United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-825
Issued: November 18, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 9, 2009 appellant, through her representative, filed a timely appeal from the
November 3, 2008 merit decision an the Office of Workers’ Compensation Programs’ hearing
representative who affirmed the termination of her compensation for cervical sprain. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUES
The issues are: (1) whether the Office has met its burden to terminate appellant’s
compensation for the accepted medical condition of cervical sprain; and (2) whether appellant
has met her burden to establish that the work incident on June 17, 2005 caused another medical
condition, such as a disc herniation at C3-4 with radiculopathy, a permanent aggravation of her
degenerative disc disease or a spinal cord injury.

FACTUAL HISTORY
On June 20, 2005 appellant, then a 44-year-old transportation security screener, filed a
claim alleging that she sustained a traumatic injury to her right arm, shoulder and neck on
June 17, 2005 while loading luggage onto an x-ray machine. She described a pulling sensation
in the right shoulder and neck to the fingertips.
On June 28, 2005 Dr. Devin K. Datta, a Board-certified orthopedic surgeon, reported that
appellant was over one year status post C5-7 anterior cervical discectomy and fusion. He stated
that she did very well from the operation with significant improvement of both neck and arm
pain. Appellant recently had a work-related injury, following which she had significant neck,
right-sided numbness, tingling and pain going into her right posterolateral shoulder and arm,
somewhat similar to her previous symptoms. Dr. Datta diagnosed status post C5-7 anterior
cervical discectomy and fusion, mild degenerative disc disease C3-5, and “new onset of neck and
right arm pain.” He recommended a magnetic resonance imaging (MRI) scan to rule out any
new disc herniations, and in the meantime he took appellant off work.
On July 25, 2005 Dr. Datta reviewed appellant’s MRI scan and noted an unusual
abnormality on the posterior aspect of the spinal cord at approximately the C4-5 level. He stated
that it represented either a focal collection of hemosiderin or capillary telangiectasia, unlikely
spinal cord tumor or previous injury. Compared to appellant’s April 2004 MRI scan, Dr. Datta
saw a slight increase on the T2 images with some bright seen on that exact same spot, “which
may indicate something preexisting.” He diagnosed status post discectomy, mild degenerative
disc disease, and now, spinal cord abnormality at the C4-5 level.
On August 22, 2005 Dr. Datta reported that all of appellant’s symptoms worsened after
June 17, 2005, “in which she sustained an injury at work.” Prior to that appellant had cervical
surgery from which she did extremely well. Dr. Datta’s diagnoses included “[w]ork-related
injury with increased neck and bilateral arm pain.” He reported that appellant had a new injury
at work that caused significant problems with her neck that he was working on the abnormality
seen. Dr. Datta stated: “Clearly, [appellant] was doing fine up until the June 17, 2005, injury
and had significant neck and arm symptoms that were new and different than anything she has
experienced in the past.” He recommended keeping appellant off work. On January 31, 2006
Dr. Datta addressed the issue of causal relationship:
“I have read the statement dated January 9, 2006 prepared by [appellant]
regarding the injury sustained on June 17, 2005. The statement explains the
activity which [she] was performing at the time of injury which occurred on
June 17, 2005. I have diagnosed [appellant] with a disc herniation at C3-4 with
radiculopathy into both arms, and aggravated degenerative disc disease. I believe
the diagnosis of herniated disc at C3-4 with radiculopathy is a new condition and
that the degenerative disc disease is a permanent aggravation caused by the
accident that occurred on June 17, 2005, while performing the duties discussed in
the statement prepared by [her]. Although [appellant] has a preexisting condition
in the cervical region, she was able to perform her duties with the [employing
establishment]. Since the new injury her MRI [scan] films have changed and she
is no longer capable of performing her duties. I arrived at my opinion by

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reviewing the MRI [scan] films of July 7, 2005, September 7, 2005, and films
taken prior to the above-referenced date of accident. I reviewed x-ray films and
examined the patient. I believe that the diagnosed conditions are permanent and
at this time the patient is unable to work.”
The Office referred appellant, together with the case record, to Dr. Stephen R. Gott, a
Board-certified orthopedic surgeon, for a second opinion on whether she sustained a cervical
condition causally related to the June 17, 2005 work incident. On June 29, 2006 Dr. Gott
reviewed appellant’s history of injury, prior history of neck injury and current complaints. He
also reviewed her medical records, including the MRI scans, Dr. Datta’s reports and current
x-rays. After describing his findings on physical examination, he diagnosed (1) cervical strain
without additional neurocompressive injury secondary to work-related injury of June 17, 2005,
and (2) status post prior anterior cervical fusion.
Dr. Gott reported that he did not identify any new neurocompressive pathology that might
have resulted from the June 17, 2005 injury. He stated that the disc osteophyte complex seen at
C6-7 in the MRI scans of July and September 2005 was a residual of her prior surgery. Dr. Gott
noted that appellant related the chronic weakness in her right upper extremity to the weakness
that occurred following her first disc injury in 2004. He found she was capable of light duty with
restrictions of no lifting greater than 15 pounds “relative to her injury of June 17, 2005.”
Dr. Gott added that appellant was reaching a point of maximum medical improvement relative to
her June 17, 2005 injury with a three percent permanent impairment related to that date of injury.
On August 22, 2006 the Office accepted appellant’s claim for a cervical sprain.
Appellant received compensation for temporary total disability on the periodic rolls.
On March 19, 2007 Dr. Sachin R. Shenoy, an attending Board-certified neurologist,
reviewed her records. He noted that the 2004 MRI scan showed no evidence of a spinal cord
injury or spinal cord compression, but the post-injury MRI scan in July 2005 suggested a signal
abnormality at C4-5, which reflected focal hemosiderin deposits consistent with a spinal cord
trauma. Appellant did not have symptoms after the initial surgery to explain this lesion.
“Therefore, based on the MRI scans, I feel that it is most likely that [appellant] suffered a spinal
cord injury at the second incident on June 17, 2005. All of her symptoms that she describes
today are probably as a result of the spinal cord injury.”
The Office found a conflict in medical opinion between appellant’s physicians and
Dr. Gott. It referred appellant, together with the record and a statement of accepted facts, to
Dr. Rudolf A. Hofmann, a Board-certified orthopedic surgeon, for an impartial medical
evaluation.
On September 11, 2007 Dr. Hofmann reviewed appellant’s history and present
symptoms. He noted that the accepted condition was neck sprain. Dr. Hofmann described
findings on physical examination and reviewed her medical record. He stated that appellant had
been extensively evaluated, and physical examinations mentioned upper extremity radiculopathy
and cervical myelopathy; however, no clinical neurologic objective findings consistent with a
diagnosis of cervical radiculopathy or myelopathy were documented in the medical records or
were present on the current physical examination.

