United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF DEFENSE, OFFICE OF
THE INSPECTOR GENERAL, Arlington, VA,
Employer
__________________________________________

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

Docket No. 07-845
Issued: September 4, 2007

Case Submitted on the Record

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

JURISDICTION
On February 6, 2007 appellant filed an appeal of a March 1, 2006 decision of the Office
of Workers’ Compensation Programs denying his occupational disease claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant has established that he sustained a stroke while in the
performance of duty.
FACTUAL HISTORY
On October 13, 2004 appellant, a 54-year-old criminal investigator, filed an occupational
disease claim alleging that on October 5, 2004 he sustained an aortic aneurism and stroke as a
result of stressful conditions of employment. On October 14, 2004 the employing establishment
confirmed that appellant suffered a stroke at a job fair and was incapacitated and unable to assist
in the collection of documentation necessary to support his claim.

By letter dated March 21, 2005, the Office notified appellant that the evidence submitted
was insufficient to establish his claim. The Office advised appellant to provide details as to
employment-related events or conditions believed to have caused or contributed to his illness, as
well as a medical report containing a diagnosis, treatment history, results of tests and
examinations and an opinion with medical reasons on the cause of his diagnosed conditions.
Appellant submitted a job description for the position of criminal investigator; a June 21,
1985 application for employment; and a March 14, 2005 notification of personnel action “timeoff” award. In an undated statement, he alleged that the work he performed involving the events
of September 11, 2001 and subsequent cases and assignments caused him continued and
heightened levels of stress that exacerbated his hypertension, ultimately culminating in a
dissected aorta and two strokes. Appellant identified numerous employment factors he believed
to be responsible for his conditions:
1. Required to execute arrests and search warrants, often under hostile or
dangerous situations and to perform or oversee undercover operations, often
involving targets of felonious activities.
2. Position required long periods of overtime on a weekly basis, as well as abrupt
changes to his daily schedule. For example, following September 11, 2001,
appellant was assigned to the investigation of terrorist attacks in New York City,
which included a search for human remains at Ground Zero. He was extremely
anxious, due to safety concerns surrounding contamination at the site. Moreover,
his 12- to 14-hour day schedule significantly impacted appellant’s time with his
family.
3. The magnitude and importance of appellant’s work weighed heavily on his
mind and, by its very nature, was acutely stressful.
4. As the office’s technical agent since 1986, appellant was responsible for proper
procurement of security and maintenance of all technical and surveillance
equipment. He was acutely aware that his failure to field technical equipment
could result in loss of critical evidence and appellant experienced great stress
preceding the execution of cover-up operations.
5. Appellant was the main presenter of integrity/fraud awareness briefings and
often received short notice for such presentations. He was stressed about arriving
and being set up on time so that he could make a professional presentation.
6. As a firearms instructor, Appellant was extremely concerned for the safety of
his fellow agents, as well as his own liability.
7. As a senior agent, appellant carried a large caseload (12 cases simultaneously),
consisting of many multi-million dollar complex frauds allegedly committed by
some of the largest defense contractors in the state. He routinely testified before
federal grand juries presenting complex and detailed investigative results. The
nature of the work was both “chronically and acutely stressful” and often
overwhelming.

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8. Appellant stated that the rigors of juggling his duties became overwhelming,
culminating at the law enforcement fair on October 5, 2004 when he suffered a
stroke caused by his dissected aorta.
In an undated statement, appellant’s immediate supervisor, James Murawski, stated that
appellant’s description of his job responsibilities, including general and collateral duties was
accurate. As his coworker since 1984 and supervisor since 1997, Mr. Murawski stated that over
a period of time, he had observed a growing level of stress in appellant when conducting his
duties, which may have been exacerbated in the aftermath of September 11, 2001. He noted that
appellant carried a “significant, heavy, complex caseload.”
By decision dated May 5, 2005, the Office denied appellant’s claim. The Office accepted
that the claimed events occurred, but found that there was no medical evidence containing a
diagnosis which could be connected to the established event. On May 17, 2005 appellant
requested an oral hearing.
Appellant submitted numerous medical documents from Riverview Medical Center and
Jersey Shore University Medical Center and test results, including: triage notes and emergency
room records dated October 5, 2004; an October 5, 2004 consent for administration of
thrombocytic therapy for acute ischemic stroke, signed by appellant’s wife; a cumulative
summary reflecting that appellant was admitted to the Riverview Medical Center on October 5,
2004 for treatment of a pulmonary embolism; and a discharge summary from Jersey Shore
University Medical Center reflecting that appellant was admitted on October 6, 2004 with a
diagnosis of aortic dissection, hypertension and hyperlipidemia, underwent repair of an aortic
dissection and was discharged on October 19, 2004. He submitted October 5 and 6, 2004 reports
of x-rays; electrocardiograms (EKG); computerized tomography (CT) scans of the head, brain
and chest; blood chemistry profiles; echocardiograms; and magnetic resonance imaging (MRI)
scans of the upper shoulder.
In a report dated October 5, 2004, Dr. Rafiya Khakoo, a treating physician, diagnosed a
possible right posterior cerebral artery stroke causing left arm weakness and headache related to
the stroke. He stated that, while at a work-related convention on that date, appellant began to
experience a severe headache and confusion with dysarthria and slurring of speech, followed by
weakness in the left upper extremity and numbness in the left arm. His past medical history was
significant for hypertension.
Appellant submitted reports from Dr. Joseph Clemente, a Board-certified internist. On
October 6, 2004 Dr. Clemente recommended immediate surgery to repair an aortic dissection.
He indicated that a CT scan revealed proximal aortic dissection with involvement of the right
and left carotid artery. Dr. Clemente noted a history of hypertension. Results of an
echocardiogram performed that day revealed dissection of the aortic root and aortic arch;
moderately dilated aortic arch; and moderate aortic insufficiency. On April 14, 2005 he
indicated that appellant’s symptoms related to his previous stroke and repair of the aortic valve
had significantly improved. In a letter dated May 13, 2005, Dr. Clemente stated that appellant
had a history of hypertension and that, in the past, had significant stress during work which may

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have elevated his blood pressure at times. He also stated that “this may have contributed
somewhat to his aortic dissection.”
In an October 6, 2004 report, Dr. Drew Greeley, a Board-certified thoracic surgeon,
indicated that appellant had presented to Riverview Medical Center on October 5, 2004 with
slurred speech. An echocardiogram revealed aortic insufficiency. A CT scan of the chest
demonstrated Type 1 aortic dissection. On physical examination, appellant exhibited a
diminished right radial pulse, obvious left visual defect and left arm paresthesia. Dr. Greeley
diagnosed acute Type 1 aortic dissection with obvious malperfusion of the carotid artery and
recommended immediate repair. He noted that appellant’s medical history was significant for
hypertension. In an accompanying attending physician’s report, Dr. Greeley stated that
appellant’s symptoms began on October 5, 2004. The record contains an October 6, 2004
operative report describing surgery performed on that date by Dr. Greeley to replace the
ascending aorta with resuspension of the aortic valve. On November 11, 2004 Dr. Greeley
reported that appellant had presented with a stroke and had dissection that extended up both
carotid arteries.
He underwent repair of his aortic dissection on October 6, 2004.
Postoperatively, appellant suffered a left hemispheric cerebral vascular accident and had acute
arterial occlusion of the right lower extremity. He underwent an embolectomy for this condition.
Dr. Greeley indicated that appellant’s conditions seemed to be “resolving quite well from the
stroke he suffered preoperatively.”
Appellant submitted a November 22, 2004 report from Dr. John B. Maggio, a Boardcertified internist, who reviewed his medical history, indicating that he had undergone surgery
for acute proximal aortic dissection, complicated by a cerebral vascular accident. He was stable
until October 23, 2004 when he developed acute arterial insufficiency of the right leg, along with
numbness and weakness of the right upper extremity. Appellant then underwent embolectomy
with repair and dissection of the right femoral artery. Examination revealed no ischemia. Blood
pressure was 132/84. Neck examination demonstrated equal carotid pulsations bilaterally. Chest
examination showed clear lung fields bilaterally. Cardiac examination demonstrated S1 and S2
with a negative rhythm and II -- III/VI systolic murmur. Electrocardiogram demonstrated sinus
rhythm at 92 beats with normal PR and mildly prolonged QRS intervals. He provided an
impression of status postaortic dissection and valve repair; hypertension; hyperlipidemia;
peripheral and cerebral vascular disease; and mild aortic insufficiency on echocardiogram. In a
January 22, 2005 perfusion imaging report, Dr. Maggio noted no LV chamber dilation; a fixed
moderate apical defect; and mildly impaired gated LVEF. In a February 28, 2005 report of a
routine follow-up examination, he reiterated the impressions provided on November 22, 2004 but
did not address the cause of appellant’s conditions.
Appellant submitted a January 21, 2005 report from Dr. Barry M. Schanza, a treating
physician, who examined him on January 5, 2005. Noting that he sustained a stroke and
underwent aortic valve and repair surgery in October 2004, Dr. Schanza stated that appellant had
a blind spot and had episodes of seeing gray spots. He opined that appellant’s visual field loss
was most likely due to the stroke. Other intermittent problems were more likely due to vascular
insufficiency.

