United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dodge City, KS, Employer
__________________________________________

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

Docket No. 15-1646
Issued: September 1, 2016

Case Submitted on the Record

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

JURISDICTION
On July 29, 2015 appellant filed a timely appeal of a May 4, 2015 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)(1) and 501.3, the Board has jurisdiction
to consider the merits of the case.
ISSUE
The issue is whether OWCP properly denied authorization for appellant’s cervical spine
surgery.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The relevant facts are as follows. On
October 10, 2006 appellant, then a 56-year-old letter carrier, filed an occupational disease claim
(Form CA-2) alleging that he developed neck and right shoulder conditions due to carrying his
mailbag in the performance of duty. OWCP accepted his claim on December 11, 2006 for sprain
of the right shoulder and rotator cuff as well as cervical spondylosis with myelopathy.
By decision dated June 17, 2011, OWCP denied appellant’s request for cervical spine
surgery and recurrence of disability. It found that he had not submitted sufficient medical
opinion evidence to establish that his current condition and requested surgery were causally
related to his accepted employment injuries.
Appellant’s attending physician, Dr. Nazih Moufarrij, a Board-certified neurosurgeon,
performed an anterior cervical discectomy and fusion at C4-5, C5-6, and C6-7 on April 22, 2011.
Appellant requested a review of the written record by an OWCP hearing representative
on June 30, 2011. Dr. Moufarrij submitted a note dated September 20, 2011 opining, “In my
expert opinion, I believe that carrying mail for 28 years has contributed to aggravating a
preexisting degenerative disc disease of the cervical spine. This led to severe symptoms, as well
as MRI [magnetic resonance imaging] scan findings, that necessitated a three-level anterior
cervical discectomy and fusion.”
In a decision dated December 15, 2011, OWCP’s hearing representative found that
appellant had not met his burden of proof to establish that his 2011 cervical condition or that
surgery was causally related to his employment. He found that there was no rationalized medical
opinion evidence supporting appellant’s claim.
Counsel requested reconsideration on June 21, 2012 and submitted a report from
Dr. Alexander Neel, a Board-certified orthopedic surgeon, dated May 9, 2012. Dr. Neel noted
that appellant’s work requirement of carrying a mailbag and opined that wearing a loaded
unilateral mail carrying bag caused the mail carrier to lift to one side with a compensatory
deviation of the neck away from the side on which the bag is worn. He concluded, “I believe
that this constant strain of the muscles and carrying the neck in a laterally tilted fashion could
certainly lead to accelerated cervical arthritis and arthrosis which in turn can certainly lead to
foraminal encroachment and central stenosis.” Dr. Neel also noted that appellant had no
recreational activities which would contribute to these conditions or major neck injuries.
By decision dated November 1, 2012, OWCP reviewed the merits of appellant’s claim
and denied modification of its prior decision. The matter then proceeded to the Board. In a
June 18, 2013 decision,3 the Board set aside OWCP’s November 1, 2012 decision finding that
the case was not in posture for a decision as appellant’s attending physicians supported that the
surgery was causally related to his accepted employment injury. The Board directed OWCP to
refer appellant for a second opinion examination.

3

Docket No. 13-317 (issued June 18, 2013).

2

On August 7, 2013 OWCP referred appellant for a second opinion evaluation with
Dr. Paul Stein, a Board-certified neurosurgeon. In a report dated September 12, 2013, Dr. Stein
listed appellant’s medical history, his current symptomology, and provided findings on
examination. He reviewed the statement of accepted facts and responded to OWCP’s questions.
Dr. Stein determined that there were no objective medical findings to show that appellant’s
cervical condition and the need for surgery was caused by his federal employment. He noted,
“These are degenerative changes which are often progressive over time absent trauma or external
conditions. The work activity may have increased his level of discomfort, but the primary factor
was a progressive degenerative condition.” Dr. Stein concluded that appellant’s cervical
condition was a natural progression of an underlying preexisting condition and was not
specifically caused by his job duties. He further opined that the cervical spine surgery was
appropriate and reasonable in regard to appellant’s cervical degenerative disc disease which was
not caused or aggravated by his employment.
By decision dated November 19, 2013, OWCP denied authorization for appellant’s
cervical disc surgery performed on April 22, 2011. Counsel requested an oral hearing from
OWCP’s Branch of Hearings and Review on November 26, 2013.
In a May 5, 2014 decision, a hearing representative set aside the November 19, 2013
decision and remanded the case for resolution for a conflict of medical opinion evidence between
Drs. Stein, Neel, and Moufarrij regarding whether appellant’s cervical surgery was necessary to
treat an employment-related condition.
Dr. Moufarrij completed a note on September 11, 2014 and opined: “I think that given
that you have done this job for 30 years consisting of repetitive bending, lifting, stooping, and
twisting with weights varying between 35 pounds for the mail and up to 70 pounds when dealing
with parcels, it is likely that this has contributed to your neck problem.”
On January 29, 2015 OWCP referred appellant, a statement of accepted facts (SOAF) and
a list of questions to Dr. Hisham Majzoub, a Board-certified neurosurgeon, for an impartial
medical examination to resolve the conflict of medical opinion evidence between Drs. Stein and
Moufarrij on the causal relationship of appellant’s cervical condition and the need for surgery. It
asked that Dr. Majzoub review the SOAF, which included appellant’s assertion that his neck and
right shoulder were strained by the weight of his mailbag, as well as his accepted conditions of
right rotator cuff strain and cervical spondylosis with myelopathy. OWCP also asked that
Dr. Majzoub respond to specific questions. These questions included: (1) whether there were
objective medical findings to show that appellant’s cervical condition and need for surgery were
caused by his work activities; (2) whether appellant’s cervical condition was a natural
progression of his underlying preexisting condition or was caused by his job duties; (3) whether
the surgery was appropriate as a result of the accepted conditions and needed to give relief, or
reduce the degree and period of disability; (4) whether the effects of the work injury had ceased;
(5) whether the effects of the work injury prevented appellant from performing any work
activities; (6) whether he recommended current treatment and if so, what; and (7) whether
appellant had any work restrictions due to his March 1, 2004 employment injury, and if so, what
those restrictions were.

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In a report dated April 13, 2015, Dr. Majzoub described appellant’s employment history
of carrying a mailbag on his right side from 1983 through 2003 and his development of neck
pain in 2004. He reviewed appellant’s medical history and provided findings on physical
examination noting that appellant’s motor and sensory examinations revealed no deficit.
Dr. Majzoub diagnosed degenerative cervical spine disease which required surgery. He
concluded that appellant’s cervical surgery was successful and that appellant had no current
deficits. Dr. Majzoub opined that appellant’s cervical spine disease was independent of his work
as a mail carrier. He opined that carrying mail did not affect the cervical spine and that
appellant’s cervical spine disease was related to degenerative disc disease not to his federal
employment duties including carrying a mailbag.
By decision dated May 4, 2015, OWCP denied appellant’s request for approval of
cervical disc surgery. It found that Dr. Majzoub’s report was entitled to the special weight of the
medical evidence and established that appellant’s cervical condition was not caused or
aggravated by his employment duties.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.4 While OWCP is obligated to pay for treatment of employment-related
conditions, the employee has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition.5
In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under section 8103, with the only limitation on
OWCP’s authority being that of reasonableness.6 Abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken
which are contrary to both logic and probable deductions from established facts. It is not enough
to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.7 To be entitled to reimbursement of medical expenses, a claimant has the burden of
establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.8 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the surgery is for a condition causally related to an

4

5 U.S.C. § 8103; J.H., Docket No. 12-1950 (issued February 13, 2013).

5

Kenneth O. Collins, Jr., 55 ECAB 648 (2004).

6

See D.K., 59 ECAB 141 (2007).

7

Minnie B. Lewis, 53 ECAB 606 (2002).

8

M.B., 58 ECAB 588 (2007).

