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

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

Docket No. 10-2071
Issued: July 11, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 10, 2010 appellant filed a timely appeal from the July 13, 2010 merit decision
of the Office of Workers’ Compensation Programs. 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 case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that her
cervical condition was employment related; and (2) whether appellant met her burden of proof in
establishing that she had disability from June 24 to July 29, 2009 causally related to her accepted
employment condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 15, 2009 appellant, then a 44-year-old mail processor, filed an occupational
disease claim alleging that she developed a neck condition while performing her work duties.
She became aware of her condition on September 18, 2008 and realized it was causally related to
her employment on October 1, 2008.2 Appellant stopped work on September 20, 2008.
Initial medical reports and diagnostic testing, including a January 4, 2008
electromyogram (EMG), indicated that appellant had mild right carpal tunnel syndrome, without
radiculopathy, that was work related. A December 29, 2008 magnetic resonance imaging (MRI)
scan of the cervical spine revealed multilevel degenerative disc disease of the cervical spine with
hypertrophic degenerative changes and disc spur complex at C4-5 which resulted in significant
encroachment into the left neural foramina and an extruded disc. Appellant was treated by
Dr. Paul D. Croissant, a Board-certified neurologist, on January 12, 2009, for neck pain which
began one year prior. Appellant reported that her neck pain was aggravated because she was
required to work with her neck in flexion. Dr. Croissant noted findings of no atrophy, normal
sensation, intact motor function, normal station and gait. He diagnosed degenerative disc disease
at C4 to C7 with left foraminal spurring and disc herniation at C4-5 and recommended surgery.
On January 14, 2009 Dr. Croissant saw appellant and she indicated that she was trying to
determine whether her cervical condition was work related. Appellant was treated by
Dr. Kenneth J. Richter, an osteopath, from November 3, 2008 to January 27, 2009, for a flare-up
of neck pain with numbness. Dr. Richter diagnosed axial back pain, right shoulder problems and
carpal tunnel syndrome. He noted that appellant was totally disabled. In a January 5, 2009
prescription note, Dr. Richter noted appellant was off work since October 24, 2008 due to her
workers’ compensation injury and diagnosed axial back pain and cervical radiculopathy. In a
January 27, 2009 return to work slip, he diagnosed right C6 radiculopathy and noted appellant
was totally disabled.
On December 4, 2008 appellant underwent an EMG which revealed moderately severe
carpal tunnel syndrome. On June 5, 2009 the Office authorized right carpal tunnel surgery. On
June 28, 2009 Dr. Firas Karmo, a Board-certified neurologist, performed a right carpal tunnel
release and diagnosed right carpal tunnel syndrome.
Appellant filed several claims for compensation, Form CA-7, for total disability for the
period June 24 to July 29, 2009. She also submitted physical therapy reports dated June 25,
July 2, 7, 9 and 14, 2009, noting treatment for carpal tunnel syndrome.

2

On April 13, 2004 appellant filed a claim for a right shoulder injury, claim number xxxxxx336, which was
accepted for right shoulder rotator cuff tear and arthritis, temporary left shoulder strain, temporary neck strain and
temporary lumbar strain. She had surgery on both shoulders. Appellant returned to modified work on October 25,
2007 for 6.5 hours per day. On August 20, 2008, claim number xxxxxx336, the Office granted her a schedule award
for 32 percent right arm impairment. The period of the award was from May 7, 2008 to April 5, 2010. The Office
accepted appellant’s claim for right carpal tunnel syndrome and authorized right carpal tunnel release which was
performed on June 28, 2009.

2

In a letter dated July 8, 2009, the Office requested Dr. Richter provide an opinion,
supported by objective findings and medical rationale, addressing how the diagnosed cervical
condition was related to the September 18, 2008 work incident.
In a July 10, 2009 report, Dr. Richter noted appellant presented without numbness or
tingling after the carpal tunnel release; however, she still had significant pain in her neck. He
noted that appellant had a shoulder injury in 1998 and she reported flexing at work which
aggravated her neck. Dr. Richter noted an MRI scan of the neck revealed multiple levels of
degeneration. He noted that the neurologic examination was normal with no cervical radicular
findings and decreased motion in the neck. Dr. Richter opined that “it is certainly probable that
the neck has been aggravated by the positioning that she did for years at work and there may be a
causal relationship.” In a July 10, 2009 disability certificate, he advised that appellant was
unable to work due to cervical pain.
In a letter dated July 21, 2009, the Office requested that appellant submit medical
evidence establishing total disability from June 24 to July 17, 2009.
On July 17, 2009 the Office referred appellant to Dr. Zachary J. Endress, a Boardcertified orthopedist, for a second opinion. In a July 29, 2009 report, Dr. Endress indicated that
he reviewed the records provided and examined appellant. He diagnosed resolved right carpal
tunnel syndrome and cervical radiculopathy. Dr. Endress noted examination of the right hand
revealed a well-healed surgical scar, intact sensation in the medial nerve distribution and
negative Phalen’s and Tinel signs. He noted normal range of motion of the cervical spine,
normal neurological testing of both arms, with intact motor, sensory and reflexes. Dr. Endress
noted that appellant had subjective findings but no objective findings of cervical radiculopathy
other than an MRI scan which revealed nerve root compression. He found no objective findings
with regard to the right carpal tunnel syndrome and opined that that condition resolved shortly
after surgery. Dr. Endress further noted that it was difficult to ascertain whether appellant’s
diagnosed cervical degenerative disc disease was caused by her work duties and noted appellant
did not relate an actual neck injury; rather she indicated that her condition was due to the
position of her neck during work activities. He was unaware of whether the position of the neck
could cause cervical radiculopathy. Dr. Endress opined that there was an aggravation of a
preexisting cervical radiculopathy and opined that appellant was able to return to work with
restrictions.
On December 4, 2009 the Office requested Dr. Endress clarify his opinion as to whether
appellant’s work activities caused the diagnosed cervical radiculopathy. In a report dated
December 23, 2009, Dr. Endress noted that appellant had a cervical condition; however, he
opined that the condition was not directly caused, aggravated, accelerated or precipitated by her
employment. He further opined that appellant’s work factors did not contribute to her diagnosed
condition. Dr. Endress indicated that he was not aware of any objective evidence that the
employment factors resulted in a continuing and irreversible change in the underlying cervical
condition. He noted that he was not sure if the condition was temporary but believed appellant
was capable of performing her job duties as a modified clerk with the same restrictions she was
under previously.

