United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
DEPARTMENT OF THE ARMY, PINE BLUFF
ARSENAL, Pine Bluff, AR, Employer
__________________________________________

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Appearances:
James W. Stanley, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1277
Issued: February 17, 2010

Case Submitted on the Record

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

JURISDICTION
On April 17, 2009 appellant, through his representative, filed a timely appeal from the
July 28, 2008 and April 3, 2009 merit decisions of the Office of Workers’ Compensation
Programs, which terminated his compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of the case.
ISSUES
The issues are: (1) whether the Office has met its burden to terminate appellant’s
compensation effective July 28, 2008; and (2) whether appellant met his burden to establish that
he is entitled to continuing compensation.
FACTUAL HISTORY
On January 6, 1999 appellant, then a 51-year-old protective equipment inspector/repairer,
sustained an injury in the performance of duty when he slipped on ice and fell on his left hip and
back. The Office accepted his claim for left hip contusion and left lumbar strain. It later

accepted a compression fracture at L1. Appellant received compensation for temporary total
disability on the periodic rolls.
A conflict in medical opinion arose between Dr. Thomas M. Ward, the attending
physiatrist, and Dr. Robert E. Holladay, IV, the Office referral orthopedic surgeon, on whether
the injury-related conditions had resolved or continued to cause total disability. The Office
referred appellant, together with the medical record and a statement of accepted facts, to
Dr. Jason G. Stewart, a Board-certified orthopedic surgeon, for an impartial medical evaluation
to resolve the matter.
On May 13, 2008 Dr. Stewart reviewed appellant’s medical record, including an
August 2, 2001 magnetic resonance imaging (MRI) scan showing an apparently healed
L1 compression fracture and a March 23, 2004 finding from a prior impartial medical specialist
that appellant’s L1 compression fracture was healed. He related the history of the employment
injury and presented appellant’s clinical chronology. Dr. Stewart described his findings on
physical examination and diagnosed, among other things, L1 compression fracture, healed,
chronic low back pain and left hip contusion, healed. He commented that appellant’s subjective
complaints were not entirely consistent with the objective findings. Symptom magnification was
evident from appellant’s pain diagram and his posturing throughout the examination.
Dr. Stewart stated:
“Pain is something that cannot be subjectively quantified in some situations. In
most cases, this type of pain should gradually subside to a very low level of pain.
However, over the years [appellant’s] has gradually increased. [Appellant’s]
opioid use would impair his ability to perform any type of work activities. I
concur with Dr. Holladay’s findings that [appellant] is receiving excessive opioid
mediation and there is no evidence of any functional improvements, but only
evidence of increasing subjective pain, but there are no objective declines noted
over the years; instead, just an increasing dosage and frequency of narcotics. I
concur with Dr. Holladay that there is no indication for any additional diagnostic
testing, injection procedures, surgical procedures or any aggressive medical
management.”
Dr. Stewart found that appellant’s L1 compression fracture and left hip contusion had
healed. He noted that appellant now had chronic pain in all extremities and the entire spine,
which were subjective in nature. “There are no objective findings related specifically to the
injury [of] January 5, 1999.” Dr. Stewart concluded that appellant should be able to return to his
date-of-injury job full time and without restrictions.
In a decision dated July 28, 2008, the Office terminated appellant’s compensation
benefits. It found that the weight of the medical evidence rested with Dr. Stewart and established
that appellant no longer had any injury-related conditions that were active or disabling.
On February 10, 2008 appellant requested reconsideration. He submitted a February 17,
2009 report of Dr. Ward, who stated that he did not agree with Dr. Stewart’s findings or
conclusions. Dr. Ward found that there was an L1 compression fracture that remained and there
was kyphosis with marked antecolic posture also present on x-ray. Further, there were additional

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findings of onset of osteoarthritis in numerous areas of appellant’s lumbar spine. “In my opinion
that the L1 compression fracture would have directly been a contributing factor from the
standpoint of weakness in the lumbar spine and abnormality in pain as well as abnormality in
postural mechanics, leading to an L2/3 compression fracture.” Dr. Ward added that there
continued to be a need for injections and routine follow-up and routine education benefits to
prevent the rapid onset of deterioration from posture as well as from additional injuries that
occur from far more routine activities and vocational pursuits.
In a decision dated April 3, 2009, the Office reviewed the merits of appellant’s claim and
denied modification of its prior decision. It found that the record continued to lack sufficient
evidence to support that the accepted work-related conditions persisted.
On appeal, appellant’s representative argues that the Office’s findings of facts and
conclusions of law are not supported by the substantial evidence.
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.1 Once the Office accepts a
claim, it has the burden of proof to justify termination or modification of compensation benefits.2
After it has determined that an employee has disability causally related to his 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.3
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.4 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.5
ANALYSIS -- ISSUE 1
A conflict arose between appellant’s physician and the Office referral physician on
whether the injury-related conditions had resolved or continued to cause total disability. The
Office properly referred appellant under 5 U.S.C. § 8123(a) to Dr. Stewart, a Board-certified
orthopedic surgeon, to resolve the matter. It provided Dr. Stewart with appellant’s medical
1

5 U.S.C. § 8102(a).

2

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

3

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
4

5 U.S.C. § 8123(a).

5

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

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record and a statement of accepted facts so he could base his opinion on a proper factual and
medical history.
Dr. Stewart found that appellant’s L1 compression fracture was healed. He noted an
August 2, 2001 MRI scan, which demonstrated an L1 compression fracture involving the upper
and lower end plates. There was no evidence of active edema “suggesting that this is likely an
old or healed compression fracture.” Dr. Stewart also noted the March 23, 2004 finding from
another impartial medical specialist. X-rays obtained that date showed about a 50 percent
compression fracture of L1, “which appears to be healed.”
Appellant contends that he still suffers from an L1 compression fracture. Dr. Stewart has
answered that question in the negative and he has supported his opinion with findings from
diagnostic tests. On physical examination, he reported no objective findings related to the 1999
slip and fall. Dr. Stewart explained that appellant’s subjective pain had gradually and
unexpectedly increased over the years, to the point that he now complained of pain in all
extremities and the entire spine. At the same time, the dosage and frequency of opioid use,
which Dr. Stewart considered excessive, also increased, but with no evidence of any functional
improvement. It was Dr. Stewart’s opinion that this excessive opioid use impaired appellant’s
ability to perform any work activities.
The Board finds that Dr. Stewart’s opinion is based on a proper factual and medical
history and is sufficiently well rationalized that it must be accorded special weight. As the
weight of the medical opinion establishes that, the accepted medical conditions have resolved,
the Board further finds that the Office has met its burden of proof to justify the termination of
compensation for the 1999 employment injury. The Board will affirm the Office’s July 28, 2008
decision terminating compensation benefits effective that date.
LEGAL PRECEDENT -- ISSUE 2
Where the Office meets its burden of proof in justifying termination of compensation
benefits, the burden is on the claimant to establish that any subsequent disability is causally
related to the accepted employment injury.6
As used in the Federal Employees’ Compensation Act, the term “disability” means
incapacity, because of employment injury, to earn the wages that the employee was receiving at
the time of injury.7 When the medical evidence establishes that the residuals of an employment
injury are such that, from a medical standpoint, they prevent the employee from continuing in his

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Wentworth M. Murray, 7 ECAB 570 (1955) (after a termination of compensation payments, warranted on the
basis of the medical evidence, the burden shifts to the claimant to show by the weight of the reliable, probative and
substantial evidence that, for the period for which he claims compensation, he had a disability causally related to the
employment resulting in a loss of wage-earning capacity); Maurice E. King, 6 ECAB 35 (1953).
7

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB 38
(1948); 20 C.F.R. § 10.5(17).