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employment injury and that it is medically warranted. Both of these criteria must be met in order
for OWCP to authorize payment.9
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which 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 and resolve the conflict of medical evidence.10 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.11
In situations where there are 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 on a proper
factual background, must be given special weight.12
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for approval of
cervical spine surgery.
OWCP accepted appellant’s claim for sprain of the right shoulder and rotator cuff as well
as cervical spondylosis with myelopathy due to his employment duty of carrying a mailbag.
Dr. Moufarrij performed an anterior cervical discectomy and fusion at C4-5, C5-6, and C6-7 on
April 22, 2011. He and Dr. Neel opined that this surgery was necessary due to appellant’s
employment-related cervical condition. OWCP found that the evidence of record did not
establish that the surgery was necessary due to appellant’s employment-related conditions.
Appellant appealed. The Board remanded the case for OWCP to make a referral to a second
opinion physician. Dr. Stein, as the second opinion physician, determined that appellant’s
cervical surgery was not causally related to his federal employment. OWCP properly found that
there was a conflict of medical opinion evidence between appellant’s attending physicians, Drs.
Neel and Moufarrij, and the second opinion physician, Dr. Stein, regarding whether appellant’s
degenerative cervical spine condition and resultant surgery was causally related to his
employment.
To resolve the conflict of medical evidence, OWCP referred appellant to Dr. Majzoub
along with a statement of accepted facts and a list of questions. The Board finds that
Dr. Majzoub’s opinion conflicts with the SOAF. The SOAF made clear that OWCP had
accepted appellant’s claim for right rotator cuff strain and cervical spondylosis with myelopathy.
Dr. Majzoub did not mention these accepted conditions in his report. As a medical professional,
9

R.C., 58 ECAB 238 (2006).

10

5 U.S.C. §§ 8101-8193, 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).

11

R.C., supra note 8.

12

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

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Dr. Majzoub is entitled to reject causal relationship between appellant’s employment and his
accepted condition, but if he does so without convincing medical rationale, his opinion has little
probative or evidentiary value.13 The Board has found that when the referral physician does not
use the SOAF as the framework in forming his or her opinion, the probative value of the opinion
is seriously diminished or negated altogether.14
Dr. Majzoub repeatedly opined that appellant’s employment duties of carrying mailbags
did not and would not impact his cervical spine. He found that appellant had degenerative disc
disease and that this condition was the cause of his cervical spine condition which required
surgery. Dr. Majzoub opined that appellant’s cervical spine disease was independent of his work
as a mail carrier. He stated that carrying mail did not affect the cervical spine and that
appellant’s cervical spine disease was related to degenerative disc disease not to his federal
employment. The Board has held that medical conclusions unsupported by rationale are of little
probative value.15 In this case, the certainty with which Dr. Majzoub expressed his opinion
cannot overcome the lack of medical rationale explaining the basis of that opinion. The Board
finds that Dr. Majzoub did not explain why he believed that appellant’s underlying conditions as
well as his anterior cervical discectomy and fusion were due to degenerative disc disease rather
than the accepted condition of cervical spondylosis with myelopathy.16 The Board further notes
that Dr. Majzoub did not respond to the specific questions posed by OWCP.
The Board finds that OWCP abused its discretion when it denied authorization of
appellant’s cervical spine surgery based on Dr. Majzoub’s report.17 This report cannot resolve
the existing conflict of medical opinion evidence as it is not well rationalized and based on a
proper factual background, and cannot be accorded special weight.
On remand OWCP should request a supplemental report from Dr. Majzoub addressing
the defects in his April 13, 2015 report by noting the accepted conditions and providing clear
medical reasoning for his opinions regarding these conditions and any relationship to appellant’s
need for cervical spine surgery. After this and such other development as OWCP deems
necessary, OWCP should issue a de novo decision regarding appellant’s claim for authorization
of cervical spine surgery.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
abused its discretion by denying appellant’s request for authorization of cervical spine surgery.

13

See P.B., Docket No. 08-1024 (issued January 7, 2009); Willa M. Frazier, 55 ECAB 379 (2004).

14

Id.

15

Supra note 11.

16

Id.

17

C.M., Docket No. 14-1302 (issued May 5, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the May 4, 2015 decision of the Office of Workers’
Compensation Programs is set aside and remanded for further development consistent with
decision of the Board.
Issued: September 1, 2016
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elmer, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-1003
Issued: September 21, 2017

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On April 7, 2017 appellant, through counsel, filed a timely application for review from a
November 29, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her traumatic injury claim. The Board docketed the appeal as No. 17-1003.
On August 11, 2015 appellant, then a 54-year-old rural carrier, filed a notice of
recurrence (Form CA-2a) claiming that she sustained a recurrence of disability on August 10,
2015 due to a previous October 1, 2014 work injury. She explained that since she returned to
full-duty work on August 3, 2015 following her prior injury, she had increased hand pain while
performing her duties. Appellant submitted medical evidence attributing her claimed condition
and resultant disability to her previous work injury. On August 20, 2015 OWCP determined that
the recurrence claim should be adjudicated as a new traumatic injury claim (Form CA-1) and
assigned File No. xxxxxx217. The claim for the previously accepted work injury, to which
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.

OWCP assigned File No. xxxxxx656, is not presently before the Board.2 In a November 10,
2015 decision, OWCP denied appellant’s claim as the medical evidence did not establish causal
relationship between a diagnosed condition and the accepted employment incident. In an
April 21, 2016 decision, an OWCP hearing representative affirmed the November 10, 2015
decision. He found that the medical evidence of record was insufficient to establish either that
appellant sustained a medical condition causally related to the August 10, 2015 work incident or
a recurrence of disability on August 10, 2015 due to a worsening of her previous work injury.
OWCP denied modification of this decision on November 29, 2016. The basis for the denial
remained the same.
The Board has duly considered the matter and finds that this case is not in posture for
decision. OWCP procedures provide that cases should be combined when correct adjudication
of the issues depends on frequent cross-referencing between files. For example, if a new injury
case is reported for an employee who previously filed an injury claim for a similar condition or
the same part of the body, doubling is required.3 In the instant case, appellant had a previously
accepted claim for a bilateral wrist condition, assigned File No. xxxxxx656. She then filed a
recurrence claim for the same body part, which OWCP converted to a traumatic injury claim and
assigned File No. xxxxxx217. OWCP denied the claim on November 10, 2015 as the medical
evidence of record was insufficient to establish causal relationship. In subsequent decisions
dated April 21 and November 29, 2016, it denied the claim on the same basis. OWCP also found
that the medical evidence was insufficient to establish a recurrence of disability on August 10,
2015 with respect to the prior claim, File No. xxxxxx656. The evidence pertaining to File No.
xxxxxx656, however, is not in the case record presently before the Board.
For a full and fair adjudication, the case must be returned to OWCP to combine the
current case record with File No. xxxxxx656 and determine whether appellant sustained either a
recurrence of disability due to her previously accepted employment injury or a new work injury.4
Following this and such further development as OWCP deems necessary, it shall issue a de novo
decision.

2

OWCP indicated that it accepted the claim in File No. xxxxxx656 for bilateral carpal tunnel syndrome.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).
4

See L.Z., Docket No. 11-1415 (issued December 12, 2011).

2

IT IS HEREBY ORDERED THAT the November 29, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: September 21, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sutter Creek, CA, Employer
__________________________________________

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

Docket No. 15-0598
Issued: June 22, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 23, 2015 appellant filed a timely appeal from a January 13, 2015 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 OWCP properly reduced appellant’s compensation benefits effective
January 13, 2015 based on her capacity to earn wages in the constructed position of surveillance
system monitor.
FACTUAL HISTORY
On December 13, 1996 appellant, then a 49-year-old rural mail carrier, filed an
occupational disease claim alleging that the repetitive motion of her job caused or aggravated her
1