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Appellant submitted a January 8, 2010 report from Dr. Richter who treated her for
chronic pain and noted that her condition was unchanged. Appellant reported that she had no
specific injury but that her pain came from performing her work duties. Dr. Richter noted no
findings of radicular problems and diagnosed chronic complicated pain syndrome. He noted
appellant would need a favored work position to return to work.
In a February 5, 2010 decision, the Office denied appellant’s request to accept the claim
for cervical radiculopathy, degenerative disc disease at C4-C7, left foraminal spurring, and disc
herniation at C4-C5. It found that the evidence was insufficient to establish that the additional
cervical spine diagnoses were causally related to the accepted work injury. In a separate
February 5, 2010 decision, the Office denied appellant’s claim for wage-loss compensation from
June 24 to July 29, 2009 as he was in receipt of schedule award compensation for right arm
impairment during the claimed period.
On February 10, 2010 appellant requested an oral hearing which was held on
May 10, 2010.
In a decision dated July 13, 2010, the hearing representative affirmed the February 5,
2010 decisions denying appellant’s claim for acceptance of the additional diagnoses of cervical
radiculopathy, degenerative disc disease at C4-C7, left foraminal spurring, and disc herniation at
C4-C5 and for compensation for the period June 24 to July 29, 2009. He noted that for the
period June 24 to July 29, 2009 appellant received schedule award compensation for 32 percent
right arm impairment under claim number xxxxxx336. The hearing representative advised that
the Office procedures provide that a schedule award for one injury may not be paid concurrently
with compensation for wage loss for another injury involving the same part of the body.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.3
Causal relationship is a medical issue that must be established by rationalized medical
opinion evidence.4 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 The weight of medical evidence is determined by its reliability, its

3

Jaja K. Asaramo, 55 ECAB 200 (2004).

4

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

5

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

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probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6
ANALYSIS -- ISSUE 1
Appellant alleges that she developed cervical radiculopathy, degenerative disc disease at
C4-C7, left foraminal spurring, and disc herniation at C4-C5 as a result of performing her
limited-duty position. She became aware of her condition on September 18, 2008. The Office
accepted the claim, as noted, for right carpal tunnel syndrome.
The Board finds that the medical evidence is insufficient to establish that appellant
developed cervical radiculopathy, degenerative disc disease at C4-C7, left foraminal spurring,
and disc herniation at C4-C5 causally related to her accepted condition or work duties on and
around September 18, 2008.
The Office referred appellant for a second opinion evaluation by Dr. Endress, an
orthopedist. In his report dated July 29, 2009, Dr. Endress diagnosed right carpal tunnel
syndrome, resolved and cervical radiculopathy. He noted examination of the right hand revealed
intact sensation in the medial nerve distribution, normal range of motion of the cervical spine,
normal motor and sensory function and intact reflexes. Dr. Endress noted that appellant had
subjective findings but no objective findings of cervical radiculopathy. He found no objective
findings with regard to the right carpal tunnel syndrome and opined that that condition resolved
shortly after surgery. Dr. Endress further noted that it was difficult to ascertain whether
appellant’s diagnosed cervical degenerative disc disease was caused by her work duties and
noted appellant did not relate an actual neck injury. He opined that there was an aggravation of a
preexisting cervical radiculopathy and noted that appellant could return to work with restrictions.
The Office requested clarification and, on December 23, 2009, Dr. Endress noted that appellant
had a cervical condition. However, he opined that the condition was not directly caused,
aggravated, accelerated or precipitated by her employment. Dr. Endress further opined that
appellant’s work factors did not contribute to her diagnosed cervical condition. He believed that
appellant was capable of performing her job duties as a modified clerk with the same restrictions
she was under previously.
The Board finds that the opinion of Dr. Endress represents the weight of the evidence and
establishes that appellant’s diagnosed cervical conditions were not causally related to
employment factors. Dr. Endress noted that appellant had a cervical condition; however, he
opined that the condition was not caused or aggravated by her employment. There is no
contemporaneous medical evidence of equal weight supporting appellant’s claim that her
diagnosed cervical condition was due to factors of employment.
Appellant submitted reports from Dr. Croissant dated January 12 and 14, 2009 who
treated appellant for neck pain which she reported was aggravated because she was required to
work with her neck in a flexion position. He diagnosed degenerative disc disease at C4 to C7,
left foraminal spurring and disc herniation at C4-C5. However, Dr. Croissant appears merely to
6

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

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be repeating the history of injury as reported by appellant without providing his own opinion
regarding whether the cervical conditions were due to employment factors. To the extent that the
physician is providing his own opinion, the physician does not provide a well-reasoned
discussion explaining how appellant’s cervical condition was causally related to appellant’s
employment. Without any explanation or rationale for the conclusion reached, such report is
insufficient to meet appellant’s burden of proof.7
Other reports from Dr. Richter from November 3, 2008 to January 27, 2009 diagnosed
axial back pain, right shoulder problems and carpal tunnel syndrome. In a January 5, 2009
prescription note, Dr. Richter noted appellant was off work since October 24 due to her workers’
compensation injury and diagnosed axial back pain and cervical radiculopathy. Similarly, a
January 27, 2009 return to work slip noted appellant was totally disabled and diagnosed right C6
radiculopathy. However, Dr. Richter did not specifically address how any axial back pain and
cervical radiculopathy were due to the employment factors.8 In a July 10, 2009 report,
Dr. Richter noted appellant had a shoulder injury in 1998 and noted multiple levels of
degeneration on the MRI scan of the neck. Dr. Richter opined that “it is certainly probable that
the neck has been aggravated by the positioning that she did for years at work and there may be a
causal relationship.” The Board notes that Dr. Richter’s report provides some support for causal
relationship but is insufficient to establish the claimed cervical condition was causally related to
her employment duties. However, at best, this report provides only speculative support for
causal relationship as the physician qualifies his support by noting that it was “probable” that
appellant’s employment caused her condition. Dr. Richter provided no medical reasoning to
support his opinion on causal relationship. Therefore, this report is insufficient to meet
appellant’s burden of proof.
Appellant has not submitted any medical opinion supporting that cervical radiculopathy,
degenerative disc disease at C4-C7, left foraminal spurring and disc herniation at C4-C5 are
employment related. Neither the fact that a claimant’s conditions became apparent during a
period of employment, nor the belief that the conditions were caused, precipitated or aggravated
by the employment is sufficient to establish causal relationship.9 Thus, appellant did not meet
her burden of proof to establish that the cervical radiculopathy, degenerative disc disease at C4C7, left foraminal spurring, and disc herniation at C4-C5 were causally related to employment
factors or her accepted condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to the Office 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.

7

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

8

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
9

D.I., 59 ECAB 158 (2007).

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LEGAL PRECEDENT -- ISSUE 2
The Act pays compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.10 Section 8107 of the Act11 authorizes the
payment of schedule awards for the loss or loss of use, of specified members, organs or functions
of the body. Such loss or loss of use is known as permanent impairment.12
A schedule award is payable consecutively but not concurrently with an award for wage
loss for the same injury.13 Office procedures provided that a schedule award for one injury may
be paid concurrently with compensation for wage loss paid for another injury, as long as the two
injuries do not involve the same part of the body or extremity. The procedures state:
“For example, a claimant is currently receiving a schedule award for 10 percent
permanent partial impairment of the right arm due to a work-related right rotator
cuff tear. The claimant files for temporary total disability under another claim for
the same period due to undergoing right carpal tunnel surgery. Compensation
claimed for temporary total disability cannot be paid since compensation involves
the same extremity, the right arm.”14
ANALYSIS -- ISSUE 2
After the Office accepted appellant’s September 18, 2008 claim for right carpal tunnel
syndrome, appellant had right carpal tunnel surgery on June 28, 2009 and thereafter filed a claim
for wage-loss compensation for the period June 24 to July 29, 2009. The record indicates,
however, that she was receiving compensation for a schedule award covering this period in file
number xxxxxx336. The record shows that, in an August 20, 2008 decision, the Office granted
appellant a schedule award for 32 percent permanent impairment of the right arm and that the
period of the award was from May 7, 2008 to April 5, 2010. As both injuries involved the right
upper extremity, the Board finds that the Office may not pay compensation for wage loss
resulting from appellant’s September 18, 2008 injury concurrently with the schedule award for
her April 13, 2004 injury, which covered the period May 7, 2008 to April 5, 2010.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
developed cervical radiculopathy, degenerative disc disease at C4-C7, left foraminal spurring,
10

S.F., 59 ECAB 525 (2008).

