United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND, San Diego, CA,
Employer
__________________________________________

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

Docket No. 16-0762
Issued: June 22, 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 March 7, 2015 appellant filed a timely appeal of a December 15, 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 this case.
ISSUE
The issue is whether appellant met his burden of proof to establish bilateral hearing loss
causally related to factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 16, 2015 appellant, then a 67-year-old pneudraulic systems mechanic inspector,
filed an occupational disease claim (Form CA-2) alleging that on November 21, 2011 he first
realized that his hearing loss was employment related.2
On April 23, 2015 OWCP received an undated and unsigned chronology of military and
civilian noise exposure from 1967 to 2014. Appellant related he was exposed to noise from
January 1974 to November 2014 at the employing establishment.
By letter dated May 1, 2015, OWCP informed appellant that the evidence submitted was
insufficient to establish his claim. It requested that he submit additional factual evidence in
support of his claim. OWCP also requested that the employing establishment respond to
appellant’s allegations and provide noise survey reports for each site where he worked, the
sources and period of noise exposure for each location, whether he wore ear protection, and
copies of all medical examinations pertaining to hearing or ear problems, including
preemployment examinations and audiograms. Appellant was afforded 30 days to submit this
additional evidence.
OWCP received audiograms performed by the employing establishment as part of a
hearing conservation program dated March 30, 1989 through October 20, 2014. It also received
employment records, which included industrial hygiene noise survey data and a description of
his pneudraulic systems mechanic inspector position.
By letter dated September 29, 2015, OWCP referred appellant for a second opinion
evaluation for appellant with Dr. Theodore Mazer, a Board-certified otolaryngologist.
In an October 30, 2015 report, Dr. Mazer noted that appellant complained of bilateral
tinnitus, which was greater in the left ear. He diagnosed sensorineural hearing loss, which he
concluded was unrelated to appellant’s federal employment from 1988 to 2014. Dr. Mazer
reported appellant had longstanding tinnitus which dated back to 1988. He reviewed the
audiograms from the hearing conservation program testing and concluded there was no evidence
of progressive hearing loss through 2012 for the right ear with slight change on the left.
Dr. Mazer reported that appellant’s baseline was reset in 2012 with no significant changes from
2012 to 2014. The lack of any significant change, and no noise notch pattern, according to
Dr. Mazer was evidence that appellant’s hearing loss was not caused by his federal employment.
In addition, he explained that lack of a ratable hearing loss following the cessation of noise
exposure and the advanced slopping pattern was indicative of age-related changes rather than
due to appellant’s federal employment. The October 30, 2015 audiogram, with an attached
calibration certificate, showed hearing levels at 500, 1,000, 2,000, and 3,000 hertz respectively of
20, 25, 25, and 25 decibels (dB) on the right and 25, 30, 30, and 35 dB on the left.
By decision dated December 15, 2015, OWCP denied appellant’s hearing loss claim. It
found that appellant had not provided medical evidence supporting hearing loss due to factors of
his federal employment.
2

Appellant retired from the employing establishment in November 2014.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA; that the claim was 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.4 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.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 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.7 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.8
Appellant has the burden of establishing by weight of the reliable, probative, and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.9 Neither the condition becoming apparent during a period of employment,
nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.10
ANALYSIS
Appellant alleged that he sustained hearing loss due to noise exposure at his federal
employment. OWCP accepted that appellant was exposed to employment-related noise, but
found the medical evidence insufficient to establish that his hearing loss was causally related to
his workplace noise exposure.

3

5 U.S.C. § 8101 et seq.

4

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

5

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

6

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

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

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

K.S., Docket No. 16-0035 (issued April 27, 2016).

10

See John W. Butler, 39 ECAB 852, 858 (1988).

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OWCP referred appellant to Dr. Mazer for an opinion as to the cause of his hearing loss.
In an October 30, 2015 report, Dr. Mazer reviewed the statement of accepted facts, noted
appellant’s history, reviewed the medical and audiological evidence, presented examination
finding, and reported results from an October 30, 2015 audiogram. He observed that appellant
had longstanding tinnitus going back to 1988. Based on a review of audiograms from the
hearing conservation program testing, Dr. Mazer found no evidence of any progressive hearing
loss through 2012 for the right ear and a slight change on the left. He observed that appellant’s
baseline was reset in 2012 and there had been no significant changes from 2012 to 2014.
Dr. Mazer concluded that appellant’s hearing loss was not causally related to his federal
employment noise exposure based on the lack of any significant change, and no noise notch
pattern. In support of his conclusion, he explained that lack of a ratable hearing loss following
the cessation of noise exposure and the advanced slopping pattern were indicative of age-related
changes rather than causation due to appellant’s federal employment. Thus, Dr. Mazer found no
basis on which to attribute appellant’s hearing loss to the accepted history of workplace noise
exposure.
The Board finds that Dr. Mazer’s well-reasoned report constitutes the weight of the
medical evidence. Dr. Mazer fully explained the reasons for his opinion referencing current and
previous audiometric test results. Appellant has not submitted any medical opinion evidence
supporting that his hearing loss was caused or aggravated by his workplace noise exposure.
Accordingly, the Board finds that OWCP properly denied his claim in its December 15, 2015
decision.
On appeal appellant asserts that his hearing loss is not age related and began in 1998. He
further noted that he was diagnosed with unilateral tinnitus in March 1998 and that the condition
has worsened over the years. However, neither the fact that appellant’s condition became
apparent during a period of employment nor his belief that the condition was caused,
precipitated, or aggravated by his employment is sufficient to establish a causal relationship.11
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 did not meet his burden of proof to establish bilateral
hearing loss causally related to factors of his federal employment.

11

W.D., Docket No. 09-658 (issued October 22, 2009); G.T., 59 ECAB 447 (2008); Robert G. Morris, 48 ECAB
238, 239 (1996).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 15, 2015 is affirmed.
Issued: June 22, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 11-803
Issued: November 7, 2011

Case Submitted on the Record

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

JURISDICTION
On February 11, 2011 appellant filed a timely appeal from the January 19, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for a
work-related emotional condition. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 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 an
emotional condition in the performance of duty.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. In an April 23, 2010 decision,2 the Board
accepted that appellant established several compensable employment factors in connection with
her claim for a work-related emotional condition and remanded the case to OWCP for further
development.3 The Board found that she had established employment factors related to her
duties as a tax-examining assistant beginning around January 2004.4 Appellant was responsible
for making adjustments to taxpayers’ accounts and calculating the tax effects of such
adjustments, inputting the proper computer codes for adjustments and determining if statutes of
limitation applied to cases. She had to make these determinations quickly due to various
applicable deadlines and making these adjustments to taxpayers’ accounts required familiarity
with a variety of different types of cases, including those for trust fund recovery and innocent
spouse cases. Appellant also had to perform mail and new receipt carding duties and take
telephone calls to answer questions from taxpayers and different offices. The Board found that
other claimed employment factors, mostly related to claims of errors in administrative matters,
had not been established by her.5 The Board further found that, as appellant established
compensable employment factors, the case should be remanded to OWCP for analysis of
whether the medical evidence showed that she sustained an emotional condition due to the
established emotional conditions.
On remand, an OWCP claims examiner sent appellant a May 6, 2010 letter asking her to
give details of all prior emotional conditions and to provide medical records of any such
conditions. She requested that appellant submit a medical report from an attending physician
that described her symptoms, results of examinations and tests, medical diagnoses, effects of
treatment and a reasoned opinion on the cause of her condition. The claims examiner stated,
“Specifically, if your doctor feels that exposure or incidents in your federal employment
contributed to your condition, an explanation of how such exposure contributed should be
provided.”
In a July 18, 2005 note, Dr. Piyush Buch, an attending Board-certified psychiatrist,
advised that appellant was hospitalized from June 27 to July 4, 2005. In a January 17, 2006
disability slip, he noted that appellant could not work until further notice, but he did not indicate
a cause for this disability.

