United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Aaron Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1673
Issued: May 4, 2018

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 July 26, 2017 appellant, through counsel, filed a timely appeal from a January 27, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s January 27, 2017 decision was July 26, 2017. Because
using August 1, 2017, the date the appeal was received by the Clerk of the Appellate Boards would result in the loss
of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark
is July 26, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a
consequential emotional condition caused by a January 30, 2014 employment injury; (2) whether
OWCP properly terminated appellant’s wage-loss compensation and medical benefits on
March 30, 2016; and, (3) whether appellant has met his burden of proof to establish that he
continued to be disabled after that date.
On appeal counsel asserts that the January 27, 2017 decision is erroneous because the
referee examiner did not address accepted injuries under other claims and because OWCP did not
fully consider the psychiatric component of this case.
FACTUAL HISTORY
On January 30, 2014 appellant, then a 57-year-old custodial laborer, filed a traumatic injury
claim (Form CA-1) alleging that he injured his left knee, left elbow, left ankle, left wrist, lower
back, and neck that day when he slipped on hydraulic fluid and fell to the floor while in the
performance of duty. He stopped work and received continuation of pay from January 31 to
March 16, 2014.
Appellant came under the care of Dr. Christopher Belletieri and his associate
Dr. Michael B. Fischer, both Board-certified osteopaths specializing in family medicine. They
diagnosed cervical sprain and strain, lumbar sprain and strain, aggravation of cervical and lumbar
degenerative disc disease, left shoulder sprain and strain, bilateral trapezius sprain and strain, left
knee sprain and strain, aggravation of preexisting left knee sprain and strain, left wrist sprain and
strain, left ankle sprain and strain, left arm radiculitis, and left elbow contusion. Each physician
advised that appellant was totally disabled.
On April 4, 2014 OWCP accepted contusions of left shoulder, left elbow, and left knee,
and cervical and lumbar strains.4 Appellant thereafter filed claims for compensation (Form CA7), and was paid wage-loss compensation.
In June 2014, OWCP referred appellant for a second opinion evaluation with
Dr. Noubar A. Didizian, Board-certified in orthopedic surgery. In an August 6, 2014 report,
Dr. Didizian reported examination findings. He advised that the left elbow contusion and cervical
and lumbar strains had resolved in regard to the January 30, 2014 employment injury. Dr. Didizian
indicated that appellant had residual limitation of left shoulder motion and had continued

3

5 U.S.C. § 8101 et seq.

4

The instant case was adjudicated by OWCP under File No. xxxxxx978. The record indicates that appellant has
two additional claims, File No. xxxxxx332, an October 20, 2009 traumatic injury accepted for lumbar strain, and File
No. xxxxxx431, a traumatic injury accepted for cervical and lumbar strains.

2

aggravation of left knee degenerative disease. He advised that appellant could not return to his
custodial position, but could return to eight hours of modified duty daily.
On September 10, 2014 OWCP additionally accepted temporary aggravation of preexisting
patellofemoral degenerative disease of the left knee as resulting from the January 30, 2014
employment injury. In December 2014, it again referred appellant to Dr. Didizian.
On December 17, 2014 appellant returned to limited duty for four hours daily. He began
light duty for six hours a day, three days a week on January 6, 2015, and continued to receive
wage-loss compensation for partial disability.
In a January 15, 2015 report, Dr. Didizian noted that he reexamined appellant on
January 7, 2015. He advised that the left elbow contusion, neck and lumbar strains, degenerative
disease of the left knee, and temporary aggravation of preexisting patellofemoral degenerative
disease of the left knee had resolved. Regarding the left shoulder contusion, Dr. Didizian indicated
that this had resolved although appellant had limited motion on a voluntary basis with negative
provocative tests. He concluded that appellant could work eight hours of restricted duty daily.
On March 17, 2015 Dr. Fischer noted his review of Dr. Didizian’s January 15, 2015 report.
He reiterated his diagnoses and advised that appellant continued to be symptomatic due to the
January 30, 2014 employment injury and that he continued to require medication to control pain
and muscle spasms.
In March 2015, OWCP again referred appellant to Dr. Didizian. Dr. Didizian noted
reviewing Dr. Fischer’s March 17, 2015 report. After examination, he reiterated that all accepted
conditions had resolved. Dr. Didizian further advised that appellant had reached maximum
medical improvement and required no further treatment due to the January 30, 2014 employment
injury. He concluded that appellant could return to full-time regular duty work.
Dr. Belletieri and Dr. Fischer continued to recommend that appellant perform light duty,
either four six-hour days or three, seven-hour days. Appellant began this modified schedule in
April 2015, working either a three- or four-day week. In a June 1, 2015 treatment note, Dr. Fischer
indicated that appellant was seen for therapy. He noted that appellant had increased pain and
reiterated his diagnoses. Dr. Fischer prescribed medication and physical therapy.
Dr. Sommer Hammoud and Dr. Craig A. Rubenstein, Board-certified orthopedic surgeons,
diagnosed localized primary osteoarthritis of the left lower leg and performed Orthovisc injections
to appellant’s left knee on May 19 and 26, and June 2, 2015.
On July 20, 2015 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits. It found that the weight of the medical opinion evidence rested with Dr. Didizian
who advised that appellant had recovered from the accepted orthopedic conditions.
On July 27, 2015 Dr. Fischer advised that appellant could continue working four six-hour
days of light duty. On August 7, 2015 he referenced his March 17, 2015 report and noted
reviewing Dr. Didizian’s most recent report. Dr. Fischer disagreed that appellant could return to
full duty because he had ongoing symptoms and continued to require narcotic analgesics for pain
of the left knee and low back, and for left elbow pain, tingling, and numbness. He diagnosed
3

cervical and lumbar somatic dysfunction, cervical and lumbar sprain and strain, aggravation of
cervical and lumbar degenerative disc disease, left shoulder sprain and strain, bilateral trapezius
sprain and strain, left knee sprain and strain, aggravation of preexisting left knee sprain and strain,
left wrist sprain and strain, left elbow sprain and strain, and left ankle sprain and strain. Dr. Fischer
asserted that all diagnoses were related to the January 30, 2014 work injury. He recommended
monthly follow-up and treatment with a psychologist.
In treatment notes dated August 7 and 31, 2015, Dr. Belletieri noted appellant’s complaints
of neck and low back pain. Physical examination demonstrated cervical and lumbar somatic
dysfunction and mild spasms in the lumbar spine. Dr. Belletieri additionally diagnosed anxiety
and noted that appellant’s psychologist advised that he should only work three times a week. He
recommended that appellant continue to work six hours of light duty daily, for three days per week.
On September 15, 2015 Dr. Belletieri signed a physical performance evaluation that was
completed on August 26, 2015. This indicated that appellant was unable to perform static lift due
to pain/position, and had bilateral functional deficits in muscle testing and range of motion in upper
and lower extremities.
In October 2015, OWCP found a conflict in medical evidence between appellant’s
attending physicians, Dr. Fischer and Dr. Belletieri, and Dr. Didizian, OWCP’s referral orthopedic
surgeon, regarding appellant’s degree of disability and work capacity medically connected to the
January 30, 2014 employment injury and whether appellant required continued medical treatment
for the accepted conditions. Dr. Fischer and Dr. Belletieri continued to submit reports in which
they reiterated their findings and conclusions and opinion that appellant could only work three,
six-hour days of limited duty.
On November 12, 2015 OWCP referred appellant, along with a statement of accepted facts
(SOAF) with addendum and a set of questions, to Dr. William H. Spellman, a Board-certified
orthopedic surgeon, for an impartial evaluation.5
In a December 8, 2015 report, Dr. Kenneth L. Gold, a clinical psychologist, noted that he
previously saw appellant for individual therapy from April 2010 to January 2011 and that
Dr. Fischer referred appellant in August 2015 for major depressive symptoms and related anxiety,
largely secondary to significant physical symptoms and extreme pressures related to appellant’s
job and dealing with workers’ compensation issues. He reported that in the January 2014 slip and
fall at work he injured his left shoulder and aggravated previously severe injuries in his back and
left knee. Although appellant eventually returned to part-time limited duty in December 2014,
Dr. Gold noted that appellant continued to have significant symptoms of depressed mood and
severe anxiety due to ongoing pain, limitations in activities, and various interactions he was forced
to contend with regarding workers’ compensation, including medical evaluations. This reportedly
worsened considerably on August 1, 2015 when he received a medical report from an OWCP
physician that alleged that he had completely recovered from his injuries and could return to fulltime work. Appellant had individual psychotherapy since August 2015, but continued to struggle
5

Appellant and counsel were notified that a conflict had been created and that an impartial evaluation had been
scheduled. The record contains an OWCP memorandum dated November 10, 2015 explaining why an alternative to
the Medical Management Application (MMA) system was utilized in making the appointment. An OWCP ME023
Appointment Schedule Notification form is also in the record.

