United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Waltham, MA, Employer
__________________________________________

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

Docket No. 17-0353
Issued: March 22, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 5, 2016 appellant filed a timely appeal from an August 18, 2016 merit
decision and a November 15, 2016 nonmerit 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a left knee
injury causally related to a July 2, 2015 employment incident; and (2) whether OWCP properly
declined to reopen appellant’s case for further consideration of the merits of her claim under
5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 7, 2015 appellant, then a 55-year-old compliance investigator, filed a traumatic
injury claim (Form CA-1) alleging that he injured his left knee at work on July 2, 2015. He
indicated that he was exiting his government vehicle around 11:00 a.m. and his foot slipped.
Appellant described having felt his knee go to the left as his body moved forward. He believed
that he had pulled a muscle. Although appellant did not stop work at the time, his left knee was
reportedly sore and continued to bother him over the holiday (4th of July) weekend. On July 6,
2015 he was pulling weeds and his knee popped. Appellant indicated that he could not put any
weight on it. He went to the emergency room on July 6, 2015, and he stopped work on
July 7, 2015.
Appellant submitted a July 6, 2015 report, which indicated that he was seen in the
emergency room on that date by Dr. John Mulkern, a Board-certified family practitioner.
Dr. Mulkern noted that appellant presented with a chief complaint of left knee injury. Appellant
reported that he felt some discomfort and a sensation of his knee giving out approximately one
week prior. Dr. Mulkern noted, that “[y]esterday he pivoted and felt ‘a pop’ at the left knee”
with increased pain and swelling since that time. Appellant described the sensation as being
similar to when he injured his meniscus in the right knee and noted that he was able to bear full
weight with pain. Dr. Mulkern noted “Associated injuries none” and “Previous injuries to this
area none.” He advised that, upon examination, appellant had left knee tenderness at the left
medial joint line, small palpable effusion, no proximal fibular tenderness, full range of motion
with pain at full flexion, no joint laxity, negative Lachman’s sign, negative anterior and posterior
drawer tests, no distal paresthesis, and no distal weakness. Dr. Mulkern indicated that x-rays
showed no acute findings.2 He noted that the examination was consistent with a possible
meniscal injury and he diagnosed “left knee sprain, possible meniscal injury.”
In a July 13, 2015 report, Dr. Kai Mithoefer, a Board-certified orthopedic surgeon, noted
that appellant reported that he “had a twisting injury to his knee on [July 2, 2015]” and that he
felt something clicking in his knee and locking sensations, which had gradually resolved.
Appellant further reported that he continued to have significant pain and felt like something was
stuck in the joint. Dr. Mithoefer diagnosed left knee arthralgia and also noted that appellant had
symptoms consistent with an acute meniscal tear with a meniscus fragment. He recommended a
magnetic resonance imaging (MRI) scan to rule out a meniscal tear.
An August 3, 2015 left knee MRI scan revealed a tear at the root attachment of the
posterior horn medial meniscus, small joint effusion, mild trochlea sulcus chondromalacia,
myotendinous strain of the gastrocnemius muscles, and mild medial collateral ligament sprain.
On August 10, 2015 Dr. Mithoefer noted that appellant presented for evaluation of his
left knee and that appellant reported, “This started with a twisting injury on [July 2, 2015].” He
detailed the findings of his August 10, 2015 examination and diagnosed left knee medial
meniscal tear with mild osteoarthritis. Dr. Mithoefer recommended that appellant undergo left
knee surgery.

2

A July 6, 2015 left knee x-ray revealed “No acute bony abnormality….”

2

In a letter dated September 2, 2015, OWCP requested that appellant submit additional
factual and medical evidence in support of his claim.
Appellant submitted an undated statement in which he indicated that the July 2, 2015
injury occurred when he exited the car with his left foot. He noted that his body weight went
forward and his knee went sideways. Appellant indicated that he initially thought he pulled a
muscle and he thought he could recover at home. After being off work for three days, while at
home his left knee popped and buckled when he bent down to pick a weed from his tomato
garden. Appellant indicated that he then immediately sought medical attention to avoid further
injury.
Appellant also submitted a July 7, 2015 e-mail to an employing establishment official in
which he indicated that, as he exited his government vehicle on July 2, 2015, he felt his left knee
turn as his foot stepped onto the pavement. He reported that his left knee bothered him over the
weekend and that on July 6, 2015 he was pulling weeds “and I heard my knee pop and it buckled
to the point I couldn’t put any weight on it.”
In an October 20, 2015 decision, OWCP denied appellant’s claim for a work-related
July 2, 2015 left knee injury. It found that he had not submitted a medical report relating a
diagnosed condition to the implicated July 2, 2015 work incident of stepping out of his
government vehicle.
Appellant timely requested a telephonic hearing with an OWCP Branch of Hearings and
Review hearing representative in connection with the October 20, 2015 decision. He submitted a
September 24, 2015 report in which Dr. Mithoefer indicated that appellant was status post partial
medial meniscectomy of the left knee with abrasion chondroplasty of the medial femoral condyle
and loose body removal. Appellant also resubmitted copies of previously submitted reports,
including the July 6, 2015 report of Dr. Mulkern and the July 13 and August 10, 2015 reports of
Dr. Mithoefer.
During the telephonic hearing held on June 10, 2016, appellant testified that he could not
say that he slipped when he got out of the car on July 2, 2015, but rather he “stepped wrong” and
his knee went to the left. He indicated that his left knee hurt, but he continued with his duties.
Appellant noted that he thought he just pulled something and that he then stayed off the leg
during the holiday weekend. He did not think that medical care was needed at that time, but he
later bent down to pull a weed at home and heard his left knee pop. Appellant asserted that his
claim had initially been approved, but OWCP’s hearing representative informed him that the
initial minimal medical costs had been administratively approved prior to formal adjudication.
The hearing representative advised him that to support his claim, the medical evidence must
include an accurate history of injury and a rationalized opinion on causal relationship. Appellant
was provided an opportunity to submit additional evidence.
After the June 10, 2016 hearing, appellant submitted a June 27, 2016 statement in which
he asserted that the hearing transcript did not accurately reflect his previous testimony. He again
asserted that he had established his claim for a July 2, 2015 injury. Appellant also submitted a
copy of the hearing transcript on which he made various handwritten notations.

3

On June 30, 2016 appellant submitted a version of Dr. Mithoefer’s July 13, 2015 report,
which had previously been submitted to OWCP. This version contained the same text as the
earlier submission, but also included a page on which brief notes were made regarding
appellant’s past surgical history, social history, and occupational history.
By decision dated August 18, 2016, the hearing representative affirmed OWCP’s
October 20, 2015 decision denying appellant’s traumatic injury claim. She found that he
established the occurrence of a work incident on July 2, 2015 when he stepped out of a vehicle,
but that he failed to submit medical evidence relating a diagnosed condition to the specific work
incident. The hearing representative indicated that her decision incorporated appellant’s
comments regarding the accuracy of the transcript of the hearing held on June 10, 2016.
In an August 25, 2016 letter received on September 9, 2016, appellant advised that he
was requesting reconsideration of the hearing representative’s August 18, 2016 decision. He
also resubmitted the three-page report that Dr. Mithoefer produced on June 30, 2016 as an
addendum to his previously submitted July 13, 2015 report.
On November 7, 2016 OWCP received a June 28, 2016 letter in which appellant asserted
that the transcript of the June 10, 2016 hearing did not accurately reflect his hearing testimony.
By decision dated November 15, 2016, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). It noted that the
evidence and argument he submitted in connection with his reconsideration request was
repetitious in nature.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.3
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.4 The second component is whether the employment incident caused a
personal injury.5 An employee may establish that an injury occurred in the performance of duty
3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.