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Dr. Hofmann stated that, without a history of significant change in activity or further
injury, appellant had an increase in neck symptoms in July 2007 associated with difficulty
swallowing and swelling in the anterior neck region. MRI scan findings of an increased soft
tissue signal anterior to the C4 vertebral body and C4-5 disc and laboratory tests were consistent
with an inflammatory disorder. This, he stated, was interpreted as adjacent segment
deterioration: “The contemporary literature no longer associates adjacent segment deterioration
with prior fusion of a neighboring segment but interprets it as an expression of an underlying
multi segment progressive spinal degenerative disorder.”
With respect to the spinal cord lesion seen opposite the upper body of C5, Dr. Hofmann
noted that appellant’s five MRI scans were taken with different equipment and different
techniques. The April 2004 MRI scan did not describe a signal abnormality within the cervical
cord, and the July 2005 MRI scan did not describe typical recent trauma changes, such as cord
edema or cord hemorrhage. He stated:
“If an acute injury occurred on June 17, 2005 leading to an injury of the spinal
cord it would be unlikely that by July 7, 2005 no other signs of recent injury
would be present (such as edema or hemorrhage of the adjacent structures). The
mechanism of injury of lifting baggage is not consistent with a significant injury
to the spinal cord in the absence of a spinal compressive lesion at the level of the
lesion. The more likely scenario is the progression of the degeneration of the disc
at C4-5 adjacent to the prior fusion from C5 to C7. [Appellant’s] clinical course
of no improvement since June 17, 2005 and the spontaneous worsening in July of
2007 is also more consistent with a gradual degenerative condition than a one
time injury on June 17, 2005.”
Dr. Hofmann concluded that appellant’s subjective findings of neck pain, made worse by
use of the upper extremities with a painfully limited range of motion of the cervical spine but no
objective neurological deficit, was consistent with the objective findings of degeneration of the
disc at C4-5, which on MRI scan was characterized by a disc/osteophyte protrusion at C4-5 and
recent inflammation of the C4-5 disc and prevertebral soft tissue. It was his opinion that the
signal abnormality within the spinal cord at the level of C5, first appreciated on the July 7, 2005
MRI scan, was more likely due to the prior anterior cervical fusion from C5 to C7 in 2004 rather
than to an injury within approximately three weeks prior to July 7, 2005.
Dr. Hofmann reported that appellant had no current objective residuals remaining as a
result of the June 17, 2005 injury. “A specific anatomic structure which was injured on June 17,
2005 has not been identified.” All the changes seen on x-ray and MRI scan were either related to
her prior surgery or degenerative. None of the changes seen on imaging studies were specific for
a traumatic condition. The same was true of her clinical findings. Dr. Hofmann added that,
based on the demonstrated progressive degeneration of the C4-5 disc, consistent with her
subjective symptoms, appellant was not able to engage in work without restrictions.
In an addendum dated October 18, 2007, Dr. Hofmann clarified that, based solely on the
allowed condition of neck sprain, appellant would be able to return to her job as a transportation
security screener as described in the statement of accepted facts. Appellant’s work restrictions

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were due to the preexisting progressive degenerative condition of her cervical spine, particularly
at C4-5. They were not required as a result of the June 17, 2005 injury.
The Office determined that Dr. Hofmann’s opinion created a conflict with Dr. Datta on
the issue of disability causally related to the work injury. It referred appellant, together with the
case record and a statement of accepted facts, to Dr. Pietro Seni, a Board-certified orthopedic
surgeon, for an impartial evaluation of her continuing disability.
On January 23, 2008 Dr. Seni related appellant’s history and present symptoms. He
described his findings on physical examination and reviewed appellant’s medical record.
Dr. Seni reported that appellant’s physical examination was completely within normal limits.
Appellant did not demonstrate restriction of the neck muscles. There were no current objective
findings to support that continuing residuals of the accepted neck sprain were still present and
active. “It is my opinion the accepted condition has resolved entirely.” Dr. Seni noted that a
neck sprain should not last more than 60 days maximum. The average for a light injury was 17
days. “Obviously this injury occurred two and a half years ago and it is my opinion that a plain
sprain/strain should have resolved in the time allowed according to the [Official Disability
Guidelines]. Even the most severe sprain/strain should have resolved within 60 days maximum.”
On March 13, 2008 the Office notified appellant that it proposed to terminate her
compensation benefits on the grounds that the weight of the medical evidence, represented by the
opinions of Dr. Hofmann and Dr. Seni, established that her work-related cervical strain had
resolved, that she had no residuals of her work injury, that she was no longer disabled. It noted
that any restrictions she needed were due to her nonwork-related neck condition, including the
2004 surgery.
In a decision dated April 29, 2008, the Office terminated appellant’s compensation
effective that date. Appellant requested a telephonic hearing before an Office hearing
representative, which was held on August 26, 2008.
In a decision dated November 3, 2008, the Office hearing representative affirmed the
termination of appellant’s compensation for the accepted cervical sprain. The hearing
representative found that the weight of the medical evidence rested with Dr. Seni.
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.1 Once the Office accepts a
claim, it has the burden of proof to justify termination or modification of compensation benefits.2
After it has determined that an employee has disability causally related to her federal

1

5 U.S.C. § 8102(a).

2

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

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employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.3
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for cervical sprain and paid compensation for
temporary total disability on the periodic rolls. It has the burden of proof to terminate benefits.
The Office accepted appellant’s claim on the basis of the opinion of Dr. Gott, the
orthopedic surgeon and second opinion physician. Appellant’s orthopedic surgeon, Dr. Datta,
was elusive about the nature of the injury or medical condition appellant sustained on
June 17, 2005. He reported vague diagnoses such as a new onset of neck and right arm pain, a
work-related injury with increased neck and bilateral arm pain, and a work-related injury
resulting in neck and arm pain. It was not until January 31, 2006 that Dr. Datta offered a specific
diagnosis of the employment injury: (1) disc herniation at C3-4 with radiculopathy into both
arms and (2) a permanent aggravation of degenerative disc disease. He reported that these were
caused by the accident on June 17, 2005. However, Dr. Datta did not explain how he came to
diagnose a disc herniation at C3-4 with radiculopathy. It was he who recommended an MRI
scan to rule out any new disc herniations. Dr. Datta stated in a January 31, 2006 report that he
reviewed the July 7 and September 7, 2005 MRI scan films. The former report makes no
reference to a disc herniation at that level, and the latter report states: “At C3-4, there is no
significant disc abnormality, central canal stenosis or neuroforaminal encroachment.” Dr. Datta
also did not explain what objective findings supported his view that appellant sustained an
aggravation of degenerative disc disease on June 17, 2005, nor did he explain why these
diagnoses did not appear in his reports until six months after the injury.
The Office obtained a second opinion. Dr. Gott examined appellant and reviewed her
record, including the reports and imaging studies generated by Dr. Datta. He could not identify
any new neurocompressive pathology that might have resulted from the June 17, 2005 injury.
The disc osteophyte complex seen at C6-7 in the MRI scans of July and September 2005 was a
residual of her first surgery, and appellant related the chronic weakness in her right upper
extremity to the weakness that occurred following her first disc injury in 2004. Dr. Gott was of
the opinion that appellant sustained cervical strain on June 17, 2005 without additional
neurocompressive injury. This appeared consistent with appellant’s history of injury and with
Dr. Datta’s observation that appellant did very well from her surgery in 2004, with significant
improvement of both neck and arm pain, and then suffered a new onset of pain on June 17, 2005.
The Office therefore accepted appellant’s claim for cervical sprain and paid compensation.
On January 23, 2008 Dr. Seni reported that appellant’s physical examination was
completely within normal limits. Appellant did not have restriction of the neck muscles on
examination. There were no current objective findings to support that continuing residuals of the
accepted neck sprain were still present and active. So it was Dr. Seni’s opinion that the accepted
condition had resolved entirely. Further, resolution of the accepted condition made broad sense
3

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).