11

5 U.S.C. § 8107

12

20 C.F.R. § 10.404

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a)(3) (January 2010).
14

Id. at Chapter 2.808.5(a)(4). See also Michael J. Biggs, 54 ECAB 595, 596-97 (2003); J.B., Docket No. 081178 (issued December 22, 2008).

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and disc herniation at C4-C5 causally related to employment factors. The Board also finds that
the Office properly denied compensation for wage loss for her right carpal tunnel syndrome
condition during a period in which she was also in receipt of schedule award compensation
involving the same extremity.
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Indianapolis, IN, Employer
__________________________________________

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

Docket No. 08-823
Issued: August 13, 2008

Case Submitted on the Record

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

JURISDICTION
On January 24, 2008 appellant filed a timely appeal from a January 9, 2008 merit
decision of the Office of Workers’ Compensation Programs that denied her recurrence of
disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she
experienced a recurrence of disability in the performance of duty on June 6, 2007.
FACTUAL HISTORY
On October 5, 2004 appellant, then a 26-year-old transportation security screener, filed a
traumatic injury claim stating that she injured her back in the performance of duty. She stated
that she developed back pain with radiation into her left leg after lifting a bag from a “CTX
machine.” Appellant stopped work on October 5, 2004 and returned on October 6, 2004. On

October 20, 2004 an employee of Methodist Occupational Health Centers1 diagnosed
lumbosacral strain and released appellant to work without restrictions effective immediately.
On August 1, 2007 appellant filed a claim alleging that she experienced a recurrence of
disability on June 6, 2007. She stopped work in connection with her claimed recurrence of
disability on July 11, 2007. Appellant stated that she sustained her recurrence of disability while
performing her daily work and that she noticed pain in the same area as she had noticed
previously, but that she initially tried to continue working. She stated that she also had a “work
related” left shoulder strain on July 31, 2006. Appellant submitted numerous treatment notes
relating to her shoulder strain and to her original 2004 lumbosacral strain.
In a September 20, 2007 statement, Patricia J. Dewaelsche, an employee of the
employing establishment, explained that she witnessed appellant complaining of back pain at the
end of July 2007. She stated that appellant claimed to have injured her back at home.
On September 18, 2007 Dr. Carl Sartorius, a Board-certified neurosurgeon, released
appellant to return to work effective September 24, 2007 with restrictions against bending,
stooping, twisting or lifting more than 20 pounds for two months.
In a July 30, 2007 statement, appellant explained that she had back pain while working
on June 6, 2007. However, she stated that when she informed her supervisor that she needed
medical attention because something was wrong with her back, her supervisor did not ask her if
the pain was work related. Appellant stated that she continued to work until July, when her
doctor diagnosed back pain and required that she take three days off work. When she returned,
she requested light duty and stated that her injury occurred at home because she was not sure
whether the injury occurred at home or at work. Appellant asserted that the employing
establishment informed her that her injury did not occur at work unless she was “100 percent
sure” that it did.
Appellant’s supervisor, James C. Murray, provided a July 27, 2007 witness statement.
He stated that appellant requested leave to see her doctor on June 6, 2007, stating that she was
“not feeling well,” but that she did not mention back pain. Mr. Murray explained that appellant
returned to light duty on July 12, 2007. He stated that when he asked appellant if her injury
occurred at work, she informed him that she was injured at home. Mr. Murray explained that
appellant did not tell him her injury occurred at work until after her doctor had recommended
that she undergo surgery with four weeks’ recovery time.
Appellant provided a June 6, 2007 note from Dr. Molly Garau, a Board-certified family
practitioner, advising that she was seen in the physician’s office on June 6, 2007, “due to
illness.”
Appellant provided a report from Dr. Sartorius indicating that she underwent a left L5-S1
microlumbar discectomy, a microdiscectomy and intraoperative x-ray on August 20, 2007.

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The Board is unable to determine whether the noted report was prepared by a physician, as the signature on the
form is illegible.

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Dr. Sartorius diagnosed a disc herniation at L5-S1. On November 19, 2007 he released appellant
to work without restrictions, effective immediately.
On January 9, 2008 the Office accepted appellant’s claim for sprain of the lumbosacral
joint (ligament), which resolved on October 20, 2004. By decision dated the same day, it denied
appellant’s claim for recurrence of disability on the grounds that appellant had not established a
causal relationship between her present disability and her originally accepted injury. The Office
noted that appellant’s June 6, 2007 injury appeared to be a new injury rather than a recurrence of
disability causally related to her original 2004 back strain.
LEGAL PRECEDENT
Section 10.5(x) of the Office’s regulations provides, in pertinent part:
“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
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.”2
An individual who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable, and
probative evidence that the disability for which compensation is claimed is causally related to the
accepted injury.3 This burden 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 the employment injury and supports that
conclusion with sound medical reasoning.4 An award of compensation may not be made on the
basis of surmise, conjecture, or speculation or on an appellant’s unsupported belief of causal
relation.5
ANALYSIS
The Office found that appellant sustained a lumbosacral sprain in the performance of
duty, which resolved effective October 20, 2004. On August 1, 2007 appellant claimed a
recurrence of disability on June 6, 2007. She stopped work on July 11, 2007 and returned to
light duty on July 12, 2007. Appellant underwent a L5-S1 lumbar discectomy on August 20,
2007 and was released to return to full duty on November 19, 2007. The Board finds that
appellant did not meet her burden of proof in establishing a causal relationship between her
present condition and disability for work and the original 2004 back sprain because the medical

2

20 C.F.R. § 10.5(x) (2002).

3

Dominic M. DeScala, 37 ECAB 369 (1986); Bobby Melton, 33 ECAB 1305 (1982).

4

See Nicolea Bruso, 33 ECAB 1138 (1982).

5

Ausberto Guzman, 25 ECAB 362 (1974).

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evidence does not support that her present symptoms, and her disability from August 20 to
November 19, 2007, are related to her 2004 lumbosacral strain.
In support of her claim, appellant submitted a June 6, 2007 note from Dr. Garau, stating
that appellant was seen in the office on that day “due to illness.” However, Dr. Garau did not
state that appellant complained of back pain, nor did she diagnose a specific condition or relate it
to appellant’s 2004 lumbosacral strain. Dr. Sartorius also provided an August 20, 2007 surgical
report noting that appellant underwent a L5-S1 discectomy and a November 19, 2007 note
releasing her to return to work without restrictions. Although he diagnosed a disc herniation at
L5-S1, Dr. Sartorius did not address causal relationship or support that appellant’s current
disability is related to her 2004 lumbosacral strain. The Board has held that medical evidence
which does not address causal relationship is not probative on that issue.6 Appellant submitted
other medical and treatment notes from 2004, but as these notes referenced her original injury
and an unrelated left shoulder strain, they are not germane to the issue of whether appellant
experienced a recurrence of disability of her accepted back sprain. Accordingly, the Board finds
that the evidence of record is insufficient to establish that appellant experienced a recurrence of
disability in the performance of duty on June 6, 2007, causally related to her 2004 lumbosacral
strain. The Board also notes that appellant’s own statement, as well as the statements of
Mr. Murray and Ms. Dewaelsche, raises questions concerning whether appellant’s claimed work
injury is a new injury and whether it occurred at home or at work. Therefore, the Board finds
that appellant has not met her burden of proof in establishing that she sustained a recurrence of
disability in the performance of duty on June 6, 2007.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a recurrence of disability on June 6, 2007 causally related to her October 2004 work
injury.