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Appellant submitted reports from Dr. Ian Molk, a Board-certified internist. On March 4,
2005 Dr. Molk provided a history of appellant’s condition, indicating that he sustained a leftsided stroke and underwent a repair of the aortic valve and replacement of the ascending aorta.
Subsequently, appellant suffered a right-sided stroke, felt to be embolic in nature which was
followed by an embolectomy and surgical repair of the right iliac region. Dr. Molk stated that
appellant had suffered from hypertension for many years. On September 9, 2005 Dr. Molk
indicated that appellant had been experiencing episodes of mild lower chest discomfort. An
EKG showed no evidence of ischemia and demonstrated normal sinus rhythm. A cardiolite
revealed no reversible ischemia and minimally impaired LV systolic function. Due to his valve
and ascending aortic repair, Dr. Molk recommended against a significant amount of isometric
exercise.
Other medical evidence of record includes a December 16, 2004 “Holter Report
Summary;” reports of echocardiograms dated October 25, 2004 and April 14, 2005; an April 19,
2005 report from Dr. Steven E. Hodes reflecting the results of an April 5, 2005 upper endoscopy;
an April 28, 2005 attending physician’s report signed by Dr. Kenneth Steiner, a treating
physician, reflecting a diagnosis of “aortic aneurism/stroke;” and an undated attending
physician’s report signed by Dr. Stuart Hochron, a Board-certified internist, containing a
diagnosis of dissecting thoracic aneurism.
At the December 13, 2005 hearing, appellant’s representative confirmed that the issue in
the case was whether appellant had suffered a stroke causally related to factors of his
employment. He reiterated that his regular duties as a special agent at the time of the incident
were extremely stressful. Appellant recounted the events leading up to his stroke, noting that he
had been required to attend a job fair on short notice on the date of the incident. He stated, “I
remember tripping and falling or just falling. What caused it, I don’t know.”
By letter dated January 16, 2006, appellant’s representative indicated that he was
submitting reports from Drs. Molk and Clemente supporting appellant’s position that work
factors contributed to his conditions. In a letter dated May 13, 2005, Dr. Clemente stated that
appellant had significant stress during work which “probably” elevated his blood pressure at
times. He noted that “it is well established that hypertension is a significant contributory factor
for aortic dissection.” On January 11, 2006 Dr. Molk stated that appellant who had a history of
hypertension, underwent surgery for ascending aortic dissection. He noted that “stresses on the
job can certainly aggravate hypertension and hypertension itself can be a cause of aortic
dissection.” Dr. Molk stated that it was “certainly a reasonable possibility that the hypertension,
which was aggravated by the stress of the job, contributed to the aortic dissection, which
required ascending aorta replacement in October 2004.”
By decision dated March 1, 2006, an Office hearing representative affirmed the Office’s
May 5, 2005 decision on the grounds that the medical evidence failed to establish that appellant’s
diagnosed conditions were causally related to his accepted employment factors.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that an injury was
sustained in the performance of duty as alleged2 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.3
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 conditions for which compensation is claimed; (2) a
factual statement identifying the 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 diagnosed condition is causally related to the employment factors identified by the claimant.4
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to the claimant’s diagnosed
conditions. To be of probative value, 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 An award
of compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.6
ANALYSIS
Appellant alleged that his regular-work duties and responsibilities as a criminal
investigator exacerbated his hypertension, thereby contributing to his stroke. Stress-inducing
activities identified included execution of arrests and search warrants; being subjected to long
periods of overtime and abrupt changes to his daily schedule following the September 11, 2001
terrorist attacks in New York City, which included a search for human remains at Ground Zero;
1

5 U.S.C. §§ 8101-8193.

2

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). “When an
employee claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the manner alleged. He
must also establish that such event, incident or exposure caused an injury.” See also 5 U.S.C. § 8101(5) (“injury”
defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (“Occupational disease or Illness” and “Traumatic injury” defined).
3

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

4

Michael R. Shaffer, 55 ECAB 386 (2004). See also Solomon Polen, 51 ECAB 341, 343 (2000).

5

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

6

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 3 at 218.

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procurement of security and maintenance of all technical and surveillance equipment;
presentation of integrity/fraud awareness briefings on short notice; presenting firearms
instruction to his fellow agents; carrying a large and complex caseload; and routinely testifying
before federal grand juries presenting complex and detailed investigative results. Appellant’s
supervisor supported the accuracy of appellant’s description of his job responsibilities, indicating
that as his coworker since 1984 and supervisor since 1997, he had observed a growing level of
stress in appellant when conducting his duties which may have been exacerbated in the aftermath
of September 11, 2001. The supervisor noted that appellant carried a “significant, heavy,
complex caseload.” In denying appellant’s claim, the Office accepted that the events claimed by
appellant occurred as alleged. The Board finds that appellant has identified compensable factors
of employment with regard to his regular employment duties.7
Appellant’s burden of proof, however, is not discharged by the fact that he has
established employment factors which may give rise to a compensable disability under the Act.
To establish his occupational disease claim, appellant must also submit rationalized medical
evidence establishing that his claimed conditions were causally related to the accepted
employment factors.8 The Board finds that the medical evidence of record fails to establish that
appellant’s aortic aneurysm or stroke were caused by the accepted compensable employment
factors.
Medical evidence of record includes an October 5, 2004 report from Dr. Khakoo who
diagnosed a possible right posterior cerebral artery stroke causing left arm weakness and
headache. He stated that, while at a work-related convention on that date, appellant began to
experience a severe headache and confusion with dysarthria and slurring of speech, followed by
weakness in the left upper extremity and numbness in the left arm. Dr. Khakoo noted a medical
history significant for hypertension. He did not provide a definite diagnosis or an opinion on the
cause of appellant’s conditions. The Board has long held that medical evidence which does not
offer any opinion regarding the cause of an employee’s conditions is of limited probative value
on the issue of causal relationship.9
On October 6, 2004 Dr. Greeley diagnosed acute Type 1 aortic dissection with obvious
malperfusion of the carotid artery and recommended immediate repair which he performed on
that date. He noted that appellant’s medical history was significant for hypertension. On
November 11, 2004 Dr. Greeley reported that appellant had presented with a stroke and aortic
dissection that extended up both carotid arteries. After undergoing repair of appellant’s aortic
dissection on October 6, 2004 appellant suffered a left hemispheric cerebral vascular accident
and had acute arterial occlusion of the right lower extremity. He underwent an embolectomy for
this condition. Dr. Greeley indicated that appellant’s conditions seemed to be “resolving quite
7

See Penelope C. Owens, 54 ECAB 684 (2003) (where a claimed disability results from an employee’s emotional
reaction to the performance of his or her regular or specially assigned duties or to an imposed employment
requirement, the disability comes within the coverage of the Act.) See also Lillian Cutler, 28 ECAB 125 (1976).
8

William P. George, 43 ECAB 1159, 1168 (1992).

