United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICES, Valley Stream, NY,
Employer
__________________________________________

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

Docket No. 09-356
Issued: November 17, 2009

Case Submitted on the Record

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

JURISDICTION
On November 17, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decision dated August 21, 2008, denying modification of the
termination of her compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective August 1, 2007.
FACTUAL HISTORY
On February 8, 2006 appellant, then a 68-year-old legal assistant, injured her left side and
lower back after bending down to pick up a pencil on the floor. The Office accepted her claim

for lumbar strain and left knee sprain.1 Following her injury, appellant returned to work full duty
and was paid appropriate compensation benefits.2
Dr. Eric Freeman, a Board-certified orthopedic surgeon, first treated appellant for her
work injury on March 15, 2006. He reviewed the history of injury and diagnosed internal
derangement of the left knee with lumbar herniated disc. In reports dated April 17 and May 10,
2006, Dr. Freeman reiterated his diagnosis and noted that appellant was working. On May 16,
2006 Dr. Mario Torrents, a Board-certified physiatrist, diagnosed painful lumbosacral
derangement and sprain secondary to a February 8, 2006 work accident. He also diagnosed
painful left knee internal derangement. Dr. Torrents noted that appellant was partially disabled
and was working. On June 2, 2006 he diagnosed improving painful left lumbar sciatica and
noted that she was able to work and would continue physical therapy.
In a report dated June 5, 2006, Dr. Freeman diagnosed torn medial meniscus of the left
knee and noted that appellant was working. He asked for authorization to perform a partial
medial meniscectomy. A magnetic resonance imaging (MRI) scan performed for Dr. Freeman
on June 1, 2006 revealed moderate joint effusion with no significant patellofemoral
chondromalacia changes, osteoarthritis, greater medially, with the medial meniscus markedly
compressed although no discrete tear was seen. On June 21, 2006 he reiterated his diagnosis of
torn medial meniscus. Dr. Freeman further advised that appellant was unable to work from
June 15 to 16 and June 21 to 30, 2006.
In reports dated September 25 and October 23, 2006, Dr. Torrents again diagnosed
painful lumbar sprain and left knee sprain and torn meniscus secondary to a February 8, 2006
work accident. He indicated that appellant was partially disabled and working. On October 17,
2006 Dr. Torrents noted that she was unable to work on days she received physical therapy. In
reports from January 8 to March 29, 2007, he reiterated his diagnoses, stated that appellant had
partial disability but was still working. On May 4, 2007 Dr. Torrents advised that she
complained of low back pain exacerbated by prolonged standing with pain radiating down her
left thigh, leg and foot. Appellant also complained of left knee pain when standing and walking.
She reported difficulty in bending the knee and going up and down stairs along with frequent
giving way episodes. Dr. Torrents stated that April 9, 2007 MRI scan results showed bulging at
L2-3, L3-4 and L4-5 with disc degeneration noted at L2-3 and L3-4 and anterolisthesis at L3-4.
He assessed painful lumbar derangement with multiple bulging disc and left L4 and L5 lumbar
radiculopathy and painful left knee internal derangement with meniscus pathology all secondary
to the February 8, 2006 work injury. Dr. Torrents recommended that appellant continue physical
therapy three times a week and continue working while partially disabled. On June 4, 2007 he
diagnosed painful lumbar derangement, with multiple bulging discs and left L4 and L5 lumbar
radiculopathies and left knee internal derangement, with torn cartilage, secondary to the
February 8, 2006 injury. He indicated that appellant had severe permanent partial disability but
noted that she was working. Dr. Torrents continued submitting reports supporting that her low
back and left knee conditions were due to the February 8, 2006 work injury.
1

The Board notes that the Office accepted appellant’s claim for lumbar strain on August 24, 2006 and left knee
sprain on July 25, 2007.
2

The Board notes that appellant missed work several days each week due to physical therapy sessions.

2

The Office referred appellant to Dr. P. Leo Varriale, a Board-certified orthopedic
surgeon, for a second opinion. In a May 24, 2007 report, Dr. Varriale summarized the history of
injury and noted the medical records he reviewed. Upon examination, he found that appellant’s
lumbar spine had no spasm, tenderness or atrophy. Lumbar range of motion was normal.
Appellant had full strength and no sensory deficits in the lower extremities and straight leg
raising was negative. The left knee had mild effusion, mild quad atrophy and no instability.
Dr. Varriale diagnosed resolved lumbosacral strain, resolved left knee strain and osteoarthritis of
the knee. He noted no objective findings of the accepted conditions and opined that the injuryrelated condition had resolved. Dr. Varriale indicated that appellant currently had degenerative
disc disease of the spine and osteoarthritis of the left knee. He opined that, based on his loss of
motion findings and the MRI scan results, appellant had some disability attributable to arthritis
of the knee and degenerative disc disease of the spine but advised that this was not work related.
Dr. Varriale advised that there was no need for further physical therapy or orthopedic treatment,
as the condition was chronic, permanent, not work related and due to degenerative disease. He
also noted that appellant was able to perform her duties as a legal assistant for six hours per day,
five days per week with work limitations being due to her arthritis and degenerative disc disease.
Dr. Varriale also submitted a report outlining her work restrictions.
On June 26, 2007 the Office issued a proposed notice of termination of compensation. It
found that the weight of the medical evidence, represented by Dr. Varriale’s report, demonstrated
that appellant no longer had any disability or residuals due to her accepted February 8, 2006
work-related condition. The Office allowed 30 days for her to submit additional evidence.
In response, appellant submitted a November 12, 2006 report from Dr. Freeman. Based
on x-rays, Dr. Freeman diagnosed internal derangement of the left knee with lumbar herniated
disc. He noted that on June 5, 2006 he found a torn medial meniscus and osteoarthritis.
Dr. Freeman stated that based on appellant’s history and findings she had a “causally related” left
knee and lumbar spine injury and noted that she had no previous left knee problems. He opined
with a reasonable degree of medical certainty that there was a causally related disability to the
left knee and lumbar spine as a result of the February 2006 injury.
On June 12, 2007 Dr. Torrents summarized his findings from each date of treatment and
noted treating appellant since May 16, 2006 for the February 8, 2006 work injury. He diagnosed
painful lumbosacral derangement sprain due to the work injury. Dr. Torrents also diagnosed
status post left knee internal derangement due to the work injury and confirmed by
electromyogram (EMG). He opined that appellant had a permanent partial disability of a marked
degree such that she could not perform any physical activities without pain. Dr. Torrents further
noted that her disability had not improved with physical therapy, had not changed and would
continue indefinitely. He indicated that appellant’s left knee torn meniscus could improve with
surgery but there were permanent defects at the left knee joint secondary to chronic changes.
Dr. Torrents opined that the February 8, 2006 incident was the only competent cause of her
condition. He noted that appellant’s prognosis was poor and that her condition would continue
indefinitely. Dr. Torrents also submitted July 13 and 16, 2007 treatment notes listing her back
and knee diagnoses and indicating that her conditions were a direct consequence of the
February 8, 2006 work injury. He indicated that appellant had a permanent partial disability and
was working.

