United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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

Docket No. 14-753
Issued: July 11, 2014

Case Submitted on the Record

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

JURISDICTION
On February 20, 2014 appellant, through his attorney, filed a timely appeal from an
October 24, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish bilateral carpal tunnel
syndrome in the performance of duty causally related to factors of his federal employment.
On appeal, counsel contends that appellant has provided sufficient evidence to establish
that his bilateral carpal tunnel syndrome is related to his federal employment duties. He argues
that, although appellant did have other injuries, including a motor vehicle accident outside of
work, these outside injuries should not preclude an occupational claim for bilateral carpal tunnel
syndrome.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 22, 2012 appellant, then a 55-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained an aggravation of his carpal tunnel
syndrome due to the repetitive work of his federal employment. Appellant submitted a narrative
statement indicating that his work required sorting, pushing, lifting and delivering mail.
In an October 26, 2012 letter, OWCP notified appellant of the deficiencies of his claim
and afforded him 30 days to submit additional evidence and respond to its inquiries. Appellant
did not respond.
By decision dated November 27, 2012, OWCP denied appellant’s claim on the basis that
the evidence failed to establish fact of injury.
On December 6, 2012 appellant, through his attorney, requested an oral hearing before an
OWCP hearing representative and submitted nerve conduction studies dated December 2, 2012.
In a June 13, 2012 report, Dr. Michael Grenis, a Board-certified orthopedic surgeon,
diagnosed bilateral carpal tunnel syndrome. He indicated that appellant was a postal worker who
also had a cervical spine problem and had been diagnosed with cervicalgia and cervical
radiculopathy. Dr. Grenis reported that appellant had been in four recent automobile accidents in
which he was rear-ended.
A hearing was held before an OWCP hearing representative on March 25, 2013.
Appellant submitted reports dated March 10 through August 3, 2011 from Dr. Dorota
Gribbin, a Board-certified physiatrist, who diagnosed cervicalgia, carpal tunnel syndrome, disc
disease and cervical and lumbar radiculopathies. On March 18, 2011 Dr. Gribbin diagnosed
right moderate carpal tunnel syndrome motor nerve entrapment neuropathy, left mild-tomoderate carpal tunnel syndrome sensory nerve entrapment neuropathy and right C7
radiculopathy. On October 10, 2011 she diagnosed spinal stenosis of lumbar region with
neurogenic claudication, pain in soft tissues of limb and abnormality of gait.
In reports dated October 14, 2011 through January 29, 2013, Dr. Gribbin diagnosed
displacement of lumbar intervertebral disc without myelopathy, neck sprain and strain, headache,
lumbago and lesion of ulnar nerve, indicating that appellant’s pain began after a motor vehicle
accident on October 13, 2011. She also diagnosed trigger finger and indicated that appellant had
a history of repetitive lifting.
Appellant submitted an electromyogram and nerve conduction studies (EMG/NCS) dated
February 13 and November 26, 2012. He also submitted physical therapy notes dated June 18
through 22, 2012.
By decision dated June 12, 2013, an OWCP hearing representative affirmed the
November 27, 2012 decision finding that appellant had not established fact of injury as the
medical evidence failed to establish a causal relationship between his bilateral carpal tunnel
syndrome and the accepted factors of his federal employment.

2

On July 25, 2013 appellant, through his attorney, requested reconsideration and submitted
a July 19, 2013 report from Dr. Gribbin who indicated that she reviewed all of appellant’s
medical records and diagnosed cervical spine disease, right carpal tunnel radiculopathy, right
cubital tunnel syndrome and bilateral carpal tunnel syndrome. Dr. Gribbin opined that
appellant’s conditions were chronic, permanent and directly related to his federal employment.
In an August 21, 2013 report, Dr. Mark Filippone, a Board-certified physiatrist, reviewed
appellant’s medical history and conducted a physical examination. He stated that appellant
worked as a letter carrier since 1986 and continued to work full-time regular duty driving a
straight box truck and occasionally shouldered a bag at work. Upon examination, Dr. Filippone
found that appellant demonstrated a bilateral positive Tinel’s and Phalen’s sign referable to the
median nerve at the wrists. He opined that appellant sustained “[m]ultiple trauma directly and
solely the result of the injuries sustained while at work for [the employing establishment] on
[March 18, 2011] to include bilateral carpal tunnel syndrome.” Dr. Filippone also diagnosed
internal derangement of both shoulder and both knees. He indicated that appellant had prior
motor vehicle accidents in 1999 and perhaps in 2001 but opined that “any those injuries have
been exacerbated by the … injury trauma of March 18, 2011.”
By decision dated October 24, 2013, OWCP denied modification of the June 12, 2013
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury3 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.5

2

Id.

3

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
4

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

5

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

3

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.6
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish a claim that
federal employment factors caused or aggravated his bilateral carpal tunnel syndrome. He
submitted a statement in which he identified the factors of employment that he believed caused
the condition, including sorting, pushing, lifting and delivering mail, which OWCP accepted as
factual. However, in order to establish a claim that he sustained an employment-related injury,
appellant must also submit rationalized medical evidence which explains how his medical
condition was caused or aggravated by the implicated employment factors.7
On August 21, 2013 Dr. Filippone reviewed appellant’s medical history and conducted a
physical examination. He stated that appellant worked as a letter carrier since 1986 and
continued to work full-time regular duty driving a straight box truck and occasionally shouldered
a bag at work. Upon examination, Dr. Filippone found that appellant demonstrated a bilaterally
positive Tinel’s and Phalen’s sign referable to the median nerve at the wrists. He opined that
appellant sustained “[m]ultiple trauma directly and solely the result of the injuries sustained
while at work for [the employing establishment] on [March 18, 2011] to include bilateral carpal
tunnel syndrome.” Dr. Filippone also diagnosed internal derangement of both shoulder and both
knees. He indicated that appellant had prior motor vehicle accidents in 1999 and perhaps in
2001 but opined that “any those injuries have been exacerbated by the … injury trauma of
March 18, 2011.” However, Dr. Filippone failed to provide a rationalized opinion explaining
how factors of appellant’s federal employment, such as sorting, pushing, lifting and delivering
mail, caused or aggravated his bilateral carpal tunnel syndrome or any other condition or how the
employment factor exacerbated prior nonwork-related conditions. He noted that appellant’s
condition occurred while he was at work, but such generalized statements do not establish causal
relationship because they merely repeat appellant’s allegations and are unsupported by adequate
medical rationale explaining how his physical activity at work actually caused or aggravated the
diagnosed conditions.8 Lacking thorough medical rationale on the issue of causal relationship,
the Board finds that Dr. Filippone’s report is insufficient to establish that appellant sustained an
employment-related injury.
In her reports, Dr. Gribbin diagnosed bilateral carpal tunnel syndrome, right carpal tunnel
radiculopathy, right cubital tunnel syndrome and trigger finger. She indicated that appellant had
6

See O.W., supra note 4.

7

See A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C.
Moore, 52 ECAB 132 (2000).
8

See K.W., Docket No. 10-98 (issued September 10, 2010).