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employment, he is entitled to compensation for any loss of wage-earning capacity resulting from
such incapacity.8
Causal relationship is a medical issue9 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,10 must be one of reasonable medical certainty11
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.12
Medical conclusions unsupported by rationale are of little probative value.13
ANALYSIS -- ISSUE 2
Because the weight of the medical evidence rests with the opinion of the impartial
medical specialist, Dr. Stewart and was sufficient to justify the Office’s termination of
compensation for the 1999 work injury, the burden of proof now switches to appellant to
establish that he continues to suffer from a medical condition or disability causally related to his
1999 slip and fall.
With his February 10, 2008 request for reconsideration, appellant submitted the
February 17, 2009 report of Dr. Ward, who stated that he did not agree with Dr. Stewart’s
findings and conclusions. Dr. Ward found that there remained an L1 compression fracture.
However, he did not elaborate, other than to note appellant’s posture and the appearance of
spinal curvature on x-ray. How this confirmed a compression fracture not yet healed from 1999
was not fully explained, nor did Dr. Ward account for the 2001 MRI scan or the x-rays obtained
in 2004, which supported Dr. Stewart’s opinion that the L1 compression fracture was healed. On
this point the Board finds that Dr. Ward’s opinion is not well reasoned and is insufficient to
create a conflict with the impartial medical specialist.
Dr. Ward also addressed medical conditions the Office did not accept as causally related
to the 1999 slip and fall, including osteoarthritis in numerous areas of the lumbar spine and an
“L2/3” compression fracture. Appellant bears the burden of proof to establish that such medical
conditions are causally related to the work incident that occurred on January 6, 1999.

8

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

9

Mary J. Briggs, 37 ECAB 578 (1986).

10

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

11

See Morris Scanlon, 11 ECAB 384, 385 (1960).

12

See William E. Enright, 31 ECAB 426, 430 (1980).

13

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

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Dr. Ward did not explain how he was able to determine that osteoarthritis in numerous
areas of the lumbar spine was causally related to the 1999 incident. He advised that appellant’s
L1 compression fracture, which the Office accepted as compensable, directly contributed to
weakness in the lumbar spine and abnormality in pain as well as abnormality in postural
mechanics, which led to an L2/3 compression fracture. This lends support to a consequential
injury. However, Dr. Ward did not adequately explain how one-step led to the other or what
objective clinical findings showed that the L2/3 compression fracture arose from such a sequence
or progression and not simply from an underlying osteoarthritis of the lumbar spine. The Board
finds that Dr. Ward’s opinion is not sufficiently rationalized to discharge appellant’s burden of
proof to establish that he is entitled to continuing compensation.
CONCLUSION
The Board finds that the Office has met its burden to justify the termination of appellant’s
compensation effective July 28, 2008. The Board also finds that appellant has not met his
burden to establish that he is entitled to continuing compensation.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2009 and July 28, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: February 17, 2010
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.E., Appellant
and
U.S. POSTAL SERVICE, WESTERN
FACILITIES SERVICE OFFICE,
Englewood, CO, Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 10-791
Issued: December 21, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 3, 2010 appellant, through her representative, filed a timely appeal from a
merit decision of the Office of Workers’ Compensation Programs dated August 11, 2009
denying her occupational disease claim. The Board also has jurisdiction over the January 4,
2010 nonmerit decision finding that she abandoned her hearing request. 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 appellant has established an aggravation of her preexisting
cervical strain and neck degenerative arthritis due to her employment duties; and (2) whether
appellant abandoned her request for an oral hearing before an Office hearing representative.
FACTUAL HISTORY
On January 19, 2009 appellant, then a 53-year-old customer service representative, filed
an occupational disease claim alleging that her job duties of prolonged sitting and data entry

aggravated her preexisting cervical strain and neck degenerative arthritis. She alleged that the
change in her duty status and temporary job position caused the aggravation.
By letter dated January 23, 2009, the Office informed appellant that the evidence of
record was insufficient to support her occupational disease claim and advised her as to the
medical and factual evidence to submit.
In a January 23, 2009 report, Dr. Raeburn M. Jenkins, a treating Board-certified
orthopedic surgeon, noted appellant’s cervical problems began in 1986 when she was involved in
an employment-related automobile accident. He noted that she had permanent work restrictions
since 1992. Appellant attributed the worsening of her symptoms to a temporary job, which
required extensive time on the telephone and sitting at a desk. Dr. Jenkins diagnosed
degenerative cervical disc disease without myelopathy and cervical pain.
On February 18, 2009 Dr. Jenkins reported that appellant was seen for complaints of
cervical pain and an evaluation for new permanent work restrictions to fit her new job. He
diagnosed degenerative cervical disc disease without myelopathy and cervical pain.
By decision dated August 11, 2009, the Office denied appellant’s claim. It found the
medical evidence insufficient to establish that her degenerative cervical disc disease had been
caused or aggravated by the work factors she identified.
In a letter dated September 8, 2009, appellant’s representative requested an oral hearing
before an Office hearing representative.
By letter dated November 4, 2009, appellant and her representative were advised as to the
date, time and location for her hearing.
In a November 10, 2009 letter, appellant’s representative requested a teleconference
hearing instead of a video conference hearing.
The Office hearing representative, in a November 16, 2009 letter, advised that she was
unable to accommodate appellant’s request for a teleconference instead of an oral hearing. She
stated that a review of the written record instead of an oral hearing was possible and that
appellant should respond before the scheduled hearing date. No response was received.
By decision dated January 4, 2010, the Office hearing representative found that appellant
had abandoned her request for an oral hearing.
LEGAL PRECEDENT -- ISSUE 1
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition

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for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.1
Under the Federal Employees’ Compensation Act, 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.2 When the aggravation is temporary and leaves
no permanent residuals, compensation is not payable for periods after the aggravation ceased.3
Causal relationship is a medical issue4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment.6 The opinion of the physician must be based on a complete
factual and medical background of the claimant,7 must be one of reasonable medical certainty8
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.9
ANALYSIS -- ISSUE 1
Appellant filed an occupational disease claim on January 19, 2009 alleging that her job
duties of data entry and prolonged sitting aggravated her preexisting degenerative neck disease
and cervical strain. The Board finds that the medical evidence of record does not contain
probative medical opinion on the issue presented. In support of her claim, appellant submitted
reports dated January 23 and February 18, 2009 from Dr. Jenkins, a treating Board-certified
orthopedic surgeon, who reported in a January 23, 2009 report that her cervical problems began
in 1986 as the result of an employment-related automobile accident and that she has had
permanent work restrictions since 1992. Dr. Jenkins diagnosed degenerative cervical disc
disease without myelopathy and cervical pain in his January 23 and February 18, 2009 reports.
In a February 18, 2009 report, he stated that appellant was seen for her complaints of cervical
1

See O.W., 61 ECAB ___ (Docket No. 09-2110, issued April 22, 2010); Roy L. Humphrey, 57 ECAB 238 (2005);
Ruby I. Fish, 46 ECAB 276 (1994).
2

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

3

Id.

4

E.K., 61 ECAB ___ (Docket No. 09-1827, issued April 21, 2010); Michael S. Mina, 57 ECAB 379 (2006).

5

W.D., 61 ECAB ___ (Docket No. 09-658, issued October 22, 2009); Roma A. Mortenson-Kindschi, 57 ECAB
418 (2006).
6

J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009; Sedi L. Graham, 57 ECAB 494 (2006).

7

D.G., 59 ECAB 734 (2008); Sandra D. Pruitt, 57 ECAB 126 (2005).

8

I.R., 61 ECAB ___ (Docket No. 09-1229, issued February 24, 2010); Roy L. Humphrey, supra note 1.

9

N.M., 60 ECAB ___ (Docket No. 08-2081, issued September 8, 2009); Kathryn E. Demarsh, 56 ECAB
677 (2005).

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pain and permanent work restrictions to fit her new job. The opinion of Dr. Jenkins must be
based on a complete factual and medical background, 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 compensable employment factors identified by
the claimant. Because the reports from him do not reference contributing employment factors
identified by appellant of data entry and prolonged sitting and also do not provide an opinion as
to whether employment factors caused or adversely affected her cervical conditions, they are
insufficient to meet her burden of proof.10
The Board finds that appellant failed to meet her burden of proof to establish a
prima facie claim for compensation. Although appellant submitted a statement which identified
the factors of employment that she believed caused or aggravated her preexisting conditions of
cervical strain and degenerative neck disease, she failed to submit any probative medical
evidence in support of her claim. The Office informed her of the need to submit a physician’s
opinion which explained how the claimed condition was causally related to the implicated
employment factors. Appellant failed to submit any medical evidence sufficient to establish her
claim.11
An award of compensation may not be based on surmise, conjecture or speculation.12
Neither the fact that appellant’s condition became apparent during a period of employment nor
her belief that her condition was caused or aggravated by her employment is sufficient to
establish causal relationship.13 Causal relationship must be established by rationalized medical
opinion evidence and she failed to submit such evidence. Consequently, appellant has not met
her burden of proof to establish that preexisting degenerative neck disease and cervical strain is
causally related to the employment factors of data entry and prolonged sitting that she identified.
The Board will affirm the Office’s August 11, 2009 decision.
LEGAL PRECEDENT -- ISSUE 2
The Office’s regulations address the requirements for obtaining a hearing and provide
that a teleconference may be substituted for the oral hearing at the discretion of the hearing
representative.14 Scheduling is at the sole discretion of the hearing representative and is not
reviewable.15 The legal authority governing abandonment of hearings rests with the procedure
manual of the Office which provides that a hearing can be considered abandoned only under very

10

See K.W., 59 ECAB 271 (2007); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie Miller, 53 ECAB 697 (2002)
(medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship).
11

Donald W. Wenzel, 56 ECAB 390 (2005); Richard H. Weiss, 47 ECAB 182 (1995).

