United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, ADDRESS
MANAGEMENT SYSTEMS, Charleston, WV,
Employer
__________________________________________

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Appearances:
Otis R. Mann, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1677
Issued: January 5, 2009

Case Submitted on the Record

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

JURISDICTION
On August 7, 2007 appellant, through her representative, filed a timely appeal from the
August 7, 2007 merit decision of the Office of Workers’ Compensation Programs, which denied
a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case. The Board also has jurisdiction to review the February 21, 2008
decision of the Office hearing representative, which affirmed the denial.
ISSUE
The issue is whether the Office has met its burden of proof to establish that appellant no
longer suffers from a trigger finger condition causally related to her federal employment.
FACTUAL HISTORY
On the prior appeal,1 the Board found that the case was not in posture for decision on
whether appellant’s bilateral trigger finger condition was causally related to her federal
1

Docket No. 04-667 (issued June 22, 2004).

employment. Reports from appellant’s attending physician, Dr. Luis A. Loimil, a Boardcertified orthopedic surgeon, were sufficiently supportive of her claim to require further
development of the medical evidence.2
On December 2, 2004 Dr. Richard T. Sheridan, a Board-certified orthopedic surgeon and
Office referral physician, examined appellant and reported that her trigger fingers from the
thumb through the fourth finger bilaterally were due to cumulative trauma in her normal job
duties over a number of years. He believed that she suffered a permanent aggravation of her
tendon sheaths, causing intermittent triggering: “Permanent change that has occurred to alter the
course of the underlying disease is that she had normal flexor tendons and the repetitive trauma
to her digits caused thickening of the A2 pulleys through which the flexor tendons pass which
has caused intermittent triggering of those digits.” Dr. Sheridan reported that appellant needed
trigger finger releases on the right and would reach maximum medical improvement three
months after surgery.
The Office accepted appellant’s claim for trigger finger of the thumb through fourth
fingers bilaterally and approved surgery. Appellant claimed a schedule award.3
The Office referred appellant to Dr. Barry A. Levin, a Board-certified orthopedic
surgeon, for evaluation. On July 17, 2006 Dr. Levin examined appellant and diagnosed
tenosynovitis of the right middle and ring finger. He saw no connection to work:
“I do not feel that the current condition of tenosynovitis can be attributed to a
work injury. I agree that the patient has some sort of developmental
rheumatological problem, possibly rheumatoid arthritis, which is causing the
above diagnosis. I do not believe this is attributed to work and is caused by a
work injury. Please note that this is in direct contradiction to previous reports that
have been given on this patient.”
Dr. Levin explained that he could not provide an impairment rating because he did not
believe appellant had reached maximum medical improvement. Appellant still had difficulty and
triggering with her fingers, he stated, but the condition would only resolve once the
rheumatological problem resolved or appellant had a release of the A1 pulley to her right ring
and middle finger:
“In summary, [appellant] has a condition known as tenosynovitis to her hands. In
contradiction to previous reports, I do n[o]t feel that this condition was acquired
due to work[-]related injury. I believe it was caused by, most likely, rheumatoid
2

On August 18, 2001 appellant, then a 48-year-old retired address management systems specialist, filed an
occupational disease claim alleging that she sustained bilateral trigger fingers due to factors of her federal
employment. She retired on February 24, 2001 and realized on August 10, 2001 that her trigger finger condition
was caused by employment. The facts of this case as set forth in the Board’s prior decision are hereby incorporated
by reference.
3

Appellant previously received schedule awards for a seven percent impairment of the right upper extremity and
a three percent impairment of the left upper extremity due to bilateral carpal tunnel syndrome in a separate claim,
OWCP File No. xxxxxx123.

2

arthritis. When reviewing the chart, I notice that the patient had a positive
rheumatoid factor and she does give a history of a patient that has mild
rheumatoid arthritis. This condition should be treated and I believe that the
patient did mention to me that she will be seeing somebody [who] treats
rheumatoid arthritis. Also, I feel that the patient would benefit from release of the
A1 pulley to her middle and ring finger on the right hand and that would improve
her function to her hand. Finally, I notice in the chart that the doctor that she is
current[ly] seeing, Dr. Loimil, has diagnosed her as having Dupuytren’s
contracture. This once again is not work related and is extremely mild and I do
n[o]t feel any treatment would benefit the patient.”
The Office found a conflict in the medical evidence. It referred appellant, together with
the case record and a statement of accepted facts, to Dr. Robert W. Lowe, a Board-certified
orthopedic surgeon, for an impartial medical evaluation.
On January 19, 2007 Dr. Lowe acknowledged the conflict: both Dr. Loimil and
Dr. Sheridan stated that appellant’s trigger finger condition was related to work, a different
examiner, Dr. Levin, stated it was not. He related appellant’s history and reviewed her medical
records. Dr. Lowe described his findings on physical examination and diagnosed trigger fingers
not requiring surgery.4 He reported that he generally did not think that trigger fingers were due
to the work that a person does. Dr. Lowe then explained why he believed appellant had no workrelated trigger finger condition:
“This lady has been retired for a number of years yet still has the nodules on the
flexor tendons of her hand. Usually one would consider a callous or any specific
causation would change if you were n[o]t doing the work. Could this have been
aggravated by her work, I think possibly so for that she has been operated by
Dr. Loimil.”
***
“I think that this lady has a condition in her hands that has occurred in her body
and is not related specifically to her work except at the time in past when she
required an operation. Her treating doctor thought her work had aggravated the
trigger finger. Of course this could be debated but the persistence of pathology or
suggestion of pathology in both hands and on multiple tendons weighs heavily in
my impression that her condition is a human condition not specially related to
work.”
Dr. Lowe reported ranges of motion and observed that appellant had use of both hands
with normal functions of the joints that would be limited by trigger fingers, namely, the proximal
interphalangeal and metacarpophalangeal joints. Therefore, he stated, no impairment rating was
given for trigger fingers or a residual of the aggravation of trigger fingers. Dr. Lowe noted that
appellant had greater strength in her left hand, on which she had a ring finger release, “so neither
mobility, strength, [n]or sensation would lead to a diagnosis of work-related trigger fingers or
4

Dr. Lowe stated that he agreed with the diagnosis of trigger fingers or tenosynovitis.

3

work-related chronicity not previously addressed.” He further commented on the issue of causal
relationship:
“I did look in an epistle, i.e., Campbell’s Operative Orthopedics Volume IV, 10th
edition, page 3774 discusses trigger finger and thumb and as I read it they
describe triggering to be associated with a collagen disease and several fingers
can be involved, the middle and ring finger most often. For those who state that
this is a conservative publication and would not acknowledge work if they saw it I
ask you to turn back to page 3773, i.e., the other side of the piece of paper, where
they describe [d]e Quervain’s tenosynovitis ‘this being almost always related to
overuse either at home or at work or is associated rheumatoid arthritis.’ Thus
there are types of tenosynovitis associated with one’s occupation but a trigger
thumb or trigger fingers in my years of practice now numbering greater than 35,
this has not been associated with work except in rare conditions and quite frankly
I cannot recall that rare condition.”
In a decision dated August 7, 2007, the Office denied appellant’s claim for a schedule
award. It further found that her work-related injury had ceased and that the additional conditions
reported by Dr. Loimil were not work related and not compensable.
Appellant requested an oral hearing before an Office hearing representative, which was
held on December 6, 2007. At the hearing, appellant, through her attorney, submitted a
December 3, 2007 report from Dr. Loimil, who explained that appellant did not have rheumatoid
arthritis. Appellant underwent a work-up for rheumatoid arthritis and both the anti-nuclear and
antibody was negative; her rheumatoid factor was negative with a sediment rate of 10. Further, a
rheumatologist reported on August 4, 2004 that there was no evidence of rheumatoid arthritis.
Dr. Loimil reported that appellant did not have any inflammatory arthritis or rheumatoid arthritis.
On February 15, 2008 the Office received a January 28, 2008 impairment evaluation
from Dr. Bruce A. Guberman, a Board-certified internist specializing in cardiovascular disease.
Dr. Guberman diagnosed tenosynovitis, including constrictive tenosynovitis, of the finger of both
hands. He calculated a 14 percent impairment of the right hand, or a 13 percent impairment of
the right upper extremity, due to constrictive tenosynovitis causing triggering and range of
motion abnormalities. Dr. Guberman also calculated an eight percent impairment of the left
hand, or an eight percent impairment of the left upper extremity.
In a decision dated February 21, 2008, the Office hearing representative affirmed the
denial of a schedule award. He found that the opinion of the impartial medical specialist,
Dr. Lowe, was entitled to special weight and clearly constituted the weight of the medical
evidence.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.5 After it has determined that an employee has disability
5

