United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Honolulu, HI,
Employer
__________________________________________

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

Docket No. 20-1240
Issued: January 28, 2022

Case Submitted on the Record

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

JURISDICTION
On June 3, 2020 appellant, through counsel, filed a timely appeal from a May 4, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the May 4, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective October 29, 2019; and (2) whether
appellant has met his burden of proof to establish continuing employment-related disability or
residuals on or after October 29, 2019 due to his accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board on a different issue.4 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On August 14, 2012 appellant, then a 58-year-old group leader custodian, filed a traumatic
injury claim (Form CA-1) alleging that on August 13, 2012 he injured his left arm when
holding/pushing a battery to prevent it from falling while in the performance of duty. OWCP
accepted the claim for left elbow and forearm sprain, left radial collateral ligament and sprain of
shoulder, left rotator cuff, superior labrum anterior and posterior (SLAP) lesion of the left shoulder
and left shoulder biceps tendinitis. It paid appellant wage-loss compensation on the supplemental
rolls, commencing January 11, 2013 and on the periodic rolls commencing March 6, 2016.
On March 14, 2019 OWCP referred appellant to Dr. WeiChin Chen, a Board-certified
orthopedic surgeon, for a second opinion examination. It requested that he evaluate whether
appellant continued to have residuals and/or disability causally related to appellant’s accepted
August 13, 2012 employment injury.
In a May 16, 2019 report, Dr. Chen indicated that he had reviewed a statement of accepted
facts and appellant’s medical records, including diagnostic studies. He reported physical
examination findings and assessed left upper extremity ulnar nerve lesion consistent with clinical
signs of cubital tunnel syndrome, nonindustrial related. Dr. Chen opined that the accepted left
elbow sprain, which included radial collateral ligament, had resolved as there was no objective
evidence that it was still active or causing symptoms. He indicated that the left elbow had stable
examination with varus and valgus stress at 0 to 30 degrees with no pain with extensor indicis
proprius testing or resisted wrist extension. There were also no residuals of a radial collateral
ligament sprain causing instability. Regarding the left shoulder strain, Dr. Chen noted that on
May 13, 2015 appellant underwent a surgical procedure by Dr. Gary Okamura, a Board-certified
orthopedic surgeon, who found anterior capsular tearing that was subsequently debridged.
Appellant’s July 9, 2015 repeat magnetic resonance imaging (MRI) scan did not show any
persistent sprain of the anterior capsule. Thus, Dr. Chen opined that this and the fact that there
was no anterior instability of the left shoulder on clinical examination indicated that the condition
had resolved. Regarding appellant’s left shoulder rotator cuff tear and biceps tendinitis, he found
that appellant had undergone an open biceps tenodesis by Dr. Okamura on May 13, 2015, which
addressed and resolved both the superior labral tear and the long head of biceps tendinitis.
Dr. Chen noted that Dr. Okamura indicated in his May 13, 2015 report that the anterior rotator cuff
had some undersurface tear of rotator cuff tendon, but overall it looked normal. He reported that
a July 9, 2016 repeat MRI scan did not find any rotator cuff tears, only tendinosis, for which no
treatment was recommended. Thus, Dr. Chen found that the rotator cuff torn tendon was
4

Docket No. 19-1197 (issued January 8, 2020).

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debridged and had resolved with findings of degenerative changes that were not employment
related.
Dr. Chen also noted that a September 29, 2015 report from Dr. Richard Kimura, a Boardcertified orthopedic surgeon and OWCP second opinion physician, indicated findings of partial
tear of common flexor tendon, tendinopathy of extensor tendon of the left elbow. He indicated,
however, that during his examination of the left elbow, appellant’s complaints were along the
cubital tunnel region and not the lateral epicondylar region, which was consistent with resolution
of that complaint. In addition, Dr. Chen indicated that appellant did not have any pain with resisted
distal interphalangeal predominant (DIP) or wrist extension on the left wrist to indicate active
lateral epicondylitis. He further opined, based on a review of the medical records and appellant’s
examination, that appellant’s accepted left shoulder and left elbow conditions had resolved and
appellant was able to return to full duty as a Group Leader Custodian without restrictions.
An August 5, 2019 x-ray of appellant’s left shoulder revealed mild glenohumeral joint
osteoarthritis.
On August 20, 2019 OWCP issued a notice advising appellant that it proposed to terminate
his wage-loss compensation and medical benefits because he ceased to have residuals/disability
causally related to his accepted August 13, 2012 employment injury. It advised appellant that the
proposed action was based on the opinion of Dr. Chen and afforded appellant’s 30 days to submit
additional evidence or argument challenging the proposed action.
OWCP received a duplicate copy of the August 5, 2019 left shoulder x-ray and several
progress reports from Dr. Okamura, dated October 5, 2018 and May 20, and August 5, 2019,
which noted, in addition to appellant’s left shoulder complaints, that appellant had undergone right
shoulder arthroscopy, SLAP repair and capsulorrhaphy repair on February 8, 2018.5
In an October 5, 2018 report, Dr. Okamura reported slightly positive impingement signs
and Hawkins and Neer’s tests for both shoulders. Left shoulder assessments were other specific
postprocedural states and other shoulder lesions.
In his May 20, 2019 report, Dr. Okamura noted that appellant reported that his left shoulder
bothered him more than the right shoulder and that he was in physical therapy for both shoulders.
With regard to the left shoulder, he assessed pain in the left shoulder and postprocedural state.
Dr. Okamura recommended that physical therapy be continued and requested an x-ray of the left
shoulder. Appellant underwent a left shoulder x-ray on August 5, 2019.
In an August 5, 2019 report, Dr. Okamura indicated that left shoulder x-ray revealed
arthritis. He provided an assessment of left shoulder pain and left elbow pain and recommended
injections due to appellant’s persistent symptoms of pain in both shoulders and left elbow.
Dr. Okamura opined that appellant could not work at medium level, but probably could work more
of a sedentary or desk work level.
In a September 23, 2019 report, Dr. Okamura reported that appellant was seen for left
shoulder pain and numbness status post left shoulder surgery of May 13, 2015. Examination
findings revealed pain with impingement signs, positive Hawkins and Neer’s tests, and pain in the
5

The record reflects appellant was seen for right shoulder symptoms in 2017 and 2019.

