United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, SOUTH JERSERY
PERFORMANCE & DISTRIBUTION CENTER,
Bellmawr, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of the Solicitor, for the Director

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Docket No. 11-183
Issued: September 7, 2011

Case Submitted on the Record

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

JURISDICTION
On October 29, 2010 appellant filed a timely appeal from a July 28, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) regarding his schedule award.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than seven percent right upper extremity
impairment, for which he received a schedule award.
FACTUAL HISTORY
On May 16, 2007 appellant, then a 58-year-old mail handler, filed an occupational
disease claim alleging that he developed a right arm condition due to the repetitive nature of his
1

5 U.S.C. §§ 8101-8193.

work duties. OWCP accepted the claim for a right rotator cuff sprain. It paid compensation,
including an August 1, 2007 recurrence of disability and a right shoulder rotator cuff repair
surgery of August 30, 2007.
On July 10, 2008 appellant requested a schedule award. In a March 26, 2008 report,
Dr. David Weiss, an osteopath, noted the history of injury, his review of available medical
records and presented findings on examination. He diagnosed cumulative and repetitive trauma
disorder; rotator cuff tear to the right shoulder; status post glenoid labral tear involving the
superior labrum to the right shoulder; acromioclavicular arthropathy with impingement to right
shoulder; status post arthroscopic surgery with repair to the right shoulder; status post
subacromial decompression of the right shoulder and status post repair of superior labrum to the
right shoulder, August 30, 2007. Dr. Weiss opined that appellant reached maximum medical
improvement on March 26, 2008 and had 14 percent right upper extremity impairment under the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).2 On August 17, 2009 appellant’s attorney inquired about the
status of the schedule award claim.
In an October 13, 2009 letter, OWCP requested Dr. Weiss provide an updated report
recommending a percentage of impairment in accordance with the sixth edition of the A.M.A.,
Guides.
OWCP received a copy of Dr. Weiss’ March 26, 2008 report revised under the sixth
edition of the A.M.A., Guides. Dr. Weiss opined that appellant reached maximum medical
improvement on March 26, 2008 and had seven percent right upper extremity impairment. He
stated that the right shoulder full-thickness rotator cuff tear with residual loss was a class 1 or six
percent impairment under Table 15-5, page 403. Dr. Weiss indicated that appellant’s grade
modifier Functional History (GMFH) with a QuickDASH score of 20 percent was 0;3 grade
modifier Physical Examination (GMPE) of 2;4 and grade modifier clinical studies of 4.5 He
applied the net adjustment formula and found the net adjustment of three. Thus Dr. Weiss found
the right upper extremity impairment after net adjustment equaled seven percent.
On March 10, 2010 OWCP’s medical adviser reviewed Dr. Weiss’ revised report under
the sixth edition of the A.M.A., Guides and concurred with his impairment rating. He concurred
that appellant reached maximum medical improvement on March 26, 2008, the date of the
evaluation by Dr. Weiss.
By decision dated March 16, 2010, OWCP awarded appellant a schedule award for seven
percent right upper extremity impairment. The award ran for 21.64 weeks during the period
March 26 to August 25, 2008.

2

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

3

Id. at 406, Table 15-7.

4

Id. at 408, Table 15-8.

5

Id. at 410, Table 15-9.

2

In a March 25, 2010 letter, appellant’s attorney requested a review of the written record.
He argued that OWCP failed to make a timely schedule award determination under the fifth
edition of the A.M.A., Guides thereby depriving appellant of her due process rights and benefits
under FECA.
By decision dated July 28, 2010, OWCP’s hearing representative affirmed the March 16,
2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA provides for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a mater which rests in the sound
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
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 OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.6 Schedule award decisions issued
between February 1, 2001 and April 30, 2009 utilized the fifth edition of the A.M.A., Guides.7
Effective May 1, 2009, OWCP adopted the sixth edition of the A.M.A., Guides,8 published in
2008, as the appropriate edition for all awards issued after that date.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
and Clinical Studies (GMCS).11 The net adjustment formula is (GMFH - CDX) + (GMPE DCX) + (GMCS - CDX).
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.12
6

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

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

8

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

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
10

A.M.A., Guides (6th ed. 2008), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
11

A.M.A., Guides 494-531 (6th ed. 2008).

