United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Plainfield, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1393
Issued: December 18, 2012

Case Submitted on the Record

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

JURISDICTION
On June 4, 2012 appellant, through counsel, filed a timely appeal from a February 15,
2012 schedule award decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than 10 percent impairment of the right arm.
FACTUAL HISTORY
This case was previously before the Board.2 Appellant, a 51-year-old service
representative, injured herself in an employment-related fall on May 24, 2000. OWCP accepted
1

5 U.S.C. § 8101 et seq.

2

Docket No. 10-2250 (issued August 12, 2011).

her traumatic injury claim for left wrist sprain, aggravation of lumbosacral sprain, bilateral knee
and ankle sprains, bilateral medial meniscus tear and cervical myelopathy. It granted schedule
awards for 12 percent impairment of the left and right legs and 10 percent impairment of the left
and right arms.
In an October 23, 2008 decision, OWCP found 10 percent right arm impairment under
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (2001). That decision was subsequently set aside and the case remanded to OWCP
for further medical development. On remand, OWCP found a conflict in medical opinion and
referred appellant to an impartial medical examiner.3 In a report dated May 27, 2009,
Dr. William K. Fleming, a Board-certified orthopedic surgeon selected as the impartial specialist,
found no permanent impairment of the right upper extremity under the A.M.A., Guides
(5th ed. 2001). By decision dated November 16, 2009, OWCP denied appellant’s claim for a
schedule award based on Dr. Fleming’s opinion. In a decision dated June 1, 2010, the Branch of
Hearings & Review found the record insufficient to establish that appellant had more than 10
percent impairment as previously awarded.
In an August 12, 2011 order, the Board found that the case was not in posture for
decision as the impairment ratings had been made under the fifth edition of the A.M.A., Guides
(2001), which was no longer applicable. The Board noted that the sixth edition of the A.M.A.,
Guides became applicable as of May 1, 2009. Accordingly, the case was set aside and remanded
to OWCP for further medical development.
On remand, OWCP referred appellant to Dr. Wylie D. Lowery, Jr., a Board-certified
orthopedic surgeon selected as the impartial medical specialist. In a January 31, 2012 report,
Dr. Lowery found that appellant did not sustain any permanent impairment of the right upper
extremity as a result of her May 24, 2000 employment injury. He provided a review of the
medical records, noting that when examined on June 5, 2000 there was no mention of any right
upper extremity pain. The initial diagnosis pertained to the lumbar spine. Diagnostic testing was
obtained on July 27, 2000 that revealed no evidence of cervical radiculopathy with borderline
delay of the right median nerve not consistent with her symptoms. A February 24, 2001 MRI
scan revealed some cervical disc bulging but no evidence of any intrinsic cord abnormality or
foraminal encroachment. In August 2003, an MRI scan showed a herniated disc for which
appellant underwent surgery. In August 2005, a prior examining physician did not relate
appellant’s shoulder or neck complaints to her fall in 2000. Dr. Lowery noted the impairment
rating by Dr. Weiss secondary to median nerve sensory deficit but stated that the exact
mechanism for this rating was unclear. He noted that the medical adviser did relate carpal tunnel
syndrome, diagnosed three years after injury, to the fall in 2000.
Dr. Lowery provided findings on physical examination and stated that appellant’s
complaints of diffuse pain in her head, neck, both arms and upper extremities were inconsistent
and did not fit any neurologic distribution. He stated that there was no atrophy within the neck,
shoulder girdle or upper extremities and no palpable muscle spasm. Appellant demonstrated a
full range of motion with equal reflexes through the upper extremity musculature. Dr. Lowery
3

OWCP found a conflict between appellant’s physician, Dr. David O. Weiss, who rated 28 percent impairment of
the right arm, and Dr. Willie E. Thompson, a medical adviser, who rated 10 percent impairment.

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described a disproportionate pain experience to gentle touch of the skin that was nonanatomic
and did not appear localized. He found that appellant had reached maximum medical
improvement as of May 24, 2001 without any permanent impairment of her right arm due to the
accepted 2000 injury. Dr. Lowery found no basis to rate right upper extremity impairment.
By decision dated February 15, 2012, OWCP found that appellant had no impairment of
the right arm under the A.M.A., Guides (6th ed. 2008). It based its finding on Dr. Lowery’s
January 31, 2012 report.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.4 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.5 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).6
FECA provides that, if there is disagreement between an OWCP-designated physician
and the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.7 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”8 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.9
ANALYSIS
OWCP previously granted a schedule award for 10 percent impairment of the right upper
extremity under the fifth edition of the A.M.A., Guides (2001). In an August 12, 2011 order, the

4

For a total or 100 percent loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
5

20 C.F.R. § 10.404.

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
7

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The medical adviser,
acting on behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b).
8

Darlene R. Kennedy, 57 ECAB 414 (2006).

9

Gary R. Sieber, 46 ECAB 215 (1994).

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Board remanded the case for further medical development concerning the extent of impairment
to the right arm under the sixth edition of the A.M.A., Guides.
In a January 31, 2012 report, Dr. Lowery, the impartial medical specialist, found no
impairment of the right arm attributable to appellant’s May 24, 2000 employment injury. He
addressed the medical records and noted that, when examined on June 5, 2000, there was no
mention of any right upper extremity pain. The diagnostic testing of July 27, 2000 revealed no
evidence of cervical radiculopathy with a borderline delay of the right median nerve not
consistent with appellant’s symptoms. In 2003, an MRI scan showed a herniated disc of the
cervical spine for which appellant underwent surgery. Dr. Lowery noted that the evaluation by
Dr. Weiss in 2006 assigned right upper extremity impairment based on median nerve sensory
deficits of 28 percent. He stated that the mechanism for this impairment rating was unclear.
Dr. Lowery also noted that the medical adviser did not relate appellant’s carpal tunnel syndrome,
diagnosed three years after the fall, to the 2000 injury. He provided findings on physical
examination, noting appellant’s complaint of diffuse pain in her head, neck, both arms.
Dr. Lowery found no evidence of muscle atrophy within the neck, shoulder girdle or upper
extremities and no palpable muscle spasm. He noted a full range of motion of the shoulders with
equal reflexes of the biceps, brachioradialis and triceps. Dr. Lowery stated that appellant’s
complaint of pain did not fit any neurologic distribution, with nonanatomic deep tenderness over
both upper extremities that did not appear localized. He concluded that appellant did not sustain
any permanent impairment to her right upper extremity as a result of the 2000 injury. The Board
finds that the report of Dr. Lowery provided a thorough review of the medical records, the
statement of accepted facts and presented a cogent explanation for his finding of no permanent
impairment to appellant’s right arm due to the 2000 injury accepted in this case. Dr. Lowery’s
report represents the special weight of medical opinion.10
On appeal, counsel argued that OWCP’s February 15, 2012 decision should be set aside
and the case remanded for further medical development. He stated that the record did not
establish that Dr. Lowery was properly selected under the Physician Directory System (PDS).
Counsel also noted that it was unclear what, if any, effort was made to obtain clarification from
the Dr. Fleming. With respect to this latter argument, there is no indication that OWCP sought
clarification from Dr. Fleming; nor did the Board specifically instruct OWCP to obtain
clarification from the prior impartial specialist. Given that Dr. Fleming’s evaluation was more
than two years old when the Board remanded the case, it was prudent of OWCP to obtain an
updated physical evaluation.
Based on the conflict in medical opinion, OWCP referred appellant to Dr. Lowery for an
impartial medical evaluation. As noted, counsel argued that the record did not establish whether
he was properly selected under the PDS. The Board notes that OWCP no longer utilizes the PDS
for scheduling impartial medical evaluations. At the time the Board previously remanded the
case in August 2011, OWCP had implemented its iFECS-based Medical Management

10

Rose V. Ford, 55 ECAB 449 (2004); Charles E. Burke, 47 ECAB 185 (1995).

