United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 08-1292
Issued: November 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 31, 2008 appellant filed a timely appeal of a September 12, 2007 decision of
the Office of Workers’ Compensation Programs, denying merit review of his claim. Since more
than one year has elapsed between the last Office merit decision on November 15, 2005, which
was reviewed by the Board on April 5, 2007, and the filing of this appeal, the Board lacks
jurisdiction to review the merits of the claim pursuant to 20 C.F.R. §§ 501.2(c), 501.3(d)(2) and
501.6(c) and (d).
ISSUE
The issue is whether the Office properly declined to reopen the case for merit review
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated April 5, 2007, the
Board affirmed a November 15, 2005 Office decision denying the claim for compensation.1 The
1

Docket No. 07-247 (issued April 5, 2007).

Board found that appellant had not established an employment incident on January 12, 2005 as
alleged. It was noted that appellant did not provide a detailed factual statement regarding the
alleged forklift incident. In addition, the Board affirmed a March 15, 2006 Office decision
denying merit review. The history of the case is provided in the Board’s prior decision and is
incorporated herein by reference.
By letter dated October 30, 2006, received by the Office on April 17, 2007, appellant
requested reconsideration of his claim. He noted that the Office had requested a detailed
statement as to the January 12, 2005 incident. Appellant stated that on that date he was loading a
truck, and on his right the forklift driver, Mr. Smith, was unloading a truck. He stated that the
forklift driver backed up, made a sharp turn and struck him on the back of his right ankle. A
drawing was provided showing the relative positions of appellant, the trucks and the forklift.
By decision dated September 12, 2007, the Office denied further review of the merits of
the case. It found that appellant had stated that an accident report was filed regarding the
January 12, 2005 incident, but he did not submit a copy of the accident report.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulations provides that a claimant may
obtain review of the merits of the claim by submitting a written application for reconsideration
that sets forth arguments and contains evidence that either: “(i) shows that [the Office]
erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument
not previously considered by [the Office]; or (iii) constitutes relevant and pertinent evidence not
previously considered by [the Office].”3 A timely request for reconsideration may be granted if
the Office determines that the employee has presented evidence and/or argument that meets at
least one of these standards. If reconsideration is granted, the case is reopened and the case is
reviewed on its merits. Where the request is timely but fails to meet at least one of these
standards, the Office will deny the application for reconsideration without reopening the case for
a review on the merits.4
ANALYSIS
In the prior decision, the Board found that appellant had failed to establish an
employment incident on January 12, 2005 as he had not provided a detailed factual statement as
to the incident that included, for example, details such as where he was standing at the time of
the incident. In its September 12, 2007 decision, the Office found that appellant did not submit
any new and relevant evidence as he did not submit a copy of an accident report.

2

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”)
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608; see also Norman W. Hanson, 45 ECAB 430 (1994).

2

Appellant did, however, provide a more detailed statement as to the alleged incident. He
explained where he was standing, how the forklift moved and how it struck him on the ankle,
with a diagram of the incident as well. This evidence is new and relevant to the issue of whether
the first component of fact of injury is established. It addresses the deficiencies in the evidence
as noted by the Board. As appellant has submitted “relevant and pertinent evidence not
previously considered” by the Office, under 20 C.F.R. § 10.606(b)(2)(iii), he is entitled to a
review of the merits of the claim. The case will be remanded to the Office for a merit decision.
CONCLUSION
Appellant submitted new and relevant evidence that is sufficient to require the Office to
review the case on its merits.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2007 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: November 10, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


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

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

Docket No. 11-726
Issued: October 14, 2011

Case Submitted on the Record

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

JURISDICTION
On January 25, 2011 appellant filed a timely appeal from a January 19, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established an employment-related permanent impairment
to a scheduled member or function of the body under FECA.
FACTUAL HISTORY
On November 28, 2007 appellant, then a 28-year-old letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that he injured his left ankle walking down steps in the

1

5 U.S.C. § 8101 et seq.

performance of duty on November 28, 2007. OWCP accepted the claim for a left ankle sprain.
Appellant received intermittent compensation for wage loss through April 21, 2008.
In a report dated January 13, 2010, Dr. Byrne Solberg, a physiatrist, diagnosed tarsal
tunnel syndrome and lumbar radiculopathy. He stated that after reviewing a history and results
on examination and review of a magnetic resonance imaging scan, he believed the diagnosed
conditions were causally related to the employment injury. By report dated January 31, 2010,
Dr. Daisy Rodriguez, an internist, provided a history and results on examination. She opined
that appellant had a 14 percent left leg permanent impairment, based on the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides). Dr. Rodriguez found an 11 percent impairment for loss of ankle range of
motion and 3 percent for tarsal tunnel syndrome.
Appellant was referred for a second opinion evaluation by Dr. Robert Smith, an
orthopedic surgeon. In a report dated September 9, 2010, Dr. Smith provided a history and
results on examination. He noted that a March 11, 2008 diagnostic study was negative for tarsal
tunnel syndrome.2 Dr. Smith diagnosed chronic left ankle strain. As to permanent impairment,
he opined that under the A.M.A., Guides there was a two percent leg impairment for 10 degrees
of ankle eversion. Dr. Smith noted that tarsal tunnel syndrome was not an accepted condition
and since there was a normal EMG/NCV after the employment injury, he found there was no
ratable impairment for this condition. In a report dated September 18, 2010, OWCP’s medical
adviser opined that appellant’s left leg impairment was two percent.
OWCP found that a conflict in medical opinion arose regarding the nature and extent of
an employment-related permanent impairment. Appellant was referred to Dr. E. Michal Okin, a
Board-certified orthopedic surgeon selected as a referee physician. In a report dated
November 23, 2010, Dr. Okin provided a history, results on examination (including left and right
ankle range of motion) and review of medical records. With respect to tarsal tunnel syndrome,
he stated, “I agree with Dr. Smith that he does not have a tarsal tunnel syndrome as a result of his
ankle sprain. The EMG and [NCV] time performed concurrent with his injury was within
normal limits.” Dr. Okin noted that the electrophysiological study performed by Dr. Solberg on
January 13, 2010, was more than two years after the initial injury, was interpreted as “delayed
distal latency noted in the left medial plantar sural sensory nerve action potential.” He stated that
there was no such nerve as the medial plantar sural nerve, as the posterior tibial nerve divides
into the medial and lateral plantar nerves in the region of Henry’s knot. Dr. Okin further stated
that “the symptomatology which the patient was complaining of is lateral plantar in the sense
that he has numbness in distribution of his lateral two toes. There is no evidence of a lateral
plantar nerve delay in conduction. In fact, the test done contemporaneously with his injury had
no evidence of a tarsal tunnel syndrome.”
Dr. Okin concluded that the only positive clinical finding was signs consistent with a
peroneal tendon tendinitis on the left, “which is an acute problem and it is not entitled to a
permanent impairment rating. [Appellant’s] ankle sprain had resolved. He no longer has
2

The record contains a March 11, 2008 electromyogram (EMG) and nerve conduction velocity (NCV) from
Dr. William Wolfe, Board-certified in neurology.