6

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

4

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Q.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dallas, TX, Employer
__________________________________________

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

Docket No. 19-1693
Issued: March 27, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 11, 2019 appellant filed a timely appeal from a March 26, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 26, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on May 22, 2018, as alleged.
FACTUAL HISTORY
On May 30, 2018 appellant, then a 42-year-old program support assistant, filed a traumatic
injury claim (Form CA-1) alleging that on May 22, 2018 he sustained a right hand injury when
pushing a cart of food trays while in the performance of duty. On the reverse side of the claim
form, the employing establishment controverted the claim. It asserted that the injury was not work
related as appellant had first advised that he experienced right wrist pain on May 28, 2018, but he
had worked from May 22 to 25, 2018 without complaint. The employing establishment further
noted that there were no witnesses to the alleged May 22, 2018 employment incident and that it
was inspecting the food cart to determine if any malfunctions existed.
In support of his claim, appellant submitted a May 31, 2018 report by Dr. Ruby AnthonyWhite, an internist, who noted appellant’s complaints of pain and tenderness of the right wrist and
hand following an unspecified May 22, 2018 injury. She checked a box marked “yes” indicating
that the injury was work related and provided work restrictions. In a June 13, 2018 follow-up
report, Dr. Anthony-White held appellant off work through June 19, 2018.
In a development letter dated June 21, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. Appellant was afforded 30 days
to submit the requested evidence.
In response, appellant submitted a June 18, 2018 report by Dr. Larry T. Johnson, a Boardcertified orthopedic surgeon. Dr. Johnson noted a May 22, 2018 right hand and wrist injury due
to “repetitive twisting and turning of the wrist and hand and pulling and pushing of food
carts/trucks.” He diagnosed Type 1 early complex regional pain syndrome (CRPS) of the right
hand and wrist. Dr. Johnson prescribed physical therapy and restricted appellant to light-duty
work.
By decision dated July 25, 2018, OWCP denied appellant’s claim finding that the factual
component of fact of injury had not been established. It found that, as he had not submitted
answers to the questionnaire nor corroborating witness statements, the evidence was insufficient
to establish that the employment incident occurred as alleged.
On August 22, 2018 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review. The telephonic hearing was held on January 9, 2019.
During the hearing, appellant asserted that on May 22, 2018 he was assigned to deliver food trays
in the medical center wards on overtime from 6:45 a.m. to 11:00 a.m., prior to the beginning of his
regular tour of duty at 12:00 p.m. He indicated that he normally performed office tasks. Appellant
recounted that he injured his right wrist while trying to stabilize the wheeled food tray cart during
deliveries to multiple wards on floors 4c or 6c. He explained that as he was coming back towards
the kitchen there were patients and other obstructions in the hallway and the cart’s wheels were

2

going “all over the place” so he tried to stabilize the cart and somehow injured his wrist. Appellant
further explained that he was about five feet five inches tall and the cart was taller than him and
pretty heavy making it difficult to maneuver. He recalled that initially he did not take heed of an
injury, but informed his subordinates that he had injured himself. Appellant explained that he had
not filed a claim until May 30, 2018 as he believed his symptoms would improve, but they had
worsened in the days following the incident. He submitted additional evidence.
In a May 29, 2018 report, Dr. Anthony-White provided work restrictions and recommended
that appellant continue to wear a right wrist splint.
In a duty status report (Form CA-17) dated June 28, 2018, Dr. Johnson held appellant off
work from June 26 to 28, 2018, and returned appellant to restricted duty as of June 29, 2018.
In his initial report dated July 11, 2018, Dr. Olayinka Ogunro, a Board-certified orthopedic
surgeon specializing in hand surgery, noted under the heading of History of Present Illness, that
appellant “injured his right palm as he was trying to stabilize a cart which was heavy and
uncontrollable, there was a sudden thrust of the weight of the cart onto his right wrist with result
of hyperextension.” He diagnosed possible right wrist ligament tear and a triangular fibrocartilage
complex (TFCC) tear.
In a July 26, 2018 follow-up examination, Dr. Ogunro restated his diagnoses of possible
right wrist ligament tear and TFCC tear, however, he did not reference a mechanism of injury.
Dr. Ogunro, in a note of a subsequent encounter dated August 9, 2018, indicated a different
mechanism of injury. He noted that appellant sustained an injury at work when “the wind blew
the cart against his wrist.” Dr. Ogunro’s diagnoses indicated a TFCC tear in his right wrist.3
In reports dated January 8, 2018 and February 19, 2019, Dr. Ogunro again, under the
heading of his “Assessment,” repeated verbatim the mechanism of injury as “the wind blew the
cart against his wrist”.
By decision dated March 26, 2019, an OWCP hearing representative denied modification
of OWCP’s prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable

3

Dr. Ogunro ordered a July 30, 2018 right wrist arthrogram which demonstrated a TFCC perforation and
osteoarthritic changes. A May 21, 2019 magnetic resonance imaging (MRI) scan of the right wrist demonstrated a
TFCC tear and scaphotrapezio-trapezoid (STT) osteoarthritis.
4

Supra note 1.

3

time limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.8 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.9 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.10
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.11 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established. An employee’s
statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.12
ANALYSIS
The Board finds that appellant has met his burden of proof to establish an injury in the
performance of duty on May 22, 2018, as alleged.

5
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

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

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyet, 41 ECAB 992 (1990).
8

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2019);
Bonnie A. Contreras, 57 ECAB 364 (2006).
9

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

10

A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 8.
11

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

12

F.H., Docket No. 18-0869 (issued January 29, 2020); D.B., supra note 9.