4

with chronic pain, severe episodes of major depression, generalized anxiety, severe sleep
disruption, and unpredictable episodes of panic related to his employment injury. He opined that
it was difficult for appellant to maintain his part-time position due to physical and emotional
struggles, and indicated that appellant’s activities of daily living were severely limited. Dr. Gold
concluded that appellant’s psychological prognosis was poor and did not indicate that he could
expand his work hours beyond the 18 hours per week he was currently working.
On December 15, 2015 Dr. Hammoud noted that appellant had a good result from the
Orthovisc injections for about four months and now wanted repeat injections. She noted findings
and diagnosed unilateral primary arthritis of the left knee with a history of posterior cruciate
ligament rupture. Dr. Hammoud recommended follow up with Dr. Rubenstein.
Dr. Spellman, the referee physician, provided a January 5, 2016 report in which he noted
examining appellant on December 29, 2015. He reported a past history of a previous work-related
injury involving the neck, low back, and left knee, and a 2012 left knee injury caused by a fall at
home. Dr. Spellman described his review of the medical records including the SOAF. He
referenced additional claims, noting that under File No. xxxxxx431 cervical and lumbar strains
were accepted, and that under File No. xxxxxx332 a lumbar strain was accepted. Appellant had
current complaints of daily neck and radiating left arm pain, low back pain, and right knee pain.
He continued to work 18 hours of limited duty per week. Examination showed no significant
asymmetry, atrophy, tenderness, or muscle spasm on inspection of the neck, upper back, and
shoulder girdle area. Pain was reported with neck and left shoulder range of motion. Tinel’s was
negative symmetrically in the supraclavicular fossa, and motor strength was grossly full in the
arms. Both wrists and hands were unremarkable with painless wrist and distal joint range of
motion. On back examination, appellant reported pain with very light, but deliberate and obvious
palpation from L3 distally to the sacrum and laterally to the iliac crest. Forward flexion caused
pain, and no muscle spasm was present. Seated hip motion and straight-leg raising were negative.
Proximal and distal motor strength was grossly full. The left knee had no effusion and slight
atrophy in the patellar region and in the quadriceps. The knee was stable and pain-free to stressing
with painless range of motion, slightly increased crepitus, and neutral patellar tracking.
Dr. Spellman advised that the medical records, including appellant’s initial evaluation on
January 30, 2014 and the lumbar MRI scan of February 25, 2014, were not consistent with his
having sustained an injury from which he would not have fully recovered. He advised that
appellant’s physical examination was not consistent with an ongoing problem with his neck, upper
back, shoulders, left arm including the elbow and wrist, or low back, which was attributable to the
employment injury. Dr. Spellman opined that appellant had returned to pre-injury status and that
no further treatment due to the January 30, 2014 work injury was indicated. After his review of
the job description of custodian, he advised that appellant could return to the position on a fulltime basis, without restriction.
On February 8, 2016 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits. It found that the weight of the medical opinion evidence rested with the
opinion of Dr. Spellman, which was entitled to special weight, and who advised that appellant had
no residuals of the accepted conditions caused by the January 30, 2014 work injury.
Dr. Rubenstein provided Orthovisc injections in appellant’s left knee on January 26,
February 2, 9, and 16, 2016. He reiterated his diagnosis of left knee unilateral primary

5

osteoarthritis. On February 16, 2016 Dr. Belletieri reported that appellant complained of
excruciating neck pain and that he felt harassed at work because he was on workers’ compensation.
He reiterated his diagnoses.
On February 22, 2016 Dr. Fischer noted his review of Dr. Spellman’s report and disagreed
with his conclusion that appellant was fully recovered from the employment injury. He maintained
that appellant continued to have ongoing neck and low back symptoms, radiating left shoulder
pain, and left knee pain with occasional right knee pain due to compensation for left knee pain.
Dr. Fischer reported findings of decreased cervical and lumbar range of motion, and noted
appellant’s complaint that he was being harassed by OWCP and his coworkers, that his quality of
life had been substantially reduced as a result of his work injuries, and that he could not work more
than 18 hours per week. He diagnosed aggravation of cervical and lumbar degenerative disc
disease, cervical and lumbar sprain and strain, and left knee sprain and strain with aggravation of
left knee osteoarthritis. Dr. Fischer described appellant’s requirement for medication and
indicated that appellant should continue working three, six-hour workdays weekly, opining that
any increase in restrictions would worsen appellant’s symptoms and potentially cause him to
reinjure his neck and back. Dr. Belletieri also advised that appellant should continue his 18-hour
workweek.
In a February 18, 2016 report, Dr. Gold disagreed with the proposed termination and
commented that appellant’s medical status was obviously not in his area of expertise. He indicated
that appellant continued to have severe and persistent psychiatric symptomatology including
severe depression, marked anxiety with episodic panic, suspiciousness, social anxiety, pronounced
avoidance behaviors, and profound social withdrawal which, along with his ongoing medical and
chronic-pain conditions, and that this had a marked deleterious effect on his activities of daily
living which were largely absent at present. Dr. Gold opined that, considering appellant’s decades
of consistent gainful employment and in the absence of other explanations, it was reasonable to
conclude that his persistent psychological deficits were causally related to his work injuries. He
asserted that there was no evidence to suggest that appellant could expand his work hours beyond
the 18 hours per week, noting a poor psychological prognosis.
By decision dated March 30, 2016, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that day. It found the special weight of the medical evidence rested
with Dr. Spellman, who performed an impartial medical evaluation, with regard to the accepted
orthopedic conditions.
Counsel timely requested a hearing with OWCP’s Branch of Hearings and Review.
Dr. Belletieri and Dr. Fischer continued to submit reports reiterating their findings and
conclusions, advising that appellant should only work 18 hours weekly. A March 24, 2016
cervical spine MRI scan demonstrated multilevel degenerative changes with mild central canal
stenosis and multilevel foraminal stenosis. No cord compression or abnormal spinal cord signal
was seen. On March 28 and April 18, 2016 Dr. Belletieri also diagnosed aggravation of cervical
degenerative disc disease. On May 19, 2016 he indicated that appellant could work four, sevenhour days of light duty weekly. Dr. Fischer reiterated these restrictions on June 1, 2016.
In a report dated August 24, 2016, Dr. Hammoud noted that appellant was working 28
hours of light duty weekly and still had left knee soreness. She reported that he would like to