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because he reasoned that a neck sprain should not last more than 60 days, according to official
disability guidelines, and appellant’s neck sprain occurred two and a half years earlier.
The Board finds that Dr. Seni’s opinion represents the weight of the medical evidence on
the issue of whether appellant continued to suffer from the accepted cervical sprain. It is
important to note that appellant’s physicians focused on other matters -- intervertebral discs,
radiculopathy, spinal cord injury -- and did not directly address whether appellant continued to
suffer from the accepted medical condition. So there was no conflict in medical opinion on this
particular issue. For this reason, Dr. Seni should not be regarded as an impartial medical
specialist but as a second opinion physician. Although appellant gave him a history of injury
that varied in small detail from her contemporaneous account, the Board finds that Dr. Seni had a
good factual and medical foundation of his opinion, and he offered what appears to be a sound
and rational medical opinion on the narrow issue of whether appellant continued to suffer from
the accepted cervical sprain. The Board will therefore affirm the Office hearing representative’s
November 3, 2008 decision affirming the termination of appellant’s compensation for the
accepted condition of cervical sprain.
On appeal, appellant’s attorney takes issue with Dr. Seni’s status as an impartial medical
specialist because he was partners with Dr. Hofmann, who previously examined appellant.4 But
Dr. Seni was not an impartial medical specialist on the issue of continuing residuals of the
accepted cervical sprain, and the letterhead of the two physicians does not demonstrate they were
partners.5 Appellant’s representative also takes issue with Dr. Seni’s statements with respect to
other medical conditions, but those statements are immaterial to the Office’s termination of
compensation for the accepted condition of cervical sprain. Counsel notes that Dr. Seni
inaccurately described what happened on July 17, 2005. Dr. Seni was simply relating what
appellant had told him, and he related this history only to explain how the mechanism of injury
was inconsistent with a spinal cord lesion, which again is immaterial to the question raised by the
Office’s termination of benefits. Counsel noted that appellant had a preexisting cervical fusion
and that her cervical condition was permanently aggravated by her accepted injury. However,
Dr. Seni was aware of appellant’s preexisting cervical condition and found no restriction of her
neck muscles on physical examination and no current objective findings to support that
continuing residuals of the accepted cervical sprain were still present and active. The weight of
medical opinion does not support appellant’s contentions.
LEGAL PRECEDENT -- ISSUE 2
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence,6
4

See Raymond E. Heathcock, 32 ECAB 2004 (1981) (holding that the Office could not use the report of one
physician to resolve a conflict in medical evidence because he was an associate of another physician previously
connected with the case, and therefore was not completely independent).
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The letterhead suggests that the Office found Dr. Hofmann and Dr. Seni through a service that networks
physicians in the Dayton area. It does not show that they are associates or partners in the same medical practice.
6

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

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including that she sustained an injury in the performance of duty and that her disability for work,
if any, was causally related to the employment injury.7
Causal relationship is a medical issue,8 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s opinion on whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated factors of
employment. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
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.10 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.11
ANALYSIS -- ISSUE 2
The Office that the weight of the medical evidence did not establish a causal relationship
between the work incident on June 17, 2005 and other suggested diagnoses. Appellant bears the
burden of proof to establish such a causal relationship and her entitlement to appropriate
compensation benefits.
As noted Dr. Datta’s opinion was unrationalized in addressing how the June 17, 2005
incident at work caused a disc herniation at C3-4 with radiculopathy into both arms and a
permanent aggravation of degenerative disc disease. This evidence had too little probative value
to support a conflict warranting referral to an impartial medical specialist. Dr. Datta also noted
what appeared to be a spinal cord abnormality at approximately the C4-5 level on MRI scan,
representing either a focal collection of hemosiderin or capillary telangiectasia. But he refrained
from associating this diagnosis with the June 17, 2005 work incident. After comparing
appellant’s April 2004 MRI scan, he reported that it might indicate something preexisting. So on
this point as well, Dr. Datta’s opinion did not establish a causal relationship to the work incident
on June 27, 2005.

7

Elaine Pendleton, 40 ECAB 1143 (1989); see Daniel R. Hickman, 34 ECAB 1220 (1983).

8

Mary J. Briggs, 37 ECAB 578 (1986).

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

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5 U.S.C. § 8123(a).

11

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

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Dr. Shenoy, appellant’s neurologist, reported that the 2004 MRI scan showed no
evidence of a spinal cord injury or spinal cord compression, but the postinjury MRI scan in
July 2005 suggested a signal abnormality at C4-5, which reflected focal hemosiderin deposits
consistent with a spinal cord trauma. Appellant did not have symptoms after the initial surgery
to explain the lesion. Dr. Shenoy concluded that it was most likely that she suffered a spinal
cord injury on June 17, 2005 and all of her current symptoms were probably a result of the spinal
cord injury.
This created a conflict with Dr. Gott, who reported that the June 17, 2005 incident caused
a cervical strain without neurocompressive injury. It was therefore appropriate for the Office to
refer appellant to Dr. Hofmann, a Board-certified orthopedic surgeon, for an impartial medical
evaluation pursuant to section 8123(a) of the Act.
The Office provided Dr. Hofmann with the case record and a statement of accepted facts
so he could base his opinion on a proper foundation. Dr. Hofmann examined appellant and
reviewed her record. He stated that no clinical neurologic objective findings consistent with a
diagnosis of cervical myelopathy were documented in the medical records or on appellant’s
current physical examination. Like Dr. Shenoy, Dr. Hofmann compared the April 2004 and
July 2005 MRI scans, but he came to a different conclusion. He agreed with Dr. Shenoy that the
April 2004 MRI scan did not describe a cord lesion, but neither did the July 7, 2005 MRI scan,
only three weeks after the employment injury, describe typical recent trauma changes.
Dr. Hofmann answered Dr. Shenoy’s conclusion by reasoning that if an acute injury occurred on
June 17, 2005 leading to an injury of the spinal cord, it would be unlikely that by July 7, 2005 no
other signs of recent injury would be present, such as edema or hemorrhage of the adjacent
structures. He also reasoned that the mechanism of injury of lifting baggage was not consistent
with a significant injury to the spinal cord in the absence of a spinal compressive lesion. In his
view, the signal abnormality first appreciated on the July 7, 2005 MRI scan was more likely due
to the prior anterior cervical fusion from C5 to C7 in 2004. Appellant’s symptoms were more
likely due to the progression of the degeneration of the disc at C4-5 adjacent to the prior fusion.
Her clinical course of no improvement since June 17, 2005 and the spontaneous worsening she
suffered in July 2007 was likewise consistent with a gradual degenerative condition than a onetime injury on June 17, 2005.
The Board finds that Dr. Hofmann’s opinion is based on a proper factual and medical
background and is sufficiently well reasoned that it must be accorded special weight in resolving
the conflict on whether the work incident on June 17, 2005 caused a spinal cord injury.
Appellant has not met her burden of proof on this point. Nor does the medical evidence establish
that the June 17, 2005 incident caused a herniated disc at C3-4 with radiculopathy or a
permanent aggravation of her degenerative disc disease.
On appeal, it was argued that Dr. Hofmann did not consider the effect a strain or sprain
would have on a preexisting surgical hardware type change and did not acknowledge that
appellant returned to work for approximately one year following her fusion surgery before
suffering an injury on June 17, 2005. The representative suggests a permanent aggravation.
However, Dr. Hofmann, a Board-certified orthopedic surgeon, acknowledged that appellant felt
better after her 2004 surgery, that follow-up x-rays showed a solidly-healed fusion, and that she
was able to return to work six weeks after the operation. Appellant worked until June 27, 2005.