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application.11 In R.C.,12 the Board recently reviewed the Director’s delegated discretion in
appointing physicians to perform medical examinations in situations in which a conflict in
opinion arises under section 8123 of FECA. Under the new procedures, a medical scheduler puts
the claim number into the application, from which appellant’s home zip code is loaded. The
scheduler chooses the type of examination to be performed and the applicable medical specialty.
The next physician in the roster appears on the screen and remains until an appointment is
scheduled or the physician is bypassed. If the physician agrees to the appointment, the date and
time are entered. Upon entry of this information, the application prompts the Form ME023.
The record includes an imaged copy of an October 14, 2011 “iFECS Report: ME023 -Appointment Schedule Notification” which FECA procedure manual provides is documentation
that the medical management application was used that day to select Dr. Lowery as the impartial
specialist.13
The record also includes CA-110 notes from October 5, 2011 which establish that the
medical scheduler first attempted to schedule an impartial medical examination on that date but
was unsuccessful. The scheduler noted that she made contact with several doctors who did not
accept referrals from the Department of Labor. She also called other doctors not enrolled in
ACS, were retired, no longer with a practice, the telephone number was disconnected and not in
service and for whom there were missing numbers. The scheduler closed the medical scheduling
attempt that evening.
Based on the evidence of record, the Board finds that OWCP properly utilized the
medical management application to refer appellant to Dr. Lowery for examination. Dr. Lowery’s
report constitutes the weight of medical opinion on the issue of the extent of impairment to
appellant’s right arm.
CONCLUSION
The Board finds that appellant has no permanent impairment to her right arm due to
residuals of her 2000 employment injury.

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.5 (July 2011). The application contains the names of physicians who are Board-certified in over 30 medical
specialties for use as referees within appropriate geographical areas.
12

Docket No. 12-468 (October 5, 2012).

13

“The ME023 report can only be generated through the Medical Management application and serves as
documentary evidence that the referee appointment was scheduled through the use of the rotational system in the
Medical Management application.” Id. at Chapter 3.500.5g. The FECA Procedure Manual further provides that the
“medical scheduler should image a copy of the ME023 into the case file to substantiate that the rotational system
was used to select the physician.” Id.

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ORDER
IT IS HEREBY ORDERED THAT the February 15, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 2012
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, KENMORE BRANCH
POST OFFICE, Kenmore, NY, Employer
__________________________________________
Appearances:
John L. deGeneres, for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-1457
Issued: July 17, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 25, 2019 appellant, through his representative, filed a timely appeal from a
January 7, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The
Clerk of the Appellate Boards assigned Docket No. 19-1457.3
On November 1, 2017 appellant, then a 60-year-old retired letter carrier, filed an
occupational disease claim (Form CA-2) alleging that his work-related employment duties
1

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

Appellant also filed a timely request for oral argument in this case. In light of the disposition of the current appeal,
the Board finds that the request for oral argument is denied.
3

The Board notes that following the January 7, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

contributed to his right knee osteoarthritis condition. He reported that he first became aware of
his condition on June 6, 2007, but was not aware of its relationship to his employment until
August 24, 2017 following his examination with Dr. Kevin Scott, a Board-certified orthopedic
surgeon. On the reverse side of the form, appellant’s supervisor controverted the claim stating that
he last worked for the employing establishment on September 16, 2006 when he separated as a
result of disability from a January 9, 2004 work-related right shoulder injury under OWCP File
No. xxxxxx673. She reported that appellant last worked on January 9, 2004 and his occupational
disease claim was not timely filed within three years from the date of onset or the date of the last
exposure.
In a statement dated July 18, 2017, appellant described his duties as a postal carrier over
the course of his employment for 24 years to which he attributed to his right knee condition. In
support of his claim, he submitted medical and diagnostic reports dated September 9, 2005 through
August 24, 2017.
In an August 24, 2017 report, Dr. Scott provided examination findings and reviewed
appellant’s right knee history dating back to 1997, and discussed the mechanism of injury
pertaining to his employment duties. He opined that appellant’s right knee osteoarthritis was
permanently aggravated and accelerated by his work-related activities.
In a December 19, 2017 response to OWCP’s factual development questionnaire, appellant
reported that, although he was aware of his right knee condition having previously underwent right
knee replacement on June 6, 2007, he was not aware that his condition was work related until
August 24, 2017 when Dr. Scott informed him that his employment duties contributed to the
acceleration and aggravation of his right knee arthritis, leading to a right knee replacement.
On December 19, 2017 appellant, through counsel, submitted medical reports dated May 3,
2006 through August 27, 2007 from Dr. Mark S. Mieth, a Board-certified orthopedic surgeon. A
May 10, 2006 bilateral knee injection note was provided from Dr. Mieth which identified a
bilateral knee degenerative joint disease diagnosis and a January 9, 2004 date of injury. A
November 10, 2006 knee injection note from him identified a diagnosis of bilateral knee
degenerative joint disease, a January 9, 2004 date of injury, and stated, “Work related: Yes.”
Dr. Mieth’s subsequent medical reports provided a transcription of office visits with discussion of
appellant’s medical history, description of complaints, physical examination findings, review of
diagnostic studies, assessment and diagnoses, treatment discussion, patient instructions, and
further orders for treatment of his degenerative knee condition.
By decision dated May 7, 2018, OWCP denied appellant’s occupational disease claim
finding that it was untimely filed. It found that he reasonably became aware of the relationship
between his condition and his federal employment as early as May 10, 2006, but did not file a
claim until November 1, 2017.
On May 21, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on
October 23, 2018.

