decision denying the recurrence claim is therefore proper under the law and facts of this
case.
On appeal, counsel contends that OWCP subjected the opinions of appellant’s physicians
to excessive scrutiny. The Board notes that there is no evidence that OWCP used an improper
standard in reviewing these reports. Counsel also asserts that the medical evidence is entirely
supportive of appellant’s claim for recurrence of disability. As stated above, appellant’s

17

Ricky S. Storms, 52 ECAB 349 (2001).

18

D.B., Docket No. 13-717 (issued July 24, 2013).

19

Ronald A. Eldridge, supra note 14.

20

Supra note 11.

6

physicians did not address the issue or attributed his condition to an intervening cause.21
Counsel also argues that OWCP erred by setting aside the 1994 wage-earning capacity
determination. However, it is well established that a finding that the original determination was
erroneous is sufficient to modify a wage-earning capacity determination.22 There is no evidence
that OWCP acted unreasonably in finding that the 1994 wage-earning capacity determination
was no longer valid.
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 established a recurrence of disability commencing
March 24, 2012.

21

OWCP has not yet issued a decision consistent with instructions in the hearing representative’s May 7, 2013
decision regarding whether appellant sustained a work injury between December 2011 and March 2012 due to new
occupational exposures.
22

Sharon C. Clement, 55 ECAB 552 (2004).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 30, 2014 is affirmed.
Issued: May 4, 2015
Washington, DC

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

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

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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 14-515
Issued: July 22, 2014

Case Submitted on the Record

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

JURISDICTION
On December 30, 2013 appellant, through her attorney, filed a timely appeal from the
December 12, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a five percent permanent impairment of her
left arm, for which she received a schedule award.
FACTUAL HISTORY
OWCP accepted that on February 7, 2007 appellant, then a 50-year-old clerk, sustained
an acute left shoulder strain, left rotator cuff tear, left shoulder impingement syndrome, left
elbow sprain and cervical spine sprain due to pushing and pulling mail containers. She received
1

5 U.S.C. §§ 8101-8193.

disability compensation on the daily and periodic rolls. On December 13, 2007 appellant
underwent authorized left shoulder surgery, including arthroscopic rotator cuff repair,
arthroscopic subacromial decompression and arthroscopic glenohumeral debridement.
On March 27, 2013 appellant filed a claim for a schedule award due to her accepted work
injuries.
In an April 24, 2013 report, Dr. John L. Dunne, an attending osteopath Board-certified in
preventive medicine, reported the findings of his physical examination of appellant. Appellant’s
cervical range of motion was normal with some tightness across the tops of the shoulders.
Dr. Dunne noted that range of motion of appellant’s left shoulder was assessed via goniometer.
Flexion was measured at 150 degrees, extension at 20 degrees, abduction at 120 degrees,
adduction at 40 degrees, external rotation at 60 degrees and internal rotation at 40 degrees, all
with relatively poor quality of motion and scapular dyskinesia with end-point pain. Dr. Dunne
noted that rotator cuff testing was grade 5/5 for all groups and that there was a normal sensory
examination of the left shoulder. He found that appellant reached maximum medical
improvement in December 2009 and noted that, under Table 17-2 of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009), she did not have any impairment due to her cervical strain. Dr. Dunne concluded that
appellant had 14 percent permanent impairment of her right arm. He stated:
“Chapter 15 on the upper extremity best assesses the impairment of the rotator
cuff tear, sprain, surgical repair via a stand-alone range of motion method and
Table 15-34 which totaled a 14 percent range of motion impairment of the right
shoulder. Table 15-35 assigns a 14 percent impairment of the upper extremity to
be a [g]rade [m]odifier 2. The functional history per Table 15-7 is a [g]rade
[m]odifier 1 so no grade adjustment is necessary for a final 14 percent impairment
of the left upper extremity for sprain of the shoulder and upper arm, rotator cuff
tear, other affectations of shoulder not elsewhere classified.
“The left elbow shows a full range of motion to 0 degrees of extension and 145
degrees of flexion, easily able to touch the shoulder and 80 degrees supination and
pronation. Referencing the elbow regional grid, Table 15-4, soft tissues [c]lass 0,
zero percent impairment.
“Final: 14 percent impairment for sprain shoulder and upper arm, rotator cuff,
[zero] percent impairment sprain of the neck. [Zero] percent impairment sprain of
the elbow and forearm for a total of a 14 percent impairment of the left upper
extremity.”
In a May 17, 2003 report, Dr. Morley Slutsky, a Board-certified preventive medicine
physician serving as an OWCP medical adviser, reviewed the medical evidence of record,
including the April 24, 2013 report of Dr. Dunne. He noted that diagnosis-based impairment
ratings were preferred under the sixth edition of the A.M.A., Guides, but that the range of motion
method of rating impairment could be used in some circumstances. Dr. Slutsky found that
Dr. Dunne had documented only one motion per shoulder joint movement, which was not
consistent with the validity criteria in section 15.7 of the A.M.A., Guides for measuring range of