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Dr. Hofmann based his opinion on a good factual and medical foundation and did not support
that appellant’s preexisting cervical condition was permanently aggravated by his accepted
injury.
CONCLUSION
The Board finds that the Office has met its burden to justify the termination of appellant’s
compensation for the accepted medical condition of cervical sprain. The Board also finds that
appellant has not met her burden to establish that the work incident on June 17, 2005 caused
another medical condition, such as a disc herniation at C3-4 with radiculopathy, a permanent
aggravation of her degenerative disc disease or a spinal cord injury.
ORDER
IT IS HEREBY ORDERED THAT the November 3, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, RADIO CITY
STATION, New York NY, Employer
__________________________________________

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Appearances:
Joju J. Thomas, Esq., for the appellant
No Appearance, for the Director

Docket No. 12-407
Issued: November 19, 2012

Oral Argument October 9, 2012

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On December 19, 2011 appellant, through her attorney, filed a timely appeal of a
November 7, 2011 Office of Workers’ Compensation Programs’ (OWCP) merit decision
denying her claimed recurrence of disability. 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 met her burden of proof in establishing that she
sustained recurrence of disability on or after November 26, 2009 due to her accepted
employment injury.
FACTUAL HISTORY
On March 6, 2010 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim alleging that on November 21, 2009 she injured her lower back and hip while pushing a
1

5 U.S.C. § 8101 et seq.

fully loaded cart of mail. Dr. Michael Cushner, a Board-certified orthopedic surgeon, treated
appellant on February 17, 2010 for lumbar strain. He found that she was totally disabled from
February 13 through 22, 2010. On March 2, 2010 Dr. Cushner diagnosed lumbosacral strain
with intermittent radiculopathy and stated that appellant could not work from March 2 through
April 9, 2010. Dr. Stephen Andrus, a physician Board-certified in pain medicine, examined her
on March 12, 2010 and diagnosed lumbar radiculopathy. He provided work restrictions.
In a letter dated March 31, 2010, OWCP requested additional factual and medical
evidence from appellant in support of her claimed injury. It allowed 30 days for a response.
Appellant underwent a magnetic resonance imaging (MRI) scan on February 24, 2010 which
demonstrated left-sided disc bulge at L4-5 and left-sided annular tear. Dr. Andrus completed a
report on April 5, 2010 and stated that she reported an onset of lower back pain on November 21,
2009 while pushing a cart of mail. He stated that appellant missed a few days of work after that
injury and continued to have persistent lower back pain while developing radiating pain down
the left leg in February 2010. Dr. Andrus stated that she had a back injury at work 10 years ago
which disabled her for a significant period of time. He stated, “The injury 10 years ago
ultimately resolved until [appellant] injured her back again on November 12, 2009….”
Dr. Andrus examined the MRI scan noting evidence of a left-sided disc bulge at L4-5 abutting
the left L4 nerve root. He provided work restrictions.
Appellant submitted a report dated April 6, 2010 from Dr. Cushner diagnosing
lumbosacral strain and intermittent radiculopathy. He noted that appellant developed back pain
due to a work injury 10 years ago. Dr. Cushner indicated that, while pushing an over loaded cart
and trying to keep it straight, appellant felt a strain in her lower back, left hip and leg. He
answered “yes” to the question of whether in his opinion the incident that she described was the
competent medical cause of her injury. Dr. Cushner indicated that appellant was totally disabled.
In a statement dated April 19, 2010, appellant reported that she advised her supervisor of
her November 21, 2009 back injury on that date. She noted that she had returned to work on
November 18, 2009 following several months’ absence due to eye surgery. Appellant reported
her back pain to her union steward on November 23, 2009 and utilized sick leave on
November 24, 2009. She again reported severe back pain on December 4, 2009 and left work
early to see her physician. Appellant stated that since her injury she had limited the weight of
the cart. She described her previous work injury as falling on the left side of her body at work,
but stated that she did not file a claim for this injury. Appellant stated that she believed that her
cart was over loaded on November 21, 2009 as the supervisors were checking carts.
Appellant submitted a statement dated April 14, 2010 from Mark P. Thomas, a doorman
on her route, noting that her cart was filled such that he had to open both doors to allow her
ingress. Dr. Thomas reported that she was grimacing and stated that she had pulled her back as
she entered. Appellant also submitted a statement from Vincent Cama, her shop steward, dated
April 13, 2010 noting that she reported her back pain on November 23, 2009 and attributed her
condition from pushing a heavy mail cart on November 21, 2009. Mr. Cama stated that she
stopped work on December 4, 2009 and sought medical treatment.
OWCP accepted appellant’s claim for herniated disc lumbar spine and lumbar
radiculopathy on May 3, 2010. It noted that she was entitled to up to 45 days of continuation of

2

pay until she returned to light duty. OWCP noted that appellant returned to work on
November 26, 2009 and later stopped work.
Appellant filed a claim for compensation on June 7, 2010 requesting payment for leave
without pay intermittently from November 24, 2009 through June 4, 2010. She indicated that
she did not work on November 24, December 4 and 5, 2009 and again from February 24 through
26, March 2 through 12 and 22 through 29 as well as April 22 through June 4, 2010. Appellant
filed notices of recurrence of disability on June 25, 2010 alleging that she sustained a recurrence
of disability on November 24 and 30, 2009, February 13 and March 26, 2010 due to her
November 21, 2009 employment injury.
Dr. Cushner completed a report on August 31, 2010 and stated that he examined
appellant on November 24, 2009 at which time she reported back pain and discomfort. At that
visit, appellant mentioned her back injury from 10 years ago. She later reported that the
exacerbation of her back pain occurred while pushing an over loaded cart on
November 21, 2009. Dr. Cushner stated, “While forcing to keep it straight, she put strain on her
back and began having pain and radicular component.” He noted, “The stress across the back
and disc has caused a radicular component….” Dr. Cushner included his treatment note dated
November 24, 2009 which diagnosed lumbar strain and found that appellant was totally disabled
on November 24 and 25, 2009, but could return to work without restrictions on
November 26, 2009.
Dr. Christopher Mattern, a Board-certified orthopedic surgeon, examined appellant on
December 4, 2009 and noted that she had experienced left low back pain for two weeks.
OWCP requested additional evidence in support of appellant’s claimed recurrences on
October 13, 2010 and allowed 30 days for a response.
By decision December 1, 2010, OWCP denied appellant’s claims for recurrent disability
on the grounds that the medical evidence was not sufficient to meet her burden of proof.
OWCP referred appellant for a second opinion evaluation. In a report dated
November 12, 1010, Dr. Robert J. Orlandi, a Board-certified orthopedic surgeon, noted
appellant’s history of pushing an over loaded mail cart and injuring her left low back. After
physical examination, he diagnosed lumbar strain resolved and unassociated with an L4, L5 or
S1 radicular syndrome.
Dr. Orlandi opined that appellant could return to work without
restriction and that she had no disability.
Appellant requested an oral hearing on December 8, 2010 before an OWCP hearing
representative. She submitted a report from Dr. Cushner dated March 28, 2011. Dr. Cushner
diagnosed lumbar radiculopathy and opined that appellant was totally disabled.
Appellant testified at the oral hearing on April 18, 2011. She stated that she stopped
work on March 27, 2010.
By decision dated May 23, 2011, the hearing representative stated that appellant had not
shown why she was able to return to regular duty only to stop in February 2010. He noted that
appellant’s radicular symptoms began at that time, but that there was no medical evidence
3

explaining why her symptoms changed.
December 1, 2010 decision.