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In a decision dated August 1, 2007, the Office terminated appellant’s compensation
benefits effective that day finding that Dr. Varriale’s report established that the accepted
conditions had resolved.
On September 24, 2007 appellant requested reconsideration. She also asserted that the
Office did not accept all injuries and conditions sustained as a result of the work accident, which
was supported by medical evidence provided by her treating physicians. Appellant further
asserted that her treating physicians’ opinions established that she continued to have disability
from the work injury. Medical reports previously of record from Drs. Torrents and Freeman
were also submitted.
In a decision dated August 21, 2008, the Office denied modification of its August 1, 2007
decision finding that appellant did not submit sufficient medical evidence to establish that
termination was not warranted.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 After it has determined that an employee has disability
causally related to his federal employment, the Office may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, the Office must establish that the claimant no
longer has residuals of an employment-related condition, which requires further medical
treatment.6
ANALYSIS
The Office terminated appellant’s compensation benefits based on the opinion given by
Dr. Varriale, it’s second opinion referral physician, who explained that there were no objective
findings of the accepted compensable conditions as her lumbar spine had no spasm, tenderness
or atrophy and her left knee had only mild effusion, mild quad atrophy and no instability.
Dr. Varriale further found that the range of motion of her lumbar spine was normal and that her
lower extremities had full strength and no sensory deficits. As a result, he opined that
appellant’s lumbosacral strain and left knee strain had resolved with no residuals related to her
February 8, 2006 injury. Dr. Varriale noted that she did have residual disability limiting the
number of hours she could work, but this was due to her unaccepted arthritis and degenerative
3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
4

Vivien L. Minor, 37 ECAB 541 (1986).

5

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); Larry Warner, 43 ECAB 1027 (1992).

6

E.J., 59 ECAB ___ (Docket No. 08-1350, issued September 8, 2008).

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disc disease conditions. He found no basis on which to attribute any continuing condition to the
February 8, 2006 work injury.
In contrast, Dr. Torrents, appellant’s treating physician, found that appellant remained
partially disabled due to the February 8, 2006 work injury. He diagnosed lumbosacral
derangement sprain and status post left knee internal derangement, both secondary to the
February 8, 2006 work injury and confirmed by EMG results. Dr. Torrents opined that appellant
had a permanent partial disability of a marked degree that she could not perform any physical
activities without pain. He further opined that her disabling condition would continue
indefinitely and that her work injury was the only competent cause for her current condition.
As the Office accepted appellant’s claim and paid benefits, it has the burden of proof to
establish that residuals of the accepted conditions resolved by August 1, 2007.7 The Board notes
that, while the report of the referral physician, Dr. Varriale, supports that residuals of the
accepted conditions have resolved, reports from appellant’s physician, Dr. Torrents, support that
conditions caused by the work injury have not resolved. The Board finds that the opinion of
Dr. Varriale, the referral physician, conflicts with the opinion of Dr. Torrents, appellant’s
treating physician.8 The Board has held that, when there are opposing reports of virtually equal
weight and rationale, the case must be referred to an impartial medical specialist, pursuant to
section 8123(a), to resolve the conflict in the medical evidence.9 As there is an unresolved
conflict in the medical evidence, the Board finds that the Office did not meet its burden of proof
to justify the termination of appellant’s compensation benefits.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to justify the termination
of appellant’s compensation benefits. A conflict in medical opinion exists between appellant’s
treating physician and the Office referral physician on whether appellant has continued disability
or residuals of her accepted condition.

7

See supra notes 3-6; Robert Dickerson, 46 ECAB 1002 (1995).

8

See 5 U.S.C. § 8123(a) (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.
9

J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 21, 2008 is reversed.
Issued: November 17, 2009
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 15-1421
Issued: December 28, 2015

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 June 16, 2015 appellant filed a timely appeal from a May 26, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a cervical injury causally related to factors of her federal employment.