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supraspinatus tendon. Dr. Okamura provided an assessment of left shoulder pain, other specified
postprocedural states, superior glenoid labrum lesion of left shoulder, and strain of muscle, fascia
and tendon of long head of left arm biceps. He disagreed that appellant could work full duty
without restrictions as appellant’s job required a lot of overhead work and appellant had stiffness
in overhead position and pain reproduced with his shoulder. Dr. Okamura requested that appellant
undergo a functional capacity evaluation.
On September 23, 2019 OWCP requested that Dr. Chen review Dr. Okamura’s reports and
provide a supplemental report clarifying whether the accepted left shoulder SLAP tear and
tendinitis were resolved and whether any further medical treatment is required.
In a September 27, 2019 supplemental report, Dr. Chen noted that the August 5, 2019 left
shoulder x-ray revealed mild glenohumeral joint osteoarthritis. He indicated that osteoarthritis
was a degenerative process not part of the accepted condition. Dr. Chen further noted that
appellant has mild-to-moderate acromioclavicular (AC) joint arthropathy, which was arthritis of
the AC joint and not industrial related. He opined that, although appellant’s accepted conditions
had resolved, appellant’s subjective pain may be medical sequela of his surgical management, but
did not require further medical curative treatment. Dr. Chen reiterated his opinion that appellant’s
accepted conditions had resolved based on the May 13, 2015 surgical procedure.
By decision dated October 29, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date. It found that the weight of the medical
evidence was represented by Dr. Chen’s reports.
On November 5, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on
February 20, 2020.
In a February 27, 2020 report, Dr. Okamura noted evidence of AC joint arthritis and rotator
cuff tendinitis. He recommended further x-rays and an MRI scan.
OWCP subsequently received additional evidence. In a February 12, 2020 letter, Dr. Wray
Tsuzai, a Board-certified internist, indicated that he was appellant’s treating physician for the
bilateral shoulder conditions. He opined that appellant reached maximum medical improvement
(MMI) and that appellant’s current physical abilities prevented him from ever returning to work.
In a February 3, 2020 report, Dr. Tsuzai indicated that appellant had reached MMI on
October 11, 2019.
By decision dated May 4, 2020, OWCP’s hearing representative affirmed the October 29,
2019 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.6 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment
6

S.P., Docket No. 19-0196 (issued June 24, 2020); D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59
ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

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injury.7 OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background. 8
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability. 9 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment. 10
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective October 29, 2019.
In a May 16, 2019 report, Dr. Chen, an OWCP second opinion physician, opined that
appellant’s accepted left elbow and left shoulder strains had resolved. He found no evidence of a
rotator cuff tendon tear, noting that the July 9, 2016 repeat MRI scan did not show any persistent
sprain of the anterior capsule and did not show any rotator cuff tears, only tendinosis. Dr. Chen
indicated that his physical evaluation revealed no anterior instability, which confirmed that the
condition was resolved. He also noted that appellant’s open biceps tendinosis surgery on May 13,
2015 had resolved the SLAP tear and biceps tendinitis. Dr. Chen further noted that Dr. Okamura
had indicated, in his May 13, 2015 report, that the anterior rotator cuff had some undersurface tear
of rotator cuff tendon, but overall it looked normal. Based on these findings, Dr. Chen, thus,
opined that the rotator cuff torn tendon was debridged and had resolved with findings of
degenerative changes that were not employment related. He also indicated that, during his
examination of the left elbow, there were no findings to indicate any active lateral epicondylitis
and appellant’s complaints were along the cubital tunnel region and not the lateral epicondylar
region, which was consistent with resolution of that complaint. Dr. Chen further opined, based on
a review of the medical records and appellant’s examination, that appellant was able to perform
the regular duties of a Group Leader Custodian without restrictions.
In a supplemental report dated September 27, 2019, Dr. Chen reviewed Dr. Okamura’s
reports and reiterated his opinion that appellant’s accepted conditions had resolved based on the
May 13, 2015 surgical procedure. He opined that appellant’s mild glenohumeral joint
osteoarthritis was a degenerative process not part of the accepted condition and the mild-tomoderate AC joint arthropathy, which was arthritis of the AC joint, was not industrial related.
The Board finds that Dr. Chen’s reports, when read together, represent the weight of the
medical evidence at the time OWCP terminated appellant’s wage-loss and medical benefits,
effective October 29, 2019, and that OWCP properly relied on his reports in carrying out its
7

See S.P., id.; R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989);
Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
8

D.G., supra note 6; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284,
29596 (1988).
9

S.P., supra note 6; J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued
February 27, 2019).
10

D.G., supra note 6; L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued
February 5, 2019).

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termination action. The Board finds that he had full knowledge of the relevant facts and evaluated
the course of appellant’s accepted work-related left shoulder conditions. Dr. Chen’s opinion is
based on proper factual and medical history and his report contained a detailed summary of this
history. He addressed the medical records to make his own examination findings to reach a
reasoned conclusion regarding appellant’s conditions.11 Dr. Chen found no basis on which to
attribute any residuals or continued disability to appellant’s accepted conditions. His opinion is
found to be probative evidence and reliable. The Board finds that Dr. Chen’s opinion constitutes
the weight of the medical evidence and is sufficient to justify OWCP’s termination of benefits for
the accepted conditions of left elbow and forearm sprain, left radial collateral ligament and sprain
of shoulder, left rotator cuff, slap lesion of the left shoulder, and left shoulder biceps tendinitis. 12
The remaining evidence submitted prior to OWCP’s termination of appellant’s wage-loss
compensation and medical benefits is insufficient to overcome the weight afforded to Dr. Chen as
the second opinion physician. Appellant submitted reports from Dr. Okamura dated October 5,
2018 through September 23, 2019. Dr. Okamura indicated that appellant still had left shoulder
pain. In his August 5, 2019 report, he reported that left shoulder x-ray revealed arthritis.
Dr. Okamura provided an assessment of left shoulder pain and left elbow pain and indicated that
appellant was a candidate for injections due to his persistent symptoms of pain in both shoulders
and left elbow. He also opined that appellant could not work at medium level, but probably could
work more of a sedentary or desk work level. Dr. Okamura, however, did not explain with
rationale how/why appellant continued to have residuals/disability causally related to the accepted
August 13, 2012 employment injury. In his other reports, Dr. Okamura assessed left shoulder pain,
other specified post procedural states, superior glenoid labrum lesion of left shoulder, and strain
of muscle, fascia and tendon of long head of left arm biceps and noted positive impingement signs
and positive Hawkins and Neer’s tests. However, Dr. Okamura did not offer a rationalized opinion
as to whether appellant’s conditions were causally related to the accepted employment injury. The
Board has held that a medical report is of limited probative value on a given medical issue if it
contains a medical opinion which is unsupported by medical rationale.13 As noted, Dr. Chen
reviewed Dr. Okamura’s reports and provided a well-rationalized opinion in his September 27,
2019 supplemental report as to why appellant no longer had residuals or disability causally related
to the accepted conditions.
As Dr. Chen’s opinion constitutes the weight of the medical evidence, the Board finds that
OWCP met its burden of proof.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminated compensation benefits, the burden shifts to appellant to
establish continuing disability after that date causally related to the accepted injury. 14 To establish
causal relationship between the accepted conditions as well as any attendant disability claimed and

11

See W.C., Docket No. 18-1386 (issued January 22, 2019); Melvina Jackson, 38 ECAB 443 (1987).

12

See B.B., Docket No. 18-0732 (issued March 11, 2020).

13

See L.S., Docket No. 19-0959 (issued September 24, 2019); M.H., Docket No. 17-0210 (issued June 3, 2018).

14

See J.N., Docket No. 20-1030 (issued November 20, 2020); L.C., Docket No. 18-1759 (issued June 26, 2019);
S.M., Docket No. 18-0673 (issued January 25, 2019).