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

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causally related to her federal employment, the Office may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.6
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.7 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.8
ANALYSIS
The Office denied appellant’s claim for a schedule award because the weight of the
medical evidence, represented by the opinion of Dr. Lowe, the impartial medical specialist,
established that her trigger finger condition was not related to federal employment. It found that
the work-related injury had ceased. Having accepted appellant’s claim for a bilateral trigger
finger condition, the Office bears the burden of proof to establish that the condition has ceased or
is no longer related to the employment.
Dr. Lowe’s January 19, 2007 opinion lends some support to the Office’s finding. He
noted that appellant was retired for a number of years and still had nodules on the flexor tendons
of her hand. Usually, Dr. Lowe explained, a condition would change if one were no longer
doing the work. Also, appellant had nodules on all her fingers on both hands. So persistence of
the pathology, together with its presence on so many tendons, weighed heavily on his impression
that her current condition was not specifically related to work.
Dr. Lowe made clear that he believes trigger fingers are not caused by one’s occupation.
He cited a medical text to support that triggering is associated with a collagen disease. Dr. Lowe
stated that, while there are types of tenosynovitis that are associated with one’s occupation, no
trigger thumb or finger in his many years of practice was associated with work, except in a rare
condition he could not recall. So his opinion on whether appellant ever suffered a work-related
aggravation is equivocal. Dr. Lowe allowed that it was possible, but he also considered it
debatable, as he generally believes no such association exists.
Dr. Lowe’s opinion is also not fully rationalized. If the work-related injury ceased, as the
Office found in its August 7, 2007 decision, the impartial medical specialist did not explain when
the causal relationship ended or why. Dr. Lowe did not address or attempt to dispute the
explanation given by Dr. Sheridan, a Board-certified orthopedic surgeon, of how repetitive
trauma at work caused appellant’s trigger finger condition. It was Dr. Sheridan’s explanation
that led the Office to accept appellant’s claim.
6

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
7

5 U.S.C. § 8123(a).

8

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

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Because the opinion of the impartial medical specialist is equivocal and not fully
rationalized, the Board finds that it is of diminished probative value on the issue of causal
relationship. The Office did not request clarification from Dr. Lowe, so his opinion, as it stands,
is not entitled to special weight and does not resolve the conflict between Dr. Loimil and
Dr. Levin. It, therefore, has not met its burden of proof to establish that appellant’s accepted
employment injury has ceased. The Board will set aside the Office’s August 7, 2007 and
February 21, 2008 decisions denying a schedule award on those grounds.
Appellant’s claim for a schedule award remains outstanding. Upon return of the case
record, the Office should review the range of motion findings and strength testing Dr. Lowe
recorded, as well as the clinical findings reported by Dr. Guberman, and determine whether
appellant is entitled to a schedule award for her accepted bilateral trigger finger condition. After
such further development of the evidence as may be necessary, the Office shall issue an
appropriate final decision.
CONCLUSION
The Board finds that the Office has not met its burden of proof to establish that appellant
no longer suffers from a trigger finger condition causally related to her federal employment. The
opinion of the impartial medical specialist is of diminished probative value. The Office must
therefore take further action on appellant’s claim for a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2008 and August 7, 2007
decisions of the Office of Workers’ Compensation Programs are reversed in part and set aside in
part. The case is remanded for further action consistent with this opinion.
Issued: January 5, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Poplar Bluff, MO, Employer
__________________________________________

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

Docket No. 15-1871
Issued: January 13, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 15, 2015 appellant filed a timely appeal from an August 17, 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 over the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $1,060.53 because she received FECA benefits
for the period November 13 through 29, 2014, a period for which she received compensation in
the form of sick and annual leave from the employing establishment; and (2) whether OWCP
properly found her at fault and thus not entitled to waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

On appeal appellant generally asserts that the overpayment is in error.2
FACTUAL HISTORY
On October 6, 2014 appellant, then a 39-year-old licensed practical nurse, filed a
traumatic injury claim (Form CA-1) alleging that on September 28, 2014 she injured her lower
back and hips while assisting a patient to stand. She stopped work on the date of injury. On
November 13, 2014 appellant filed a Form CA-7, claim for compensation, for the period
November 13 to 29, 2014. On December 15, 2014 she filed a claim for compensation for the
period December 3 to 13, 2014.
In correspondence dated December 15, 2014, the employing establishment informed
OWCP that for the period November 13 through 29, 2014 appellant received regular pay. A
leave summary was attached that indicated that appellant had used sick and annual leave for this
period.
On December 29, 2014 appellant accepted a modified position and returned to work.
On February 27, 2015 OWCP accepted lumbar radiculopathy at L4-5 and L5-S1.3 The
record indicates that on February 27, 2015 OWCP issued a check in the amount of $1,060.53 for
a supplemental rolls payment and noted that the compensation coverage dates were from
November 13 through 29, 2014.
In telephone calls and e-mail correspondence dated April 29 through May 7, 2015, the
employing establishment informed OWCP that appellant was on paid leave for the period
November 13 to 29, 2014.4
On June 5, 2015 OWCP issued a preliminary finding that an overpayment of
compensation in the amount of $1,060.53 had been created. It explained that the overpayment
occurred because appellant was paid by the employing establishment for sick and annual leave at
the same time receiving FECA compensation for the same period November 13 to 29, 2014. The
preliminary determination explained the calculation of the overpayment. Appellant was
provided an overpayment action request and an overpayment questionnaire (OWCP Form 20).
She was informed of the actions she could take and was afforded 30 days to respond. An
overpayment worksheet indicated that, for the period November 13 through 29, 2014, appellant
2

In her appeal, appellant maintains that she had not received any type of premium pay since her return to light
duty on December 29, 2014, after the period of overpayment in this case. In its August 17, 2015 decision, OWCP
discussed her receipt of premium pay with regard to her reported income. As neither waiver nor repayment is before
the Board in this appeal, appellant’s allegations in this regard need not be addressed. The Board’s jurisdiction is
limited to reviewing final decisions of OWCP. 20 C.F.R. § 501.2(c); see J.B., Docket No. 09-2191 (issued
May 14, 2010).
3

Appellant was treated by Dr. Sonjay Joseph Fonn, an osteopath, who practices neurosurgery. Magnetic
resonance imaging (MRI) scans of the lumbar spine on July 16, 2005 and October 24, 2014 demonstrated mild disc
bulge changes with no disc herniations.
4

The record indicates that appellant was also paid compensation for the period November 30 to
December 27, 2014.

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received FECA compensation totaling $1,060.53 and also received from the employing
establishment for sick and annual leave for the same period.
On July 6, 2015 appellant submitted an overpayment action request and overpayment
questionnaire. She indicated that she disagreed with the fault determination because
compensation was delayed and she believed the payment was for the later period in which she
claimed a right to compensation. Appellant advised that she was having nonwork-related
surgery which increased her expenses, and listed monthly income of $983.75 and monthly
expenses of $2,408.79.
By decision dated August 17, 2015, OWCP finalized the preliminary overpayment
determination, finding that appellant received an overpayment of compensation in the amount of
$1,060.53. The decision further found that she was at fault because she accepted a payment that
she knew or should have known was incorrect. OWCP determined that the monthly income
appellant listed was incorrect and requested repayment of the full amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay or
remuneration of any type from the United States.6 Section 10.500 of OWCP’s regulations
provide that “compensation for wage loss due to disability is available only for any periods
during which an employee’s work-related medical condition prevents him or her from earning
the wages earned before the work-related injury.”7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $1,060.53. The record supports that she was paid by the employing establishment for annual
and sick leave for the period November 3 through 29, 2014 and also received wage-loss
compensation for this period.
As noted, both FECA and implementing regulations of OWCP provide that a claimant
may not receive wage-loss compensation concurrently with a federal salary or other
remuneration.8 An overpayment worksheet indicated that appellant received compensation of
$1,060.53 for the period November 3 through 29, 2014 and the record establishes appellant was

5

5 U.S.C. § 8102(a).

6

Id. at § 8116(a).

7

20 C.F.R. § 10.500.

8

5 U.S.C. § 8116(a); 20 C.F.R. § 10.500.

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in a paid leave status at the same time. OWCP properly determined an overpayment in the
amount of $1,060.53.9
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”10
Section 10.433(a) of OWCP regulations provide that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; or (2) Failed to provide information which he or she knew
or should have known to be material; or (3) Accepted a payment which he or she
knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”11
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.12
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in creating the overpayment because she knew or
should have known that she was not entitled to receive FECA wage-loss compensation
concurrently with pay for sick and annual leave from the employing establishment. On
February 27, 2015 the day it accepted her claim, OWCP paid her compensation for the period in
question, November 13 through 29, 2014. Prior to that time, appellant had filed a Form CA-7,
claim for compensation, for the period November 13 to 29, 2014.

9

See L.C., 59 ECAB 569 (2008).

10

5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

11

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

12

Id. at § 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).

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In response to the preliminary overpayment determination, appellant indicated that she
thought the compensation was for the next period and noted the delay from the filing of her
claim in October 2014 to the acceptance of her claim and payment of compensation in
February 2015.
Each recipient of compensation benefits is responsible for taking all reasonable measures
to ensure that payments he or she receives are proper,13 and the recipient must show good faith
and exercise a high degree of care in reporting events that may affect entitlement to or the
amount of benefits.14 On February 27, 2015 OWCP notified appellant that her claim had been
accepted. It clearly advised that she was to immediately inform OWCP upon her return to work
to avoid an overpayment of compensation and that, if she worked during any period covered by a
compensation payment, she had to return the payment to OWCP.
When appellant received the check for FECA compensation for the same period she was
on paid leave from the employing establishment, she knew or should have known that she had
received an incorrect payment. OWCP had clearly explained that she could not receive actual
wages and compensation concurrently.
On several occasions beginning on December 15, 2014, the employing establishment
informed OWCP that appellant had received pay, in the form of annual and sick leave, for the
period November 13 through 29, 2013. Because appellant accepted payment that she should
have known to be incorrect, the Board finds her at fault in the creation of the overpayment. The
Board will affirm OWCP’s decision with regard to fault.15
With respect to recovery of the overpayment in compensation, the Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation
benefits under FECA.16 As appellant is no longer receiving wage-loss compensation, the Board
does not have jurisdiction with respect to the recovery of the overpayment under the Debt
Collection Act.17

13

Danny E. Haley, 56 ECAB 393 (2005).

