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

)
)
)
)
)
)
)
)
)

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

Docket No. 09-621
Issued: September 18, 2009

Case Submitted on the Record

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

JURISDICTION
On January 2, 2009 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated April 7 and December 4, 2008 that denied her claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has a back
condition that was caused or aggravated by factors of her federal employment.
FACTUAL HISTORY
On January 7, 2008 appellant, then a 51-year-old automation clerk, filed an occupational
disease claim, Form CA-2, alleging that the physical requirements of her employment caused
herniated discs at L3-4 and L4-5 and a torn disc at L4-5. The employing establishment noted

that she had been on limited duty since a June 2006 shoulder injury.1 In a January 7, 2008
statement, appellant described her work activities from June 1997 to August 2006. She worked
on automated equipment, noting that the job required daily bending and twisting, pushing and
pulling. Appellant stated that, after she was removed from the machines, she expected her back
and hips to improve.
In a December 14, 2007 report, Dr. Edward Gabelman, a Board-certified orthopedic
surgeon, noted appellant’s complaint of low back, bilateral hip and left knee pain. Physical
examination of the lumbar spine demonstrated moderate spasm and tenderness to palpation with
moderate restriction of all motion. Straight leg raise was positive on the left. Dr. Gabelman
diagnosed lumbar sprain, bilateral hip sprains and strains, sprain and strain of the left knee, left
chondromalacia patellae and lumbosacral radiculopathy. A December 21, 2007 magnetic
resonance imaging (MRI) scan of the lumbar spine demonstrated an annular bulge and disc tear
at L4-5 with a left paracentral posterior disc herniation and disc bulging at L3-4.
By letter dated January 14, 2008, the Office informed appellant of the evidence needed to
support her claim. It requested a reasoned medical opinion from a physician describing how
appellant’s work duties caused accelerated, aggravated or precipitated her back condition. In a
January 25, 2008 letter, appellant stated that she stopped work on automation machines in
August 2006 and worked thereafter in a sit-down position. However, she sustained repetitive
traumas working on the machines and her sit-down work required bending to retrieve mail on
occasion. Appellant noted that it was difficult for her to get up and walk.
On January 31, 2008 Dr. Robert D. Zaas, Board-certified in orthopedic surgery, noted
appellant’s report that her lower back became painful as a result of repetitious work on a postal
machine, worse on the left with radiating pain into her left leg. Appellant was now on light duty
with a lifting restriction of 8 to 10 pounds, limited pushing and pulling and limited walking, but
she had to get up and move around periodically and was not able to work overtime. Dr. Zaas
discussed the MRI scan findings and advised that physical examination of the lumbar spine
demonstrated tenderness and muscle spasm, with increased pain on flexion and lateral bending.
There was no atrophy, motor or sensory loss present. Dr. Zaas stated that the claim had been
accepted for lumbar sprain, sprain/strain of the hips, sprain/strain of the left knee, left
chondromalacia patellae and lumbosacral radiculopathy. He recommended conservative
treatment, noting that he found no evidence of active radiculopathy. Dr. Zaas concluded that
appellant could perform light duty and provided a duty status report, advising that she could
work eight hours a day with sitting of six to eight hours, limited standing and walking, no
kneeling, bending, stooping and twisting, limited pushing, pulling and reaching above the
shoulder, with a 5- to 10-pound weight restriction.
By decision dated April 7, 2008, the Office denied the claim on the grounds that the
medical evidence of record was insufficient to establish that appellant’s back condition was
caused by employment.

1

The record indicates that appellant has an occupational disease claim accepted for cervical strain and bilateral
shoulder somatic dysfunction.

2

On May 7, 2008 appellant, through her attorney, requested a hearing, which was held
telephonically on September 12, 2008. At the hearing, appellant testified that she began having
problems with her back, both hips and left knee in 2005 when she was still working on the
machines. She described her back and hip symptoms and noted that she had recently had surgery
for her accepted shoulder condition and was still off work. Appellant receiving wage-loss
compensation under that claim and that she had only seen Dr. Zaas on one occasion. In a
November 13, 2008 report, Dr. Zaas noted that he reexamined her and that she had returned to
light duty six weeks prior. He recorded appellant’s complaint of radiating lumbar pain and
provided examination findings. Dr. Zaas again noted that the claim had been accepted for back
and knee conditions and recommended physical therapy.
In a December 4, 2008 decision, an Office hearing representative affirmed the April 7,
2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing 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 for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim, regardless of whether the asserted claim
involves traumatic injury or occupational disease, an employee must satisfy this burden of
proof.3
Office regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”4 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 diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion 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.5

2

5 U.S.C. §§ 8101-8193.

3

Roy L. Humphrey, 57 ECAB 238 (2005).

4

20 C.F.R. § 10.5(ee).

5

Roy L. Humphrey, supra note 3.

3

Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical 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.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that her back
condition is causally related to her federal employment. The December 21, 2007 MRI scan of
the lumbar spine did not address the cause of the diagnosed conditions. Medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.9 Neither Dr. Gabelman in his December 14, 2007
report nor Dr. Zaas in his reports dated January 31 and November 13, 2008, discussed the cause
of appellant’s back condition. Dr. Gabelman noted findings on physical examination, but his
treatment note did not obtain a history of appellant’s employment or address how her work
duties contributed to her condition. Dr. Zaas noted a 21-year history of work at the employing
establishment but erroneously reported the physician’s impression that appellant’s claim had
been accepted for low back conditions. The fact that work activities produced pain or discomfort
revelatory of an underlying condition does not raise an inference of causal relationship.10 The
opinion of a physician supporting causal relationship must be one of reasonable medical
certainty that the condition for which compensation is claimed is causally related to federal
employment and such relationship must be supported with affirmative evidence, explained by
medical rationale and be based upon a complete and accurate medical and factual background of
the claimant.11 Appellant submitted no such evidence in this case.
CONCLUSION
The Board finds that appellant did not establish that she sustained a back condition
causally related to factors of her federal employment.
6

D.G., 59 ECAB ____ (Docket No. 08-1139, issued September 24, 2008).

7

Id.

8

Roy L. Humphrey, supra note 3.

9

Willie M. Miller, 53 ECAB 697 (2002).

10

Jimmie H. Duckett, 52 ECAB 332 (2001).

11

Patricia J. Glenn, 53 ECAB 159 (2001).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 4 and April 7, 2008 be affirmed.
Issued: September 18, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0432
Issued: June 21, 2016

Case Submitted on the Record

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

JURISDICTION
On January 7, 2015 appellant filed a timely appeal of a November 6, 2015 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.2
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to the accepted May 13, 2015 employment incident.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence with his appeal to the Board. However, the Board may
only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). The Board is
therefore precluded from reviewing this new evidence.