2

Docket No. 09-1479 (issued April 23, 2010).

3

On June 2, 2008 appellant, then a 47-year-old tax-examining assistant, filed an occupational disease claim
alleging that she sustained depression, anxiety and panic attacks due to various incidents and conditions at work.
She indicated that she first became aware of her claimed condition and its relationship to her work on June 7, 2005.
4

See Lillian Cutler, 28 ECAB 125 (1976).

5

The Board found that appellant did not establish employment factors regarding her claims that the employing
establishment did not provide adequate training to perform her duties as a tax-examining assistant, that she was
assigned job duties for which she was unprepared, that managers ignored her requests for help with her job duties,
that a supervisor mistreated her in connection with her attempts to receive benefits and engaged in negligence which
caused her to not receive compensation for a month and that she feared being disciplined or fired if she made
mistakes in her work duties.

2

In a July 25, 2005 disability slip, Dr. Rafael Vargas, an attending Board-certified family
practitioner, stated that appellant was totally disabled beginning June 8, 2005 but could return to
regular work on July 25, 2005. He did not address why she was disabled for this period. On
May 14, 2010 Dr. Vargas indicated that appellant had been treated with Zoloft on June 11, 2005
for “panic attacks/anxiety/depression.” He stated, “These panic attacks/anxiety/depression
[were] caused by the extreme pressure she felt from her job. [Appellant] felt she was not trained
adequately for the job she was asked to do. She felt helpless.” Dr. Vargas stated that appellant’s
symptoms became so severe that she needed to be hospitalized in the mental department of
Advocate Christ Hospital. Appellant was discharged and instructed to attend the partial
hospitalization program. Dr. Vargas indicated that she was better now, but she continued to take
medication for her anxiety and depression on a regular basis.
In a June 21, 2010 report, Dr. Buch stated that appellant was under his care from
June 2005 to January 2007. He indicated that her diagnosis was major depression with anxiety
and panic attacks and noted that the symptoms experienced by appellant were frequent depressed
mood, anxiety with frequent panic attacks, helpless and hopeless feelings, poor appetite, poor
sleep, loss of energy and tiredness, loss of motivation, decreased ability to think and to make
decisions while at work, and excessive concerns about her health. Dr. Buch stated, “These
symptoms were exacerbated by the stressfulness of her job. [Appellant] felt pressured to do a
job that she was not adequately trained for.” He indicated that, due to her severe depression and
anxiety, appellant was hospitalized at Advocate Christ Hospital from June 28 to July 4, 2005.
Appellant attended the partial hospitalization program beginning July 5, 2005 and she was seen
in Dr. Buch’s office on an outpatient basis until January 2007 when she could no longer afford
medication and visit charges. Dr. Buch stated that he saw her on June 21, 2010 and she informed
him that her condition had improved under continuing treatment by Dr. Vargas, but she
continued to suffer from migraines even though she was no longer exposed to her previous work
environment.6
In an August 11, 2010 decision, OWCP denied appellant’s emotional condition claim on
the grounds that she did not submit sufficient rationalized medical evidence to establish that she
sustained an emotional condition due to the established compensable employment factors.
Appellant requested a hearing before an OWCP hearing representative. At the
November 3, 2010 hearing, she testified that before 2004 she had no emotional problems and no
medical treatment or examination for such. Appellant asserted that, beginning in 2004, she was
confused, anxious and depressed about her work, for which she did not receive proper training.
Beginning in June 2005, she saw Dr. Vargas and Dr. Buch for her emotional problems.
Appellant submitted handwritten and illegible treatment notes from Dr. Buch dated
August 2005 to June 2010. She also submitted handwritten treatment notes from Dr. Vargas
6

Appellant also submitted a June 28, 2005 report from Advocate Christ Hospital which appears to indicate a
diagnoses of depression and anxiety plus another illegible diagnosis. It is unclear who produced this report. In
July 4 and 24, 2005 reports, a registered nurse indicated that appellant had been hospitalized for increased anxiety,
depressed mood, hopelessness, helplessness, fears and inability to eat.

3

dated June 2005 to November 2010. In a June 11, 2005 treatment note, Dr. Vargas stated that
appellant felt anxious and confused and had chest pain, palpitations, difficulty swallowing, and
panic attacks. He stated that she “has pressure from work and family problems.” The diagnoses
were anxiety and panic attacks.
In a December 3, 2010 typewritten report, Dr. Vargas stated that appellant was treated
beginning in June 2005 for panic attack, anxiety and depression with Zoloft. He indicated that
appellant’s symptoms became so severe that she had to be hospitalized in the psychiatric
department of Advocate Christ Hospital and that, after she recovered sufficiently to be
discharged, she was instructed to attend the partial hospitalization program. Dr. Vargas indicated
that appellant was doing better and she continued to take her medication and follow up with her
psychiatrist. He stated:
“These panic attacks/anxiety/depression were caused by the extreme pressure
[appellant] was under from her work circumstances. This stress comes from
having a large caseload up to 40 cases at times, with several pressuring deadlines.
[Appellant] was recently promoted to this new position. Therefore she was afraid
of being disciplined or even being fired if she made mistakes. [Appellant] felt
helpless. She did not have the support of her supervisors.
In a January 19, 2011 decision, OWCP’s hearing representative affirmed OWCP’s
August 11, 2010 decision. He indicated that none of the medical evidence of record contained a
rationalized medical opinion relating the claimed emotional conditions to accepted compensable
employment factors.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.7 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reduction in
force or her frustration from not being permitted to work in a particular environment or to hold a
particular position.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed

7

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, supra note 4.

8

Gregorio E. Conde, 52 ECAB 410 (2001).

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factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.10
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 claimant’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
and accurate 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.11
ANALYSIS
On June 2, 2008 appellant filed an occupational disease claim alleging that she sustained
depression, anxiety and panic attacks due to various incidents and conditions at work. The
Board has previously determined that appellant has only established compensable employment
factors regarding some aspects of her job duties as a tax-examining assistant beginning around
January 2004. The established factors included the fact that she was responsible for making
adjustments to taxpayers’ accounts and calculating the tax effects of such adjustments, inputting
the proper computer codes for adjustments and determining if statutes of limitation applied to
cases. Appellant had to make these determinations quickly due to various applicable deadlines
and making these adjustments to taxpayers’ accounts required familiarity with a variety of
different types of cases, including those for trust fund recovery and innocent spouse cases. She
also had to perform mail and new receipt carding duties and take telephone calls to answer
questions from taxpayers and different offices.
The Board finds that appellant has not submitted rationalized medical evidence
establishing that she sustained an emotional condition due to the accepted compensable
employment factors.
In a June 11, 2005 note, Dr. Vargas indicated that appellant had “pressure from work and
family problems.” However, this report is of little probative value on the relevant issue of the
present case because he did not provide any details showing that the mentioned work problems
constituted any of the accepted compensable employment factor. On May 14, 2010 Dr. Vargas
indicated that appellant was treated on June 11, 2005 for panic attacks, anxiety and depression
9

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

10

Id.

