United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, OFFICE OF THE
INSPECTOR GENERAL, Los Angeles, CA,
Employer
__________________________________________
Appearances:
Lawrence Berger, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-1687
Issued: August 26, 2011

Case Submitted on the Record

ORDER REVERSING CASE
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On June 8, 2010 appellant, through his attorney, timely sought appeal from a
September 10, 2009 decision of the Office of Workers’ Compensation Programs (OWCP)
affirming the termination of his compensation benefits on the grounds that he abandoned suitable
work.1 The Board assigned Docket No. 10-1687.
OWCP accepted that on August 2, 2002 appellant, then a 55-year-old special agent,
sustained a lumbar strain while lowering a cart of boxes from a curb at work. Appellant stopped
work on August 9, 2002. OWCP paid appellant appropriate compensation for temporary total
disability. On October 17, 2007 the employing establishment advised OWCP that appellant

1

In a prior appeal, the Board, on September 8, 2010, issued an order dismissing appellant’s appeal of a March 23,
2009 OWCP decision on the grounds that it was not timely filed. Docket No. 10-1687 (issued September 8, 2010).
On October 5, 2010 appellant’s attorney filed a petition for reconsideration of the Board’s decision. He explained
that appellant was appealing the September 10, 2009 OWCP decision rather than the March 23, 2009 decision. In
an order dated March 22, 2011, the Board granted appellant’s petition for reconsideration and reinstated his appeal,
finding that he timely filed an appeal of the September 10, 2009 decision. Docket No. 10-1687 (issued
March 22, 2011).

returned to work in the position of administrative support assistant on October 15, 2007.
However, he only worked five and one-half hours and did not return to work.
By letter dated October 17, 2007, OWCP advised appellant that it had received notice
that he abandoned the administrative support assistant position. It stated that the position was
suitable, informed him of the provisions of 5 U.S.C. § 8106(c)(2) with respect to refusal and
abandonment of suitable work, indicated that the position remained available and afforded him
30 days to either accept the position and return to work or provide an explanation justifying his
reasons for abandoning the position.
In an October 20, 2007 letter, appellant contended that he did not abandon his position
since he did return to work as ordered. He claimed that his physical condition prevented him
from completing his first day at work.
In a November 19, 2007 decision, OWCP terminated appellant’s wage-loss compensation
effective that date under 5 U.S.C. § 8106(c)(2) on the grounds that he abandoned suitable work
without a “valid reason.” In subsequent decisions dated February 29 and December 18, 2008
and March 23 and September 10, 2009, OWCP denied appellant’s requests for modification of
its termination decision.
The Board, having duly considered the matter, concludes that OWCP failed to meet its
burden of proof in terminating appellant’s compensation benefits as it did not comply with its
own procedural requirements. Chapter 2.814.10(e) of OWCP’s procedures2 provides that if the
abandonment of the job is not deemed justified, the claims examiner must so advise the claimant
and employing agency, and allow him 15 additional days to return to work. If the claimant does
not do so, the claims examiner should prepare a formal decision which provides full findings as
to why the reasons for the abandonment are deemed unacceptable and terminates compensation
under section 8106(c)(2) as of the end of the roll period. Such a decision should not be modified
even if the claimant’s medical condition later worsens and he claims a recurrence of total
disability.3
Following receipt of appellant’s October 20, 2007 letter explaining why he stopped work
in the administrative support assistant position, OWCP terminated wage-loss benefits on
November 17, 2007 without advising appellant that his reasons were unacceptable and that he
had 15 days to return to the position.4 OWCP did not comply with the proper notice
requirements prior to termination. Accordingly, the Board finds that the invocation of section
8106(c) under the facts of this case constituted error. OWCP improperly terminated appellant’s
compensation, effective November 19, 2007, on the grounds that he abandoned suitable work
and, therefore, OWCP’s September 10, 2009 decision is reversed.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.10(e) (July 1996).
3

Id. See also Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

4

See Kenneth R. Love, 50 ECAB 193 (1998).

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IT IS HEREBY ORDERED THAT the September 10, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 26, 2011
Washington, DC

Colleen Duffy Kiko, 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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, SPRING VALLEY
ANNEX, Monsey, NY, Employer
__________________________________________

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

Docket No. 08-1052
Issued: October 22, 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 February 26, 2008 appellant filed an appeal of decisions of the Office of Workers’
Compensation Programs dated June 15, July 11 and December 11, 2007 which terminated his
wage-loss compensation on the grounds that he refused an offer of suitable work. 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 the Office properly terminated appellant’s compensation benefits on
July 8, 2007 pursuant to 5 U.S.C. § 8106(a).
FACTUAL HISTORY
On May 2, 2003 appellant, then a 44-year-old letter carrier, sustained an employmentrelated cervical strain and left rotator cuff tear when he slipped and fell in the employing
establishment parking lot while working on his postal vehicle. He stopped work that day.
Appellant’s attending physician, Dr. Stefan Kurucz, an internist, advised that appellant could not
return to work and he was placed on the periodic rolls.

On December 1, 2005 the Office referred appellant to Dr. Marc H. Appel, a Boardcertified orthopedic surgeon, for a second opinion evaluation. By report dated December 16,
2005, Dr. Appel provided findings on physical examination and diagnosed a cervical sprain by
history which had resolved, chronic lumbosacral sprain and left probable rotator cuff tear.
Although, appellant could not return to work as a letter carrier, he could perform limited duties
with restrictions that he not lift, push or pull more than 10 pounds with his left upper extremity.
Dr. Appel concluded that maximum medical improvement had been reached and that appellant
did not require further medical care. In a December 17, 2005 work capacity evaluation, he
advised that appellant could work eight hours a day with permanent restrictions of limited
reaching and reaching above the shoulder on the left, four hours of twisting, and a 10-pound
pushing, pulling and lifting restriction on the left.
On February 10, 2006 the employing establishment offered appellant a limited-duty
position based on Dr. Appel’s restrictions. Appellant, through his attorney, refused the offered
position. He submitted additional reports from Dr. Kurucz, who advised that appellant was
totally disabled. The Office determined that a conflict in medical opinion arose between
Dr. Kurucz and Dr. Appel regarding appellant’s capacity for work. On October 24, 2006 the
Office referred him to Dr. Joseph P. Laico, Board-certified in orthopedic surgery, for an
impartial evaluation.
By report dated November 14, 2006, Dr. Laico reviewed the record including the history
of injury, statement of accepted facts and appellant’s complaints. He stated that appellant
reported that he was being treated for hypertension, gallbladder disease, diverticulitis, asthma,
prostatitis and chronic sinusitis and provided physical findings. Dr. Laico diagnosed cervical
strain and sprain resolved, rule-out internal derangement of the left shoulder, and recommended
a magnetic resonance imaging (MRI) scan study. He advised that, while appellant continued to
have residuals of his employment injury, he was capable of performing the job duties as
described in the February 10, 2006 offer. In a work capacity evaluation dated November 20,
2006, Dr. Laico advised that appellant could work eight hours a day, with reaching, reaching
above the shoulder, operating a motor vehicle at work and to/from work, and climbing restricted
to four hours daily, and pushing, pulling, lifting and kneeling restricted to six hours daily, and a
20-pound weight restriction. A December 19, 2006 left shoulder MRI scan demonstrated a
partial tear at both the supraspinatus and infraspinatus tendons without definitive full-thickness
tearing or tendon retraction. On December 21, 2006 Dr. Laico reviewed the MRI scan and
recommended follow-up with an orthopedic surgeon.
On January 19, 2007 the employing establishment offered appellant a modified-duty
position based on Dr. Laico’s restrictions, which appellant refused.
The employing
establishment reoffered the position on March 23, 2007. In a work capacity evaluation dated
March 26, 2007, Dr. Laico advised that appellant could not perform his usual position but could
work eight hours a day with no lifting, pushing or pulling over 20 pounds with his left upper
extremity. Climbing, reaching, reaching above the shoulder, and operating a motor vehicle at
work or to/from work were limited to four hours daily, and pushing, pulling, lifting and kneeling
were limited to six hours a day. By letter dated March 27, 2007, Dr. Laico advised that appellant
could perform the duties of the offered position.

