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

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

Docket No. 09-2230
Issued: August 11, 2010

Case Submitted on the Record

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

JURISDICTION
On September 8, 2009 appellant, through her attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ merit decisions dated October 9, 2008 and June 1, 2009.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of this case.1
ISSUE
The issue is whether appellant had more than 18 percent impairment of her right lower
extremity for which she has received schedule awards.
FACTUAL HISTORY
This case has previously been before the Board on appeal. On November 9, 1999
appellant, then a 37-year-old mail carrier filed a traumatic injury claim alleging that she was
1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

struck by an automobile during the performance of duty injuring her right knee. The Office
accepted the claim for contusion and tear of the meniscus of the right knee and left knee strain.
Appellant underwent right knee surgeries on March 2 and December 6, 2000 to repair her
anterior cruciate ligament and a partial synovectomy, respectively. She requested a schedule
award and submitted a report from Dr. David Weiss, an osteopath and a Board-certified
orthopedic surgeon, finding that she had 8 percent impairment due to quadriceps atrophy, 17
percent impairment due loss of motor strength and 3 percent due to pain for 27 percent
impairment of the right lower extremity.
The Office referred appellant for a second opinion evaluation with Dr. Kenneth Flavo, a
Board-certified orthopedic surgeon, who found only loss of flexion entitling appellant to five
percent impairment. Due to the conflict of medical opinion evidence, it referred appellant to
Dr. Howard, Blank, a Board-certified orthopedic surgeon, for an impartial medical examination.
Dr. Blank found ½ inch visible atrophy of the right quadriceps, 125 degrees of flexion and
concluded that appellant had 10 percent impairment of her right lower extremity. The Office
medical adviser reviewed the medical evidence and concluded that appellant had five percent
impairment due to loss of flexion and five percent impairment due loss of cartilage space. It
granted appellant a schedule award for 10 percent impairment of her right lower extremity. The
Board reviewed the Office’s decision on appeal and found that the case should be remanded for
the Office to secure a supplemental report from Dr. Blank providing a reasoned opinion
explaining how he reached his impairment rating applying the protocols of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th
ed. 2001).2 The facts and the circumstances of the case as set out in the Board’s prior decision
are adopted herein by reference.
On remand from the Board, the Office requested a supplemental report from Dr. Blank on
August 23 and October 13, 2005. As there was no response, the Office then referred appellant to
Dr. Todd Krell, a Board-certified orthopedic surgeon, for a second impartial medical
examination. Dr. Krell examined appellant on December 20, 2005 and provided a proper history
of injury. He found that appellant’s gait was normal and limited flexion of 125 degrees on the
right. Dr. Krell found thigh circumference was 45.5 centimeters on the right and 46.5 on the
right.3 He noted only 4/5 strength in right hip forward flexion and performed x-rays including
bilateral skyline views. Dr. Krell assigned three percent impairment due to one centimeter of
atrophy on the right. He noted that leg forward flexors included knee extensors and that
appellant had 12 percent impairment of the lower extremity due to this condition as a whole with
8.5 percent impairment allowing for the contribution of hip forward flexors and knee extensors
to the clinically measured loss of strength.4
Dr. Krell found that appellant had a difference in side-to-side range of motion of the right
knee as compared to the left. The right knee reached full extension with flexion of 125 degrees.
The left, unaffected knee, reached full extension with flexion of 140 degrees, yielding a side-to2

Docket No. 05-697 (issued July 20, 2005).

3

A.M.A., Guides, Table 17-6.

4

Id. at Table 17-8.

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side difference of 15 degrees. Dr. Krell noted that, based strictly on Table 17-10, only ranges of
motion less than 110 degrees are assigned ratings. He found, however, that appellant’s loss of
motion of 15 degrees did interfere with the performance of certain functional tasks such as
squatting. Dr. Krell concluded, “The loss of 15 degrees by comparison to the normal of 140
degrees represents approximately a 103 percent change in the range of motion as compared to
the unaffected side. The patient is therefore assigned 10 percent lower extremity impairment for
loss of range of motion with a subsequent effect on functional ability.” He also found that
appellant had pain in accordance with Chapter 18 of the A.M.A., Guides, noting that she
completed a rating scale in this chapter which placed her in mild pain impairment of two percent
of the lower extremity.5 Dr. Krell found appellant had 24 percent impairment of the right lower
extremity.
The district medical adviser reviewed this report on January 12, 2006 and found that
Dr. Krell used the wrong tables for range of motion and incorrectly used the muscle strength
tables. He stated that appellant had no impairment due to loss of range of motion and five
percent impairment due to loss of hip flexor strength on the right. The district medical adviser
stated that as appellant received impairment due to loss of motor strength she was not also
entitled to receive impairment for atrophy. He concluded that appellant had eight percent
impairment of the right lower extremity.
The Office denied appellant’s claim for an additional schedule award by decision dated
January 17, 2006.
Appellant, through her attorney, requested an oral hearing on
January 23, 2006. By decision dated July 31, 2006, the Branch of Hearings and Review found
that a new district medical adviser should review the medical evidence as the previous reviewing
district medical adviser created the conflict regarding appellant’s permanent impairment.
On remand, a second district medical adviser, Dr. Andrew Merola, a Board-certified
orthopedic surgeon, reviewed the case and determined that only 10 percent for loss of range of
motion and 3 percent for pain could be combined.6 The Office then requested a supplemental
report from Dr. Krell who responded and argued that, as both the thigh and knee joints were
involved, it was appropriate to combine thigh atrophy and strength resulting in 22 percent
impairment.
The Office referred Dr. Krell’s report back to Dr. Merola who again stated that strength,
atrophy and loss of motion could not be combined. Dr. Merola concluded that appellant had 9
percent impairment due to loss of strength combined with 2 percent for pain resulting in 11
percent impairment. By decision dated January 19, 2007, the Office granted appellant an
additional 1 percent impairment for a total of 11 percent impairment of her right lower extremity.
Appellant, through her attorney, again requested an oral hearing. By decision dated April 11,
2007, the Branch of Hearings and Review found that there was a conflict of medical opinion
evidence between Dr. Krell and the district medical adviser regarding the interpretation of the
A.M.A., Guides and remanded the case for an additional impartial medical examination.

5

Id. at Chapter 18, Tables 18-3 through 18-7.

6

Id. at 526, Table 17-2.

