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

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Docket Nos. 19-1234;
19-1241; 20-0373; 20-0506;
20-0533
Issued: June 23, 2020

Case Submitted on the Record

ORDER GRANTING MOTION TO REVERSE IN DOCKET NO.
19-1234, ORDER REMANDING CASE IN DOCKET NOS. 19-1241,
20-0373, AND 20-0506, AND ORDER DISMISSING APPEAL IN DOCKET
NO. 20-0533
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On May 14 and 17 and December 6, 2019, and January 6 and 11, 2020 appellant
respectively filed timely appeals from November 20, 2018, April 25 and December 2 and 30, 2019,
and January 7, 2020 decisions of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards respectively docketed these appeals as Nos. 19-1234, 19-1241,
20-0373, 20-0506, and 20-0533.
On April 23, 2013 appellant, then a 29-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging a back injury on April 22, 2013 when lifting bags
while in the performance of duty. OWCP assigned the claim OWCP File No. xxxxxx033 and
accepted it for a lumbar sprain, herniated disc at L5-S1, and right-sided lumbosacral
neuritis/radiculitis as work related. It issued several decisions denying appellant’s claim for a
work-related recurrence of disability, including the most recent dated November 20, 2018 in which
it determined that appellant had not established disability on or after October 10, 2014 causally
related to the accepted April 22, 2013 employment injury.

On May 12, 2017 appellant filed a Form CA-1 alleging a May 14, 2013 back injury when
dragging luggage while in the performance of duty. OWCP assigned that claim File No.
xxxxxx403 and accepted it for aggravation of a herniated disc at L5-S1 as work related. Also on
May 12, 2017 appellant filed a Form CA-1 alleging an August 6, 2014 right knee injury when
engaging in lunging exercises as part of a physical therapy session for his back conditions. OWCP
assigned that claim File No. xxxxxx404 and issued July 7 and September 20, 2017 decisions
denying the claim. Appellant timely appealed the latter decision to the Board and, by order dated
April 9, 2018, the Board set aside and remanded the case for OWCP to incorporate evidence from
OWCP File No. xxxxxx033 into OWCP File No. xxxxxx404. On remand, by decision dated
July 9, 2018, OWCP denied appellant’s claim for an August 6, 2014 right knee injury, finding
appellant had not established causal relationship between the accepted August 6, 2014 employment
incident and a diagnosed right knee condition. Appellant appealed to the Board and, by decision
dated August 2, 2019, the Board affirmed OWCP’s July 9, 2018 decision. After a request for
reconsideration with OWCP, by decision dated December 2, 2019, OWCP continued to deny
appellant’s claim for an August 6, 2014 employment injury due to his failure to establish causal
relationship. Appellant later requested that his claim under OWCP File No. xxxxxx403 be
expanded to include the right knee injury as a consequence of his accepted April 22 and May 14,
2013 back injuries. By decision dated May 16, 2018, OWCP denied appellant’s consequential
injury claim, finding that the weight of the medical opinion evidence rested with the April 12, 2018
opinion of Dr. Clinton G. Bush, III, a Board-certified orthopedic surgeon who served as an OWCP
referral physician. Appellant appealed to the Board and, by order dated September 17, 2019, the
Board remanded the case to OWCP and directed it to administratively combine the files for OWCP
File Nos. xxxxxx033, xxxxxx403, and xxxxxx404. On remand, OWCP combined these case files
and issued a December 30, 2019 decision again denying appellant’s consequential injury claim. It
reviewed additional evidence from the newly combined files, but determined that the weight of the
medical opinion evidence continued to rest with Dr. Bush’s opinion.
On October 2, 2018 appellant filed a Form CA-1 alleging that he sustained a low back
injury on December 9, 2014 while in the performance of duty. He noted that his workload had
increased over the holidays and that his engaging in repetitive lifting, dragging, and pushing of
oversized and heavy bags “caused me to aggravate lumbar spine at work.” OWCP assigned that
claim OWCP File No. xxxxxx125. By decision dated December 12, 2018, OWCP denied the
claim as untimely filed. Appellant requested a hearing before a representative of OWCP’s Branch
of Hearings and Review. After a hearing was held on March 18, 2019, OWCP’s hearing
representative issued an April 25, 2019 decision affirming the December 12, 2018 decision.
With regard to Docket No. 19-1234 appellant filed a timely appeal on May 14, 2019 of
OWCP’s April 25, 2019 decision under OWCP File No. xxxxxx125. On December 3, 2019 the
Director of OWCP filed a motion, requesting that the Board reverse the April 25, 2019 decision
as appellant had established his claim for an additional back injury had been timely filed. The
Director maintained that appellant had presented statements and materials indicating that he was
suffering ongoing back pain related to heavy lifting at work and stress from conflicts with
management, and asserted that the information appellant provided was sufficient to put his
immediate supervisor reasonably on notice within 30 days that he sustained an injury while in the
performance of duty, satisfying the test for actual knowledge of injury with regard to timely filing
of the claim. The Clerk of the Appellate Boards served appellant with a copy of the Director’s
motion to reverse on December 4, 2019. In a response dated December 19, 2019, appellant agreed
2

with the arguments in the Director’s motion. For the reasons espoused by the Director, the motion
to reverse is granted.
With regard to the appeals docketed as Nos. 19-1241, 20-0373, and 20-0506 the Board
finds that the cases are not in posture for decision. Pursuant to 20 C.F.R. § 501.2(c)(1), 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. Decisions on claims are based on the written record, which may include forms,
reports, letters, and other evidence of various types such as photographs, videotapes, or drawings.1
Evidence may not be incorporated by reference, nor may evidence from another claimant’s case
file be used.2 Evidence contained in another of the claimant’s case files may be used, but a copy
of that evidence should be placed into the case file being adjudicated.3 All evidence that forms the
basis of a decision must be in that claimant’s case record.4
The Board finds that, for a full and fair adjudication of appellant’s claims, the case records
under OWCP File Nos. xxxxxx033. xxxxxx403, and xxxxxx404 must be administratively
combined with OWCP File Nos. xxxxxx125. The Board notes that, in adjudicating appellant’s
multiple claims, OWCP failed to evaluate all relevant evidence necessary for making its
determinations. OWCP’s procedures provide that cases should be combined when correct
adjudication of the issues depends on frequent cross-reference between files, such as when
multiple claims involve the same body part or parts.5 Combination of OWCP File Nos.
xxxxxx033, xxxxxx403, xxxxxx404, and xxxxxx125 is necessary given that appellant’s
interrelated multiple claims concern claimed injuries to his low back/right lower extremity.
Therefore, the cases shall be remanded to OWCP to administratively combine OWCP File Nos.
xxxxxx033, xxxxxx403, xxxxxx404, and xxxxxx125. After OWCP has developed the record
consistent with the above-noted directive, it shall issue a de novo decision, or de novo decisions,
regarding appellant’s claims.
With regard to Docket No. 20-0533 the Board finds that the appeal must be dismissed as
there is no other final adverse decision over which the Board can take jurisdiction. On January 11,
2020 appellant filed an appeal from a January 7, 2020 decision which had vacated OWCP’s
December 30, 2019 decision denying appellant’s consequential right knee injury claim. However,
on January 6, 2020 appellant had appealed to the Board from the December 30, 2019 decision.
The Board finds that as OWCP issued its January 7, 2020 decision during the pendency of the
appeal in Docket No. 20-0506 that decision is null and void as the Board and OWCP may not

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
2

Id.

3

Id.

4

Id. See also G.D., Docket No. 19-1969 (issued May 4, 2020); G.O., Docket No. 18-1483 (issued June 20, 2019).

