United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wilmington, DE, Employer
__________________________________________

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

Docket No. 07-677
Issued: June 21, 2007

Case Submitted on the Record

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

JURISDICTION
On January 16, 2007 appellant filed a timely appeal from a July 25, 2006 decision of an
Office of Workers’ Compensation Programs’ hearing representative which affirmed a schedule
award for 13 percent impairment of the right upper extremity. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant established greater than 13 percent impairment of the right
upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On January 9, 2003 appellant, then a 53-year-old mail carrier, sustained a right shoulder
injury when he attempted to catch a falling tray of mail. He stopped work on May 8, 2003 to
undergo a right shoulder acromioplasty repair and returned to work on June 2, 2003. The Office
accepted appellant’s claim for rotator cuff tear and paid appropriate compensation.

On February 25, 2003 the Office authorized right shoulder open anterior acromioplasty
repair. Dr. Stephen L. Hershey, a Board-certified orthopedic surgeon, performed the surgery on
May 12, 2003 and recorded preoperative and postoperative diagnoses of right shoulder rotator
cuff tear. On June 2, 2003 appellant accepted a light-duty position with the employing
establishment.
Appellant requested a schedule award on December 7, 2005. In a July 7, 2005 report,
Dr. Nicholas Diamond, an osteopath, reviewed appellant’s medical history and stated that he
presented with subjective complaints of right shoulder pain and an intermittent “pins and needles
sensation” in his right hand. He also reported that appellant rated his pain level at 4/10. Upon
physical examination, Dr. Diamond noted a well-healed surgical scar over the anterior aspect of
the right shoulder, with tenderness in the acromioclavicular joint, anterior cuff and bicipital
groove. He measured appellant’s right shoulder range of motion and noted 165 degrees of
flexion and 130 degrees of abduction. Dr. Diamond found that appellant otherwise exhibited full
range of motion but experienced some pain with internal rotation. He diagnosed right shoulder
massive rotator cuff tear, status post right shoulder open rotator cuff repair and status post right
shoulder acromioplasty. He based his impairment rating on the American Medical Association,
Guides to the Evaluation of Permanent Impairment, (5th ed.). He calculated 10 percent
impairment for right shoulder resection acromioplasty, based on Table 16-27,1 1 percent
impairment for loss of flexion, based on Figure 16-402 and 2 percent impairment for loss of
abduction, based on Figure 16-433 of the A.M.A., Guides, for a combined impairment rating of
13 percent of the right upper extremity. He then added an additional 3 percent for “pain-related
impairment,” under Table 18-1, of the A.M.A., Guides for a total of 16 percent impairment of the
right upper extremity.
On February 2, 2006 Dr. Morley Slutsky, Board-certified in preventative medicine and an
Office medical consultant, reviewed Dr. Diamond’s impairment rating. He concluded that
appellant had 13 percent impairment of the right arm. Dr. Slutsky agreed with Dr. Diamond that
appellant had three percent impairment attributable to loss of range of motion. He noted that
appellant’s right shoulder acromioplasty “is not a ratable impairment per Table 16-27, page 506;
however, Dr. Diamond applied 10 percent upper extremity impairment for this operation.
Dr. Slutsky agreed with Dr. Diamond’s assignment of 10 percent impairment for the
acromioplasty and explained that “a distal clavicle resection is ratable at 10 percent upper
extremity impairment per this table and I feel the acromioplasty is equally impairing as the distal
clavicle resection.” However, he disagreed with Dr. Diamond’s inclusion of three percent
impairment for pain under Table 18-1. Dr. Slutsky explained:
“Dr. Diamond indicated that ‘[r]ange of motion is restricted and painful.’ This
means that [appellant’s] reduced shoulder range of motion is partly due to pain
and, therefore, pain was already addressed in the impairment for loss of right
shoulder range of motion. Thus, the organ system rating methods used above (for
1

A.M.A., Guides, 5th ed., 506, Table 16-27.

2

Id. at 476, Figure 16-40.

3

Id. at 477, Figure 16-43.

2

loss of range of motion and acromioplasty) take into account pain and I do not
feel an additional three percent needs to be added.”
Dr. Slutsky found that appellant reached maximum medical improvement on July 7, 2005, the
date of Dr. Diamond’s examination.
By decision dated February 7, 2006, the Office granted appellant a schedule award for 13
percent impairment of the right upper extremity.
After issuance of the Office’s decision, appellant provided a January 16, 2006 report
from Dr. Hershey who agreed with Dr. Diamond’s finding that appellant had 13 percent
impairment of the right upper extremity.
On February 10, 2006 appellant requested an oral hearing which was held on
June 12, 2006. He submitted a March 30, 2006 report from Dr. Diamond who noted that
appellant reported his pain level as 4/10 and characterized it as daily and constant in nature,
interfering with the activities of daily living and awakening him at night. Dr. Diamond
explained:
“According to the A.M.A., Guides, (5th ed.), page 574, [F]igure 18-1, it is noted
that, ‘if pain-related impairment appears to increase the burden of the individual’s
condition slightly, the examiner can increase the percentage up to three percent.
No formal assessment of pain-related impairment is required.’ It is my opinion,
due to [appellant’s] constant and daily right shoulder pain, along with his
restrictions in activities of daily living, that [appellant] is entitled to a 3 percent
pain-related impairment, in addition, bringing the total right upper extremity
impairment to 16 percent.”
By decision dated July 25, 2006, the hearing representative affirmed the February 7, 2006
schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulation5 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, the Act 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 regulation as the appropriate standard for evaluating schedule losses.6

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

See id.; Linda R. Sherman, 56 ECAB ___ (Docket No. 04-1510, issued October 14, 2004).

3

ANALYSIS
The Board finds that the Office properly rated appellant’s right upper extremity
impairment at 13 percent. The Office medical consultant, Dr. Slutsky, used Dr. Diamond’s
range of motion measurements which recorded 165 degrees of flexion and 130 degrees of
abduction. Pursuant to the A.M.A., Guides, Figure 16-40 on page 476, a measurement of 165
degrees of flexion corresponds to one percent impairment based on range of motion deficit.7
Pursuant to Figure 16-43 on page 477 of the A.M.A., Guides, a measurement of 130 degrees of
abduction yields 2 percent impairment based on range of motion deficit.8 Accordingly,
appellant’s impairment based on range of motion deficit is three percent. Both Dr. Slutsky and
Dr. Diamond agreed upon this rating for loss of shoulder motion.
Dr. Diamond also awarded appellant 10 percent impairment for his right shoulder
acromioplasty and repair. He based this rating on Table 16-27 on page 506 of the A.M.A.,
Guides.9 Section 16.7(b) of the A.M.A., Guides notes that in the presence of decreased motion a
rater may combine impairment values for loss of range of motion and arthroplasty.10 Table 1627 provides for impairment ratings for total shoulder arthroplasty, distal clavicle arthroplasty and
proximal clavicle arthroplasty of both the implant and resection varieties.11 Pursuant to Table
16-27, a distal clavicle arthroplasty resection corresponds to 10 percent impairment of the right
arm.12 Dr. Slutsky agreed with Dr. Diamond that appellant’s right shoulder open acromioplasty
and repair was equally as impairing as a distal clavicle arthroplasty. Under the Combined Values
Chart at page 604 of the A.M.A., Guides, 10 percent combined with 3 percent yields 13 percent.
Dr. Slutsky did not concur with Dr. Diamond’s recommendation of an additional three
percent impairment based on pain under Chapter 18 of the A.M.A., Guides. The Office properly
relied upon his recommendation and excluded the three percent pain-related impairment.
Dr. Slutsky noted that appellant’s reduced shoulder range of motion was partly due to pain such
that pain was already addressed in the impairment for loss of right shoulder range of motion and
no additional rating was warranted. Furthermore, the A.M.A., Guides specifically provide that
“examiners should not use [Chapter 18] to rate pain-related impairment for any condition that
can be adequately rated on the basis of the body and organ impairment rating systems given in
other chapters of the A.M.A., Guides.”13 The Board has also recognized that physicians should
not use Chapter 18 to rate pain-related impairments for any condition that can be adequately

7

A.M.A., Guides 476, Figure 16-40.