11

Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

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caused by “extreme pressure she felt from her job,” including her belief that she was not trained
adequately for the job she was asked to do. This report does not show that appellant had any
medical condition causally related to the established employment factors but rather relates her
condition to her belief that she was not adequately trained, a claimed factor that the Board has
previously found was not established. In a June 21, 2010 report, Dr. Buch, an attending
psychiatrist, indicated that appellant had stress from the noncompensable factor of being
“pressured to do a job that she was not adequately trained for.” This report also is of limited
probative value because he related appellant’s emotional problems to a noncompensable factor,
her unsubstantiated belief that her training was inadequate.
In a December 3, 2010 report, Dr. Vargas stated that appellant had stress from having a
large caseload of up to 40 cases at times, with several pressuring deadlines. He indicated that
she had been promoted to a new position and therefore she was afraid of being disciplined or
even being fired if she made mistakes. Dr. Vargas noted that appellant felt helpless and believed
that she did not have the support of her supervisors. Although he mentioned appellant’s caseload
and deadlines, he did not provide any detailed description of these matters and it is unclear
whether he had a complete and accurate picture of the work duties that were accepted as
compensable employment factors, nor did he provide a detailed explanation of how these duties
could have contributed to appellant’s diagnosed psychiatric problems. In fact, it appears from
Dr. Vargas’ report that appellant essentially attributed her emotional problems to the stress she
experienced from her belief that she did not get adequate support from her supervisors and her
fear that she would be disciplined or even being fired if she made mistakes. However, the Board
previously made explicit findings that these matters did not constitute compensable employment
factors. For these reasons, Dr. Vargas did not provide a rationalized medical opinion relating
appellant’s emotional condition to specific, established employment factors.
Appellant submitted other medical evidence for consideration but none of this evidence
contained a clear opinion on the cause of her emotional condition. She has not submitted
rationalized medical evidence establishing that her claimed condition was related to the accepted
employment factors and therefore OWCP properly denied 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.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

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ORDER
IT IS HEREBY ORDERED THAT the January 19, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Seattle, WA, Employer
__________________________________________

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Appearances:
John Eiler Goodwin, Esq., for the appellant
Ashkea Herron McAllister, Esq., for the Director

Docket No. 14-354
Issued: September 2, 2014

Oral Argument June 11, 2014

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

JURISDICTION
On December 2, 2013 appellant, through her attorney, filed a timely appeal from a
June 5, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits on November 2, 2012.
At oral argument, appellant’s attorney asserted that OWCP did not meet its burden of
proof to terminate his wage-loss compensation because the opinion of Dr. Sanders Chai, an
attending Board-certified occupational medicine physician, on which the termination was based,
was not sufficiently rationalized. Counsel further asserted that a retear of a torn anterior cruciate
ligament should have been accepted.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 30, 2006 appellant, then a 33-year-old medical records technician, submitted a
traumatic injury claim alleging that on March 22, 2006 she injured her right knee when she rose
up from her chair and tripped on another chair that was in her office. On September 12, 2005
she had nonwork-related right knee surgery for a torn anterior cruciate ligament. OWCP
accepted a tear of the right medial meniscus.2 Appellant was also in a nonwork-related motor
vehicle accident in 2006.
Appellant stopped work in January 2007 and did not return. On June 15, 2007 she
underwent arthroscopic repair of the right medial meniscus. At that time, the right anterior
cruciate ligament was also evaluated and sutures were removed.
In a subsidiary claim, OWCP accepted major depressive episode, severe and
post-traumatic stress disorder.3
On June 11, 2009 Dr. David Butler, an attending Board-certified family practitioner,
advised that appellant was seen in follow-up of the March 22, 2006 employment injury. He
noted that she reported that the knee recently began swelling partway through a three-hour “for
the cure” walk. A therapist also noted that appellant might be able to return to soccer with a
sports brace.
OWCP referred appellant to Dr. Larry R. Pedegana, a Board-certified orthopedic
surgeon, for a second opinion evaluation. In an October 21, 2009 report, Dr. Pedegana provided
findings on examination. He diagnosed a right torn meniscus with repair, more probable than
not related to the March 22, 2006 work injury and preexisting anterior cruciate ligament
reconstruction and partial lateral meniscectomy unrelated to the employment injury.
Dr. Pedegana advised that appellant was fully recovered from the effects of the March 22, 2006
work injury and had no work restrictions regarding activity involving the right knee. Appellant
had an ongoing psychiatric disability.
In an April 28, 2010 treatment note, Sarah Minor, Ph.D., a clinical psychologist, noted
that appellant tore her Achilles tendon at home and had also been in another motor vehicle
accident.
Dr. Sanders Chai, Board-certified in occupational medicine, provided a treatment note on
May 8, 2012. He noted that appellant was last seen on July 1, 2008 and had been lost to
follow-up until that day. Appellant’s right knee was stable after a slight flare that occurred
during a hike several years previously and she had injured her Achilles tendon. Dr. Chai noted
that she had recently renovated her house, repaired a chimney and pulled carpeting on her own,
2

A May 3, 2006 magnetic resonance imaging (MRI) scan of the right knee demonstrated a small tear of the
medial meniscus and a suspected retear of the repaired anterior cruciate ligament. Drs. Joseph E. Noonan, Jr., and
Richard E. Hall, Board-certified orthopedic surgeons, provided second opinion evaluations on September 11, 2006
and September 17, 2007 respectively.
3

The knee claim was adjudicated by OWCP under file number xxxxxx650 and the stress claim under file
number xxxxxx399. These claims were combined by OWCP.

2

walked two miles three times a week, rode her bicycle five to 10 miles and took no pain
medication. While appellant reported problems with repetitive kneeling and squatting, her squat,
gait, neurological and vascular examinations were within normal limits. Dr. Chai noted a
symmetric appearance of the right knee, upper or lower leg and ankle with no effusion or
tenderness along the medial joint line. Range of motion was full. Patella tracking was
symmetric and tendons were intact. Drop and McMurray’s tests were negative. Appellant had
no instability. Dr. Chai concluded that she was at maximum medical improvement and had no
work restrictions. On an attached work capacity evaluation, he advised that appellant could
return to full duty at her usual job regarding her knee claim. In a May 9, 2012 report, Dr. Chai
noted that in July 2008 he determined that, she was at maximum medical improvement as to her
right knee and his examination the previous day affirmed this opinion. He concluded:
“There are no objective findings that support any need for further treatment under
the claim. Thus there is no causal relationship to be established at this time with
regard to any injury to the right knee. Claimant and I reviewed the above and she
agrees there are no work restrictions that are necessary under this claim. I am
submitting a Form CA-17 to reflect this.”
By letter dated May 22, 2012, OWCP proposed to terminate appellant’s compensation
benefits on the grounds that she no longer had any disability or residuals due to the accepted
right knee condition. Counsel disagreed with the proposed termination. He submitted a
June 8, 2012 duty status report from Dr. Sukriti Singhal, Board-certified in occupational
medicine, who provided restrictions on walking, limited to six hours daily and lifting limited to
five pounds continuously and 25 pounds intermittently.
In a decision dated July 2, 2012, OWCP finalized the proposed termination, effective
July 1, 2012.
On July 23, 2012 appellant requested a hearing. In a September 19, 2012 decision,
OWCP’s hearing representative reversed the termination finding that counsel was not provided a
copy of the July 2, 2012 decision.
In a November 2, 2012 decision, OWCP terminated appellant’s medical and wage-loss
compensation, effective that day. Appellant was paid compensation for the period July 1
through November 2, 2012.
Appellant requested a hearing on November 15, 2012. A December 5, 2012 MRI scan of
the right knee demonstrated a posterior horn medial meniscal tear, probable chronic partialthickness tear of the mid anterior cruciate ligament graft with adjacent fibrotic changes, evolving
degenerative changes and mild superficial chondromalacia of the patellar cartilage. In a
January 11, 2013 report, Dr. Michael J. Franceschina, a Board-certified osteopath specializing in
orthopedic surgery, noted a history that on March 22, 2006 appellant tripped over a chair at
work, injuring her right knee and had right knee surgery in 2006 and 2007. He reported her
complaint of continued pain and noted that she had not been able to play soccer for several years.
Dr. Franceschina provided findings on physical examination, reviewed the MRI scan study and
diagnosed right knee degenerative arthritis and post-traumatic arthritis, probable attenuation and

