United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE POST OFFICE,
Malden, MA, Employer
__________________________________________

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Appearances:
Benjamin R. Zimmermann, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1477
Issued: March 14, 2018

Case Submitted on the Record

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

JURISDICTION
On June 22, 2017 appellant, through counsel, filed a timely appeal from a June 8, 2017
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
3

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). By order dated November 24, 2017, the Board exercised its discretion and denied the request,
finding that the arguments on appeal could adequately be addressed based on the case record. Order Denying
Request for Oral Argument, Docket No. 17-1477 (issued November 24, 2017). The Board’s Rules of Procedure
provide that any appeal in which a request for oral argument is not granted by the Board will proceed to a decision
based on the case record and any pleadings submitted. 20 C.F.R. § 501.5(b).

ISSUE
The issue is whether appellant has met his burden of proof to establish bilateral knee
osteoarthritis causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On September 8, 2014 appellant, then a 54-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that the physical activities of his federal employment had an
adverse effect on his knees, requiring two knee replacements. He listed his employment duties
as carrying mail and tubs of flats weighing up to 40 pounds, standing and casing mail for two to
three hours a day, and walking five to six miles a day while delivering mail for at least six hours.
Appellant noted that these duties required constant bending, stooping, lifting, and working in
weather from extreme heat to extreme cold. He further noted that the sidewalk and stairs he
walked on were sometimes extremely slippery. Appellant listed the nature of his disease or
illness as acceleration of osteoarthritis, bilateral knees. He did not stop work.
In a March 9, 2011 report, Dr. Jeffrey A. Polansky, a Board-certified orthopedic surgeon,
noted that appellant worked as a mailman. He related that appellant’s physical examination
demonstrated decreased flexion and extension of both knees with severe varus deformity and an
x-ray examination showed significant medial compartment collapse bilaterally. Dr. Polansky
released appellant to return to work a normal schedule, but restricted him from use of a push cart
due to his bilateral osteoarthritis of his knees.
Appellant submitted a number of reports from his treating physician, Dr. Arnold D.
Scheller, a Board-certified orthopedic surgeon. In a July 20, 2011 report, Dr. Scheller noted that
appellant complained of pain in his right knee which he described as moderate to severe. His
symptoms were listed as joint stiffness, swelling, decreased range of motion, catching, grinding,
popping/crepitus, locking, as well as instability, and muscle weakness. Dr. Scheller diagnosed
right knee osteoarthrosis. He referred appellant to pain management for a facet injection.
In a November 28, 2011 x-ray of appellant’s right knee, Dr. Mihran Artinian, a Boardcertified radiologist, diagnosed severe osteoarthritic changes involving the medial compartment
of the right knee with varus deformity. He also noted moderate-to-severe degenerative disc
disease of the patellofemoral compartment with patellar spurring and that soft tissue
calcifications were present lateral to the femoral epicondyle. Dr. Artinian concluded that
appellant had moderate-to-severe osteoarthritic changes involving both medial tibiofemoral
compartments, right more than left, with bilateral varus deformities.
By report dated May 8, 2012, Dr. Scheller noted that appellant’s onset of left knee pain
had been gradual. He continued to submit progress notes with regard to his treatment of
appellant.
On May 16, 2012 Dr. Joel S. Newman, a Board-certified radiologist, found that
appellant’s left knee showed tricompartmental osteoarthritis, greatest in the medial femorotibial
compartment with mild-to-moderate varus angulation of the knee.

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Appellant continued to seek treatment with Dr. Scheller. In a January 22, 2014 report,
Dr. Scheller summarized his treatment of appellant, as well as appellant’s medical history. He
noted that appellant had a series of injections to his knees in 2007, 2009, 2010, and 2011.
Dr. Scheller indicated that he performed a total right knee replacement on December 15, 2011
and a total left knee replacement on June 7, 2012. He reviewed appellant’s job description and
opined that there was clear causation as to the employment-related activities, which accelerated
the arthritic disease in both knees eventually requiring treatment of bilateral total knee
replacements. Dr. Scheller explained that his initial review of appellant’s x-rays showed severe
arthritis. He noted that appellant had bilateral knee stiffness at the end of long days, and
swelling more on the left side than right, but that in spite of his discomfort, appellant was able to
work his schedule as a letter carrier.
Dr. Scheller reported that appellant had undergone bilateral total knee replacements for
end-stage degenerative arthritis, which was aggravated by his work activities. He explained that
the arthritic process was accelerated by appellant’s employment. Dr. Scheller noted that arthritis
was a failure and loss of articular cartilage. He indicated that appellant’s job as a letter carrier
required constant repetitive walking, squatting, stooping, climbing, bending, lifting, carrying,
stair climbing, and twisting. Dr. Scheller opined that it was the impact loading and the constant
and continuous repeated local stressors regularly occurring over the course of the workday which
was repeated day after day that accelerated progression of the underlying arthritis. The medical
process by which this occurred was that the impact loading resulted in chronic inflammation and
accelerated the loss of articular cartilage. As the articular cartilage deteriorated due to these
mechanical stresses, breakdown products from the cartilage were released and this resulted in
persistent intermittent swelling and effusions in the knee. Dr. Scheller also noted that bone
outgrowth then formed on the margins of the joints to help distribute the abnormal forces, and
that these bone changes together with inflammation can be both painful and debilitating and were
characteristic of progressive osteoarthritis. He also noted that arthroplasty itself created a
permanent aggravating condition. Based on all above factors, Dr. Scheller concluded that
appellant’s employment activity contributed to acceleration of his arthritic condition leading to
his bilateral total knee replacements.
By development letter dated December 1, 2014, OWCP informed appellant that
additional medical evidence was necessary to establish his claim and afforded him 30 days to
submit this evidence.
On March 27, 2015 OWCP referred appellant’s case to an OWCP medical adviser for a
rationalized medical opinion as to whether appellant’s federal work activities caused his bilateral
knee conditions. In a response of the same date, Dr. Morley Slutsky, a physician Board-certified
in occupational medicine, acting as an OWCP medical adviser, reviewed the medical evidence
and opined that none of the evidence discussed appellant’s history or how his symptoms
occurred in relation to his work. With regard to Dr. Scheller’s January 22, 2014 report,
Dr. Slutsky reported that, although Dr. Scheller indicated that appellant’s bilateral total knee
replacement was employment related and that there was clear causation to his employmentrelated activities, he did not discuss how appellant developed symptoms/findings in relation to
the employment duties. Dr. Slutsky did opine that, as appellant had significant osteoarthritis in
both knees, which resulted in pain and limitations and had failed all reasonable attempts at
conservative treatment, he required the bilateral knee replacements he had undergone. However,
he felt that additional evidence was required from appellant before he could fully render an
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opinion. Dr. Slutsky was provided appellant’s narrative statement on April 10, 2015, but was
still unable to render an opinion.
Appellant’s case was, therefore, forwarded to Dr. David I. Krohn, a Board-certified
internist and an OWCP medical adviser. In April 19, 2015 report, Dr. Krohn opined that the
predominant cause of appellant’s right knee osteoarthritis was not related to his employment, but
rather to a significant nonwork-related injury to the right knee, as well as the arthroscopic
surgery performed on that knee. He noted that Dr. Scheller provided no mention of a prior right
knee medial meniscectomy, a prior nonemployment-related injury that caused the injury, or the
nature of the prior injury to the left knee that he mentioned on May 8, 2012. Dr. Krohn noted
that the American Medical Association, Guides to the Evaluation of Disease and Injury
Causation (2d ed. 2013) (A.M.A., Guides) provided that nonoccupational risk factors for which
there was strong or very strong evidence for causal relationship to the development of
osteoarthritis, included previous trauma, previous meniscectomy or meniscal injury, as well as
age and being overweight. He opined that these factors far outweighed any contribution by
activities that were performed by appellant in his federal employment. Dr. Krohn also noted that
there was no mention of any specific work-related trauma by appellant in the multiple detailed
orthopedic evaluations since 2007 and argued strongly against a work-related causal relationship
for the development of bilateral severe osteoarthritis sufficient to require bilateral arthroplasty.
Further, he noted that appellant developed bilateral knee osteoarthritis sufficiently severe as to
require total knee arthroplasty, which in his opinion spoke to a genetic predisposition in
development of knee osteoarthritis in which the “wear and tear” of any occupation would have
eventually resulted in bilateral total knee arthroplasty. Dr. Krohn opined that bilateral knee
replacements were medically necessary due to the severity of appellant’s bilateral knee
osteoarthritis, but were not causally related to his federal employment.
By decision dated April 21, 2015, OWCP denied appellant’s claim. It noted that the
medical evidence of record established that he experienced the alleged employment factors and
that a medical condition had been diagnosed. However, OWCP denied appellant’s claim
because causal relationship had not been established.
On May 4, 2015 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. By letter dated October 30, 2015, counsel instead requested a review of
the written record.
By decision dated January 21, 2016, OWCP’s hearing representative set aside the
April 21, 2015 decision. She found that an unresolved conflict existed between OWCP’s
medical adviser Dr. Krohn and treating physician Dr. Scheller. The case was, therefore,
remanded for an impartial medical examination to determine whether appellant’s medical
condition affecting the lower extremities was caused, aggravated, or accelerated by factors of his
federal employment. The impartial medical examiner was also to provide an opinion explaining
whether the accepted employment factors caused or contributed to the need for bilateral knee
replacement surgeries.
By letter dated October 5, 2016, OWCP referred appellant to Dr. Murray Goodman, a
Board-certified orthopedic surgeon, for an impartial medical examination. In a November 10,
2016 report, Dr. Goodman noted that appellant had worked for the employing establishment
since 1993 as a letter carrier. He discussed appellant’s medical history and conducted a physical
4