2

On March 30, 2007 the Office advised appellant that the position offered was suitable.
Appellant was notified that, if he failed to report to work at the offered position or failed to
demonstrate that the failure was justified, his right to compensation would be terminated
pursuant to section 8106 of the Federal Employees’ Compensation Act.1 Appellant was given 30
days to respond. He again refused the offered position. On April 20, 2007 appellant’s attorney
contended that the offered position was not suitable, based on Dr. Kurucz’s opinion. In an
April 12, 2007 report, Dr. Kurucz reviewed the March 23, 2007 job offer and opined that
appellant was unable to perform the duties “because of the medical situation caused by multiple
injuries sustained while working at the [employing establishment] on May 2, 2003.” He
concluded that the disability was permanent.
By letter dated April 27, 2007, the Office advised appellant that his reasons for refusing
the offered position were not acceptable, and he was given an additional 15 days to respond. In a
June 15, 2007 decision, the Office terminated appellant’s wage-loss compensation, effective
June 16, 2007, on the grounds that he declined an offer of suitable work. On July 11, 2007 the
Office amended the June 15, 2007 to show an effective date of July 8, 2007.2
On November 16, 2007 appellant, through his attorney, requested reconsideration. In an
October 15, 2007 report, Dr. Kurucz advised that he had been appellant’s physician for over 20
years. Due to appellant’s left shoulder injury, his range of motion was severely limited and his
injury to the lumbar spine caused impingement on the sciatic nerve which caused paralysis 40 to
60 percent of the time. The cervical spine strain caused pinching of the nerve roots that resulted
in a 30 to 40 percent loss of range of motion and arthritis was prevalent throughout the cervical
region. Dr. Kurucz noted that appellant had additional medical conditions including severe
asthma, allergies, contact dermatitis and allergic rhinitis which made him prone to sinus, lung
and skin infections, that he had tested positive for the Helicobacter pylori bacteria in his
digestive system, which was cancer-causing, had tested positive for gastric and peptic ulcers,
irritable bowel syndrome, colitis, diverticulitis and hiatal hernia, was undergoing treatment for
chronic bladder and kidney infections, had high blood pressure, was at a high risk of
cardiovascular disease, suffered from acute gallbladder disease and gallstones, and had signs of
arthritis in his knees, elbows, and fingers. Appellant’s attorney argued that the June 15, 2007
decision had no effect because a copy was not mailed to him as appellant’s authorized
representative, that appellant suffered additional injuries on May 2, 2003 including a lumbosacral
condition that should be accepted, and that, as neither Dr. Appel nor Dr. Laico considered
appellant’s nonaccepted medical problems, Dr. Kurucz’s opinion constituted rationalized
medical evidence that appellant could not perform the limited-duty position. By decision dated
December 11, 2007, the Office denied modification of the July 11, 2007 decision.

1

5 U.S.C. §§ 8101-8193.

2

On July 12, 2007 the Office determined that an overpayment in compensation in the amount of $619.16 had
been created and administratively terminated debt collection on October 15, 2007. See Federal (FECA) Procedure
Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.8 (May 2004).

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LEGAL PRECEDENT
Section 8106(c) of the Act provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”3
It is the Office’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.4 The implementing regulation provides
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.5 To justify termination, the Office must show that the
work offered was suitable and that appellant was informed of the consequences of his refusal to
accept such employment.6 In determining what constitutes “suitable work” for a particular
disabled employee, the Office considers the employee’s current physical limitations, whether the
work is available within the employee’s demonstrated commuting area, the employee’s
qualifications to perform such work, and other relevant factors.7 Office procedures state that
acceptable reasons for refusing an offered position include withdrawal of the offer or medical
evidence of inability to do the work or travel to the job.8 Section 8106(c) will be narrowly
construed as it serves as a penalty provision which may bar an employee’s entitlement to
compensation based on a refusal to accept a suitable offer of employment.9
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.10 It is well established that the Office must consider preexisting and
subsequently acquired conditions in the evaluation of suitability of an offered position.11 Section
8123(a) of the Act provides that if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.12 When the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
3

5 U.S.C. § 8106(c).

4

Joyce M. Doll, 53 ECAB 790 (2002).

5

20 C.F.R. § 10.517(a).

6

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
7

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

8

Federal (FECA) Procedure Manual, Claims, Reemployment: Determining Wage-Earning Capacity, Refusal of
Job Offer, Chapter 2.814.5.a(1) (July 1997); see Lorraine C. Hall, 51 ECAB 477 (2000).
9

Gloria G. Godfrey, 52 ECAB 486 (2001).

10

Gayle Harris, 52 ECAB 319 (2001).

11

Richard P. Cortes, 56 ECAB 200 (2004).

12

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

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sufficiently well rationalized and based on a proper factual background, must be given special
weight.13
ANALYSIS
The Board initially notes that, although the Office stated in its December 11, 2007
decision that it was denying appellant’s reconsideration request, the Office reviewed his
arguments regarding the June and July 2007 Office decisions and Dr. Kurucz’s November 14,
2006 report and did not address the factors found in section 10.606(b)(2) of Office regulations.14
The Board therefore finds the December 11, 2007 decision to be a decision on the merits of the
case. The Board also finds that any error in not mailing the June 15, 2007 decision to appellant’s
attorney is harmless because the procedural deficiency was cured by sending him the July 11,
2007 decision that amended the June 15, 2007 decision.15
The Board finds that the Office properly terminated appellant’s compensation effective
July 8, 2007 because he refused an offer of suitable work. The Office determined that a conflict
in the medical evidence was created between the opinions of appellant’s treating physician
Dr. Kurucz, and Dr. Appel, who provided a second opinion evaluation for the Office, regarding
appellant’s ability to work. The Office then properly referred appellant to Dr. Laico, Boardcertified in orthopedic surgery, for an impartial evaluation.16 The employing establishment
offered appellant a modified-duty position with physical restrictions that followed those provided
by Dr. Laico, who reviewed the job offer and found it acceptable. In his November 14, 2006
report, Dr. Laico noted that appellant was being treated for hypertension, gallbladder disease,
diverticulitis, asthma, prostatitis and chronic sinusitis and provided physical findings. He
diagnosed cervical strain and, following a left shoulder MRI scan study, a partial tear at both the
supraspinatus and infraspinatus tendons. In a work capacity evaluation dated March 26, 2007,
Dr. Laico advised that appellant could not perform his usual position but could work eight hours
a day with no lifting, pushing or pulling over 20 pounds with his left upper extremity. Climbing,
reaching, reaching above the shoulder, and operating a motor vehicle at work or to/from work
were limited to four hours daily, and pushing, pulling, lifting and kneeling were limited to six
hours a day. The employing establishment reoffered the position on March 23, 2007, and by
letter dated March 27, 2007, Dr. Laico advised that appellant could perform the duties of the
January 19, 2007 offered position.17

13

Manuel Gill, 52 ECAB 282 (2001).

14

This section provides that the application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (i) shows that the Office erroneously applied or interpreted a specific
point of law; or (ii) advances a relevant legal argument not previously considered by the Office; or (iii) constitutes
relevant and pertinent new evidence not previously considered by the Office. 20 C.F.R. § 10.606(b)(2).
15

See generally Ezell Wills, 50 ECAB 229 (1999).

16

Supra note 12.

17

The positions offered on January 19 and March 23, 2007 were the same.

