United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.N., Appellant
and
U.S. POSTAL SERVICE, ASTRODOME
STATION, Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1439
Issued: May 3, 2017

Case Submitted on the Record

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

JURISDICTION
On July 5, 2016 appellant, through counsel, filed a timely appeal from a February 12,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
bilateral brachial plexus impingement; reflex spasm in the neck, back, shoulder girdle, and
1

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

5 U.S.C. § 8101 et seq.

buttocks; bilateral sciatic nerve impingement; deranged disc in the back, and bilateral L5-S1
impingement causally related to the accepted October 5, 2007 employment injury.
On appeal counsel asserts that the February 12, 2016 decision is contrary to fact and law.
FACTUAL HISTORY
On October 5, 2007 appellant, then a 33-year-old letter carrier, injured her back on
October 5, 2007 when she was pulling mail for her route. She began modified duty. On
November 21, 2007 OWCP accepted sprain of back, thoracic region. The claim was
subsequently expanded to include thoracic disc displacement.
In October 10 and 16, 2007 reports, Dr. Asaf R. Qadeer, Board-certified in family
medicine, noted that on October 5, 2007 appellant injured her back between the shoulder blades
while pulling mail. He diagnosed acute back sprain with muscle spasm. October 10, 2007
thoracic spine x-rays were normal.3 Dr. Richard Francis, a Board-certified orthopedic surgeon,
provided medical care commencing June 28, 2008.
In reports dated September 22, 2008, Dr. Ulysses W. Watkins Jr., a family physician,
noted a history that appellant had been in a motor vehicle accident. Following physical
examination, he diagnosed upper and lower back pain, headaches, chest pain, cervical pain, and
left shoulder pain. A skull x-ray that day was negative.
Appellant stopped her modified-duty work on September 23, 2008 and filed a claim for
compensation (Form CA-7). She received wage-loss compensation effective that date, and was
placed on the periodic compensation rolls.
On September 29, 2008 appellant began pain management with Dr. Alan Moore, Boardcertified in anesthesiology and pain medicine. Dr. Moore diagnosed displacement of thoracic
intervertebral disc without myelopathy and scheduled steroid injections at T8-9.
Dr. M. Athari, a Board-certified neurologist, saw appellant on October 2, 2008 and
diagnosed chronic back pain, post-traumatic myofascitis, possible thoracic herniated disc, and
possible fibromyalgia. November 20, 2008 lower extremity electrodiagnostic testing showed
evidence of T8-9 nerve root irritation on the left. On January 29, 2009 OWCP accepted
displacement of the thoracic spine at T8-9.
Appellant continued treatment with Drs. Moore, Francis, and Athari. Dr. Moore
additionally diagnosed thoracolumbar myofascial pain syndrome. In a March 19, 2009 report,
Dr. Francis also noted appellant’s report that she had a low back injury at work in 2001, but had
recovered from this. An April 10, 2009 thoracic spine magnetic resonance imaging (MRI) scan,
showed posterior bulging discs at T8-9 and T11-12.

3

The record also includes a June 1, 2007 x-ray of the thoracic spine that demonstrated minimal left lower thoracic
scoliosis, and a lumbar x-ray that day demonstrated no abnormality.

2

On April 30, 2009 Dr. Stephen I. Esses, a Board-certified orthopedic surgeon, noted his
review of the MRI scan revealed no spinal cord or nerve root compression.
OWCP referred appellant to Dr. Gary C. Freeman, a Board-certified orthopedist, for a
second opinion evaluation. In a May 5, 2009 report, he related that on October 5, 2007
appellant, who was on light duty at the time, felt pain in her back after pulling a table, and now
her entire back hurt. Dr. Freeman reviewed the medical record including MRI scans and
performed physical examination. He advised that physical examination demonstrated symptom
magnification, no positive findings, and that appellant had age-appropriate degenerative bulging
at T8-9 and T10-11 and no displacement of thoracic intervertebral disc. Dr. Freeman found no
indication of a herniated disc, fibromyalgia, or chronic myofasciitis, and diagnosed chronic midthoracic pain. He concluded that the October 5, 2007 employment injury had resolved without
residuals and that appellant could return to her usual job duties.4
OWCP found that a conflict in medical opinion was created regarding appellant’s work
abilities, and in October 2009 referred her to Dr. Frank L. Barnes, a Board-certified orthopedic
surgeon, for an impartial medical evaluation. In a November 19, 2009 report, Dr. Barnes noted
his medical record review5 and appellant’s complaint of back pain. He noted the history of
injury, the 2008 motor vehicle accident, and appellant’s November 2008 lap-band procedure.
Following examination and review of the MRI scans, Dr. Barnes diagnosed cervical, thoracic,
and lumbar spine degenerative disc disease, and T8 nerve irritation. He opined that appellant
had no objective findings of the work injury based on his examination, but that there was
radiology evidence of a bulging T8-9 disc and electromyogram/nerve conduction velocity
(EMG/NCV) evidence. Dr. Barnes concluded that appellant could perform modified duty for
eight hours daily.6
In an April 5, 2010 addendum, Dr. Barnes acknowledged that appellant had a bulging
thoracic T8-9 disc. He advised, however, that there was no evidence on examination of any
4

A May 5, 2009 cervical spine MRI scan showed mild disc protrusions at C4-5, C5-6, and C6-7 that mildly
impressed the thecal sac. A lumbar MRI scan of the same date showed mild protrusion at L4-5 which mildly
impressed the thecal sac, a mild bulge at L5-S1 that mildly impressed the thecal sac. Loss of lumbar lordosis,
bilateral facet arthrosis, and mild bilateral neural foraminal narrowing was seen. A May 7, 2009 thoracic MRI scan
showed moderate thoracic hyperkyphosis, a moderate protrusion at T8-9 that moderately impressed the thecal sac
and appeared to contact the cord, and mild disc protrusions at T5-6 and T11-12 that mildly impressed the thecal sac.
A June 25, 2009 FCE was invalid due to excessive magnified symptoms. On July 16, 2009 the employing
establishment offered appellant a modified job that she declined.
5

Dr. Barnes indicated that he could not review the OIG surveillance video as it was password-protected.

6

On December 10, 2009 OWCP proposed to terminate appellant’s compensation based on Dr. Barnes’ impartial
medical opinion. Appellant disagreed and asserted that Dr. Barnes did not properly review the medical record, that
stress from her claim made her condition worse, and that the medical evidence established continuing disability. On
January 12, 2010 OWCP terminated appellant’s wage-loss and medical benefits, effective January 17, 2010. It
found that the weight of the medical evidence rested with the opinion of Dr. Barnes. Appellant requested a hearing.
In a March 16, 2010 decision, an OWCP hearing representative reversed the January 12, 2010 decision. She found
that the opinion of Dr. Freeman, who performed the second opinion evaluation, was of no probative value as he did
not base his medical conclusions on the statement of accepted facts. Appellant was returned to the periodic
compensation rolls with retroactive compensation. In April 2010 the employing establishment offered appellant a
modified letter carrier position which she declined.