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Appellant subsequently submitted a statement dated October 16, 2018, wherein he reported
that at the time of his May 10 and November 10, 2006 medical visits, Dr. Mieth was treating him
for both his January 9, 2004 work-related right shoulder injury and his bilateral knee arthritis. He
reported that he was aware of his arthritis in 2004, but did not know that the condition was work
related as he had not sustained a knee injury at work and Dr. Mieth never provided an opinion
stating his knee condition was work related. Appellant reported that he first became aware that
his knee arthritis was work related following an August 24, 2017 examination with Dr. Scott. He
reported that the May 10 and November 10, 2006 medical reports which identified a January 9,
2004 date of injury were in reference to his work-related right shoulder claim.
In an October 23, 2018 memorandum, counsel argued that although appellant knew of his
right knee condition back in 2006, he was not aware that his condition was related to his federal
employment until August 24, 2017, rendering his appeal timely filed. He reported that the May 10
and November 10, 2006 reports identified a January 9, 2004 date of injury which was the date of
appellant’s right shoulder traumatic injury under a different OWCP claim. Therefore, information
in these reports pertaining to a work-related January 9, 2004 injury was not in reference to his knee
condition, but rather to his accepted work-related right shoulder injury.
By decision dated January 7, 2019, OWCP’s hearing representative affirmed the May 7,
2018 decision. The hearing representative found no evidence to support that Dr. Mieth’s May 10
and November 10, 2006 reports were related to his right shoulder condition, noting that the records
provided did not reference any treatment of the shoulder, nor did they appear in the case file for
the shoulder injury under OWCP File. No. xxxxxx673. The hearing representative also found that
there was no evidence that appellant’s supervisor had actual knowledge of appellant’s claimed
injury within 30 days.
In the January 7, 2019 decision, OWCP’s hearing representative specifically referenced
reviewing the case file in OWCP File. No. xxxxxx673 to determine whether evidence in that record
was applicable to establishing timeliness in this claim. Since the case record as transmitted to the
Board does not contain evidence that OWCP relied upon in reaching its final decisions, the Board
is unable to properly “consider and decide” appellant’s claim.4 The Board further notes in this
regard that Dr. Mieth’s May 10 and November 10, 2006 chart notes documented knee injections
with a January 9, 2004 date of injury, the date of the injury under OWCP File No. xxxxxx673.
The Board thus finds that, for a full and fair adjudication, the claims in OWCP File Nos.
xxxxxx925 and xxxxxx673 must be administratively combined.5 This will allow OWCP to
consider all relevant allegations and accompanying evidence in developing the current
occupational disease claim.6

4

L.K., Docket No. 19-0313 (issued September 4, 2019); K.P., Docket No. 17-1667 (issued March 8, 2018).

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
6

L.M., Docket No. 19-1490 (issued January 29, 2020).

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Accordingly, the Board will remand the case to OWCP to administratively combine the
files. Following this and such further development as it deems necessary, OWCP shall issue a
de novo decision.7 Accordingly,
IT IS HEREBY ORDERED THAT the January 7, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: July 17, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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M.B., Docket No. 18-1290 (issued August 13, 2019).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________

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Appearances:
Stephen L. Cusick, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-395
Issued: June 5, 2014

Case Submitted on the Record

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

JURISDICTION
On December 12, 2013 appellant, through her attorney, filed a timely appeal from a
July 30, 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 abused its discretion by denying authorization for bilateral
cubital tunnel syndrome release.
FACTUAL HISTORY
On August 23, 2006 appellant, then a 43-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed rotator cuff tendinitis as a result of lifting
telephone books. OWCP accepted her claim for right shoulder supraspinatus tendon tear, right
1

5 U.S.C. § 8101 et seq.

sprain of shoulder and rotator cuff, right rotator cuff tendinitis and right shoulder fibrous
capsulitis.
Appellant initially sought treatment with Dr. John R. Johansson, an osteopath, and
Dr. John F. Lawlis, a Board-certified orthopedic surgeon. She stopped work on March 9, 2010
and underwent arthroscopic right shoulder surgery on May 10, 2010. Appellant was released to
return to work for four hours a day beginning November 1, 2010. The employing establishment
was unable to accommodate her restrictions or provide light-duty work.
In a February 21, 2011 report, Dr. Rizwan U. Haq, a Board-certified neurologist, reported
that appellant was referred to him by Dr. Lawlis for numbness and tingling in her right third,
fourth and fifth fingers. Appellant noticed the numbness and tingling for some time before her
right shoulder surgery but the condition became more noticeable since she had physical therapy
postsurgery. She lifted weights and placed items in slots with frequent flexion of her right elbow
that caused an increase in symptoms. Dr. Haq stated that appellant was a mail handler, which
also required frequent flexion of the elbow when delivering mail. An electrodiagnostic study
was completed and he speculated that appellant suffered from cubital tunnel syndrome.
OWCP referred appellant and the case file to Dr. Douglas Kirkpatrick, a Board-certified
orthopedic surgeon, for a second opinion medical examination. In a March 4, 2011 report,
Dr. Kirkpatrick provided findings on physical examination, a summary of appellant’s past
medical reports and a history of the July 26, 2006 employment duties of lifting heavy telephone
books for delivery. He diagnosed rotator cuff tendinitis and fibrous capsulitis of the right
shoulder causally related to the July 26, 2006 work injury. Dr. Kirkpatrick provided additional
diagnoses of bilateral cubital tunnel syndrome and fibromyalgia which were not employment
related. He noted that appellant’s cubital tunnel syndrome was not well defined in the records
and dated back to her 2006 work injury. It seemed to have developed largely in the absence of
her work environment. Dr. Kirkpatrick concluded that the cubital tunnel syndrome did not have
clear causal ties to the July 26, 2006 employment injury.
In a March 18, 2011 report, Dr. Seth Frenzen, a Board-certified orthopedic surgeon,
reported that appellant was a new patient who was referred by Dr. Lawlis for consultation of
right elbow symptoms. Appellant complained of having problems with her elbow for
approximately two to three years. After having shoulder surgery, appellant’s symptoms in her
elbow did not cease. Dr. Frenzen diagnosed right medial and lateral epicondylitis and right
cubital tunnel syndrome. He noted that a cubital tunnel release would probably relieve appellant
of the numbness and tingling in her fingers but would not necessarily resolve her elbow pain.
Dr. Frenzen opined that her elbow issues were related to work and predated her shoulder surgery.
On March 24, 2011 Dr. Frenzen requested authorization for bilateral cubital tunnel
syndrome release.
OWCP provided Dr. Lawlis, Dr. Frenzen and Dr. Johansson with copies of
Dr. Kirkpatrick’s second opinion report. It requested that the physicians provide an opinion on
the nature and extent of appellant’s disability and whether they agreed with Dr. Kirkpatrick’s
assessment.