6

repeat Orthovisc injections. Dr. Hammoud indicated that left knee examination demonstrated no
effusion, full range of motion, and 1+ crepitus, with pain on patellofemoral compression and
minimal joint line tenderness. She diagnosed unilateral primary osteoarthritis of the left knee and
indicated that appellant would see Dr. Rubenstein for Orthovisc injections.
On November 28, 2016 Dr. Gold reiterated that appellant continued to have severe and
persistent psychiatric symptomatology and ongoing medical and chronic-pain conditions that
affected his daily life. He indicated that, while many of appellant’s symptoms appeared to be
directly related to his employment injuries, other contributory factors had exacerbated the severity
of his condition. As an example, Dr. Gold described appellant’s report that he happened upon a
van parked outside his home in October 2011 which, he believed, contained surveillance
equipment. He reported that this incident further complicated appellant’s severe depression and
anxiety as he has since felt that he is being watched and scrutinized in all of his activities, in
addition to the repeated medical and legal appointments related to his workers’ compensation case
which further aggravated appellant’s depression and anxiety. Dr. Gold again advised that
appellant was unable to work more than 18 hours per week.
A hearing was held on December 7, 2016. Counsel argued that the instant case, File No.
xxxxxx978, should be combined with File No. xxxxxx332, also accepted for neck and back
injuries, asserting that because the cases had not been doubled, the impartial examiner did not have
a correct basis on which to render his opinion. He further asserted that Dr. Gold’s opinion
established a work-related psychiatric condition, or at least warranted appellant’s referral for a
second opinion psychiatric evaluation.
By January 27, 2017 decision, OWCP’s hearing representative found that the evidence of
record was insufficient to establish that appellant had a consequential emotional condition. The
hearing representative further found that OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, finding that the special weight of the medical
evidence rested with the opinion of Dr. Spellman who advised that appellant had no residuals of
the accepted conditions. The hearing representative affirmed the March 30, 2016 decision.
LEGAL PRECEDENT -- ISSUE 1
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson’s notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary injury,
the rules that come into play are essentially based upon the concepts of direct and natural results
and of the claimant’s own conduct as an independent intervening cause. The basic rule is that a
subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.6
An employee has the burden of proof to establish that any specific condition for which
compensation is claimed is causally related to the employment injury.7 Causal relationship is a
6

Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014); see Charles W. Downey, 54 ECAB 421 (2003).

7

Kenneth R. Love, 50 ECAB 276 (1999).

7

medical issue, and the medical evidence required to establish a causal relationship is rationalized
medical evidence.8 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 employee.9 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.10
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. The opinion must be one
of reasonable medical certainty and must be supported by medical rationale explaining the nature
of the relationship of the diagnosed condition and the specific employment factors or employment
injury.11
ANALYSIS -- ISSUE 1
OWCP accepted that a January 30, 2014 fall at work caused contusions of the left shoulder,
left elbow, and left knee as well as neck and lumbar sprains. It also accepted a temporary
aggravation of preexisting patellofemoral degenerative disease of the left knee. In his January 27,
2017 decision, OWCP’s hearing representative found that the evidence of record was insufficient
to establish that appellant had developed a consequential emotional condition.
The Board finds that appellant has not meet his burden of proof to establish that the
conditions of severe depression and anxiety disorder that were diagnosed by Dr. Gold were
causally related to the January 30, 2014 employment injury.
An emotional condition was first mentioned on July 27, 2015 when Dr. Fisher advised that
appellant’s chronic pain was causing depression and recommended psychological treatment. In
August 2015, Dr. Belletieri diagnosed anxiety. The Board has held that a mere conclusion without
the necessary medical rationale explaining how and why the physician believes that a claimant’s
accepted exposure could result in a diagnosed condition is not sufficient to meet the claimant’s
burden of proof. The medical evidence must also include rationale explaining how the physician
reached the conclusion he or she is supporting.12 Neither physician explained why the January 30,
2014 employment-related fall led to such severe pain that it caused depression and anxiety.

8

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

9

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10

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

11

Charles W. Downey, supra note 6.

12

Beverly A. Spencer, 55 ECAB 501 (2004).

8

The Board also finds Dr. Gold’s opinion insufficient to meet appellant’s burden of proof.
In his December 8, 2015, and February 18 and November 28, 2016 reports, Dr. Gold merely
concluded that appellant’s chronic pain due to work injuries caused a consequential emotional
condition. While he indicated that appellant fell at work in January 2014, he did not describe the
accepted conditions. Dr. Gold also indicated that appellant’s psychiatric condition was worsened
when an OWCP referral physician advised that he could return to full duty. He further opined that
appellant’s condition was aggravated by dealing with his workers’ compensation case and noted
an October 2011 incident in which appellant felt he was under surveillance. However, the
development of an emotional condition related to OWCP’s or the employing establishment’s
handling of a compensation claim would not arise in the performance of duty as the processing of
compensation claims bears no relation to a claimant’s day-to-day or specially assigned duties.13
The opinion of a physician supporting causal relationship must be based on a complete
factual and medical background, supported by affirmative evidence, must address the specific
factual and medical evidence of record, and must provide medical rationale explaining the nature
of the relationship between the diagnosed condition and the established incident or factor of
employment.14 Dr. Gold did not sufficiently explain how the January 30, 2014 work injury led to
appellant’s psychiatric diagnoses. The Board has long held that medical opinions not containing
rationale on causal relationship are of diminished probative value and are generally insufficient to
meet appellant’s burden of proof.15
The Board therefore finds that appellant has not met his burden of proof to establish an
employment-related emotional condition.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation without
establishing that the disability ceased or that it was no longer related to the employment.16
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.17
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.18

13

Hasty P. Foreman, 54 ECAB 427, 429 (2003).

14

Robert Broome, 55 ECAB 339 (2004).

15

A.M., Docket No. 16-0811 (issued October 26, 2016).

16

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

17

Id.

18

Manuel Gill, 52 ECAB 282 (2001).

9

ANALYSIS -- ISSUE 2
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits on March 30, 2016. OWCP determined that a conflict in
medical evidence had been created between the opinions of appellant’s attending physicians
Drs. Fischer and Belletieri, and Dr. Didizian, an OWCP referral physician, regarding appellant’s
degree of disability and work capacity due to the January 30, 2014 work injury and whether
appellant required continued medical treatment for the accepted conditions. OWCP properly
referred him to Dr. Spellman, Board-certified in orthopedic surgery, for an impartial evaluation.
In his January 5, 2016 report, Dr. Spellman, who is a specialist in the relevant field,
described the relevant facts and evaluated the course of appellant’s employment-related
conditions. He addressed the medical record, noting accepted injuries under additional claims.
Dr. Spellman made his own examination findings and fully explained his conclusions, including
that appellant’s accepted conditions had resolved and that he had returned to a pre-injury status.
He noted that he had reviewed a job description for custodian and opined that appellant could
return to the position on a full-time basis, without restriction. The Board finds that Dr. Spellman
provided a comprehensive, well-rationalized opinion in which he clearly advised that any residuals
of appellant’s accepted conditions had resolved and that he could return to his regular position.
Dr. Spellman’s opinion, therefore, constitutes the special weight accorded an impartial medical
examiner with regard to appellant’s accepted orthopedic conditions.19
Dr. Hammoud and Dr. Rubenstein merely diagnosed left knee unilateral primary
osteoarthritis, and Dr. Rubenstein provided Orthovisc injections. Neither physician mentioned the
employment injury or provided an opinion regarding appellant’s work abilities.
Dr. Fischer and Dr. Belletieri continued to submit reports in which they reiterated their
findings and conclusions. Reports from a physician who was on one side of a medical conflict that
an impartial specialist resolved, are generally insufficient to overcome the weight accorded to the
report of the impartial medical examiner, or to create a new conflict.20 Dr. Fischer and
Dr. Belletieri had been on one side of the conflict resolved by Dr. Spellman and their additional
reports were insufficient either to overcome the special weight accorded Dr. Spellman’s report or
to create a new conflict.
Since an emotional condition has not been accepted as employment related, Dr. Gold’s
opinion that appellant could not increase his work hours is of diminished probative value on the
issue of whether appellant continued to have residuals of the accepted orthopedic conditions.
As to counsel’s assertion on appeal that the referee examiner did not address accepted
injuries under other claims and because OWCP did not fully consider the psychiatric component
of this case, it is noted that Dr. Spellman referenced the two additional claims and the accepted

19

See H.A., Docket No. 16-1184 (issued April 20, 2017).

