United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Blue Springs, MO, Employer
__________________________________________

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

Docket No. 09-1792
Issued: May 25, 2010

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 July 6, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated January 30, 2009 which denied modification of a
November 8, 2007 decision that found that she did not establish that she sustained a concussion
causally related to her accepted work injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over these issues.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained a
concussion causally related to her accepted January 10, 2007 work injury.
FACTUAL HISTORY
On January 10, 2007 appellant, then a 41-year-old rural letter carrier, filed a traumatic
injury claim alleging that on that date she was rear-ended while in her work vehicle and
sustained injuries to her head, neck and left ear. In a January 10, 2007 statement, she indicated
that she was slowing down to turn right when she was hit from behind by a dark colored vehicle.
Appellant confirmed that she was wearing her seatbelt and alleged that the “impact stunned me.”
She did not stop work.

In a January 10, 2007 duty status report, Dr. James L. Hart, Board-certified in emergency
medicine, noted that appellant was in a motor vehicle collision and had a left ear contusion. In a
January 12, 2007 duty status report, Dr. James Webb, a Board-certified family practitioner and
osteopath, noted that appellant was rear-ended and suffered a “left contusion to the ear, head and
her back hurt.” He ordered physical therapy and released her to return to seated work. In a
January 16, 2007 report, Dr. Webb diagnosed thoracolumbar strain. In his January 29, 2007
report, the physician diagnosed a lumbar strain.
In a January 17, 2007 physical therapy note, the physical therapist noted that appellant
had complaints of “constant dizziness with intermittent headache, indicating the top of the skull
described as pressure sensation.”
In a March 2, 2007 report, Dr. Regina Aholt, a Board-certified family practitioner, noted
that appellant was concerned about memory loss after the motor vehicle accident. She examined
appellant and advised that she scored a 30 out of 30 on the “mini” mental status examination.
Dr. Aholt indicated that appellant had memory loss after the motor vehicle accident and
recommended a follow-up with a neurologist.
A March 8, 2007 computerized tomography (CT) scan read by Dr. Kevin L. Litwin, a
Board-certified diagnostic radiologist, revealed a normal CT brain.
Appellant returned to regular duty on March 26, 2007.
The Office accepted her claim for back sprain in lumbar and thoracic regions, and
contusion of face, scalp and neck except for eyes. It also accepted the claim for contusion of the
left ear and a left shoulder strain.
On March 22, 2007 appellant requested that the Office expand her claim to include
certain conditions including headaches, memory and concentration problems. She alleged that
she reported the headaches as soon as she was seen in the emergency room and continued to
have headaches with memory and concentration problems. Appellant also indicated that a
computerized axial tomography scan had been performed.
By letter dated March 26, 2007, the Office advised appellant of the additional evidence
needed to expand her claim. It received reports dated March 23 and April 20, 2007 from
Dr. Jonathan Blake, a Board-certified orthopedic surgeon and osteopath, who diagnosed thoracic
sprain and lumbosacral strain and contusion to the ear.
On May 3, 2007 appellant requested that her claim be expanded to include a concussion.
She noted that a concussion was documented during her original emergency room visit.
In a June 5, 2007 decision, the Office denied appellant’s claim for a concussion.
On June 21, 2007 appellant requested a review of the written record. She stated that the
speed limit was 55 miles per hour on the highway on which she was rear-ended as she was
turning onto a side street. Appellant noted that her vehicle was knocked into a concrete post.
She provided photographs and a copy of a December 7, 2006 report from Dr. Aholt, which she

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alleged supported that she had no prior concussion symptoms. In the December 7, 2006 report,
Dr. Aholt noted seeing appellant for a well-woman examination.
On September 5, 2007 the Office received a March 30, 2007 report from Dr. Terrence
Riley, Board-certified in preventative medicine, psychiatry and neurology, who noted the motor
vehicle accident in which appellant was making a right turn and was struck from the rear.
Dr. Riley noted that she was wearing a lap belt when she was struck. He noted that appellant’s
left ear struck something in the cabin and she was “uncertain whether she was rendered
unconscious because she remembers many of the events immediately after the collision.”
Appellant had instant “maximum pain on the vertex of her scalp, but shortly thereafter she began
the headaches bitemporally, parietally, and at the top of her head” that continued ever since. She
also reported being unable to concentrate and having memory lapses for two and a half months
since the accident. Dr. Riley noted as examples of appellant’s concentration and memory loss an
incident in which she was speaking with her mother and could not recall a portion of the
conversation midway through and a situation where she did not realize a person that her mother
was discussing had been a teacher to her children just the year before. He stated that appellant
was confused with some of the technical aspects of her work citing that she could not remember
some of the forms that she was required to use. Dr. Riley also noted that she forgot all about a
planned lunch with her husband. He advised that neurologic examination was normal. The
cranial nerves, motor system, reflexes, station and gait, sensation and coordination were normal.
Dr. Riley diagnosed postconcussion syndrome and headache. He explained that, although his
mental status examination did not disclose gross abnormalities, “certainly the loss of energy and
cognitive complaints that she describes are familiar with closed head injuries.” Dr. Riley
prescribed medication and referred appellant for detailed neuropsychological testing noting that
it “would be better able than I am to discern more subtle cognitive deficits from a closed head
injury of this nature.” He also explained that he reviewed the CT scan of the head and agreed
that “it is normal, but of course that does not tell us much detail about a closed head injury such
as hers.”
In a November 8, 2007 decision, an Office hearing representative affirmed the June 5,
2007 decision. He found that the evidence did not establish that appellant sustained a concussion
or postconcussion syndrome as a result of the January 10, 2007 motor vehicle accident.
In a January 7, 2008 report, Dr. Ann Y. Lee, a Board-certified physiatrist, noted the
January 10, 2007 motor vehicle accident and diagnosed low back pain likely due to a strain with
no neurological deficit and neck pain likely due to cervical strain/whiplash with no neurological
deficit. Dr. Lee released appellant to regular duty on February 5, 2008.
The Office requested that an Office medical adviser address whether it was medically
reasonable for appellant to experience postconcussion symptoms two and a half months after her
injury and whether the Office accept a work-related postconcussion syndrome. On January 18,
2008 the Office medical adviser indicated that he needed all of the records in order to review
appellant’s claim, including her ambulance records. In a letter dated February 20, 2008, the
Office advised appellant that additional evidence was needed.
In a June 30, 2008 statement, appellant indicated that she had a nonwork-related motor
vehicle accident on January 15, 2008 and provided a police report and copies of records from an