12

D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).

13

W.D., supra note 5; Sandra D. Pruitt, supra note 7.

14

20 C.F.R. §§ 10.615, 10.616.

15

Id. at § 10.622(b).

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limited circumstances.16 The following conditions must be present: the claimant has not
requested a postponement; the claimant has failed to appear at a scheduled hearing; and the
claimant has failed to provide any notification for such failure within 10 days of the scheduled
date of the hearing.17 Under these circumstances, the Office will issue a formal decision finding
that the claimant has abandoned his or her request for a hearing.18
ANALYSIS -- ISSUE 2
On September 8, 2009 appellant’s counsel requested a hearing. By letter dated
September 15, 2009, the Office informed her of the hearing procedure and on November 4, 2009
informed appellant and her representative that a hearing was scheduled for December 8, 2009 at
10:00 a.m. and gave the address for the hearing. Appellant’s representative requested a
teleconference in a November 10, 2009 letter, which the Office hearing representative denied.
The Office hearing representative advised appellant and her representative in a November 16,
2009 letter that she was unable to accommodate appellant’s request for a teleconference instead
of an oral hearing. She stated that a review of the written record instead of an oral hearing was
possible and that appellant should respond before the scheduled hearing date. No response was
received.
The Board thus finds that the November 4 and 16, 2009 Office communications put
appellant on notice that a hearing had been scheduled and that her request for a telephonic
hearing could not be accommodated. Appellant did not communicate with the Office either
before or within 10 days after the scheduled hearing to request a postponement or explain why
she did not appear for the scheduled hearing. The record thus supports that she did not request a
postponement of the December 8, 2009 hearing, that she failed to appear by not arriving for the
scheduled hearing and that she failed to provide any notification for such failure within 10 days
of the scheduled date of the hearing. As this meets the conditions for abandonment specified in
the Office’s procedure manual, the Office properly found that appellant abandoned her request
for an oral hearing before an Office hearing representative.19
CONCLUSION
The Board finds that appellant did not establish that her preexisting cervical strain and
degenerative neck disease had been aggravated by her employment duties and that she
abandoned a hearing scheduled for December 8, 2009.

16

Claudia J. Whitten, 52 ECAB 483 (2001).

17

G.J., 58 ECAB 651 (2007); Levi Drew, Jr., 52 ECAB 442 (2001).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see also C.T., 60 ECAB ___ (Docket No. 08-2160, issued May 7, 2009); G.J., supra
note id.; Chris Wells, 52 ECAB 445 (2001).
19

Claudia J. Whitten, supra note 16.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 4, 2010 and August 11, 2009 are affirmed.
Issued: December 21, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 12-518
Issued: November 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 10, 2010 appellant filed a timely appeal of the June 29 and December 19,
2011 merit decisions 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 is entitled to an additional schedule award for her left
lower extremity impairment.
On appeal, appellant contends that a medical report of an attending physician is sufficient
to establish her entitlement to an additional schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted under OWCP File No. xxxxxx0532 that on December 9, 1999 appellant,
then a 55-year-old mail processing clerk, sustained a lumbar and left knee strain and left
meniscus tear and displacement meniscal fragment when she tried to move a large garbage can at
work.
In a February 10, 2002 decision, OWCP granted appellant a schedule award for 36
percent impairment of the left lower extremity.
On June 8, 2008 appellant filed a claim for an additional schedule award for impairment
to her left lower extremity.
By letter dated December 3, 2009, OWCP requested that Dr. Sofjan Lamid, an attending
Board-certified physiatrist, provide an assessment of appellant’s permanent impairment due to
her work-related conditions, which should include a finding that she had reached maximum
medical improvement and a description of her impairment, schedule award rating and subjective
complaints causing the impairment according to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
In a permanent impairment worksheet dated December 20, 2009, Dr. Lamid advised that
appellant had 27 percent impairment of the left lower extremity due to her left hip, knee and foot
strains. Regarding the left hip strain, he assigned a class 2 impairment. Dr. Lamid also assigned
a grade modifier of 2 each for functional history, physical examination and clinical studies. He
advised that this resulted in a grade B impairment or 10 percent impairment. Dr. Lamid assigned
the same grade modifier of 2 each for functional history, physical examination and clinical
studies regarding appellant’s left knee and foot strains which resulted in the same grade B
impairment or 10 percent impairment for each body part. He combined the 10 percent
impairment ratings for the left hip, knee and foot and advised that it resulted in 27 percent
impairment of the left lower extremity. Dr. Lamid then determined that appellant had 58 percent
regional impairment of the extremity. He concluded that she reached maximum medical
improvement on January 30, 2008.
On March 1, 2010 Dr. Ronald Blum, a Board-certified orthopedic surgeon serving as an
OWCP medical adviser, reviewed appellant’s medical record, including Dr. Lamid’s findings.
He stated that Dr. Lamid did not provide adequate descriptions of abnormality for him to
determine the extent of appellant’s impairment. Dr. Blum noted that neither a hip nor foot strain
had been accepted as work related. He further noted that there was no class 2 designation in the
grids for a hip, knee and foot strain. Dr. Blum recommended that OWCP obtain an impairment
2

Prior to the instant claim, OWCP accepted that on March 25, 1993 appellant sustained a work-related contusion
of the head and cervical strain under OWCP File No. xxxxxx997. Subsequently, it accepted that on October 3, 1996
he sustained an employment-related contusion of the right elbow and knee under OWCP File No. xxxxxx129. On
August 8, 2003 OWCP accepted that on June 12, 2003 appellant sustained a contusion of the left upper limb, arm
and shoulder, and left shoulder sprain while in the performance of duty under OWCP File No. xxxxxx948. In a
June 14, 2004 decision, the Board affirmed an OWCP decision dated December 22, 2003, finding that appellant
failed to establish that she was entitled to wage-loss compensation for disability commencing September 13, 2003
due to her June 12, 2003 employment injuries. Docket No. 04-705 (issued June 14, 2004).

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evaluation by an appropriate Board-certified specialist that included the date of maximum
medical improvement, a detailed description of objective and subjective findings and an
impairment rating in accordance with the sixth edition of the A.M.A., Guides.
By letter dated May 28, 2010, OWCP referred appellant, together with a statement of
accepted facts and the case record, to Dr. Byron T. Jeffcoat, a Board-certified orthopedic
surgeon, for a second opinion. In an August 18, 2010 report, Dr. Jeffcoat noted the history of
injury, a review of the medical records and his examination findings. He stated that appellant
was noncooperative to his requests during the examination and falsely accused him of touching
her too hard. Dr. Jeffcoat’s examination was based on his observation of her during their
discussion. Appellant completely refused to do anything that he asked her to do. Dr. Jeffcoat
reported essentially normal findings. He stated that plain x-rays taken several days after the
December 1999 employment injuries showed degenerative arthritis of the left knee. A
subsequent magnetic resonance imaging (MRI) scan of the left knee demonstrated severe
degenerative arthritis and degeneration of the meniscus. Lumbar spine x-rays showed a lot of
facet sclerosis and degenerative changes. An MRI scan revealed spinal canal stenosis and
degenerative changes throughout the lumbar spine. Based on his review of the medical records,
Dr. Jeffcoat advised that appellant had degenerative arthritis in her knees and back prior to her
accepted injuries. Appellant also had acromioclavicular joint degenerative changes and no
evidence of a rotator cuff tear. Dr. Jeffcoat advised that appellant only suffered sprains to the
lumbar spine and left knee as a result of her 1999 employment injury and that she had no
residuals of these conditions. He further advised that the meniscus injury resulted from
degenerative changes. Dr. Jeffcoat concluded that appellant had no additional disability or
impairment as a result of the accepted December 1999 employment injuries.
On September 14, 2010 Dr. Blum reviewed Dr. Jeffcoat’s findings. He advised that
appellant had no impairment of either the right or left lower extremity under the sixth edition of
the A.M.A., Guides based on Dr. Jeffcoat’s finding that she had no residuals of her December 9,
1999 employment injuries.
In a decision dated September 17, 2010, OWCP denied appellant’s claim for an
additional schedule award, finding that the weight of the medical evidence rested with the
opinions of Dr. Jeffcoat and Dr. Blum.
On September 26, 2010 appellant requested a telephone hearing with an OWCP hearing
representative.
In a May 17, 2011 decision, an OWCP hearing representative set aside the September 17,
2010 decision and remanded the case to OWCP for further development of the medical evidence.
He found that Dr. Jeffcoat’s report was not entitled to the weight of the medical evidence. The
hearing representative did not complete a thorough physical examination as he was unable to
adequately examine appellant. Dr. Jeffcoat’s report was not based on an accurate history of
injury as he ignored her accepted meniscus tear and displacement of the left meniscus fragment
of the left knee. The hearing representative found that Dr. Lamid failed to provide sufficient
rationale in support of his impairment ratings. On remand, he instructed OWCP to obtain a
supplemental report from Dr. Lamid containing his examination findings and explanation on
how he used specific tables and pages in the A.M.A., Guides to arrive at his impairment rating.