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the employment injury, an employee must submit rationalized m edical evidence based on a
complete medical and factual background supporting such causal relationship.15
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish continuing
employment-related disability or residuals on or after October 29, 2019 due to his accepted
employment injury.
In his February 27, 2020 report, Dr. Okamura found evidence of AC joint arthritis and
rotator cuff tendinitis. However, he did not offer a rationalized opinion as to whether appellant’s
conditions were causally related to the accepted employment injury. The Board has held that a
medical report is of limited probative value on a given medical issue if it contains a medical
opinion, which is unsupported by medical rationale. 16 Thus, this report is insufficient to cause
conflict with Dr. Chen’s well-rationalized opinion as to why appellant’s AC joint arthritis was a
degenerative conditions and not industrial related.
Dr. Tsuzai submitted reports dated February 3 and 12, 2020, which noted that appellant
reached maximum medical improvement for appellant’s “shoulder” and that his current physical
abilities prevent him from returning to work. He, however, does not specify which shoulder
reached maximum medical improvement. Additionally, Dr. Tsuzai fails to offer a rationalized
opinion as to whether appellant’s inability to work is causally related to the accepted employment
injury or conditions. 17 Thus, his reports are of limited probative value and are of insufficient to
cause conflict with Dr. Chen’s well-rationalized opinion that the accepted conditions had resolved
with no residuals or disability.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective October 29, 2019. The Board further finds that he

15

Id.

16

See L.S., Docket No. 19-0959 (issued September 24, 2019); M.H., Docket No. 17-0210 (issued June 3, 2018).

17

See A.T., Docket No. 20-0334 (issued October 8, 2020).

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has not met his burden of proof to establish continuing employment-related disability or residuals
on or after October 29, 2019 due to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 4, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 28, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

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Appearances:
Douglas Sughrue, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1787
Issued: April 13, 2011

Case Submitted on the Record

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

JURISDICTION
On June 24, 2010 appellant, through his representative, filed a timely appeal from the
April 5, 2010 merit decision of the Office of Workers’ Compensation Programs, which denied
compensation for his current foot condition. Pursuant to Federal Employees’ Compensation Act
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant’s plantar fibromatosis is causally related to his 1986 work
injury.
FACTUAL HISTORY
On June 16, 1988 appellant, then a 37-year-old letter carrier, filed a claim alleging that
walking five hours daily in the course of his federal employment aggravated the plantar
fibromatosis in his left foot. He first became aware of this condition in 1986. Appellant stopped
work as a regular letter carrier in June 1988 and began limited duty. His supervisor assigned
other employees to carry his bid route. Appellant cased his route and then carried condos or

special deliveries, which did not involve much walking. The Office accepted his claim for
aggravation of plantar fibromatosis, left foot.1
Appellant accepted a modified assignment as a call center associate, one that was tailored
to meet his physical limitations.2 On June 6, 1996 the Office found that his actual earnings in
this position fairly and reasonably represented his wage-earning capacity. Effective February 17,
1996, the date of appellant’s reemployment, the Office reduced his entitlement to wage-loss
compensation to zero.
Appellant accepted a modified carrier position in November 2003, one that required four
hours of walking and four hours of standing. In 2007, he claimed compensation for intermittent
wage loss because the employer had no work available. The Office paid compensation for brief
periods of disability. When the employer withdrew appellant’s limited duty in 2008, the Office
paid compensation for wage loss on the periodic rolls.
On May 28, 2009 Dr. Gary J. Kelman, a Board-certified orthopedic surgeon and an
Office referral physician, related appellant’s history of injury and complaints. He described
findings on physical examination. After reviewing the statement of accepted facts and the
medical records, Dr. Kelman diagnosed left foot plantar fibromatosis.
Dr. Kelman stated that appellant’s work activities as a letter carrier exacerbated his
underlying plantar fibromatosis, which would be expected to resolve completely with rest. He
explained that work activities did not cause this condition; they merely made the condition
symptomatic. Appellant advised that his symptoms were absent during rest and that he was able
to work under restrictions for 20 years without difficulty. Further, he was currently not working
only because limited duty was no longer available.
Dr. Kelman stated that it was medically probable that the 1986 work injury had resolved
and that appellant’s current condition was due to a natural progression of age and his
nonwork-related condition of plantar fibromatosis. He explained that plantar fibromatosis was
developmental and not a post-traumatic condition. Dr. Kelman concluded that appellant’s
objective findings were unrelated to the 1986 work injury and were preexisting in nature. The
aggravation was temporary and ceased within six weeks of appellant’s discontinuing the
prolonged standing and walking that had caused the aggravation.
Dr. Kelman found no clinical evidence to indicate that the work itself caused a material
worsening of appellant’s condition; it merely made the condition temporarily symptomatic. The
condition returned to the baseline level of progression after appellant ceased his usual and
1

A notice of proposed termination in 2009 indicated that the Office at some point expanded its acceptance to
include aggravation of bilateral plantar fibromatosis, but the record shows no letter of acceptance for a bilateral
condition. The 2009 statement of accepted facts acknowledged acceptance of an aggravation only on the left.
2

The duties of a call center associate consisted of accepting customer inquiries regarding rates, ZIP codes,
products and services, etc.; accepting and reviewing telephone inquiries regarding service irregularities; assembling
all pertinent existing data and determining type of inquiry require; resolving customer concerns immediately when
possible; initiating necessary action to develop case analysis or investigation; and using the computer system to
access information and input data.

2

customary duties as a letter carrier. Dr. Kelman therefore concluded that appellant currently had
no residuals of his 1986 work injury that would prevent him from returning to his date-of-injury
job as a mail carrier. He noted, however, that appellant’s bilateral plantar fibromatosis would
become symptomatic again were appellant to return to that type of work. Any work restrictions
would thus be for prophylactic reasons and not a consequence of the 1986 work injury.
In a decision dated July 15, 2009, the Office terminated appellant’s medical and
wage-loss benefits effective that date.3 It found that Dr. Kelman’s opinion represented the
weight of the medical evidence and established that appellant’s accepted foot condition was no
longer related to his federal employment.
Appellant requested reconsideration. He submitted an August 25, 2009 report from his
podiatrist, Dr. Samuel N. Cantor, who reviewed appellant’s medical records beginning in
August 2003. Dr. Cantor limited appellant to four hours of standing in October 2006. In
June 2009, appellant complained that the pain became much more intense after standing and
walking more than four hours.
Dr. Cantor concluded that appellant’s condition was exacerbated by his work duties,
which required him to stand for an extended period of time while sorting the mail and then
walking long distances while delivering. He discussed the nature of plantar fibromatosis and
reasserted that appellant’s vocation, which required extended hours of standing and walking,
aggravated his plantar fibromatosis. Dr. Cantor added that this also aggravated a heel spur noted
on x-rays obtained on May 20, 2008.4 He recommended that appellant avoid any work-related
duties that required standing or walking more than one hour at a time.
Appellant’s representative contended that Dr. Cantor’s opinion supported a causal
relationship between the extended periods of standing and walking required of a letter carrier and
appellant’s plantar fibromatosis. He argued that Dr. Cantor’s opinion created a conflict with
Dr. Kelman, who argued that the employer should accommodate appellant with light duty and
that the Office should provide vocational rehabilitation.
In a decision dated April 5, 2010, the Office reviewed the merits of appellant’s case and
denied modification of its prior decision. It found that Dr. Cantor did not have an accurate
factual background, as it was well documented that appellant had not been exposed to the
injurious factors of his federal employment since 1988. Further, Dr. Cantor provided no
objective findings to support a material worsening or permanent aggravation of the preexisting
plantar fibromatosis. The Office added that the representative’s arguments concerning
reemployment and vocation rehabilitation were irrelevant to the medical issue raised by the
July 15, 2009 termination.
On appeal, appellant’s representative argues that the Office improperly terminated
benefits without resolving the conflict in medical opinion; that the Office did not meet its burden
3

See A.P., Docket No. 08-1822 (issued August 5, 2009). Where the evidence is sufficient to terminate
compensation benefits, it may also negate the loss of wage-earning capacity determination.
4

He noted no similar finding on October 13, 2003 x-rays.