FACTUAL HISTORY
On May 15, 2015 appellant, then a 47-year-old electrician, filed a traumatic injury claim
(Form CA-1) alleging that on May 13, 2015 he sustained injuries to his right shoulder, knee,
ankle, wrist, and hand due to tripping and falling into a hole at the loading dock parking area of
building 1 where he worked. He stopped work on May 14, 2015.
In support of his claim appellant submitted May 22 and June 5, 2015 reports from
Brittany Rose Coleman, a certified physician assistant. In the May 22, 2015 report,
Ms. Coleman noted that appellant was seen for right shoulder pain from a work injury sustained
the prior week. A physical examination of the right shoulder revealed positive right rotator cuff
impingement sign and decreased strength. In a separate May 22, 2015 document, Ms. Coleman
diagnosed a complete rupture of the right rotator cuff. In a June 5, 2015 disability note, she
reported that appellant was disabled from work until June 25, 2015 due to an employmentrelated shoulder injury.
A May 26, 2015 authorization for examination and treatment (Form CA-16), was
completed by Ivy L. Hill, an employing establishment authorizing official. It noted an injury
date of May 14, 20153 and a diagnosis of injured shoulder. Treatment for the effects of the
diagnosed condition was authorized.
In a letter dated June 15, 2015 letter, OWCP informed appellant that payment of a limited
amount of medical expenses had been authorized as it appeared that he had sustained a minor
injury. As the medical bills have exceeded $1,500.00, it had reopened his claim for
consideration. OWCP informed appellant that the evidence was insufficient to establish that the
incident occurred as alleged. It also informed him that the medical evidence was also
insufficient as physician assistants are not considered physicians under FECA and no medical
report from a physician had been received. Appellant was advised as to the medical and factual
evidence required to establish his claim and afforded him 30 days to provide this evidence.
In response to OWCP’s request for additional information appellant submitted medical
and factual evidence.
Appellant responded to OWCP’s questions regarding the incident, provided the names of
Victor Pavone and John T. Tomkins as the names of witnesses and related that appellant landed
on his right side. He stated that he sustained right shoulder, wrist, knee, and ankle injuries.
In a statement dated May 13, 2015, Mr. Pavone related that he was walking with
appellant that day when appellant tripped and fell into a hole. Due to the trip and fall, appellant
landed on his right knee and shoulder and twisted his right ankle.
In a June 30, 2015 statement Mr. Tomkins, a plumbing shop foreman, related that on
May 13, 2015 he witnessed appellant walk into a hole in the dock area and fall with his right arm
buckling and shoulder slamming into the concrete parking lot.

3

This appears to be the date appellant stopped work instead of the date the injury occurred.

2

A May 27, 2015 magnetic resonance imaging (MRI) scan revealed no rotator cuff
tear and no gross labral tear. It did reveal glenohumeral joint osteoarthritis with extensive
subcortical cystic changes, cartilage thinning and loss on posterior glenoid fossa, and deformity
of the posterior glenoid rim probably related to remodeling or possibly to remote trauma.
In a June 25, 2015 attending physician’s report (Form CA-20), Ms. Coleman noted that
on May 15, 2015 appellant tripped in a concrete hole and then fell onto his right arm. The MRI
scan revealed cystic changes, glenohumeral arthritis, and cartilage thinning. Ms. Coleman
diagnosed glenoid shoulder trauma which she checked a box marked “yes” to the question of
whether it was caused or aggravated by the employment incident. Next she indicated that
appellant was totally disabled for the period May 22 to June 25, 2015.
By decision dated July 16, 2015, OWCP denied appellant’s claim because he failed to
establish a diagnosed medical condition causally related to the accepted May 13, 2015
employment incident.
Ms. Coleman, in a June 4, 2015 report, diagnosed shoulder region localized
osteoarthrosis and right shoulder adhesive capsulitis.
In a July 31, 2015 Form CA-20, Dr. David Nazarian, a treating Board-certified
orthopedic surgeon, noted an injury date of May 15, 2015 and diagnosed trauma to the posterior
glenoid. He checked a box marked “yes” to the question of whether the diagnosed condition had
been caused or aggravated by the identified employment activity. Dr. Nazarian also indicated
that appellant was totally disabled from work for the period May 22 to June 25, 2015, but could
return to work on June 25, 2015.
In a form dated July 30, 2015, appellant requested reconsideration. In support of his
request he submitted a May 22, 2015 x-ray interpretation of the right shoulder.
By decision dated November 6, 2015, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability; and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6

4

Supra note 1.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.7
First, the employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place, and in the manner alleged.8 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.11 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.12
ANALYSIS
Appellant alleged that he sustained injuries to his right knee, ankle, wrist, hand, and
shoulder due to a fall at work on May 13, 2015. OWCP accepted that the employment incident
of May 13, 2015 occurred at the time, place, and in the manner alleged. The issue is whether
appellant established that he sustained an injury as a result of the May 13, 2015 employment
incident. The Board finds that he did not submit sufficient medical evidence from a physician
establishing that a medical condition was diagnosed in connection with this incident.
Appellant submitted several reports from Ms. Coleman, a certified physician assistant.
However, these reports have no weight or probative value regarding the issue of causal
relationship as they have not been signed or approved by a physician. Physician assistants are
not considered physicians under FECA.13

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 5.
10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
11

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

13

5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See B.B., Docket No. 09-1858 (issued April 16, 2010); J.M., 58 ECAB 303 (2007); Roy L. Humphrey,
57 ECAB 238 (2005).

4

Appellant also submitted a July 31, 2015 Form CA-20 by Dr. Nazarian diagnosing
trauma to the posterior glenoid and an injury date of May 15, 2015.14 He checked a box marked
“yes” to the question of whether the diagnosed condition had been caused or aggravated by the
identified employment activity. However, the Board has held that when a physician’s opinion on
causal relationship consists only of checking “yes” to a form question, without explanation or
rationale, that opinion is of diminished probative value and is insufficient to establish a claim.15
Thus, this report is insufficient to support appellant’s claim.
The record contains a May 22, 2015 x-ray interpretation and May 27, 2015 MRI scan.
As these are diagnostic tests, causal relationship was not addressed. They are thus insufficient to
support appellant’s claim that he sustained a medical condition causally related to the May 13,
2015 incident.16
The Board notes that the record does not verify that the issue of appellant’s incurred
medical expenses has been addressed. The record contains a May 26, 2016 CA-16 form noting a
May 14, 2015 injury date and signed by Ms. Hill authorizing medical treatment. Ordinarily,
where the employing establishment authorizes treatment of a job-related injury by providing the
employee a properly executed CA-16 form,17 OWCP is under contractual obligation to pay for
the medical treatment.18 Upon return of the case record, this matter should be addressed.
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 his burden of proof to establish an injury
causally related to the accepted May 13, 2015 employment incident.

14

The Board notes that while Dr. Nazarian provided an incorrect date of injury, his description of appellant’s
employment incident corresponds with the history provided on his claim form.
15

Sedi L. Graham, 57 ECAB 494 (2006); Cecelia M. Corley, 56 ECAB 662 (2005).

16

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Jaja K.
Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
17

See Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical,
Authorizing Examination and Treatment, Chapter 3.300.3(a)(3) (February 2012).
18

5 U.S.C. § 8103; 20 C.F.R. § 10.304. See L.B., Docket No. 10-469 (issued June 2, 2010); see also id. at
Chapter 3.300.3(a)(3) (February 2012).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 6, 2015 is affirmed.
Issued: June 21, 2016
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
M.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Thomas Giblin, Esq., for the Director

Docket No. 06-1237
Issued: February 26, 2007

Oral Argument January 23, 2007

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 1, 2006 appellant filed a timely appeal from the April 20, 2006 merit decision of
the Office of Workers’ Compensation Programs, which denied modification of its decision to
terminate compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
to review the merits of appellant’s case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation for
the accepted condition of anxiety reaction; and if so, (2) whether appellant has met her burden to
establish that residuals of the accepted employment injury continued after September 5, 2004.
FACTUAL HISTORY
On the prior appeal of this case,1 the Board found that the Office had improperly
rescinded its acceptance of appellant’s claim. Appellant, a 41-year-old distribution clerk, filed a
1

Docket No. 95-429 (issued December 6, 1995).