14

Sinclair L. Taylor, supra note 11.

15

G.V., Docket No. 11-1580 (issued April 9, 2012).

16

Cheryl Thomas, 55 ECAB 610 (2004).

17

Id.

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CONCLUSION
The Board finds that OWCP properly determined that an overpayment of compensation
in the amount of $1,060.53 was created because appellant received compensation from the
employing establishment for sick and annual leave and simultaneous FECA compensation for the
period November 13 through 29, 2014. The Board further finds that OWCP properly found her
at fault and thus, she is not entitled to waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the August 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 13, 2016
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
G.M., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION, Dallas, TX,
Employer
__________________________________________

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

Docket No. 14-2057
Issued: May 12, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 29, 2014 appellant filed a timely appeal from a May 23, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that a January 24,
2008 slip and fall caused neurological injuries.
On appeal, appellant alleges that the medical evidence of record establishes that his
neurological condition worsened after his January 24, 2008 slip and fall.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 29, 2008 appellant, a 36-year-old claims examiner, filed a traumatic injury
claim alleging that on January 24, 2008 he stepped on a file, lost his balance, and fell at work.
He subsequently experienced numbness and tingling in his feet, left knee pain, neck, upper and
lower back strains, a knot on the left side of his face, abdominal strain, left elbow soreness, and
bowel and bladder problems. Appellant stopped work on the date of injury and did not return.2
In several February 11, 2008 statements, appellant related that he lost his balance and fell
because a paper file was on the floor. In falling, he hit his left forehead on his desk. Appellant
stated that his face, neck, and back hurt, and that when he stood up he had weakness in his legs
and tingling in both feet. Two coworkers helped him into his chair where he sat for
approximately 30 minutes. Appellant noted that, when he tried to stand, he could not put weight
on his left leg. He later informed his supervisor that he needed medical care and he was taken by
ambulance to a hospital. When discharged, appellant continued to have leg numbness. When he
awoke the next day his head, neck, left arm, left shoulder, mid and low back, and left knee hurt.
The numbness and tingling continued in appellant’s feet and he had bladder leakage. These
symptoms continued through February 4, 2008. He reported difficulty finding a physician who
would see him because he was not assigned a claim number until February 2, 2008.
In a January 24, 2008 emergency room report, Dr. Michael V. Passanante, Boardcertified in emergency medicine, stated that appellant slipped on file folders that day and struck
his head. Appellant had a prior history of Brown-Sequard syndrome with residual left leg
weakness.3 After the fall, he felt tingling in both legs, was unsteady when ambulating, and had
muscle spasms. Appellant denied neck pain. Examination showed no cervical spine swelling or
tenderness, chronic limited range of motion, chronic changes to the left leg, and right sensory
deficit. A computerized tomography (CT) scan of the head was negative, and a cervical spine
CT scan showed postoperative changes. Appellant was discharged in stable condition with a
diagnosis of acute closed head injury and paresthesias. Discharge instructions were for a minor
head injury. Appellant was referred to a neurosurgeon and kept off work until medically cleared.
On February 4, 2008 Dr. Michael Duchamp, an osteopath, noted that appellant was a
quadriplegic from a prior injury, had a prior fusion at three neck levels, and ambulated with a
cane. Appellant related a right leg injury and striking his head when he fell on January 24, 2008.
He later had intermittent leg numbness with a burning sensation, some low back pain, and bowel
and bladder incontinence. Appellant had mild to moderate lumbar pain and spasms with
restricted low back motion and severely restricted neck motion from the previous fusion.
Dr. Duchamp diagnosed bilateral sciatica, lumbar sprain, and urge incontinence. He stated that
there had been a neurologic change, but appellant was difficult to evaluate because he did not
have normal sensation from his previous injuries. Dr. Duchamp recommended a lumbar

2

Social security disability benefits were approved for appellant in July 2008.

3

Brown-Sequard syndrome is described as damage of one half of the spinal cord, resulting in ipsilateral paralysis
and loss of discriminatory and joint sensation, and contralateral loss of pain and temperature sensation. Dorland’s
Illustrated Medical Dictionary (29th ed. 2000).

2

magnetic resonance imaging (MRI) scan, and noted that appellant could return to work on
March 4, 2008.4
In reports dated February 14 and 19, 2008, Dr. Pierre Herding, a Board-certified
neurologist, noted that appellant had fallen at work on January 24, 2008 injuring his neck and
back after striking the left side of his head. He noted the prior cervical spine fracture injury and
diagnosed aggravation of preexisting condition and found appellant disabled. Dr. Herding
indicated that the condition was work related by checking a form box marked “yes.”
On February 25, 2008 OWCP advised appellant that although it initially allowed limited
medical payments, the merits of the claim had not yet been adjudicated. It informed him of the
type of evidence needed to establish his claim.
On April 16, 2008 appellant asserted that his fall aggravated his preexisting condition.
He submitted Dr. Passanante’s January 24, 2008 examination report which described the remote
cervical injury with left leg weakness and appellant’s report that, since he fell at work, he had
bilateral leg tingling. Appellant denied neck pain or headaches.
Also submitted were new reports from Dr. Herding. On February 12, 2008 he noted
complaints of urinary incontinence and foot numbness and acknowledge a 1990 cervical spine
fracture with operative repair and subsequent symptoms. Dr. Herding noted a January 24, 2008
fall where appellant struck the left side of his head and had developed occasional urinary leakage
along with one episode of bowel incontinence. Examination showed no leg atrophy, and clonus
and spasticity on the left. The right arm and leg had diminished pinprick sensation and appellant
reported diminished sensation of the bottoms of both feet. Vibratory sensibility was modestly
reduced bilaterally. Dr. Herding diagnosed possible recurrent spinal cord injury. In reports
dated February 25 and March 3, 2008, he advised that appellant had been evaluated for
aggravation of preexisting cervical spine injury and could not return to work until April 3, 2008
due to a cervical/lumbar injury.
In a February 27, 2008 attending physician’s report, Dr. Duchamp reported that, after the
January 24, 2008 work fall, appellant reported foot numbness and incontinence. He reiterated
his diagnoses and stated that the fall at work could have caused a back sprain and change from
appellant’s baseline. Dr. Duchamp advised that appellant remained totally disabled.
In March 2008, appellant relocated from Texas to Oklahoma. On March 14, 2008
Dr. John W. Ellis, Board-certified in family medicine noted that, in 1990, appellant was thrown
from a boat and had a C5 fracture, followed by surgery and rehabilitation. Appellant left a
rehabilitation hospital in February 1991. He also had a 1988 motor vehicle accident that caused
facial lacerations, lost teeth, and fractured a finger. In 2003, appellant fell and fractured his left
elbow. He began work with the employing establishment in August 2003, at which time he
walked with a right forearm crutch and had marked left arm and leg weakness with some
4

A February 12, 2008 lumbar spine MRI scan showed pars defects at L5 without obvious spondylolisthesis of L5,
and mild disc bulging at L4-5 with no significant central or foraminal stenosis. A February 14, 2008 lower
extremity electromyogram and nerve conduction study showed delayed latency of the right peroneal motor nerve
and diminished recruitment of the left leg muscles.