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of proof to establish that appellant was no longer disabled or that his continued disability was not
caused by a work-related event; and that the employer and the Office failed to follow established
procedures by placing him on compensation instead of reemploying him in his date-of-injury job
when the Office determined that his accepted injury had resolved.
LEGAL PRECEDENT
The Act provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.5 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury.6
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open
labor market under normal employment conditions.7 The wage-earning capacity of an employee
is determined by the employee’s actual earnings if the employee’s actual earnings fairly and
reasonably represent his wage-earning capacity.8 Generally, wages actually earned are the best
measure of a wage-earning capacity and in the absence of evidence showing that they do not
fairly and reasonably represent the injured employee’s wage-earning capacity must be accepted
as such measure.9
Once wage-earning capacity is determined, a modification of such determination is not
warranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated or the original
determination was, in fact, erroneous. The burden of proof is on the party attempting to show
modification of the determination.10
Once the Office issues a formal decision on wage-earning capacity, the rating should be
left in place until the claimant requests resumption of compensation for total wage loss for more
than a limited period of disability, in which instance the Office will need to evaluate the request
according to the customary criteria for modifying a formal wage-earning capacity decision.11
When the employer has withdrawn a light-duty assignment made to accommodate the
claimant’s work restrictions and a formal loss of wage-earning capacity decision has been issued,
the decision will remain in place. Any claim for a recurrence of disability should be treated as a

5

5 U.S.C. § 8102(a).

6

20 C.F.R. § 10.5(f).

7

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

8

5 U.S.C. § 8115(a).

9

Lee R. Sires, 23 ECAB 12 (1971).

10

Daniel J. Boesen, 38 ECAB 556 (1987).

11

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).

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request for a modification of a loss of wage-earning capacity decision, not as a recurrence of
disability.12
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.13 When it meets that burden, the burden is on the
claimant to establish that any subsequent disability is causally related to the accepted
employment injury.14
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence. The claimant must submit a rationalized medical opinion that supports a causal
connection between his current condition and the employment injury. The medical opinion must
be based on a complete factual and medical background with an accurate history of the claimant’s
employment injury and must explain from a medical perspective how the current condition is
related to the injury.15
When employment factors cause an aggravation of an underlying physical condition, the
employee is entitled to compensation for periods of disability related to the aggravation. When
the aggravation is temporary and leaves no permanent residuals, however, compensation is not
payable for periods after the aggravation has ceased. This is true even though the employee is
found medically disqualified to continue in his employment because of the effect that the
employment factors might have on the underlying condition. Under such circumstances, the
employee’s disqualification for continued employment is due to the underlying condition without
any contribution by the employment.16
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.17
ANALYSIS
On June 6, 1996 the Office issued a formal decision on appellant’s wage-earning
capacity. It found that appellant’s actual earnings in his modified assignment as a call center
associate fairly and reasonably represented his capacity to earn wages. As these earnings were at
least equal to the current wages of his date-of-injury position, the Office determined that he had
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7(5) (October 2009).

13

Harold S. McGough, 36 ECAB 332 (1984).

14

Wentworth M. Murray, 7 ECAB 570 (1955) (after a termination of compensation payments, warranted on the
basis of the medical evidence, the burden shifts to the claimant to show by the weight of the reliable, probative and
substantial evidence that, for the period for which he claims compensation, he had a disability causally related to the
employment resulting in a loss of wage-earning capacity); Maurice E. King, 6 ECAB 35 (1953).
15

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

16

Gaeten F. Valenza, 39 ECAB 1349 (1988); James L. Hearn, 29 ECAB 278 (1978).

17

5 U.S.C. § 8123(a).

5

no loss of wage-earning capacity as a result of the accepted aggravation of his left foot plantar
fibromatosis.
The Office determined that appellant had regained his capacity, notwithstanding the 1986
injury, to earn the wages he was receiving at the time of injury. As a consequence, apart from
some limited periods of disability, appellant would not be entitled to compensation for wage loss
absent a modification of the 1996 wage-earning capacity decision.
In 2008, the employer withdrew appellant’s limited duty. A “recurrence of disability”
includes an inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his work-related injury or illness is
withdrawn.18 However, when a formal wage-earning capacity decision has been issued, as was
the case here, that decision remains in place and any claim of disability should be treated as a
request for modification of the wage-earning capacity decision, not as a recurrence of disability.
The fact that the employer withdrew appellant’s limited duty in 2008 did not establish an
entitlement to compensation for wage loss. Compensation for wage loss is based upon loss of
the capacity to earn, not on actual wages lost.19 Absent a modification of the 1996 wage-earning
capacity decision, appellant should not have received compensation for wage loss following the
withdrawal of his limited duty. His capacity to earn wages was already established.
When the Office terminated appellant’s benefits on July 15, 2009 he had no entitlement
to wage-loss compensation. The only issue on which it could properly terminate was his
entitlement to medical benefits for the 1986 work injury. The Office found that the opinion of
Dr. Kelman, the referral orthopedic surgeon, represented the weight of the medical evidence and
established that the temporary aggravation caused by prolonged walking and standing ceased
after appellant stopped his usual and customary duties as a letter carrier in the 1980s.
Appellant did not appeal the termination decision to the Board. Instead, he requested
reconsideration and submitted additional medical evidence and argument to support his
entitlement to continuing medical benefits. The burden thus falls to appellant to establish that his
current plantar fibromatosis is causally related to his 1986 work injury.
In an August 25, 2009 report, Dr. Cantor, appellant’s podiatrist, opined that extended
periods of standing and walking long distances in federal employment exacerbated appellant’s
foot condition. The Office accepted that long periods of standing and walking as a letter carrier
caused an aggravation of his plantar fibromatosis. The issue raised by Dr. Kelman and the
Office’s termination is whether the accepted aggravation ceased when appellant was no longer
exposed to prolonged standing and walking, such that his developmental plantar fibromatosis
returned to its baseline progression without clinical evidence of a material worsening.

18

20 C.F.R. § 10.5(x) (except when such withdrawal occurs for reasons of misconduct, nonperformance of job
duties or a reduction-in-force).
19

Roy Mathew Lyon, 27 ECAB 186 (1975).