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By letter dated March 28, 2011, Dr. Lawlis responded that he only treated appellant for
her shoulder injury and agreed with Dr. Kirkpatrick’s assessment. He further stated that he could
not comment on appellant’s elbow or wrist injuries as he was not involved in the evaluation or
management of her other complaints.
In a May 16, 2011 response, Dr. Frenzen disagreed with Dr. Kirkpatrick’s assessment
pertaining to the cause of appellant’s elbow injury. Based on his conversation with appellant that
her elbow pain predated her shoulder surgery, he believed that appellant developed the elbow
pain secondary to her work. Dr. Frenzen advised that he did not have any notes by
Dr. Johansson who initially treated appellant. His office notes did not contain anything that
would suggest that appellant had elbow pain when she was seen by Dr. Lawlis for treatment of
her shoulder. Dr. Frenzen only had her description of her elbow pain and the period of time for
which it developed to use in reaching his conclusion.
By letter dated July 6, 2011, Dr. Johansson reviewed Dr. Kirkpatrick’s report and stated
that appellant was initially treated for injuries to her shoulder and a repetitive stress injury.
While there were some references to elbow pain, it was thought that such symptoms could
conceivably have been arising from her shoulder. Dr. Johansson noted that, because new testing
had been completed and surgery was proposed, there was a strong possibility that the elbow
complaints were causally related to her federal employment duties.
OWCP found a conflict in medical opinion as to the cause of appellant’s bilateral cubital
tunnel syndrome and the need for surgery. It referred her, together with a statement of accepted
facts (SOAF), to Dr. Marco Berard, a Board-certified orthopedic surgeon, for an impartial
referee medical examination.
In a November 18, 2011 report, Dr. Berard evaluated appellant, reviewed previously
taken diagnostic tests, provided a summary of past medical reports and noted findings on
physical examination. He noted that per the review of the record, there was no documentation
mentioning numbness of the fourth and fifth digit for the right and left hand on or about the time
of the injury on July 26, 2006. Dr. Berard noted that even the postoperative following shoulder
surgery failed to mention numbness over the fourth and fifth digits of the right and left hand and
made no mention of chronic ongoing right or left elbow pain. He opined that appellant’s
bilateral cubital (sic) tunnel syndrome was not related to the right shoulder condition. Dr. Berard
noted that her complaints of pain in the posterolateral aspect of the forearm going across the
elbow and on the posterior aspect of the forearm were secondary and radiating from the right
shoulder pain. He stated that those entities should be seen different as the cubital (sic) tunnel
syndrome which would not give the symptoms mentioned above. Thus, Dr. Berard concluded
that appellant’s bilateral elbow condition and cubital (sic) tunnel syndrome were not related to
the occupational incident on July 26, 2006 and that appellant did not injure her right and left
elbow at the same time she injured her right shoulder.
By decision dated December 1, 2011, OWCP denied appellant’s request for bilateral
cubital tunnel syndrome release finding that the weight of medical evidence did not establish that
the surgery was medically necessitated by any residuals or disability causally related to her
accepted July 26, 2006 employment-related injuries.

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On June 14, 2012 appellant, through counsel, requested reconsideration of OWCP’s
decision denying authorization for surgery. Counsel argued that Dr. Berard failed to consider
appellant’s elbow complaints as documented in her physical therapy notes and his report lacked
credibility as he referred to “capital tunnel syndrome,” a nonexistent diagnosis. He provided a
report from Dr. Sikhar N. Banerjee, Board-certified in physical medicine and rehabilitation, who
disagreed with Dr. Berard’s assessment.
In a May 11, 2012 report, Dr. Banerjee provided detailed review of appellant’s past
medical reports and findings on physical examination. He diagnosed cubital tunnel syndrome
which he opined was caused by her July 26, 2006 work injury. Dr. Banerjee reported that
appellant worked for the postal service and suffered an injury to her right shoulder while
delivering mail in July 2006, resulting in partial tear of the rotator cuff and labral tear requiring
arthroscopic surgery. At the time of injury, appellant had pain in her right elbow but it was felt
that this pain was referred from the shoulder and no investigation or treatment was carried out.
She reported that her elbow pain was initially overshadowed by her shoulder pain because it was
not as severe. However, during her physical therapy following arthroscopic surgery, appellant
developed increased pain in her elbow along with tingling and numbness of her right fourth and
fifth fingers which she attributed to the special physical therapy exercise of wall climbing to
improve range of movement of her shoulder. She reported these complaints to her physical
therapist which were recorded in physical therapy reports dated November 1, 2010 and
subsequently from January 10 to 26, 2011. Appellant had also reported these complaints to
Dr. Lawlis as recorded in his December 14, 2010 and January 27, 2011 reports. Dr. Banerjee
had opined that based on her records and the information provided to him by appellant, her
complaints of elbow pain and tingling and numbness of her fingers were attributable to bilateral
cubital tunnel syndrome which resulted from her work injury on July 26, 2006 and subsequently
aggravated by physical therapy following arthroscopic surgery of her right shoulder which was
caused by her original work injury.
Dr. Banerjee noted that appellant’s request for bilateral decompression of cubital tunnel
was denied based on Dr. Berard’s examination and report. He argued that Dr. Berard’s rationale
for denying surgery was incorrectly based on his assessment that the record lacked
documentation pertaining to elbow complaints at the time of the initial injury on July 26, 2006.
Dr. Banerjee stated that appellant’s elbow complaints were in fact documented in the record and
Dr. Berard failed to mention or account for the physical therapy notes or Dr. Lawlis’ reports
which indicated elbow pain post right shoulder surgery. He noted that Dr. Berard’s report was
confusing as he referred to “capital tunnel syndrome” and also discussed right carpal tunnel
syndrome which was not a diagnosed condition.
On September 19, 2012 OWCP expanded appellant’s claim to include right shoulder
suprascapular neuropathy.
On December 17, 2012 OWCP requested Dr. Morley Slutsky, Board-certified in
occupational medicine and a medical adviser, to review the case file and SOAF. Dr. Slutsky was
asked to address whether appellant’s work duties related to the July 26, 2006 injury caused or
contributed to her elbow condition and if surgery for bilateral cubital tunnel syndrome release
was medically necessary or warranted.