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While Dr. Kurucz, an attending internist, advised that appellant could not work, and in an
October 15, 2007 report advised that appellant’s left shoulder range of motion was severely
limited, that impingement on the sciatic nerve caused paralysis 40 to 60 percent of the time, and
that pinching of cervical nerve roots resulted in a 30 to 40 percent loss of range of motion. He
noted additional medical conditions including severe asthma, allergies, contact dermatitis,
allergic rhinitis, positive Helicobacter pylori bacteria testing, positive gastric and peptic ulcer
testing, irritable bowel syndrome, colitis, diverticulitis, a hiatal hernia, chronic bladder and
kidney infections, high blood pressure, acute gallbladder disease and gallstones, arthritis of the
cervical spine, knees, elbows, and fingers and advised that appellant was at a high risk of
cardiovascular disease.
A subsequently submitted report of a physician on one side of a resolved conflict of
medical opinion is generally insufficient to overcome the weight of the impartial medical
specialist or to create a new conflict of medical opinion,18 and the Board finds Dr. Kurucz’s
October 15, 2007 report insufficient to overcome the weight accorded Dr. Laico as an impartial
medical specialist. Dr. Laico reviewed appellant’s complete medical history, including
nonaccepted conditions, and provided a comprehensive, well-rationalized evaluation in which he
clearly advised that appellant could perform the duties of the offered position. His opinion is
entitled to the special weight accorded an impartial examiner and therefore constitutes the weight
of the medical evidence.19
In order to properly terminate appellant’s compensation under section 8106 of the Act,
the Office must provide appellant notice of its finding that an offered position is suitable and
give appellant an opportunity to accept or provide reasons for declining the position.20 The
record in this case indicates that the Office properly followed the procedural requirements. By
letter dated March 30, 2007, the Office advised appellant that the offered position was suitable.
Appellant was notified that, if he failed to report to work or failed to demonstrate that the failure
was justified, his right to compensation would be terminated, and was allotted 30 days to either
accept or provide reasons for refusing the position. In a letter dated April 27, 2007, the Office
advised appellant that the reasons given for not accepting the job offer were unacceptable, and he
was given an additional 15 days in which to respond. There is, therefore, no evidence of a
procedural defect in this case as the Office provided appellant with proper notice. Appellant was
offered a suitable position by the employing establishment and such offer was refused. Thus,
under section 8106 of the Act, his compensation was properly terminated effective July 8, 2007
on the grounds that he refused an offer of suitable work.21

18

Richard O’Brien, 53 ECAB 234 (2001).

19

See Sharyn D. Bannick, 54 ECAB 537 (2003).

20

See Maggie L. Moore, supra note 6.

21

Joyce M. Doll, supra note 4.

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CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss compensation
pursuant to 5 U.S.C. § 8106(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 11 and July 11, 2007 be affirmed.
Issued: October 22, 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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL OFFICE, POST OFFICE,
Niles, OH, Employer
__________________________________________

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

Docket No. 11-701
Issued: October 25, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 25, 2011 appellant, through his representative, filed a timely appeal from the
Office of Workers’ Compensation Programs’ (OWCP) merit decision dated December 15, 2010
which affirmed the denial of appellant’s claim for a schedule award. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant sustained permanent impairment to his left arm warren
ting a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 7, 1999 appellant, then a 47-year-old city carrier, was injured when he pulled
a frozen lever to open a door and experience pain in the fourth and fifth digits of his left hand
and wrist. OWCP accepted the claim for left hand tendinitis. Appellant did not stop work.
From November 30, 2005 to August 28, 2007 appellant came under the treatment of
Dr. Randall Hartwig, an osteopath, for left wrist pain with decreased range of motion.
Dr. Hartwig diagnosed tendinitis of the left wrist and sprain of the left wrist.
On December 15, 2007 appellant filed a claim for a schedule award. On December 20,
2007 OWCP informed him that for consideration to be given to the payment of a schedule
award, the medical evidence must support a finding that the accepted injury resulted in
permanent impairment or loss of use of a member or function of the body. It also had to
demonstrate that the residuals of the injury reached a fixed state, known as maximum medical
improvement. OWCP advised that the medical evidence in appellant’s file indicated that he had
not reached maximum medical improvement and therefore a claim for a schedule award could
not be considered at this time.
Appellant submitted reports dated March 14 and May 19, 2008 from Dr. Hartwig, who
noted decreased range of motion of the left wrist for flexion, extension, ulnar and radial
deviation with no motor deficit. Dr. Hartwig diagnosed tendinitis of the left wrist and sprained
left wrist.
In a December 29, 2008 report, OWCP’s medical adviser reviewed Dr. Hartwig’s
findings and noted that he failed to provide a date of maximum medical improvement or a
physical description pursuant to the fifth edition of the A.M.A., Guides.2
On November 29, 2009 appellant came under the treatment of Dr. William N. Grant, a
Board-certified internist, for left hand pain. Dr. Grant noted findings upon physical examination
of left wrist swelling, tenderness to palpation, range of motion for flexion measured 10 degrees,
extension measured 10 degrees, ulnar deviation measured 10 degrees and radial deviation
measured 10 degrees. He diagnosed left hand tendinitis and noted appellant reached maximum
medical improvement. Dr. Grant opined that appellant sustained a 38 percent permanent
impairment of the left upper extremity pursuant to Table 15-32 of the sixth edition of the
A.M.A., Guides.3 He noted that pursuant to Table 15-32, page 473 of the A.M.A., Guides, left
wrist flexion of 10 degrees was 9 percent impairment, extension of 10 degrees was 9 percent
impairment, ulnar deviation of 10 degrees was 12 percent impairment and radial deviation of 10
degrees was 12 percent impairment. Dr. Grant noted that pursuant to the Combined Values
Chart, appellant sustained 38 percent impairment of the left upper extremity. He stated that this
impairment was severe.

2

A.M.A., Guides (5th ed. 2001).

3

Id. at 473 (6th ed. 2008).

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In a January 21, 2010 report, OWCP’s medical adviser reviewed Dr. Grant’s report and
noted that pursuant to the statement of accepted facts appellant injured his fourth and fifth digits
and his claim was accepted for left hand tendinitis; however, Dr. Grant provided an impairment
rating for the left wrist. Dr. Grant suggested OWCP refer appellant to an OWCP referral
physician for an impairment rating.
On January 22, 2010 OWCP referred appellant for a second opinion evaluation to
Dr. Manhal A. Ghanma, a Board-certified orthopedist. OWCP provided Dr. Ghanma with
appellant’s medical records, a statement of accepted facts as well as a detailed description of his
employment duties. In a medical report dated March 4, 2010, Dr. Ghanma indicated that he
reviewed the records provided to him and performed a physical examination of appellant. He
noted physical examination of the left hand revealed no objective findings consistent with left
hand tendinitis, with no swelling, scarring, tenderness or temperature changes. Dr. Ghanma
noted left wrist extension of 40 degrees, flexion of 55 degrees, radial deviation of 18 degrees and
ulnar deviation of 30 degrees. He noted appellant’s forearms measured 31 centimeters without
atrophy and she had normal grip strength. Dr. Ghanma noted “very poor effort” from appellant
for range of motion testing of the left arm. He advised that appellant reached maximum medical
improvement on February 7, 1999. Dr. Ghanma noted that pursuant to the A.M.A., Guides,
Table 15-3, Wrist Regional Grid, page 395, appellant sustained zero percent impairment to the
left arm. He noted appellant was a class zero for the condition of tendinitis for no impairment,
physical findings provided a grade modifier of zero pursuant to Table 15-8, Functional History
(GMFH) adjustment provided a grade modifier of one pursuant to Table 15-7 and Clinical
Studies (GMCS) adjustment provided a grade modifier of zero. Dr. Ghanma noted that the net
adjustment formulas equaled one but this did not change the impairment rating as the class zero
diagnosis did not provide any impairment.
In an April 7, 2010 report, OWCP’s medical adviser reviewed Dr. Ghanma’s report and
noted that pursuant to the statement of accepted facts appellant injured his fourth and fifth digits
and his condition was accepted for left hand tendinitis. However, Dr. Ghanma did not address
the fourth and fifth digits in his impairment evaluation. He asked that OWCP obtain a
supplemental report from Dr. Ghanma which addressed if there was impairment in the left fourth
and fifth fingers, including motor or sensory findings.
On April 27, 2010 OWCP requested that Dr. Ghanma provided a supplemental report
addressing impairment of the fourth and fifth digits of the left hand. In a May 19, 2010 report,
Dr. Ghanma indicated that upon examination of the fourth and fifth digits of appellant’s left hand
he found no evidence of tenderness, loss of sensation or motor weakness. He noted that
appellant did not give full effort with regards to range of motion testing. Dr. Ghanma further
noted that appellant was able to fully flex all fingers full and was able to stabilize his left wrist.
In a June 14, 2010 report, OWCP’s medical adviser noted reviewing the supplemental
report of Dr. Ghanma dated May 19, 2010. He referenced the Muscle/Tendon section of the
Digit Regional Grid, Table 15-2, page 391 of the A.M.A., Guides and diagnosed pain in the
digit. OWCP’s medical adviser noted that Dr. Ghanma found no evidence of tenderness, loss of
sensation, motor weakness of the left fourth and fifth fingers, consistent with a class zero
diagnosis with zero percent impairment. He noted that the impairment was not adjusted with
grade modifiers as no adjustment out of class was permitted. OWCP’s medical adviser opined

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that appellant had no impairment of the left upper extremity based on diagnoses of hand
tendinitis.
In a decision dated June 24, 2010, OWCP denied appellant’s claim for a schedule award.
It determined that the evidence was insufficient to establish that appellant sustained permanent
impairment to a scheduled member due to the accepted work injury.
On July 6, 2010 appellant requested a telephonic oral hearing which was held on
October 5, 2010.
In a decision dated December 15, 2010, OWCP’s hearing representative affirmed
OWCP’s decision dated June 24, 2010.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used to
calculate schedule awards.7 For decisions issued after May 1, 2009, the sixth edition of the
A.M.A., Guides will be used.8 It is the claimant’s burden to establish that he or she sustained a
permanent impairment of a scheduled member or function as a result of an employment injury.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition of the A.M.A., Guides, for upper extremity
impairments the evaluator identifies the impairment class for the Diagnosed Condition (CDX),

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

7

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

8

Supra note 3.

