United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMININSTRATION, Ronkonoma, NY,
Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-851
Issued: October 19, 2011

Case Submitted on the Record

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

JURISDICTION
On February 17, 2011 appellant filed a timely appeal from the September 10, 2010 merit
decision of the Office of Workers’ Compensation Programs’ (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. § 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that all of the
conditions diagnosed by his treating physicians are causally related to his accepted July 31, 2004
employment injury.
On appeal, counsel contends that the medical evidence of record is sufficient to establish
appellant’s claim for the alleged conditions.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case is before the Board for the fourth time. Previously, appellant appealed
OWCP’s April 5, 2006 decision, which accepted his claim for cervical strain with radiculitis, left
shoulder strain and temporary aggravation of herniated discs, but denied his request to include
additional conditions. In a February 6, 2007 decision, the Board affirmed OWCP’s decision, in
part, as to the additional conditions accepted, but set aside the decision as to its refusal to accept
additional conditions, due to a conflict in the medical opinion evidence and remanded the case
for referral to an impartial medical examiner.2 In a February 11, 2008 order, the Board
remanded the case to OWCP for proper issuance of its June 20, 2007 decision denying expansion
of his claim.3 In a decision dated March 16, 2009, the Board set aside the April 22, 2008
decision denying appellant’s request to expand his claim. The Board found that there existed an
unresolved conflict in medical opinion due to the insufficiency of the referee physician’s report.4
The facts and the circumstances of those decisions are hereby incorporated by reference.
Pursuant to the Board’s instructions, OWCP referred appellant, together with a statement
of accepted facts and the medical record, to Dr. Warwick Green, a Board-certified orthopedic
surgeon, for an impartial medical examination to resolve the conflict in medical opinion between
OWCP’s medical adviser and appellant’s treating physicians. It asked Dr. Green to provide
examination findings and a reasoned opinion as to whether appellant had the following claimed
conditions and, if so, were they causally related to the accepted July 31, 2004 work injury:
cervical disc disease; cervical radiculopathy; cervical muscle spasm; internal derangement of the
left shoulder; adhesive capsulitis of the left shoulder; impingement syndrome of the left
shoulder; partial thickness tear of the left shoulder; and effusion of the left shoulder.
In a report dated August 6, 2010, Dr. Green stated that he had reviewed the statement of
accepted facts and the medical record and provided examination findings. There was no
tenderness to palpation of the neck. Neck flexion was full, and extension was 40 degrees.
Lateral rotation was 60 degrees in either direction and lateral flexion was 10 degrees in either
direction. Examination of the upper extremity revealed altered sensation in the left index finger.
The left biceps and brachioradialis reflexes were absent. There was no tenderness to palpation in
2

Docket No. 06-1328 (issued February 6, 2007).

3

Docket No. 07-2305 (issued February 11, 2008).

4

Docket No. 08-2016 (issued March 16, 2009). The Board found that the referee opinion of Dr. Illman was of
limited probative value because the report did not address the opinions of OWCP’s medical adviser and appellant’s
treating physicians and did not provide adequate rationale for his opinions. Although Dr. Illman listed examination
findings, he did not explain how they supported his opinions. He stated that the multiple herniated discs
demonstrated by MRI scan were not medically significant and did not arise from the accepted injury and that
degenerative changes at the acromioclavicular joint preexisted the accepted injury. However, Dr. Illman offered no
basis for these opinions and did not explain why the herniated discs and degenerative changes could not have been
caused or aggravated by the accepted incident, particularly in light of the fact that OWCP accepted appellant’s claim
for aggravation of herniated discs. He did not discuss possible causes of appellant’s impingement syndrome or
explain why it was not causally related to the accepted shoulder strain condition. Dr. Illman stated that tendonosis is
usually found in an inflammation of the supraspinatus tendon, but he did not explain whether or not this condition
could have resulted from the accepted lifting incident. The Board noted that he never addressed the mechanics of
the accepted July 31, 2004 incident in relation to the conditions diagnosed by appellant’s treating physicians.

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the left shoulder. Appellant lacked 30 degrees of flexion and abduction. He experienced pain on
empty can testing and impingement testing. Push-pull testing and Yergason’s test were negative.
Dr. Green diagnosed C4-7 disc herniations and left shoulder impingement syndrome. He
opined that, on the basis of the current findings, in respect to the neck and right shoulder,
appellant had disabling residuals of the accepted conditions, but did not require treatment for
either the neck or left shoulder. Dr. Green stated that the radiculitis that caused numbness in the
left index finger and loss of the reflexes of the left upper extremity, along with the left shoulder
impingement syndrome, were causally related to the incident of July 31, 2004, but that
appellant’s intermittent lower back pain was not related to the accepted injury. He opined that
appellant was not capable of returning to his date-of-injury job, but was able to perform
sedentary work.
In a “[c]larification [r]eport” dated August 30, 2010, Dr. Green noted that appellant’s
claim had been accepted for cervical strain with radiculitis, left shoulder strain and temporary
aggravation of herniated discs. He reiterated his previous diagnoses, which included C4-7 disc
herniations and left shoulder impingement syndrome and stated that appellant had left arm
radiculopathy as a result of the cervical disc disease. Dr. Green concluded that cervical strain
with radiculitis and left shoulder strain conditions were causally related to the July 31, 2004
injury. Noting that cervical muscle spasm and effusion of the left shoulder were signs, rather
than diagnoses, he recommended that they be deleted. Dr. Green also indicated that internal
derangement of the left shoulder is simply a catch-all phrase indicating that the diagnosis is not
really known. The MRI scan did not indicate any evidence of partial thickness tearing of the left
shoulder rotator cuff and there was no evidence of adhesive capsulitis. In summary, Dr. Green
opined that the conditions of cervical disc disease, cervical radiculopathy and impingement
syndrome of the left shoulder were causally related to the July 31, 2004 injury.
In a decision dated September 10, 2010, OWCP expanded appellant’s claim to include
impingement syndrome of the left shoulder and cervical disc disease, but denied his request to
expand the claim to include internal derangement of the left shoulder, cervical muscle spasm,
adhesive capsulitis, left shoulder effusion and partial thickness tear of the left shoulder. The
claims examiner stated that the decision was based upon the medical examination and reports
from Dr. Green.
LEGAL PRECEDENT
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 Causal relationship is a
medical issue, and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion must be based on a complete factual and medical background of the
5

Katherine Friday, 47 ECAB 591 (1996).

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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
established incident or factor of employment.6
Section 8123 of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.7 When there exist opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.8
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, it must secure a supplemental report from the specialist to correct the defect in his
original report.9 However, when the impartial specialist is unable to clarify or elaborate on his
original report, or if his supplemental report is also vague, speculative or lacking in rationale,
OWCP must submit the case record and a detailed statement of accepted facts to a second
impartial specialist for the purpose of obtaining his rationalized medical opinion on the issue.10
ANALYSIS
In accordance with the Board’s directive, OWCP referred appellant to an impartial
medical examiner in order to resolve the conflict in medical opinion as to whether his current
conditions were causally related to the accepted July 31, 2004 employment incident. The Board
finds, however, that Dr. Green’s reports are insufficiently rationalized to resolve the conflict in
medical opinion. Therefore, this case is not in posture for a decision and must be remanded to
OWCP for further development of the medical evidence.
In its March 16, 2009 decision, the Board set aside OWCP’s April 22, 2008 decision
denying appellant’s request to expand his claim, finding that the report of the impartial medical
examiner was insufficient to resolve the conflict in medical opinion. The Board noted that the
referee physician failed to address the opinions of OWCP’s medical adviser and appellant’s
treating physicians or to provide adequate rationale for his opinions. Dr. Illman never addressed
6

John W Montoya, 54 ECAB 306 (2003).