5
See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c
(February 2000).

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simultaneously have jurisdiction over the same issue.6 The Board’s jurisdiction is limited to the
review of final adverse OWCP decisions issued under FECA.7 The Board’s review authority is
further limited to final adverse decisions issued within 180 days prior to the date of the appeal.8
Because OWCP issued its January 7, 2020 decision after appellant had filed his appeal to the Board
on the same issue in Docket No. 20-0506, there is no final adverse decision over which the Board
may take jurisdiction and appellant’s appeal in Docket No. 20-0533 must be dismissed.9
IT IS HEREBY ORDERED THAT the Director’s December 3, 2019 motion to reverse
in Docket No. 19-1234 is granted and the April 25, 2019 decision of the Office of Workers’
Compensation Programs is thereby reversed. The November 20, 2018 and December 2 and 30,
2019 decisions of the Office of Workers’ Compensation Programs in Docket Nos. 19-1241,
20-0373, and 20-0506 are set aside and the cases are remanded to OWCP for proceedings
consistent with this order of the Board. The appeal in Docket No. 20-0533 is dismissed.
Issued: June 23, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6
See Terry L. Smith, 51 ECAB 182 (1999); Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman, 43 ECAB
770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).
7

See 20 C.F.R. §§ 501.2(c) and 501.3(a).

8

Id.

9
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” Id. at
§ 501.6(d).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SAFETY
ADMINISTRATION, Detroit, MI, Employer
__________________________________________

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Appearances:
Gerald Keller, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1964
Issued: March 13, 2008

Case Submitted on the Record

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

JURISDICTION
On July 19, 2007 appellant filed a timely appeal of a November 27, 2006 decision of the
Office of Workers’ Compensation Programs, denying further merit review of his claim. The
record also contains a May 9, 2007 decision denying merit review on the grounds that appellant’s
reconsideration request was untimely and failed to show clear evidence of error. Since more
than one year has elapsed between the last merit decision of October 18, 2005 and the filing of
this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to 20 C.F.R.
§§ 501.2(c), 501.3(d)(2) and 501.6(c) and (d).
ISSUES
The issues are: (1) whether the Office properly denied appellant’s September 19, 2006
application for reconsideration without merit review of the claim pursuant to 5 U.S.C. § 8128(a);
and (2) whether the Office properly determined that appellant’s February 22, 2007 application
for reconsideration was untimely and failed to show clear evidence of error.

FACTUAL HISTORY
The Office accepted that appellant, an airport security screener, sustained a cervical and
upper back strain in the performance of duty on April 9, 2004 when she twisted her back and
neck while carrying luggage. Appellant stopped work on the date of injury. She returned to a
light-duty position for one day on January 31, 2005 and on February 4, 2005. Pursuant to a
June 10, 2005 Office hearing representative’s decision, appellant was paid compensation through
July 24, 2004 based on claims for compensation (Form CA-7) filed.
Appellant filed additional CA-7 forms commencing February 20, 2005. By decision
dated October 18, 2005, the Office denied claims for compensation commencing
February 20, 2005.1 The Office noted that attending physiatrist, Dr. Peter Samet, had submitted
a February 11, 2005 report stating that appellant should remain off work for the next month.
However, the Office found the medical evidence insufficient to establish an employment-related
disability for the periods claimed.
Appellant requested reconsideration of her claim by letter dated September 19, 2006.
She submitted an April 3, 2006 report from Dr. Samet, who stated that appellant had been treated
since February 11, 2005 following an April 9, 2004 work injury. Dr. Samet’s stated
electrodiagnostic testing on February 11, 2005 showed a left L5-S1 radiculopathy and possible
right-sided involvement. He indicated that appellant had been seen on a regular basis and was
restricted from work until September 1, 2005. Dr. Samet concluded that it appeared that the
injuries she had to her neck, back and left shoulder were the result “of work that she had done.”
Appellant also submitted treatment reports from Dr. Samet commencing in June 2005. The
record also contains “disability certificates” from Dr. Samet dated February 11, March 5 and
July 11, 2005.
By decision dated November 27, 2006, the Office found the request for reconsideration
insufficient to warrant further merit review of the claim.
Appellant again requested reconsideration by letter dated February 22, 2007. She
submitted a January 8, 2007 report from Dr. Samet, who reviewed the medical record.
Dr. Samet again stated that injuries were related to work appellant had done; he noted the type of
work she was doing included lifting heavy bags and swinging them around. He opined that
appellant was disabled from February 11 to August 26, 2005, when he placed work restrictions
such as 10-pound lifting. Dr. Samet stated that the current diagnosis was lumbar radiculopathy,
cervical strain and left shoulder bursitis, and these diagnosed conditions were directly causally
related to the April 9, 2004 injury.
In a decision dated May 9, 2007, the Office found the reconsideration request insufficient
to warrant merit review. The Office determined that the request for reconsideration was
untimely and failed to show clear evidence of error.

1

The record indicates that appellant filed CA-7 forms for periods after July 24, 2004 and prior to February 20,
2005, but the October 18, 2005 decision addressed only the period commencing February 20, 2005.

2

LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.2 The employee shall exercise this right through a request to
the district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”3
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent evidence not previously
considered by the Office.4
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the
request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.5
ANALYSIS -- ISSUE 1
The application for reconsideration dated September 19, 2006 did not attempt to show
that the Office erroneously applied or interpreted a specific point of law, or advance a relevant
legal argument not previously considered by the Office. Appellant relied on the submission of a
new medical report dated April 3, 2006 from attending physician, Dr. Samet. The submission of
a new medical report does not in itself require reopening the claim for merit review.6 The
evidence must address the particular issue involved in the case.7 The medical issue in this case is
whether appellant had disability as of February 20, 2005 causally related to the April 9, 2004
employment injury.
Dr. Samet had previously submitted reports which indicated that appellant was disabled
for work. The April 3, 2006 report does not provide new and relevant evidence on the issue
presented. Dr. Samet referred generally to injuries resulting from “work” appellant had done,
without discussing how any restriction from work after February 11, 2005 was causally related to
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.605 (1999).

4

Id. at § 10.606(b)(2).

5

Id. at § 10.608.

6

See Kevin M. Fatzer, 51 ECAB 407 (2000).

7

Richard L. Ballard, 44 ECAB 146 (1992).

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an April 9, 2004 employment injury. He does not address the specific medical issue involved,
and therefore his report is not “relevant and pertinent evidence not previously considered by the
Office.” Moreover, the form reports submitted by Dr. Samet regarding continuing treatment and
disability do not provide any new and relevant evidence on the causal relationship issue.
The Board accorded finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(2). Appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or submit relevant and pertinent evidence not previously considered by the Office.
Accordingly, the Office properly denied the application for reconsideration without reopening
the claim for merit review.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act8 does not entitle a claimant to a review of an Office decision
as a matter of right.9 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.10 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).11
As one such limitation, the Office has stated that it will not review a decision denying or
terminating a benefit unless the application for reconsideration is filed within one year of the
date of that decision.12 The Board has found that the imposition of this one-year limitation does
not constitute an abuse of the discretionary authority granted the Office under 5 U.S.C.
§ 8128(a).13
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.14 In accordance with this holding the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set

8

5 U.S.C. § 8128(a).

9

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

10

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
11

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a specific point of law; or (2) advancing a relevant
legal argument not previously considered by the Office; or (3) constituting relevant and pertinent evidence not
previously considered by the Office; see 20 C.F.R. § 10.606(b).
12

20 C.F.R. § 10.607(a).

13

See Leon D. Faidley, Jr., supra note 9.