4

In a December 17, 2012 report, Dr. Slutsky reviewed the record and opined that
appellant’s cubital tunnel syndrome and elbow problems were not a result of the July 26, 2006
injury or her work-related duties. Therefore, surgery was not warranted. Dr. Slutsky noted that
between the date of injury and May 10, 2007, there were no objective clinical findings or
diagnostic tests consistent with clinically active bilateral cubital tunnel syndrome. Moreover,
there was a large gap in the medical record from May 29, 2007 to May 10, 2010. Dr. Slutsky
noted that there was mention that appellant first developed symptoms of cubital tunnel syndrome
on November 1, 2010 but that the physician’s assistant note from that date documented no such
history of elbow/cubital tunnel related issues.
Dr. Slutsky stated that the first note by a physician where elbow symptoms were
mentioned was dated December 14, 2010, almost four and a half years after the date of injury
and seven months postshoulder surgery. Appellant noted some elbow pain with numbness to the
small and ring finger (consistent with ulnar nerve irritation at the elbow). Her physician did not
mention which elbow was involved, the cause of her condition or document examining her for
this issue. Dr. Slutsky noted that appellant had not yet returned to work so her symptoms
appeared to have developed outside of her work-related duties. Based upon the medical
evidence of record, it was implausible that her cubital tunnel syndrome was related to her
accepted injury or work-related duties. Dr. Slutsky’s cubital tunnel symptoms were not present
despite working in 2006 and appellant developed the condition in 2010 when she was not
working. He concurred with Dr. Kirkpatrick’s opinion that appellant’s elbow problems did not
develop as a result of the 2006 injury or associated with her work-related duties.
By decision dated December 28, 2012, OWCP affirmed the December 1, 2011 decision
denying appellant’s request for authorization of surgery. It found that the weight of the medical
evidence rested with Dr. Berard’s impartial report and supported by Dr. Slutsky.
On January 8, 2013 appellant, through counsel, requested an oral hearing before the
Branch of Hearings and Review.
At the May 15, 2013 hearing, appellant described her employment duties prior to
July 26, 2006 and problems arising from her elbow since the date of onset. Counsel contended
that her physician’s reports established that appellant’s elbow condition was caused by the
July 26, 2006 work injury. The record was held open for 30 days.
In a June 29, 2013 report, Dr. Slutsky again reviewed the medical record and opined that
appellant’s work duties related to the injury on July 26, 2006 did not cause, aggravate or
contribute to her diagnosed elbow condition or cubital tunnel syndrome. As such, the requested
surgery for bilateral cubital tunnel release should not be authorized as the condition was not
work related.
In a report dated June 26, 2013, Dr. Carlos A. Pino, a Board-certified anesthesiologist,
noted appellant’s complaints of pain to the elbow which had been present since July 2006. He
diagnosed shoulder region joint pain, neuropathic pain and fibromyalgia.
By decision dated July 30, 2013, the Branch of Hearings and Review affirmed the
December 28, 2012 decision, finding that the medical evidence of record failed to support that

5

appellant’s cubital tunnel conditions were causally related to her accepted injury in 2006 and
denied authorization for surgery. It noted that the weight of the medical evidence rested with the
opinion of Dr. Berard, the impartial medical examiner, and supported by Dr. Slutsky.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability or
aid in lessening the amount of monthly compensation.2 In interpreting section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in
the shortest amount of time.3 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.4 Abuse
of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.5
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.6 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.7 Therefore, in order to prove that
the surgical procedure is warranted, appellant must submit evidence to show that the procedure
was for a condition causally related to the employment injury and that the surgery was medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.8
ANALYSIS
OWCP accepted appellant’s claim for right shoulder supraspinatus tendon tear, right
sprain of shoulder and rotator cuff, right rotator cuff tendinitis, right shoulder fibrous capsulitis
and right shoulder suprascapular neuropathy. On March 24, 2011 appellant requested
authorization for bilateral cubital tunnel syndrome release. OWCP denied her request for
2

Id. at § 8103(a).

3

See Dale E. Jones, 48 ECAB 648, 649 (1997).

4

See Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
5

See Minnie B. Lewis, 53 ECAB 606 (2002).

6

See Kennett O. Collins, Jr., 55 ECAB 648 (2004); Debra S. King, 44 ECAB 203, 209 (1992).

7

Id.; see also M.B., 58 ECAB 588 (2007); Bertha L. Arnold, 38 ECAB 282 (1986).

8

See R.C., 58 ECAB 238 (2006); Cathy B. Millin, 51 ECAB 331, 333 (2000).

6

authorization of surgery. The Board finds that it did not abuse its discretion by denying
authorization for bilateral cubital tunnel release.
OWCP determined that a conflict in medical opinion arose between Dr. Frenzen,
appellant’s treating physician, and Dr. Kirkpatrick, the second opinion physician, regarding
whether the requested bilateral cubital tunnel release was causally related to the July 26, 2006
work injury. In order to resolve the conflict, it referred appellant, pursuant to section 8123(a) of
FECA, to Dr. Berard for an impartial medical examination and an opinion on the matter.
In a November 18, 2011 report, Dr. Berard reviewed the medical evidence of record and
noted that there was no documentation mentioning numbness of the fourth or fifth digits of the
right or left hand on or about the time of the injury on July 26, 2006. He noted that even the
right shoulder postoperative note failed to mention complaints of numbness or chronic bilateral
elbow pain. Dr. Berard opined that appellant’s bilateral cubital tunnel syndrome was not related
to the right shoulder condition.9 He stated that appellant’s complaints of pain in the
posterolateral aspect of the forearm going across the elbow and on the posterior aspect of the
forearm were secondary and radiating from the right shoulder pain. Dr. Berard stated that those
entities should be seen different as the cubital tunnel syndrome, which would not elicit the
symptoms mentioned above. He determined that appellant’s bilateral elbow condition was not
related to the occupational claim of July 26, 2006 and that appellant did not injure her right or
left elbow at the same time she injured her right shoulder.
The Board finds that, the opinion of Dr. Berard is sufficiently well rationalized and based
upon a proper factual background such that it is entitled to special weight. It establishes that
appellant’s bilateral cubital tunnel syndrome was not causally related to the July 26, 2006 injury.
Further, authorization for surgery was properly denied. 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.10
The Board has carefully reviewed the opinion of Dr. Berard and finds that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue in the present case. Dr. Berard’s opinion is based on a proper factual and medical
history. He accurately summarized the relevant medical evidence.11 Dr. Berard provided
medical rationale for his opinion by explaining that appellant’s cubital tunnel syndrome was
unrelated to the July 26, 2006 occupational exposure as the medical record contained no elbow
complaints on or around July 26, 2006 or following her right shoulder surgery in postoperative
notes.12 He further explained that the symptoms which were noted were not indicative or related
to cubital tunnel syndrome. Dr. Berard provided support for his conclusion noting that appellant
9

The Board notes that, though Dr. Berard referenced capital tunnel syndrome in his report, this was a
typographical error and does not diminish the reliability of his report.
10

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a).

11

See Melvina Jackson, 38 ECAB 443 (1987).

12

R.W., Docket No. 12-375 (issued October 28, 2013).