9

Tammy L. Meehan, 53 ECAB 229 (2001).

10

A.M.A., Guides, supra note 1 at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.

4

which is then adjusted by grade modifiers based on GMFH, Physical Examination (GMPE) and
GMCS.11 The net adjustment formula is GMFH - CDX + GMPE - CDX + GMCS - CDX.12
ANALYSIS
OWCP accepted appellant’s claim for left hand tendinitis and he claimed a schedule
award. In a November 29, 2009 report, Dr. Grant found that appellant sustained a 38 percent
permanent impairment of the left arm pursuant to Table 15-32, wrist range of motion, of the sixth
edition of the A.M.A., Guides.13 He stated that this impairment was severe. However, Dr. Grant
did not sufficiently address how the range of motion loss was due to the accepted left hand
tendinitis. He did not explain how trying to open a frozen lever to open a door in 1999 would
cause such severe symptoms and permanent impairment.14 To be entitled to a schedule award
appellant must establish that he sustained a permanent impairment of a listed member of the
body due to an employment injury.15 Without the necessary reasoned medical opinion evidence
establishing that he has permanent impairment causally related to his accepted left hand
tendinitis, Dr. Grant’s report is insufficient to establish that appellant sustained a permanent
impairment as a result of his work injury. On January 21, 2010 OWCP’s medical adviser opined
that Dr. Grant’s opinion was an insufficient basis on which to grant a schedule award and
recommended a second opinion.
OWCP referred appellant to Dr. Ghanma who, in a March 4, 2010 report, noted physical
examination of the left hand revealed no objective findings consistent with left hand tendinitis,
with no swelling, scarring, tenderness and temperature increases or decreases. Dr. Ghanma
noted findings for left wrist range of motion but noted that appellant gave very poor effort on
range of motion testing of the left arm. He noted no atrophy and normal grip strength.
Dr. Ghanma advised appellant had reached maximum medical improvement. He noted that
pursuant to the A.M.A., Guides, Table 15-3, Wrist Regional Grid, page 395, appellant sustained
zero impairment to the left upper extremity as his diagnosis was class zero due to the lack of
significant symptoms or findings on examination. Dr. Ghanma opined that appellant had no
disability as a result of the diagnosed condition of left hand tendinitis. In a supplemental report
dated May 19, 2010, he addressed whether appellant had any impairment emanating from the
fourth and fifth digits of the left hand. Dr. Ghanma noted finding of no evidence of tenderness,
loss of sensation or motor weakness. He noted that appellant was able to fully flex all fingers
and stabilize his left wrist. OWCP’s medical adviser also properly applied the A.M.A., Guides
to the information provided in Dr. Ghanma’s March 4 and May 19, 2010 reports and determined
11

Id. at 385-419.

12

Id. at 411.

13

A.M.A., Guides (6th ed. 2008).

14

The Board notes that, on his traumatic injury claim, appellant attributed his condition to pulling a frozen lever
to open a door while Dr. Grant attributed it to picking up bundles of mail. See Leonard J. O’Keefe, 14 ECAB 42, 48
(1962) (where the Board held that medical opinions based upon an incomplete history have little probative value).
15

See Veronica Williams, 56 ECAB 367 (2005) (the claimant has the burden of proving that the condition for
which a schedule award is sought is causally related to his or her employment).

5

that appellant had no impairment rating causally related to his accepted condition of left hand
tendinitis.
The Board finds that, under the circumstances of this case, appellant did not sustain any
work-related permanent impairment of the upper extremities. Dr. Ghanma examined appellant
and noted essentially normal findings. He indicated that range of motion testing was unreliable
due to appellant’s poor effort and he also considered whether appellant had a ratable diagnosis
based impairment. Both Dr. Ghanma and OWCP’s medical adviser explained that the wrist or
two fingers involved in the work injury did not result in any permanent impairment. Dr. Ghanma
and OWCP’s medical adviser found no other basis on which to attribute any permanent
impairment to the accepted condition of left hand tendinitis.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds the medical evidence does not establish that appellant has a ratable
impairment of his left arm for schedule award purposes.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF TRANSPORTATION,
MARITIME ADMINISTRATION, Benica, CA,
Employer
__________________________________________

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

Docket No. 14-259
Issued: October 24, 2014

Case Submitted on the Record

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

JURISDICTION
On November 15, 2013 appellant filed a timely appeal of an October 8, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claimed
recurrence of disability. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of disability on June 10, 2012 causally related to his June 20, 2008 employment
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 4, 2008 appellant, then a 45-year-old marine machinery repairer, filed an
occupational disease claim alleging carpal tunnel syndrome due to job activities of wrenching or
pulling on ropes or cables. He first became aware of his condition on June 20, 2008 and first
attributed it to his employment on that date. Dr. Daniel Flores, a Board-certified family
practitioner, examined appellant on June 6, 2008 and diagnosed carpal tunnel syndrome.
Appellant underwent electrodiagnostic studies on June 20, 2008 which demonstrated moderate
median neuropathies at the left and right wrists or carpal tunnel syndrome perhaps more on the
left.
OWCP accepted appellant’s claim for bilateral wrist strain on September 19, 2008.2 It
referred him for a second opinion evaluation. In a report dated October 13, 2008, Dr. Joseph
McCoy, a Board-certified orthopedic surgeon, reviewed the statement of accepted fact and
diagnosed mild-to-moderate bilateral carpal tunnel syndrome. He noted appellant’s history of
injury and his symptoms, including numbness and tingling at night significant enough to wake
him. On physical examination, Dr. McCoy found negative Tinel’s sign and mildly positive
Phalen’s test. He reviewed the nerve conduction studies, which were compatible with moderate
median neuropathy. Dr. McCoy opined that appellant’s carpal tunnel syndrome was industrially
caused.3 He stated that the only active diagnosis was mild-to-moderate carpal tunnel syndrome
bilaterally which was clearly established. Dr. McCoy stated that appellant had participated in
powerful and repetitive gripping activities as part of his usual and customary work for at least
four year and had no other known risk factors for carpal tunnel syndrome. He stated, “I do
believe the most significant causative factor is [appellant’s] above-noted industrial exposure.”
Dr. McCoy further opined that this was not an aggravation of a preexisting problem, but a new
occupational problem which has gradually developed. He found that appellant was capable of
performing his regular duties. Dr. McCoy recommended that appellant wear anti-vibration
gloves while working with power tools, that he take breaks when gripping and that he wear wrist
splints at night.
Appellant filed a recurrence of disability claim on September 11, 2012 alleging that on
June 10, 2012 he sustained a recurrence of his June 20, 2008 employment injury. He stated that
his condition had never changed and that he woke up at night from pain in his hands and palms.
OWCP requested additional factual and medical evidence from appellant on
September 18, 2012. Appellant submitted a medical record establishing that he underwent a
nerve conduction study on September 20, 2012 which demonstrated increased median
neuropathy when compared to the 2008 study.

2

At the time of OWCP’s September 19, 2008 decision, there is no medical evidence in the record with any
diagnosis other than carpal tunnel syndrome.
3

The record does not contain a decision from OWCP accepting appellant’s claim for carpal tunnel syndrome as
diagnosed by the second opinion physician nor is there additional development of the medical evidence regarding
this diagnosed work-related condition.