3

weakness in the right arm and sequelae of Brown-Sequard syndrome. Appellant described the
January 24, 2008 fall at work, stating that he reinjured his neck. Dr. Ellis stated that, after the
workplace fall, appellant developed more left arm and leg weakness and continued to have neck,
lower thoracic, and lumbar pain, tingling in the bottoms of both feet, and increased left toe drag.
Examination showed spine tenderness, scabbing on the left elbow from a recent fall, hypertrophy
of the right medial epicondyle, left hand atrophy with finger retraction, obvious left arm atrophy,
and left leg weakness and atrophy, consistent with Brown-Sequard syndrome due to the 1990
injury. Dr. Ellis diagnosed resolved left forehead contusion; muscle tendon unit strain of the left
side of the neck and shoulder girdle muscles and ligaments; neck strain with spinal cord injury in
a previous area of injury; thoracic strain; muscle tendon unit strain of the back and right
iliolumbar ligaments; left elbow contusion; and contusion of the left knee, patellar tendon,
patella, and lateral joint line.5 He opined that appellant’s work caused or aggravated all
diagnoses. Dr. Ellis stated that, because appellant had preexisting weakness, he fell harder on
January 24, 2008, causing muscle strain on the left side of his neck and shoulders, somewhat on
the right, with the sudden jarring aggravating the preexisting spine injury, which caused the left
arm and left leg to become weaker and more sensitive. It also caused a spinal cord contusion
that caused numbness and tingling in the bottom of his feet, and bladder difficulties. Dr. Ellis
noted that a thoracic spinal cord compression was possible, noting a normal lumbar MRI scan
study at L5-S1, and abnormal electrodiagnostic study findings which “could be due to an injury
in the lumbar area, the thoracic area or even the cervical area.” He noted that, before
January 2008, appellant fell approximately once yearly, but that, since then, he fell more
frequently and had more left foot drop. Dr. Ellis found that appellant was totally disabled since
January 24, 2008. He advised that appellant be very careful with neck movements as constant
data entry and writing with his head flexed “would probably be very detrimental to his spinal
cord at this time.”
Appellant returned to Texas in March 2008. On April 7, 2008 Dr. Herding found
appellant’s condition unchanged. In reports dated April 18, 2008, Dr. Ellis stated that appellant’s
neurological problems had worsened since the work fall, noting that he was developing cauda
equina syndrome that affected bowel and bladder function. He recommended more testing and
continued to find appellant totally disabled.
In letters dated April 29, 2008, OWCP asked Drs. Herding and Duchamp to review a
statement of accepted facts and provide a reasoned opinion regarding whether appellant’s current
conditions were caused or aggravated by his federal employment. In a May 5, 2008 statement,
appellant related that he went about 16 years without treatment after the 1990 cervical spine
injury. He maintained that the January 2008 work fall aggravated his preexisting condition.
In a May 13, 2008 report, Dr. Herding reiterated appellant’s history. He stated that his
initial impression was a “possible recurrent spinal injury, possibly aggravating his preexisting
condition.” Further testing was recommended. Dr. Ellis continued to submit reports advising
that appellant was totally disabled because his injuries were extensive and would require longterm treatment and rehabilitation.
5

Dr. Ellis also diagnosed right elbow medial epicondylitis. Appellant filed an occupational disease claim for this
condition, adjudicated under a separate claim. This matter is not presently before the Board.

4

The employing establishment provided a January 24, 2008 incident report, indicating that
appellant refused medical assistance immediately after the fall.
In a July 25, 2008 decision, OWCP denied the claim because the medical evidence was
insufficient to establish causal relationship. It noted that appellant had not submitted medical
evidence regarding the 1990 injury or describing his condition before the January 24, 2008 fall.
Appellant requested reconsideration. Additional reports from Dr. Ellis noted appellant’s
status, advised that he was falling more frequently, and found him totally disabled. On
November 19, 2008 he noted reviewing OWCP’s decision. Dr. Ellis opined that the work fall
worsened appellant’s condition, as his spinal cord could be very sensitive to even small trauma.
He noted reviewing records from appellant’s 1990 hospitalization and asserted that his current
symptoms were consistent with a previously impaired, very sensitive spinal cord that was injured
again, causing more symptoms.
A December 1, 2008 thoracic spine MRI scan showed diffuse myelomalacia of the spinal
cord and mild degenerative disc disease of the upper and mid-thoracic spine. A December 1,
2008 cervical spine MRI scan showed diffuse myatomalacia with suggestion of a focal syrinx at
C5-6 that was not well demonstrated; solid fusion of C4-5 and C5-6; and discogenic and
spondylitic changes at C6-7, which contributed to moderate left and mild right neural foraminal
stenosis.
In a decision dated March 20, 2009, OWCP found the medical evidence insufficient to
warrant modification of the prior decision.
Appellant requested reconsideration and submitted evidence concerning the 1990 injury.
On July 6, 1990 Dr. Charles F. Engles, a Board-certified neurosurgeon, noted that appellant
struck his head in shallow water and was paralyzed. X-rays showed a compression fracture
dislocation at C5. On August 16, 1990 Dr. Engles and Dr. J.P. Livingston, a Board-certified
orthopedic surgeon, performed a cervical spine fusion and appellant was discharged to
rehabilitation on August 30, 1990. Appellant later regained some movement. Incomplete spinal
cord injury at C6 and C5 fracture were diagnosed.
In a January 26, 2009 report, Dr. Engles noted that appellant did very well after the 1990
injury. Although he had not seen appellant since 1990, appellant reported that he had completed
schooling, had productive employment, was married, and fathered children. Dr. Engles
described appellant’s report of the January 24, 2008 work fall. He noted appellant’s report of
increased symptoms from that date, such as a significant, precipitous, and acute decline in
neurologic function, including loss of bowel and bladder control, and a greatly reduced ability to
ambulate. Dr. Engles noted that initial tests did not reveal any hard evidence for fracture or disc
rupture and advised that further studies were needed to fully understand his condition. He
concluded that appellant’s impairment affected his ability to be employed.
In a February 10, 2009 treatment note, Dr. Ellis indicated that the December 1, 2008 MRI
scan studies showed a progression of the spinal cord impairment in appellant’s neck such that he
could not work as a claims examiner because he could not sit, use a computer, perform data entry

5

type, or write, and could barely use a cellular telephone. He later referred appellant to Dr. Tom
Ewing6 and to Dr. Michael E. Goodrich, a neurologist.
In a June 16, 2009 form report, Dr. Brian Lamkin, an osteopath, noted that appellant had
fallen seven hours earlier and had a history of frequent falls over the past year. He diagnosed left
elbow, wrist, and shoulder contusions and discussed use of a motorized scooter. In a July 14,
2009 report, Dr. Goodrich noted the 1990 spinal cord injury which left appellant with left arm
paresis and a current complaint of numbness and tingling in the little and ring fingers bilaterally.
Electrodiagnostic studies from that date showed no evidence of cervical motor radiculopathy and
ruled out an underlying peripheral neuropathy.
In a January 14, 2010 report, Dr. Ellis reiterated his previous findings and found new
objective conditions of thoracic paraspinous and rhomboideus atrophy, which was indicative of
an acute spinal cord injury, opining that it would take months after the fall for the atrophy to
appear. Dr. Ellis noted current MRI scan findings of diffuse myelomalacia were in the thoracic
spine while appellant’s 1990 injury was to the cervical spine.
In a January 22, 2010 report, Dr. Gabriel Pitman, a Board-certified neurologist, noted the
1990 injury and a January 2008 injury to the head and neck. After the latter injury, appellant
developed increased tingling in the feet that had improved, persistent increased weakness and
stiffness in the left arm, increased falling, worsening gait disturbance due to increased leg
weakness, constant neck pain, and bowel and bladder incontinence. He had a spastic gait and
decreased cervical motion, left arm atrophy and decreased strength, and decreased sensation in
the arms. Dr. Pitman reviewed the December 1, 2008 MRI scan studies and the July 14, 2009
electrodiagnostic study and suspected that appellant had experienced flexion/extension injury in
January 2008 with likely additional injury to the spinal cord. He indicated that appellant’s
examination was consistent with a Brown-Sequard syndrome as far as sensory loss in the feet,
that he was hyperreflexic, was clearly weak in the left arm and leg, and had a gait abnormality.
Dr. Pitman recommended more testing and a neurosurgery consultation.7
In a May 24, 2010 merit decision, OWCP found that there were no medical reports
supporting a material worsening of the preexisting condition due to the January 24, 2008 work
incident. It found the medical evidence insufficient to warrant modification of the prior
decisions.
Appellant requested reconsideration, stating that he did not need medical care from 1990
to 2008 as his condition was stable. He also submitted medical evidence. On March 5, 2010
Dr. Pitman reviewed the February 16, 2010 MRI scan studies and diagnosed cervical
6

A report from Dr. Ewing is not found in the case record.

7

A February 16, 2010 cervical spine MRI scan showed bone fusion across C4-5 and C5-6; reversal of cervical
lordosis; a focal expansile cystic lesion in the cervical cord from C4 through C6 that appeared to separate and
displace the atretic cervical spinal cord along the lateral margins; significant diffuse atrophy of the cervical and
upper thoracic spinal cord; disc osteophyte complex at C6-7 with probable small superimposed central disc
protrusion. A February 16, 2010 thoracic spine MRI scan showed diffuse symmetric thoracic cord atrophy without
focal signal abnormality to suggest syrinx formation or myelomalacia; no evidence of spinal canal or foraminal
stenosis; no significant disc bulge; and normal marrow signal of the thoracic vertebral bodies.