20

I.J., 59 ECAB 408 (2008).

10

conditions. Moreover, OWCP’s hearing representative, and by this decision of the Board,
appellant’s claimed consequential emotional condition has been fully addressed.
The Board therefore concludes that Dr. Spellman’s opinion that appellant had recovered
from the accepted conditions is entitled to the special weight accorded an impartial medical
examiner,21 and the additional medical evidence submitted is insufficient to overcome the weight
accorded him as an impartial medical specialist regarding whether appellant had residuals of his
accepted conditions. OWCP therefore properly terminated appellant’s wage-loss compensation
and medical benefits on March 30, 2016.22
LEGAL PRECEDENT -- ISSUE 3
As OWCP met its burden of proof to terminate appellant’s wage-loss compensation on
March 30, 2016, the burden then shifted to him to establish that he had any disability causally
related to the accepted conditions.23 Causal relationship is a medical issue. 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.24
ANALYSIS -- ISSUE 3
The Board finds that the medical evidence submitted following the March 30, 2016
termination is insufficient to establish that appellant continued to be disabled due to the accepted
conditions.
After the termination, appellant submitted a March 24, 2016 cervical spine MRI scan. This
report did not address the cause of any conditions found on the scan. 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.25 Likewise, the reports Dr. Hammond and Dr. Rubenstein
subsequently submitted also do not address the cause of appellant’s left knee condition. Dr. Gold’s
November 28, 2016 opinion is of limited probative value on the issue of whether appellant has
continued disability causally-related to the January 30, 2014 employment injury since an
emotional condition has not been accepted as consequential.
While Dr. Fischer and Dr. Belletieri continued to submit reports reiterating their diagnoses,
opining that appellant’s condition was employment related, and that he could only perform part-

21

See Sharyn D. Bannick, 54 ECAB 537 (2003).

22

Supra note 18.

23

See Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

24

Supra note 9.

25

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

11

time modified duty, these physicians had been on one side of the conflict in medical evidence
which was resolved by Dr. Spellman.26
As there is no medical evidence of record of sufficient rationale to establish that appellant
continued to be disabled due to the January 30, 2014 work injury, appellant has not met his burden
of proof.27
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 established a consequential emotional condition
caused by a January 30, 2014 employment injury; that OWCP properly terminated his wage-loss
compensation and medical benefits on March 30, 2016; and that appellant has not established that
he continued to be disabled after that date.

26

Supra note 20.

27

G.H., Docket No. 16-0432 (issued October 12, 2016).

12

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 4, 2018
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

13


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

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

Docket No. 13-417
Issued: April 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 14, 2012 appellant, through his attorney, filed a timely appeal of a
December 12, 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 schedule award issue.
ISSUE
The issue is whether appellant sustained more than five percent permanent impairment of
the left upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On June 16, 2007 appellant, then a 57-year-old letter carrier, injured his left shoulder
while in the performance of duty. A July 19, 2007 magnetic resonance imaging (MRI) scan
obtained by Dr. Matthew T. Bee, a Board-certified diagnostic radiologist, exhibited bone marrow
1

5 U.S.C. § 8101 et seq.

contusion along the posterolateral humeral head, bone marrow edema along the inferior glenoid
cavity, supraspinatus edema, inferior and superior glenoid labrum deformities and other findings
consistent with rotator cuff tear. A November 27, 2007 x-ray obtained by Dr. Cynthia A.
Britton, a Board-certified diagnostic radiologist, showed glenohumeral degenerative changes
while a November 30, 2007 MRI scan arthrogram obtained by Dr. Carla Lohman, a radiologist,
confirmed full thickness tear of the anterior supraspinatus tendon. Appellant underwent left
shoulder arthroscopic rotator cuff repair, biceps tenotomy and subacromial decompression on
January 23, 2008. OWCP accepted his traumatic injury claim for left shoulder anterior
dislocation and later expanded it to include rotator cuff tear and impingement syndrome.
In a June 15, 2012 report, Dr. Michael J. Platto, a Board-certified physiatrist, reviewed
the history of injury and medical file. On examination, he observed bilateral trapezius muscle
tenderness to palpation and elicited the following maximum range of motion (ROM)
measurements: 147 degrees of flexion, 60 degrees of extension, 125 degrees of abduction, 17
degrees of adduction, 65 degrees of internal rotation and 90 degrees of external rotation.
Applying Table 15-34 (Shoulder Range of Motion) of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),2 Dr. Platto
found that 147 degrees of flexion, 60 degrees of extension, 125 degrees of abduction, 17 degrees
of adduction, 65 degrees of internal rotation and 90 degrees of external rotation coincided with
impairment ratings of three percent, zero percent, three percent, one percent, two percent and
zero percent, respectively. He added these values and determined that appellant sustained a total
of nine percent permanent impairment of the left upper extremity.3
Appellant filed a claim for a schedule award on July 28, 2012. In an August 6, 2012
memorandum, the claims examiner subsequently directed OWCP’s medical adviser to review
Dr. Platto’s opinion.
On November 19, 2012 Dr. Arnold T. Berman, an OWCP medical adviser and Boardcertified orthopedic surgeon, reviewed the earlier radiological findings, but did not address
Dr. Platto’s June 15, 2012 report. Citing Table 15-5 (Shoulder Regional Grid Upper Extremity
Impairments) of the A.M.A., Guides,4 he assigned an impairment diagnosed condition class
(CDX) of 1 with a default grade of C, resulting in an impairment rating of five percent on
account of left full-thickness rotator cuff tear.5 Dr. Berman listed January 23, 2009 as the date of
maximum medical improvement.
By decision dated December 12, 2012, OWCP granted a schedule award for five percent
permanent impairment of the left upper extremity for the period January 23 to May 12, 2009.
The decision did not address Dr. Platto’s impairment opinion.
2

A.M.A., Guides 475 (6th ed. 2008).

3

Dr. Platto also presented separate impairment ratings for appellant’s right knee and right shoulder. Neither is
presently before the Board.
4

Supra note 2 at 403.

5

Dr. Berman further calculated that the net adjustment formula yielded a value of 0, which did not affect the
default rating.

2

LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.6 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7
The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health. For
upper extremity impairments, the evaluator identifies the impairment class for the CDX, which is
then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination
(GMPE) and Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).8 Evaluators are directed to provide reasons for their
impairment rating choices, including the choices of diagnoses from regional grids and
calculations of modifier scores.9
The sixth edition of the A.M.A., Guides also provides that ROM may be selected as an
alternative approach in rating impairment under certain circumstances. A rating that is
calculated using ROM may not be combined with a diagnosis-based impairment and stands alone
as a rating.10
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant filed a claim for a schedule award on July 28, 2012 and provided Dr. Platto’s
June 15, 2012 report, which presented a left upper extremity impairment rating of nine percent
based on the alternative ROM method of calculation. The claims examiner properly routed the
file to OWCP’s medical adviser to assess this rating.11 However, Dr. Berman, the medical
adviser, failed to address Dr. Platto’s report, the most recent report from a treating physician
addressing permanent impairment. In developing a case for a schedule award, he is responsible

6

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

7

K.H., Docket No. 09-341 (issued December 30, 2011).

8

R.Z., Docket No. 10-1915 (issued May 19, 2011).

9

J.W., Docket No. 11-289 (issued September 12, 2011).