5 U.S.C. § 8101 et seq.

bilateral carpal tunnel syndrome. OWCP accepted the claim for bilateral carpal tunnel
syndrome, right elbow contusion,2 and right lesion of ulnar nerve. It authorized compensation
benefits as well as surgical releases on January 6, March 2, and June 2, 1997 and
November 15, 2012. By decision dated December 2, 2000, OWCP awarded appellant a schedule
award for 19 percent permanent impairment of the right arm, and 10 percent permanent
impairment of the left arm. The period of the award ran 90.48 weeks from August 21, 2000 to
May 16, 2002. Appellant was subsequently retained on OWCP’s periodic compensation rolls.
On February 15 and May 16, 2013 Dr. Peter N. Sfakianos, a Board-certified orthopedic
surgeon, stated that appellant had right cubital tunnel syndrome. He opined that she could return
to modified work with restrictions of no repetitive motion of the right elbow.
On June 6, 2013 appellant was referred to vocational rehabilitation services for
reemployment plan development. The employing establishment offered appellant a limited-duty
assignment on June 19, 2013, which appellant refused on June 20, 2013.
In a July 15, 2013 CA-17 duty status report, Dr. Sfakianos stated that appellant was able
to do modified work, but needed to avoid repetitive motion of the right elbow. He opined that
appellant could resume work as of July 15, 2013 with the following restrictions: work 8.5 hours
per day with sitting intermittently 5 hours; walking intermittently 4 hours; standing intermittently
4 hours; climbing intermittently 4 hours; kneeling intermittently 4 hours; bending/stooping
intermittently 4 hours; twisting intermittently 4 hours; pushing/pulling 25 pounds 1 hour
intermittently; simple grasping 4 hours intermittently; fine manipulation 4 hours intermittently;
reaching above shoulder 4 hours intermittently; driving vehicle 4 hours intermittently; and
operating machinery 4 hours intermittently.
Following vocational rehabilitation testing, a vocational assessment, and interview,
Michael Frank, the vocational rehabilitation counselor, identified the position of surveillance
system monitor and call-out operator3 as being available within appellant’s physical limitations,
vocational skills, and geographical area. The surveillance system monitor position, as it
appeared in DOT No. 379.367-010, was described as follows: “monitors premises of public
transportation terminals to detect crimes or disturbances using closed circuit television monitors,
and notifies authorities by telephone of need for corrective action. Observes television screens
that transmit in sequence views of transportation facility sites. Pushes hold button to maintain
surveillance of location where incident is developing, and telephones police or other designated
agency to notify authorities of location of disruptive activity. Adjusts monitor controls when
required to improve reception, and notifies repair service of equipment malfunctions.” The
position was classified as a sedentary position which entailed exertion of up to 10 pounds of
force occasionally and /or a negligible amount of force frequently to lift, carry, push, pull, or
otherwise move objects, including the human body. Sedentary work involved sitting most of the
time, but may require walking or standing for brief periods of time. The vocational rehabilitation
2

Case number xxxxxx625 with date of injury of February 20, 1996 which was accepted for right elbow contusion
was combined into the current case. Under case number xxxxxx366, OWCP accepted that on January 2, 1998
appellant sustained temporary aggravation of bilateral basal joint arthrosis.
3

The call-out operator has Department of Labor, Dictionary of Occupational Titles (DOT) 237.367-014.

2

counselor noted that appellant was a high school graduate and attended Colorado State
University for two years taking general education courses. Appellant worked as a rural mail
carrier at the Lone Post Office from 1988 to 2012 and worked for three months as a census clerk
SVP-4 in 2010. To meet the specific vocational preparation (SVP) requirements, the vocational
rehabilitation counselor noted that appellant would attend one day of level I guard card training
at the Security Academy at McClelland.
On August 19, 2013 appellant completed her level I security guard training at the
Security Academy at McClelland and completed level II guard card training on September 3
and 5, 2013.
Appellant underwent 90 days of placement services from August 20 to November 17,
2013, which were unsuccessful. It was noted during the September 25, 2013 conference that
appellant on her own had sought training for becoming a bus driver. Appellant was made aware
that work restrictions had been placed on her upper extremities and that a bus driver position was
not an authorized vocational rehabilitation position.
In July 15 and September 6, 2013 progress reports, Dr. Sfakianos noted the diagnosis of
right cubital tunnel syndrome and status post cubital tunnel release. He continued to opine that
appellant could return to modified work with no repetitive motion of the right elbow.
In a November 20, 2013 letter, Mr. Frank explained that job placement was not
successful. He noted that appellant participated in job searches primarily online and did not
provide those documented contacts to him. Appellant preferred to be a commercial driver and
paid for her own training to obtain a class B commercial driver’s license. She had one interview
for a scanning clerk during the placement period at the employing establishment, but was not
hired.
Tory Keaton, the rehabilitation specialist, found in his December 20, 2013 closure report
that appellant met the SVP-2 level (unskilled up to 30 days to learn) for the targeted positions of
surveillance system monitor and call-out operator as she was a high school graduate, attended
college for two years, worked as a rural carrier from 1988 to 2012, and as a census clerk for three
months in 2010. This was supplemented by level I and level II guard card training for three days
at the Security Academy at McClelland. Mr. Keaton found that both targeted positions were
medically and vocationally suitable and existed in sufficient numbers in the commuting area. He
noted the salary for the surveillance system monitor position ranged from $9.50 to $10.75 per
hour ($380.00 to $430.00 per week) and recommended that the surveillance system monitor
position be used with a salary of $9.50 per hour for an entry-level position.
Mr. Keaton stated that the guard card training prepared appellant for a guard position and
qualified her to obtain employment as a surveillance system monitor. He noted that while the
Department of Labor, Dictionary of Occupational Titles indicated that the position of
surveillance system monitor was a government service position, the Department of Labor,
Dictionary of Occupational Titles has not been updated since 1991 and this position also existed
in the private sector and the public sector. Mr. Frank noted that all employers surveyed were
private-sector employers.

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In a May 16, 2014 report, Dr. Sfakianos noted that appellant no longer was working for
the employing establishment as they were not able to accommodate her long-term restrictions.
Appellant was sent to vocational rehabilitation and she wanted to be a commercial bus driver.
Dr. Sfakianos noted that appellant passed her driver’s test and had a valid commercial license.
He concluded that she could return to modified work and perform any task that did not require
repetitious motion of the right elbow.
In a June 12, 2014 notice, OWCP advised appellant that it proposed to reduce her
compensation for wage loss because the medical and factual evidence of record established that
she was no longer totally disabled. It found that she had the capacity to earn the wages of a
surveillance system monitor. OWCP based her wage-earning capacity at the rate of $402.60 per
week and attached a July 26, 2013 Form OWCP-66 created by Mr. Frank, the rehabilitation
counselor, for the Department of Labor, Dictionary of Occupational Titles position of call-out
operator, which had a weekly wage of $402.60. It requested that appellant submit additional
evidence or argument within 30 days if she disagreed with the proposed action.
Appellant responded, stating that she had three conditions covered by this case number,
but her condition under case number xxxxxx366 was not included even though it involved the
same part of the body.4 She stated that this last claim was not reflected in the determination of
suitable jobs. Appellant stated that the surveillance system monitor job did not exist and relevant
numbers of availability could not be determined. She also argued that she could not medically
perform the job requirements of either targeted position and no one would hire her because of her
age.
In a May 16, 2014 report, Dr. Sfakianos continued to opine that appellant could work
modified duty that did not require repetitious motion of the right elbow. In a June 2, 2014 letter,
he stated her underlying industrial condition was that of overuse syndrome affecting both upper
extremities. Dr. Sfakianos noted that appellant did well status post right cubital tunnel release in
response to right cubital tunnel syndrome and improvements were noted status post right elbow
cubital tunnel release. However, appellant still had bilateral overuse syndrome causing
permanent dysfunction, which restricted her activities, particularly repetitive activities of the
upper extremities. Dr. Sfakianos opined that, as of appellant’s last visit on May 16, 2014, she
was permanently partially disabled and could return to modified work but was prohibited from
performing any activity that required repetitive motion of the elbow.
Updated 2014 labor market research and OWCP-66 forms prepared by Mr. Frank for the
targeted positions of surveillance systems monitor and call-out operator were provided, with both
targeted positions stated as being medically and vocationally suitable and existing in sufficient
numbers in appellant’s commuting area. The salary range for the surveillance system monitor
position was from $9.50 to $10.75 per hour and the salary range for the call-out operator was
from $9.75 to $10.80 per hour.
By decision dated January 13, 2015, OWCP reduced appellant’s compensation effective
January 13, 2015 based on her capacity to earn wages in the constructed position of surveillance
4

See supra note 2. Under case number xxxxxx366, OWCP accepted that on January 2, 1998 appellant sustained
temporary aggravation of bilateral basal joint arthrosis.