2

evidence of an Achilles tend[i]nitis. Therefore, my recommendation would be that [appellant’s]
impairment rating for the left lower extremity be zero.”
In a report dated January 12, 2011, OWCP’s medical adviser reviewed the medical
evidence of record. Its medical adviser noted the results on examination by Dr. Okin and
concurred with the opinion that appellant had no employment-related ratable permanent
impairment to the left leg.
By decision dated January 19, 2011, OWCP determined appellant was not entitled to a
schedule award based on the weight of the medical evidence.
LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.3 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.5
FECA provides that, if there is a 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 the examination.6 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or OWCP’s medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.7
It is well established that, when 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.8

3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
4

A. George Lampo, 45 ECAB 441 (1994).

5

FECA Bulletin No. 09-03 (March 15, 2009).

6

5 U.S.C. § 8123.

7

20 C.F.R. § 10.321 (1999).

8

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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ANALYSIS
A conflict of medical opinion arose between an attending physician, Dr. Rodriguez, and a
second opinion physician, Dr. Smith, as to the nature and extent of employment-related
permanent impairment to appellant’s left leg under 5 U.S.C. § 8107. Dr. Rodriguez found that
appellant had tarsal tunnel syndrome and a resulting left leg permanent impairment, as well as an
impairment based on loss of range of motion for the ankle. Dr. Smith found that appellant did
not have any employment-related tarsal tunnel and he provided different results for range of
motion.
To resolve the conflict, OWCP appropriately referred appellant to a physician selected as
a referee physician, Dr. Okin. In a November 23, 2010 report, Dr. Okin provided a detailed
history and review of medical records, as well as results on physical examination. He clearly
explained his opinion that there was no employment-related tarsal tunnel syndrome, noting the
March 11, 2008 EMG/NCV, physical examination findings and the report of Dr. Solberg. The
Board finds that Dr. Okin represents the weight of the evidence with respect to an employmentrelated permanent impairment based on tarsal tunnel syndrome.
With respect to an impairment based on loss of range of motion, however, Dr. Okin did
not provide sufficient medical rationale. The Board notes that both Dr. Rodriguez and Dr. Smith
had found an impairment for loss of range of motion in the left ankle. Dr. Okin’s examination
findings reported 30 degrees for plantar flexion, 5 degrees dorsiflexion, and 15 degrees for both
inversion and eversion. Under the A.M.A., Guides, 5 degrees of dorsiflexion is a mild leg
impairment (seven percent) according to Table 16-229 and 15 degrees inversion is a mild leg
impairment (two percent) under Table 16-20.10 It is not clear whether Dr. Okin was unaware that
the range of motion would result in an impairment under these tables. He did not fully address
whether he was finding no impairment because the left ankle motion ranges were the same as the
right11 or whether he felt that any loss of range of motion was not from an employment-related
condition. Dr. Okin stated that the sprain had resolved without further discussion of the range of
motion results. Since the prior physicians of record made findings attributing loss of range of
motion in the left ankle as employment related, he must provide a rationalized medical opinion
on the issue to resolve the conflict.
The case will be remanded to OWCP to secure a supplemental report from Dr. Okin that
clarifies his opinion with respect to an employment-related permanent impairment based on loss
of range of motion. After such further development as OWCP deems necessary, it should issue
an appropriate decision.

9

A.M.A., Guides 549, Table 16-22.

10

Id., Table 16-20.

11

The A.M.A., Guides state that if the opposite extremity is uninjured, this may be used as a baseline for the
individual and “adjust individual components accordingly.” A.M.A., Guides 548.

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CONCLUSION
The Board finds that the weight of the medical evidence does not establish an
employment-related permanent impairment based on tarsal tunnel syndrome. The case is
remanded for further clarification from the referee physician as to an impairment based on loss
of range of motion.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 19, 2011 is set aside. The case is remanded for further
action consistent with this decision of the Board.
Issued: October 14, 2011
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Jonesville, VA, Employer
__________________________________________

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

Docket No. 08-1421
Issued: October 23, 2008

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 April 15, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 26 and November 8, 2007 merit decisions denying her claim for a
July 6, 2006 employment injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury on July 6, 2006, as alleged.
FACTUAL HISTORY
On August 1, 2006 appellant, then a 30-year-old corrections officer, filed a traumatic
injury claim alleging that she sustained an employment-related injury to her left knee on
July 6, 2006. Regarding the cause of the injury, she stated, “Conducting a cell search, went to
pull property bin out from under bed. Squatted down to pull out property bin. When I pulled
box towards me, my knee made a loud ‘pop’ noise and began to swell.” Appellant’s supervisor

indicated on the claim form that notice of appellant’s claimed injury was received on July 22,
2006 and checked a box indicating that she was injured in the performance of duty. Appellant
stopped work on July 22, 2006 and returned to work on August 13, 2006.
On July 22, 2006 appellant was seen in the emergency room at the Norton Community
Hospital by Dr. Elpidio Capalad, a Board-certified emergency medicine physician. A triage
assessor stated that appellant reported that she injured her left knee at work on July 6, 2006. The
assessor stated, “Has not been seen by [medical doctor] yet. States thought it would stop hurting
but has n[o]t.” Dr. Capalad diagnosed internal derangement of the left knee and an unspecified
strain.1
In a July 22, 2006 note, Dr. Capalad indicated that appellant would be able to return to
work on July 25, 2006. In an August 29, 2006 form report, Dr. Robert Means, an attending
Board-certified orthopedic surgeon, stated that appellant reported sustaining injury when she
“bent down to pull a bin and felt pop in left knee.” He diagnosed knee pain and recommended
various work restrictions. Dr. Means completed a form indicating that appellant should be off
work from August 17 to 22, 2006. In August 2006 appellant began to participate in physical
therapy sessions and her therapist noted that she reported at her initial evaluation that she injured
her left knee at work on July 6, 2006 when she pulled a personal bin in a cell. An August 8,
2006 form in which Dr. Means authorized physical therapy lists the diagnosis of strain of the left
knee capsule. An August 10, 2006 form signed by appellant’s therapist and Dr. Means indicates
that she sustained a left knee strain with no obvious signs of internal derangement.
A September 8, 2006 magnetic resonance imaging (MRI) scan of appellant’s left knee
showed a lateral patellar dislocation with edema and heterogeneous signal within the cartilage of
the medial aspect of the patella as well as a partial thickness tear of the medial retinaculum and
heterogeneous signal in the patellar tendon suspicious for partial thickness tear.
In a May 25, 2007 letter, the Office requested that appellant submit additional factual and
medical evidence in support of her claim. Appellant submitted additional documents including
reports of physical therapy sessions.
In a June 26, 2007 decision, the Office denied appellant’s claim for an employmentrelated injury on July 6, 2006. It found that she did not establish the occurrence of an
employment incident on that date. The Office stated, “No statement regarding the exact
mechanism of the injury was ever provided that corroborated your account of how the injury
happened.”
Appellant requested a review of the written record by an Office hearing representative.
She submitted a September 17, 2007 letter in which the safety manager at the employing
establishment stated, “I have no reason to believe [appellant’s] injury was not a work-related
injury and feel she is entitled to receive [Office] benefits for this injury.”