2

In a decision dated November 19, 2012, OWCP noted that appellant filed an occupational
disease claim on September 4, 2008 which was accepted for bilateral wrist sprain. It denied his
September 11, 2012 recurrence claim finding that he had not submitted sufficient medical
evidence in support of his current claim and that the last medical report of record was dated
January 27, 2004.4
Appellant resubmitted the June 6, 2008 note of Dr. Flores and requested reconsideration
on March 8, 2013. He also resubmitted Dr. McCoy’s October 13, 2008 report and submitted an
October 14, 2008 work restriction evaluation from Dr. McCoy recommending that appellant
wear viscoelastic anti-vibration gloves and perform powerful gripping in short segments when
possible.
By decision dated June 7, 2013, OWCP declined to reopen appellant’s claim for
reconsideration of the merits. It found that he had submitted duplicative medical evidence from
2008. OWCP also noted that there was no evidence that appellant continued to seek treatment
for his work-related condition between 2008 and 2012.
Appellant requested reconsideration on September 18, 2013. He submitted a note dated
August 29, 2013 from Dr. Flores, who diagnosed carpal tunnel syndrome on May 12, 2007 and
noted that appellant underwent electrodiagnostic testing in June 2008, which confirmed the
diagnosis. Dr. Flores stated that appellant continued to perform the same work duties and
underwent a repeat nerve conduction study in September 2012 which demonstrated severe carpal
tunnel syndrome. He stated, “I believe that [appellant’s] condition as of June 10, 2012 originated
from his work injury of 2008.”
By decision dated October 8, 2013, OWCP denied modification of its prior decision. It
found that appellant’s claim did not meet the definition of a recurrence of disability as he
attributed his condition to his work duties. Futher, Dr. Flores opined that appellant’s ongoing
work duties contributed to his current condition.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.5
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his recurrence of disability commencing
June 10, 2012 and his June 20, 2008 employment injury.6 This burden includes the necessity of
4

Appellant filed an occupational disease claim on November 1, 2012 alleging that he developed carpal tunnel
syndrome due to his duties of handling tools and instruments. In a note dated November 2, 2012, he stated that he
was withdrawing the filing of the occupational disease claim and wished OWCP to continue with the recurrence
claim.
5

20 C.F.R. § 10.5(x).

6

Dominic M. DeScala, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-09 (1982).

3

furnishing medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the disabling condition is causally related to
employment factors and supports that conclusion with sound medical reasoning.7
ANALYSIS
Appellant filed a claim for a bilateral wrist condition in 2008. The medical evidence to
record diagnosed carpal tunnel syndrome. This evidence included Dr. Flores’ June 6, 2008
report and electrodiagnostic studies on June 20, 2008, both of which included a diagnosis of
carpal tunnel syndrome. OWCP accepted this claim for bilateral wrist sprain.
Dr. McCoy, an OWCP second opinion physician, reviewed the statement of accepted
facts and examined appellant on October 13, 2008. He diagnosed mild-to-moderate bilateral
carpal tunnel syndrome. On physical examination, Dr. McCoy found negative Tinel’s sign and
mildly positive Phalen’s test. He reviewed the nerve conduction studies and opined that
appellant’s carpal tunnel syndrome was industrially caused. Dr. McCoy found that appellant was
capable of performing his regular duties with wear of anti-vibration gloves while working with
power tools, as well as breaks when gripping and wrist splints at night.
Appellant filed a claim alleging that on June 10, 2012 he sustained a recurrence of his
June 20, 2008 employment injury. OWCP denied his claim on November 19, 2012. Appellant
then requested reconsideration, which OWCP denied on June 7, 2013 on the grounds that the
medical evidence submitted was repetitious. The Board notes that OWCP had not reviewed the
medical evidence submitted by appellant on the merits at the time of the June 7, 2013 decision.
Appellant again requested reconsideration on September 18, 2013 and OWCP denied his
claim on October 8, 2013 on the grounds that he had additional employment exposures, that he
and his physician implicated these exposures in describing his current condition and that
appellant should have filed a new occupational disease claim.
The Board finds appellant’s current claim one of an occupational disease rather than a
recurrence of disability. Appellant attributed the worsening of his diagnosed condition of
bilateral carpal tunnel syndrome to new exposures he encountered in the work environment,
specifically to gripping and using power tools in the performance of duty. Therefore, his current
claim is not a recurrence of disability as it is not a spontaneous change without new exposure to
the work environment that caused the condition. The Board finds that appellant did not establish
a claim for recurrence of disability.
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.

7

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a claim for
recurrence of disability.
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 24, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.J., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1438
Issued: February 6, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JJANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 17, 2019 appellant, through counsel, filed a timely appeal from a January 31, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a left or right knee
condition causally related to the accepted April 11, 2017 employment incident.
FACTUAL HISTORY
On April 11, 2017 appellant, then a 54-year-old air traffic controller, filed a traumatic
injury claim (Form CA-1) alleging that he sustained injuries to both his left and right knees while
in the performance of duty that day. He related that the elevator at work had been out of service
for several days, forcing the air traffic controllers to use the stairs to access the tower. After three
days of ascending and descending the stairs, appellant’s right knee gave out and made him place
excess pressure on his left knee, which caused a “snap sound.” He then spent the remainder of the
shift in the “cab” to avoid further impact on the knees. Appellant noted that the pain in his left
knee made him think that he may have injured his meniscus or pulled a ligament and he indicated
that his right knee may have had the same injury. He also indicated that his right knee had a history
of a prior employment injury to the meniscus. Appellant did not stop working.
In a report dated April 12, 2017, Dr. Shyam K. Vekaria, a Board-certified orthopedic
surgeon, diagnosed acute pain of right knee and left knee, internal derangement of right knee and
left knee, and primary osteoarthritis of the right knee and left knee. He reiterated appellant’s
description of the injury as going up and down tower stairs since the elevator had been out.
Dr. Vekaria stated that when appellant was coming down the stairs, his right knee gave out, he
heard a “pop” in the left knee, and heard clicking noises in both knees. Appellant also noted some
swelling and also felt bilateral low back pain, which worsened since the knees started hurting on
April 11, 2017. Dr. Vekaria noted that appellant had a preexisting right knee condition and a
history of right knee arthroscopies.
A magnetic resonance imaging (MRI) scan of the right knee dated May 5, 2017
demonstrated no evidence of recurrent medial meniscal tear on post contrast imaging and an MRI
scan of the left knee dated May 5, 2017 that revealed complex tearing of the lateral meniscus.
On May 10, 2017 Dr. Vekaria reviewed the May 5, 2017 MRIs and diagnosed tear of
lateral meniscus of the left knee.
In a May 23, 2017 development letter, 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 did not controvert continuation
of pay or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It stated that it had reopened the claim for formal consideration of the
merits and afforded appellant 30 days to submit additional evidence and respond to its inquiries.
A memorandum dated March 3, 2017 from the employing establishment confirmed that
the elevator was out of service from April 6 to 14, 2017 due to an electrical outage that was caused
by a lightning strike to the air traffic control tower.

2

Appellant submitted a narrative statement dated June 6, 2017 indicating that, prior to the
April 11, 2017 incident, he had injuries to his right knee, and he had undergone three surgical
procedures. He indicated that his claim could be viewed as an occupational disease; however, his
right knee condition began following a traumatic injury that occurred nearly 15 years ago at the
same tower.
In a progress report dated May 31, 2017, Dr. Vekaria indicated that appellant’s right knee
condition had improved and he had returned to work. He also noted that physical therapy had been
beneficial, but the left knee continued to be bothersome.
By decision dated June 28, 2017, OWCP found that appellant had established the
occurrence of the April 11, 2017 employment incident. It determined, however, that the medical
evidence of record was insufficient to establish that he sustained a diagnosed condition causally
related to the accepted work incident.
On July 12, 2017 appellant requested an oral hearing before a hearing representative of
OWCP’s Branch of Hearings and Review.
A hearing was held before an OWCP hearing representative on October 24, 2017.
Appellant provided testimony and the hearing representative held the case record open for 30 days
for the submission of additional evidence.
Appellant subsequently submitted progress reports dated June 28, August 3, and
November 8, 2017 from Dr. Vekaria who reiterated his diagnoses and stated that appellant’s left
knee continued to be problematic, but he was working full duty.
In a report dated November 2, 2017, Dr. Jeffrey Mait, a Board-certified orthopedic
surgeon, diagnosed primary osteoarthritis of the left knee and right knee and noted that appellant
also suffered from back pain and joint pain. He noted that appellant’s injury occurred when he
was walking.
By decision dated November 28, 2017, OWCP’s hearing representative affirmed the prior
decision, finding that the medical evidence of record was insufficient to establish causal
relationship, particularly given the extensive preexisting conditions of both knees and the
diagnosed osteoarthritis.
Counsel requested reconsideration on November 20, 2018 and argued that when factors of
federal employment cause an aggravation of an underlying preexisting condition, the aggravation
or exacerbation of the preexisting condition is compensable.
Counsel also submitted a November 16, 2018 report from Dr. Vekaria who diagnosed
primary osteoarthritis of the right knee and left knee, bilateral knee internal derangement, left knee
complex lateral meniscus tear, and acute pain of bilateral knees. Dr. Vekaria opined that
appellant’s bilateral knee conditions were causally related to his April 11, 2017 employment
injury. He indicated that appellant reported a remote history of arthroscopic right knee surgery,
but had been functioning well with regard to his knees for many years and was working full duty.
Dr. Vekaria concluded that the April 11, 2017 employment injury exacerbated appellant’s
underlying osteoarthritis conditions.
3