examination. Dr. Goodman opined that appellant’s bilateral knee osteoarthritis was neither
causally related to his work as a letter carrier, nor was it permanently aggravated by that
occupation. He noted that it was significant that appellant underwent bilateral arthroscopic
meniscectomies more than 20 years prior to his knee arthroplasties. Dr. Goodman further noted
that it was well known that postmeniscectomy knees have a high incidence of development of
osteoarthritis and this frequently takes 15 to 20 years to develop. He opined that this was the
major predisposing factor to his need for total knee arthroplasty in his opinion. Dr. Goodman
noted that, although the pathophysiology of osteoarthritis cited by Dr. Scheller in his report was
correct, the etiology in the present case was not employment related. He noted that the A.M.A.,
Guides indicate that there was strong evidence for previous meniscectomy or meniscus injury as
an accepted risk factor for arthritis. Dr. Goodman noted that the same source sites insufficient
evidence for standing and walking as a causative factor. He also explained that the lack of any
one specific injury at work also mitigated against an occupational causal relationship and the fact
that he lost no time from work mitigated against his occupation being an aggravating factor.
By decision dated June 8, 2017, OWCP denied appellant’s claim as he had not
established causal relationship between the accepted employment factors and his diagnosed
medical conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that the injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
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 must include a physician’s rationalized opinion on the issue of whether
there is 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

4

Supra note 2.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6

See Irene St. John, 50 ECAB 521 (1999).

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supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.8 The implementing regulations state
that, if a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.9 In situations where 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.10
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that he sustained bilateral knee osteoarthritis due to his federal
employment duties as a letter carrier. OWCP accepted that he performed the employment duties
alleged. Appellant’s treating physician, Dr. Scheller, explained in detail how appellant’s specific
work activities caused impact loading to his knees and how he experienced repeated local
stressors over the course of the workday that accelerated the progression of his underlying
arthritis. OWCP’s medical adviser, Dr. Krohn reviewed the case record and cited the A.M.A.,
Guides for the proposition that appellant’s nonoccupational risk factors, including his prior
meniscectomies, far outweighed any contribution appellant’s work activities had to the
development of his bilateral knee osteoarthritis. OWCP thereafter declared a conflict in the
medical opinion evidence and referred appellant to Dr. Goodman for an impartial medical
evaluation.
The Board finds, however, that OWCP improperly determined that there was a conflict in
medical opinion between Dr. Krohn and Dr. Scheller on the issue of whether appellant sustained
an injury causally related to the accepted factors of his federal employment. A simple
disagreement between two physicians does not, of itself, establish a conflict. A conflict only
exists when there are opposing medical reports of virtually equal weight and rationale.11
The Board notes that there is no requirement that the federal employment be the only
cause of appellant’s condition. An employee is not required to prove that occupational factors
7

Id.

8

R.C., Docket No. 12-0437 (issued October 23, 2012).

9

20 C.F.R. § 10.321.

10

F.C., Docket No. 14-0560 (issued November 12, 2015).

11

See Robert D. Reynolds, 49 ECAB 561 (1998).

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are the sole cause of his or her claimed condition. If work-related exposures caused, aggravated,
or accelerated appellant’s condition, he is entitled to compensation.12 While implying that
appellant’s employment activities could have contributed in some degree to the development of
his bilateral knee osteoarthritis, Dr. Krohn did not explain why causal relationship did not exist.
His opinion was, therefore, insufficiently rationalized to create a conflict with the opinion of
Dr. Scheller.
Due to the lack of a conflict in the medical evidence at the time of the referral to
Dr. Goodman for an impartial medical examination, Dr. Goodman actually served as an OWCP
referral physician rather than an impartial medical specialist.13 Even though the report of
Dr. Goodman is thus not entitled to the special weight afforded to the opinion of an impartial
medical specialist, his report can still be considered for its own intrinsic value.14
The Board, however, finds the opinion of Dr. Goodman is insufficient to carry the weight
of the medical evidence of record. Dr. Goodman noted that appellant was employed as a letter
carrier, but did not discuss appellant’s specific work duties. Rather, he simply relied on the
general principles found in the A.M.A., Guides when finding that there was insufficient evidence
to support that certain work factors caused osteoarthritis in appellant’s knees. The Board has
held that newspaper clippings, medical texts, and excerpts from publications are of no
evidentiary value in establishing causal relationship between a claimed condition and an
employee’s federal employment. Such materials are of general application and are not
determinative as to whether the specific condition claimed is related to the particular
employment factors alleged by the employee.15
It is well-established that proceedings under FECA are not adversarial in nature and that
although claimant has the burden of proof to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence.16 Once OWCP undertakes to develop
the medical evidence further, it has the responsibility to do so in a proper manner.17 As
Dr. Goodman’s opinion is insufficiently rationalized, further development is required to
determine whether appellant’s bilateral knee conditions were caused or aggravated by the
accepted factors of his federal employment. Following this and other such further development
as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

E.R., Docket No. 16-1634 (issued May 25, 2017).

13

See G.K., Docket No. 09-1222 (issued January 15, 2010).

14

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

15
G.N., Docket No. 16-1327 (issued December 27, 2016); see also William C. Bush, 40 ECAB 1064,
1075 (1989).
16

Richard E. Simpson, 55 ECAB 490 (2004).

17

Melvin James, 55 ECAB 406 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the June 8, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this opinion.
Issued: March 14, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
U.S. POSTAL SERVICE, MAINTENANCE
DEPARTMENT, St. Louis, MO, Employer
__________________________________________

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

Docket No. 10-2023
Issued: May 12, 2011

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 August 3, 2010 appellant filed a timely appeal of a March 8, 2010 merit decision of
the Office of Workers’ Compensation Programs denying compensation benefits and an April 26,
2010 nonmerit decision denying reconsideration. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider
the merits of the case.
ISSUES
The issues are: (1) whether appellant has established total disability for the period
February 24 through 27, 2009 entitling her to compensation benefits; and (2) whether the Office
properly denied appellant’s request for reconsideration on the merits pursuant to 5 U.S.C.
§ 8128(a).