1

Another portion of the report of appellant’s July 22, 2006 visit contained the diagnosis “[rule out] internal
derangement left knee.”

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In a November 8, 2007 decision, the Office hearing representative affirmed the Office’s
June 26, 2007 decision denying appellant’s claim for an employment-related injury on
July 6, 2006. Appellant’s claim was again denied on the grounds that she did not establish the
occurrence of an employment incident on July 6, 2007.2
LEGAL PRECEDENT
An employee who claims benefits under the Federal Employees’ Compensation Act3 has
the burden of establishing the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.4 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, but the employee’s statements must be consistent
with the surrounding facts and circumstances and his or her subsequent course of action.5 An
employee has not met his or her burden of proof in establishing the occurrence of an injury when
there are such inconsistencies in the evidence as to cast serious doubt upon the validity of the
claim.6 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
statements in determining whether a prima facie case has been established.7 However, 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
It is well established that proceedings under the Act are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.9
ANALYSIS
On August 1, 2006 appellant filed a traumatic injury claim alleging that she sustained an
employment-related injury to her left knee on July 6, 2006 when she bent down to pull a property
bin out from under a bed while conducting a prison cell search.10 The Office denied appellant’s
2

The Office hearing representative also indicated that appellant did not submit sufficient medical evidence but
she did not discuss the submitted medical evidence in the analysis portion of her decision.
3

5 U.S.C. §§ 8101-8193.

4

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

5

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

6

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

7

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

8

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

9

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

10

Appellant indicated that she heard a pop in her left knee.

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claim for an employment-related injury on July 6, 2006 on the grounds that she did not establish
the occurrence of an employment incident on that date.
The Board finds that appellant had established the employment incident of July 6, 2006.
Appellant’s statements regarding her claimed left knee injury are consistent with the surrounding
facts and circumstances and her subsequent course of action and there are no inconsistencies in
the evidence that would cast serious doubt upon the validity of her claim.11 Appellant
consistently reported the same mechanism of her claimed July 6, 2006 injury to attending
physicians, a triage assessor and a physical therapist, i.e., that she heard a pop in her left knee
when she bent down and pulled a bin. Appellant reported a July 6, 2006 left knee injury with the
same mechanism of injury when she first sought medical care for her left knee condition on
July 22, 2006. She explained that she delayed in seeking medical care for her left knee condition
because she thought the pain would stop on its own. Appellant stopped work and reported the
claimed injury to her supervisor on the date she first sought medical care, i.e., July 22, 2006.
There was no unexplained delay in seeking treatment, stopping work or reporting the claimed
injury.12 The record does not contain strong or persuasive evidence refuting appellant’s account
of her claimed left knee injury and therefore she has established the occurrence of an
employment incident on July 6, 2006 in the form of bending down and pulling a property bin.
As the Office denied appellant’s claim on the grounds that she did not establish the
occurrence of an employment incident on July 6, 2006, it did not perform any meaningful
evaluation of the medical evidence.13 The case will be remanded to the Office for evaluation of
the medical evidence to consider whether appellant sustained an injury or disability due to the
accepted July 6, 2006 employment injury.14 After such development as it deems necessary, the
Office should issue an appropriate decision on this matter.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met her burden of proof to establish that she sustained an injury on July 6, 2006 in the
performance of duty. The Board finds that she has established the occurrence of an employment
incident on July 6, 2006, but the case must be remanded to the Office for further evaluation of
the medical record.

11

See supra notes 5 and 6 and accompanying text.

12

See supra note 7 and accompanying text.

13

Appellant’s attending physicians suggested that she sustained various left knee conditions due to the reported
employment incident on July 6, 2006.
14

See supra note 9 and accompanying text.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 8 and June 26, 2007 decisions are set aside and the case remanded to the Office for
further proceedings consistent with this decision of the Board.
Issued: October 23, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Louisville, KY,
Employer
__________________________________________

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

Docket No. 07-2124
Issued: March 7, 2008

Case Submitted on the Record

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

JURISDICTION
On August 5, 2007 appellant filed a timely appeal from a May 18, 2007 merit decision of
the Office of Workers’ Compensation Programs denying his occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has established that he sustained tinnitus, sleep deprivation
and stress due to factors of his federal employment.
FACTUAL HISTORY
On June 10, 2004 appellant, then a 49-year-old information technology specialist, filed an
occupational disease claim alleging that he sustained deafness and tinnitus in his left ear due to

factors of his federal employment. He did not stop work. In a statement accompanying his
claim, appellant stated:
“My illness started in the fall of 1997, while working twelve hours a day[,]
midnight until noon, seven days a week for an extended stay working on the
dredge boat. With long work hours and fatigue, I developed a bronchitis causing,
at first, an echoing noise then leading into a permanent loud ringing (tinnitus) and
deafness in my left ear….”
Appellant related, “I used ear plugs and avoided the engine room as much as possible. I
believe the cool nights affected my respiratory systems which led to a chest cold (coughing) that
developed into bronchitis which added pressure to my preexisting ear problem.” Appellant noted
that in 1980, prior to his federal employment, he had lost his right hand and blew out his ear
drums in a blast injury. Appellant underwent surgical reconstruction of his eardrums.
In a report dated September 29, 1997, Dr. Alan B. McDaniel, a Board-certified
otolaryngologist, noted that appellant had been working the last few weeks around noisy
equipment on a dredge. Appellant had a history of bronchitis two weeks earlier. He complained
of hearing loss on the left side and “really loud left tinnitus.” Dr. McDaniel diagnosed left
serous otitis media with middle ear effusion, hearing loss, tinnitus and a recent respiratory
infection.
In a progress report dated October 16, 1997, Dr. McDaniel noted that an audiogram
showed complete hearing loss on the left side. He noted that appellant’s eardrums were
surgically repaired after being blown out in a blast injury. Prior to appellant’s loss of hearing in
his left ear, he had bronchitis and a severe cough. Dr. McDaniel found that he “might have had a
perilymphatic fistula caused by the blast which healed while he was on his back after the injury
but left a weak repair. With all the coughing [he] was doing, he might have blown that weak
spot out creating a significant perilymphatic fistula which could be responsible for this hearing
loss.”
In a report dated October 6, 1999, Dr. McDaniel opined that appellant’s hearing loss
resulted from severe coughing due to bronchitis. He noted that, while working long hours
around noisy dredging equipment, he developed bronchitis and a cough. Dr. McDaniel asserted
that appellant’s coughing from the bronchitis ruptured an already weakened membrane in the
inner ear and resulted in hearing loss.
On September 29, 2004 the Office referred appellant to Dr. Donald Welsh, a Boardcertified otolaryngologist, for a second opinion examination. In a report dated October 19, 2004,
Dr. Welsh diagnosed sensorineural hearing loss due to noise exposure.