4

system monitor. It found that the evidence established that she was vocationally and physically
capable of working as a surveillance system monitor and was capable of earning $402.60 per
week.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.5 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.6
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee, if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent the employee’s
wage-earning capacity or if the employee has no actual wages, the wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, the
employee’s usual employment, age, qualifications for other employment, the availability of
suitable employment, and other factors and circumstances which may affect his or her wageearning capacity in his or her disabled condition.7
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity counselor or
specialist for selection of a position, listed in the Department of Labor, Dictionary of
Occupational Titles or otherwise available in the open market, that fit the employee’s capabilities
with regard to his or her physical limitations, education, age, and prior experience. Once this
selection is made, a determination of wage rate and availability in the labor market should be
made through contact with the state employment service or other applicable service. Finally,
application of the principles set forth in Albert C. Shadrick8 and codified by regulations at
20 C.F.R. § 10.4039 should be applied. Subsection(d) of the regulations provide that the
employee’s wage-earning capacity in terms of percentage is obtained by dividing the employee’s
actual earnings or the pay rate of the position selected by OWCP, by the current pay rate for the
job held at the time of the injury.10

5

H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB
197 (2005).
6

20 C.F.R. §§ 10.402, 10.403.

7

5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB
584 (1996).
8

5 ECAB 376 (1953).

9

20 C.F.R. § 10.403.

10

Id. at § 10.403(d).

5

In determining an employee’s wage-earning capacity based on a position deemed suitable
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from post injury or subsequently acquired conditions.11 Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to
the loss of wage-earning capacity that can be attributed to the accepted employment injury and
for which appellant may receive compensation. Additionally, the job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.12
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome, contusion of right
elbow, and lesion of the right ulnar nerve and paid compensation benefits and for surgical
releases. Appellant was placed on the periodic compensation rolls for total disability resulting
from this injury and subsequently referred for vocational rehabilitation services and direct
placement as the employing establishment did not have a position available within her
restrictions.
On February 15 and May 16, 2013 Dr. Sfakianos opined that appellant could return to
modified work with restrictions of no repetitious motion of the right elbow. In a July 15, 2013
Form CA-17 duty status report, he stated that appellant was able to do modified work and needed
to avoid repetitive motion of the right elbow. Dr. Sfakianos opined that appellant could work
with the following restrictions: work 8.5 hours per day with sitting intermittent 5 hours; walking
intermittent 4 hours; standing intermittent 4 hours; climbing intermittent 4 hours; kneeling
intermittent 4 hours; bending/stooping intermittent 4 hours; twisting intermittent 4 hours;
pushing/pulling 25 pounds 1 hour intermittent; simple grasping 4 hours intermittent; fine
manipulation 4 hours intermittent; reaching above shoulder 4 hours intermittent; driving vehicle
4 hours intermittent; and operating machinery 4 hours intermittent.
OWCP’s vocational rehabilitation specialist determined that she was able to perform the
position of surveillance system monitor and that state employment services showed the position
was available in sufficient numbers so as to make it reasonably available within her commuting
area. The surveillance system monitor would monitor public transportation terminals to detect
crimes or disturbances using closed circuit television monitors, and notify authorities by
telephone of need for corrective action. The monitor would observe television screens that
transmitted in sequence views of transportation facility sites, push a hold button to maintain
surveillance of a location where an incident was developing, and telephone police or other
designated agency to notify authorities of the location of disruptive activity. Adjustments would
be made to monitor controls when required to improve reception, and repair service would be
notified of equipment malfunctions. The position was classified as a sedentary position which
entailed exertion of up to 10 pounds of force occasionally and/or a negligible amount of force
frequently to lift, carry, push, pull, or otherwise move objects, including the human body.
11

James Henderson, Jr., 51 ECAB 268 (2000).

12

Id.

6

Sedentary work involved sitting most of the time, but may also require walking or standing for
brief periods of time.
Appellant’s vocational rehabilitation counselor and specialists are experts in the field of
vocational rehabilitation and OWCP may rely on his opinion regarding reasonable availability
and vocational suitability of the surveillance system monitor position.13 In addition, a review of
the medical evidence of record reveals that appellant was physically capable of performing the
position. Appellant’s physician agreed that appellant could perform modified work, but could
not perform any tasks which involved repetitive motion of the right elbow. The Board finds that
the work restrictions recommended by Dr. Sfakianos would allow appellant to work as a
surveillance system monitor, a position which is essentially sedentary in nature. While appellant
argued that she could not physically perform the surveillance system monitor position, she did
not submit any medical evidence to support her allegation.
OWCP considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the position of surveillance system monitor represented her wage-earning
capacity.14 While she also argued before OWCP and on appeal that her other medical conditions
were not taken into account. The evidence of record establishes that appellant had the requisite
physical ability, skill, and experience to perform the position of surveillance system monitor and
that such a position was reasonably available within the general labor market of her commuting
area.
The Board finds however that OWCP did not properly calculate appellant’s
compensation effective January 13, 2015 based on her capacity to earn wages as a surveillance
system monitor. The vocational rehabilitation specialist determined that an entry-level salary of
$9.50 per hour ($9.50 x 40 = $380.00) be used to calculate appellant’s wage-earning capacity as
a surveillance system monitor, but OWCP used a weekly wage of $402.60, based upon the
earlier July 26, 2013 OWCP Form 66 for a call-out operator, in determining her wage-earning
capacity. OWCP made no findings as to why the recommendation regarding the surveillance
system monitor wage rate was disregarded.15 The Board will, therefore, remand the case to
OWCP for a recalculation of appellant’s wage-earning capacity based upon the entry-level salary
for the surveillance system monitor position.

13

G.A., Docket No. 13-1351 (issued January 10, 2014).

14

Clayton Varner, 37 ECAB 248, 256 (1985).

15

See 20 C.F.R. § 10.126.

7

CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation effective
January 13, 2015 based on her capacity to earn wages in the constructed position of surveillance
system monitor; however, it did not properly calculate her wage-earning capacity based on the
recent weekly wages for surveillance system monitor position.
ORDER
IT IS HEREBY ORDERED THAT the January 13, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision.
Issued: June 22, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, UNITED STATES
PENITENTIARY McCREARY, Pine Knot, KY,
Employer
__________________________________________

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

Docket No. 20-0009
Issued: September 28, 2020

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 October 2, 2019 appellant, through counsel, filed a timely appeal from an August 19,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

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

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
ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted May 28, 2018 employment incident.
FACTUAL HISTORY
On May 29, 2018 appellant, then a 40-year-old correctional officer, filed a traumatic injury
claim (Form CA-1) alleging that on May 28, 2018 he was carrying lunch trays up stairs when his
knee gave out while in the performance of duty. He stopped work on May 28, 2018.
On May 28, 2018 appellant was treated in the employing establishment clinic by A.
Morrow, a registered nurse, for a right knee injury. He reported carrying a food cart up stairs when
he felt a “pop” in his right knee. Nurse Morrow applied ice and an elastic bandage.
Appellant was subsequently treated in the emergency room on May 28, 2018 by
Dr. Christopher Bonn, a specialist in emergency medicine, for knee pain. Dr. Bonn reported that
appellant was carrying a food cart up stairs when he felt a pop and his right knee gave out. He
also reported continuing care for chronic knee issues. Dr. Bonn noted tenderness to the right knee
joint and limited range of motion in all fields secondary to pain. An x-ray of the right knee revealed
degenerative changes with no acute fracture. Dr. Bonn diagnosed acute pain of the right knee and
right knee sprain. He prescribed an elastic bandage wrap, crutches, and anti-inflammatory pain
medication.
On July 3, 2018 Dr. Daniel R. Yanicko, Jr., a Board-certified orthopedic surgeon, treated
appellant for a right knee injury which occurred at work on May 28, 2018 while he was carrying
food trays and twisted his knee. He noted that appellant had a three-year history of chronic bilateral
knee pain. Dr. Yanicko diagnosed acute lateral meniscus tear of the right knee and primary
osteoarthritis of the right knee. He also administered a cortisone injection. In a work excuse note
of even date, Dr. Yanicko diagnosed lateral meniscus tear and degenerative joint disease of the
right knee and advised that appellant was disabled from work.
In a development letter dated July 19, 2018, OWCP indicated that, when appellant’s claim
was received, it appeared to be a minor injury that resulted in minimal or no lost time from work
and, based on these criteria and because the employing establishment had not controverted
continuation of pay or challenged the case, payment of a limited amount of medical expenses was
administratively approved. It explained that it had reopened the claim for formal consideration of
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the August 19, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