8

Id. at 477, Figure 16-43.

9

Id. at 506, Table 16-27.

10

Id. at 505.

11

Id. at 506, Table 16-27.

12

Id.

13

Id. at 571. See also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 4 (June 2003); Linda Beale, 57 ECAB ___ (Docket No. 05-1536, issued February 15, 2006).

4

rated on the basis of the body and organ impairment systems given in other chapters of the
A.M.A., Guides.14
The Board finds that Dr. Diamond did not sufficiently explain why the objective ratings
system in Chapter 16, The Upper Extremities, of the A.M.A., Guides was inadequate to rate
appellant’s impairment due to pain. Dr. Diamond noted that the A.M.A., Guides do not require a
“formal assessment” of pain-related impairment.15 The A.M.A., Guides do, however, require
that a physician explain why objective ratings are not adequate to measure impairment and why
additional impairment for pain is appropriate or necessary.16 In his March 30, 2006 report,
Dr. Diamond stated that he believed pain-related impairment was appropriate because appellant
had characterized his pain as constant and reported that it interfered with the activities of daily
living. However, Dr. Diamond did not identify specific activities or provide detailed reasoning
concerning why appellant’s pain impairment was not adequately rated under Chapter 16, based
on the ratings allowed for surgery and loss of range of motion.17 Moreover, the Board notes that
Dr. Hershey, in concurring with Dr. Diamond’s impairment rating, did not offer any additional
rationale or reasoning for why appellant’s pain impairment was not adequately rated under
Chapter 16 of the A.M.A., Guides. Accordingly, the Board finds that the Office properly
excluded pain-related impairment, as it appears that Dr. Diamond based his impairment rating
for shoulder pain on an improper application of the A.M.A., Guides.
The Board finds that the Office properly found that appellant had 13 percent impairment
of the right arm for which he was granted a schedule award.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
was entitled to greater than 13 percent impairment of the right upper extremity, for which he
received a schedule award.

14

See Frantz Ghassan, 57 ECAB ___ (Docket No. 05-1947, issued February 2, 2006) (appellant’s physician
improperly attributed three percent left leg impairment to Chapter 18 of the A.M.A., Guides but the physician did
not explain why this pain-related impairment could not be adequately rated by applying Chapter 17 of the A.M.A.,
Guides).
15

See A.M.A., Guides 574, Figure 18-1.

16

Id. at 570-71.

17

The principles of assessment at Chapter 16.1 note that the impairment ratings developed and retained in this
chapter were developed to reflect the degree of impairment and its impact on the ability of the individual to perform
activities of daily living. The rationale provided by Dr. Diamond for applying Table 18-1 is already reflected in the
tables applicable under Chapter 16. Id. at 434.

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ORDER
IT IS HEREBY ORDERED THAT the July 25, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 21, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
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and
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DEPARTMENT OF HOMELAND SECURITY,
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EMERGENCY PREPAREDNESS
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& RESPONSE, Washington, DC, Employer
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___________________________________________ )
P.S., Appellant

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

Docket No. 15-199
Issued: June 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 5, 2014 appellant filed a timely appeal from an October 3, 2014 Office of
Workers’ Compensation Programs’ (OWCP) nonmerit decision. As the last merit decision was
issued on August 1, 2013 more than 180 days from the filing of this appeal, the Board does not
have jurisdiction over the merits of the claim. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 22, 2012 appellant, then a 55-year-old human resources specialist, filed a
traumatic injury claim alleging that on October 12, 2012 she tripped over a yellow caution sign
in the ladies restroom and fell on her lower back, bruising both legs, and her back, while in the
performance of duty. She stopped work on October 12, 2012.
In an October 26, 2012 letter, the employing establishment controverted the claim and
noted that the discharge notes revealed that appellant was treated for her preexisting conditions
in addition to back pain, slip, and fall. It contended that the medical evidence did not support
causal relationship.
OWCP received hospital records, out of work slips, and treatment records from
Dr. Joseph T. Crowe, a Board-certified orthopedic surgeon.
By letter dated June 24, 2013, OWCP noted that appellant’s claim initially appeared to be
a minor injury that resulted in minimal or no lost time from work and the claim was
administratively handled to allow limited medical expenses. However, appellant’s claim was
now being reopened as a wage-loss claim was received. OWCP informed her of the type of
evidence needed to support her claim and requested that she submit such evidence. It explained
that a physician’s opinion was crucial to appellant’s claim and allotted her 30 days within which
to submit the requested information.
In response, OWCP received treatment records from Dr. Crowe. An October 17, 2012
magnetic resonance imaging (MRI) scan, read by Dr. German G. Tampe, a Board-certified
diagnostic radiologist, revealed grade 1 anterolisthesis, L4-L5 with degenerative changes; L4-L5
spinal stenosis, left lateral recess stenosis; degenerative changes, L3-L4 as well as L5-Sl and a
reduced caliber of neural foramina: bilaterally L4, bilaterally L5, with no direct nerve root
distortion; and multiple renal cysts. It also received physical therapy notes, work restrictions,
and a July 30, 2013 statement from appellant describing the incident.
By decision dated August 1, 2013, OWCP denied appellant’s claim as the medical
evidence was not sufficient to establish that a medical condition was diagnosed in connection
with the claimed event and/or work factors.
OWCP received laboratory reports and physical therapy notes.
OWCP also received two reports dated May 9 and 30, 2013 from Dr. Crowe, who
examined appellant and provided findings and prescribed physical therapy.
On July 8, 2014 appellant requested reconsideration. She argued that she was still having
problems with her back and shoulder. Appellant explained that she was seeing a pain specialist
at this time. She noted that she tried to make an appointment with Dr. Crowe for a diagnosis and
his office would not see her under medical insurance due to the denial of her claim. Appellant
also indicated that he was no longer in the office. She explained that she made a new
appointment with another physician to address her back and shoulder injury. Appellant
explained that she was on pain medication for over a year and some days she could not get up
due to the pain. She indicated that she was waiting for a written diagnosis and would forward
2

the paperwork as soon as she was seen by the physician. Appellant also noted that she was
trying to obtain a written diagnosis from Dr. Crowe, and requested that OWCP wait for her
paperwork before making a decision.2
In a decision dated October 3, 2014, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant review of its prior
decision.
LEGAL PRECEDENT
Under section 8128(a) of FECA,3 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments, and
contains evidence that:
“(i) Shows that [OWCP] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [OWCP].”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.5
ANALYSIS
Appellant disagreed with the denial of her traumatic injury claim and timely requested
reconsideration on July 8, 2014. The underlying issue on reconsideration is medical in nature,
namely whether the October 12, 2012 work incident caused or contributed to an injury.
On reconsideration, appellant argued that she was still having problems with her back and
shoulder and was seeing a pain specialist. She indicated that she had been on pain medication
for over a year and that on some days she could not get up because of pain. Appellant explained
that she had tried to make a diagnostic appointment with Dr. Crowe, but his office would not see
her. She then made a new appointment with a different physician. Appellant told OWCP she
2

On June 24, 2014 appellant noted that she was appealing the decision. However, in a July 8, 2014 telephone
memorandum, OWCP inquired into what type of appeal, she wished to pursue. Appellant was advised that “time
wise” a reconsideration was the only remaining option.
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

5

Id. at § 10.608(b).