3

By letter dated May 24, 2011, OWCP requested a supplemental report from Dr. Lamid
providing an assessment of appellant’s permanent impairment that included his examination
findings based on the sixth edition of the A.M.A., Guides.
In a June 4, 2011 permanent impairment worksheet, Dr. Lamid reiterated his prior
calculations and opinion that appellant had 27 percent impairment of the left lower extremity and
57 percent combined impairment of the same extremity.
In a June 29, 2011 decision, OWCP denied an additional schedule award for appellant’s
left lower extremity, finding that she did not submit the requested evidence.
On July 7, 2011 appellant requested a telephone hearing before an OWCP hearing
representative.
In a June 7, 2011 report, Dr. Lamid noted the accepted employment injuries and
appellant’s complaints of moderate-to-severe continuous pain in her back and left knee and leg.
Appellant also complained of weakness in her left leg. On examination of the thoracolumbar
spine, Dr. Lamid reported flexion to 70 degrees with pain and spasm on the paralumbar muscle.
Pain radiated to the left thigh. The left knee was swollen and appellant experienced pain on
squatting with limited range of motion. She had weakness of the left leg muscles and pain in the
left leg and ankle when walking. Muscle strength of the left quadriceps was 3/5. An MRI scan
showed a laceration of the medial meniscus of the left knee. Dr. Lamid divided appellant’s
accepted left leg strain into three regions, a left hip, knee and ankle strain based on page 493 of
the sixth edition of the A.M.A., Guides. Regarding the left hip strain, he utilized Figure 15-31
on page 480 and assigned a class 2 impairment and a grade modifier of 2 each for functional
history, physical examination and clinical studies due to moderate signs and symptoms.
Dr. Lamid advised that this resulted in grade B impairment or 10 percent impairment. He also
assigned a class 2 impairment and grade modifier of 2 each for functional history, physical
examination and clinical studies for the left knee strain due to moderate signs and symptoms
which resulted in grade B impairment or 10 percent impairment. Regarding the left ankle strain,
Dr. Lamid assigned a class 2 impairment and a grade modifier of 2 each for functional history,
physical examination and clinical studies due to moderate signs and symptoms, resulting in grade
B impairment or 10 percent impairment. Using the Combined Values Chart, he determined that
appellant had 27 percent impairment of the left lower extremity. Dr. Lamid advised that, based
on range of motion measurements for the left hip, appellant had five percent impairment due to
80 degrees of flexion and five percent impairment due to 15 degrees of extension under Table
16-24 on page 549 of the A.M.A., Guides. The left knee had 90 degrees of flexion which
represented 10 percent impairment under Table 16-23 on page 549 of the A.M.A., Guides. The
left ankle had 15 degrees of plantar flexion and 10 degrees of dorsiflexion which each
represented seven percent impairment under Table 16-22 on page 549 of the A.M.A., Guides.
Using the Combined Values Chart, Dr. Lamid determined that appellant had 30 percent
impairment of the left lower extremity. He added the 27 percent impairment rating for left hip,
knee and ankle strains and the 30 percent impairment rating for loss of range of motion to
calculate 57 percent impairment for the left lower extremity.
On August 16, 2011 Dr. Blum reviewed Dr. Lamid’s June 7, 2011 report and advised that
his findings were not probative. He stated that a class 2, grade B impairment for left hip and

4

knee strains were not found in Table 16-4 and Table 16-3, respectively. Dr. Blum further stated
that a class 2, grade B left ankle strain was not found in Table 16-2 except in specific cases
involving tendinitis or rupture of specific tendons. He related that the use of range of motion
measurements to determine impairment could only be used as a standalone method and only if
no other method was available. Dr. Blum noted that hip and foot strains had not been accepted
as work related. He concluded that Dr. Lamid’s report was not adequate for him to recommend
impairment in this case. Dr. Blum recommended an impairment evaluation by an appropriate
Board-certified specialist that included the date of maximum medical improvement, a detailed
description of objective findings and pertinent subjective findings based on the proper tables of
the sixth edition of the A.M.A., Guides.
In a December 19, 2011 decision, an OWCP hearing representative affirmed the June 29,
2011 decision. The hearing representative found that the weight of the medical evidence rested
with Dr. Blum’s August 16, 2011 opinion.
LEGAL PRECEDENT
A claim for an increased schedule award may be based on new exposure.3 Absent any
new exposure to employment factors, a claim for an increased schedule award may also be based
on medical evidence indicating that the progression of an employment-related condition has
resulted in a greater permanent impairment than previously calculated.4
In determining entitlement to a schedule award, preexisting impairment to the scheduled
member should be included.5 Any previous impairment to the member under consideration is
included in calculating the percentage of loss except when the prior impairment is due to a
previous work-related injury, in which case the percentage already paid is subtracted from the
total percentage of impairment.6
The schedule award provision of FECA,7 and its implementing federal regulations,8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.9 The A.M.A., Guides has been adopted by the implementing
3

A.A., 59 ECAB 726 (2008); Tommy R. Martin, 56 ECAB 273 (2005); Rose V. Ford, 55 ECAB 449 (2004).

4

James R. Hentz, 56 ECAB 573 (2005); Linda T. Brown, 51 ECAB 115 (1999).

5

Carol A. Smart, 57 ECAB 340 (2006); Michael C. Milner, 53 ECAB 446 (2002).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7(a)(2) (January 2010).
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Ausbon N. Johnson, 50 ECAB 304 (1999).

5

regulations as the appropriate standard for evaluating schedule losses.10 Effective May 1, 2009,
OWCP adopted the sixth edition of the A.M.A., Guides11 as the appropriate edition for all
awards issued after that date.12
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).13 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.15
ANALYSIS
OWCP accepted that appellant sustained a lumbar and left knee strain and left meniscus
tear and displacement meniscal fragment due to her December 9, 1999 employment injury. By
decision dated June 8, 2008, it awarded her 36 percent permanent impairment to the left lower
extremity. Appellant subsequently requested an increased award. By decisions dated June 29
and December 19, 2011, OWCP found that she was not entitled to an additional schedule award
for the left lower extremity. The Board finds that appellant did not meet her burden of proof to
establish that she sustained greater impairment.
On June 7, 2011 Dr. Lamid, an attending physician, opined under the sixth edition of the
A.M.A., Guides that appellant had 57 percent impairment of the left lower extremity based on
appellant’s left hip, knee and ankle strains. The Board, however, notes that this impairment
rating was based on conditions which have not been accepted as work related.16 A schedule
award can be paid only for a condition related to an employment injury. The claimant has the
burden of proving that the condition for which a schedule award is sought is causally related to
her employment.17 Dr. Lamid did not provide any medical rationale explaining how the left hip
10

Ronald R. Kraynak, 53 ECAB 130 (2001).

11

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

12

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
13

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

14

Id. at 521.