3

neurologic loss of function that was consistent with a thoracic spine problem. Dr. Barnes
specifically noted that appellant had four indicators of probable symptom magnification: lumbar
pain with axial compression, inconsistent straight leg raising signs, pain with pelvic
compression, and simulated rotation experienced in her lower back. He concluded that, although
appellant had a bulging thoracic disc at T8-9 that could have occurred at the time of injury, this
could not be demonstrated to be causing her pain which, she indicated was in her neck,
shoulders, and upper thoracic spine, which were above the area of the bulging disc.
On April 26, 2010 Dr. John W. Ellis, a Board-certified family physician, reported the
history of the October 5, 2007 work injury, and that appellant had been in motor vehicle
accidents in 2005 and 2008. Current complaints included severe pain between her shoulders, the
base of her neck, and buttocks as well as sacroiliac pain and headaches. Dr. Ellis noted review
of medical evidence and described findings. He diagnosed work-related muscle tendon unit
strain of the thoracic spine, deranged disc at T8-9, reflex spasm of the neck and shoulder girdles
causing bilateral brachial plexus impingement and reflex spasm in the back causing tightness of
the back, buttocks, and sacroiliac ligaments with bilateral sciatic nerve impingement.7
Appellant continued pain management with Dr. Moore. On May 12, 2010 he additionally
diagnosed displacement of cervical and lumbar intervertebral disc without myelopathy, thoracic
spinal pain, thoracic spondylosis without myelopathy, thoracolumbar myofascial pain syndrome,
and lumbar radiculitis. Dr. Moore advised that her condition was worsening. A June 25, 2010
MRI scan of the lumbar spine demonstrated mild disc bulges at L3-4, L4-5, and L5-S1 mild
impressing on the thecal sac.
On July 6, 2010 appellant began treatment with Dr. James D. Key, a Board-certified
orthopedic surgeon. He noted a history that lifting cases of mail caused a thoracic herniated disc.
Findings included decreased thoracic and lumbar spine range of motion, altered gait and balance
secondary to low back pain, and tenderness on spinal examination. Dr. Key diagnosed brachial
neuritis or radiculitis; lumbar neuritis/radiculitis/radiculopathy; lumbar herniated disc; status
postlaminectomy syndrome; spinal instability L4 and L5-S1; failed back surgery syndrome;
muscle spasm and myofascial pain syndrome of paraspinal musculature; muscle weakness,
general, traumatic, antalgic; neck, thoracic spine, low back, sacroiliac joint, shoulder, elbow,
wrist, hip, knee, and ankle/foot pain; nonallopathic lesion articular dysfunction/biomechanical
lesion pelvic region (joint); internal derangement of knee; and chronic pain. He recommended
MRI scans of both shoulders.
OWCP found that a conflict in the medical evidence was created between Dr. Barnes and
Dr. Athari regarding appellant’s work-related disability and referred her to Dr. Grant McKeever,
a Board-certified orthopedic surgeon. In a July 23, 2010 report, Dr. McKeever diagnosed
psychophysiologic spine pain and advised that the October 5, 2007 spine strain would have
resolved within a few weeks of her injury. He opined that appellant could return to her usual
letter carrier job. On September 15, 2010 OWCP proposed to terminate appellant’s wage-loss
compensation, based on Dr. McKeever’s opinion. It finalized the termination on October 15,
2010, effective October 24, 2010. Counsel requested a hearing. In a December 9, 2010 report,
7

Dr. Ellis also assessed appellant’s permanent impairment for schedule award purposes. Matters pertaining to a
schedule award are not before the Board on the present appeal.

4

Dr. Ellis advised that appellant’s condition had worsened since he last saw her on April 26, 2010.
He advised that she had significant limitations and was permanently and totally disabled. In a
second December 9, 2010 report, Dr. Ellis repeated the history of injury and appellant’s current
complaints that were in his April 26, 2010 report, and noted that she continued to receive pain
management from Dr. Moore. He noted his review of medical evidence and provided
examination findings, noting decreased sensation of the T7 and T8 nerve roots bilaterally, point
tenderness of thoracic interspinous ligaments with palpable spasm of the paraspinous muscles in
the mid and lower thoracic regions, mild spasm of the cervical and supper thoracic regions, and
moderate spasm of the lumbar paraspinous muscles. Dr. Ellis further found tightness of the
shoulder girdle muscles, tenderness over the iliolumbar and sacroiliac ligaments with diminished
two-point discrimination and positive straight leg raising. He indicated that the accepted
conditions were muscle tendon unit strain of the thoracic spine, derangement disc at T8-T9, and
bilateral T8 and T9 spinal nerve root impingement. Dr. Ellis advised that additional conditions
should be accepted: reflex spasm in the neck and shoulder girdles; bilateral brachial plexus
impingement due to spasms of the shoulder girdle muscles; reflex spasm in the back and
buttocks; bilateral sciatic nerve impingement; deranged discs in the back due to continued
tightness of the back; and bilateral L5 and S1 spinal nerve impingement. He opined that these
conditions were causally related to the work injury because appellant had an acute injury to the
T8-9 thoracic disc which caused the paraspinous muscles in the thoracic and neck areas to
become very tight and this caused brachial plexus impingement due to the tight muscles in the
thoracic, cervical, and shoulder girdle area. Dr. Ellis maintained that continued pain in the spinal
nerves caused the lower back to stay in spasm which caused tightness in the iliolumbar and
sacroiliac ligaments and the buttocks muscles which led to bilateral sciatic nerve impingement,
and that the continued tightness in her back caused increased pressure on the lumbar discs which
caused the discs to impinge upon the bilateral L5 and S1 spinal nerve roots leading to
impairment of the L5 and S1 spinal nerve roots bilaterally. He also provided an impairment
evaluation.
Counsel requested a hearing before an OWCP hearing representative and submitted a
May 3, 2010 note in which Dr. Ellis advised that appellant was totally disabled and needed
further treatment. A hearing was held on February 9, 2011.
In a March 31, 2011 decision, a hearing representative reversed the termination of wageloss compensation benefits.8 He found the opinion of Dr. McKeever, the referee physician,
insufficient to resolve the medical conflict because he did not address whether the accepted
displaced disc at T8-9 had resolved or address appellant’s cervical, shoulder, brachial plexus, and
lower back conditions. On remand OWCP was also to determine whether additional conditions
should be accepted. The hearing representative found that Dr. McKeever was a second opinion
physician with respect to whether additional conditions should be accepted. OWCP reinstated
benefits retroactive to the date of termination and appellant was returned to the periodic
compensation rolls.
In a May 31, 2011 report, Dr. Dan K. Eidman, an attending Board-certified orthopedic
surgeon, noted the history of injury and appellant’s complaints of back pain, anxiety, depression,
8

See id.

5

and poor sleep. He noted tenderness in the cervical, thoracic, and lumbar spines with positive
straight leg raise testing and decreased range of motion. Dr. Eidman diagnosed thoracic disc
displacement, chronic pain syndrome, depressive disorder, and sleep disturbance.
On June 7, 2011 OWCP asked its medical adviser to comment on whether the conditions
of reflex spasm in the neck and shoulder girdles, bilateral brachial plexus impingement due to
spasms of the shoulder girdle muscles and ligaments, reflex spasm in the back, reflex spasm in
the buttocks, bilateral sciatic nerve impingement, deranged discs in the back due to continued
tightness of the back, and bilateral L5 and S1 spinal nerve impingement were consequential to
the October 5, 2007 employment injury.
In a June 13, 2011 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon and
OWCP medical adviser, described the history of injury. He listed the accepted conditions of
sprain of back, thoracic region, and displacement of thoracic intervertebral disc without
myelopathy and noted his review of the medical record, including Dr. Ellis’ opinion. Dr. Katz
advised that the mechanism for the consequential nature for additional conditions proposed by
Dr. Ellis was unlikely and implausible given the accepted conditions, and the objective evidence
available in the form of EMG/NCV testing. He further indicated that reports submitted by
OWCP referral physicians Dr. Freeman and Dr. Sofia M. Weigel, a Board-certified physiatrist,
did not support the physical findings reported by Dr. Ellis. Dr. Katz concluded that no additional
conditions should be accepted. He also opined that the question of whether appellant could
perform her regular job duties should be based on the opinion of examining physicians.
On August 4, 2011 Dr. Rafi Bidros, Board-certified in general and a plastic surgery,
indicated that appellant had been treated for a medically necessary procedure on July 12, 2011
which rendered her temporarily totally disabled.9
In an August 18, 2011 decision, OWCP found that appellant did not establish that the
additional claimed conditions were due to the October 5, 2007 employment injury. Appellant,
through counsel, timely requested a hearing.
Appellant continued pain management with Dr. Moore. Dr. Moore described complaints,
provided findings, and reiterated diagnoses.
In an October 28, 2011 decision, a hearing representative set aside the August 18, 2011
OWCP decision denying appellant’s claim for additional employment-related conditions. The
hearing representative remanded the case to obtain an additional report from Dr. McKeever to be
followed by a de novo decision.
In a November 14, 2011 report, Dr. Ellis noted appellant’s continued complaints and
described examination findings. He reiterated his conclusions regarding the additional claimed
conditions, noting that appellant did not think she had any residuals from the September 2008
9

On July 11, 2011 OWCP had referred appellant to Dr. McKeever for a repeat impartial evaluation. Appellant
did not keep the appointment due to the unrelated plastic surgery procedure. OWCP recommended that, because
appellant’s condition had changed since the last second opinion evaluation, a new second opinion evaluation was
appropriate.