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emergency room visit. She indicated that Dr. Lee reevaluated her before allowing her to
continue her ongoing physical therapy. Appellant also submitted treatment notes from Dr. Lee
following the January 15, 2008 accident which indicated that appellant was treated for back and
neck pain. She provided another copy of the March 8, 2007 CT scan and also a July 19, 2007
cervical spine x-ray from Dr. David Mena, a Board-certified diagnostic radiologist, who noted
straightening of the normal cervical lordosis that was likely due to muscle spasm or cervical
collar. Dr. Mena noted no obvious injuries. The Office also received January 15, 2008 cervical
spine x-ray report from Dr. John E. Scott, a Board-certified diagnostic radiologist, who advised
that there was no evidence of spasm, fracture or curvature change.
In a letter dated July 14, 2008, appellant’s representative requested that the Office expand
the claim to include appellant’s left shoulder condition.
In a September 20, 2008 report, the Office medical adviser noted that, in the January 10,
2007 motor vehicle accident, appellant did not lose consciousness. He noted that he had
reviewed copies of the emergency room treatment notes dated January 10, 2007. They revealed
that appellant had left ear pain and headaches. Additionally, appellant received a 15 on the
Glascow Coma Scale, had chief complaints of pain in the head and advised that skull
examination revealed no tenderness. The Office medical adviser also indicated that she had no
swelling or ecchymosis. Additionally, he noted that initial reports revealed that appellant
thought “she thinks the radio struck her in the head.” The Office medical adviser noted that
“even if the radio struck her in the head, she had no examination findings of a head injury on
January 10, 2007.” Furthermore, he advised that her CT scan was normal. The Office medical
adviser opined that the postconcussion syndrome was not due to the January 10, 2007 accident.
On October 21, 2008 appellant’s representative requested reconsideration and submitted
a September 10, 2008 report, from Dr. W. John Ellis, Board-certified in family medicine, who
opined that appellant sustained a concussion during a motor vehicle accident on January 10,
2007 and had difficulty remembering all of the accident. Dr. Ellis noted that appellant recalled
the accident but did not recall hitting a post. After the accident appellant reported feeling
“dazed, foggy, and had difficulty concentrating. She had pain in her head and right lower
buttock.” Appellant also began noticing pain in her neck and between her shoulders. Dr. Ellis
noted that her concussion was treated by observation and despite a negative CT scan she had
neuropsychological testing, which was consistent with a concussion. He also noted that
appellant was in another motor vehicle accident on January 15, 2008 in which she was also rear
ended and dazed, but not unconscious. Dr. Ellis indicated that she was already undergoing
physical therapy for her neck and at the time, she had more pain in her neck. He indicated that
appellant did not think it changed her memory, thinking, dizziness or headaches. Dr. Ellis
related that appellant continued to have significant problems from her concussion and brain
injury. He indicated that she had headaches that could be tight in the back of the head, top of the
head, and sides of the head and had been continuous since the accident. Dr. Ellis also noted that
she continued to be dizzy and indicated that she had tenderness of the temporal muscles and
temporal arteries, the site of her throbbing headache. He diagnosed a contusion to the left ear; a
concussion causing complex integrated cerebral function disturbance due to brain damage and
postconcussion headache syndrome; muscle tendon strain of the neck and thoracic spine; strain
of the left supraspinatus muscle with left brachial plexus impingement; left brachial plexus
impingement aggravating preexisting medial epicondylitis of the left elbow, radial tunnel

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syndrome at the left forearm, carpal tunnel syndrome of the left hand;1 muscle tendon unit strain
of the back, iliolumbar ligaments, sacroiliac ligaments, right hip and buttocks with bilateral
lumbosacral plexus impingement and contusion and strain of the right lower rectus abdominal
muscle. Dr. Ellis opined that the conditions were work related. He explained that the vehicle
impact was of such degree that it would be reasonable for her to have a concussion. Dr. Ellis
also explained that appellant had a history of concussions in the past which “would make her
much more prone to having more significant problems with her brain with this motor vehicle
accident. The motor vehicle accident was such that it bent and destroyed metal and plastic.”
Dr. Ellis opined that “muscles, tendons and ligaments are not as strong as metal and plastic.” He
noted that appellant sustained muscle and ligament tears in her neck, especially on the left side,
and the left supraspinatus muscle.
The Office received additional evidence comprised of copies of previously received
reports, diagnostic reports and emergency room reports.
In a January 29, 2009 statement, the employing establishment reported there was no
obvious damage to the front of the vehicle indicating that it impacted a post.
By decision dated January 30, 2009, the Office denied modification of its previous
decision.
LEGAL PRECEDENT
When an employee claims that he or she sustained an injury in the performance of duty,
the employee must submit sufficient evidence to establish that he or she experienced a specific
event, incident or exposure occurring at the time, place and in the manner alleged. The
employee must also establish that such event, incident or exposure caused an injury. Once an
employee establishes an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, which the employee
claims compensation, is causally related to the accepted injury.2 To meet his or her burden of
proof, an employee must submit a physician’s rationalized medical opinion on the issue of
whether the alleged injury was caused by the employment incident.3 Medical conclusions
unsupported by rationale are of diminished probative value and are insufficient to establish
causal relation.4
The Federal Employees’ Compensation Act5 provides that, if there is disagreement
between the physician making the examination for the Office and the employee’s physician, the
1

The record reflects that appellant has a separate claim, File No. xxxxxxx650 that is accepted for left carpal
tunnel syndrome.
2

See Leon Thomas, 52 ECAB 202 (2001).

3

See Gary J. Watling, 52 ECAB 278 (2001).

4

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

5

5 U.S.C. §§ 8101-8193, 8123(a).

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Office shall appoint a third physician who shall make an examination.6 In cases where the
Office has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.7
ANALYSIS
This Board finds that this case is not in posture for decision.
The Office accepted appellant’s claim for lumbar and thoracic back sprain, and contusion
of face, scalp, neck and left ear. It also accepted the claim for a left shoulder strain. Appellant
subsequently requested that her claim be accepted for a concussion.
The Board finds that there is an outstanding conflict in the medical evidence between the
Office medical adviser and her treating physicians, Dr Ellis and Dr. Riley, regarding whether
appellant has a concussion condition causally related to the January 10, 2007 work injury.
Therefore, the case must be remanded to the Office for further development.
On September 20, 2008 the Office medical adviser noted that appellant’s postconcussion
condition was not work related. In support of his opinion, he explained that she did not lose
consciousness and that the emergency room records revealed that appellant had left ear pain and
headaches. The Office medical adviser also noted the skull examination revealed zero
tenderness. He also noted that her CT scan was normal indicating that any postconcussion
syndrome was not due to the January 10, 2007 accident.
In contrast, Dr. Ellis noted that appellant sustained a concussion during a motor vehicle
accident on January 10, 2007 and had difficulty remembering all of the accident. He noted that
after the accident appellant reported feeling “dazed, foggy, and had difficulty concentrating.
Appellant had pain in her head and right lower buttock.” Dr. Ellis also advised that he was
aware of the second motor vehicle accident on January 15, 2008 and explained that she was rearended and dazed, but not unconscious. He opined that her concussion was work related and
explained that the vehicle impact was of such degree that it would be reasonable for her to have a
concussion.
The Board also notes that Dr. Riley also supported work-related postconcussion
syndrome. He explained that, despite a normal examination, which would not disclose gross
abnormalities, appellant displayed complaints which would be found in closed-head injuries. It
should also be noted that Dr. Riley evaluated appellant before the January 15, 2008 nonworkrelated motor vehicle accident.
Consequently, the case must be referred to an impartial medical specialist to resolve the
conflict in the medical opinion evidence between the Office medical adviser and Drs. Ellis and
Riley regarding whether appellant sustained an employment-related concussion. On remand the
6

5 U.S.C. § 8123(a); Shirley Steib, 46 ECAB 309, 317 (1994).

7

Gary R. Sieber, 46 ECAB 215, 225 (1994).