4

as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.6
ANALYSIS -- ISSUE 1
On July 7, 2015 appellant filed a Form CA-1 claiming that he sustained a left knee injury
at work on July 2, 2015. He alleged that the injury occurred when he exited his government
vehicle and government his foot slipped. Appellant noted that he felt his knee go left as his body
moved forward. OWCP accepted that the July 2, 2015 work incident occurred as alleged. It also
accepted that he was in the performance of duty at the time, and that a left knee medical
diagnosis had been provided. However, OWCP denied the claim because the medical evidence
did not establish a causal relationship between appellant’s claimed left knee condition and the
accepted July 2, 2015 employment incident. The Board finds that he failed to meet his burden of
proof to establish a work-related injury on July 2, 2015.
Appellant submitted a July 6, 2015 report in which Dr. Mulkern, an attending physician,
noted that appellant felt some discomfort and a sensation of his knee giving out approximately
one week prior. Dr. Mulkern noted, that “[y]esterday he pivoted and felt ‘a pop’ at the left knee”
with increased pain and swelling since that time. He noted “Associated injuries none” and
“Previous injuries to this area none.” Dr. Mulkern indicated that the examination was consistent
with a possible meniscal injury and he diagnosed “left knee sprain, possible meniscal injury.”
The submission of this report would not establish appellant’s claim for a work-related
July 2, 2015 injury because Dr. Mulkern did not provide any description of the July 2, 2015 work
incident of stepping out of a government vehicle. Although he noted appellant’s recitation of
recent symptomatology, he did not provide a clear opinion on the cause of the diagnosed left
knee condition. Dr. Mulkern did not indicate that appellant sustained an injury due to the
accepted July 2, 2015 work incident. The Board has held that medical evidence which does not
offer a clear opinion regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship.7
In a July 13, 2015 report, Dr. Mithoefer, an attending physician, noted that appellant
reported that he “had a twisting injury to his knee on [July 2, 2015]” and that he felt something
clicking in his knee and locking sensations, which had gradually resolved. He diagnosed left
knee arthralgia and also noted that appellant had symptoms consistent with an acute meniscal
tear with a meniscus fragment. Although Dr. Mithoefer mentioned appellant’s reference to a
July 2, 2015 work-related twisting injury, he did not provide any description of the specific
incident of stepping out of a vehicle. At the time, Dr. Mithoefer did not provide a clear opinion
that appellant’s left knee arthralgia and possible acute meniscal tear were related to the July 2,
2015 employment incident. Moreover, he did not mention the July 6, 2015 incident that
prompted appellant to seek medical care, i.e., his left knee popped and buckled when he bent
down to pick a weed from his tomato garden.

6

Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

5

In an August 10, 2015 report, Dr. Mithoefer noted that appellant presented for evaluation
of his left knee and that he reported, “This started with a twisting injury on [July 2, 2015].” He
diagnosed left medial meniscal tear with mild osteoarthritis and recommended that appellant
undergo surgery. Although Dr. Mithoefer again mentioned appellant’s reference to a July 2,
2015 twisting injury, he did not provide any description of the July 2, 2015 work incident of
stepping out of a vehicle or otherwise relate the observed left knee condition or need for surgery
to the specific July 2, 2015 work incident implicated by appellant.
In a September 24, 2015 report, Dr. Mithoefer indicated that appellant was status post
partial medial meniscectomy of the left knee with abrasion chondroplasty of the medial femoral
condyle and loose body removal. He did not provide any opinion that this surgery was
necessitated by a work-related injury sustained on July 2, 2015.
On appeal, appellant argues that the hearing representative did not consider all the
relevant medical evidence. He also claimed that the transcript for the June 10, 2016 hearing was
inaccurate. The Board notes that OWCP’s hearing representative did in fact consider all the
relevant medical evidence and that she considered appellant’s comments regarding his hearing
testimony, submitted shortly after the June 10, 2016 hearing, prior to issuing her August 18,
2016 decision.
The current record does not contain any medical evidence establishing that appellant
sustained a left knee injury as a result of stepping out of his government vehicle on July 2, 2015.
Therefore, he did not meet his burden of proof to establish a work-related injury on July 2, 2015.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.8 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.9 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.10 Atimely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.11 When a timely application for reconsideration does not meet at least

8

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
9

20 C.F.R. § 10.607.

10

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
11

20 C.F.R. § 10.606(b)(3).

6

one of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.12
Submitting evidence or argument that repeats or duplicates evidence or argument already
in the case record does not warrant reopening the record for merit review.13 Similarly, the
submission of evidence or argument that does not address the particular issue involved does not
constitute a basis for reopening a case.14 Reopening of a case may be predicated solely on a legal
premise not previously considered; however, such reopening is not required where the legal
contention does not have a reasonable color of validity.15
ANALYSIS -- ISSUE 2
In a letter received by OWCP on September 9, 2016, appellant timely requested
reconsideration of the hearing representative’s August 18, 2016 decision denying his claim for a
work-related July 2, 2015 injury. The Board finds that appellant did not meet the requirements
of 20 C.F.R. § 10.606(b)(3), thereby, precluding further merit review. In connection with his
application for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. Nor did he advance a new and relevant legal argument not
previously considered by OWCP.
On reconsideration, appellant resubmitted what he described as a three-page addendum to
Dr. Mithoefer’s July 13, 2015 report, which OWCP previously considered and found insufficient
to establish causal relationship. This is the same information appellant submitted on June 30,
2016 when the case was pending before the Branch of Hearings & Review. As noted above, the
submission of evidence that repeats or duplicates evidence already in the record does not constitute
a basis for reopening the claim for further merit review.16
Appellant submitted a June 28, 2016 letter in which he indicated that the hearing transcript
did not accurately reflect his hearing testimony. However, he had already submitted a similar
statement, dated June 27, 2016, which the hearing representative considered in her August 18,
2016 decision. Moreover, appellant has not explained how the alleged deficiencies in the transcript
undermine the hearing representative’s finding with respect to causal relationship, which is a
medical issue. The hearing representative specifically found that “Nowhere in the medical
evidence … is there any mention of the July 2, 2015 work incident,” i.e., stepping out of a car.
The submission of evidence or argument which does not address the particular issue involved does
not constitute a basis for reopening a case.17

12

Id. at § 10.608(a), (b).

13

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

14

Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

15

John F. Critz, 44 ECAB 788, 794 (1993).

16

See supra note 13.

17

See supra note 14.

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The underlying issue in this case was whether appellant submitted medical evidence
showing that he sustained a work-related injury on July 2, 2015. That is a medical issue which
must be addressed by relevant medical evidence.18 A claimant may be entitled to a merit review
by submitting relevant and pertinent new evidence, but appellant did not submit any such
evidence in this case.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a left knee injury causally related to a July 2, 2015 employment incident. The Board
further finds that OWCP properly denied his request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 15 and August 18, 2016 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: March 22, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

18

See Bobbie F. Cowart, 55 ECAB 746 (2004).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND, Jacksonville, FL,
Employer
__________________________________________

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

Docket No. 21-0697
Issued: October 27, 2021

Case Submitted on the Record

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

JURISDICTION
On March 22, 2021 appellant filed a timely appeal from a March 4, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 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.

1
The Board notes that appellant submitted new evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly suspended appellant’s wage-loss compensation,
effective March 4, 2021, due to her failure to complete a Form EN1032 as requested.
FACTUAL HISTORY
On November 16, 1988 appellant, then a 36-year-old federal employee, filed a traumatic
injury claim (Form CA-1) alleging that on October 11, 1988 she developed an emotional condition
while in the performance of duty. OWCP accepted the claim for major depressive disorder single
episode. It paid appellant wage-loss compensation on the supplemental rolls, commencing
March 24, 2002, and then on the periodic rolls commencing June 16, 2002.
Over the years, OWCP periodically requested that appellant submit financial disclosure
statements (Form EN1032), which solicited information about her employment, volunteer work,
dependent(s) status, receipt of other federal benefits and/or payments, and third -party settlements.
On December 15, 2020 OWCP notified appellant that she was required to fully answer all
questions on the enclosed EN1032 form and return it within 30 days or her benefits would be
suspended. It mailed the notice to her last known address of record. No response was received.
On February 10, 2021 OWCP resent the December 15, 2020 EN1032 form and notified
appellant that she was required to fully answer all questions on the enclosed EN1032 form and
return it within 30 days or her benefits would be suspended. It mailed the notice to her last known
address of record.
On February 24, 2021 appellant submitted a partially-completed Form EN1032 dated
February 17, 2021. She did not respond to Part D – Other Federal Benefits or Payments (1)(b).
By decision dated March 4, 2021, OWCP suspended appellant’s wage-loss compensation
benefits, effective March 4, 2021, due to her failure to complete the EN1032 form, as requested.
It advised that, if she were to complete and return the form, her wage-loss compensation benefits
would be restored retroactively to the date they were suspended.
LEGAL PRECEDENT
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self -employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies. 3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt
of compensation benefits must complete an affidavit as to any work or activity indicating an ability

3

5 U.S.C. § 8106(b).

2

to work, which the employee has performed for the prior 15 months. 4 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that,
time, OWCP will reinstate compensation retroactive to the date of suspension if the employee
remains entitled to compensation.5
ANALYSIS
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective March 4, 2021, due to her failure to complete the EN1032 form as requested.
On December 15, 2020 OWCP provided appellant with an EN1032 form. It properly
advised her that, if she did not completely answer all of the questions and return the form within
30 days, her benefits would be suspended. The record reflects that OWCP’s letter was properly
sent to appellant’s last known address of record and there is no indication that it was returned as
undeliverable.6 Under the mailbox rule, a document mailed in the ordinary course of the sender’s
business practices to the addressee’s last known address of record is presumed to be received by
the addressee. 7
On February 10, 2021 OWCP resent the December 15, 2020 EN1032 form and notified
appellant that she was required to fully answer all questions on the enclosed EN1032 form and
return it within 30 days or her benefits would be suspended. It mailed the notice to her last known
address of record. Appellant responded on February 17, 2021, but submitted an incomplete
EN1032 form. She failed to respond to Part D regarding whether she had received either a regular
retirement check or disability retirement check during the past 15 months.
The record indicates that appellant failed to submit the EN1032 form within 30 days of
OWCP’s request. OWCP was paying her wage-loss compensation on the periodic rolls and she
was, therefore, required to complete the EN1032 form. Appellant’s failure to file an EN1032 form
within 30 days required the suspension of her wage-loss compensation. Thus, the Board finds that
OWCP properly suspended her wage-loss compensation, effective March 4, 2021, pursuant to 20
C.F.R. § 10.528.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s wage-loss compensation,
effective March 4, 2021, due to her failure to complete an EN1032 form as requested.
4

20 C.F.R. § 10.528. See also H.B., Docket No. 19-0405 (issued June 26, 2019); M.S., Docket No. 18-1107 (issued
December 28, 2018); C.C., Docket No. 17-0043 (issued June 15, 2018); A.H., Docket No. 15-0241 (issued
April 3, 2015).
5

Id.; see also id. at § 10.525.