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a history of repetitive lifting and opined that his conditions were chronic, permanent and directly
related to his federal employment. The Board has held that the mere fact that appellant’s
symptoms arise during a period of employment or produce symptoms revelatory of an
underlying condition does not establish a causal relationship between appellant’s condition and
his employment factors.9 Dr. Gribbin failed to provide a rationalized opinion explaining how
factors of appellant’s federal employment, such as sorting, pushing, lifting and delivering mail,
caused or aggravated his bilateral carpal tunnel syndrome or any other condition. Thus, the
Board finds that her reports are insufficiently rationalized to establish that appellant’s conditions
were caused or aggravated by factors of his federal employment.
In a June 13, 2012 report, Dr. Grenis diagnosed bilateral carpal tunnel syndrome and
indicated that appellant was a postal worker. The Board has held that medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.10 As such, the Board finds that appellant did not meet
his burden of proof with the submission of this report.
In support of his claim, appellant submitted EMG/NCS dated February 13, November 26
and December 2, 2012 and physical therapy notes dated June 18 through 22, 2012. These
documents do not constitute competent medical evidence as they do not contain rationale by a
physician relating appellant’s disability to his employment.11 As such, the Board finds that
appellant did not meet his burden of proof with these submissions.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to the accepted employment factors, he
failed to meet his burden of proof to establish a claim.
On appeal, counsel contends that appellant has provided sufficient evidence to establish
that his bilateral carpal tunnel syndrome is related to his federal employment duties. He argues
that, although appellant did have other injuries, including a motor vehicle accident outside of
work, these outside injuries should not preclude an occupational claim for bilateral carpal tunnel
syndrome. Based on the findings and reasons stated above, the Board finds that counsel’s
arguments are not substantiated.
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.

9

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

11

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N. Fassi,
42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained bilateral carpal tunnel syndrome in the performance of duty causally related to factors
of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Q.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1142
Issued: September 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 18, 2014 appellant, through counsel, filed a timely appeal from an October 28,
2013 Office of Workers’ Compensation Programs’ (OWCP) nonmerit decision which denied her
request for reconsideration under 5 U.S.C. § 8128(a) and a March 19, 2014 nonmerit decision
denying her reconsideration request on the grounds that it was untimely filed and failed to
present clear evidence of error. Because more than 180 days elapsed since the most recent merit
decision dated December 31, 2012 and the filing of this appeal on April 18, 2014, the Board
lacks jurisdiction to review the merits of appellant’s case but has jurisdiction over the nonmerits
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3.
ISSUES
The issues are: (1) whether OWCP properly refused to reopen appellant’s case for
further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a); and (2) whether OWCP

1

5 U.S.C. § 8101 et seq.

improperly refused to reopen appellant’s case for further review of her claim on the grounds that
her request was untimely filed and failed to demonstrate clear evidence of error.
On appeal, counsel contends that appellant submitted a magnetic resonance imaging
(MRI) scan dated October 15, 2013 as relevant and pertinent new evidence in support of her
request for reconsideration. He further contends that appellant submitted sufficient medical
evidence in support of her claim.
FACTUAL HISTORY
On July 21, 2012 appellant, then a 28-year-old mail carrier, filed a recurrence claim
(Form CA-2a), under OWCP File No. xxxxxx214, alleging that “on July 12, 2012 after finishing
my work for the day the pain was unbearable and I could no longer try and manage.”2 The
employing establishment indicated that she was pregnant upon returning to work and was limited
to three hours of walking by her doctor.
Appellant also submitted claims for wage-loss compensation (Form CA-7s) for periods
commencing July 16, 2012.
In a July 30, 2012 letter, OWCP notified appellant that her recurrence claim was accepted
as a claim for a new injury and advised that her claims for compensation (Form CA-7s) would be
transferred to the new claim for adjudication.
In a May 14, 2012 report, Dr. Michael T. Dresdner, a Board-certified obstetrician and
gynecologist, indicated that appellant was under his care for prenatal care and delivery and was
last seen in his office on April 19, 2012. Appellant was 14 weeks and 4 days gestational age
with a due date of November 2, 2012 and had been limited to the following restrictions: no more
than 25 pounds at a time of lifting; no more than three hours per day of walking; no exposure to
more than 85 degrees Fahrenheit.
On July 16, 2012 Dr. David S. Wolkstein, a Board-certified orthopedic surgeon, indicated
that appellant was under his care for injuries sustained on December 12, 2011 to her back and
right shoulder. He noted that she was also pregnant which exacerbated the lower back.
Dr. Wolkstein opined that appellant was disabled and unable to work. On July 30, 2012 he
stated that she was injured in a motor vehicle accident on December 12, 2011 and was evaluated
in his office on January 12, 2012 with complaints of continued pain in her right shoulder and
lower back with radiation from her lower back into her right lower extremity. Dr. Wolkstein
diagnosed right shoulder sprain and lumbosacral sprain with left lumbar radiculitis. He
examined appellant on February 9, March 1 and July 16, 2012 for complaints of low back pain,
right shoulder pain and numbness and tingling in both lower extremities. Dr. Wolkstein noted
that she was pregnant and advised that she was unable to carry out the duties of mail carrier as
she was unable to sit, stand, bend, stoop, walk, climb, twist, push, pull or reach above the
shoulders.

2

The original claim was accepted due to a December 12, 2011 motor vehicle accident that occurred during duty
hours.

2

In an August 14, 2012 letter, OWCP stated that, according to the information sent with
her recurrence claim under File No. xxxxxx214, appellant did not experience a spontaneous
worsening of an employment-related condition without new injury or exposure to employment
factors. It reiterated that it had converted her recurrence claim into a new traumatic injury claim
under File No. xxxxxx380. OWCP notified appellant of the deficiencies of her claim and
afforded her 30 days to submit additional evidence and to respond to its inquiries.
In an August 30, 2012 narrative statement, appellant indicated that on July 12, 2012 she
arrived at work at 7:30 a.m. and pitched mail into her case for two hours, pulled the mail from
the case and then proceeded to the street for delivery. She had three hours of house-to-house
mail delivery and two hours of building deliveries. As appellant was pitching mail into the
government mailbox of the last building, she reached to place mail into a box that was higher
than her shoulder and felt a pop in her shoulder and a sharp pain in her lower back. Immediately
after the injury she returned to the office. The pain was continuous and did not subside with
Tylenol so appellant decided to make an appointment with Dr. Wolkstein who was unavailable
until July 16, 2012. She notified her supervisor, Veronica Walker, that she had an appointment
with Dr. Wolkstein on July 16, 2012 because of her back and shoulder and Ms. Walker
instructed her on how to call out with an on-the-job injury.
In an August 29, 2012 report, Dr. Wolkstein stated that appellant was injured at work on
July 12, 2012 as a result of reaching over her head with her right arm to place mail in
government boxes and felt an exacerbation of her preexisting right shoulder and lower back pain.
He diagnosed acute exacerbation of preexisting right shoulder sprain and lumbosacral sprain
with left lumbar radiculitis. Dr. Wolkstein indicated that appellant was eight months pregnant
which could have contributed to her lower back pain and prevented her from undergoing imaging
studies and physical therapy. He opined that the July 12, 2012 employment incident was
causally related to the injuries sustained to her right shoulder and lower back.
By decision dated September 20, 2012, OWCP denied the claim on the basis that the
evidence submitted was not sufficient to establish a causal relationship between appellant’s
conditions and the July 12, 2012 employment incident.
On October 1, 2012 appellant, through counsel, requested reconsideration and submitted
a September 27, 2012 report from Dr. Wolkstein who stated that on July 12, 2012 appellant was
carrying approximately five pounds of weight in her hands and injured her right shoulder while
attempting to place mail over her head. Dr. Wolkstein indicated that because “she had a previous
injury to her right shoulder on December 12, 2011 and continued to feel right shoulder pain since
that injury, simply reaching over her head [could] indeed cause an acute exacerbation of her right
shoulder pain.” Appellant related to Dr. Wolkstein on September 27, 2012 “that she did not feel
an exacerbation of her lower back pain on July 12, 2012 but just continued to feel the same lower
back pain that she felt since the injury on July 12, 2012.” She had returned to work on
March 19, 2012 while still being symptomatic with lower back pain because she did not want to
lose her wages. Also, appellant had three previous pregnancies without any lower back
symptoms and had no complications with her current pregnancy, therefore, Dr. Wolkstein opined
that there was no reason to contribute her lower back pain to her current pregnancy.
Dr. Wolkstein concluded that her right shoulder pain was causally related to the incident that