9

Willie M. Miller, 53 ECAB 697 (2002). See also Michael E. Smith, 50 ECAB 313 (1999).

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well from the stroke he suffered preoperatively.” However, he did not provide an opinion on the
cause of his diagnosed conditions. Therefore, his reports are of limited probative value.10
Reports from Dr. Maggio are similarly deficient. On November 22, 2004 he reviewed
appellant’s medical history, indicating that appellant had undergone surgery for acute proximal
aortic dissection, complicated by a cerebral vascular accident. Noting that appellant was stable
until October 23, 2004 when he developed acute arterial insufficiency of the right leg, along with
numbness and weakness of the right upper extremity, Dr. Maggio reported that appellant
underwent embolectomy with repair and dissection of the right femoral artery. Examination
revealed no ischemia. Blood pressure was 132/84. Neck examination demonstrated equal
carotid pulsations bilaterally. Chest examination showed clear lung fields bilaterally. Cardiac
examination demonstrated S1 and S2 with a negative rhythm and II -- III/VI systolic murmur.
An EMG demonstrated sinus rhythm at 92 beats with normal PR and mildly prolonged QRS
intervals. Dr. Maggio provided impressions of status postaortic dissection and valve repair;
hypertension; hyperlipidemia; peripheral and cerebral vascular disease; and mild aortic
insufficiency on echocardiogram. In a January 22, 2005 perfusion imaging report, he noted no
LV chamber dilation; a fixed moderate apical defect; and mildly impaired gated LVEF. In a
February 28, 2005 report, Dr. Maggio reiterated the impressions provided on
November 22, 2004. As none of his reports addressed the cause of appellant’s conditions they
are of diminished probative value and are insufficient to establish appellant’s claim.
On January 21, 2005 Dr. Schanza reported that appellant had a blind spot and had
episodes of seeing gray spots. He opined that appellant’s visual field loss was most likely due to
the stroke and that other intermittent problems were more likely due to vascular insufficiency.
While Dr. Schanza expressed an opinion as to the cause of appellant’s visual field loss, he did
not address the cause of appellant’s stroke which is at issue in this case. Accordingly, his report
does not support appellant’s claim.
On October 6, 2004 Dr. Clemente recommended immediate surgery to repair an aortic
dissection. On April 14, 2005 he indicated that appellant’s symptoms related to his previous
stroke and repair of the aortic valve had significantly improved. In a letter dated May 13, 2005,
Dr. Clemente stated that appellant had a history of hypertension and “during his work in the past,
had significant stress during work which may have elevated his blood pressure at times.” He
also stated that “this may have contributed somewhat to his aortic dissection.” In another letter
dated May 13, 2005, Dr. Clemente stated that appellant had significant stress during work which
“probably” elevated his blood pressure at times. He noted that “it is well established that
hypertension is a significant contributory factor for aortic dissection.” Dr. Clemente’s reports
dated October 6, 2004 and April 14, 2005 do not contain an opinion as to the cause of appellant’s
diagnosed conditions and, therefore, lack probative value in that regard. His May 13, 2005
letters are also insufficient to establish appellant’s claim. Although Dr. Clemente purports to
express an opinion as to a causal relationship between appellant’s diagnosed aortic dissection
and factors of his employment, his opinion is speculative at best. Moreover, he has not provided
a rationalized explanation as to how appellant’s employment activities caused or contributed to
his diagnosed conditions. The Board has long held that a medical opinion not fortified by
10

Id.

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medical rationale is of diminished probative value.11 Dr. Clemente’s general statement that
“hypertension is a significant contributory factor for aortic dissection” is insufficient to explain
how appellant’s stroke was physiologically related to the accepted employment conditions.
Dr. Molk’s reports are also insufficient to establish appellant’s claim. On March 4, 2005
he provided a history of appellant’s conditions, indicating that he sustained a left-sided stroke
and underwent a repair of the aortic valve and replacement of the ascending aorta. Subsequently,
appellant suffered a right-sided stroke, felt to be embolic in nature which was followed by an
embolectomy and surgical repair of the right iliac region. Dr. Molk stated that appellant had
suffered from hypertension for many years. On September 9, 2005 he indicated that appellant
had been experiencing episodes of mild lower chest discomfort. An EKG showed no evidence of
ischemia and demonstrated normal sinus rhythm. A cardiolite revealed no reversible ischemia
and minimally impaired LV systolic function. Due to his valve and ascending aortic repair,
Dr. Molk recommended against a significant amount of isometric exercise. As neither report
contained an opinion as to the cause of appellant’s stroke they are of limited probative value. On
January 11, 2006 Dr. Molk stated that appellant who had a history of hypertension, underwent
surgery for ascending aortic dissection. He noted that “stresses on the job can certainly
aggravate hypertension and hypertension itself can be a cause of aortic dissection.” Dr. Molk
stated that it was “certainly a reasonable possibility that the hypertension, which was aggravated
by the stress of the job contributed to the aortic dissection which required ascending aorta
replacement in October 2004.” His hypothesis was not expressed to a reasonable degree of
medical certainty, but rather, was equivocal in nature. Moreover, although Dr. Molk stated
generally that hypertension caused by job-related stress can cause an aortic dissection, he failed
to explain how, in this specific case, conditions of appellant’s employment aggravated his
hypertension and physiologically how that hypertension caused his stroke. Therefore, his report
is of diminished probative value.
The Board notes that the remaining medical evidence of record does not contain an
opinion as to the cause of appellant’s diagnosed conditions. Accordingly, it is of diminished
probative value and does not support appellant’s claim.
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which included a description of his symptoms, test results, diagnosis, treatment
history and the doctor’s opinion with medical reasons as to the cause of his conditions.
Appellant failed to do so. As there is no probative, rationalized medical evidence explaining
how appellant’s aortic aneurysm or stroke were caused or aggravated by his employment, he has
not met his burden of proof in establishing that he sustained an occupational disease in the
performance of duty causally related to factors of employment.
CONCLUSION
The Board finds that appellant has failed to submit rationalized medical evidence
establishing that his aortic aneurysm or stroke was caused by the accepted employment factors.
Therefore, he has failed to satisfy his burden of proof in this case.
11

See Brenda L. DuBuque, 55 ECAB 667 (2004); see also David L. Scott, 55 ECAB 330 (2004); Willa M.
Frazier, 55 ECAB 379 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the March 1, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 4, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FEDERAL
CORRECTIONAL INSTITUTION-ASHLAND,
Ashland, KY, Employer
__________________________________________

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

Docket No. 19-0395
Issued: August 10, 2020

Case Submitted on the Record

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

JURISDICTION
On December 13, 2018 appellant, through counsel, filed a timely appeal from a
September 7, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).