The hearing representative affirmed OWCP’s

Dr. Richard J. Radna, a Board-certified neurosurgeon, examined appellant on June 28,
2011 and noted her history of pushing a cart on November 21, 2009 and injuring her low back.
He found severe bilateral paravertebral spasm in the cervical and lumbosacral regions with loss
of range of motion. Dr. Radna mentioned appellant’s back injury in 1998 and stated that she had
a full recovery. He opined that appellant had “causally related” cervical and lumbosacral,
musculoskeletal and radicular pain syndromes. Dr. Radna opined that appellant was totally
disabled and indicated that this disability was “causally related.”
Appellant requested reconsideration on August 1, 2011.
By decision dated November 7, 2011, OWCP reviewed the merits of appellant’s claim
and denied modification of its prior decisions.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.3 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.4
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.5 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.6 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.7
2

5 U.S.C. §§ 8101-8193.

3

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

Id.

4

Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.8 Rationalized medical evidence is medical
evidence which includes a physician’s detailed opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9 Neither the fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.10
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.11 Appellant
has the burden of establishing by the weight of the substantial, reliable, and probative evidence, a
causal relationship between her recurrence of disability commencing December 2009 and her
November 21, 2009 employment injury.12 This burden includes the necessity of furnishing
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disabling condition is causally related to employment factors
and supports that conclusion with sound medical reasoning.13
ANALYSIS
Appellant filed a claim in March 2010 alleging that in November 2009 she injured her
back pushing a cart in the performance of duty. OWCP accepted her claim for herniated disc at
L4-5 and lumbar radiculopathy on May 3, 2010. It did not accept that any period of disability
resulted from the accepted conditions.
Appellant filed claims for compensation requesting wage-loss compensation due to leave
without pay for intermittent dates including November 24, December 4 and 5, 2009. She did not
work from February 24 through 26, March 2 through 12 and 22 through 29 as well as April 22
8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

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

10

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

11

20 C.F.R. § 10.5(x).

12

Dominic M. DeScala, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-9 (1982).

13

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

through June 4, 2010. Appellant also filed claims for recurrence of disability covering these
periods.
Dr. Cushner first examined appellant on November 24, 2009, diagnosed lumbar strain
and found that appellant was totally disabled on November 24 and 25, 2009, but could return to
work without restrictions on November 26, 2009. Appellant has submitted medical evidence of
disability on November 24 and 25, 2009. Section 8117 of FECA provides that an employee is
not entitled to compensation for the first three days of temporary disability except: (1) when the
disability exceeds 14 days; (2) when the disability is followed by permanent disability; or (3) as
provided by sections 8103 and 8104 of this title. Section 8103 of FECA refers to the payment of
medical expenses, while section 8104 refers to vocational rehabilitation expenses.14 In order to
determine the three-day waiting period under section 8117, it must first be determined under
section 8118(a) of FECA whether the entitlement to continuation of pay had ceased as of those
dates.15 Under OWCP ‘s implementing federal regulations, postal employees are not entitled to
continuation of pay for the first three days of temporary disability and may use annual, sick or
leave without pay during that period, except that if the disability exceeds 14 days or is followed
by permanent disability.16 Appellant has not alleged that her initial period of disability exceeded
14 days and has not alleged permanent disability.
Appellant again stopped work on December 4 and 5, 2009. She sought treatment from
Dr. Mattern on December 4, 2009, but the note from that date does not include his diagnosis or a
history of injury. Appellant has not established that her alleged disability for work on
December 4 or 5, 2009 was due to her accepted employment injuries. The medical evidence
addressing this specific period of alleged disability does not contain a diagnosis, a history of
injury or an opinion that appellant’s disability is related to her November 2009 employment
injury. Without the necessary medical opinion evidence appellant has failed to meet her burden
of proof to establish entitlement to continuation of pay for these dates.
Dr. Cushner examined appellant on February 17, 2010 for lumbar strain and found that
she was totally disabled from February 13 through 22, 2010. On March 2, 2010 he again
diagnosed lumbosacral strain with intermittent radiculopathy and stated that appellant could not
work from March 2 through April 9, 2010. While these reports support a period of disability,
Dr. Cushner did not provide an opinion that appellant’s disability was due to her accepted
employment injury of November 21, 2009. Without a detailed factual background, an opinion
on the relationship between appellant’s disability and her work injury as well as medical
evidence explaining how and why her injury resulted in the specific period of total disability,
these reports are not sufficient to meet her burden of proof.

14

5 U.S.C. §§ 8103, 8104.

15

K.L., Docket No. 10-1803 (issued March 21, 2011) (explaining that the claimant was initially entitled to
continuation of pay and as she returned to regular full-time work with loss of pay within the 45-day period could
receive additional continuation of pay.)
16

20 C.F.R. § 10.200(c). (This regulation came into effect on August 29, 2011 prior to the most recent merit
decision in this case on November 7, 2011.)

6

Dr. Andrus examined appellant April 5, 2010 and noted her history of back pain on
November 21, 2009 while pushing a cart of mail. He stated that she had persistent lower back
pain and developed radiating pain down the left leg in February 2010. Dr. Andrus provided
work restrictions. This report does not support appellant’s claim for a period of total disability as
Dr. Andrus indicated that she could return to light-duty work and was not therefore totally
disabled.
Dr. Cushner examined appellant on April 6, 2010 and diagnosed lumbosacral strain and
intermittent radiculopathy. He noted that, while pushing an over loaded cart and trying to keep it
straight, appellant felt a strain in her lower back, left hip and leg. Dr. Cushner answered “yes” to
the question of whether in his opinion the incident that appellant described was the competent
medical cause of her injury. The Board has held that an opinion on causal relationship which
consists only of a physician answering “yes” to a question on whether the claimant’s disability was
related to the history given is of little probative value. Without any explanation or rationale for the
conclusion reached, such report is insufficient to establish causal relationship.17 While
Dr. Cushner indicated that appellant was totally disabled from February 13 through 22 and
March 2 through April 9, 2010, he did not provide the necessary medical reasoning explaining
why he believed that appellant’s ongoing back condition was related to her November 21, 2009
employment injury. As Dr. Cushner did offer any explanation or medical reasoning in support of
his affirmative opinion on causal relationship, his reports are not sufficient to meet appellant’s
burden of proof in establishing disability for the periods claimed.
In a report dated August 31, 2010, Dr. Cushner mentioned examining appellant on
November 24, 2009 at which time she reported back pain and discomfort while pushing an over
loaded cart on November 21, 2009. He stated, “While forcing to keep it straight, she put strain
on her back and began having pain and radicular component.” Dr. Cushner noted, “The stress
across the back and disc has caused a radicular component….” He has offered an opinion that
appellant’s initial employment injury was sufficient to cause the radicular portion of her
diagnosis. This opinion is, however, contradicted by his note releasing appellant to return to
work on November 26, 2009. At the time of his initial examination, Dr. Cushner did not report a
radicular component and felt that appellant was capable of returning to full duty. Due to the
discrepancies in his reports, Dr. Cushner has not offered sufficient medical reasoning to explain
how and why appellant’s employment injury on November 21, 2009 resulted in additional
periods of disability after November 26, 2009.
On June 28, 2011 Dr. Radna described appellant’s history of pushing a cart on
November 21, 2009 and injuring her low back. On physical examination, he found severe
bilateral paravertebral spasm in the cervical and lumbosacral regions with loss of range of
motion. Dr. Radna noted appellant’s history of back injury in 1998. He opined that appellant
had causally related cervical and lumbosacral, musculoskeletal and radicular pain syndromes.
Dr. Radna found that appellant was totally disabled, but did not address any specific periods of
disability due to appellant’s accepted conditions. The Board notes that Dr. Radna also indicated
that appellant had developed a cervical condition, which was not accepted by OWCP as related
to her accepted work injury. Finally, while Dr. Radna offered his opinion that appellant’s
17