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5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 8, 2008 appellant, then a 54-year-old laborer/custodian, filed a traumatic
injury claim alleging that on December 6, 2008 she injured her head and body when a freight
elevator gate struck her head.
Appellant provided work release notes beginning December 15, 2008 indicating that she
could not return to work until February 17, 2009 from Dr. Gina McSmith, an osteopath. On
February 25, 2009 Dr. McSmith completed a duty status report and indicated that appellant could
return to work on March 2, 2009 with restrictions on lifting, standing, climbing, bending,
stooping, reaching above the shoulder, and exposure to chemicals and solvents.
Appellant filed a claim for compensation requesting wage-loss from January 17 through
February 13, 2009. The Office authorized compensation benefits for the period January 22, 2009
through February 13, 2009.
Dr. Howard M. Place, a Board-certified orthopedic surgeon, completed an office note on
February 9, 2009 noting appellant’s history of injury on December 6, 2008. He found normal
strength and range of motion in the upper extremities and cervical spine with no sensory deficits.
Dr. Place reported slight tenderness to palpation diffusely through her trapezius and rhomboids.
He diagnosed musculoskeletal shoulder pain and stated that appellant could return to work
without restrictions.
Appellant returned to limited-duty work on March 3, 2009. The employing establishment
stated that appellant stopped work on December 9, 2008 and received continuation of pay from
December 9, 2008 through January 21, 2009.
By decision dated March 23, 2009, the Office formally accepted her claim for contusion
to the forehead, neck strain and right shoulder sprain.
In a report dated March 26, 2009, Dr. McSmith reported appellant’s history of injury and
diagnosed acute cervical and lumbar strain as well as right and left shoulder strain. She stated
that appellant returned to work on March 2, 2009 with restrictions. Dr. McSmith stated that
appellant should return to full duty in three to four weeks. She provided a duty status report
dated March 31, 2009 with continued restrictions. Dr. McSmith released appellant to full duty
on April 29, 2009.
By decision dated June 9, 2009, the Office denied appellant’s claim for leave without pay
for intermittent times during the dates March 19 through April 9, 2009. Appellant requested
reconsideration of this decision on July 9, 2009. By decision dated September 17, 2009, the
Office vacated the June 9, 2009 decision and granted appellant compensation for the periods
requested.
On September 9, 2009 appellant filed a claim for compensation requesting wage-loss
compensation for leave without pay used on February 24 through 27, 2009. In a letter dated
September 17, 2009, the Office noted that appellant had requested 32 hours of compensation for
the period February 24 through 27, 2009. It informed appellant that it found the medical
information in the record insufficient to support her claim for compensation for the period
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claimed. The Office requested additional supporting medical evidence and allowed 30 days for a
response.
In a letter dated September 30, 2009, appellant stated that the employing establishment
instructed her to return to work on February 23, 2009. She reported to work on February 24,
2009 and went to the medical unit. Appellant stated that she was not permitted to work due to
employing establishment procedures. She visited her physician on February 25, 2009 for a
scheduled appointment and Dr. McSmith completed a duty status report indicating that appellant
should return to light-duty work on March 2, 2009. Appellant stated that there was no light-duty
work available until March 5, 2009.
In a note dated March 3, 2009, the employing establishment nurse, Barbara Greenlee,
indicated that appellant was made available to work on March 3, 2009 and provided work
restrictions. Appellant resubmitted Dr. McSmith’s February 25, 2009 duty status report. She
also submitted a February 19, 2009 note from Dr. McSmith indicating that appellant could return
to light-duty work on February 23, 2009.
The employing establishment injury compensation specialist provided appellant with a
letter dated February 27, 2009 which stated that appellant was paid with sick leave from
February 17 through 21, 2009 and that February 24 through 27, 2009 should have been paid by
the Office.
Appellant filed a claim for compensation requesting leave without pay compensation for
the period February 14 through 27, 2009 on October 23, 2009. The Office requested additional
information regarding this claim on October 30, 2009.
By decision dated November 2, 2009, the Office denied appellant’s claim for
compensation for the period February 24 through February 27, 2009 as the medical evidence did
not establish that appellant was totally disabled during this period due to her accepted
employment injury.
Appellant requested a review of the written record on December 2, 2009.
By decision dated December 2, 2009, the Office denied appellant’s claim for
compensation for the date of February 21, 2009.
In a decision dated March 8, 2009, the Branch of Hearings and Review denied appellant’s
claim for compensation. The hearing representative stated that he had requested that the
employing establishment provide “comments or documents believed to be relevant and material
to [appellant’s] claim.” He stated that the employing establishment did not respond. The
hearing representative further noted that he telephoned the employing establishment and was
promised information from appellant’s supervisor which was not received. He concluded that
appellant had not submitted probative medical evidence based on specific examination findings
which established that appellant was disabled due to her accepted employment injury.
In a letter dated April 15, 2010, appellant requested reconsideration and alleged that the
employing establishment health unit sent her home. She noted that she reported to work on
March 3, 2009 and was told that there was no light-duty work available.
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By decision dated April 26, 2010, the Office declined to reopen appellant’s claim for
consideration of the merits on the grounds that she failed to submit new or relevant evidence in
support of her claim.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.3 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.4
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.5 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.6 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.7
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.8 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical 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.9 Neither the fact that a
2

5 U.S.C. §§ 8101-8193.

3

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

Id.

8

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

9

Leslie C. Moore, 52 ECAB 132 (2000).

4

disease or condition manifests itself during a period of employment nor the belief that the disease
or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.10
ANALYSIS
The Office accepted that appellant sustained contusion to the forehead, neck strain and
right shoulder sprain on December 6, 2008 when a freight elevator door struck her. It authorized
compensation benefits through February 13, 2009. Appellant filed a claim for compensation
requesting wage-loss benefits from February 24 through 27, 2009. She alleged that she
attempted to return to work on February 24, 2009 by reporting to the employing establishment
medical unit, but was not permitted to work. Dr. McSmith then completed a form report and
stated that appellant should return to light-duty work on March 2, 2009. Appellant stated that
there was no light-duty work available until March 5, 2009.
In a letter dated February 27, 2009, the employing establishment injury compensation
specialist stated that on February 24 through 27, 2009 appellant should have been paid by the
Office. In the March 8, 2009 decision, the hearing representative stated that he requested
additional information from the employing establishment by letter and by telephone and had not
received a response.
Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence to see that justice is done.11 The Office
shares responsibility in the development of the evidence, particularly when such evidence is of
the character normally obtained from the employing establishment or other government source.12
In a case where the Office proceeds to develop the evidence it must do so in a fair and impartial
manner.13
The Board finds that this case is not in posture for decision. Appellant has alleged that
the employing establishment would not allow her to report to work and that light-duty work was
not available beginning February 24, 2009. The February 27, 2009 letter from the employing
establishment supports that the employing establishment believed that appellant was disabled
from February 24 through 27, 2009 and entitled to benefits from the Office. The hearing
representative stated that he attempted to obtain evidence from the employing establishment
through both a letter and a telephone call. The record does not contain either a copy of the letter
or a telephone memorandum memorializing these contacts. As the hearing representative
attempted to develop the factual evidence regarding whether or not appellant was allowed to
work on February 24, 2009 and whether there was appropriate light-duty work available to her
on or after February 24, 2009, the Office has the obligation to secure this information from the
10

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

11

Donald R.Gervasi, 57 ECAB 281, 286 (2005).

12

Marco A. Padilla, 51 ECAB 202, 208 (1999); Carol Cherry (Donald Cherry), 47 ECAB 658 (1996).

13

Melvin James, 55 ECAB 407, 411 (2004).

5

employing establishment. On remand, the Office should request specific information from the
employing establishment regarding the availability of light duty from February 24 through 27,
2009 and whether appellant reported to and was allowed to return to work on February 24, 2009.
After this and any other development of the factual evidence, the Office should issue a de novo
decision.14
CONCLUSION
The Board finds that the case is not in posture for decision as the Office did not
adequately develop the factual evidence under the control of the employing establishment.
ORDER
IT IS HEREBY ORDERED THAT the April 26 and March 8, 2010 decisions of the
Office of Workers’ Compensation Programs are set aside and remanded for further development
consistent with this decision of the Board.
Issued: May 12, 2011
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

14

Due to the disposition of this issue, it is not necessary for the Board to address whether the Office properly
refused to reopen appellant’s claim for consideration of the merits on April 26, 2010.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 07-1709
Issued: February 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 31, 2007 merit decision finding a 75 percent impairment of her
right lower extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has more than a 75 percent permanent impairment of the
right lower extremity for which she received a schedule award.
FACTUAL HISTORY
On January 11, 1997 appellant, then a 41-year-old letter carrier, sustained injury to her
right knee while delivering mail. She stepped up on a curve and slipped and fell to her knees.
By letter dated February 28, 1997, the Office accepted appellant’s claim for right knee sprain and
knee contusion. On April 12, 1997 Dr. Robert Fink, a Board-certified orthopedic surgeon,
performed surgery on appellant’s right knee for a partial right medial meniscectomy. On