2

motion. He discussed these standards noting that three active range of motion measurements must
be taken per joint motion, that each of the measurements must be within 10 degrees of the
calculated average and that the maximum observed measurement per joint motion was to be used
to determine the final calculated range of motion impairment.
Dr. Slutsky provided a diagnosis-based impairment rating for appellant’s left arm and
concluded that she had five percent permanent impairment. Under Table 15-5 on page 403,
appellant had a diagnosis-based impairment of rotator cuff injury (full-thickness tear) which fell
under Class 1 with a default value of five percent. Dr. Slutsky noted that she had a grade modifier
1 for functional history (ongoing left shoulder pain and dysfunction), a grade modifier 0 for
physical examination (invalid range of motion testing and no other objective findings) and a grade
modifier 2 for clinical studies (diagnostic testing showed full-thickness rotator cuff tear). He
applied the Net Adjustment Formula to find that there was no adjustment from the default value of
a five percent impairment of appellant’s left arm.
In an August 7, 2013 decision, OWCP granted appellant a schedule award for a five
percent permanent impairment of her left arm. The award ran for 15.6 weeks from December 2,
2009 to March 21, 2010.
In a September 12, 2013 report, Dr. Dunne discussed Dr. Slutsky’s May 17, 2003 report
and stated that the range of motion findings he provided on May 17, 2013 were based on the
average of the three goniometer readings in active motion “as prescribed since the [f]ourth
[e]dition of the A.M.A., Guides and carried through in the [f]ifth and [s]ixth [e]ditions.” He
noted that the range of motion findings should be considered valid and stated:
“To satisfy [Dr. Slutsky’s] criticism though, I invited [appellant] back in for
another examination of her shoulder range of motion on July 25, 2013. [A]fter a
brief shoulder warm-up, goniometer measurements of left versus right shoulder
range of motion were taken in an active manner, three trials. Active assisted
range of motion was also done as was passive range of motion. The results varied
by less than [five degrees] and were all accompanied by end-stage pain. These
values differed by less than 10 percent from the original report.
“[I]t is my opinion that the initial range of motion measurements stand as valid,
and if [Dr. Slutsky] wishes to review the raw data as well as my written notes of
the history, past medical and surgical history, related injuries, social and family
history of [appellant], I would be happy to provide that at [Dr. Slutsky’s] request
provided the injured worker agrees to the release of this private work product
which does not enter into the final official report.
“Having established the validity of the range of motion loss impairment involving
the left shoulder of the injured worker, I disagree with [Dr. Slutsky’s] assignment
to the shoulder [diagnosis-based impairment] full rotator cuff tear as the

3

documented objective findings of abnormal motion cannot be accounted for in
any of the shoulder regional grid rotator cuff tear assignments.”2
In a November 22, 2013 report, Dr. Slutsky reviewed Dr. Dunne’s September 12, 2013
report. He noted that it was incorrect for Dr. Dunne to use the average of the three range of
motion readings for each shoulder joint motion, rather than the maximum range of motion value.
Dr. Slutsky stated:
“Dr. Dunne offered to provide all the [range of motion] measurements to the [U.S.
Department of Labor]. I suggest the [U.S. Department of Labor] ask for this
information and to provide them to me for review in consideration of the
claimant’s final impairment calculations.
“If this information is not obtained then the final [left upper extremity] remains
[five] percent. As noted in my previous report the impairment is based upon the
preferred ‘diagnosis’[-]based impairment method and rated the most impairing
diagnosis in the left shoulder region (full-thickness rotator cuff tear with residual
dysfunction). Dr. Dunne used the less preferred [range of motion] method with
invalid left shoulder [range of motion] measurements … to arrive at a final rating
of 14 percent [left upper extremity].”
In a December 12, 2013 decision, OWCP affirmed its August 7, 2013 decision. It found
that appellant did not establish more than five percent permanent impairment of her left arm.
OWCP found that Dr. Slutsky’s assessment was in accordance with the standards of the sixth
edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 For OWCP decisions issued on or after