2

On November 5, 2004 the Office accepted appellant’s claim for bilateral hearing loss.1
By decision dated March 11, 2005, the Office granted him a schedule award for a 22 percent
bilateral hearing loss.
On June 1, 2005 appellant filed an occupational disease claim alleging that he sustained
tinnitus, stress and sleep deprivation due to factors of his federal employment. The Office
merged appellant’s June 1, 2005 occupational disease claim into file number 062119714. It
determined that he was claiming tinnitus, stress and sleep deprivation as a consequence of his
accepted employment injury in file number 062119714.
In a progress reports dated December 4, 2004 and March 8, 2005, received by the Office
on July 29, 2005, Dr. McDaniel diagnosed disabling tinnitus, left anakusis, right mixed hearing
loss and insomnia. In a report dated May 17, 2005, Dr. Roy J. Meckler, a Board-certified
neurologist, indicated that he was treating appellant for a sleep disturbance caused by
“incapacitating tinnitus.”
By decision dated October 28, 2005, the Office denied appellant’s claim for tinnitus,
sleep deprivation and stress on the grounds that the medical evidence did not establish that it was
causally related to the accepted work events. On November 28, 2005 he requested a review of
the written record by an Office hearing representative. In a report dated November 29, 2005,
Dr. McDaniel discussed appellant’s history of injury to his right hand and both ears in an
explosion. The physician stated, “The impulse force of the blast severely damaged his inner ears
causing sensorineural hearing loss and symmetrical tinnitus in both ears. He subsequently
suffered sudden and complete hearing loss in his left ear precipitated by prolong[ed] coughing
caused by work-related bronchitis.” Dr. McDaniel found that appellant’s tinnitus had worsened
and caused severe insomnia, increased insulin resistance and stress.
In a decision dated March 8, 2006, an Office hearing representative affirmed the
October 28, 2005 decision. He found that the medical evidence did not attribute appellant’s
tinnitus, sleep deprivation and stress to his employment-related hearing loss.
On October 20, 2006 appellant requested reconsideration. An Office medical adviser
reviewed the record on February 23, 2007. He determined that appellant’s work hours and
exposure to the climate while working on a dredge from August 17 to September 12, 1997 would
not have caused bronchitis. The Office medical adviser asserted that the bronchitis may have
resulted from cigarette smoking and allergic rhinitis.
1

In letters dated November 3, 2004 and May 12, 2005, the employing establishment controverted the claim on
the grounds that it was untimely. The employing establishment noted that appellant was last exposed to the factors
to which he attributed his hearing loss on September 6, 1997 and further indicated that he attributed his deafness to
bronchitis rather than noise exposure. In a November 2, 2004 electronic mail message, Rick Lewis, a supervisor,
related that appellant notified him on April 30, 2004 that he ruptured an eardrum from a severe cough while working
on the dredge from July 22 through September 5, 1997. Mr. Lewis also indicated that appellant may have told him
that he had a cold during the July 22 through September 5, 1997 time period. In a June 7, 2005 response, the Office
found that, as Mr. Lewis did not remember the entire conversation with appellant, his statement regarding whether
the employing establishment had actual knowledge of his hearing loss at the time of his exposure was not credible.
The Office also found that as the employing establishment issued earplugs to appellant while he worked on the
barge it was aware that there may be a potential for hearing loss.

3

The Office found that a conflict arose between Dr. McDaniel and the Office medical
adviser. It referred appellant to Dr. Robert W. Powell, a Board-certified internist, for an
impartial medical examination. In a report dated April 25, 2007, Dr. Powell discussed
appellant’s history of developing a respiratory infection working on a dredge boat in 1997 as a
timekeeper. He noted that he attributed his respiratory infection to working at night in cool,
damp weather in August 1997. Appellant currently smoked cigarettes. Dr. Powell diagnosed
moderate obstructive ventilatory defect due to pulmonary emphysema resulting from cigarette
smoking and a history of hearing loss and tinnitus. He opined that appellant’s work on a dredge
boat in 1997 did not “cause or contribute to his developing bronchitis which caused him to cough
which may have contributed to his hearing loss.” Dr. Powell explained that respiratory and ear
infections were due to bacteria and viruses “without contribution of climatic conditions.”
By decision dated May 18, 2007, the Office denied modification of its October 28, 2005
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;5 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;6 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.7
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which
2

5 U.S.C. §§ 8101-8193.

3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

5

Michael R. Shaffer, 55 ECAB 386 (2004).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

Beverly A. Spencer, 55 ECAB 501 (2004).

4

includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.8 The
opinion of the physician must be based on a complete factual and medical background of the
claimant9 and must be one of reasonable medical certainty10 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.11
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.12 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.13
When 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 specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.14
ANALYSIS
The Office accepted that appellant sustained hearing loss due in part to noise exposure in
the course of his federal employment. He additionally claimed that he sustained tinnitus as a
result of a respiratory infection which developed when he worked on a dredge boat in
August 1997.15 As a result of his respiratory infection, appellant sustained severe tinnitus and
total deafness in his left ear. He experienced difficulty sleeping and stress due to the ringing in
his ear.
The Office determined that a conflict arose between Dr. McDaniel, appellant’s attending
physician, and the Office medical adviser regarding whether he sustained bronchitis due to

8

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

9

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

10

John W. Montoya, 54 ECAB 306 (2003).

11

Judy C. Rogers, 54 ECAB 693 (2003).

12

5 U.S.C. § 8123(a).

13

20 C.F.R. § 10.321.

14

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

15

The Office considered the employing establishment’s contention that the claim was untimely but found that the
employing establishment was aware of the potential for hearing loss as it provided appellant with hearing protection.

5

working on dredge boat which resulted in tinnitus, sleep deprivation and stress. It referred him
to Dr. Powell for resolution of the conflict.
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 specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.16 The Board finds that the opinion of Dr. Powell, a
Board-certified internist selected to resolve the conflict in opinion, is well rationalized and based
on a proper factual and medical history. On April 25, 2007 Dr. Powell reviewed appellant’s
medical and work history, including his history of a respiratory infection while working on a
dredge boat as a timekeeper. He diagnosed a moderate obstructive ventilatory defect from
pulmonary emphysema caused by cigarette smoking. Dr. Powell also diagnosed hearing loss and
tinnitus. He found that appellant’s work on a dredge boat did not “cause or contribute to his
developing bronchitis which caused him to cough which may have contributed to his hearing
loss.” Dr. Powell provided rationale for his opinion by explaining that infections resulted from
bacteria and viruses rather than climate conditions. As his report is detailed, well rationalized
and based on a proper factual background, his opinion is entitled to the special weight accorded
an impartial medical examiner. The Office, consequently, properly denied appellant’s claim for
tinnitus, stress and sleep deprivation.
CONCLUSION
The Board finds that appellant has not established that he sustained tinnitus, sleep
deprivation and stress due to factors of his federal employment.

16

See David W. Pickett, supra note 14.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 18, 2007 is affirmed.
Issued: March 7, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
U.S. POSTAL SERVICE, LANCASTER
PROCESSING & DISTRIBUTION CENTER,
Lancaster, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0237
Issued: July 13, 2017

Case Submitted on the Record

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

JURISDICTION
On November 11, 2016 appellant, through counsel, filed a timely appeal from a July 28,
2016 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a
recurrence of total disability commencing September 11, 2007 causally related to her
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.