6

Dr. Cantor did not discuss this issue. He gave no indication that he was aware that
appellant had stopped his regular letter carrier duties in 1988 to begin limited duty without much
walking or that appellant had accepted a modified assignment in 1996 as a call center associate,
which was essentially a sedentary customer service position or that appellant’s modified carrier
position in 2003 complied with the four-hour standing limitation Dr. Cantor prescribed in 2006.
Dr. Cantor gave the impression that appellant continued to spend an extended period of time
sorting the mail and then walking long distances while delivering. When appellant complained
in June 2009 that his foot pain became much more intense after standing and walking more than
four hours, Dr. Cantor did not acknowledge that appellant had been without work for about a
year. Dr. Canton recommended, as though appellant was still working, that appellant avoid any
work-related duties requiring standing or walking more than one hour at a time. Medical
conclusions based on inaccurate or incomplete histories are of diminished probative value.20
Because Dr. Cantor did not base his opinion on a proper factual history, his opinion carries
reduced probative weight.21
Dr. Cantor did not review or disagree with Dr. Kelman’s analysis. Because his opinion is
of diminished probative value on the issue of causal relationship, the Board finds that it is
insufficient to create a conflict with Dr. Kelman to warrant referral to an impartial medical
specialist under section 8123(a) of the Act.
The Board finds that appellant has not met his burden to establish that his current plantar
fibromatosis is causally related to his 1986 work injury. The Board will therefore affirm the
Office’s April 5, 2010 decision denying compensation for medical benefits.
On appeal, appellant’s representative argues that the Office improperly terminated
benefits without resolving the conflict in medical opinion. As noted, the Board finds that
Dr. Cantor’s opinion is insufficient to create a conflict. The representative argues that the Office
did not meet its burden of proof. However, as the Office had already determined appellant’s
wage-earning capacity and terminated his compensation for medical benefits, the burden on
reconsideration shifted to him to establish that his current foot condition was causally related to
the 1986 work injury. As for the representative’s argument that the employer should have
reemployed appellant and the Office should have provided vocational rehabilitation, these are
not issues adjudicated by the Office’s April 5, 2010 decision and are not properly before the
Board.22 The Board has no jurisdiction to review these matters.

20

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
21

Dr. Cantor did not explain how appellant’s duties as a letter carrier in the 1980s could have caused a heel spur
in 2008, when no such heel spur was noted on x-rays obtained in 2003. Medical conclusions unsupported by
rationale are also of little probative value. Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor,
6 ECAB 968 (1954).
22

See 20 C.F.R. § 501.2(c).

7

CONCLUSION
The Board finds that appellant has not met his burden to establish that his current plantar
fibromatosis is causally related to his 1986 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 5, 2010 decision of the Office of
Workers’ Compensation Programs is set aside on the issue of wage-loss compensation and is
otherwise affirmed.
Issued: April 13, 2011
Washington, DC

Richard J. Daschbach, 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
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Aliquippa, PA, Employer
__________________________________________

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

Docket No. 09-2267
Issued: September 13, 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 September 10, 2009 appellant filed a timely appeal of a March 27, 2009 decision of
the Office of Workers’ Compensation Programs denying her claim for compensation and a
July 24, 2009 decision denying her request for an oral hearing. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a traumatic injury on September 24, 2008 in the performance of duty; and (2) whether
the Office properly denied appellant’s request for an oral hearing as untimely filed.
FACTUAL HISTORY
On September 25, 2008 appellant, then a 30-year-old letter carrier, filed a traumatic
injury claim alleging that on September 24, 2008 she sustained a disc protrusion of the neck and
shifting of the vertebrae from carrying weight on her shoulders while delivering mail against her

physician’s orders. She stopped work on September 24, 2008.1 The employing establishment
controverted the claim indicating that appellant did not follow the instructions of her supervisor
and physician with regard to her work restrictions and limitations.
In a September 25, 2008 statement, appellant noted that on the previous day her
supervisor told her to carry mail on a route for two hours. She informed her supervisor that she
was under her physician’s orders not to carry anything continuously on her shoulders.
Appellant’s supervisor indicated that her modified-duty offer noted she could carry 10 pounds
intermittently. Appellant stated that during her route she alternated carrying mail on each
shoulder as to alleviate pressure on a single spot. She indicated that after completing the route,
she developed soreness in her neck and lower back with leg weakness.
On October 3, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit such evidence.
In an October 23, 2008 statement, appellant indicated that she was mistakenly given
Form CA-1, claim for traumatic injury, to fill out. She explained that the claimed September 24,
2008 work incident aggravated a work injury originally sustained on August 15, 2008 and was
not a new injury.2 Appellant explained that her physician advised no continuous carrying and
lifting over 10 pounds. On September 24, 2008 her supervisor told her to carry and deliver mail
for two hours without a mailbag to keep the weight off of her shoulders. Appellant indicated that
this was too much continued weight for her shoulders and that after she finished her route she
had right shoulder, neck and lower back pain. She also submitted an October 24, 2008
statement, from an office manager for her treating physician who indicated that the employing
establishment mistakenly gave appellant Form CA-1 for her emergency room visit instead of a
Form CA-2a, recurrence of disability form.
In a September 24, 2008 x-ray report of appellant’s lumbosacral spine, Dr. Felice
Esposito, a Board-certified diagnostic radiologist, found no acute osseous abnormality and
suggestion of mild intervertebral disc space narrowing at L5-S1 that may be related to
degenerative disc disease. In a cervical spine x-ray report of the same date, Dr. Esposito found
normal lateral views. On October 16, 2008 Dr. Hank Markowitz, a Board-certified diagnostic
radiologist, found that an x-ray of appellant’s acromioclavicular (AC) joint revealed very
minimal movement within the right AC joint. He also found no significant acute abnormality.
In a September 25, 2008 work status report, Dr. Jose Sia, a family medicine specialist and
a treating physician, advised no carrying, lifting or reaching with weight, not even intermittently.
In a November 7, 2008 decision, the Office denied appellant’s claim finding that, as the
alleged incident occurred due to appellant’s willful misconduct, the incident was not considered
within the performance of duty.
1

The record does not indicate whether or when appellant returned to work.

2

On September 20, 2008 appellant accepted a modified-duty assignment following an August 15, 2008 work
incident for which she filed a claim. Any claim regarding the August 15, 2008 incident or injury is not before the
Board on the present appeal. This decision does not preclude appellant from pursuing any other claim she may have
filed with the Office.

2

Appellant requested an oral hearing on November 24, 2008. She also submitted a
September 24, 2008 hospital report from Dr. Luigi Forcella, Board-certified in family medicine,
who noted appellant’s complaint of back and neck pain status post a neck injury two months
prior. Dr. Forcella noted appellant had been lifting over 10 pounds at work and reported a
protruding cervical disc between C5-6. He also noted that appellant had been restricted to
limited weight carrying of 10 pounds but had been instructed by her supervisor to carry 20 to 30
pounds. Appellant subsequently reported severe pain from her neck to lower back as well as
weakness in both legs.
In a December 9, 2008 x-ray report of appellant’s abdomen, Dr. Craig Trent, a Boardcertified diagnostic radiologist, found no acute process and normal bowel gas pattern. He also
noted no change from December 1, 2008.
In a February 17, 2009 decision, an Office hearing representative, vacated the
November 7, 2008 decision and remanded the case to the Office to adjudicate the claim. He
found that the case was not in posture for a hearing as the Office did not establish that appellant
was culpable of willful misconduct.
In a March 27, 2009 decision, the Office denied appellant’s claim finding that the
medical evidence did not establish causal relationship to the established work-related events.
In a postmarked envelope dated May 3, 2009, appellant requested an oral hearing on a
form dated April 20, 2009.
In a decision dated July 24, 2009, an Office hearing representative denied appellant’s oral
hearing request finding that it was not filed within 30 days from the March 27, 2009 decision.
He further found that appellant’s claim could be equally well addressed by requesting
reconsideration.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; that the claim was filed
within the applicable time limitation; that an injury was sustained while in the performance of
duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
3