June 24, 1999 Dr. Fink performed a right knee arthroscopy, partial synovectomy, partial medial
meniscectomy and removal of lose body.
On November 22, 1999 appellant filed a claim for a schedule award. On May 11, 2000
the Office issued a schedule award for a two percent permanent impairment of the right lower
extremity. This award was set aside by the Board in a decision dated June 19, 2001.1 On
November 20, 2001 appellant’s claim for a schedule award was denied.
On January 15, 2002 Dr. Fink performed the following additional surgery on appellant’s
right knee for a partial synovectomy, removal of lose body, debridement chondromalacia medial
femoral condyle, debridement chondromalacia patella and partial right medial meniscectomy.
The Office subsequently authorized a right total knee replacement. It also accepted traumatic
arthritis of the right knee. On June 11, 2004 Dr. Fink performed a total right knee replacement.
On March 24, 2005 appellant was referred to Dr. Richard H. Sidell, a Board-certified
orthopedic surgeon, for a second opinion. In a report dated May 11, 2005, Dr. Sidell diagnosed
painful total knee arthroplasty with possible loosening. He noted that the diagnosed condition
appeared to be medically connected to the January 11, 1997 employment injury due to the
continuing symptoms leading up to the total knee arthroplasty. Appellant appeared to have
reached maximum medical improvement from the conditions attributable to the January 11, 1997
employment injury. Dr. Sidell noted current residuals of pain and that prognosis for any further
improvement was guarded. He stated, “It is anticipated the condition will remain static or
deteriorate over time.” Dr. Sidell recommended x-rays to evaluate possible loosening of the
prosthetic components and consideration of surgical exploration. He stated that appellant was
disabled and could not return to the workforce due to her level of pain and difficulty ambulating.
On June 8, 2005 Dr. Fink indicated that appellant needed repeat x-rays and a bone scan to
see if her total knee prosthesis had a loose portion. If it did, she would need surgical revision of
the loose portion of the prosthesis.
In a medical report dated September 14, 2005, Dr. Ram Aribindi, a general surgeon,
listed his impression as persistent right knee pain following right knee replacement with likely
incompetence of the medial collateral ligament as appellant had an opening of the medial joint
space with valgus stress to the knee. He recommended that she see a pain specialist for potential
reflex sympathetic dystrophy as possible cause of her knee pain.
On November 28, 2005 Dr. James Diesfeld, a Board certified anesthesiologist, listed his
impression as “[s]tatus post total knee replacement with deconditioning scar tissue and
underlying neuralgia; somatic/neuropathic pain syndrome.” He treated appellant with bilateral
scar infiltration. On January 19, 2006 Dr. Diesfeld performed a transcaudal epidurogram; caudal
epidural steroid injections/sympathetic block; right L3-4 selective nerve blocks/transforaminal;
trigger point injections time[s] three; and mechanical epiduroneurolysis of adhesions. He
provided further epidural steroid injections on February 2 and 16, 2006. In a March 15, 2006

1

Sherlyn M. James, Docket No. 00-2323 (issued June 19, 2001).

2

report, Dr. Diesfeld indicated, “in light of [appellant’s] ongoing atypical pain syndrome it is
again reiterated that surgical reevaluation/revisitation may be considered.
In a May 29, 2006 report, Dr. Fink summarized his treatment of appellant. He indicated
that she had multiple operations over the prior 10 years all for job-related injuries. Appellant
underwent right and left shoulder operations for torn rotator cuffs, right and left elbow operations
for cubital tunnel entrapment of her ulnar nerves, right and left carpal tunnel releases, minor back
surgery, arthroscopic surgeries for torn cartilage to the right knee and an injury to the left knee,
which worsened since the surgery on her right knee and a right total knee replacement.
Following these procedures, appellant underwent three epidural injections for pain by
Dr. Desfield. Dr. Fink noted that Dr. Desfield stated that he obtained a full range of motion in
her right knee and had manipulated the knee to do this, which broke up adhesions or scar tissue.
Appellant still had an underlying condition of fibromyalgia and was still recovering from the
latest injection and manipulation by Dr. Desfield. Dr. Fink noted that she might need a revision
total knee replacement and was currently disabled. He noted that limitations due to appellant’s
arms prevented her from working overhead, lifting more than five pounds and repetitive
reaching. The condition of both her knees caused an inability to stand, sit or walk for prolonged
periods of time. Due to the condition of appellant’s hands and wrists, she could not type or write
for more than 20 minutes. Finally, Dr. Fink noted that appellant’s pain medication caused
drowsiness.
On July 12, 2006 appellant filed a claim for a schedule award. By letter dated July 24,
2006, the Office asked Dr. Fink to provide an impairment rating.
At Dr. Fink’s request, appellant was seen by Dr. Jacob Salomon, a Board-certified
general surgeon, for an impairment rating. Dr. Salomon diagnosed status post right knee total
replacement, failed, with possible loosening of the prosthesis and possible complex regional pain
syndrome. He noted that Dr. Fink had listed a date of maximum medical improvement as
September 20, 2006. Dr. Salomon continued:
“I shall utilize the American Medical Association, Guides to the Evaluation of
Permanent Impairment. Regarding the total knee replacement, it is found in the
lower extremity section. From Table 17-35 on page [549] [appellant’s] pain was
continual, moderate, which would be 10 points. Ranges of motion: add one point
per 5 degrees and we will take [negative] 20 out of 90 degrees of flexion which
would be approximately 70 degrees. We get 1 point per five degrees which
results in 14 points for ranges of motion. Stability anterior mediolaterally was 10
degrees which would be five points; and anteriorly five [to] nine millimeter which
is five points.
“We will then add those points up to obtain 34. Then for the deductions, there
was an extension lag of 10 [to] 20 degrees which is 10 points. [Appellant] will
not be given one for flexion contraction. Alignment was 10 degrees, 3 points per
degree which would be 30 points. When subtracted, this comes up with negative
points, showing the failure of the surgery. When applied to Table 17-33 on page
546, total knee replacement with poor results, is a 75 [percent] right lower

3

extremity impairment. [Appellant] has a total right lower extremity impairment
of 75 [percent].”
By letter dated December 26, 2006, the Office asked its medical adviser to review the
medical record. By letter dated January 2, 2007, the Office medical adviser agreed that appellant
had a 75 percent impairment of the left lower extremity.
By letter dated January 10, 2007, the Office noted that it had asked for an impairment
rating of appellant’s right knee, not left and asked the Office medical adviser to determine
permanent impairment of appellant’s right knee. By letter dated February 3, 2007, the Office
medical adviser responded:
“Right Lower Extremity
“Rating Knee Replacements ([T]able 17-35, [page] 549)
a. Pain-Moderate/Continual

10 points

b. Range of Motion -- 70 degrees total

14 points

c. Stability
Anteroposterior

5-9 mm

5 points

Mediolateral

10 degrees

5 points

Total --

34 points

e. Flexion Contracture

0 degrees

0 points

f. Extension Lag

18 degrees

10 points

g. Alignment

10 degrees

15 points

Total --

15 points (d + e = f)

Rating Knee Replacement 10 points (section 1 -- section 2)
Knee Replacement Rating of 19 points = Poor Result = 75 [percent] right
lower extremity permanent partial impairment] (Table 17-33, [page] 547)
Date of [maximum medical improvement] will be set on [June 11, 2005
approximately 1 year after surgery]
“RLE PPI: 75 [percent] (TOTAL, NOT IN ADDITION TO ANY PREVIOUS
AWARDS)”
By decision dated May 31, 2007, the Office granted a schedule award for a 75 percent
impairment of the right lower extremity, commencing on June 11, 2005, the date of maximum

4

medical improvement. The Office further noted that, as compensation for disability from work
and a schedule award are not payable simultaneously, the compensation paid to appellant from
June 11, 2005 through September 30, 2006 in the amount of $38,932.62, was deducted from her
initial payment of $55,298.37, leaving her with a balance payable under the schedule award of
$15,364.74.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations,3 sets forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of schedule members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law to all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.4 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2007.5
It is well established that the period of a schedule award commences on the date that the
employee reaches maximum medical improvement from the residuals of the accepted
employment injury. The determination of whether maximum medical improvement has been
reached is based on the probative medical evidence of record and is usually considered to be the
date of the evaluation by the attending physician which is accepted as definitive by the Office.6
The Board has noted a reluctance to find a date of maximum medical improvement which is
retroactive to the award, as retroactive awards often result in payment of less compensation
benefits.7 The Board, therefore, requires a persuasive proof of maximum medical improvement
for selection of a retroactive date of maximum medical improvement.8
ANALYSIS
Appellant does not dispute that the Office’s determination that she has a 75 percent
impairment to her right lower extremity. Rather, she contends that the Office erred in
determining the date of maximum medical improvement.
The Board notes that the Office properly determined that appellant has a 75 percent
impairment to her right lower extremity based on the opinions of Dr. Salomon and the Office
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

20 C.F.R. § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

6

P.C., 58 ECAB ____ (Docket No. 07-410, issued May 31, 2007); Mark A. Holloway, 55 ECAB 321 (2004).