3

occurred on July 12, 2012 and her lower back pain was causally related to the injury that
occurred on December 12, 2011.
By decision dated December 31, 2012, OWCP denied modification of its September 20,
2012 decision.
On September 25, 2013 appellant, through counsel, requested reconsideration for a
second time and submitted a narrative statement dated September 19, 2013.
By decision dated October 28, 2013, OWCP denied appellant’s request for
reconsideration of the merits finding that she did not submit pertinent new and relevant evidence
and did not show that it erroneously applied or interpreted a point of law not previously
considered by OWCP.
On November 11, 2013 appellant, through counsel, requested reconsideration “of the
decision dated October 28, 2013 and the prior decision dated December 31, 2012” and submitted
an October 15, 2013 MRI scan of the right shoulder which showed a mild productive change at
the acromioclavicular (AC) joint and supraspinatus tendinosis.
In a November 19, 2013 letter, OWCP notified appellant that it had received her request
for reconsideration on November 11, 2013. It further indicated that she was not entitled to
request reconsideration of the October 28, 2013 decision as it was not made within the one-year
limit.
On March 14, 2014 appellant’s counsel indicated that appellant had requested
reconsideration of the December 31, 2012 decision on November 11, 2013 and submitted new
medical evidence in support of her claim.
By decision dated March 19, 2014, OWCP denied appellant’s request for reconsideration
on the grounds that it was untimely filed and failed to present clear evidence of error, indicating
that her request was received on March 14, 2014.
LEGAL PRECEDENT -- ISSUE 1
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.3 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).4
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
3

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

See Annette Louise, 54 ECAB 783, 789-90 (2003).

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pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.7
ANALYSIS -- ISSUE 1
In support of her September 25, 2013 reconsideration request, appellant submitted a
narrative statement dated September 19, 2013. The Board finds that submission of this
document did not require reopening appellant’s case for merit review as it was focused on the
history of her claim and did not provide medical rationale from a physician establishing a causal
relationship between appellant’s conditions and the July 12, 2012 employment incident, which
was the issue before OWCP. Therefore, it does not constitute relevant and pertinent new
evidence and is not sufficient to require OWCP to reopen the claim for consideration of the
merits.
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant legal argument not previously
considered by OWCP, nor did she submit any pertinent new and relevant evidence not
previously considered. The Board finds that appellant did not meet any of the necessary
requirements and, thus, she is not entitled to further merit review.8
LEGAL PRECEDENT -- ISSUE 2
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.9
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.10 The oneyear period begins on the date of the original decision. However, a right to reconsideration
within one year accompanies any subsequent merit decision on the issues. This includes any
hearing or review of the written record decision, any denial of modification following
reconsideration, any merit decision by the Board and any merit decision following action by the
Board.11

5

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

See L.H., 59 ECAB 253 (2007).

9

20 C.F.R. § 10.607(a).

10

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

11

See D.G., 59 ECAB 455 (2008); Veletta C. Coleman, 48 ECAB 367 (1997); Leon D. Faidley, Jr., id. at 111.

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ANALYSIS -- ISSUE 2
In its March 19, 2014 decision, OWCP denied appellant’s November 11, 2013 request for
reconsideration finding that it was untimely filed and failed to present clear evidence of error.
The Board finds that OWCP improperly determined that her request for reconsideration was not
timely filed within the one-year time limitation period set forth in 20 C.F.R. § 10.607.
On December 31, 2012 OWCP issued a decision denying modification of its
September 20, 2012 decision which denied appellant’s claim for a traumatic injury.
Accordingly, appellant had one year from December 31, 2012 to make a timely request for
reconsideration.12 In its March 19, 2014 decision, OWCP indicated that appellant’s request for
reconsideration was received on March 14, 2014 and determined that the request was not within
the one-year time limitation. However, the record establishes that the request for reconsideration
of OWCP’s December 31, 2012 and October 28, 2013 decisions was filed on November 11,
2013 as confirmed by a November 19, 2013 letter from OWCP. The Board finds that the
November 11, 2013 request for reconsideration is within one year of the last merit decision dated
December 31, 2012 and thus appellant’s request for reconsideration is therefore timely.
As appellant timely filed a request for reconsideration in this case, the Board finds that
OWCP improperly denied her reconsideration request by applying the legal standard for cases
where reconsideration is requested after more than one year has elapsed.13 OWCP should have
applied the standard reserved for timely reconsideration requests as set forth in 20 C.F.R.
§ 10.606(b)(3).14 Since it erroneously reviewed the evidence submitted in support of appellant’s
reconsideration request under the more stringent clear evidence of error standard, the Board will
remand the case for review of the evidence under the proper standard of review for a timely
reconsideration request.15
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). The Board further finds that
OWCP improperly refused to reopen appellant’s case for further review of her claim on the
grounds that her request was untimely filed and failed to demonstrate clear evidence of error.

12

See id. A right to reconsideration within one year accompanies any subsequent merit decision on the issues.

13

See C.J., Docket No. 12-1570 (issued January 16, 2013).

14

20 C.F.R. § 10.606(b)(3) of OWCP regulations provide that an application for reconsideration must be in
writing and 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.
15

In light of the disposition of this case, the Board will not address counsel’s arguments on appeal.

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ORDER
IT IS HEREBY ORDERED THAT the October 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed and the decision dated March 19, 2014 is set aside
and the case remanded for further action consistent with this decision of the Board.
Issued: September 3, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Warwick, RI, Employer
__________________________________________

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

Docket No. 13-1919
Issued: May 16, 2014

Case Submitted on the Record

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

JURISDICTION
On August 19, 2013 appellant filed a timely appeal from an April 25, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his claim for compensation
and an August 7, 2013 nonmerit decision denying his request for reconsideration. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that his
hypertension condition was caused or contributed to by employment factors commencing
October 7, 2012; and (2) whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 11, 2012 appellant, then a 55-year-old administrative officer, filed an
occupational disease claim alleging an increase in his blood pressure over several days.
Appellant described receiving an e-mail from a former employee on Sunday, October 7, 2012.
The former employee had resigned on February 7, 2011 following an investigation into sensitive
security information he posted on an internet site. The October 7, 2012 e-mail, received
20 months later, read:
“The proceedings of the illegal meeting, bullying/lying that preceded firing were
audial recorded (yes, really) and will be sent to Gov’t agencies in the hope that
your illicit career will end in an even more un-illustrious manner than all those
others you bullied, lied and intimidated in the course of firing.
“Lying is frowned upon in the Fed. Govt. particularly when its revealed by
opposing govt agencies and particularly on on-line social internet site.
“There is also a whistle-blower clause that will be pursued.
“DIAF.”
Appellant noted that the acronym DIAF meant “Die in a Fire.” He contacted the
employing establishment about the e-mail and submitted information from online sources
concerning threats to government officials. Appellant stopped work on October 12, 2012, noting
a constant headache and his blood pressure rose to dangerous levels despite medication. He
stated that officials of the employing establishment did not adequately investigate the matter.
In an October 12, 2012 report, Dr. Kim J. Crawford, a family practitioner, noted that
appellant has been her patient since 2001 and that his hypertension worsened over the years
resulting in increases and modifications to his medication. Of particular concern has been
appellant’s diastolic pressure. Dr. Crawford stated that his blood pressure could be attributed to
his “stressful work environment” and “scope of professional responsibilities.” She opined that
appellant should be out of work indefinitely and consider a less stressful position. In an
October 25, 2012 report, Dr. Crawford diagnosed benign hypertensive heart disease without
heart failure and a generalized anxiety disorder. She noted that appellant’s blood pressure
continued to spike and that his headaches continued. Dr. Crawford reiterated that he should be
out of work indefinitely and consider a less stressful position.
In a November 29, 2012 letter, OWCP advised appellant of the deficiencies in his claim.
It requested that he submit additional factual and medical evidence to support his claim.
On December 19, 2012 appellant responded that his claim pertained to an aggravation of
his preexisting hypertension caused by work-related events and not to any psychological injury.
He contended that the employing establishment did not make a required federal response to the
threat he received, as it had not sent out any appropriate warnings or an official visit to the