15

See Federal (FECA) Procedure Manual, supra note 6, Chapter 2.808.6(d) (January 2010).

16

See G.A., Docket No. 09-2153 (issued June 10, 2010) (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).
17

Veronica Williams, 56 ECAB 367, 370 (2005).

6

and ankle strains were causally related to the accepted December 9, 1999 employment injuries.
The Board finds, therefore, that his report is of diminished probative value and is insufficient to
establish increased permanent impairment to appellant’s left lower extremity causally related to
the accepted injuries.
On August 16, 2011 Dr. Blum, an OWCP medical adviser, reviewed Dr. Lamid’s
evaluation and opined that his findings were of diminished probative value. He explained that
his impairment rating was based on the nonaccepted left hip and ankle strains. Dr. Blum stated
that Dr. Lamid did not properly utilize the sixth edition of the A.M.A., Guides as Tables 16-4
and 16-318 did not provide a class 2, grade B impairment for left hip and knee strains,
respectively, and Table 16-219 did not provide the same impairments for a left ankle sprain
except in specific cases involving tendinitis or rupture of specific tendons. He noted that the use
of range of motion measurements to determine impairment could only be used as a standalone
method and only if no other method was available.20 Dr. Blum concluded that Dr. Lamid’s
findings were not adequate for him to determine the extent of appellant’s impairment. The
Board finds that there is no probative medical evidence establishing that appellant has more than
36 percent impairment of her left lower extremity causally related to the December 9, 1999
accepted employment injuries. Appellant is not entitled to an increased schedule award.
On appeal, appellant contended that Dr. Lamid’s report is sufficient to establish her
entitlement to an additional schedule award. For the reasons noted, Dr. Lamid’s report is of
diminished probative value and not sufficient to represent the weight of medical opinion.
Appellant can request an additional schedule award and submit probative medical evidence to
OWCP on the issue at any time.
CONCLUSION
The Board finds that appellant has not established entitlement to an additional schedule
award for her left lower extremity impairment.

18

A.M.A., Guides 509-15.

19

Id. at 501-8.

20

Id. at 543, section 16.7, Range of Motion Impairment.

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ORDER
IT IS HEREBY ORDERED THAT the December 19 and June 29, 2011 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: November 6, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
CONTRACTING MANAGEMENT AGENCY
EAST, Stratford, CT, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1890
Issued: August 13, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 20, 2009 appellant filed a timely appeal of a May 5, 2009 decision of the Office
of Workers’ Compensation Programs affirming the September 22, 2008 termination of her
compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective September 22, 2008.
FACTUAL HISTORY
On April 18, 2003 appellant, then a 45-year-old contract administrator, filed a traumatic
injury claim alleging that on April 17, 2003 she fell on a sidewalk and injured her low back and
right knee in the performance of duty. She stopped work on April 17, 2003 and did not return.

The Office accepted appellant’s claim for low back strain and right knee strain and paid
appropriate compensation benefits.
Initial reports from Dr. Kristen Kaczanowski, a chiropractor, dated between April 21 and
June 10, 2003 diagnosed lumbar and cervical strain/sprain and possible right knee meniscal
ligamentous injury. He advised that appellant was totally disabled for work beginning April 21,
2003 and it was unknown when she could return.
In a May 17, 2003 magnetic resonance imaging (MRI) scan report of appellant’s right
knee, Dr. Ruben Kier, a Board-certified diagnostic radiologist, found degenerative articular
changes of the right knee, most prominent in the patellofemoral compartment, including the
chondromalacia patella as well as the medial joint compartment. Dr. Kier also found right knee
effusion.
On August 21, 2003 the Office referred appellant with a statement of accepted facts to
Dr. Peter Naiman, a Board-certified orthopedic surgeon, for a second opinion. In a
September 11, 2003 report, Dr. Naiman diagnosed lumbosacral syndrome with questionable
radicular component, contusion of the right knee with patellofemoral degenerative change and
medial compartment degenerative change. He advised that appellant was able to work light duty
with restrictions. Dr. Naiman noted that her weight placed greater stress on her lumbosacral
spine area which could be a contributing factor to her condition. In a work-capacity evaluation
dated September 22, 2003, Dr. Naiman indicated that appellant could work eight hours per day
with restrictions.
On March 1, 2004 the Office referred appellant with a statement of accepted facts to
Dr. David Brown, a Board-certified orthopedic surgeon, for an evaluation to resolve the conflict
in medical opinion between Dr. Kaczanowski and Dr. Naiman.1 In a March 30, 2004 report,
Dr. Brown indicated that appellant sought treatment for right knee and right side back pain from
Anniston Orthopedic Associates on April 15, 2003 two days before her work injury. He
diagnosed myofascial strain of the lumbar spine and chondromalacia patella of the right knee.
Dr. Brown opined that appellant could work full time with restrictions. He noted minimal
objective orthopedic findings. Dr. Brown also noted that weight reduction would decrease
appellant’s back and knee complaints. He further noted that she had not sustained any
significant orthopedic disability to either her lumbar spine or right knee resulting from a work

1

The Board notes that the Office improperly identified Dr. Brown as an impartial medical specialist as there was
no medical conflict under the Act. 5 U.S.C. § 8123(a) provides that, “if there is a disagreement between the
physician making the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.” See Delphia Y. Jackson, 55 ECAB 373 (2004) (a
conflict under section 8123(a) cannot exist unless there is a conflict between an attending physician and an Office
physician). The Office found a conflict between Drs. Kaczanowski, for appellant and Naiman, for it. However,
Dr. Kaczanowski was not a physician under the Act as she did not diagnose a spinal subluxation based on x-ray. 5
U.S.C. § 8101(2) provides that the term “physician” includes chiropractors only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x ray to exist. See Mary A. Ceglia, 55 ECAB 626 (2004) (a chiropractor is not a physician under
the Act unless it is established that there is a spinal subluxation as demonstrated by x-ray to exist). As
Dr. Kaczanowski is not a physician, she did not create a medical conflict under 5 U.S.C. § 8123(a).

2

injury. In a work-capacity evaluation of the same date, Dr. Brown advised that appellant was
able to return to work for eight hours per day with permanent restrictions.
On July 30, 2004 the Office found a job offer made to appellant by the employing
establishment to be suitable based on Dr. Brown’s work restrictions. In a November 4, 2004
decision, the Office terminated appellant’s entitlement to compensation benefits effective
November 4, 2004 as she had refused suitable work.
In an August 22, 2006 decision, an Office hearing representative reversed the
November 4, 2004 decision and reinstated appellant’s compensation benefits finding that the
Office did not follow its procedures in providing notice to appellant regarding the termination.
The hearing representative directed appellant’s referral to Dr. Brown for an updated evaluation.
In a September 29, 2006 supplemental report, Dr. Brown diagnosed myofascial strain of
the lumbar spine and chondromalacia patella of the right knee. He noted that during his
March 30, 2004 examination, he advised that appellant could return to working her previous
position with restrictions. Dr. Brown indicated that his opinion remained the same and that he
strongly believed that appellant was capable of resuming her previous job as a contract
administrator without restrictions. He opined that appellant’s ongoing complaints were mostly
subjective with minimal objective findings. Dr. Brown did not believe that she sustained any
prominent disability or physical impairment due to her 2003 fall. He advised no further
diagnostic testing or orthopedic treatment although he indicated that chiropractic treatment was
palliative for subjective complaints. In a work-capacity evaluation dated September 26, 2006
Dr. Brown indicated that appellant could return to full duty with no restrictions.
On November 13, 2006 the Office issued a proposed termination of compensation
benefits finding that the weight of the medical evidence rested with Dr. Brown.2 In a January 4,
2007 decision, the Office terminated appellant’s compensation benefits effective that day.
On January 26, 2007 appellant requested reconsideration and asserted that the Office did
not send correspondence to her authorized representative’s current address. She noted that her
representative did not receive copies of decisions dated between November 4, 2004 and
January 4, 2007 or a copy of appellant’s referral to Dr. Brown.
In x-ray reports dated April 25, 2003 of appellant’s lumbosacral spine and right knee,
Dr. Tatiana Kain, a Board-certified diagnostic radiologist, found no evidence of fracture or
dislocation, but noted degenerative changes at the L1-2 level. Appellant also submitted several
reports from Dr. Kaczanowski.
In an April 26, 2007 decision, the Office vacated the January 4, 2007 decision and
reinstated appellant’s compensation benefits retroactive to January 21, 2007 finding that the
Office failed to properly notify her representative of her referral to Dr. Brown.