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Office should refer appellant, along with the case file and the statement of accepted facts, to an
appropriate specialist for an impartial medical evaluation and report including a rationalized
opinion on this matter. After such further development as the Office deems necessary, the Office
shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant
met her burden of proof to establish that she sustained an employment-related concussion
causally related to her accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: May 25, 2010
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
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tulsa, OK, Employer
__________________________________________

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

Docket No. 12-569
Issued: August 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 17, 2012 appellant, through her representative, filed a timely appeal from the
December 15, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied an additional schedule award. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant has more than a 13 percent impairment of her right upper
extremity or more than a 16 percent impairment of her left, for which she received schedule
awards.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In 1997 appellant, a 39-year-old window clerk, filed an occupational disease claim
alleging that keying on a letter-sorting machine, manually sorting letters, throwing mail and
keying zip code machines caused an injury. OWCP accepted her claim for bilateral carpal tunnel
syndrome. Appellant received a schedule award for a 13 percent impairment of her right upper
extremity and a 16 percent impairment of her left.2
In 1999 appellant sustained a traumatic injury in the performance of duty when a door
struck her. OWCP accepted her claim for right wrist contusion and strain, as well as
enthesopathy of the right elbow.3
OWCP authorized surgery for a right rotator cuff tear. In 2002 appellant underwent an
arthroscopic subacromial decompression and anterior acromioplasty and a Type II rotator cuff
repair. In 2003 she underwent redo surgery with acromioclavicular distal clavicle resection and
arthroplasty.
Appellant filed schedule award claims.
A conflict arose between Dr. Michael S. Smith, an OWCP referral physiatrist, and
Dr. Denny E. Krout, the attending osteopath and orthopedic surgeon. Applying the fifth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides 2001), Dr. Smith found that appellant had a 17 percent impairment of her right
upper extremity related to shoulder surgery, range of motion and median sensory findings. He
also found a three percent impairment of her left upper extremity for residual median sensory
changes. Dr. Krout found a 25 percent impairment for right rotator cuff repair with distal
clavicle resection, weakness and abnormal shoulder motion, and an additional 22 percent
impairment on both sides for motor and sensory loss due to carpal tunnel syndrome.
To resolve this conflict, OWCP referred appellant, together with the case record and a
statement of accepted facts, to Dr. Sami R. Framjee, a Board-certified orthopedic surgeon.
Dr. Framjee physically examined appellant and found, among other things, a dorsal
ganglion on her right hand with a weakly positive Tinel’s sign. He found a volar ganglion over
her left wrist with a weakly positive Tinel’s and Phalen’s sign. Dr. Framjee took x-rays and
reviewed the medical record, including a 2003 electromyogram and nerve conduction study of
the right median nerve, which was normal. There was at that time no electrophysiological
evidence of radiculopathy, plexopathy or entrapment neuropathy affecting the right upper
extremity. Medical records from 2010 and 2011, however, revealed a diagnosis of right carpal
tunnel syndrome.

2

Appellant later received an additional award of four percent on the right, but a hearing representative set aside
that decision as improper.
3

OWCP File No. xxxxxx624.

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Applying the sixth edition of the A.M.A., Guides (2009), Dr. Framjee found that
appellant had a 10 percent diagnosis-based impairment of the right upper extremity as a result of
her shoulder injury. With respect to her right wrist, he stated he was unable to find any evidence
of permanent impairment.
In a supplement report, Dr. Framjee clarified that appellant’s primary diagnosis following
her employment injury was that of a rotator cuff tear, for which she underwent surgical
intervention. Using Table 15-5 of the sixth edition of the A.M.A., Guides, he found that she fell
within the class 1 category of shoulder impairment and thus had a 10 percent impairment to her
right upper extremity.
An OWCP medical adviser reviewed Dr. Framjee’s findings and confirmed that appellant
had a 10 percent impairment of her right upper extremity under the sixth edition of the A.M.A.,
Guides. He reported that this was based on distal clavicle arthritis with resection, with a default
grade C impairment.
In a May 23, 2011 decision, OWCP denied an additional schedule award. It found that
the medical evidence did not demonstrate that appellant suffered any additional impairment.
On December 15, 2011 an OWCP hearing representative affirmed the denial of an
additional schedule award.
LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs or functions of the body.4 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the A.M.A., Guides.5
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.6 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.7

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
6

5 U.S.C. § 8123(a).

7

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

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ANALYSIS
To resolve the conflict between Dr. Smith, OWCP’s referral physiatrist, and Dr. Krout,
the attending osteopath, OWCP properly referred appellant to Dr. Framjee, a Board-certified
orthopedic surgeon, for an opinion on the extent of any permanent impairment resulting from the
accepted employment injuries. OWCP provided Dr. Framjee an updated statement of accepted
facts and appellant’s medical record so he could base his opinion on a proper factual and medical
history.
Dr. Framjee examined appellant and applied the sixth edition of the A.M.A., Guides.
Under the sixth edition, diagnosis-based impairment is the primary method of evaluating the
upper extremity. Impairment is determined first by identifying the most applicable diagnosis, or
the one diagnosis that results in the highest causally related impairment rating. The examiner
then selects the class of the impairment (no objective problem, mild problem, moderate problem,
severe problem, very severe problem approaching total function loss). This will provide a
default impairment rating, which can then be adjusted slightly up or down depending on grade
modifiers or nonkey factors (functional history, physical examination, clinical studies).8
Table 15-5, page 401 of the A.M.A., Guides provides upper extremity impairment values
for relevant diagnoses of the shoulder region. Dr. Framjee determined that the primary diagnosis
following appellant’s employment injury was that of a rotator cuff tear requiring surgical
intervention. According to Table 15-5, impairment rating for that diagnosis class 1 is 1 to 13
percent. Dr. Framjee did not adjust his rating for functional history, physical examination or
clinical studies. According to the table, the highest impairment rating anyone can receive for this
shoulder diagnosis is 13 percent, which is less than the schedule award appellant has already
received for her right upper extremity. Appellant, therefore, is not entitled to an additional
schedule award for her accepted right shoulder injury.
OWCP also accepted appellant’s claim for bilateral carpal tunnel syndrome, but
Dr. Framjee could find no evidence of permanent injury or impairment to the right wrist. Indeed,
he noted a 2003 electromyogram and nerve conduction study of the right median nerve, which
showed no electrophysiological evidence of radiculopathy, plexopathy or entrapment neuropathy
affecting the right upper extremity. If medical records from 2010 and 2011 revealed a more
recent carpal tunnel syndrome, it is not clear from the medical opinion evidence how it was
causally related to the 1997 work injury, given the testing performed in 2003.
Dr. Framjee examined appellant’s left upper extremity but offered no impairment rating.
The Board notes that the highest impairment rating anyone can receive for carpal tunnel
syndrome is nine percent of the upper extremity, according to Table 15-23, page 449 of the
A.M.A., Guides. As appellant has already received a schedule award of 16 percent for her left
upper extremity, she is entitled to nothing more for her accepted carpal tunnel syndrome.
The Board finds that the opinion of Dr. Framjee, the impartial medical specialist, is
entitled to special weight and is sufficient to resolve the conflict between Dr. Smith and
8

A.M.A., Guides 387, 389-90 (6th ed. 2009).

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Dr. Krout on the extent of appellant’s injury-related permanent impairment. Accordingly, the
Board will affirm OWCP’s December 15, 2011 decision to deny an additional schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a 13 percent impairment of her right
upper extremity and no more than a 16 percent impairment of her left. She is not entitled to an
additional schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 17, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, MO, Employer
__________________________________________

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Appearances:
Charles R. Wooten,Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2357
Issued: March 17, 2008

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 September 11, 20071 appellant, through counsel, filed a timely appeal of a
September 14, 2006 nonmerit decision of the Office of Workers’ Compensation Programs,
denying her request for reconsideration. Because more than one year has elapsed between the
last merit decision dated July 29, 2005 and the filing of the appeal, the Board lacks jurisdiction to
review the merits of her claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for a merit review of
her claim pursuant to 5 U.S.C. § 8128(a).