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was waiting for a written diagnosis and send it as soon as she could. She asked OWCP to wait
for her paperwork before making a decision. The issue on reconsideration is medical. OWCP
denied the claim because it found the medical evidence insufficient to establish a diagnosed
medical condition causally related to the claimed event and/or work factors.6
Appellant did not submit medical evidence on the question of whether her employment
contributed to her claimed condition. OWCP also received reports dated May 9 and 30, 2013
from Dr. Crowe, who examined her, provided findings, and prescribed physical therapy.
Dr. Crowe did not provide a diagnosis or offer an opinion on causal relationship. Likewise, the
laboratory reports did not contain a diagnosis or an opinion on the relevant question of causal
connection. The Board has held that the submission of evidence which does not address the
particular issue involved in a reconsideration does not constitute a basis for reopening a case.7
OWCP also received physical therapy notes. However, physical therapists are not
considered physicians as defined under FECA and thus their reports do not constitute competent
medical evidence.8 Consequently, these reports do not constitute a basis for reopening a case
because the relevant question involves a medical opinion provided by a physician.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, did not advance a relevant legal argument not previously considered by OWCP, or submit
new and relevant evidence not previously considered.
The Board notes that appellant submitted new evidence with her appeal to the Board.
The Board cannot consider this evidence, however, as its review of the case is limited to the
evidence of record which was before OWCP at the time of its final decision.9
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

6

See for example, A.D., 58 ECAB 149 (2006).

7

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

8

Records from a physical therapist do not constitute competent medical opinion in support of causal relation. A
physical therapist is not a physician as defined under FECA.
A.C., Docket No. 08-1453 (issued
November 18, 2008). Medical opinion, in general, can only be given by a qualified physician. S.E., Docket No. 082214 (issued May 6, 2009). See 5 U.S.C. § 8101(2) (defines the term “physician”).
9

20 C.F.R. § 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the October 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 18, 2015
Washington, DC

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

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

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

5


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

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Appearances:
Wayne Johnson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-765
Issued: July 23, 2014

Case Submitted on the Record

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

JURISDICTION
On February 21, 2014 appellant, through her representative, filed a timely appeal from a
January 23, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation benefits
effective April 10, 2013.
On appeal, appellant’s representative contends that appellant’s conditions of cervical disc
syndrome, lumbar disc syndrome and internal derangement of the left shoulder were aggravated
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the January 23, 2014 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

by the August 3, 2011 employment injury. He further contends that OWCP’s referral physicians
should have addressed the aggravations in their reports to find in favor of appellant.
FACTUAL HISTORY
On August 3, 2011 appellant, then a 46-year-old mail processing clerk, sustained injuries
to her neck, both arms, lower, mid and upper back in the performance of duty. She had returned
to light duty on August 3, 2011 after being out of work for accepted left wrist and bilateral
shoulder strains under OWCP File No. xxxxxx133. OWCP accepted the claim for cervical,
thoracic and lumbar sprains and placed appellant on the periodic rolls.
On January 4, 2012 Dr. Samy Bishai, an attending physician and orthopedic surgeon,
diagnosed cervical strain/sprain, bulging disc at C3-4 and C4-5, disc bulge at T6-7 and mild
annular disc bulge at L4-5 and L5-S1. He opined that appellant was disabled due to injuries she
sustained to her neck, both shoulders, left arm, left wrist, and her thoracic and lumbar spine on
October 4, 2008 and an aggravation of the injuries on August 3, 2011 while at work.
OWCP referred appellant to Dr. William Dinenberg, a Board-certified orthopedic
surgeon, for a second opinion examination to determine the nature and extent of her
employment-related conditions. In a January 26, 2012 report, Dr. Dinenberg conducted a
physical examination and reviewed appellant’s medical history and the statement of accepted
facts. Upon examination, he found that appellant had tenderness in the cervical, thoracic and
lumbar spine to palpation. Dr. Dinenberg stated that it was “unclear why [appellant was]
currently having pain in her cervical thoracic, and lumbar spine, though [he did] not feel it [was]
related to the work injury of August 3, 2011.” He stated that appellant’s cervical, thoracic, and
lumbar sprains were caused by an August 3, 2011 employment injury and her other reported
conditions, including left wrist pain, bilateral shoulder impingement, and cervicothoracic and
lumbar degenerative disc disease, were preexisting conditions and not related to the aggravations
by the August 3, 2011 employment injury. Dr. Dinenberg concluded that appellant’s cervical,
thoracic and lumbar sprains had resolved effective January 26, 2012.
In an April 18, 2012 report, Dr. Bishai reviewed Dr. Dinenberg’s January 26, 2012 report
and disagreed with his opinion that appellant’s cervical, thoracic and lumbar sprains had
resolved. He opined that appellant’s condition had worsened because she discontinued physical
therapy and acupuncture while receiving treatment for a gallbladder and a pancreatitis condition
in her abdomen. Dr. Bishai reiterated that appellant sustained an aggravation of her preexisting
conditions on August 3, 2011.
OWCP referred appellant to Dr. Ben Chiang, a Board-certified orthopedic surgeon, to
resolve the conflict in medical opinion between Drs. Dinenberg and Bishai on the issue of
whether appellant continued to have any disability or residuals as a result of the accepted
employment-related conditions.3

3

The record reflects that OWCP initially referred appellant to Dr. Fabio Fiore, a Board-certified orthopedic
surgeon, for an impartial evaluation. After an attempt to clarify the opinion, OWCP found that the reports of
Dr. Fiore were not sufficient to resolve the conflict.

2

Dr. Chiang reviewed a statement of accepted facts, the medical evidence of record and
performed a physical examination. In his October 29, 2012 report, he opined that appellant had
“a very low pain threshold because minor palpation of the cervical, thoracic and lumbar spine
elicit[ed] major complaint of pain and discomfort.” Dr. Chiang stated that appellant “may not
knowingly realize it, but it appear[ed] that she either unconsciously or consciously [had] a
tendency to magnify her symptomatology.” He advised that the degenerative disc disease of
appellant’s neck, thoracic and lumbar spine preexisted the August 3, 2011 employment injury.
Dr. Chiang noted that it normally took between 6 to 12 weeks to recover from a muscle injury
and stated that appellant was 14 months postinjury. Appellant also complained about her
shoulders and left arm, but Dr. Chiang stated that “these [were] covered under a separate claim
with the [employing establishment] and [had] nothing to do with the present injuries that she
suffered on August 3, 2011.” He opined that the soft tissue injuries to appellant’s neck and
lower back were a direct result of the repeated lifting, pushing and pulling that she did at work in
the first 30 minutes of her return to work on August 3, 2011. Dr. Chiang stated that this “could
very well have aggravated the preexisting degenerative disc disease in the neck and low back,
but it should have been a temporary aggravation rather than a permanent aggravation.” He found
a functional range of motion of the cervical, thoracic and lumbar spine and no evidence of
stiffness or muscle spasm. Dr. Chiang concluded that appellant’s employment-related conditions
had resolved and found that she was capable of working with restrictions of lifting, pushing and
pulling no more than 20 pounds.
Appellant submitted reports dated December 20, 2012 and January 17, 2013 from
Dr. Bishai, who reiterated his opinion that appellant continued to have residuals from her
employment-related conditions and was totally disabled for work.
By letter dated February 19, 2013, OWCP notified appellant that it proposed to terminate
her compensation benefits based on the weight of the medical evidence, as represented by
Dr. Chiang.
Appellant submitted a March 11, 2013 report from Dr. Bishai who diagnosed cervical
strain, cervical disc syndrome, dorsal muscle strain of the back, lumbosacral strain and lumbar
disc syndrome. Dr. Bishai stated that “[t]here is no such thing as temporary aggravation of
preexisting conditions when it affects a formidable condition like cervical disc disease or lumbar
disc disease because the condition is progressive and it will continue to get worse.”
By decision dated April 10, 2013, OWCP terminated appellant’s compensation benefits
effective that day. It found the weight of the evidence was represented by Dr. Chiang, the
impartial medical specialist.
On April 29, 2013 appellant, through her representative, requested an oral hearing before
an OWCP hearing representative. She submitted reports dated April 9 through July 11, 2013
from Dr. Bishai who reiterated his diagnoses and opinions. On May 14, 2013 Dr. Bishai advised
that appellant’s condition was still quite severe and she was having pain in her neck and back
with radiculopathy down the arms and legs. He stated that her condition was “not a simple case
of a sprain or strain of the neck and back since [she had] degenerative disc disease in the cervical
spine and the lumbosacral region of the spine.” Dr. Bishai also noted that appellant was quite
depressed and recommended a psychiatric evaluation.