2

A copy of this notice was sent to an old address of appellant’s representative. The notice was returned to the
Office indicating “forwarding order expired.”

3

On April 30, 2007 appellant filed a claim for compensation beginning January 27, 2007.
On May 17, 2007 the Office referred appellant with a statement of accepted facts to
Dr. Frank Schildgen, a Board-certified orthopedic surgeon, for a second opinion regarding the
extent of any residuals or disability due to her work injury. In a June 5, 2007 report,
Dr. Schildgen provided a detailed history of injury and noted that appellant denied any history of
low back or right knee problems. He also noted that Dr. Brown’s March 30, 2004 report
mentioned that appellant sought orthopedic evaluation on April 15, 2003 for low back and right
knee pain, which she denied. Dr. Schildgen found that appellant ambulated with normal gait and
station and could heel and toe walk without difficulty. His findings also included diffuse
tenderness over the lower lumbar spine, no sciatic notch tenderness, moderately restricted lumbar
range of motion in all directions and no palpable muscle spasm with range of motion testing.
Dr. Schildgen noted that extreme sensitivity to light touch over the lower lumbar spine and no
focal, motor or sensory deficits present in the lower extremities. Straight-leg raising was
negative and appellant was able to arise from a chair without hesitation. He diagnosed
degenerative disease of the lumbar spine and right knee. Dr. Schildgen opined that appellant did
not have any continued residuals or disability that was work related. He further stated that any
symptoms appellant experienced in her low back or right knee in all medical probability
attributed to degenerative conditions preexisting her April 17, 2003 injury. Dr. Schildgen noted
that medical records showed that appellant was previously diagnosed with strains in the low back
and right knee, but that she was not presently dealing with these issues. He reviewed appellant’s
job duties and opined that she could resume position. Dr. Schildgen noted that no further
medical treatment was necessary, but that appellant would benefit from a weight reduction
program. In a work-capacity evaluation dated September 10, 20033 he indicated that appellant
could perform her usual job and listed restrictions.
On June 22, 2007 the Office issued a notice of proposed termination of compensation
benefits finding that Dr. Schildgen represented the weight of the medical evidence finding that
appellant no longer had any disability or residuals due to the accepted work injury.
In a July 20, 2007 statement, appellant disagreed with the proposed termination of
compensation benefits asserting that Dr. Schildgen’s opinion insufficiently supported
modification to her benefits. She also asserted there was no reliable and probative medical
evidence of record for Dr. Schildgen to conclude that appellant’s lumbar and right knee
conditions were degenerative and preexisting. In particular, appellant submitted a document
from Anniston Orthopaedic Associates indicating that it had no history of her in its files.
On October 16, 2007 the Office requested a supplemental report from Dr. Schildgen
regarding whether appellant’s degenerative disease of the lumbar spine and right knee preexisted
her April 17, 2003 injury or whether her work injury contributed to her degenerative conditions.
It noted that the evidence indicated that appellant was not treated with Anniston Orthopedic
Associates. It also requested Dr. Schildgen to explain with medical rationale whether appellant’s
work-related conditions had resolved without residuals or disability.
3

The Board notes that the date of this evaluation is a typographical error as the record reflects that Dr. Schildgen
first examined appellant on June 5, 2007.

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In a November 2, 2007 supplemental report, Dr. Schildgen opined that appellant’s
degenerative conditions preexisted her April 17, 2003 fall as x-rays of her lumbar spine and right
knee dated April 25, 2003 showed significant degenerative change. He opined that it was
medically extremely improbable that these degenerative conditions could have developed from
the April 17, 2003 fall. Dr. Schildgen further noted that at the time of the fall appellant did not
sustain any significant injury, fracture or disability of any great extent. He indicated that
appellant had significant degenerative change in the lumbar spine and right knee that in all
medical probability continued to be symptomatic and that the fall could have temporarily
aggravated these degenerative conditions, but would not have permanently worsened them.
In a September 22, 2008 decision, the Office terminated appellant’s compensation
benefits effective that day.
On September 29, 2008 appellant requested a telephone hearing, which was held on
February 12, 2009. At the hearing, she testified that her right knee was better, but that she still
had low back pain.
In a May 5, 2009 decision, an Office hearing representative affirmed the September 22,
2008 decision finding that the weight of the medical evidence rested with Dr. Schildgen who
found that appellant’s injury-related conditions and disability had ceased. The hearing
representative directed that the Office pay wage-loss compensation from January 21, 2007 to
September 22, 2008.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.4 After it has determined that an employee has disability
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.5 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, the Office must establish that the claimant no
longer has residuals of an employment-related condition, which requires further medical
treatment.7

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
5

Vivien L. Minor, 37 ECAB 541 (1986).

6

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

7

E.J., 59 ECAB ___ (Docket No. 08-1350, issued September 8, 2008).

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ANALYSIS
The record reflects that appellant sustained an injury on April 17, 2003 to her right knee
and low back. The Office accepted her claim for right knee and low back strain. It terminated
her compensation benefits effective September 22, 2008 based on reports from Dr. Schildgen.
In a June 11, 2007 report, Dr. Schildgen noted the history of the April 17, 2003 work
injury and advised that appellant had degenerative lumbar and right knee conditions that
preexisted her work injury. He advised that appellant’s low back and right knee symptoms
attributed to these preexisting conditions and, therefore, were not related to the April 17, 2003
work injury. Dr. Schildgen’s examination revealed normal gait, diffuse tenderness over the
lower lumbar spine and moderately restricted lumbar range of motion. Straight-leg raising was
negative and appellant was able to arise from a chair without hesitation. Dr. Schildgen
diagnosed degenerative disease of the lumbar spine and right knee. After reviewing appellant’s
record and conducting his own examination, he determined that she did not have any workrelated continued residuals or disability and that she could resume her position.
In order to address whether appellant’s work injury contributed to her degenerative
lumbar and right knee conditions and whether her work-related conditions had resolved without
residuals and disability, Dr. Schildgen submitted a supplemental report dated November 2, 2007.
He reiterated his opinion that appellant’s degenerative conditions preexisted the April 17, 2003
work injury. Dr. Schildgen explained his opinion by noting that x-ray taken on April 25, 2003
revealed significant degenerative change in the lumbar spine and right knee and that it was
“medically extremely improbable” that such degenerative conditions could have developed from
the April 17, 2003 injury that occurred only one week prior. He further explained that at the time
of injury, appellant did not sustain any significant injury, fracture or disability and that any
aggravation the injury may have caused to her degenerative conditions would not have been
permanent.
The Board finds that Dr. Schildgen’s reports represent the weight of the medical evidence
and that the Office properly relied on his reports in terminating appellant’s benefits.
Dr. Schildgen’s opinion is based on proper factual and medical history and his report contained a
detailed summary of relevant medical evidence. Moreover, he analyzed this information in
addition to his own examination findings to reach a reasoned conclusion regarding appellant’s
condition.8 He found no basis on which to attribute any residuals or continued disability to her
employment injury.
Appellant provided no additional medical evidence to support that she continued to have
any residuals or disability due to her accepted injury. Consequently, the Board finds that the
weight of the medical evidence establishes that appellant’s lumbar and right knee condition had
ceased and that she had no residuals or continued disability due to her accepted condition.

8

See Naomi Lilly, 10 ECAB 560 (1959) (the opportunity for and thoroughness of examination, the accuracy and
completeness of the doctor’s knowledge of the facts and medical history, the care of analysis manifested and the
medical rationale expressed in support of the doctor’s opinion are factors which enter into the weight of an
evaluation).

6

Therefore, the Office met its burden of proof to terminate appellant’s compensation benefits
effective September 22, 2008.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective September 22, 2008.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decisions dated May 5, 2009 and September 22, 2008 are affirmed.
Issued: August 13, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Egg Harbor Township, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0114
Issued: December 23, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 17, 2019 appellant, through counsel, filed a timely appeal from a May 8, 2019
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 this case.3

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.