1

The Board notes that the date of the appeal was determined by the postmark on the envelope received by the
Board. 20 C.F.R. § 501.3(d)(3)(ii).

FACTUAL HISTORY
On September 28, 2004 appellant, then a 42-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) file number 112024980. She alleged that on September 16, 2004 she
sustained a herniated disc at L3-4 based on a magnetic resonance imaging (MRI) scan performed
by her attending physician.2 Appellant stated that her condition was caused by pushing a hamper
full of mail out to the dock. She stopped work on September 17, 2004. In a witness statement,
Jerry Lakebrink, a coworker, stated that he saw her on the dock “getting loaded.” He related that
she could hardly move and that she looked like she could cry.
In a September 22, 2004 narrative statement, appellant further described the
September 16, 2004 incident. She cased mail and delivered it on her route between 10:00 a.m.
and 3:15 p.m. Appellant returned to the employing establishment at 3:20 p.m. and finished
putting away trays at 3:30 p.m. On the following morning, she awoke with pain in her lower
back. Appellant arrived at work and notified Joyce Bacon, an acting supervisor, about her back
pain. She informed Ms. Bacon that she would attempt to deliver mail on her route and then go
home. Appellant stated that, while pushing a hamper out, she experienced sharp pain down her
leg. She finished her route and went home. Dr. David M. Schoenwalder, an attending Boardcertified internist, prescribed medication. Early the next morning, appellant was treated at a
hospital emergency room for back pain.
A September 17, 2004 prescription of Dr. Garry R. Scarato, a Board-certified emergency
medicine specialist, stated that appellant sustained a herniated disc at L3-4. He recommended
that she stay off work for at least one week through September 24, 2004.
In a letter dated September 30, 2004, the employing establishment controverted
appellant’s claim. It noted that she had not provided rationalized medical evidence establishing a
causal relationship between her alleged injury and the implicated factors of her employment.
The employing establishment noted that appellant had filed prior claims for back injuries dating
back to 1994 and that her physician did not address her preexisting condition and how her work
conditions may have aggravated her condition.
By letter dated October 6, 2004, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It addressed the additional medical evidence she needed
to submit.
An unsigned treatment note dated September 16, 2004 indicated that appellant
experienced pain in her back, hips and leg. In a September 22, 2005 progress note,
Dr. Schoenwalder stated that she had acute sciatica. In a September 26, 2004 medical certificate,
he stated that appellant had lumbar pain and chronic radiculopathy. Dr. Schoenwalder related
that she was unable to work beginning on September 16, 2004. In a September 29, 2004 report,
he stated that appellant experienced chronic back pain with a recent exacerbation on
September 16, 2004. Dr. Schoenwalder further stated that she was disabled for work as of
2

Prior to the instant claim, appellant filed a claim, file number 112010101, alleging that she sustained an injury
on July 29, 2002 caused by her federal employment. The Office accepted the claim for low back, posterior neck and
left wrist strain.

2

September 27, 2004. In a September 17, 2004 report, Dr. Scarato diagnosed appellant as having
a herniated disc at L3-4. On the same date Dr. Royce E. Lovern, a Board-certified radiologist,
performed an MRI scan of appellant’s lumbar spine which demonstrated right paracentral disc
protrusion at L3-4 and degenerative disc changes at L4-5 and L5-S1.
On November 9, 2004 the Office advised appellant that the medical evidence of record
may be related to her prior July 2002 employment injury. The Office agreed to review the
medical evidence to determine whether she sustained a new injury.
In a November 9, 2004 report, Dr. Schoenwalder stated that he last examined appellant
on September 22, 2004. He reviewed a history of the medical treatment she received for her
back condition. Dr. Schoenwalder stated that, on physical examination, appellant had definite
right leg weakness with a right positive straight leg raising test and moderately severe paraspinal
spasm. He stated that she was unable to walk without assistance, noting that she used a cane.
Dr. Schoenwalder related that appellant had degenerative disc and herniated disc diseases based
on x-ray examination. He opined that she had chronic low back pain related to injuries she
sustained at work dating back to July 29, 2002 and that she suffered from ongoing chronic back
problem that was exacerbated by her work duties. In an October 11, 2004 form medical report,
Dr. Schoenwalder reiterated his prior diagnosis of sciatica. He stated that appellant could
perform limited-duty work with restrictions.
By decision dated November 19, 2004, the Office denied appellant’s claim. The medical
evidence of record failed to establish that she sustained a back condition causally related to the
accepted September 16, 2004 employment incident. The Office noted that the medical evidence
was related to her July 29, 2002 employment injury claim, file number 112010101, and that she
should seek authorization for medical treatment under that file number.
Appellant submitted Dr. Schoenwalder’s October 25, 2004 letter. Dr. Schoenwalder
advised the employing establishment that he was no longer her physician since he did not handle
workers’ compensation cases. He stated that she was unable to work at the time of his recent
examination as her back pain was quite intense and severe. Dr. Schoenwalder also stated that
appellant could barely walk at that time.
On December 2, 2004 the Office advised appellant that the evidence of record related to
her July 29, 2002 employment injury in file number 112010101. It advised her to file a claim for
a recurrence of disability or request that the claim be reopened for further medical treatment.3
In a December 13, 2004 report, Dr. Schoenwalder stated that on September 16, 2004
appellant aggravated her current herniated disc at L3-4 while pushing a hamper at work. He
stated that resistance from pushing the hamper loaded down with mail caused her current sciatica
condition. Dr. Schoenwalder further stated that, if appellant stayed in her position, she would
eventually have further problems with her back. He opined that she aggravated her current
condition on September 16, 2004 which caused a new problem with her sciatica nerve. In a
3

By decision dated May 3, 2004, the Office denied appellant’s recurrence of disability claim. It found the
evidence of record insufficient to establish that she sustained a recurrence of disability causally related to the
July 29, 2002 employment injury.

3

May 3, 2004 report, he reviewed a history of appellant’s July 29, 2002 employment injury and a
back injury she sustained in May 2003 and her medical treatment. Dr. Schoenwalder stated that
she currently suffered from chronic low back pain with herniated discs and required work
restrictions. He opined that her symptoms were clearly related to her work duties as a mail
carrier and that such work would continue to aggravate her condition. Dr. Schoenwalder
concluded that appellant could work and that she wanted to continue working at the employing
establishment if she could transfer to a position that did not require her to be a mail carrier.
By letters dated April 28 and 29, 2005, appellant, through counsel, requested
reconsideration of the Office’s November 19, 2004 decisions. In an April 12, 2005 prescription,
Dr. Schoenwalder stated that there were no changes in appellant’s work status. On April 12,
2005 he reiterated his prior opinion that appellant could work with restrictions.
In a July 29, 2005 decision, the Office denied modification of the November 19, 2004
decision. The medical evidence of record failed to establish a causal relationship between
appellant’s back condition and the September 16, 2004 employment incident.
In a July 19, 2006 letter, appellant, through counsel, requested reconsideration of the
July 29, 2005 decision. She submitted a duplicate copy of Dr. Schoenwalder’s December 13,
2004 report.
By decision dated September 14, 2006, the Office denied appellant’s request for
reconsideration. It found that the evidence submitted was repetitious in nature and, thus,
insufficient to warrant a merit review of its prior decisions.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,4 the Office’s regulations provide that a claimant must: (1) show
that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by the Office; or (3) constitute relevant and pertinent
new evidence not previously considered by the Office.5 To be entitled to a merit review of an
Office decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.6 When a claimant fails to meet one of the
above standards, the Office will deny the application for reconsideration without reopening the
case for review of the merits.

4

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(1)-(2).