6

motor vehicle accident. Dr. Ellis concluded that she had been totally disabled due to the
employment injury from September 22, 2008 until October 20, 2010. He also provided lower
extremity impairment evaluations.
On November 21, 2011 Dr. Key noted appellant’s complaints of mid and low back pain
and depression, described physical examination findings, and diagnosed thoracic disc
displacement, chronic pain syndrome, depressive disorder, and sleep disturbance.
A
December 7, 2011 lower extremity EMG/NCV study was unremarkable for lumbar
radiculopathy and/or peripheral entrapment syndromes.
In accordance with the October 28, 2011 hearing representative decision, OWCP notified
appellant in December 2011 that a conflict in medical evidence was created regarding her work
capabilities and again referred her to Dr. McKeever for an impairment evaluation.
Dr. McKeever was also specifically asked to address whether the following conditions were
caused or aggravated by the October 5, 2007 employment injury: reflex spasm in the neck and
shoulder girdles, bilateral brachial plexus impingement due to spasm of the shoulder girdle,
muscles, and ligaments, reflex spasm in the back, reflex spasm in the buttocks, bilateral sciatic
nerve impingement, deranged discs in the back due to continued tightness of the back, and
bilateral L5 and S1 nerve root impingement.
A January 27, 2012 MRI scan of the thoracic spine demonstrated a mild disc protrusions
at T2-3 and T3-4 which mildly impressed the thecal sac, a mild central disc protrusion at T7-8
which mildly impressed the thecal sac and appeared to contact the cord, and a mild
circumferential disc bulge at T10-11 which mildly impressed the thecal sac.
In a treatment note dated February 1, 2012, Dr. Moore noted appellant’s complaint of
radiating lumbar spine pain with additional complaints of muscle pain, spasms, spasticity,
stiffness, weakness, and myalgias. He described physical examination findings, noting
tenderness on palpation of the spine, full upper and lower strength, and normal bilateral passive
straight leg raise. Dr. Moore diagnosed unspecified myalgia and myositis, unspecified
lumbosacral neuritis, pain in the thoracic spine, thoracic disc displacement, cervical disc
displacement, thoracic spondylosis, and lumbar disc displacement.
On February 6, 2012 appellant was evaluated by Dr. Yusuf Mosuro, Board-certified in
anesthesiology and pain medicine. He described the work injury, appellant’s complaint of mid
and lower back pain, and physical examination findings. Dr. Mosuro diagnosed thoracic disc
displacement and chronic pain syndrome, and recommended physical therapy and medication.
On March 5, 2012 he advised that, because a lumbar spine MRI scan showed an L5-S1 disc
protrusion, he asked that this be accepted.
In a March 12, 2012 report, Dr. McKeever noted his review of the statement of accepted
facts, the medical record including diagnostic studies, and the history of injury. He noted that
examination showed complaints of pain with very light pressure over the dorsal and lumbar spine
and head. Dr. McKeever again diagnosed psychophysiologic spine pain with symptom
magnification. He advised that appellant had no residuals of the accepted thoracic sprain and
displaced intervertebral disc. Dr. McKeever noted that, per a functional capacity evaluation

7

(FCE), she was limited to sedentary work and recommended work hardening. A February 9,
2012 FCE, ordered by Dr. McKeever, showed that appellant functioned in a sedentary category.
A March 13, 2012 EMG/NCV study of the lower extremities demonstrated mild chronic
and ongoing bilateral L5-S1 radiculopathy with no evidence of tibial or peroneal
mononeuropathies. An April 5, 2012 cervical spine MRI scan demonstrated a subtle disc bulge
at C5-6.
In an April 27, 2012 decision, OWCP found that appellant had not established that reflex
spasm in the neck and shoulder girdles; bilateral brachial plexus impingement due to spasms of
the shoulder girdle, muscles and ligaments; reflex spasm in the back; reflex spasm in the
buttocks; bilateral sciatic nerve impingement; deranged discs in the back due to continued
tightness of the back; and bilateral L5 and S1 nerve root impingement were consequential to the
October 5, 2007 employment injury. Appellant, through counsel, timely requested a hearing.
Subsequently submitted medical evidence included an April 12, 2012 evaluation by
Dr. Key who noted the history of injury. Physical examination demonstrated tenderness to
palpation of the mid and lower back, decreased sensation and strength of the lower extremities,
and a positive straight leg raising test bilaterally. Dr. Key diagnosed thoracic disc displacement
and chronic pain. Dr. Moore and Dr. Key continued to submit monthly pain management
reports.
On July 16, 2012 Dr. Suzanne M. Manzi, a Board-certified physiatrist and associate of
Dr. Moore, noted seeing appellant for pain management. Findings included lumbar and thoracic
spine tenderness to palpation with painful lumbar and thoracic range of motion. Sensory
examination in the arms and legs was grossly intact. Dr. Manzi diagnosed unspecified
lumbosacral neuritis; lumbar disc displacement; thoracic spine pain; cervical disc displacement;
thoracic spondylosis; unspecified myalgia and myositis; and thoracic disc displacement.10
A hearing was held on August 7, 2012. Counsel noted that appellant continued to receive
wage-loss compensation. Appellant testified that when she stopped work in September 2008 she
was not restricted to a 40-hour workweek and was not working outside her restrictions. She
stated that her condition worsened causing unbearable upper and lower back pain and migraine
headaches.
Appellant thereafter submitted a May 15, 2012 report in which Dr. Key noted decreased
sensation in both lower extremities with a positive straight leg raising test. Dr. Key advised that,
following his evaluation and examination, and as evidenced by the May 5, 2009 lumbar MRI
scan and March 13, 2012 EMG/NCV, appellant’s work injury was not limited to thoracic disc
displacement and chronic pain. He requested that her accepted conditions be upgraded to
include lumbar disc displacement. In treatment notes dated August 13 and October 8, 2012,
Dr. Manzi described appellant’s pain management.

10

Dr. Moore’s last treatment note was dated June 15, 2012. His associate Dr. Manzi thereafter provided pain
management.

8

By decision dated October 15, 2012, an OWCP hearing representative found, while the
medical evidence submitted was insufficient to establish the additional claimed conditions,
OWCP had failed to completely develop the case prior to its denial. The hearing representative
remanded the case to OWCP to seek an addendum report from Dr. McKeever, to be followed by
a de novo decision on the claimed consequential conditions. He also indicated that OWCP
should consider whether the allowed conditions remained symptomatic and disabling.
Dr. Manzi continued to submit monthly treatment notes in which she described
appellant’s pain management. On December 3, 2012 she reported that an EMG/NCV was done
that day.11 In reports dated November 26, 2012 and January 14, 2013, Dr. Mosuro described
physical examination findings and diagnosed sprain thoracic region, thoracic disc displacement,
and chronic pain syndrome. He advised that appellant could not work, indicating that she was
retired.
In December 2012 OWCP again referred appellant to Dr. McKeever. In a February 4,
2013 report, Dr. McKeever noted reviewing the medical record including diagnostic studies and
the history of injury. He described findings, noting appellant’s complaint of neck pain that
radiated down her left arm into the finger. Dr. McKeever found full range of motion of the right
arm and intermittent motion on the left, with full range of motion of the elbows, hands, and
wrists, and 5/5 strength in both shoulders. He noted spine tenderness at the bra strap level and in
the lower lumbar musculature. Dr. McKeever diagnosed resolved acute dorsal muscular strain;
resolved acute lumbosacral strain; and psychophysiologic left-sided body pain with symptom
magnification. He advised that the conditions of reflex spasm in the neck and shoulder girdles,
bilateral brachial plexus impingement due to spasm of the shoulder girdle, muscles, and
ligaments, reflex spasm in the back, reflex spasm in the buttocks, bilateral sciatic nerve
impingement, deranged discs in the back due to continued tightness of the back, and bilateral L5
and S1 nerve root impingement were not a result of the October 5, 2007 work injury.
Dr. McKeever opined that the October 5, 2007 injury caused mild dorsal and lumbar muscular
strains which would be expected to resolve in six to eight weeks from the injury date. He
indicated that his opinion was supported by x-ray findings, Dr. Francis’ June 2008 opinion that
diagnosed chronic mid-thoracic spine pain, cervical, thoracic, and lumbar spine MRI scans
which were consistent with chronic, long-standing degenerative spine disease not related to the
October 5, 2007 work injury, an invalid June 2009 FCE, and Dr. Barnes November 19, 2009
evaluation which showed no evidence of work-related residuals and no objective finding to
explain appellant’s spine, arm, or leg pain. Dr. McKeever based his opinion on his clinical
assessment, examination, and record documentation.

11

A report of the study is not found in the case record.