3
The Board notes that, following the May 8, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for
authorization of left knee arthroplasty.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 26, 2015 appellant, a 47-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on that date she sustained injuries to her right hip and left
knee when she twisted her right hip and left knee while in the performance of duty. She stopped
work that day and returned to work in a full-time limited-duty capacity on April 6, 2015. OWCP
initially accepted the claim for sprains of the right hip, left knee and right shoulder, and
subsequently expanded acceptance of the claim to include left knee medial meniscus tear.
On September 6, 2016 OWCP received a request for authorization of a left knee total
arthroplasty. By decision dated April 3, 2017, it denied appellant’s request for authorization of a
left knee arthroplasty. OWCP found that Dr. Zachary D. Post, a Board-certified orthopedic
surgeon, appellant’s treating physician, had not established the medical necessity for the requested
procedure and both OWCP’s district medical advisers (DMA) and Dr. Stanley Askin, a Boardcertified orthopedic surgeon, OWCP’s second opinion physician, had opined that the requested
procedure was not medically necessary to treat her accepted employment injury. By decision dated
August 21, 2017, an OWCP hearing representative affirmed the denial of authorization of a left
knee arthroplasty, finding that Dr. Askin’s opinion constituted the weight of the medical evidence.
Appellant appealed to the Board. By decision dated November 7, 2018, the Board affirmed
OWCP’s August 21, 2017 decision. The Board found that appellant’s treating physicians’
opinions were incomplete as they did not address appellant’s preexisting degenerative condition
of the left knee or appellant’s history of nonoccupational rheumatoid arthritis. The Board
concluded that OWCP did not abuse its discretion in denying authorization for the requested left
knee arthroplasty as the evidence established that the procedure was not recommended for a
condition causally related to the accepted employment injury and that it was not medically
warranted.5
In a September 5, 2018 report, Dr. Andrew Farber, an osteopathic physician specializing
in orthopedic surgery, acting as an OWCP second opinion physician, reviewed a statement of
accepted facts (SOAF), the evidence of record, and noted examination findings. He opined that
appellant’s left knee condition had not reached maximum medical improvement. Dr. Farber
related that appellant’s examination findings indicated that her left knee medial meniscus tear
remained active and may have worsened. He also noted that appellant had underlying degenerative
changes and a history of rheumatoid arthritis. Dr. Farber opined that appellant could return to

4

Docket No. 18-0543 (issued November 7, 2018).

5

Id.

2

work in a sedentary position with lifting restrictions of 10 pounds. He opined that further treatment
was needed and vicosupplementation should be considered.
Dr. Post continued to submit treatment notes diagnosing primary osteoarthritis of left knee.
In a March 2, 2018 report, Dr. Matthew R. Arkebauer, a Board-certified rheumatologist,
noted that appellant was being treated for rheumatoid arthritis at various sites.
On February 8, 2019 counsel requested reconsideration regarding the denial of appellant’s
request for left knee arthroplasty.
In a December 12, 2018 report, Dr. Post diagnosed primary osteoarthritis of left knee. He
indicated that appellant failed all conservative measures for treatment of her left knee including
medications, injections, physical therapy, and previous arthroscopy. Dr. Post noted positive
findings on examination and indicated that the arthroscopy report demonstrated significant
degenerative change including cartilage breakdown and meniscal tearing isolated to the medial
compartment. He opined that the employment injury of February 26, 2015 was the direct cause of
the required total left knee replacement. Dr. Post indicated that the conservative measures failed
to improve her ability to return to work or decrease her pain. He also indicated that the series of
x-rays taken in 2015, 2016, 2017 and now 2018 demonstrated mild degenerative changes
progressively over the years, which are a clear indication of the causal nature of the February 26,
2015 employment injury.
OWCP also received medical reports and magnetic resonance imaging (MRI) scans
concerning appellant’s right knee condition. Statements from appellant and counsel concerning a
suitability finding were also received. In a January 24, 2019 statement, appellant indicated that
her right knee was getting worse and that she was waiting for her left knee to be repaired.
By decision dated May 8, 2019, OWCP denied modification of its prior decision. It found
that appellant had not established that the accepted employment injury caused or aggravated her
preexisting left knee arthritis and did not establish that the requested left knee total arthroplasty
procedure was medically necessary for treatment of her accepted left knee conditions.
LEGAL PRECEDENT
Section 8103 of FECA6 provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.7 In interpreting this section of FECA, the

6

Supra note 2.

7

5 U.S.C. § 8103(a); see M.P., Docket No. 19-1557 (issued February 24, 2020); M.B., 58 ECAB 588 (2007).

3

Board has recognized that OWCP has broad discretion in approving services provided under
section 8103, and the only limitation on OWCP’s authority is that of reasonableness.8
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.9 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence.10 In order to prove that the procedure is
warranted, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted. Both of these criteria must
be met in order for OWCP to authorize payment.11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of left knee arthroplasty.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s August 21, 2017 decision. The Board
considered that evidence in its November 7, 2018 decision and affirmed OWCP’s denial of he
requested procedure. Findings made in prior Board decisions are res judicata absent any further
review by OWCP under section 8128 of FECA.13
Following the Board’s prior decision, in a December 12, 2018 report, Dr. Post diagnosed
primary osteoarthritis of left knee. He opined that the employment injury of February 26, 2015
directly caused the necessary total left knee replacement. Dr. Post opined that the series of x-rays
taken in 2015, 2016, 2017, and 2018 demonstrated mild degenerative changes progressively over
the years, which was a clear indication that the February 26, 2015 employment injury caused the
current condition. He also indicated that conservative measure had failed. While he identified
8

B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding
that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise
of judgment, or administrative actions which are contrary to both logic, and probable deductions from established
facts).
9

J.M., Docket No. 20-0565 (issued November 5, 2020); see R.M., Docket No. 19-1319 (issued December 10,
2019); Debra S. King, 44 ECAB 209 (1992).
10

B.I., supra note 8; see also K.W., Docket No. 18-1523 (issued May 22, 2019); Bertha L. Arnold, 38 ECAB
282 (1986).
11
P.L., Docket No. 20-0392 (issued October 28, 2020); see T.A., Docket No. 19-1030 (issued November 22, 2019);
Cathy B. Millin, 51 ECAB 331, 333 (2000).
12

See J.P., Docket No. 18-0349 (issued December 30, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3e (January 2013).
13

J.R., Docket No. 20-0211 (issued November 5 2020); see B.R., Docket No. 17-0294 (issued May 11, 2018).

4

preexisting degenerative conditions in appellant’s left knee that could worsen partially due to the
natural aging process, Dr. Post did not distinguish the effects of the aggravation due to age from
the aggravation, if any, due to her federal employment. As noted above, in cases involving a
preexisting condition, the Board has placed special emphasis on the need for complete medical
rationale with a physiological explanation that distinguishes the effects of the natural progression
of the preexisting condition, any effects caused by aging or nonwork-related injuries and the
employment factors.14 This report contains no such rationale and is, thus, insufficient to establish
causal relationship between appellant’s left knee degenerative conditions, her rheumatoid arthritis,
and the accepted employment injury. The Board also notes that Dr. Post’s December 12, 2018
report did not provide further medical rationale substantiating that the requested procedure was
medically necessary. As previously noted, in order to establish that the procedure should be
authorized, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted. Both of these criteria must
be met in order for OWCP to authorize payment.15 The Board therefore finds that Dr. Post’s report
was insufficient to establish that the requested left knee total arthroscopy was medically warranted
as a result of the accepted February 26, 2015 employment injury.
Appellant also provided medical and diagnostic reports pertaining to her right knee
condition. These reports do not offer any medical opinion evidence regarding her left knee
condition and, thus, are not relevant to the issue of whether the requested left knee arthroplasty
was medically warranted and causally related to her accepted February 26, 2015 employment
injury.16 Appellant’s and counsel’s statements are of no probative value in establishing medical
necessity of a requested procedure.
The only limitation on OWCP’s authority in authorizing medical treatment under FECA is
one of reasonableness.17 OWCP obtained a second opinion evaluation, which the Board previously
found was well rationalized and supported a finding that the requested surgical procedure was not
medically warranted as appellant’s underlying left knee preexisting conditions, not the
February 26, 2015 work injury, was responsible for the need for the total arthroplasty. The new
evidence is insufficient to modify that finding. OWCP therefore did not abuse its discretion.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

14

See S.H., Docket No. 19-0631 (issued September 5, 2019); D.F., Docket No. 19-0067 (issued May 3, 2019).