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

7

conditions and disability were “causally related,” he did not offer any medical reasons or
descriptions correlating her accepted conditions and resulting periods of disability with her
employment injury. For these reasons, the Board finds that appellant has not submitted the
necessary medical opinion evidence to meet her burden of proof in establishing periods of
disability after November 26, 2009.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. § § 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establishing any
period of disability on or after November 26, 2009 due to her accepted November 21, 2009
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 7, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, Warner Robins, GA,
Employer
__________________________________________

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

Docket No. 19-0381
Issued: July 16, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 12, 2018 appellant filed a timely appeal from a November 5, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 5, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right hand injury
in the performance of duty, as alleged.
FACTUAL HISTORY
On August 16, 2018 appellant, then a 53-year-old sheet metal worker, filed an occupational
disease claim (Form CA-2) alleging that she sustained a right hand injury when performing
repetitive duties including drilling downward for long periods of time, and using rivet guns,
hydraulic tools, and power tools, while in the performance of duty. She indicated that she first
became aware of her condition on August 7, 2018, and realized its relationship to her federal
employment on August 10, 2018. On the reverse side of the claim form, the employing
establishment noted that appellant stopped work on August 10, 2018 and returned to work that
same day, at which time she was placed on “desk work.”
In a report dated August 10, 2018, Dr. Sean I. Moore, Board-certified in public health and
general preventative medicine, indicated that appellant could return to work with temporary
medical restrictions of desk work only, minimal use of right hand, no climbing, and no lifting over
five pounds.
On August 16, 2018 OWCP received a position description for a sheet metal worker.
According to the position description, the sheet metal work position required the use and
maintenance of tools, including basic hand and power tools, such as hammers, chisels, hand snips,
band and circle saws, squaring shears, seamers, bar folder, brakes, and stakes.
In a development letter dated August 21, 2018, OWCP advised appellant of the factual and
medical deficiencies of her claim. It provided a questionnaire for her completion to establish the
employment factors alleged to have caused or contributed to her medical condition, and requested
a medical report with a diagnosis from her attending physician explaining how and why her federal
work activities caused, contributed to, or aggravated her medical condition. OWCP afforded
appellant 30 days to submit the necessary evidence.
In a development letter of even date, OWCP informed the employing establishment of
appellant’s claim. It requested that it submit comments from a knowledgeable supervisor
regarding the accuracy of appellant’s statement, a description of her tasks that resulted in the
exposure or contact, and a copy of her position description.
In three reports dated August 10, 15, and 20, 2018, Dr. Moore indicated that appellant
complained of severe pain in her right hand and had related her employment duties as a sheet metal
worker. He noted in the history portion of the August 10, 2018 report that appellant attributed her
right hand condition to “drilling downwards for long periods of time. Appellant also uses rivet
guns, hydraulic and power tools all day.” Dr. Moore included a similar history in his August 20,
2018 report. He diagnosed “other soft tissue disorders related to use, overuse, and pressure, right
hand,” and noted right hand pain. Dr. Moore related that appellant could return to work with
temporary medical restrictions of desk work only.

2

By decision dated November 5, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the injury or events occurred in the
performance of duty, as alleged. It concluded, therefore, that the requirements had not been met
to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.7
An injury does not have to be confirmed by an eyewitness in order to establish the fact that
an employee sustained an injury while in the performance of duty. However, the employee’s
statements must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action.8 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged injury
and failure to obtain medical treatment may cast serious doubt on an employee’s statements in
determining whether he or she had established a prima facie claim for compensation. However,
an employee’s statement alleging that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong and persuasive evidence.9

3

Supra note 1.

4

M.S., Docket No. 18-1554 (issued February 8, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

M.S., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E.
Chadden, Sr., 40 ECAB 312 (1988).
6
C.L., Docket No. 19-0042 (issued April 17, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

C.L., id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

M.S., supra note 5; see B.B., Docket No. 12-0165 (issued July 26, 2012); Mary Jo Coppolino, 43 ECAB
988 (1992).
9

Id.

3

ANALYSIS
The Board finds that this case is not in posture for decision.
The evidence of record supports that her job duties as a sheet metal worker required that
she repetitively use various hand-held tools. On the Form CA-2, appellant indicated that her job
duties required her to drill downward for long periods of time, using rivet guns, hydraulic tools,
and power tools all day. She further noted pain and swelling in her right hand two days prior to
the filing of her claim. Dr. Moore’s August 10 and 20, 2018 reports also contained a description
of appellant’s employment duties which were substantially similar to those she provided on the
claim form.
In addition, in the August 21, 2018 development letter, OWCP requested that the
employing establishment provide comments from a knowledgeable supervisor on the accuracy of
statements provided on the Form CA-2; however, no additional evidence was received. The Board
thus finds that the evidence is undisputed that appellant’s work duties as a sheet metal worker
included performing repetitive activities, with various hand tools, using her right hand.10
As appellant has established factors of her federal employment, OWCP must base its
decision on an analysis of the medical evidence. The case will therefore be remanded to OWCP
to analyze and develop the medical evidence of record.11 After this and other such further
development as deemed necessary, OWCP shall issue a de novo decision on the merits of this
claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

10

Id.

11

See D.K., Docket No. 17-0115 (issued June 1, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the November 5, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this opinion.
Issued: July 16, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jonesboro, GA, Employer
__________________________________________

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

Docket No. 19-0967
Issued: October 21, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On April 4, 2019 appellant, through counsel, filed a timely appeal from a March 5, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act (FECA)2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right knee
condition causally related to the accepted December 19, 2017 employment incident.
FACTUAL HISTORY
On December 19, 2017 appellant, then a 58-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, she was descending stairs to deliver a package and
felt pain in the back of her right knee while in the performance of duty. She did not stop work
following the alleged injury. On the reverse side of the claim form, the employing establishment
noted that appellant was in the performance of duty when injured, but also controverted her
entitlement to continuation of pay, noting that she previously fell down her stairs at home and had
been out of work for at least four weeks.
On December 19, 2017 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16) with respect to appellant’s claimed right knee injury.
Appellant submitted a series of duty status reports (CA-17) and/or physician work activity
status reports from Dr. Roy E. Hall, a Board-certified family practitioner. Dr. Hall initially
examined appellant on December 19, 2017 and diagnosed right knee sprain. He referred appellant
for physical therapy and advised that she was unable to work for at least two days.
In a report dated December 21, 2017, Dr. Hall examined appellant’s right knee, noting
tenderness over the anterior and posterior knee and painful range of motion. He diagnosed right
knee sprain and recommended a return to work with restrictions.
On December 28, 2017 Dr. Hall noted that appellant’s right posterior knee symptoms were
improving. On examination of the right knee, he observed mild posterior swelling and mild diffuse
tenderness over the posterior knee. Dr. Hall diagnosed right knee sprain and noted that appellant
was approximately 50 percent of the way to meeting the physical requirements of her job.
In an unsigned work activity status report dated December 28, 2017, it was recommended
that appellant return to work on December 28, 2017 with restrictions of sitting 40 percent of the
time, weight-bearing as tolerated, and no squatting, kneeling, climbing chairs, or climbing ladders.
In a development letter dated January 12, 2018, OWCP informed appellant that she had
not submitted sufficient factual or medical evidence to establish her claim. It advised her of the
type of evidence needed and provided a questionnaire for her completion. OWCP afforded
appellant 30 days to respond.
In a narrative statement dated January 31, 2018, appellant explained that she had fallen
down stairs at a relative’s house on November 5, 2017 and sustained a stress fracture to her left
foot. She explained that on December 19, 2017 she felt a pull at the back of her right knee while
descending basement steps at an apartment building to deliver a package while in the performance
of duty. Appellant clarified that she had not sustained her right knee injury from a fall, but from
walking down the basement stairs.