7

J.C., 58 ECAB ____ (Docket No. 06-1018, issued January 8, 2007); James E. Earle, 51 ECAB 567 (2000).

8

Id.

5

medical adviser. Initially, in rating appellant’s knee replacement results, the physicians utilized
Table 17-35 of the A.M.A., Guides9 and allowed 10 points for moderate continual pain, 14 points
based on range of motion, with 10 points added for anteroposterior and mediolateral stability or a
total of 34 points. With regard to deductions, the physicians differed somewhat in their opinions.
Dr. Salomon would have deducted 10 points for extension lag and 30 points for alignment
which, when subtracted from appellant’s 34 points, would yield negative points showing failure
of the surgery. The Office medical adviser determined after deductions, that appellant’s knee
replacement surgery rated 19 points according to the A.M.A., Guides. Despite this difference,
both physicians concluded that appellant’s right knee replacement yielded a poor result (less than
50 points) from surgery and awarded her the maximum amount of 75 percent permanent
impairment for her right lower extremity.10 The Office’s finding that she has a 75 percent
impairment of her right lower extremity is based on the medical evidence and a proper
interpretation of the A.M.A., Guides.
The Board finds, however, that the Office erred in determining June 11, 2005 as the date
of maximum medical improvement. The medical adviser provided this date as it was one year
following appellant’s knee replacement surgery. Based on this determination and the fact that
appellant had received wage-loss compensation benefits for the period June 11, 2005 through
September 30, 2006, the Office deducted $38,932.63 from her schedule award and found that she
was entitled to $16,364.74, for the period June 11, 2005 through April 14, 2007.
It is well established that the period of a schedule award commences on the date that the
employee reaches maximum medical improvement from the residuals of the accepted
employment injury. The Board has noted a reluctance to find a date of maximum medical
improvement which is retroactive to the award, as retroactive awards often result in payment of
less compensation benefits.11 The Board, therefore, requires persuasive proof of maximum
medical improvement for selection of a retroactive date of maximum medical improvement.12
As noted, the Office medical adviser listed appellant’s date of maximum medical improvement
as one year after appellant’s knee replacement surgery or June 11, 2005. However, the Office
medical adviser did not provide a discussion of how he arrived at this date or supported his
conclusion with sound medical reasoning. In contrast, Dr. Fink and Dr. Salomon stated that
maximum medical improvement was September 20, 2006. Accordingly, the case will be
remanded for the Office to further develop the date of maximum medical improvement.
CONCLUSION
The Board finds that appellant has no more than a 75 percent impairment of the right
lower extremity for which she received a schedule award. The case is not in posture for decision
with regard to the date of maximum medical improvement.
9

A.M.A., Guides 549, Table 17-35.

10

Id. at 547, Table 17-33.

11

D.R., 57 ECAB ___ (Docket No. 06-668, issued August 22, 2006).

12

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the May 31, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed with regard to the issuance of a schedule award
based on a 75 percent impairment rating of appellant’s right lower extremity. With regard to the
period of the award and the date of maximum medical improvement, the decision is set aside and
this case is remanded for further consideration consistent with this opinion.
Issued: February 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Brick, NJ, Employer
__________________________________________

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

Docket No. 13-28
Issued: May 1, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 3, 2012 appellant, through his attorney, filed a timely appeal from the
June 26, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish permanent impairment
of his legs in addition to the three percent permanent impairment of his left leg for which he had
received a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 4, 2002 appellant, then a 49-year-old housekeeping aide, filed a claim for a
traumatic injury on February 1, 2002 when he experienced back spasms after lifting laundry bags
at work. In an October 24, 2002 report, Dr. David A. Yazdan, an attending Board-certified
neurosurgeon, stated that appellant had a history of back injuries, the most recent occurring in
February 2002 when he aggravated his lumbar region and developed radiculopathy while lifting
laundry bags at work. OWCP accepted his claim for an aggravation of a lumbar sprain. On
October 16, 2002 appellant underwent surgery, performed by Dr. Yazdan, for left-sided lumbar
stenosis at L4-5 and L5-S1 with radiculopathy. On January 22, 2008 he filed a claim for a
schedule award.
In a report dated August 22, 2007, Dr. David Weiss, an attending osteopath, provided an
opinion that appellant had 30 percent permanent impairment of his left leg under the standards of
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (5th ed. 2001). In reports dated November 15 and December 10,
2007, Dr. Yazdan opined that appellant had at least 30 percent total impairment (which included
a whole person impairment rating) based on the fifth edition of the A.M.A., Guides. On
February 22, 2008 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and an OWCP
medical adviser, found that appellant had three percent permanent impairment of his left leg
under the fourth edition of the A.M.A., Guides.
In a March 28, 2008 decision, OWCP granted appellant a schedule award for three
percent permanent impairment of his right leg. The award ran for 8.64 weeks from August 23 to
October 21, 2007. In a decision dated September 30, 2008, an OWCP hearing representative
affirmed OWCP’s March 28, 2008 decision.
In a November 12, 2009 decision,2 the Board set aside OWCP’s March 28 and
September 30, 2008 decisions, finding that the reports of Dr. Weiss, Dr. Yazdan or Dr. Berman
did not adequately evaluate the permanent impairment of appellant’s left leg. The Board
remanded the case to OWCP for further development of the medical evidence with respect to
appellant’s leg impairment.
On remand, OWCP referred appellant to Dr. Aldo Iulo, a Board-certified orthopedic
surgeon, for a second opinion examination and opinion on his leg impairment.
In a September 8, 2010 report, Dr. Iulo discussed appellant’s medical history and the
findings upon physical examination conducted on that date.3 He noted that appellant’s chief
complaints concerned back pain and spasm in the back of his left leg, which he attributed to his
February 1, 2002 work injury. Dr. Iulo indicated that, on physical examination of the lumbar
spine, appellant complained of tenderness in the left lumbar region but did not complain of
sciatic notch tenderness or trochanteric tenderness. When asked to flex, appellant stopped at the
70 degree range and, upon extending, he stopped at the 5 degree range. Right lateral bending
2

Docket No. 09-820 (issued November 12, 2009).

3

Dr. Iulo indicated that appellant was treated for a herniated disc and underwent surgery in October 2002.

2

was to the 10 degree range and left lateral bending was to the 15 degree range. Dr. Iulo indicated
that during straight leg raising (while seated) appellant could be brought to 80 degrees of straight
leg raising without complaints of pain. Upon examination of the knees (using a distraction
technique), appellant did not complain upon hip and knee flexion or upon extension while seated.
While reclining, however, he complained of pain in the low back and posterior thigh with
straight leg raising at 40 degrees on the left side. Dr. Iulo stated that sensation was intact in the
peripheral nerve and dermatome distribution to touch and pinprick. No motor atrophy was noted
in the legs and motor strength was 5/5 in the nerve root and peripheral nerve distribution
including quadriceps, flexors and extensors of the toes and ankles. Dr. Iulo indicated that hip,
knee and ankle flexion and extension were within the normal range with complaints of low back
pain.
Dr. Iulo further stated that, after taking a history, examining the patient and reviewing the
medical records and the statement of accepted facts, he had determined that appellant reached
maximum medical improvement as of February 2003, after which point his condition stabilized.
There was no change in appellant’s condition, but he still had subjective complaints and did not
return to work. Dr. Iulo stated that he did not find any neurologic deficit, no decrease in
strength, atrophy or ankylosis or sensory deficit. Appellant had subjective complaints of low
back and left leg pain. Dr. Iulo indicated that appellant had a preexisting injury to the low back
and noted that he reviewed magnetic resonance imaging (MRI) scans that were brought in with
appellant. An August 2, 2002 MRI scan showed degenerative disc disease at L4-5 and L5-S1
resulting in spinal stenosis as well as a mild central protrusion at the midline with degenerative
disc disease and secondary stenosis indicating a preexisting condition. Regarding appellant’s leg
impairment, Dr. Iulo stated:
“According to the sixth edition of the [A.M.A., Guides], page 533, Table 16-11,
the claimant has normal sensibility and sensation. [Appellant] has normal motor
severity. This is a class 0.
“Page 535, Table 16-12, under the diagnosis of ‘mixed nerves – sciatic,’
[appellant] is a class 0, no objective sensory or motor deficits.
“This equals a 0 percent residual peripheral nerve lower extremity impairment.
“In summary, the accepted facts were reviewed. [Appellant] had a diagnosis of
lumbar sprain and subsequently [was] diagnosed with spinal stenosis and a
herniated disc. He underwent surgery. There is no neurologic deficit noted.
[Appellant] has subjective complaints and restricted motion in the lumbar spine as
described in my report.”
In an October 27, 2011 report, Dr. Henry Magliato, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, stated that appellant underwent back surgery for a
herniated disc in October 2002 and indicated that the postoperative diagnosis after the surgery
was radiculopathy secondary to significant spinal stenosis at L4-5 and L5-S1. He stated that, on
September 8, 2010, Dr. Iulo found that appellant had no permanent impairment of his legs noting
that his examination found no neurological defects in the lower extremities. Dr. Magliato found
that Dr. Iulo used the proper table of the sixth edition of the A.M.A., Guides. He indicated that