2

the merits because it received a request for authorization of surgery. OWCP requested additional
evidence and afforded appellant 30 days to respond to its inquiries.
Appellant submitted a July 3, 2018 work excuse note from Dr. Yanicko who reiterated his
diagnoses of lateral meniscus tear and degenerative joint disease of the right knee. Dr. Yanicko
determined that appellant was disabled from work. In a work excuse note dated August 10, 2018,
he again reported treating appellant on July 3, 2018 for a work-related injury which was acute in
nature and not due to his military service.
Appellant attended physical therapy treatment on July 25, 2018.
By decision dated August 29, 2018, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish causal relationship between his diagnosed
right knee condition and the accepted May 28, 2018 employment incident.
OWCP continued to receive evidence. Dr. Yanicko treated appellant on August 29, 2018
for a right knee sprain which occurred at work on May 28, 2018. He noted appellant’s history was
significant for chronic knee pain. X-rays of the right knee lateral views revealed grade 1 OsgoodSchlatter’s lesion and a nodule. Dr. Yanicko noted medial and lateral joint space narrowing on the
erect image. The skyline view revealed moderate tricompartmental spurs, osteophytes, and
moderately severe patellofemoral spurs. Dr. Yanicko diagnosed other tear of lateral meniscus,
right knee workers’ compensation injury on May 28, 2018, and primary osteoarthritis of the right
knee.
On September 19, 2018 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
By decision dated February 15, 2019, an OWCP hearing representative affirmed the
August 29, 2018 decision.
On May 2, 2019 Dr. Catherine Watkins Campbell, Board-certified in occupational
medicine, reviewed appellant’s medical records and noted that he was under the care of
Dr. Yanicko for degenerative arthritis of both knees. She indicated that Dr. Yanicko documented
a twisting injury on May 28, 2018 that significantly aggravated his underlying right knee arthritis.
Dr. Watkins Campbell advised that appellant had a history of bilateral knee problems dating back
to previous military service and experienced swelling, locking, and giving out of the right knee.
She reviewed x-ray reports from Dr. Yanicko dated May 9 and August 29, 2018 and noted a
noticeable increase in the medial joint space narrowing on the August 29, 2018 study compared to
the May 9, 2018 studies. Dr. Watkins Campbell concluded that this was objective evidence of a
substantial aggravation of preexisting arthritis in the right knee. She diagnosed sprain of the right
knee and substantial aggravation of preexisting arthritis of the right knee. Dr. Watkins Campbell
opined that the mechanism of injury, climbing stairs while manipulating a moderate-to-heavy
weight, was a significant mechanism of injury to cause a sprain, knee joint derangement, and
“permanent substantial aggravation of preexisting arthritis of the right knee as demonstrated
significant x-ray evidence identified within three months of the injury event.” (Emphasis in the
original.)

3

In an attending physician’s report (Form CA-20) dated May 2, 2019, Dr. Watkins
Campbell diagnosed sprain of the right knee and substantial aggravation of preexisting arthritis of
the right knee. She checked the box marked “Yes,” indicating that the condition was caused or
aggravated by an employment activity and noted that appellant was totally disabled from work.
On May 21, 2019 appellant, through counsel, requested reconsideration.
By decision dated August 19, 2019, OWCP denied modification of the February 15, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine 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.8 There are 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.9 The
second component is whether the employment incident caused a personal injury.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background.12 Additionally, the physician’s opinion must be
4

Id.

5

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6
T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
7

T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
8

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

11

S.S., supra note 8; Robert G. Morris, 48 ECAB 238 (1996).

12

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

4

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 incident.13
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted May 28, 2018 employment incident.
On May 2, 2019 Dr. Watkins Campbell reported that appellant sustained a twisting injury
on May 28, 2018 that significantly aggravated his underlying right knee arthritis. She noted a
noticeable increase in the medial joint space narrowing on an August 29, 2018 study compared to
the May 9, 2018 study, which supported an aggravation of preexisting arthritis in the right knee.
Dr. Watkins Campbell diagnosed sprain of the right knee and substantial aggravation of
preexisting arthritis of the right knee. She opined that the mechanism of injury, climbing stairs
while manipulating a moderate-to-heavy weight, was a significant mechanism of injury to cause a
sprain, knee joint derangement, and permanent substantial permanent aggravation of preexisting
arthritis of the right knee as evidenced by x-rays. However, Dr. Watkins Campbell failed to
provide medical reasoning explaining how climbing stairs while lifting trays would cause or
aggravate the diagnosed condition. The need for rationalized medical opinion evidence was
particularly important because appellant had preexisting osteoarthritis of the right knee and
continued to seek medical care for this condition. Dr. Watkins Campbell failed to provide a
rationalized medical opinion which differentiates between the effects of the work-related injury
and the preexisting condition.15
A Form CA-20 report from Dr. Watkins Campbell, dated May 2, 2019, diagnosed sprain
of the right knee and substantial aggravation of preexisting arthritis of the right knee. As to causal
relationship, Dr. Watkins Campbell merely checked a box marked “Yes” that the injury was
related to the claimed employment incident. The Board has held, however, that when a physician’s
opinion on causal relationship consists only of checking “Yes” to a form question, without
explanation or rationale, that opinion has diminished probative value and is insufficient establish

13

Id.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
15

See id.

5

a claim.16 Therefore, Dr. Watkins Campbell’s May 2, 2019 report is also insufficient to establish
the claim.
Reports from Dr. Yanicko dated July 3 and August 29, 2018 noted that appellant sustained
a right knee injury at work on May 28, 2018. Dr. Yanicko diagnosed tear of lateral meniscus of
the right knee from a workers’ compensation injury on May 28, 2018, and primary osteoarthritis
of the right knee. While Dr. Yanicko provided affirmative opinions which supported causal
relationship, he did not provide a pathophysiological explanation as to how the accepted incident
either caused or contributed to his diagnosed conditions.17 The Board has consistently held that
complete medical rationalization is particularly necessary when there are preexisting conditions
involving the same body part,18 and has required medical rationale differentiating between the
effects of the work-related injury and the preexisting condition in such cases.19 Thus, the Board
finds that these reports from Dr. Yanicko are insufficient to establish causal relationship.
In a work excuse note dated July 3, 2018, Dr. Yanicko diagnosed lateral meniscus tear and
degenerative joint disease of the right knee and advised that appellant was disabled from work.
Similarly, in an August 10, 2018 work excuse note, he noted treating appellant for a work-related
injury, which was acute in nature and not related to his military service. Dr. Yanicko did not
provide a history of injury20 or specifically address whether appellant’s employment activities had
caused or aggravated a diagnosed medical condition.21 Therefore, these notes are insufficient to
meet appellant’s burden of proof.
Appellant was treated in the emergency room by Dr. Bonn on May 28, 2018 for knee pain,
which developed after he carried a food cart upstairs at work. Dr. Bonn diagnosed acute pain of
the right knee and right knee sprain. His notes are insufficient to establish the claim as “pain” is a
symptom, not a medical diagnosis.22 Additionally, Dr. Bonn did not specifically address whether
appellant’s employment was sufficient to have caused or aggravated a diagnosed medical

16

See M.O., Docket No. 18-1056 (issued November 6, 2018); Deborah L. Beatty, 54 ECAB 3234 (2003).

17

Victor J. Woodhams, 41 ECAB 345 (1989). Supra note 14

18

K.R., Docket No. 18-1388 (issued January 9, 2019).

19

See, e.g., A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued December 31,
2018); J.B., Docket No. 17-1870 (issued April 11, 2018); E.D., Docket No. 16-1854 (issued March 3, 2017); P.O.,
Docket No. 14-1675 (issued December 3, 2015).
20

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
21

LB., Docket No. 18-0533 (issued August 27, 2018); D.K., No. 17-1549 (issued July 6, 2018).

22

Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012); T.G., Docket
No. 19-0904 (issued November 25, 2019).