3

In reports dated June 10 through September 30, 2013, Dr. Orlando Ruano, Boardcertified in psychiatry, diagnosed a generalized anxiety disorder and major depressive episode.
He stated that appellant never experienced major symptoms of depression prior to her injuries at
work.
A hearing was held before an OWCP hearing representative on October 29, 2013.
Appellant submitted a December 12, 2013 report from Dr. Bishai who reiterated his
diagnoses and opinions, noting that appellant continued to complain of neck and back pain.
By decision dated January 23, 2014, the hearing representative affirmed the April 10,
2013 termination decision, finding that Dr. Chiang represented the weight of the medical
evidence.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to his or 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.5 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 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.8
Section 8123(a) of FECA provides in pertinent part: 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.9 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.10
4

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

5

See I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

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

7

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

8

See James F. Weikel, 54 ECAB 660 (2003).

9

5 U.S.C. § 8123(a). See R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

10

See V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB
215 (1994).

4

ANALYSIS
OWCP accepted appellant’s claim for cervical, thoracic and lumbar sprains. It
terminated her compensation benefits effective April 10, 2013 finding that the accepted
employment-related conditions had resolved without residuals based on the opinion of the
impartial medical examiner, Dr. Chiang.
OWCP referred appellant to Dr. Chiang to resolve a conflict in medical opinion between
Drs. Dinenberg and Bishai. Dr. Bishai, a treating physician, opined that appellant had residuals
from her accepted employment injuries for which she was totally disabled. Dr. Dinenberg, an
OWCP referral physician, found that appellant no longer had any residuals or disability due to
the accepted employment injuries. He concluded that appellant’s cervical, thoracic and lumbar
sprains had resolved. The Board finds that there was a conflict in medical opinion between
Dr. Bishai and Dr. Dinenberg on the issues of medical residuals and disability. OWCP properly
referred her to Dr. Chiang to resolve the conflict in the medical opinion evidence, pursuant to
5 U.S.C. § 8123(a).
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits based on the October 29, 2012 report of Dr. Chiang who reviewed
appellant’s medical history, examined her and found no objective evidence of ongoing residuals
or disability due to her cervical, thoracic and lumbar sprains. Dr. Chiang reviewed the statement
of accepted facts and the medical record. He found a functional range of motion of the cervical,
thoracic and lumbar spine and no evidence of stiffness or muscle spasm. Dr. Chiang opined that
appellant had “a very low pain threshold because minor palpation of the cervical, thoracic and
lumbar spine elicit[ed] major complaint of pain and discomfort.” He stated that appellant “may
not knowingly realize it, but it appear[ed] that she either unconsciously or consciously [had] a
tendency to magnify her symptomatology.” Dr. Chiang noted that the degenerative disc in
appellant’s neck, thoracic and lumbar spine preexisted the August 3, 2011 employment injury.
He indicated that it normally took between 6 to 12 weeks to recover from a muscle injury and
stated that appellant was 14 months postinjury. Appellant also complained about her shoulders
and left arm, but Dr. Chiang stated that “these [were] covered under a separate claim with the
[employing establishment] and [had] nothing to do with the present injuries that she suffered on
August 3, 2011.” He opined that the soft tissue injuries to appellant’s neck and lower back were
a direct result of the repeated lifting, pushing and pulling that she did at work in the first 30
minutes of her return to work on August 3, 2011. Dr. Chiang stated that this “could very well
have aggravated the preexisting degenerative disc disease in the neck and low back, but it should
have been a temporary aggravation rather than a permanent aggravation.” He concluded that
appellant’s employment-related conditions had resolved and advised that she was capable of
working restrictions of lifting, pushing and pulling no more than 20 pounds.
The Board finds that Dr. Chiang’s report represents the special weight of the medical
evidence at the time OWCP terminated benefits. OWCP relied on his report to terminate
appellant’s compensation benefits. The Board finds that he had full knowledge of the relevant
facts and evaluated the course of appellant’s condition. Dr. Chiang is a specialist in the
appropriate field. His opinion was based on proper factual and medical history and his report
contained a detailed summary of medical history. Dr. Chiang addressed the medical records and
made his own examination findings to reach a reasoned conclusion regarding appellant’s

5

condition.11 At the time benefits were terminated, he found no basis on which to attribute any
residuals or continued disability to appellant’s accepted conditions. Dr. Chiang’s opinion is
found to be probative and reliable. The Board finds that his opinion constitutes the special
weight of the medical evidence and supports OWCP’s termination of benefits for the accepted
cervical, thoracic and lumbar sprains.
Dr. Bishai submitted reports diagnosing cervical strain, cervical disc syndrome, dorsal
muscle strain of the back, lumbosacral strain, lumbar disc syndrome, bulging disc at C3-4 and
C4-5, disc bulge at T6-7 and mild annular disc bulge at L4-5 and L5-S1 and opining that they
were employment related. On May 14, 2013 he indicated that appellant’s condition was “not a
simple case of a sprain or strain of the neck and back since [she had] degenerative disc disease in
the cervical spine and the lumbosacral region of the spine.” As Dr. Bishai was on one side of the
conflict, his reports, without more by way of medical rationale, are insufficient to create a new
conflict in medical opinion to overcome the special weight properly accorded to Dr. Chiang.12
Thus, the Board finds that OWCP properly terminated appellant’s compensation benefits
effective April 10, 2013 relating to the accepted cervical, thoracic and lumbar sprains.
Dr. Ruano submitted reports diagnosing generalized anxiety disorder and major
depressive episode. He noted that appellant never experienced major symptoms of depression
prior to her injuries at work. OWCP has not accepted an emotional condition in this case.
Therefore, the Board finds that Dr. Ruano’s report is not sufficient to establish causal relation to
the accepted employment injuries.
On appeal, appellant’s representative contends that appellant’s conditions of cervical disc
syndrome, lumbar disc syndrome and internal derangement of the left shoulder were aggravated
by the August 3, 2011 employment injury. He further contends that OWCP’s referral physicians
should have addressed the aggravations in their reports and find in favor of appellant. OWCP
has not accepted cervical disc syndrome, lumbar disc syndrome or an internal derangement of
the left shoulder in this case.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation benefits
effective April 10, 2013 on the grounds that her accepted cervical, thoracic and lumbar sprains
had ceased without residuals.

11

See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be
given to each individual report).
12

See Dorothy Sidwell, 41 ECAB 857 (1990); J.M., Docket No. 11-1257 (issued January 18, 2012).

6

ORDER
IT IS HEREBY ORDERED THAT the January 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2014
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

7


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

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

Docket No. 19-0039
Issued: May 7, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 5, 2018 appellant filed a timely appeal from a July 12, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained an
injury on May 14, 2018 in the performance of duty, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the July 12, 2018 decision, OWCP received additional evidence and appellant
submitted evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is
limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before
OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is
precluded from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On June 1, 2018 appellant, then a 43-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 14, 2018 he injured his neck when he tripped and fell while he
was being chased by a dog while in the performance of duty. He related the specific address where
he fell and noted that the incident occurred at 1:30 p.m. On the reverse side of the claim form the
employing establishment indicated that appellant was injured in the performance of duty and had
been transported by ambulance to a hospital for surgery.
In a development letter dated June 11, 2018, OWCP advised appellant that additional
factual and medical evidence was necessary to establish his claim. It provided a questionnaire for
completion. OWCP afforded appellant 30 days to provide the requested information.
Appellant submitted hospital discharge and follow-up instructions dated May 14 and
20, 2018. Neither document was signed.
In a physical therapy report dated May 25, 2018, Emmanuel Moses, a physical therapist,
noted a diagnosis of other traumatic nondisplaced spondylolisthesis of fifth cervical vertebra.
By decision dated July 12, 2018, OWCP denied appellant’s traumatic injury claim finding
that the evidence submitted was insufficient to establish that the event occurred as he described,
and that he had not submitted medical evidence to establish a diagnosed medical condition causally
related to the alleged employment incident. It concluded, therefore, that appellant had not met the
requirements to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period 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
To determine whether a federal employee has sustained a traumatic injury in the performance of
duty, it must first be determined whether fact of injury has been established. A fact of injury
determination is based on two elements. First, the employee must submit sufficient evidence to
establish that he or she actually experienced the employment incident at the time, place, and in the
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
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).