2

In reports dated November 6 through 27, 2017, Dr. Marieli Colon, a podiatric surgery
specialist, diagnosed a stress fracture of the left foot and localized edema. On December 29, 2017
she reiterated these diagnoses and recommended that appellant continue to wear a brace daily.
OWCP received a January 4, 2018 follow-up report from Dr. Hall who noted that
appellant’s right knee symptoms had improved. Dr. Hall diagnosed right knee sprain and
recommended continued work restrictions.
OWCP also received physical therapy notes dated December 20, 2017 through
January 11, 2018.
In a report dated January 11, 2018, Dr. Arlene Emmons, an occupational medicine
specialist, examined appellant for complaints of right knee pain. She noted improved symptoms
on examination, including diffuse tenderness over the anteromedial, lateral, and posterior knee.
Dr. Emmons diagnosed right knee sprain and recommended continued work restrictions.
On January 16, 2018 Dr. Mah-Fri Fomukong, a Board-certified family practitioner,
examined appellant for complaints of right knee pain. On examination of the right knee, she
observed mild diffuse tenderness over the lateral and medial knee. Dr. Fomukong noted that
appellant had reached her functional goal and recommended a trial of returning to full duty without
restrictions. She related that physical therapy notes indicated that appellant had reached 100
percent of her goals on all examinations.
In a report dated January 24, 2018, Dr. Fomukong noted that appellant’s subjective right
knee symptoms had worsened. On examination, she observed normal appearance, no deformity,
no tenderness, full range of motion, and full strength. Dr. Fomukong diagnosed right knee sprain
and ordered a magnetic resonance imaging (MRI) scan.
In an attending physician’s report (Form CA-20) dated February 12, 2018, Dr. Hall noted
that appellant had told him that she had walked down stairs and suddenly experienced knee pain.
He diagnosed right knee sprain, but left boxes indicating whether he believed appellant’s condition
was caused or aggravated by employment activity unchecked, noting that he was unsure what
caused the knee to begin hurting. Dr. Hall noted that appellant was able to resume regular work
on January 16, 2018.
In a note dated February 9, 2018, Dr. Fomukong diagnosed right knee sprain, reported that
appellant was released from care, and recommended that she return to regular-duty work on that
date.
By decision dated February 15, 2018, OWCP denied appellant’s claim, finding that she
had not submitted sufficient evidence to meet her burden of proof to establish causal relationship
between her diagnosed condition and the accepted December 19, 2017 employment incident.
OWCP subsequently received a December 19, 2017 narrative report from Dr. Hall who
examined appellant for complaints of right knee pain after stepping down from stairs the wrong
way at work on that date. Dr. Hall noted that appellant had walked down stairs and suddenly
experienced sharp pain in her right knee, which had not improved. On examination of the right
knee, he observed diffuse tenderness over the anterior and posterior knee, as well as pain on range
3

of motion testing. Dr. Hall diagnosed right knee sprain, referred appellant for physical therapy,
and recommended that she remain off work.
In a follow-up report dated February 9, 2018, Dr. Fomukong noted that appellant’s
symptoms were improving. On examination of the right knee she observed normal appearance,
no deformity, no tenderness, full range of motion, and full strength. Dr. Fomukong advised that
there was no indication for a referral at that time because her physical examination was normal.
She opined that appellant had reached maximum medical improvement and that she was released
from care.
In a letter dated February 23, 2018, Dr. Hall opined that appellant’s pain occurred while
she was walking down stairs at work. He reported that even though he could not explain how or
why walking down stairs caused her right knee injury, according to appellant, it did occur while
she was walking down stairs at work.
On February 26, 2018 appellant requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated July 2, 2018, the hearing representative affirmed OWCP’s February 15,
2018 decision. He found that the opinion contained in Dr. Hall’s February 23, 2018 letter was
equivocal in nature and insufficient to establish appellant’s claim for a medical condition causally
related to the accepted incident of December 19, 2017.
An August 14, 2018 right knee MRI scan demonstrated a near complete radial tear near the
posterior root attachment of the medial meniscus with horizontal extension into the meniscal body
and associated peripheral extrusion and inflammation along the medial joint line; grade III/IV
chondromalacia of the weight-bearing medial compartment; grade II/III chondromalacia of the
patella; grade II chondromalacia of the weight-bearing lateral compartment; small knee joint
effusion with synovitis; and a small popliteal cyst.
On December 5, 2018 appellant, through counsel, requested reconsideration of OWCP’s
July 2, 2018 decision. Counsel enclosed reports from Dr. Hall dated November 19, 2018 and
November 23, 2018. In the November 19, 2018 report, Dr. Hall recalled that, on December 19,
2017, appellant had relayed that she was walking down steps and suddenly felt sharp pain in her
knee without falling, twisting, or tripping. He indicated that appellant was descending stairs
normally and felt pain in her knee. Dr. Hall noted that, with this information, he could not, with
any certainty, describe the physical process of how walking down stairs could have caused her
diagnosed condition. The report dated November 23, 2018 was a duplicate of Dr. Hall’s letter
dated February 23, 2018.
By decision dated March 5, 2019, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
4

that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.3 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.5 The second component is whether the employment incident caused a personal injury. 6
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue. A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background. Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale that explains the nature of the relationship between the diagnosed condition and
appellant’s employment incident.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right knee
condition causally related to the accepted December 19, 2017 employment incident.
On December 19, 2017 Dr. Hall noted that appellant had walked down stairs and suddenly
had sharp pain in her right knee, which had not improved. He diagnosed right knee sprain and
referred her for physical therapy. On February 12, 2018 Dr. Hall noted that appellant had informed
him that she had walked down stairs and suddenly experienced knee pain. He diagnosed right
knee sprain and left boxes indicating whether he believed appellant’s condition was caused or
aggravated by employment activity unchecked, noting that he was unsure what caused the knee to
begin hurting. On February 23, 2018 Dr. Hall opined that appellant’s pain occurred while she was
walking down stairs at work, but he could not explain how or why walking down stairs caused her
knee injury. On November 19, 2018 he noted that he could not, with any certainty, describe the
physical process of how walking down stairs could have caused her diagnosed condition. None
of these medical reports offer an opinion as to whether the accepted employment incident either
caused or had not caused appellant’s diagnosed conditions. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
5

M.A., Docket No. 19-0656 (issued September 13, 2019); D.S., Docket No. 17-1422 (issued November 9,
2017); Elaine Pendleton, 40 ECAB 1143 (1989).
6

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

7

S.S., Docket No. 18-1488 (issued March 11, 2019).