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The Office referred appellant to Dr. Robert Dennis, a Board-certified orthopedic surgeon,
on May 24, 2007. In his report dated June 14, 2007, Dr. Dennis noted appellant’s history of
injury and medical history and provided findings on physical examination. He found that
appellant exhibited a normal gait, limited range of motion with only 100 degrees of flexion.
Dr. Dennis did not find effusion or patellar crepitus but noted that appellant’s surgery scars were
still tender. He found that appellant’s anterior cruciate ligament was stable. Dr. Dennis
concluded that appellant had weakness of the quadriceps and stated, “[W]e felt [this] would be
more accurately measured by measuring the girth.” He noted that the A.M.A., Guides advocated
the anatomic method and he chose atrophy as the appropriate method to determine appellant’s
permanent impairment due to quadriceps weakness as it could be measured with great accuracy.
Dr. Dennis found that appellant’s left leg measured 18 inches in circumference at 10 centimeters
above the patella, while her right leg measured 17¼ inches. He opined that appellant had 11/16
of an inch of atrophy or 1.7 centimeters atrophy of the right thigh which correlated to mild
atrophy or seven percent impairment of the lower extremity.7 Dr. Dennis concluded that
appellant had two percent impairment due to pain as the result of her hyperesthesia with pain
associated with her surgical scars. He then noted that appellant could also receive an impairment
rating for loss of motion and that 100 degrees of flexion was 10 percent impairment of the right
lower extremity.8 Dr. Dennis noted that appellant did not provide any objective studies for him
to review. He stated that he found no evidence on post-traumatic arthritis on clinical
examination. Dr. Dennis stated, “[W]e doubt if x-rays would show joint narrowing since the
patient is so very functional without crepitus.” He addressed the specific questions formulated
by the Office and found that appellant had 18 percent impairment of her right lower extremity
utilizing the Combined Values Chart. The district medical adviser reviewed this report on
July 6, 2007 and agreed with Dr. Dennis’ impairment rating. By decision dated July 20, 2007,
the Office awarded appellant a schedule award for an additional 7 percent impairment of her
right lower extremity for a total impairment rating of 18 percent.
Appellant, through her attorney, requested an oral hearing on July 25, 2007. Counsel
stated that he could not tell if Dr. Dennis was selected through the Physicians Directory System,
(PDS), he argued that Dr. Dennis’ report did not appropriately apply the A.M.A., Guides as he
compared appellant’s legs to determine atrophy and appellant had injured both legs on
November 9, 1999, that he used inches instead of centimeters and because he did not test for
motor strength deficits. He also asserted that Dr. Dennis should have provided a rating for
arthritis and failed to adequately explain his pain rating. Counsel noted that atrophy and range of
motion deficits could not be combined under the A.M.A., Guides. By decision dated June 13,
2008, the hearing representative concluded that appellant’s arguments should be addressed and
the case remanded so that Dr. Dennis could provide additional clarification of his opinion
regarding the extent of appellant’s atrophy and any arthritis resulting from her accepted
conditions. The hearing representative also directed the Office to explain the selection method
utilized to select Dr. Dennis as the impartial medical examiner.
The Office provided appellant’s attorney with a letter dated August 14, 2008 which
explained the reasons behind the use of the PDS. It also requested a supplemental report from
7

Id. at 530, Table 17-6.

8

Id. at 337, Table 17-10.

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Dr. Dennis on August 14, 2008. Dr. Dennis responded on August 19, 2008 and agreed that
under the A.M.A., Guides, range of motion and muscle atrophy should not be combined. He
found that appellant demonstrated 100 degrees of flexion on the right, 10 percent impairment
under the A.M.A., Guides and also found that appellant had additional impairment due to
sensory loss from her scars which he concluded was two percent impairment of the right lower
extremity. Dr. Dennis stated that in deference to appellant’s attorney he was excluding atrophy
from the rating as it could not be combined with range of motion impairments.
By decision dated October 9, 2008, the Office found that appellant had no more than 12
percent impairment of her right lower extremity for which she had received schedule awards.
Appellant, through her attorney, requested an oral hearing on October 15, 2008. Counsel
alleged that the Office had not provided sufficient information to establish that Dr. Dennis was
appropriately selected, instead providing general information. He alleged that Dr. Dennis should
have chosen the method of impairment rating that was most favorable to appellant rather than
choosing the method that he felt was “more easily measured” and that rather than discounting
appellant’s strength deficits entirely, Dr. Dennis should have utilized another method other than
atrophy to determine the impairment due to loss of quadriceps strength. Counsel also stated that
Dr. Dennis should have included any impairment to appellant’s calf strength. Appellant testified
that her right leg was weak and that she believed that she had arthritis.
By decision dated June 1, 2009, the hearing representative found that the Office had
selected Dr. Dennis through the PDS and that appellant had not established any error or
irregularity in his selection. The hearing representative further found that Dr. Dennis followed
the A.M.A., Guides by selecting the most appropriate method to calculate appellant’s
impairment. He further noted that, as arthritis cannot be combined with loss of range of motion,
there was at most harmless error in failing to calculate this impairment rating. The hearing
representative affirmed the Office’s October 9, 2008 decision.
LEGAL PRECEDENT
A physician selected by the Office to serve as an impartial medical specialist should be
wholly free to make a completely independent evaluation and judgment. To achieve this, the
Office has developed specific procedures for the selection of impartial medical specialists
designed to provide safeguards against any possible appearance that the selected physician’s
opinion is biased or prejudiced. The procedures contemplate that impartial medical specialists
will be selected from Board-certified specialists in the appropriate geographical area on a strict
rotating basis in order to negate any appearance that preferential treatment exists between a
particular physician and the Office.9 The Federal (FECA) Procedure Manual (the procedure
manual) provides that the selection of referee physicians (impartial medical specialists) is made
through a strict rotational system using appropriate medical directories. The procedure manual
provides that the PDS should be used for this purpose wherever possible.10 The PDS is a set of
stand-alone software programs designed to support the scheduling of second opinion and referee
9

B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009).

10

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

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examinations.11 The PDS database of physicians is obtained from the American Board of
Medical Specialties (ABMS) which contains the names of physicians who are Board-certified in
certain specialties. The Board has held that an appropriate notation should be made in the
directory when a specialist indicates his or her unwillingness to accept a case or when, for other
valid reasons it is not advisable or practicable to use his or her services.12
ANALYSIS
The Board finds that this case is not in posture for decision. The Office accepted
appellant’s claim for contusion and tear of the meniscus of the right knee and left knee strain as
well as surgery on March 2, 2000 for an anterior cruciate ligament repair and December 6, 2000
for a partial synovectomy. The most recent conflict of medical opinion arose because Dr. Krell,
a Board-certified orthopedic surgeon and impartial medical examiner, found that appellant had
22 percent impairment and offered his medical reasoning for finding this impairment rating. The
district medical adviser, Dr. Merola, a Board-certified orthopedic surgeon, disagreed with
Dr. Krell’s application of the A.M.A., Guides and found only 11 percent impairment. The
Branch of Hearings and Review found that this constituted a conflict of medical opinion
evidence and remanded for referral to an additional impartial medical examiner.
The Office selected Dr. Dennis, a Board-certified orthopedic surgeon to serve as the
impartial medical specialist. It is well established that Office procedures provide that an
impartial medical specialist must be selected from a rotational list of qualified Board-certified
specialists, including those certified by the American Medical Association and American
Osteopathic Association.13 The physician selected as the impartial specialist must be one wholly
free to make an independent evaluation and judgment. To achieve this end, the Office has
developed procedures for the selection of the impartial physician designed to provide adequate
safeguards against the appearance that the selected physician’s opinion was biased or
prejudiced.14 These procedures contemplate selection on a strict rotating basis in order to negate
any appearance that preferential treatment exists between a physician and the Office.15
Moreover, the reasons for the selection made must be documented in the case record.16
The case record before the Board does not contain any documentation from the PDS
explaining how the Office selected Dr. Dennis. The Board has found that the Office has an
obligation to ensure that the record reflects proper selection of the impartial medical examiner.17
As this record does not contain the necessary documentation, the Board finds that Dr. Dennis
11

Id. at Chapter 3.500.7 (May 2003).

12

David Peisner, 39 ECAB 1167 (1988).

13

See LaDonna M. Andrews, 55 ECAB 301 (2004).

14

See Raymond J. Brown, 52 ECAB 192 (2001).

15

See also Miguel A. Muniz, 54 ECAB 217 (2002).

16

See Federal FECA Procedure Manual, supra note 10.

17

Asghar Rowshandel, 61 ECAB ___ (Docket No 09-1566, issued June 1, 2010).