12

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

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ANALYSIS
The Board finds that OWCP properly applied the sixth edition of the A.M.A., Guides to
determine the extent of appellant’s impairment. Effective May 1, 2009 OWCP applied the sixth
edition of the A.M.A., Guides to calculate awards.13 On appeal, appellant asserts that he has a
property right in a schedule award benefit under the fifth edition and a protected property interest
cannot be deprived without due process, citing Goldberg v. Kelly, 397 U.S. 254 (1970) and
Mathews v. Eldridge, 424 U.S. 319 (1976). These cases held that a claimant who was in receipt
of benefits (in Goldberg public assistance, and in Mathews social security benefits) could not
have those benefits terminated without procedural due process.14
In Harry D. Butler,15 the Board noted that Congress delegated authority to the Director
regarding the specific methods by which permanent impairment is to be rated. Pursuant to this
authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.16 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A., Guides.17 The applicable date of the sixth
edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed.
Under the sixth edition of the A.M.A., Guides, impairments of the upper extremities are
covered by Chapter 15. Section 15-2, entitled Diagnosis-Based Impairment, indicates that
diagnosis-based impairment is the primary method of evaluation of the upper limb. Dr. Weiss
determined that appellant was class 1 for the right full thickness tear of the rotator cuff pursuant
to Table 15-5 of the A.M.A., Guides, which was five percent. He applied the grade modifiers of
zero for functional history based on QuickDASH score of 20 percent18; a modifier of two for
physical examination19 and a modifier of four for clinical studies.20 Dr. Weiss applied the
applicable formula to determine that appellant had a net adjustment of three. He next calculated
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit
1 (January 2010).
14

In Mathews the court noted that the private interest that would be adversely affected by the erroneous
termination of benefits would likely to be less in a disabled worker than a welfare recipient, and due process would
not require an evidentiary hearing.
15

43 ECAB 859 (1992).

16

Id. at 866.

17

FECA Bulletin No. 09-03 (issued March 15, 2009). FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claim, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).
18

A.M.A., Guides 406, Table 15-7.

19

Id. at 408, Table 15-9.

20

Id. at 410, Table 15-9.

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appellant’s impairment to his right upper extremity by using the net adjustment of three to
determine that appellant had an impairment of seven percent of his right upper extremity.21
OWCP’s medical adviser reviewed Dr. Weiss’ findings under the A.M.A., Guides and agreed
with his calculations.
The record does not contain any medical evidence that establishes greater impairment in
accordance with the sixth edition of the A.M.A., Guides. The Board finds that appellant has not
established more than seven percent impairment to his right arm. Appellant may request a
schedule award or increased schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he has more than seven percent
right upper extremity impairment.

21

GMFH-CDX (0-1=-1) + GMPE-CDX (4-1=3) + GMCS-CDX (2-1=1) yields a net adjustment of three (3). The
Board notes that the A.M.A., Guides, provides that, if functional history differs by two or more grades from physical
examination or clinical studies, it should be assumed to be unreliable and should be excluded from the grading
process. Id. at 406-07. Excluding functional history, from the calculation yields a net adjustment of four. The
failure of Dr. Weiss to exclude functional history is harmless error as it does not affect his impairment calculation
since the maximum impairment for appellant’s class 1 diagnosis is seven percent. A.M.A., Guides 403.