2

perpetrator.2 Appellant submitted a copy of the employing establishment workplace violence
program and a copy of an American Heart Association article on hypertensive crises.
In a December 14, 2012 report, Pamela Lowell, a licensed social worker in the Employee
Assistance Program noted seeing appellant commencing October 24, 2012 as he was out on sick
leave. Appellant experienced workplace stress and post-traumatic stress disorder symptoms
resulting from two threating e-mails from a former contact and no immediate or subsequent
response from the employing establishment. After five sessions his blood pressure had returned
to normal and he was back at work full time.
By decision dated February 21, 2013, OWCP denied appellant’s claim. It accepted that
he received an e-mail from the former employee but found that the medical evidence was
insufficient to establish that his medical condition was causally related to factors of his federal
employment.
On March 15, 2013 appellant requested reconsideration. He argued that the events of
October 7 through 12, 2012 aggravated his preexisting hypertension and caused a hypertensive
crisis, for which he sought treatment with Dr. Crawford. Appellant stated that the accepted
work-related events drove him into a hypertensive crisis and were the sole cause of his medical
and physical reactions. He stated that the American Heart Association article pertained to his
specific condition as the base level of a hypertensive crisis was the level of severity he
experienced.
In a March 13, 2013 report, Dr. Crawford reiterated the diagnoses of benign hypertensive
heart disease without heart failure and generalized anxiety disorder. She indicated that appellant
presented in September and October 2012 with an awareness of an increase in his blood pressure
and a recently developed trouble with anxiety and trouble with sleeping. Appellant related that
he was dealing with job stressors, including intimidation and threats resulting from his doing due
diligence in the performance of his duties. Dr. Crawford stated that “[appellant’s] duty-related
events were likely the cause of his dangerously elevated blood pressure” and the reason she took
him off work for three weeks to allow the supplementary medication to have effect.
In an April 12, 2013 letter, Steven M. Stone, a human resource specialist, stated that he
had reviewed appellant’s reconsideration statement and concurred with the facts describing the
events of October 7 through 11, 2012. He noted working with appellant on a daily basis, who
complained of headaches.
In an April 19, 2013 statement, appellant noted that his supervisor and Mr. Stone had
personally witnessed the effects of the hypertensive crisis on his ability to perform his job and
the facts following the threat from the former employee. He contended that Dr. Crawford’s
reports supported causal relationship.

2

The record indicates that, after review, the employing establishment advised appellant that since the matter
involved a former employee, it should be considered as a state or local issue. Appellant was advised to make a
report to the Rhode Island State Police.

3

By decision dated April 25, 2013, OWCP denied modification of its February 21, 2013
decision. It determined that the reports of Dr. Crawford were not sufficiently rationalized to
establish causal relation.
On May 7, 2013 appellant requested reconsideration. In a May 7, 2013 letter, he noted
that his request was based on newly discovered legal information. He cited to Board case law in
support of the proposition that “where a person has a preexisting condition which is not disabling
but which becomes disabling because of aggravation causally related to the employment, then
regardless of the degree of such aggravation, the resulting disability is compensable. If the
medical evidence reveals that an employment factor contributes in any way to the employee’s
condition, the condition is considered to be employment related.” Appellant contended that
Dr. Crawford clearly opined that his work events were the likely cause of his dangerously
elevated blood pressure and the reason why he stopped work.
By decision dated August 7, 2013, OWCP denied appellant’s request for reconsideration
without further merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that a condition was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying the employment factors alleged to have caused or contributed to the presence of
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

See Gary M. DeLeo, 56 ECAB 656 (2005); Michael R. Shaffer, 55 ECAB 386 (2004).

6

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

4

the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.7
Causal relationship is a medical issue. The medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion includes a physician’s opinion addressing the causal relationship between the
employee’s diagnosed condition and the compensable employment factors.9 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant received an e-mail from a former employee of the
employing establishment on October 7, 2012 and that he stopped work on October 12, 2012. It
denied his claim, finding that the medical evidence was insufficient to establish that his
diagnosed condition resulted from or was contributed to by the accepted work factors. Appellant
alleged that the receipt of the e-mail constituted a threat against a government official and was
not adequately investigated or responded to by the employing establishment. He claimed an
aggravation of his preexisting hypertension and a hypertensive crisis.
The Board finds that appellant did not submit sufficient medical evidence to establish that
his hypertension or hypertensive crisis was causally related to the accepted work events.
Appellant submitted several brief treatment records from Dr. Crawford, a family
practitioner. On October 12, 2012 Dr. Crawford advised that he had been a patient since 2001
and noted generally his work as an administrator in Homeland Security. As to the history, she
noted that appellant had kept her abreast of handling intimidation and threats from employees
and managers during the past 10 years. Dr. Crawford stated that his hypertension had been
worsening over the years, resulting in modifications to his medication. As to causal relation, she
stated that appellant’s hypertension “can be attributed to his stressful work environment and
scope of professional responsibilities.” An October 25, 2012 treatment note listed several
diagnoses without any further narrative from Dr. Crawford; who noted only that he should be out
of work for two more weeks. On October 26, 2012 she stated that appellant’s diastolic blood
pressure continued to spike with headaches. Dr. Crawford noted that Ms. Lowell recommended
that he remain off work for another week, through November 2, 2012. She stated that, after
seeing appellant for 10 years, her opinion remained that he be off work and consider a less
stressful position. Dr. Crawford recommended that he find less stressful employment. The
7

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997).

8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
9

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

Board finds that the records of her are summary in nature and do not provide any extensive
history of her hypertension condition, medical treatment nor specifically address the events at
work commencing on October 7, 2012. Rather, Dr. Crawford listed a 10 years history of
handling intimidation and threats from employees and managers which does not pertain to the
specifics of appellant’s claim regarding an e-mail from a former employee of October 7, 2012 or
subsequent work events.
On March 13, 2013 Dr. Crawford submitted another note, listing the diagnosis from prior
records. She stated:
“[Appellant] has been known to me for over five years and he impresses me with
his depth of [commitment] and sensitivity to his health and work situations. He
presented to me in September [2012] and then again in October [2012] relating
that he was aware of an increase in his blood pressure and a recently developed
trouble with anxiety and trouble with sleep. [Appellant] related to me that he was
dealing with stressors of the job including intimidation and threats resulting from
doing due diligence in the performance of his duties. I believe that his
duty[-]related events were likely the cause of his dangerously elevated blood
pressure and that they were the reason to put him out of work for three weeks to
allow time for the supplementary medication to have effect.”
The Board finds that Dr. Crawford’s opinion on causal relation is vague and couched in
speculative terms. Dr. Crawford did not address specifics of the October 7, 2012 e-mail that
appellant stated constituted a threat by a former employee. She noted that he was seen in
September 2012, prior to the October 7, 2012 e-mail, for complaint of elevated blood pressure.
Further, Dr. Crawford’s opinion on causal relation is not stated to a reasonable degree of medical
certainty but that duty-related events “were likely” the cause of his elevated blood pressure.11
Dr. Crawford did not attribute his condition or the worsening thereof or the inability to
work to the events of October 7 through 12, 2012, which diminishes the probative value of her
opinion.12 Medical reports consisting solely of conclusory statements without supporting
rationale are of diminished probative value.13 In the absence of a rationale opinion by
Dr. Crawford on the issue of causal relationship to the specific employment factors accepted, the
Board finds that her opinion fails to support appellant’s claim.
Appellant also submitted a December 14, 2012 report from Ms. Lowell, a licensed
clinical social worker. It is well established, however, that medical evidence must be from a

11

See James R. Taylor, 56 ECAB 537 (2005).