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cannot serve as the impartial medical examiner and the case must be remanded for referral to a
new properly selected physician designated to serve as the impartial medical examiner and to
resolve the existing conflict of medical opinion evidence.
On remand, the Office should request a detailed report with specific findings on every
aspect of appellant’s lower extremity previously implicated including loss of range of motion,
loss of strength, pain and loss of cartilage interval. The physician designated as the impartial
medical examiner should be properly selected through the PDS and such selection should be
properly documented. The physician should provide figures for the various methods of
evaluating appellant’s impairments including loss of strength and select the method or
combination of methods which is most favorable to appellant. After this and such other
development as the Office deems necessary, the Office should issue an appropriate decision.
On appeal appellant’s attorney alleged that the Office must prove that Dr. Dennis was
properly selected as the impartial medical adviser through the PDS. He further alleged that
Dr. Dennis’ report was not sufficiently detailed to constitute the weight of the medical opinion
evidence. Appellant’s attorney also stated that Dr. Magliato should not have reviewed
Dr. Dennis’ report as he had previously created a conflict in the record. As found in the
preceding paragraphs, the Board agrees that the proper selection of Dr. Dennis was not
adequately documented in the record to serve as the impartial medical examiner and is
remanding the case for an appropriate referral.
CONCLUSION
The Board finds that this case is not in posture for decision due to an existing conflict of
medical opinion evidence which must be resolved through a referral to a new impartial medical
examiner.

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ORDER
IT IS HEREBY ORDERED THAT the June 1, 2009 decision of Office of Workers’
Compensation Programs must be set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: August 11, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONS
COMPLEX -- CARSWELL, Fort Worth, TX,
Employer
__________________________________________

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

Docket No. 17-1050
Issued: May 21, 2018

Case Submitted on the Record

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

JURISDICTION
On April 13, 2017 appellant filed a timely appeal from an October 27, 2016 merit decision
and a February 15, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted July 16, 2013 employment incident; and (2) whether
1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its February 15, 2017 decision.
The Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

OWCP properly denied appellant’s request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 12, 2016 appellant, then a 52-year-old correctional officer, filed a traumatic injury
claim (Form CA-1) alleging that while in the performance of duty on July 16, 2013 he twisted his
right knee as he descended steps from the back of a bus and stepped down to the ground. His knee
was painful for approximately one minute, but he was then able to walk the pain off. However,
when appellant awoke on July 17, 2013, he could not stand on his right leg and experienced sharp
pain in his right knee, without swelling. He did not stop work. No evidence was received with
the claim.
By development letter dated June 21, 2016, OWCP advised appellant of the factual and
medical evidence needed to establish the claim. It requested that he respond to the questions on
an attached development questionnaire and submit medical evidence from a physician which
contained an opinion supported by a medical rationale as to how the reported work incident caused
or aggravated a diagnosed medical condition. Appellant was afforded 30 days to submit the
additional information.
In a July 12, 2016 e-mail, appellant indicated that, at the time of his incident, staff had been
instructed that, if there was no need to take time off from work, they were to report the incident to
the safety officer and write a memorandum to record the injury for later reference. In a July 17,
2013 e-mail sent to the employing establishment’s safety officer, he wrote that he was riding
shotgun in the rear of the bus on July 16, 2013. When the bus returned to the employing
establishment at approximately 2:30 p.m., appellant exited the bus by climbing down the step
ladder. As he stepped onto the ground, he somehow twisted his right knee. Appellant’s knee was
painful for a second and then he walked the pain off. On July 17, 2013 he awoke and could not
stand on his right leg for a minute or two. Appellant had very sharp pains and weakness in his
right knee, but no swelling. Once his knee warmed-up, he was able to move freely with a little
pain, but he could not twist or turn too fast.
A July 18, 2013 x-ray of appellant’s right knee was interpreted by Dr. Derek Keith Kelly,
Board certified in emergency medicine, as revealing mild degenerative changes and old
postsurgical changes in the proximal tibia.
By decision dated July 26, 2016, OWCP denied the claim. It found that appellant had
established that he was a federal civilian employee who filed a timely claim and that the injury
and/or event(s) occurred as described. However, appellant had not established the medical
component of the third basic element, fact of injury. OWCP noted that he had not submitted any
evidence which contained a medical diagnosis in connection with the accepted July 16, 2013
employment incident.
On August 16, 2016 OWCP received appellant’s August 10, 2016 request for a review of
the written record before a representative of OWCP’s Branch of Hearings and Review.

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Several photographs of a bus and a person descending from a stepladder on the back of the
bus were submitted.
By letter dated September 8, 2016, OWCP requested additional information from the
employing establishment regarding whether appellant was in the performance of duty and on the
employing establishment’s premises at the time of the claimed injury. The employing
establishment did not respond.
By decision dated October 27, 2016, an OWCP hearing representative affirmed OWCP’s
July 26, 2016 decision. She found that the medical component of fact of injury had not been
established.
In a November 22, 2016 letter, appellant requested reconsideration. He indicated that there
was a lot of confusion and miscommunication about OWCP’s request for additional information
from the employing establishment. Copies of e-mails which described the confusion/
miscommunication were included.
An October 25, 2016 memorandum to the Safety Department from Lieutenant J.P.
indicated that, on July 16, 2013, appellant was assigned to the employing establishment’s
transportation bus, which transported prisoners from Oklahoma City to Carswell.
No additional medical information was received.
By decision dated February 15, 2017, OWCP denied reconsideration, finding that the
evidence submitted was irrelevant or immaterial to the medical issue.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.6 There
are two components involved in establishing fact of injury. First, the employee must submit

3

Supra note 1

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

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sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.7
The second component is whether the employment incident caused a personal injury, which
generally can be established only by medical evidence.8 The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon complete factual and medical
background, showing causal relationship between the claimed condition and the identified factors.9
The belief of the claimant that a condition was caused or aggravated by the employment is
insufficient to establish a causal relationship.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted July 16, 2013 employment incident.
The only medical evidence appellant submitted was a July 18, 2013 x-ray of the right knee,
interpreted by Dr. Kelly which revealed mild degenerative changes and old postsurgical changes
in the proximal tibia. Medical evidence of diagnostic testing is of limited probative value as it
fails to provide a physician’s opinion on causal relationship between appellant’s work incident and
the diagnosed conditions.11 Dr. Kelly did not offer an opinion on whether the degenerative
changes and old postsurgical changes in the proximal tibia were caused or aggravated by the
accepted July 16, 2013 employment incident.12 This x-ray report is, therefore, of limited probative
value.
Further, appellant’s narrative describing the pain he experienced in his right knee is
insufficient to establish that he sustained an injury as he is a lay person and not a physician. The
Board has held that lay persons are not competent to render medical opinions.13

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

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

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

11

See M.S., Docket No. 17-1044 (issued February 2, 2018).

12

A.D., 58 ECAB 159 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
13

See James A. Long, 40 ECAB 538 (1989); see also J.D., Docket No. 15-1879 (issued February 10, 2016).

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As there is no medical evidence explaining how climbing down a stepladder on the back
of a bus and stepping onto the ground caused or aggravated appellant’s right knee condition,
appellant has not met his burden of proof to establish his claim.14
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.15 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).16
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must: (1) show
that OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.17 To be entitled to a merit review of an OWCP
decision denying or terminating a benefit, a claimant’s application for review must be received
within one year of the date of that decision.18 When a claimant fails to meet one of the above
standards, OWCP will deny the application for reconsideration without reopening the case for
review on the merits.19
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record,20 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.21

14

See J.K., Docket No. 16-1850 (issued January 9, 2017); see also K.G., Docket No. 15-1139 (issued
September 28, 2016).
15

5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
16

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

17

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

18

Id. at § 10.607(a).

19

Id. at § 10.608(b).