4

Appellant filed his traumatic injury claim on May 30, 2018 alleging that he sustained a
right hand injury on May 22, 2018 due to pushing a cart of food trays. In his Form CA-1 he
indicated that he hurt his right wrist while pushing a cart of trays.
In a June 18, 2018 report, Dr. Johnson noted appellant’s account of injury as repetitive
twisting and turning of the right wrist and hand while pushing and pulling a food tray cart.
In his July 11, 2018 initial encounter report, Dr. Ogunro described the injury under the
heading History of Present Illness that appellant “injured his right palm as he was trying to stabilize
a cart which was heavy and uncontrollable, there was a sudden thrust of the weight of the cart onto
his right wrist with result of hyperextension.” In subsequent reports, Dr. Ogunro inexplicably
described a different mechanism of injury under the assessment portion of his report as “the wind
blew the cart against his wrist,” which appeared verbatim in subsequent reports after his report
indicating this different mechanism of injury. During the January 9, 2019 hearing, appellant
testified and consistently maintained that his right wrist injury was due to repeated attempts to stop
the food tray cart from rolling on floors 4c or 6c as the cart was large and difficult to maneuver in
the hallways back to the kitchen. Appellant’s account of the incident is consistent as he has never
indicated in any form or statement that his injury happened in any other manner than initially
reported. Further, there was no mention of appellant ever being outside when the injury occurred.
In fact, he explicitly testified that the incident happened on floor 4c or 6c which is safe to assume
is indoors and wind free.
The Board finds that appellant has established the factual component of fact of injury as he
has consistently described the employment incident as occurring on May 22, 2018 while pushing
a cart of trays while in the performance of duty. As noted, an employee’s statement alleging that
an injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong and persuasive evidence.13
As appellant has established that the May 22, 2018 employment incident occurred as
alleged, further consideration of the medical evidence is necessary.14 Therefore, the case will be
remanded to OWCP to evaluate the medical evidence of record and determine whether he has met
his burden of proof to establish a medical condition causally related to the accepted May 22, 2018
employment incident.15 Following this and other such further development as deemed necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish an injury in the
performance of duty on May 22, 2018, as alleged.

13

Supra note 12.

14

D.C., Docket No. 19-0716 (issued September 13, 2019); M.D., Docket No. 18-1365 (issued March 12, 2019).

15

A.R., Docket No. 18-0924 (issued August 13, 2019); Constance G. Patterson, 41 ECAB 206 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the March 26, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 27, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
U.S. POSTAL SERVICE, POSTAL SERVICE,
Houston, TX, Employer
__________________________________________

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Docket No. 13-1958
Issued: March 18, 2014

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

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 12, 2013 appellant filed a timely appeal from a May 24, 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 the case.
ISSUE
The issue is whether appellant has more than 15 percent permanent impairment of the
right upper extremity for which she received a schedule award.
FACTUAL HISTORY
On March 10, 2004 appellant, then a 55-year-old letter carrier filed an occupational
disease claim alleging that she developed inflammation of the left wrist, middle finger and thumb
while performing repetitive work duties. OWCP accepted her claim for de Quervain’s disease of
1

5 U.S.C. §§ 8101-8193.

the left wrist.2 It authorized arthroscopic surgery on appellant’s right shoulder, which was
performed on February 21 and May 2, 2007.
Appellant submitted an October 17, 2006 right shoulder x-ray that revealed moderate
osteoarthritis in the right shoulder joint, acromion osteophyte formation and mild right
acromioclavicular joint osteoarthritis. A November 20, 2006 magnetic resonance imaging (MRI)
scan of the right shoulder which revealed a supraspinatus and infraspinatus tendinosis with
suspected superimposed small full thickness tear in the anterior aspect of the supraspinatus distal
tendon and a partial tear of the subscapularis tendon.
Appellant came under the treatment of Dr. Mike Dean, a Board-certified orthopedist,
from January 29 to July 9, 2007 for right shoulder pain. Dr. Dean noted limited range of motion
of the right shoulder and an MRI scan revealed a rotator cuff tear. He diagnosed rotator cuff tear
of the right shoulder and bursitis of the right shoulder. On February 21, 2007 Dr. Dean
performed an arthroscopic subacromial decompression of the right shoulder, arthroscopic repair
of the rotator cuff tear and biceps tenodesis and diagnosed right shoulder impingement
syndrome, large supraspinatus and infraspinatus tear and biceps partial rupture. On May 2, 2007
he performed a manipulation under anesthesia of the right shoulder and diagnosed right shoulder
postoperative adhesive capsulitis. On July 9, 2007 Dr. Dean noted that appellant was
progressing well postoperatively but had pain and stiffness.
Appellant filed a claim for a schedule award. In a March 9, 2010 letter, OWCP requested
that she provide a report from her physician, which evaluates the extent of permanent
impairment of the bilateral upper extremities under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides).3
OWCP referred appellant for a second opinion to Dr. Jerome Carter, a Board-certified
orthopedist, for an impairment rating pursuant to the A.M.A., Guides. In a March 6, 2013 report,
Dr. Carter noted her history and findings. Palpation of the right shoulder revealed tenderness at
cortacoids area; the impingement, drawer and crepitation test was negative. Right wrist
palpation was normal, Finkelstein’s, Phalen’s and Tinel’s tests were negative. Sensation at the
median, radial and ulnar nerves was normal. Dr. Carter opined that appellant had reached
maximum medical improvement. He noted active right shoulder range of motion for flexion of
125 degrees, extension of 25 degrees, abduction of 95 degrees, adduction of 30 degrees, internal
rotation of 70 degrees and external rotation of 80 degrees. Right wrist range of motion for
2

Appellant filed an occupational disease claim in July 2003 that was accepted for bilateral carpal tunnel
syndrome and bilateral lateral epicondylitis, claim number xxxxxx655. On February 6, 2009 she was granted a
schedule award for eight percent left arm impairment due to loss of wrist range of motion. A claim for a July 21,
2003 injury was accepted for right finger fracture, claim number xxxxxx296. A claim for a March 8, 2004 injury
was accepted for left wrist tenosynovitis, claim number xxxxxx010. A claim for a May 2, 2006 injury was accepted
for right shoulder sprain and right disorder of the bursae tendon, claim number xxxxxx395. In this claim, appellant
was granted a schedule award for 14 percent right arm impairment on January 21, 2009 due to loss of shoulder range
of motion and one percent right arm impairment on November 9, 2011 due to her wrist injury. She appealed her
claim to the Board and in a decision dated July 19, 2012, the Board affirmed the November 9, 2011 OWCP decision.
Docket No. 12-622. These claims have been combined with the present claim.
3