7

did not have elbow complaints until years after the 2006 injury. His opinion is entitled to special
weight as the impartial medical examiner and OWCP was within its discretion to deny
authorization for surgery.
Subsequent to Dr. Berard’s report, appellant submitted a May 11, 2012 report from
Dr. Banerjee, who advised that appellant’s cubital tunnel syndrome was caused by her
July 26, 2006 injury. He stated that at the time of her right shoulder injury, she complained of
pain in her elbow but it was believed that it was caused by her shoulder condition and no
investigation or treatment was carried out. Dr. Banerjee stated that following appellant’s right
shoulder arthroscopic surgery, she developed increased pain in her elbow which she attributed to
her physical therapy exercises. He noted that these elbow complaints were reflected in the
record. Dr. Banerjee also opined that this condition was subsequently aggravated by physical
therapy following arthroscopic surgery of her right shoulder which was causally related to
appellant’s injury at work.
Dr. Banerjee generally supported that appellant’s bilateral cubital tunnel syndrome was
related to her work injury. The Board finds that his opinion on causal relationship was
conclusory without adequate rationale.13 Dr. Banerjee’s report is insufficient to overcome the
special weight of the medical evidence accorded to Dr. Berard as his opinion that her cubital
tunnel syndrome was caused by the July 26, 2006 injury is based on medical reports
documenting appellant’s elbow complaints in November 2010 and January 2011, more than four
and a half years after the initial injury. Moreover, Dr. Banerjee attributed appellant’s symptoms
pertaining to the elbow as having occurred during her physical therapy exercises
postarthroscopic surgery. He did not specifically address how the claimed condition arose as a
consequence of any exercise or physical therapy provided in treatment of the accepted condition.
Dr. Banerjee also noted that his opinion on causation was based on information provided to him
by appellant as she stated that her elbow bothered her since the 2006 injury. Findings on
examination are generally needed to support a physician’s opinion.14 Dr. Banerjee did not
provide a fully rationalized opinion based on medical documentation and objective evidence to
establish that appellant’s bilateral cubital tunnel syndrome is causally related to the July 26, 2006
injury or warranting authorization for surgery. Thus, his report is insufficient to overcome the
opinion of Dr. Berard.15
OWCP referred medical records to Dr. Slutsky, a district medical adviser, for an opinion
regarding whether appellant’s July 26, 2006 work duties caused or contributed to her elbow
condition and if the surgical procedure of bilateral cubital tunnel syndrome release was
medically necessary or warranted.
In reports dated December 17, 2012 and June 29, 2013, Dr. Slutsky reviewed the case
record and opined that appellant’s cubital tunnel syndrome and elbow problems were not
13

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
14

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

15

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990).

8

causally related to the July 26, 2006 occupational claim or to her work-related duties. Thus,
surgery was not warranted. He noted that from the date of injury on July 26, 2006 to
December 14, 2010, there were no objective clinical findings or diagnostic tests consistent with
clinically active bilateral cubital tunnel syndrome or any mention of elbow-related issues. The
first note by a physician where elbow symptoms were mentioned was dated December 14, 2010,
almost four and a half years after the date of injury and seven months postshoulder surgery.
Dr. Banerjee noted that appellant had not yet returned to work so her symptoms appeared to have
developed outside of her work-related duties. Based upon the medical record, it was medically
implausible that appellant’s cubital tunnel syndrome was related to her 2006 claim or
work-related duties.
The Board notes that appellant argued that she had complaints of elbow pain since the
onset of the 2006 injury. The record lacks documentation pertaining to issues involving her
elbows. The March 28, 2011 report of Dr. Lawlis noted that he only treated appellant for her
shoulder condition and could not comment on the evaluation or management of her elbow. On
May 16, 2011 Dr. Frenzen acknowledged that he did not have any of Dr. Johansson’s notes for
review. Further, his office notes did not contain anything that would suggest appellant had
elbow pain when she saw Dr. Lawlis for treatment of her shoulder. Dr. Frenzen only had
appellant’s description of her elbow pain and the period of time in which she stated it developed
as the basis for concluding that it was causally related to the July 26, 2006 injury.
Dr. Johansson’s July 6, 2011 report noted that appellant had previously made some reference to
elbow pain but it was thought that it arose from her shoulder condition. He provided no specific
dates and failed to state a specific time period for which she referenced her prior elbow
complaints. This medical evidence lacks adequate detail to establish that appellant’s elbow
condition arose on or around July 26, 2006.
For a surgical procedure to be authorized, a claimant must show that the surgery is for a
condition causally related to an employment injury.16 The weight of medical evidence, as
represented by Dr. Berard and Dr. Slutsky support that the recommended surgery is not for an
employment-related condition. The Board finds that OWCP properly exercised its discretion to
deny authorization for the proposed surgery.17 The Board finds that Dr. Berard provided a
well-rationalized opinion based on a complete background, review of the accepted facts and the
medical record.18 Dr. Berard’s opinion was supported by Dr. Slutsky.
The only limitation on OWCP’s authority in approving or disapproving service under
FECA is one of reasonableness.19 OWCP obtained an impartial medical examination by
Dr. Berard. It also routed the case to Dr. Slutsky for review. Dr. Slutsky also found the surgery

16

5 U.S.C. § 8103; see also R.C., 58 ECAB 238 (2006) (where the Board found that, for a surgery to be
authorized, a claimant must submit evidence to show that the requested procedure is for a condition causally related
to the employment injury and that it is medically warranted).
17

K.D., Docket No. 11-1738 (issued March 27, 2012).

18

L.D., Docket No. 13-69 (issued June 4, 2013).

19

Daniel J. Perea, 42 ECAB 214, 221 (1990).

9

unnecessary. Therefore, the Board finds that OWCP did not abuse its discretion under section
8103 in denying approval of surgery for bilateral cubital tunnel release.20
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
The Board finds that OWCP properly denied appellant’s request for authorization of
bilateral cubital tunnel release.
ORDER
IT IS HEREBY ORDERED THAT the July 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 5, 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

20

K.B., Docket No. 12-1438 (issued March 27, 2013).

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Michigan City, IN, Employer
__________________________________________

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)
)
)
)
)
)
)

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

Docket No. 07-2432
Issued: March 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 25, 2007 appellant filed a timely appeal from a July 23, 2007 decision of
the Office of Workers’ Compensation Programs which denied appellant’s occupational disease
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
appellant’s claim.
ISSUE
The issue is whether appellant established that he sustained an occupational disease in the
performance of duty.
FACTUAL HISTORY
On June 5, 2007 appellant, then a 30-year-old letter carrier, filed an occupational disease
claim alleging that he sustained a right shoulder condition as a result of carrying a satchel on his
right shoulder and constant use of his right arm in his job duties.
Supporting documentation was submitted including two duty status reports dated May 24
and June 14, 2007 from Dr. Jeffrey D. Yergler, a family practitioner. The May 24, 2007 report

stated that appellant had muscle strain and pain in the right shoulder due to an overuse injury and
was not to lift more than 10 pounds. The June 7, 2007 report stated that appellant was able to
return to regular work full time. In a June 7, 2007 magnetic resonance imaging (MRI) scan order
form, completed by Dr. Yergler, appellant was diagnosed with neck pain and radiculopathy. A
June 14, 2007 prescription note from the South Bend Sports Medical Clinic diagnosed muscle
strain and shoulder pain. Physical therapy notes dated from June 27 through July 9, 2007 were
received, signed by physical therapist, Stephen Leonard, and cosigned by Dr. Yergler. A
June 21, 2007 physical therapy authorization request form listed shoulder and upper arm strain
and sprain as well as joint pain as the diagnoses.
In a June 18, 2007 letter, the Office requested additional factual information and a
physician’s report from appellant to support his claim. Appellant responded in a July 16, 2007
letter explaining the history of his condition which began on May 18, 2007.
In June 7 and 14, 2007 office visit notes, Dr. Yergler noted that appellant complained of
right shoulder pain and burning sensations from his neck into his hand. On June 7, 2007
Dr. Yergler reported that appellant had symptoms of paraesthesias down his arm in the C7
distribution. On June 14, 2007, after an MRI scan of the cervical spine, Dr. Yergler stated that
appellant’s pain appeared to be mostly parascapular muscle pain.
On July 23, 2007 the Office denied appellant’s claim finding that the medical evidence
did not establish that the claimed medical condition was causally related to the established workrelated events.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.1
The medical opinion needed to establish an occupational disease claim must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.2
The mere fact that a condition manifests itself during a period of employment does not
raise an inference that there is a causal relationship between the condition and employment.
Neither the fact that the condition became apparent during a period of employment, nor

1

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB ___ (Docket No. 05-715, issued October 6, 2005).