3

mild degeneration of the anterior cruciate ligament graft, posterior horn medial meniscus tear and
chondromalacia patella.
In treatment notes dated November 13, 2012 to February 8, 2013, Dr. Michael S.
McManus, Board-certified in occupational medicine, reported a history that appellant tripped on
a chair at work when she was rushing to an emergency situation. He noted her complaints of
constant pain and swelling of the right knee and provided physical examination findings.
Dr. McManus diagnosed a right knee strain or sprain with tears of the medial and lateral menisci
and partial tear of the anterior cruciate ligament, right saphenous neuropathy, chondromalacia of
the right knee, compartment syndrome of the lower extremity, unstable knee, status-post
arthroscopic repair of medial and lateral meniscectomies and chondroplasties, post-traumatic
arthritis of the right knee and status-post-traumatic rupture of the right Achilles tendon. In duty
status reports dated November 13, 2012 to February 8, 2013, he advised that appellant could
return to work with restrictions of lifting 40 pounds intermittently for two hours a day.
Climbing, bending and stooping were limited to two hours a day.
A hearing was held on March 22, 2013. Appellant described her job duties and indicated
that her knee still bothered her. Lisa Wabinga, an employing establishment human resource
manager, testified regarding appellant’s job duties.
By decision dated June 5, 2013, OWCP’s hearing representative affirmed the
November 15, 2012 decision. She found that the medical evidence from Dr. Chai was sufficient
to terminate appellant’s compensation benefits for the accepted right knee condition.4
LEGAL PRECEDENT
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.5
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.6
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits on November 2, 2012. OWCP accepted that appellant sustained a tear of
the right medial meniscus due to a March 22, 2006 traumatic injury. Appellant stopped work in
January 2007 and was placed on the periodic compensation rolls.
The medical evidence relevant to the November 2, 2012 termination includes the
May 8, 2012 report by Dr. Chai, an attending physician, who noted that appellant, was last seen
4

The hearing representative also noted that appellant had filed a claim for wage-loss compensation under claim
file number xxxxxx399 that was under development by OWCP.
5

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

6

Id.

4

on July 1, 2008 and that her right knee condition was stable after a slight flare that occurred
during a hike several years previously. Dr. Chai noted that she had renovated her house, repaired
a chimney and pulled carpeting on her own, that she walked two miles three times a week, rode
her bicycle five to 10 miles and took no pain medication. He noted that appellant reported
difficulty with repetitive kneeling and squatting, but that her squat, gait, neurological and
vascular examinations were normal. Dr. Chai noted a symmetric appearance of the right knee,
upper and lower leg and ankle with no effusion and tenderness along the medial joint line.
Appellant had full knee range of motion, symmetric patella tracking, intact tendons and negative
drop and McMurray’s tests. She had no instability. Dr. Chai concluded that appellant was at
maximum medical improvement and could return to full duty at her usual job with no restrictions
regarding her knee. On May 9, 2012 he noted that he concluded in July 2008 that she was at
maximum medical improvement regarding her knee and that his examination on May 8, 2012
confirmed this opinion, stating, that there were no objective findings that supported any need for
further treatment with regards to any injury to the right knee.
Appellant submitted a June 8, 2012 report from Dr. Singhal who provided physical
restrictions. In a January 11, 2013 report, Dr. Franceschina noted her report that she tripped over
a chair at work and injured her right knee and that she complained of continued right knee pain.
He diagnosed degenerative and post-traumatic arthritis of the right knee and mild degeneration
of the graft, posterior horn medial meniscus tear and chondromalacia patella. In reports from
November 13, 2012 to February 8, 2013, Dr. McManus also reported a history that appellant
injured her right knee at work and had complaints of constant pain and swelling. He diagnosed
right knee strain or sprain with tears of the medial and lateral menisci and partial tear of the
anterior cruciate ligament, right saphenous neuropathy, chondromalacia of the right knee,
compartment syndrome of the lower extremity, unstable knee, status-post arthroscopic repair of
medial and lateral meniscectomies and chondroplasties, post-traumatic arthritis of the right knee
and status-post traumatic rupture of the right Achilles tendon. Dr. McManus advised that
appellant could return to restricted duty. None of these physicians, however, related their
physical findings or diagnoses to the March 22, 2006 employment injury.
In assessing medical evidence, the weight of such evidence is determined by its
reliability, its probative value and its convincing quality. The opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of analysis manifested and the medical rationale expressed in support of
the physician’s opinion are facts, which determine the weight to be given to each individual
report.7 The Board finds that OWCP properly determined that the weight of the medical opinion
evidence rested with the opinion of Dr. Chai, who fully discussed appellant’s physical findings
with regards to her right knee, noted that she performed activities such as renovating her home,
bicycling and walking and that she took no pain medicine. Dr. Chai concluded that appellant
could return to work with no restrictions. As he provided a rationalized explanation for his
opinion that she had no residuals of the March 22, 2006 employment injury, OWCP met its
burden of proof to terminate her compensation benefits on November 2, 2012.

7

Michael S. Mina, 57 ECAB 379 (2006).

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits on November 2, 2012.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 2, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, OFFICE OF THE SECRETARY,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 10-159
Issued: July 22, 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 October 21, 2009 appellant filed a timely appeal from a September 28, 2009 merit
decision of the Office of Workers’ Compensation Programs. 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 an injury in the performance of duty on
November 19, 2008.
FACTUAL HISTORY
On November 24, 2008 appellant, then a 53-year-old administrative law judge, filed a
traumatic injury claim (Form CA-1) alleging that he sustained a back injury on November 19,
2008 “while reaching over the desk to punch files while exhibiting files.” He described the
injury as a subluxated vertebrae in the cervical or thoracic spine. By letter dated January 6,
2009, the Office requested additional evidence regarding the claim.

On February 10, 2009 the Office received a November 20, 2008 treatment note from
Dr. David Brill, an osteopath, who stated that appellant was complaining of upper back pain, and
had “hurt his back moving some boxes at work.” Dr. Brill diagnosed a thoracic sprain. In a note
dated January 15, 2009, he reported that appellant “did some shoveling and lifting at work” and
had neck pain. Dr. Brill diagnosed somatic dysfunction with muscle spasm.
By decision dated February 11, 2009, the Office denied the claim for compensation. It
stated that appellant had not submitted evidence in response to the January 6, 2009 letter.
Appellant requested a telephonic hearing before an Office hearing representative, which
was held on July 16, 2009. According to appellant, he had been receiving treatment from a
chiropractor for neck symptoms prior to the November 19, 2008 incident, and he received
treatment from the chiropractor after the employment incident. With respect to medical
evidence, appellant submitted a December 1, 2008 note from Dr. Brill indicating that appellant
was still having upper back pain and was being treated by a chiropractor.
By decision dated September 28, 2009, the hearing representative affirmed the
February 11, 2009 decision. The hearing representative reviewed all of the medical evidence of
record.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for the payment of compensation
for “the disability or death of an employee resulting from personal injury sustained while in the
performance of duty.”1 The phrase “sustained while in the performance of duty” in the Act is
regarded as the equivalent of the commonly found requisite in workers’ compensation law of
“arising out of and in the course of employment.”2 An employee seeking benefits under the Act
has the burden of establishing that he or she sustained an injury while in the performance of
duty.3 In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury, and generally this can
be established only by medical evidence.4
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.5 In clear-cut
1

5 U.S.C. § 8102(a).

2

Valerie C. Boward, 50 ECAB 126 (1998).