By decision dated January 31, 2019, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 of FECA,3 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.4 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.5
In order to determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established.6
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.7 Second, the employee must submit evidence, generally
only in the form of probative medical evidence, to establish that the employment incident caused
a personal injury.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence.9 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.10 The weight of the medical evidence

3

Id.

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

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).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

7

D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

8

B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB
354 (1989).
9

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

10
M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).

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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.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left or right
knee condition causally related to the accepted April 11, 2017 employment incident.
OWCP received several reports from Dr. Vekaria in support of appellant’s claim. In his
initial report dated April 12, 2017, Dr. Vekaria noted appellant’s history of injury and diagnosed
internal derangement and osteoarthritis of both knees. He, however, failed to provide a detailed
explanation on causal relationship. While he identified the specific employment incident alleged
by appellant, Dr. Vekaria did not provide a pathophysiological explanation as to how ascending
and descending stairs either caused or contributed to the diagnosed conditions.12 This report is
therefore insufficient to establish causal relationship.
In subsequent progress reports dated May 31, June 28, August 3, and November 8, 2017,
Dr. Vekaria related appellant’s current complaints and diagnoses, but offered no opinion regarding
causal relationship. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.13 Therefore, these reports from Dr. Vekaria are insufficient to establish appellant’s
claim.
In his November 16, 2018 report, Dr. Vekaria opined that appellant’s bilateral knee
conditions were causally related to his April 11, 2017 employment incident. While Dr. Vekaria
noted that appellant had prior right knee conditions, but had been functioning well prior to the
employment incident, he provided no additional rationale. The Board has held that the fact that a
claimant was asymptomatic before the injury is insufficient, without adequate rationale, to
establish causal relationship.14 Moreover, the Board finds that Dr. Vekaria did not provide
sufficient medical rationale explaining how appellant’s preexisting conditions were aggravated by
climbing and descending stairs at work on April 11, 2017. The need for rationale is particularly
important as the evidence indicates that appellant had a number of preexisting medical conditions,
including three right knee surgeries. Therefore, as Dr. Vekaria did not provide a rationalized
medical opinion explaining how the accepted April 11, 2017 employment incident caused
appellant’s diagnosed knee conditions, the Board finds that the reports from Dr. Vekaria are
insufficient to establish causal relationship.
Appellant was also followed by Dr. Mait who diagnosed primary osteoarthritis of the left
and right knee on November 2, 2017. As he did not address causal relationship to the accepted

11

R.T., Docket No. 19-1346 (issued December 4, 2019); James Mack, 43 ECAB 321 (1991).

12

Id.

13

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

14

M.B., Docket No. 19-0840 (issued October 2, 2019).

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April 11, 2017 employment incident, Dr. Mait’s report is of no probative value and, thus,
insufficient to meet appellant’s burden of proof.15
As appellant has not submitted rationalized medical evidence sufficient to establish that his
diagnosed knee conditions were causally related to the accepted employment incident, he has not
met his burden of proof.
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 left or right
knee condition causally related to the accepted April 11, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the January 31, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

15

Supra note 13.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.Q., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dulles, VA, Employer
__________________________________________

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

Docket No. 16-0420
Issued: May 26, 2016

Case Submitted on the Record

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

JURISDICTION
On January 4, 2016 appellant filed a timely appeal of an October 16, 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 to consider the merits of the case.2
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective October 16, 2015.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 16, 2015decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See
20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G.,
58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal appellant contends that the statement of accepted facts (SOAF) was
incomplete as it did not include conditions accepted under File No. xxxxxx370 and failed to
consider all the relevant diagnostic tests.
FACTUAL HISTORY
On September 20, 2014 appellant, then a 57-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 18, 2014 she sustained right wrist and elbow and
bruised knees when she tripped and fell while delivering a parcel. She stopped work on
September 19, 2014 and has not returned. OWCP accepted the claim for right wrist radiocarpal
sprain and right forearm traumatic arthropathy. It paid appellant wage-loss compensation
beginning November 3, 2014 on the supplemental roll. OWCP also authorized right wrist
arthroscopic surgery and right ulna shortening osteoplasty which occurred on February 25, 2015.
In a report dated September 29, 2014 Dr. Michael W. Kessler, a treating Board-certified
orthopedic surgeon, diagnosed right distal radioulnar joint strain. He provided a history of injury
and physical examination findings. Dr. Kessler reported appellant was disabled from lifting and
repetitive work using her right arm. In duty status reports (Forms CA-17) dated September 29
and October 17, 2014, appellant was advised that she could resume work on September 30, 2014
with restrictions. The restrictions included no lifting or repetitive activity using the right arm, up
to four hours per day of standing, and up to eight hours per day of sitting.
In attending physician’s reports (Forms CA-20) dated February 9, June 1 and 30, 2015,
Dr. Kessler diagnosed right wrist triangular fibrocartilage complex (TFCC) and ulnar abutment
syndrome, which he opined had been exacerbated by her fall. Dr. Kessler found appellant totally
disabled for the period February 25 to May 25, 2015 but could resume her usual work duties on
June 25, 2015.
OWCP received duty status reports (Forms CA-17) dated March 16, 27, April 21, June 1,
30, and July 10, 2015 from Dr. Kessler found appellant continued to be disabled from work.
OWCP referred appellant for a second opinion evaluation with Dr. Burke Haskins, a
Board-certified orthopedic surgeon, to determine whether appellant continued to suffer from
residuals of the accepted conditions and whether she was disabled from work.3 The SOAF noted
that appellant’s claim had been accepted for right wrist radiocarpal sprain and right forearm
traumatic arthropathy. It noted appellant’s occupation of rural carrier, the mechanism of injury,
that appellant had been released to limited-duty work in November 2014, that she had right
triangular fibrocartilage complex tear surgery on February 25, 2015, and had undergone
occupational therapy. The SOAF also listed a series of preexisting and concurrent medical
conditions. It reported that appellant was currently not working.
In a June 14, 2015 report, Dr. Kessler reported that appellant continued to have small and
ring finger stiffness, numbness and tingling. Appellant also had pain complaints and a feeling as
if something was inside her hand. Dr. Kessler diagnosed status post right ulnar shortening
3

OWCP also requested Dr. Haskins to provide an impairment rating using sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).