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2

5 U.S.C. § 8101 et seq.

On appeal appellant provided a written description of factors of her federal employment and her alleged injury.
The Board is precluded from considering new evidence which was not before OWCP at the time of its decision. See
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 26, 2014 appellant, then a 46-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that, as a result of her federal duties, she sustained a cervical
strain, cervical radiculopathy, and impingement syndrome. The employing establishment
controverted her claim, challenging fact of injury/causal relationship.
By letter to appellant dated September 8, 2014, OWCP noted that the evidence was
insufficient to support her claim and listed evidence that she needed to submit, including
evidence to support that she experienced employment factors alleged to have caused the injury, a
diagnosis of a medical condition, and a physician’s opinion as to how her employment activities
contributed to or aggravated her medical condition.
In response, appellant submitted medical reports dated from May 14 through
November 7, 2014 from Dr. Ronnie D. Shade, appellant’s treating Board-certified orthopedic
surgeon. Dr. Shade noted that appellant complained of neck and left shoulder pain and that, after
examining her and reviewing multiple objective tests, he concluded that she had bilateral cervical
radiculopathy at C6-7 and impingement of the left shoulder. Appellant also submitted the results
of the various objective tests, including x-rays, nerve conduction velocity studies, and
electromyograms.
By decision dated November 20, 2014, OWCP denied appellant’s claim as appellant had
not submitted sufficient evidence to establish that any event occurred which could have
contributed to her medical condition.
On December 19, 2014 appellant requested review of the written record before an OWCP
hearing representative. She continued to submit medical reports by Dr. Shade which indicated
that he continued to treat appellant through February 18, 2015 for bilateral cervical radiculopathy
at C6-7 and impingement syndrome of the left shoulder.
Appellant also submitted medical reports that dealt with other alleged injuries, including
reports from Concentra regarding a head injury allegedly sustained on May 2, 2015 and the
results of a psychiatric evaluation concerning an on-the-job injury that occurred on November 9,
2013 when appellant encountered a man who had been shot in the head while she was delivering
mail.
By decision dated May 26, 2015, an OWCP hearing representative affirmed the
November 20, 2014 decision. The hearing representative found that appellant had not
established that any described employment duties caused her alleged cervical injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged, and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to

2

the employment injury.3 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.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
occupational disease claim, an employee must submit: (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
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
ANALYSIS
The Board finds that appellant failed to meet her burden of proof to establish her claim.
Appellant must provide a factual statement identifying the employment factors alleged to
have caused the employment injury before OWCP can review the medical evidence to determine
whether an employment-related medical condition has been diagnosed. In this case, she did not
offer any explanation on her claim form as to how she allegedly sustained her alleged cervical
condition. Appellant simply related that her condition was employment related. She provided
no description regarding her work duties.7
By letter dated September 8, 2014, OWCP asked appellant to submit further information,
including evidence that she experienced employment factors that she alleged caused her medical
condition and medical evidence in support of her claim. Appellant did not respond to this
request. She did provide various medical reports in response to this letter. Some of this medical
evidence was irrelevant to the instant case as it discussed other injuries, including an alleged
head injury and an alleged emotional injury that involved other dates of injury. However, the
reports of Dr. Shade noted a medical diagnosis of bilateral cervical radiculopathy at C6-7 and
impingement of the left shoulder. Despite this evidence of a medical diagnosis, appellant failed
to submit any personal statement with regard to the special duties she performed while working
which are factors of her federal employment that she alleged caused her medical condition.
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that she sustained an injury in
the performance of duty, he or she must submit sufficient evidence identifying specific
employment factors alleged to have caused or contributed to the presence or occurrence of the

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

See S.P., 59 ECAB 184, 188 (2007).

6

See Roy L. Humphrey¸ 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

7

See L.M., Docket No. 14-805 (July 21, 2014).

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disease or condition alleged.8 Appellant failed to submit a factual statement identifying which
factors of federal employment she alleged caused her injury. She made no statement on her
claim form as to what physical duties she performed during her daily employment that led to her
medical condition. Appellant also failed to provide a response to OWCP’s letter asking her to
submit evidence to support the employment factors she alleged caused her injury. Without such
statement or evidence, she has failed to establish fact of injury.
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 failed to establish that she suffered an injury causally
related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 26, 2015 is affirmed.
Issued: December 28, 2015
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

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J.J., Docket No. 12-1569 (issued February 12, 2013).

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

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

Docket No. 09-1548
Issued: March 5, 2010

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 May 29, 2009 appellant filed a timely appeal from an April 29, 2009 merit decision of
the Office of Workers’ Compensation Programs denying her claim of injury. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that she sustained an injury causally related to
the factors of her federal employment.
On appeal, appellant contends that she sustained cervical radiculitis, cervical herniated
disc and rotator cuff syndrome due to a February 6, 2009 work injury.
FACTUAL HISTORY
On March 12, 2009 appellant, then a 45-year-old window clerk, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a chronic injury that persisted and worsened over
time. She stated that, on February 6, 2009, while processing outgoing mail at work, she
experienced numbness and pain in her right arm and hand. The employing establishment

controverted the claim on the grounds that it should have been filed as an occupational disease
and that the medical evidence was insufficient to establish an employment injury.
Appellant submitted medical notes dated February 23 through March 7, 2009 from
Dr. Erica M. David, Board-certified in physical medicine and rehabilitation, who stated that
appellant was in her office and provided physical limitations, including no lifting greater than
5 to 10 pounds, no overhead shoulder activity and avoidance of repetitive movements with the
right arm. On February 26, 2009 Dr. David prescribed occupational therapy for appellant’s right
shoulder and elbow for right rotator cuff syndrome, right medial epicondylitis and cervical right
radiculopathy. She took appellant out of work from February 26 through March 8, 2009. On
March 7, 2009 she took appellant out of work through April 4, 2009 for right shoulder and right
elbow pain.
In a March 4, 2009 report, Dr. David briefly described appellant’s medical treatment.
She advised that appellant was disabled through April 4, 2009 and recommended physical
therapy to decrease her pain. Dr. David noted that appellant was currently receiving
occupational therapy on her right shoulder and elbow for right rotator cuff syndrome, right
medial epicondylitis and cervical right radiculopathy.
On February 18, 2009 Dr. Indu Vira, a Board-certified internist, diagnosed chronic
tendinitis and pain in appellant’s right hand and returned her to work on February 23, 2009.
By letter dated March 19, 2009, the Office notified appellant of the deficiencies in her
claim. It requested that she provide additional factual and medical evidence. The Office also
advised her that it would adjudicate her claim as an occupational disease as she identified a
chronic injury.
On March 16, 2009 Dr. David provided physical restrictions and indicated that appellant
was unable to work until April 4, 2009 but that she would be reevaluated on March 23, 2009 for
restricted duty.
In a March 24, 2009 statement, appellant stated that her duties at work for the past several
years included pushing and pulling postal containers of 70 to 90 pounds, processing flow back
mail, breaking down cages of mail and moving heavy pallets of mail. She claimed that, on
February 6, 2009, she was performing mail handler work, specifically pushing and pulling 70- to
90-pound postal containers, when her right shoulder, arm and hand became numb and very
painful. On March 24, 2009 appellant clarified that she experienced the claimed injury on
February 6, 2009 while performing mail handler work and that her injury worsened and became
more painful during the following week.
By letter dated March 25, 2009, the Office reiterated that it was adjudicating her claim as
an occupational disease and that continuation of pay could not be authorized.
On April 6, 2009 Dr. David released appellant to light duty for four hours a day with
restrictions on lifting more than 10 pounds and limitations on repetitive movements with the
right arm.