6

myelopathy. He advised that appellant’s old spinal cord injury was likely exacerbated by the
2008 neck trauma which caused increased symptoms. Dr. Pitman also diagnosed mid-thoracic
and neck pain, indicating that a disc osteophyte complex at C6-7 could be contributing to some
of appellant’s pain problem, which he suspected was directly related from the head and neck
injury in 2008.
On December 27, 2010 Dr. Engles reported that on January 24, 2008 appellant tangled
his foot in cords and fell forward, striking his head on a desk and since had a significant decline
in neurologic function. He advised that a cervical myelogram with postmyelogram CT scan
study demonstrated a very solid fusion and tethering of the spinal cord with three points of
fixation at the site of his old injury.8 Dr. Engles opined that the January 2008 fall placed
appellant’s neck suddenly in hyperextension which stretched his cord and produced a profound
injury without overt evidence of trauma on plain films or on an MRI scan study. He concluded
that appellant’s current neurologic problems were caused by appellant’s fall at work on
January 24, 2008 and recommended referral to a physiatrist for conservative management.9
On May 13, 2011 OWCP denied modification of its prior decision. Appellant requested
reconsideration. He stated that he was not under medical care for 15 years before the January 24,
2008 incident such that there were no medical records with his baseline condition before the
incident. Appellant noted being in a 1988 automobile accident, but had no residuals, and
afterward played football and completed basic training. In 2003, he fell, broke his left arm, was
placed in a cast, and returned to work a few weeks later. Appellant did not recall who treated
him. He also submitted medical evidence. A December 6, 2010 cervical myelogram showed an
inferior extradural defect at C5-6. A cervical CT scan study of the same date showed
postfracture and postsurgical changes from C4 through C6 and a disc bulge at C6-7, which could
cause some neural foraminal narrowing of unknown significance, and no cord impingement. An
addendum advised that at the peripheral aspect of the cord at the site of the prior trauma near the
C5 level appeared to enhance somewhat and could be related to granulation tissue or changes in
the nature of the tissue at this area. No discrete syrinx was identified.
In treatment notes dated January 18 to August 25, 2011, Dr. A.J. Bisson, a Boardcertified physiatrist, noted the 1990 boating accident and that on January 24, 2008 appellant was
struck on the back of his head by files falling. Appellant reported that his condition had declined
since January 2008 with progressive weakness in his arms and legs and occasional episodes of
urinary and bowel incontinence. He initially diagnosed spastic quadriparesis related to cervical
spinal cord injury in 1990, status post surgical intervention, and gait difficulties caused by the
1990 injury. On April 12, 2011 Dr. Bisson opined that the workplace injury of January 24, 2008

8

An August 5, 2010 cervical spine CT scan showed a solid fusion at C4-6. An August 18, 2010 cervical spine
MRI scan showed increased T2 weighted signal that likely represented gliosis and myelomalacia from C4 to the C6;
postoperative changes; and the possibility of a syrinx dorsal to the lower C6 vertebral body.
9

The record also includes one page of a September 20, 2010 report from Dr. Pitman’s office, noting that
appellant was seen in follow up.

7

resulted in an exacerbation of appellant’s medical condition and, as such, the issues he currently
dealt with would be employment related.10
On October 25, 2011 OWCP denied modification of the prior decision. Appellant
requested reconsideration and submitted Dr. Bisson’s November 22, 2011 report that reiterated
his diagnoses and opined that appellant’s recent symptoms were due to the January 24, 2008
work incident when files struck him on the head. On December 6, 2011 Dr. Bisson noted that
appellant contacted him and stated that, files did not fall on his head but, rather, he tripped over a
file on the floor, fell forward, and hit his head on the desk.
By decision dated February 27, 2012, OWCP denied modification of the prior decisions.
Appellant, through counsel, requested reconsideration on December 11, 2012. In a
January 8, 2010 report, Dr. Glenn L. Smith, a Board-certified osteopath specializing in
orthopedic surgery, noted appellant’s report of the 1990 injury with ensuing partial paralysis, and
that he tripped and fell at work, hitting his head on a desk, which caused ongoing problems. He
described appellant’s complaint of achy and burning neck pain. Dr. Smith noted examination
findings of guarded, painful cervical spine range of motion, tenderness, and muscle spasm, and
advised that a cervical spine x-ray demonstrated postsurgical changes. He diagnosed status post
fusion with residual paralysis and partial recovery.
In January 28 and February 15, 2012 reports, Dr. Graciela Gallardo, Board-certified in
family medicine, reported seeing appellant for chronic pain. She noted a history of cervical
spine fusion in 1990 and described examination findings. Dr. Gallardo diagnosed chronic neck
and thoracic back pain, chronic pain syndrome, and high risk medication management.
In a February 5, 2013 report to counsel, Dr. Engles repeated the history of the July 6,
1990 accident and fusion surgery. He indicated that, over the next few years, he interacted with
appellant by correspondence and telephone, and that he next saw appellant on January 26, 2009
when appellant reported a significant deterioration in neurologic function over the past year.
Dr. Engles reported his findings that day. He opined that appellant had a profound injury in
1990, but did well until the January 24, 2008 fall at work which caused an immediate
deterioration in his neurologic function. Dr. Engles advised that a December 6, 2010 cervical
myelogram with postmyelogram CT scan showed clear abnormalities of appellant’s spinal cord
at the C5 level near the point of his maximum injury in 1990, stating that his spinal cord was
tethered to the dura at three points from post-traumatic scarring. He continued:
“The medical literature shows evidence that spinal cords can be tethered by scar
tissue after traumatic injury and from surgery. The medical literature notes that
there can be delayed post[-]traumatic decline in neurologic function from this
tethering. The medical literature also notes that there is a physiologic basis for a
tethered spinal cord injury due to local spinal cord ischemia and impairment due
to increased strain from sheer forces that are caused by local external injury of the
10

Appellant also submitted a July 28, 2011 treatment note from Dr. Richard E. Herlihy, a Board-certified
urologist, which is illegible. On August 25, 2011 Dr. Bisson noted that Dr. Herlihy did not feel that there was
anything to offer appellant regarding his urinary incontinence.

8

spinal cord. The spinal cord has been noted in normal motion to stretch in its
length and a stretch associated injury is accepted as the principal factor of
myelopathy in experimental models of neural injury, tethered cord syndrome, and
diffuse axonal injury. In my opinion, [appellant] had a traumatic quadriplegia
from a fracture at the C5 level in 1990. [Appellant] was quadriplegic. He had
surgery and did show recovery although incomplete. This abruptly changed with
the single fall on January 24, 2008 while [appellant] was employed with [the
employing establishment]. It is my opinion that the hyperextension mechanism of
action stretched his tethered spinal cord to a degree that axonal injury resulted
causing his reported new impairment and decline of neurologic function. This
was a new injury aggravating [appellant’s] preexisting but quiescent tethered
myelopathic cord.”
Dr. Engles indicated that the original diagnosis due to the 1990 injury was closed fracture of C5
with cord injury and that his current diagnosis was spinal cord injury without evidence of spinal
bone injury. He attached a list of supportive medical literature.
In a decision dated February 25, 2013, OWCP denied modification of the prior decisions.
On February 18, 2014 appellant requested reconsideration. He submitted an October 18,
2010 report in which Dr. Caple A. Spence, a Board-certified neurosurgeon, noted that appellant
was in a 1990 boating accident that caused quadriparesis but that he had improved until about
2008 when he struck his head on a file and since that time had difficulty with weakness.
Dr. Spence indicated that from the history it appeared that appellant had an incomplete BrownSequard syndrome, and since he struck his head while tripping over files at work, he had
increased falling, worsening gait, and associated leg weakness with increased back pain. He
diagnosed Brown-Sequard syndrome, status post cord injury; hemiparesis secondary to cord
injury; and cervicalgia. Dr. Spence indicated that no additional surgery was needed.
On February 5, 2014 Dr. Engles essentially repeated his previous conclusions. He stated
that September 2005 and 2006 urgent care records did not mention any impairment of motor or
ambulatory function. Dr. Engles opined that appellant’s fall at home when he fractured his arm
did not have any untoward injury to his head and neck. He also noted reviewing ambulance
service and emergency room records from the January 24, 2008 injury. Dr. Engles stated:
“My interpretation of these records is that they support [appellant’s] report of his
injury. It supports his report that there was indeed a change in his neurologic
function after the injury. It supports [appellant’s] report that he struck his head in
the course of the fall with secondary hyperextension movement of the neck. The
neurologic examination in the emergency room is not detailed, but only refers to
what [appellant] reported to the [physician]. The records do support the causal
relation of his slip and fall on the file folders at work, striking his head,
hyperextending his neck, and the resultant deterioration in his neurologic

9

function. This is not a result of natural progression but rather a significant
traumatic aggravation of his preexisting Brown-Sequard syndrome and spinal
cord injury, which was prior to the fall, stable, and functional.”
He indicated that an example for a spinal cord injury without a bony injury was the rare situation
of adult tethered cords, which are most commonly tethered at the sacral end. These typically
involve adults with falls or flexion injuries and subsequent new neurologic deficit in the legs or a
paraparesis with some loss of bowel or bladder control. Dr. Engles noted that appellant’s
tethered cord was an unusual and uncommon traumatic tethering and scarring of his injured
cervical spinal cord at the level of his cervical spine injury, which was also the level of his
surgery and that had been quiescent and stable until he hyperextended his neck in the 2008 fall
which stretched his spinal cord, causing the injury. He concluded that this was known and
described in the literature, but was rare and not seen very often. Dr. Engles reiterated that the
fall on January 24, 2008 stretched appellant’s spinal cord such that an axonal injury resulted in
new impairment and decline of neurologic function and again attached the list of supportive
publications.
In a merit decision dated May 23, 2014, OWCP denied modification of the prior
decisions. It found Dr. Engles’ opinion of insufficient rationale to support a causal relationship
between the January 24, 2008 work injury and any diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed is causally
related to the employment injury. These are the essential elements of each and every
compensation claim, regardless of whether the asserted claim involves traumatic injury or
occupational disease, an employee must satisfy this burden of proof.11
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.12 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place, and in
the manner alleged, by a preponderance of the reliable, probative, and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that

11

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

12

20 C.F.R. § 10.5(ee) (1999, 2011); Ellen L. Noble, 55 ECAB 530 (2004).

10

the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.13
Under FECA, when employment factors cause an aggravation of an underlying physical
condition, the employee is entitled to compensation for the periods of disability related to the
aggravation.14 Where the medical evidence supports an aggravation or acceleration of an
underlying condition precipitated by working conditions or injuries, such disability is
compensable.15 However, the normal progression of untreated disease cannot be stated to
constitute “aggravation” of a condition merely because the performance of normal work duties
reveal the underlying condition.16 For the conditions of employment to bring about an
aggravation of preexisting disease, the employment must cause acceleration of the disease or
precipitate disability.17 When the aggravation is temporary and leaves no permanent residuals,
compensation is not payable for periods after the aggravation ceased.18
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.19 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.20 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.21
ANALYSIS
The record supports that the January 24, 2008 work incident occurred as alleged.
Appellant indicated that he slipped on a file folder and fell, striking the left side of his head on a
desk. However, the medical evidence is insufficient to establish that the January 24, 2008
employment incident caused or aggravated a diagnosed medical condition.
Appellant sustained a severe nonemployment-related C5 cervical spine fracture in
July 1990. He had cervical spine fusion surgery at that time and, at discharge, was diagnosed
13

Gary J. Watling, 52 ECAB 278 (2001).