12

See M.D., 59 ECAB 211 (2007); Vitaliy Y. Matviiv, 57 ECAB 193 (2005).

13

See T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, supra note 6;
William C. Thomas, 45 ECAB 591 (1994) (a medical report is of limited probative value on the issue of causal
relationship if it contains a conclusion regarding causal relationship which is unsupported by medical rationale).

6

qualified physician.14 A licensed clinical social worker is not a physician as defined under
FECA. An opinion from a social worker is of no probative medical value.15
Appellant submitted an article from the American Health Association regarding
hypertension. The Board has held that newspaper clippings, medical texts and similar excerpts
from publications are of no evidentiary value in establishing causal relationship, as they are of
general application and are not determinative of whether the specific condition claimed was
caused by the particular employment events of activities raised in a claim.16 The article on
hypertensive crises is, therefore, insufficient to establish causal relationship. Neither the fact that
his condition became apparent during a period of employment nor the belief that his condition
was caused or contributed to by his employment is sufficient to establish causal relationship.17
Causal relationship must be established by rationalized medical opinion evidence from a
physician.
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.18 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.19 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.20

14

See Vickey C. Randall, 51 ECAB 357 (2000); Arnold A. Alley, 44 ECAB 912 (1993).

15

See Sedi L. Graham, 57 ECAB 494 (2006); see also 5 U.S.C. § 8101(2), which provides that the term physician
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law.
16

Gaetan F. Valenza, 35 ECAB 763 (1984); Kenneth S. Vansick, 31 ECAB 1132 (1980).

17

Id.

18

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
19

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

20

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

7

While the reopening of a case may be predicated solely on a legal premise not previously
considered, such reopening is not required where the legal contention does not have a reasonable
color of validity.21
ANALYSIS -- ISSUE 2
Appellant’s May 7, 2013 request for reconsideration did not allege or demonstrate that
OWCP erroneously applied or interpreted a specific point of law. He cited to Board case law in
support of the general proposition that a preexisting condition which becomes disabling because
of an aggravation causally related to the employment is compensable. Appellant’s contention
was not sufficient to require OWCP to reopen his case for further merit review. The underlying
basis for the denial of his claim was that causal relationship had not been established due to
deficiency in the medical reports submitted to the record. Causal relationship is a medical issue
and only evidence from a physician addressing the claim can establish causal relationship.22
Appellant did not submit any new medical evidence; rather, he argued that Dr. Crawford’s
medical reports were sufficient to establish his claim. As noted, they were found deficient by
OWCP. Additionally, appellant did not advance a relevant legal argument not previously
considered. The Board finds that he is not entitled to a review of the merits of his claim based on
the first and second requirements under section 10.606(b)(3).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP. Thus, he is not entitled to a review of the merits of his claim based on the
third requirement under section 10.606(b)(3). As appellant did not satisfy any of the regulatory
criteria, OWCP did not abuse its discretion by denying merit review.
CONCLUSION
The Board finds that appellant did not establish that his hypertension was caused or
contributed to by employment factors, as alleged. The Board further finds that OWCP properly
denied his request for reconsideration under 5 U.S.C. § 8128(a).

21

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

22

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

8

ORDER
IT IS HEREBY ORDERED THAT the August 7 and April 25, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 16, 2014
Washington, DC

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

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

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

9


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0002
Issued: September 6, 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 September 29, 2017 appellant, through counsel, filed a timely appeal from a July 31,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider 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 Board notes that, following the July 31, 2017 decision, OWCP received additional evidence. However, the
Board’s jurisdiction is limited to the evidence that was of record at the time OWCP issued its final decision. Thus,
the Board is precluded from reviewing this additional evidence for the first time on appeal. See 20 C.F.R.
§§ 501.2(c)(1); M.B., Docket No. 09-0176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); and Rosemary A. Kayes, 54 ECAB 373 (2003).

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of
disability commencing February 2, 2015, causally related to his accepted September 7, 2013
employment injury.
FACTUAL HISTORY
On September 9, 2013 appellant, then a 59-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a back sprain on September 7, 2013 when his postal
vehicle was rear ended by another vehicle. OWCP accepted the claim for lumbar and neck sprains.
Appellant stopped work on September 7, 2013 and returned to modified work on September 16,
2013 initially working four hours per day, and subsequently six hours per day. OWCP paid
intermittent wage-loss compensation benefits on the supplemental rolls commencing
September 7, 2013.
On February 11, 2015 appellant filed a notice of recurrence (Form CA-2a) claiming total
disability commencing February 2, 2015.
In attending physician’s reports (Form CA-20) dated February 10 and 20, and March 5
and 27, 2015, Dr. Alan Kwon, a physician specializing in pain medicine, diagnosed lumbar disc
disease and lumbar sprain. He placed appellant off work until cleared by his orthopedic surgeon
to return.
In duty status reports (Form CA-17) dated February 10, 20, and 24, and March 6 and 27,
2015, Dr. Vladimir S. Bozic, a Board-certified orthopedic surgeon, diagnosed lumbar strain,
degenerative disc disease, stenosis, and herniated nucleus pulposus. He noted an injury date of
September 7, 2013 and checked a box marked “no” in response to the question of whether
appellant had been advised to return to work.
Dr. Bozic, in reports dated February 10 and 24, 2015, noted that appellant was seen for
complaints related to a worsening of his lumbar condition. Physical examination findings were
provided and diagnoses provided included lumbar sprain/strain, lumbar degenerative disc disease,
spinal stenosis, and displacement of lumbar intervertebral disc without myelopathy. In the
February 10, 2015 report, Dr. Bozic indicated that appellant was off work. In a February 24, 2015
Form CA-20, he indicated that appellant was off work until cleared to return by a physician.
In a February 27, 2015 report, Dr. Kwon noted the injury and medical histories and
provided examination findings. Examination findings included limited spinal range of motion,
difficulty with right straight leg raising, intact sensation, positive right side slump test, and negative
left side slump test. Diagnoses included lumbago, lumbosacral radiculopathy, and lumbar
intervertebral disc displacement without myelopathy. Dr. Kwon opined that appellant’s symptoms
were due to the accepted September 7, 2013 motor vehicle accident. He determined that appellant
was capable of performing sedentary work. Dr. Kwon, in a February 27, 2015 Form CA-20
indicated that appellant could resume his usual work that day.

2

A February 28, 2015 magnetic resonance imaging (MRI) scan noted a history of a motor
vehicle accident. It reported a significant change in the L1-2 disc herniation from the prior study.
Diagnoses included new large L1-2 right side disc herniation.
On March 6, 2015 appellant was seen by Dr. Bozic for a follow-up visit and review of the
recent MRI scan. Diagnoses and physical examination findings remained unchanged from prior
reports. Dr. Bozic indicated that appellant continued to be disabled from work.
Dr. Kwon, in a March 6, 2015 report, reviewed a February 28, 2015 MRI scan and provided
physical examination findings. A review of the MRI scan revealed L1-2 right large disc herniation
producing foraminal stenosis and nerve root impingement, broad-based L3-4 and L4-5 disc
protrusions, and L5-S1 central. Diagnoses were unchanged from prior reports.
A March 24, 2015 report by Dr. Kwon noted that appellant’s back spasms were less severe
following a lumbar epidural injection. Physical examination findings and diagnoses remained
unchanged from prior reports.
In a development letter dated March 31, 2015, OWCP informed of appellant the definition
of a recurrence and advised him of the type of evidence required to establish a recurrence claim.
It afforded him 30 days to provide the necessary evidence.
On April 9, 2015 OWCP received a March 27, 2015 report from Dr. Bozic noting that
appellant was seen for lumbar degenerative disc disease and that he was also being treated by
Dr. Kwon. Diagnoses and examination findings remained unchanged. Dr. Bozic indicated that
appellant was not to work at that time.
An April 6, 2015 nerve conduction velocity/electromyography (NCV/EMG) study
reported a negative study and diagnosed right upper lumbar radiculopathy, acute right L1
radiculopathy.
In an April 10, 2015 report, Dr. Bozic provided examination findings and reviewed the
April 6, 2015 NCV/EMG study. Diagnoses included right L5 radiculopathy, possible L1 acute
radiculopathy, lumbar sprain/strain, lumbar degenerative disc disease, spinal stenosis, and
displacement of lumbar intervertebral disc without myelopathy. In an April 10, 2015 Form CA17, Dr. Bozic indicated that appellant was advised to not return to work.
In an April 14, 2015 report, Dr. Kwon provided examination findings, diagnoses, and work
status, which were unchanged from his prior report.
On April 21, 2015 OWCP received an undated Form CA-20 from Dr. Kwon releasing
appellant to return to work effective April 10, 2015. Diagnoses included lumbar disc
displacement, lumbar degenerative disc disease, and lumbago.
By decision dated May 1, 2015, OWCP found that appellant had not established a
recurrence of disability commencing February 2, 2015, causally related to the accepted
September 7, 2013 work injuries. It determined that the evidence of record was insufficient to
establish that the accepted September 7, 2013 injury aggravated his preexisting lumbar condition
causing spinal stenosis, lumbar disc displacement, and disc degeneration.