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probative value on the issue of causal relationship. 8 These reports, therefore, are insufficient to
establish appellant’s claim.
Appellant also submitted reports from Dr. Emmons dated January 11, 2018; from
Dr. Fomukong dated January 16 and 24, and February 9, 2018; and from Dr. Colon dated
December 29, 2017. However, these reports did not include opinions regarding causal relationship
between appellant’s right knee condition and the accepted employment incident of
December 19, 2017. These reports are therefore insufficient to establish appellant’s claim.9
Appellant also submitted a work activity status report dated December 28, 2017 that was
unsigned. The Board has held, a report that is unsigned or bears an illegible signature lacks proper
identification and cannot be considered probative medical evidence. 10 This report therefore is
insufficient to establish the claim.
The record also includes a diagnostic report dated August 14, 2018. However, diagnostic
testing reports lack probative value on the issue of causal relationship as they do not provide an
opinion regarding the cause of the diagnosed conditions. 11
The physical therapy notes dated December 20, 2017 through January 11, 2018 are also
insufficient to establish appellant’s burden of proof. Certain healthcare providers such as
physician assistants, nurse practitioners, physical therapists, and social workers are not considered
“physician[s]” as defined under FECA. 12 Consequently, their medical findings and/or opinions
will not suffice for purposes of establishing entitlement to FECA benefits. 13
The Board finds that because appellant has not submitted medical evidence providing a
rationalized medical opinion that her diagnosed right knee condition was causally related to the
accepted December 19, 2017 employment incident, she has not met her burden of proof to establish
her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

8

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

9

See L.T., Docket No. 18-1603 (issued February 21, 2019).

10

See L.M., Docket No. 18-0473 (issued October 22, 2018); Merton J. Sills, 39 ECAB 572, 575 (1988).

11

See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
12

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

13

See M.F., Docket No. 17-1973 (issued December 31, 2018); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or certified nurse practitioner will be considered
medical evidence if countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right knee
condition causally related to the accepted December 19, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 5, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 21, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
CENTER, Butner, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-927
Issued: February 22, 2010

Case Submitted on the Record

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

JURISDICTION
On February 25, 2009 appellant filed a timely appeal of the December 22, 2008 merit
decision of the Office of Workers’ Compensation Programs denying his claim for a schedule
award.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant sustained any permanent impairment of his left hand
resulting from his March 2, 2008 employment injury.
1

The Board notes that appellant also appealed from a February 2, 2009 decision. The Board notes, however, that
the Office did not issue a final adverse decision on February 2, 2009. 20 C.F.R. § 501.3(a). The February 2, 2009
Office document is an informational letter and it does not purport to be a final adverse decision. In this letter, the
Office advised appellant that on January 20, 2009 it received a duplicate of his October 28, 2008 claim (Form CA-7)
for a schedule award. He was further advised that no further action would be taken as the Office had already denied
his claim on December 22, 2008.

FACTUAL HISTORY
On March 2, 2008 appellant, then a 42-year-old correctional officer, sustained a
laceration on his left pinky and ring fingers as a result of snatching a jammed door on an ice
machine.
On October 28, 2008 appellant filed a CA-7 form for a schedule award. A medical
record dated March 2, 2008 indicated that appellant was treated in the emergency room for a
deep laceration on his left ring and little fingers. In a March 17, 2008 disability certificate,
Dr. James A. Ketoff, an attending Board-certified surgeon, advised that appellant may return to
work on April 1, 2008. On November 12, 2008 the Office accepted appellant’s claim for an
open wound with complications of the left ring and small fingers.
By letter dated November 19, 2008, the Office requested that Dr. Ketoff submit a detailed
medical report providing the date appellant reached maximum medical improvement and to
address any impairment pursuant to the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides) (5th ed. 2001). The Office advised appellant to
submit evidence within 30 days. There was no response.
In a decision dated December 22, 2008, the Office denied appellant’s claim for a
schedule award. It found that he failed to submit any medical evidence to establish that he
sustained permanent impairment to a scheduled member of the body due to his accepted
March 2, 2008 employment-related injury.2
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.5 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.6

2

Following the issuance of the Office’s December 22, 2008 decision, it received additional evidence. The Board
may not consider evidence for the first time on appeal which was not before the Office at the time it issued the final
decision in the case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office with a formal written
request for reconsideration. 5 U.S.C. § 8128; 20 C.F.R. §10.606.
3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

20 C.F.R. § 10.404.

5

5 U.S.C. § 8107(c)(19).

6

20 C.F.R. § 10.404.

2

The period covered by a schedule award commences on the date that the employee
reaches maximum medical improvement from the residuals of the employment injury. A
schedule award is not payable until maximum improvement of the claimant’s condition has been
reached.7 Maximum improvement means that the physical condition of the injured member’s
body has stabilized and will not improve further.8 The question of when maximum medical
improvement has been reached is a factual one which depends on the medical evidence of record.
The determination of such date in each case is to be made based upon the medical evidence.9
ANALYSIS
The Office accepted that appellant sustained an open wound with complications of the
left ring and small fingers while in the performance of duty on March 2, 2008. Appellant
claimed a schedule award for permanent impairment to his left hand.
Appellant was requested to submit a medical opinion from a treating physician
addressing the degree of permanent impairment under the A.M.A., Guides and the date of
maximum medical improvement. However, he did not respond. There is no medical evidence to
establish permanent impairment based on the accepted open wound with complications of the
left ring and small fingers. The medical records from Halifax Regional Medical Center and the
employing establishment health unit addressed the treatment of appellant’s accepted
employment-related condition. Dr. Ketoff’s March 17, 2008 disability certificate advised that
appellant could return to work on April 1, 2008. However, this evidence did not include an
impairment rating based on the A.M.A., Guides or provide an adequate description of appellant’s
physical condition so that an impairment rating could be made. Moreover, the medical records
do not address the issue of whether maximum medical improvement had been reached.10 The
Board notes that it is well established that a schedule award cannot be paid until a claimant has
reached maximum medical improvement.11
To determine entitlement to a schedule award, appellant’s physician must provide a
sufficiently detailed description of his condition so that the claims examiner and others
reviewing the file will be able to clearly visualize the impairment with its resulting restrictions
and limitations.12 As the medical evidence currently of record do not make a finding that
7

See Robert L. Mitchell, Jr., 34 ECAB 8 (1982).

8

Joseph R. Waples, 44 ECAB 936 (1993).

9

Richard Larry Enders, 48 ECAB 184 (1996); Joseph R. Waples, id.

10

Joseph R. Waples, supra note 8.

11

See supra notes 7-8; see also L.H., 58 ECAB 561 (2007) (the question of when maximum medical improvement
has been reached is a factual one that depends upon the medical findings in the record; the determination of such
date is to be made in each case on the basis of the medical evidence).
12

Renee M. Straubinger, 51 ECAB 667, 669 (2000) (where the Board found in providing an estimate of the
percentage loss of use of a member of the body listed in the schedule provisions, a description of a claimant’s
impairment must be obtained from his or her physician which is in sufficient detail so that the claims examiner and
others reviewing the file will be able to clearly visualize the impairment and its resulting restrictions and
limitations).

3

maximum medical improvement had been reached or describe any permanent impairment, they
are insufficient to establish appellant’s claim for a schedule award. Appellant has failed to
establish that he sustained a permanent impairment as a result of his accepted condition.13
Consequently, the Office properly denied his claim for a schedule award.
CONCLUSION
The Board finds that appellant has not established permanent impairment to his left hand
resulting from his March 2, 2008 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 22, 2010
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

13

Id.; see also Lela M. Shaw, 51 ECAB 372 (2000).

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