9

By decision dated March 4, 2013, OWCP denied appellant’s claim for additional
conditions causally related to the October 5, 2007 employment injury. Appellant, through
counsel, timely requested a hearing from the March 4, 2013 decision.12
In January 29 through June 17, 2013 treatment notes, Dr. Manzi described examination
findings and appellant’s pain management regimen. She reiterated diagnoses of unspecified
lumbosacral neuritis, lumbar disc displacement, thoracic spondylosis, thoracic disc displacement,
cervical disc displacement, unspecified myalgia and myositis, and additionally diagnosed pain in
thoracic spine, chronic pain syndrome, unspecified brachial neuritis, skin sensation disturbance,
lumbosacral disc degeneration, cervicalgia, and gait abnormality. Dr. Manzi advised that, based
on her review of the history, physical examination, and relevant imaging, appellant’s complaints
“may be” attributed in part to the listed diagnoses. A February 25, 2013 MRI scan of the lumbar
spine demonstrated disc bulges at T11-12, L3-4, L4-5, and L5-S1 which mildly impressed the
thecal sac. Dr. Manzi continued submitted status reports which reiterated her findings and
conclusions.
At the hearing, held on July 12, 2013, appellant testified that she was not working due to
severe back and leg pain which affected her activities of daily living. She stated that she had
been in an automobile accident, but could not remember when. The hearing representative
requested that she submit additional medical and factual information.13
In a September 25, 2013 decision, an OWCP hearing representative vacated the March 4,
2013 decision regarding appellant’s claim for additional employment-related conditions. He
found that Dr. McKeever did not discuss Dr. Ellis’ December 9, 2010 report. The hearing
representative remanded the case to OWCP to obtain a new second opinion evaluation on the
issue of whether appellant developed additional medical conditions as a consequence of the
October 5, 2007 employment injury.
In October 2013 OWCP referred appellant to Dr. Robert D. Harper, a Board-certified
orthopedic surgeon, for a second opinion. The statement of accepted facts listed the accepted
conditions of thoracic sprain, displacement of thoracic intervertebral disc without myelopathy,
and chronic pain syndrome. Dr. Harper was asked to address whether the conditions specified as
consequential injuries by Dr. Ellis were related to the October 5, 2007 work injury.

12

On June 13, 2013 OWCP proposed to terminate appellant’s wage loss and medical benefits. It found that the
special weight of the medical opinion evidence rested with Dr. McKeever, the referee physician, who submitted
July 23, 2010, March 12, 2012, and February 4, 2013 reports and advised that the accepted conditions had resolved.
Appellant disagreed with the proposed termination, maintaining that the medical evidence established continuing
disability. Additional medical evidence submitted included unsigned emergency department discharge instructions
dated November 28, 2012 which diagnosed cervical radiculopathy. On January 29 to May 20, 2013 questionnaires
completed by appellant, she described her pain.
13

In a July 26, 2013 decision, OWCP terminated appellant’s wage-loss and medical benefits, effective
July 28, 2013. It found that the weight of the medical evidence rested with Dr. McKeever. Counsel timely
requested a hearing. In a December 12, 2013 decision, a hearing representative reversed the July 26, 2013 decision.
He found that it was premature to terminate benefits until active development of appellant’s claim for consequential
conditions had been concluded. Appellant’s medical and monetary benefits were restored, retroactive to the date of
termination.

10

In an October 24, 2013 report, Dr. Harper noted the history of injury and his review of
the medical record. He related her pain complaints throughout the back, neck, left leg, left
foot/toe, left knee, left hip, left arm, and left buttock along with tingling, numbness, and burning.
Activities made the pain worse. Appellant ambulated into the examination room with a slow,
guarded and broad-based gait. On examination, she performed heel and toe walk without
difficulty. Appellant was tender to palpation along the cervical, thoracic, and lumbar spines. No
muscle spasms were noted. Rib compression tests were positive for mid thoracic pain. Sitting
and supine straight leg raises were positive. Additional tests in the upper and lower extremities
were negative. Dr. Harper also performed extensive sensation and muscle strength testing,
finding normal results in all upper and lower extremities. He diagnosed thoracic sprain/strain
and thoracic disc disorder. Dr. Harper noted his review of and disagreement with Dr. Ellis
December 9, 2010 report, opining that the conclusions presented by Dr. Ellis had not previously
been described in medical orthopedic literature, indicating that, while on the surface the
mechanism of injury described by Dr. Ellis sounded plausible, it was simply not known to
happen. Dr. Harper noted that commonly, muscle spasms are the result of spinal problems, and
did not produce spinal problems as posited by Dr. Ellis. He advised that he found no reflex
spasms in the neck, shoulder girdles, back, or buttocks, no bilateral brachial plexus impingement
or sciatic nerve impingement in his examination, and he concluded that any muscle spasms were
the result of the known underlying cervical and lumbar problems seen on MRI scans. Dr. Harper
concluded that, after careful review of the record, none of the conditions found by Dr. Ellis were
caused by the October 5, 2007 employment injury.
Dr. Manzi continued submitting monthly status reports from January 29 to
August 13, 2014. She noted findings, reiterated diagnoses, and continued advising that
appellant’s complaints could be attributed to her diagnoses.
In October 2014, OWCP referred appellant, along with a statement of accepted facts, the
medical record, and a set of questions to Dr. James Hood, Board-certified in orthopedic surgery,
for a second opinion examination. Dr. Hood was asked to review Dr. Ellis’ December 9, 2010
report and opine as to whether the following were causally related to the October 5, 2007
employment injury: reflex spasm in the neck and shoulder girdles; bilateral brachial plexus
impingement due to spasm of the shoulder girdle, muscles, and ligaments; reflex spasm in the
back; reflex spasm in the buttocks; bilateral sciatic nerve impingement; deranged discs in the
back due to continued tightness of the back; and bilateral L5 and 51 nerve root impingement.
An October 28, 2014 upper and lower extremity EMG/NCV study was interpreted as
normal by Dr. Goran A. Jezic, a Board-certified physiatrist. Dr. Jezic advised that there was no
electrodiagnostic evidence of acute or chronic peripheral nerve or muscle pathology affecting the
upper or lower extremities, specifically noting no evidence of radiculopathy, plexopathy, or focal
peripheral neuropathy affecting any extremity. A November 5, 2014 lumbar MRI scan
demonstrated disc bulges at L3-4, L4-5, and L5-S1 which mildly impressed the thecal sac with
mild foraminal narrowing.
Dr. Hood provided an October 21, 2014 report in which he described the history of
injury, reviewed the medical record including Dr. Ellis’ December 9, 2010 report, and noted
appellant’s complaints. He related that appellant had been examined by numerous physicians
and that, over the span of seven years, not one physician had noted any significant pathology that

11

would require any additional treatment and all indicated that as a result of the work event she had
a thoracic sprain that in reasonable medical probability had resolved. Dr. Hood described
findings from his October 21, 2014 examination, noting no palpable cervical spasm, no trigger
points in the trapezial or rhomboid region, and normal arm reflexes and muscle strength
bilaterally including deltoid, triceps, biceps, wrist extensors, thenar muscles and intrinsics.
Lumbar examination demonstrated no palpable muscle spasm, no scoliosis, and normal lumbar
lordosis but with limited range of motion. Lower extremity strength was normal in the hip
flexors, quadriceps, hamstrings, and extensor hallucis longus with normal reflexes and no
scapular winging. Dr. Hood noted the findings of the October 28, 2014 EMG/NCV examination.
He opined that appellant’s case should have been closed years earlier and, with regard to the
October 5, 2007 injury, she could return to full duty without restrictions.
On February 22, 2015 OWCP forwarded Dr. Hood’s report and the October 28, 2014
EMG/NCV study to Dr. Manzi for comment. In an April 1, 2015 treatment note, Dr. Manzi
related appellant’s complaint of worsening back pain. Physical examination demonstrated an
antalgic gait and back pain with range of motion. Dr. Manzi diagnosed pain in the thoracic
spine, unspecified myalgia and myositis, thoracic disc displacement, thoracic spondylosis, and
chronic pain syndrome. She advised that, “based on careful review of the history, physical
examination, and relevant imaging, I believe [appellant’s] complaints may be attributed in part to
the above listed diagnoses.”
By decision dated April 27, 2015, OWCP denied appellant’s claim for additional
conditions due to the October 5, 2007 employment injury. Appellant, through counsel, timely
requested a hearing.
Dr. Manzi continued to submit monthly pain management reports in which she reiterated
her findings and conclusions.14
A hearing was held on December 16, 2015 regarding whether appellant had established
consequential conditions.
Counsel argued that the April 27, 2015 decision denying
consequential conditions was premature, maintaining that it should have been held in abeyance
until the issue of termination of accepted conditions was resolved. He suggested that the issues
be combined with one referral physician rendering an opinion.
14

OWCP also continued to develop the issue of whether the accepted thoracic sprain, displacement of thoracic
intervertebral disc without myelopathy, and chronic pain syndrome had resolved. It found that a conflict in medical
evidence was created between Drs. Hood and Manzi regarding appellant’s condition, work status, and treatment
options related to the October 5, 2007 work injury. In June 2015, OWCP referred appellant to Dr. Larry L. Likover,
a Board-certified orthopedic surgeon, for an impartial evaluation on the issue of whether the accepted conditions had
resolved. In a June 25, 2015 report, Dr. Likover noted his review of the record and described examination findings.
He reported that appellant was a very healthy-appearing 41-year-old female and opined that her case had been
mismanaged from the very beginning. Dr. Likover advised that he was unable to identify any significant injury due
to the October 5, 2007 work injury, opining that there was no justification for her to be managed and continue taking
addictive narcotics. He found no sign of a surgical problem or evidence of permanent impairment. Dr. Likover
concurred with Dr. Hood’s assessment that appellant’s work related conditions have resolved and that she required
no further treatment, no further medication, and was capable of returning to work without restrictions. On
November 17, 2015 OWCP proposed to terminate appellant’s wage-loss and medical benefits, based on the opinion
of Dr. Likover. Appellant disagreed with the proposed termination and continued to assert that she had additional
injuries.