3

On May 4, 2015 OWCP received a May 1, 2015 report by Dr. Bozic reiterating findings
and diagnoses from prior reports.
Subsequently, OWCP received Forms CA-20 and CA-17 from Dr. Bozic. On the Form
CA-20 he indicated that appellant was off work until cleared by a physician to return while on the
Form CA-17 he indicated that appellant had been advised not to return to work.
In a letter dated May 8, 2015 appellant, through counsel, requested an oral hearing before
an OWCP hearing representative, which was held on September 10, 2015.
On May 19, 2015 OWCP received Dr. Kwon’s May 5, 2015 report diagnosing lumbago,
chronic pain syndrome, lumbosacral radiculopathy lumbar intervertebral disc displacement
without myelopathy, and thoracic or lumbar intervertebral disc degeneration.
In a May 19, 2015 report, Dr. Bozic reiterated diagnoses and findings from prior reports.
His opinion regarding appellant’s work status remained unchanged.
In a June 1, 2015 report, Dr. Bozic detailed appellant’s medical treatment, examination
findings, and injury history and reviewed diagnostic tests. He noted that appellant returned to parttime light-duty work following the September 7, 2013 motor vehicle accident until he sustained a
recurrence of total disability on January 31, 2015. Dr. Bozic attributed the recurrence of disability
due to a worsening of appellant’s symptoms without a new injury and that appellant was unable to
work on and after February 2, 2015. He explained that appellant’s worsening of symptoms was
explained by the recent MRI scan and NCV/EMG study findings and was due to the accepted
September 7, 2013 work injury. Dr. Bozic noted that periodic flare-ups are common in patients
with lumbar disc herniations and low back injuries.
A June 2, 2015 report from Dr. Kwon was repetitive of prior reports.
In a June 5, 2015 Form CA-17, Dr. Bozic indicated that appellant was disabled from work.
He also completed a Form CA-20 on June 5, 2015 indicating that appellant was out of work until
cleared by a physician to return.
On June 15, 2015 OWCP received a May 11, 2015 report by Dr. David H. Clements, a
Board-certified orthopedic surgeon, diagnosing chronic low back pain due to aggravation of
underlying lumbar degenerative change. Physical examination findings included antalgic gait,
normal back range of motion, and negative straight leg raising. A review of a February 20, 2015
MRI scan showed some mild L3-4 and L4-5 stenosis and an EMG study showed right lumbar
radiculopathy. Dr. Clements noted that appellant had a history of back problems since 2009 and
that he has been off work since February 2015.
On June 16, 2015 OWCP received an April 15, 2015 report by Harry F. McCoy, a
physician assistant, and an April 9, 2015 report by Dr. Clements.
Dr. Clements, in the April 9, 2015 report, noted the September 7, 2013 work injury
history and that appellant had been off work since February 2015 due to his severe pain. He
provided examination findings, reviewed diagnostic tests, and diagnosed chronic back pain with
mild-to-moderate foraminal narrowing and no central stenosis.

4

OWCP continued to received reports and CA-17 and C-20 forms from Dr. Bozic indicating
that appellant was disabled from work.
In reports dated June 16 and August 18, 2015, Dr. Kwon reiterated his diagnoses and
examination findings.
In a September 2, 2015 report, Dr. Bozic detailed the history of the September 7, 2013
work-related motor vehicle accident and discussed findings from diagnostic tests he reviewed. He
reported that appellant developed an L1-2 disc herniation based on review of a recent MRI scan
without any specific new injury. Dr. Bozic attributed the worsening of appellant’s symptoms and
the L1-2 disc herniation to the September 7, 2013 motor vehicle accident. He opined that appellant
became totally disabled from work due to his accepted September 7, 2013 work-related motor
vehicle accident on February 2, 2015.
Dr. Kwon, in an October 6, 2015 report, diagnosed lumbosacral radiculopathy, spondylosis
without myelopathy, and lumbar or thoracic degenerative intervertebral disc disease. Physical
examination findings were unchanged. Dr. Kwon determined that appellant could perform
sedentary or light-duty work.
In a November 17, 2015 Form CA-20, Dr. Bozic diagnosed radiculopathy, lumbar
herniated nucleus pulposus, stenosis, and disc disease. He noted an injury date of September 7,
2013 and indicated that appellant was out of work. OWCP also received a November 17, 2015
report from Dr. Bozic containing diagnoses and findings similar to prior reports and a
November 17, 2015 Form CA-17 noting that appellant had not been released to return to work and
diagnoses of radiculopathy, lumbar herniated nucleus pulposus, and stenosis.
By decision dated December 7, 2015, an OWCP hearing representative affirmed the
May 1, 2015 decision denying appellant’s recurrence claim.
Appellant continued to submit reports and CA-17 and CA-20 forms from Dr. Bozic
reiterating that appellant was disabled from work due to the accepted September 7, 2013 work
injury.
Dr. Kwon, in a December 29, 2015 report, reiterated examination findings, diagnoses, and
medical history.
On January 25, 2016 appellant, through counsel, requested reconsideration and submitted
evidence in support thereof.
In a January 1, 2016 report, Dr. Kwon detailed the September 7, 2013 injury history and
reviewed medical records. He opined that the September 7, 2013 work injury aggravated
appellant’s degenerative disc disease resulting in the development of the L1-2 disc herniation
found in a January 2015 MRI scan. Dr. Kwon further opined that appellant had not recovered
from the accepted September 7, 2013 work injury, remained symptomatic, and continued to
required medical treatment for his injury.