3

Dr. Iulo found that the sciatic nerve had no motor or sensory loss and no atrophy. Dr. Iulo also
correctly determined the date of maximum medical improvement.
In a January 23, 2012 decision, OWCP denied appellant’s claim for additional schedule
award compensation due to leg impairment. It found that the September 8, 2010 report of
Dr. Iulo, as confirmed by the opinion of Dr. Magliato, showed that appellant was not entitled to
such additional compensation.
Appellant requested a hearing with an OWCP hearing representative. At the hearing held
on April 12, 2012, counsel argued that Dr. Iulo’s evaluation did not adequately consider
appellant’s preexisting conditions and that Dr. Iulo did not provide adequate medical rationale in
support of his rating.
In a June 26, 2012 decision, the hearing representative affirmed OWCP’s January 23,
2012 decision finding no additional permanent impairment of appellant’s legs.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.7 It is well established that in determining the amount of a
schedule award for a member of the body that sustained an employment-related permanent
impairment, preexisting impairments of the body are to be included.8
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim, including that he sustained an injury in the performance of duty
as alleged and that an employment injury contributed to the permanent impairment for which

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

7

FECA Bulletin No. 09-03 (issued March 15, 2009).

8

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.b. (June 1993). This portion of OWCP’s procedure provides that the impairment rating of a
given scheduled member should include “any preexisting permanent impairment of the same member or function.”

4

schedule award compensation is alleged.9 The medical evidence required to establish a causal
relationship 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.10
ANALYSIS
OWCP accepted that on February 1, 2002 appellant sustained an aggravation of a lumbar
sprain. On October 16, 2002 appellant underwent surgery for left-sided lumbar stenosis at L4-5
and L5-S1 with radiculopathy. In a March 28, 2008 decision, OWCP granted him a schedule
award for a three percent permanent impairment of his right leg. In a November 12, 2009
decision,11 the Board set aside OWCP’s prior schedule award decision and remanded the case to
OWCP for further development of the medical evidence with respect to appellant’s leg
impairment.
On remand, OWCP referred appellant to Dr. Iulo, a Board-certified orthopedic surgeon,
for a second opinion examination and opinion on his leg impairment. The Board finds that
OWCP properly relied on the September 8, 2010 report of Dr. Iulo, as confirmed by the opinion
of an OWCP medical adviser, to determine that appellant did not have permanent impairment of
his legs in addition to the three percent permanent impairment of his left leg for which he
received a schedule award.
In his September 8, 2010 report, Dr. Iulo discussed appellant’s medical history and the
findings upon physical examination conducted on that date.12 He indicated that during straight
leg raising (while seated) appellant could be brought to 80 degrees of straight leg raising without
complaints of pain. Upon examination of the knees (using a distraction technique), appellant did
not complain upon hip and knee flexion or upon extension while seated. Dr. Iulo stated that
sensation was intact in the peripheral nerve and dermatome distribution to touch and pinprick.
No motor atrophy was noted in the legs and motor strength was 5/5 in the nerve root and
peripheral nerve distribution including quadriceps, flexors and extensors of the toes and ankles.
Dr. Iulo indicated that hip, knee and ankle flexion and extension were within the normal range
with complaints of low back pain. He stated that he did not find any neurologic deficit, no
decrease in strength, atrophy or ankylosis or sensory deficit.
9

See Bobbie F. Cowart, 55 ECAB 476 (2004). In Cowart, the employee claimed entitlement to a schedule award
for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant did not establish that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear.
10

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

11

Docket No. 09-820 (issued November 12, 2009).

12

Dr. Iulo indicated that appellant was treated for a herniated disc and underwent surgery in October 2002.

5

On appeal, counsel argued that Dr. Iulo did not conduct an adequate neurological
examination of appellant, but a review of Dr. Iulo’s report shows that he performed a
comprehensive neurological evaluation of appellant’s back and legs. Dr. Iulo also performed a
review of the relevant medical records and considered both preexisting conditions and conditions
related to work injuries in assessing whether appellant had permanent impairment of his legs. He
properly applied the standards of the sixth edition of the A.M.A., Guides to find that appellant
had no such impairment. Appellant had subjective complaints of low back and left leg pain.
Dr. Iulo referenced Table 16-11 on page 533 and noted that appellant fell under class 0 as he had
normal sensibility/sensation and he had normal motor severity. Under the diagnosis of “mixed
nerves -- sciatic,” appellant fell under class 0 due to no objective sensory or motor deficits.
Dr. Iulo properly concluded, “This equals a 0 percent residual peripheral nerve lower extremity
impairment.” Moreover, in an October 27, 2011 report, Dr. Magliato, a Board-certified
orthopedic surgeon, serving as an OWCP medical adviser, indicated that he agreed with
Dr. Iulo’s assessment.
For these reasons, OWCP properly denied appellant’s claim for additional schedule
award compensation. Appellant may submit new evidence or argument with a written request
for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
permanent impairment of his legs in addition to the three percent permanent impairment of his
left leg for which he received a schedule award.

6

ORDER
IT IS HEREBY ORDERED THAT the June 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL DETENTION CENTER,
Philadelphia, PA, Employer
__________________________________________

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)

Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1098
Issued: April 22, 2019

Case Submitted on the Record

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

JURISDICTION
On April 30, 2018 appellant, through counsel, filed a timely appeal from a November 1,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from November 1, 2017, the date of OWCP’s last decision was
April 30, 2018. Since using May 4, 2018, the date the appeal was received by the Clerk of the Appellate Boards would
result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal
Service postmark is April 30, 2018, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that
acceptance of her claim should be expanded to include cervical and lumbar conditions causally
related to the accepted September 15, 2015 employment injury; and (2) whether she has met her
burden of proof to establish total disability for the period November 1 to 13, 2015 causally related
to the accepted injury.
FACTUAL HISTORY
On September 21, 2015 appellant, then a 33-year-old senior officer specialist, filed a
traumatic injury claim (Form CA-1) alleging that she sustained injuries to her mouth, left elbow,
right little finger, and lower back on September 15, 2015 when escorting an inmate while in the
performance of duty. She explained that the inmate became combative, hit her several times in
the face and head, and pulled her hair. Appellant stopped work that day and returned to work on
December 10, 2015 in a temporary alternative duty status.
In the attending physicians report section of a September 24, 2015 authorization for
examination and/or treatment (Form CA-16), Dr. Uplekh S. Purewal, a Board-certified
anesthesiologist, reported that on September 15, 2015 appellant was struck on the face by a
prisoner, she was wrestled to the ground, and her neck was forcefully turned. He diagnosed
cervical radiculopathy based on a positive compression test and positive facet arthropathy.
In a development letter dated September 25, 2015, OWCP advised appellant that the
medical evidence of record was insufficient to establish that her claimed cervical and lumbar
conditions were causally related to the alleged employment incident. Appellant was requested to
submit rationalized medical evidence supporting causal relationship between her diagnosed
conditions and the September 15, 2015 employment incident. OWCP afforded her 30 days to
submit the necessary evidence.
Dr. Purewal noted in a September 30, 2015 report his examination findings for the cervical
and lumbar spine as well as the upper and lower extremities. He opined that as a result of the
September 15, 2015 employment injury, appellant developed aggravation and exacerbation of
preexistent cervicalgia, aggravation and exacerbation of cervical facet syndrome, post-traumatic
cervical radiculopathy, aggravation and exacerbation of preexistent lumbago, aggravation and

3

5 U.S.C. § 8101 et seq.

4

The Board notes that following the November 1, 2017 decision and attached to her appeal, OWCP received
additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to
the evidence that was in the case record 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.