3

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

4

See John J. Carlone, 41 ECAB 354, 357 (1989).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

2

traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.6
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.7
ANALYSIS
Appellant filed a claim alleging a traumatic injury on November 19, 2008 when he was
reaching over a desk to punch holes in files. He did not provide a more detailed description of
the employment incident. The Office did accept that an employment incident occurred on
November 19, 2008. As noted above, to establish the claim for compensation there must be
medical evidence with a diagnosis and an opinion, based on a complete and accurate
background, on causal relationship with the employment incident.
With respect to the medical evidence, the Board notes that the November 20, 2008 and
January 15, 2009 treatment notes were originally submitted on February 10, 2009, and should
have been considered by the Office in its February 11, 2009 decision.8 While the Office did not
appear to consider the evidence in that decision, as it stated no evidence had been received in
response to a request for additional evidence, the Board notes that the hearing representative did
consider and review all the evidence of record in her September 28, 2009 decision.
As to the content of the medical evidence submitted, the record does not contain a
rationalized opinion on causal relationship. Dr. Brill referred briefly to “moving some boxes” in
his November 20, 2008 note, and to “shoveling and lifting” in his January 15, 2009 note.
According to appellant he was reaching over a desk to punch holes in files, and Dr. Brill’s
description of the incident does not establish that he had a clear understanding of the
employment incident on November 19, 2008. In addition, Dr. Brill did not provide a rationalized
medical opinion establishing causal relationship between a diagnosed condition and the
employment incident.

6

Id.

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

See Yvette N. Davis, 55 ECAB 475 (2004).

3

It is appellant’s burden of proof to submit the necessary evidence to establish the claim
for compensation. For the above reasons, the Board finds appellant did not meet his burden of
proof in this case.
CONCLUSION
The Board finds that appellant did not establish an injury in the performance of duty on
November 19, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 28, 2009 is affirmed.
Issued: July 22, 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
__________________________________________
B.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rockaway Park, NY, Employer
__________________________________________

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

Docket No. 10-79
Issued: November 24, 2010

Case Submitted on the Record

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

JURISDICTION
On October 13, 2009 appellant filed a timely appeal from an August 10, 2009 decision of
the Office of Workers’ Compensation Programs, which affirmed the termination of
compensation on the grounds that he refused suitable work. 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 the Office properly terminated appellant’s compensation effective
April 12, 2009 on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
On August 1, 2006 appellant, then a 58-year-old manager of customer services, filed an
occupational disease claim for an emotional condition in the performance of duty. He stopped
work on July 24, 2006 and returned to restricted duties on March 21, 2007. Appellant stopped
again in July 2007. On July 16, 2007 the Office accepted his claim for generalized anxiety
disorder. It accepted that false accusations against appellant were made by female employees.
Appellant received appropriate compensation benefits.

On November 15, 2007 the Office referred appellant to Dr. Alain De La Chapelle, a
Board-certified psychiatrist, for a second opinion to determine the nature and extent of his
injury-related disability. In a December 11, 2007 report, Dr. De La Chapelle reviewed
appellant’s history of injury and provided findings on examination. He determined that appellant
remained symptomatic but could return to work full time with restrictions. Dr. De La Chapelle
noted that appellant could not work with the females who made false accusations against him in
the past.
On January 21, 2008 Juliana Lachenmeyer, Ph.D., a licensed clinical psychologist,
advised that appellant could work provided he not be exposed to the possibility of additional
false accusations from subordinate employees and/or colleagues.
On February 14, 2008 the Office requested that Dr. De La Chapelle clarify his opinion in
light of Dr. Lachenmeyer’s report. On March 3, 2008 Dr. De La Chapelle advised that appellant
could return to work provided he was not exposed to the subordinate that had accused him or any
other accusatory employees.
Appellant began treatment with Dr. Robert D. Martin, a Board-certified psychiatrist. In a
March 11, 2008 report, Dr. Martin opined that appellant was unable to return to work. He
advised that appellant could only work in an environment that was stable and not
confrontational. In a May 6, 2008 report, Dr. Martin opined that appellant was unable to work.
He noted that appellant had severe anxiety and was dependent on Xanax. Dr. Martin advised
that appellant needed six months of rehabilitation and active psychiatric care. He noted that
appellant was unable to act as a supervisor. Dr. Martin advised that appellant would be able to
return to work in approximately six months.
On April 24, 2008 the Office referred appellant along with a statement of accepted facts,
and the medical record to Dr. William B. Head, a Board-certified psychiatrist, for an impartial
medical evaluation to resolve a conflict in opinion between Drs. De La Chapelle and
Dr. Lachenmeyer, regarding whether a causal relationship existed between appellant’s condition
and the accepted injury and whether appellant continued to be disabled from his accepted work
injury.
In a May 15, 2008 report, Dr. Head noted appellant’s history of injury and treatment. On
examination, he found that appellant was moderately anxious and his social judgment was intact.
Dr. Head explained that appellant continued to experience anxiety disorder, which was
temporary. He recommended six months of psychotherapy. Dr. Head opined that, from a
psychiatric perspective, appellant was capable of performing his regular work duties, but should
be removed from work at the Far Rockaway and reassigned to another area, preferably without
direct supervisory responsibilities, so as to avoid concern of similar claims against him. He
noted that, once appellant adjusted to the workplace and regained his confidence, his anxiety
would resolve. Dr. Head completed a work restriction form on May 23, 2008. He indicated that
appellant could return to an eight-hour workday provided he did not have direct supervisory
responsibility of personnel to avoid the possibility of additional complaints being filed against
him. Dr. Head noted that appellant should avoid his former work location and coworkers. He
also indicated that until appellant was no longer taking Xanax, he should not drive or operate
dangerous machinery.

2

In letters dated July 3, 5 and 6, 2008, appellant contended that Dr. Head’s report
contained inaccuracies. He noted that he brought his records with him to the appointment and
believed that Dr. Head was biased. Appellant advised Dr. Head that it was difficult to work on
the computer, watch television or movies because of his inability to concentrate. He informed
Dr. Head that he did not drive because of road rage issues. Appellant alleged that the only thing
that relaxed him was walking alone on the beach with his dog while listening to music. He also
indicated that he was also able to fold laundry and do the dishes while listening to music.
Appellant also alleged that he never saw Dr. Lachenmeyer, but rather an intern who was not a
psychologist. He noted the conflict should be between Dr. Martin and the second opinion
physician, not an intern. Appellant resubmitted Dr. Martin’s May 6, 2008 report.
On August 1, 2008 the Office requested that Dr. Head clarify his opinion.
In a September 2, 2008 report, Dr. Martin reiterated that appellant was unable to work
due to repeated false allegations from his employer and coworkers.
In a September 15, 2008 cover letter, the employing establishment provided a modified
job offer based upon Dr. Head’s restrictions. On September 12, 2008 the employing
establishment offered appellant a modified manager position at its Brooklyn location. The duties
of the position included verifying information for routes prior to inspection, using maps and
annotating maps, delivery of blocks, directional relays and capability to commute to stations.
The employing establishment noted that appellant would not be at his former workstation to limit
exposure to his former workers, have no direct supervisory responsibility and would not be
involved in driving or operating dangerous machinery while taking his current medications
In a September 22, 2008 addendum, Dr. Head noted that he had reviewed the additional
evidence. He reiterated that appellant was capable of working in a full-time capacity with
restrictions.
By letter dated October 30, 2008, the Office advised appellant of its determination that
the position offered by the employing establishment was suitable. It noted that the impartial
medical examiner determined that the modified position was found to be suitable within his
medical restrictions. The Office informed appellant that the weight of the medical evidence was
represented by Dr. Head. Appellant was advised that he should accept the position or provide an
explanation for refusing the position within 30 days. The Office informed him that, if he failed
to accept the offered position and failed to demonstrate that the failure was justified, his
compensation would be terminated.
In an October 31, 2008 statement, appellant declined the job offer due to his current
mental and physical state. He alleged an intervening injury due to the letter. Appellant also
requested authorization for his upper gastrointestinal condition and reimbursement for his sick
leave. On November 12, 2008 he informed the Office that he had two upper ulcers as a result of
his anxiety. The Office received emergency room records dated October 9, 2008. A physician’s
assistant noted that appellant was seen for an acute distress disorder and anxiety disorder.
In a December 11, 2008 duty status report, Dr. Martin reiterated that appellant could not
return to work.