5

Appellant retired
February 27, 2016.4

from the

employing

establishment

on

disability,

effective

Dr. Kwon, in reports dated March 22 and April 21, 2016, diagnosed lumbar spinal stenosis,
thoracic or lumbar intervertebral disc displacement, lumbar intervertebral disc displacement
without myelopathy, and lumbosacral radiculopathy. Appellant related that he continued to have
right hip and lower back pain. Examination findings were unchanged. Dr. Kwon opined that
appellant continued to have symptoms from the accepted September 7, 2013 work injury. He
noted that appellant was capable of performing sedentary work.
By decision dated May 16, 2016, OWCP denied modification of its December 7, 2015
decision, finding that the evidence submitted was insufficient to establish that appellant’s claimed
recurrence was due to the accepted September 7, 2013 injury.
Subsequent to the May 16, 2016 decision, OWCP received reports dated May 10, July 12,
August 19, September 16, October 21, and December 2, 2016 from Dr. Bozic and reports dated
May 17 and July 19, 2016 from Dr. Kwon, which were repetitive of their prior reports.
In a letter dated August 18, 2016, appellant through counsel, requested reconsideration. In
support thereof, counsel submitted a July 22, 2016 report from Dr. Bozic in which he opined that
the September 7, 2013 work injury caused appellant’s lumbar disc herniations and resulting total
disability beginning on February 2, 2015.
On October 13, 2016 OWCP referred appellant for a second opinion evaluation with
Dr. Stanley Askin, a Board-certified orthopedic surgeon, to determine the extent of appellant’s
September 7, 2013 employment injury and his work capacity.
In an October 4, 2016 report, Dr. Askin, based upon a review of the statement of accepted
facts, history of injury, medical reports, and physical examination, opined that the accepted
lumbar and neck sprains had resolved without disability or residuals. He also opined that
appellant’s claim should not be expanded to include the conditions of lumbosacral radiculopathy,
thoracic or lumbar intervertebral disc degeneration, lumbar radiculopathy, or lumbar
stenosis/spondylosis. In support of this opinion, Dr. Askin noted that these were age appropriate
conditions found in many individuals and were not due to the accepted conditions. He also
concluded that appellant had no residuals from any new or accepted conditions. Moreover,
Dr. Askin opined that there was no evidence that the accepted September 7, 2013 motor vehicle
accident aggravated an underlying degenerative condition based on the lack of documentation and
clinical manifestations following the accident. He attributed appellant’s neck and back pain to
appellant’s arthritic joints and concluded that appellant did not sustain a recurrence of disability as
of February 11, 2015 due to the accepted work injury.
By decision dated December 21, 2016, OWCP denied modification of its prior decision,
finding that the evidence of record was insufficient to establish that appellant’s recurrence of
disability was causally related to the accepted September 7, 2013 injury.

4
On June 8, 2016 appellant elected to receive benefits from the Office of Personnel Management instead of
compensation benefits under FECA.

6

OWCP continued to receive physical therapy records and progress reports from Dr. Bozic
and Dr. Kwon. In the progress reports dated from December 2, 2016 to July 14, 2017, Dr. Bozic
continued to diagnose lumbar radiculopathy spinal stenosis, and displacement of lumbar
intervertebral disc without myelopathy. OWCP also received progress reports from Dr. Kwon
dated February 6 through June 22, 2017 in which he diagnosed intervertebral disc disorder, lumbar
stenosis, and spondylosis.
On May 8, 2017 appellant, through counsel, requested reconsideration. In support thereof,
counsel submitted a March 14, 2017 report from Dr. Bozic. In that report Dr. Bozic reviewed
appellant’s history of injury and summarized his treatment history. He explained that at the time
of the employment injury appellant did have degenerative disc disease and lumbar stenosis,
however, appellant was able to perform full-duty work until the employment injury on
September 7, 2013. Dr. Bozic further explained that appellant did not sustain any new specific
injury, but his condition deteriorated resulting in the recurrence of disability.
By decision dated July 31, 2017, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are altered
so that they exceed his or her established physical limitations.5
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish, by the weight of the reliable, probative, and substantial evidence, a recurrence
of total disability and an inability to perform such limited-duty work. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the limited-duty job requirements.6 To establish a change in the nature
and extent of the injury-related condition, there must be a probative medical opinion, based on a
complete and accurate factual and medical history as well as supported by sound medical
reasoning, that the disabling condition is causally related to employment factors.7 In the absence
of rationale, the medical evidence is of diminished probative value. While the opinion of a
physician supporting causal relationship need not be one of absolute medical certainty, it must not

5

J.F., 58 ECAB 124 (2006). A recurrence of disability is not established when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See
also Richard A. Neidert, 57 ECAB 474 (2006).
6

A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

7

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

7

be speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing February 2, 2016 causally related to the accepted September 7, 2013
employment injury.
OWCP accepted that appellant sustained lumbar and neck sprains due to the accepted
September 7, 2013 motor vehicle accident. Appellant filed a notice of recurrence of disability
commencing February 2, 2015 as a result of his accepted September 7, 2013 work injury.
In support of his recurrence claim, appellant submitted numerous reports from his attending
physician, Dr. Bozic. Dr. Bozic related that appellant was disabled from work, he also continued
to diagnose lumbar sprain. He, however, offered no medical explanation as to how the accepted
lumbar and neck sprains worsened to cause total disability as of February 2, 2016.9 To have
probative value, a medical opinion must reflect a correct history and offer a medically sound
explanation by the physician of how the specific employment incident physiologically caused or
aggravated the diagnosed conditions.10 Dr. Bozic also diagnosed lumbosacral radiculopathy,
multiple lumbar disc herniations, spondylosis without myelopathy, and lumbar or thoracic
degenerative intervertebral disc disease. While additional conditions have been diagnosed, his
multiple reports failed to provide medical rationale explaining how the diagnosed conditions were
causally related to the originally accepted September 7, 2013 employment injury. An employee
who claims a recurrence of disability resulting from an accepted employment injury has the burden
of proof to establish that the disability is related to the accepted injury. This burden requires
furnishing medical evidence from a physician who, on the basis of a complete and accurate factual
and medical history, concludes that the disabling condition is causally related to the employment
injury and supports that conclusion with sound medical reasoning.11 Dr. Bozic did not provide
adequate bridging evidence to show a spontaneous worsening of the accepted conditions. Rather,
he correlated in general terms that appellant’s nonaccepted current conditions were caused by the
work-related injury.12 Moreover, Dr. Bozic acknowledged that appellant’s degenerative disc
disease and lumbar stenosis were preexisting and noted that appellant was able to work full duty
prior to the September 7, 2013 employment injury. A well-rationalized opinion is particularly
warranted when there is a history of a preexisting condition.13 The Board has held that an opinion

8

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

9

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

10

Supra note 7.

11

M.S., Docket No. 16-1907 (issued August 29, 2017).

12

J.H., Docket No. 14-0775 (issued July 14, 2014).

13

See O.S., Docket No. 16-1771 (issued January 23, 2018).

8

that a condition is causally related because the employee was asymptomatic before the injury is
insufficient, without adequate rationale, to establish causal relationship.14
The only accepted conditions are lumbar and neck sprains. It is the employee’s burden of
proof to provide rationalized medical evidence sufficient to establish causal relationship for
conditions not accepted by OWCP as being employment related, not OWCP’s burden to disprove
such relationship.15 None of the reports or form reports from Dr. Bozic provided medical rationale
addressing appellant’s accepted conditions, and explaining the causal relationship between his
disability for work and the accepted September 7, 2013 conditions.16 The Board therefore finds
Dr. Bozic’s reports insufficient to establish appellant’s claim.
Appellant also submitted reports from Dr. Kwon diagnosing lumbago, chronic pain
syndrome, lumbar spinal stenosis, thoracic or lumbar intervertebral disc displacement without
myelopathy, and lumbosacral radiculopathy. These diagnoses, like the diagnoses offered by
Dr. Bozic are not work-related conditions. Dr. Kwon provided no medical rationale explaining
how these conditions were causally related to the accepted condition or the accepted employment
incident.17 His reports are deficient for the same reasons Dr. Bozic’s reports were deficient. While
Dr. Kwon offered diagnoses and indicated that appellant was disabled from work, he only provided
a conclusory opinion. A mere conclusion without the necessary rationale explaining how and why
specific duties resulted in a diagnosed condition is insufficient to meet a claimant’s burden of
proof.18 Furthermore, Dr. Kwon did not explain how appellant’s accepted conditions worsened to
cause total disability.19 Thus, the Board finds that Dr. Kwon’s reports are also insufficient to
establish appellant’s claim.
Appellant also submitted reports form Dr. Clements in support of his claim. However,
these reports are of limited probative medical value as they do not specifically address whether
appellant’s disability beginning February 2, 2015 was attributable to his accepted September 7,
2013 work injury.20

14

See S.H., Docket No. 17-1660 (issued March 27, 2018).