6

condition.23 This is particularly important because appellant has preexisting degenerative joint
disease of the right knee.
Finally, appellant submitted employing establishment medical records from
Nurse Morrow. The Board has held that treatment notes signed by a nurse24 are not considered
medical evidence as these providers are not considered physicians under FECA25 and are not
competent to render a medical opinion under FECA. Thus, this evidence is insufficient to meet
appellant’s burden of proof. Appellant also submitted reports from a physical therapist. Certain
healthcare providers such as physical therapists26 are not considered “physician[s]” as defined
under FECA.27 Consequently, their medical findings and/or opinions will not suffice for purposes
of establishing entitlement to FECA benefits.28
As appellant has not submitted rationalized medical evidence to support his claim that he
sustained a right knee condition causally related to the May 28, 2018 employment incident, the
Board finds that he has not met his burden of proof to establish his claim.
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 right knee
condition causally related to the accepted May 28, 2018 employment incident.

23

Supra note 21.

B.B., Docket No. 09-1858 (issued April 16, 2010) (nurse’s reports are of no probative medical value as nurses
are not physicians under the FECA).
24

25

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).
26

V.W., Docket No. 16-1444 (issued March 14, 2017) (where the Board found that physical therapy reports do not
constitute competent medical evidence because a physical therapist is not a “physician” as defined under FECA).
27
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, supra note 25. A
report from a physician assistant or certified nurse practitioner will be considered medical evidence if countersigned
by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013).
28

Id.

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ORDER
IT IS HEREBY ORDERED THAT the August 19, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 28, 2020
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ALBANY VETERANS HOSPITAL, Albany, NY,
Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-872
Issued: August 21, 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 March 7, 2014 appellant, through his attorney, filed a timely appeal from a
February 11, 2014 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 has met his burden of proof to establish that his left
shoulder condition is causally related to either the accepted August 1, 2012 injury or other
factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 6, 2013 appellant, then a 59-year-old nursing assistant, filed an occupational
disease claim alleging on August 1, 2012 he fell in the performance of his duties. He claimed
increasing left shoulder pain and stiffness and stopped work on February 5, 2013.
In a February 5, 2013 statement, Marlene Herrington, a registered nurse and appellant’s
supervisor, stated that two of the charge nurses indicated that appellant was not performing his
full duties because his shoulder hurt and he was in pain. She sent him to the emergency
department to be evaluated.
In a February 5, 2013 emergency department discharge note, Dr. John Morris, an
emergency department attending physician, provided a discharge diagnosis of left rotator cuff
tear with acute exacerbation. In a February 5, 2013 disability note, he indicated that appellant
was unable to return to duty until cleared by an orthopedic surgeon.
In a February 7, 2013 note, Dr. Lee A. Kaback, a Board-certified orthopedic surgeon,
indicated that appellant could return to work on March 4, 2013.
In a February 13, 2013 letter, OWCP advised appellant that the evidence received was
insufficient to establish that he actually experienced the incident or employment factor alleged to
have caused injury; the evidence was insufficient to support that he was injured while performing
any duty of his employment; and a physician’s opinion as to how his injury resulted in the
condition diagnosed had not been provided. Appellant was requested to submit within 30 days a
response to the questionnaire and medical evidence in support of his claim, which included a
physician’s opinion supported by a medical explanation as to how the reported work incident
caused or aggravated the claimed injury.
In a February 7, 2013 report, Dr. Kaback noted that appellant was previously seen on
August 1, 2012 and since then has been having increasing pain in the lateral aspect of his left
shoulder over time with no known new trauma. He indicated that he was still waiting approval
of left shoulder arthroscopy with rotator cuff repair and that appellant was seen, following his
emergency room visit, for clearance back to work. Dr. Kaback noted examination findings and
provided an impression of left shoulder calcific tendinitis and possible rotator cuff tendon tear.
He opined that appellant was temporary totally disabled for the next three weeks hopefully to get
his surgery approved.
In a February 22, 2013 attending physician’s report, Dr. Kaback noted that appellant fell
at work on May 8, 2012 and diagnosed left shoulder tendinitis. He opined with a check mark yes
that the condition was caused or aggravated by employment activity.
In a March 4, 2013 disability note, Dr. Kaback opined that appellant could return to work
with no restrictions on March 4, 2013. He noted that appellant would be reevaluated pending
magnetic resonance imaging scan authorization.
By decision dated March 20, 2013, OWCP denied the claim on the grounds appellant had
not provided a factual basis to support his claim and there was no medical evidence to establish
that a diagnosed medical condition was causally related to the work injury or event.
2

In a December 3, 2013 letter, appellant, through his attorney, requested reconsideration.
Appellant provided an April 5, 2013 statement. He explained that he was passing out
water pitchers to patients during the evening shift. As appellant was rolling out a tray table to fill
the water pitchers in the kitchen, a patient came from a blind corner and to avoid hitting the
patient he turned the table with full force away from the patient, the tray table tumbled and he
fell on top of the table. He stated that the charge nurse then wheeled him to the emergency room
for evaluation and treatment. In a statement dated April 10, 2013, appellant explained that he
retired from the employing establishment because he was continually marked as “AWOL” when
he missed work because of his shoulder injury. He explained that he was not allowed to undergo
recommended shoulder surgery because the employing establishment did not verify his injury to
OWCP. Also submitted were several duty status reports from Dr. Kaback regarding his return to
work, some which contained the diagnosis of left shoulder tendinitis.
By decision dated February 11, 2014, OWCP modified its prior decision to reflect that
fact of injury had been established but denied the claim because causal relationship had not been
established between appellant’s diagnosed left shoulder condition and this event.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his 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.2 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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.4
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.5 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
2

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

3

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

4

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

5

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

3

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 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.7 Neither the mere fact that a disease or condition
manifests itself during a period of employment nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.8
ANALYSIS
OWCP accepted that on August 1, 2012 appellant fell during the course of his federal
duties. It denied his claim on the grounds that there was insufficient medical evidence to
establish that his left shoulder condition was caused or aggravated by the fall or his work factors.
The Board agrees.
The Board notes that there is no medical evidence contemporaneous to the August 1,
2012 event. While Dr. Kaback states in his February 7, 2013 report that appellant was seen on
August 1, 2012, the current record does not contain a record of that visit.
Dr. Kaback stated in his February 7, 2013 report that, since appellant’s visit of August 1,
2012, he has had increasing pain in the lateral aspect of his left shoulder overtime with no known
new trauma. He provided an impression of left shoulder calcific tendinitis and possible rotator
cuff tendon tear and opined that appellant was temporary totally disabled for the next three
weeks hopefully to get his surgery approved. Dr. Kaback’s report is insufficient as he did not
specifically address whether the employment incident or employment factors caused or
contributed to appellant’s diagnosed left shoulder condition.9
Dr. Kaback noted, in the attending physician’s report dated February 22, 2013, a date of
injury of May 8, 2012. He diagnosed left shoulder tendinitis and opined with a check mark yes
that the condition was caused or aggravated by employment activity. The Board has held that an
opinion on causal relationship which consists only of a physician checking yes to a medical form
report question on whether the claimant’s condition was related to the history given is of little
probative value. Without any explanation or rationale for the conclusion reached, such report is
insufficient to establish causal relationship.10 Furthermore, Dr. Kaback provided a different date
of injury than that provided by appellant and failed to address the discrepancy.11 His duty status
6

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

James Mack, 43 ECAB 321, 329 (1991).

8

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

9

Michael E. Smith, 50 ECAB 313 (1999).

10

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

11

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).

4

reports are also insufficient to establish appellant’s claim as he does not relate a history of the
claimed work injury12 or offer any specific opinion regarding whether work factors caused or
contributed to a diagnosed medical condition.13
In his February 5, 2013 reports, Dr. Morris, the emergency department attending
physician, diagnosed left rotator cuff tear with acute exacerbation and opined that appellant was
unable to return to duty until cleared by orthopedic surgeon. However, these reports do not
relate a history of the claimed work injury or offer any specific opinion regarding whether work
factors caused or contributed to a diagnosed medical condition.14
Ms. Herrington, a registered nurse and appellant’s supervisor, stated that two of the
charge nurses indicated that appellant was not performing his full duties because his shoulder
hurt and he was in pain. However, a registered nurse is not a physician and a nurse’s opinion
regarding diagnosis or causal relationship is of no probative value.15
On appeal, appellant disagreed with OWCP’s decision denying his claim for
compensation and noted that he had submitted sufficient evidence to establish his claim. As
noted above, the medical evidence does not establish that his diagnosed left shoulder condition
was causally related to the accepted August 1, 2012 incident or his employment. Reports from
appellant’s physicians failed to provide sufficient medical rationale explaining how appellant’s
left shoulder condition was caused or aggravated by his accepted fall or any other particular
employment duties. The need for such rationale is particularly important in view of the fact the
record is devoid of any medical evidence contemporaneous to the August 1, 2012 incident.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his left
shoulder condition was causally related to his employment or the accepted August 1, 2012
incident.