1

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

Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3
ISSUE
The issue is whether appellant has met her burden of proof to establish more than two
percent permanent impairment of her right upper extremity, for which she has previously received
a schedule award.
FACTUAL HISTORY
On September 13, 2013 appellant, then a 47-year-old drug treatment specialist, filed an
occupational disease claim (Form CA-2) alleging that she developed right carpal tunnel syndrome
due to factors of her federal employment which included inputting data on a computer. OWCP
accepted her claim for right carpal tunnel syndrome.
On June 20, 2013 appellant had undergone electromyogram and nerve conduction velocity
(EMG/NCV) testing which contained an impression of moderately severe right carpal tunnel
syndrome.
Appellant received treatment for her right upper extremity condition from Dr. Laura Reese,
an osteopath Board-certified in orthopedic surgery, who performed OWCP-authorized right carpal
tunnel release surgery on January 15, 2014.4
During a follow-up care visit on May 16, 2014, Dr. Reese advised that appellant reported
that her right hand numbness and tingling were gone, but indicated that she experienced arthritictype pain in her right fingers which was not associated with the carpal tunnel. She noted physical
examination findings of a well-healed right wrist incision without tenderness, and some crepitus
at the right carpometacarpal joint. Appellant exhibited full range of motion of the right wrist upon
flexion, extension, radial deviation, and ulnar deviation. Dr. Reese reported that sharp/dull
sensation testing in the right median nerve distribution was normal and opined that appellant
reached maximum medical improvement (MMI) from her carpal tunnel surgery.
On August 25, 2014 appellant filed a claim for a schedule award (Form CA-7).
In a September 22, 2014 letter, OWCP advised Dr. Reese that it had received her
May 16, 2014 report, but that additional medical evidence was necessary to establish appellant’s
2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the September 7, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
4
Appellant stopped work on January 15, 2014 and returned to work on March 3, 2014. OWCP paid her wage-loss
compensation on the supplemental rolls for disability from work.

2

schedule award claim. It requested that she submit a report which evaluated appellant’s permanent
impairment pursuant to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).5 OWCP afforded Dr. Reese 30 days to
submit the requested evidence.
Dr. Reese did not submit evidence within the afforded period. However, on October 20,
2014, OWCP received a September 26, 2014 report from Dr. Martin Fritzhand, a Board-certified
urologist, who advised that appellant reported that prolonged use of her right arm exacerbated her
right hand pain. Appellant also reported diminished grip strength and sporadic numbness in her
right hand, and she indicated that her right hand hurt when she had to repeatedly open doors at
work. Dr. Fritzhand indicated that appellant reported it took longer for her to “complete things”
with her right hand at home and that she could not participate in her daughters’ basketball and
softball activities. He noted that the physical examination revealed an equivocally positive right
Tinel’s sign, diminished pinprick and light touch over the right thumb, well-preserved grip strength
of the right hand, and no right upper extremity atrophy. Dr. Fritzhand opined that appellant
reached MMI in May 2014. He provided a permanent impairment rating for the right upper
extremity utilizing Table 15-23 (Entrapment/Compression Neuropathy Impairment) on page 449
of the sixth edition of the A.M.A., Guides. Dr. Fritzhand determined that appellant’s condition
fell under grade modifier 1 for test findings, grade modifier 2 for history, and grade modifier 2 for
physical findings. He averaged these grade modifiers to 1.67, which he rounded up to 2, and he
then noted that appellant fell under grade modifier 2 with a default impairment value of five percent
for the right upper extremity. Dr. Fritzhand determined that, utilizing the functional scale portion
of Table 15-23, appellant’s QuickDASH score of 68 required movement one space to the right of
the default value. He therefore concluded that appellant had a total of six percent permanent
impairment of the right upper extremity.
By decision dated August 12, 2015, OWCP denied appellant’s claim for a schedule award
because the medical evidence did not establish permanent impairment to a scheduled member or
function of the body.
On August 31, 2015 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. Prior to the hearing being held,
OWCP’s hearing representative conducted a preliminary review and determined that the case was
not in posture for decision. She issued a February 23, 2016 decision vacating the August 12, 2015
decision and remanding the case to OWCP for further development. The hearing representative
determined that OWCP failed to consider Dr. Fritzhand’s October 20, 2014 impairment rating
report and directed OWCP, upon remand, to refer the report to an OWCP district medical adviser
(DMA) for review.
On February 29, 2016 OWCP referred the case record, including Dr. Fritzhand’s
October 20, 2014 report, to Dr. Morley Slutsky, a Board-certified occupational medicine physician
serving as a DMA. It requested that the DMA provide an opinion on permanent impairment under
the sixth edition of the A.M.A., Guides. In a March 6, 2016 report, the DMA advised that he
needed the most recent EMG/NCV study to determine whether appellant met the criteria for the
5

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

3

diagnosis of right carpal tunnel syndrome. He also requested a copy of the statement of accepted
facts (SOAF).
On May 13, 2016 OWCP routed the June 20, 2013 EMG/NCV study, the SOAF, and rest
of the case file to the DMA, for review and an opinion on permanent impairment in accordance
with the A.M.A., Guides. On May 22, 2016 the DMA reported that appellant reached MMI on
May 16, 2014, the date of Dr. Reese’s examination and discussed his disagreement with
Dr. Fritzhand’s impairment rating. Utilizing Table 15-23 of the sixth edition of the A.M.A.,
Guides, the DMA determined that the June 20, 2013 EMG/NCV study showed that appellant fell
under grade modifier 1 for test findings because the study met the criteria for right carpal tunnel
syndrome and demonstrated sensory and motor conduction delays associated with the median
nerve. He assigned a grade modifier 1 for history given that appellant had mild intermittent
symptoms (without evidence that she was unable to perform at least one activity of daily living or
that someone consistently did an activity of daily living for her). The DMA assigned a grade
modifier of 1 for physical findings. He noted that Dr. Fritzhand found diminished pinprick and
light touch in the right medial nerve distribution, but did not perform appropriate two-point
discrimination testing.6 Averaging the three grade modifiers meant that appellant fell under grade
modifier 1 on Table 15-23 with a default impairment value of two percent. The DMA determined
that appellant’s QuickDASH score of 68 was invalid. He explained the A.M.A., Guides provides
that, when the QuickDASH score exceeds 60 in the context of mild physical findings, there may
be other diagnoses being overlooked which impact the subject’s answers and, therefore, the score
is considered to be invalid. The DMA concluded that appellant’s condition did not warrant
movement from the default impairment value of two percent and, therefore, the total permanent
impairment of appellant’s right upper extremity was two percent.
By decision dated June 23, 2016, OWCP granted appellant a schedule award for two
percent permanent impairment of the right upper extremity (right arm). The award ran for 6.24
weeks from July 25 to September 6, 2014 and was based on the May 22, 2016 impairment rating
of the DMA.
On June 30, 2016 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. Counsel submitted an August 20,
2016 report from Dr. Fritzhand who noted that the DMA downgraded his assessment of appellant’s
history from grade modifier 2 to grade modifier 1. Dr. Fritzhand argued that appellant had
significant intermittent symptoms in her right upper extremity which Table 15-23 identified as
defining grade modifier 2 for history. He noted that he used a discriminator wheel (two-point
wheel) during his examination and indicated that his statement that pinprick and light touch were
diminished implied greater than six millimeter discrimination, a finding which met the definition
of grade modifier 2. Dr. Fritzhand opined that appellant had six percent permanent impairment of
the right upper extremity.
Prior to a hearing being held, OWCP’s hearing representative conducted a preliminary
review and issued a November 16, 2016 decision vacating the June 23, 2016 decision and
remanding the case to OWCP for further development. The hearing representative determined that
6

The DMA also indicated that appellant had no atrophy or muscle loss associated with the right median nerve.