20

See A.L., supra note 16. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

21

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

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ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim under 5 U.S.C. § 8128(a).
In support of his November 22, 2016 reconsideration request, appellant submitted a
November 11, 2016 letter, in which he noted confusion and miscommunication concerning
OWCP’s request for additional information from the employing establishment regarding the
accepted employment incident. He merely noted initial miscommunication regarding submission
of evidence that pertained to the factual portion of his claim. However OWCP has accepted that
the employment incident occurred as alleged. The issue underlying the denial of appellant’s claim
is medical in nature - that is whether he has established a right knee condition was causally related
to the accepted employment incident. Appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. Moreover, he did not advance a relevant legal argument not
previously considered. Consequently, appellant was not entitled to a review of the merits of the
claim based on the first and second above-noted requirements under section 10.606(b).8
Appellant also submitted an October 25, 2016 memorandum from Lieutenant J.P., which
noted appellant’s assignment on the date of injury. The Board finds that submission of this
evidence does not require reopening appellant’s case for merit review as it failed to address the
underlying medical issue before OWCP.22 The evidence appellant submitted was not relevant to
the issue of causal relationship because it was not medical evidence, but was rather factual
information.23 The evidence, therefore, is insufficient to require merit review of the claim. The
Board thus finds that this evidence does not constitute relevant and pertinent new evidence.
Therefore, this evidence is insufficient to require OWCP to reopen appellant’s claim for
consideration of the merits.24
Appellant failed to show that OWCP erroneously applied or interpreted a specific point of
law, or advanced a relevant legal argument not previously considered by OWCP. Because he did
not submit relevant and pertinent new evidence with his request for reconsideration, the Board
finds that he did not meet any of the necessary requirements and is not entitled to further merit
review.25
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted July 16, 2013 employment incident. The Board further
finds that OWCP properly denied appellant’s request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

22

Id. See also G.W., Docket No. 16-0517 (issued April 27, 2016).

23

See D.A., Docket No. 17-0535 (issued June 27, 2017).

24

Id.

25

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

6

ORDER
IT IS HEREBY ORDERED THAT the February 15, 2017 and October 27, 2016
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 21, 2018
Washington, DC

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

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

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

7


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

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-946
Issued: December 23, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 14, 2014 appellant, through his attorney, filed a timely appeal from a
December 18, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits on April 27, 2012; and (2) whether appellant established that he had
disability caused by residuals of his accepted right shoulder condition after April 27, 2012.
FACTUAL HISTORY
Appellant, a 39-year-old part-time flexible clerk, has an accepted occupational disease
claim for a right shoulder tendinitis condition causally related to his employment. He became

1

5 U.S.C. § 8101 et seq.

aware of his condition on October 12, 1984.2 OWCP accepted the claim for aggravation of right
shoulder calcifying tendinitis. Appellant stopped work as of March 1, 1985 and was placed on
the periodic rolls in receipt of compensation for total disability.3
The record reflects that appellant returned to work based on a June 13, 1986 limited-duty
job offer but was unsuccessful due to his service-connected disability. He subsequently stopped
work on July 24, 1987 and was referred for vocational rehabilitation. Appellant found work
earning $85.00 a week in self-employment transporting juvenile offenders for local courts. He
subsequently received compensation based on his actual earnings; but no formal wage-earning
capacity determination was issued. In January 1992, appellant notified OWCP that he no longer
had any earnings from self-employment. He was returned to the periodic rolls.
Appellant was referred to vocational rehabilitation for job placement assistance that was
unsuccessful. Based on his physical limitations, the rehabilitation specialist determined that he
had the capacity to earn $5.44 an hour as a bookkeeper. In an August 11, 1993 decision, OWCP
reduced appellant’s monetary compensation finding that he had the capacity to earn hourly
wages of $5.44 as a bookkeeper.4
The record contains progress notes from Dr. Nancy Erickson, an osteopath and attending
physician. On September 6, 2011 she stated that appellant had been a patient since March 2003.
Dr. Erickson noted that he presented with pain in the neck that radiated up to the forehead on the
left side and also had bilateral shoulder pain. Appellant had a cervical epidural on
August 10, 2011. Dr. Erickson diagnosed cervical radiculopathy and noted that he had disabling
chronic pain secondary to that diagnosis.
In order to determine appellant’s current condition and whether he had residuals of his
accepted right shoulder condition, OWCP referred him for a second opinion examination to
Dr. Brad K. Cohen, Board-certified in orthopedic surgery.
In an October 26, 2011 report, Dr. Cohen reviewed appellant’s history of employment
and the claim accepted for aggravation of right shoulder calcifying tendinitis. He reviewed
appellant’s medical treatment and history of surgery, noting appellant first injured his right
shoulder in 1967 while in Viet Nam. Appellant stated that he continued to have symptoms of
right shoulder pain. In addition, Dr. Erickson was treating him for cervical and lumbar
degenerative disc disease with radiculopathy and had undergone cervical epidurals. On
examination, cervical motion was limited in all planes with discomfort. There was no atrophy on
review of both upper extremities; sensation was subjectively diminished in the left radial and
medial nerve distribution, medial and lateral forearm, but otherwise grossly intact in the ulnar
nerve distribution. Sensation was grossly intact throughout the right upper extremity in the
2

The record reflects that appellant has a right shoulder service-connected disability for traumatic bursitis based
on service in Viet Nam. He also has a service-connected 30 percent disability for a psychoneurotic reaction, anxiety
type.
3

On September 9, 1985 appellant underwent a right arthroscopic procedure with debridement of a torn
subscapularis tendon and partial synovectomy with debridement of the rotator cuff. He subsequently received
schedule awards totaling 32-percent impairment of his right upper extremity.
4

There was no appeal sought from the 1993 wage-earning capacity determination.

2

radial, medial and ulnar nerve distribution, medial, and lateral forearm. There was intact motor
function. There was some tenderness to palpation at the right shoulder in the anterolateral soft
tissue adjacent to the acromion. There was positive impingement signs on the right much greater
than the left, mild pain and minimal weakness with rotator cuff tendon testing, and good strength
present with external rotation from the abducted position. Full pain-free finger, hand, wrist, and
elbow motion was present.
Dr. Cohen obtained x-rays of the right shoulder which revealed no fracture, dislocation,
or other boney lesions. The glenohumeral joint was well preserved. Mild greater tuberosity
sclerosis was noted with no soft tissue calcifications and mild acromioclavicular joint
degenerative changes. A right shoulder arthrogram obtained in 1985 showed no evidence of a
rotator cuff tear while a 2007 magnetic resonance imaging (MRI) scan noted tendinopathy of the
infraspinatus and supraspinatus tendons with irregularity and a low-grade partial tear along the
bursal surface of the supraspinatus near the insertion. The subscapular is and minor tendons
were unremarkable and the biceps tendon in normal position and appearance. A 2010 study
noted biceps tenosynovitis without a tear and acromioclavicular joint hypertrophy.
Dr. Cohen advised that the accepted aggravation of right shoulder tendinitis had resolved.
He found no objective evidence of a permanent worsening of appellant’s right shoulder condition
as a result of the accepted work injury. There was no rotator cuff tear present in the right
shoulder. Dr. Cohen stated that the accepted aggravation of appellant’s preexisting right
shoulder condition resolved within one year of his surgery. Appellant’s ongoing symptoms were
secondary to the preexisting condition and radicular pain from his cervical spine. To address
appellant’s work capacity, Dr. Cohen ordered a functional capacity evaluation to determine if
appellant could return to work at his date-of-injury job as a part-time flexible clerk. He noted
that the physical requirements of appellant’s date-of-injury position, as a part-time flexible clerk,
required that he work 10-hour shifts, from 2 to 6 days per week, lifting up to 70 pounds,
unloading trucks, pushing, pulling, and carrying heavy loads. Appellant was required to lift trays
of letters weighing up to 16 pounds and bags of mail up to 70 pounds, lifting his right arm above
the shoulder about one third of the time.
In a November 10, 2011 addendum report, Dr. Cohen reviewed the results of a
November 7, 2011 functional capacity test. He stated that the study was negative for pain
behavior; but maximum effort was not given. Appellant did not demonstrate maximal effort
during testing which was necessary for overall consistency. For this reason, his test did not
provide an accurate indication of his physical capabilities. Dr. Cohen noted that appellant’s
condition was accepted for aggravation of right shoulder calcifying tendinitis. He reiterated that
appellant’s accepted condition had resolved within a year from surgery. Appellant was currently
capable of functioning at a sedentary level, and did not meet the job requirements for his date-ofinjury position as a part-time flexible clerk.
On March 21, 2012 OWCP issued a notice of proposed termination of compensation. It
found that the weight of the medical opinion was represented by Dr. Cohen and established that
the accepted aggravation of appellant’s right shoulder condition had resolved within one year of
surgery. Further, Dr. Cohen found that the ongoing shoulder condition was related to his
preexisting service-connected disability and cervical degenerative disease with radiculopathy.