claim for an emotional condition. She alleged harassment by management. The Office accepted
that appellant sustained an anxiety reaction in the performance of duty based on a recommended
bench decision in her Equal Employment Opportunity case, which found that she was subjected
to discrimination on the basis of race and reprisal when she was denied certain training and
issued two letters of warning. When the employing establishment later rejected the
recommended findings of discrimination, the Office attempted to rescind its acceptance. The
Board reversed, finding that the Office did not meet its burden of proof to establish how the
original acceptance of the claim was erroneous. The facts of this case as set forth in the Board’s
prior decision are hereby incorporated by reference.
From June 1999 to February 2002 the Office asked appellant to submit an updated
narrative report from her attending physician providing, among other things, the physician’s
rationalized opinion on whether the diagnosed condition was causally related to the accepted
employment injury. On April 3, 2002 Dr. Christopher J. Hasseltine, appellant’s psychiatrist,
completed a work capacity evaluation form. He indicated that appellant could not work at the
employing establishment: “Patient sued the [employing establishment] for harassment issues,
won her case, but the stress of the situation continues. [Appellant] feels anxious, panicky, numb
and wishes to avoid contact with the [employing establishment].” Dr. Hasseltine noted posttraumatic stress disorder, major depressive disorder and trauma related to working at the
employing establishment.
On August 20, 2002 the Office asked Dr. Hasseltine for a comprehensive narrative
medical report fully addressing, among other things, the residuals of the accepted anxiety
disorder. The Office asked him to explain, if residuals existed, how appellant continued to
demonstrate findings of the diagnosis as a result of her employment even though she had not
worked at the employing establishment since 1993. Having received no response, the Office
referred appellant, together with the medical record and a statement of accepted facts, to
Dr. Susan Myers, a psychiatrist, for an opinion on whether the accepted anxiety reaction had
resolved.
On April 21, 2004 Dr. Myers reported that appellant had no diagnosable psychiatric
condition. She reviewed the medical records that the Office provided, as well as a statement of
accepted facts. Dr. Myers related appellant’s history, current complaints and mood. She
described her findings on mental status examination and made the following assessment:
“At this point, the patient does not appear to have symptoms that would meet the
criteria for a major depressive disorder, and she currently is denying any anxiety.
She would meet the criteria for an adjustment disorder; however, given the
excessive amount of time that has passed, she does not meet the time frame for
that. At this point, I cannot identify an Axis I problem.”
Addressing questions posed by the Office, Dr. Myers again explained that, although
appellant experienced a great deal of anger because she felt that the Office unfairly compensated
her for her work injury, she did not currently meet the criteria for any Axis I psychiatric disorder.
She noted that appellant was not complaining of any anxiety symptoms and had no symptoms of
panic attack, post-traumatic stress disorder or generalized anxiety disorder. As appellant was not

2

evidencing symptoms of anxiety, Dr. Myers concluded that the accepted anxiety reaction was
most likely resolved.
On August 26, 2004 after proper notice, the Office terminated appellant’s compensation
for the accepted condition of anxiety reaction effective September 5, 2004. The Office found
that Dr. Myers’ report represented the weight of the medical evidence.
Appellant requested reconsideration and submitted additional medical evidence. On
January 5, 2005 Dr. Al B. Harley, Jr., a psychiatrist, described his evaluation of appellant. He
noted that he had seen her before in the early 1990s, when he diagnosed her with atypical
paranoid disorder. This remained his current diagnosis. Dr. Harley reported that appellant had
major impairment in terms of her social and vocational functioning, her thinking, her judgment
and her mood.
On April 18, 2005 the Office reviewed the merits of appellant’s claim and denied
modification of its August 26, 2004 decision to terminate compensation. The Office found that
Dr. Haley’s report was of diminished probative value in support of appellant’s claim for
continuing compensation benefits.
Appellant again requested reconsideration. She submitted the October 26, 2005 report of
Dr. Janet D. Woolery, a Board-certified psychiatrist:
“[Appellant] was seen by me for an initial evaluation on July 20, 2005. At this
time her working diagnoses are [d]epressive [d]isorder NOS [not otherwise
specified] and [d]elusional [d]isorder, [p]aranoid [t]ype. [Appellant] has been
treated since 1993 for this job[-]related disorder and she continues to experience
symptoms and has difficulty functioning. [She] is unable to work in any capacity
at this time.
“[Appellant] is compliant with all treatment recommendations and continues to
take [medication]. At this time, [she] will need medication monitoring every two
[to] three months and has agreed to continue to see me for her treatment for her
job-related disorder.”
On April 20, 2006 the Office reviewed the merits of appellant’s case and again denied
modification of its prior decision to terminate compensation for anxiety reaction. The Office
found that, although appellant continued to receive psychiatric treatment for other psychiatric
conditions, Dr. Myers’ report established that the accepted condition of anxiety reaction had
resolved by 2004.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides compensation for disability or death
of an employee resulting from personal injury sustained while in the performance of duty.2 Once
the Office accepts a claim, it has the burden of proof to justify termination or modification of
2

5 U.S.C. § 8102(a).

3

compensation benefits.3 After it has determined that an employee has disability causally related
to her federal employment, the Office may not terminate compensation without establishing that
the disability has ceased or that it is no longer related to the employment.4
ANALYSIS -- ISSUE 1
When the Office terminated compensation for the accepted condition of anxiety reaction,
Dr. Myers, the Office referral psychiatrist, had provided the only contemporaneous medical
evaluation and opinion on residuals of the accepted injury. The Office provided her with
appellant’s medical records and a statement of accepted facts so she could base her opinion on a
proper medical and factual background. On April 21, 2004 Dr. Myers concluded that appellant
had no diagnosable psychiatric condition. Appellant’s opinion is well reasoned. Dr. Myers
explained that appellant denied any anxiety symptoms; she had no symptoms of panic attack,
post-traumatic stress disorder or generalized anxiety disorder. As appellant did not exhibit
symptoms of anxiety, Dr. Myers found that the accepted anxiety reaction was most likely
resolved.
The Board finds that Dr. Myers’ opinion represents the weight of the medical evidence
and justified the Office’s decision to terminate compensation for the accepted condition of
anxiety reaction. The Office last heard from Dr. Hasseltine, appellant’s psychiatrist, on April 3,
2002, when he completed a work capacity evaluation form indicating that she could not return to
work at the employing establishment. He did not respond to the Office’s August 20, 2002
request for a comprehensive narrative report fully addressing the issue of residuals of the
accepted anxiety disorder. Given the passage of time, the Board finds no conflict in medical
opinion between Dr. Hasseltine and Dr. Myers.5 A 2002 report suggesting continuing
employment-related disability is not necessarily inconsistent with the reported resolution of
symptoms two years later.6 The Board finds that the Office met its burden of proof to justify the
termination of compensation for the accepted condition of anxiety reaction.7
LEGAL PRECEDENT -- ISSUE 2
Where the Office meets its burden of proof in justifying termination of compensation
benefits, the burden is on the claimant to establish that any subsequent disability is causally
3

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

4

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
5

The Act provides for referral to an impartial medical specialist if there is disagreement between the physician
making the examination for the United States and the physician of the employee. 5 U.S.C. § 8123(a).
6

Appellant indicated to the Board that the employing establishment continued to harass her after she left work.
Any such harassment, occurring when she was no longer a federal employee, is not compensable under the Act.
7

Appellant alleged that in July 2004 she responded to the Office’s requests for updated medical information, or at
least had her physician respond. The Board has reviewed the record carefully and can find no indication that the
Office received additional medical evidence from appellant or her physician at any time contemporaneous to the
Office’s August 26, 2004 decision to terminate compensation.