4

Dr. Fritzhand’s August 20, 2016 report warranted further development, including referral of the
report to a DMA for review.
On December 2, 2016 OWCP routed Dr. Fritzhand’s August 20, 2016 report to the DMA
for review and evaluation of appellant’s permanent impairment. In a December 10, 2016 report,
the DMA confirmed his rating of two percent permanent impairment of the right upper extremity.
Utilizing Table 15-23 of the sixth edition of the A.M.A., Guides, he determined that the June 20,
2013 EMG/NCV study showed that appellant fell under grade modifier 1 for test findings because
the study met the criteria for right carpal tunnel syndrome and demonstrated sensory and motor
conduction delays associated with the right median nerve. The DMA assigned a grade modifier 1
for history, noting that appellant’s right upper extremity symptoms were not constant, she could
perform all of her activities of daily living despite her symptoms, and there was no mention that
she required someone else to consistently perform an activity of daily living for her. He referenced
the standards for evaluating the grade modifier for history found on page 433 of the A.M.A.,
Guides, and noted that a further reason that appellant did not qualify for grade modifier 2 or higher
was that her right median nerve entrapment was not severe enough to make failure to function in
a specific activity of daily living “believable.”
The DMA further determined that appellant fell under a grade modifier of 1 for physical
findings, noting that the A.M.A., Guides provides on page 446 that an individual’s grade modifier
for physical findings is determined by objective sensory loss findings (observed after a specific
testing regimen) and motor loss findings (due to recognized neurologic atrophy of innervated
muscle). He indicated that Dr. Fritzhand found diminished pinprick and light touch in the right
medial nerve distribution, but noted that he did not perform proper two-point discrimination
testing. The DMA noted that Dr. Fritzhand’s use of a discriminator wheel to test for two-point
discrimination and light touch was inappropriate because the number of millimeters between the
two points tested must first be measured and then applied to the skin to determine the minimum
number of millimeters between the two points in order to determine if the discrimination is within
normal limits (six millimeters or less).7 He found that the average of appellant’s three grade
modifiers fell under grade modifier 1 with a default impairment value of two percent. The DMA
determined that appellant’s severe QuickDASH score of 68 was invalid given her mild findings8
and concluded that, because there was no movement from the default impairment value derived
from Table 15-23, the total permanent impairment of appellant’s right upper extremity was two
percent.
By decision dated December 15, 2016, OWCP denied appellant’s request for an increased
schedule award. It based its determination on the opinion of the DMA.

7
The DMA referenced the process for correctly measuring two-point discrimination on page 424 and 426 of the
A.M.A., Guides. He also indicated that appellant had no atrophy or muscle loss associated with the right median
nerve.
8

The DMA indicated the A.M.A., Guides provides on page 445 that, when the QuickDASH score exceeds 60 in
the context of mild physical findings, there may be other diagnoses being overlooked which impact the subject’s
answers and, therefore, the score is considered to be invalid.

5

On December 20, 2016 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review. During the June 13, 2017 hearing,
counsel argued that OWCP should have accepted the impairment rating of Dr. Fritzhand.
By decision dated August 23, 2017, OWCP’s hearing representative vacated the
December 15, 2016 decision and remanded the case to OWCP for further development. She
determined that neither the DMA nor Dr. Fritzhand applied FECA Bulletin No. 17-06 which
requires consideration of both a diagnosis-based impairment rating method and a range of motion
impairment rating method when calculating permanent impairment due to certain upper extremity
conditions. The hearing representative directed OWCP, upon remand, to refer appellant to a
second opinion physician for an examination and proper evaluation of permanent impairment
under the sixth edition of the A.M.A., Guides.
On August 31, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. Anbu K. Nadar, a Board-certified orthopedic surgeon. In a November 14, 2017 report,
Dr. Nadar discussed appellant’s complaints of residual pain and numbness in her right hand,
occasional numbness in her right thumb and index finger, and some difficulty in gripping with her
right hand. He noted that he conducted a physical examination on September 20, 2017 which
revealed a well-healed incision over the palm of appellant’s right hand, tenderness to deep
palpation of her right wrist/hand, negative Tinel’s and Phalen’s signs, no thenar/hypothenar
wasting, and two-point sensation of six millimeters involving her right thumb, index, and middle
finger. Appellant had full range of motion of the right wrist with flexion to 70 degrees, extension
to 70 degrees, radial deviation to 25 degrees, and ulnar deviation to 30 degrees. Dr. Nadar
provided an impairment rating utilizing Table 15-23 of the sixth edition of the A.M.A., Guides.
He found that the findings of appellant’s EMG/NCV study fell under grade modifier 1 for test
findings and noted that appellant continued to have intermittent symptoms which qualified her for
grade modifier 2 for history. Dr. Nadar determined that her physical examination findings were
grossly within normal limits and fell under grade modifier 1 for physical findings. He averaged
these grade modifiers and found that the appropriate grade modifier was 1.33, which he rounded
down to 1. Dr. Nadar indicated that appellant’s condition fell under the default impairment value
of two percent for grade modifier 1 and concluded that she had a total of two percent permanent
impairment of the right upper extremity.9
On November 24, 2017 OWCP referred the case record, including Dr. Nadar’s
November 14, 2017 report, to the DMA for review and an evaluation of appellant’s permanent
impairment under the A.M.A., Guides.
In a December 11, 2017 report, the DMA noted that the A.M.A., Guides provides that the
range of motion method does not apply to rating permanent impairment due to carpal tunnel
syndrome. He then proceeded to calculate appellant’s right upper extremity impairment utilizing
Table 15-23 on page 449 of the sixth edition of the A.M.A., Guides. The DMA determined that
the June 20, 2013 EMG/NCV study showed that appellant fell under grade modifier 1 for test
findings because the study met the criteria for right carpal tunnel syndrome and demonstrated

9

Dr. Nadar determined that the date of MMI was September 20, 2017, the date of his examination.

6

sensory and motor conduction delays associated with the right median nerve.10 He noted that
appellant fell under grade modifier 1 for history because she only had mild intermittent symptoms
related to carpal tunnel syndrome. Appellant did not qualify for a higher grade modifier because
there was no documentation that she was unable to perform at least one of the activities of daily
living, that someone else consistently performed an activity of daily living for her, or that there
was conduction block and/or axonal involvement on EMG/NCV testing. The DMA then assigned
grade modifier 0 for physical findings given that two-point discrimination testing was normal (six
millimeters of less) and that there was no documentation of atrophy or muscle loss associated with
the right median nerve. He advised that the average of the three grade modifiers rounded to the
nearest integer would be assigned grade modifier 1 with a default impairment value of two percent.
The DMA noted that a QuickDASH score was not obtained, but determined that, given appellant’s
mild symptoms, mild EMG/NCV findings, and no significant physical loss, she had a mild
functional score which would also be assigned grade modifier 1. Therefore, appellant’s functional
score did not require movement from the default impairment value of two percent. The DMA
concluded that the total permanent impairment of appellant’s right upper extremity was two
percent.11
By decision dated January 10, 2018, OWCP denied appellant’s claim for an increased
schedule award. It based its determination on the opinion of the DMA.
On January 19, 2018 appellant, through counsel, requested a telephonic oral hearing before
a representative of OWCP’s Branch of Hearings and Review. During the June 26, 2018 hearing,
counsel argued that the DMA’s impairment rating was improper. By decision dated September 7,
2018, OWCP’s hearing representative affirmed the January 10, 2018 decision.
LEGAL PRECEDENT
The schedule award provision of FECA12 and its implementing federal regulation13 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

10
The DMA indicated that there was no conduction block and/or axonal involvement seen on the June 20, 2013
EMG/NCV study which would warrant a greater grade modifier for test findings.
11

The DMA indicated that the date of MMI was September 20, 2017, the date of Dr. Nadar’s examination.

12

5 U.S.C. § 8107.

13

20 C.F.R. § 10.404.

7

the A.M.A., Guides as the uniform standard applicable to all claimants.14 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.15
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.16 In
Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the categories test
findings, history, and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser providing
rationale for the percentage of impairment specified.18
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than two
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award.
In his December 11, 2017 report, the DMA properly calculated appellant’s right upper
extremity impairment utilizing Table 15-23 of the sixth edition of the A.M.A., Guides.19 He
determined that the June 20, 2013 EMG/NCV study showed that appellant fell under grade
modifier 1 for test findings because the study, which demonstrated sensory and motor conduction
delays, met the criteria for right carpal tunnel syndrome.20 The DMA noted that appellant fell
under grade modifier 2 for history because she only had mild intermittent symptoms in her right
upper extremity. He then assigned grade modifier 0 for physical findings given that two-point
discrimination testing was normal and that there was no documentation of atrophy or muscle loss
associated with the right median nerve. The average of the three grade modifiers was rounded to
14

Id.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
16

See A.M.A., Guides 449, Table 15-23.