10

W.T., Docket No. 11-1994 (issued May 22, 2012).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards, Chapter 2.808.6(f)(1)
(February 2013).

3

for reviewing the complete file, particularly the medical report on which an award is to be
based.12
On remand, OWCP shall have its medical adviser evaluate Dr. Platto’s June 15, 2012
report as well as provide a detailed and rationalized opinion concerning the extent of appellant’s
impairment in accordance with the A.M.A., Guides. After conducting such further development
as may be necessary, it shall render an appropriate decision on appellant’s entitlement to an
additional award.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 12, 2012 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: April 25, 2013
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
12

See id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700.3 (January 2010). Specifically, Dr. Berman
should evaluate an impairment rating report with respect to maximum medical improvement, description of
impairment and percentage of impairment. Federal (FECA) Procedure Manual, Part 2 -- Medical, Schedule Awards,
Chapter 3.700.3(a). See also William A. Couch, 41 ECAB 548 (1990) (the Board held that when adjudicating a
claim, OWCP is obligated to consider all evidence properly submitted by a claimant and received by OWCP before
the final decision is issued).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Philadelphia, PA,
Employer
__________________________________________

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Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1245
Issued: January 3, 2020

Case Submitted on the Record

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

JURISDICTION
On May 13, 2019 appellant, through counsel, filed a timely appeal from a November 14,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from November 14, 2018, the date of OWCP’s last decision, was
May 13, 2019. Because using May 17, 2019, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is May 13, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability commencing July 9, 2016 causally related to her accepted employment injury.
FACTUAL HISTORY
On April 6, 2016 appellant, then a 62-year-old mail handler, filed an occupational disease
claim (Form CA-2), assigned OWCP File No. xxxxxx673, alleging that she sustained carpal tunnel
syndrome in both hands and pain in her lower back and leg as a result of performing repetitive
duties, including continuous lifting, pushing, and pulling, while in the performance of duty.4 She
indicated that she first became aware of her conditions on July 6, 2005, and first realized their
relationship to her federal employment on November 1, 2014. On July 6, 2016 OWCP accepted
the claim for right and left upper limb carpal tunnel syndrome.
In a July 29, 2016 prescription, Dr. Mark S. Brown, an attending Board-certified
chiropractor, indicated that appellant would need to remain off work until further notice due to her
bilateral carpal tunnel syndrome.
On August 16, 2016 appellant filed claims for compensation (Form CA-7) for leave
without pay (LWOP) for the period July 9 through August 5, 2016.
Dr. Brown, in an August 8, 2016 prescription, indicated that appellant had become disabled
on or about June 15, 2016 due to her bilateral carpal tunnel syndrome.
In an August 17, 2016 development letter, OWCP informed appellant of the evidence
needed to support her disability claims and afforded her 30 days to provide the requested evidence.
In an August 24, 2016 progress report, Dr. Brown examined appellant and diagnosed
chronic bilateral carpal tunnel syndrome causally related to repetitive motion involving constant
lifting of boxes and mail handling while working as a mail handler. He again advised that she was
totally disabled from work until further notice.
On September 6, 2016 appellant informed OWCP that she had stopped work on May 29,
2016 to the present. On September 7 and 14, 2016 she filed additional Form CA-7 claims
3

5 U.S.C. § 8101 et seq.

4

Appellant had previously filed a traumatic injury claim (Form CA-1) due to a July 6, 2005 employment injury
that OWCP accepted for bilateral carpal tunnel syndrome and degenerative disc disease of the lumbar spine with
radicular symptoms. OWCP assigned this claim File No. xxxxxx815. On December 3, 2014 appellant filed a notice
of recurrence (Form CA-2a) alleging that she sustained a recurrence of total disability beginning November 19, 2014
due to her accepted July 6, 2005 employment injury. By decision dated March 4, 2015, OWCP denied appellant’s
recurrence claim. An OWCP hearing representative, by decision dated November 24, 2015, affirmed OWCP’s
March 4, 2015 decision and advised appellant to consider filing a claim for a new injury.

2

requesting LWOP for the periods June 11 through 24, 2016 and August 6 through
September 2, 2016.
In a September 7, 2016 medical report, Dr. Wayne Gibbons, an attending physiatrist, noted
a history that appellant had work-related bilateral carpal tunnel syndrome due to repetitive motion
of both hands while constantly lifting boxes and handling mail. He discussed examination findings
and also diagnosed chronic bilateral carpal tunnel syndrome. Dr. Gibbons opined that appellant’s
condition was directly caused by repetitive motion while working as a mail handler. He further
opined that she was totally disabled until further notice. Dr. Gibbons ordered electromyogram/
nerve conduction velocity (EMG/NCV) studies to determine the extent of appellant’s carpal tunnel
injuries. The testing was performed on the same day as his examination and revealed bilateral
median sensory-motor neuropraxia at the bilateral wrists with evidence of mild denervation of the
left abductor pollicis brevis (bilateral carpal tunnel syndrome, moderate severity).
By decision dated September 23, 2016, OWCP denied appellant’s claims for disability
compensation commencing July 9, 2016 finding that she had not submitted rationalized medical
evidence sufficient to establish that her accepted employment-related condition had materially
worsened or changed since she had been placed on light-duty work restrictions by Dr. Barnes on
May 3, 2016.
On October 12, 2016 appellant filed an additional Form CA-7 claim requesting LWOP
compensation for the period September 17 through 30, 2016.
On October 24, 2016 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review regarding the September 23, 2016 decision. During the
telephonic hearing, held on April 26, 2016, appellant testified that she had stopped work on
May 29, 2016 and used sick leave prior to claiming compensation beginning July 9, 2016.
By decision dated June 15, 2017, an OWCP hearing representative affirmed the
September 23, 2017 decision. She found that there was no rationalized medical evidence
establishing total disability commencing July 9, 2016 due to appellant’s accepted employment
injury.
OWCP thereafter received additional medical evidence from Dr. Brown and Dr. Gibbons.
In prescriptions dated July 7, 2017, the physicians ordered physical therapy for appellant. In
progress notes dated July 12 and 24, August 25 and 30, and September 22, 2017, Dr. Brown
discussed the status of appellant’s conditions, including her bilateral carpal tunnel syndrome.
On October 3, 2017 appellant, through counsel, requested reconsideration of the June 15,
2017 decision and submitted an additional report dated July 14, 2017 from Dr. Gibbons.
Dr. Gibbons restated his prior diagnosis of bilateral carpal tunnel syndrome and also diagnosed
bilateral upper extremity nerve damage. In addition, he reiterated his prior opinion that appellant
was totally disabled from work. Dr. Gibbons indicated that she continued to have bilateral carpal
tunnel syndrome with chronic neck and low back pain that radiated to both legs. Appellant also
had chronic degenerative joint disease in both knees. Dr. Gibbons opined that within a reasonable
degree of medical certainty that these chronic conditions had further deteriorated due to her mail
handler job duties, which included lifting, pushing, and pulling in extreme weather conditions over