12

Id.

13

See J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).
14

Id.

15

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician as defined in 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 Merton J. Sills, 39
ECAB 572, 575 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the February 11, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1631
Issued: March 12, 2012

Case Submitted on the Record

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

JURISDICTION
On July 6, 2011 appellant’s counsel timely appealed the April 26, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which affirmed the termination of her
compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective April 13, 2010.
FACTUAL HISTORY
Appellant, a 55-year-old information technology (IT) specialist, has an accepted
occupational disease claim for bilateral carpal tunnel syndrome (CTS), which arose on or about
1

5 U.S.C. §§ 8101-8193.

May 23, 1996. On April 10, 2006 Dr. Salvatore R. Lenzo, a Board-certified orthopedic surgeon,
performed a left wrist flexor tenosynovectomy and carpal tunnel release. Appellant underwent a
right wrist flexor tenosynovectomy on November 20, 2006, also performed by Dr. Lenzo. She
subsequently returned to work. On July 13, 2007 appellant sustained a traumatic injury, which
OWCP accepted for bilateral hand and wrist tenosynovitis (xxxxxx430). OWCP later combined
appellant’s two bilateral upper extremity claims under claim number xxxxxx396. With respect
to her bilateral CTS claim, OWCP accepted a recurrence of disability beginning April 24, 2009.
Appellant received wage-loss compensation, and effective August 30, 2009, OWCP placed her
on the periodic compensation rolls.
On March 12, 2010 OWCP issued a notice of proposed termination of benefits based on
the September 21, 2009 and February 5, 2010 reports of Dr. Maria A. DeJesus, a Board-certified
neurologist and impartial medical examiner (IME), who was selected to resolve a conflict in
medical opinion between appellant’s surgeon, Dr. Lenzo, and Dr. Edward Welland, a Boardcertified neurologist and OWCP second opinion referral physician.2
Dr. DeJesus examined appellant on September 21, 2009 and diagnosed status post
bilateral carpal tunnel releases. Apart from her complaints of pain in both wrists on Tinel’s and
Phalen’s testing, appellant’s examination revealed no motor or sensory deficits and normal
reflexes in the upper extremities. Additionally, examination of the cervical spine revealed
normal range of motion, no complaint of pain and no spasm. Dr. DeJesus found no indication of
neurological disability, and advised there was no need for neurological care or diagnostic testing,
no need for household help, and no need for special transportation or durable medical supplies.
She found that appellant could perform all of her usual daily activities and work duties without
restriction. In a February 5, 2010 addendum, Dr. DeJesus reiterated that there was no
neurological disability and appellant could perform all of her work duties without restriction.
Appellant reached maximum medical improvement and there was no need for additional
diagnostic testing or neurological care.
Following its March 12, 2010 notice of proposed termination of benefits, OWCP received
a February 26, 2010 cervical magnetic resonance imaging (MRI) scan that revealed posterior
disc herniations at C4-5, C5-6 and C6-7. Appellant also submitted a March 26, 2010 narrative
report and a duty status report (Form CA-17) from Dr. Lenzo. He indicated that appellant had
chronic pain and spasms in both hands and required permanent restrictions with regard to
everyday life and job duties as an IT specialist. Dr. Lenzo also reported that for the past two
years appellant experienced pain in her neck that radiated to her shoulders. Because of muscle
spasm and severe pain in her fingers and hands, appellant was constantly homebound and had
been incapacitated since April 24, 2009. Dr. Lenzo advised that appellant should not do any
2

In a report dated May 13, 2009, Dr. Welland diagnosed tenosynovitis and status post bilateral carpal tunnel
releases. He also noted that from time to time appellant complained of neck pain radiating into her shoulders.
However, on physical examination there was full range of motion of the neck and both shoulders. Dr. Welland
advised that appellant’s accepted condition had totally resolved and she had reached maximum medical
improvement. He provided a June 3, 2009 work capacity evaluation (Form OWCP 5c) that indicated appellant was
able to perform her usual job. In a report dated August 27, 2009, Dr. Lenzo indicated that appellant had been unable
to perform her duties as an IT specialist since April 2009 due to chronic pain in her hands. He also reported
recurring muscle spasm in both hands. The pain was not only in appellant’s hands, but also across her shoulders and
neck. Dr. Lenzo related appellant’s current symptoms to her employment injury.

2

keyboarding, no lifting of heavy objects, no pulling and/or pushing, and no twisting. He related
appellant’s current symptoms to her employment injury.
OWCP also received a November 30, 2009 report and an April 2, 2010 disability
certificate from Dr. Douglas A. Schwartz, a Board-certified physiatrist. When he first examined
appellant on November 30, 2009, Dr. Schwartz obtained a history of bilateral CTS with an onset
of symptoms in 1996. He also noted appellant had undergone bilateral carpal tunnel releases in
2006 and subsequently experienced a recurrence of symptoms in April 2009. Dr. Schwartz
reported that over the past two years appellant noted a slow development of neck pain on both
sides as well as pain radiating to the trapezius muscles and the anterior aspects of both shoulders.
Appellant believed her neck and shoulder symptoms developed as a consequence of her inability
to use her wrists and hands. Dr. Schwartz diagnoses included: (1) bilateral CTS, status post
releases; (2) cervical derangement with radiculopathy and possible underlying herniated discs -consequential in nature due to overuse; and (3) bilateral shoulder derangement with underlying
impingement -- consequential in nature due to overuse. He recommended additional
electrodiagnostic studies and MRI scans of the neck and shoulders. Dr. Schwartz indicated that
appellant was totally disabled from any and all work. His April 2, 2010 disability certificate
included an additional diagnosis of posterior disc herniations at C4-5, C5-6 and C6-7 with thecal
sac impingement. Dr. Schwartz reiterated that appellant remained totally disabled from any type
of work.
In a decision dated April 13, 2010, OWCP terminated wage-loss compensation and
medical benefits finding that appellant’s accepted bilateral hand and wrist conditions had
resolved.
Appellant twice requested reconsideration. With the assistance of counsel, she
questioned OWCP’s reliance on Dr. DeJesus’ opinion as a basis for terminating her benefits.
Appellant argued that OWCP should have accepted her multilevel cervical disc herniations as
employment related.
OWCP received additional medical evidence, which included Dr. Schwartz’s March 4
and April 2, 2010 follow-up reports. Dr. Schwartz’s diagnoses and disability assessment were
consistent with his previously submitted report and disability certificate. He reiterated his
request for bilateral shoulder MRI scans and electrodiagnostic studies.
Counsel submitted additional reports and treatment notes from Dr. Lenzo dated April 30
to December 17, 2010. Dr. Lenzo referenced appellant’s recent cervical MRI scan the revealed
multilevel disc herniations. He indicated that appellant had chronic pain, which emanated from
the cervical spine to her hands. Dr. Lenzo further noted that appellant still had tenderness and
pain within her hands. He recommended continued treatment, including acupuncture and
physical therapy, and advised that appellant remained totally disabled. In an April 30, 2010
narrative report, Dr. Lenzo characterized appellant’s current condition as “double crush
syndrome,” which represented the combination of her bilateral CTS and her cervical disc
herniations at C4 through C7. He noted that appellant still had muscle spasms and pain radiating
from her cervical spine into the upper extremities causing numbness and pain and difficulty
using both hands. Because of her double crush syndrome, appellant was unable to do any
keyboarding, heavy lifting, pushing, pulling or twisting. Dr. Lenzo also indicated that