2

exacerbation of lumbar facet syndrome, clinical lumbar radiculopathy, post-traumatic muscle
spasm, chronic pain syndrome due to trauma, and left elbow pain.
An October 5, 2015 x-ray report of appellant’s left elbow indicated a normal radiographic
appearance of the left elbow.
In an October 15, 2015 report, Dr. Purewal noted that appellant reported immediate pain
in her left arm and left elbow at the time of the September 15, 2015 employment incident. He also
noted that her complaints of neck pain, numbness in fingers, midback (thoracic spine) pain, and
lower back pain all began without major events. Dr. Purewal noted examination findings and
again noted his prior assessments regarding appellant’s diagnosed conditions.
By decision dated November 2, 2015, OWCP found that appellant had not met her burden
of proof to establish that her diagnosed cervical and lumbar conditions were causally related to or
had been aggravated by the accepted September 15, 2015 employment incident.
In November 3 and December 4 and 17, 2015 reports, Dr. Purewal continued to report that,
as a result of the September 15, 2015 employment incident, appellant developed the previously
diagnosed multiple cervical and lumbar conditions. He reported that she had impacted her head,
face, and left arm during the incident and that she immediately started to experience pain in her
left arm and left elbow. Dr. Purewal also reported, however, that appellant’s neck, midback, and
lower back pain began without major events.
In a November 3, 2015 employment capacity evaluation (Form OWCP-5c) Dr. Purewal
indicated that appellant could perform light-duty work with restrictions. Following a
November 16, 2015 functional capacity evaluation, he advised that she was able to perform lightduty work. On December 4 and 17, 2015 Dr. Purewal ordered magnetic resonance imaging (MRI)
scans of the cervical spine, lumbar spine, and left elbow, as well as a electromyogram and nerve
conduction velocity (EMG/NCV) study of the bilateral upper extremities due to continuing
symptoms.
On December 2, 2015 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
In January 29 and February 26, 2016 reports, Dr. R. Todd Rinnier, an osteopath and Boardcertified anesthesiologist, reported appellant’s complaints of pain and that the neck pain, midback
(thoracic spine), and lower back pain began without major events. He noted that she had been
treated with pain medications and rest since the September 15, 2015 injury and that additional
testing had been requested. Dr. Rinnier indicated that after the employment-related injury on
September 15, 2015, appellant developed aggravation and exacerbation of preexistent cervicalgia,
aggravation and exacerbation of cervical facet syndrome, post-traumatic cervical radiculopathy,
aggravation and exacerbation of preexistent lumbago, aggravation and exacerbation of lumbar
facet syndrome, clinical lumbar radiculopathy, post-traumatic muscle spasm, chronic pain
syndrome due to trauma, and left elbow pain.
In a March 25, 2016 report, Dr. Rinnier diagnosed, as evidenced by his interpretation of
the March 2, 2016 MRI scans, a C5-6 disc herniation, abutting the ventral margin of the spinal
cord; a T11-12 disc herniation, disc extrusion, with indentation of the thecal sac; and L5-S1 disc
3

bulging, annular tear, impinging upon nerve root, with right neuroforaminal encroachment. He
indicated that those conditions developed after the September 15, 2015 employment injury.
In an April 5, 2016 report, Dr. Rinnier reported that appellant was first evaluated by his
practice in June 2012 for neck pain, midback (thoracic spine) pain, and lower back pain and that
she had received lumbar epidural injections, bilateral sacroiliac joint injections, radiofrequency
ablation of medial branch nerves, and interventional pain management treatments. On
September 30, 2015 appellant was reevaluated for an employment-related injury. Dr. Rinnier
noted that she had indicated that, due to her employment incident, her head, face, and left arm were
impacted and that she immediately experienced pain in her left arm and left elbow. Appellant also
reported that her neck, midback, and lower back pain had been aggravated and exacerbated by the
employment-related injury. Dr. Rinnier noted examination findings and results of diagnostic
testing of the left elbow and cervical and lumbar spine. He opined that appellant’s disc herniation
at C5-6 and disc herniation at T11-12, as evidenced by MRI scans, were permanent and attributable
to the employment injury of September 15, 2015. Copies of the March 2, 2015 MRI scans of the
cervical spine and lumbar spine were provided along with a June 5, 2012 MRI scan of the lumbar
spine for comparison.
By decision dated April 21, 2016, an OWCP hearing representative reversed the
November 2, 2015 decision and remanded the case to OWCP for acceptance of conditions of
laceration, inside bottom of lip, left side; contusion, bottom of right eye orbit; and left elbow bruise.
He noted that the evidence of record remained insufficient to accept cervical and thoracic
conditions.
By decision dated April 29, 2016, OWCP accepted the claim for contusion of eyeball and
orbital tissues, right eye; contusion of left elbow; and laceration with foreign body of lip, consistent
with the hearing representative’s decision. It, however, found that the medical evidence of record
was insufficient to establish the acceptance of additional conditions, as the reports of Dr. Rinnier
and Dr. Purewal did not provide medical rationale explaining causal relationship between the
additional conditions and the accepted employment incident.
OWCP subsequently received an April 20, 2016 report, Ijeoma Menkiti, a certified nurse
practitioner, related appellant’s findings regarding appellant’s current condition.
An April 20, 2016 EMG/NCV study of the upper extremities revealed left cervical
radiculopathy at C6-7.
On May 11, 2016 OWCP received a May 5, 2016 claim for compensation (Form CA-7) in
which appellant sought wage-loss compensation for intermittent periods of leave used for the
period November 1 through 28, 2015 and leave without pay continuously from November 29
through December 12, 2015. A May 9, 2016 time analysis form (Form CA-7a) noted appellant
sought disability compensation for the period November 1 through 13, 2015 and noted use of leave
by appellant through December 9, 2015.
In a development letter dated May 16, 2016, OWCP noted that appellant’s physicians had
not explained how the accepted conditions had resulted in temporary total disability for the periods
claimed. It further noted that the submissions from Dr. Rinnier and Dr. Purewal contained

4

insufficient medical rationale to accept the case for additional conditions. Appellant was informed
of the type of medical evidence needed to establish her claim for compensation and afforded her
30 days to submit the necessary evidence.
By decision dated June 28, 2016, OWCP denied appellant’s claim for disability
compensation for the period November 1 through December 9, 2015. It found that the medical
evidence of record was insufficient to establish that she was disabled as a result of her accepted
employment-related medical conditions. OWCP further found that medical reports from
Drs. Rinnier and Purewal were insufficient to establish that the additional conditions were causally
related to the accepted injury.
On July 8, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. A telephonic hearing was held on February 8, 2017, during which
counsel contended that appellant’s herniated disc conditions should have been accepted.
In a December 2, 2016 report, Dr. Rinnier continued to opine that, after the September 15,
2015 employment injury, appellant developed cervical and lumbar conditions. In a February 7,
2017 report, he explained that she was first evaluated by his practice in June 2012 for neck, pain,
midback (thoracic spine) pain, and lower back pain and noted her medical course. Dr. Rinnier
indicated that appellant was reevaluated on September 30, 2015 following an employment-related
injury. He opined that her disc herniation at C5-6 and disc herniation at T11-12, as evidenced by
MRI scans, were, within a reasonable degree of medical certainty, permanent and attributable to
the employment incident.
By decision dated March 13, 2017, an OWCP hearing representative modified the June 28,
2016 decision to reflect that the period of disability claimed was from November 1 through 13,
2015, but affirmed the denial of the claim as there was no medical evidence of record which
established that appellant’s claimed disability from November 1 through 13, 2015 was causally
related to her accepted conditions. He further noted that the medical evidence of record failed to
reflect sufficient medical evidence to support that disc herniations at C5-6 and T11-12 were
causally related to the accepted September 15, 2015 employment incident and/or that appellant
had experienced disability from November 1 through 13, 2015 causally related to the accepted
September 15, 2015 employment incident.
On August 3, 2017 appellant, through counsel, requested reconsideration of the March 13,
2018 decision. Counsel referenced new evidence from Dr. Rinnier dated July 11, 2017 which he
asserted established causal relationship for the cervical and thoracic conditions.
In the accompanying July 11, 2017 report, Dr. Rinnier reiterated the history of the injury,
noted appellant’s prior history of cervical and lumbar conditions, presented physical examination
findings, and diagnosed post-traumatic cervicalgia, post-traumatic cervical facet syndrome, disc
herniation at C5-6 from MRI scans, post-traumatic cervical radiculopathy, cervical radiculopathy
at C6-7 from EMG study, disc herniation at T11-12 from MRI scan, aggravation and exacerbation
of preexisting lumbago, lumbar facet syndrome and lumbar radiculopathy, post-traumatic muscle
spasm, chronic pain syndrome due to trauma, and left elbow pain. He reiterated that these
conditions developed after the September 15, 2015 employment injury. Dr. Rinnier explained that
the altercation with the inmate was described as an impact to the head and face and had resulted