3

a period of 28 years. He noted that the September 7, 2016 EMG/NCV studies were positive for
bilateral carpal tunnel syndrome and conﬁrmed nerve damage in both upper cervical extremities
and hands. Dr. Gibbons further noted that after appellant returned to work her condition began to
deteriorate. He referenced an August 24, 2016 examination which showed that her condition had
worsened and was again deteriorating. Dr. Gibbons noted that appellant became disabled from
work due to her bilateral carpal tunnel syndrome in May 2016 and filed a recurrence of disability
claim on July 6, 2016.
On October 9, 2017 Dr. Gibbons diagnosed carpal tunnel syndrome of the right and left
upper limbs and prescribed physical therapy for appellant.
Additional progress notes dated September 29, 2017 through February 23, 2018 from
Dr. Brown continued to discuss the status of appellant’s conditions, including her bilateral carpal
tunnel syndrome.
OWCP, by decision dated March 2, 2018, denied modification of the June 15, 2017
decision, finding that Dr. Gibbons’ July 14, 2017 report was not sufficiently rationalized to support
appellant’s claimed total disability commencing July 9, 2016.
Dr. Gibbons, in prescriptions dated January 10 and March 10, 2018, reiterated his diagnosis
of carpal tunnel syndrome of the right and left upper limbs, and again ordered physical therapy for
appellant. In addition, he continued to opine that she was totally disabled in a May 22, 2018 report.
Dr. Gibbons referred appellant to a surgical consultation because her bilateral carpal tunnel
syndrome had deteriorated and physical therapy had only provided temporary pain relief.
In additional progress notes dated January 17 through May 4, 2018, Dr. Brown continued
to discuss the status of appellant’s conditions, including bilateral carpal tunnel syndrome.
On August 16, 2018 appellant, through counsel, requested reconsideration of the March 2,
2018 decision and submitted a June 26, 2018 report cosigned by Drs. Gibbons and Brown who
continued to diagnose bilateral carpal tunnel syndrome and bilateral upper extremity nerve
damage, and opine that, within a reasonable degree of medical certainty appellant had been totally
disabled commencing July 9, 2016. The physicians noted that three weeks following her return to
light-duty work in May 2016, her condition deteriorated and she could no longer work due to
chronic pain with increased spasm and swelling in both hands.
By decision dated November 14, 2018, OWCP denied modification of the March 2, 2018
decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related

4

injury or illness is withdrawn or when the physical requirements of such an assignment are altered
so that they exceed his or her established physical limitations.5
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish, by the weight of the reliable, probative, and substantial evidence, a recurrence
of total disability and an inability to perform such limited-duty work. As part of this burden of
proof, the employee must show a change in the nature and extent of the injury-related condition or
a change in the nature and extent of the limited-duty job requirements.6 To establish a change in
the nature and extent of the injury-related condition, there must be a probative medical opinion,
based on a complete and accurate factual and medical history as well as supported by sound
medical reasoning, that the claimed disability is causally related to the accepted employment
injury.7 In the absence of rationale, the medical evidence is of diminished probative value.8 While
the opinion of a physician supporting causal relationship need not be one of absolute medical
certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing July 9, 2016 causally related to her accepted employment injury.
OWCP accepted appellant’s occupational disease claim for bilateral carpal tunnel
syndrome. On May 3, 2016 Dr. Barnes released her to light-duty work. Appellant stopped work
on May 29, 2016, but filed Form CA-7 claims for LWOP for the period commencing July 9, 2016.
She has not alleged a change in her light-duty job requirements. Instead, appellant attributed her
inability to work to a change in the nature and extent of her accepted bilateral carpal tunnel
syndrome. She therefore has the burden of proof to provide medical evidence to establish that she
was disabled from work due to a worsening of her accepted work-related condition.10
Appellant submitted reports and EMG/NCV studies dated September 7, 2016, July 14,
2017, May 22 and June 28, 2018 from her attending physician, Dr. Gibbons. Dr. Gibbons
diagnosed work-related chronic bilateral carpal tunnel syndrome and bilateral upper extremity
nerve damage. He opined that appellant was totally disabled from work commencing July 9, 2016.
5

L.S., Docket No. 18-1494 (issued April 12, 2019); F.C., Docket No. 18-0334 (issued December 4, 2018); J.F., 58
ECAB 124 (2006). 20 C.F.R. § 10.5(x). See also Richard A. Neidert, 57 ECAB 474 (2006).
6

L.S., id.; A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

7

L.S., supra note 5; Mary A. Ceglia, 55 ECAB 626 (2004).

8

Id.; Robert H. St. Onge, 43 ECAB 1169 (1992).

9

L.S., supra note 5; Ricky S. Storms, 52 ECAB 349 (2001).

10
L.S., supra note 5; D.H., Docket No. 18-0129 (issued July 23, 2018); D.L., Docket No. 13-1653 (issued
November 22, 2013); Cecelia M. Corley, 56 ECAB 662 (2005).

5

In a June 26, 2018 report, Dr. Gibbons indicated that three weeks after being released to return to
light-duty work in May 2016, her condition deteriorated and she could no longer work due to
chronic pain with increased spasm and swelling in both hands. The Board finds that Dr. Gibbons
did not provide sufficient medical reasoning explaining how the accepted employment injury
caused appellant’s disability, commencing July 9, 2016. The Board has held that a report is of
limited probative value regarding causal relationship if it does not contain medical rationale
explaining how the claimed disability was causally related to an employment injury.11 For these
reasons, the Board finds that Dr. Gibbons’ reports are insufficient to establish appellant’s
recurrence claim.12
Dr. Gibbons’ remaining prescription notes lack probative value as he did not offer an
opinion as to whether appellant’s total disability commencing July 9, 2016 was causally related to
the accepted employment injury. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s disability is of no probative value on the issue of
causal relationship.13 Therefore, this evidence is insufficient to satisfy appellant’s recurrence
claim.
Appellant also submitted prescriptions, progress notes, and a report signed and cosigned
by her chiropractor, Dr. Brown. While Dr. Brown opined, in an August 8, 2016 prescription, that
appellant was totally disabled from work due to her employment-related chronic bilateral carpal
tunnel syndrome, he did not diagnose spinal subluxations as demonstrated by x-ray to exist and,
thus, he is not considered a physician under FECA and his reports are of no probative value.14
On appeal counsel for appellant contends that the June 26, 2018 report from Dr. Gibbons
provides the necessary evidentiary basis for an award of wage-loss compensation. As noted above,
Dr. Gibbons did not provide sufficient medical rationale supporting that the accepted bilateral
carpal tunnel syndrome disabled appellant from work commencing July 9, 2016. As such,
appellant has not met her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

11

See A.P., Docket No. 19-0446 (issued July 10, 2019); G.G., Docket No. 18-1788 (issued March 26, 2019); E.W.,
Docket No. 17-1988 (issued January 29, 2019).
12

A.P., id.; G.G., id.; K.G., Docket No. 15-0669 (issued April 8, 2016).

13

See M.G., Docket No. 19-0610 (issued September 23, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
14
5 U.S.C. § 8101(2); see also D.P., Docket No. 13-1721 (issued February 21, 2014); P.D., Docket No. 13-2034
(issued May 8, 2014); Paul Foster, 56 ECAB 208 (2004).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing July 9, 2016 causally related to her accepted employment injury.15
ORDER
IT IS HEREBY ORDERED THAT the November 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 3, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

15
Upon return of the case record OWCP should consider administratively combining the present claim file with
her claim in OWCP File No. xxxxxx815.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.D., Appellant
and
U.S. POSTAL SERVICE, LOYOLA STATION,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 07-1661
Issued: March 11, 2008