5 U.S.C. §§ 8101-8193.

4

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

experienced the employment incident at the time, place and in the manner alleged. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.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 which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.6
ANALYSIS -- ISSUE 1
The record reflects that on September 24, 2008 appellant carried mail on her shoulders
while delivering mail. However, the medical evidence does not establish that the September 24,
2008 incident caused or aggravated appellant’s alleged neck, back and leg conditions.
In a September 24, 2008 report, Dr. Forcella noted appellant’s complaint of back and
neck pain from a neck injury that she sustained two months prior. He also noted that appellant’s
present neck, back and leg pain was from lifting above the weight limit advised by her primary
care physician. However, Dr. Forcella generally attributed appellant’s conditions to “lifting” but
did not specify what appellant lifted or explain how lifting caused or aggravated his neck, back
or leg conditions on September 24, 2008.7 Moreover, he did not provide a diagnosis for any of
appellant’s alleged conditions. Although Dr. Forcella noted that appellant’s complaint of pain,
pain is a symptom and not a compensable medical diagnosis.8
Similarly, Dr. Sia’s September 25, 2008 work status report advised no carrying, lifting or
reaching but did not address the reasons for these work restrictions or explain whether these
restrictions were caused by a work-related incident. As noted, medical evidence without an
opinion on causal relationship is of limited probative value.
Appellant also submitted reports of diagnostic testing from Drs. Esposito, Markowitz and
Trent. However, these reports are insufficient to establish appellant’s claim as they do not

5

Id.

6

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
7

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
8

See C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

4

address the issue of causal relationship; i.e., they do not address whether carrying mail on
September 24, 2008 caused or aggravated a diagnosed medical condition.9
The record also contains an October 24, 2008 statement from Dr. Sia’s office manager
opining that on September 24, 2008 appellant aggravated a preexisting injury originally
sustained on August 15, 2008. As lay individuals are not competent to render medical opinions
under the Act, this statement has no probative value.10
For these reasons, appellant did not submit sufficient medical evidence to establish that
she sustained a traumatic injury on September 24, 2008 in the performance of duty.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant not satisfied with a decision of the
Office is entitled to a hearing before an Office hearing representative when the request is made
within 30 days after issuance of the Office’s decision.11 Under the implementing regulations, a
claimant who has received a final adverse decision by the Office is entitled to a hearing by
writing to the address specified in the decision within 30 days (as determined by postmark or
other carrier’s date marking) of the date of the decision for which a hearing is sought.12 If the
request is not made within 30 days or if it is made after a reconsideration request, a claimant is
not entitled to a hearing or a review of the written record as a matter of right.13
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing. The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.14
ANALYSIS -- ISSUE 2
The Office issued its decision denying appellant’s claim on March 27, 2009. Appellant’s
request for an oral hearing was postmarked May 3, 2009.15 Because the hearing request was
made more than 30 days after the March 27, 2009 decision, the Board finds that the Office
9

See supra note 7.

10

See David P. Sawchuk, 57 ECAB 316 (2006).

11

5 U.S.C. § 8124(b)(1).

12

20 C.F.R. § 10.616(a); 5 U.S.C. § 8124(b)(1).

13

Teresa Valle, 57 ECAB 542 (2006).

14

D.E., 59 ECAB ___ (Docket No. 07-2334, issued April 11, 2008).

15

The hearing request must be sent within 30 days (as determined by postmark or other carrier’s date marking) of
the date of the decision for which a hearing is sought. 20 C.F.R. § 10.616(a).

5

properly denied appellant’s request for a hearing as untimely filed. Appellant is not entitled to a
hearing as a matter of right. The Board has held that section 8124(b)(1) is unequivocal in setting
forth the time limitation in requests for hearing.16
The Office exercised its discretionary authority under section 8124 in considering
whether to grant a hearing. It found that appellant’s request could be equally well addressed
through a request for reconsideration under section 8128 and the submission of new evidence.
The Board has held that it is an appropriate exercise of discretion for the Office to apprise
appellant of the right to further proceedings under the reconsideration provisions of section
8128.17 The Board finds that the Office properly exercised its discretion in denying appellant’s
request for an oral hearing as untimely.18
On appeal, appellant asserts that her claim has been wrongfully denied because she
mistakenly filled out two new claims within a month of each other when the original injury is
August 15, 2008, and on September 24, 2008 she sustained pain after carrying mail on her
shoulders against her physician’s orders. However, the actual issue in the present case is
whether she met her burden of proof to establish whether she sustained a traumatic injury on
September 24, 2008 that caused or aggravated a diagnosed medical condition. The issue is
medical in nature, and as noted, the medical evidence did not support causal relationship between
appellant’s claimed neck, back and leg conditions and carrying mail on September 24, 2008.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a traumatic injury on September 24, 2009 in the performance of duty. The Board also
finds that the Office properly denied her request for an oral hearing as untimely filed.

16

Ella M. Garner, 36 ECAB 238 (1984); Charles E. Varrick, 33 ECAB 1746 (1982).

17

See André Thyratron, 54 ECAB 257 (2002).

18

The Board notes that, after the Office’s March 27, 2009 decision, appellant submitted additional evidence to the
record. However, as the Office did not consider this evidence in reaching a decision, the Board may not consider it
for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated July 24 and March 27, 2009 are affirmed.
Issued: September 13, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 14-1031
Issued: October 28, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On April 1, 2014 appellant filed a timely appeal of a January 14, 2014 Office of Workers’
Compensation Programs’ (OWCP) merit decision denying 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has more than seven percent impairment of her right lower
extremity for which she has received a schedule award.
FACTUAL HISTORY
On July 21, 1997 appellant, then a 29-year-old letter carrier, filed a traumatic injury claim
alleging that she developed right leg pain while descending stairs in the performance of duty on
July 9, 1997. OWCP accepted her claim for right knee sprain on October 22, 1997. Appellant
underwent an arthroscopy of the right knee with lateral release right patella, laser ablation, partial
1

5 U.S.C. § 8101 et seq.

lateral meniscectomy, shaving right patella, debridement and partial synovectomy. She returned
to light-duty work on April 10, 1999.2 By decision dated June 21, 2000, OWCP granted appellant
a schedule award for seven percent impairment of her right lower extremity.
An x-ray report dated June 9, 2004 demonstrated no evidence of loose bodies and showed
that the medial and lateral joint spaces were preserved. Appellant exhibited subchondral sclerosis
along the femoral surface of the patella. In a decision dated September 23, 2005, OWCP accepted
that she sustained a recurrence of disability on July 19, 2005. Appellant underwent a right knee
magnetic resonance imaging (MRI) scan on August 2, 2005 which did not demonstrate a
ligamentous or cartilaginous injury.
OWCP accepted the additional condition of right knee traumatic arthritis on April 4, 2011.
Appellant underwent an MRI scan on April 7, 2011 which was determined to be normal. In a
report dated March 7, 2012, appellant’s attending physician, Dr. Rida N. Azer, a Board-certified
orthopedic surgeon, opined that appellant had reached maximum medical improvement. He noted
appellant’s surgery and diagnosed traumatic arthritis with crepitus on knee flexion, extension and
patellofemoral compression as well as synovial thickening. Dr. Azer stated that x-rays showed
patellofemoral traumatic arthritic changes and medial and lateral compartmental changes. He
opined that appellant had 40 percent impairment of his right lower extremity.
On August 29, 2012 OWCP requested that OWCP’s medical adviser review appellant’s
claim for schedule award purposes. OWCP’s medical adviser noted that Dr. Azer did not provide
citations to the A.M.A., Guides in support of his impairment rating and that appellant’s MRI scan
was normal. He stated that joint space measurements were necessary to determine a permanent
impairment due to arthritis.
In a note dated December 19, 2012, Dr. Azer stated that appellant had pain in the right
knee and crepitus with knee flexion, extension and patellofemoral compression. He found
synovial thickening but no effusion. Dr. Azer stated that x-rays demonstrated subchondral
sclerosis over the femoral surface of the patella with narrowing of the medial joint space on weight
bearing view.
In a decision dated January 11, 2013, OWCP denied appellant’s claim for an additional
schedule award.
Appellant requested reconsideration on June 24, 2013. In a report dated March 20, 2013,
Dr. Azer stated that appellant had pain in her right knee with crepitus on flexion and extension and
on patellofemoral compression. He stated that appellant was tender over the medial joint line and
that she had weakness of the right quadriceps. Dr. Azer stated that x-rays of the right knee with
patellar views and weight bearing views showed narrowing of the medial and lateral joint spaces.
He reported that the patellofemoral joint space was narrowed to zero with subchondral sclerosis
and osteophytes. Dr. Azer stated that based on the sixth edition of the A.M.A., Guides appellant
had 40 percent impairment based on Table 16-2, Table 16-3, Table 16-5, Table 16-6, 1-10 and
Table 16-8.
2