6

Id. at § 10.607(a).

4

ANALYSIS
By letter dated July 19, 2006, appellant, through counsel, disagreed with the Office’s
July 29, 2005 decision, finding that she did not sustain a back injury in the performance of duty
because the medical evidence of record did not establish that the claimed injury was causally
related to the September 16, 2004 employment incident. The relevant issue is whether her back
injury was causally related to the accepted September 16, 2004 employment incident. The Board
notes that this issue is medical in nature.
Appellant submitted a duplicate copy of Dr. Schoenwalder’s December 13, 2004 report,
which was already of record and was previously reviewed by the Office. The submission of
evidence which repeats or duplicates evidence that is already in the case record does not
constitute a basis for reopening a case for merit review.7 The Board, therefore, finds that his
report is insufficient to warrant reopening appellant’s claim for further merit review.
The evidence submitted by appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or constitute relevant and pertinent new evidence not previously considered by the
Office. As she did not meet any of the necessary regulatory requirements, the Board finds that
she is not entitled to further merit review.8
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a merit review of
5her claim pursuant to 5 U.S.C. § 8128(a).

7

Patricia G. Aiken, 57 ECAB ___ (Docket No. 06-75, issued February 17, 2006).

8

See 20 C.F.R. § 10.608(b); Richard Yadron, 57 ECAB __ (Docket No. 05-1738, issued November 8, 2005).

5

ORDER
IT IS HEREBY ORDERED THAT the September 14, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 17, 2008
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

6


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

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

Docket No. 09-641
Issued: January 27, 2010

Case Submitted on the Record

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

JURISDICTION
On January 6, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 30 and December 17, 2008 merit decisions concerning the
termination of her compensation. 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 the Office met its burden of proof to terminate appellant’s
compensation effective June 8, 2008 on the grounds that she no longer had residuals of her
June 20, 2001 employment injury after that date.
FACTUAL HISTORY
The Office accepted that on June 20, 2001 appellant, then a 68-year-old patch-up mail
handler, sustained a cervical sprain, right shoulder contusion and right retinal detachment when a
pole fell and hit her in her face and right shoulder and arm. At the time of the injury, she was

performing light-duty work for 4 hours per day, 20 hours per week.1 Appellant received
appropriate compensation from the Office for disability caused by the June 20, 2001 injury.2
On July 2, 2001 Dr. Andrew Nolan, an attending Board-certified ophthalmologist,
performed a retina repair on appellant’s right eye. On July 30, 2001 he determined that she did
not have any limitations due to her work-related eye condition. There is no indication that
appellant received treatment for her June 20, 2001 eye injury after July 2001. She received
treatment for her orthopedic problems from Dr. Gerald S. Goldberg, a Board-certified
neurologist.
On September 20, 2006 Dr. Barry Lotman, a Board-certified orthopedic surgeon serving
as an Office referral physician, indicated that examination of appellant’s cervical spine showed
diffuse midline tenderness and with fairly good range of motion except for decreased lateral
turning. He noted that she had a positive Tinel’s sign over the cubital tunnel on the right and that
her right shoulder showed tenderness in the anterior portion of the rotator cuff. Dr. Lotman
indicated that there was no pain over the clavicle, acromioclavicular (AC) joint or biceps tendon,
no pcriscapular atrophy and no crepitation on active and passive range of motion. He stated that
appellant had cervical spondylosis and lumbar spondylosis and posited that her current
symptoms are the result of progression of these underlying degenerative conditions.
Dr. Goldberg stated, “I believe that they were aggravated at the time of the respective injuries.
The persistence in those symptoms at present is the result of symptom magnification rather than
persistence of those specific injuries.” He found that appellant could not work as a regular mail
handler but that she was able to work in the modified position of patch-up mail handler.
On October 25, 2006 Dr. Goldberg indicated that appellant reported having continuing
pain in her neck and right shoulder, with the shoulder pain predominating. On examination
appellant had decreased range of motion on lateral turning of her neck, more so to the left. There
was pain with extension and general tenderness in the cervical and trapezius muscles.
Dr. Goldberg found that appellant had decreased range of motion of the right shoulder, but that
there is no winging of the scapula. Motor strength in the arms was normal although appellant
favored the right arm secondary to pain. Dr. Goldberg determined that, given the reaching and
carrying duties, she could not work in the modified position of patch-up mail handler or as a
regular mail handler.
The Office determined that there was a conflict in the medical opinion between
Dr. Goldberg and Dr. Lotman regarding appellant’s ability to work. In order to resolve the
conflict, it referred her, pursuant to section 8123(a) of the Federal Employees’ Compensation
1

The job restricted lifting and carrying to 15 pounds intermittently for four hours per day and allowed two hours
of intermittent sitting or walking and one hour of intermittent standing. Appellant fell out of a chair at work on
February 2, 1977 and the Office accepted that she sustained right leg thromboplebitis, right leg pulmonary emboli,
cervical disc displacement and lumbar intervertebral disc disorder. Prior to 1985 she had worked as a regular mail
handler for various periods. The current case does not involve the matter of whether appellant continues to have
residuals of her February 2, 1977 injury. It appears that appellant continued to receive schedule award
compensation in connection with her February 2, 1977 injury after the Office terminated her compensation with
respect to her June 20, 2001 injury.
2

Appellant last worked for the employing establishment in September 2003.

2

Act, to Dr. Jeffrey T. Haimes, a Board-certified orthopedic surgeon, for an impartial medical
examination and an opinion on the matter.
In a March 21, 2007 report, Dr. Haimes stated that appellant presented complaining of
neck pain and right shoulder pain, which radiated down her right arm. He provided a history of
her medical problems, including the effects of the June 20, 2001 employment injury and
observed that she was able to get up and down from her chair and the examination table without
any difficulty or the use of a cane.3 Examination of the cervical spine showed positive
tenderness over the right paraspinal musculature and right trapezius, but there was no tenderness
over the left parasina1 musculature. Appellant had 5/5 strength in all aspect of her arms, but
there was decreased sensation in the right arm compared to the left. Dr. Haimes stated that
examination of the right shoulder showed positive tenderness over the subacromial bursa with
extension, positive impingement sign and weakness and pain elicited with resistance of the
supraspinatus. There was no weakness to resistance of the infraspinatus and teres minor.
Dr. Haimes noted that January 24, 2005 magnetic resonance imaging (MRI) scan testing of the
cervical spine showed a broad disc protrusion at C4-5 effacing the subarachnoid space and
touching the cord but not compressing it and a disc osteophyte complex at C5-6 effacing the
subarachnoid space but not compressing or narrowing the foramen. The findings of a
November 14, 2001 MRI scan of the right shoulder showed a high-grade intrasubstance tear of
the anterior distal supraspinatus tendon and tendinisis of the anterior infraspinatus tendon and
marked AC joint hypertrophic changes.
Dr. Haimes stated that prior to June 20, 2001 appellant had a long-standing history of
cervical pain and indicated that the cervical strain/sprain that she sustained as a result of the pole
hitting her in 2001 was a temporary aggravation of a preexisting condition. As far as the pain in
her right shoulder was concerned, she had an impingement syndrome with chronic degeneration
of the rotator cuff and the accepted contusion was a temporary aggravation of a preexisting
condition. Dr. Haimes posited that the underlying progressive disease would have been at the
same stage now whether or not the June 20, 2001 injury had occurred. He stated:
“It must be remembered that [appellant] is 74 years old and has not worked since
September 2003. From an orthopedic standpoint, the injury that she sustained on
[June 20, 2001] caused temporary aggravation of preexisting neck and shoulder
conditions. [Appellant] had been using a cane prior to her [June 20, 2001] injury.
She had been working light duty with restrictions for lifting, carrying 10 [to] 15
pounds [for] [four] hours intermittently, [two] hours intermittent sitting or
walking, [one] hour intermittent standing, [four] hours a day [for] five days a
week prior to the [June 20, 2001] injury. Obviously, [appellant] cannot work her
original duties as a mail handler. However, she could work the restrictions noted
for a patch-up mail handler. However, [appellant] is 74 years old and has and will
continue to deteriorate as a natural process of aging. I do not feel that [she] has

3

Dr. Haimes inadvertent listed the June 20, 2001 injury as occurring on June 1, 2001. He provided a proper
description of the mechanism of injury.