3

On February 23, 2009 the Office confirmed that the actual location of the job offer was in
Brooklyn.
By letter dated February 23, 2009, the Office advised appellant that his reasons for
refusing the offered position were not valid and provided him with 15 days to accept the position
or face termination of his compensation.
Dr. Martin provided a March 5, 2009 work capacity evaluation. He noted that appellant
was fearful of attacks from female workers and could not work with them. Dr. Martin listed four
factors that appellant required when identifying a suitable position. They included an apology,
location in an environment where his past injuries would not recur, to take his medication and he
must receive his “sick time.”
On March 19, 2009 the employing establishment confirmed that the position remained
available.
By decision dated March 31, 2009, the Office terminated appellant’s entitlement to
monetary compensation benefits, effective April 12, 2009, on the basis that appellant had refused
to accept suitable work. It determined that the report of Dr. Head, the impartial medical
examiner, represented the weight of the evidence.
In an April 20, 2009 telephone memorandum, appellant informed the Office that he
returned to work on that same date; however, he left after four hours because the job exceeded
his medical limitations and was not the position he originally accepted.
In an April 21, 2009 report, Dr. Martin noted that appellant could return to duty part time
on April 20, 2009.
In an April 22, 2009 telephone memorandum, appellant informed the Office that the
employing establishment indicated that it did not have a position within his limitations. On
April 23, 2009 he contacted the Office and explained that the position required that he walk
routes by himself despite his limitations on working by himself.
By letter dated May 14, 2009, appellant requested reconsideration. He noted that he did
not accept the job offer due to false allegations that were made against him. Appellant alleged
that the allegations were never substantiated. He also noted that Dr. Head’s examination was not
valid as the allegations occurred afterwards.
In a May 12, 2009 report, Dr. Martin noted that appellant was able to return to work, for
four hours per day, five days a week. He advised that appellant work in the presence of other
supervisors and not be subjected to solo interactions with “craft employees.” Dr. Martin noted
that in all other respects, appellant could perform his normal duties. He advised that appellant
could return to his full schedule after an undetermined period.
By decision dated August 10, 2009, the Office denied modification of its prior decision.1

1

This decision stated that the medical conflict was between Dr. Martin and Dr. De La Chapelle.

4

LEGAL PRECEDENT
Once the Office accepts a claim it has the burden of proving that the employee’s
disability has ceased or lessened before it may terminate or modify compensation benefits.2
Section 8106(c)(2) of the Federal Employees’ Compensation Act3 provides that the Office may
terminate the compensation of a disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for the employee.4 The Board has recognized that
section 8106(c) is a penalty provision which must be narrowly construed.5
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.6 Where there exists a conflict of
medical opinion and the case is referred to an impartial specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, is entitled to special weight.7
ANALYSIS
The Board finds that the Office did not meet its burden of proof in terminating monetary
benefits under 5 U.S.C. § 8106(c) as there is an unresolved conflict in the medical evidence.
The Office found a conflict in the medical evidence between Dr. De La Chapelle and
Dr. Lachenmeyer regarding whether a causal relationship existed between appellant’s conditions
and the accepted injury and whether appellant continued to be disabled from his accepted work
injury. It referred appellant to Dr. Head to resolve the conflict and it afforded Dr. Head’s report
special weight, with regard to appellant’s ability to work and in terminating his compensation.
However, no conflict in medical opinion arose between Drs. De La Chapelle and Lachenmeyer
prior to the referral to Dr. Head.8 The Board notes that both Drs. De La Chapelle and
Lachenmeyer advised that appellant could return to work provided he was not exposed to the
subordinates who had falsely accused him in the past. As no conflict in the medical evidence
existed, Dr. Head cannot be considered an impartial medical specialist and his report is not
entitled to special weight.
The Board finds that there currently exists a conflict in the medical evidence between
Dr. Head for the Office, who found that appellant could work full time within restrictions, and
2

Karen L. Mayewski, 45 ECAB 219, 221 (1993); Betty F. Wade, 37 ECAB 556, 565 (1986); Ella M. Garner, 36
ECAB 238, 241 (1984).
3

5 U.S.C. §§ 8101-8193 (1974); 5 U.S.C. § 8106(c)(2).

4

Camillo R. DeArcangelis, 42 ECAB 941, 943 (1991).

5

Steven R. Lubin, 43 ECAB 564, 573 (1992).

6

5 U.S.C. § 8123(a).

7

Aubrey Belnavis, 37 ECAB 206 (1985).

8

See Delphia Y. Jackson, 55 ECAB 373 (2004) (a conflict under 5 U.S.C. § 8123 cannot exist unless there is a
conflict between an attending physician and an Office physician).

5

Dr. Martin, a treating physician, who opined that appellant could not work full time. In his
initial and supplemental reports, Dr. Head opined that appellant could work full time within
restrictions and he noted the reasons for his opinion. Dr. Martin found that appellant was unable
to return to full-time work and provided reasons in support of his opinion.
As a conflict in the medical evidence existed between the opinions of Drs. Martin and
Head at the time the Office terminated monetary compensation, the Office did not meet its
burden of proof to terminate these benefits.
On appeal, appellant disagrees with the Office’s decision in terminating his
compensation. As noted above, the Office did not meet its burden of proof to terminate his
benefits.
CONCLUSION
The Board finds that the Office did not meet its burden of proof in terminating
appellant’s monetary compensation effective April 12, 2009.
ORDER
IT IS HEREBY ORDERED THAT the August 10, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 24, 2010
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Newark, NJ, Employer
)
___________________________________________ )
N.L., Appellant

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

Docket No. 10-1552
Issued: March 10, 2011

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 May 20, 2010 appellant filed a timely appeal from a November 23, 2009 decision of
the Office of Workers’ Compensation Programs which denied his request for reconsideration.
Because more than one year elapsed between the October 1, 2008 merit decision to the filing of
this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 20, 2006 appellant, then a 47-year-old postal inspector, filed a traumatic injury
claim alleging that on September 8, 2005 he sprained his right ankle and tore his left knee medial

meniscus in the performance of duty. The Office accepted his claim for tear of the medial
meniscus of the left knee.1 Appellant received appropriate compensation and benefits.
On March 13, 2007 appellant filed a claim for a schedule award. In a May 28, 2007
report, Dr. Daniel Gallagher, a Board-certified orthopedic surgeon, reviewed appellant’s history
and the American Medical Association, Guides to the Evaluation of Permanent Impairment, 166
(5th ed. 2001) (hereinafter A.M.A., Guides). He determined that appellant had post-traumatic
arthritis in the left knee due to a previous medial meniscectomy and had reached maximum
medical improvement on October 31, 2006. Appellant continued to have left knee pain with
prolonged standing and walking and activity. On examination, there was no effusion, the knee
was stable and had full range of motion. Dr. Gallagher opined that appellant had a four percent
whole body impairment rating or 10 percent left leg impairment due to the pain and discomfort
and limited ability to perform strenuous work activities.
The Office referred appellant for a second opinion examination to Dr. Raymond E.
Fletcher, a Board-certified orthopedic surgeon. In a report dated December 18, 2007,
Dr. Fletcher utilized the A.M.A., Guides to determine that appellant had seven percent
impairment to the left leg. In reports dated February 13 and April 9, 2008, the Office medical
adviser referred to Table 17-31 and Table 17-33 of the A.M.A., Guides and concurred with
Dr. Fletcher that appellant had seven percent impairment of the left leg.2
In a May 2, 2008 decision, the Office granted appellant a schedule award for seven
percent permanent impairment of the left lower extremity. The award covered a period of 20.16
weeks from December 18, 2007 to May 7, 2008.
On June 19, 2008 appellant requested reconsideration and submitted additional medical
evidence. In a report dated June 16, 2008, Dr. Gallagher repeated the findings in his May 28,
2007 report. He referred to Table 17-31 and Table 17-33 and found that appellant had 10 percent
impairment of the left leg.
By decision dated October 1, 2008, the Office denied modification of its May 2, 2008
decision.
In an August 17, 2009 report, Dr. Gallagher repeated the findings contained in his
June 16, 2008 report and opined that appellant sustained an impairment of 10 percent to the left
lower extremity.
On October 1, 2009 appellant requested reconsideration.
By decision dated November 23, 2009, the Office denied appellant’s request for
reconsideration finding that the evidence submitted in support of the request was insufficient to
warrant further merit review.
1