Appellant filed a recurrence of disability claim on August 13, 2010 alleging ongoing symptoms related to her
July 9, 1997 employment injury. OWCP denied this claim by decision dated October 25, 2010. By decision dated
March 31, 2011, OWCP’s hearing representative affirmed OWCP’s October 25, 2010 decision.

2

OWCP’s medical adviser reviewed Dr. Azer’s report on September 12, 2013. He stated
that medial and lateral joint space measurements were not given and an objective basis for the
impairment could not be confirmed. The medical adviser noted that Dr. Azer found that appellant
had no cartilage interval in the patellofemoral joint which would be a 20 percent impairment of the
right lower extremity.3 He stated that appellant had an additional 13 percent impairment of the
right lower extremity. The medical adviser further recommended that a second opinion evaluation
be obtained to be sure that a fair lower extremity impairment rating was given.
OWCP referred appellant for a second opinion evaluation on October 30, 2013.
Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon, performed a second opinion
examination on behalf of OWCP on November 18, 2013. He noted that appellant reported
symptomatology of swelling and stiffness with occasional buckling in her right knee. Dr. Hanley
stated that appellant had joint space narrowing, but noted that there was no quantification of
appellant’s joint space. On physical examination, he found that appellant walked with a minimal
limp and exhibited full range of motion of her right knee. Dr. Hanley found intact ligaments, no
atrophy of the thigh and minimal crepitus of the patella. He noted that appellant’s MRI scan was
normal. Dr. Hanley found that appellant had reached maximum medical improvement. He
diagnosed history of knee sprain on the right, possible lateral meniscus tear surgically treated and
history of chondromalacia of the patella. Dr. Hanley applied the A.M.A., Guides and stated that
the accepted condition could utilize any of three different criteria. He found that appellant’s
condition should be classified as a partial medial or lateral meniscectomy with an impairment
rating of two percent. Dr. Hanley stated that he could not provide a rating for a sprain with the
development of joint space narrowing or patellofemoral arthritis as he was not provided with a
joint space interval. He concluded that the most reasonable criteria would be a meniscal injury,
with grade modifiers of 1 for functional history and physical examination as well as grade
modifier 0 for a normal MRI scan examination in clinical studies. Dr. Hanley found that
application of the formula under the A.M.A., Guides resulted in a negative grade modifier for
grade B under class 1, two percent impairment of the right lower extremity.4
OWCP’s medical adviser reviewed Dr. Hanley’s report on December 22, 2013 and
concurred with his findings. He reported that patellofemoral arthritis was noted by Dr. Hanley,
but that he did not have any joint space measurements to allow an accurate impairment rating
based on this problem.
By decision dated January 14, 2014, OWCP denied modification of its prior decision
finding that the medical evidence did not establish more than seven percent impairment of
appellant’s right lower extremity for which she had already received a schedule award.

3

A.M.A., Guides 511, Table 16-3.

4

Id. at 509, Table 16-3.

3

LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
of loss of use, of scheduled members or functions of the body. FECA, 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 matter which rests in the discretion of OWCP. 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. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.7 In addressing lower extremity impairments, the sixth edition requires identifying 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). The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).8
ANALYSIS
OWCP accepted that appellant sustained a right knee sprain, right knee with traumatic
arthritis and was treated with an arthroscopy of the right knee with lateral release right patella,
laser ablation, partial lateral meniscectomy, shaving right patella, debridement and partial
synovectomy.
Appellant’s attending physician, Dr. Azer opined that appellant had no
patellofemoral joint interval due to arthritis. He further stated that x-rays demonstrated
subchondral sclerosis over the femoral surface of the patella with narrowing of the medial and
lateral joint spaces. OWCP’s medical adviser noted that Dr. Azer did not provide the necessary
cartilage intervals in millimeters to determine appellant’s impairment due to knee arthritis in the
medial and lateral joints. With regard to the absence of a cartilage interval in the patellofemoral
joint, the medical adviser concluded based on Dr. Azer’s reports that appellant had 20 percent
impairment, which is the equivalent of a class 2 default grade C impairment.9 The medical adviser
further recommended a second opinion evaluation to determine the full extent of appellant’s
permanent impairment.
OWCP referred appellant to Dr. Hanley for a second opinion evaluation to determine the
extent of the permanent impairment of her right knee. Dr. Hanley stated that he was unable to
determine the procedures performed during appellant’s 1997 arthroscopy. He was also unable to
determine appellant’s cartilage intervals based on the evidence of record. On physical
examination, Dr. Hanley found that appellant walked with a minimal limp and exhibited full range
5

5 U.S.C. §§ 8101-8193, 8107.

6

20 C.F.R. § 10.404.

7

For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent
Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700, Exhibit 1 (January 2010).
8

A.M.A., Guides 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

9

Id. at 511, Table 16-3.

4

of motion of her right knee. He found intact ligaments, no atrophy of the thigh and minimal
crepitus of the patella. Dr. Hanley noted that appellant’s MRI scan was normal. He found that
appellant had reached maximum medical improvement. Dr. Hanley applied the A.M.A., Guides
and found that appellant’s condition should be classified as a partial meniscectomy with a default
impairment rating of two percent. He applied the net adjustment formula of (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX) to reach (1-1) + (1-1) + (0-1) or -1 and found that appellant had a
grade B or two percent impairment due to a partial meniscectomy. OWCP’s medical adviser
reviewed Dr. Hanley’s report on December 22, 2013 and concurred with his findings. The Board
finds that appellant has no more than seven percent impairment of her right lower extremity for
which she has received a 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 seven percent impairment of her right
lower extremity for which she has received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the January 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 28, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1792
Issued: April 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 24, 2010 appellant filed a timely appeal from a December 28, 2009 merit
decision of the Office of Workers’ Compensation Programs granting her a schedule award.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than a six percent permanent impairment of the
left lower extremity or any impairment of the right lower extremity.
FACTUAL HISTORY
On November 15, 1999 appellant, then a 48-year-old rural mail carrier, filed an
occupational disease claim alleging that she sustained pain in her back and leg due to factors of
her federal employment. She stopped work on November 17, 1999. The Office accepted
1