4

related to the accepted employment injury.8 The evidence generally required to establish causal
relationship is rationalized medical opinion evidence. The claimant must submit a rationalized
medical opinion that supports a causal connection between her current condition and the
employment injury. The medical opinion must be based on a complete factual and medical
background with an accurate history of the claimant’s employment injury, and must explain from a
medical perspective how the current condition is related to the injury.9
ANALYSIS -- ISSUE 2
The Office, having met its burden of proof to justify the termination of appellant’s
compensation for the condition of anxiety reaction, shifts the burden to appellant to establish that
residuals of anxiety reaction continued after September 5, 2004, the effective date of the
termination. Appellant submitted two narrative medical reports, but this evidence has little
probative value.
On its face, the January 5, 2005 report of Dr. Harley, a psychiatrist, does not support that
appellant continues to suffer residuals of the accepted anxiety reaction. Dr. Harley did not
diagnose anxiety reaction. He diagnosed atypical paranoid disorder. Dr. Harley did not relate
this diagnosis to appellant’s federal employment, much less to the specific incidents of
harassment that formed the basis of the acceptance of her claim. His failure to address the
accepted anxiety reaction or to support that residuals of anxiety reaction continued beyond
September 5, 2004, the effective date of termination, greatly diminishes the probative value of
his report.
The October 26, 2005 report of Dr. Woolery, a Board-certified psychiatrist, does not
support appellant’s claim for continuing compensation. Dr. Woolery made no mention of the
accepted condition and gave no indication that residuals of anxiety reaction continued after
September 5, 2004. She diagnosed instead depressive disorder NOS and delusional disorder,
paranoid type. Although Dr. Woolery described appellant’s disorder as “job related,” she
attempted no psychiatric explanation. She did not address the denial of certain training or the
two letters of warning, which the Office accepted as compensable factors of employment.
Medical conclusions based on inaccurate or incomplete histories are of little probative value.10
Medical conclusions unsupported by rationale are also of little probative value.11 The Board finds
that appellant has not met her burden of proof to establish that she continues to suffer residuals of
the accepted employment injury.
8

Maurice E. King, 6 ECAB 35 (1953); Wentworth M. Murray, 7 ECAB 570 (1955) (after a termination of
compensation payments, warranted on the basis of the medical evidence, the burden shifts to the claimant to show
by the weight of the reliable, probative and substantial evidence that, for the period for which he claims
compensation, he had a disability causally related to the employment resulting in a loss of wage-earning capacity).
9

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

10

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete).
11

See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing factors that bear on the probative value
of medical opinions).

5

CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation. The
weight of the contemporaneous medical evidence established that she no longer suffered
residuals of the accepted anxiety reaction. Medical evidence submitted after the Office’s
termination of compensation indicated that appellant suffered from other psychiatric conditions
but did not demonstrate that residuals of the accepted anxiety reaction continued beyond
September 5, 2004. Appellant did not meet her burden of proof.
ORDER
IT IS HEREBY ORDERED THAT the April 20, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 26, 2007
Washington, DC

David S. Gerson, 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
________________________________________
S.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Bronx, NY, Employer
_________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1843
Issued: April 19, 2013

Case Submitted on the Record

DECISION AND ORDER

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On August 29 2012 appellant, through her attorney, filed a timely appeal from the
June 21, 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 appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on November 28, 2008.
FACTUAL HISTORY
This case was previously on appeal before the Board. In a decision dated December 22,
2010, the Board found that appellant did not meet her burden of proof to establish that she
1

5 U.S.C. § 8101 et seq.

sustained a traumatic injury in the performance of duty on November 28, 2008.2 The Board
found that the medical evidence was insufficient to establish that her employment duties on that
date caused an injury. The facts of the case, as set forth in the prior decision, are incorporated by
reference.
By letter received November 11, 2011, appellant’s
reconsideration and submitted additional medical evidence.

representative

requested

In a January 21, 2011 report, Dr. Lucas Bottcher, a chiropractor, noted that appellant was
examined on December 8, 2008 for examination of injuries related to an incident on
November 28, 2008. He advised that radiographic examination of the cervical spine revealed
subluxation of the cervical spine, a loss of the cervical lordosis and C4 disc space narrowing and
the lumbar spine revealed subluxation and dextroscoliosis and disc space narrowing at L4-5 and
L5-S1. Dr. Bottcher indicated that the injuries appellant sustained were a competent producing
cause of the diagnoses which included: cervicalgia at C2-3, C3-4, C4-5 and C5-6 degenerated
discs with disc herniations approximately two millimeters with cord impingement and flattening,
reversal of the cervical lordosis, bilateral cervical radiculopathy of C6; right S1 lumbar
radiculopathy/right sciatica; degenerative disc at L4-5, low back syndrome, small joint effusion
-- right shoulder and fluid surrounding the bicipital tendon of the right shoulder. Appellant
reported that she had chronic neck and lower back pain, pain radiating towards her right
shoulder; numbness/tingling in her right hand and lower back pain radiating into her right foot.
Dr. Bottcher advised that appellant had a permanent restriction of ranges of motion to the
cervical and lumbar regions as indicated. He opined that “in my professional opinion, the
injuries sustained are causally related to the accident. There are permanent significant residuals
that are affecting appellant’s ability to perform all of her previous routine activities of daily and
social living.” Dr. Bottcher advised that appellant reached maximum medical improvement.
The record also contains numerous treatment notes dating from November 18, 2011 to May 18,
2012 from Dr. Bottcher.
In an April 22, 2011 report, Dr. Jacob Nir, a physiatrist, noted appellant’s history of
injury and treatment which included that on November 28, 2008 while working, cleaning and
lifting patients, she had low back pain at the end of her shift. He stated that she had a prior
injury on August 12, 2007 in which appellant slipped on a wet surface, fell backwards and broke
her fall with her right wrist, arm and shoulder.
Dr. Nir indicated that appellant injured her neck, right shoulder and low back. He
advised that x-rays showed subluxations of the cervical spine, loss of cervical lordosis and C3-4
disc space narrowing as well as lumbar subluxation, dextrascoliosis and disc space narrowing at
L4-5 and L5-S1. Dr. Nir indicated that appellant was totally disabled as a result of these injuries.
He opined that “[i]n my professional opinion, the injuries are causally related to the accident of
November 28, 2008.” In an April 22, 2011 electromyography (EMG) scan, Dr. Nir diagnosed
bilateral L5-S1 lumbar radiculopathy/ sciatica.

2

Docket No. 10-490 (issued December 22, 2010). On November 28, 2008 appellant alleged that she injured her
right shoulder and back after turning and pulling patients.

2

By decision dated June 21, 2012, OWCP denied modification of the October 21, 2009
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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 FECA3 and that an injury was sustained in the performance of duty.4 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.6 In some traumatic injury cases, this component can
be established by an employee’s uncontroverted statement on the Form CA-1.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
Rationalized medical opinion evidence is generally 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 factors identified by the claimant.9
ANALYSIS
Appellant alleged that on November 28, 2008 she was turning and pulling patients when
she felt a pop in the right shoulder and felt pain in the back the next day. The Board previously
found that the claim had not been established because the medical evidence was insufficient to
establish the second component of fact of injury, that the November 28, 2008 employment

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

6

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
7

John J. Carlone, 41 ECAB 354 (1989).