3

sustained any permanent impairment as a result of the [June 20, 2001] cervical
strain and right shoulder contusion, from an orthopedic standpoint.”4
The Office requested that Dr. Haimes provide additional clarification of whether
appellant continued to have residuals of her June 20, 2001 employment injury. In a
supplemental report dated May 15, 2007, Dr. Haimes summarized the findings on physical
examination and diagnostic testing. He noted that objective cervical findings included
underlying degenerative disease at multiple levels and positive tenderness over the right
paraspinal musculature. Objective right shoulder findings included a tear of the supraspinatus
tendon, severe degenerative changes of the AC joint, impingement syndrome signs and weakness
to resistance of the supraspinatus. Dr. Haimes indicated that the orthopedic injuries appellant
sustained on June 20, 2001 were temporary in nature and had since resolved themselves leaving
no permanent effects. Appellant’s current’s cervical and right shoulder symptoms were due to
the natural progression of her underlying nonwork-related processes. Dr. Haimes stated:
“[F]rom an orthopedic standpoint, [appellant] had no objective findings as a result
of the 2001 injury. However, the objective findings were a result of the
degenerative conditions that [she] is experiencing. [Appellant’s] current
condition is due to the preexisting degenerative condition rather than the workrelated injury…. Her current condition is not related to her work injury from
2001. Indeed, objective findings are consistent with the degenerative condition
which is present in the cervical spine as well as her right shoulder. [Appellant] is
not able to work her original duties as a mail handler. However, she is able to
continue the light[-]duty position that she was able to perform prior to her 2001
injury with the restrictions that she had prior to her 200l injury. [Appellant] could
continue to perform the duty of a patch-up mail handler with restrictions that were
listed prior to her 2001 injury.”
In a July 19, 2007 letter, the Office advised appellant that it proposed to terminate her
compensation on the grounds that she no longer had residuals of her June 20, 2001 employment
injury. It indicated that the weight of the medical evidence regarding orthopedic residuals of the
June 20, 2001 injury rested with the opinion of the impartial medical specialist, Dr. Haimes. The
Office noted that the July 30, 2001 report of Dr. Nolan, showed that appellant had no residuals of
the June 20, 2001 eye injury. The Office informed her that she had 30 days from the date of the
letter to submit evidence contesting this proposed action.
Appellant submitted September 12 and December 21, 2007 reports of Dr. Peter J.
Millheiser, a Board-certified orthopedic surgeon, who reported findings on examination and
discussed the nature of her neck, back, right hip, right shoulder and right knee problems.
Dr. Millheiser stated that appellant was 74 years old and that it did not appear that she was going
to be able to work. In a March 7, 2007 report, Dr. Dwight Reynolds, an attending Boardcertified emergency physician, provided findings on examination for appellant’s neck, back and
extremities. In an August 13, 2007 report, he indicated that she remained totally disabled due to
her February 2, 1977 and June 20, 2001 injuries.
4

Dr. Haimes noted that on July 30, 2001 Dr. Nolan, an attending ophthalmologist, determined that appellant did
not have any limitation due to her work-related eye condition.

4

In a May 30, 2008 decision, the Office terminated appellant’s compensation effective
June 8, 2008 on the grounds that she had no residuals of her June 20, 2001 employment injury
after that date. Appellant requested a review of the written record by an Office hearing
representative. She did not submit any additional medical evidence showing residuals of the
June 20, 2001 injury. In a December 17, 2008 decision, the Office hearing representative
affirmed the Office’s May 30, 2008 decision.
LEGAL PRECEDENT
Under the Act,5 once the Office has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.6 The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.7 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.8
Section 8123(a) of the Act provides in pertinent part: “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.”9 In situations
where 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.10
ANALYSIS
The Office accepted that on June 20, 2001 appellant sustained a cervical sprain, right
shoulder contusion and right retinal detachment when a pole fell and hit her in her face and right
shoulder and arm. At the time of the injury, appellant was performing light-duty work for 4
hours per day, 20 hours per week. On July 2, 2001 Dr. Nolan, an attending Board-certified
ophthalmologist, performed a retina repair on appellant’s right eye. The Office based its
termination with respect to orthopedic residuals of the June 20, 2001 injury on the March 21 and
May 15, 2007 reports of Dr. Haimes, a Board-certified orthopedic surgeon who served as an
impartial medical specialist. It based its termination with respect to ocular residuals of the
June 20, 2001 injury on the June 30, 2001 report of Dr. Nolan.
The Office determined that there was a conflict in the medical opinion between
Dr. Goldberg, an attending Board-certified neurologist, and Dr. Lotman, a Board-certified
5

5 U.S.C. §§ 8101-8193.

6

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

7

Id.

8

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9

5 U.S.C. § 8123(a).

10

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

5

orthopedic surgeon serving as an Office referral physician, regarding the extent of her orthopedic
disability. In order to resolve the conflict, it referred appellant, pursuant to section 8123(a) of the
Act, to Dr. Haimes for an impartial medical examination and an opinion on the matter.11
The Board finds that the weight of the medical evidence with respect to orthopedic
residuals of the June 20, 2001 injury is represented by the thorough, well-rationalized opinion of
Dr. Haimes.12 His March 21 and May 15, 2007 reports establish that appellant did not have any
orthopedic residuals of her June 20, 2001 employment injury after June 8, 2008.
In his reports, Dr. Haimes provided an extensive history of appellant’s medical condition,
with an emphasis on her cervical and right shoulder conditions. He noted that objective cervical
findings, derived from the findings on examination and diagnostic testing, included underlying
degenerative disease at multiple levels and positive tenderness over the right paraspinal
musculature. Objective right shoulder findings included a tear of the supraspinatus tendon,
severe degenerative changes of the AC joint, impingement syndrome signs and weakness to
resistance of the supraspinatus. Dr. Haimes found that the orthopedic injuries appellant
sustained on June 20, 2001 were not permanent and that her current symptoms were due to
underlying degenerative processes. He indicated that appellant was 74 years old and posited that
her underlying progressive diseases would have been at the same stage now whether or not the
June 20, 2001 injury had occurred. Dr. Haimes concluded that she had no orthopedic residuals
of the June 20, 2001 injury. He indicated that she could work her date-of-injury job as a patchup mail handler.13
The Board has carefully reviewed the opinion of Dr. Haimes and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Haimes’ opinion is based on a proper factual and medical
history and he accurately summarized the relevant medical evidence.14 He provided medical
rationale for his opinion by explaining that the orthopedic injuries appellant sustained on
June 20, 2001 were temporary in nature and had since resolved themselves leaving no permanent
effects. Appellant’s current cervical and right shoulder symptoms were due to the natural
progression of her underlying nonwork-related disease processes. Dr. Haimes stated that from
an orthopedic standpoint appellant had “no objective findings as a result of the 2001 injury.
[T]he objective findings were a result of the degenerative conditions that [appellant] is

11

See supra note 9. On September 20, 2006 Dr. Lotman found that appellant could not work as a regular mail
handler but that she was able to work in the modified position of patch-up mail handler. In contrast, Dr. Goldberg
determined on October 25, 2006 that she could not work as a patch-up mail handler or regular mail handler.
12

See supra note 10.