12

By decision dated December 22, 2015, OWCP terminated appellant’s wage-loss
compensation and medical benefits. It found that the weight of the medical evidence rested with
the opinion of Dr. Likover who performed the impartial medical evaluation. Appellant, through
counsel, timely requested a hearing from the December 22, 2015 termination decision.
A pain management treatment note from Dr. Manzi, dated November 3, 2015, was
submitted on January 11, 2016 in which she reiterated her findings and conclusions.
By decision dated February 12, 2016, an OWCP hearing representative affirmed the
April 27, 2015 decision regarding consequential conditions. She noted that OWCP had
repeatedly addressed whether the conditions of reflex spasm of the neck and shoulder girdles,
bilateral brachial plexus impingement, reflex spasm in the back, shoulder girdles, and buttocks,
bilateral sciatic nerve impingement, deranged disc in the back, and bilateral L5-S1 impingement
were consequential to the October 5, 2007 work injury. The hearing representative noted that
only Dr. Ellis supported the relationship while OWCP’s referral physicians did not support the
relationship. She concluded that appellant did not meet her burden of proof to establish
additional conditions causally related to the October 5, 2007 work injury.
LEGAL PRECEDENT
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of claimant’s own conduct as an independent intervening cause. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.15
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.16
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.17 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
15

Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014); see Charles W. Downey, 54 ECAB
421 (2003).
16

Charles W. Downey, id.

17

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

13

the employee.18 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.19
ANALYSIS
OWCP accepted that appellant sprained her back, thoracic region, on October 5, 2007
when she was pulling a table of mail. It later expanded the acceptance of the claim to include
displacement of thoracic intervertebral disc without myelopathy and chronic pain syndrome.
Dr. Ellis, an attending physician, opined that additional conditions of reflex spasm in the neck
and shoulder girdles; bilateral brachial plexus impingement due to spasms of the shoulder girdle
muscles; reflex spasm in the back and buttocks; bilateral sciatic nerve impingement; deranged
discs in the back due to continued tightness of the back; and bilateral L5 and S1 spinal nerve
impingement should be accepted. On February 12, 2016 an OWCP hearing representative
affirmed an April 27, 2015 OWCP decision denying the claim for additional or consequential
conditions. The Board finds that the record does not support that additional conditions should be
accepted.
In April 26 and December 9, 2010, and November 14, 2011 reports, Dr. Ellis opined that
the October 5, 2007 work injury caused consequential injuries. He noted the history of injury
and also that appellant had been in motor vehicle accidents in 2005 and 2008. Dr. Ellis
described current complaints and indicated that appellant’s conditions worsened over time such
that she was permanently and totally disabled. He maintained that appellant had an acute injury
to the T8-9 thoracic disc on October 5, 2007, and this caused the paraspinous muscles in the
thoracic and neck areas to become very tight which caused brachial plexus impingement due to
the tight muscles in the thoracic, cervical, and shoulder girdle area; that continued pain in the
spinal nerves caused the lower back to stay in spasm which caused tightness in the iliolumbar
and sacroiliac ligaments, and in the buttocks muscles, and this led to bilateral sciatic nerve
impingement. Dr. Ellis maintained that the continued tightness in her back caused increased
pressure on the lumbar discs which caused the discs to impinge upon the bilateral L5 and S1
spinal nerve roots leading to impairment of the L5 and S1 spinal nerve roots bilaterally.
Dr. Ellis first saw appellant on April 26, 2010, two and a half years after the October 5,
2007 work injury. He did not discuss the impact of the 2008 motor vehicle accident that
occurred shortly before appellant stopped work in September 2008 other than to say that
appellant did not think she had any residuals of this accident. The record before the Board
contains scant medical evidence regarding this accident, merely a brief note by Dr. Watkins
dated September 22, 2008, the day before appellant stopped work. He noted that appellant had
been in a motor vehicle accident and diagnosed upper and lower back pain, headaches, chest
pain, cervical pain, and left shoulder pain.
The Board finds that Dr. Ellis’ explanation of the mechanics of why the additional
conditions should be accepted has insufficient rationale to meet appellant’s burden of proof. He
18

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

19

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

14

did not discuss the impact of disc protrusions found on a May 5, 2009 MRI scan of cervical
spine, MRI scan findings of the lumbar spine demonstrating a mild disc protrusion at L4-5 and a
mild disc bulge at L5-S1, or the December 7, 2011 lower extremity EMG/NCV that did not
demonstrate lumbar radiculopathy and/or peripheral entrapment syndromes. While Dr. Ellis
provided some explanation of why he believed the accepted thoracic conditions caused
additional conditions, he exhibited limited knowledge of appellant’s condition prior to the
October 5, 2007 injury and did not explain with sufficient rationale how this work incident
caused or aggravated additional conditions. As his reports did not contain sufficient rationale on
causal relationship, they are of diminished probative value and are insufficient to meet
appellant’s burden of proof to establish additional conditions due to October 5, 2007
employment injury.20
Dr. Mosuro, a pain management specialist, treated appellant from February 6, 2012 to
January 14, 2013. He advised on March 12, 2012 that, because a lumbar spine MRI scan
demonstrated a disc protrusion at L5-S1 and he would ask that this be accepted. Similarly, on
May 15, 2012, Dr. Key advised that, following his evaluation and examination, and as evidenced
by the May 5, 2009 lumbar MRI scan and March 13, 2012 EMG/NCV, appellant’s work injury
was not limited to thoracic disc displacement and chronic pain. He requested that her accepted
conditions include lumbar disc displacement. Neither Dr. Mosuro nor Dr. Key, however,
provided an explanation of how the October 5, 2007 work injury caused the subsequent findings
on the diagnostic studies. A physician’s opinion on causal relationship between a claimant’s
disability and an employment injury is not conclusive simply because it is rendered by a
physician. To be of probative value, the physician must provide rationale for the opinion
reached. Where, as here, no such rationale is present, the medical opinion is of diminished
probative value.21
Dr. Manzi began pain management in July 2012 and also diagnosed additional conditions
of unspecified lumbosacral neuritis, lumbar and cervical disc displacement, unspecified myalgia
and myositis, unspecified brachial neuritis, skin sensation disturbance, lumbosacral disc
degeneration, cervicalgia, and abnormality of gait. While she advised that based on her review
of the history, physical examination, and relevant imaging, appellant’s complaints “may be”
attributed in part to her listed diagnoses, which included the accepted condition, she failed to
explain how the October 5, 2007 employment injury caused the additional diagnoses. Moreover,
the equivocal aspect of her opinion diminishes its probative value.22
Other medical evidence provided by appellant did not specifically address whether any
additional diagnosed medical conditions were causally related to the October 5, 2007 work
injury. Thus, this evidence is of limited probative value on the issue of causal relationship.23 For
example, reports from Dr. Athari, Dr. Moore, and Dr. Eidman did not specifically address how
any additional conditions were causally related to the accepted work injury.
20

See D.U., Docket No. 10-144 (issued July 27, 2010).

21

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

22

See D.D., 57 ECAB 734 (2006).