3

By decision dated April 27, 2012, OWCP terminated appellant’s compensation, finding
that Dr. Cohen’s second opinion represented the weight of the medical evidence.
On May 4, 2012 appellant requested an oral hearing, which was held on
September 18, 2012.
In a July 27, 2012 report, Dr. Erickson opined that appellant had not made a full recovery
from the 1984 work-related right shoulder injury, which led to arthroscopic surgery and
debridement in 1985. Since that time, appellant had not returned to full duty and had not fully
recovered. Dr. Erickson examined appellant on April 9, 2012 at which time he demonstrated
decreased range of motion of the right shoulder and a loss of motor function. An MRI scan of
July 10, 2010, showed calcification tendinitis of the right shoulder. Dr. Erickson advised that
appellant was not able to perform his date-of-injury job, had continuing range of motion deficits
with weakness and a supportive MRI scan, and had not made a full recovery from the 1984 work
injury.
In a November 26, 2012 report, Dr. Erickson related that appellant was experiencing pain
in his head, neck, and right shoulder. She advised that medication and rest reduced the pain
somewhat. Dr. Erickson recommended that appellant undergo a course of physical therapy. She
diagnosed cervical and lumbar radiculopathy and prescribed a cervical epidural steroid injection.
By decision dated December 6, 2012, an OWCP hearing representative set aside the
April 27, 2012 decision. He found that, the April 27, 2012 decision was proper at the time it was
issued; however, Dr. Erickson’s July 27, 2012 report created a conflict in the medical opinion
with Dr. Cohen as to whether appellant had residuals of his accepted right shoulder condition or
disability. The hearing representative remanded the case for referral of appellant to an impartial
medical examiner.
In a December 21, 2012 report, Dr. Erickson stated that on examination appellant was
experiencing bilateral shoulder, lower back, and neck pain. She advised that he had been
prescribed medication and had undergone physical therapy to partially ameliorate his symptoms.
Appellant was referred to Dr. Stephen J. Jacobs, a Board-certified orthopedic surgeon, for
a referee medical examination. In a March 18, 2013 report, Dr. Jacobs reviewed the history of
injury and medical treatment. He noted that appellant had problems with his right shoulder since
the 1960’s. While appellant sustained an injury at work on October 12, 1984, this was at most a
partial tear of the superior aspect of the subscapularis. Currently, there was no evidence of
tearing of the infraspinatus or supraspinatus tendons and the labrum was intact. Dr. Jacobs stated
that an arthroscopic debridement, which appellant underwent in 1985, would not be expected to
produce the severe disability of which he continued to complain.
Examination of the right shoulder showed the absence of edema, no erythema and no
deformity; however, appellant was tender everywhere the physician touched his shoulder,
including the acromioclavicular joint and anterior shoulder girdle, laterally and posterolaterally.
The right shoulder had a negative impingement sign and negative apprehension sign. On range
of motion testing with resistance, appellant demonstrated normal strength, albeit with complaint
of pain.

4

Dr. Jacobs advised that despite the passage of 28 years since his right shoulder surgery,
the x-ray of appellant’s right shoulder was essentially identical to that of the left shoulder, save
for the slightly narrowed acromiohumeral distance shown on film. He opined that this was likely
due, more than anything else, to limited use and subsequent atrophy in terms of the strength of
the supraspinatus and infraspinatus, i.e. the strength of the rotator cuff muscles. Based on the
diagnostic studies, Dr. Jacobs agreed with Dr. Cohen that there was no objective evidence of a
permanent worsening of appellant’s right shoulder as a result of the 1984 work injury, other than
the limited use over 28 years which resulted in some internal atrophy. He agreed with Dr. Cohen
that appellant’s accepted aggravation of the right shoulder resolved within one year of his 1985
surgery. Dr. Jacobs concluded that appellant’s ongoing symptoms were due to a combination of
his preexisting right shoulder condition in addition to referred radicular pain from the cervical
spine. He stated that one could not discount appellant’s emotional state and other multiple
nonrelated health problems, including his headaches, cervical radiculopathy, and lumbar
radiculopathy.
By decision dated April 25, 2013, OWCP found that appellant was not entitled to
compensation after April 27, 2012, the date his benefits were terminated. The weight of the
medical evidence as represented by Dr. Jacobs established that the accepted aggravation of right
shoulder calcifying tendinitis had resolved.
On April 30, 2013 appellant, through his attorney, requested an oral hearing, which was
held on October 25, 2013.
By decision dated December 18, 2013, an OWCP hearing representative affirmed the
April 25, 2013 decision.5 The hearing representative found that appellant’s benefits were
properly terminated as of April 27, 2013 and he failed to establish continuing residuals of his
accepted right shoulder condition.
LEGAL PRECEDENT – ISSUE 1
Once OWCP accepts a claim, it has the burden of proving that the accepted condition has
resolved in order to justify termination or modification of compensation benefits.6 The burden of
proof on OWCP includes the necessity of furnishing rationalized medical opinion evidence
which is based upon a proper factual and medical history.7
In assessing medical evidence, the weight of a physician’s opinion is determined by its
reliability, the opportunity for and thoroughness of the examination, the accuracy and
completeness of the physician’s knowledge of the facts and medical history, and the care

5

The hearing representative incorrectly stated that appellant’s compensation benefits were terminated on
April 25, 2013. In this case, compensation benefits were terminated on April 27, 2012 and appellant received
benefits through May 5, 2012. In the April 25, 2013 decision, OWCP determined that he had not established
continuing disability after April 27, 2012.
6

Mohamed Yunis, 42 ECAB 325, 334 (1991).

7

J.M., 58 ECAB 478 (2007).

5

manifested in the medical rationale expressed to support the physician’s opinion on causal
relationship.8
ANALYSIS – ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation based upon the reports of Dr. Cohen, the second opinion physician.
OWCP referred appellant to Dr. Cohen for a second opinion evaluation to determine
appellant’s current condition, after Dr. Erickson, his attending physician, submitted reports
which addressed treatment of his cervical degenerative disease, rather than the accepted
aggravation of appellant’s right shoulder calcifying tendinitis condition. In reports dated
October 26 and November 10, 2011, Dr. Cohen provided a thorough review of appellant’s prior
history of right shoulder injury while in Viet Nam, the employment-related condition arising in
1984, medical treatment, and diagnostic studies. He noted that the claim was accepted for an
aggravation of calcifying tendinitis in the right shoulder for which appellant underwent surgery
on September 9, 1985. Dr. Cohen provided findings on physical examination and compared
diagnostic tests obtained in 1987, 2007 and 2010. He found that the accepted aggravation of
appellant’s right shoulder condition resolved within one year of surgery in 1985. Dr. Cohen
found no objective evidence of a permanent worsening of appellant’s right shoulder as a result of
the accepted employment injury. He attributed appellant’s ongoing complaints as secondary to
the preexisting service-connected shoulder condition and to radicular pain associated with
appellant’s cervical degenerative disc disease. Dr. Cohen referred appellant for a functional
capacity evaluation, which he noted did not demonstrate maximal effort. He reiterated that
appellant’s employment-related aggravation ceased following one year surgery and that
appellant’s current level of functioning was due to his preexisting right shoulder and cervical
conditions.
The Board finds that the reports of Dr. Cohen represent the weight of medical opinion
and support the termination of appellant’s benefits as of April 27, 2012. As noted, Dr. Cohen
provided a comprehensive review of appellant’s medical history, including the service-connected
injury to his right arm while in Viet Nam. He addressed the medical reports of record and
compared the diagnostic tests, which he explained did not support a permanent aggravation of
appellant’s preexisting right shoulder condition. Further, Dr. Cohen referred appellant for
additional functional capacity testing, which he noted did not support maximal effort. He
attributed appellant’s ongoing right shoulder condition to the preexisting service-connected
injury in the 1960’s and cervical disc disease; Dr. Cohen found that the aggravation in 1984 had
resolved after one year following surgery on September 9, 1985.
LEGAL PRECEDENT -- ISSUE 2
Whether OWCP met its burden of proof to terminate compensation benefits, the burden
of proof shifted to the claimant to establish that any subsequent disability is causally related to
the accepted employment injury.9
8