8

See id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

3

incident caused an injury. The medical reports of record do not establish that turning and pulling
of patients on November 28, 2008 caused an injury.
Appellant provided reports and treatment notes dating from November 18, 2011 to
May 8, 2012 from Dr. Bottcher, a chiropractor. In his January 21, 2011 report, Dr. Bottcher
noted that appellant was examined for injuries related to an incident on November 28, 2008. He
determined that x-rays of the cervical spine revealed a subluxation, loss of the cervical lordosis
and C3-C4 disc space narrowing. Dr. Bottcher also indicated that x-rays of the lumbar spine
revealed subluxation and dextroscoliosis and disc space narrowing at L4-L5 and L5-S1.10 He
opined that the injuries appellant sustained were a competent producing cause of appellant’s
diagnoses, stating that it was his “professional opinion, the injuries sustained are causally related
to the accident.” While Dr. Bottcher diagnosed cervical and lumbar subluxation based on x-ray
and is a physician with respect to these conditions,11 he provided an opinion on conditions other
than subluxations of the spine, for which he is not considered to be a physician under FECA.12
Furthermore, with regard to the subluxations, he only offered a conclusory opinion on causal
relationship. Dr. Bottcher’s opinion is of diminished probative value as he did not explain the
reasons why the spinal subluxations were caused or aggravated by turning and pulling patients
on November 28, 2008.
In an April 22, 2011 report, Dr. Nir noted appellant’s history of injury and treatment. He
advised that x-rays revealed subluxations of the cervical spine, loss of cervical lordosis and C3-4
disc space narrowing. Dr. Nir also determined that the lumbar spine revealed subluxation and
dextrascoliosis and disc space narrowing L4-5 and L5-S1. He indicated that appellant was
totally disabled from working as a result of these injuries. Dr. Nir opined that “[i]n my
professional opinion, the injuries are causally related to the accident of November 28, 2008.”
However, he did not explain how he arrived at this conclusion. A physician’s opinion on causal
relationship between a claimant’s disability and an employment injury is not conclusive simply
because it is rendered by a physician. To be of probative value, the physician must provide
rationale for the opinion reached. Where no such rationale is present, the medical opinion is of
diminished probative value.13
Appellant also submitted other medical reports including reports of diagnostic testing.
However, these reports did not address the employment incident of November 28, 2008 as a
cause of the conditions at issue. Medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of diminished probative value on the issue of causal

10

The Board notes that section 8101(2) of FECA provides that the term physician includes chiropractors only to
the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by x-ray to exist. 5 U.S.C. § 8101(2).
11

OWCP’s regulations define subluxation to mean an incomplete dislocation, off-centering, misalignment,
fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray. See 20 C.F.R. § 10.5(bb).
12

Jay K. Tomokiyo, 51 ECAB 361 (2000).

13

T.M., Docket No. 08-975 (issued February 6, 2009).

4

relationship.14 For these reasons, appellant has not established that the November 28, 2008
employment incident caused or aggravated a diagnosed medical condition.
Appellant may submit evidence or argument with a written request for reconsideration
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 in establishing that she
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the June 21, 2012 Office of Workers’
Compensation Programs’ decision is affirmed.
Issued: April 19, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

14

Jaja K. Asaramo, 55 ECAB 200 (2004).

5


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

)
)
)
)
)
)
)
)

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

Docket No. 10-251
Issued: August 2, 2010

Case Submitted on the Record

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

JURISDICTION
On November 2, 2009 appellant filed a timely appeal from a June 18, 2009 merit decision
that denied his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant established that, on April 22, 2009, he sustained an injury
in the performance of duty causally related to his employment.
FACTUAL HISTORY
On May 7, 2009 appellant, a 63-year-old truck driver, filed a traumatic injury claim
(Form CA-1) for a sun-burned left arm that he received on April 22, 2009.
Appellant submitted an unsigned treatment note containing a diagnosis of contact
dermatitis “[a]nd other eczema, unspecified cause [sic],” a note bearing an illegible signature, a
report signed by a physician’s assistant, and notes signed by Dr. Alexia Zgurzynski, an
orthopedist.

On May 5, 2009 G. Ramsey, a supervisor, authorized medical treatment for sunburn.
In reports dated May 5 and 8, 2009, Dr. Zgurzynski presented findings on examination
and diagnosed contact dermatitis. She noted that “a few weeks ago” appellant’s left arm got
“sunburned” but that this condition subsequently developed into a red, “swollen,” “itchy” rash.
By decision dated June 18, 2009, the Office denied the claim because appellant failed to
establish that he sustained an injury as defined by the Federal Employees’ Compensation Act
because the evidence of record did not demonstrate that the alleged employment incident
occurred as alleged.1
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.2 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.4
ANALYSIS
Appellant alleged that he sustained a sun-burned left arm on April 22, 2009 while driving
a postal truck. Although asked to do so, he did not describe with any specificity how he sunburned his arm while driving his truck. While it is accepted that appellant did drive a postal
truck on the date in question, this fact alone does not establish how sunburn would have
1

On appeal, appellant submitted additional evidence. The Board may not consider evidence for the first time on
appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision).
2

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

3

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
4

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

2

occurred. When an employee claims that he sustained an injury in the performance of duty, he
must submit sufficient evidence to establish that he experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He must also establish that such
event, incident or exposure caused an injury.5
Appellant has not submitted sufficient evidence to establish that he sustained an injury
and thus has not established his claim.
The note bearing the illegible signature, the unsigned treatment note and the reports
signed by the physician assistant are not competent medical evidence and have no evidentiary
value because they cannot be identified as having been prepared by a “physician” as defined by
the Act.6 Furthermore, because healthcare providers such as nurses, acupuncturists, physician
assistants and physical therapists are not considered “physicians” under the Act, their reports and
opinions do not constitute competent medical evidence.7 Thus, this evidence does not establish a
causal relationship between the established employment factors and appellant’s alleged
condition.
Dr. Zgurzynski noted that appellant’s left arm was “sunburned” but that this condition
subsequently developed into a red, “swollen,” “itchy” rash. Absent from Dr. Zgurzynski’s
reports is an opinion explaining how the established incident caused appellant’s alleged sunburn,
the red, “swollen,” “itchy” rash or the contact dermatitis she diagnosed. Thus, this evidence does
not establish the requisite causal relationship.
An award of compensation may not be based on surmise, conjecture or speculation.8
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.9 The fact that a condition manifests itself or worsens during a
period of employment10 or that work activities produce symptoms revelatory of an underlying
condition11 does not raise an inference of causal relationship between a claimed condition and an
established employment incident.
Because appellant has not submitted evidence establishing the alleged incident and
containing a reasoned discussion of causal relationship, one that soundly explains how the
5

See E.A., 58 ECAB 677 (2007); Arthur C. Hamer, 1 ECAB 62 (1947).

6

Vickey C. Randall, 51 ECAB 357 (2000); Merton J. Sills, 39 ECAB 572 (1988) (reports not signed by a
physician lack probative value).
7

5 U.S.C. § 8101(2); see also G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007); Jerre R.
Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).
8

Edgar G. Maiscott, 4 ECAB 558 (1952).

9

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

10

E.A., supra note 5; Albert C. Haygard, 11 ECAB 393, 395 (1960).

11

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155,157 (1960).