23

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

15

Furthermore, the record contains reports from several OWCP physicians which do not
support that any additional conditions were casually related to the October 5, 2007 work injury.
Dr. Barnes, who provided an impartial medical evaluation regarding appellant’s ability to work,
opined on April 5, 2010 that appellant exhibited symptom magnification. On June 13, 2011
Dr. Katz, an OWCP medical adviser, opined that the mechanism for the consequential nature for
additional conditions proposed by Dr. Ellis was unlikely and implausible given the accepted
conditions and the objective evidence from diagnostic studies. OWCP’s medical adviser
referenced reports from other examining physicians that did not support the physical findings
reported by Dr. Ellis.
In a February 4, 2013 report Dr. McKeever, an independent medical examining
physician, described physical examination findings and diagnosed resolved acute dorsal
muscular strain; resolved acute lumbosacral strain; and left-sided psychophysiologic body pain
with symptom magnification. Dr. McKeever specifically advised that the conditions of reflex
spasm in the neck and shoulder girdles, bilateral brachial plexus impingement due to spasm of
the shoulder girdle, muscles, and ligaments, reflex spasm in the back, reflex spasm in the
buttocks, bilateral sciatic nerve impingement, deranged discs in the back due to continued
tightness of the back, and bilateral L5 and S1 nerve root impingement were not due to the
October 5, 2007 work injury. He opined that the October 5, 2007 injury caused mild dorsal and
lumbar muscular strains which would have resolved within six to eight weeks after the injury.
Dr. McKeever indicated that his opinion was supported by reports in the record as well as x-ray
and MRI scan findings which were consistent with chronic, long-standing degenerative spine
disease not related to the October 5, 2007 work injury.
In an October 24, 2013 report, Dr. Harper, an OWCP referral physician, reviewed the
record, described examination findings and diagnosed thoracic sprain/strain and thoracic disc
disorder. He disagreed with Dr. Ellis’ December 9, 2010 report, opining that the conclusions
presented by Dr. Ellis had not previously been described in medical orthopedic literature.
Dr. Harper indicated that, while on the surface the mechanism of injury described by Dr. Ellis
sounded plausible, it was simply not known to happen. He maintained that muscle spasms were
commonly the result of spinal problems, but would not produce the spinal problems noted by
Dr. Ellis. Dr. Harper advised that on examination, he found no reflex spasms in appellant’s
neck, shoulder girdles, back, or buttocks, and no bilateral brachial plexus impingement or sciatic
nerve impingement. He concluded that any muscle spasms were the result of the known
underlying cervical and lumbar problems seen on MRI scans. As such, none of the
consequential conditions found by Dr. Ellis were due to the October 5, 2007 work injury.
Dr. Hood, also an OWCP referral physician, provided an October 21, 2014 report in
which he related appellant’s examination by numerous physicians had not indicated any
significant pathology that would require any additional treatment. He described essentially
normal examination findings and concluded that appellant’s case should have been closed years
earlier. Likewise, on June 25, 2015, Dr. Likover who examined appellant with regard to whether
the accepted conditions had resolved, found no basis on which to attribute any continuing
condition or impairment to the October 5, 2007 employment injury.

16

The Board finds that appellant has submitted insufficient rationalized medical evidence
supporting causal relationship between any of the claimed additional conditions and the
October 5, 2007 employment injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained bilateral brachial plexus impingement; reflex spasm in the neck, back, shoulder girdles,
and buttocks, bilateral sciatic nerve impingement, deranged disc in the back, and bilateral L5-S1
impingement causally related to the October 5, 2007 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 12, 2016 is affirmed.
Issued: May 3, 2017
Washington, DC

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

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

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

17


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, ROCK ISLAND ARSENAL,
Peoria, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1417
Issued: February 13, 2019

Case Submitted on the Record

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

JURISDICTION
On July 17, 2018 appellant filed a timely appeal from a June 27, 2018 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 24
percent binaural hearing loss, for which he previously received a schedule award.
FACTUAL HISTORY
On October 21, 2017 appellant, then a 58-year-old retired lock and dam repairer leader,
filed an occupational disease claim (Form CA-2) alleging that he developed “ringing” and hearing
1

5 U.S.C. § 8101 et seq.

loss in both ears due to exposure to steel work, equipment, pneumatic tools and other noises while
in the performance of duty. He noted that he first became aware of his condition and attributed it
to his federal employment on April 10, 2015. Appellant retired on September 2, 2017. In support
of his claim, he provided forms from the employing establishment’s hearing conservation program.
OWCP undertook additional development of his claim.
On March 5, 2018 OWCP referred appellant to Dr. Xinyan Huang, a Board-certified
otolaryngologist, for an otologic examination and audiological evaluation. In his March 21, 2018
report, Dr. Huang performed an otologic evaluation of appellant and audiometric testing was
obtained on his behalf on March 21, 2018. Testing at the frequency levels of 500, 1,000, 2,000,
and 3,000 cycles per second revealed the following: right ear 25, 25, 40, and 65 decibels; left ear
25, 30, 50, and 65 decibels. Dr. Huang advised that, in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides),2 appellant had 20.625 percent impairment of the right ear due monaural loss, and 26.25
percent impairment of the left ear due to monaural loss. Utilizing the combined hearing loss
formula, he concluded that appellant had 21.563 percent binaural hearing loss. Dr. Huang then
added an additional two percent for tinnitus impairment to reach binaural impairment of 23.56
percent. He diagnosed bilateral sensorineural hearing loss and tinnitus due to appellant’s exposure
to noise in the workplace. Dr. Huang recommended hearing aid amplification.
By decision dated April 9, 2018, OWCP accepted appellant’s occupational disease claim
for binaural sensorineural hearing loss and bilateral tinnitus.
On April 9, 2018 OWCP requested an OWCP district medical adviser complete a hearing
impairment calculation worksheet.
In an April 30, 3018 report, Dr. Charles Pettit, a Board-certified otolaryngologist and a
district medical adviser, provided an impairment calculation worksheet which, based on
Dr. Huang’s audiometric testing, indicated that appellant had 21 percent monaural loss in the right
ear and 26 percent loss in the left ear. He then applied the combined hearing loss formula, finding
22 percent binaural loss. Dr. Pettit added two percent for “troublesome tinnitus,” for a total of 24
percent binaural loss. He advised that hearing aids were authorized.
By decision dated June 27, 2018, OWCP granted appellant a schedule award for 24 percent
binaural hearing loss. It found that he was entitled to 24.96 weeks of schedule award
compensation.
LEGAL PRECEDENT
The schedule award provisions of FECA3 and its implementing regulations4 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. FECA, however, does not
2

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

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

2

specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP for evaluating schedule losses and the Board has concurred in such
adoption.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged.6 Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the
ability to hear everyday speech under everyday conditions.7 The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss.9 The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.10 The policy of OWCP is to round the calculated percentage
of impairment to the nearest whole number.11 OWCP procedures provide that percentages should
not be rounded until the final percent for award purposes is obtained. Fractions should be rounded
down from .49 and up from .50.12
If tinnitus interferes with activities of daily living, including sleep, reading, and other tasks
requiring concentration, enjoyment of quiet recreation and emotional well-being, up to five percent
may be added to measurable binaural hearing impairment.13
ANALYSIS
The Board finds that the case is not in posture for decision.

5

See J.W., Docket No. 17-1339 (issued August 21, 2018); R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52
ECAB 143 (2000).
6

A.M.A., Guides 250.

7

Id.; C.D., Docket No. 18-0251 (issued August 1, 2018).

8

Id.

9

Id.

10

See J.W., supra note 5; C.D., supra note 7.

11

P.L., Docket No. 17-0355 (issued June 27, 2018).

12

C.D., supra note 7; Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.4(b)(2)(b) (January 2010).
13

A.M.A., Guides 249.

3

In his March 21, 2018 report, Dr. Huang noted a history of appellant’s work-related noise
exposure, and his review of the statement of accepted facts and the medical record. He described
findings upon examination and attached an audiogram report dated March 21, 2018 which
reflected testing at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed
the following: right ear 25, 25, 40, and 65 decibels; left ear 25, 30, 50, and 65 decibels. Dr. Huang
diagnosed high-frequency binaural sensorineural hearing loss and tinnitus causally related to
factors of appellant’s federal employment. He advised, that in accordance with the sixth edition
of the A.M.A., Guides,14 appellant had 20.625 percent impairment of the right ear due monaural
loss, and 26.25 percent impairment of the left ear due to monaural loss. Dr. Huang multiplied
appellant’s hearing loss in his better ear, 20.625 percent on the right, by 5 to yield 103.125 percent.
He then added 26.25, appellant’s loss in his left ear, reaching a subtotal of 129.375 which, when
divided by 6, yields 21.56 percent binaural loss. Utilizing the combined hearing loss formula,
Dr. Huang concluded that appellant had 21.56 percent binaural hearing loss, and included an
additional 2 percent impairment rating for tinnitus to reach 23.56 percent binaural hearing loss.
He did not round up his final calculation.
OWCP asked its district medical adviser, Dr. Pettit, to review the record and provide an
impairment evaluation. In his April 30, 3018 report, Dr. Pettit reviewed Dr. Huang’s March 21,
2018 report. On an impairment calculation worksheet, he recorded Dr. Huang’s frequency levels
and indicated that appellant had 21 percent monaural loss in the right ear and 26 percent loss in
the left ear. Dr. Pettit then applied the combined hearing loss formula, finding 22 percent binaural
loss. He added 2 percent for “troublesome tinnitus,” for a combined 24 percent binaural loss.
Dr. Pettit, however, did round the hearing loss for each ear early in his calculations when dividing
the total loss of each ear by 4. For a total loss of 155 decibels in the right ear, he found an average
threshold of 39, whereas the calculation before rounding yields an average threshold of 38.75, as
found by Dr. Huang. In appellant’s left ear, Dr. Pettit utilized the proper formula by properly
arriving at the average of 42.5.
As previously noted, OWCP procedures provide that percentages should not be rounded
until the final percent for award purposes is obtained.15 Dr. Pettit’s calculation was therefore in
error. Accordingly, this case must be remanded to OWCP for recalculation of appellant’s binaural
hearing loss pursuant to OWCP procedures. After such further development as necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

Supra note 6.