Case Submitted on the Record

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

JURISDICTION
On June 7, 2007 appellant filed a timely appeal from the May 21, 2007 decision of an
Office of Workers’ Compensation Programs’ hearing representative affirming the August 31,
2006 denial of his claim for an increased schedule award. 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 has established that he has an employment-related
permanent impairment of his lower extremities which would entitle him to a schedule award.
FACTUAL HISTORY
On January 4, 2000 appellant sustained lumbar strain, right carpal tunnel syndrome, right
shoulder strain and right hand contusion when he grabbed a falling container with his right hand.
On July 25, 2002 appellant requested a schedule award. On July 22, 2002 Dr. Sofjan
Lamid, a Board-certified physiatrist, found that appellant had a reduction of 75 percent in his
right hand grip and a decreased pinprick sensation in the right median nerve distribution distal to

his right wrist. There were positive Phalen’s and Tinel’s signs in the right hand. Appellant had
full range of motion in the thoracolumbar spine, but had pain in the paralumbar spine and pain
radiating in the left leg. His right shoulder had a restricted range of motion with pain, tenderness
and spasms in the deltoid muscles. Dr. Lamid diagnosed employment-related right carpal tunnel
syndrome, facet spurring at L4-5 and L5-S1, disc bulging at L5-S1, bilateral sural neuropathy,
left posterior tibial neuropathy and right shoulder strain. He found that appellant reached
maximum medical improvement on April 2, 2002.
Using the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed., 2001), Dr. Lamid found reduced range of motion in appellant’s right wrist
and shoulder. He stated that Figure 16-26, page 466, and Table 16-3, page 439, indicated 14
percent right arm impairment for the 30 percent flexion and 30 percent extension of the right
wrist. Based on Figure 16-42, page 477, and Table 16-3, page 439, Dr. Lamid assigned six
percent right arm impairment for appellant’s right shoulder abduction to 100 degrees and
adduction to 0 degrees. Using Table 16-3, page 439, he found four percent right arm impairment
for appellant’s 40 degrees of right shoulder internal rotation and 50 degrees of external rotation.
Dr. Lamid also assigned permanent impairment due to motor and sensory loss. He found 30
percent arm impairment for motor and sensory loss in the median nerve below the right wrist
using Table 16-15, page 492, and Table 16-3, page 439. Dr. Lamid stated that, according to
Table 17-37, page 552, appellant had four percent whole person impairment for the loss of
sensation and dysesthesia of the sural nerve bilaterally and four percent whole person
impairment for loss of motor and sensory functions of the left posterior tibial nerve. He found
that appellant had a total whole person impairment of 35 percent based on the A.M.A., Guides,
Combined Values Chart, page 604.
On April 27, 2004 an Office medical adviser, Dr. Ronald Blum, found that Dr. Lamid’s
report was an insufficient basis for a schedule award because it incorrectly applied the A.M.A.,
Guides, and did not provide adequate descriptions of objective findings.
On July 16, 2004 appellant underwent a second opinion examination by Dr. Stephen
Kishner, a Board-certified physiatrist, who reported numbness and tingling on his thumb and
wrist, and pain in his lower back, upper back, neck and right shoulder. Dr. Kishner found that
appellant had normal strength in his lower extremities and a negative straight leg raising test
bilaterally. He noted that appellant had no reflexes in his knees or ankles and that he had
decreased sensation in a stocking distribution up to his mid-shin bilaterally. Dr. Kishner found
that appellant had full range of motion in all of his upper extremity joints, though there was pain
on resistive and active abduction of the right shoulder. Appellant had a severe laxity of the ulnar
collateral ligament of the right thumb at the metacarpophalangeal joint and decreased sensation
in the right superficial radial sensory nerve distribution. His upper extremity strength was
normal in all areas other than the right thumb, but he had no reflexes in either arm.
Dr. Kishner diagnosed rotator cuff disease in the right shoulder, though appellant had
normal strength and range of motion at that joint. He also diagnosed an ulnar collateral ligament
injury and a right radial sensory nerve injury. Dr. Kishner stated that appellant’s lower extremity
peripheral neuropathy was likely secondary to his diabetes. Using Table 16-15, page 492, of the
A.M.A., Guides, he found that appellant’s radial sensory nerve injury, with pain, rated a five
percent upper extremity impairment. The 35 degree excess radial deviation of the right thumb

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metacarpophalangeal joint, due to the ulnar collateral ligament injury, yielded three percent
upper extremity impairment. This result was arrived at by multiplying 9 percent, from Table 1618, page 499, by 30 percent, from Table 16-20, page 500. Dr. Kishner rated appellant’s lower
extremity impairments using Table 17-37, page 552. He found that the loss of sensation rated
five percent permanent impairment in the superficial peroneal nerve, two percent for the sural
nerve, five percent for the medial plantar, and five percent for the lateral plantar in each leg.
Using the Combined Values Chart, page 604, Dr. Kishner rated the right upper extremity
impairment as 8 percent and the lower extremity impairments as 17 percent for each leg.
On August 5, 2004 Dr. H. Mobley, an Office medical adviser, reviewed the medical
record and found that appellant had reached maximum medical improvement on July 16, 2004.
He concurred with Dr. Kishner’s findings, but found that appellant had 80 percent, rather than
100 percent, impairment related with the pain and sensory deficit of the right radial nerve below
the elbow at the wrist. Therefore, the total right upper extremity rating was seven percent, rather
than eight percent. As diabetes was not accepted by the Office, Dr. Mobley found that
appellant’s lower extremity impairment ratings were not employment related.
By decision dated September 2, 2004, the Office granted appellant a schedule award for
the seven percent impairment of his right upper extremity for 21.84 weeks for the period
September 5, 2004 to February 4, 2005.
On September 7, 2004 appellant requested a review of the written record by an Office
hearing representative. He stated that he should have been awarded a schedule award for his
lower extremities, contending that his lower extremity neuropathy was related to his lumbar
condition.
On September 29, 2004 Dr. Bryant George, a Board-certified neurological surgeon,
evaluated appellant for complaints of lumbar pain with radiation into his left hip and leg. He
noted that appellant’s lumbar range of motion was decreased in all planes and that he had
palpable paravertebral lumbar muscle spasms. Dr. George stated that the straight leg raising
(SLR) maneuver was negative, and that sensory examination was normal. He found normal
strength and tone in all lower extremity muscle groups, normal gait, and no evidence of atrophy
or fasciculation. Appellant had symmetrical reflexes of 1+ in his legs. Dr. George noted that a
2000 magnetic resonance imaging (MRI) scan showed mild multilevel spondylosis. He
diagnosed lumbar spondylosis with radiculopathy. Dr. George recommended that appellant
undergo another MRI scan and that he be placed on total disability until more diagnostic testing
was done.
On October 19, 2004 an MRI scan of appellant’s spine revealed no evidence of
spondylolysis or spondylolisthesis. The lumbar vertebral bodies were of normal alignment,
height and signal intensity. There was mild dehydration at L3-4 and mild to moderate
degenerative facet joint arthropathy at L5-S1.
By decision dated February 14, 2005, the Office hearing representative modified
appellant’s schedule award to eight percent, in accordance with the opinion of Dr. Kishner.
Noting that the Office had issued no formal opinion on appellant’s claimed lower extremity
impairment she remanded the case for appropriate action on this issue.