14

Leonard E. Redway, 28 ECAB 242 (1977).

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forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.15
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.16 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.17 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.18 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.19 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.20 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.21 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.22
ANALYSIS -- ISSUE 2
The decision on the merits of the claim for compensation was dated October 18, 2005.
While the Office issued a November 27, 2006 decision, this decision did not review the merits of
the claim, as discussed above. The February 22, 2007 application for reconsideration is untimely
because it was filed more than one year after the last merit decision. Accordingly, the issue is
whether the February 22, 2007 application for reconsideration demonstrated “clear evidence of
error” by the Office.
Appellant submitted a January 8, 2007 report from Dr. Samet. This report is more
detailed than prior reports in that it reviewed the medical history. But the “clear evidence of
error” standard requires that the evidence be of such value that it prima facie shifts the weight of
the evidence in favor of the claimant and raise a substantial question as to the correctness of the
Office decision. The January 8, 2007 report does not meet this standard. For example, while
15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

16

See Dean D. Beets, 43 ECAB 1153 (1992).

17

See Leona N. Travis, 43 ECAB 227 (1991).

18

See Jesus D. Sanchez, 41 ECAB 964 (1990).

19

See Leona N. Travis, supra note 17.

20

See Nelson T. Thompson, 43 ECAB 919 (1992).

21

Leon D. Faidley, Jr., supra note 9.

22

Gregory Griffin, 41 ECAB 458 (1990).

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Dr. Samet notes the April 9, 2004 employment incident, his discussion on causal relationship
between a diagnosed condition or disability and employment refers to the “type of work”
appellant performed over time. The issue in the claim for compensation in this case was
disability commencing February 20, 2005 causally related to the April 9, 2004 injury, not to
occupational duties performed over a period of time.
The Board finds that the February 22, 2007 application was untimely and failed to
demonstrate clear evidence of error. The Office therefore properly declined to reopen the claim
for review of the merits.
CONCLUSION
The September 19, 2006 application for reconsideration was not sufficient to warrant
reopening the claim for merit review. The February 22, 2007 application for reconsideration was
untimely and failed to show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 9, 2007 and November 27, 2006 are affirmed.
Issued: March 13, 2008
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
TENNESSEE VALLEY AUTHORITY,
GALLATIN FOSSIL PLANT, Gallatin, TN,
Employer
__________________________________________

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

Docket No. 15-668
Issued: June 1, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 9, 2015 appellant filed a timely appeal of a December 19, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish hearing loss due to
noise exposure during his federal employment.
FACTUAL HISTORY
On August 7, 2014 appellant, then a 59-year-old electrician, filed an occupational disease
claim alleging that he developed hearing loss in both ears due to loud noise at the employing
1

5 U.S.C. § 8101 et seq.

establishment. He stated that he first became aware of his condition on June 23, 1997 and first
related this condition to his employment on that date. Appellant did not stop work.
OWCP requested additional factual and medical evidence in support of appellant’s claim,
by letter dated August 28, 2014.
Appellant provided his employment history on
September 12, 2014. He indicated that he began work at the employing establishment on
August 26, 1981 as a maintenance electrician and was exposed to noise from turbine generators,
motors, conveyor belts, power tools, hammer drills, steam blowers, and air compressors.
Appellant stated that earplugs were made available from 1981 to 1992, that in 1992 earplugs
were mandatory and in 2010 double ear protection was required in certain areas. He submitted
audiograms from the employing establishment hearing conservation program.
The employing establishment stated that appellant was exposed to large motors, air
compressors, and other equipment from four to seven hours a day, five days a week.
OWCP referred appellant for a second opinion evaluation on October 30, 2014 with
Dr. Jeffrey Paffrath, a Board-certified otolaryngologist. In his report dated November 18, 2014,
Dr. Paffrath evaluated appellant and found that he did not have any sensorineural hearing loss in
excess of what would be normally predicted on the basis of presbycusis. He noted that
appellant’s employment-related noise exposure had the potential to cause hearing loss.
Dr. Paffrath diagnosed slight-to-moderate sensorineural hearing loss and indicated that in his
opinion this hearing loss was not due to appellant’s federal employment. He opined that
appellant’s hearing loss was not beyond presbycusis. On the accompanying audiogram,
appellant demonstrated in the right ear at 500, 1,000, 2,000, and 3,000 hertz (Hz) decibel losses
of 0, 10, 10, and 15 respectively. In the left ear appellant’s losses were 5, 5, 5, and 15 decibels.
By decision dated December 19, 2014, OWCP denied appellant’s claim finding that he
failed to establish that his hearing loss was causally related to his federal employment. It stated
that Dr. Paffrath did not support that appellant’s hearing loss was due to job-related noise
exposure.
LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or 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 employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal

2

20 C.F.R. § 10.5(q).

2

relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.3
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.4 Medical rationale 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 activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, 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 specific employment activity or factors identified by the
claimant.5
ANALYSIS
Appellant alleged that he developed hearing loss due to noise exposures in his federal
employment. It is not disputed that he was exposed to work-related noise at the employing
establishment. OWCP denied appellant’s occupational disease claim because the medical
evidence was insufficient to establish that his hearing loss was causally related to workplace
noise exposure. The Board finds that he has not established hearing loss causally related to his
federal employment.
To further develop the claim, OWCP referred appellant to Dr. Paffrath for a second
opinion evaluation. In his November 18, 2014 report, Dr. Paffrath opined that appellant’s
hearing loss was not due to noise exposure from his federal employment. He explained that
appellant’s loss of hearing was no greater than that which would have been expected to result
from age-related presbycusis.
Although appellant submitted copies of his audiograms from the employing
establishment hearing conservation program, he has not submitted sufficient medical opinion
evidence to establish that his hearing loss was caused or aggravated by workplace noise
exposure. The only medical evidence addressing the cause of appellant’s hearing loss is
Dr. Paffrath’s November 18, 2014 report, which attributed his hearing loss to his age and not his
employment.
The Board finds that the medical evidence of record does not establish that appellant’s
hearing loss was caused or aggravated by work-related noise exposure. Accordingly, the Board
finds that he has not established his claim.6

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

4

T.F., 58 ECAB 128 (2006).

5

A.D., 58 ECAB 149 (2006).

6

R.S., Docket No. 14-1995 (issued February 25, 2015).

3

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 the weight of the medical evidence does not establish that
appellant’s hearing loss was causally related to factors of his employment.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 08-101
Issued: April 8, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 12, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated July 30 and October 3, 2007. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that her
claimed left elbow/left arm/left wrist condition was causally related to factors of her federal
employment.
FACTUAL HISTORY
On June 5, 2007 appellant, a 43-year-old temporary mail handler, filed a Form CA-2 claim
for benefits, alleging that she developed a left elbow/left arm/left wrist condition causally related
to factors of her employment.