5

ORDER
IT IS HEREBY ORDERED THAT the July 28, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 7, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 11-143
Issued: September 22, 2011

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 October 25, 2010 appellant, through her attorney, filed a timely appeal of the
October 4, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her occupational disease claim. 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 sustained an injury in the performance of duty causally
related to factors of her federal employment.
On appeal, appellant’s attorney contends that the October 4, 2010 OWCP decision is
contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.2 In an August 26, 2009 decision, the Board
found that the medical opinion of Dr. Emmanuel N. Obianwu, a Board-certified orthopedic
surgeon and impartial medical specialist, was properly accorded the special weight of the
medical opinion evidence. The Board affirmed the January 23 and October 6, 2008 OWCP
decisions finding that appellant did not sustain an injury in the performance of duty causally
related to her established employment duties.3 The facts of the case as set forth in the Board’s
prior decision are incorporated by reference. The relevant facts are set forth below.
On May 27, 2006 appellant filed an occupational disease claim alleging that she sustained
upper and lower back pain and a herniated disc as a result of bending, lifting and sitting for
extended periods of time at work. Her work duties included repetitive lifting tubs of papers,
magazines and catalogs and mail trays, sorting and casing mail, lifting parcels up to 70 pounds,
pushing tubs of mail outside and loading them into her vehicle, opening mailboxes and placing
mail in slots, repetitive bending to pick handfuls of mail off the ground, walking parcels to
houses, picking up parcels as requested by customers for mailing and loading them into the
vehicle and unloading undelivered parcels, empty mail trays and tubs at the end of the route.
In a December 21, 2007 medical report, Dr. Obianwu reviewed a history of appellant’s
medical, occupational and social background. On physical examination, he reported full flexion
and extension of the cervical spine, negative Spurling’s maneuver and 75 percent normal lateral
rotation of the cervical spine to either side. Tightness was not present in the muscles in the neck
and there was no tenderness over the anterior aspect of the cervical spine. Passive lateral flexion
of the cervical spine caused some discomfort at the base of the neck. There were no sensory or
reflex changes in the lower extremities and no paraspinous muscle spasms were noted in the
lumbar spine. Deep palpation in the midline of the lumbar spine did not induce any discomfort
and no tenderness was elicited in the entire lumbar spine. Dr. Obianwu reviewed magnetic
resonance imaging (MRI) scans of the lumbar and cervical spine dated May 2006 and diagnosed
cervical spondylosis and large right paracentral disc herniation with possible impingement on
right S1 nerve root. There was no clinical evidence of cervical or lumbar radiculopathy.
Dr. Obianwu opined that the changes in appellant’s cervical and lumbar spines were age
related and there was no evidence to suggest that her work activities played any significant role
in the development of these changes. He noted that epidemiologic studies suggested that the
onset of low back pain was distributed evenly between the second and fifth decades of life.
Dr. Obianwu advised that similar changes were seen in a significant portion of the general
2

Docket No. 09-431 (issued August 26, 2009).

3

The Board found that OWCP properly referred appellant to Dr. Obianwu to resolve the conflict in the medical
opinion evidence between Dr. Cheryl Strzoda, an attending Board-certified family practitioner, Dr. Allen G. Clague,
an attending neurologist, and Dr. Bruce D. Abrams, a Board-certified orthopedic surgeon and OWCP referral
physician, as to whether appellant’s cervical and lumbosacral spine conditions were causally related to the accepted
factors of employment. Dr. Strzoda opined that appellant’s work duties caused her back and neck conditions.
Dr. Clague found that appellant’s repetitive work duties caused her overuse syndrome of the upper extremities and
degenerative lumbar and cervical spine conditions. Dr. Abrams found that appellant’s lumbar and cervical
conditions were not employment related.