5 U.S.C. § 8101 et seq.

appellant’s claim for spondylolysthesis and acquired spondylolysthesis.
appellant underwent a laminectomy at L4-5.2

On May 24, 2006

In a report dated December 4, 2006, Dr. Mark Nelson, a Board-certified orthopedic
surgeon, related that appellant’s condition was permanent and stationary. He diagnosed chronic
lumbar strain and degenerative spondylolistehsis at L4-5 and spondylolysis at L5-S1. Dr. Nelson
discussed appellant’s complaints of low back pain radiating into her left buttock and thigh. He
measured motor strength of the lower extremity as 5/5 and noted that she complained of
decreased sensibilities in the left L5 and S1 distribution. Dr. Nelson found that, according to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001) (A.M.A., Guides), appellant had a 22 percent permanent impairment of the whole person
due to an impairment of her lumbar spine.
On June 5, 2007 an Office medical adviser applied the A.M.A., Guides to Dr. Nelson’s
clinical findings. He found that appellant had a Grade 3 or 60 percent, impairment due to pain
according to Table 15-15 on page 424 of the fifth edition of the A.M.A., Guides. The Office
medical adviser then determined that she had the maximum impairment of 5 percent for loss of
sensation at both L5 and S1 on the left, which he multiplied by the 60 percent for graded pain to
find a 6 percent left lower extremity impairment. He found no impairment of the right lower
extremity as appellant had no clinical findings demonstrating an impairment on that side. The
Office medical adviser opined that she reached maximum medical improvement on
December 4, 2006.
By decision dated March 12, 2009, the Office granted appellant a schedule award for a
six percent permanent impairment of the left lower extremity. It further found that she did not
have a permanent impairment of the right lower extremity.
On April 8, 2009 appellant requested an oral hearing. On October 13, 2009 she changed
her request to a review of the written record.
By letter dated November 16, 2009, appellant requested that the Office consider the
October 13, 2009 report from Dr. Jacob E. Tauber, a Board-certified orthopedic surgeon, in
support of her schedule award claim. Dr. Tauber diagnosed status post lumbar laminectomy and
fusion with sciatica. On physical examination, he found decreased sensation in the left foot and
4/5 strength of the gastroc soleus, extensor hallucis longus and left anterior tibialis musculature.
Dr. Tauber opined that appellant had a right positive straight leg raise and right calf atrophy
consistent with a right nerve root impairment at L4, L5 and S1. He found no motor deficit on the
right. On the left side, Dr. Tauber found a sensory and motor deficit at L4, L5 and S1. He
asserted that appellant’s clinical findings were “significantly worse” than those described by the
Office medical adviser. Utilizing the fifth edition of the A.M.A., Guides, Dr. Tauber determined
that she had a 15 percent permanent impairment of the right lower extremity due to sensory
deficit at L4, L5 and S1 and a 33 percent impairment of the left lower extremity due to a sensory
and motor deficit at L4, L5 and S1.
2

By decision dated November 6, 2008, the Office reduced appellant’s compensation effective November 23,
2008 based on its finding that she had the capacity to earn wages as a paralegal. Appellant elected to receive
retirement benefits effective January 1, 2009.

2

By decision dated December 28, 2009, an Office hearing representative affirmed the
March 12, 2009 decision. He found that Dr. Tauber’s report was insufficient to establish a
greater impairment as it was based on the fifth rather than the sixth edition of the A.M.A.,
Guides.
On appeal appellant contends that Dr. Tauber used the fifth edition of the A.M.A., Guides
to rebut the opinion of the Office medical adviser. She argues that the fifth edition of the
A.M.A., Guides should apply as her claim was adjudicated prior to May 1, 2009.
LEGAL PRECEDENT
The schedule award provision of the Act3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
the Act does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1,
2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
Office procedures provide that, effective May 1, 2009, all schedule awards are to be
calculated under the sixth edition of the A.M.A., Guides. Further, any recalculations of previous
awards which result from hearings or reconsideration decisions issued on or after May 1, 2009,
should be based on the sixth edition of the A.M.A., Guides.7
After obtaining all necessary medical evidence, the file should be routed to the Office
medical adviser for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the Office medical adviser providing rationale for the
percentage of impairment specified.8
ANALYSIS
The Office accepted that appellant sustained spondylolysthesis and acquired
spondylolysthesis due to factors of her federal employment. Appellant underwent a
laminectomy at L4-5 on May 24, 2006. She submitted a December 4, 2006 impairment
evaluation from Dr. Nelson, who found that she had a 22 percent whole person impairment due
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

See C.K., Docket No. 09-2371 (issued August 18, 2010).

8

Supra note 6 at Chapter 2.808.6(d) (August 2002); C.K., id.

3

to her lumbar spine condition. The Act, however, does not provide for impairment of the whole
person.9 On June 5, 2007 an Office medical adviser applied the fifth edition of the A.M.A.,
Guides to Dr. Nelson’s findings and concluded that appellant had a six percent permanent
impairment of the left lower extremity due to sensory loss at L5 and S1 on the left side. On
March 12, 2009 the Office granted appellant a schedule award for a six percent permanent
impairment of the left lower extremity based on the Office medical adviser’s June 5, 2007
opinion. It further found that she was not entitled to a schedule award for the right lower
extremity.
Appellant requested a review of the written record and submitted an October 13, 2009
impairment evaluation from Dr. Tauber, who found loss of sensation in the left foot and a loss of
strength of the left leg. On the right side, Dr. Tauber found a positive straight leg raise and
atrophy of the right calf corresponding to an L4, L5 and S1 nerve root impairment. He opined
that appellant’s condition had significantly worsened since the Office’s medical adviser rendered
his opinion. Dr. Tauber applied the fifth edition of the A.M.A., Guides and determined that she
had a 33 percent permanent impairment of the left lower extremity and a 15 percent permanent
impairment of the right lower extremity. An Office hearing representative determined that his
report was insufficient to show that appellant had a greater permanent impairment of the left
lower extremity or any permanent impairment of the right lower extremity as he based his
opinion on the fifth edition of the A.M.A., Guides. The hearing representative did not refer
Dr. Tauber’s report to an Office medical adviser for review.
While the claimant has the burden of establishing the extent of impairment due to an
accepted injury, the Office shares responsibility in the development of the evidence.10 As noted
Office procedures provide that, after obtaining all necessary medical evidence, the file should be
routed to the Office medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the Office medical adviser providing
rationale for the percentage of impairment specified.11 Dr. Tauber provided a detailed report
with a current description of decreased strength and sensory deficit sufficient to warrant review
by an Office medical adviser.12 The case will be remanded for the Office to forward
Dr. Tauber’s report to the Office medical adviser to determine whether it is adequate evidence to
support a schedule award under the sixth edition of the A.M.A., Guides. Following such further
development as the Office deems necessary, it should issue a de novo decision.
On appeal, appellant argues that her impairment should be evaluated under the fifth rather
than the sixth edition of the A.M.A., Guides. The sixth edition of the A.M.A., Guides, however,
is to be used in rating impairments for schedule award decisions issued after May 1, 2009.13

9

See N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

10

See D.N., 59 ECAB 576 (2008).

11

Supra note 9.

12

See B.M., Docket No. 09-2231 (issued May 14, 2010).

13

See supra note 7.

4

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 28, 2009 is set aside. The case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: April 12, 2011
Washington, DC

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

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

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

5