5

in accepted conditions to the head and face. He advised that an impact to those areas, if strong
enough, can flex or extend the neck in a way that can herniate an intervertebral disc (also known
as a whiplash injury). Dr. Rinnier explained that a herniation causes arm pain (radiculopathy) as
the disc presses on the nerves coming out of the spine. He concluded that appellant’s injuries were
proximally caused by the employment-related injury. Dr. Rinnier opined that appellant’s disc
herniation at C5-6 from MRI scans, disc herniation at T11-12 from MRI scans, and cervical
radiculopathy at C6-7 from EMG study were permanent and causally related to the September 15,
2105 employment injury for the reasons explained in his report.
By decision dated November 1, 2017, OWCP denied modification of its March 13, 2017
decision finding that the evidence of record was insufficient to establish causal relationship
between the accepted employment injury and her multiple diagnosed cervical and lumbar
conditions as well as her alleged disability for the period November 1 to 13, 2015.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and generally can be established only by medical evidence.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.9 Rationalized medical opinion
5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
9

K.V., Docket No. 18-0723 (issued November 9, 2018).

6

evidence is required to establish causal relationship. The opinion of the physician 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 employment factors identified by the claimant.10
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
In a report dated July 11, 2017, Dr. Rinnier reiterated the history of appellant’s traumatic
injury, noted her preexisting history of cervical and lumbar conditions, presented physical
examination findings, and diagnosed post-traumatic cervicalgia, post-traumatic cervical facet
syndrome, a disc herniation at C5-6 from MRI scans, post-traumatic cervical radiculopathy,
cervical radiculopathy at C6-7 from EMG study, disc herniation at T11-12 from MRI scan,
aggravation and exacerbation of preexisting lumbago, lumbar facet syndrome and lumbar
radiculopathy, post-traumatic muscle spasm, chronic pain syndrome due to trauma, and left elbow
pain. He reiterated that these conditions developed after the September 15, 2015 employment
injury.
Dr. Rinnier noted that appellant’s altercation with the inmate was an impact incident to her
head and face sufficient to result in a lip laceration, a contusion of the right eye orbit, and a left
elbow bruise. He explained that an impact to her head and neck areas, if strong enough, can flex
or extend the neck in a way that can herniate an intervertebral disc (also known as a whiplash
injury). Dr. Rinnier explained that such an injury then causes arm pain (radiculopathy) as the disc
presses on the nerves coming out of the spine. He concluded that appellant’s injuries were
proximally caused by the employment-related injury. Dr. Rinnier opined that her disc herniation
at C5-6 from MRI scans, disc herniation at T11-12 from MRI scans, and cervical radiculopathy at
C6-7 from EMG study were permanent and causally related to the September 15, 2105
employment injury.
The Board finds that while Dr. Rinnier’s opinion regarding causal relationship lacks
sufficient medical rationale to meet appellant’s burden of proof to establish her claim, it was based
upon an accurate medical history and provided medical rationale explaining how the forces of
impact in the accepted employment injury could result in or have aggravated the diagnosed cervical
and lumbar conditions. As such, the opinion of Dr. Rinnier is sufficient to require OWCP to further
develop the medical evidence in this claim.11
It is well established that proceedings under FECA are not adversarial in nature and OWCP
is not a disinterested arbiter.12 While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence and to see that

10

I.J., 59 ECAB 408 (2008).

11

See R.H., Docket No. 17-1966 (issued March 6, 2018); John J. Carlone, 41 ECAB 354 (1989).

12

See A.M., Docket No. 18-0630 (issued December 10, 2018); Vanessa Young, 56 ECAB 575 (2004).

7

justice is done.13 Thus, the Board will remand the case to OWCP for further development of the
medical evidence to obtain a rationalized medical opinion as to whether the accepted employment
incident of September 15, 2015 was sufficient to have caused or aggravated cervical and lumbar
conditions. As appellant reported that her preexisting neck, midback, and lower back pain had
been aggravated and exacerbated by the employment-related injury, on remand, OWCP should
prepare a statement of accepted facts which includes the accepted conditions of the case as well as
appellant’s preexisting medical conditions and then obtain a second opinion examination on the
issue of causal relationship. After such further development as may be deemed necessary, OWCP
shall issue a de novo decision.14
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: April 22, 2019
Washington, DC

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

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

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

13

M.B., Docket No. 17-0536 (issued June 22, 2017); Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A.
Hammons, 51 ECAB 219 (1999); William J. Cantrell, 34 ECAB 1233, 1237 (1983).
14

Given the disposition of Issue 1, Issue 2 is moot.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.S., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 14-971
Issued: August 12, 2014

Case Submitted on the Record

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

JURISDICTION
On March 25, 2014 appellant filed a timely appeal of a March 5, 2014 decision of the
Office of Workers’ Compensation Programs (OWCP), denying his request for an oral hearing.
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 March 5, 2014 nonmerit decision. Since more than
180 days elapsed from issuance of the February 27, 2013 decision denying his claim for a
schedule award to the filing of this appeal, the Board lacks jurisdiction to review the merits of
the appeal.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing
before an OWCP hearing representative

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 2, 2011 appellant, then a 63-year-old mail handler equipment operator,
filed a traumatic injury claim alleging that he fractured his left ankle that day when a tractor hit a
pole and bent back over his foot. OWCP accepted the claim for closed left ankle bimalleolar
fracture.2
On May 14, 2012 appellant filed a claim for a schedule award.
By decision dated February 27, 2013, OWCP denied appellant’s claim for a schedule
award. It found that the evidence of record was insufficient to establish that he sustained a
permanent impairment to a scheduled member as a result of the accepted employment injury.
On January 27, 2014 appellant requested both a review of the written record and
telephonic hearing before an OWCP hearing representative.
By decision dated March 5, 2014, OWCP’s Branch of Hearings and Review denied
appellant’s hearing request as untimely filed. It considered his request and determined that his
case could equally well be addressed by requesting reconsideration and submitting new
evidence.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant is entitled to a hearing before an
OWCP representative when a request is made within 30 days after issuance of an OWCP final
decision.3 A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark of the request.4 OWCP has
discretion, however, to grant or deny a request that is made after this 30-day period.5 In such a
case, OWCP will determine whether a discretionary hearing should be granted or, if not, will so
advise the claimant with reasons.6
ANALYSIS
A request for a hearing must be made within 30 days after issuance of an OWCP final
decision. Appellant requested an oral hearing before the Branch of Hearings and Review on
January 27, 2014. As his request was submitted more than 30 days following issuance of the
February 27, 2013 decision, it was untimely filed.

2

Appellant elected to retire effective June 2, 2012. On June 19, 2012 he elected to receive retirement benefits
effective May 31, 2012.
3

5 U.S.C. § 8124(b)(1). See A.B., 58 ECAB 546 (2007); Gerard F. Workinger, 56 ECAB 259 (2005).

4

20 C.F.R. § 10.616(b).

5

Hubert Jones, Jr., 57 ECAB 467 (2006).

6

Teresa M. Valle, 57 ECAB 542 (2006).

2

OWCP also has the discretionary power to grant a review of the written record when a
claimant is not entitled to a review of the written record as a matter of right. The Board finds
that OWCP, in its March 5, 2014 decision, properly exercised its discretion by stating that it had
considered the matter in relation to the issue involved and had denied appellant’s request for an
oral hearing on the basis that his claim could be addressed through a reconsideration application.
The Board has held that as the only limitation on OWCP’s authority is reasonableness, abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deduction from
established facts.7 In the present case, the evidence of record does not indicate that OWCP
committed any abuse of discretion in connection with its denial of appellant’s request for an oral
hearing which could be found to be an abuse of discretion.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as it
was untimely.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 5, 2014 is affirmed.
Issued: August 12, 2014
Washington, DC

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

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

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

7

Teresa M. Valle, supra note 6; Daniel J. Perea, 42 ECAB 214 (1990).

3