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

2

flexion was 60 degrees, extension 60 degrees, ulnar deviation 30 degrees and radial deviation
20 degrees. Dr. Carter noted positive tenderness to palpation at cortacoids. The Neer, Empty
Can, Hawkins and Crossed Arm Adduction tests were positive on the right. There was mild right
shoulder crepitus. Bilateral upper extremity reflexes were normal and sensory examination and
motor examination was 4/5 on the right. The right wrist was normal to palpation as was range of
motion.
Sensory, motor and reflexes were normal but right grip strength was diminished.
Phalen’s and Tinel’s test were negative, with pain intermittently increased with use of right hand.
Dr. Carter diagnosed right radial styloid tenosynovitis under Table 15-3, Wrist Regional Grid,
page 395 of the A.M.A., Guides, for the wrist pain, nonspecific wrist pain postacute injury or
surgery. Appellant had a class 1 rating for history of painful injury, residual symptoms without
consistent objective findings, with a default rating of one percent arm impairment. Dr. Carter
noted that, pursuant to the Adjustment Grid: Functional History, Table 15-7, she was assigned a
grade modifier 1, mild problem, with pain/symptoms with strenuous/vigorous activity. For the
Physical Examination Adjustment, Table 15-8, appellant was assigned a grade modifier 1 for
mild problem, minimal palpatory findings, increased pain with constant use. For the Clinical
Studies Adjustment, Table 15-9, appellant was assigned a grade modifier zero. Dr. Carter noted
that the respective adjustments yielded a net adjustment of -1. This resulted in a grade B and
zero percent arm impairment. For the right shoulder, under Table 15-34, A.M.A., Guides, at
page 475, Dr. Carter found 11 percent right arm impairment due to loss of shoulder range of
motion. Under Table 15-34, he determined that flexion of 125 degrees equaled three percent
impairment, extension of 25 degrees equaled one percent impairment, abduction of 95 degrees
equaled three percent impairment, adduction of 30 degrees equaled one percent impairment,
external rotation of 80 degrees yielded zero percent impairment and internal rotation of
70 degrees equaled two percent impairment.4 Dr. Carter added the range of motion values and
indicated that would result in a 10 percent permanent impairment. He also referred to Table
15-35 and explained that the range of motion deficit qualified for a grade 1 modifier5 and a
functional history grade modifier 2 based on Table 15-7 therefore adjustment was made of +1.
The grade adjustment under Table 15-36, page 477 for net modifier of one was five percent of
total range of motion impairment. He multiplied 10 percent by 5 percent to equal .5 percent,
which was rounded to 1 percent to yield 11 percent right arm impairment for loss of motion to
the right shoulder.
In an April 8, 2013 report, an OWCP medical adviser reviewed the medical record and
concurred in Dr. Carter’s March 6, 2013 findings. The medical adviser indicated that Dr. Carter
properly applied the sixth edition of the A.M.A., Guides to find that appellant had 11 percent
impairment to the right upper extremity for loss of motion of the right shoulder.
On May 15, 2013 OWCP advised the medical adviser of appellant’s previous schedule
awards, including the award for 14 percent impairment of the right arm for an accepted right
shoulder injury. It requested that the medical adviser review the prior schedule awards and

4

Id. at 475.

5

Id. at 477.

3

determine whether she was entitled to an additional schedule award for the right upper extremity
above what was previously granted.
In a May 17, 2013 report, the medical adviser noted that appellant was previously paid
14 percent impairment for the right arm based on loss of motion of the right shoulder and did not
have right arm impairment beyond what was previously granted. He noted that the prior
schedule award for 14 percent impairment of the right upper extremity should be subtracted from
the current determination of 11 percent impairment, which yielded 0 percent additional
impairment for the right upper extremity for loss of motion of the right shoulder.
In a decision dated May 24, 2013, OWCP denied appellant’s claim for an additional
schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.9
For decisions issued beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be
used.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
GMCS - CDX).13 The grade modifiers are used on the net adjustment formula described above

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

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

10

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

11

A.M.A., Guides, 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
12

Id. at 387-419.

13

Id. at 411.

4

to calculate a net adjustment. The final impairment grade is determined by adjusting the grade
up or down the default value C, by the calculated net adjustment.14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical consultant for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides with the medical consultant providing
rationale for the percentage of impairment specified.15
ANALYSIS
OWCP accepted various right arm conditions including carpal tunnel syndrome, finger
fracture, shoulder sprain and disorder of the bursae tendon. It also authorized a February 21,
2007 authorized arthroscopic subacromial decompression of the right shoulder and repair of the
rotator cuff tear. In claim number xxxxxx395, OWCP paid a schedule award for 14 percent right
arm impairment due to the shoulder injury and 1 percent right arm impairment due to the wrist
injury. Appellant requested an additional schedule award.
OWCP referred appellant for a second opinion to Dr. Carter who issued a March 6, 2012
report. Dr. Carter properly found that, in accordance with Table 15-3, Wrist Regional Grid, page
395 of the A.M.A., Guides her impairing diagnosis was a right radial styloid tenosynovitis, for
the wrist pain, nonspecific wrist pain postacute injury or surgery, which he rated as class 1,
painful injury, residual symptoms without consistent objective findings, equal to a 1 percent
upper extremity impairment. He applied the modifiers for functional history, physical
examination and clinical studies found in Table 15-7, Table 15-8 and Table 15-9. Dr. Carter
rated a functional history modifier 1, a physical examination modifier 1 and a modifier 0 for
clinical studies. He applied the net adjustment formula to find zero percent impairment due to
the right wrist condition under the sixth edition of the A.M.A., Guides.
For the right shoulder, Dr. Carter rated appellant in accordance with Table 15-34, page
475 of the A.M.A., Guides, for lost shoulder range of motion. He found that flexion of 125
degrees equaled three percent impairment, extension of 25 degrees equaled one percent
impairment, abduction of 95 degrees equaled three percent impairment, adduction of 30 degrees
equaled one percent impairment, external rotation of 80 degrees equaled zero percent impairment
and internal rotation of 70 degrees equaled two percent impairment.16 Dr. Carter added the range
of motion values to equal 10 percent default impairment. He also referred to Table 15-35 and
explained that the range of motion deficit qualified for a grade 1 modifier17 and a functional
history grade modifier 2 based on Table 15-7, yielded an adjustment modifier +1. Under Table
15-36, page 477 a net modifier of one was 5 percent of total range of motion impairment.
Dr. Carter multiplied 10 percent by 5 percent to equal .5 percent which was rounded to one
14

Id. at 411-12.

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
16

A.M.A., Guides 475.

17

Id. at 477.

5

percent to yield 11 percent arm impairment for the right shoulder condition under the A.M.A.,
Guides.
Dr. Carter properly explained his calculations under the sixth edition of the A.M.A.,
Guides. An OWCP medical adviser reviewed his report and agreed with his determination.
There is no current medical evidence in the record, in accordance with the A.M.A., Guides,
which supports that appellant sustained a higher impairment. The Board finds that the weight of
medical evidence establishes that she has 11 percent right arm impairment attributable to her
shoulder condition and no ratable impairment due to her right wrist condition. The medical
adviser properly noted that appellant was previously paid 14 percent impairment for the right
upper extremity based on loss of motion of the right shoulder and was not entitled to an
additional schedule award for the right arm above what was previously granted.18
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly denied appellants request for an additional schedule
award for the right upper extremity.

18

FECA provides for reduction of compensation for subsequent injury to the same body member. It provides that
schedule award compensation is reduced by the compensation paid for an earlier injury where the compensation in
both cases are for impairment of the same member or function and where it is determined that the compensation for
the later disability in whole or part would duplicate the compensation payable for the preexisting disability.
5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

6

ORDER
IT IS HEREBY ORDERED that the May 24, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 18, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 11-1619
Issued: February 27, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 5, 2011 appellant, through her attorney, filed a timely appeal from a March 29,
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.
ISSUE
The issue is whether appellant sustained right hand, right wrist, right arm or neck
condition in the performance of duty.
FACTUAL HISTORY
Appellant, a 50-year-old window clerk, filed a Form CA-2 claim for benefits on March 1,
2009, alleging that she developed right hand, right arm and neck conditions causally related to

1

5 U.S.C. § 8101 et seq.

employment factors.
January 1, 2005.