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By decision dated April 29, 2009, the Office denied appellant’s claim on the grounds that
she did not provide a sufficiently detailed description of the employment factors that she
believed caused an injury.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,2 including that she is an “employee” within the meaning of
the Act3 and that she filed her claim within the applicable time limitation.4 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.5 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.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (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 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.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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.8
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

See Gary J. Watling, 52 ECAB 357 (2001).

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

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ANALYSIS
The issue is whether appellant established that she sustained an injury causally related to
the factors of her federal employment. The Office denied the claim on the grounds that she did
not submit a sufficiently detailed statement identifying the work factors that she believed caused
an employment injury.
Appellant initially filed a traumatic injury claim (Form CA-1) alleging injury on
February 6, 2009. The Board finds that due to the nature of her claim, it is more accurately
characterized as an occupational disease. A traumatic injury is defined as a condition caused by
a specific event or incident or series of events or incidents, within a single workday or shift.9 By
contrast, an occupational disease is a condition produced by the work environment over a period
longer than a single workday or shift.10 Appellant’s statements attributed her condition to her
employment duties, alleging a chronic condition that persisted and worsened overtime. Although
she clarified that she did not begin to experience symptoms of her condition until February 6,
2009, she did not describe a single event or series of events within a single workday or shift that
she believed caused an injury. Rather, appellant implicated her performance of employment
duties over more than one shift. As such, her claim was properly adjudicated as an occupational
disease.11
The Board finds that appellant has identified the work activities of her occupational
disease claim. Appellant listed her employment duties including pushing and pulling postal
containers weighing 70 to 90 pounds, processing flow back mail, breaking down cages of mail
and moving heavy pallets of mail. Her statements regarding her employment duties are
consistent and there is no evidence from the employing establishment to refute her claims
regarding her employment activities.12 Therefore, appellant has identified the employment
factors that she believed caused her claimed condition.
Appellant also has the burden to establish that she sustained an injury due to her
employment factors.13 On appeal, she contends that she sustained cervical radiculitis, cervical
herniated disc and rotator cuff syndrome due to her employment. However, neither the fact that
a condition became apparent during a period of employment, nor the belief of appellant that the
condition was caused or aggravated by employment conditions, is sufficient to establish causal

9

20 C.F.R. § 10.5(q).

10

Id. at § 10.5(ee).

11

The Board notes that it is irrelevant that appellant filed a traumatic injury claim rather than an occupational
disease claim. Office procedures provide that submission of an incorrect form is a technical error and it is improper
for the Office to deny a case on the basis that a claimant failed to submit the correct form. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.4(b) (March 2003). Further, the Board
has held that enforcing technical requirements of pleading are inconsistent with the remedial purposes of the Act.
See Dale M. Newbigging, 44 ECAB 551 (1993); Wilfred M. Hamilton, 41 ECAB 524 (1990).
12

See Louise F. Garnett, 47 ECAB 639 (1996); Loise G. Moore, 20 ECAB 165 (1968).

13

See Roy L. Humphrey, supra note 7.

4

relationship.14 Appellant is required to submit rationalized medical opinion evidence explaining
how her employment duties caused or aggravated the diagnosed conditions.15
The medical evidence of record primarily consists of medical notes from Dr. David,
appellant’s treating physician, who diagnosed right rotator cuff syndrome, right medial
epicondylitis and cervical right radiculopathy. Dr. David provided physical activity restrictions
and took appellant out of work through April 4, 2009 for right shoulder and elbow pain. She
prescribed occupational therapy for appellant’s right shoulder and elbow. Dr. David prescribed
additional physical therapy to decrease pain. On April 6, 2009 she released appellant to parttime, light duty with restrictions on lifting more than 10 pounds and limitations on repetitive
movements with the right arm.
The Board finds that medical evidence from Dr. David is insufficient to establish
appellant’s claim. Dr. David did not address the cause of appellant’s right rotator cuff syndrome,
right medial epicondylitis or cervical right radiculopathy. She did not provide a rationalized
medical opinion explaining how the duties appellant performed at work caused or contributed to
the diagnosed conditions or otherwise opine as to whether they were related to appellant’s
employment. As such, this medical evidence is of diminished probative value.16
The February 18, 2009 medical note from Dr. Vira diagnosed chronic tendinitis and pain
in appellant’s right hand and returned her to work on February 18, 2009. The Board finds that
this note is similarly insufficient to establish her claim, as the physician did not address the cause
of the diagnosed chronic tendinitis. Therefore, her note is also of diminished probative value.17
Appellant did not submit sufficient evidence providing rationalized medical opinion
explaining how her sustained diagnosed conditions were causally related to her employment.
The Board finds that the medical evidence of record is insufficient to establish that appellant
sustained an injury causally related to employment factors.18
CONCLUSION
The Board finds that appellant established the factors of her federal employment that she
believed caused an injury. However, the Board also finds that she did not establish that she
sustained an injury causally related to her employment factors.

14

See Ruby I Fish, 46 ECAB 276 (1994); Frederick H. Coward, Jr., 41 ECAB 843, 852 (1990).

15

See Victor J. Woodhams, supra note 8.

16

See Donald T. Pippin, 54 ECAB 631 (2003).

17

See id.