In a June 21, 2007 report, Dr. Cheryl D. Jordan-Sayles, Board-certified in family practice,
stated that appellant had wrist pain and numbness of the fingers, indicative of carpal tunnel
syndrome. She advised appellant to avoid any job duties or activities which could involve overuse
of her left arm and wrist.
By decision dated July 30, 2007, the Office denied appellant’s claim, finding that she failed
to establish fact of injury. The Office stated that the factual evidence appellant submitted did not
establish that she sustained her claimed left elbow/left arm/left wrist condition causally related to
employment factors. The Office further found that she failed to submit medical evidence
providing a diagnosis resulting from the alleged employment condition.
On August 29, 2007 appellant requested reconsideration.
In an August 23, 2007 report, Dr. G. Vincent Dalton, Board-certified in orthopedic
surgery, stated:
“[Appellant] comes in with continued left wrist pain. On her last visit we thought
that she had de Quervain’s tenosynovitis. This responded somewhat to a steroid
injection, however, [appellant] is still having some pain. I asked her further about
her injury. [Appellant] states that she was having a gradual onset of pain prior to
May 26, 2007 at which point she developed an acute exacerbation. She attributes
this to overuse at work. [Appellant] was seen by Dr. [Jordan-]Sayles and had xrays, which were negative. When we saw her, her exam[ination] was compatible
with de Quervain’s tenosynovitis.
“On exam[ination] she continues to have tenderness along the first dorsal
compartment with a positive Finkelstein sign.”
Dr. Dalton stated that he explained to appellant that he felt her symptoms were indicative
of de Quervain’s tenosynovitis, which was typically an overuse type of tendinitis. He advised
that this probably indicated that her condition resulted from overuse at work. Dr. Dalton stated
that he discussed the possibility of surgery if her symptoms progressed.
By decision dated October 3, 2007, the Office denied modification of the July 30, 2007
Office decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disability and/or specific condition

1

5 U.S.C. §§ 8101-8193.

2

for which compensation is claimed are causally related to the employment injury.2 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or 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
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized
medical evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized 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.4
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.5
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.6 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
The Board finds that appellant has failed to submit sufficient medical evidence which
relates her claimed left elbow/left arm/left wrist condition to factors of her federal employment.
For this reason, she has not discharged her burden of proof to establish her claim that her
condition was sustained in the performance of duty.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

Id.

5

See Joe T. Williams, 44 ECAB 518, 521 (1993).

6

Id.

3

Appellant submitted reports from Drs. Jordan-Sayles and Dalton. However, the reports
of these physicians did not provide a probative, rationalized medical opinion that the claimed
condition was causally related to employment factors. The weight of medical opinion is
determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated conclusions.7
Dr. Jordan-Sayles noted that appellant had wrist pain and numbness of the fingers which were
indicative of carpal tunnel syndrome. She advised appellant to avoid overuse activities at work
which could aggravate her symptoms. Dr. Dalton stated that appellant had continued left wrist
pain which he considered consistent with de Quervain’s tenosynovitis. He attributed her
symptoms to overuse at work and discussed the possibility of surgery if her symptoms increased.
The reports from Drs. Jordan-Sayles and Dalton did not describe appellant’s job duties or
explain the medical process through which such duties would have been competent to cause the
claimed condition. These reports, therefore, are of limited probative value as they do not contain
sufficient medical rationale explaining how or why appellant’s claimed left elbow/left arm/left
wrist condition was caused by or related to factors of her federal employment. Appellant therefore
failed to provide a rationalized, probative medical opinion relating her current condition to any
factors of her employment. Accordingly, she failed to submit medical evidence sufficient to
establish that her claimed left elbow/left arm/left wrist condition was causally related to her
employment.
The Office advised appellant of the evidence required to establish her claim; however,
she failed to submit such evidence. The Office advised her of the evidence required to establish
her claim; however, she failed to submit such evidence. Consequently, appellant has not met her
burden of proof in establishing that she sustained a left elbow/left arm/left wrist condition in the
performance of duty.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establish that her
claimed left elbow/left arm/left wrist condition was sustained in the performance of duty.

7

See Anna C. Leanza, 48 ECAB 115 (1996).

4

ORDER
IT IS HEREBY ORDERED THAT the October 3 and July 30, 2007 decisions of the
Office of Workers’ Compensation Programs be affirmed.
Issued: April 8, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1741
Issued: May 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 9, 2012 appellant, through her attorney, filed a timely appeal of a
February 29, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied modification of appellant’s loss of wageearning capacity on August 9, 2011 based upon her actual part-time earnings.
FACTUAL HISTORY
On February 9, 2009 appellant, a 43-year-old mail handler, injured her right shoulder and
right arm while culling mail from a culling belt. She filed a claim for benefits on February 13,
2009, which OWCP accepted for right shoulder and right arm sprain. On April 11, 2009 appellant

1

5 U.S.C. § 8101 et seq.

filed a Form CA-2a claim for benefits, alleging that she sustained a recurrence of disability
causally related to her accepted conditions. OWCP accepted the claim on August 14, 2009.
In a report dated June 16, 2010, Dr. John M. Fenlin, Board-certified in orthopedic surgery,
restricted appellant from lifting more than five pounds. Appellant returned to work in July 2010.
In a memorandum of telephone call dated October 5, 2010, OWCP verified that appellant
had been working eight hours per day, but that work was currently only available at the
employing establishment for five hours per day.
In a work capacity form report, dated March 30, 2011, Dr. Fenlin indicated that appellant
could work for eight hours per day, with restrictions on overhead lifting and reaching above the
shoulders.
In an e-mail dated April 14, 2011, the employing establishment advised OWCP that
appellant was currently working in a five-hour limited-duty position, although it was conducting a
search to determine if there was eight-hour work available within her restrictions.
On April 27, 2011 the employing establishment offered appellant a job for five hours a
day as a modified mail handler. The position entailed repairing and rewrapping damaged or
loose mail, was tailored to her physical restrictions and allowed her to work for five hours per
day, with intermittent standing/walking for 30 minutes and no overhead lifting. Appellant
accepted the job on May 4, 2011 as a modified mail handler for five hours per day.
By decision dated August 9, 2011, OWCP issued a formal wage-earning capacity
decision. It found that appellant had worked more than 60 days in the modified position and that
the actual wages she earned in the position of modified mail handler, $699.98 per week, fairly
and reasonably represented her wage-earning capacity. OWCP therefore reduced her
compensation rate to $253.31, which amounted to a monthly compensation rate of $1,066.00.
On August 12, 2011 appellant requested an oral hearing, which was held on
December 9, 2011. At the hearing, she testified that she actually returned to work in July 2010 at
an eight-hour job, in the same modified mail handler position. Appellant further stated that her
hours were reduced from eight to five hours per day in August 2010.
On September 26, 2011 appellant filed CA-7 forms for wage-loss compensation
beginning April 2 to 8, 2011. OWCP paid compensation for three hours per day.
By decision dated February 29, 2012, an OWCP hearing representative affirmed the
August 9, 2011 loss of wage-earning capacity decision. She stated that when an employee
cannot return to the date-of-injury job because of a disability due to work-related injury or
disease, but does return to alternative employment with an actual wage loss, OWCP must
determine whether the earnings in the alternative employment fairly and reasonably represented
the employee’s wage-earning capacity. The hearing representative noted that, after returning to
work on July 10, 2010, appellant returned to work for eight hours per day as a modified mail
handler. Subsequently, on August 31, 2010, appellant’s modified job was reduced to five hours
per day pursuant to the National Reassessment Program. The hearing representative further
noted that on May 4, 2011 appellant accepted a new modified mail handler position for five
hours per day. She stated that throughout this period appellant continued to work five hours per
2

day and receive compensation for wage loss for three hours per day. Based on this set of facts
which established that appellant continued to work the modified position, the hearing
representative found that OWCP properly issued a loss of wage-earning capacity decision on
August 9, 2011 based upon the claimant’s actual earnings since May 4, 2011. She further found
that appellant continued to be entitled to compensation for wage loss for three hours per day.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 When an employee cannot return to the dateof-injury job because of disability due to work-related injury or disease, but does return to
alternative employment with an actual wage loss, OWCP must determine whether the earnings in
the alternative employment fairly and reasonably represent the employee’s loss of wage-earning
capacity.3
Section 8115(a) of FECA provides that in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by his or her actual earnings
if his or her actual earnings fairly and reasonably represent his or her wage-earning capacity.4
Compensation payments are based on the wage-earning capacity determination and it remains
undisturbed until properly modified.5
OWCP’s Procedure Manual provides that the factors to be considered in determining
whether the claimant’s work fairly and reasonably represented her wage-earning capacity include
the kind of appointment and the tour of duty. The manual states that reemployment may not be
considered suitable when the position is part time, unless the claimant was a part-time worker at
the time of injury.6
ANALYSIS
On August 9, 2011 OWCP found that appellant’s actual earnings of five hours a day, as a
modified mail handler, fairly and reasonably represented her wage-earning capacity as of
May 4, 2011. Appellant’s attorney argues that, based upon her medical restrictions, appellant
was actually capable of working eight hours per day and that the modified mail handler position
artificially restricts her to working five hours per day, and was therefore erroneous.
The Board finds that the August 9, 2011 wage-earning capacity determination was
erroneous when issued.
2