15

Supra note 12.

4

ORDER
IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded for further proceedings consistent
with this decision of the Board.
Issued: February 13, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.A., Appellant
and
DEPARTMENT OF STATE, OFFICE OF
PERSONNEL, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1928
Issued: June 4, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 23, 2011 appellant, through counsel, filed a timely appeal from a July 14,
2011 decision of the Office of Workers’ Compensation Programs (OWCP) concerning the
termination of her compensation benefits. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation for
wage-loss and medical benefits effective November 22, 2009 on the grounds that she no longer
had any residuals or disability causally related to her accepted employment-related injury; and
(2) whether she had any continuing employment-related residuals or disability after
November 22, 2009.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 16, 1988 appellant, then a 50-year-old bindery worker, filed a traumatic
injury claim alleging that on November 15, 1988 she injured her lower back while bending over
to clear a jam in a xerox machine. OWCP accepted the claim for aggravation of low back sprain
and lumbosacral joint sprain, which was expanded to include aggravation/exacerbation of
preexisting lumbar degenerative disc disease. Appellant was placed on the periodic rolls for
temporary total disability effective May 18, 1989.
In a January 21, 2008 report, Dr. Daniel R. Ignacio, a treating Board-certified physiatrist,
diagnosed lumbar disc syndrome and lumbar radiculopathy. Physical findings included limited
lumbar paraspinal motion, paraspinal muscle spasm, tenderness along the L4 to S1 levels,
positive straight leg raising and tenderness along the left sacroiliac joint side.
On October 31, 2008 Dr. Robert A. Smith, a second opinion Board-certified orthopedic
surgeon, diagnosed lumbar strain and temporary aggravation of a preexisting lumbar
degenerative disc disease. A physical examination of the spine revealed no atrophy, trigger
points, spasm or deformity. Dr. Smith also reported a satisfactory active range of motion and
normal neurological examination with no confirmable radiculopathy or neurological deficit. He
concluded that appellant no longer had any residuals or disability due to her accepted work
injuries. In support of this conclusion, Dr. Smith noted the lack of any clinical findings
supporting that the accepted conditions were still active. He indicated that appellant was capable
of sedentary work and restrictions which were due to her advanced age and not to her
employment injury.
In a November 25, 2008 supplemental report, Dr. Smith reiterated his conclusion that
there was no objective evidence supportive of any continued residuals or disability due to the
accepted lumbar strain and aggravation of a preexisting degenerative disc disease.
On December 4, 2008 OWCP referred appellant to Dr. James J. York, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion between Drs. Smith and
Ignacio on the issue of whether appellant continued to have any residuals and disability due to
her accepted work conditions. In a December 18, 2008 report, Dr. York diagnosed lumbar strain
and temporary aggravation of preexisting degenerative lumbar spondylosis. A physical
examination revealed moderate tenderness in the L3 to S1 spinal area, normal strength and
sensory examination, 70 degrees forward flexion and 10 degrees extension. Dr. York opined that
appellant continued to have residuals of her lumbar spondylosis which are unrelated to her
accepted employment injury. He noted that the injury was fairly trivial and caused a sprain,
strain and temporary aggravation of her preexisting lumbar spondylosis. Based on a review of
the medical records, Dr. York reported that there was some improvement seen and a
recommendation to return to light-duty work was made. He opined that the “20-year progression
of lumbar spondylosis is inherent to the nature of the disease” and unrelated to the low level
strain she sustained while leaning over and clearing paper from a photocopy machine.
Following receipt of Dr. York’s report, OWCP received medical reports, disability notes
and a work restriction report from Dr. Ignacio who provided physical findings and opined that
appellant continued to have residuals and disability from her accepted employment injury.
Dr. Ignacio noted that appellant sustained a work injury to the lumbar spine on November 15,
1988 and has had chronic lumbar pain since then. His diagnoses included chronic low back pain,
2

chronic progressive lumbar disc syndrome, post-traumatic lumbar spinal stenosis and chronic
lumbar radiculopathy.
On March 13, 2009 Dr. Philip B. Bovell, a treating physician, noted that on
November 15, 1988 appellant sustained an injury to her back while bending over to pick up a
stack of papers. Since the date of the injury appellant has had pain and discomfort. Dr. Bovell
diagnosed chronic L5-S1 bilateral radioculopathies and recommended a home exercise program.
Subsequently, he provided updated reports containing physical finding and treatment for
appellant’s chronic pain and discomfort in the lumbosacral spine.
On October 13, 2009 OWCP issued a notice proposing to terminate appellant’s
compensation benefits based upon the report of Dr. York, the impartial medical adviser.
Subsequent to the proposed termination, OWCP received reports dated January 21, 2008,
September 13 and October 28, 2009 from Dr. Ignacio noting that appellant was seen for injuries
sustained due to the November 15, 1988 employment injury. On January 21, 2008 Dr. Ignacio
reported limited lumbar motion, spasm and tenderness in the L4, L5 and S1 spine, positive
straight leg raising and sacroiliac joint tenderness and that appellant reported increased lower
back pain. Diagnoses from the reports include chronic low back pain, chronic progressive
lumbar disc syndrome/lumbar disc polyradiculopathy, multilevel cervical spinal stenosis, lumbar
disc syndrome, lumbar radiculopathy, post-traumatic lumbar spinal stenosis and accelerated
lumbar degenerative disc disease. In the October 28, 2009 report, Dr. Ignacio opined that the
accelerated lumbar degenerative disc disease was directly related to the November 15, 1988
employment injury. He disagreed with Dr. York’s conclusion that appellant’s employmentrelated conditions had resolved and that her current condition is unrelated to the November 15,
1988 injury. According to Dr. Ignacio appellant’s current condition represented a progression
and continuation of the injury she sustained on November 15, 1988 included accelerated lumbar
disc disease and the development of post-traumatic spinal lumbar stenosis. He related that a
review of the medical records supports his conclusion that her current condition represents a
progression of the injuries sustained as a result of the November 15, 1988 employment injury.
By decision dated November 18, 2009, OWCP finalized the termination of appellant’s
compensation benefits effective November 22, 2009. It found the opinion of Dr. York, the
impartial medical adviser, constituted the weight of the evidence.
Following the termination of appellant’s benefits OWCP received reports dated
October 28 and November 10, 2009 from Dr. Ignacio. These reports noted an injury date of
November 15, 1988, reported physical findings and diagnoses of lumbar stenosis, bilateral L5,
S1 radiculopathy, chronic progressive lumbar disc syndrome/lumbar disc polyradiculopathy,
accelerated lumbar degenerative disc disease and post-traumatic lumbar stenosis.
On December 15, 2009 appellant requested reconsideration and submitted the following
evidence in support of her request.
In a December 11, 2009 report, Dr. Bovell noted that appellant was evaluated for
lumbosacral discomfort and chronic pain with radiculopathy into the legs. He disagreed with the
conclusions of Drs. York and Smith that appellant’s accepted work conditions had resolved. In
support of his conclusion, Dr. Bovell noted the objective evidence including appellant’s