6

See H.B., supra note 4; J.J., Docket No. 13-1067 (issued September 20, 2013); Kenneth E. Harris, 54 ECAB 502,
505 (2003).
7

Id.

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ORDER
IT IS HEREBY ORDERED THAT the March 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 27, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bronx, NY, Employer
__________________________________________

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Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1633
Issued: May 4, 2018

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 August 14, 2016 appellant, through her representative, filed a timely appeal from a
March 24, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of 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.

The record provided to the Board includes evidence received after OWCP issued its March 24, 2016 decision.
The Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether OWCP properly terminated appellant’s medical benefits, effective
March 24, 2016.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On August 14, 2014 appellant, then a 58-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that a right shoulder injury occurred that morning when she was struck
by a postcon (postal container). She explained that she was in an elevator with postcons and the
elevator jerked and stopped suddenly. The sudden stop caused the postcons to move and at least
one slammed into appellant, striking her right shoulder very hard. Appellant stopped work on
August 14, 2014.
A July 1, 2014 right shoulder magnetic resonance imaging (MRI) scan revealed a large
rotator cuff tear.
By decision dated October 1, 2014, OWCP initially denied appellant’s claim, finding that
she failed to establish causal relationship. Appellant timely requested a hearing, which was held
on April 15, 2015.
A March 24, 2015 right shoulder MRI scan revealed findings consistent with a partial tear
of the mid-supraspinatus tendon, as well as tendinosis of the infraspinatus. There was also
evidence of acromioclavicular (AC) joint hypertrophy impinging on the rotator cuff, and
subacromial/subdeltoid bursitis.
In a May 14, 2015 report, Dr. David E. Lent, a Board-certified orthopedic surgeon,
diagnosed exacerbation of rotator cuff tear, rotator cuff tendinitis, shoulder impingement, bursitis,
and biceps tear. He indicated that appellant’s right shoulder worsened as a result of the new injury
she sustained on August 14, 2014.
By decision dated June 3, 2015, OWCP’s hearing representative set aside the October 1,
2014 decision, and remanded the case for further medical development.5
In a September 16, 2015 report, Dr. Mark Kramer, a Board-certified orthopedic surgeon
and OWCP referral physician, described appellant’s history of injury and treatment and performed
and examination. He advised that, at the time of the injury, she had an x-ray and was discharged
4
Order Remanding Case, Docket No. 16-0700 (issued September 26, 2017) and Docket No. 16-0491 (issued
September 27, 2017).
5

On November 29, 2015 appellant’s representative appealed the June 3, 2015 decision to the Board. By order
dated March 10, 2016, the Board dismissed the appeal because the case was in an interlocutory posture. Order
Dismissing Appeal, Docket No. 16-0251 (issued March 10, 2016).

2

with a sling. Dr. Kramer noted that the right arm was minimally swollen and black and blue, and
that appellant had been seeing her primary care physician, Dr. Lent, once a month. He further
advised that a July 1, 2014 (preinjury) right shoulder MRI scan revealed a full-thickness rotator
cuff tear. However, a March 24, 2015 repeat MRI scan did not reveal a full-thickness rotator cuff
tear. Dr. Kramer concluded that the July 1, 2014 MRI scan report was inaccurate. He also advised
that a physician’s note from March 27, 2014 indicated that appellant was struck on the shoulder at
work several months prior. Dr. Kramer surmised that, if that was the case, the current employment
incident would be an exacerbation of a preexisting condition. He advised that in any event her
condition had resolved and appellant could return to work without restrictions or further treatment.
Dr. Kramer diagnosed a contusion of the right shoulder and opined that it was employment related.
He completed a work restriction form for appellant advising that she had reached maximum
medical improvement. Dr. Kramer indicated that she could perform her usual job. He noted a
weight restriction of 50 pounds on pushing, pulling, lifting, squatting, kneeling, and climbing.
On October 1, 2015 OWCP accepted the claim for right shoulder contusion and sequela
based on Dr. Kramer’s September 16, 2015 findings. Appellant subsequently filed several claims
for compensation (Form CA-7) for the period September 29 through October 17, 2014 and
November 14, 2014 through October 16, 2015, and continuing.
By decision dated January 5, 2016, OWCP denied wage-loss compensation for the period
November 4, 2014 through October 16, 2015. Appellant timely appealed to the Board.
On January 22, 2016 OWCP revised the statement of accepted facts (SOAF) and sought
clarification from Dr. Kramer.6 Specifically, it inquired about whether appellant’s accepted right
shoulder contusion had resolved. OWCP also inquired as to whether appellant was capable of
resuming her mail handler duties, but for her preexisting right shoulder tear.
In a January 29, 2016 supplemental report, Dr. Kramer noted that appellant could resume
her duties as a mail handler. He also explained that the previously noted 50-pound weight
restriction was reported in error. Lastly, Dr. Kramer explained that the preexisting right shoulder
tear “probably was a radiographic abnormality....”
By decision dated February 5, 2016, OWCP denied wage-loss compensation for the period
September 29 through October 17, 2014. Appellant appealed to the Board.
By order dated September 26, 2017, the Board set aside the February 5, 2016 decision.7
By decision dated September 27, 2017, the Board affirmed OWCP’s January 5, 2016 decision.8

6

The latest SOAF included a description of appellant’s mail handler duties, and noted that she had a nonworkrelated history of a fall “with preexisting condition of right rotator cuff tear.”
7

Order Remanding Case, Docket No. 16-1633 (issued September 26, 2017).

8

See supra note 4.

3

On February 18, 2016 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits based on Dr. Kramer’s opinion. It afforded her 30 days to submit additional
evidence or argument to the extent she disagreed with the proposed termination of FECA benefits.
OWCP subsequently received an October 24, 2014 treatment note from Dr. Lent, who
indicated that appellant had been under his care for a rotator cuff tear, and that she was able to
return to work in a limited-duty capacity, effective October 30, 2014.9
On March 24, 2016 OWCP terminated appellant’s medical benefits, effective that date. It
found that the weight of the evidence rested with Dr. Kramer, who determined that she could return
to her date-of-injury job and that the residuals of the accepted condition had ceased.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden of proof to justify
modification or termination of benefits.10 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.11
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.12 To terminate authorization for medical treatment, OWCP must
establish that the employee no longer has residuals of an employment-related condition that require
further medical treatment.13
ANALYSIS
OWCP accepted appellant’s traumatic injury claim for right shoulder contusion and
sequela. It based the acceptance of the claim on Dr. Kramer’s September 16, 2015 second opinion
examination. Although appellant’s treating physician, Dr. Lent, had previously diagnosed right
rotator cuff tear and recommended surgical intervention, OWCP has not accepted any additional
right shoulder diagnoses.14 In terminating medical benefits, OWCP similarly relied on

9
OWCP also received additional copies of the March 24, 2015 MRI scan report and Dr. Lent’s May 14, 2015
narrative report.
10

Curtis Hall, 45 ECAB 316 (1994).

11

Jason C. Armstrong, 40 ECAB 907 (1989).

12

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

13

Calvin S. Mays, 39 ECAB 993 (1988).

14

Where an employee claims that a condition not accepted or approved by OWCP was due to an employment
injury, he or she bears the burden of proof to establish that the condition is causally related to the employment injury.
Jaja K. Asaramo, 55 ECAB 200, 204 (2004). OWCP’s hearing representative previously determined that Dr. Lent’s
May 14, 2015 report was insufficient to satisfy appellant’s burden of proof on causal relationship. However, the report
was sufficient to establish a prima facie case, thereby warranting further medical development. Accordingly, OWCP
referred appellant to Dr. Kramer for a second opinion examination. The January 22, 2016 SOAF noted that appellant
had a nonwork-related history of a fall “with preexisting condition of right rotator cuff tear.”