3

appellant’s symptoms were “related to the date of accident and [were] chronic in nature.” In
follow up appellant still had tenderness in the paracervical area, numbness in the median nerve
distribution of both hands and pain radiating down into the hands. The November 2, 2010
treatment notes provided similar information, except there was no mention of pain radiating
down into the hands. Dr. Lenzo noted negative Tinel’s signs.
In a December 17, 2010 narrative report, Dr. Lenzo summarized his treatment of
appellant dating back to February 2003, including the two surgeries he performed in April and
November 2006. He also described her duties as an IT specialist, which he characterized as
involving a lot of repetitive-type hand movements and repetitive lifting, pushing and pulling of
heavy equipment. Dr. Lenzo indicated that, despite surgical intervention, appellant continued to
experience pain. He also noted that her cervical MRI scan revealed disc herniations at C4
through C7. Dr. Lenzo reiterated his diagnosis of double crush syndrome, and the previously
reported muscle spasms and pain radiating from the cervical spine into the upper extremities
ultimately affecting appellant’s hands. He noted that when he last examined her on November 2,
2010 she had negative Tinel’s signs at the level of the carpal tunnel, but still had pain emanating
from the paracervical area radiating into the upper extremities. Dr. Lenzo also reported
restrictions in wrist extension and flexion to 30 degrees, restricted cervical rotation to the right,
and associated muscle spasms in the paracervical area. He recommended acupuncture to address
appellant’s current symptomatology. Dr. Lenzo attributed her condition to her federal
employment and advised that she could not return to her prior duties. According to him,
appellant had not yet reached maximum medical improvement. Dr. Lenzo indicated that her
condition could improve with other treatment modalities, such as pain management and
acupuncture.
OWCP denied modification by decisions dated August 5, 2010 and April 26, 2011. In
both instances, it noted that a cervical condition had not been accepted, and the medical evidence
failed to establish a causal relationship between appellant’s cervical disc herniations and her
employment.
On appeal, counsel reiterated his challenge to the opinion of Dr. DeJesus as a basis for
terminating benefits. He also argued that appellant’s cervical disc herniations should have been
accepted as employment related.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to 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.4
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.5 To terminate authorization for medical treatment, OWCP must
3

Curtis Hall, 45 ECAB 316 (1994).

4

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

5

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

4

establish that the employee no longer has residuals of an employment-related condition that
require further medical treatment.6
FECA provides that, if there is disagreement between the physician making the
examination for OWCP and the employee’s physician, OWCP shall appoint a third physician
who shall make an examination.7 For a conflict to arise the opposing physicians’ viewpoints
must be of “virtually equal weight and rationale.”8 Where OWCP has referred the employee to
an impartial medical examiner to resolve a conflict in the medical evidence, the opinion of such a
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.9
ANALYSIS
Appellant’s accepted conditions include bilateral CTS and bilateral hand and wrist
tenosynovitis. OWCP terminated compensation and medical benefits effective April 13, 2010
based on the IME’s September 21, 2009 and February 5, 2010 reports. On appeal, counsel
argued that OWCP should have expanded the claim to include appellant’s cervical disc
herniations. He also argued that the IME based her opinion on an inaccurate history of injury
given she had not considered appellant’s cervical condition as employment related. Lastly,
counsel argued that Dr. Lenzo’s December 17, 2010 report established that appellant had
ongoing employment-related residuals/disability.
OWCP properly found a conflict in medical opinion based on the opposing views of
appellant’s orthopedic surgeon, Dr. Lenzo, and Dr. Welland, a neurologist and OWCP referral
physician. Based on this conflict in medical opinion, OWCP referred appellant to Dr. DeJesus to
resolve the question of whether appellant had any ongoing injury-related residuals. Dr. DeJesus
examined appellant on September 21, 2009 and diagnosed status post bilateral carpal tunnel
releases. Apart from complaints of pain in both wrists, Dr. DeJesus’ examination revealed
normal reflexes in the upper extremities and no motor or sensory deficits. She found no
evidence of neurological disability. Dr. DeJesus concluded that appellant did not require further
medical treatment and that she could perform all of her work duties without restriction.
Counsel questioned Dr. DeJesus’ opinion because she did not account for appellant’s
multilevel cervical disc herniations. As noted, OWCP has not accepted any cervical disc
herniations as employment related. When Dr. DeJesus examined appellant on September 21,
2009, she noted normal range of motion of the cervical spine, no complaint of pain and no
muscle spasm. Appellant did not receive a formal diagnosis of multilevel disc herniations until
her February 26, 2010 cervical MRI scan, which was five months after examination by
Dr. DeJesus.

6

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

7

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

8

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

9

Gary R. Sieber, 46 ECAB 215, 225 (1994).

5

Dr. DeJesus, the IME, provided a well-reasoned report based on a proper factual and
medical history. She accurately summarized the relevant medical evidence, and relied on the
latest statement of accepted facts, which included a description of appellant’s duties as an IT
specialist. Dr. DeJesus also provided detailed examination findings and medical rationale
supporting her opinion. As such, her opinion as an IME was entitled to determinative weight.10
Dr. Schwartz and Dr. Lenzo both examined appellant after Dr. DeJesus. Their
subsequent reports focused primarily on appellant’s neck and shoulder complaints. Dr. Lenzo
characterized appellant’s cervical disc herniations and her bilateral CTS as a double crush
syndrome. Although both physicians found appellant totally disabled, neither physician clearly
delineated the effects of appellant’s cervical disc herniations from the purported ongoing
residuals of her accepted bilateral hand/wrist condition. Moreover, subsequent reports from a
physician who was on one side of a medical conflict that has since been resolved would
generally be insufficient to overcome the weight accorded the impartial medical examiner’s
report and/or insufficient to create a new medical conflict.11 As a party to the original conflict,
Dr. Lenzo’s subsequent treatment notes and reports dated March 26, April 30, September 16,
November 2 and December 17, 2010 are insufficient to overcome the weight properly accorded
Dr. DeJesus’ opinion. These additional reports are also insufficient to create a new conflict in
medical opinion. The Board finds that OWCP properly terminated compensation and medical
benefits on the basis of the weight of the evidence, as represented by the IME’s September 21,
2009 and February 5, 2010 reports.
Where an employee claims that a condition not accepted or approved by OWCP was due
to her employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury.12
Dr. Lenzo and Dr. Schwartz both believed that appellant’s cervical condition was
employment related. However, neither physician clearly explained how appellant’s multilevel
cervical disc herniations were causally related to her accepted bilateral upper extremity
hand/wrist condition or the employment factors/incidents that gave rise to those accepted
conditions. Dr. Schwartz characterized appellant’s cervical and bilateral shoulder condition as
consequential in nature due to overuse. He appears to have relied exclusively on appellant’s
stated belief that her neck and shoulder symptoms developed as a consequence of her inability to
use her wrists and hands as she once could.
Dr. Lenzo indicated in a January 10, 2007 treatment note that she had been seeing a
“Dr. Kim who [did not] feel there [were] any significant findings with regard to the neck.” This
was less than two months after Dr. Lenzo had operated on appellant’s right wrist with respect to
her accepted bilateral CTS. If appellant did not have any significant cervical findings after her
diagnosis of CTS and her related surgeries, it is highly unlikely that her previous repetitive work
duties and/or her bilateral CTS caused or contributed to her current cervical condition.
10

Id.

11

I.J., 59 ECAB 408, 414 (2008).

12

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

6

Dr. Lenzo did not address how the July 13, 2007 employment incident that gave rise to
appellant’s bilateral hand and wrist tenosynovitis similarly caused or contributed to the
development of her multilevel cervical disc herniations. Based on Dr. Kim’s findings, Dr. Lenzo
continued to believe at the time that the predominate symptoms emanated from appellant’s hands
and not her neck. While there appears to have been a temporal relationship between appellant’s
accepted bilateral upper extremity conditions and her increased cervical and bilateral shoulder
complaints, this does not establish that the conditions are causally related. Accordingly,
appellant has failed to establish that her cervical condition is causally related to her accepted
bilateral upper extremity condition.
CONCLUSION
OWCP properly terminated appellant’s wage-loss compensation and medical benefits
effective April 13, 2010.
ORDER
IT IS HEREBY ORDERED THAT the April 26, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 12, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7