See Michael E. Mina, 57 ECAB 379 (2006); Anna C. Leanza, 48 ECAB 115 (1996).

9

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

6

It is well established that when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict in medical evidence; the opinion of such physician is given
special weight if sufficiently well rationalized and based on a proper factual and legal
background.10
ANALYSIS -- ISSUE 2
After terminating appellant’s benefits based upon Dr. Cohen’s reports, appellant
submitted additional evidence from Dr. Erickson. OWCP determined that a conflict in medical
opinion arose between Dr. Erickson and Dr. Cohen to whether appellant had continuing residuals
and disability after April 27, 2012 causally related to her accepted right shoulder aggravation.
Appellant was referred by OWCP to Dr. Jacobs for an impartial medical evaluation.
In a March 18, 2013 report, Dr. Jacobs reviewed the history of appellant’s right shoulder
injury while in Viet Nam, the employment injury of 1984 and surgery performed in 1985. He
noted that appellant was also treated for his cervical spine, for which he had several epidural
injections which provided little relief. Dr. Jacobs set forth findings on physical examination of
the cervical spine and upper extremities, including findings on range of motion. He noted that,
as to the right shoulder, appellant was tender everywhere examined. There was negative
impingement testing. Dr. Jacobs reviewed diagnostic studies of record and noted that an
October 9, 2010 cervical MRI scan showed a congenital fusion at C5-6. At C3-4 there was a
disc bulge with osteophytic ridging on the left. At C4-5, there was some disc bulging with
annular tearing, right greater than left. Dr. Jacobs obtained x-rays of the right shoulder, which
revealed a nicely maintained acromioclavicular joint, with little difference in the right
acromioclavicular joint when compared to the left. The glenohumeral joint was well maintained
while the subacromial space was somewhat narrowed on the right when compared to the left.
Dr. Jacobs provided a lengthy review of appellant’s treatment records, noting multiple cervical
epidural injections by Dr. Erickson from 2003 to 2011. He also reviewed the reports of
Dr. Cohen and the functional capacity evaluation. Dr. Jacobs stated that he agreed with
Dr. Cohen that appellant’s continued right shoulder symptoms were a combination of his
preexisting injury while in military service as well as radicular pain associated with the cervical
spine. He stated that there was no objective evidence that the 1984 work injury caused a
permanent worsening of appellant’s right shoulder condition. Dr. Jacobs found that the residuals
related to appellant’s 1984 injury had resolved within one year of surgery in 1985. He noted that
there were other orthopedic conditions involving the cervical and lumbar spine, which prevented
appellant from performing the full duties of his date-of-injury job.
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.11
The Board finds that the weight of medical opinion as to appellant’s right shoulder
condition after April 27, 2012 is represented by the report of Dr. Jacobs, the impartial medical
specialist. He provided a report which thoroughly reviewed appellant’s history of injury while in
10

See Phillip H. Conte, 56 ECAB 213 (2004).

11

5 U.S.C. § 8123.

7

the military in the 1960’s and in civilian service in 1984. Dr. Jacobs set forth an extensive
review of appellant’s medical history, treatment and diagnostic testing. Based on his physical
examination, Dr. Jacobs determined that appellant’s ongoing right shoulder symptoms related to
the preexisting service-connected injury and cervical degenerative disc disease. He found that
residuals related to appellant’s 1984 injury resolved one year following surgery in 1985.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate compensation benefits
as of April 27, 2012 based on the medical reports of Dr. Cohen, a second opinion specialist.
Appellant did not meet his burden of proof to establish based on the weight of medical opinion
as represented by Dr. Jacobs, the impartial medical specialist.
ORDER
IT IS HEREBY ORDERED THAT the December 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 23, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Waterford, MI, Employer
__________________________________________

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

Docket No. 07-2118
Issued: February 6, 2008

Case Submitted on the Record

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

JURISDICTION
On August 15, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 9, 2007 denying her claim for compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has established an emotional or physical condition
causally related to compensable work factors.
FACTUAL HISTORY
On June 21, 2006 appellant, then a 55-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained “nerves (shingles related)” as a result of her work
environment. She submitted a June 27, 2006 statement indicating that she began working at the
Waterford Annex in 1992, worked for two years, then returned to the site in approximately 1996.
Appellant stated that there was “a problem with the conversations coming from the 48329 unit”

and when she returned “they seemed louder and more sexually oriented than before.” According
to her, it was tolerable until Derek Hightower moved the rural carriers to the aisle next to the
48329 unit. Appellant stated that six months later she asked Mr. Hightower to move her case
and was told he was working on it. She indicated that she used earplugs. As to the content of
the conversations she overheard, appellant submitted brief notes such as “They’re all blondes at
heart (women),” “She brought up the ‘washing machine’ (sexual innuendo),” “You’re no longer
wanted in my ‘unit’.” In a separate statement dated July 28, 2006, appellant alleged that
Mr. Hightower left a letter in the copy machine stating that he saw appellant shopping after filing
her claim.
Appellant submitted a July 7, 2007 statement from Denise Harris, a coworker, who stated
that she retired in 2004 and was aware of the “on going situation” at Waterford Annex and it was
disturbing to have to deal with some of the conversations in the 48329 unit. In an undated
statement, Joe Talbot, another coworker, reported the postmaster in 1992 would “never try to
stop the foul sex talk and personal attacks.” He stated that he had seen appellant upset and
crying because of the behavior on the workroom floor.
The employing establishment submitted statements from supervisors Leslie M.
Champagne, Oscar L. Naylor and Heather Kaminiski that appellant had not mentioned any
problems prior to the filing of the claim. The record also contains a July 26, 2006 letter from
Mr. Hightower stating that appellant had a poor attendance record and two days after filing her
claim he observed her shopping.
By decision dated August 17, 2006, the Office denied the claim for compensation. The
Office determined that appellant had not established any compensable work factors.
Appellant requested an oral hearing before an Office hearing representative, which was
held on February 20, 2007. She indicated that she heard the use of profanity and was subject to
sexual harassment as a result of being exposed to sexual comments. The hearing representative
inquired about personal attacks, appellant stated that one of them walked by her without turning
and said you better watch your back.
Additional evidence was submitted at the hearing. A statement dated August 29, 2006
from Vicki S. Quinn, a former coworker, stated that prior to her retirement in 1998 she heard
undesirable conversations on a daily basis. Appellant also submitted a settlement agreement
dated August 28, 2006 with respect to a grievance. The settlement stated that the employing
establishment was responsible for preventing sexual harassment and inappropriate behavior. In
addition, management was responsible to investigate complaints and would be tasked on the
movement of the cases of the rural carriers.
By decision dated May 9, 2007, the hearing representative affirmed the August 17, 2006
decision. The hearing representative found no compensable work factors had been established.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or adversely

2

affected by factors of her federal employment.1 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.3
With respect to a claim based on harassment or discrimination, the Board has held that
actions of an employee’s supervisors or coworkers which the employee characterizes as
harassment may constitute a factor of employment giving rise to a compensable disability under
the Act. A claimant must, however, establish a factual basis for the claim by supporting the
allegations with probative and reliable evidence.4 An employee’s allegation that he or she was
harassed or discriminated against is not determinative of whether or not harassment occurred.5
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.6 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.7
ANALYSIS
The initial question presented is whether appellant has established compensable work
factors with respect to her claim. Her primary allegation is that she was subject to sexual
harassment in being exposed to conversations by other workers which she overheard and
described as sexually oriented. It is not clear whether she filed a complaint with the Equal
Employment Opportunity Commission or other administrative agency, as there is no evidence of
1

Pamela R. Rice, 38 ECAB 838 (1987).