She first became aware that these conditions were work related on

On March 16, 2009 OWCP advised appellant that it required additional factual and
medical evidence to determine whether she was eligible for compensation benefits. It asked her
to submit a comprehensive report from a treating physician describing her symptoms and the
medical reasons for her condition, an opinion as to whether her claimed conditions were causally
related to her federal employment. OWCP requested that appellant submit this evidence within
30 days.
In a March 24, 2009 report, Dr. Jerry Murphy, Board-certified in emergency medicine,
stated that he examined appellant on March 23, 2009 for an injury that she allegedly sustained on
or about January 1, 2005. Appellant related that, while working as a clerk at the employing
establishment, she began to experience a gradual onset of neck, right shoulder, wrist, hand and
arm pain. Although she continued to work, she was eventually seen by an orthopedic surgeon
and diagnosed with bilateral carpal tunnel syndrome and a right shoulder sprain. Appellant
underwent a series of injections in her right shoulder, hand and wrist and was treated with
nonsteroidal anti-inflammatory medication. Dr. Murphy treated her for these conditions within
the last three to four years and noted that they had become progressively worse.
On examination Dr. Murphy stated that appellant had complaints of persistent and
progressive neck, right shoulder, right arm and hand pain, with numbness and tingling in the
entire upper extremity. He diagnosed chronic post-traumatic spinal sprain with spasm of the
right paravertebral muscles of the cervical and thoracic spine; chronic right shoulder sprain with
internal derangement and right cervical neuropathy. Dr. Murphy ruled out bilateral carpal tunnel
syndrome by history or acute right carpal tunnel syndrome. He advised that appellant’s
prognosis for a full and complete recovery, given her continued symptomatology, was guarded.
Appellant required a course of job modification including ergonomic conditioning, diagnostic
testing, specifically x-rays and magnetic resonance imaging (MRI) scan of the cervical spine and
right shoulder, in addition to orthopedic, neurologic and hand surgical evaluations. Dr. Murphy
opined to a reasonable degree of medical certainty that her diagnoses and prognosis were directly
related to the job-related injuries she sustained on or about January 1, 2005.
In a November 15, 2005 report, received by OWCP on April 17, 2009, Dr. Tanya
Stephenson, a specialist in neurology, stated that appellant had been experiencing constant pain
in the right upper extremity for approximately one year that worsened with activity. Appellant
experienced a cramp-like sensation in her right upper arm which radiated into her right forearm,
with swelling. She also had paresthesias in all five fingers. Dr. Stephenson administered an
electromyelogram (EMG) which showed carpal tunnel syndrome, with a right median
entrapment neuropathy. She stated that there was no evidence of acute denervation or right
cervical radiculopathy.2

2

Appellant also submitted reports from physical therapists.

2

By decision dated June 3, 2009, OWCP denied the claim, finding that appellant failed to
submit sufficient medical evidence to establish that her claimed right hand, right arm or neck
conditions were related to the factors of her federal employment.
In a June 24, 2009 report, Dr. Murphy indicated that there was a causal relationship
between appellant’s complaints of persistent bilateral wrist and hand pain with a history of
bilateral carpal tunnel syndrome, in addition to acute right carpal tunnel syndrome, right shoulder
right neck pain to her regular job activities. He stated that appellant had been working at the
employing establishment for the last 24 years, constantly lifting, doing overhead maneuvers,
pushing, pulling, carrying and, most importantly, constant repetitive activities; leading to
repetitive stress syndrome. Dr. Murphy advised that her diagnoses remained the same. He
reiterated, to a reasonable degree of medical certainty, that the diagnoses in his March 24, 2009
report were related to appellant’s job duties and contributed to the gradual progression of these
ailments since 2005.
On July 7, 2009 appellant requested a review of the written record.
Appellant underwent an MRI scan on April 6, 2009, which showed multilevel
degenerative changes, with mild discogenic endplate degenerative signal change from C3-4
through C6-7 and associated moderate disc height loss and moderate anterior spondylotic
spurring. The MRI scan revealed: moderate left foraminal stenosis due to facet and
uncovertebral hypertrophy at C3-4; moderate central disc osteophyte complex causing mild canal
stenosis and moderate-to-severe foraminal stenosis due to facet and uncovertebral hypertrophy at
C4-5; central disc osteophyte complex causing mild canal stenosis and moderate to severe
foraminal stenosis due to facet and uncovertebral hypertrophy at C5-6; central and left
paracentral disc osteophyte complex causing mild canal stenosis and moderate-to-severe left
foraminal stenosis due to uncovertebral hypertrophy at C6-7 and mild-to-moderate bilateral
foraminal stenosis due to uncovertebral hypertrophy at C7-T1.
In response to OWCP’s March 16, 2009 questionnaire, appellant submitted an April 8,
2009 statement received by OWCP on July 8, 2009. She stated that her regular duties as a
window clerk entailed lifting for four to eight hours, reaching for four to eight hours, keying for
six to eight hours, casing letters for four to eight hours and throwing parcels weighing 5 to 70
pounds for four to eight hours. Appellant indicated that she engaged in reaching above the
shoulder for eight hours a day. She advised that she waited four years to report her work-related
injuries because the pain was tolerable and did not interfere with her work.
By decision dated September 15, 2009, OWCP’s hearing representative set aside the
June 3, 2009 decision. He found that the medical evidence was sufficient to require further
development.
OWCP referred appellant to Dr. Noubar A. Didizian, Board-certified in orthopedic
surgery, for a second opinion examination. In a report dated November 4, 2009, Dr. Didizian
advised that appellant had occasional crepitation in the right shoulder, dorsal soreness in the right
wrist and occasional numbness of the right hand. He stated that she performed a variety of tasks
at work, which involved pushing, pulling, lifting, bending, squatting, reaching and keying.
Dr. Didizian asserted that, if appellant were to develop symptoms on the basis of cumulative

3

trauma, she would have developed her condition within one year from the start of the job rather
than years later. The fact that appellant did variable jobs did not classify her under the repetitive
cumulative trauma criteria.
On examination, Dr. Didizian stated that appellant had good mobility in the cervical
spine with no evidence of any cervical involvement, as confirmed by EMG. He opined that her
MRI scan findings involving the anterior fibers of the supraspinatus were not of a traumatic
nature, but degenerative. Appellant’s symptoms of the right shoulder were not related to her
employment. Dr. Didizian noted no pathology today of the right elbow, good mobility with no
synovitis in the right wrist; the tests she underwent for carpal tunnel were negative. He
concluded, with a reasonable degree of medical certainty, that the nature of her job had no
bearing on her current complaints or findings.
By decision dated December 9, 2009, OWCP denied modification of the June 3, 2009
decision.
By letter dated August 25, 2010, appellant, through his attorney, requested
reconsideration of the December 9, 2009 decision. Counsel contended that there was a conflict
in the medical opinion between Dr. Murphy and Dr. Didizian which required referral to an
impartial medical examiner.
By decision dated November 2, 2010, OWCP denied modification.
In a report dated October 18, 2010, received by OWCP on November 4, 2010,
Dr. Murphy expressed his disagreement with the opinion of Dr. Didizian. He noted that
Dr. Didizian found that appellant did not have carpal tunnel syndrome. While appellant did have
right shoulder pathology, it was not related to her job activities. Dr. Murphy stated that she had
begun to complain of right upper extremity pain in her shoulder with diminished range of
motion, numbness and tingling in the entire right upper extremity, in addition to pain, numbness
and tingling in her right hand. These symptoms were all consistent with the results of her MRI
scan and EMG. Dr. Murphy disagreed with Dr. Didizian’s opinion that appellant did not have
carpal tunnel syndrome or right shoulder internal derangement, which were well established
based on her medical history and physical examination.
By letter dated January 18, 2011, counsel requested reconsideration.
In a February 11, 2011 report, Dr. Bruce H. Grossinger, Board-certified in psychiatry and
neurology, examined appellant and concluded that she had an abnormal study indicating
moderate chronic bilateral carpal tunnel syndrome with denervation. Appellant was also
borderline distal right median motor latencies as well as prolongation of bilateral median distal
sensory latencies at the wrists and palms in addition to moderate denervation of both abductor
pollicis brevis muscles. Dr. Grossinger opined that her cumulative work or the employing
establishment gave rise to her carpal tunnel syndrome, tenosynovitis and aggravating
osteoarthritis of both shoulders, with impingement syndrome and rotator cuff derangement of the
supraspinatus and subscapularis muscles. He stated that a motor nerve analysis showed
borderline right distal motor latencies with otherwise normal motor parameters; a sensory nerve
analysis indicated prolongation of distal median palmar and wrist latencies and an EMG showed