7

5 U.S.C. § 8123.

8

James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003): Sharyn D. Bannick, 54 ECAB
537 (2003); Daniel F. O’Donnell. Jr., 54 ECAB 456 (2003); Phyllis Weinstein (Elliot H. Weinstein), 54 ECAB 360
(2003); Bernadine P. Tailor, 54 ECAB 336 (2003); Karen L. Yeager, 54 ECAB 317 (2003); Barry Neutuch, 54
ECAB 313 (2003); David W Picken, 54 ECAB 272 (2002).
9

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 SCAB 232 (1988);
Ramon K. Ferrin, Jr. 39 ECAB 736 (1988).
10

Nancy Keenan, 56 ECAB 687 (2005); Roger W Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB
673 (1996).

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the mechanics of the accepted July 31, 2004 incident in relation to the conditions diagnosed by
appellant’s treating physicians. Although he listed examination findings, he did not explain how
they supported his opinions. In light of these deficiencies, the Board remanded the case to
OWCP for further development.
On remand, OWCP asked Dr. Green to provide a rationalized opinion as to whether
appellant had cervical disc disease, cervical radiculopathy, cervical muscle spasm, internal
derangement of the left shoulder, adhesive capsulitis of the left shoulder, impingement syndrome
of the left shoulder, partial thickness tear of the left shoulder or effusion of the left shoulder as a
result of the accepted July 31, 2004 work injury. In an August 6, 2010 report, Dr. Green
provided minimal examination findings and diagnosed C4-7 disc herniations and left shoulder
impingement syndrome. He opined, without explanation, that the radiculitis that caused
numbness in the left index finger and loss of the reflexes of the left upper extremity, along with
the left shoulder impingement syndrome, were causally related to the incident of July 31, 2004,
but that appellant’s intermittent lower back pain was not related to the accepted injury. In a
“clarification report” dated August 30, 2010, Dr. Green opined that the conditions of cervical
disc disease, cervical radiculopathy and impingement syndrome of the left shoulder were
causally related to the July 31, 2004 injury. He stated that cervical muscle spasm and effusion of
the left shoulder were signs, rather than diagnoses, and indicated that internal derangement of the
left shoulder is a catch-all phrase indicating that the diagnosis is not really known. Dr. Green did
not explain, however, as requested, whether appellant had cervical muscle spasms and left
shoulder effusion resulting from the accepted injury. He noted the lack of evidence of partial
thickness tearing of the left shoulder rotator cuff or of adhesive capsulitis. Dr. Green failed to
address Dr. Illman’s referee report, which contained a diagnosis of impingement syndrome of the
left shoulder, which he opined had over time developed into adhesive capsulitis.
Dr. Green’s reports did not cure the deficiencies identified in Dr. Illman’s referee report.
He failed to address the opinions of the OWCP medical adviser and appellant’s treating
physicians. Dr. Green did not discuss the mechanics of the accepted July 31, 2004 incident in
relation to the conditions diagnosed by appellant’s treating physicians. Although he provided
brief examination findings, he did not explain how they supported his opinions. As Dr. Green’s
report is not sufficiently rationalized, it is of diminished probative value.
OWCP referred appellant to Dr. Green for the specific purpose of resolving the conflict
in medical evidence. For reasons stated above, the Board finds that Dr. Green’s reports are
insufficient to resolve the conflict. Therefore, the case will be remanded to OWCP for a
supplemental opinion from Dr. Green, which provides clarification and elaboration. If Dr. Green
is unwilling or unable to clarify and elaborate on his opinion, the case should be referred to
another appropriate impartial medical specialist. After such further development as OWCP
deems necessary, an appropriate decision should be issued.
CONCLUSION
The Board finds that this case is not in posture for a decision, as there exists an
unresolved conflict in the medical opinion evidence as to whether appellant’s current conditions
of cervical muscle spasm, internal derangement of the left shoulder, partial thickness tear of the

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left shoulder and effusion of the left shoulder are causally related to the accepted July 31, 2004
injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 10, 2010 is affirmed in part as to the acceptance of
impingement syndrome of the left shoulder and cervical disc disease; it is, however, set aside in
part and remanded for action consistent with the terms of this decision.
Issued: October 19, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, 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
__________________________________________
E.K., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
New York, NY, Employer
__________________________________________

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

Docket No. 15-0176
Issued: September 22, 2016

Case Submitted on the Record

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

JURISDICTION
On November 3, 2014 appellant filed a timely appeal from a May 6, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 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.
ISSUE
The issue is whether appellant has established an emotional or physical injury causally
related to compensable factors of her federal employment.

1

A claimant has 180 days from the date of OWCP final decision to file a timely appeal. 20 C.F.R. § 501.3(e). In
this case the 180th day was Sunday, November 2, 2014. When the final day to request an appeal falls on a weekend
or Federal holiday, the claimant has until the next workday to timely file an appeal. 20 C.F.R. § 501.3(f)(2). The
appeal was received on November 3, 2014.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 27, 2013 appellant, then a 40-year-old claims examiner, filed an occupational
disease claim (Form CA-2)3 alleging that she sustained an injury as a result of her federal
employment. The date she first became aware of the condition was reported as June 12, 2012,
and the date she first realized the condition was employment related was March 13, 2013.
By letter dated March 28, 2013, OWCP requested that appellant submit additional
evidence. On March 29, 2013 appellant submitted a note dated March 14, 2013 from
Dr. Gregory Kushnick, a psychologist, stating that she was unable to work until further
evaluation. On April 29, 2013 she submitted a statement that her job as a claims examiner
involved handling workers’ compensation claims and writing decisions. Appellant stated that
after a June 11, 2012 meeting she was assigned an additional 100 cases because a coworker
reported that she could not handle the number of cases assigned. She stated that other daily tasks
increased as well. According to appellant, she felt helpless and was forced to leave some tasks
for later. She indicated that as of October 2012 she no longer worked at home on Fridays, and
on October 29, 2012 a hurricane caused the office to close for two weeks.
In addition, appellant stated that she was unable to process her correspondence tracking
list and had to handle claimant inquiries after the office reopened. As part of her submission, she
included a December 6, 2012 e-mail to her supervisor requesting help with her workload, as she
no longer had help on certain tasks as of November 16, 2012 and had too many items that needed
to be performed as soon as possible. Appellant requested that her caseload be adjusted to pre
June 11, 2012 levels. She stated that on January 22, 2013 her supervisor announced a leave
without pay (LWOP) project that resulted in 27 overdue claims due on March 15, 2013. In a
February 8, 2013 e-mail, appellant requested permission to work an extra 1.5 hours to pay back
borrowed leave. By e-mail dated February 28, 2013, her supervisor stated that there were 900
overdue correspondence tracking items and the unit had five weeks to “clean this up.” On
March 13, 2013 appellant indicated that she felt numbness in her left arm and leg, and felt jittery
with heaviness in her chest. She stated that she was taken to a hospital emergency room and
received a diagnosis of hypertension.
With respect to medical evidence, appellant submitted an April 25, 2013 report from
Dr. Kushnick, stating that he had treated her for symptoms of depression and anxiety since
March 14, 2013. Dr. Kushnick indicated that at the initial evaluation she reported symptoms
including numbness, dizziness, anxiety, and depressed mood. He diagnosed major depressive
disorder, generalized anxiety disorder, and hypertension. Dr. Kushnick stated that appellant was
under constant strain and pressure to honor workload requirements and finish tasks in a timely
manner, and he reported that she had been under work pressure to complete assignments for the
past six to nine months. He stated that her depressed mood and anxiety worsened and made the
timely meeting of multiple deadlines feel unmanageable. Dr. Kushnick stated, “While
[appellant’s] psychological history is significant for postpartum depression, it is my opinion that

3

Under OWCP regulations, an occupational disease or illness is a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).