4

Dr. Kramer’s opinion to find that appellant’s accepted condition had resolved, and that she no
longer required medical treatment.
The issue currently before the Board is not whether OWCP should have accepted additional
right shoulder conditions, but whether it properly terminated medical benefits with respect to the
sole accepted condition of right shoulder contusion and sequela. The Board finds that OWCP met
its burden of proof to terminate appellant’s medical benefits, effective March 24, 2016.
In his September 16, 2015 report, Dr. Kramer diagnosed an employment-related contusion
of the right shoulder. He was aware that on August 14, 2014 a cart struck appellant on her right
shoulder while she was in an elevator. Dr. Kramer was also aware that a prior July 1, 2014 right
shoulder MRI scan had been interpreted as revealing a larger rotator cuff tear. He questioned the
accuracy of the interpretation of that particular MRI scan. According to Dr. Kramer, right shoulder
contusion was the sole diagnosis attributable to appellant’s blunt trauma. He concluded that
appellant’s condition had “resolved,” and that she did not require any further orthopedic treatment.
Dr. Kramer also noted that appellant was not currently receiving physical therapy, and did not
require any. Lastly, Dr. Kramer advised that appellant was able to return to work without
restrictions, which he reiterated in his January 29, 2016 supplemental report.
In order to terminate authorization for medical treatment, OWCP must establish that the
employee no longer has residuals of an employment-related condition that require further medical
treatment.15 Dr. Kramer was clearly of the opinion that appellant’s accepted condition -- right
shoulder contusion -- had resolved, and that she did not require further medical treatment.
Appellant has not submitted any contemporaneous medical evidence that would suggest the
presence of ongoing residuals due to her accepted right shoulder contusion and sequela.
Accordingly, the Board finds that Dr. Kramer’s opinion represents the weight of the medical
evidence with respect to the need for ongoing medical treatment.
Appellant’s representative argued that Dr. Lent’s May 14, 2015 report is sufficient to
support expansion of the claim. He also argued that Dr. Lent’s fully-rationalized medical opinion
should not be accorded less weight than Dr. Kramer’s opinion given that both physicians are
Board-certified orthopedic surgeons. Lastly, appellant’s representative challenged OWCP’s
reliance on Dr. Kramer’s opinion, arguing that he misinterpreted the right shoulder MRI scan and
erroneously identified a 50-pound lifting restriction.
As noted, the issue on appeal is whether appellant’s accepted right shoulder contusion had
resolved, thereby obviating the need for further medical treatment. Dr. Kramer indicated that
appellant’s condition had resolved and she did not require further orthopedic treatment. Appellant
has not submitted contemporaneous medical evidence indicating an ongoing need for treatment
with respect to her accepted right shoulder contusion. Accordingly, OWCP properly relied on
Dr. Kramer’s opinion in terminating medical benefits with respect to appellant’s accepted right
shoulder contusion and sequela.

15

Supra note 13.

5

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s medical
benefits, effective March 24, 2016.
ORDER
IT IS HEREBY ORDERED THAT the March 24, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 4, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Akron, OH, Employer
__________________________________________

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

Docket No. 09-1373
Issued: January 6, 2010

Case Submitted on the Record

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

JURISDICTION
On May 5, 2009 appellant filed a timely appeal from the April 9, 2009 merit decision of
the Office of Workers’ Compensation Programs, denying her claim for a schedule award. The
record also contains a September 24, 2008 merit decision on the schedule award issue. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant sustained a permanent impairment to a scheduled member
or function of the body entitling her to a schedule award under 5 U.S.C. § 8107.
FACTUAL HISTORY
On January 26, 2007 appellant, then a 42-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she sustained carpal tunnel syndrome as a result of repetitive
hand/wrist activity in her federal employment. The Office accepted the claim for bilateral carpal
tunnel syndrome. On July 7, 2008 appellant submitted a claim for a schedule award.

The Office advised appellant by letter dated July 14, 2008 of the evidence necessary to
support a schedule award. By decision dated September 24, 2008, it found that appellant was not
entitled to a schedule award as no supporting medical evidence was submitted to establish
permanent impairment arriving from her accepted conditions.
Appellant requested a telephonic hearing before an Office hearing representative, which
was held on February 11, 2009. In a March 4, 2009 report, Dr. Todd Hochman, an internist, who
stated that appellant reported bilateral wrist symptomatology, but had not received any physical
therapy, cortisone injection or treatment from an orthopedic surgeon. He was unable to state to a
reasonable degree of medical certainty that appellant had reached maximum medical
improvement.
By decision dated April 9, 2009, the hearing representative affirmed the September 24,
2008 decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.1 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants, the Office has adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the uniform standard applicable to all claimants.2
The period covered by a schedule award commences on the date that the employee
reaches maximum medical improvement (MMI) from the residuals of the injury.3 Maximum
improvement means that the physical condition of the injured member of the body has stabilized
and will not improve further.4 The determination of such date is to be made in each case upon the
medical evidence of record.5
ANALYSIS
The only medical evidence of record regarding any permanent impairment is
Dr. Hochman’s March 4, 2009 report. He did not describe a permanent impairment under the
A.M.A., Guides and he stated that he was unable to determine whether appellant had reached
MMI. As noted above, a schedule award under the Act is for a permanent impairment to a
1

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
2

A. George Lampo, 45 ECAB 441 (1994).

3

L.H., 58 ECAB

4

Adela Hernandez-Piris, 35 ECAB 839 (1984); James T. Rogers, 33 ECAB 347 (1981).

5

L.H., supra note 3.

(Docket No. 06-1691, issued June 18, 2007).

2

schedule member as listed at section 8107. The medical evidence must establish that the
employment-related condition has stabilized and will not improve further. Once an impairment
has reached MMI, a permanent impairment rating may be performed.6 The Board finds that the
medical evidence does not establish that appellant has reached MMI. Therefore, consideration of
a schedule award is premature. The Office properly determined appellant was not entitled to a
schedule award in this case.
CONCLUSION
The Board finds that the medical evidence does not establish that appellant reach MMI.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 9, 2009 and September 24, 2008 are affirmed.
Issued: January 6, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

Patricia J. Penny-Guzman, 55 ECAB 757 (2004).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Grand Prairie, TX, Employer
__________________________________________

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

Docket No. 11-1150
Issued: December 15, 2011

Case Submitted on the Record

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

JURISDICTION
On April 13, 2011 appellant filed a timely appeal from the February 18, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed the denial
of her disability claim. 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’s February 11, 2010 employment injury caused disability
for work from April 12 to 24, 2010.
FACTUAL HISTORY
On February 11, 2010 appellant, then a 39-year-old human resource specialist, sustained
an injury in the performance of duty when she slipped while trying to lift a door stop with her

1

5 U.S.C. § 8101 et seq.

foot.2 OWCP accepted her claim for degeneration of lumbar or lumbosacral intervertebral disc,
thoracic lumbosacral neuritis or radiculitis and displacement of lumbar intervertebral disc
without myelopathy. Appellant stopped work on February 23, 2010 and received 45 days of
continuation of pay through April 9, 2010.
Appellant filed a claim for disability compensation for the period April 12 to 24, 2010.
On April 19, 2010 Dr. Frederick D. Todd, II, the attending neurosurgeon, noted that
appellant was recently discharged from physical therapy to an independent home exercise
program. He noted that she was doing very well and had responded favorably to conservative
therapy modalities. Dr. Todd released her to work with no restrictions effective April 21, 2010,
encouraged appellant to continue with her home exercise program and discharged her from care.
OWCP denied appellant’s disability claim in a September 13, 2010 decision. It found
that she had not submitted any medical evidence discussing whether she was disabled for the
period claimed as a result of her February 11, 2010 employment injury.
Appellant requested a review of the written record by OWCP’s hearing representative.
She submitted a September 30, 2010 report from Dr. Todd, who noted that she was hospitalized
from March 3 to 8, 2010 for severe back pain radiating into the lower extremities. Appellant was
clinically diagnosed with a herniated nucleus pulposus at the L4-5 level with narrowing of the
spinal canal and impingement upon the thecal sac. She was treated conservatively with steroids
and physical therapy. Dr. Todd stated that appellant responded favorably: “With positive results
[she] has reached maximum medical improvement and may return to work on April 20, 2010.”
In a decision dated February 18, 2011, OWCP’s hearing representative affirmed the
denial of appellant’s disability claim. The hearing representative found that Dr. Todd failed to
report that appellant was disabled and unable to work from April 12 to 24, 2010, as she claimed.
On appeal, appellant notes that she remained in physical therapy through April 15, 2010,
and the earliest Dr. Todd could see her was April 19, 2010. She argues that her OWCP-approved
physician was not responsive, and she was forced to go to the emergency room on
March 2, 2010. Appellant feels that she is not at fault for going beyond the 45 days of
continuation of pay allowed federal employees and, therefore, she should be compensated for her
wage loss from April 12 to 24, 2010.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 A claimant seeking benefits under FECA has
the burden of proof to establish the essential elements of her claim by the weight of the
evidence,4 including that she sustained an injury in the performance of duty and that any specific
2