2

Dr. Dunne suggested that he used the average of the three range of motion readings for each shoulder joint
motion, rather than the maximum range of motion value. Further, the A.M.A., Guides provide that range of motion
is factored under Table 15-8 in consideration of the adjustment for physical examination at pages 407 and 408.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

4

May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.6
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, the relevant portion of the arm for the
present case, reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401.
After the Class of Diagnosis (CDX) is determined from the Shoulder Regional Grid (including
identification of a default grade value), the Net Adjustment Formula is applied using the grade
modifier for Functional History (GMFH), grade modifier for Physical Examination (GMPE) and
grade modifier for Clinical Studies (GMCS). The Net Adjustment Formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).7
While section 15.2 of the sixth edition of the A.M.A., Guides provides that “[d]iagnosisbased impairment is the primary method of evaluation for the upper limb,” Table 15-5 also
provides that, if motion loss is present for a claimant who has a rotator cuff injury, impairment
may alternatively be assessed using section 15.7 (range of motion impairment). Such a range of
motion impairment stands alone and is not combined with a diagnosis impairment.8
Section 15.7 of the sixth edition of the A.M.A., Guides provides:
“Range of motion should be measured after a “warm up,” in which the individual
moves the joint through its maximum range of motion at least [three] times. The
range of motion examination is then performed by recording the active
measurements from [three] separate range of motion efforts. Measurements
should be rounded up or down to the nearest number ending in 0…. All
measurements should fall within 10 [degrees] of the mean of these three
measurements. The maximum observed measurement is used to determine the
range of motion impairment.”9
It is well-established that proceedings under FECA are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.10
ANALYSIS
OWCP accepted that appellant sustained an acute left shoulder strain, left rotator cuff
tear, left shoulder impingement syndrome, left elbow sprain and cervical spine sprain due to
6

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
7

See A.M.A., Guides 401-11 (6th ed. 2009).

8

Id. at 387, 405, 475-78.

9

Id. at 464.

10

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

5

pushing and pulling mail containers. On December 13, 2007 she underwent left shoulder surgery
for arthroscopic rotator cuff repair, arthroscopic subacromial decompression and arthroscopic
glenohumeral debridement. In an August 7, 2013 decision, OWCP granted appellant a schedule
award for five percent permanent impairment of her left arm. The award was based on the opinion
of Dr. Slutsky, a Board-certified preventive medicine physician serving as an OWCP medical
adviser.
In rating five percent impairment of her left arm, Dr. Slutsky carried out a diagnosis-based
method of rating left arm impairment, noting that under Table 15-5 on page 403 of the sixth edition
of the A.M.A., Guides, appellant had a diagnosis-based impairment of rotator cuff injury (fullthickness tear) which fell under class 1 with a default value of five percent. He disagreed with a 14
percent left arm impairment rating devised by Dr. Dunne, an attending osteopath and Boardcertified family practitioner. Dr. Slutsky stated that Dr. Dunne did not properly perform the range
of shoulder motion testing within the standards of the sixth edition of the A.M.A., Guides.11 He
recommended that an attempt be made to obtain the raw data from Dr. Dunne’s range of
shoulder motion testing so that the data could be evaluated and considered as a possible
alternative means of rating appellant’s left arm impairment.
The Board notes that while section 15.2 of the sixth edition of the A.M.A., Guides provides
that “[d]iagnosis-based impairment is the primary method of evaluation for the upper limb,” Table
15-5 also provides that, if motion loss is present for a claimant who has a rotator cuff injury,
impairment may alternatively be assessed using section 15.7 (range of motion impairment).12 In
order to conduct a full evaluation of appellant’s left arm impairment, the Board finds that the
case should be remanded to OWCP to obtain the raw data from Dr. Dunne’s range of shoulder
motion testing. If the data is obtained, it should be evaluated and considered under the relevant
standards of the A.M.A., Guides. After developing the evidence in accordance with the Board’s
decision, OWCP shall issue an appropriate decision regarding appellant’s left arm impairment.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant has
more than a five percent permanent impairment of her left arm.

11

See supra note 9.

12

See supra note 8.

6

ORDER
IT IS HEREBY ORDERED THAT the December 12, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: July 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7