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exposure to such work factors as constant pressure to meet deadlines, multiple projects and an
overwhelming workload aggravated her depression and anxiety.”
In a letter dated May 14, 2013, an employing establishment workers’ compensation
coordinator provided statements from appellant’s supervisors. A former supervisor stated that
there was a June 11, 2012 meeting at which a coworker asked that her work assignments be
adjusted because she was covering for another coworker who was out due to surgery. The
supervisor suggested that the work be evenly spilt, but appellant volunteered to take all the extra
cases. According to the supervisor, appellant did not have trouble keeping up with her work that
summer. A current supervisor stated that she became appellant’s supervisor in August 2012, and
in December 2012 appellant asked for assistance. The current supervisor stated that appellant’s
“digit range” was adjusted to one that she had prior to June 11, 2012. According to the
supervisor, appellant completed her assignments in accord with procedures and on February 15,
2013 her caseload was reduced even further as a new employee was hired.
By decision dated September 17, 2013, OWCP denied the claim for compensation. It
accepted that appellant volunteered to help a coworker and her caseload increased, that her office
was closed for two weeks following Hurricane Sandy and she was unable to process
correspondence tracking. OWCP found, however, that her decision to work in the office on
Fridays was not a compensable work factor. In addition, it found that it was not established that
appellant worked more than eight hours to accomplish her tasks, or that she was assigned 27
overdue LWOP claims on January 22, 2013.
Appellant requested a hearing before an OWCP hearing representative, which was held
on March 18, 2014. At the hearing she stated that projects such as the LWOP project required
additional time and there was no time to catch up with daily tasks.
By decision dated May 6, 2014, the hearing representative affirmed the September 17,
2013 decision. She accepted that appellant was assigned an LWOP project and there was a
correspondence tracking project assigned on February 28, 2013, although it was not clear how
much was assigned to her. As to a general allegation of overwork or unreasonable deadlines, the
hearing representative found that the evidence of record was insufficient to establish a
compensable work factor. She found no evidence that appellant had to work overtime to
complete assigned tasks. In addition, the hearing representative found that the medical evidence
from Dr. Kushnick did not properly discuss the compensable work factors or provide an opinion
sufficient to establish the claim.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition for which she claims compensation was caused or adversely
affected by factors of her federal employment.4 This burden includes the submission of detailed

4

Pamela R. Rice, 38 ECAB 838 (1987).

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description of the employment factors or conditions, which she believes caused or adversely
affected the condition or conditions for which compensation is claimed.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of FECA.6
A reaction to situations where an employee is trying to meet his or her position
requirements may be compensable as it relates to the performance of assigned work duties.7 But
an allegation of overwork must be supported by specific factual evidence supporting the
allegation.8
If a compensable work factor is established, the medical evidence must establish causal
relationship between a diagnosed condition and a compensable work factor. The physician’s
opinion must be based on a complete and accurate factual and medical history, and must contain
adequate medical rationale.9 Medical rationale is a medically sound explanation for the opinion
offered.10
ANALYSIS
In the present case, appellant has established compensable work factors with respect to
the performance of her work duties. First, the record indicated that in June 2012 she volunteered
to take cases that had been assigned to another coworker who was on sick leave which increased
her caseload by 94 cases and increased ministerial duties pertinent thereto. The office was
closed for two weeks in October 2012 following Hurricane Sandy and this caused an additional
backlog of work compiled by the fact that appellant was unable to print correspondence, which
caused an increase in work.11 Appellant did indicate that she had some additional assistance
5

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

6

Lillian Cutler, 28 ECAB 125 (1976).

7

See C.L., Docket No. 14-983 (issued January 23, 2015).

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Id.

9

See L.L., Docket No. 14-1099 (issued October 22, 2014).

10

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).
11

It is well established that performance of assigned work duties, such as those of a claims examiner, are
compensable work factors. J.S., Docket No. 10-1917 (issued June 7, 2011).

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through November 16, 2012, and on December 6, 2012 and that she asked and received a
reduced caseload. OWCP accepted that she had been assigned an LWOP project of 27 LWOP
claims and correspondence tracking projects that had abbreviated deadlines. However, appellant
failed to establish that she had to work overtime to meet these work requirements, or that she was
unable to meet specific work requirements or deadlines. Appellant’s supervisor indicated that
appellant completed work assignments in accord with procedures.
Since the record did substantiate some compensable work factors, the issue is whether the
medical evidence was sufficient to establish an injury causally related to the compensable work
factors. The emergency room report dated March 13, 2013 diagnoses hypertension, but does not
discuss appellant’s work factors.
In the April 25, 2013 report, Dr. Kushnick diagnosed major depressive disorder,
generalized anxiety disorder, and hypertension, but as to causal relationship with employment,
he provides neither a clear understanding of the specific compensable factors and work history,
nor a rationalized medical opinion. He makes general reference to “constant pressure to meet
deadlines, multiple projects, and an overwhelming workload” without providing additional
detail. According to the record, appellant did have an increased caseload from June to
December 2012, but then her caseload was reduced. Dr. Kushnick did not provide detail
regarding his understanding of the deadlines or projects in her work.12 As noted, there were
projects regarding LWOP and correspondence tracking items, but there was no evidence that
appellant was unable to meet any deadlines. Dr. Kushnick does not provide an accurate and
complete history, or provide additional explanation on causal relationship with employment. He
notes a preexisting postpartum depression, without clearly explaining how specific compensable
work factors may have aggravated the condition, and describing the nature and extent of any
aggravation.13
It is appellant’s burden of proof to establish the claim for compensation. For the reasons
noted, the Board finds that she did not meet her burden of proof in this case.
On appeal, appellant states that Dr. Kushnick provided a clear opinion on causal
relationship. But as discussed above, Dr. Kushnick did not provide a rationalized medical
opinion based on an accurate background.14
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.

12

Medical reports must be based on a complete and accurate factual and medical background. Patricia M.
Mitchell, 48 ECAB 371 (1997).
13

A physician must support an opinion on causal relationship between an emotional condition and work factors
with medical rationale. See L.L., Docket No. 14-1525 (issued July 7, 2015).
14

Id.