The record does not make clear whether appellant fell or caught herself midway or struck her back against the
corner of her desk.
3

5 U.S.C. § 8102(a).

4

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

2

disability for work for which she claims compensation is causally related to that employment
injury.5
The claimant must submit a rationalized medical opinion that supports a causal
connection between her claimed disability and the employment injury. The medical opinion
must be based on a complete factual and medical background with an accurate history of the
employment injury, and must explain from a medical perspective how the claimed disability is
related to the injury.6
ANALYSIS
The issue raised by appellant’s claim for disability compensation is whether the
February 11, 2010 employment injury caused disability for work from April 12 to 24, 2010.
This is a medical issue that requires a physician’s sound medical opinion. The Board finds that
the record contains no medical opinion directly addressing the period claimed.
The attending neurosurgeon, Dr. Todd, explained that appellant was hospitalized with
severe back pain from March 3 to 8, 2010, but that is not the period at issue. He stated that she
responded favorably to conservative measures, but did not address whether she was totally
disabled for work from April 12 to 24, 2010.
Appellant’s claim covers the period after the expiration of her continuation of pay until
she returned to work following Dr. Todd’s release. Although, Dr. Todd released her to return to
work without restrictions effective April 21, 2010 does not establish that she was totally disabled
for work until that date. As he noted, when he saw appellant on April 19, 2010 she was doing
very well and was recently released from physical therapy.
Dr. Todd did not address the period for which appellant claims compensation. Without a
sound medical opinion establishing that appellant was, in fact, totally disabled for work from
April 12 to 24, 2011, the evidence does not support her claim for compensation. The Board finds
that she has not met her burden of proof. The Board will, therefore, affirm OWCP’s
February 18, 2011 decision.
Appellant’s complaints about the lack of responsiveness from her OWCP-approved
physician or from OWCP in general, do not diminish her burden of proof to submit the required
medical evidence. She raises the argument that she remained in physical therapy through
April 15, 2010, the implication being that this prevented her from returning to work. Appellant
also explains that she could not see Dr. Todd until April 19, 2010, suggesting that she was not
cleared to return to work through that date. Again, the issue is a medical one that she cannot
resolve with personal explanations. Appellant did not submit a narrative report from Dr. Todd
discussing her disability status from April 12 to 24, 2010 and its relationship to the February 11,
2010 employment injury. Because Dr. Todd released her to return to work without restrictions
effective April 21, 2010, he would have to explain any continuing absence from work.
5

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

3

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
February 11, 2010 employment injury caused total disability for work from April 12 to 24, 2010.
No physician has directly addressed the period for which she claims compensation.
ORDER
IT IS HEREBY ORDERED THAT the February 18, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 15, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Newark, NJ, Employer
__________________________________________

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

Docket No. 10-1418
Issued: April 25, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 28, 2010 appellant, through his attorney, filed a timely appeal of the January 27
and March 30, 2010 schedule award decisions of the Office of Workers’ Compensation
Programs. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than 13 percent impairment of the right
lower extremity, for which he received a schedule award; and (2) whether he is entitled to a
schedule award for permanent impairment of the left lower extremity.
On appeal, appellant’s attorney contends that the medical opinion of an attending
physician who found that appellant had greater impairment than that previously awarded by the
Office should constitute the weight of the medical opinion evidence. He further contends that
1

5 U.S.C. § 8101 et seq.

the medical report of the impartial medical specialist is insufficient to constitute the weight of the
medical opinion evidence because he was not properly selected from the Physicians Directory
System (PDS) and failed to conduct a thorough physical and neurological examination. Counsel
argues that the Office did not sufficiently explain why a qualified physician was bypassed under
the PDS.
FACTUAL HISTORY
On November 6, 2003 appellant, then a 59-year-old transportation security screener, filed
an occupational disease claim alleging that on September 23, 2003 he first became aware of his
right sciatica. On October 27, 2003 he first realized that his condition was caused by lifting too
many bags at work. Appellant stopped work on September 23, 2003. The Office accepted his
claim for right sciatica and lumbosacral radiculitis. It authorized a percutaneous discectomy
which was performed on September 28, 2004.
On April 17, 2006 appellant filed a claim for a schedule award. In a January 16, 2007
medical report, Dr. David O. Weiss, an attending Board-certified orthopedic surgeon, found that
appellant had 46 percent impairment of the right lower extremity and 30 percent impairment of
the left lower extremity due to sensory and motor deficits based on Table 15-15 and Table 15-18,
page 424, Table 16-11, page 484 and Table 17-37, page 552 of the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
On April 30, 2008 Dr. Henry J. Magliato, an Office medical adviser, reviewed the
medical record, including Dr. Weiss’ January 16, 2007 findings and determined that appellant
had 10 percent impairment of the right lower extremity (A.M.A., Guides 424, 534, Table 15-15,
Table 15-16, Table 18-1). He advised that appellant had no impairment of the left lower
extremity as his accepted conditions were on the right side of the lumbar spine. Appellant
reached maximum medical improvement on January 16, 2007.
By letter dated October 8, 2008, the Office referred appellant, together with a statement
of accepted facts and the medical record, to Dr. Michael J. Katz, a Board-certified orthopedic
surgeon, for a second opinion medical examination. In an October 29, 2008 report, Dr. Katz
advised that appellant’s bilateral leg symptoms appeared to be related to his lumbar spine.
Utilizing Table 15-3 at page 384 of the fifth edition of the A.M.A., Guides, he determined that
appellant had four percent impairment of each lower extremity.
On February 28, 2009 Dr. Andrew A. Merola, an Office medical adviser, reviewed the
medical record, including Dr. Katz’s October 29, 2009 findings. He noted that his impairment
ratings related to the lumbar spine was not listed as a scheduled member of the body for which a
schedule award was payable. Dr. Merola noted that Dr. Weiss’ examination found motor loss
and sensory deficits in appellant’s lower extremity nerve roots which did not correlate with
Dr. Katz’s examination findings. He recommended an impartial medical examination based on
the physicians’ conflicting findings regarding impairment to appellant’s right and left lower
extremities.
Dr. Merola advised that he reached maximum medical improvement on
October 29, 2008.

2

By letter dated July 2, 2009, the Office referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Salvatore J. Scalfani, a Board-certified orthopedic
surgeon, for an impartial medical examination. The record contains a bypass form indicating
that no qualified physicians were available in appellant’s zip code. A search was conducted in a
different zip code area. A bypass form indicated that Dr. Steven Scalfani, a Board-certified
orthopedic surgeon, was bypassed for selection as an impartial medical specialist. The bypass
notes portion of the form stated that, he was on vacation throughout July 2009. Another bypass
form indicated that Dr. L. Paul Brief, a Board-certified orthopedic surgeon, was passed over for
selection as his telephone number was not in service and telephone directory assistance had no
further information. Another bypass form revealed that Dr. Norman I. Reis, a Board-certified
orthopedic surgeon, was not selected as an impartial medical specialist because he was out sick
and it was unknown as to when he would return to work. A bypass form which indicated that
Dr. Jordan A. Simon, a Board-certified orthopedic surgeon, was a potential impartial medical
specialist contained the name and claim number for a different claimant.
In a July 20, 2009 report, Dr. Scalfani obtained a history of the employment injuries and
appellant’s medical treatment. He noted his complaints of numbness, discomfort and tingling in
both legs, primarily in the right leg. Appellant had occasional discomfort in his lower back. He
walked with a crutch due to his right leg pain. Dr. Scalfani described a full physical and
neurological examination related to the lumbar spine and right and left lower extremities. There
was some straightening of the normal lumbar lordosis. Appellant had no muscle spasm or
significant back complaints. He had no muscle spasm on palpation. No trigger points palpated
throughout the lumbar area. In a sitting position, appellant was able to elevate his right and left
heel to 90 degrees with no complaints of back pain. In a supine position he had a bilateral
negative straight leg raising test. Appellant was actively able to elevate his heel from the
examining table from 0 to 70 degrees on both the right and left with no complaints of back pain.
He had tenderness in the right groin and a positive Faber test. Appellant had locked limitation of
external and internal rotation of the right hip consistent with a significantly arthritic right hip.
There was no atrophy in the right lower extremity. Appellant had good and active dorsalis pedis
pulses bilaterally. Dr. Scalfani provided measurements for the right and left mid-calves. He
reported dull, but present reflexes at the knee and ankle. Pinwheel testing revealed no loss of
sensation over both lower extremities contrary to appellant’s contention that he had decreased
sensitivity. Muscle strength was evaluated in the absence of atrophy. Muscle tone was
measured between four and five on both the right and left lower extremities. Appellant
ambulated with an antalgic gait. He could not stand on his heels and toes.
Dr. Scalfani diagnosed degenerative disc disease of the lumbosacral spine, herniated
nucleus pulposus at L1-L2 based on a magnetic resonance imaging scan, discogenic disease of
the lumbar spine at L4-L5 with bulging lumbar discs at L2-L3, L3-L4 and L4-L5 and
osteoarthritis of the right hip. Appellant was postpercutaneous discectomy at L4-L5.
Dr. Scalfani stated that much of his antalgic gait was primarily due to an arthritic right hip based
on his limited range of motion findings. He found, based on Table 17-4 at page 570 of the sixth
edition of the A.M.A., Guides, which was the lumbar spine regional grid for impairments to the
lumbar spine, that appellant had a Class 1 impairment that represented nine percent impairment
secondary to chronic lumbar herniated disc and inflammatory right sciatica. Dr. Scalfani
concluded that appellant reached maximum benefits from treatment. Appellant needed further