Appellant underwent surgery on February 22, 2006, which revealed a meniscus tear. He later had a debridement
of the tear.
2

A.M.A, Guides 544, 546.

2

LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,3 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
10.606(b)(2) of the implementing federal regulations, which provide that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, sets forth arguments and contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the Office;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.5
ANALYSIS
Appellant disagreed with the denial of his claim for a schedule award and requested
reconsideration on October 1, 2009.
Appellant did not make any argument that the Office erroneously applied or interpreted a
specific point of law or advanced a relevant legal argument not previously considered by the
Office. He submitted a new medical report, dated August 17, 2009, in which Dr. Gallagher
provided findings, utilized the A.M.A., Guides and opined that appellant had 10 percent
impairment of the left leg. The Board notes that the rating by Dr. Gallagher duplicates that made
in his June 16, 2008 report. Dr. Gallagher did not offer any new opinion regarding appellant’s
permanent impairment. Evidence that repeats or duplicates evidence already in the case record
has no evidentiary value and does not constitute a basis for reopening a case.6 Therefore, the
Office properly determined that this evidence, while new, was not relevant because it is
repetitive of evidence previously of record. This report did not constitute a basis for reopening
the case for a merit review.

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

5

Id. at § 10.608(b).

6

See Helen E. Paglinawan, 51 ECAB 591 (2000).

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The Board finds that the Office properly denied appellant’s October 1, 2009 request for
reconsideration.7
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).
ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 23, 2009 is affirmed.
Issued: March 10, 2011
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

7

The Board notes that appellant retains the right to file a claim for an increased schedule award based on new
exposure or on medical evidence indicating that the progression of an employment-related condition, without new
exposure to employment factors, has resulted in a greater permanent impairment than previously calculated. See
Linda T. Brown, 51 ECAB 115 (1999). See also A.A., 59 ECAB 726 (2008).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bladensburg, OH, Employer
__________________________________________

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

Docket No. 12-1355
Issued: January 18, 2013

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 June 12, 2012 appellant, through her attorney, filed a timely appeal from an April 13,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) and a May 7,
2012 nonmerit decision denying her request for reconsideration. 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a recurrence of her accepted carpal tunnel syndrome as of January 11, 2012; and
(2) whether OWCP properly denied her request for further merit review under 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On April 27, 2011 appellant, then a 55-year-old postmaster, filed a claim for occupational
disease, alleging that she developed carpal tunnel syndrome as a result of her employment
1

5 U.S.C. § 8101 et seq.

factors. OWCP accepted her claim for carpal tunnel syndrome of the right wrist and she returned
to regular duty without restriction beginning August 25, 2011.
Appellant filed a claim for recurrence for her carpal tunnel condition on
February 10, 2012. She claimed that she was unable to work due to this recurrence of disability
as of January 11, 2012.
Along with her claim, appellant submitted a January 31, 2012 report from Dr. Gregory
Cush, a Board-certified orthopedic surgeon. The report noted her complaint of shoulder pain and
wrist pain, and reviewed diagnostic studies for her right shoulder and both wrists. Dr. Cush
diagnosed appellant with rotator cuff syndrome and osteoarthrosis of the shoulder. He treated
her with a steroid injection and recommended icing of the shoulder and inflammatory
medication.
In a February 21, 2012 development letter, OWCP advised appellant of the deficiencies
of her claim, and requested additional evidence, including medical evidence addressing how her
current condition was causally related to the accepted injury and explaining why appellant was
disabled from work.
In response to OWCP’s request, appellant submitted a February 20, 2012 attending
physician’s report from Dr. Cush, who diagnosed her with recurrent right carpal tunnel and
checked “yes” to indicate that her condition was caused by her employment activity. In a duty
status report dated January 31, 2012, Dr. Cush stated that appellant could not resume work.
In a letter received by OWCP on March 14, 2012, appellant explained that she had
returned to work too soon following her May 2011 surgery and that she still had shooting pains
in her right wrist. She also submitted several diagnostic reports and medical reports dated from
2007 to 2011 relating to her spine and right shoulder condition.
OWCP received a letter from the employing establishment on April 10, 2012
controverting appellant’s recurrence claim alleging that she stopped work in January 2012 due to
a nonwork-related emotional condition. On April 10, 2012 it received an April 5, 2012 report
from a licensed social worker who summarized her nonwork-related stress factors and diagnosed
major depression and anxiety disorder.
By decision dated April 13, 2012, OWCP denied appellant’s recurrence claim on the
grounds that the medical evidence submitted did not establish that the claimed recurrence was
causally related to her accepted injury, and did not establish that she was disabled during the
time period alleged.
Appellant disagreed with the decision and submitted a reconsideration request on
April 17, 2012.
In an April 12, 2012 report, received by OWCP on April 23, 2012, Dr. Cush stated that
he had reviewed appellant’s nerve conduction study, which revealed a mild cubital tunnel
syndrome and no evidence of recurrent carpal tunnel syndrome.
OWCP also received an April 19, 2012 attending physician’s report from Dr. Cush,
which noted right hand and wrist pain, and indicated that appellant’s pain followed her previous
carpal tunnel release in May, 2011. Dr. Cush stated that she was totally disabled for all work
2

during the period January 31 through July 1, 2012. Also attached to the medical report was a
March 22, 2012 EMG study signed by Dr. Martin Taylor, a Board-certified neurologist, who
found chronic denervation in the right “APB” consistent with appellant’s history of previous
carpal tunnel syndrome, but with no current sensory or motor loss.
In a May 7, 2012 decision, OWCP denied appellant’s request for merit review on the
grounds that she did not submit relevant new evidence.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.2
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her recurrence of disability and the
employment injury.3
ANALYSIS -- ISSUE 1
Appellant filed a notice of recurrence alleging that her accepted carpal tunnel condition
worsened on January 11, 2012, causing disability from work. The Board finds that appellant has
not established a recurrence of disability.
The relevant medical evidence appellant submitted in support of her claim consisted of
attending physician’s reports from Dr. Cush, dated January 31 and February 20, 2012.
In his January 31, 2012 report, Dr. Cush noted appellant’s history of carpal tunnel
syndrome, but following examination he diagnosed rotator cuff syndrome and osteoarthritis of
the right shoulder. As he did not address current findings of carpal tunnel syndrome, this report
did not support a finding of a spontaneous recurrence of her accepted right carpal tunnel
syndrome. Dr. Cush also completed a duty status report on January 31, 2012 in which he related
that appellant could not resume work. He offered no explanation, however, as to why appellant
was disabled and whether the stated disability was due to recurrence of appellant’s accepted
carpal tunnel syndrome.
Dr. Cush’s February 20, 2012 attending physician’s report diagnosed appellant with
recurrent right carpal tunnel. He also indicated with check marks that the condition was work
related and that it was a preexisting condition. However, Dr. Cush provided no medical rationale
for his findings. He recommended that appellant undergo nerve conduction studies, and well as
an electromylogram, he did not explain the basis for his finding of recurrent right carpal tunnel
syndrome, absent these, or any other test results. Furthermore, while Dr. Cush again indicated
by check mark that appellant’s condition was causally related to the accepted injury, the Board
has held that, when a physician’s opinion on causal relationship consists only of checking yes to
2

20 C.F.R. § 10.5(x); see also S.F., 59 ECAB 525 (2008).

3

Dominic M. DeScala, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-09 (1982).