5 U.S.C. § 8102(a).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (September 2011).
4

5 U.S.C. § 8115.

5

See Loni J. Cleveland, 52 ECAB 171 (2000).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage Earning Capacity,
Chapter 2.814.7 (September 2011). See also S.M., Docket No. 10-2382 (issued September 28, 2011); E.F., Docket
No. 11-2056 (issued May 14, 2012).

3

Appellant had been employed in a full-time position at the time of injury. The medical
evidence of record also establishes that she was capable of performing full-time modified work
as of August 2010. On May 4, 2011 appellant assumed part-time job duties, five hours a day,
which were the basis of the August 9, 2011 loss of wage-earning capacity.7 OWCP’s own
procedures state that a part-time position may not be suitable as the basis of a loss of wageearning capacity determination if appellant was a full-time employee at the time of injury.
OWCP’s August 9, 2011 determination that appellant’s five-hour-a-day wages represented her
wage-earning capacity was therefore erroneous.
The Board will set aside the February 29, 2012 decision.
CONCLUSION
The Board finds that the February 29, 2012 wage-earning capacity decision is reversed.
ORDER
IT IS HEREBY ORDERED THAT the February 29, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 13, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7

A part-time tour of duty is defined by OWCP directive at Federal (FECA) Procedure Manual, Part 2 -Determining Pay Rates, Chapter 2.900.3(a)(2) (March 2011) as between 16 and 32 hours a week.

4


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

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

Docket No. 18-1334
Issued: March 7, 2019

Case Submitted on the Record

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

JURISDICTION
On June 26, 2018 appellant filed a timely appeal from a June 14, 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish more than eight
percent permanent impairment of his left upper extremity for which he has previously received a
schedule award.
FACTUAL HISTORY
On September 14, 2015 appellant, then a 61-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that he sustained an aggravation of his
1

5 U.S.C. § 8101 et seq.

preexisting left carpal tunnel syndrome while in the performance of his federal employment duties.
On April 27, 2016 OWCP accepted the claim for left carpal tunnel syndrome.2
On May 13, 2011 appellant underwent nerve conduction velocity testing which
demonstrated bilateral trans carpal median neuropathies, greater on the right side.
In a report dated August 19, 2015, Dr. Victoria D. Kubik, a Board-certified orthopedic
surgeon, recommended left carpal tunnel surgical intervention. On August 19, 2015 she performed
left carpal tunnel release, left wrist ulnar nerve release, and left radial tunnel and extensor carpi
radialis brevis releases. Dr. Kubik found compression of the ulnar nerve at the Guyon’s canal, left
upper extremity radial tunnel, recurrent carpal tunnel, and lateral epicondylitis.
Dr. Kubik, in a February 23, 2016 report, summarized appellant’s medical history and
treatment for his carpal tunnel condition and tendinitis. Following the August 19, 2015 surgery
appellant reported tingling numbness, and some forearm pain, but overall significant improvement.
Dr. Kubik released him as his symptoms significantly improved following the August 19, 2015
surgery.
In a May 3, 2016 report, Dr. Kubik opined that appellant had reached maximum medical
improvement (MMI) and was status post ulnar nerve through Guyon’s canal, left carpal tunnel
release, and left radial tunnel release with extensor carpi radialis brevis tendon release.
In a letter dated June 4, 2016, appellant filed a claim for a schedule award (Form CA-7).
By development letter dated June 16, 2016, OWCP informed appellant that additional
medical evidence was necessary to establish his schedule award claim. It advised him to submit a
report from his treating physician which evaluated his permanent impairment pursuant to the sixth
edition of the American Medical Association Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).3 OWCP afforded him 30 days to submit the necessary evidence.
Appellant subsequently submitted a report dated June 21, 2016, wherein Dr. Kubik
indicated that she did not perform permanent impairment ratings.
OWCP forwarded Dr. Kubik’s reports of record to Dr. Michael M. Katz, a Board-certified
orthopedic surgeon serving as an OWCP district medical adviser (DMA). In a November 2, 2016
report, Dr. Katz reviewed the medical evidence of record and found that it lacked sufficient detail
for a permanent impairment determination. He recommended that a second opinion physician who
is familiar with the sixth edition of the A.M.A., Guides examine and rate appellant’s permanent
impairment.
On February 13, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. Michael S. Clarke, a Board-certified orthopedic surgeon. In a February 22, 2017 report,
2

Under OWCP File No. xxxxxx371, OWCP had accepted appellant’s March 14, 2003 claim for bilateral carpal
tunnel syndrome and on June 5, 2006 granted a schedule award for an eight percent permanent impairment of his left
upper extremity.
3

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

2

Dr. Clarke, reviewed the medical record, a statement of accepted facts (SOAF), and a list of
questions regarding appellant’s permanent impairment. He related appellant’s complaints of left
fingertip numbness of his four lateral fingers and grip weakness. Appellant’s physical examination
revealed no decreased medical nerve sensation, an equivocal Phalen’s test, positive reverse
Phalen’s test, negative Froment’s and Finkelstein’s tests, negative carpal tunnel Tinel’s sign, and
no old sensitivity. Dr. Clarke attributed appellant’s persistent lateral elbow pain to lateral
epicondylitis, which he advised could be treated by injections. He provided an impairment rating
utilizing Table 15-23, Entrapment/Compression neuropathy of the A.M.A., Guides.4 Dr. Clarke
noted that the diagnosis of carpal tunnel syndrome had been confirmed prior to his two carpal
tunnel release surgeries. He concluded that test findings of reduced conduction delay resulted in
a grade modifier of 1.5 Dr. Clarke noted that appellant’s complaints of numbness and pain resulted
in a grade modifier of 1 for history. He found that his physical findings of decreased sensation
resulted in a grade modifier of 2 for physical findings. Dr. Clarke averaged these grade modifiers
and found that the appropriate grade modifier was 1.33, which he rounded down to 1. He then
proceeded to modify the default impairment for Grade 2 based on the functional scale grade.
Dr. Clarke found that appellant’s QuickDASH score was 43, which equaled a moderate grade.
Dr. Moore concluded that appellant had a total of three percent permanent impairment of the left
upper extremity.
On April 22, 2017 Dr. Katz reviewed Dr. Clarke’s February 22, 2017 report and concurred
with his finding of three percent left upper extremity permanent impairment. In a supplemental
report dated April 27, 2017, he reviewed additional information under OWCP File No. xxxxxx371,
along with Dr. Clarke’s February 22, 2017 report. Dr. Katz noted that appellant had previously
been granted a schedule award for eight percent left upper extremity permanent impairment based
on a May 10, 2006 DMA report under OWCP File No. xxxxxx371. He again concurred with
Dr. Clarke that appellant currently had three percent permanent impairment of the left upper
extremity.
By decision dated June 14, 2018, OWCP denied appellant’s claim for an additional
schedule award. It found that he had not established more than the eight percent left upper
extremity permanent impairment previously awarded under OWCP File No. xxxxxx371.
LEGAL PRECEDENT
The schedule award provisions of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
or 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
4

Id. at 449, Table 15-23.