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CONCLUSION
The Board finds that appellant has not established an emotional or physical injury
causally related to compensable factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 6, 2014 is affirmed.15
Issued: September 22, 2016
Washington, DC

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

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

15

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Baltimore, MD, Employer
__________________________________________
Appearances:
J. Steven Huffines, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-973
Issued: January 11, 2011

Case Submitted on the Record

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

JURISDICTION
On February 23, 2010 appellant filed a timely appeal from a January 26, 2010 merit
decision of the Office of Workers’ Compensation Programs denying an additional schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the case.
ISSUE
The issue is whether appellant has more than a 27 percent impairment of her left upper
extremity, for which she received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated November 17, 2008,
the Board remanded the case for clarification from the impartial medical specialist, Dr. John C.
Gordon, regarding his rating of 60 percent left arm impairment.1 The Office selected Dr. Gordon
1

Docket No. 08-969 (issued November 17, 2008). Dr. Gordon was the second impartial medical specialist.

to resolve a conflict in medical opinion between Dr. Robert W. Macht who opined that appellant
had 60 percent left arm impairment under the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),2 and an Office medical
adviser who rated 25 percent left arm impairment. The Board remanded the case for further
development of the medical evidence. The facts and history as set forth in the prior decision are
incorporated by reference.
On December 5, 2008 the Office requested that Dr. Gordon clarify the 60 percent left arm
impairment rating under the A.M.A., Guides. In a February 9, 2009 report, Dr. Gordon listed
appellant’s loss of range of motion measurements and reiterated his rating under the A.M.A.,
Guides. On February 24, 2009 Dr. Morley Slutsky, an Office medical adviser, observed that
Dr. Gordon did not document the actual goniometric measurements that were used to calculate
the left wrist impairment which was required under the A.M.A., Guides. The Office found that
Dr. Gordon’s reports were not sufficient to resolve the conflict and referred appellant to
Dr. Constantine Misoul, a Board-certified orthopedist, for a new impartial medical examination.
In a March 3, 2009 report, Dr. Misoul opined that appellant had 49 percent permanent
impairment of the left arm. On March 21, 2009 Dr. Slutsky advised that additional information
concerning some of Dr. Misoul’s calculations were needed. On March 24, 2009 the Office
requested Dr. Misoul document the anatomical basis for the loss of range of motion findings
related to the accepted conditions and explain how the impairment was calculated. Dr. Misoul
did not respond to the Office’s request for clarification.
In an April 21, 2009 report, Dr. Slutsky rated impairment based on measurements
contained in Dr. Misoul’s March 3, 2009 report. He noted that Dr. Misoul did not correctly
calculate the loss of supination, did not document left wrist measurements and did not properly
substantiate the 49 percent rating. Dr. Slutsky discounted the range of motion loss in appellant’s
thumb and fingers and opined that appellant had 27 percent left arm impairment based on pain
and lost range of motion loss in the left wrist.
By decision dated April 23, 2009, the Office granted appellant a schedule award for 27
percent permanent impairment of the left arm. Since appellant was previously paid 25 percent
impairment, an additional 2 percent impairment was awarded.
Appellant requested an oral hearing, which was held August 5, 2009. In a September 28,
2009 decision, an Office hearing representative set aside the April 23, 2009 decision and directed
that appellant be referred to a new impartial medical specialist.
The Office referred appellant to Dr. William Smulyan, a Board-certified orthopedic
surgeon, for an impartial medical evaluation. Dr. Smulyan, however, was an associate of
Dr. Larry Becker, who previously rated appellant’s impairment. The Office disqualified
Dr. Smulyan from serving as an impartial medical examiner.
The Office referred appellant to Dr. Zia Zakai, a Board-certified orthopedic specialist, for
an impartial evaluation. In a January 5, 2010 report, Dr. Zakai noted the history of injury and
2

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

2

appellant’s treatment. Under the sixth edition of the A.M.A., Guides, Dr. Zakai opined that
appellant had 30 percent left arm impairment. She noted normal range of motion of the shoulder,
15 degrees lack of extension at the elbow and no evidence of any forearm musculature atrophy.
Dr. Zakai indicated there was definite lack of cooperation on appellant’s behalf during the
examination. Appellant kept her fingers closed even against resistance, but after gradual
persuasion, she relaxed her finger and was able to extend fully at the MP and PIP joints of the
finger and flex fully at the PIP, DIP and MP joints of the finger. Thumb range of motion was
normal. Grip strength was initially reported as one kilogram but subsequent attempts did not
register any grip on diameter. Dr. Zakai reported flexion and extension were 10 degrees, radial
deviation was 0 degree, ulnar deviation was 10 degrees, supination was 80 degrees and pronation
was 70 degrees. She stated maximum medical improvement was attained in December 2005.
For wrist range of motion, Dr. Zakai indicated Table 15-32, page 473 was used with a grade
modifier of 2 for radial and ulnar deviation. She indicated that appellant had four percent
impairment for loss of radial deviation and four percent impairment for loss of ulnar deviation.
Table 15-33, page 474 was used for elbow/forearm range of motion with a grade modifier of 3
for flexion and extension. Dr. Zakai stated this resulted in nine percent impairment for loss of
flexion and nine percent impairment for loss of extension. This resulted in 26 percent
impairment due to wrist range of motion loss. Under Table 15-33, page 474, Dr. Zakai found
one percent impairment due to loss of pronation for which grade modifier of 1 was used. She
also attributed three percent impairment due to persistent pain and weakness. The total
impairment was 30 percent. Dr. Zakai found no impairment was given due to finger and thumb
involvement as appellant voluntarily refused to open her fingers, but passively, after persuasion,
had full range of motion at the finger and thumb. She stated that appellant’s position of the
fingers during examination was due to her lack of cooperation.
In a January 21, 2010 report, Dr. Craig Uejo, an Office medical adviser, reviewed
Dr. Zakai’s report. He noted section 15.7e of the A.M.A., Guides discussed wrist motion
impairment but section 15.7a described reasons when to not consider motion findings as reliable
for rating purposes. Dr. Uejo noted that section 15.7a permitted the examiner to disallow the
rating for loss of active range of motion if there was no pathoanatomic or physiological correlate
and there was suboptimal effort or symptom magnification. Since Dr. Zakai reported a lack of
cooperation on examination, appellant’s abnormal range of motion findings were unreliable for
rating purposes. The most objective and reliable basis for an impairment rating would be the
diagnostic-based impairment for a triangular fibrocartilage complex (TFCC) tear under section
15.2, page 387 and section 15.2c, page 390 of the A.M.A., Guides. Under Table 15-3, page 396,
the medical adviser attributed eight percent arm impairment for the TFCC tear in a Class 1
rating. Under Table 15-7, page 506, he assigned a grade modifier of 2 for functional history
adjustment as appellant had pain symptoms with normal activity with or without medication to
control symptoms. Under Table 15-9, the medical adviser assigned a grade modifier of 1 for
clinical studies adjustment as the clinical studies confirm the diagnosis of a mild pathology. He
then concluded that appellant had 10 percent left upper extremity impairment for the TFCC tear
pursuant to the diagnostic-based impairment methodology.
By decision dated January 26, 2010, the Office denied appellant’s claim for an additional
schedule award. Determinative weight was accorded to the Office medical adviser’s opinion.

3

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 provides
for compensation to employees sustaining impairment from loss or loss of use of specified
members of the body. The Act, however, does not specify the manner in which the percentage
loss of a member shall be determined. The method used in making such determination is a mater
which rests in the sound discretion of the Office. For consistent results and to ensure equal
justice, the Board has authorized the use of a single set of tables so that there may be uniform
standards applicable to all claimants. The A.M.A., Guides has been adopted by the Office as a
standard for evaluation of schedule losses and the Board has concurred in such adoption.4
Schedule award decisions issued between February 1, 2001 and April 30, 2009 utilize the
fifth edition of the A.M.A., Guides.5 Effective May 1, 2009, the Office adopted the sixth edition
of the A.M.A., Guides,6 published in 2008, as the appropriate edition for all awards issued after
that date.7 The Board has held that, as of May 1, 2009, a request for an additional schedule
award based on new medical evidence should be calculated according to the sixth edition of the
A.M.A., Guides even if the prior award was calculated under a previous edition.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on functional
history (GMFH), physical examination (GMPE) and clinical studies (GMCS).10 The net
adjustment formula is (GMFH - CDX) + (GMPE - DCX) + (GMCS - CDX).
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.11 When there exists opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
3

5 U.S.C. §§ 8101-8193.

4

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

5

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

6

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

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
8

M.F., Docket No. 09-1901 (issued July 1, 2010); T.B., Docket No. 09-1903 (issued April 15, 2010).