2

Donald W. Wenzel, 56 ECAB 390 (2005).

2

employee’s belief that the condition was caused or aggravated by employment conditions is
sufficient to establish causal relationship.3
ANALYSIS
Appellant alleged that his right shoulder condition is causally related to his federal
employment, specifically repetitive use of his right arm and carrying a satchel on his right
shoulder. The Office accepted that appellant uses his right arm to handle mail and carries his
satchel on his right shoulder. The issue is whether the medical evidence is sufficient to establish
that appellant’s shoulder condition is causally related to his employment.
The medical evidence submitted is insufficient to establish that appellant’s conditions are
related to his employment. The only report to offer any opinion as to the cause of appellant’s
conditions was the May 24, 2007 duty status report. But this report only stated that the injury
was an overuse injury. This statement alone is not enough. While appellant’s muscle strain may
have been caused by an overuse injury it is unclear whether such overuse was employment
related. Medical opinions that are speculative or equivocal in character are of diminished
probative value.4 In his reports Dr. Yergler diagnosed appellant with radiculopathy and muscle
strain but did not offer an opinion as to the cause of these conditions. Medical evidence which
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.5
While appellant believes his right shoulder conditions are related to his employment the
mere belief that the disease or condition was caused by employment factors is not sufficient to
establish a causal relationship between the two.6 The Board finds that appellant has submitted
insufficient medical evidence to establish that he sustained a condition in the performance of
duty.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an occupational disease in the performance of duty.

3

Alberta S. Williamson, 47 ECAB 569 (1996).

4

Kathy A. Kelley, 55 ECAB 206 (2004).

5

Michael E. Smith, 50 ECAB 313 (1999).

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

3

ORDER
IT IS HEREBY ORDERED THAT the July 23, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2008
Washington, DC

David S. Gerson, 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
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Arlington Heights, IL, Employer
__________________________________________

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)
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)
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)

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

Docket No. 15-1364
Issued: February 22, 2016

Case Submitted on the Record

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

JURISDICTION
On June 4, 2015 appellant filed a timely appeal of an April 29, 2015 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUE
The issue is whether appellant established that he sustained a diagnosed medical
condition causally related to the accepted March 12, 2014 incident.
FACTUAL HISTORY
On March 24, 2014 appellant, then a 58-year-old laborer custodian, filed a traumatic
injury claim (Form CA-1) alleging that on March 12, 2014 he became light-headed, dizzy, and
winded while shoveling snow.
1

5 U.S.C. § 8101 et seq.

In a March 12, 2014 Northwest Community Hospital form report, Dr. Daniel Reaven, a
physician specializing in emergency medicine, reported that appellant was seen for chest pain.
He diagnosed chest pain and near syncope.
OWCP received additional medical evidence from Northwest Community Hospital
including a March 12, 2014 admission report by Dr. Michael Magidow, a Board-certified family
practitioner. Dr. Magidow reported that appellant was admitted to the hospital on March 12,
2014 for complaints of near-syncope and shortness of breath. Appellant related that he had been
shoveling snow outside his workplace for more than an hour when he felt dizzy, nauseous, lightheaded, felt a rapid heartbeat in his throat, and his heart beating. A physical examination
revealed a pulse of 54, blood pressure of 159/88, and normal temperature. Dr. Magidow
reported normal diagnostic data and diagnosed dyspnea presyncope, hypertension,
hyperlipidemia, obesity, and implemented gastrointestinal and deep prophylaxis.
In a March 12, 2014 hospital cardiology consultation report, Dr. Ankit Shah, an
examining Board-certified cardiologist, noted that appellant was seen for near-syncope and
dizziness as the result of shoveling snow outside the employing establishment that day.
Appellant related that he became light-headed with nausea and felt extremely dizzy. Physical
examination findings were provided and a chest x-ray interpretation showed no active disease.
Dr. Shah reviewed an electrocardiogram (EKG) which showed normal sinus rhythm and right
bundle block. Under impression, he diagnosed presyncope with nausea and no evidence of
ischemia. Dr. Shah opined that appellant’s symptoms might be due to low heart rate, low blood
pressure, or might be due to appellant having a vasovagal symptoms possibly due to an increased
dose of verapamil.
In a letter dated October 2, 2014, OWCP informed appellant that payment of a limited
amount of medical expenses had been authorized as it appeared that he had sustained a minor
injury. As the medical bills have exceeded $1,500.00, it had reopened his claim for
consideration. OWCP informed appellant that the medical evidence was insufficient to establish
his claim. Appellant was advised as to the medical evidence required to establish his claim and
afforded him 30 days to provide this evidence.
In response to OWCP’s request, appellant resubmitted Dr. Shah’s March 12, 2014 report
and a March 13, 2014 EKG. The EKG report, electronically signed by Dr. Shah on March 13,
2014, showed left ventricular ejection fraction, mild aortic sclerosis without stenosis, normal
right ventricular size and systolic function, moderate concentric left ventricular hypertorphy, and
pesudonormal patter of LV diastolic filling
By decision dated November 3, 2014, OWCP denied appellant’s claim. It found that he
had established that the incident occurred as alleged, but failed to submit any medical opinion
showing how the diagnosed presyncope with nausea was caused or aggravated by the accepted
incident.
In a December 8, 2014 letter, Dr. Joseph Gibes, a Board-certified family medicine
practitioner, noted that he had examined appellant on March 26, 2014 following his
hospitalization for lightheadness, feeling winded, and dizziness due to overexertion at work. He
opined that appellant’s symptoms were due to overexertion at work when shoveling snow.
2

In a form dated January 9, 2015 and received by OWCP on January 13, 2015, appellant
requested reconsideration.
By decision dated April 29, 2015, OWCP denied the claim, finding that appellant failed
to establish fact of injury. It found that the medical evidence submitted failed to contain a
diagnosis causally related to the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was 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.3 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 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.9 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,

2

Id.