3

evaluation for his significant right hip arthritis which was not causally related to his accepted
employment injuries.
On August 7, 2009 Dr. Morley Slutsky, an Office medical adviser, reviewed the medical
record, including Dr. Scalfani’s February 21, 2006 findings. He determined that appellant had
13 percent impairment of the right lower extremity and no impairment of the left lower extremity
based on the sixth edition of the A.M.A., Guides. Appellant reached maximum medical
improvement on July 20, 2009. Dr. Slutsky stated that Dr. Scalfani failed to properly utilize the
A.M.A., Guides in rating appellant’s permanent impairment. He utilized Table 17 regarding the
lumbar spine which was not accepted by the Office. Also, Dr. Scalfani did not provide net
adjustment calculations and rationale. Dr. Slutsky found that appellant had no sensory
impairment due to his employment-related sciatica as Dr. Scalfani reported no objective
evidence of such loss (A.M.A., Guides 533, 534, Table 16-11, Table 16-12). He selected a
grade modifier (GM) of 1 for 4/5 muscle strength deficit related to the employment-related
lumbar radiculopathy in the absence of atrophy (A.M.A., Guides 533, 534, Table 16-11, Table
16-12). Dr. Slutsky selected a GM of two for appellant’s functional history based on his antalgic
limp and use of a crutch (A.M.A., Guides 516, Table 16-6). A physical examination GM was
not relevant as neurologic findings were used to define impairment ranges (A.M.A., Guides 517,
Table 16-7 and 533, Section 16.4(c)). Dr. Slutsky selected a clinical studies GM of two,
classifying the right L4-5-S1 radiculopathy with denervation in the paraspinal muscles, mild
distal sensory neuropathy, multilevel degenerative disc disease with a left paracentral herniation
at the L1-2 and intranuclear tears at the L3-4, L4-5 and L5-S1 as moderate pathology (A.M.A.,
Guides 519, Table 16-8). The class diagnosis (CDX) applied was one and the GM applied was
two for each factor, based on a moderate problem in accordance with Table 16-6, page 516 and
Table 16-7, page 517. The net adjustment formula was (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX). Since the GM was two and the CDX was one, the formula resulted in 1 + 0 +
1 = 2 which moving two to the right of the default grade C, represented a grade E or 13 percent
impairment of the right leg. Dr. Slutsky found that appellant had no left lower extremity
impairment based on Dr. Slutsky’s finding that a June 28, 2004 electromyogram/nerve
conduction study (EMG/NCS) revealed no evidence of left leg radiculopathy.2
On August 11, 2009 the Office requested that Dr. Scalfani review Dr. Slutsky’s August 7,
2009 report and provide whether he agreed with his findings. In an August 20, 2009 report,
Dr. Scalfani agreed with Dr. Slutsky’s opinion, noting that his own findings included 13 percent
loss of use of the right lower extremity. He stated that, Dr. Slutsky’s findings were essentially
the same as his findings although the physician used a different method to calculate appellant’s
permanent impairment.
By decision dated September 11, 2009, the Office granted appellant a schedule award for
13 percent impairment of the right lower extremity for the period July 20, 2009 to April 8, 2010.
It found that he had no impairment of the left lower extremity and denied his claim for a
schedule award for that extremity.
2

The June 28, 2004 EMG/NCS of appellant’s legs and lumbar paraspinal muscles demonstrated right L4-5/S1
radiculopathy with denervation in the paraspinal muscles and mild prolonged sensory evoked responses that were
consistent with mild distal sensory neuropathy.

4

In a September 18, 2009 letter, appellant, through counsel, requested an oral hearing
before an Office hearing representative.
In a January 27, 2010 decision, an Office hearing representative affirmed in part and set
aside in part the September 11, 2009 decision. He found that Dr. Scalfani’s opinion regarding
appellant’s right lower extremity impairment was entitled to special weight accorded an impartial
medical specialist. The hearing representative remanded the case to the Office for further
development of the medical evidence to determine whether appellant had any impairment to his
left lower extremity based on Dr. Scalfani’s left lower extremity findings.
By letter dated February 5, 2010, the Office requested that Dr. Scalfani clarify whether
appellant had any impairment of the left lower extremity based on the sixth edition of the
A.M.A., Guides, noting his motor strength deficit findings on the left side and the results of the
June 28, 2004 EMG/NCS. On March 15, 2010 Dr. Scalfani advised that although the June 25,
2004 EMG/NCS showed left-sided radiculopathy, his July 20, 2009 examination revealed no
evidence of residual radiculopathy in the left lower extremity. He noted that subsequent to the
EMG/NCS appellant underwent corrective lumbar surgery and was treated with several epidural
injections. Dr. Scalfani further noted that on clinical examination, he only had subjective
complaints of left-sided radiculopathy.
In a March 30, 2010 decision, the Office found that appellant did not have any permanent
impairment of the left lower extremity based on Dr. Scalfani’s March 15, 2010 impartial medical
opinion.
LEGAL PRECEDENT -- ISSUES 1 & 2
The schedule award provision of the Act3 and its implementing regulations4 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage of loss of use.5 However, neither the Act
nor the regulations specify the manner in which the percentage of impairment shall be
determined. For consistent results and to ensure equal justice for all claimants, the Office
adopted the A.M.A., Guides as a standard for determining the percentage of impairment and the
Board has concurred in such adoption.6 For Office decisions issued on or after May 1, 2009, the
sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating permanent impairment.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

20 C.F.R. § 10.404.

5

5 U.S.C. § 8107(c)(19).

6

Supra note 4.

7

Id.

5

and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on functional
history (GMFH), physical examination (GMPE) and clinical studies (GMCS).9 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.10 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 Office medical adviser, the Office
shall appoint a third physician to make an examination. This is called a referee examination and
the Office will select a physician who is qualified in the appropriate specialty and who has no
prior connection with the case.11 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.12
It is well established that Office procedures provide that an impartial medical specialist
must be selected from a rotational list of qualified Board-certified specialists, including those
certified by the American Medical Association and American Osteopathic Association.13 The
physician selected as the impartial specialist must be one wholly free to make an independent
evaluation and judgment. To achieve this end, the Office has developed procedures for the
selection of the impartial medical specialist designed to provide adequate safeguards against the
appearance that the selected physician’s opinion was biased or prejudiced.14 The procedures
contemplate that impartial medical specialists will be selected from Board-certified specialists in
the appropriate geographical area on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and the Office.15 The Federal
(FECA) Procedure Manual (the procedure manual) provides that the selection of referee
physicians (impartial medical specialists) is made through a strict rotational system using
appropriate medical directories. The procedure manual provides that the PDS should be used for
this purpose wherever possible.16 The PDS is a set of stand-alone software programs designed to
8

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
9

Id. at 494-531.

10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

12

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

13

See A.R., Docket No. 09-1566 (issued June 2, 2010); LaDonna M. Andrews, 55 ECAB 301 (2004).

14

See A.R., supra note 13; Raymond J. Brown, 52 ECAB 192 (2001).

15

B.P., Docket No. 08-1457 (issued February 2, 2009).

16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).