9

A.M.A., Guides (6th ed. 2008), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
10

A.M.A., Guides 494-531 (6th ed. 2008).

11

5 U.S.C. § 8123(a).

4

sufficiently well rationalized and based upon a proper factual background, must be given special
weight.12
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an Office medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.13 The Board has held that, to properly resolve a conflict
in medical opinion, it is the impartial medical specialist who should provide a reasoned opinion
as to a permanent impairment to a scheduled member of the body in accordance with the
A.M.A., Guides. An Office medical adviser may review the opinion, but the resolution of the
conflict is the responsibility of the impartial medical specialist.14
ANALYSIS
The Office accepted appellant’s claim for dislocation of the left wrist and sprain and
authorized arthroscopy with debridement of torn triangular fibrocartilage complex (TFCC). On
March 7, 2006 appellant was granted a schedule award for 25 percent left arm impairment. The
Board previously remanded the case for a supplemental report from the second impartial medical
specialist, Dr. Gordon. The Office found that Dr. Gordon failed to properly apply the A.M.A.,
Guides in his supplemental report and, thus, referred appellant to Dr. Misoul for a third impartial
medical examination. When Dr. Misoul failed to clarify his report, Dr. Slutsky, the Office
medical adviser, found that Dr. Misoul’s findings warranted 27 percent impairment of the left
arm under the fifth edition of the A.M.A., Guides, appellant received a schedule award for an
additional two percent impairment on April 23, 2009. An Office hearing representative
subsequently found it was improper for the Office medical adviser to use Dr. Misoul’s findings
when the requested clarification from Dr. Misoul was not received. Appellant was thus referred
to Dr. Smulyan for a fourth impartial medical examination. The Office, however, found that
Dr. Smulyan could not be considered an impartial medical specialist as he was an associate of
Dr. Larry Becker, who was previously associated with this case. The Office then referred
appellant to Dr. Zakai for an impartial medical examination.15
In his January 6, 2010 report, Dr. Zakai opined that, while there was a lack of cooperation
on appellant’s behalf during the examination, she was able to get passive findings. She opined
appellant had 30 percent left upper extremity impairment under the sixth edition of the A.M.A.,
Guides. Dr. Uejo, the Office medical adviser who reviewed Dr. Zakai’s report, advised the
12

See Darlene R. Kennedy, 57 ECAB 414 (2006).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
14

See Richard R. LeMay, 56 ECAB 341 (2005); Thomas J. Fragale, 55 ECAB 619 (2004).

15

When the Office secures an opinion from an impartial medical specialist for the purpose of resolving a medical
conflict in the medical evidence and the opinion from the specialist requires clarification or elaboration, it has the
responsibility to secure a supplemental report from the specialist for the purpose of correcting a defect in the original
report. When the impartial medical specialist’s statement of clarification or elaboration is not forthcoming, or if the
specialist is unable to clarify or elaborate on the original report or if the specialist’s supplemental report is also
vague, speculative or lacks rationale, the Office must submit the case to a another impartial specialist for an opinion
on the issue in question. I.H., 60 ECAB ___ (Docket No. 08-1352, issued December 24, 2008).

5

impairment rating could only be based upon a diagnostic-based baseline rating to the left wrist
for the TFCC tear as appellant’s lack of cooperation in her physical examination rendered her
abnormal motion findings unreliable for rating purposes.
Under a diagnostic-based
methodology, he opined appellant had 10 percent upper extremity impairment. The Office found
that the weight of the medical evidence rested with Dr. Uejo.
Appellant’s attorney contends that the Office medical adviser overstepped his role in
reviewing an impartial medical specialist’s findings. The Board agrees. An Office medical
adviser may review a report to verify the correct application of the A.M.A., Guides and confirm
the percentage of permanent impairment,16 but it is the impartial medical specialist who must
resolve a conflict in medical opinion.17 It is well established that when a referee examination is
arranged to resolve a conflict in medical opinion, the medical adviser is not to attempt
clarification or expansion of the impartial medical specialist’s opinion.18 The Office medical
adviser stated that, since Dr. Zakai reported that appellant demonstrated lack of cooperation in
her physical examination, her abnormal range of motion findings were considered unreliable for
rating purposes. The Office medical adviser substituted his judgment for that of the impartial
medical specialist in determining appellant’s permanent impairment. It is the role of the medical
adviser to verify a correct application of the A.M.A., Guides, but it is for the impartial medical
specialist to resolve the conflict. The Office issued the January 26, 2010 decision denying an
additional schedule award beyond the 27 percent schedule award previously paid based on
Dr. Uejo’s report.
Appellant’s attorney argues that Dr. Zakai’s report is insufficient to resolve the medical
conflict regarding the extent of appellant’s permanent impairment. He contends that there is no
support for Dr. Zakai’s finding that appellant had full range of motion of her hand, fingers and
thumb. With regard to appellant’s hand, Dr. Zakai indicated in her report that there was definite
lack of cooperation on her behalf as she kept her fingers closed against resistance. However, she
indicated that after gradual persuasion, appellant was able to relax her finger and extend fully at
the MP and PIP joints of the finger, flex fully at the PIP, DIP and MP joints of the finger and had
normal range of motion of the thumb. Dr. Zakai’s clinical examination included an examination
of appellant’s hand, fingers and thumb. Dr. Zakai’s 30 percent impairment rating, however, was
based on range of motion findings for radial deviation, ulnar deviation, forearm supination and
pronation, and elbow flexion and extension and pain.
Under the sixth edition of the A.M.A., Guides, impairments to the upper extremities are
generally covered by section 15-2, entitled diagnosis-based impairment.19 This section is the
method of choice for calculating impairment to the upper extremities. Range of motion is used

16

I.H., supra note 15; Federal (FECA Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical
Evidence, Chapter 2.810.7(c) (April 1993).
17

I.H., supra note 15; Richard R. LeMay, supra note 14.

18

I.H., supra note 15; Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter
3.500.5(c) (October 1995).
19

A.M.A., Guides 387, section 15.2.