15

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).
16

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value). See also Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB
332 (2001).
17

Supra notes 6 and 11.

18

Y.R., Docket No. 17-1521 (issued December 28, 2017).

19

Supra note 6.

20
See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); 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 limited probative value
on the issue of causal relationship).

9

The record contains a report from Mr. McCoy, a physician assistant. Physician assistants,
however, are not considered physicians as defined by section 8101(2) of FECA.21 Consequently,
this report has no probative value and is insufficient to establish appellant’s claim.
The diagnostic medical reports of record are of limited probative medical value as they do
not specifically address whether appellant’s disability beginning February 2, 2015 was attributable
to his accepted September 7, 2013 work injury.22
OWCP referred appellant to Dr. Askin for a second opinion examination. On October 4,
2016 Dr. Askin found that appellant’s injuries from the accepted September 7, 2013 work injury
had resolved, that the September 7, 2013 work injury did not aggravate an underlying degenerative
condition, and that appellant’s current symptoms were due to his arthritic joints and age. He
determined that appellant had no further disability due to his accepted September 7, 2013 work
injury. Dr. Askin noted appellant’s history of injury and results from his physical examinations.
He related that the diagnostic studies did not show significant findings related to the accepted
injury. Therefore, Dr. Askin concluded that appellant had no disability from work due to the
accepted injury. As his opinions were based on a proper factual and medical history, and were
supported by medical rationale, it constitutes the weight of the medical evidence.23
On appeal counsel argues that the medical evidence submitted by appellant establishes that
his total disability beginning February 2, 2015 was causally related to his accepted September 7,
2013 employment injury. As discussed above, the Board found the medical reports from Dr. Kwon
and Dr. Bozic insufficient to establish that appellant’s recurrence of total disability was casually
related to his accepted lumbar and neck sprains as the weight was properly afforded to Dr. Askin.
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 his burden of proof to establish a recurrence of
disability commencing February 2, 2015 causally related to his accepted September 7, 2013 work
injury.

21

See 5 U.S.C. § 8101(2); Allen C. Hundley, 53 ECAB 551 (2002).

22

See A.C., Docket No. 17-1448 (issued December 19, 2017). Medical evidence of diagnostic testing is of limited
probative value as it fails to provide a physician’s opinion on causal relationship between appellant’s work incident
and the diagnosed conditions.
23

See L.G., Docket No. 17-1448 (issued December 19, 2017).

10

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated July 31, 2017 is affirmed.
Issued: September 6, 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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Y., Appellant
and
CUSTOMS & BORDER PROTECTION,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2336
Issued: January 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 25, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated July 29, 2008. Under 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 12 percent impairment to the right upper
extremity and a 12 percent permanent impairment to the left upper extremity.
FACTUAL HISTORY
On July 6, 2005 appellant, a 47-year-old technician, filed a claim for a bilateral carpal
tunnel condition causally related to employment factors. The Office accepted the claim for
bilateral carpal tunnel syndrome.
In a report dated February 14, 2006, Dr. Sayed Naveed, a general practitioner, stated that
appellant had pain, numbness and tingling in both hands, with weakness in the hand, neck pain
and tenderness around the elbow. He noted that these symptoms were worsening.

On May 6, 2008 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her left and right upper extremities.
In a June 2, 2008 report, Dr. Mohammed Asgar, a specialist in internal medicine, found
that appellant had a 30 percent permanent impairment of the upper extremity due to loss of
function from decreased strength, a 30 percent impairment the upper extremity due to loss of
function resulting from sensory deficit, pain or discomfort, and a 30 percent impairment in the
thumb, second and third fingers. He found that appellant reached maximum medical
improvement in October 2007.
In a report dated June 20, 2008, an Office medical adviser found that appellant had a 12
percent right upper extremity impairment and a 12 percent left upper extremity impairment
pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A. Guides) (5th ed.). He noted that he reviewed reports from Dr. Asgar and
other physicians of record. However, the Office medical adviser did not indicate which reports
he reviewed in rendering his impairment rating; nor did he specify the dates these reports were
issued.1 He further advised that “[n]o recent physician notes are currently available.” The
Office medical adviser stated:
“Per [physical therapy] note dated October 18, 2007, [appellant] currently
complains of wrist pain bilaterally and pain in both thumbs, [two] fingers, and a
middle finger. Decreased bilateral wrist range of motion and decreased grip
strength is noted.”
“It should be noted that in the absence of chronic regional pain syndrome,
impairment cannot be awarded for range of motion loss in conjunction with
compression neuropathies. It should also be noted that in compression
neuropathies, additional impairment values are not given for decreased grip
strength. No other detailed strength measurements are documented and no
atrophy is present.”
The Office medical adviser accorded appellant a 12 percent permanent impairment for
the right and left upper extremities based on the following findings: a Grade 4, 30 percent
pain/sensory deficit in the right median nerve distribution, pursuant to Table 16-10 at page 482
and Table 16-15, page 492, which yielded a 30 percent impairment; a 39 permanent impairment,
the maximum impairment allowed, multiplied by 30 percent, for a Grade 4 pain/sensory deficit.
He found that appellant reached maximum medical improvement on October 18, 2007.
On July 29, 2008 the Office granted appellant a schedule award for a 12 percent
impairment of his right upper extremity and a 12 percent impairment of her left extremity,
covering the period March 25 to October 18, 2008, for a total of 74.88 weeks of compensation.

1

The Office medical adviser did not cite a specific physician or indicate the specific source for the findings upon
which he relied.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 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 loss of use.3 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule
losses.4
ANALYSIS
The Board finds that the case is not in posture for decision.
The Office medical adviser found in his June 20, 2008 report that appellant had a 12
percent impairment of her right upper extremity and a 12 percent impairment of her left
extremity. However, he did not specify the methods by which he calculated a 12 percent
bilateral upper extremity rating. The Office medical adviser did not examine appellant and
derived his 12 percent impairment ratings without indicating the source of the measurements
upon which he relied. He stated that he calculated 12 percent impairment based on a 30 percent
strength deficit, which is ratable for a Grade 3 sensory deficit at Table 16-10. The Board notes
that, while a Grade 3 sensory deficit at Table 16-10 yields a sensory deficit of 26 to 60 percent,
the Office medical adviser determined that appellant had a Grade 4 sensory deficit, which yields
a sensory deficit of 1 to 25. The Office medical adviser also did not provide any explanation of
how he used this calculation, in conjunction with Table 16-15, to render a 12 percent impairment
rating.
The Office medical adviser further stated that there were no current medical reports in the
record. The instant case file, however, contains a June 2, 2008 report from Dr. Asgar,
appellant’s treating physician, which the Office medical adviser apparently did not consider in
his June 20, 2008 impairment evaluation. Finally, the Office medical adviser did not indicate
which sections of Table 16-15 he relied on in calculating a 12 percent impairment rating in the
right and left upper extremities in the distribution of the median nerve to the thumb and index
finger, right side.5 The Board therefore finds that the Office erred in finding that appellant had a
12 percent impairment of the right and left upper extremities based on the opinion of the Office
medical adviser.

2

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

3

5 U.S.C. § 8107(c)(19).

4

20 C.F.R. § 10.404.

5

Table 16-15 provides a method for determining upper extremity impairments due to unilateral sensory or motor
deficits or to combined 100 percent deficits of the major peripheral nerves. A.M.A., Guides 492.

3

CONCLUSION
The Board finds that the case is not in posture for decision with regard to an impairment
based on the left and right upper extremities and the case is remanded for further development.
After such development as it deems necessary, the Office shall issue a de novo decision.
ORDER
IT IS HEREBY ORDERED THAT the July 29, 2008 decision is set aside and the case
is remanded to the Office of Workers’ Compensation Programs for further action consistent with
this decision of the Board.
Issued: January 23, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4