October 10, 2006 employment injuries; and (2) whether appellant has met her burden of proof to
establish a cervical condition that warranted surgery as a consequence of her accepted
employment-related injuries.
On appeal, counsel contends that the medical opinion of Dr. Craig W. Fultz, a Boardcertified orthopedic surgeon and an impartial medical specialist, is sufficient to establish that
appellant sustained a recurrence of disability and a cervical condition due to her accepted
employment injuries as Dr. Fultz restricted her from repetitive use of her left upper extremity
which rendered her unable to perform the duties of her modified job. Alternatively, he asserts
that Dr. Fultz’ opinion does not sufficiently address the medical issues to carry the weight of the
evidence, warranting a new impartial medical examination. Counsel indicates that OWCP did
not specifically request that Dr. Fultz determine whether appellant could perform the physical
requirements of her modified job at the time of the alleged recurrence of disability.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances set forth in
the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth
below.
OWCP accepted that on October 10, 2006 appellant, then a 38-year-old part-time flexible
clerk, sustained left ulnar neuropathy and tenosynovitis of the left wrist as a result of lifting and
pulling trays at work. Appellant worked approximately six hours daily when she was injured.
OWCP authorized left elbow surgery to treat her accepted left ulnar neuropathy. The surgery
was performed on January 25, 2007 by Dr. David Kuntz, Jr., a Board-certified orthopedic
surgeon. Following these injuries and medical treatment, appellant returned to part-time flexible,
limited-duty work on August 13, 2007.
On October 22, 2007 appellant filed a claim (Form CA-2a) alleging a recurrence of
disability beginning September 11, 2007 due to her accepted October 10, 2006 employment
injuries. She reported that after the original injury she returned to light-duty work.
In a December 21, 2007 decision, OWCP found that appellant had not established a
recurrence of disability. It found that the medical evidence of record did not establish that the
claimed recurrence resulted from her accepted October 10, 2006 work injuries.
On March 12, 2008 appellant underwent C5-6 and C6-7 anterior cervical discectomy and
decompression, C5-6 and C6-7 anterior interbody fusion, and C5-7 anterior cervical plating
performed by Dr. James P. Argires, an attending Board-certified neurosurgeon. The surgery was
performed to treat her diagnosis of cervical spondylosis at C5-7.
In an August 22, 2008 decision, an OWCP hearing representative set aside the
December 21, 2007 decision. She found that, although the medical evidence of record was not
sufficiently rationalized to establish a neck condition causally related to appellant’s accepted
October 10, 2006 work injury, it was uncontroverted and raised an inference of causal
relationship sufficient to require further development by OWCP. On remand, the hearing
representative instructed OWCP to refer appellant, along with a statement of accepted facts
(SOAF) and the medical record to an appropriate medical specialist for a second opinion

2

examination to determine whether her herniated discs at C5-6 and C6-7 and neck pain were
caused by her accepted conditions or physical therapy recommended after her authorized
January 25, 2007 left ulnar nerve surgery. She noted that the medical specialist should also
determine whether the March 12, 2008 neck surgery was warranted and necessary as a result of
appellant’s accepted work injuries and the January 25, 2007 surgery and determine the extent
and duration of any disability.
On remand, OWCP referred appellant to Dr. Robert F. Draper, Jr., a Board-certified
orthopedic surgeon and OWCP referral physician, who opined in a September 30, 2008 report
that her neck pain and resultant surgery were due to preexisting degenerative disc disease at
multiple levels and not to her accepted October 10, 2006 work injuries or the authorized
January 25, 2007 left elbow surgery and resultant physical therapy.
In a November 24, 2008 decision, OWCP denied appellant’s claim that she sustained a
recurrence of disability commencing September 11, 2007 finding that the weight of the medical
evidence rested with the opinion of Dr. Draper.
Appellant, through counsel, timely requested an oral hearing before an OWCP hearing
representative and submitted a February 27, 2009 report by Dr. Argires, who found that appellant
had preexisting degenerative changes of the cervical spine that were aggravated by her
October 10, 2006 employment injuries.
Following the April 14, 2009 oral hearing, by decision dated June 29, 2009, an OWCP
hearing representative set aside the November 24, 2008 decision and remanded the case to
OWCP for further development of the medical evidence. He found that there was a conflict of
medical opinion evidence between Drs. Draper and Argires, requiring referral to an impartial
medical examiner.
On remand, OWCP referred appellant, together with a SOAF, the medical record, and a
list of questions, to Dr. Thomas J. Green, a Board-certified orthopedic surgeon, who opined that
her left shoulder and cervical spine conditions were not causally related to her October 10, 2006
work injuries. Dr. Green further opined that she continued to suffer from residuals of her
employment-related ulnar nerve lesion and failed January 25, 2007 surgery, but was capable of
working eight hours a day with physical restrictions.
In a November 19, 2009 decision, OWCP found that the special weight of the medical
evidence rested with Dr. Green’s opinion and established that appellant’s diagnosed cervical
spondylosis which necessitated surgery did not result from her work duties, accepted October 10,
2006 work injuries, or authorized January 2007 elbow surgery. This decision was affirmed by an
OWCP hearing representative in a June 1, 2010 decision. Appellant subsequently requested
reconsideration and, by decision dated July 15, 2010, OWCP denied modification of the June 1,
2010 decision. OWCP found that the medical evidence submitted by her was insufficient to
outweigh the special weight accorded to Dr. Green’s impartial medical opinion.
Appellant appealed to the Board. In a September 28, 2011 decision,3 the Board set aside
the June 1 and July 15, 2010 decisions and remanded the case to OWCP to obtain clarification
3

Docket No. 10-2308 (issued September 28, 2011).

3

from Dr. Green regarding whether she had a recurrence of disability or developed cervical
spondylosis as a consequence of her October 10, 2006 employment-related injuries.
On remand, OWCP requested a supplemental report from Dr. Green. In a November 15,
2011 report, Dr. Green noted that appellant had healed with a good result from her October 10,
2006 employment injuries. He advised that there was no causal relationship between her
cervical spondylosis with radicular pain in the left upper extremity, resultant surgery, and
accepted conditions.
By letter dated December 22, 2011, OWCP referred appellant, together with a SOAF, the
medical record, and a list of questions, to Dr. David C. Baker, a Board-certified orthopedic
surgeon, for a second impartial medical examination. In a January 25, 2012 report, Dr. Baker
found that her cervical degenerative changes and resultant surgery were not causally related to
the accepted October 10, 2006 employment injuries. He also found that appellant did not sustain
a recurrence of disability due to her accepted injuries.
In a February 3, 2012 decision, OWCP found that appellant did not sustain a cervical
condition that warranted surgery or a recurrence of disability commencing September 11, 2007
causally related to her October 10, 2006 employment injuries based on Dr. Baker’s impartial
medical opinion. This decision was affirmed by an OWCP hearing representative in an
August 7, 2012 decision.
Appellant again appealed to the Board. By decision dated November 15, 2013,4 the
Board set aside the February 3 and August 7, 2012 decisions and remanded the case to OWCP
for further development of the medical evidence. The Board found that Dr. Baker had not been
properly selected as an impartial medical examiner. On remand, the Board directed OWCP to
select another referee physician to resolve the conflict under the appropriate selection
procedures.
On remand, OWCP referred appellant, together with a SOAF, the medical record, and a
list of questions, to Dr. Fultz for an impartial medical examination.5
In a May 8, 2014 report, Dr. Fultz noted the history of the October 10, 2006 work injury
and reviewed the medical record. On examination, he noted that appellant sat in one position for
45 minutes during the interview. Appellant’s cervical spine was straight with good range of
motion. She could touch her chin to her chest. Appellant had negative Lhermitte and Spurling
results. She had mild tenderness about the paracervical and periscapular muscles, but no
palpable trigger points. Appellant had full range of shoulder motion and good strength in
abduction and external rotation of her shoulder. She could reach the top of her head, behind her
head, and above her belt line behind her back. Impingement and Hawkin’s tests were negative.
There was subjective decreased sensory acuity on the volar aspect of the ring and little fingers as
4

Docket No. 13-0289 (issued November 15, 2013).