15

Supra note 11

16

5 U.S.C. § 8103. OWCP shall furnish the services which it considers likely to cure, give relief, or reduce the
degree or the period of disability, or aid in lessening the amount of monthly compensation. However, the employee
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of an employmentrelated injury or condition. The employee must also establish that the procedure is medically warranted. T.A., Docket
No. 19-1030 (issued November 22, 2019); D.K., 59 ECAB 141 (2007); R.C., 58 ECAB 238 (2006).
17

Supra note 8; see P.F., Docket No. 16-0693 (issued October 24, 2016); Daniel J. Perea, 42 ECAB 214,
221 (1990).

5

CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of left knee total arthroplasty.
ORDER
IT IS HEREBY ORDERED THAT the May 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 23, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
R.M., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Baton Rouge, LA, Employer
)
___________________________________________ )
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-661
Issued: December 9, 2009

Case Submitted on the Record

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

JURISDICTION
On January 8, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 18, 2008 finding that she did not
sustain an injury as alleged. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits in this appeal.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty, causally related to factors of her federal employment.
FACTUAL HISTORY
On July 23, 2007 appellant, then a 52-year-old mail carrier, filed an occupational disease
claim for chest pain and lower back pain while in the performance of duty. She first became
aware of her condition and its relation to her work on July 23, 2007. Appellant stopped work on
July 8, 2007.
The Office received a November 30, 2005 nerve conduction study in which Dr. Gregory
Ward, Board-certified in physical medicine and rehabilitation, diagnosed bilateral carpal tunnel
syndrome. In a January 24, 2006 functional capacity evaluation, Dr. Carolyn Baker, a Boardcertified psychiatrist and neurologist, advised that appellant was capable of working at a light

level. The Office also received physical therapy notes dated January 26 and November 14, 2006.
On February 18, 2005 Dr. J. Guidry, a Board-certified internist, indicated that appellant related
that she inhaled gas fumes from her truck while at work. In a July 23, 2007 treatment note,
Dr. Yuruk Ivirboz, an occupational medicine specialist, related that appellant complained of
intermittent chest and back pain while at work on July 23, 2007. In a July 23, 2007 duty status
report, he indicated that appellant had experienced back and chest pain and that she should not
do any lifting, pulling or pushing and minimal walking until released. Portions of the report are
illegible.
On October 31, 2007 the Office advised appellant that additional factual and medical
evidence was needed to establish her claim.
In a November 23, 2007 statement, appellant described her job duties, which included
constant standing, casing or boxing mail, sitting while delivering mail, twisting, turning, leaning
and lifting. Her duties also included pushing and pulling bins full of mail and parcels through
heavy metal doors. Appellant alleged that her duties were stressful because she was always
trying to meet her deadlines in a timely manner and in dealing with customers. She resubmitted
reports from Drs. Ivirboz and Guidry.
By decision dated December 20, 2007, the Office denied appellant’s claim. It found that
the evidence did not support that she was engaged in any activity causing bodily injury. The
Office further found that appellant failed to submit sufficient medical evidence in support of her
claim.
On May 23, 2008 appellant requested reconsideration and submitted copies of reports
previously submitted. She reiterated that on July 23, 2007 she was delivering mail and
performing the duties of her position when she experienced low back and chest pains.
In a July 23, 2007 report, Dr. Ivirboz noted that appellant had experienced pain in the left
chest area and low back and buttocks. Appellant related a history of “lifting.” Dr. Ivirboz
checked the box “yes” that he believed appellant’s condition was caused or aggravated by an
employment activity. He advised that her restrictions should include no lifting, pulling, pushing
and minimal walking until his release.
In a July 24, 2007 duty status report, Dr. Wilbert McClay, Jr., an attending family
practitioner, diagnosed low back pain and chest pain and indicated that appellant was
incapacitated for duty. He also filled in diagnosis codes for sprain of sacroiliac region,
unspecified, precordial pain and infundibular pulmonic stenosis.
In a December 18, 2007 report, Dr. McClay reviewed appellant’s history of injury and
treatment. Appellant was driving her mail truck when her back began to hurt. Dr. McClay
indicated that appellant was short and had to bend extensively. He advised that she informed
him that her chest also began to hurt. Appellant’s duties included standing in one place and
casing mail for two hours, pulling and pushing mail in bins, as well as placing mail into trays.
Dr. McClay explained that appellant had to use the full force of her body to push or bump the bin
full of mail and parcels. He noted that it was obvious she was under tremendous job stress and
now feared a heart attack. Appellant felt that two percent of her job required standing, lifting,
pushing, pulling and twisting. Dr. McClay stated that “bumping of truck aggravates back
problem.”
2

By decision dated December 18, 2008, the Office found that appellant established the
employment factors pertaining to her job duties as a mail carrier. However, it found that the
medical evidence was insufficient to establish causal relationship between her work and the
diagnosed conditions.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 the Act, that the claim was
timely filed within the applicable time limitation period of the Act, 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 are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.4
ANALYSIS
The evidence supports that appellant identified those employment factors that she
believes caused or aggravated her diagnosed conditions. The Board finds that she has not
submitted sufficient medical evidence to establish a causal relationship between her work duties
and the diagnosed conditions.

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

Id.

3

The record contains a November 30, 2005 nerve conduction study, a January 24, 2006
functional capacity evaluation, and a February 18, 2005 report from Dr. Guidry, who indicated
that appellant related that she inhaled gas fumes from her truck, while at work. These diagnostic
reports do not attribute any diagnosed condition to appellant’s employment. While Dr. Guidry
stated that appellant reported inhaling fumes at work, he did not address whether this caused or
aggravated her claimed chest or low back conditions. Furthermore, appellant’s 2007 claim form
and her subsequent statements did not attribute any medical condition to possible fume exposure.
These reports are insufficient to establish that her work duties caused or aggravated a diagnosed
medical condition.
Dr. Ivirboz advised that appellant began experiencing chest and back pain while at work
on July 23, 2007. However, he did not specifically address whether any factors of appellant’s
employment caused her condition.5 Dr. Ivirboz noted that appellant related a history of “lifting”
and checked a box “yes” that he believed appellant’s condition was caused or aggravated by an
employment activity. The Board has held that when a physician’s opinion on causal relationship
consists only of checking “yes” to a form question, without explanation or rationale, that opinion
is of diminished probative value and is insufficient to establish a claim.6 The evidence from
Dr. Ivirboz is of limited probative value because it did not address how particular employment
factors would cause or aggravate a low back or chest condition.
Dr. McClay noted that appellant had an unspecified sprain of sacroiliac region precordial
pain and infundibular pulmonic stenosis. However, the Board notes that the reports of
Dr. McClay do not specifically address whether any factors of appellant’s employment caused
her diagnosed conditions.7 On December 18, 2007 Dr. McClay stated that “bumping of truck
aggravates back problem.” However, his reports lack a well-rationalized explanation addressing
the physiological cause of appellant’s back condition. Rather, Dr. McClay’s opinion is
conclusory. He merely stated that the bumping of the mail truck aggravated appellant’s back
condition. Medical conclusions unsupported by rationale are of diminished probative value.8
Dr. McClay’s opinion is insufficient to establish the claim because he did not provide medical
rationale in support of causal relationship.
The Office also received physical therapy notes dated January 26 and
November 14, 2006. Health care providers such as physical therapists are not physicians as
defined under the Act. Thus, their opinions do not constitute medical evidence and have no
weight or probative value.9
5

See S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
6

Sedi L. Graham, 57 ECAB 494 (2006).

7

See supra note 5.

8

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008); see Mary E. Marshall, 56 ECAB 420 (2005)
(medical reports that do not contain rationale on causal relationship have little probative value).
9

See Jane A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C. § 8101(2). This subsection defines the term
“physician.” See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).

4

Appellant has not met her burden of proof to establish that her back or chest conditions
commencing on July 23, 2007 are causally related to the accepted factors of employment. The
Board has held that the mere fact that a condition manifests itself during a period of employment
does not raise an inference that there is a causal relationship between the two.10 Neither the fact
that the condition became apparent during a period of employment nor the belief that the
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.11 Causal relationship must be substantiated by reasoned medical opinion
evidence, which is appellant’s responsibility to submit. There is insufficient medical evidence
explaining how appellant’s employment duties caused or aggravated her conditions of sprain of
the sacroiliac region, precordial pain and infundibular pulmonic stenosis.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 18, 2008 is affirmed.
Issued: December 9, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

See Joe T. Williams, 44 ECAB 518, 521 (1993).

11

Id.

5