3

established employment incident caused or aggravated a firmly diagnosed medical condition, the
Board finds appellant has not established fact of injury
CONCLUSION
The Board finds appellant has not established that he sustained an injury in the
performance of duty causally related to his employment.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 2, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albuquerque, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1080
Issued: July 18, 2017

Case Submitted on the Record

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

JURISDICTION
On April 24, 2017 appellant filed a timely appeal from an April 12, 2017 nonmerit
decision of the Office of Workers’ Compensation Program (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated September 22, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 11, 2016 appellant, then a 51-year-old general expeditor, filed a traumatic
injury claim (Form CA-1) alleging that on August 9, 2016 he sustained a right shoulder strain at
1

5 U.S.C. § 8101 et seq.

work. He asserted that he first felt pain in his right shoulder on August 9, 2016 after throwing
parcels onto a moving belt for approximately 45 minutes. Appellant noted that he continued to
throw parcels on that date, but favored his right arm and used his left arm more. He noticed
continuing pain in his right arm later that same day and reported the injury to his supervisor.
Appellant did not stop work, but he later began working in a modified-duty position.2
In an August 12, 2016 letter, a health and resource management specialist noted that the
employing establishment was challenging appellant’s traumatic injury claim because he had not
submitted any medical evidence establishing that he sustained a work-related injury on
August 9, 2016.
In an August 16, 2016 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of his claim.
Appellant submitted an August 15, 2016 report from an attending physician assistant,
Clara Weinrach who provided a diagnosis of infraspinatus sprain (ICD-9 code 840.3) and strain
of unspecified muscle, fascia, and tendon at shoulder and upper arm level (ICD-9 code
S46.911A). Ms. Weinrach indicated that appellant could return to work on August 16, 2016 with
restrictions, including lifting up to 20 pounds occasionally, pushing/pulling up to 25 pounds
occasionally, and no reaching above his shoulders. In another August 15, 2016 report, she noted
that appellant reported hearing a pop in his right shoulder after throwing mail parcels at work on
August 11, 2016. In a narrative report and a work activity status report dated August 26, 2016,
Ms. Weinrach indicated that appellant could return to regular duty on that date.
Appellant also submitted August 22 and 24, 2016 reports from his attending physical
therapist who described the results of his periodic physical therapy sessions.
In a September 22, 2016 decision, OWCP denied appellant’s claim for an August 9, 2016
work injury. It accepted that appellant established that a work incident occurred on August 9,
2016 in the form of throwing parcels onto a moving belt, but found that he failed to submit
probative medical evidence establishing a causal relationship between the accepted work
incident and a diagnosed medical condition. OWCP noted that appellant did not submit
probative medical evidence because he did not submit a report from a physician within the
meaning of FECA.
In a letter dated February 7, 2017 and received on February 15, 2007, appellant requested
reconsideration of OWCP’s September 22, 2016 decision.
In support of his reconsideration request, appellant submitted copies of August 15 and 26,
2016 reports from his attending physician assistant, Ms. Weinrach, and August 22 and 24, 2016
reports from his attending physical therapist, Tomas R. Romero, which he previously submitted
to OWCP.

2

In an August 9, 2016 handwritten statement, appellant provided a similar account of his claimed August 9, 2016
work injury.

2

In an April 12, 2017 decision, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a). It noted that the evidence submitted by
appellant in support of his February 15, 2017 reconsideration request was repetitious and
irrelevant to the main issue of the present case. OWCP indicated that the reports submitted by
appellant, consisting of previously submitted reports of a physician assistant and physical
therapist, did not constitute probative medical evidence of a physician within the meaning of
FECA. Therefore, the reports were not relevant to the question of whether appellant submitted
sufficient medical evidence in support of his claim for an August 9, 2016 work injury.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.5 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.7
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record8 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.9 While a reopening of a case may be predicated solely on a legal premise not
previously considered, such reopening is not required where the legal contention does not have a
reasonable color of validity.10
3

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.607.

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

9

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

10

John F. Critz, 44 ECAB 788, 794 (1993).

3

ANALYSIS -- ISSUE 2
OWCP issued a merit decision on September 22, 2016 denying appellant’s claim for an
August 9, 2016 work injury. Appellant requested reconsideration of this decision in a letter
received by OWCP on February 15, 2017.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the
claim. In his application for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law. He did not identify a specific point of law or show
that it was erroneously applied or interpreted, nor did he advance a new and relevant legal
argument not previously considered by OWCP.
The underlying issue in this case is whether appellant met his burden of proof to establish
an August 9, 2016 injury due to the accepted work incident of throwing parcels on that date.
This is a medical issue which must be addressed by probative and relevant medical evidence.11
A claimant may be entitled to a merit review by submitting relevant and pertinent new evidence,
but the Board finds that appellant did not submit any such evidence in this case.12
In support of his reconsideration request, appellant submitted copies of August 15 and 26,
2016 reports from his attending physician assistant, Ms. Weinrach, and August 22 and 24, 2016
reports from his attending physical therapist, Mr. Romero, which had been previously submitted
to OWCP and rejected as insufficient to establish his claim for an August 9, 2016 work injury.
As noted above, the Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record does not constitute a basis for reopening
a case.13 Moreover, this evidence is not relevant to the main issue of the case, i.e., whether
appellant submitted medical evidence establishing an August 9, 2016 work injury, because it does
not constitute probative medical evidence from a physician within the meaning of FECA.14
Under FECA, the report of a nonphysician, including a physician assistant, does not constitute
probative medical evidence.15 Physical therapists are not physicians under FECA and therefore
their opinions do not constitute medical opinion evidence and have no weight or probative value
on medical matters.16

11

See Bobbie F. Cowart, 55 ECAB 746 (2004).

12

See supra note 6.

13

See supra note 9.

14

See id.

15

R.S., Docket No. 16-1303 (issued December 2, 2016); L.L., Docket No. 13-829 (issued August 20, 2013). See
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).
16

C.E., Docket No. 14-710 (issued August 11, 2014); Jane A. White, 34 ECAB 515 (1983).

4

The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied
merit review.17
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 18, 2017
Washington, DC

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

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

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

17

On appeal appellant asserts that he sustained an injury at work. However, the merits of his case are not
currently before the Board and, for the reasons explained above, OWCP properly denied his request for
reconsideration of the merits of his claim.

5


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

)
)
)
)
)
)
)
)

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

Docket No. 16-0865
Issued: April 4, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 22, 2016 appellant filed a timely appeal from a February 29, 2016 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 established more than an additional nine percent
permanent impairment of his right upper extremity, for which he previously received a schedule
award.
FACTUAL HISTORY
On November 5, 2012 appellant, then a 69-year-old tractor trailer operator, filed an
occupational disease claim (Form CA-2) alleging injuries as a result of repetitive motion in his
1

5 U.S.C. § 8101 et seq.

federal employment. He described the repetitive motion as pushing, pulling, and turning while
loading and unloading trucks. The conditions attributed to this activity included left carpal and
cubital tunnel syndromes, and right shoulder rotator cuff tear with impingement syndrome. On
July 26, 2013 appellant had right shoulder surgery performed by Dr. Olayinka Ogunro, a Boardcertified orthopedic surgeon, described as arthroscopic partial acromioplasty, arthroscopic
excision of the distal clavicle, and bursectomy. He began receiving wage-loss compensation as
of July 17, 2013.
With respect to permanent impairment, appellant has two other claims that are relevant to
the current decision on appeal. He filed a claim for a traumatic injury on November 8, 2002,
assigned File No. xxxxxx843, which was accepted for right wrist strain, sprain of third digit right
hand, right hand traumatic arthropathy, and right hand chondrolcalcinosis. OWCP issued a
schedule award for 12 percent permanent impairment of the right upper extremity on
September 20, 2011. The period of the award was 37.44 weeks from August 5, 2011. Appellant
appealed to the Board. By decision dated May 23, 2012, the Board affirmed the September 20,
2011 schedule award determination.2
Appellant also filed a claim on February 2, 2006 for right cubital tunnel and carpal tunnel
syndrome causally related to factors of his federal employment, assigned File No. xxxxxx980.
The claim was accepted for right carpal tunnel syndrome. By decision dated March 1, 2007,
OWCP issued a schedule award for 12 percent permanent impairment of the right upper
extremity. The period of the award was 37.44 weeks from July 7, 2006.
In the present claim, appellant submitted a December 8, 2014 report from Dr. Jerry Franz,
a Board-certified surgeon. Dr. Franz provided a history and noted results from examination. He
opined, utilizing the diagnosis-based impairment (DBI) methodology, that under the American
Medical Association, Guides to the Evaluation of Permanent Impairment (sixth edition)
appellant had 11 percent right arm permanent impairment under Table 15-5, the shoulder
regional grid. Dr. Franz identified the diagnosis as acromioclavicular (AC) joint injury or
disease, with grade modifiers of two for functional history, one for clinical studies, and one for
physical examination. Dr. Franz concluded that under Table 15-5 appellant had a grade D, or 11
percent right arm permanent impairment.
The report of Dr. Franz was sent to an OWCP medical adviser for review. In a report
dated February 25, 2015, the medical adviser concurred with Dr. Franz that appellant had 11
percent right arm permanent impairment based on the right shoulder condition. He then
indicated that to determine appellant’s additional impairment, the prior impairment of 24 percent
should be combined with the current impairment, and then the prior impairment subtracted. In
performing the calculation, the medical adviser combined 24 and 12, resulting in 33 percent, and
then subtracted 24 percent to find that appellant was entitled to an additional nine percent
permanent impairment of the right arm.