5

Id.

6

Supra note 1.

7

20 C.F.R. § 10.404.

3

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, published in 2009.8 The Board has approved the use by OWCP of the A.M.A., Guides for
the purpose of determining the percentage loss of use of a member of the body for schedule award
purposes.9 It is well established that in determining the amount of a schedule award for a member
of the body that sustained an employment-related impairment, preexisting impairments are to be
included.10
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.11 In
Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the categories Test
Findings, History, and Physical Findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser providing
rationale for the percentage of impairment specified.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than an
eight percent permanent impairment of his left upper extremity for which he previously received
schedule award compensation.
The Board notes that on June 5, 2006, OWCP granted appellant a schedule award for eight
percent permanent impairment of the left upper extremity due to his accepted left carpal tunnel
syndrome under OWCP File No. xxxxxx371.14
In support of his current claim appellant submitted reports dated February 23 and May 3,
2016 from Dr. Kubik. Dr. Kubik noted that appellant was released from her care in the
8
For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

P.R., id.; Carol A. Smart, 57 ECAB 340 (2006).

11

A.M.A., Guides 449, Table 15-23; 449. See also L.G., Docket No. 18-0065 (issued June 11, 2018).

12

Id. at 448-49.

13

See supra note 8 at Chapter 2.808.6(d) (March 2017).

14

See supra note 2.

4

February 22, 2016 report and indicated that he had reached MMI. She indicated that she did not
perform permanent impairment ratings.
In his February 22, 2017 second opinion report, Dr. Clarke, a Board-certified orthopedic
surgeon, calculated three percent permanent impairment of the left upper extremity for appellant’s
accepted left carpal tunnel syndrome under the A.M.A., Guides using the formula set forth above.
Dr. Clarke provided clinical findings and explained how those objective elements
warranted the percentages assessed.
OWCP’s DMA, Dr. Katz, concurred with Dr. Clarke’s three percent left upper permanent
impairment rating and methodology.
The Board finds that OWCP properly found the impairment ratings by Dr. Clarke and
Dr. Katz constituted the weight of the medical evidence. Dr. Clarke’s opinion was based on an
accurate SOAF and the complete medical record. He provided a thorough impairment rating,
utilizing the appropriate portions of the A.M.A., Guides. Dr. Clarke described how the objective
clinical findings, intermittent symptoms, and physical examination warranted the specified
percentage of impairment. There is no probative medical evidence of record demonstrating that
appellant sustained more than the eight percent permanent impairment of his left upper extremity
previously awarded due to his accepted left upper extremity carpal tunnel syndrome under OWCP
File No xxxxxx371. Thus, appellant has not met his burden of proof.15
On appeal appellant disagrees with OWCP’s impairment rating and contends that OWCP
failed to properly review his claim. As set forth above, the Board has found that the opinion of
Dr. Clarke constituted the weight of the evidence. Appellant further asserts that OWCP failed to
timely process his schedule award claim. The Board finds that there is no evidence of record
establishing a delay in the processing and adjudication of the schedule award claim.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established more than eight percent permanent
impairment of his left upper extremity, for which he has previously received a schedule award.

15

OWCP should consider combining OWCP File Nos. xxxxxx533 and xxxxxx371. It’s procedures provide that
cases should be combined when correct adjudication of the issue(s) depends on frequent cross-reference between files.
Supra note 8 at Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c) (February 2000).

5

ORDER
IT IS HEREBY ORDERED THAT the June 14, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 7, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ALEDA E. LUTZ VA MEDICAL CENTER,
Saginaw, MI, Employer
__________________________________________

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

Docket No. 20-0116
Issued: June 23, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 18, 2019 appellant, through counsel, filed a timely appeal from an August 12,
2019 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.

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 back condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On April 30, 2018 appellant, then a 51-year-old medical supply technician, filed an
occupational disease claim (Form CA-2) alleging that she developed a back condition due to
factors of her federal employment including repetitive pushing and pulling heavy medical carts
and equipment and standing without back support for long periods of time. She indicated that she
first became aware of her condition on February 12, 2017, the date she underwent a spinal fusion
at L5-S1, and first attributed it to her federal employment on February 21, 2018. Appellant did
not stop work.
In an initial incident report dated April 30, 2018, the employing establishment indicated
that appellant had sustained a sprain/strain of her lower back/buttocks and upper back and listed a
date of occurrence of April 9, 2018. It reported that she had previously undergone back surgery
(spinal fusion) on February 12, 2017 and was now experiencing an exacerbation of pain and
decreased range of motion in her back when she was pushing and pulling carts, especially around
corners or pulling onto and off of the elevators, as well as while lifting supplies.
In a development letter dated May 17, 2018, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It informed her of the type of evidence necessary
to establish her claim and provided a series of questions for her completion regarding the facts and
circumstances of the injury. OWCP afforded appellant 30 days to submit the necessary evidence.
On June 4, 2018 the employing establishment submitted a position description and a
May 29, 2018 response from appellant’s supervisor indicating that appellant had stated that
initially pushing the carts was hurting her back and that she later thought it was due to standing at
the sink. Appellant’s supervisor advised that appellant had not pushed a heavy cart since she had
complained in February 2018 that the activity was hurting her back.
Appellant subsequently submitted a June 15, 2018 letter indicating that she had a magnetic
resonance imaging (MRI) scan on June 12, 2018 and was awaiting the results. She noted her date
of injury as February 12, 2018, which was exactly one year to the date from her original spine
surgery on February 12, 2017.
In a June 25, 2018 narrative statement, appellant responded to the questions propounded
by OWCP. She indicated that the injury to her back was caused by the additional strain put on her
back during construction of her department since it was completely gutted and she was put in a
small office with one small sink, which required everything to be cleaned by hand. Appellant
explained that, in an eight-hour shift, she was at the sink cleaning equipment for at least three or
four hours. The remainder of the time was spent going to all the areas of the hospital picking up
dirty instrumentation and equipment so that appellant could clean it. Appellant indicated that this
lasted from February 12 to May 9, 2018.