18

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

5

ORDER
IT IS HEREBY ORDERED THAT the April 29, 2009 decision of the Office of
Workers’ Compensation is modified, in part and affirmed in accordance with this decision.
Issued: March 5, 2010
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., 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. 09-1191
Issued: November 25, 2009

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 1, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 7, 2008 nonmerit decision denying reconsideration of its
December 17, 2007 merit decision. As over one year has elapsed since the last merit decision in
this case, dated December 17, 2007, and the filing of this appeal, dated April 1, 2009, the Board
lacks jurisdiction over the merits of appellant’s claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 30, 2006 appellant, a 60-year-old mail carrier, filed an occupational disease
claim (Form CA-2) for presbyopia and eye strain that she attributed to casing mail. She alleged
1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

that because of the “unnecessary and excessive volume of mail” on her route she developed eye
problems and can no longer case mail.
Appellant submitted evidence in support of her claim.
By decision dated September 27, 2006, the Office denied the claim because the evidence
of record did not demonstrate that the identified employment factor caused a medically
diagnosed compensable injury.
Appellant disagreed and on December 6, 2006 requested reconsideration.
The Office referred appellant, together with a statement of accepted facts and a list of
questions, to Dr. Jack Greenberg, a Board-certified ophthalmologist, for a second opinion
evaluation. By report dated April 12, 2007, Dr. Greenberg reported findings on examination, a
review of appellant’s medical history and diagnosed asthenopic symptoms in both eyes,
astigmatism and presbyopia. He opined that her presbyopia developed by itself as part of the
aging process. Dr. Greenberg also opined that appellant’s eye strain was caused by the
presbyopia and the hyperopic astigmatism, which was exacerbated by her work environment
because her employment duties require her to focus at different distances. He opined that
appellant’s condition could be treated using prescription eyewear and did not prevent her from
casing mail.
Appellant submitted additional evidence supporting her request and by decision dated
May 9, 2007 the Office vacated its prior decision, accepting her claim for aggravation of eye
strain and visual discomfort.
Appellant filed a claim for wage-loss compensation for the period June 27 through
July 3, 2007. Time analysis revealed she claimed 20 hours of leave without pay, 4 hours per day,
for this period. Analysis also revealed appellant worked four hours per day during this period
except for June 29, 2007 when she claimed four hours of sick leave.
Appellant submitted additional evidence, and by decision dated December 17, 2007 the
Office denied the claim because the evidence of record did not demonstrate she was disabled
from work during this period and reduction of her work hours from eight to four hours.
Appellant disagreed and on February 28, 2008 requested reconsideration.
Appellant submitted a February 27, 2008 report in which Dr. Alapat Sebastian, a Boardcertified internist, opined that she could work eight hours per day provided she avoided casing
mail because it would cause eye strain. In an accompanying report (Form CA-20), he noted that
appellant had been evaluated by an ophthalmologist. Dr. Sebastian reported that he could not
provide details from the eye examination or an exact diagnosis. He released appellant to full
duty with no limitations.
By decision dated May 7, 2008, the Office denied the reconsideration request because the
evidence appellant submitted in support of her request was not relevant to the issue underlying
her claim, that is, whether appellant was disabled from work during the period alleged.

2

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 provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.3 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.5
ANALYSIS
Appellant’s reconsideration request did not demonstrate the Office erroneously applied or
interpreted a specific point of law nor did it advance a new relevant legal argument not
previously considered by the Office. Thus, she was not entitled to reconsideration based on the
first two enumerated grounds.
Appellant also did not satisfy the third enumerated ground, submission of new relevant
and pertinent evidence not previously considered by the Office. The relevant issue here is
whether the accepted employment injury caused appellant to be disabled from work from
June 27 through July 3, 2007. This is a medical issue that can only be established through
probative rationalized medical opinion evidence. Dr. Sebastian’s reports, though new, provide
no grounds for reopening appellant’s claim for merit review because they do not address whether
or not appellant was disabled from work from June 27 through July 3, 2007.6 Therefore, while
these reports are “new” they are not relevant or pertinent to the issue underlying her claim.
Because appellant has not satisfied any of the above-mentioned criteria, the Board finds
that the Office properly refused to reopen her case for further review of the merits of her claim.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
2

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value). See also Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB
332 (2001).

3

ORDER
IT IS HEREBY ORDERED THAT the May 7, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 25, 2009
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
CONTRACT MANAGEMENT AGENCY,
West Valley City, UT, Employer
__________________________________________

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

Docket No. 09-2284
Issued: August 13, 2010

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 September 15, 2009 appellant filed a timely appeal from an August 19, 2009 merit
decision of the Office of Workers’ Compensation Programs regarding a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant has more than 25 percent right upper extremity
impairment, for which she received schedule awards.
On appeal, appellant contends that the Office should not have combined both her right
upper extremity injuries in calculating the amount of her schedule award. She also argues that
the schedule award decision was not fair or reasonable and that she is unable to hold items in her
hand.

FACTUAL HISTORY
The Office accepted that in August 2005 appellant, then a 50-year-old procurement
technician, sustained right carpal tunnel syndrome due to her daily use of a computer.1
Appellant underwent a right carpal tunnel release on March 31, 2006. On July 27, 2006 she filed
a claim for a schedule award.
By decision dated August 28, 2006, the Office denied appellant’s claim for a schedule
award finding that the medical evidence of record did not establish that she sustained any
permanent impairment.
On October 19, 2006 appellant filed a request for reconsideration.
Nerve conduction tests performed on September 27, 2006 revealed distal latency
prolongation of the right median antidromic sensory and median palmar studies. Further, an
electromyography (EMG) test was abnormal and showed a chronic right median neuropathy at
the wrist.
By decision dated December 1, 2006, the Office denied appellant’s request for
reconsideration on the grounds that the evidence of record was cumulative, repetitious or
irrelevant to the issue of whether she was entitled to a schedule award.
On March 30, 2007 appellant underwent a second right open carpal tunnel release with
epineurolysis.
The Office referred appellant to Dr. Brian H. Morgan, a Board-certified physiatrist, for an
impairment rating.
In a July 11, 2008 report, Dr. Morgan reviewed appellant’s medical history and noted her
complaints of numbness, pins and needle dysesthesia and aching in the right hand. Physical
examination revealed slight swelling and a circumferential difference of .5 centimeters of the
right and left wrists. On the right, the Tinel’s test, Phalen’s maneuver and reverse Phalen’s
maneuver were positive; however, the tests were all negative on the left. Manual muscle
strength testing was five out of five. Two-point discrimination was within normal limits at less
than six millimeters in both the median distributions bilaterally, as well as radial and ulnar
distributions. Deep tendon reflexes were two plus at both upper extremities. Dr. Morgan
diagnosed right median neuropathy of the wrist confirmed by an EMG and nerve conduction
tests performed on September 27, 2006, status post endoscopic carpal tunnel release on
March 31, 2006 and March 30, 2007 and normal sensibility and opposition strength on physical
examination but positive Tinel’s test and Phalen’s maneuvers on the right as compared with the
left. He opined that, under the 5th edition of the A.M.A., Guides, appellant had five percent right
upper extremity impairment. Dr. Morgan cited to page 495, which provides that, if after an
optimal recovery time following surgical decompression, an individual still continues to
1