2

Docket No. 12-0059 (issued May 23, 2012).

2

By decision dated February 29, 2016, OWCP issued a schedule award for an additional
nine percent right upper extremity permanent impairment. The period of the award was 28.08
weeks from January 19, 2016.3
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.4 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.5 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.6
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).7 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.8

3

Appellant received wage-loss compensation through January 19, 2016, when he returned to work. A claimant is
not entitled to both wage loss and a schedule award concurrently, and OWCP waited until wage-loss compensation
ceased to begin the schedule award payments. James A. Earle, 51 ECAB 567 (2000).
4

See 20 C.F.R. §§ 1.1-1.4.

5

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
6

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
8

Isidoro Rivera, 12 ECAB 348 (1961).

3

ANALYSIS
The issue on appeal is whether appellant had more than an additional nine percent
permanent impairment to his right upper extremity, for which he previously received a schedule
award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the range of
motion (ROM) methodology when assessing the extent of permanent impairment for schedule
award purposes.9 The purpose of the use of uniform standards is to ensure consistent results and
to ensure equal justice under the law to all claimants.10 In T.H., the Board concluded that OWCP
physicians are at odds over the proper methodology for rating upper extremity impairment,
having observed attending physicians, evaluating physicians, second opinion physicians,
impartial medical examiners, and district medical advisers use both DBI and ROM
methodologies interchangeably without any consistent basis. Furthermore, the Board has
observed that physicians interchangeably cite to language in the first printing or the second
printing when justifying use of either ROM or DBI methodology. Because OWCP’s own
physicians are inconsistent in the application of the A.M.A., Guides, the Board finds that OWCP
can no longer ensure consistent results and equal justice under the law for all claimants.11
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the February 29, 2016
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.

9

T.H., Docket No. 14-0943 (issued November 25, 2016).

10

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

11

Supra note 9.

4

ORDER
IT IS HEREBY ORDERED THAT the February 29, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 4, 2017
Washington, DC

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

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 13-1959
Issued: February 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 12, 2013 appellant filed a timely appeal from a June 18, 2013 schedule award
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 schedule award case.
ISSUE
The issue is whether appellant has more than 22 percent impairment of the right upper
extremity and 31 percent impairment of the left upper extremity, for which he received schedule
awards.
FACTUAL HISTORY
OWCP accepted that appellant, then a 44-year-old letter carrier, sustained right carpal
tunnel syndrome and right rotator cuff tear as a result of casing letters at work under OWCP File
1

5 U.S.C. § 8101 et seq.

No. xxxxxx688. He underwent authorized right shoulder arthroscopy on May 20, 1993, shoulder
decompression on June 7, 1993 and right carpal tunnel release on July 8, 1993. OWCP granted
appellant a schedule award for 22 percent impairment of the right arm.
OWCP subsequently accepted that appellant sustained left lateral and medial
epicondylitis, left carpal tunnel syndrome and bilateral shoulder impingement syndrome as a
result of pulling, pushing and lifting at work in his capacity as a letter carrier under OWCP File
No. xxxxxx860. Appellant underwent authorized left lateral fasciotomy with ostectomy of the
elbow on April 27, 1995 and left carpal tunnel release with decompression and
tensoynovectomies on June 13, 1995. In a May 22, 1996 decision, OWCP granted him a
schedule award for 24 percent impairment of the left upper extremity. On October 20, 1998 it
granted appellant an additional schedule award for 7 percent impairment of the left upper
extremity, totaling 31 percent impairment. OWCP combined the File Nos. xxxxxx688 and
xxxxxxx860 into a master file assigned File No. xxxxxx860.
Appellant underwent debridement and rotator cuff repair of the right shoulder on
February 14, 2003 and a subacromial decompression and right rotator cuff repair on
December 30, 2003. He also underwent a subacromial decompression and modified Mumford
procedure of the left shoulder on August 10, 2004 and rotator cuff repair of the left shoulder on
March 28, 2005.
On September 9, 2005 appellant filed a claim (Form CA-7) for an additional schedule
award and submitted medical evidence. In an August 23, 2005 medical report, Dr. Behrooz
Tohidi, a Board-certified orthopedic surgeon, listed findings on physical examination. He
advised that appellant was status post arthroscopic modified Mumford procedure, arthroscopic
subacromial decompression and left rotator cuff repair. In a November 15, 2005 report,
Dr. Norman Kane, a Board-certified orthopedic surgeon, reviewed appellant’s medical records
and listed findings on physical examination of the right and left shoulders. He reported that an
x-ray of the cervical spine revealed minimal degenerative changes. X-rays of the right and left
shoulders revealed suture anchors in the greater tuberosity and superior surface of the glenoid.
Dr. Kane advised that appellant was status post multiple surgeries to the left and right shoulders
with arthroscopic and open repair of superior labrum anterior or posterior lesions and repair of
rotator cuff tears. He opined that appellant’s bilateral shoulder conditions had reached
permanent and stationary status. Dr. Kane noted appellant’s resulting limitations and advised
that he had no work-related impairment of either shoulder under the fifth edition of American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
On December 31, 2005 an OWCP medical adviser reviewed the medical record. She
determined that, based on the fifth edition of the A.M.A., Guides, appellant had 13 percent
impairment of the right upper extremity and 3 percent impairment of the left upper extremity.
The medical adviser stated that he had no additional impairment since the previous
determination. She concluded that appellant reached maximum medical improvement on
November 15, 2005.
In a February 3, 2006 decision, OWCP denied appellant’s claim for an additional
schedule award based on the medical adviser’s December 31, 2005 opinion. In a January 22,
2007 decision, an OWCP hearing representative affirmed the February 3, 2006 decision. By