2

osteotomy, rule out median or ulnar neuropathy, and right small and ring trigger fingers. He
concluded that appellant would continue with therapy to increase her range of motion.
In a July 10, 2015 Form CA-20, Dr. Kessler diagnosed right wrist TFCC and ulnar
abutment syndrome, which he opined had been exacerbated by her fall. He indicated that
appellant was totally disabled for the period February 25 to June 25, 2015. Dr. Kessler also
completed a Form CA-17 on July 10, 2015 indicating appellant was disabled from work.
In a July 10, 2015 report, Dr. Haskins, based upon a review of the SOAF, medical
history, and physical examination, diagnosed wrist sprain, TFCC tear due to the employment
injury and preexisting right radioulnar degenerative joint disease. A physical examination
revealed negative right Tinel’s sign at wrist and elbows, and no complaints of discomfort on
palpation of right distal radioulnar joint. Right wrist range of motion included 70 degrees
dorsiflexion, 63 degrees palmar flexion, 36 degrees ulnar deviation, and 22 degrees radial
deviation. Dr. Haskins reported that appellant had pain complaints with activity in her palmar
region and fifth and fourth digits. The pain complaints and symptoms, according to Dr. Haskins,
were unrelated to the accepted conditions or employment injury. Dr. Haskins reported appellant
was at maximum medical improvement and no longer required further medical treatment for her
employment injuries. With respect to her ability to work, Dr. Haskins opined that appellant had
no work limitations and was able to return to full work duty. In an attached work capacity
evaluation (Form OWCP-5c), Dr. Haskins checked “yes” to the question of whether appellant
could return to her usual job with no restrictions.4
On August 18, 2015 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits. It found the weight of the evidence established that she no
longer had any residuals or disability due to her accepted conditions, based upon the opinion of
Dr. Haskins, the OWCP referral physician.
In a letter dated September 2, 2015 appellant’s representative disagreed with OWCP’s
proposal to terminate her compensation benefits. The representative argued that the SOAF
prepared by OWCP contained inaccurate information and failed to list all the conditions accepted
by OWCP. Inaccuracies included a statement that appellant had been released to limited-duty
work, which appellant contended did not occur. In addition, the SOAF had failed to include
conditions accepted under another claim,5 including bilateral carpal tunnel syndrome, bilateral
hand and wrist tenosynovitis, and left chondromalacia patellae, which she argued was relevant to
the instant claim.
A functional capacity evaluation (FCE), which Dr. Kessler ordered, was performed on
September 17, 2015.6 The FCE noted that appellant’s usual job duties would be classified as
medium, but that appellant was only capable of performing light-duty work for eight hours. The
FCE concluded that appellant had right wrist and hand objective musculoskeletal findings which
4

Dr. Haskins also provided an impairment rating for appellant’s right upper extremity using the sixth edition of
the A.M.A., Guides.
5

The representative referenced File No. xxxxxx370.

6

The report contains no signatures.

3

interfered with the performance of her usual job. It found that the physical restrictions of her
usual job were outside her current restrictions of light-duty work as it required a medium work
level.
In a September 18, 2015 report, Dr. Kessler noted that appellant continued to complain of
right wrist distal ulnar discomfort and stiffness with her digits when attempting flexion and
minor discomfort on pronation and supination activities with the ulnar side of her wrist. A
physical examination of the right wrist revealed negative fovea sign, negative TFCC grind test,
normal median radial ulnar nerves sensation, no tenderness on palpation of the small finger or
thumb index long ring finger, and negative Tinel’s sign over ulnar nerve dorsal sensory branch.
Dr. Kessler reported appellant was status post right ulnar shortening osteotomy for ulnar
impaction syndrome.
The record also contains CA-17 and CA-20 forms dated August 18, 2015 by Dr. Kessler.
The CA-20 form indicated appellant was released to light-duty work on June 25, 2015 while
Dr. Kessler indicated in the CA-17 form that she was disabled from work.
By decision dated October 16, 2015, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day. It found the weight of the evidence rested
with Dr. Haskins’ opinion that appellant no longer had any residuals or disability due to her
accepted right wrist radiocarpal sprain and right forearm traumatic arthropathy.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.7 After it has determined that an
employee has disability causally related to her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.8 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.9
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.10 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.11

7

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

8

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

9

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

10

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

11

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

4

ANALYSIS
OWCP accepted appellant’s claim for right wrist radiocarpal sprain and right forearm
traumatic arthropathy and authorized right wrist arthroscopic surgery and right ulna shortening
osteoplasty, which occurred on February 25, 2015. By decision dated October 16, 2016, OWCP
terminated appellant’s compensation effective that day, based on the opinion of Dr. Haskins who
found the accepted conditions had ceased without residuals. The issue on appeal is whether
OWCP met its burden of proof. The Board finds that OWCP met its burden of proof to
terminate appellant’s compensation benefits effective October 16, 2015.
Appellant submitted reports from Dr. Kessler, an attending Board-certified orthopedic
surgeon, who diagnosed right distal radioulnar strain, ulnar abutment syndrome, and right wrist
TFCC. In CA-20 forms dated June 1 and 30, and August 18, 2015, Dr. Kessler indicated that
appellant could return to either full-duty or light-duty work; while in CA-17 forms dated June 1
and 30, July 10 and August 18, 2015, he indicated that appellant was totally disabled.
Dr. Kessler did not explain how and why the accepted conditions disabled appellant on and after
June 25, 2015 or required continuing medical treatment. In addition, Dr. Kessler failed to
explain why he concluded that appellant was capable of working in CA-20 forms while finding
she was totally disabled from work in CA-17 forms dated the same day.
In contrast, Dr. Haskins, the second opinion physician, explained that appellant no longer
required work restrictions as the accepted conditions had resolved. Following a thorough clinical
examination, he explained that appellant’s pain complaints and symptoms were unrelated to her
accepted employment injuries as they involved the palmar region and fourth and fifth digits.
Dr. Haskins, also based his opinion on a detailed review of the medical record and the SOAF.
He found nothing in appellant’s history, test results, or clinical presentation that precluded her
from returning to full duty as a rural carrier.
OWCP also received an unsigned September 17, 2015 FCE. This report is of no
probative value, however, as the preparer is unidentified. It is well established that medical
evidence lacking proper identification is of no probative medical value.12
The Board finds that OWCP properly accorded Dr. Haskin’s opinion the weight of the
medical evidence. Dr. Haskin was clear in his findings and opinions and provided a detailed
explanation as to why the accepted conditions were no longer present or active. His opinion was
also based on a complete and accurate factual and medical history. OWCP’s October 16, 2015
decision terminating appellant’s wage-loss compensation and medical benefits was therefore
proper under the law and facts of this case.
On appeal appellant argues that the SOAF OWCP prepared and provided to Dr. Haskins
was flawed as it failed to include accepted employment conditions under another claim. She also
argues that OWCP failed to consider a July 7, 2015 electromyograph study (EMG). This study is
not in the record before the Board. With regard to her argument regarding the SOAF, the Board
finds it contained all the conditions accepted by OWCP for the present claim along with a series
12

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004); Merton J. Sills, 39 ECAB
572 (1988)

5

of preexisting and concurrent conditions. The issue presented to Dr. Haskins concerned whether
appellant continued to have residuals and disability due to the accepted conditions of right wrist
radiocarpal sprain and right forearm traumatic arthropathy under the present case. Dr. Haskins
was not asked to provide an opinion regarding the conditions OWCP had accepted under File
No. xxxxxx370. As the SOAF contained all the conditions accepted under the current claim, it
was complete.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective October 16, 2015.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 16, 2015 is affirmed.
Issued: May 26, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HEALTH & HUMAN
)
SERVICES, SOCIAL SECURITY
)
ADMINISTRATION, Washington, DC, Employer )
__________________________________________ )
M.O., Appellant

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

Docket No. 08-718
Issued: December 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 14, 2008 appellant, through her attorney, filed a timely appeal of an
October 22, 2007 merit decision of the Office of Workers’ Compensation Programs, denying
modification of the termination of her wage-loss compensation and medical benefits. Pursuant to
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 the Office properly terminated appellant’s wage-loss
compensation and medical benefits effective December 21, 2006 on the grounds that she no
longer had any residuals or disability causally related to her accepted July 31, 2001 employment
injuries; and (2) whether appellant established that she had any continuing employment-related
residuals or disability after December 21, 2006.