13

Dr. Haimes stated that appellant could not work as a regular mail handler but indicated that this restriction was
due to nonwork-related conditions.
14

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

6

experiencing. [Appellant’s] current condition is due to the preexisting degenerative condition
rather than the work-related injury.”15
With respect to appellant’s eye condition, the Office properly found that the July 30,
2001 report of Dr. Nolan shows that appellant did not have residuals of her June 20, 2001 eye
injury after July 30, 2001. In that report, Dr. Nolan determined that she did not have any
limitations due to her work-related eye condition. There is no indication that appellant received
treatment for her June 20, 2001 eye injury after July 30, 2001.
For these reasons, the Office properly terminated appellant’s compensation effective
June 8, 2008 with respect to her June 20, 2001 employment injury.16
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective June 8, 2008 on the grounds that she no longer had residuals of her
June 20, 2001 employment injury after that date.

15

Appellant submitted an August 13, 2007 report of Dr. Reynolds, an attending Board-certified emergency
physician, who indicated that she remained totally disabled due to her June 20, 2001 work injuries. This report is of
limited probative value because Dr. Reynolds did not provide any reasoning for his opinion. See George Randolph
Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical rationale is of little
probative value). Other physicians posited that appellant was disabled after June 20, 2008 but they provided no
cause for the disability.
16

On appeal, appellant’s attorney argued that the Office hearing representative did not have access to all the
appropriate records, but the text of her decision shows that she evaluated all the relevant evidence in reaching her
decision.

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
December 17 and May 30, 2008 decisions are affirmed.
Issued: January 27, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION WHIDBEY ISLAND,
Oak Harbor, WA, Employer
__________________________________________
Appearances:
John R. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

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Docket Nos. 11-1348 and
11-1362
Issued: September 13, 2011

Case Submitted on the Record

ORDER GRANTING REQUEST FOR ORAL ARGUMENT
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On May 9 and 16, 2011 appellant, through his attorney, filed for review of the March 24,
2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) which
denied his request for reconsideration under 5 U.S.C. § 8128(a). The appeal was docketed as
Nos. 11-1348 and 11-1362, respectively. Appellant submitted a timely request for oral
argument, explaining the need to address the evidence of record before the Board.1 Appellant’s
attorney contends that, in denying appellant’s request for reconsideration, OWCP applied an
improper standard in determining that the new medical evidence submitted by appellant, which
included a May 29, 2009 medical report from Dr. Robert M. Rakita, a Board-certified internist,
and an undated report from Dr. Steve H. Kirtland, an attending Board-certified internist, were
equivocal in nature and, thus, insufficient to warrant the reopening of his claim for a merit
review. He further contends that OWCP incorrectly stated that the July 27, 2009 report of
Dr. Paul A. Zaveruha, a surgeon, was previously reviewed by the Board in its prior decision.
Counsel argues that the Board cannot review medical evidence that was not before OWCP at the

1

20 C.F.R. § 501.5(b) provides that a request for oral argument must be submitted in writing no later than 60 days
after the filing of the appeal and specify the issue(s) to be argued and provide a statement supporting the need for
oral argument.

time it issued the final decision in the case and that the rationale for this rule should be clearly set
forth by the Board.
The Board notes that this is appellant’s second appeal. In Docket No. 09-1193, issued
May 6, 2010, the Board found that appellant did not sustain a fungus condition in the
performance of duty as he failed to submit sufficient rationalized medical evidence establishing
that his condition was causally related to his accepted employment-related exposure to bird
droppings.
The Board has duly considered the matter and finds that appellant’s request for oral
argument should be granted. Pursuant to 20 C.F.R. § 501.5(a), oral argument may be held in the
discretion of the Board.2 In the present appeal, appellant’s request was timely filed and a need
for oral argument was advanced. The Board has jurisdiction over the merits of appellant’s claim.
The Board, in its discretion, grants oral argument.
IT IS HEREBY ORDERED THAT appellant’s request for oral argument in Docket
Nos. 11-1348 and 11-1362 be granted.
Issued: September 13, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees' Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

2

20 C.F.R. § 501.5(a).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
DEPARTMENT OF THE ARMY, NATIONAL
GUARD BUREAU, ARMY AVIATION
SUPPORT FACILITY, Ronkonkoma, New York,
Employer
__________________________________________

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

Docket No. 11-1020
Issued: November 4, 2011

Case Submitted on the Record

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

JURISDICTION
On March 10, 2011 appellant, through his attorney, filed a timely appeal of the
February 3, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his recurrence of disability claim. 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 established that he sustained a recurrence of disability on
March 2, 2009 causally related to his May 9, 2005 employment injuries.
On appeal, counsel contends that appellant sustained a recurrence of disability when he
was removed from his position due to his accepted injuries.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 12, 2005 appellant, then a 45-year-old aircraft mechanic, filed a traumatic injury
claim (Form CA-1) alleging that on May 9, 2005 he sustained injury after falling out of a
helicopter onto his back and hand while inserting a rigger pin in the hanger. By letter dated
February 25, 2010, OWCP accepted appellant’s claim for a herniated disc at L4-5 and lumbar
disc disease.
On June 28, 2010 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period March 2, 2009 through June 25, 2010.2 He had separated from the employing
establishment. By letter dated August 2, 2010, OWCP advised appellant to submit a Form CA-1
if a new work incident had caused a condition to recur. Appellant was also advised to submit an
occupational disease claim (Form CA-2) if work activities or factors occurring over more than
one day caused a condition to recur. He was advised to submit a recurrence claim (Form CA-2a)
if he was claiming a recurrence of disability due to his employment-related injuries without an
intervening incident. OWCP stated that the current evidence of record was insufficient to
proceed with further development of appellant’s claim.
In an August 30, 2010 letter, appellant, through his attorney, contended that he stopped
work because he was removed from the employing establishment on the grounds that his May 9,
2005 employment injuries disqualified him from membership in the Army National Guard.
Counsel stated that appellant did not file any claim for wage-loss compensation following his
accepted injuries. He contended that there was no need to file a Form CA-2a or Form CA-2
because appellant had filed a CA-7 form following his removal on February 27, 2009. Counsel
requested payment of compensation and placement on the periodic rolls by OWCP for future
payments.
On November 5, 2010 appellant filed a Form CA-2a alleging that he sustained a
recurrence of disability on March 2, 2009. He stated that, following his accepted injuries, he
performed his usual work duties with no limitations. Appellant reiterated his prior contention
that he was removed from the employing establishment because his accepted injuries disqualified
him from membership in the Army National Guard.
An employing establishment health unit physical profile dated May 22, 2008 rated
appellant’s ability to serve as a soldier in the Army National Guard. Appellant was restricted
from carrying an assigned weapon, moving a fighting load at least eight miles and constructing
an individual fighting position. He could not perform push-ups or sit-ups. Appellant could not
engage in unlimited walking or running and lower or upper body weight training. He had
restricted motion, disc disease and recurrent shoulder dislocation. The employing establishment
determined that appellant did not meet retention standards.
On May 22, 2008 an employing establishment health unit surgeon reviewed the medical
reports of Dr. Roy M. Shannon, an attending Board-certified internist. Appellant had a herniated
nucleus pulposus at L4-5 and L5-S1, moderate stenosis at L1-2 and L5-S1 and disc disease. The
employing establishment reiterated that he was restricted from carrying a weapon or engaging in
2

On August 3, 2010 OWCP issued a decision denying appellant’s claim for a schedule award.