17
A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
functional scale score. Id. at 448-49.
18

See supra note 15 at Chapter 2.808.6(d) (March 2017).

19

A.M.A., Guides 449, Table 15-23.

20
The DMA indicated that there was no conduction block and/or axonal involvement seen on the June 20, 2013
EMG/NCV study which would warrant a greater grade modifier for test findings.

8

the nearest integer and assigned grade modifier 1 with a default impairment value of two percent.
The DMA noted that a QuickDASH score was not obtained, but properly determined that, given
appellant’s mild symptoms, mild EMG/NCV findings, and no significant physical loss, she had a
mild functional score of grade modifier 1 which did not require movement from the default
impairment value of two percent.21 The DMA correctly concluded that the total permanent
impairment of appellant’s right upper extremity was two percent.22
The case record contains reports of Dr. Fritzhand, an attending physician, which includes
higher impairment rating calculations for the right upper extremity,23 but the Board finds that
Dr. Fritzhand’s impairment rating analysis is of little probative value because he did not adequately
explain how his calculations were conducted in accordance with the standards of the sixth edition
of the A.M.A., Guides.24 The DMA properly identified the deficiencies in Dr. Fritzhand’s
impairment rating analysis.25 For example, he explained that it was improper for Dr. Fritzhand to
assign grade modifier 2 for history (rather than grade modifier 1) because appellant did not qualify
for this higher grade modifier given there was no documentation that she was unable to perform at
least one of the activities of daily living, that someone else consistently performed an activity of
daily living for her, or that there was conduction block and/or axonal involvement on EMG/NCV
testing.26 The DMA also explained that it was improper for Dr. Fritzhand to assign grade modifier
2 for physical findings (rather than grade modifier 1) because Dr. Fritzhand did not conduct a
proper evaluation of sensory loss under the standards of the sixth edition of the A.M.A., Guides.27

21

See A.M.A., Guides 449.

22

The Board notes that Dr. Nadar assigned higher grade modifiers for history and physical examination than the
DMA, but he did not provide any notable explanation for these ratings and Dr. Nadar ultimately found the same level
of permanent impairment for the right upper extremity as the DMA, i.e., two percent. OWCP requested that Dr. Nadar
use the range of motion rating method for evaluating appellant’s permanent impairment due to right carpal tunnel
syndrome, but he, like the DMA, applied the appropriate method found at Table 15-23. See supra note 16.
23

In September 20, 2014 and August 20, 2016 reports, Dr. Fritzhand determined that appellant had six percent
permanent impairment of her right upper extremity.
24

See N.A., Docket No. 19-0248 (issued May 17, 2019); James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding
that an opinion which is not based upon the standards adopted by OWCP and approved by the Board as appropriate
for evaluating schedule losses is of little probative value in determining the extent of a claimant’s permanent
impairment).
25

The DMA directly evaluated Dr. Fritzhand’s opinion on permanent impairment in reports dated May 22 and
October 10, 2016.
26

See A.M.A., Guides 433.

27

See id. at 424, 426. The DMA properly explained that Dr. Fritzhand’s use of a discriminator wheel to test for
two-point discrimination and light touch was inappropriate because use of this device did not allow for proper sensory
testing. He indicated that the number of millimeters between the two points tested had to first be measured and then
applied to the skin to determine the minimum number of millimeters between the two points in order to determine if
the discrimination was within normal limits (six millimeters or less). See id.

9

He also correctly found that Dr. Fritzhand’s calculation of appellant’s functional scale was invalid
and did not require movement from the default impairment value described in Table 15-23.28
There is no probative medical evidence of record demonstrating that appellant sustained
more than two percent permanent impairment of her right upper extremity due to her accepted
condition of right carpal tunnel syndrome, for which she previously was received a schedule
award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than two
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 7, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 10, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

28

The DMA determined that the QuickDASH score of 68 obtained by Dr. Fritzhand was invalid given appellant’s
mild findings. He properly noted that, under the sixth edition of the A.M.A., Guides, when the QuickDASH score
exceeds 60 in the context of mild physical findings, there may be other diagnoses being overlooked which impact the
subject’s answers and, therefore, the score is considered to be invalid. See id. at 445.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Y., Appellant
and
GENERAL SERVICES ADMINISTRATION,
PUBLIC BUILDING SERVICE,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0332
Issued: June 8, 2016

Case Submitted on the Record

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

JURISDICTION
On December 12, 2015 appellant filed a timely appeal of a July 10, 2015 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 the case.
ISSUE
The issue is whether appellant’s claim for compensation was filed within the applicable
time limitation provisions of FECA.
FACTUAL HISTORY
On December 21, 2012 appellant, then a 48-year-old retired air conditioning equipment
mechanic leader, filed an occupational disease claim (Form CA-2) alleging that on December 14,
1

5 U.S.C. § 8101 et seq.

1999 he first became aware of his sarcoidosis. However, it was not until December 7, 2012 that
he realized the condition had been caused or aggravated by his federal employment.
In a statement dated December 21, 2012, appellant related that as the result of a physical
performed by the employing establishment he was diagnosed with pulmonary sarcoidosis. He
stated that his condition was stable until it worsened in 2004 and ultimately led to his disability
retirement in 2004. Appellant alleged that he was exposed to dust particles when repairing and
servicing air conditioning systems in the New Executive Office Building carpenter’s shop. He
noted that no protective equipment was worn and that he was exposed every three months, for 15
minutes to an hour, during the period 1999 to 2001. Appellant indicated that he was also
required to restock wood and clean and light the fireplaces in the west wing offices. He reported
exposure to metallic dust from 1989 to 1995 while working for the Department of Defense.
On January 2, 2013 OWCP received a September 7, 2004 notification of personnel action
(Form SF-50) noting that appellant had been approved by the Office of Personnel Management
(OPM) for disability retirement effective that same date.
In support of his claim, appellant submitted a February 9, 2000 computerized tomography
(CT) scan which diagnosed enlarged mediastinal and hilar nodes, several noncalcified pulmonary
nodes, and pleural-based densities. Pulmonary function reports dated February 17 and
August 31, 2000 from Dr. Earl M. Armstrong, a treating Board-certified internist with
subspecialty certifications in pulmonary diseases and critical care medicine diagnosed possible
mild restrictive ventilator defect.
Dr. Allison R. Edwards, an attending Board-certified internist, submitted a December 7,
2012 report in which she described the characteristics of sarcoidosis. She opined that appellant’s
weakened immune system had been aggravated by his exposure to wood dust during repairs of
the air conditioning unit in the Carpenter’s Shop. Dr. Edwards also opined that appellant’s
condition had been aggravated by restocking and cleaning fireplaces, without use of a facial
mask, at the White House East and West Wing offices. She attributed appellant’s sarcoidosis to
appellant’s wood dust exposure with no protection for over seven years. Dr. Edwards explained
wood dust exposure aggravated appellant’s preexisting weakened and suppressed immune
system. In support of her conclusions, Dr. Edwards related that it was valid to conclude that
appellant’s exposure to work pollutants and wood dust during the period 1997 to 2004
contributed to his sarcoidosis.
By letter dated January 28, 2013, OWCP informed appellant that the evidence of record
was insufficient to establish that he had filed a timely claim under 5 U.S.C. § 8122(a). Appellant
was afforded 30 days to submit additional evidence.
OWCP received additional evidence on February 11, 2013. On December 7, 2000
Dr. Armstrong advised the employing establishment that the medication prescribed for
appellant’s sarcoidosis caused a voracious appetite along with frequent eating.
In a February 9, 2004 note, Dr. Edwards indicated that appellant could not work with
fiberglass due to his chronic lung problem.