2

In a May 14, 2018 note, Kristi A. Tesarz, a physician assistant, diagnosed myalgia, lumbar
radiculopathy, and sciatica.
A May 22, 2018 report from Dr. Michaele C. Oostendorp, a Board-certified internist,
diagnosed benign essential hypertension, lumbar hernia, urinary tract infection (resolved), vitamin
B12 and D deficiency, migraine headache, and right-sided sciatica. She indicated that appellant’s
lower radiating back pain improved after her back surgery, but she still had limitations with
repetitive movements, bending, twisting, and lifting.
A June 12, 2018 MRI scan of the lumbar spine demonstrated no evidence of an acute
fracture or spondylolisthesis. A disc herniation was present in the midline and slightly eccentric
to the right at the L4-5 disc level and mild-to-very-mild impingement upon the neural foramina
bilaterally from L3 through S1.
In a report dated June 25, 2018, Dr. Craig J. Everingham, a Board-certified family
practitioner, indicated that appellant was seen in May 2018 regarding an injury at work in
February 2018. Appellant had presented with severe low back pain with myospasms and severe
right leg pain. Dr. Everingham opined that these conditions prevented her from performing normal
daily activities, as well as work activities. He concluded that appellant’s sustained injuries were
directly caused by physical activity required by the employing establishment, opining that the
physical activity at work exacerbated her already lingering low back problem which included her
prior fusion surgery in 2017.
By decision dated July 2, 2018, OWCP denied appellant’s occupational disease claim. It
accepted her employment duties as described, but denied her claim because she had failed to
submit any medical evidence establishing a medical diagnosis. Therefore, OWCP found that the
requirements had not been met to establish an injury as defined by FECA.
On March 19, 2019 appellant, through counsel, requested reconsideration.
Appellant submitted a July 13, 2018 report from Dr. Joseph K. Llanos, a Board- certified
occupational medicine specialist, indicating that her physical examination was normal and
unremarkable. Dr. Llanos found that she was unable to fully touch her toes with both hands/fingers
on forward flexion of the trunk and was able to perform bending, but was hesitant to do repeated
bending due to her history of chronic back pain and spinal fusion. He noted that appellant had
claimed that her spine physician had recommended another spinal fusion at L4-5.
Appellant further submitted a note dated September 18, 2018 from Ms. Tesarz.
In an October 28, 2018 hospital report Dr. Melanie L. Aaberg, a Board-certified emergency
medicine specialist, diagnosed chronic low back pain refractory to her surgery 18 months prior.
Dr. Aaberg also indicated that her past medical history included degenerative disc disorder, lumbar
stenosis, and arthritis.
On October 31, 2018 appellant underwent a spinal fusion surgery at L4-5, performed by
Dr. William A. Athens, a Board-certified orthopedic surgeon.

3

By decision dated August 12, 2019, OWCP affirmed its July 2, 2018 decision, as modified,
finding that the evidence of record contained a medical diagnosis, but was insufficient to establish
causal relationship between appellant’s diagnosed back conditions and the accepted factors of her
federal employment.
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 period of FECA,3 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.4 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.5
To establish that an injury sustained in the performance of duty in an occupational disease
claim, a claimant must submit: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which compensation
is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related
to the identified employment factors.6
Rationalized medical opinion evidence is required to establish causal relationship. 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 incident.7
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.8

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
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).
6

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

J.L., Docket No. 18-1804 (issued April 12, 2019).

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted factors of her federal employment.
In his June 25, 2018 report, Dr. Everingham diagnosed severe low back pain with
myospasms and severe right leg pain. He opined that appellant’s injuries were directly caused by
physical activity required by her employing establishment and concluded that her physical work
activity exacerbated her already lingering low back problem, which included a 2017 lumbar fusion
surgery. Dr. Everingham did not provide rationale explaining how her condition resulted from the
accepted employment exposure of repetitive pushing and pulling heavy medical carts and
equipment and prolonged standing. The Board has held that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition was related to related employment factors.9 Additionally, such medical
rationale is particularly important in light of appellant’s preexisting lumbar conditions.10 As
Dr. Everingham report does not provide a well-rationalized opinion on causal relationship, it is
insufficient to meet appellant’s burden of proof.
OWCP received a series of reports from Drs. Oostendorp, Llanos, Aaberg, and Athens. In
his May 22, 2018 report, Dr. Oostendorp diagnosed right-sided sciatica. Dr. Llanos in his July 13,
2018 report, noted unremarkable physical examination findings and provided a history of
appellant’s chronic back pain and spinal fusion. On October 28, 2018 Dr. Aaberg diagnosed
chronic low back pain refractory to her surgery 18 months prior and indicated that appellant had
been previously diagnosed with degenerative disc disorder, lumbar stenosis, and arthritis.
Dr. Athens performed a spinal fusion at L4-5 on October 31, 2018. None of these physicians,
however, provided an opinion as to the cause of appellant’s most recent spinal condition. Medical
evidence that does not offer an opinion regarding the cause of an employee’s condition or disability
is of no probative value on the issue of causal relationship.11 As the reports from Drs. Oostendorp,
Llanos, Aaberg, and Athens do not provide an opinion on causal relationship, they are insufficient
to meet appellant’s burden of proof.12
Appellant submitted notes from a physician assistant, in support of her claim. Certain
healthcare providers such as physician assistants, nurse practitioners, physical therapists, and
social workers are not considered “physician[s]” as defined under FECA.13 Consequently, their

9
D.L., Docket No. 19-0900 (issued October 28, 2019); Y.D., Docket No. 16-1896 (issued February 10, 2017); C.M.,
Docket No. 14-0088 (issued April 18, 2014).
10

See L.J., Docket No. 19-1343 (issued February 26, 2020).

11

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

12

Id.

13

Section 8101(2) of FECA provides that medical opinion, in general, can only be given by a qualified physician.
This section defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by state law. See also B.J., Docket No. 181276 (issued February 4, 2019); J.R., Docket No. 18-0801 (issued November 26, 2018).

5

medical findings and/or opinions are of no probative value and will not suffice for purposes of
establishing entitlement to compensation benefits.14
Appellant also submitted diagnostic testing reports in support of her claim, but these
diagnostic tests do not address the etiology of her medical conditions.15 The Board has held that
diagnostic tests, standing alone, lack probative value on the issue of causal relationship as they do
not provide an opinion on the relationship between the employment incident and a claimant’s
diagnosed condition.16
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. As noted
above, there is no rationalized medical evidence of record that establishes causal relationship to
the accepted employment exposure, appellant has not met her burden of proof.
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 not met her burden of proof to establish a back condition
causally related to the accepted factors of her federal employment.

14

David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006); see also S.J., Docket No. 17-0783, n.2 (issued April 9, 2018)
(nurse practitioners are not considered physicians under FECA).
15

J.P., Docket No. 18-1486 (issued April 15, 2019).

16

G.S., Docket No. 18-1696 (issued March 26, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the August 12, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 23, 2020
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 11-884
Issued: March 8, 2012

Case Submitted on the Record

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

JURISDICTION
On February 22, 2011 appellant, through her attorney, filed a timely appeal of an
August 20, 2010 Office of Workers’ Compensation Programs’ (OWCP) merit decision
terminating her benefits.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c)(1) and 501.3, the Board has jurisdiction to consider the merits of the case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit
decision was issued on August 20, 2010, the 180-day computation begins on August 21, 2010. One hundred and
eighty days from August 21, 2010 was February 16, 2011. Since using February 22, 2011, the date the appeal was
received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered
the date of filing. The date of the U.S. Postal Service postmark is February 15, 2011, which renders the appeal
timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective August 29, 2010.
FACTUAL HISTORY
On May 19, 1999 appellant, then a 42-year-old distribution clerk, filed a traumatic injury
claim alleging that she injured her right hand and arm casing mail on April 29, 1999. OWCP
accepted her claim for carpal tunnel syndrome of the right wrist on September 22, 1999.
Appellant returned to light-duty work. She filed a notice of recurrence of disability on
May 25, 2000. Appellant underwent surgery for right carpal tunnel release on June 21, 2000.
OWCP authorized left carpal tunnel release on September 21, 2000. Appellant underwent left
carpal tunnel release on November 10, 2000. OWCP accepted bilateral carpal tunnel syndrome
and bilateral synovitis of the wrists with bilateral carpal tunnel release. Dr. James E. Lowe, Jr., a
Board-certified surgeon, completed a work capacity evaluation and opined that due to persistent
synovitis appellant could not work eight hours a day. He indicated that appellant could work
four hours a day with restrictions. In a report dated May 23, 2002, Dr. Lowe diagnosed
de Quervain’s syndrome bilaterally and recommended a surgical release.
Dr. Eddie N. Powell, an attending physician specializing in geriatric medicine, completed
a work capacity evaluation on October 5, 2007. He opined that appellant was disabled from her
usual position due to carpal tunnel syndrome with neurogenic edema, claudication of the right
leg, polyneuropathy, parathesia and asthma.
OWCP referred appellant for a second opinion evaluation with Dr. Edward Mulcahy, a
Board-certified orthopedic surgeon, on September 4, 2009.3
On October 13, 2009 Dr. Mulcahy reviewed appellant’s factual and medical history. He
noted that appellant had a normal nerve conduction test in 2006, and a functional capacity
examination in 2009 which found low voluntary effort and inconsistent findings. Dr. Mulcahy
found normal range of motion of appellant’s wrists, decreased grip strength in both hands but
little conscious effort to grasp with the right hand. He noted that appellant had no sensory loss or
atrophy in either hand. Dr. Mulcahy listed his only positive finding as tenderness to any pressure
or palpation about her distal forearm or wrist. He opined that appellant was over-reactive to the
examination and displayed symptom magnification. Dr. Mulcahy stated that based on his
examination as well as multiple negative nerve conduction studies there were no objective
physical findings that would prohibit appellant from performing her date-of-injury position. He
recommended a rheumatologic evaluation for arthritis or fibromyalgia and a psychological
evaluation to explain her symptomatology.
OWCP referred appellant for an impartial medical examination with Dr. Robert Elkins, a
Board-certified orthopedic surgeon, based on a conflict between Drs. Powell and Mulcahy
3