5

In a February 19, 2014 decision, OWCP suspended appellant’s compensation effective that date as she failed to
attend the appointment with Dr. Fultz scheduled for 8:30 a.m. on January 30, 2014 and that she had failed to explain
her failure to appear or to cooperate. On March 27, 2014 it rescheduled the examination with Dr. Fultz for 8:30 a.m.
on May 8, 2014. Appellant attended the May 8, 2014 examination. In an August 24, 2019 decision, an OWCP
hearing representative affirmed the February 19, 2014 decision.

4

well as weakness in finger abduction and adduction with slight finger flexion weakness.
Appellant had observable muscle atrophy in the proximal medial aspect of the forearm in the
flexor carpi ulnaris muscle mass region. She had good elbow range of motion with no pain on
passive motion. There was localized tenderness over the medial or lateral epicondylar area.
Appellant had a negative Tinel’s sign at the elbow, both in the cubital canal and over the anterior
aspect of the medial epicondylar area where the nerve had been transposed. She had no focal
motor deficits at the elbow and shoulder. Reflexes were symmetrical for the biceps, triceps, and
brachial radialis. Appellant had a negative Hoffmann’s reflex and no clonus in the upper
extremities. Diagnoses included a history of cervical spine degenerative disc and joint disease,
greatest at C5-6 and C6-7 with a reported history of 2001 neck pain. Appellant had neck pain
referred to the left shoulder and arm after the October 10, 2006 work injury that was consistent
with myofascial pain. She was also status post March 12, 2008 anterior cervical discectomy at
C5-6 and C6-7 and status post the January 25, 2007 left elbow surgery with ongoing symptoms.
Dr. Fultz opined that appellant developed left cubital tunnel syndrome causally related to
her accepted injury based on diagnostic test results. He advised that she had reached maximum
medical improvement for her accepted left elbow ulnar nerve neuropathy. Dr. Fultz noted that
appellant developed neck pain after her October 10, 2006 work injury with referred symptoms
into the shoulder and arm. He maintained that a 2001 magnetic resonance imaging scan
confirmed that she had a history of preexisting cervical degenerative disc and joint disease. A
recent electromyogram (EMG) and nerve conduction velocity tests revealed significant
degenerative changes at C5-6 and C6-7. Neurological deficits in the left arm were most
consistent with C8 and possibly T1. Dr. Fultz indicated that the pathology at C5-6 and C6-7
could not explain the pattern of appellant’s sensory deficit or motor loss. A June 23, 20076 EMG
was minimally suggestive of left-side C8 radiculopathy. Dr. Fultz related that a C8
radiculopathy would not be caused by C5-6 or C6-7 radiculopathy. There were no diagnostic
studies to confirm that appellant’s degenerative disc or joint disease was the symptomatic
etiology of her neck pain that developed after the accepted injury. Thus, Dr. Fultz found that her
March 12, 2008 cervical surgery treating the cervical spine degenerative process was not
attributable to the October 10, 2006 work injury. He opined that appellant’s response to that
surgery supported that the degenerative spine changes, at least the levels operated on, were not
major pain generators for her discomfort. Dr. Fultz related that Drs. Baker and Green also
supported that degenerative changes in appellant’s cervical spine were not attributable to her
work injury. He found that her history and his examination were most consistent with
myofascial neck pain as diagnostic studies did not show any acute structural cervical spine
injury. Dr. Fultz concluded that there was insufficient evidence to find degenerative disc
disease, symptomatic or significantly aggravated by appellant’s October 10, 2006 work injury.
He advised that her neck surgery was not necessary or warranted due to the accepted injury.
Dr. Fultz opined that appellant had residuals of the accepted injury which included ongoing
neurological deficits in the left arm from ulnar nerve dysfunction related to the accepted injury
and treatment. Appellant also had permanent decreased sensory acuity and weakness in the ulnar
nerve distribution and ongoing myofascial discomfort about the left paracervical and
periscapular region. An attached work capacity evaluation (Form OWCP-5c), indicated her
limitations based on her accepted left ulnar nerve condition and myofascial pain which he opined
were causally related to the accepted injury. Dr. Fultz concluded that appellant would benefit
6

The Board notes that the EMG report was dated June 23, 2007 and not June 27, 2007 as indicated by Dr. Fultz.

5

from ongoing treatment. In the Form OWCP-5c, he indicated that she could work six hours a
day with permanent physical restrictions.
On May 28, 2015 OWCP requested a supplemental report from Dr. Fultz and requested
that he provide responses to the questions posed. In a June 12, 2015 report, Dr. Fultz restated his
diagnoses and opined that appellant did not sustain a recurrence of disability. Rather, appellant
had ongoing symptoms since her accepted October 10, 2006 work injury. She also had
documented left-sided neck pain radiating into her left shoulder periscapular region with
achiness into her upper arm. Dr. Fultz noted that appellant’s neck pain was referenced in 2006
physical therapy notes and Dr. Kuntz’ December 13, 2006 medical records. Additionally, he
noted that she had a history of ongoing symptoms in these areas since her work injury.
Therefore, Dr. Fultz did not believe that appellant “had a recurrence of disability but ongoing
disability from these symptoms from her work-related injury on October 10, 2006.” He restated
his prior opinion on the causal relationship between her cervical myofascial pain, left cubital
tunnel syndrome which warranted surgery on January 25, 2007, and October 10, 2006
employment injury. Dr. Fultz also reiterated his previous opinion and rationale regarding the
lack of a causal relationship between appellant’s preexisting cervical degenerative disc disease
and degenerative joint disease, March 12, 2008 cervical surgery, and accepted employment
injury.
OWCP in a January 15, 2016 decision, found that appellant did not sustain a recurrence
of disability commencing September 11, 2007 causally related to her accepted October 10, 2006
work injuries. It noted that Dr. Fultz clearly found that his diagnosis of left cubital tunnel
syndrome was causally related to the accepted work injuries. OWCP stated, however, that a
separate decision would be issued noting the acceptance of this diagnosed condition.7
In a January 28, 2016 letter, counsel requested an oral hearing before an OWCP hearing
representative.
In a July 28, 2016 decision, an OWCP hearing representative affirmed the January 15,
2016 decision. He found that the opinion of Dr. Fultz as the impartial medical specialist was
entitled to special weight and established that appellant did not sustain a recurrence of disability
or a cervical condition that warranted surgery causally related to her accepted October 10, 2006
employment injuries.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which has resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.8 The term disability means incapacity, because of an employment injury,
to earn the wages the employee was receiving at the time of injury.9 The term also means the
7

The Board notes that the record does contain a separate decision issued by OWCP which accepted appellant’s
claim for left cubital tunnel syndrome.
8

20 C.F.R. § 10.5(x).

9

Id. at § 10.5(f).