The Office initially denied appellant’s claim by decision dated November 7, 2005 on the grounds that she did
not provide sufficient medical evidence to establish causal relationship. This decision was set aside on January 19,
2006 by an Office hearing representative.

2

complain of pain, paresthesia or difficulties in performing certain activities, three possible
scenarios could be present. He stated that appellant’s situation best fit the second scenario as she
had abnormal EMG testing results and objective findings of a positive Tinel’s test and positive
Phalen’s maneuvers. Dr. Morgan also noted her complaints of difficulties with daily living
activities and found that, in accordance with this section of the A.M.A., Guides, a five percent
impairment rating was justified.
On December 5, 2008 the Office referred appellant’s record to Dr. Morley Slutsky, an
Office medical adviser Board-certified in occupational medicine. It noted that appellant
previously received a schedule award for 21 percent right upper extremity impairment on
November 3, 2006 for her accepted conditions of right elbow contusion and right lateral
epicondylitis in Office file number xxxxxx886.
On December 6, 2008 Dr. Slutsky noted Dr. Morgan’s findings of normal sensory and
motor testing, positive Tinel’s and Phalen’s tests and abnormal EMG and nerve conduction tests.
He agreed that page 495 of the A.M.A., Guides allowed five percent right upper extremity
impairment. Dr. Slutsky totaled appellant’s right upper extremity impairment by combining the
previous 21 percent right upper extremity impairment for her elbow condition with the 5 percent
right upper extremity impairment for the carpal tunnel syndrome using the Combined Values
Chart on page 604. He found total right upper extremity impairment of 25 percent.
By decision dated February 17, 2009, the Office found that appellant had 25 percent
permanent impairment of the right upper extremity. As appellant previously received a schedule
award for 21 percent right upper extremity impairment, she was compensated for the additional
four percent impairment of her right arm.
On March 17, 2009 appellant requested a telephonic hearing before an Office hearing
representative that was held on June 15, 2009. She contended that her right elbow epicondylitis
was not related to her right carpal tunnel syndrome and that she was confused why they were
both calculated in determining the schedule award for her carpal tunnel syndrome.
In a March 5, 2009 report, Dr. Michael H. Sumko, a Board-certified orthopedic surgeon,
stated that appellant sustained lateral epicondylitis but that this condition had no connection or
relationship to her carpal tunnel syndrome. On July 9, 2009 he reiterated that, while appellant’s
epicondylitis and carpal tunnel syndrome were related to her repetitive employment activities,
they were not causatively related to one another. Dr. Sumko noted that her epicondylitis was
diagnosed and treated in 2003, three years prior to her 2006 carpal tunnel syndrome.
By decision dated August 19, 2009, an Office hearing representative affirmed the
February 17, 2009 schedule award. Although appellant had 5 percent right upper extremity
impairment due to carpal tunnel syndrome, when combined under the Combined Values Chart of
the A.M.A., Guides with the 21 percent right upper extremity impairment previously awarded,
this totaled 25 percent impairment to the right.

3

LEGAL PRECEDENT
The schedule award provision2 of the Federal Employees’ Compensation Act3 and its
implementing regulations4 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. The Act, however, does not specify the manner in which the percentage of loss shall
be determined. The method used in making such a determination is a matter that rests within the
sound discretion of the Office.5 For consistent results and to ensure equal justice under the law
to all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating scheduled
losses.6
The fifth edition of the A.M.A., Guides, regarding carpal tunnel syndrome, provides that,
if after an optimal recovery time following surgical decompression, an individual continues to
complain of pain, paresthesias, and/or difficulties in performing certain activities, three possible
scenarios can be present:
“(1) Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual [carpal tunnel syndrome] is
rated according to the sensory and/or motor deficits as described [in Tables 1610a and 16-11a].
“(2) Normal sensibility and opposition strength with abnormal sensory and/or
motor latencies or abnormal EMG testing of the thenar muscles: a residual
[carpal tunnel syndrome] is still present, and an impairment rating not to exceed
[five percent] of the upper extremity may be justified.
“(3) Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), oppositional strength, and nerve conduction studies: there
is no objective basis for an impairment rating.”7
ANALYSIS
The Office accepted that appellant sustained right carpal tunnel syndrome due to her
federal employment. Appellant underwent right open carpal tunnel releases on March 31, 2006
and March 30, 2007. The Office found that appellant had a total 25 percent right upper
2

5 U.S.C. § 8107.

3

Id. at §§ 8101-8193.

4

20 C.F.R. § 10.404.

5

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781, 783-84 (1986).

6

Ronald R. Kraynak, 53 ECAB 130 (2001).

7

A.M.A., Guides 495. See also B.P., 60 ECAB __ (Docket No. 08-1457, issued February 2, 2009).