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lower or upper body weight training. Appellant was also restricted from wearing body armor,
lifting more than 10 pounds, engaging in combat and being deployed. A medical retirement was
recommended on the grounds that he was physically unable to perform the minimum duties of a
soldier, which included firing an individual weapon, wearing a ballistic helmet and engaging in
aerobic activities such as, a two-mile run. The employing establishment noted that appellant did
not deploy with a unit on a previous assignment.
By letter dated June 27, 2008, the employing establishment advised appellant that he no
longer met its medical standards for retention in accordance with Chapter 3, AR 40-501.
Appellant was provided with several options which included separation from the Army National
Guard, an appeal to an active component nonduty physical evaluation board for reevaluation or
referral to the physical disability evaluation system for disqualifying service-connected
conditions. Appellant was advised about the penalty provisions if he failed to select one of the
above options by his suspense date of August 27, 2008.
By letter dated December 7, 2010, OWCP requested that appellant submit additional
factual and medical evidence in support of his recurrence claim. It asked for a rationalized
medical report from an attending physician which described a history of medical examinations,
treatment and the alleged recurrence of disability, medical findings, a firm diagnosis, periods of
total and partial disability with restrictions and an opinion with medical reasons on whether and
how his current condition was caused by his May 9, 2005 employment injuries. OWCP also
requested that the employing establishment submit factual evidence regarding appellant’s claim.
In a January 3, 2011 letter, the employing establishment controverted appellant’s claim.
It contended that he was a full-duty employee prior to his alleged recurrence of disability.
Appellant was never assigned light-duty work. The employing establishment asserted that he
received retirement benefits at the time of his alleged recurrence of disability. It submitted
personnel records which included appellant’s December 10, 2004 application for employment
and a SF-50 form which indicated that his disability retirement was effective February 28, 2009.
A description of his aircraft mechanic position stated that the position required military
membership.
In a February 3, 2011 decision, OWCP denied appellant’s recurrence of disability claim.
The medical evidence was found insufficient to establish that his disability on March 2, 2009
was due to his May 9, 2005 employment injuries.
LEGAL PRECEDENT
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition, which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment, which
caused the illness.3
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which he claims
3

20 C.F.R. § 10.5(x); R.S., 58 ECAB 362 (2007).

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compensation is causally related to the accepted employment injury.4 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between his recurrence of disability and his employment injury.5 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.6 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.7
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.8 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.9 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.10
ANALYSIS
Appellant claimed that he sustained a recurrence of disability on March 2, 2009 when his
regular-duty aircraft mechanic position was withdrawn on the grounds that he was no longer
physically able to serve as a soldier in the Army National Guard. He retired as of
February 28, 2009. Appellant did not contend that the accepted lumbar conditions had worsened
such that he was unable to perform the duties of his regular-duty position. The Board finds that
he sustained an employment-related recurrence of total disability when his civilian position was
withdrawn by the employing establishment effective February 28, 2009, the date of his
retirement.
The Board notes that appellant’s aircraft mechanic position required membership in the
Army National Guard. The May 22, 2008 employing establishment health unit physical profile
found that he did not meet its retention standards for a soldier in the Army National Guard. It
found that appellant had restricted motion, disc disease and recurrent shoulder dislocation. The
employing establishment also found that he could not carry an assigned weapon, move a fighting
load at least eight miles or construct an individual fighting position. In addition, appellant could
4

Kenneth R. Love, 50 ECAB 193, 199 (1998).

5

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

6

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

7

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

8

See Ricky S. Storms, supra note 6; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).
9

For the importance of bridging information in establishing a claim for a recurrence of disability, see Richard
McBride, 37 ECAB 748 at 753 (1986).
10

See Ricky S. Storms, supra note 6; Morris Scanlon, 11 ECAB 384, 385 (1960).

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not perform push-ups or sit-ups and engage in unlimited walking or running and lower or upper
body weight training. The May 22, 2008 employing establishment health unit state surgeon’s
case review recommended medical retirement on the grounds that he was physically unable to
perform the minimum duties of a soldier. These duties included firing an individual weapon,
wearing a ballistic helmet and engaging in aerobic activities such as, a two-mile run. The
employing establishment reviewed the reports of Dr. Shannon, an attending physician, which
provided a diagnosis of herniated nucleus pulposus at L4-5 and L5-S1, moderate stenosis at L1-2
and L5-S1 and disc disease. It noted that, in addition to appellant’s restrictions related to
carrying a weapon and engaging in lower or upper body weight training, he could not wear body
armor, lift more than 10 pounds, engage in combat or be deployed. The employing
establishment noted that he did not deploy with a unit on a previous assignment.
On June 27, 2010 the employing establishment medically disqualified appellant for
military membership based on the noted profile and review. It stated that he no longer met its
medical standards for retention and advised him to select from several options which included
separation from the Army National Guard by August 27, 2008.
The Board finds that the evidence establishes that appellant’s civilian aircraft position
was withdrawn on the grounds that he was physically unable to perform his required military
duties as of February 28, 2009 due to the accepted employment conditions. Appellant has
established that he sustained an employment-related recurrence of total disability when his
aircraft position work was withdrawn by the employing establishment effective
February 28, 2009.
The instant case can be distinguished from the Board’s line of cases dealing with claims
arising from individuals employed in a dual capacity who were injured while on active military
duty. In Patrick O’Hara,11 the claimant fractured his right wrist while on annual active duty in
the Army Reserve. The Board noted that he was not injured while in the performance of duty
under FECA, as his injury while on active duty had an insufficient relation to the performance of
his federal civilian duties. In Jerry C. Gilliam,12 the claimant filed a claim for an emotional
condition after being discharged by the Army National Guard for exceeding weight standards.
The Board denied the claim, noting that the weight requirement was solely imposed by his
military employment such that his resulting emotional condition did not have a sufficient
relationship to the performance of his civilian duties.13 In Evelyn Kay Cavness (Jimmy L.
Cavness),14 the Board denied a widow’s claim for death benefits. It found that the employee’s
death on February 25, 1986 was causally related to a June 22, 1984 myocardial infarction which
arose while he was in the line of duty on an active-duty training mission.

11

34 ECAB 493 (1982).

12

39 ECAB 1003 (1988).

13

Id. The Board also found against the claimant’s allegations that he was harassed by his civilian supervisors and
coworkers.
14

40 ECAB 1016 (1989).

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Appellant’s accepted herniated disc at L4-5 and lumbar disc disease arose from his
civilian employment as an aircraft mechanic and not from active military duty. As noted, the
aircraft mechanic position description stated that military membership was required. The Board
has not precluded coverage where the injury results from civilian duties and disqualifies the
employee for a military status that is required for civilian employment.15 As the employing
establishment’s disqualification of appellant from the Army National Guard due to the accepted
conditions precluded him from membership in the military which was required by his civilian
aircraft mechanic position, the Board finds that he sustained a recurrence of disability and is
entitled to compensation for the claimed period. Therefore, the Board will reverse OWCP’s
March 3, 2011 decision.
CONCLUSION
The Board finds that appellant established that he sustained a recurrence of disability
causally related to the May 9, 2005 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the February 3, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 4, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

15

Michael A. Vestuto, n.3, Docket No. 00-184 (issued January 29, 2001).

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