2

manner alleged. Second, the employee must submit sufficient evidence, generally only in the form
of medical evidence, to establish that the employment incident caused a personal injury. An
employee may establish that the employment incident occurred as alleged, but fail to show that a
medical condition relates to the employment incident.6
An employee has the burden of proof to establish the occurrence of an injury at the time,
place, and in the manner alleged, by a preponderance of the reliable, probative, and substantial
evidence. An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, as alleged, but the employee’s
statements must be consistent with surrounding facts and circumstances and his or her subsequent
course of action.7 An employee has not met his or her burden of proof to establish the occurrence
of an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statement in determining whether a prima facie case has been established. An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.10 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.11
ANALYSIS
The Board finds that appellant has met his burden of proof to establish that the May 14,
2018 employment incident occurred in the performance of duty, as alleged. However, the Board
also finds that appellant has not met his burden of proof to establish a diagnosed medical condition
causally related to the accepted May 14, 2018 employment incident.

6

Id.

7

T.M., Docket No. 17-1194 (issued February 4, 2019); see Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
8

T.M., id.; see Constance G. Patterson, 41 ECAB 206 (1989); Thelma S. Buffington, 34 ECAB 104 (1982).

9

E.J., Docket No. 18-0207 (issued July 13, 2018); A.D., 58 ECAB 149 (2006).

10

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2008).

11

P.R., Docket No. 18-0737 (issued November 2, 2018).

3

On his claim form appellant alleged that on May 14, 2018 he sustained a neck injury when
a dog chased him and he tripped and fell while in the performance of duty. He related the specific
address and time of the incident. On the reverse side of the claim form the employing
establishment noted that appellant was injured in the performance of duty and had been transported
to a hospital. In its July 12, 2018 decision, OWCP related that appellant had not submitted
sufficient evidence to establish that the event occurred as he described, and noted that appellant
had not responded to a questionnaire in order to substantiate the factual portion of his claim.
However, the Board finds that the evidence does not contain inconsistencies sufficient to cast
serious doubt on appellant’s version of the occurrence of the employment incident. As noted, an
employee’s statement alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong and persuasive evidence.12 The Board
finds that appellant’s allegations of sustaining a neck injury due to falling after being chased by a
dog have not been refuted by strong or persuasive evidence and there are no inconsistencies to cast
doubt on his version of the employment incident.13 Therefore, the Board finds that appellant has
met his burden of proof to establish that this incident occurred in the performance of duty on
May 14, 2018, as alleged.
In response to OWCP’s June 10, 2018 development letter, appellant submitted unsigned
hospital discharge and follow-up instructions dated May 14 and 20, 2018. Regarding unsigned
medical reports, the Board has explained that it is unknown whether the author of the report is a
physician. Therefore, as the Board has held, a report that is unsigned or bears an illegible signature
lacks proper identification and cannot be considered probative medical evidence.14 Thus, these
reports are of little probative value to establish appellant’s claim.
Appellant submitted a physical therapy report dated May 25, 2018 from Mr. Moses.
However, physical therapists are not considered physicians as defined under FECA and thus their
reports do not constitute competent medical evidence.15
The record before the Board also does not contain rationalized medical opinion evidence
establishing that appellant’s alleged condition was causally related to the accepted May 14, 2018
employment incident. OWCP advised appellant that it was his responsibility to provide a
comprehensive medical report, which described his symptoms, test results, diagnosis, history of
treatment, and a physician’s opinion, with medical reasons, on the cause of his conditions.
Appellant has not submitted sufficient medical documentation in response to OWCP’s request.

12

See supra note 7.

13

C.V., Docket No. 15-0615 (issued September 13, 2016).

14

See L.M., Docket No. 18-0473 (issued October 22, 2018).

15
5 U.S.C. § 8101(2); J.L., 17-1207 (issued December 8, 2017); David P. Sawchuck,, 57 ECAB 316, 322
n.11 (2006)

4

An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relationship.16 Thus, the Board finds that appellant failed to meet
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 met his burden of proof to establish an incident in the
performance of duty on May 14, 2018, as alleged. However, the Board also finds that he has not
met his burden of proof to establish a diagnosed medical condition causally related to the accepted
May 14, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 12, 2018 decision of the Office of Workers’
Compensation Programs is affirmed as modified.
Issued: May 7, 2019
Washington, DC

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

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

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

16
See B.A., Docket No. 17-1130 (issued November 24, 2017); S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 303
(2007); Donald W. Long, 41 ECAB 142 (1989).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, BARRY PLACE
STATION, Stamford, CT, Employer
__________________________________________

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Appearances:
Peter J. Somma, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1351
Issued: March 15, 2010

Case Submitted on the Record

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

JURISDICTION
On April 28, 2009 appellant, through counsel, filed a request for review of a merit
decision of the Office of Workers’ Compensation Programs dated December 1, 2008. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established greater than 13 percent impairment of the
right upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On September 2, 2005 appellant, then a 61-year-old letter carrier, filed a traumatic injury
claim alleging that on October 1, 2002 he injured his left leg, right shoulder and hand when he
was struck from behind while making a curbside delivery. The Office accepted the claim for
right rotator cuff impingement and rotator cuff tear.
Appellant filed a claim for a schedule award. In support of his claim for a schedule
award, he submitted a September 3, 2004 report from Dr. Marc D. Peyser, a treating

chiropractor, and a January 10, 2005 report from Dr. Russell J. Cavallo, a treating Boardcertified orthopedic surgeon.
Dr. Peyser, in his September 3, 2004 report, diagnosed a lateral C4-6 flexion subluxation
by x-ray interpretation, cervical radiculopathy and brachial neuritis. He noted that appellant was
involved in an employment-related automobile accident in October 2002. A physical
examination revealed decreased cervical range of motion in all areas except forward flexion.
Appellant related that he underwent surgery for distal clavicular excision and massive rotator
cuff tear. In concluding, Dr. Peyser opined that appellant had a five percent whole person
impairment due to his injury using the fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides) and that “[a]dditional impairment
is obvious to his shoulder injury and should be combined with this evaluation for a whole person
impairment.”
In a January 10, 2005 report, Dr. Cavallo stated that he first saw appellant in 2003 for his
shoulder pain and noted that appellant had been involved in an employment-related accident in
which his truck was struck from behind by an automobile. He diagnosed rotator cuff tear and
glenohumeral and acromioclavicular mild arthritis. Dr. Cavallo reported that appellant
subsequently underwent rotator cuff surgery on April 30, 2004 which involved massive rotator
cuff tear repair with subacromial decompression and distal clavicle excision. A physical
examination revealed 150 degrees active forward flexion, right external rotation of 20 degrees,
30 degrees left external rotation, no subacromial tenderness and 5-/5 right shoulder strength. As
to internal rotation, Dr. Cavallo stated it “was to L2 on the right, L1 on the left.” He opined that
appellant had a 50 percent right shoulder functional loss. In support of this determination,
Dr. Cavallo stated that appellant had a 15 percent loss for forward flexion, 10 percent for mild
internal and external rotation loss, 10 percent for distal clavicle excision and 15 percent for
rotator cuff tear and repair.
On October 25, 2007 Dr. David I. Krohn, an Office medical adviser and Board-certified
internist, concluded that appellant had a 13 percent right upper extremity permanent impairment.
He determined that there was a 10 percent impairment using Table 16-27, page 506 for
appellant’s distal clavicle excision. As to loss of range of motion, Dr. Krohn concluded that
appellant had a two percent impairment for 150 degrees of flexion using Figure 16-40, page 476
and a zero percent impairment for external rotation as there was only a 10 degree difference
between the shoulders. Next, he related that the A.M.A., Guides do not have a table “that
correlates internal rotation to a vertebral segment rather than in degrees of range of motion,” but
found a one percent right upper extremity impairment for internal rotation. Next, the Office
medical adviser related that the A.M.A., Guides do not provide an impairment rating for repair of
a massive rotator cuff tear beyond that assigned for diminished range of motion. Lastly,
Dr. Krohn noted that the A.M.A., Guides do not allow combining values for decreased strength
and decreased motion.
By decision dated April 15, 2008, the Office issued appellant a schedule award for a 13
percent permanent impairment of the right upper extremity.
In a letter dated May 2, 2008, appellant’s counsel requested an oral hearing before an
Office hearing representative and a telephonic hearing was held on October 6, 2008.