FACTUAL HISTORY
This case has previously been before the Board. In an August 8, 2006 decision, the
Board affirmed the Office’s July 14, 2005 decision which found that appellant did not sustain
consequential injuries from her previously accepted condition and denied authorization for
surgeries.1 The Board, however, reversed the Office’s December 23, 2004 decision which
terminated appellant’s wage-loss compensation effective December 26, 2004. The Board found
that the Office did not meet its burden of proof as a conflict existed in the medical opinion
evidence between Dr. Nelson H. Hendler, an attending Board-certified neurologist, and
Dr. Robert F. Draper, an Office referral physician, as to whether she sustained any employmentrelated disability. The facts and the circumstances of the case as set forth in the Board’s prior
decision are incorporated herein by reference.2
By letter dated September 15, 2006, the Office referred appellant, together with a
statement of accepted facts, the case record and a list of questions to be addressed, to
Dr. Edward R. Cohen, a Board-certified orthopedic surgeon, for an impartial medical
examination.
In an October 5, 2006 medical report, Dr. Cohen reviewed a history of appellant’s
July 31, 2001 employment injuries and medical treatment. On physical examination, he reported
essentially normal findings with the exception of restricted range of motion of the neck and
subjective tenderness to palpation from the mid-thoracic region down to the lumbar region.
Dr. Cohen reviewed x-ray results which demonstrated degenerative changes in appellant’s neck,
back and left shoulder. He stated that appellant’s cervical and left shoulder sprains had resolved.
Dr. Cohen had preexisting degenerative cervical and lumbar disc disease and bilateral
patellofemoral arthritis. Appellant also had arthritis of the bilateral acromioclavicular joints and
a contusion of the left knee. Dr. Cohen opined that she had reached maximum medical
improvement. He further opined that appellant did not have any residual impairment related to
her July 31, 2001 employment injuries. Dr. Cohen stated that there was no evidence of any
disruption or alteration to any anatomical structure as a result of the accepted employment
injuries. He stated that, at most, she temporarily aggravated extensive preexisting conditions.
Dr. Cohen opined that appellant had recovered from her accepted employment injuries. He
related that her subjective complaints were associated with minimal objective findings that were
consistent with the residuals of degenerative joint disease which was an ordinary disease of life.
Dr. Cohen further related that appellant did not require any further medical treatment. He
concluded that she could return to her preinjury position as a budget management officer.

1

Docket No. 05-1817 (issued August 8, 2006).

2

On August 3, 2001 appellant, then a 56-year-old budget management officer, filed a traumatic injury claim
alleging that on July 31, 2001 she hurt the left side of her head, hip, leg and shoulder when the driver of an
employing establishment van turned the curve which caused the right side of a seat to come off its hinges and she
fell into the left side of the van. By letter dated October 22, 2001, the Office accepted appellant’s claim for left
shoulder, lumbosacral and cervical spine strains. Subsequently, it accepted the claim for left hip strain, headache,
contusion of the left knee and aggravation of preexisting degenerative disc disease and osteoarthritis. Appellant
received appropriate compensation for total disability.

2

By letter dated November 15, 2006, the Office issued a notice of proposed termination of
appellant’s wage-loss compensation and medical benefits based on Dr. Cohen’s medical opinion.
It provided 30 days in which she could respond to this notice.
In a decision dated December 21, 2006, the Office terminated appellant’s wage-loss
compensation and medical benefits effective that date. In a September 5, 2007 letter, appellant,
through her attorney, requested reconsideration. Counsel contended that the Office erred in not
expanding the acceptance of appellant’s claim to include all the conditions she sustained as a
result of the July 31, 2001 employment incident, which was supported by the medical evidence
of record. He further contended that an accompanying February 14, 2007 report of
Dr. Howard J. Hoffberg, a Board-certified physiatrist, established that appellant continued to be
disabled due to the July 31, 2001 employment injuries. Counsel also contended that Dr. Cohen’s
October 5, 2006 report was of diminished probative value as it was not based on an accurate
history with respect to the injuries and conditions appellant sustained due to the July 31, 2001
employment incident.
In the February 14, 2007 report, Dr. Hoffberg reviewed a history of appellant’s July 31,
2001 employment injuries and medical treatment. He disagreed with Dr. Cohen’s and
Dr. Draper’s opinion that her symptoms had resolved. Dr. Hoffberg stated that the record
established that her continuing symptoms which included headaches, neck, shoulder, low back
and buttock pain, tinnitus, disequilibrium, fatigue, weakness and acroparesthesias were causally
and wholly related to her July 31, 2001 employment injuries. He further stated that appellant’s
preexisting bilateral knee pain and left knee symptoms were aggravated by the accepted
employment injuries.
By decision dated October 22, 2007, the Office denied modification of the December 21,
2006 decision. It accorded special weight to Dr. Cohen’s impartial medical opinion in finding
that appellant no longer had any continuing residuals or disability causally related to the July 31,
2001 employment injuries.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his or her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.3
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment, the
3

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

4

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

5

Pamela K. Guesford, 53 ECAB 726, 728 (2002); Furman G. Peake, 41 ECAB 361, 364 (1990).

3

Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.
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.6
ANALYSIS -- ISSUE 1
The Office terminated appellant’s wage-loss compensation and medical benefits based on
the special weight it accorded to the medical opinion of Dr. Cohen, an impartial medical
specialist. In an October 5, 2006 report, he reviewed a history of appellant’s July 31, 2001
employment injuries and medical treatment. Dr. Cohen listed no objective findings of residuals
relative to the accepted July 31, 2001 employment-related left shoulder, hip and lumbosacral and
cervical spine strains, headache, left knee contusion and aggravation of preexisting degenerative
disc disease and osteoarthritis. He noted appellant’s restricted range of motion of the cervical
spine and tenderness to palpation from the mid-thoracic region down to the lumbar region. After
reporting essentially normal findings on physical examination and reviewing appellant’s medical
records, Dr. Cohen opined that she had recovered from the accepted employment injuries. He
stated that there was no evidence of any disruption or alteration to any anatomical structure as a
result of the accepted employment injuries. Dr. Cohen further stated that at most, appellant
temporarily aggravated extensive preexisting conditions. He explained that her subjective
complaints were associated with minimal objective findings that were consistent with the
residuals of degenerative joint disease which was an ordinary disease of life. Dr. Cohen stated
that appellant did not require any further medical treatment and that she could resume working in
her preinjury budget management officer position.
The Board finds that Dr. Cohen’s October 5, 2006 opinion is based on a proper factual
and medical background and is entitled to special weight. Based on his review of the case record
and normal findings on physical examination, Dr. Cohen found that appellant did not have any
residuals or disability causally related to her employment-related left shoulder, hip and
lumbosacral and cervical spine strains, headache, left knee contusion and aggravation of
preexisting degenerative disc disease and osteoarthritis. For this reason, Dr. Cohen’s report
constitutes the special weight of the medical opinion evidence afforded an impartial medical
specialist. The Board, therefore, finds that the Office met its burden of proof to terminate
appellant’s compensation benefits effective December 21, 2006.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injury.7 To establish a causal relationship between the condition, as well as any attendant
6

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

7

See Manuel Gill, 52 ECAB 282 (2001).

4

disability claimed and the employment injury, an employee must submit rationalized medical
evidence, based on a complete factual and medical background, supporting such a causal
relationship.8 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.9 Rationalized medical evidence
is medical evidence which includes a physician’s rationalized medical opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.10
ANALYSIS -- ISSUE 2
The Board finds that appellant did not establish that she had any continuing employmentrelated residuals or disability after December 21, 2006. Dr. Hoffberg’s February 14, 2007 report
stated that appellant’s continued symptoms which included headaches, neck, shoulder, low back
and buttock pain, tinnitus, disequilibrium, fatigue, weakness and acroparesthesias were causally
and wholly related to her July 31, 2001 employment injury. He further stated that her preexisting
bilateral knee pain and left knee symptoms were aggravated by the accepted employment
injuries. However, Dr. Hoffberg did not provide any medical rationale explaining how or why
appellant’s residuals and current diagnosed conditions were caused by the accepted employment
injuries.11 The Board notes that the Office has not accepted appellant’s claim for a buttock
condition, tinnitus, disequilibrium, fatigue, weakness and acroparesthesias.
Moreover,
Dr. Hoffberg did not identify any period of total disability due to appellant’s accepted
employment-related injuries.
The Board finds that appellant did not submit sufficient rationalized medical evidence to
substantiate that the claimed continuing residuals and disability on or after December 21, 2006
were causally related to her accepted employment-related injuries.
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective December 21, 2006 on the grounds that she no longer had any
residuals or disability causally related to her accepted July 31, 2001 employment injuries. The
Board further finds that she failed to establish that she had any continuing employment-related
residuals or disability after December 21, 2006.

8

Id.

9

Elizabeth Stanislav, 49 ECAB 540 (1998).

10

Solomon Polen, 51 ECAB 341 (2000).

11

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 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).

5

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 10, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6