2

In a June 16, 2004 letter, Dr. Edwards requested work accommodations based on
appellant’s various conditions including mitral regurgitation, sarcoidosis, and psoriatic arthritis.
The letter was addressed to Roderick Quick, the employing establishment’s chief operating
engineer and appellant’s third line supervisor. In support of the accommodation request,
Dr. Edwards noted appellant’s current work duties aggravated the listed conditions.
In progress notes covering the period between May 27 to October 28, 2011, Dr. Binu J.
George, a fellow in pulmonary medicine, and Dr. Samuel Spagnolo, an attending Board-certified
pulmonologist and internist, diagnosed sarcoidosis and left lower lobe pleural nodule and
provided physical examination findings. Their reports noted a history of sarcoidosis, which had
been first diagnosed in 2000.
In a February 4, 2013 e-mail, Supervisor Quick stated appellant had never been exposed
long term to or assigned to an environment containing wood dust. He then provided a list of the
places where appellant had worked. Supervisor Quick related that, when appellant informed him
of the sarcoidosis diagnosis, which had been found on a recent physical, that appellant attributed
it to his breathing jet fuel fumes while in the military. He stated that he had never received any
information supporting that appellant had been exposed to wood dust.
By decision dated May 2, 2013, OWCP denied appellant’s claim as untimely due to his
failure to file his claim within the applicable three-year time limitation under 5 U.S.C. § 8122. It
found the date of injury to be December 14, 1999 with the date of last exposure as
September 7, 2004. OWCP found the claim untimely as appellant did not file his claim until
January 2, 2013, which was more than three years after the date of last exposure. As the claim
was denied on the threshold issue of timeliness, it did not address the issue of appellant’s
exposures or the medical evidence.
On May 7, 2013 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review.
By decision dated July 23, 2013, the hearing representative affirmed the May 2, 2013
decision denying appellant’s claim on the basis that it had been untimely filed under 5 U.S.C.
§ 8122(a). She found no evidence in the record showing that the physical examinations
performed by Physical Health Services were part of an employee testing program for a
recognized environmental hazard. The hearing representative further found the record devoid of
any evidence demonstrating actual knowledge by a supervisor or the employing establishment
that appellant attributed his condition to work exposure.
In correspondence dated August 23, 2013, appellant requested reconsideration. He
submitted a January 18, 2005 report regarding an investigation for complaint of discrimination.
This report contained a statement from Supervisor Quick. Supervisor Quick stated that after
appellant informed him of his breathing problem he researched the condition on the Internet for
appellant. He then printed out the information he found and gave it to appellant.
Supervisor Quick discussed work accommodations made for appellant which were based on
reports from his treating physicians. He stated that appellant came in with a doctor’s note
indicating that he could not work with fiberglass due to his lung condition and that this occurred
after appellant worked on replacing filters in an air condition unit. Supervisor Quick noted that

3

he had received a June 16, 2004 doctor’s note diagnosing a number of conditions and which
indicated that appellant could not perform his usual work duties.
By decision dated November 21, 2013, OWCP denied modification. It found that
appellant had failed to submit any evidence establishing that he had timely filed his occupational
disease claim.
In a form dated December 3, 2013, appellant again requested reconsideration. He argued
that his submission of his 1996 periodic health evaluation established awareness on the part of
the employing establishment of an environmental hazard as employees were encouraged and
recommended to participate. Appellant submitted a May 16, 1996 periodic health evaluation
forms and e-mails dated August 30 and November 22, 2013 from Michael Kleinman,
Professional Health Services, Inc. Mr. Kleinman related that 30 days was a typical turnaround
time and medical testing reports in 1999 and 2002 would likely have been issued within 30
workdays.
By decision dated March 7, 2014, OWCP denied modification. It again found that
appellant failed to submit any evidence showing that his claim had been timely filed under 5
U.S.C. § 8122(a).
On March 17, 2014 appellant again requested reconsideration and submitted the
following evidence. He also resubmitted Dr. Edwards’ June 16, 2004 report.
A June 30, 2004 work assignment list from John J. Douglas to Milton T. Townsell,
supervisor, contained instructions that appellant was to cut fiberglass duct wrap.
In an amended Form CA-2, appellant changed the date that he first realized that his
sarcoidosis had been caused or aggravated by his employment from December 7, 2012 to
June 16, 2004.
In an undated statement from the discrimination complaint investigation, Mr. Townsell,
appellant’s first line supervisor, stated that he was unaware of appellant’s disabilities. He stated
that appellant directly notified the second line supervisor of any disabilities.
Supervisor Townsell stated that appellant had been assigned light-duty work following receipt of
a February 4, 2004 note from Dr. Turkiewicz.
Management provided instructions to
Mr. Townsell regarding light work for appellant, which included no tasks involving fiberglass.
From February 2004 until his retirement later that year, appellant was initially assigned to lightduty work which was later changed to light office work.
By decision dated June 4, 2014, OWCP denied modification. It found that while
appellant alleged that he informed his supervisor of his respiratory condition, the evidence of
record did not establish that appellant had informed his supervisor that his condition resulted
from his federal employment.
On November 12, 2014 appellant again requested reconsideration. He argued that he had
incorrectly interpreted the date he first became aware of a causal connection on his CA-2 form.
Appellant noted June 16, 2004, the date of his doctor’s written notice, to be the correct date and
that the December 7, 2012 narrative report date was incorrect. He submitted reports dated
4

June 16, 2004 and December 7, 2012 by Dr. Edwards, his statement and a July 8, 2004
memorandum to appellant from Stephen R. Pearson, Deputy Director.
In the July 8, 2004 memorandum, Mr. Pearson denied appellant’s request for reasonable
accommodation as the medical evidence was insufficient. He requested appellant to provide
additional medical evidence including a diagnosis, current clinical status, prognosis, a narrative
explanation for any conclusions, an explanation for the basis of the conclusion, and basis for the
requested accommodation.
By decision dated February 2, 2015, OWCP denied modification. It again found that the
evidence submitted did not establish that appellant placed the employing establishment on notice
of a work-related medical condition.
On April 13, 2015 appellant again requested reconsideration. He submitted a May 26,
2004 request for reasonable accommodation to avoid direct sunlight, a May 26, 2004
dermatology progress note from Dr. George K. Verghese, a dermatology resident, and a May 25,
2004 rheumatology progress note from Dr. Turkiewicz.
Dr. Verghese diagnosed psoriasis vulgaris. He opined that appellant should avoid sun
exposure and remain on a night schedule.
Dr. Turkiewicz, in a May 24, 2004 progress note, reported that since March 2000
appellant has been a patient at the Rheumatology Clinic where he has been treated for pain and
stiffness of his neck, hands, and knees. He recommended that appellant avoid heavy lifting,
prolonged kneeling, and prolonged and sustained hand and wrist joint use as these activities
could aggravate his symptoms.
By decision dated July 10, 2015, OWCP denied modification. It found that the evidence
of record did not establish that appellant’s immediate supervisor or another official at the
employing establishment had knowledge of his claim for sarcoidosis related to factors of his
federal employment within 30 days of the date of last exposure, or within 30 days of when
appellant should have been reasonably aware that his condition was caused or aggravated by his
employment.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.2 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death.3 Compensation

2

C.D., 58 ECAB 146 (2006); David R. Morey, 55 ECAB 642 ( 2004); Mitchell Murray, 53 ECAB 601 (2002).

3

W.L., 59 ECAB 362 (2008); Gerald A. Preston, 57 ECAB 270 (2005); Laura L. Harrison, 52 ECAB
515 (2001).