4

evidence of moderate denervation in both abductor pollicis brevis muscles. This constituted an
abnormal study which confirmed moderate bilateral carpal tunnel syndrome with denervation.
Based on these findings, Dr. Grossinger advised that appellant’s ability to continue working for
the employing establishment was limited and that she might be totally and permanently disabled.
By decision dated March 29, 2011, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.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 the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
Section 8123(a) of FECA provides that if there is disagreement between the physician
doing the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.7
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

Id.

7

5 U.S.C. § 8123(a). See Richard R. Lemay, 56 ECAB 341 (2005).

5

ANALYSIS
The Board finds that the case is not in posture for decision as a conflict exists in the
medical opinion evidence between Dr. Murphy, a treating physician and Dr. Didizian, a second
opinion physician, regarding whether appellant had sustained right hand, right arm, right wrist or
cervical condition in the performance of duty. Dr. Murphy diagnosed right-sided carpal tunnel
syndrome, cervical pathology and right shoulder internal derangement, as reflected by her MRI
scan and EMG. He stated that these were well-established diagnoses based on her medical
history and physical examination. Dr. Murphy disagreed with Dr. Didizian’s opinion that
appellant’s cervical pathology, carpal tunnel syndrome and right shoulder were degenerative in
nature ad not causally related to her employment as a clerk.
The Board will set aside the May 29, 2011 OWCP decision and remand the case for
referral of appellant to an appropriate impartial medical specialist. After such further
development of the record as it deems necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision based on a conflict in medical
opinion.

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ORDER
IT IS HEREBY ORDERED THAT the March 29, 2011 decision of the Office of
Workers’ Compensation Programs be set aside and the case is remanded to OWCP for further
actions consistent with this decision of the Board.
Issued: February 27, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.C., claiming as widow of E.C., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Spring City, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1560
Issued: January 9, 2013

Case Submitted on the Record

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

JURISDICTION
On July 23, 2012 appellant filed a timely appeal from the March 27, 2012 merit decision
of the Office of Workers’ Compensation Programs. 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 the employee’s death was causally related to his accepted left arm
biceps tendon rupture on June 25, 1977.
On appeal, appellant alleges that, because her husband, the employee, never received
timely medical care for his arm, he could not continue to work. She alleged that she is no longer
getting compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 9, 1978 employee, then a 52-year-old iron worker, filed a traumatic injury claim
alleging that, on June 25, 1977, while he was taking a choker off a beam, the choker flew loose
and struck his left upper arm. OWCP accepted appellant’s claim for left arm biceps tendon
rupture. Subsequently, the employee received compensation for a schedule award, medical
benefits and compensation for wage loss commencing November 22, 1985.
The employee died on July 19, 2011. The immediate cause of death, as indicated on the
death certificate, was vascular dementia. Underlying causes of death were listed as prostate
cancer and coronary artery disease (CAD).
On March 8, 2012 appellant filed a claim for compensation by widow (Form CA-5). In
support of her claim, she submitted a copy of an October 9, 1986 report by Dr. Vincent J. Haren,
a physician specializing in family practice, wherein he indicated that the employee suffered a
traumatic tear of the bicep muscle. Dr. Haren opined that at that time there was no way to repair
the damage because it had been torn for several years and it should have been fixed at the time of
his injury. He noted that it was not possible for appellant to participate in the lifting activities of
an iron worker. Appellant wrote a note on the report contending that the employee would have
been able to continue to work if it had not been for the neglect of the employing establishment.
She also submitted a form sent to the employee on December 1, 2010 and completed by
Dr. Joseph L. Bowers, a Board-certified family practitioner, on December 15, 2010, who
indicated that the employee was totally disabled and unable to return to work.2
By decision dated March 27, 2012, OWCP denied appellant’s claim for survivor’s
benefits.
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.3 Appellant
has the burden of proving by the weight of the reliable, probative and substantial evidence that
the employee’s death was causally related to his employment.4 This burden includes the
necessity of furnishing rationalized medical opinion evidence demonstrating a causal
relationship.5 The physician’s opinion must be based on a complete factual and medical
background, must be expressed in terms of a reasonable degree of medical certainty and must be

2

The Board notes that the form submitted by appellant in support of her claim for survivor’s benefits was not
signed or dated nor did it indicate who completed the form. However, the same form was already in appellant’s
record and this form was signed by Dr. Bowers and dated December 15, 2010.
3

5 U.S.C. §§ 8102(a) and 8133.

4

L.R., 58 ECAB 369, 375 (2007); see also L.B., Docket No. 12-699 (issued August 1, 2012).

5

Id.

2

supported by medical rationale explaining the relationship between the employee’s death and his
previous employment.6
An award of compensation may not be based on surmise, conjecture or speculation.7 The
mere showing that an employee was receiving compensation for total disability at the time of
death does not establish that the death was causally related to the federal employment.8
ANALYSIS
The Board finds that appellant has not established that the employee’s 1977 accepted
injury for left arms biceps tendon rupture was a contributing cause to his July 19, 2011 death.
Appellant did not submit a rationalized medical narrative addressing how the accepted
employment injury contributed to the employee’s death. The death certificate does not constitute
a rationalized medical opinion and furthermore, it does not indicate that the employee’s 1977 left
arm biceps tendon rupture contributed to his death. The reports by Dr. Haren and Dr. Bowers do
not address the employee’s cause of death; in fact, these reports were completed prior to the
employee’s death and address his disability at that time. Accordingly, appellant failed to provide
a rationalized medical opinion that the employee’s accepted employment injury contributed to
his death on July 19, 2011. Therefore, OWCP properly denied her claim for survivor’s benefits.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant has not established that the employee’s death was causally
related to his accepted left arm biceps tendon rupture on June 25, 1977.

6

Id.

7

L.T., Docket No. 12-406 (issued June 21, 2012).

8

Edna M. Davis (Kenneth L. Davis), 42 ECAB 728 (1991); see also D.L., Docket No. 11-1993 (issued
July 13, 2012).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 27, 2012 is affirmed.
Issued: January 9, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4