6

primarily as a physical examination adjustment factor.20 Range of motion may be used as a
stand alone rating for impairment in the following two situations:
“1. For amputation ratings, deficits of motion for the remaining portion of the
limb, may be combined with the amputation impairment.
“2. In very rare cases, severe injuries may result in passive range of motion losses
qualifying for [C]lass 3 or 4 impairment. If the active range of motion
impairment percentage is greater than the percentage impairment derived from the
diagnosis-based class, then the impairment is rated by range of motion as a standalone rating. This range of motion for the impairment may only be used if the
active range of motion is within 10 degrees of the passive range of motion
measured. The active range of motion measurement is what determines the final
impairment rating. Examples include complex flexor or extension tendon or
multiple tendon laceration injuries, severe crush injuries, residual compartment
syndrome, or other conditions having significant functional loss.”21
In this case, Dr. Zakai did not explain how appellant’s injury fell into either of these
categories. Therefore, a supplemental report should be requested from Dr. Zakai. If Dr. Zakai is
unwilling or unable to explain the basis of her impairment rating pursuant to the A.M.A., Guides,
the case should be referred to another impartial medical specialist. Following this and such
further development of the record as may be necessary, the Office shall issue an appropriate
decision on the extent of impairment to appellant’s left arm.
As to the Office’s use of the sixth edition of the A.M.A., Guides, the Board notes that the
method used in rating impairment for purposes of a schedule award is a matter which rests in the
sound discretion of the Director. In Harry D. Butler,22 the Board addressed the Office’s use of
the A.M.A., Guides to evaluate impairment since the first edition single volume published in
1971. The Director has adopted the subsequent editions of the A.M.A., Guides and stated the
date specific when use of each edition should be made applicable to claims under the Act.
Counsel has not established that the Director abused the discretion delegated under section 8107
or the implementing federal regulations to make the sixth edition of the A.M.A., Guides
applicable to all claimants as of May 1, 2009. The fact that the sixth edition revises the
evaluation methods used in previous editions does not establish an abuse of discretion. As noted
in FECA Bulletin No. 09-03, the American Medical Association periodically revises the A.M.A.,
Guides to incorporate current scientific clinical knowledge and judgment and to establish
standardized methodologies for calculating permanent impairment.

20

Id.

21

A.M.A., Guides 461.

22

43 ECAB 859 (1992).

7

CONCLUSION
The Board finds that this case is not in posture for decision. The medical evidence
requires further development.
ORDER
IT IS HEREBY ORDERED THAT the January 26, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: January 11, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1994
Issued: July 6, 2010

Case Submitted on the Record

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

JURISDICTION
On August 3, 2009 appellant, through her attorney, filed a timely appeal from a July 10,
2009 merit decision of the Office of Workers’ Compensation Programs denying her emotional
condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained an emotional condition
in the performance of duty.
FACTUAL HISTORY
On November 15, 2007 appellant, then a 40-year-old modified clerk, filed a recurrence of
disability claim due to a June 14, 2007 work injury. She indicated that she worked limited duty
from June 14 to July 31, 2007 because of a left arm injury. Appellant asserted that the
employing establishment created a hostile work environment. It assigned her a variety of work
duties that worsened her injury-related condition. Appellant experienced increased pain because

she could not elevate her injured arm or prevent physical contact by coworkers. She stopped
work on June 21, 2007 and did not return.1
In a report dated June 15, 2007, Dr. Karen D. Shockley, a general practitioner, released
appellant to return to work with restrictions against any use of the left arm. On June 20, 2007
she accepted a limited-duty job offer requiring the use of the right arm and hand only.
In a March 31, 2008 Equal Employment Opportunity (EEO) report, an investigator noted
that appellant alleged that she sustained left shoulder strain and epicondylitis due to a June 14,
2007 work injury. On July 15, 2007 appellant “was given a limited[-]duty assignment which she
could not perform because the injured arm was aggravated due to the positioning of the work
area.” The investigator discussed her allegations that the employing establishment failed to
promptly grant her leave request on June 15 and 19, 2007 and inappropriately issued her a notice
of removal on July 27, 2007 for violating a last chance agreement.
On April 16, 2008 the employing establishment controverted the claim. The employing
establishment maintained that it had provided appellant work within her restrictions.2
By letter dated May 19, 2008, the Office noted that appellant had submitted a notice of
recurrence of disability of her orthopedic condition, assigned case file number xxxxxx403. It
determined that she was alleging a new emotional condition claim that would be adjudicated
separately from her orthopedic claim. The Office requested additional factual and medical
information from appellant regarding her emotional condition claim.
On May 20, 2008 appellant received treatment at a hospital for left shoulder pain,
coughing and shortness of breath.
In a June 5, 2008 statement, Rob Jackson, a coworker, related that on June 15, 2007 he
witnessed appellant talking with her supervisor. Appellant was crying and holding her left arm.
Mr. Jackson stated, “It appeared to me from my observation that [appellant] was having
difficulties working her temporary assignment due to her being unable to use her injured arm.
[She] also made complaints of being bumped into by other employees in this work assignment.”
In a statement dated June 5, 2008, Tom Brickey, a coworker, related that he witnessed
appellant performing various duties from June 15 to 21, 2007. He noted that she appeared to
have difficulty working because she could not elevate her swollen arm.
On June 16, 2008 appellant, in response to the Office’s request for information, submitted
evidence from her EEO complaint. She advised the Office that she was not claiming a new
1

On December 27, 2007 appellant notified the employing establishment that she intended to file a complaint of
discrimination based on race, sex and physical disability due to her work injury. She described a work injury to her
left arm and elbow on July 14, 2007. Appellant returned to limited-duty employment on June 15, 2007 but
experienced increased pain and swelling performing her work duties. She could not elevate her arm and another
employee hit her injured arm with a tray of mail. Appellant described her attempts to take leave and obtain medical
treatment and related that she experienced anxiety attacks and crying at night.
2

The employing establishment maintained that appellant’s injured arm had bruises similar to those left by fingers.

2

emotional condition but instead requesting an expansion of her accepted orthopedic claim
assigned file number xxxxxx403. Appellant attributed her emotional condition to her accepted
employment injury and the employing establishment’s failure to provide her with limited-duty
assignment. She summarized the evidence that she submitted with her EEO complaint.
By decision dated June 19, 2008, the Office denied appellant’s claim on the grounds that
she did not submit sufficient factual and medical information to establish an injury as alleged.
On June 23, 2008 it noted that it had received evidence after it issued the June 19, 2008 decision
and that it would consider this evidence and issue a new decision.
On April 7, 2009 appellant, through her attorney, requested reconsideration.3 On
May 26, 2009 she questioned why the Office had not issued another decision as had been
represented and requested that it combine this case with file number xxxxxx403 as her condition
was a result of that injury.4
On July 18, 2007 Dr. Fred W. Gaskin, a Board-certified psychiatrist, found that appellant
was off work due to illness beginning June 22, 2007 and could resume work on July 19, 2007. In
a report dated January 28, 2008, received by the Office on June 3, 2009, Dr. Frank J. Niesen,
who specializes in family practice, diagnosed left elbow epicondylitis and provided a permanent
impairment rating.
By decision dated July 10, 2009, the Office denied modification of its June 19, 2008
decision. It found that appellant had not established error or abuse by the employing
establishment in the assignment of her work duties. The Office noted that she had a disability
due to an accepted injury under file number xxxxxx403.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.5 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.6

3

Appellant submitted evidence regarding her EEO complaint.

4

In a statement dated June 24, 2007, received by the Office on June 3, 2009, Teresa Dye, a coworker, asserted
that it would be difficult for an employee who could use only one arm to perform manual sorting work duties safely.
5

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

Gregorio E. Conde, 52 ECAB 410 (2001).

3

Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.7 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.8
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.9
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.10 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and EEO complaints, by themselves, do not establish that workplace harassment or
unfair treatment occurred.11 The issue is whether the claimant has submitted sufficient evidence
under the Act to establish a factual basis for the claim by supporting his or her allegations with
probative and reliable evidence.12 The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in
fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may
be fully examined and evaluated by the Office and the Board.13
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.14 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of

7

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
8

See William H. Fortner, 49 ECAB 324 (1998).

9

Ruth S. Johnson, 46 ECAB 237 (1994).

10

See Michael Ewanichak, 48 ECAB 364 (1997).

11

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

12

See James E. Norris, 52 ECAB 93 (2000).