14

Raymond W. Behrens, 50 ECAB 221, 222 (1999); James L. Hearn, 29 ECAB 278, 287 (1978).

15

A.C., Docket No. 08-1453 (issued November 18, 2008).

16

See Glenn C. Chasteen, 42 ECAB 493 (1991).

17

Supra note 15.

18

Raymond W. Behrens, supra note 14.

19

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

20

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

21

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

11

with C6 incomplete spinal cord injury and C5 fracture. Appellant then underwent physical
rehabilitation. The rehabilitation records, however, are not in the case record before the Board.
Appellant also fell and fractured his left elbow in 2003. There is no medical evidence of record
regarding this prior injury. Appellant asserted that his quadriplegic condition had stabilized and
that he needed no significant medical care after he was discharged from rehabilitation. The
record contains no contemporaneous medical evidence regarding appellant’s condition,
neurological or otherwise, between his 1990 hospital discharge and the emergency room records
of January 24, 2008. The ambulance report from January 24, 2008 is also not in the record.
Thus, there is no medical evidence to establish appellant’s neurological baseline following the
1990, injury or his condition in January 2008 prior to the fall at work. Without documentation
bridging appellant’s medical condition during this period, it is difficult to assess his baseline
condition prior to that time.22
The medical evidence of record most contemporaneous with the January 24, 2008 fall are
the January 24, 2008 emergency room records. Dr. Passanante described the remote cervical
injury and appellant’s development of Brown-Sequard syndrome with residual left leg weakness.
He related appellant’s report that he slipped on file folders and struck his head as he fell, and
since the fall, he felt tingling in the legs, felt unsteady when ambulating, had muscle spasms, and
denied neck pain. Examination demonstrated no swelling or tenderness of the cervical spine
with chronic limited range of motion, chronic changes to the left leg, and right sensory deficit.
Dr. Passanante stated that a CT scan study of the cervical spine that day demonstrated
postoperative changes. Appellant was discharged in stable condition with a diagnosis of acute
closed head injury and paresthesias. Discharge instructions were for a minor head injury.
Dr. Passanante did not clearly state whether the work incident caused or aggravated a specific
condition.
Dr. Engles provided the most extensive opinion on causal relationship. He, however, did
not see or examine appellant from the time of his hospital discharge in August 1990 until
January 2009. While Dr. Engles indicated that appellant had done well since his 1991 discharge
from rehabilitation until the January 2008 fall, this opinion was based solely on appellant’s
description. A physician’s report is of little probative value when it is based on a claimant’s
belief rather than the physician’s independent judgment.23 Dr. Engles also noted two
descriptions of the January 2008 injury. He first indicated that appellant tangled his foot in cords
when he fell and later reported a history that appellant slipped on a file on January 24, 2008.
Dr. Engles advised that a December 6, 2010 myelogram with postmyelogram CT scan showed
clear abnormalities of appellant’s spinal cord at C5 near the point of his maximum injury in
1990. He indicated that appellant sustained an unusual and uncommon traumatic tethering and
scarring of his injured cervical spinal cord at the level of his cervical spine injury. Dr. Engles
noted that the spinal cord at that level had been quiescent and stable until appellant
hyperextended his neck with the 2008 fall which stretched his spinal cord, causing injury. He
asserted that medical literature confirmed that a stretch associated cord injury is accepted to be a
principal factor of neural injury, tethered cord syndrome, and diffuse axonal injury. Dr. Engles
noted that appellant’s condition abruptly changed after the January 24, 2008 work fall, opining
22

See C.W., Docket No. 14-730 (issued January 8, 2015).

23

Earl David Seale, 49 ECAB 152 (1997).

12

that this aggravated his preexisting but quiescent tethered cord.
He explained that
hyperextension stretched appellant’s tethered spinal cord to a degree that axonal injury resulted
and this caused new impairment and a decline of neurologic function. Dr. Engles also noted
reviewing the January 24, 2008 ambulance record and medical records from 2005 and 2006.
These records, however, are not in the case record before the Board. As Dr. Engles had not
examined appellant since August 1990, he was not familiar with appellant’s baseline
neurological condition prior to the fall at work and he could not explain how specific medical
literature applied to appellant’s specific situation. Furthermore, he did not mention appellant’s
elbow fracture in 2003 or a history that he fell approximately once a year, as reported by
Dr. Ellis.24 For these reasons, Dr. Engles’ opinion is of insufficient probative value to establish
that appellant’s current condition was caused by the January 24, 2008 slip and fall.
Appellant submitted a number of reports from Dr. Ellis beginning on March 14, 2008.
Dr. Ellis noted appellant’s preexisting condition and indicated that he had developed more
weakness in his left arm and leg with continued neck and back pain and tingling of the bottoms
of both feet and left toe drag after the January 2008 fall. Therefore, caused a sudden jarring that
aggravated the preexisting spinal cord injury, opining that appellant’s spinal cord could be very
sensitive to even small trauma. Dr. Ellis indicated that appellant’s current symptomatology was
consistent with a previously impaired, very sensitive spinal cord that was reinjured, causing more
symptomatology. He, however, exhibited limited knowledge of appellant’s condition prior to the
January 24, 2008 fall at work and did not explain how the work incident aggravated his condition
and why his current conditions or symptoms were not due solely to progression of the
preexisting condition and his other nonemployment-related falls and injuries. A mere conclusion
without the necessary rationale explaining how and why the physician believes that a claimant’s
accepted exposure could result in a diagnosed condition is not sufficient to meet a claimant’s
burden of proof.25
Reports from other physicians are also insufficient to establish the claim. On February 4,
2008 Dr. Duchamp reported findings and advised that, although appellant fell on January 24,
2008, it was difficult to evaluate his condition because he did not have normal sensation from his
previous injuries. On February 27, 2008 he reported that appellant’s neurologic change with foot
numbness and incontinence could have been caused by a back sprain due to the January 24, 2008
fall at work. While the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should
be expressed in terms of a reasonable degree of medical certainty.26 As Dr. Duchamp couched
his opinion in equivocal terms, his reports are insufficient to establish a neurological injury on
January 24, 2008. Dr. Herding’s reports dated February 14 to May 13, 2008 are also of little
probative value. On February 19, 2008 he diagnosed aggravation of preexisting condition and
checked a form box “yes,” indicating that the condition was caused or aggravated by
24

See L.G., Docket No. 09-1692 (issued August 11, 2010) (to be of probative value a medical opinion must be
based on a complete and accurate factual and medical background; medical opinions based on an incomplete or
inaccurate history are of diminished probative value).
25

J.D., Docket No. 14-2061 (issued February 27, 2015).

26

Ricky S. Storms, 52 ECAB 349 (2001).

13

employment. The Board has long held that when a physician’s opinion on causal relationship
consists only of checking “yes” to a form question, that opinion has little probative value and is
insufficient to establish a causal relationship.27 Dr. Herding opined that the January 2008 fall
was a possible recurrent spinal injury, possibly aggravating appellant’s preexisting condition but
this opinion is also speculative and lacks rationale explaining the reasons for the opinion.
Likewise, the reports from Dr. Pitman, are also speculative. He first saw appellant on
January 22, 2010, two years after the fall at work. Dr. Pitman described a history that included
the 1990 injury and that appellant had an additional head and neck injury in January 2008, after
which he developed increased neurological symptoms including increased falling and frequent
bowel and bladder incontinence. He stated that he “suspected” appellant had a flexion/extension
injury in January 2008 with likely additional injury to the spinal cord. On March 10, 2010
Dr. Pitman diagnosed cervical myelopathy and mid-thoracic and neck pain, noting a disc
osteophyte complex at C6-7, which he suspected was directly related to the 2008 injury and
contributing to some of appellant’s pain. He did not explain the basis for his opinion.
Dr. Bisson provided reports dated January 18 to December 26, 2011. He described the
1990 injury and initially reported appellant had a work injury in 2008 when files hit him on the
head and exacerbated his condition. Dr. Bisson noted appellant’s complaint that his condition
had declined since January 2008. He initially diagnosed spastic quadriparesis related to a
cervical spinal cord injury in 1990, status post surgery. Dr. Bisson, however, later stated that the
January 24, 2008 employment injury exacerbated appellant’s medical condition.
On
December 6, 2011 he corrected the history, stating that appellant reported that he tripped over a
file that was on the floor, fell forward, and hit his head on the desk. Dr. Bisson, who did not
examine appellant until three years after the slip and fall at work on January 24, 2008, did not
explain why he initially found that appellant’s condition was due to the 1990 injury. As he did
not provide a sufficient explanation regarding the mechanism of how the January 24, 2008
incident caused appellant’s condition, his opinion is insufficient to meet appellant’s burden of
proof.28
The reports of Drs. Lamkin, Goodrich, Smith, Gallardo, and Spence are insufficient to
meet appellant’s burden of proof as none of these physicians provided an opinion on the cause of
his condition. As such, their opinions are insufficient to establish causal relationship.29
Likewise, numerous diagnostic studies are of limited probative value as they do not address
whether the 2008 work incident caused any diagnosed conditions.
Consequently, appellant has not met his burden of proof. He 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.