2

By decision dated December 1, 2008, the Office hearing representative affirmed the
April 14, 2008 schedule award decision.1
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 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, the Act does not specify the manner in which the percentage of loss should
be determined. For consistent results and to ensure equal justice under the law for all claimants,
the Office has adopted the A.M.A., Guides as the uniform standards applicable to all claimants.4
Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in 2001, for all
decisions made after February 1, 2001.5
ANALYSIS
The Office accepted the claim for right rotator cuff impingement and rotator cuff tear.
On April 15, 2008 it granted appellant a schedule award for a 13 percent impairment of the right
upper extremity. An Office hearing representative affirmed this determination in a December 1,
2008 decision. The issue to be resolved is whether appellant has established that he has a greater
than 13 percent right upper extremity permanent impairment.
In support of his claim, appellant submitted reports from Drs. Cavallo and Peyser,
chiropractors. Dr. Peyser concluded that appellant had a five percent whole person impairment
due to his injury, but did not identify the tables or figures from the A.M.A., Guides that he relied
upon. Moreover, it is well established that whole person impairments are not permitted under
the Act.6
In a January 10, 2005 report, Dr. Cavallo opined that appellant had a 50 percent right
shoulder functional loss. In support of this conclusion, he determined that appellant had a 15
percent loss for forward flexion, 10 percent for mild internal and external rotation loss, 10
percent for distal clavicle excision and 15 percent for rotator cuff tear and repair. Dr. Cavallo
1

The Board notes that appellant’s counsel submitted new medical evidence with his appeal. The Board may not
consider new evidence on appeal. See 20 C.F.R. § 501.2(c); J.T., 59 ECAB ___ (Docket No. 07-1898, issued
January 7, 2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54
ECAB 373 (2003).
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
See S.K., 60 ECAB ___ (Docket No. 08-848, issued January 26, 2009).
6

A.L., 60 ECAB ___ (Docket No. 08-1730, issued March 16, 2009); Marilyn S. Freeland, 57 ECAB 607 (2006).
The Board notes that Dr. Peyser is considered a “physician” as defined under the Act as he diagnosed subluxation by
use of an x-ray. See 5 U.S.C. § 8101(2).

3

did not, though, identify the relevant tables from the A.M.A., Guides that he relied upon in
reaching this determination. Board precedent is well settled that when an attending physician’s
report gives an estimate of impairment but does not address how the estimate is based upon the
A.M.A., Guides, the Office is correct to follow the advice of its medical adviser or consultant
where he has properly applied the A.M.A., Guides.7
Dr. Krohn, the Office medical adviser, based upon a review of the reports from
Drs. Cavallo and Peyser, concluded that appellant had 13 percent right upper extremity
impairment. He properly found 10 percent impairment for the distal clavicle using Table 16-27,
page 506, and a 2 percent impairment using Figure 16-40, page 476 for 150 degrees of flexion.
It is unclear how Dr. Krohn determined appellant’s impairment rating for internal and external
rotation. With respect to external rotation, he noted that, as the difference between the right and
left shoulders was only 10 degrees, there was a zero percent impairment. However, a review of
Figure 16-46, page 479 reveals that 10 degrees results in two percent impairment for external
rotation. Moreover, Dr. Krohn did not provide any explanation as to why he determined the
difference in external rotation between the two shoulders instead of the actual range of motion
found by Dr. Cavallo for the right shoulder. As to his determination for range of motion for
internal rotation of the right shoulder, he stated that there was no correlation in the A.M.A.,
Guides for range of motion loss for internal rotation related to a vertebral segment, but then
concluded there was a one percent impairment without any explanation or reference to a table or
figure in the A.M.A., Guides.
On remand the Office should obtain a revised impairment rating from Dr. Krohn or
another Office medical adviser that addresses these two issues regarding appellant’s right
shoulder range of motion impairment. After such further development as it deems necessary, it
should issue a de novo decision on his claim for a schedule award for his right upper extremity.
CONCLUSION
The Board finds that this case is not in posture for a decision.

7

J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008); Laura Heyen, 57 ECAB 435 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 1, 2008 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: March 15, 2010
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Southeastern, PA,
Employer
__________________________________________

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

Docket No. 18-0985
Issued: November 4, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 16, 2018 appellant, through counsel, filed a timely appeal from a December 26,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction 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 her burden of proof to establish greater than
four percent permanent impairment of the left upper extremity, for which she previously
received a scheduled award.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 13, 2012 appellant, then a 45-year-old data collection technician, was
involved in a motor vehicle accident while in the performance of duty. She filed a traumatic injury
claim (Form CA-1) and OWCP subsequently accepted her claim for the conditions of left shoulder
acromioclavicular sprain, left rotator cuff sprain, left shoulder adhesive capsulitis, neck sprain, and
lumbosacral sprain. On November 29, 2012 appellant underwent OWCP-authorized left shoulder
surgery.4 OWCP paid her wage-loss compensation on the supplemental rolls through April 3,
2013, at which time she returned to work in a full-time, light limited-duty capacity.
On September 9, 2014 appellant filed a claim for a schedule award (Form CA-7). In
support of her claim, she submitted a June 3, 2014 report by Dr. Nicholas P. Diamond, an attending
osteopath specializing in neuromuscular medicine and pain management, who noted the history of
injury, reviewed the medical record, and performed a physical examination. Dr. Diamond
determined that due to range of motion (ROM) findings of flexion of 160 degrees and abduction
of 140 degrees she had six percent upper extremity permanent impairment. He applied a grade
modifier for functional history of 2, which after net adjustment resulted in six percent left upper
extremity permanent impairment due to loss of shoulder ROM methodology under Table 15-34 on
page 475 of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).5
OWCP routed Dr. Diamond’s report along with a copy of the medical record to Dr. Morley
Slutsky, Board-certified in occupational medicine and serving as a district medical adviser (DMA).
The DMA reviewed the claim on September 12, 2014 and found four percent left upper extremity
permanent impairment utilizing the diagnosis-based impairment (DBI) methodology under the
A.M.A., Guides. The four percent left upper extremity impairment rating was based on a diagnosis
for residuals of a partial thickness rotator cuff tear under Table 15-5, Shoulder Regional Grid, on
page 402 of the A.M.A., Guides.

3

Docket No. 15-1304 (issued March 22, 2017).

4

Dr. John A. Pasquella, an orthopedic surgeon specialist, performed an arthroscopic subacromial decompression,
acromioplasty, and synovectomy.
5

A.M.A., Guides (6th ed. 2009).