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a form question, that opinion has little probative value and is insufficient to establish causal
relationship.4 Regarding the issue of disability, he also did not explain why she was unable to
work due to the alleged recurrence of the carpal tunnel syndrome, since in his January report he
had related that her current diagnoses related to her shoulder and not her right wrist. Appellant
did not furnish an affirmative opinion from a physician whose conclusion is supported by sound
medical reasoning.
The Board finds that the medical evidence was insufficient to establish that appellant
sustained a spontaneous recurrence of carpal tunnel syndrome, which caused disability as of
January 11, 2012.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.5 OWCP’s regulations provide that it may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise her right through a request to the district OWCP.6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7
ANALYSIS -- ISSUE 2
By decision dated April 13, 2012, OWCP denied appellant’s recurrence claim. On
April 17, 2012 appellant submitted a request for reconsideration. In a decision dated May 7,
2012, OWCP denied her request for reconsideration. The Board finds that OWCP properly
denied appellant’s request for reconsideration.
In support of her request for reconsideration, appellant submitted April 12 and 19, 2012
reports from Dr. Cush. These reports did not provide new and relevant evidence in support of
her claim, while they were repetitive of earlier reports noting her ongoing complaints, Dr. Cush
in fact reported that she did not have recurrent carpal tunnel syndrome. Also the March 22, 2012
EMG study, merely documented appellant’s denervation from her previously accepted condition,
but noted no current sensory loss or weakness of the wrist. This EMG study therefore offered no
new evidence supporting a diagnosis of recurrent carpal tunnel syndrome. Appellant, therefore,

4

See B.B., Docket No. 12-327 (issued June 15, 2012).

5

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

6

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
7

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued
December 9, 2008).

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did not submit any new and relevant evidence, which was support of her claim and not
previously considered.8
The Board accordingly finds that appellant did not meet a requirements of 20 C.F.R.
§ 10.606(b). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
Appellant has not established a recurrence of her accepted right carpal tunnel syndrome.
OWCP did not abuse its discretion in denying merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 7 and April 13, 2012 are affirmed.
Issued: January 18, 2013
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

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Billy B. Scoles, 57 ECAB 258 (2005).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Shreveport, LA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1999
Issued: April 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On August 29, 2011 appellant timely appealed the August 5, 2011 merit decision of the
Office of Workers’ Compensation Programs (OWCP), which granted a schedule award.1 The
Board docketed the appeal as No. 11-1999.
This case was previously before the Board.2 Appellant, a 56-year-old mail handler, has
an accepted claim for lumbar strain and intervertebral disc disorder with myelopathy, which
arose on March 30, 2006. The last time the case was on appeal, OWCP denied his claim for a
schedule award. By order dated June 28, 2011, the Board remanded the case, in part, because the
district medical adviser (DMA) had not explained why the July 16, 2009 examination results
from Dr. Austin W. Gleason, III, ostensibly did not support a finding of lower extremity
impairment under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (2008). Dr. Gleason, a Board-certified orthopedic surgeon,
diagnosed degenerative disc disease at L2-3, L3-4, and L4-5 with mild spinal stenosis and lateral
1

Pursuant to the Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101-8193, and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
2

Docket No. 10-1791 (issued June 28, 2011).

recess stenosis. He found nine percent impairment of the “total body” based on multilevel
degenerative discs with stenosis.3 In a report dated October 5, 2009, the DMA summarized
Dr. Gleason’s findings and noted, without explanation, that “there [was] no job-related
impairment of the lower extremities” under the A.M.A., Guides (6th ed. 2008). In a supplemental
report, also dated July 16, 2009, Dr. Gleason found six percent impairment of the right lower
extremity (RLE) due to peripheral vascular disease. OWCP, without referring the supplemental
report to the DMA, dismissed Dr. Gleason’s six percent RLE rating on the basis that the noted
impairment was not proved to be causally related to appellant’s accepted lumbar condition.
In setting aside OWCP’s May 14, 2010 decision, the Board found that the DMA’s
October 5, 2009 report lacked sufficient rationale, and therefore, his analysis was incomplete.
The Board also noted that OWCP should have forwarded Dr. Gleason’s supplemental report to
the DMA for review. Lastly, the Board advised that not all impairments to a scheduled member
need be employment related, and under certain circumstances, previous impairments may be
included in calculating the percentage of loss. The Board noted that the medical evidence
suggested that appellant’s peripheral vascular disease predated his March 30, 2006 employment
injury. Because OWCP had not properly developed the record with respect to his schedule
award claim, the Board remanded the case for further development, followed by the issuance of a
de novo decision regarding entitlement to a schedule award.4
On remand, the DMA, Dr. H. Mobley, reiterated, verbatim, his October 5, 2009 report.
He also provided a July 19, 2011 addendum in which he concurred with Dr. Gleason’s finding of
six percent RLE impairment for peripheral vascular disease.
By decision dated August 5, 2011, OWCP granted a schedule award for six percent
impairment of the right lower extremity.5 The award covered a period of 17.28 weeks from
July 16 to November 19, 2009.
Once again, the Board finds that the case is not in posture for decision because the
DMA’s analysis is incomplete. Dr. Mobley has yet to provide any rationale explaining why
appellant’s accepted lumbar condition presumably does not support entitlement to a schedule
award for lower extremity impairment. The A.M.A., Guides (6th ed. 2008) provides a specific
methodology for rating spinal nerve extremity impairment.6 It was designed for situations where
a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings
for the spine.7 The impairment is premised on evidence of radiculopathy affecting the upper
3

Neither FECA nor the regulations provide for the payment of a schedule award for the permanent loss of use of
the back/spine or the body as a whole. 5 U.S.C. § 8107(c)(2006); 20 C.F.R. § 10.404(a)(2011); see Jay K.
Tomokiyo, 51 ECAB 361, 367 (2000). However, a schedule award is permissible where the employment-related
back condition affects the upper and/or lower extremities. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a(3) (January 2010).
4

The Board’s June 28, 2011 order is incorporated herein by reference.

5

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2).

6

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

7

Id.

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and/or lower extremities.8 The DMA’s October 5, 2009 and July 19, 2011 reports did not
identify the applicable criteria for rating spinal nerve extremity impairment, nor did Dr. Mobely
explain how Dr. Gleason’s July 16, 2009 examination findings presumably failed to support a
lumbar-related lower extremity impairment under the sixth edition of the A.M.A., Guides (2008).
As noted in the Board’s prior order dated June 28, 2011, once OWCP undertakes
development of the record, it must do a complete job in procuring medical evidence that will
resolve the relevant issues in the case.9 As the DMA’s October 5, 2009 and July 19, 2011
reports are incomplete, the case will be remanded to OWCP for further development. After
OWCP has developed the case record to the extent it deems necessary, a de novo decision shall
be issued.
IT IS HEREBY ORDERED THAT the August 5, 2011 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this order.
Issued: April 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8

Id.

9

Richard F. Williams, 55 ECAB 343, 346 (2004).

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