6

support the scheduling of second opinion and referee examinations.17 The PDS database of
physicians is obtained from the American Board of Medical Specialties which contains the
names of physicians who are Board-certified in certain specialties. It is well established that,
when a case is referred to an impartial medical specialist for the purpose of resolving a conflict,
the opinion of such specialist, if sufficiently well rationalized and based on proper factual and
medical background must be given special weight.18
In some instances, an Office medical adviser’s opinion can constitute the weight of the
medical evidence. This occurs in schedule award cases where an opinion on the percentage of
permanent impairment and a description of physical findings is on file from an examining
physician, but the percentage estimate by this physician is not based on the A.M.A., Guides. In
this instance, a detailed opinion by the Office medical adviser which gives a percentage based on
reported findings and the A.M.A., Guides may constitute the weight of the medical evidence.19
ANALYSIS -- ISSUES 1 & 2
The Office accepted appellant’s claim for right sciatica and lumbosacral radiculitis. It
authorized his September 28, 2004 percutaneous discectomy. Due to a conflict between
appellant’s physician, Dr. Weiss, who found that appellant had 46 percent impairment of the
right lower extremity and 30 percent impairment of the left lower extremity, and Dr. Katz, an
Office referral physician, who found that appellant had 4 percent impairment of each lower
extremity, the Office referred appellant to Dr. Scalfani, as the impartial medical specialist to
resolve the conflict in medical opinion.
First the Board will address counsel’s contention on appeal that the Office did not
properly select Dr. Salvatore Scalfani as the impartial medical specialist under the PDS as it
failed to provide sufficient explanation for bypassing Dr. Jordan A. Simon, a qualified Boardcertified orthopedic surgeon. The record regarding Dr. Scalfani’s selection as the impartial
medical specialist reflects that Dr. Simon was considered as a potential impartial medical
specialist by the Office in a claim not related to appellant. The bypass form contained the name
and file number for a different claimant. The record further reflects that there were no qualified
physicians in appellant’s zip code. A search of a different zip code identified Dr. Steven
Scalfani, a Board-certified orthopedic surgeon, who was bypassed because he was on vacation
throughout July 2009, the time of the Office’s referral. Dr. Brief, a Board-certified orthopedic
surgeon, was passed over for selection as an impartial medical specialist as his telephone number
was not in service and no additional information was available from telephone directory
assistance. Dr. Reis, a Board-certified orthopedic surgeon, was bypassed as he was unavailable
due to sickness and uncertainty as to when he would return to work. The Board finds that there
is no evidence that the Office did not select Dr. Salvatore Scalfani from the PDS or that it failed
to comply with its rotational procedures. Appellant did not provide any probative evidence to
17

Id. at Chapter 3.500.7 (September 1995, May 2003).

18

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

19

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.7(h) (April 1993).

7

demonstrate bias on the part of the doctor. The Board has held that an impartial medical
specialist properly selected under the Office’s rotational procedures will be presumed unbiased
and the party seeking disqualification bears the substantial burden of proving otherwise. Mere
allegations are insufficient to establish bias.20 Accordingly, the evidence does not establish an
error in the selection of Dr. Salvatore Scalfani as an impartial medical examiner.
In a February 21, 2006 report, Dr. Scalfani found, based on the sixth edition of the
A.M.A., Guides, that appellant had nine percent impairment of the lumbar spine secondary to
chronic lumbar herniated disc and inflammatory right sciatica (A.M.A., Guides 570, Table 17-4).
He listed his essentially normal findings on physical and neurological examination with some
straightening of the normal lumbar lordosis, tenderness in the right groin, a positive Faber test,
locked limitation of external and internal rotation of the right hip consistent with a significantly
arthritic right hip, dull, but present reflexes at the knee and ankle, ambulation with an antalgic
gait and inability to stand on his heels and toes. Dr. Scalfani determined that appellant had nine
percent impairment secondary to his chronic lumbar herniated disc and inflammatory right
sciatica (A.M.A., Guides 570, Table 17-4). However, neither the Act nor its regulations provide
for a schedule award for loss of use of the back. The schedule award provisions of the Act
include the extremities and a claimant may be entitled to a schedule award for permanent
impairment to a lower extremity even though the cause of such impairment originates in the
spine.21
The Office’s procedures state that an Office medical adviser must review the report to
verify correct application of the A.M.A., Guides and confirm the percentage of permanent
impairment as well as specify his reasons for assigning a certain percentage of loss of use to the
measurements or factors provided by an examining physician.22 In this case, Dr. Slutsky
properly stated that appellant was not entitled to a schedule award for impairment of the lumbar
spine.23 He also properly noted that Dr. Scalfani did not provide net adjustment calculations and
rationale in support of his impairment rating. Dr. Slutsky found that appellant had no sensory
impairment due to his employment-related sciatica as Dr. Scalfani did report any objective of
such loss (A.M.A., Guides 533, 534, Table 16-11, Table 16-12). He selected a GM of one as
appellant had 4/5 muscle strength deficit related to the employment-related lumbar radiculopathy
in the absence of atrophy (A.M.A., Guides 533, 534, Table 16-11, Table 16-12). Dr. Slutsky
selected a GMFH of two (A.M.A., Guides 516, Table 16-6) and a GMCS of two classifying the
right L4-5-S1 radiculopathy with denervation in the paraspinal muscles, mild distal sensory
neuropathy, multilevel degenerative disc disease with a left paracentral herniation at the L1-2
and intranuclear tears at the L3-4, L4-5 and L5-S1 as moderate pathology (A.M.A., Guides 519,
Table 16-8). He advised that a GM for his physical examination was not relevant as neurologic
findings were used to define impairment ranges (A.M.A., Guides 517, 533, Table 16-7, Section
16.4(c)). Dr. Slutsky calculated a net adjustment of two resulting in grade E which represented
20

See L.W., 59 ECAB 471 (2008).

21

J.Q., 59 ECAB 366 (2008).

22

R.S., Docket No. 09-1331 (issued April 5, 2010). Supra note 19 at Chapter 2.810.7(c) (April 1993).

23

J.Q., supra note 21.

8

13 percent right lower extremity impairment. He found that appellant had no left lower
extremity impairment as there was no objective evidence of left leg radiculopathy based on the
June 28, 2004 EMG/NCS.
Dr. Scalfani was asked by the Office to provide a supplemental report stating whether he
agreed with Dr. Slutsky’s findings. On August 20, 2009 Dr. Scalfani agreed with Dr. Slutsky’s
opinion that appellant had 13 percent impairment of the right lower extremity stating that, his
own findings included 13 percent loss of use of the right lower extremity. However, the Board
notes that Dr. Scalfani did not identify any specific tables or figures of the A.M.A., Guides
which he used to calculate his impairment rating. In a subsequent report, Dr. Scalfani advised
that appellant had no impairment of the left lower extremity as there was no objective evidence
on physical examination to support his subjective complaint of residual left-sided radiculopathy.
As Dr. Slutsky utilized Dr. Scalfani’s objective clinical findings to compare them with
impairment criteria listed in the sixth edition of the A.M.A., Guides, the Board finds that
appellant has no more than 13 percent impairment of the right lower extremity and no
impairment of the left lower extremity.
CONCLUSION
The Board finds that appellant has failed to establish that he has more than 13 percent
impairment of the right lower extremity, for which he received a schedule award. The Board
further finds that appellant is not entitled to a schedule award for permanent impairment of the
left lower extremity.

9

ORDER
IT IS HEREBY ORDERED THAT the March 30 and January 27, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bedford Park, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-2032
Issued: March 20, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 1, 2006 appellant filed a timely appeal from February 14 and July 27,
2006 merit decisions of the Office of Workers’ Compensation Programs denying his claim for a
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of disability on and after September 19, 1998 causally related to his accepted
employment injury of January 5, 1984.
FACTUAL HISTORY
This is the fourth appeal before the Board. On January 5, 1984 appellant, then a 30-yearold letter carrier, filed a claim for neck and right shoulder strains sustained by carrying a heavy
volume of mail on his shoulder. The Office accepted the claim for neck strain and later accepted

a right shoulder myositis. Appropriate compensation was paid. Appellant returned to light-duty
work on February 21, 1984 and eventually resumed full-duty work.
On September 22, 1998 appellant filed a recurrence of disability from September 19,
1998 for pain in his back, shoulder, neck, arm and cervical spine, which he alleged arose from
his January 5, 1984 work injury. He stated that he received an injury on the left side of his neck
and back, which caused his right side to act up again. In a January 29, 1999 letter, the Office
advised appellant that some of the medical evidence revealed new injuries for which a new claim
of injury could be filed. This included an exacerbation of left upper extremity symptoms by
work activities on August 30, 1998, a new injury of April 20, 1998, where a thoracic injury was
diagnosed and a new injury of May 6, 1998, where a cervical radiculopathy was diagnosed.1 In a
June 28, 1999 letter, the Office advised appellant that the medical evidence also indicated that he
sustained new injuries after lifting a heavy bale of mail on June 1, 19982 and on August 30,
1998, while throwing some mail.
In an October 3, 2001 decision, the Board affirmed the Office decisions dated
September 19 and May 22, 2000, finding that appellant failed to establish a causal relationship
between the January 5, 1984 work injury and his alleged recurrence of disability commencing
September 19, 1998.3 In a February 13, 2003 decision, the Board affirmed the Office’s July 30,
2002 decision denying modification of its denial of recurrence of disability.4 In a December 16,
2005 decision, the Board set aside the Office’s June 3, 2005 nonmerit denial of reconsideration
decision and remanded the case on the grounds that the Office abused its discretion by refusing
to reopen and review the merits of appellant’s claim.5 The Board found that on February 15,
2005 appellant had requested reconsideration of the Office’s February 24, 2004 decision denying
his claim for a recurrence and had submitted medical evidence along with an April 25, 2005
follow-up letter, which the Office received prior to the issuance of its June 3, 2005 nonmerit
decision. The facts and the circumstances of the cases are set forth in the Board’s prior decisions
and are incorporated herein by reference.