6

inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn, except for when such withdrawal occurs for reasons of misconduct,
nonperformance of the job duties, or a reduction-in-force.10
When an employee, who is disabled from the job he or she held when injured due to
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that the employee can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative, and substantial evidence a recurrence of total disability.
As part of this burden, the employee must show a change in the nature and extent of the injuryrelated condition or a change in the nature and extent of the light-duty job requirements.11
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 specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.12
ANALYSIS -- ISSUE 1
In the last appeal the Board found an unresolved conflict in medical opinion and
remanded the case to OWCP for proper selection of a referee physician.
On remand, OWCP selected Dr. Fultz to resolve the conflict. Dr. Fultz submitted a
May 8, 2014 report in which he provided an extensive review of the medical record. He found
that appellant did not have a recurrence of disability beginning September 11, 2007 or a cervical
condition that warranted surgery due to the accepted October 10, 2006 employment injuries.
Dr. Fultz also found that she could work six hours a day with permanent restrictions related to
her accepted work injuries. He documented essentially normal findings on physical examination
with the exception of mild tenderness about the paracervical and periscapular muscles, subjective
decreased sensory acuity on the volar aspect of the ring and little fingers, weakness in finger
abduction and adduction, slight degree of weakness with finger flexion, muscle atrophy in the
proximal medial aspect of the forearm in the flexor carpi ulnaris muscle region, and localized
tenderness over the medial or lateral epicondylar area. Dr. Fultz diagnosed, among other things,
a history of cervical degenerative disc disease and degenerative joint disease and cervical
myofascial pain. He noted that appellant was status post a March 12, 2008 anterior cervical
discectomy with interbody fusion and internal fixation at C5-6 and C6-7. Dr. Fultz found that
there were diagnostic studies to confirm that her current neck pain was caused by the diagnosed
preexisting cervical degenerative conditions. He further found that appellant’s response to the
March 12, 2008 cervical surgery established that degenerative changes in her spine were not
major pain generators for her discomfort. Thus, Dr. Fultz concluded that the March 12, 2008

10

Id. at § 10.5(x).

11

Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
12

L.S., Docket No. 12-0139 (issued June 6, 2012); Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch
(Ronald Brasch), 52 ECAB 252 (2001).

7

cervical surgery was not warranted as a result of the accepted employment injuries, but rather
necessary to treat her preexisting cervical conditions.
In a supplemental report dated June 12, 2015, Dr. Fultz responded to the questions posed
by OWCP and clarified his report as to whether appellant sustained a recurrence of disability or a
cervical degenerative condition that warranted surgery due to the accepted October 10, 2006
employment injuries. He opined that she did not sustain a spontaneous change in the nature and
extent of the injury-related conditions resulting in her disability from work. Dr. Fultz instead
opined that appellant had continuing residuals of the work-related conditions. He noted that her
history of preexisting degenerative changes in the cervical spine were not symptomatic or
significantly aggravated by the employment injuries. Dr. Fultz reasoned that there were no
diagnostic studies to confirm that degenerative disc disease or degenerative joint disease resulted
from these injuries. He further noted that since appellant did not see significant improvement
following her March 12, 2008 cervical surgery, surgery on the degenerative levels of the cervical
spine did not represent a major pain generator that contributed to the symptoms in her neck that
went into to her upper extremity. Thus, Dr. Fultz found that the surgery was not reasonable and
necessary as a consequence of the accepted employment injuries.13
As noted, a well-reasoned opinion from a referee examiner is entitled to special weight.14
The Board finds that Dr. Fultz provided a comprehensive, well-rationalized opinion based on a
complete factual and medical background and his review of the SOAF and the medical record
and findings on examination. Dr. Fultz’ opinion that appellant was not totally disabled
commencing September 11, 2007 due to her accepted October 10, 2006 employment injuries is
entitled to special weight and represents the weight of the evidence.15
LEGAL PRECEDENT -- ISSUE 2
With respect to consequential injuries, it is an accepted principle of workers’
compensation law that, when the primary injury is shown to have arisen out of and in the course
of employment, every natural consequence that flows from the injury is deemed to arise out of
the employment, unless it is the result of an independent intervening cause which is attributable
to the employee’s own intentional conduct.16 The basic rule is that a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury.17
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
13

The Board finds that, while Dr. Fultz found that appellant had cervical myofascial pain causally related to the
accepted injuries, OWCP has indicated that it will accept this condition by separate decision.
14

See cases cited, supra note 12.

15

Id.

16

See A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

17

Charles W. Downey, 54 ECAB 421 (2003).

8

evidence is an opinion of reasonable medical certainty supported by sound medical rationale
explaining the nature of the relationship of the diagnosed condition and the specific employment
factors or employment injury.18
ANALYSIS -- ISSUE 2
As found above, the medical evidence is represented by the thorough, well-rationalized
impartial medical opinion of Dr. Fultz, who found that appellant was not totally disabled
commencing September 11, 2007 due to her accepted October 10, 2006 employment-related
injuries. He also found that she did not sustain a cervical condition that warranted surgery on
March 12, 2008 as a consequence of the accepted work injuries. Dr. Fultz based his opinion on
an examination of appellant and a review of the record, including a review of diagnostic test
results. He noted that there were no diagnostic studies to confirm that degenerative disc disease
or degenerative joint disease resulted from the accepted employment injuries. Dr. Fultz further
noted that appellant’s prior surgery, which included anterior cervical discectomy with interbody
fusion and internal fixation at C5-6 and C6-7, did not provide significant improvement. He
concluded that the surgery was not reasonable and necessary as a consequence of the accepted
employment injuries.
The Board finds that Dr. Fultz’ medical opinion is sufficiently rationalized and based
upon a complete factual and medical background such that it is entitled to special weight to
establish that appellant did not sustain a cervical condition that warranted surgery due to her
October 10, 2006 employment injuries.19
On appeal, counsel contends that Dr. Fultz’ medical opinion is sufficient to establish that
appellant sustained a recurrence of disability and a cervical condition due to her accepted
employment injuries as he restricted her from repetitive use of her left upper extremity which
rendered her unable to perform the duties of her modified job. Alternatively, he asserts that
Dr. Fultz’ opinion does not sufficiently address the medical issues to carry the weight of the
evidence, warranting a new impartial medical examination. Counsel indicates that OWCP did
not specifically request that Dr. Fultz determine whether appellant could perform the physical
requirements of her modified job at the time of the alleged recurrence of disability. However, as
found above, Dr. Fultz, who was selected as the impartial medical specialist, reviewed her full
medical history, performed a thorough, documented physical evaluation, and provided work
restrictions in accordance with his findings. His report was well rationalized and his opinion,
that appellant could perform light-duty work, constitutes the weight of the medical evidence.20
Appellant did not submit any additional, rationalized medical evidence supporting a recurrence
of disability commencing September 11, 2007 or a cervical condition that warranted surgery on
March 12, 2008 due to the accepted October 10, 2006 work injuries. The Board finds, therefore,
that counsel’s contentions are not established by the record.