4

extremity impairment. Subtracting out the prior 21 percent impairment appellant received for
her right elbow conditions under the separate claim, the Office granted a schedule award for an
additional 4 percent impairment of the right upper extremity. This issue is whether appellant has
more than 25 percent impairment of the right arm.
The Office referred appellant to Dr. Morgan for an impairment rating. In a July 11, 2008
report, Dr. Morgan diagnosed right median neuropathy of the wrist confirmed by EMG and
nerve condition studies performed on September 27, 2006. Physical examination revealed slight
swelling of the right wrist and positive Tinel’s test, Phalen’s maneuver and reverse Phalen’s
maneuver on the right. However, appellant demonstrated normal sensibility and opposition
strength. Dr. Morgan also noted her complaints of difficulties with daily living activities. He
opined that, according to page 495 of the A.M.A., Guides, appellant sustained five percent
permanent impairment of her right upper extremity due to her carpal tunnel syndrome.8
Dr. Morgan determined that, based on the abnormal EMG and objective findings on the Tinel’s
test and Phalen’s maneuvers, as well appellant’s complaints of difficulties with daily living
activities, that she fit the second of the three possible scenarios provided for continuing
complaints after an optimal recovery time following surgical decompression.9
The Office properly referred Dr. Morgan’s report to Dr. Slutsky, an Office medical
adviser.10 In a December 6, 2008 report, Dr. Slutsky agreed with Dr. Morgan’s finding that
appellant sustained five percent impairment due to right carpal tunnel syndrome. He noted
Dr. Morgan’s findings of normal sensory and motor testing with respect to the right median
nerve distribution. Based on the abnormal EMG and nerve conduction tests, as well as the
positive Tinel’s and Phalen’s tests, he agreed that appellant fit the second scenario for carpal
tunnel syndrome found on page 495 of the A.M.A., Guides.11 Dr. Slutsky rated total impairment
to her right upper extremity by combining the prior 21 percent impairment with the 5 percent
rating for the right carpal tunnel syndrome using the Combined Values Chart on page 604.12 He
found that appellant sustained a total 25 percent upper extremity impairment.
The Board finds that Drs. Morgan and Slutsky properly found that appellant sustained
five percent right upper extremity impairment due to her right carpal tunnel syndrome. The
physicians properly applied her postsurgical decompression findings to page 495 of the A.M.A.¸
Guides.13 The findings of normal sensibility and opposition strength, but with positive Tinel’s
test and Phalen’s maneuvers coincide with the second scenario on page 495. This scenario
provides that residual carpal tunnel syndrome is still present and that an impairment rating of

8

See A.M.A.¸ Guides 495.

9

See id.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
11

See A.M.A., Guides 495.

12

See id. at 604.

13

See id. at 495.

5

five percent may be justified.14 Thus, the finding of five percent right upper extremity
impairment is based on a proper application of the A.M.A., Guides.
The Board finds that Dr. Slutsky properly used the Combined Values Chart to combine
appellant’s previous 21 percent upper extremity impairment with the 5 percent impairment for
carpal tunnel syndrome to total 25 percent permanent impairment of the right upper extremity.15
It is well established that preexisting impairments to the scheduled member are to be included
when determining entitlement to a schedule award.16 Office procedures state that any previous
impairment to the member under consideration is included in calculating the percentage of loss
except when the prior impairment is due to a previous work-related injury. In that case, the
percentage already paid is subtracted from the total percentage of impairment.17 Even though
appellant’s right elbow epicondylitis and right carpal tunnel syndrome arose separately from her
federal job duties, they were properly combined to determine that appellant sustained 25 percent
total impairment. The Office properly subtracted out appellant’s previous schedule award for 21
percent impairment to find an additional 4 percent impairment.18 Appellant did not submit any
additional medical evidence to establish that she has impairment.19
On appeal, appellant contends that the schedule award decision was not fair and that she
is still unable to hold things in her right hand. Factors, such as limitations on daily activities, do
not go into the calculation of a schedule award.20 As Drs. Slutsky and Morgan properly applied
the 5th edition of the A.M.A., Guides to the findings on physical examination and nerve
conduction tests in determining the percentage of permanent impairment to the right upper
extremity. Thus, the Board finds that the Office properly issued a schedule award for an
additional four percent impairment of the right upper extremity.
CONCLUSION
The Board finds that appellant does not have more than an addition four percent
impairment of her right upper extremity.

14

See id.

15

See id. at 604. See also Carol A. Smart, 57 ECAB 350 (2006).

16

See Michael C. Milner, 53 ECAB 446, 450 (2002); Raymond E. Gwynn, 35 ECAB 247 (1983).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.7a(2) (November 1998).
18

See id.

19

See N.M., 58 ECAB 222 (2007).

20

See E.L., 59 ECAB ___ (Docket No. 07-2421, issued March 10, 2008).

6

ORDER
IT IS HEREBY ORDERED THAT the August 19, 2009 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2010
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
__________________________________________
C.C., Appellant
and
DEPARTMENT OF JUSTICE, ALCOHOL,
TOBACCO, FIREARMS & EXPLOSIVES,
Washington, DC, Employer
__________________________________________