Appellant underwent a functional capacity evaluation on September 23, 2009. This testing revealed poor or
voluntarily submaximal effort as well as nonorganic signs and concluded that appellant could perform sedentary or
light-duty positions.

2

regarding appellant’s continuing employment-related condition and her ability to work on
December 15, 2009. In a report dated January 20, 2010, Dr. Elkins noted appellant’s history of
injury and reviewed the statement of accepted facts. He also considered appellant’s medical
records noting that her nerve conduction velocity testing in 2002 was normal. Dr. Elkins
performed a physical examination finding tenderness in the lateral forearm and wrist, but a
negative Tinel’s sign. He found that appellant’s tenderness was nonphysiologic in nature as
there was no real tenderness in her neck, shoulder, scapula, arm, forearm or trigger points.
Dr. Elkins also determined that her complaints of dullness in the right arm were nonphysiologic.
He found that appellant’s motor strength was invalid. Dr. Elkins opined that appellant’s bilateral
carpal tunnel syndrome had resolved and diagnosed moderate symptom magnification and pain
accentuation. He stated that appellant could return to her date-of-injury position with no
restrictions. Dr. Elkins completed a work capacity evaluation on January 20, 2010 and again
opined that the work-related condition of carpal tunnel syndrome had resolved and that appellant
could return to work with no restrictions.
Dr. Powell treated appellant on April 9, 2010 and diagnosed chronic carpal tunnel
syndrome. He opined that appellant was totally disabled and could not lift or carry.
In a letter dated July 16, 2010, OWCP proposed to terminate appellant’s compensation
benefits based on Dr. Elkin’s January 20, 2010 report.
On August 5, 2010 appellant disagreed with Dr. Elkins description of her symptoms,
noting that she continued to experience pain, numbness and weakness as a result of her accepted
employment injury. Dr. Powell completed a progress note on July 30, 2010 and included
appellant’s statement that she continued to drop things. He diagnosed chronic carpal tunnel
syndrome with polyneuropathy. Dr. Powell stated that appellant had carpal tunnel syndrome
findings present. On August 3, 2010 Dr. Powell opined that appellant was totally and
permanently disabled due to chronic bilateral carpal tunnel syndrome with decreased left grip
strength and bilateral median nerve tenderness resulting in the dropping of objects and the need
for wrist splints.
By decision dated August 20, 2001, OWCP terminated appellant’s medical and wage-loss
compensation benefits effective August 29, 2010. It found that the weight of medical opinion
was represented by Dr. Elkins, the impartial specialist.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.4 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.5 The right to medical benefits for an accepted

4

Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

Id.

3

condition is not limited to the period of entitlement for disability.6 To terminate authorization for
medical treatment, OWCP must establish that appellant no longer has residuals of an
employment-related condition which require further medical treatment.7
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.8 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.9 In situations where there are 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 on a proper factual background, must be given special weight.10
ANALYSIS
Appellant’s attending physician, Dr. Powell found that she was totally disabled due to her
accepted condition of bilateral carpal tunnel syndrome. The referral physician, Dr. Mulcahy,
reviewed the statement of accepted facts and examined appellant. He found that she had no
disability or medical residuals as a result of her accepted condition. Due to the conflict of
medical opinion evidence, OWCP properly referred appellant to Dr. Elkins to resolve the
conflict.
In a report dated January 20, 2010, Dr. Elkins provided an accurate factual and medical
history based on the statement of accepted facts and a review of the medical record. He found
that appellant’s physical examination lacked objective finding with a negative Tinel’s sign.
Dr. Elkins attributed appellant’s arm symptoms to nonphysiological causes and also that her
motor strength testing was invalid. He concluded that appellant’s accepted condition of bilateral
carpal tunnel syndrome had resolved and diagnosed moderate symptom magnification and pain
accentuation. Dr. Elkins found that appellant could return to her date-of-injury position with no
restrictions.
The Board finds that Dr. Elkins’ report was based on an accurate factual and medical
background. Dr. Elkins provided physical findings in support of his conclusions that appellant’s
disability and medical residuals had ended by noting that appellant had no objective findings
such as positive nerve conduction studies or positive Tinel’s sign. He attributed appellant’s
current symptoms to symptom magnification and pain accentuation. As Dr. Elkins described
6

Furman G. Peake, 41 ECAB 361, 364 (1990).

7

Id.

8

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

9

R.C., 58 ECAB 238 (2006).

10

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

4

appellant’s lack of objective physical findings, he has provided a basis for his conclusions that
appellant has no continuing medical residuals or disability as a result of her accepted
employment injury. The Board finds that this report is entitled to special weight.
Following Dr. Elkin’s report, appellant submitted additional medical evidence from
Dr. Powell, who repeated the diagnosis of chronic carpal tunnel syndrome. He reiterated that
appellant was totally disabled and could not lift or carry. Dr. Powell included appellant’s
statement that she continued to drop things, had decreased left grip strength and bilateral median
nerve tenderness. The Board finds that Dr. Powell’s reports are not sufficient to overcome the
special weight attributed to Dr. Elkin’s report. Dr. Powell did not provide a narrative report with
a history of injury or that detailed physical findings. His notes rely on appellant’s assertions of
her tendency to drop objects and do not address the negative nerve conduction results, provide
test result or address the findings of the functional capacity evaluation. Dr. Powell did not set
forth physical findings or medical reasoning in support of his opinion. Moreover, he was on one
side of the conflict that Dr. Elkins was selected to resolve. The additional reports from
Dr. Powell are insufficient to overcome the weight accorded Dr. Elkins’s report as the impartial
medical specialist or to create a new conflict with it.11
The Board finds that the special weight of the medical evidence as represented by
Dr. Elkins’ well-reasoned report establishes that appellant’s disability and medical residuals as a
result of her accepted bilateral carpal tunnel syndrome have resolved. Dr. Elkin’s report is
sufficient to meet OWCP’s burden of proof to terminate appellant’s compensation and medical
benefits.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective August 29, 2010.

11

Dorothy Sidwell, 41 ECAB 857, 874 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the August 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6