2

By decision dated October 20, 2014, OWCP granted appellant a schedule award for four
percent permanent impairment of the left upper extremity. The award covered a period of 12.48
weeks, from July 19 through October 14, 2013.
On December 17, 2014 appellant, through counsel, requested reconsideration.
By decision dated March 17, 2015, OWCP denied modification of its prior schedule award
decision.
On May 22, 2015 appellant, through counsel, filed an appeal with the Board. By decision
dated March 22, 2017, the Board set aside the March 17, 2015 decision.6 The Board found that
OWCP had inconsistently applied Chapter 15 of the A.M.A., Guides regarding the proper use of
either the DBI or ROM methodology in assessing the extent of permanent impairment. The Board
remanded the case for OWCP to issue a de novo decision after development of a consistent method
for calculating permanent impairment of the upper extremities and further development of the
medical evidence as to the extent of appellant’s permanent impairment.
On July 28, 2017 OWCP referred appellant for an impartial medical examination to
Dr. Andrew Gelman, a Board-certified orthopedic surgeon, to resolve a conflict between
Dr. Diamond and the DMA regarding the extent of permanent impairment of the left upper
extremity.
In a September 5, 2017 report, Dr. Gelman reviewed a statement of accepted facts (SOAF),
a copy of the medical record, performed a physical evaluation of appellant, and utilized the
A.M.A., Guides. He referred to Chapter 15, Section 15.1, to explain that “most impairment values
for the upper extremity were calculated using the [DBI] method.”7 Dr. Gelman noted that this was
further recognized in Section 15.2 which advised “[ROM] is used primarily as a physical
examination adjustment factor and only to determine actual impairment values when a grid permits
its use as an option.”8 Dr. Gelman concluded that he would rely on the preferred DBI method as
opposed to the ROM methodology.
In performing his physical examination, Dr. Gelman noted that ROM measurements were
recorded on multiple occasions allowing appellant to loosen up and with regards to measurements
in accordance with the A.M.A., Guides methodology. He indicated that the measurements on the
left varied. Dr. Gelman also indicated that he had taken the average with regard to the recorded
measurements. Regarding the left side, he found active forward ﬂexion of 140 degrees, abduction
to 115 degrees, external rotation to 80 degrees, internal rotation to 50 degrees, extension of 65
degrees, and adduction of 50 degrees. Dr. Gelman explained that on multiple occasions with the
average taken, the right-side measurements noted active forward ﬂexion of 160 degrees, abduction
of 135 degrees, external rotation to 85 degrees, internal rotation to 50 degrees, extension of 85
degrees, and adduction of 50 degrees. He advised that subtle differences on the right side were
6

See supra note 3.

7

A.M.A., Guides 385.

8

Id. at 387.

3

noted and explained that appellant had better movement both on the asymptomatic right side and
minimal with mild discomfort at the extremes on the left side.
Dr. Gelman found a class of diagnosis (CDX) of 1 as reﬂected in Table 15-5,9 utilizing the
diagnosis of impingement syndrome and/or partial thickness tear categories resulting in a default
impairment of three percent. He advised that adjustment grid parameters would then apply and
referenced Table 15-7 for functional history adjustment.10 Dr. Gelman indicated that appellant
had a grade modifier of 1 for functional history (GMFH). He also referred to Table 15-8, for a
grade modifier of 1 for physical examination (GMPE). Dr. Gelman referred to Table 15-9,11 for a
grade modifier for clinical studies (GMCS) of 2. He calculated a net adjustment of plus 1 and
explained that this would move the three percent default rating to four percent upper extremity
permanent impairment.
Dr. Gelman noted that, if the ROM methodology was utilized, Table 15-34, Table 15-35,
Table 15-36 would apply12 and result in eight percent permanent impairment. However, with the
right shoulder as baseline which was without deficits, this would then equate to a rating of zero
percent which he opined would not appear to adequately address appellant’s actual level of
impairment. Dr. Gelman concluded that, as a result, he relied upon the DBI methodology and
opined that appellant had four percent left upper extremity permanent impairment.13
By decision dated December 26, 2017, OWCP denied modification of the October 20,
2014 decision finding that the special weight of the evidence should be afforded to Dr. Gelman, as
a referee examiner, as he had resolved the existing medical conflict.
LEGAL PRECEDENT
The schedule award provisions of FECA,14 and its implementing federal regulations,15 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 for all claimants, OWCP has adopted

9

Id. at 402.

10

Id. at 406.

11

Id. at 410.

12

A.M.A., Guides 475, 477.

13

Dr. Gelman noted appellant’s lumbar spine condition, but noted that he was not provided documentation to
complete a rating of permanent impairment due to the lumbar conditions.
14

5 U.S.C. § 8107.

15

20 C.F.R. § 10.404.

4

the A.M.A., Guides as the uniform standard applicable to all claimants.16 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.17
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. After the CDX is determined the net adjustment formula is applied using GMFH,
GMPE, and GMCS. The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).18
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.19 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.”20 (Emphasis in the original).
Section 8123(a) of FECA provides in pertinent part: “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.”21 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such

16

Id. at 10.404(a).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
18

See A.M.A., Guides 411.

19

FECA Bulletin No. 17-06 (May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket
No. 18-0329 (issued July 26, 2018).
20

Id.

21

5 U.S.C. § 8123(a).

5

specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.22
ANALYSIS
The Board finds that this case is not in posture for decision.
By decision dated March 22, 2017 the Board remanded the case to OWCP for
consideration of appellant’s permanent impairment following development of a consistent
method for rating upper extremity permanent impairment under Chapter 15 of the A.M.A.,
Guides.
On remand OWCP found a conflict in the medical evidence and referred appellant to
Dr. Gelman for a referee evaluation on the issue of permanent impairment. Following the referee
evaluation, by decision dated December 26, 2017, OWCP found the special weight of the medical
evidence was with the opinion of Dr. Gelman and affirmed the schedule award of four percent
permanent impairment of the right upper extremity. The Board finds, however, that OWCP has
not properly developed the medical evidence as ordered on remand. First, Dr. Gelman was
improperly designated as a referee physician as there was no existing conflict at the time of the
designation. The Board had already concluded that the record of evidence did not contain a
medical opinion of any probative value on the issue of upper extremity permanent impairment.
As the attending physician and the DMA were both found to have misapplied the A.M.A., Guides,
no conflict could exist because the physicians’ reports lacked probative value and thus there was
no basis for finding a conflict in medical opinion.23 Second, on remand OWCP was required to
develop and then follow a procedure for a consistent application of the A.M.A., Guides for upper
extremity impairment ratings. On May 8, 2017 FECA Bulletin No. 17-06 was issued. Following
issuance of this Bulletin, OWCP was required to develop the medical evidence of record as to the
extent of permanent impairment by following the new procedures. No such development
occurred in this case.
The Board therefore finds that OWCP improperly developed the evidence as to upper
extremity permanent impairment on remand from the Board’s prior decision. The case is thus
remanded for development of the medical evidence as to appellant’s upper extremity permanent
impairment by following the procedures set forth in FECA Bulletin No. 17-06, to be followed by
a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

22

L.L., Docket No. 19-0214 (issued May 23, 2019); D.M., Docket No. 18-0476 (issued November 26, 2018); R.H.,
59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637, 641 (2002).
23