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

Docket No. 15-197
Issued: May 5, 2015

Case Submitted on the Record

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

JURISDICTION
On November 5, 2014 appellant filed a timely appeal from an October 22, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a back condition
causally related to a March 21, 2014 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 21, 2014 appellant, then a 40-year-old special agent, filed a traumatic injury
claim (Form CA-1) alleging that he injured his lower back on March 21, 2014 as a result of
pursuing and apprehending a suspect on foot in the performance of duty.
In an April 23, 2014 report, Dr. Vaughan Allen, a Board-certified neurosurgeon, found
that appellant had persistent low back pain and bilateral leg pain, left greater than right. He
noted that appellant was a federal employee and had extensive treatment, epidurals, and physical
therapy. Dr. Allen opined that appellant needed a laminectomy and fusion surgery.
Appellant underwent a lumbar laminectomy at L5-S1 and posterolateral lumbar fusion
performed by Dr. Paul McCombs, a Board-certified neurosurgeon, on May 1, 2014. In a followup report dated June 30, 2014, Dr. McCombs found appellant doing extremely well two months
after his surgery and released him to full duty without restrictions.
On July 3, 2014 appellant requested authorization for his May 1, 2014 back surgery.
In a July 10, 2014 letter, OWCP stated that when appellant’s claim had been received, it
appeared to be a minor injury, which resulted in minimal or no lost time from work, and payment
of a limited amount of medical expenses was administratively approved. It reopened the claim
for consideration because appellant had requested authorization for surgery. OWCP requested
additional evidence and afforded appellant 30 days to respond to its inquiries.
Appellant submitted a narrative statement dated July 15, 2014 explaining that he had
begun seeing his primary care physician in December 2013 for low back pain. He stated that he
had experienced significant relief from epidural injections until the March 21, 2014 employment
incident, which significantly exacerbated his condition.
A December 20, 2013 magnetic resonance imaging (MRI) scan revealed an
anterolisthesis of L5 on S1, disc desiccation, mild broad-based disc bulge with mild central canal
stenosis, hypertrophic degenerative changes involving the facet joints, and moderately severe
neuroforaminal narrowing on the left with impingement of the exiting L5 nerve root.
In an April 23, 2014 report, Dr. McCombs diagnosed spondylolisthesis at L5-S1 and
reported that appellant had “been struggling with this since November of 2012.” He opined that
appellant was unable to perform the duties of his federal employment and recommended surgical
intervention.
By decision dated August 15, 2014, OWCP denied appellant’s claim as the medical
evidence was insufficient to establish a causal relationship between his back condition and the
March 21, 2014 employment incident.
On September 3, 2014 appellant requested reconsideration and submitted an August 27,
2014 report from Dr. McCombs who diagnosed a preexisting condition of spondylolisthesis at
L5-S1 which he “may have been able to live with had it not been for the injury that [he]
sustained as a result of pursuing an armed suspect and fighting with him for a weapon.” He
opined that, if the incident had not occurred, appellant “may have been able to tolerate [his]
2

spondylolisthesis without the need for operative intervention going forward.” Dr. McCombs
explained that he saw “this commonly with spondylolisthesis, in which patients are
asymptomatic, and then their nerve compromise is brought to clinical light as a result of an
accident such as [appellant’s] or a motor vehicle accident.”
In a September 12, 2014 letter, OWCP requested a supplemental report from
Dr. McCombs and afforded him 30 days to respond to its inquiries.
In a report dated September 24, 2014, Dr. McCombs reiterated his opinion that
appellant’s L5-S1 spondylolisthesis was aggravated by the March 21, 2014 employment
incident. He stated that appellant “had a preexisting spondylolisthesis that was not clinically
significant until the time of his accident” and resulted in the need for operative intervention.
Physical examination findings included deficits involving the L5 nerve root, which was affected
and resulted in weakness of the dorsiflexion of the foot, as well as numbness in the L5
distribution. Dr. McCombs based his opinion on the history of injury provided by appellant and
the objective findings of his physical examination.
By decision dated October 22, 2014, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.5
2

Id.

3

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
5

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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.6
ANALYSIS
OWCP has accepted that the employment incident of March 21, 2014 occurred at the
time, place, and in the manner alleged. The issue is whether appellant’s back condition resulted
from the March 21, 2014 employment incident. The Board finds that appellant did not meet his
burden of proof to establish a causal relationship between the condition for which compensation
is claimed and the employment incident.
In an April 23, 2014 report, Dr. McCombs diagnosed spondylolisthesis at L5-S1 and
noted that appellant had “been struggling with this since November of 2012.” On August 27,
2014 Dr. McCombs stated that appellant had a preexisting condition of spondylolisthesis at L5S1 which he “may have been able to live with had it not been for the injury that [he] sustained as
a result of pursuing an armed suspect and fighting with him for a weapon.” He opined that, if the
incident had not occurred, appellant “may have been able to tolerate [his] spondylolisthesis
without the need for operative intervention going forward.” Dr. McCombs explained that he saw
“this commonly with spondylolisthesis, in which patients are asymptomatic, and then their nerve
compromise is brought to clinical light as a result of an accident such as [appellant’s] or a motor
vehicle accident.” On September 24, 2014 Dr. McCombs reiterated his opinion that appellant’s
L5-S1 spondylolisthesis was aggravated by the March 21, 2014 employment incident, indicating
that appellant “had a preexisting spondylolisthesis that was not clinically significant until the
time of his accident.”
The Board finds that Dr. McCombs’ reports are not based on an accurate history of
appellant’s back condition. Dr. McCombs indicated that appellant had suffered from L5-S1
spondylolisthesis since November 2012. However, he failed to provide a narrative setting forth a
full and accurate history of appellant’s back condition, including a comparison of any diagnostic
testing obtained after November 2012 with prior tests, and did not provide an opinion adequately
addressing how the March 21, 2014 incident contributed to appellant’s preexisting back
condition. The Board has held that medical opinions based on an inaccurate history have
diminished probative value.7 The Board finds that Dr. McCombs’ opinion is therefore of
diminished probative value on the issue of causal relationship and insufficient to establish that
appellant sustained an employment-related injury on March 21, 2014.

6

Id. See Gary J. Watling, 52 ECAB 278 (2001).

7

See Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value). See also Douglas M. McQuaid, 52 ECAB 382
(2001); N.H., Docket No. 13-849 (issued July 17, 2013).

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In an April 23, 2014 report, Dr. Allen noted persistent low back pain and bilateral leg
pain, left greater than right and that appellant had extensive treatment, epidurals, and physical
therapy. This report did not, however, provide sufficient medical rationale explaining how
appellant’s condition was caused or aggravated by pursuing and apprehending a suspect at work
on March 21, 2014.8
In support of his claim, appellant submitted an MRI scan dated December 20, 2013. This
document does not constitute competent medical evidence as it does not contain rationale by a
physician relating appellant’s disability to his employment.9 As such, the Board finds that
appellant did not meet his burden of proof with this submission.
As appellant has submitted insufficiently rationalized medical evidence to support his
allegation that he sustained an injury causally related to a March 21, 2014 employment incident,
he has failed to meet his burden of proof to establish a claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his back
condition was causally related to a March 21, 2014 employment incident, as alleged.

8

See A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
9

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the October 22, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 5, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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