2

decision dated March 19, 2007, OWCP denied appellant’s request for reconsideration of the
January 22, 2007 decision on the grounds that the evidence submitted was insufficient to warrant
a merit review of its prior decision.
On October 3, 2007 appellant underwent authorized left rotator cuff repair. He
underwent authorized right shoulder surgery on January 23, 2009, left wrist surgery on July 19,
2010 and left shoulder surgery on March 16, 2012.
On August 25, 2012 appellant filed a Form CA-7 for an additional schedule award and
submitted medical evidence. In a July 27, 2012 report, Dr. Kane advised that appellant had
reached maximum medical improvement. He determined that appellant had nine percent
impairment of the left upper extremity impairment pursuant to the fifth edition of the A.M.A.,
Guides.
By letter dated September 18, 2012, OWCP requested that Dr. Kane determine the extent
of appellant’s permanent impairment based on the sixth edition of the A.M.A., Guides.
In an October 5, 2012 report, Dr. Kane noted the accepted employment injuries and the
results of a right shoulder magnetic resonance imaging scan performed by appellant’s primary
care physician. On physical examination, he reported that appellant could flex his right shoulder
to 130 degrees and left shoulder to 110 degrees. Abduction was to 120 degrees on the right and
110 degrees on the left. External rotation was to 30 degrees on the right and 20 degrees on the
left. Appellant had weakness with abduction and external rotation against resistance. Dr. Kane
advised that appellant was status post left shoulder arthroscopic debridement and decompression
and right shoulder rotator cuff tear. He was also status post rotator cuff arthropathy bilaterally
with the most recent surgery performed on March 20, 2012. Dr. Kane noted that he had
previously provided a permanent and stationary report concerning impairment of the left
shoulder based on the fifth edition of the A.M.A., Guides.
On October 23, 2012 an OWCP medical adviser reviewed the medical record. He
determined that, under Table 15-34 on page 475 of the sixth edition of the A.M.A., Guides,
appellant had three percent impairment of the right upper extremity each for loss of shoulder
flexion and abduction and two percent impairment for loss of shoulder rotation, resulting in eight
percent impairment. Regarding the left upper extremity, the medical adviser utilized the same
table and determined that he had three percent impairment each for loss of shoulder flexion and
abduction and two percent impairment for loss of shoulder external rotation, resulting in eight
percent impairment. He advised that appellant’s bilateral shoulder impairment was caused by the
accepted employment injuries. The medical adviser further advised that he reached maximum
medical improvement on October 5, 2012. He noted that while the statement of accepted facts
indicated that appellant had work-related bilateral wrist and left elbow conditions, there was no
record of any additional treatment of these conditions. The medical adviser concluded that he
did not have any additional impairment to either upper extremity.
In a December 3, 2012 decision, OWCP denied appellant’s claim for an additional
schedule award based on the medical adviser’s October 23, 2012 opinion.

3

On December 18, 2012 appellant requested an oral hearing. Following an April 11, 2013
telephone hearing, he submitted reports from Dr. Kane. In a May 2, 2013 report, Dr. Kane stated
that on physical examination appellant could actively flex and abduct both shoulders to 115
degrees. The neurovascular status of his hand was intact. Dr. Kane reiterated that appellant had
weakness with abduction and external rotation against resistance. There was no neurological
deficit to the upper extremities. Dr. Kane reiterated his prior right and left shoulder x-ray
findings and diagnosed rotator cuff arthropathy of both shoulders. He concluded that there was
no change in appellant’s status.
In a June 18, 2013 decision, an OWCP hearing representative affirmed the December 3,
2012 decision. The hearing representative found that the medical adviser’s October 23, 2012
report constituted the weight of the medical opinion evidence.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing federal regulations,3 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.4 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5 Effective May 1, 2009,
FECA adopted the sixth edition of the A.M.A., Guides6 as the appropriate edition for all awards
issued after that date.7
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9
OWCP’ procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through the medical adviser for an opinion concerning the nature and
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Ausbon N. Johnson, 50 ECAB 304 (1999).

5

20 C.F.R. § 10.404; Mark A. Holloway, 55 ECAB 321, 325 (2004).

6

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

7

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

A.M.A., Guides at 494-531.

9

Id. at 521.

4

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.10
ANALYSIS
OWCP accepted appellant’s claim for right carpal tunnel syndrome, right rotator cuff
tear, left lateral and medial epicondylitis, left carpal tunnel syndrome and bilateral shoulder
impingement syndrome. Appellant received a schedule award for 22 percent impairment to the
right upper extremity. On October May 22, 1996 he received a schedule award for 24 percent
impairment to the left upper extremity. On October 20, 1998 appellant received an additional
schedule award for 7 percent impairment to the left upper extremity, totaling 31 percent
impairment. The Board finds that he did not meet his burden of proof to establish that he
sustained greater impairment to either upper extremity.
Appellant has failed to submit any evidence by a treating physician finding greater
impairment to the right and left upper extremities related to the accepted conditions. Dr. Kane’s
October 5, 2012 report indicated that appellant’s right shoulder could flex to 130 degrees and the
left shoulder to 110 degrees. He reported that abduction was to 120 degrees on the right and 110
degrees on the left. Dr. Kane advised that external rotation was to 30 degrees on the right and 20
degrees on the left. He found that appellant had weakness with abduction and external rotation
against resistance. Dr. Kane advised that appellant was status post left shoulder arthroscopic
debridement and decompression, right shoulder rotator cuff tear and rotator cuff arthropathy
bilaterally with the most recent surgery performed on March 20, 2012. He failed to make an
impairment rating referring to the sixth edition of the A.M.A., Guides. Dr. Kane’s reference to
his July 27, 2012 impairment rating of nine percent impairment to the left upper extremity under
the fifth edition of the A.M.A., Guides is of limited probative value as it is not based on the
proper edition of the A.M.A., Guides. For the stated reasons, the Board finds that his reports are
insufficient to establish appellant’s claim.
The file was then properly routed to the medical adviser, for an opinion concerning the
nature or percentage of permanent impairment in accordance with the A.M.A., Guides.11 On
October 23, 2012 he utilized Dr. Kane’s October 5, 2012 findings, referenced the sixth edition of
the A.M.A., Guides and found that appellant had eight percent impairment to each upper
extremity and reached maximum medical improvement on October 5, 2012. Utilizing Table
15-34 on page 475 of the A.M.A., Guides, the medical adviser determined that appellant’s right
upper extremity had three percent impairment each for loss of flexion and abduction and two
percent impairment for loss of rotation, resulting in eight percent impairment. Regarding the left
upper extremity, he utilized the same table and determined that appellant had three percent
impairment each for loss of flexion and abduction and two percent impairment for loss of
external rotation, resulting in eight percent impairment. The medical adviser stated that
appellant’s bilateral shoulder impairment was caused by the accepted employment injuries. He
10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).
11

Id.

5

noted that there was no record of any additional treatment for appellant’s work-related bilateral
wrist and left elbow conditions. The medical adviser concluded that he did not have any
additional impairment to either upper extremity.
The Board finds that the medical adviser’s October 23, 2012 report properly applied the
October 5, 2012 findings of Dr. Kane to the A.M.A., Guides and establishes that appellant has no
more than 22 percent permanent impairment of his right upper extremity and 31 percent
impairment of his left upper extremity under the sixth edition of the A.M.A., Guides.
The Board further finds that Dr. Kane’s May 2, 2013 report again failed to make an
impairment rating referring to the sixth edition of the A.M.A., Guides. Dr. Kane listed
essentially normal findings with the exception of 115 degrees each in flexion and abduction of
both shoulders. He reiterated that appellant had weakness with abduction and external rotation
against resistance and his prior right and left shoulder x-ray findings and diagnosis of bilateral
shoulder rotator cuff arthropathy. Dr. Kane concluded that there was no change in appellant’s
status. As his report does not provide an impairment rating based on the sixth edition of the
A.M.A., Guides, the Board finds that it lacks probative value and is insufficient to establish
appellant’s claim.
Appellant also submitted new evidence on appeal. However, the Board lacks jurisdiction
to review such evidence for the first time on appeal.12
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that he has more than 22 percent
impairment of the right upper extremity and 31 percent impairment of the left lower extremity,
for which he received schedule awards.

12

See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the June 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7