2

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

3

Lillian Cutler, 28 ECAB 125 (1976).

4

Gregory N. Waite, 46 ECAB 662 (1995); Barbara J. Nicholson, 45 ECAB 803 (1994).

5

Helen P. Allen, 47 ECAB 141 (1995).

6

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

7

Margreate Lublin, 44 ECAB 945, 956 (1993).

3

record in this regard. She did file a grievance that the employing establishment failed to provide
a nonabusive environment. The settlement agreement did not provide any admission or
acknowledgment of sexual harassment or error by the employing establishment.
As noted, there must be probative and reliable evidence sufficient to establish a claim
based on harassment. The conversations which appellant overheard were apparently not directed
at appellant herself. She referred briefly to an incident in which someone told her to watch her
back, without providing further detail. With respect to specific statements of a sexual nature,
there was no corroborating evidence presented. None of the witnesses provided any specific
information regarding the allegations. Witness accounts that do not provide a detailed
description of the specific statements made are of limited probative value.8
It is evident that appellant regarded the conversations she overheard as inappropriate.
But not every statement that is uttered in the workplace and which some might find objectionable
is sufficient to establish a compensable work factor.9 In addition, there must be a sufficient
factual basis for the Office to have a clear understanding of what was said, when it was said and
by whom, in order to make a proper determination as to whether there is a compensable work
factor based on harassment or verbal abuse. Appellant did not identify any of the individuals
making the alleged remarks, the dates on which such comments were made or provide other
relevant details. In this case the evidence of record is not of sufficient probative value to
establish a compensable work factor.
To the extent that appellant alleges stress from the failure to the employing establishment
to move her case, this is an administrative matter and would be compensable only if error or
abuse is shown. The evidence does not establish error or abuse in an administrative matter.
Appellant also referred to Mr. Hightower leaving a copy of his July 26, 2006 letter at the copy
machine, but the allegation does not establish error or abuse.
The Board therefore finds that there are no compensable work factors substantiated by
the evidence of record. The evidence does not establish that appellant was subject to sexual
harassment or verbal abuse, nor is there evidence of administrative error or abuse. Since
appellant has not established a compensable work factor, the Board will not address the medical
evidence.10
CONCLUSION
The evidence of record does not substantiate a compensable work factor, and therefore
appellant did not meet her burden of proof to establish an injury in the performance of duty.

8

See Joe M. Hagewood, 56 ECAB 479 (2005); Donney T. Drennon-Gala, 56 ECAB 469 (2005).

9

See Charles D. Edwards, 55 ECAB 258 (2004).

10

See Margaret S. Krzycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 9, 2007 and August 17, 2006 are affirmed.
Issued: February 6, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Page, AZ,
Employer
__________________________________________
Appearances:
Steven E. Brown, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 14-480
Issued: October 23, 2014

Case Submitted on the Record

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

On December 31, 2013 appellant filed an application for review of an Office of Workers’
Compensation Programs’ (OWCP) decision dated December 16, 2013, which affirmed the
June 7, 2013 OWCP decision finding that the position of information clerk fairly and reasonably
represented appellant’s wage-earning capacity.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. Following the June 7, 2013
decision that found that the position of information clerk fairly and reasonably represented
appellant’s wage-earning capacity, appellant’s representative requested an oral hearing.
Appellant subsequently submitted new reports from Dr. Michael Demangone, Board-certified in
emergency medicine, dated July 8 and September 6, 2013. OWCP received these reports on
October 21, 2013. In the December 16, 2013 decision, an OWCP hearing representative
affirmed the June 7, 2012 decision finding that the position of information clerk fairly and
reasonably represented appellant’s wage-earning capacity. She referenced reports of a second
opinion physician and noted that there were no current medical reports from a treating physician.
1

41 ECAB 548 (1990).

The hearing representative did not consider the July 8 or September 6, 2013 reports from
Dr. Demangone.
For this reason, the case will be remanded to OWCP to enable it to properly consider all
the evidence submitted prior to the issuance of the December 16, 2013 decision. Following this
and such further development as OWCP deems necessary, it shall issue an appropriate merit
decision.
IT IS HEREBY ORDERED THAT the December 16, 2013 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded to OWCP for further
proceedings consistent with this order.
Issued: October 23, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2345
Issued: March 10, 2008

Case Submitted on the Record

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

JURISDICTION
On September 17, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 5, 2007 merit decision denying her claim for employmentrelated occupational injuries other than those accepted for her left shoulder. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
medical condition, other than the accepted conditions of left shoulder adhesive capsulitis and
tendinitis, due to her federal employment.
FACTUAL HISTORY
On July 6, 2006 appellant, then a 62-year-old mail carrier, filed a claim alleging that she
sustained a left shoulder injury due to repetitive duties of her job.1 She indicated that working
1

This claim bears the file number 03-2049956.

with central-markup and return-to-sender mail required repetitive placement of mail into trays.2
Appellant first became aware of her claimed condition on April 2, 2006 and first realized on
May 2, 2006 that is was employment related.3 She stopped work on June 14, 2006.
On June 13, 2006 Dr. Mark P. Brigham, an attending Board-certified orthopedic surgeon,
stated that appellant reported having left shoulder pain for three or four months which she felt
might have been caused by sorting mail. He diagnosed left shoulder tendinitis. On July 5, 2006
Dr. Julie Anne Hlavac, an attending Board-certified family practitioner, indicated that appellant
had severe left rotator cuff tendinitis. The findings of a June 7, 2006 magnetic resonance
imaging (MRI) scan showed left rotator cuff tendinitis.
In a September 25, 2006 decision, the Office denied appellant’s claim on the grounds that
she did not submit sufficient medical evidence to establish that she sustained an employmentrelated left shoulder condition.
On October 4, 2006 Dr. Hlavac stated that, when she first saw appellant on May 2, 2006
she reported having left shoulder symptoms for a month. She stated that examination showed
limited range of left shoulder motion and that the June 7, 2006 MRI scan supported her diagnosis
of left shoulder adhesive capsulitis and rotator cuff tendinitis. Dr. Hlavac stated, “Rotator cuff
tendinitis is caused by repetitive motion which has been a large part of appellant’s job at the
employing establishment. For this reason, I believe her injury was caused by her job. Adhesive
capsulitis occurred as a result of immobility from the severe pain.”
In a June 1, 2007 report, Dr. Richard I. Zamarin, an attending Board-certified orthopedic
surgeon, provided a detailed description of appellant’s employment injuries, (including her
July 16 and October 3, 1988 injuries) and appellant’s job duties over the years, particularly her
work since 2003 with central-markup, computer-forwarding-services and return-to-sender mail.4
He indicated that appellant complained of neck pain and stiffness, headaches, right arm pain,
numbness in the fourth and fifth digits of each hand, left shoulder pain, low back pain radiating
2