3

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

4

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

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

6

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

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 3.
8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
9

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

3

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.10
ANALYSIS
OWCP accepted that appellant was shoveling snow on March 12, 2014 in the
performance of duty. It denied his claim, however, finding that he failed to establish that he
sustained an injury as a result of the accepted incident. The issue before the Board is whether
appellant submitted sufficient medical evidence to establish that the employment incident caused
an injury as defined under FECA. The Board finds that the medical evidence of record is
insufficient to establish a diagnosed medical condition causally related to the accepted March 12,
2014 incident.
A person who claims benefits for a work-related condition has the burden to establish by
the weight of the medical evidence a firm diagnosis of the condition claimed and a causal
relationship between that condition and factors of federal employment.11 The Board has long
held that pain is a symptom, not a compensable medical diagnosis.12 Therefore, since chest pain
is a medical symptom, to establish personal injury the medical evidence of record must
document a diagnosed condition and must explain how that condition is causally related to the
accepted incident of employment.13
In support of his claim, appellant submitted evidence from Northwest Hospital which
included a form report from Dr. Reaven, a March 12, 2014 admission report from Dr. Magidow,
a cardiology consultation report, and an EKG. OWCP subsequently received a December 8,
2014 report from Dr. Gibes.
Dr. Reaven, in a March 12, 2014 Northwest Community Hospital report, diagnosed chest
pain and near-syncope; however, these are not firm medical diagnoses. Furthermore, he offered
no opinion as to the cause of these symptoms. Similarly, Dr. Magidow noted that appellant had
been admitted for complaints of shortness of breath and near-syncope following shoveling snow
outside his workplace. He diagnosed several conditions including hyperlipidemia, obesity,
dyspnea presyncope, hypertension, and implemented gastrointestinal and deep prophylaxis, but
offered no opinion as to the cause of these conditions.
Dr. Shah, an examining Board-certified cardiologist, in a March 12, 2014 hospital
cardiology report, identified the employment incident of shoveling snow, and diagnosed
presyncope with nausea and no evidence of ischemia. He opined that appellant’s symptoms
might be due to low blood pressure, low heart rate, or due to vasovagal symptoms. Again,
Dr. Shah did not provide a firm diagnosis of appellant’s condition. Moreover, at no point did he
identify shoveling snow as a possible cause of a diagnosed medical condition. The reports from
10

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

11

See Roy L. Humphrey, 57 ECAB 238 (2005); see Naomi A. Lilly, 10 ECAB 560, 574 (1959).

12

Robert Broome, 55 ECAB 339, 342 (2004).

13

George A. Davis, Docket No. 95-1684 (issued April 3, 1997).

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Dr. Shah, Dr. Magidow, and Dr. Reaven are insufficient to support appellant’s claim as none of
the physicians diagnosed a medical condition causally related to the employment incident.14
The record also contains a December 8, 2014 letter from Dr. Gibes who attributed
appellant’s symptoms of light-headedness, feeling winded, and dizziness due to shoveling snow
at work and overexertion. He did not provide a firm medical diagnosis and offered no
supporting rationale explaining his conclusion that the shoveling of snow by appellant was the
cause of a diagnosed condition. The Board has held that medical evidence consisting solely of
conclusory statements without supporting rationale is of little probative value.15 Thus, these
reports are insufficient to support appellant’s claim.
The record also contains a March 13, 2014 EKG report. As it is a diagnostic test, causal
relationship was not addressed. The EKG report is insufficient to support appellant’s claim that
he sustained a medical condition causally related to the March 12, 2014 incident.16
OWCP advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment, and a
physician’s opinion, with medical reasons, on the cause of his condition. Appellant failed to
submit appropriate medical documentation in response to OWCP’s request. The Board has held
that the mere fact that a condition manifests itself during a period of employment does not raise
an inference of causal relation.17 An award of compensation may not be based on surmise,
conjecture, speculation, or on the employee’s own belief of causal relation.18 As there is no
probative, rationalized medical evidence containing a medical diagnosis and explaining how a
diagnosed condition was causally related to the accepted March 12, 2014 incident, he has not
met his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

14

See T.L., Docket No. 11-1668 (issued February 10, 2012); Ruth C. Borden, 43 ECAB 146 (1991); Val D. Wynn,
40 ECAB 666 (1989).
15

See T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006);
William C. Thomas, 45 ECAB 591 (1994) (a medical report is of limited probative value on the issue of causal
relationship if it contains a conclusion regarding causal relationship which is unsupported by medical rationale).
16

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

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
18

S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 3003 (2007); Donald W. Long, 41 ECAB 142 (1989).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a diagnosed medical condition causally related to the accepted March 12, 2014
incident, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 29, 2015 is affirmed.
Issued: February 22, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, NORTH SHORE
BRANCH POST OFFICE, Milwaukee, WI,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1894
Issued: March 23, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 13, 2019 appellant filed a timely appeal from an April 22, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 22, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted March 1, 2019 employment incident.
FACTUAL HISTORY
On March 4, 2019 appellant, then a 40-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on March 1, 2019 he sustained an injury to his right
hip/buttocks when he slipped and fell on ice while in the performance of duty. On the reverse side
of the claim form, appellant’s supervisor checked a box marked “Yes” acknowledging that
appellant had been injured in the performance of duty. Appellant did not stop work.
In a March 18, 2019 development letter, OWCP informed appellant of the deficiencies in
his claim. It advised him of the factual and medical evidence necessary to establish his claim and
provided a factual questionnaire for completion. OWCP afforded appellant 30 days to respond.
Appellant submitted physical therapy notes dated March 1 and 5, 2019 from Gregrey Barta,
a physical therapist, who noted diagnoses of right hip and knee strains. Mr. Barta described the
mechanism of injury as appellant walking over icy concrete while working and sliding forward
with his right leg. He reported experiencing a sharp pain to his right hip following this incident.
By decision dated April 22, 2019, OWCP denied appellant’s claim. It accepted that the
March 1, 2019 employment incident occurred as alleged, however, it found that he had not
established a diagnosed medical condition causally related to the accepted employment incident.
Thus, OWCP found that the requirements had not been met for establishing an injury as defined
by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second the component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish a causal relationship between a claimed
condition and an employment incident is rationalized medical opinion evidence.8 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 specific employment factors
identified by the employee.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted March 1, 2019 employment incident.
When appellant filed his Form CA-1, on March 4, 2019, he did not provide medical
evidence with respect to his claimed injuries. On March 18, 2019 OWCP advised him of the
deficiencies in his claim and afforded him 30 days to submit the requested factual and medical
evidence. In response, appellant submitted physical therapy records dated March 1 and 5, 2019,
describing the mechanism of injury as appellant sliding on his right leg while walking over icy
concrete and subsequently experiencing sharp pain in his right hip.
In his physical therapy notes, Mr. Barta, noted diagnoses of right hip and knee strains
following an injury at work. The Board has held that certain medical providers, such as physical
therapists, are not considered “physician[s]” as defined under FECA.10 Consequently, their
medical findings and/or opinions are of no probative value and will not suffice for purposes of
establishing entitlement to compensation benefits. Accordingly, as Mr. Barta’s notes are of no
probative value, the Board finds that appellant has not met his burden of proof to establish a
medical condition causally related to the accepted March 1, 2019 employment incident.

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
10

See 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law). E.W., Docket No. 16-1729 (issued May 12, 2017) (physical therapists); David P. Sawchuk, 57 ECAB
316, 320 n.11 (2006). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical
opinion, in general, can only be given by a qualified physician).

3

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.15
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted March 1, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4