18

J.B., Docket No. 14-1474 (issued March 13, 2015).

19

See cases cited, supra note 12.

20

Id.

9

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 failed to meet her burden of proof to establish a
recurrence of total disability commencing September 11, 2007 causally related to her
October 10, 2006 employment injuries. The Board further finds that she has failed to meet her
burden of proof to establish a cervical condition that warranted surgery due to her accepted
employment-related injuries.
ORDER
IT IS HEREBY ORDERED THAT the July 28, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 13, 2017
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shelton, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0966
Issued: August 22, 2016

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 March 30, 2016 appellant filed a timely appeal from an October 8, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from the last OWCP merit decision dated September 5, 2013, and the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.2

1

2

5 U.S.C. § 8101 et seq.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from October 8, 2015, the date of the last decision was
April 5, 2016. Since using April 6, 2016, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is March 30, 3016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration of her claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. In a January 23, 2003 decision, the
Board affirmed a January 24, 2002 OWCP decision finding that OWCP met its burden of proof
to terminate appellant’s compensation based on her refusal of suitable work.3 In a September 12,
2014 decision, the Board affirmed a September 5, 2013 OWCP decision finding that appellant
did not establish that her refusal of suitable work was justified.4 The facts and circumstances of
the case and as set forth in the Board’s prior decision are incorporated herein by reference.
In an appeal request form received on August 11, 2015, appellant requested
reconsideration of the September 12, 2014 Board decision. In a narrative statement of the same
date, she referenced page four of the Board’s September 12, 2014 decision which found:
“Therefore, these reports do establish that appellant’s refusal of the offered position was
justified.” Appellant indicated that while she was an employee she always reported for work and
carried out her work duties that her doctors found suitable. She noted that she did not refuse
work and her time cards prove that she reported for work until her retirement on June 1, 2011.
Appellant reported suffering for years from the results of her injuries sustained while employed
with the employing establishment. She noted that after her retirement she sought treatment for
her work injuries and underwent two operations. On August 11, 2011 appellant had a lipoma on
her lower back removed and on January 6, 2015 she had neck surgery. Appellant noted
attending every medical examination scheduled. She stated that she was seeking justice as she
was injured while working and was unable to work in a full capacity due to the lack of proper
medical treatment. Appellant indicated that these circumstances affected her family physically,
emotionally, and financially. She submitted an excerpt from page four of the Board’s decision
dated September 12, 2014.
In an October 8, 2015 decision, OWCP denied appellant’s request for reconsideration on
the grounds that the evidence submitted was insufficient to warrant a merit review.
3

Docket No. 02-1023 (issued January 23, 2003). On February 7, 1994 appellant, a letter carrier, was injured
when she slipped on ice. OWCP accepted the claim for concussion and contusions of the cervical and lumbar spine.
Appellant eventually returned to light duty four hours per day. OWCP determined that a conflict of medical opinion
existed between Dr. William S. Lewis, a Board-certified orthopedist, her treating physician, who indicated that she
could work light duty four hours per day, and Dr. Alan H. Goodman, a Board-certified orthopedist, an OWCP
referral physician, who determined that she had no residuals of the accepted conditions and could work full time.
Appellant was referred to Dr. Kenneth M. Kramer, a Board-certified orthopedist, to resolve the conflict. In an
October 5, 1999 report, Dr. Kramer found that she could work four hours per day within certain restrictions. The
employing establishment offered appellant a modified light-duty position on December 21, 1999 conforming to
Dr. Kramer’s restrictions. Appellant declined the December 21, 1999 job offer. After providing her required
procedural notices that the reasons for her refusal of the offered position were not justified, OWCP, on February 28,
2000, terminated her compensation for refusing suitable work.
4

Docket No. 14-0476 (issued September 12, 2014).

2

LEGAL PRECEDENT
Under section 8128(a) of FECA,5 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(3) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain 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.”6
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.7
ANALYSIS
The Board, in its prior decision, found that the evidence submitted was insufficient to
meet appellant’s burden of proof to establish that her refusal to accept the suitable work was
justified. Thereafter, OWCP denied appellant’s reconsideration request, without a merit review.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In her request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. In her August 4, 2015 request for reconsideration, she
referenced page four of the Board’s decision which found, “Therefore, these reports do establish
that appellant’s refusal of the offered position was justified.” Appellant indicated that she always
reported for work and carried out the duties that her doctors found suitable. She noted that she
did not refuse work and her time cards prove that she reported for work until her retirement on
June 1, 2011. Appellant reported suffering for years from the results of her work injuries and
that she underwent two operations on her lower back and neck. She noted attending every
medical examination scheduled. Appellant stated that she was seeking justice as she was injured
while working and was unable to work in full capacity due to the lack of proper medical
treatment. These assertions do not show a legal error by OWCP or a new and relevant legal

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(b).

3

argument. These assertions are similar to assertions considered by the Board in its
September 12, 2014 decision.8
The underlying issue in this case pertains to whether appellant submitted medical
evidence establishing that her refusal to accept the suitable work was justified. That is a medical
issue which must be addressed by relevant new medical evidence.9 However, appellant did not
submit any relevant and pertinent new medical evidence in support of her claim. She submitted
the previously quoted excerpt from the Board’s decision. However, the Board notes that this
sentence contains a typographical error as the decision clearly concluded that appellant’s refusal
of suitable work was not justified. As explained, the underlying issue in this claim is whether the
medical evidence establishes that appellant’s refusal to accept the suitable work was justified.
Her submissions on reconsideration are not relevant to this underlying medical issue.10
Therefore, this new evidence is insufficient to warrant reopening the case for a merit review.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). She did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence. Pursuant to 20 C.F.R. § 10.608, OWCP properly
denied merit review.
On appeal appellant reiterates her assertions that she never refused suitable work and that
she strictly followed her attending physician’s orders and worked within the limitations of her
physical capabilities. She notes in her letter of August 4, 2015 that after her retirement she
underwent two surgeries to correct the damage caused by her work injuries. As explained, the
Board does not have jurisdiction over the merits of the claim.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration of her claim under 5 U.S.C. § 8128(a).

8

See James W. Scott, 55 ECAB 606 (2004) (evidence that repeats or duplicates evidence already in the case
record has no evidentiary value and does not constitute a basis for reopening a case).
9

See Bobbie F. Cowart, 55 ECAB 746 (2004).

10

The Board has held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case. See J.J., Docket No. 16-0555 (issued June 2, 2016); Edward Matthew
Diekemper, 31 ECAB 224 (1979).

4

ORDER
IT IS HEREBY ORDERED THAT the October 8, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2016
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

5