See J.H., Docket No. 18-1207 (issued June 20, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the December 26, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: November 4, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0813
Issued: November 26, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 4, 2019 appellant filed a timely appeal from a December 19, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish right shoulder and
bilateral elbow conditions causally related to the accepted factors of her federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 24, 2016 appellant, then a 53-year-old workers’ compensation claims examiner,
filed an occupational disease claim (Form CA-2), alleging that she developed bilateral elbow and
right shoulder conditions due to factors of her federal employment. She indicated that she first
became aware of her condition on April 13, 2016 and first realized it was caused or aggravated by
her employment on April 21, 2016. Appellant did not stop work.
In a development letter dated June 6, 2016, OWCP advised appellant of the deficiencies of
her claim and instructed her as to the factual and medical evidence necessary to establish her claim.
It afforded her 30 days to submit additional evidence and respond to its inquiries.
In response, appellant submitted a June 14, 2016 report from Dr. Robert Strugala, a Boardcertified internist, who indicated that appellant had been evaluated on May 12, 2016 for pain in
both arms, with the most significant pain emanating from her right shoulder. Dr. Strugala asserted
that appellant did not recall any definite trauma, but her symptoms had been present since
April 2016 and she struggled with pain that seemed to begin with activities at work. Appellant
described a nonergonomic work setting where the desk relative to the keyboard was at the wrong
height and as a consequence she had to elevate her arms to type and her arms were not in a resting
position. Dr. Strugala reviewed diagnostic testing from May 2016 and found acromioclavicular
(AC) joint degeneration on the right shoulder. He administered an injection and diagnosed right
shoulder pain, which does seem to be consistent with impingement syndrome. Dr. Strugala opined
that appellant’s condition “seemed to have occurred” with consistently elevating the right shoulder
at work due to her desk setting. He further diagnosed adhesive capsulitis of the right shoulder and
provided work restrictions of no lifting and no overhead activities with the right arm.
By decision dated July 12, 2016, OWCP denied the claim, finding that the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
condition and the accepted factors of her federal employment.
On July 26, 2016 appellant requested reconsideration and submitted an ergonomic
workstation assessment dated July 5, 2016 finding that her workstation was set up with a single
monitor, a damaged track ball for a mouse, and an aerodynamic, ergonomic-friendly keyboard.
The assessment noted that appellant sat in an upright sitting position at her desk, but many
inconsistencies in her workstation set up caused her to constantly adjust her body position. The
evaluator made recommendations, including a new mouse, placing the keyboard and mouse in a
more neutral position to eliminate the uneven resting of her arms at different heights, and relieving
congestion at the desk to increase her work space.
In a July 21, 2016 report, Dr. Strugala diagnosed right rotator cuff syndrome with
impingement signs and bilateral lateral epicondylitis. On examination, appellant was tender over
2

Docket No. 17-0861 (issued August 13, 2018).

2

the lateral epicondyle of each elbow and had a positive Hawkins’ test for impingement of the right
shoulder. Dr. Strugala opined that appellant’s conditions were work related based on her
description of her workstation, specifically that her desk was at the wrong height relative to the
keyboard and it required her to elevate her arms in an unnatural position to type and was unable to
maintain her arms in a rested position. He opined that this caused the development of the rotator
cuff issues, as well as the lateral epicondylitis in each elbow. Dr. Strugala noted that no other
trauma or unusual activity had occurred.
On September 8, 2016 Dr. Strugala diagnosed bilateral shoulder impingement with
decreased range of motion and left elbow lateral epicondylitis. He noted that appellant felt that
she could continue working if her work schedule was reduced, as she noticed her pain increasing
towards the end of her shift.
In a note dated September 14, 2016, Michelle Knezevic, a registered nurse, diagnosed
bilateral shoulder impingement syndrome and bilateral lateral epicondylitis. She also provided
work restrictions limiting appellant’s work shift to no more than 6 hours and requiring 10-minute
breaks every hour.
By decision dated October 18, 2016, OWCP denied modification of its prior decision,
finding that appellant had not established causal relationship.
On November 10, 2016 appellant requested reconsideration of the October 18, 2016
decision. OWCP did not receive any additional evidence.
By decision dated November 21, 2016, OWCP denied appellant’s request for
reconsideration of the merits of her claim.
On November 26, 2016 appellant again requested reconsideration and submitted reports
dated October 27 and November 17, 2016 from Dr. Strugala who indicated that appellant
continued to struggle with left elbow pain consistent with lateral epicondylitis and right shoulder
pain with rotator cuff syndrome and impingement. Dr. Strugala opined that the repetitive nature
of appellant’s work activities, particularly with the arms positioned in a nonergonomic location,
was the probable cause of her conditions and, therefore, he believed that her symptoms were
“likely” work related. In his November 17, 2016 addendum report, he reiterated his opinion that
based upon his clinical diagnosis and the history provided by appellant, he believed the nature of
appellant’s repetitive work activities, particularly with the arms positioned in a nonergonomic
location, was the cause of her work symptoms.
By decision dated January 26, 2017, OWCP denied modification of its October 18, 2016
decision, finding that the evidence of record was insufficient to establish causal relationship.
Appellant subsequently appealed to the Board on March 10, 2017.
By decision dated August 13, 2018, the Board found that the evidence of record was
insufficient to establish causal relationship between the diagnosed conditions and the accepted
factors of appellant’s federal employment.

3

On November 9, 2018 appellant requested reconsideration and submitted reports dated
October 16 and 25, 2018 from Dr. Steven A. Chandler, a Board-certified orthopedic surgeon. In
his October 16, 2018 report, Dr. Chandler diagnosed bilateral lateral epicondylitis, bilateral
bursitis, bilateral tendinitis and/or tenosynovitis, bilateral primary osteoarthritis, and adhesive
capsulitis (frozen) of the right shoulder. He opined that appellant’s workstation contributed to,
and was the main factor in, causing her current conditions with her shoulder and elbows.
Dr. Chandler indicated that her work desk was positioned so high that her shoulders and elbows
were at an awkward position. He diagnosed right frozen shoulder prior to being given a more
ergonomic workstation. Dr. Chandler released appellant to light-duty work.
In his October 25, 2018 report, Dr. Chandler asserted that appellant had been working at a
desk that was too high for over 7.5 hours per day performing many repetitive motions causing her
shoulders to be in an awkward position. He noted that she went on to develop rotator cuff
tendinitis, bursitis to the bilateral shoulders, lateral epicondylitis to bilateral elbows, and developed
a right frozen shoulder. Dr. Chandler recounted that appellant was given an ergonomic
workstation, but by that time it was too late. He noted that she was being treated by Dr. Strugala
with injections and physical therapy from July to November 2016, but due to family illnesses she
was unable to complete the treatment regimen and now she was presenting with a frozen shoulder,
bilateral shoulder and elbow pain, and limited range of motion. Dr. Chandler continued to opine
that the repetitive work duties she had with her arms in an awkward, unnatural position caused her
shoulder and elbow pathology.
By decision dated December 19, 2018, 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 by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or

3

Supra note 1.

4

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
5

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

4

condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish right shoulder
and bilateral elbow conditions causally related to the accepted factors of her federal employment.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s January 26, 2017 decision because the Board
considered that evidence in its August 13, 2018 decision and found that it was insufficient to
establish her claim. Findings made in prior Board decisions are res judicata absent any further
review by OWCP under section 8128 of FECA.10
On reconsideration appellant submitted October 16 and 25, 2018 reports, wherein
Dr. Chandler provided multiple diagnoses and opined that appellant’s workstation contributed to
and was the main factor in causing her shoulder and elbow conditions. Dr. Chandler noted that
she had been working at a desk that was too high for over 7.5 hours a day, performing many
repetitive motions, causing her shoulders to be in an awkward position. While he identified the
accepted employment factors alleged by appellant, he did not provide a pathophysiological
explanation as to how those activities either caused or contributed to appellant’s diagnosed
conditions.11 Thus, the Board finds that the reports from Dr. Chandler are insufficient to meet
appellant’s burden of proof to establish causal relationship.12

6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

10

See B.R., Docket No. 17-0294 (issued May 11, 2018).

11

Id.

12

See J.L., Docket No. 18-1804 (issued April 12, 2019).

5

As appellant has not submitted rationalized medical evidence to support her claim that she
sustained bilateral shoulder and bilateral elbow conditions causally related to the accepted
employment factors, the Board finds that she has not met her 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 her burden of proof to establish right shoulder
and bilateral elbow conditions causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 26, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6