13

Beverly R. Jones, 55 ECAB 411 (2004).

14

Dennis J. Balogh, 52 ECAB 232 (2001).

4

record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.15
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied her claim on the grounds that she did
not establish any compensable employment factors. The Board must initially review whether
these alleged incidents and conditions of employment are covered employment factors under the
terms of the Act.
Appellant alleged that the employing establishment discriminated against her when it
failed to timely grant her leave requests on June 15 and 19, 2007 and when it issued her a notice
of removal on July 27, 2007. Harassment and discrimination by supervisors and coworkers, if
established as occurring and arising from the performance of work duties, can constitute a
compensable work factor.16 A claimant, however, must substantiate allegations of harassment
and discrimination with probative and reliable evidence.17 Appellant has submitted no evidence,
such as witness statements or a finding by an adjudicatory body, corroborating her allegation that
she experienced discrimination by the employing establishment in denying requests for leave or
issuing discipline. Additionally, the Board notes that matters involving leave and disciplinary
actions are administrative functions of the employer and not duties of the employee and, unless
the evidence discloses error or abuse on the part of the employing establishment, not
compensable employment factors.18 Appellant has not submitted any evidence showing error or
abuse by the employing establishment in an administrative or personnel matter and thus has not
established a compensable work factor.
Appellant alleged that the employing establishment assigned her work duties that
increased her arm pain. The Board has held that being required to work beyond one’s physical
limitations may constitute a compensable employment factor if such activity is substantiated by
the evidence of record.19 Appellant, however, has not submitted sufficient evidence to establish
that she was required to work beyond her physical limitations. She did not specifically describe
the work outside of her restrictions other than to note difficulties elevating her arm and avoiding
coworkers touching her arm. The employing establishment maintained that it provided her work
within her restrictions of no use of the right arm. In a witness statement dated June 5, 2008,
Mr. Jackson asserted that appellant had difficulty performing her work duties and complained
that other employees bumped into her injured arm. In another statement dated June 5, 2008,
Mr. Brickey related that she had problems working because she could not elevate her arm. These
witness statements support that appellant experienced difficulties working but do not substantiate
15

Id.

16

T.G., 58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006).

17

C.W., 58 ECAB 137 (2006); Robert Breeden, 57 ECAB 622 (2006).

18

See V.W., 58 ECAB 428 (2007); Lori A. Facey, 55 ECAB 217 (2004).

19

Robert W. Johns, 51 ECAB 137 (1999).

5

that the employing establishment assigned her work outside her physical limitations.
Consequently, appellant has not established a compensable work factor.
To the extent appellant attributes her stress-related condition to pain and swelling in her
left arm due to her June 14, 2007 work injury; the Board has held that an emotional condition
related to chronic pain and other limitations resulting from an employment injury may be
compensable under the Act.20 Appellant may pursue this as part of her case under file number
xxxxxx403.21
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the July 10, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 6, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

20

Clara T. Norga, 46 ECAB 473 (1995); Arnold A. Alley, 44 ECAB 912 (1993).

21

Charles D. Gregory, 57 ECAB 322 (2006).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lexington, KY, Employer
__________________________________________

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

Docket No. 13-740
Issued: December 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICION
On February 11, 2013 appellant filed a timely appeal of the January 29, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) suspending his
compensation benefits. 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 benefits
effective October 21, 2011 under 5 U.S.C. § 8123(d) due to his failure to attend a scheduled
medical examination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board with respect to the denial of appellant’s
claim for a schedule award.2 In a July 21, 2011 decision, the Board found that the case was not
in posture for decision regarding the extent of his permanent impairment due to a conflict in
medical opinion between Dr. Gregory T. Snider, an attending Board-certified family practitioner
and an OWCP medical adviser. The Board directed that OWCP refer appellant for an impartial
medical examination. The Board set aside the February 17 and July 9, 2010 OWCP decisions
and remanded the case for further development of the medical evidence. The facts of the case as
set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are delineated below.3
By letter dated September 20, 2011, OWCP referred appellant to an impartial medical
examination by Dr. Arthur F. Lee, a Board-certified orthopedic surgeon, on October 21, 2011 at
12:30 p.m. in Cincinnati, Ohio. The notice included Dr. Lee’s address and telephone number.
OWCP informed appellant that the failure to keep, refusal to submit to or obstruction of the
examination might result in suspension of his right to compensation under 5 U.S.C. § 8123(d) of
FECA. It stated that compensation was not payable while the refusal or obstruction continued
and that the period of the refusal or obstruction would be deducted from the period for which
compensation was payable.
In a September 29, 2011 letter, appellant refused to attend the scheduled medical
examination, contending that there was no conflict in medical opinion. He alleged bias on the
part of the medical adviser. Appellant further alleged that accompanying medical evidence
regarding his emotional condition established his inability to undergo the scheduled examination.
He stated that he was unable to drive or ride in a car out of state.
In an October 18, 2011 letter, OWCP advised appellant that he failed to provide an
acceptable reason for appearing at the scheduled examination. The medical evidence did not
provide a firm diagnosis regarding his back and hip conditions. OWCP noted that appellant’s
claim was only accepted for a sprain of the lumbar spine and right SI ligament.
On November 9, 2011 OWCP was informed by Dr. Lee’s office that appellant did not
attend the scheduled examination.
In a November 9, 2011 decision, OWCP denied appellant’s schedule award claim on the
grounds that he failed to attend the October 21, 2011 examination.
On November 14, 2011 appellant requested an oral hearing before an OWCP hearing
representative.

2

Docket No. 10-2056 (issued July 21, 2011).

3

OWCP accepted that appellant sustained a lumbar strain under File Nos. xxxxxx077 and xxxxxx454. It also
accepted that he sustained a right sacroiliac (SI) strain under File No. xxxxxx456. OWCP combined these files into
a master claim assigned File No. xxxxxx456.

2

In a May 11, 2012 decision, an OWCP hearing representative set aside the November 9,
2011 decision. The hearing representative found that OWCP improperly denied appellant’s
schedule award claim on the grounds that he refused to attend the scheduled impartial medical
examination. Appellant was not given the required 14-day notice following the missed
evaluation on October 21, 2011. The case was remanded for OWCP to follow its established
procedures to determine whether his compensation and medical benefits should be suspended
under 5 U.S.C. § 8123(d) for failure to attend a scheduled medical examination.
By letter dated May 24, 2012, OWCP proposed to suspend appellant’s compensation
benefits on the grounds that he failed to report for the scheduled examination on
October 21, 2011. It allowed him 14 days to provide a written statement containing a valid
reason for failing to submit to the examination. OWCP stated that, if appellant did not show
good cause, his entitlement to any future compensation would be suspended under 5 U.S.C.
§ 8123(d) until after he attended and fully cooperated with the examination.
In a June 2, 2012 letter, appellant stated that on February 12, 2008 he was advised by
Dr. Kim Scott Larmore, a Board-certified psychiatrist, not to submit to any more OWCP directed
medical examinations as doing so would be detrimental to his emotional health. He tried to harm
himself in 2003 due to undergoing such examinations. Appellant stated that driving long
distances caused pain in his lower back and right hip and leg. A May 17, 2012 prescription note
from Dr. Sniders explained that appellant was required to change positions as needed. Appellant
was concerned about his safety as he used his right leg to depress the gas and brake pedals while
driving a car. He would not go to any more examinations until he obtained the right to select the
physician who would rate his impairment. Appellant submitted a copy of Dr. Larmore’s
February 12, 2008 report. He also submitted her June 1, 2006 report, in which she opined that
his October 2003 psychiatric breakdown and subsequent long stay in a residential nursing home
were a direct consequence of his serious back injury incurred while working at the employing
establishment. Dr. Larmore advised that appellant’s prognosis remained guarded and he likely
needed extensive psychiatric care in the future.
In a June 19, 2012 decision, OWCP finalized the proposed suspension of appellant’s
compensation benefits effective October 21, 2011 under 5 U.S.C. § 8123(d). It found that he did
not provide good cause for his failure to attend the scheduled examination. OWCP had
previously reviewed Dr. Larmore’s February 12, 2008 prescription. It advised appellant that it
could provide transportation to and from the examination if he was unable to drive long
distances. OWCP stated that the referee examination physician was independently selected and
scheduled by its contractor. Appellant was informed that compensation benefits would be
reinstated after he attended and fully cooperated with an examination.
On June 24, 2012 appellant requested an oral hearing.
In a January 29, 2013 decision, an OWCP hearing representative affirmed the June 19,
2012 decision. The hearing representative found that appellant did not establish good cause for
failing to attend the scheduled October 21, 2011 examination.