1

The record reflects that appellant filed a claim for a new injury of April 20, 1998, which was assigned Office
file number 060705056 and accepted for the condition of acute thoracic strain. In an April 8, 1999 letter, appellant’s
counsel was advised that the Office would not consolidate the current claim, Office file number 100336090, with
appellant’s April 20, 1998 claim, Office file number 060705056.
2

The Office indicated that appellant’s June 1, 1998 injury, Office file number 060704116, was denied on
August 27, 1998.
3

Docket No. 01-224 (issued October 3, 2001).

4

Docket No. 02-2389 (issued February 13, 2003).

5

Docket No. 05-1464 (issued December 16, 2005).

2

Following the Board’s decision, the Office reopened the case and reviewed the evidence
submitted with appellant’s February 15, 2005 reconsideration request to determine whether he
sustained a recurrence of disability causally related to his January 5, 1984 work injury.6
In a December 23, 2004 report, Dr. Steven A. Norris, a Board-certified neurologist, noted
the history of appellant’s work injury of January 5, 1984, a second work injury of May 6, 1998,
carpal tunnel syndrome and appellant’s January 2004 cervical discectomy and fusion at C3-4,
C4-5 and C5-6. An impression of cervical radiculopathy, occipital neuralgia, enthesopathy
(pain), thoracic pain and migraine headache was provided. In reports dated January 16 and
February 7, 2005, Dr. Norris opined that appellant continued to suffer with problems from the
January 5, 1984 work injury, for which he had C-spine surgery. He indicated that he was aware
of the history of onset of symptoms on January 5, 1984, appellant’s continuing symptoms and his
medical file. Dr. Norris opined that it was medically reasonable that appellant’s bag carrying
injury was consistent with his long-term problems. He explained that appellant’s original injury
was significant enough to permanently injure the cervical tissues at C3-6, which had not
completely healed. Thus, Dr. Norris opined that appellant’s current diagnoses and continued
C-spine radiculopathy were injury related.
By decision dated February 14, 2006, the Office denied modification of its previous
decisions. It found that appellant did not have any continuing disability causally related to the
January 5, 1984 work injury. It also noted that appellant had two prior cases which had been
denied.7
In a May 8, 2006 request for reconsideration, appellant, through his attorney, argued that
the Office failed to consider all the evidence previously submitted in support of appellant’s
claim, specifically Dr. Norris’ February 7, 2005 report. Additional evidence submitted included
a March 27, 2006 electromyelogram, which indicated continuing cervical radiculopathy and an
April 6, 2006 progress report from Dr. Norris.
A November 22, 2004 report from Dr. Joe T. Kelley, III, a Board-certified internist, and a
February 7, 2006 report from Dr. Oettinger were also submitted. However, neither physician
rendered an opinion on the cause of appellant’s symptoms.
By decision dated July 27, 2006, the Office denied modification of its prior decisions.
LEGAL PRECEDENT
A recurrence of disability means the inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous

6

Evidence submitted, which was previously considered, included: a May 1, 1993 magnetic resonance imaging
scan report; medical reports from Dr. Mark B. Lonstein, a Board-certified orthopedic surgeon, dated December 29,
2003 and January 6 and February 9, 2004; and a January 26, 2004 report from Dr. Jeffrey M. Oettinger, a Boardcertified orthopedic surgeon.
7

This included the June 1, 1998 denial, Office file number 060704116, for failure to establish fact of injury and a
denial for compensation for the carpal tunnel condition, Office file number 062129944.

3

injury or illness without an intervening injury or a new exposure to the work environment.8
Where appellant claims a recurrence of disability due to an accepted employment-related injury,
he has the burden of establishing by the weight of reliable, probative and substantial evidence
that the recurrence of disability is causally related to the original injury.9 This burden includes
the necessity of furnishing evidence from a qualified physician who, on the basis of a complete
and accurate factual and medical history, concludes that the condition is causally related to the
employment injury.10 Moreover, the physician’s conclusion must be supported by sound medical
reasoning.11
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.12 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.13 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.14
ANALYSIS
The Office accepted that appellant sustained a neck strain and right shoulder myositis on
January 5, 1984. It additionally noted that the medical evidence revealed new injuries for which
a new claim of injury could be filed. Of the new claims appellant filed, the Office accepted only
the April 20, 1998 injury.15
Following the Board’s December 16, 2005 decision, the Office considered the evidence
submitted in support of appellant’s recurrence claim. In a December 23, 2004 report, Dr. Norris
noted the history of appellant’s January 5, 1984 work injury and mentioned a second work injury
of May 6, 1998. He also provided diagnoses of appellant’s conditions following a January 2004
cervical discectomy and fusion. In his January 16 and February 7, 2005 reports, Dr. Norris
8

20 C.F.R. § 10.5(x).

9

Robert H. St. Onge, 43 ECAB 1169 (1992).

10

Section 10.104(a)(b) of the Code of Federal Regulations provides that when an employee has received medical
care as a result of the recurrence, he or she should arrange for the attending physician to submit a detailed medical
report. The physicians report should include the physician’s opinion with medical reasons regarding the causal
relationship between the employee’s condition and the original injury, any work limitations or restrictions and the
prognosis. 20 C.F.R. § 10.104.
11

See Robert H. St. Onge, supra note 9.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

13

For the importance of bridging information in establishing a claim for a recurrence of disability, see Robert H.
St. Onge, supra note 9; Shirloyn J. Holmes, 39 ECAB 938 (1988); Richard McBride, 37 ECAB 748 (1986).
14

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

15

See supra note 1.

4

opined that appellant’s current conditions were causally related to the January 5, 1984 work
injury. He stated that appellant’s original injury of January 5, 1984 had permanently injured the
cervical tissues at C3-6, which had not healed. While Dr. Norris mentioned a second work
injury of May 6, 1998, there is no evidence that the Office has accepted such an injury.
Additionally, there is no evidence that he was aware of the medical evidence of file following the
January 5, 1984 work injury which denoted the possibility of other new injuries. Thus,
Dr. Norris did not provide a medical opinion based on a complete history of injury. Therefore,
his opinion is of diminished probative value. It is well established that medical reports must be
based on a complete and accurate factual and medical background and medical opinions based
on an incomplete or inaccurate history are of diminished probative value.16 Additionally,
Dr. Norris failed to provide medical rationale explaining how or why appellant’s continuing
residuals were caused by the accepted soft-tissue conditions.17 The additional medical evidence
submitted fails to offer an opinion on the causal relationship of appellant’s medical conditions.18
The Board notes that an award of compensation may not be based on surmise, conjecture
or speculation.19 The mere fact that later symptoms mirrored those following the employment
injury, without more, is insufficient to establish a causal relationship, as the work activities may
produce symptoms which are revelatory of an underlying condition.20 To be of probative value,
a physician’s opinion must be based on a complete factual and medical background and be
supported by medical rationale explaining the nature of the relationship between the claimed
condition and the employment injury or factors of his federal employment.21
Appellant has not submitted any rationalized medical evidence establishing that he
sustained a recurrence of disability causally related to his accepted employment-related injuries
of January 5, 1984. The Board finds that appellant has not discharged his burden of proof to
establish that he sustained a recurrence of disability as a result of his accepted employment
conditions.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a recurrence of disability on and after September 19, 1998 causally related to his
accepted employment injury of January 5, 1984.

16

James R. Taylor, 56 ECAB ___ (Docket No. 05-135, issued May 13, 2005).

17

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
18

See Linda I. Sprague, 48 ECAB 386 (1997) (medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of diminished probative value on the issue of causal relationship).
19

Shirloyn J. Holmes, supra note 13.

20

See Gary R. Fullbright, 40 ECAB 737 (1989); Dominic M. DeSala, 37 ECAB 369 (1986).

21

Lucretia M. Nielson, 42 ECAB 583 (1991).

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ORDER
IT IS HEREBY ORDERED THAT the July 27 and February 14, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6