3

continual discomfort and inability to function commenced with her November 15, 1988
employment injury and has progressively worsened.
On December 19, 2009 Dr. Ignacio stated that appellant sustained a lumbar injury as a
result of her accepted November 15, 1988 employment injury. Diagnoses included aggravation
of lumbar degenerative disc disease due to a 1975 injury, chronic lumbar strain and chronic
lumbar disc syndrome with chronic lumbar radiculopathy. Dr. Ignacio reported that appellant
initially did well following the injury and returned to work, but the condition failed to resolve
and worsened. Since the injury appellant has had continuing low back pain problems which has
become more pronounced and has extended to lower extremity numbness. A physical
examination revealed tenderness along the L2-3 and L5-S1 interspinous ligament, multiple
trigger points in the lumbar paraspinal muscles and limited lumbar flexion. In concluding,
Dr. Ignacio opined that the diagnosed conditions were all due to the injuries appellant sustained
on November 15, 1988 with the aggravation of the lumbar disc disease due to a 1975
employment injury. He opined that a 1982 automobile accident was a minor injury, has no
relation to the November 15, 1988 employment injury and, thus, had no bearing on her current
medical condition.
By decision dated February 17, 2010, OWCP denied modification. It found Dr. York’s
opinion continued to constitute the weight of the medical evidence.
On March 5, 2010 Dr. Bovell noted that appellant’s symptoms have continued since the
November 15, 1988 employment injury contrary to Dr. York’s finding that her symptoms had
subsided. He opined that Dr. York’s statement that appellant’s condition had resolved was “not
a reasonable rationale to disprove the symptoms that [appellant] was having over the period of
time.” Dr. Bovell also related that appellant’s current condition and symptoms was a natural
progression of her accepted 1988 employment injury and “showed the progression of
[appellant’s] symptoms did not subside.” According to Dr. Bovell “it is a known fact that the
injured part will worsen more rapidly than the natural course of degeneration of that injured
part.”
On March 13, 2010 OWCP received appellant’s request for reconsideration.
By decision dated June 10, 2010, OWCP denied modification.
On June 21, 2010 appellant requested reconsideration.
By decision dated July 14, 2011, OWCP denied modification.
In an August 26, 2010 report, Dr. Ignacio provided physical findings and diagnosed
chronic lumbar strain syndrome, aggravated degenerative lumbar disc disease, post-traumatic
lumbar stenosis and accelerated post-traumatic lumbar degenerative disc disease, which were all
caused by the November 15, 1988 employment injury. He explained that as a result of the injury
appellant was disabled from work due to the intensity of her back condition. Dr. Ignacio opined
that the natural progression of her condition is a result of the November 15, 1988 employment
injury and not the natural progression of her degenerative disc disease. His rationale for this
conclusion is that the November 15, 1988 employment injury caused a lumbar strain and
aggravated her lumbar degenerative disc disease, which was the direct cause of the acceleration
of her lumbar degenerative disc disease. In concluding, Dr. Ignacio related that appellant
4

continues to be disabled and have residuals of the November 15, 1988 employment injury as her
accepted injuries had never ceased. He related that she continues to suffer from her progressive
symptoms and accelerated lumbar degenerative disc disease with post-traumatic lumbar stenosis.
By decision dated July 14, 2011, OWCP denied modification.2
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an
employee has disability causally related to her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.4 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
Section 8123(a) of FECA provides in pertinent part: 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.8 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained aggravation of low back sprain, lumbosacral
joint sprain and aggravation/exacerbation of preexisting lumbar degenerative disc disease due to
the accepted November 11, 1988 employment injury. Appellant was placed on the periodic rolls
for temporary total disability by letter dated May 18, 1989.
2

The Board notes that, following the July 14, 2011 decision, OWCP received additional evidence. However, the
Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

8

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

9

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

5

On January 21, 2008 Dr. Ignacio, a treating Board-certified physiatrist, diagnosed lumbar
disc syndrome and lumbar radiculopathy. In an October 31 and November 24, 2008
supplemental report, Dr. Smith, a second opinion Board-certified orthopedic surgeon, concluded
that appellant no longer had any residuals or disability due to her accepted work injuries. OWCP
found a conflict between Dr. Smith and Dr. Ignacio, and selected Dr. York, a Board-certified
orthopedic surgeon, as impartial medical examiner. In his December 18, 2008 report, Dr. York
attributed appellant’s disability to her preexisting degenerative lumbar spondylosis and that she
no longer had any residuals or disability as a result of her accepted employment injury. Based on
his opinion OWCP terminated appellant’s compensation and medical benefits effective
November 22, 2009.
Dr. York conducted an impartial medical examination on December 8, 2008 as well as
reviewing appellant’s history of injury and medical history. He diagnosed lumbar strain and
temporary aggravation of preexisting degenerative lumbar spondylosis. Dr. York’s extensive
review of the medical records led him to opine that appellant’s condition was not the result of her
accepted employment injury, but instead represented a natural progression of her preexisting
lumbar spondylosis. In support of this conclusion, he related that the employment injury was
fairly trivial and caused a sprain, strain and temporary aggravation of her preexisting lumbar
spondylosis. Dr. York concluded that appellant had no work-related residuals as her accepted
conditions had resolved with no disability.
The Board finds that Dr. York’s report was entitled to the special weight of the medical
evidence. Dr. York provided a detailed report reviewing the medical records and noting that
appellant’s current condition was a natural progression of preexisting lumbar spondylosis and
unrelated to the accepted employment injuries. He explained why he determined that appellant’s
current condition was not due to her employment as the initial injury was fairly trivial. Dr. York
attributed her condition to her preexisting lumbar spondylosis. As his report is based on a proper
factual history, provided findings and included medical reasoning, supporting his conclusions,
the Board finds that OWCP met its burden of proof to terminate appellant’s compensation and
medical benefits.
Prior to the termination of her compensation benefits, appellant submitted various
medical reports from Dr. Ignacio opining that appellant continued to have residuals and disability
from the accepted November 15, 1988 employment injury. Dr. Ignacio diagnoses included
chronic low back pain, chronic progressive lumbar disc syndrome, post-traumatic lumbar spinal
stenosis and chronic lumbar radiculopathy. The only rationale given by him for continued
employment-related residuals and disability was the lumbar pain appellant has had since the
injury. As Dr. Ignacio was on one side of a conflict which was resolved by Dr. York and his
reports do not otherwise provide new findings or medical rationale, his reports are insufficient to
establish there are any continuing conditions or residuals due to the accepted November 15, 1988
work injury.10
Appellant also submitted reports from Dr. Bovell noting an employment injury was
sustained on November 15, 1988, physical findings and treatment. Dr. Bovell diagnosed chronic

10

See I.J., 59 ECAB 408 (2008); Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101,
1115 (1992); Dorothy Sidwell, 41 ECAB 857 (1990).

6

L5-S1 bilateral radioculopathies. However, this condition has not been accepted by OWCP.11 In
addition, Dr. Bovell’s reports are of diminished probative value because he has not provided any
supporting rationale explaining how her condition was a result of her accepted employment
injury. The Board has held opinions unsupported by rationale are entitled to little probative
value.12 Therefore, Dr. Bovell’s reports are insufficiently rationalized to outweigh Dr. York’s
opinion or create a conflict of medical opinion.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injury.13
ANALYSIS -- ISSUE 2
Following OWCP’s November 18, 2009 decision terminating her compensation benefits,
appellant submitted additional medical reports from Dr. Ignacio and Dr. Bovell. In his reports,
Dr. Ignacio essentially reiterated his findings and conclusion that she continued to be disabled
from the employment injury. The Board has long held that reports from a physician who was on
one side of a medical conflict that an impartial specialist resolved, are generally insufficient to
overcome the weight accorded to the report of the impartial medical examiner or to create a new
conflict.14 Dr. Ignacio had been on one side of the conflict resolved by Dr. York.
Appellant also submitted reports from Dr. Bovell noting his disagreement with Dr. York
that appellant’s accepted employment injuries had resolved as her symptoms have continued
since the injury. Dr. Bovell also found appellant’s current condition was a result of a natural
progression of her accepted employment injury. However, he provides only a conclusory
statement on causal relationship without providing medical reasoning or rationale to support his
opinion. The Board has found that unrationalized medical opinions on causal relationship have
little probative value.15 Thus, Dr. Bovell’s report is insufficient to create a conflict with
Dr. York’s opinion
Thus, the Board finds that appellant submitted insufficient rationalized medical evidence
to establish a causal relationship between her condition on and after November 22, 2009 and the
accepted aggravation of low back sprain and lumbosacral joint sprain and aggravation/
exacerbation of preexisting lumbar degenerative disc disease. Therefore, appellant has failed to
meet her burden of proof.
11

Charles W. Downey, 54 ECAB 421 (2003); Alice J. Tysinger, 51 ECAB 638 (2000) (for conditions not
accepted by OWCP as being employment related, it is the employee’s burden to provide rationalized medical
evidence sufficient to establish causal relation, not OWCP’s burden to disprove such relationship).
12

T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

13

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

14

See I.J., supra note 10; Michael Hughes, supra note 10; Howard Y. Miyashiro, supra note 10; Dorothy Sidwell,
supra note 10.
15

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

7

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits and that she has failed to meet her burden of proof in establishing any
continuing disability or medical residuals on or after November 22, 2009.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 14, 2011 is affirmed.
Issued: June 4, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8