27

Supra note 13.

28

See T.H., 59 ECAB 388 (2008).

29

S.E., Docket No. 08-2214 (issued May 6, 2009).

14

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that a
January 24, 2008 slip and fall caused neurological injuries.
ORDER
IT IS HEREBY ORDERED THAT the May 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 12, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________

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

Docket No. 08-128
Issued: June 4, 2008

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 October 16, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ hearing representative’s merit decision dated September 17, 2007
terminating her compensation and medical benefits. Pursuant to 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 the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective April 15, 2007; and (2) whether appellant has any
continuing disability or medical residuals on or after April 15, 2007.
FACTUAL HISTORY
This case has previously been before the Board. The Office accepted appellant’s claim
for aggravation of bulging discs at L3-S1 on April 28, 1989. The Office entered her on the
periodic rolls on April 22, 1991. By decision dated April 24, 1991, the Office denied appellant’s

additional claims for compensation from July 13, 1987 through November 7, 1988. By decision
dated June 29, 1992, finalized July 2, 1992, the Branch of Hearings and Review found that
appellant was not entitled to wage-loss benefits prior to April 7, 1991. In a decision dated
December 21, 1993,1 the Board found that appellant had not submitted sufficient medical
evidence to establish her disability and affirmed the hearing representative’s July 2, 1992
decision. The facts and the circumstances of the case are set out in the Board’s prior decision
and adopted herein by reference.
On February 13, 2004 the Office referred appellant to Dr. Aimee Hachigian-Gould, a
Board-certified orthopedic surgeon, for a second opinion evaluation. Dr. Hachigian-Gould
completed a report on May 12, 2004, noting appellant’s history of injury, medical treatment and
performed a physical examination. She diagnosed chronic lumbosacral strain with sciatica,
degenerative disc disease in the lumbar spine and herniated L5-S1 disc. Dr. Hachigian-Gould
stated, “Her underlying condition was aggravated and altered due to her work activities as
evidenced by progression of her disc bulges and degenerative changes at facet joints of the
lumbosacral spine along with disc space narrowing.” She concluded, “This patient essentially
has had a permanent aggravation of her underlying condition and should be considered
permanently stable at this point.” Dr. Hachigian-Gould opined that appellant could work four
hours a day with restrictions.
Based on this report, the Office proposed to reduce appellant’s compensation benefits
based on her capacity to earn wages as a bookkeeper on March 31, 2005. Appellant disagreed
with this proposal and submitted a May 11, 2005 report from Dr. John Stevens, an attending
family practitioner, who diagnosed lumbar degenerative disc disease at multiple levels as well as
facet degenerative changes contributing to her condition. Dr. Stevens opined that appellant
remained totally disabled and that he did not anticipate improvement.
The Office found that there was a conflict of medical opinion between Dr. HachigianGould and Dr. Stevens regarding appellant’s ability to work. The Office referred appellant to
Dr. James Burton, a Board-certified orthopedic surgeon for an impartial medical examination. In
a report dated July 2, 2005, Dr. Burton reviewed the statement of accepted facts and the medical
records. He performed a physical examination and diagnosed multiple level degenerative disc
disease and herniated disc at L5-S1. Dr. Burton opined that appellant’s present condition was
unrelated to her work activities and that she had sustained a work-related temporary aggravation
of her underlying degenerative condition which ceased six months after her last employment
exposure. He found that appellant could not return to work as a procurement clerk due to her
“chronic worsening degenerative condition, possibly related to [motor vehicle accidents] but not
related to any work injury.” Dr. Burton found that appellant was capable of performing parttime sedentary or light activity.
On July 27, 2005 the Office proposed to terminate appellant’s compensation benefits
based on Dr. Burton’s report. Appellant objected to this proposal and submitted medical
evidence previously of record. By decision dated August 29, 2005, the Office terminated
appellant’s medical and compensation benefits.
1

Docket No. 92-2117 (issued December 21, 1993).

2

Appellant requested an oral hearing. In a report dated May 1, 2006, Dr. Stephens
diagnosed lumbar degenerative disc disease at multiple levels, facet degenerative changes and
myofascial pain with muscle contraction headaches. Dr. Stephens stated that he had reviewed
his treatment notes regarding appellant and that her condition was related to her 1987
employment injury. He also concluded that appellant’s work-related condition was permanent.
Dr. Stephens found appellant to be totally disabled.
By decision dated November 2, 2006, the hearing representative set aside the Office’s
August 29, 2005 termination decision. The hearing representative found that appellant’s claim
should be expanded to include the additional condition of permanent aggravation of underlying
degenerative disc disease as found by Dr. Hachigian-Gould. The Office was directed to revise
the statement of accepted facts and request a supplemental report from Dr. Burton addressing
appellant’s continuing employment residuals and disability.
The Office revised the statement of accepted facts and requested a supplemental report
from Dr. Burton. In a report dated January 19, 2007, Dr. Burton disagreed with the finding that
appellant had sustained a permanent aggravation of her preexisting back condition. He stated,
“One might see a temporary aggravation of one level that may cause a ‘muscle strain’ or perhaps
even a mild disc bulge, but not at three separate levels simultaneously. This simply does not
happen.” Dr. Burton concluded that appellant sustained only a temporary aggravation of her low
back condition which ended two months after her initial injury in 1987. He stated that he
accepted that appellant sustained a permanent aggravation even though he “strongly disagreed
with this finding.” Dr. Burton advised that appellant had only sustained a temporary aggravation
of her back condition that he did not believe that she had any residuals of any work-related
injury. He found that appellant had a degenerative process and her condition would worsen with
passing time. Dr. Burton stated, “The fact that she is gradually getting worse has nothing to do
with the ‘injury’ that occurred in 1987.” He concluded by stating that appellant’s present
condition was not due to her work injury and provided work restrictions.
In a letter dated March 8, 2007, the Office proposed to terminate appellant’s medical and
compensation benefits based on Dr. Burton’s reports. On March 26, 2007 appellant asserted that
Dr. Burton’s rationale that she was merely aging did not change the fact that the Office had
accepted a permanent aggravation of her underlying condition.
By decision dated April 13, 2007, the Office terminated appellant’s compensation
benefits effective April 15, 2007. The Office noted that Dr. Burton’s report was entitled to
special weight as he was the impartial medical examiner and that his January 19, 2007 report
established that appellant no longer had disability or residuals due to her accepted work-related
condition.
Appellant requested a review of the written record on May 2, 2007. By decision dated
September 17, 2007, an Office hearing representative affirmed the April 13, 2007 termination
decision.

3

LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.2 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.3 The
Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4 The
right to medical benefits for an accepted condition is not limited to the period of entitlement of
disability. To terminate authorization for medical treatment, the Office must establish that a
claimant no longer has residuals of an employment-related condition, which require further
medical treatment.5
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for permanent aggravation of degenerative disc
disease at L3-S1. On April 13, 2007 the Office terminated appellant’s compensation and
medical benefits on the grounds that the accepted conditions had resolved. The Office, therefore,
bears the burden of proof to justify a termination of benefits.
A conflict in medical opinion arose between appellant’s attending physician, Dr. Stevens
and Dr. Hachigian-Gould, a Board-certified orthopedic surgeon, and the Office referral
physician, on the extent of appellant’s injury-related disability. To resolve the conflict, the
Office referred appellant to Dr. Burton, a Board-certified orthopedic surgeon, who diagnosed
multilevel degenerative disc disease and herniated disc at L5-S1. He opined that appellant had
sustained only a temporary employment-related aggravation of this condition which ended
between two to six months after her last employment exposure. Dr. Burton stated that she did
not sustain a permanent aggravation of bulging discs at three levels simultaneously. He
explained that appellant was unable to perform her duties as a procurement clerk, but the basis of
her disability was degenerative disc disease, which he repeated was not related to the work
incident of 1987. Dr. Burton reiterated that appellant’s precedent degenerative disc disease was
only temporarily aggravated by her work injury for a few months. He concluded that her current
disability was not related to the work incident of 1987.
As noted by the hearing representative, Dr. Burton is not an impartial medical examiner
for the issue of whether appellant has any continuing residuals due to her accepted employment
injury, as both Dr. Stevens and Dr. Hachigian-Gould agreed that she experienced continuing
medical residuals. The Board finds that Dr. Burton’s opinion cannot be accorded sufficient
weight to establish that appellant has no disability due to her accepted employment injury.
Dr. Burton made statements that were clear and unequivocal, but he offered little medical
rationale to support his stated conclusion. He cited no clinical findings to substantiate his
2

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

3

Mary A. Lowe, 52 ECAB 223, 224 (2001).