5

for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably on
notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”4
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.5 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.6
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability and the
Board has held that the applicable statute of limitations commences to run although the employee
does not know the precise nature of the impairment.7 For actual knowledge of a supervisor to be
regarded as timely filed, an employee must show not only that the immediate superior knew that
he was injured, but also knew or reasonably should have known that it was an on-the-job injury.8
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his condition and his employment. Such awareness is competent to start the limitation
period even though the employee does not know the precise nature of the impairment or whether
the ultimate result of such affect would be temporary or permanent.9 Where the employee
continues in the same employment after he reasonably should have been aware that he has a
condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.10 Section
4

5 U.S.C. § 8122(a). See J.M., Docket No. 09-1563 (issued February 26, 2010); J.P., 59 ECAB 178 (2007);
Cory W. Davis, 57 ECAB 674 (2006).
5

5 U.S.C. § 8119; Larry E. Young, 52 ECAB 264 (2001).

6

Laura L. Harrison, 52 ECAB 518 (2001).

7

5 U.S.C. § 8119(b); Delmont L. Thompson, 51 ECAB 166 (1999).

8

5 U.S.C. § 8122(b); Duet Brinson, 52 ECAB 168 (2000).

9

Larry E. Young, supra note 5.

10

Id.

6

8122(b) of FECA provides that the time for filing in latent disability cases does not begin to run
until the claimant is aware or by the exercise of reasonable diligence should have been aware, of
the causal relationship between the employment and the compensable disability.11 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.12
ANALYSIS
The Board finds that appellant did not file his claim with the applicable time limitation
provisions of FECA. On December 21, 2012 appellant filed an occupational disease claim
alleging that his sarcoidosis was due to wood dust exposure while repairing, servicing, and
troubleshooting the air conditioning and heating systems in the carpenter’s shop. On his initial
occupational disease form, appellant stated that he first realized that his sarcoidosis was caused
or aggravated by his employment on December 7, 2012. In an amended CA-2 form he changed
the date to June 16, 2004, as the date he first realized his condition had been caused or
aggravated by his employment.
If an employee continues to be exposed to injurious working conditions the time
limitations begins to run on the date of last exposure.13 Consequently, the time for filing
appellant’s claim began on September 7, 2004, the date of his retirement. He filed his
occupational disease claim on December 21, 2012, more than three years after the last date of
exposure. Consequently, appellant filed his claim outside the three-year time limitation period.14
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate supervisor had actual knowledge of the injury within 30 days or if he provided
written notice within 30 days. There is no evidence, that a supervisor or the employing
establishment had knowledge of his occupational disease claim within 30 days or that he
provided written notice of injury within 30 days of the date of last exposure. Supervisor Quick, a
third line supervisor, indicated that appellant told him that a physical examination found
sarcoidosis, which appellant attributed to nonwork factors. Appellant’s immediate supervisor,
Mr. Townsell denied any knowledge of appellant’s conditions and disabilities. While there is
evidence that Supervisor Quick knew about appellant’s sarcoidosis, this does not establish that
he was aware that appellant attributed this condition to factors of his federal employment.15 In
the report dated June 16, 2004, Dr. Edwards addressed to Supervisor Quick was vague at best,
noting sarcoidosis as well as mitral regurgitation and psoriatic arthritis and a statement that
appellant’s current work duties aggravated the listed conditions. This report did not specifically
state that appellant’s sarcoidosis had been caused by his employment duties. Furthermore,
Supervisor Quick has explained that when appellant informed him of his sarcoidosis, he also
11

5 U.S.C. § 8122(b).

12

Gerald A. Preston, 57 ECAB 270 (2005); Debra Young Bruce, 52 ECAB 315 (2001).

13

See R.V., Docket No. 10-1776 (issued April 1, 2011); James W. Beavers, 57 ECAB 254 (2005).

14

Id.

15

Supra note 8.

7

informed him that this condition had been caused by exposure to jet fuel fumes at his previous
employment. Appellant has therefore not established that the employing establishment had
notice that his diagnosed condition was caused by his employment, within 30 days of his
retirement. Thus, appellant’s claim is not timely under section 8122(a).
In cases of latent disability, the time limitation does not begin to run until the claimant is
aware or by reasonable diligence should have been aware of the causal relationship between the
employment and the compensable disability.16 Appellant has now admitted, and the evidence
establishes that appellant was aware, or by the exercise of reasonable diligence, should have been
aware of a possible causal relationship between his employment and his sarcoidosis by
June 16, 2004. Appellant’s statements and the amended CA-2 form indicating June 16, 2004 as
the date he first became aware of a causal connection, all support that he was aware of a causal
connection by June 16, 2004.
For the above reasons, appellant’s claim is untimely filed and is barred by the applicable
time limitation provisions of FECA.
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’s claim for compensation was not filed within the
applicable time limitation provisions of FECA.

16

5 U.S.C. § 8122(b); see Gerald A. Preston, 57 ECAB 270 (2005).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 10, 2015 is affirmed.
Issued: June 8, 2016
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Milwaukee, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1019
Issued: August 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 26, 2013 appellant filed a timely appeal from a November 5, 2012 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 OWCP properly suspended appellant’s compensation, effective
October 21, 2012, for failure to submit a completed Form EN1032 when requested.
FACTUAL HISTORY
On November 29, 1999 appellant, then a 58-year-old licensed nurse practitioner, filed an
occupational disease claim alleging Kienbock’s disease in her right wrist as a result of repetitive
1

5 U.S.C. § 8101 et seq.

hand motion in the performance of her duties. She first became aware of her condition and
realized it resulted from her employment on September 8, 1999. The employing establishment
noted that appellant worked light duty. OWCP accepted her claim for Kienbock’s disease of the
right wrist. On April 3, 2000 appellant underwent surgery and stopped work. OWCP paid
disability compensation.
By decision dated February 11, 2003, OWCP reduced appellant’s compensation based on
its finding that she had the capacity to earn wages as a security clerk effective October 21, 2002.
By letter dated September 25, 2012, OWCP sent appellant a Form EN1032 and requested
that she complete the form and return it within 30 days of the date of the letter. The form
contained questions pertaining to her employment and income for the prior 15 months. OWCP
advised appellant that if she did not submit the form within 30 days her compensation would be
suspended under section 10.528 of its regulations. The letter was mailed to appellant’s address
of record. Appellant did not respond within 30 days.
In a decision dated November 5, 2012, OWCP suspended appellant’s monetary
compensation benefits effective October 21, 2012 on the grounds that she had failed to submit a
completed Form EN1032 as requested. It informed her that, when she completed the EN1032
form, it would restore her compensation retroactive to the date of suspension.
LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.2
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the past 15 months.3 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.4
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.5
ANALYSIS
The record establishes that on September 25, 2012 OWCP sent appellant a properly
addressed request to complete and return an EN1032 form. OWCP asked for information about
her employment and income for the prior 15 months. It explained that federal regulations
2

5 U.S.C. § 8106(b).

3

20 C.F.R. § 10.528.

4

See Lucille A. Pettaway, 55 ECAB 228 (2004); Demetrius Beverly, 53 ECAB 305 (2002).

5

See supra note 3.

2

required her to complete, sign and return the form. OWCP notified appellant that if she did not
completely answer all questions and return the signed statement within 30 days, it would suspend
her benefits.
Notwithstanding such notice, appellant did not return the completed form within 30 days
as requested. As she did not complete and sign the Form EN1032 affidavit reporting all
employment and self-employment, as required by federal regulations, the Board finds that
OWCP properly suspended her right to compensation for wage loss under section 10.528.6
On appeal, appellant contends that she became depressed after the death of her daughter
and grandson and forgot to take care of some things. The Board notes, however, that OWCP’s
implementing regulations are unequivocal in establishing that appellant had 30 days to submit a
completed EN1032 form or her compensation benefits would be suspended until such form is
completed and submitted.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation, effective
October 21, 2012, for failure to timely submit a completed EN1032 form when requested.

6

See James A. Igo, 49 ECAB 189 (1997).

3

ORDER
IT IS HEREBY ORDERED THAT the November 5, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4