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LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.4
The determination of the need for an examination, the type of examination, the choice of locale
and the choice of medical examiners are matters within the province and discretion of OWCP.5
OWCP regulations at section 10.320 provide that a claimant must submit to examination by a
qualified physician as often and at such times and places as OWCP considers reasonably
necessary.6 Section 8123(d) of FECA and section 10.323 of OWCP regulations provide that, if
an employee refuses to submit to or obstructs a directed medical examination, his or her right to
compensation is suspended until the refusal or obstruction ceases.7 OWCP’s procedures provide
that before OWCP may invoke these provisions, the employee is to be provided a period of 14
days within which to present in writing his or her reasons for the refusal or obstruction.8 If good
cause for the refusal or obstruction is not established, entitlement to compensation is suspended
in accordance with section 8123(d) of FECA.9
ANALYSIS
OWCP scheduled an impartial medical examination on October 21, 2011 at 12:30 p.m. in
Cincinnati, Ohio with Dr. Lee. Appellant did not appear for the scheduled examination. By
decisions dated June 19, 2012 and January 29, 2013, OWCP suspended his compensation
effective October 21, 2011 for failure to attend the scheduled examination. The Board finds that
OWCP properly suspended appellant’s compensation for failure to attend a medical examination
on October 21, 2011.
On September 20, 2011 OWCP notified appellant that he was being referred for an
impartial medical examination to resolve an existing conflict of medical opinion evidence as
directed by the Board. It informed him of his obligations to attend and cooperate. The notice
clearly explained that appellant’s compensation benefits would be suspended for failure to report
to or obstruction of the examination. OWCP advised him of the date and time of his scheduled
October 21, 2011 appointment with Dr. Lee. Appellant was also provided with Dr. Lee’s
address and telephone number. As noted, he did not appear for the appointment nor did he
attempt to reschedule the appointment prior to the designated time. Appellant’s refusal to submit

4

5 U.S.C. § 8123.

5

J.T., 59 ECAB 293 (2008).

6

20 C.F.R. § 10.320.

7

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010); supra note 5.
9

Federal (FECA) Procedure Manual, id. at Chapter 2.810.13(e) (September 2010); supra note 5.

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to the medical examination warrants suspension of entitlement to compensation unless he can
establish good cause for his failure to report at the scheduled time.10
The Board finds that appellant did not establish good cause for his failure to report to the
scheduled examination with Dr. Lee. OWCP notified appellant on May 24, 2012 that it proposed
suspension of his entitlement to compensation benefits. Appellant was given 14 days to submit a
valid reason for his failure to attend the scheduled medical appointment. He argued that an
impartial medical examination was not necessary because there was no conflict in the medical
opinion evidence. Appellant alleged bias on the part of the medical adviser. He may not decide
whether the circumstances warrant an impartial medical examination. There is no discretion for
appellant to exercise in this matter.11 Further, his stated lack of trust in the opinion of the
medical adviser does not amount to exceptional circumstances. Without evidence in support of
his allegation of bias, OWCP has nothing more than an unsubstantiated excuse.12 Appellant
argued that Dr. Larmore’s February 12, 2008 report advised him not to submit to any more
OWCP directed examinations because doing so would be detrimental to his emotional health.
Dr. Larmore failed to address how his emotional condition would worsen if he attended a future
OWCP directed examination. Moreover, the Board notes that appellant’s claim has not been
accepted for an employment-related emotional condition. For conditions not accepted by OWCP
as being employment related, it is the employee’s burden to provide rationalized medical
evidence sufficient to establish causal relation, not OWCP’s burden to disprove such
relationship.13 While Dr. Larmore opined in a June 1, 2006 report that appellant’s October 2003
psychiatric breakdown and subsequent lengthy stay in a residential nursing home were directly
caused by his employment-related back injury, she failed to provide a specific diagnosis or
medical rationale explaining how his emotional condition arose from the accepted work injury.14
The Board finds that his various objections to driving long distance to the scheduled
examination are not a valid excuse to refuse to attend an impartial medical examination.
Appellant did not submit any medical evidence supporting his assertions or evidence showing
that he was unable to get to the appointment by any other mode of transportation. While
Dr. Sniders, in a May 17, 2012 prescription, noted that appellant was to change positions as
needed, he did provide a narrative opinion addressing appellant’s ability to attend the scheduled
examination or how the inability was due to the accepted employment injury. OWCP advised
appellant that it could provide transportation to and from the examination if he was unable to
drive long distances, but he failed to make such arrangements. Appellant refused to undergo any
more examinations until he obtained the right to select the physician who would rate his
10

Id.

11

See G.M., Docket No. 09-1835 (issued June 21, 2010).

12

Atanacio G. Sambrano, 51 ECAB 557 (2000).

13

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).
14

See Gloria J. McPherson, 51 ECAB 441 (2000) (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).

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impairment. The Board notes that, pursuant to OWCP’s procedures, a claimant who asks to
participate in selecting the referee physician or who objects to the selected physician should
provide the reason for the objection.15 Here, appellant generally asked to participate, but
provided no particular reason. There is no unqualified right to participate in the selection of an
impartial specialist.16 Therefore, appellant’s request does not conform with OWCP procedural
requirements for participating in the selection of an impartial medical examiner.
Appellant has not submitted sufficient evidence to establish that he was incapable of
attending the scheduled medical examination. The Board finds, therefore, that OWCP properly
suspended his right to future compensation benefits effective October 21, 2011.
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 OWCP properly suspended appellant’s right to future compensation
effective October 21, 2011 for failing to attend a scheduled medical examination.

15

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.4(f) (July 2011).
16

Joseph R. Boutot, 45 ECAB 560 (1993).

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ORDER
IT IS HEREBY ORDERED THAT the January 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 4, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0345
Issued: February 25, 2021

Case Submitted on the Record

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

On January 4, 2021 appellant filed an appeal from a May 29, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0345.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the May 29, 2019 decision was November 25, 2019. As appellant
did not file an appeal with the Board until January 4, 2021, more than 180 days after the May 29,
2019 OWCP decision, the Board finds that the appeal docketed as No. 21-0345 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not offered a reason to
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

explain the failure to timely file an appeal with supporting documentation sufficient to establish
compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0345 is dismissed.
Issued: February 25, 2021
Washington, DC

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

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

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

3

Id. at § 501.6(d).

2