4

Gewin C. Hawkins, 52 ECAB 242, 243 (2001).

5

Mary A. Lowe, supra, note 3.

4

assertion. Dr. Burton provided no comparative analysis of appellant’s condition before and after
her injury to show that it had no impact on her underlying back condition. Instead, he concluded
that appellant’s employment injury could not have resulted in a permanent aggravation of her
bulging discs at L3-S1 as found by Dr. Hachigian-Gould and as accepted by the Office.
Therefore, she could have no disability or medical residuals related to such a permanent
aggravation.
The Board has held that medical conclusions unsupported by rationale are of little
probative value. A physician’s opinion on causal relationship must be one of reasonable medical
certainty, but it must also be supported with affirmative evidence, explained by medical rationale
and based on a complete and accurate medical and factual background. In this case, the certainty
with which Dr. Burton expressed his opinion cannot overcome the lack of medical rationale.6
Dr. Burton was of the opinion that appellant’s 1987 employment injury caused only a
temporary aggravation of her preexisting degenerative disc disease and, therefore, her current
disability was unrelated to her employment. However, the Office terminated compensation
benefits on the grounds that all residuals of the accepted employment injury had ceased. This is
not what Dr. Burton reported. The Board has held that it is a denial of administrative due
process for the Office to terminate compensation benefits on the grounds that a claimant no
longer has residuals of an accepted condition, where the record supports that the reason for the
Office’s action was that the condition was not causally related to the claimant’s employment and
should not have been accepted as such. The Office must inform claimants correctly and
accurately of the grounds on which a decision rests, so as to afford them an opportunity to meet,
if they can, any defect appearing therein.7
CONCLUSION
The Board finds that the Office has not met its burden of proof. Dr. Burton offered little
if any medical rationale to support his conclusion that appellant sustained only a temporary
aggravation of degenerative disc disease and his opinion deviated from the statement of accepted
facts. His opinion has little probative value, does not represent the weight of the medical
evidence and is insufficient to resolve the conflict at issue. Further, the Office improperly
terminated benefits on grounds that are inconsistent with the opinion offered by Dr. Burton.

6

Willa M. Frazier, 55 ECAB 379, 384 (2004).

7

Id. at 385; Sylena Wilkes, Docket No. 05-1402 (issued June 2, 2006).

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ORDER
IT IS HEREBY ORDERED THAT the September 17, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 4, 2008
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

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

Docket No. 10-2187
Issued: May 23, 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 August 24, 2010 appellant filed a timely appeal from a July 26, 2010 merit decision
of the Office of Workers’ Compensation Programs granting her a schedule award. Pursuant to
the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than a one percent permanent impairment of the
right arm.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 7, 2010 appellant, then a 50-year-old psychiatric nursing assistant, filed a
claim alleging that on January 6, 2010 she injured her right wrist and arm separating patients
during an altercation. The Office accepted the claim for a sprain of the right elbow and forearm.
In a report dated March 29, 2010, Dr. T. Adam Ginn, an attending Board-certified
orthopedic surgeon, noted that appellant related that her right arm was “pretty much completely
better” with no numbness or tingling and only occasional aching pain with certain types of
grasping. On examination he found no atrophy, good grip strength and full range of both passive
and active motion. Dr. Ginn further found minimal tenderness and a slight loss of strength in
extension with resistance. He diagnosed right elbow lateral epicondylitis and determined that
appellant had reached maximum medical improvement. Dr. Ginn found that, based on state
guidelines, she had a three percent impairment of the right arm due to decreased strength on
wrist extension.
On April 15, 2010 appellant filed a claim for a schedule award. On April 22, 2010 an
Office medical adviser reviewed Dr. Ginn’s report. He discussed the clinical findings of some
right arm pain with grasping, minimal tenderness, slightly decreased strength in extension and
full range of motion. The Office medical adviser noted that Dr. Ginn’s rating of a three percent
impairment due to loss of wrist strength was based on state guidelines rather than the American
Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A.,
Guides). Utilizing Table 15-4 on page 399 of the A.M.A., Guides, he found that appellant had a
class 1 impairment due to lateral epicondylitis, which provided a default value of a one percent
right upper extremity impairment. The Office medical adviser applied grade modifiers for
functional history of one, physical examination of one and clinical studies of one. Using the net
adjustment formula, he determined that appellant should receive no adjustment from the default
grade. The Office medical adviser concluded that she had a one percent right upper extremity
impairment.
On May 10, 2010 Dr. Ginn reiterated that appellant had a three percent right upper
extremity impairment based on the sixth edition of the A.M.A., Guides.
On May 21, 2010 the Office requested that Dr. Ginn review the Office medical adviser’s
report and explain whether he agreed or disagreed with his conclusion. If Dr. Ginn disagreed
with the Office medical adviser, he should submit a supplemental report explaining his
impairment evaluation with supporting citations to the sixth edition of the A.M.A., Guides. In a
June 7, 2010 response, he related that he did not disagree with the findings of the Office medical
adviser based on the sixth edition of the A.M.A., Guides.
By decision dated July 26, 2010, the Office granted appellant a schedule award for a one
percent permanent impairment of the right arm. The period of the award ran for 3.12 weeks
from March 29 to April 19, 2010.
On appeal appellant contends that the Office should use the impairment percentage
provided by her physician rather than a physician who did not perform an examination. She

2

asserts that her arm continues to hurt and that occasionally she experiences difficulty grasping
objects.
LEGAL PRECEDENT
The schedule award provision of the Act,2 and its implementing federal regulations,3 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
the Act does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 As of May 1,
2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).6 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
ANALYSIS
The Office accepted that appellant sustained a sprain of the right elbow and forearm due
to a January 6, 2010 employment injury. Appellant submitted a March 29, 2010 impairment
evaluation from Dr. Ginn, who diagnosed right lateral epicondylitis and found that she had
reached maximum medical improvement. Dr. Ginn measured full range of motion without
atrophy or loss of grip strength and found that appellant had minimal lateral tenderness and loss
of strength in extension with resistance. He opined that appellant had a three percent impairment
of the right upper extremity based on the state workers’ compensation guidelines. The Office,
however, utilizes the sixth edition of the A.M.A., Guides in determining the extent of permanent
impairment.7 A medical opinion not based on the appropriate edition of the A.M.A., Guides has
diminished probative value in determining the extent of a claimant’s permanent impairment.8
An Office medical adviser reviewed the evidence and applied the sixth edition of the
A.M.A., Guides to Dr. Ginn’s clinical findings. He identified a class 1 impairment due to lateral
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

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

7

See supra note 5.

8

See Fritz A. Klein, 53 ECAB 642 (2002).

3

epicondylitis using the elbow regional grid set forth in Table 15-4, which yielded a default value
of one percent.9 After determining the impairment class and default grade, the Office medical
adviser considered whether there were any applicable grade adjustments for GMFH, GMPE and
GMCS. He found a grade modifier of one for functional history, physical examination and
clinical studies. Utilizing the net adjustment formula discussed above, (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX), or (1-1) + (1-1) + (1-1) = 0, yielded a zero adjustment. The
Office medical adviser, consequently, determined that appellant had a one percent permanent
impairment of the right upper extremity.
On May 10, 2010 Dr. Ginn related that appellant had a three percent impairment of the
right upper extremity under the sixth edition of the A.M.A., Guides. On June 7, 2010, however,
at the request of the Office, Dr. Ginn reviewed the Office medical adviser’s May 21, 2010 report
and concurred with his findings. There is no probative medical evidence to establish that
appellant has more than a one percent right upper extremity impairment.
On appeal appellant contends that the Office should have awarded her the percentage of
impairment found by Dr. Ginn. As noted, however, Dr. Ginn did not apply the sixth edition of
the A.M.A., Guides and his rating is of diminished probative value. On June 7, 2010 he
concurred with the Office medical adviser’s finding that she had no more than a one percent right
upper extremity impairment.
Appellant also maintains that she continues to experience right arm pain and difficulty
grasping objects. The calculation of a schedule award, however, does not take into account
factors such limitations on daily activities.10 The number of weeks of compensation for a
schedule award is determined by the compensation schedule at 5 U.S.C. § 8107(c). For complete
loss of use of the arm, the maximum number of weeks of compensation is 312 weeks. Since
appellant’s permanent impairment of the arm is one percent, she is entitled to one percent of 312
weeks, or 3.12 weeks of compensation.
CONCLUSION
The Board finds that appellant has no more than a one percent permanent impairment of
the right arm.

9

The Office accepted that appellant sustained a right elbow and forearm sprain rather than epicondylitis.
However, the elbow regional grid at Table 15-4 on page 398 sets forth identical impairment values for an elbow
sprain/strain as for lateral or medial epicondylitis of the elbow.
10

See James A. Castagno, 53 ECAB 417 (2002).

4

ORDER
IT IS HEREBY ORDERED THAT the July 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 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

5