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On February 21, 2005 after reviewing appellant’s updated MRI scan results, Dr. George
stated that appellant was not a candidate for neurosurgery treatment and referred appellant for
pain management with Dr. Rand Metoyer, a Board-certified anesthesiologist. On March 15,
2005 Dr. Metoyer noted mild limitations to lumber extension and lateral flexion and tenderness
to light palpitation throughout the lumbar paraspinous musculature. He diagnosed chronic lower
back pain, degenerative disc disease, myofascial pain, mild facet athropathy at L5-S1 and
psychological factors affecting his physical condition.
On March 31, 2005 Dr. Blum, an Office medical adviser, reviewed appellant’s medical
record and found that appellant was not entitled to a schedule award for his lower extremity
condition. He noted that Dr. Kishner attributed appellant’s neuropathy to diabetes, which was
not an accepted condition.
By decision dated April 22, 2005, the Office denied appellant’s claim for a schedule
award for his lower extremities. The Office noted that Dr. Kishner and Dr. Blum found that
appellant’s lower extremity condition was unrelated to his accepted conditions.
On April 26, 2005 appellant requested a review of the written record.
By decision dated January 19, 2006, the Office hearing representative set aside the
April 22, 2005 decision and remanded the case for further development. A conflict of medical
opinion was found between Drs. George and Lamid and Dr. Kishner on the issue of whether
there was an employment-related impairment to appellant’s lower extremities. In accordance
with the hearing representative’s decision, on February 1, 2006 the Office updated the statement
of accepted facts. On February 8, 2006 it combined the file from the instant claim, File No.
162010130, with File No. 160346776, which was based on the same accepted employment
injury.
On July 11, 2006 Dr. John Andrew, a Board-certified orthopedic surgeon selected as the
impartial medical specialist, examined appellant and conducted a review of the medical
evidence. He diagnosed Type II diabetes mellitus with peripheral neuritis of both upper and
lower extremities. At the examination, appellant reported that he had back pain radiating down
both lower extremities in a stocking-type distribution. He described intermittent shocking
sensations, generally after rising from sitting, which radiated into both sides of the buttocks and
the ankles. The radiating pain in appellant’s legs was aggravated by prolonged walking or
climbing stairs and relieved by sitting down. He reported weakness and numbness in his right
hand and right shoulder. On physical examination, Dr. Andrew found that appellant’s back was
straight and that he had inconsistent findings in all range of motion studies. From standing,
appellant was limited by pain from bending his back more than 50 degrees or flexing his hips
more than 30 degrees. From lying down, he could not perform an active straight leg raising test
because he could not flex his hips beyond 0 degrees without pain. Appellant stated that there
was extreme back pain on the recumbent passive straight leg raising test when his leg was lifted
beyond 30 degrees. When sitting on the table, however, he complained of no pain when his hips
were flexed to 90 degrees and his knees were at both 90 and 180 degrees. Dr. Andrew found a
full passive range of motion in all the joints in the upper extremities. Because appellant had a
negative Phalen’s test on the right, he found no clinical evidence of right carpal tunnel syndrome.
Dr. Andrew found no significant atrophy in any extremities. He noted inconsistent sensory

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findings in both the upper and lower extremities, but found that, when findings did occur, they
appeared in a circumferential distribution. Dr. Andrew stated that this was an indication that the
neuropathy was related to diabetes and not radiculitis. He found that all the deep tendon reflexes
were markedly diminished in upper and lower extremities.
Dr. Andrew found that there was no evidence of a significant back injury in the medical
record. He noted that appellant appeared to exaggerate most of his symptoms, making it difficult
to describe objective findings. Dr. Andrew noted no measurable muscle atrophy or joint
ankylosis. He stated that the sensory changes noted were in a glove or stocking-type
distribution, which is characteristic of peripheral neuritis related to diabetes. Dr. Andrew made
no sensory findings that were suggestive of radiculopathy. He found that appellant’s subjective
complaints “did not fit the picture of any significant injury” and were not due to any anatomical
problem. Because Dr. Andrew found no evidence of impairment related to the accepted injury,
he provided an impairment rating of zero for appellant’s lower extremities.
On August 22, 2006 Dr. Mobley, an Office medical adviser, stated that appellant’s date
of maximum medical improvement was July 11, 2006. He concurred with Dr. Andrew’s opinion
that appellant had no lower extremity impairment related to his accepted employment injuries.
By decision dated August 31, 2006, the Office denied appellant’s claim for a schedule
award for his lower extremities. The Office found that Dr. Andrew’s opinion carried the weight
of the medical evidence and established that appellant had no employment-related impairment to
his lower extremities.
On September 11, 2006 appellant requested an oral hearing, which was held on
April 3, 2007. He stated that he retired from the employing establishment in September 2006
and provided a description of his previous employment activities and injuries. Appellant stated
that his lower extremity pain was intermittent, but worsening.
By decision dated May 21, 2007, the Office hearing representative affirmed the
August 31, 2006 decision. He found that the Office properly relied on Dr. Andrew’s medical
opinion that appellant had no lower extremity impairment associated with his employment.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss should
be determined. For consistent results and to ensure equal justice under the law for all claimants,
the Office has adopted the A.M.A., Guides as the uniform standards applicable to all claimants.3

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

20 C.F.R. § 10.404(a).

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Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in 2001, for all
decisions made after February 1, 2001.4
The standards for evaluation of the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.5
The Act provides that, if there is a disagreement between a physician making an
examination for the United States and the physician of the employee, the Secretary must appoint
a third physician to make an examination.6 Likewise, the implementing regulation states that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser or consultant, the Office must
appoint a third physician to make an examination. This is called a referee examination and the
Office is required to select a physician who is qualified in the appropriate specialty and who has
had no prior connection with the case.7 It is well established that, when a case is referred to an
impartial medical specialist for the purpose of resolving a conflict, the opinion of such specialist,
if sufficiently well rationalized and based on proper factual and medical background, must be
given special weight.8
ANALYSIS
The Office accepted appellant’s claim for lumbar strain, right carpal tunnel syndrome,
right shoulder strain and right hand contusion. The Office issued a schedule award for eight
percent impairment of appellant’s upper right extremity, but denied his claim for a lower
extremity schedule award. The issue is whether appellant has established that he has permanent
impairment in his lower extremities causally related to his accepted injuries.
The Office properly found that there was a conflict of medical opinion between
Dr. Lamid and Dr. Kishner, both Board-certified physiatrists, as to whether appellant’s lower
extremity condition was causally related to his accepted injuries. To resolve this conflict, the
Office referred appellant to an impartial medical examiner, Dr. John Andrew, a Board-certified
orthopedic surgeon.
On July 11, 2006 Dr. Andrew reviewed the medical evidence and examined appellant,
who reported back pain radiating down both legs and intermittent shocking sensations that
radiated into both sides of the buttocks and the ankles. The radiating pain was aggravated by
prolonged walking or climbing stairs and the shocking sensation was related to rising to a
4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

5

Paul A. Toms, 28 ECAB 403 (1987).

6

5 U.S.C. §§ 8101-8193, 8123(a).

7

20 C.F.R. § 10.321.

8

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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standing position. On physical examination, Dr. Andrew found that appellant had inconsistent
findings in the back range of motion studies. He found no significant atrophy, but noted that all
the deep tendon reflexes were markedly diminished in upper and lower extremities. Dr. Andrew
stated that there were inconsistent sensory findings in the extremities, but that, when they did
occur, they appeared in a circumferential distribution, an indication that the neuropathy was
related to diabetes rather than radiculitis. He diagnosed Type II diabetes mellitus with peripheral
neuritis in the lower extremities. Dr. Andrew found that there was no evidence of a significant
back injury in the medical record and that appellant appeared to exaggerate most of his
symptoms, which made it difficult to describe objective findings. He noted no measurable
muscle atrophy or joint ankylosis. Dr. Andrew found that appellant’s sensory changes occurred
in a glove or stocking-type distribution, which is characteristic of peripheral neuritis related to
diabetes. He made no sensory findings that were suggestive of radiculopathy. Dr. Andrew
concluded that appellant’s subjective complaints “did not fit the picture of any significant
injury,” that they were not due to any anatomical problem and that there was no impairment
related to the accepted employment injury. He found no evidence of any impairment of the
lower extremity related to the accepted injury. Dr. Andrew provided an impairment rating of
zero percent for appellant’s lower extremities. The Board finds that his medical opinion is
sufficient to carry the special weight of the medical opinion evidence because it is well
rationalized and based on proper factual and medical background. The Office properly relied on
this medical opinion in denying appellant’s claim of a schedule award for his lower extremities.
The Board finds that because appellant did not submit any medical evidence sufficient to
overcome the special weight of Dr. Andrew’s opinion. He has not established that he is entitled
to a schedule award for his lower extremities.
CONCLUSION
The Board finds that appellant has not established that he has any employment-related
impairment of his lower extremities which would entitle him to a schedule award.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 21, 2007 and August 31, 2006 are affirmed.
Issued: March 11, 2008
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

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