Appellant submitted statements in which she provided more details regarding her work duties. She indicated
that she collected computer-forwarding-services mail from the throw table and transported it to her workstation,
arranged the mail in alphabetical order, searched for customer information which required flipping through many
pages of printouts and then placed the mail into trays. Appellant stated that processing return-to-sender mail
required retrieving mail, tearing apart accordion or pleated sheets of paper, placing labels on mail and placing mail
into trays. She indicated that she performed such repetitive duties throughout her workday.
3

The record contains a statement of accepted facts which includes a detailed description of appellant’s
employment injuries and work duties. The Office accepted that on July 16, 1988 appellant sustained a herniated
nucleus pulposus at L5 and lumbosacral strain/sprain with sciatica due to lifting mail from a hamper and that on
October 3, 1988 she sustained a cervical strain with a radicular component due to lifting stacks of magazines and
placing them on a table. The claims for these injuries bear the file number 03-0134745. Beginning in late 2003,
appellant performed work duties which included handling central-markup, computer-forwarding-services, and
return-to-sender mail. These duties collectively required numerous repetitive motions, including answering
telephones, reaching to lift mail (letters, flats, magazines and small parcels), sorting mail, placing mail in trays or
cases, pushing mail carts, flipping through a large printouts, tearing labels off their backings and placing labels on
mail. She often had to reach to floor level to lift mail or place it down.
4

Dr. Zamarin’s description of appellant’s employment injuries and work duties appears to have been based on the
detailed statement of accepted facts contained in the record.

2

into her right leg and foot, right foot numbness and left knee pain. Dr. Zamarin indicated that on
examination she exhibited neck, left shoulder and lower back tenderness on palpation. He
discussed appellant’s diagnostic testing results which showed long-standing degenerative neck
and back conditions and stated that “based on a reasonable degree of medical certainty, as a
result of the work-related injuries and jobs over the years at the [employing establishment]”
appellant had sustained aggravation of degenerative disc disease of the cervical spine and
chronic pain syndrome of the cervical spine, aggravation of degenerative disc disease of the
lumbar spine and right-sided disc herniation at L4-5 and chronic pain syndrome of the lumbar
spine, bilateral cubital tunnel syndrome, right thoracic outlet syndrome and left shoulder rotator
cuff tendinitis and adhesive tendinitis. Regarding the causes of the above-listed conditions,
Dr. Zamarin stated:
“I believe this because of the specific injuries that [appellant] had, as well as the
nature of her work. In July of 1988, she was lifting mail to load a jeep and pulled
her lower back. That has persisted. [Appellant] then went on to develop neck
problems. In October of 1988, she was moving magazines while at work.
[Appellant] continued to do different modified jobs at work, stamping mail,
sorting mail, answering [tele]phones, all of which I believe contributed to her
bilateral cubital syndrome and right thoracic outlet syndrome. I also believe[,]
based upon a reasonable degree of medical certainty, that this [is] why she went
on to develop a herniated disc in the lower back at L4-5. These diagnoses are all
associated with lifting, twisting and bending type of injuries, as well as repetitive
injuries that can occur in a workplace.
On July 17, 2007 appellant requested reconsideration of the Office’s September 25, 2006
decision.
In a September 5, 2007 decision, the Office set aside the September 25, 2006 decision
and accepted that appellant sustained employment-related left shoulder adhesive capsulitis and
tendinitis.5 The Office determined that appellant had not established that she sustained
aggravation of degenerative disc disease of the cervical spine, chronic pain syndrome of the
cervical spine, aggravation of degenerative disc disease of the lumbar spine and right-sided disc
herniation at L4-5, chronic pain syndrome of the lumbar spine, bilateral cubital tunnel syndrome
and right thoracic outlet syndrome due to the same factors that she claimed caused her left
shoulder condition.
LEGAL PRECEDENT
An employee who claims benefits under the Federal Employees’ Compensation Act6 has
the burden of establishing the essential elements of her claim.7 The claimant has the burden of
establishing by the weight of reliable, probative and substantial evidence that the condition for
5

The Office based its acceptance of these conditions on the opinions of Dr. Zamarin and Dr. Hlavac.

6

5 U.S.C. §§ 8101-8193.

7

Ruthie Evans, 41 ECAB 416, 423-24 (1990); Donald R. Vanlehn, 40 ECAB 1237, 1238 (1989).

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which compensation is sought is causally related to a specific employment incident or to specific
conditions of the employment. As part of this burden, the claimant must present rationalized
medical opinion evidence, based upon a complete and accurate factual and medical background,
establishing causal relationship.8 However, it is well established that proceedings under the Act
are not adversarial in nature, and while the claimant has the burden to establish entitlement to
compensation, the Office shares responsibility in the development of the evidence.9
ANALYSIS
In a September 5, 2007 decision, the Office accepted that appellant sustained left
shoulder adhesive capsulitis and tendinitis due to her repetitive work duties prior to mid 2006.
The Office denied that she sustained aggravation of degenerative disc disease of the cervical
spine, chronic pain syndrome of the cervical spine, aggravation of degenerative disc disease of
the lumbar spine and right-sided disc herniation at L4-5, chronic pain syndrome of the lumbar
spine, bilateral cubital tunnel syndrome and right thoracic outlet syndrome due to the same
factors that she claimed caused her left shoulder condition.
The Board notes that, while the June 1, 2007 report of Dr. Zamarin, an attending Boardcertified orthopedic surgeon, is not completely rationalized, it contains an opinion that appellant
sustained employment-related occupational injuries to her neck, back and arms (other than her
already accepted left shoulder injuries)10 and is not contradicted by any substantial medical or
factual evidence of record.11 Dr. Zamarin based his opinion on a complete and accurate factual
and medical history as his description of appellant’s employment injuries and work duties
appears to have been based on a detailed statement of accepted facts contained in the record. He
also provided a detailed account of the findings on examination and diagnostic testing.
Therefore, while Dr. Zamarin’s report is not sufficient to meet appellant’s burden of proof to
establish her claim, it raises an uncontroverted inference between her work duties and the above
described conditions (other than her already accepted left shoulder injuries) affecting her neck,
back and arms and are sufficient to require the Office to further develop the medical evidence
and the case record.12
For these reasons, the case will be remanded to the Office for further development
regarding whether appellant sustained a medical condition, other than the accepted conditions of
left shoulder adhesive capsulitis and tendinitis, due to performing her job duties over time prior

8

Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).

9

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

10

The Board notes that the Office based its acceptance of appellant’s left shoulder injuries on this report of
Dr. Zamarin and an October 4, 2006 report of Dr. Hlavac, an attending family practitioner.
11

Dr. Zamarin indicated that the repetitive lifting, bending and twisting caused or contributed to aggravation of
appellant’s degenerative disc disease of the cervical spine, chronic pain syndrome of the cervical spine, aggravation
of degenerative disc disease of the lumbar spine and right-sided disc herniation at L4-5, chronic pain syndrome of
the lumbar spine, bilateral cubital tunnel syndrome and right thoracic outlet syndrome.
12

See Robert A. Redmond, 40 ECAB 796, 801 (1989).

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to mid 2006. After such development as it deems necessary, the Office will issue an appropriate
decision regarding this matter.
CONCLUSION
The Board finds that the case is not in posture regarding whether appellant met her
burden of proof to establish that she sustained a medical condition, other than the accepted
conditions of left shoulder adhesive capsulitis and tendinitis, due to performing her job duties
over time prior to mid 2006. The case will be remanded to the Office for further development.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 5, 2007 decision is set aside. The case is remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: March 10, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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