2

population and that such neck and back pain could be secondary to anxiety. The fact that
appellant’s symptoms were controlled by antidepressants further suggested that to some degree
anxiety and other psychosocial factors were significant in the persistence of her back pain. In
addition, the multilevel involvement present in her case suggested a process that was ongoing
over an extended period of time dating back to as early as 2004. Dr. Obianwu disagreed with
Dr. Clague’s opinion that the repetitive stress syndrome induced appellant’s back problems,
stating that the human body was not inert, but was a dynamic and living tissue that often
responded in a positive manner to repetitive physical stress. He stated that terms like overuse or
repetitive stress may explain symptoms, but did not bear a direct causation to disease.
Dr. Obianwu noted that appellant did not recount one single episode of a significant trauma as
being responsible for the onset of her symptoms. He further noted that the changes in the lumbar
MRI scan were impressive, but he found no corroborating clinical findings. Dr. Obianwu
concluded that, based on the rather ordinary clinical examination appellant could return to work
without restrictions. He further concluded that, while her employment duties would suggest
certain onerous tasks, taken together, they did not appear to constitute significant risk factors in
themselves regarding the development of the degenerative changes of the spine.
Following the Board’s August 26, 2009 decision, appellant, through counsel, requested
reconsideration before OWCP on August 17, 2010. In a January 27, 2010 report, Dr. Clague
referenced the history of injury and findings set forth in his prior report dated August 17, 2007.
He stated that, since this last examination, appellant reported that any type of repetitive
movement of her extremities resulted in pain and discomfort. Appellant described her daily
activities and resulting symptoms. Dr. Clague stated that a general review of appellant’s medical
systems was essentially normal with an occasional headache, dizziness or light-headedness and
chest pain, gastroesophageal reflux disease (GERD), constipation and sleep deprivation. He
reported normal findings on neurological, mental and physical examination with the exception of
slight left central facial weakness, difficulty reaching behind her with her upper extremities, mild
weakness of the interosseous muscles bilaterally, unevenness when attempting to level the
outstretched arms with the eyes closed on cerebellar testing, pain with lateral bending right
greater than left and with flexion greater than extension, tightness in the right lower extremity
when performing a supine leg raise and cervical spine rotation laterally 45 degrees to the right
and 45 degrees to the left. Dr. Clague diagnosed overuse syndrome repetition strain injury (RSI)
of the upper extremities, posterior thoracic area (mid and upper back posterior torso) and neck
regions, chronic neurogenic low back pain syndrome with S1 radiculopathy on the right side
secondary to a herniated intervertebral disc at L5-S1, and cervical and lumbosacral osteoarthritis
and degenerative disc disease. He opined that the diagnosed conditions were a direct result of
appellant’s repetitive work duties as a rural letter carrier. Dr. Clague stated that the overuse
syndrome was the disabling manifestation of her employment-related conditions.
Dr. Clague reviewed Dr. Obianwu’s December 21, 2007 findings. He stated that the
symptomatic manifestations listed by Dr. Obianwu were muscle and soft tissue manifestations
and not manifestations of underlying osteoarthritis of the cervical or lumbosacral spine.
Dr. Clague stated that a lack of physical findings such as muscle weakness and atrophy and a
positive Phalen’s test was the very essence why he diagnosed overuse syndrome. He disagreed
with Dr. Obianwu’s finding that the changes in appellant’s cervical and lumbar spines were age
related. Dr. Clague stated that age-related changes would be in substance and bone structure and
did not result in osteoarthritis or degenerative arthritis. He related that changes in the cervical
3

and lumbosacral spine known as degenerative osteoarthritis and disc disease were prevalent in
individuals between 20 to 45 years old who engaged in repetitive physical activities at work
which caused structural stress and trauma to the spine. Dr. Clague stated that, if Dr. Obianwu’s
statement regarding the development of low back pain between 10 and 60 years old as part of an
aging process was true, then more cases as an individual progressed through each decade. He
evaluated a great number of cases of patients for back pain in his practice who were from 20 to
50 years old. Dr. Clague rarely saw patients who were 60, 70 or 80 years for major back
problems. He stated that it was standard practice to use antidepressants to treat appellant’s
chronic back pain which was a lower dosage than that generally used to treat depression.
Dr. Clague did not know of an instance where anxiety was the cause of back or neck pain.
Dr. Clague also disagreed with Dr. Obianwu’s statement that there was no causal
relationship between appellant’s work activities and her overuse syndrome. He described how
repetitive trauma to body tissues over a period of time caused changes in the bony structures and
soft tissues around the spinal area. Dr. Clague advised that appellant’s trauma occurring since
2004 represented a post-traumatic pathologic process rather than an aging process. He stated
that the MRI scan findings which did not demonstrate any evidence of ongoing sciatica or
pressure on the S1 nerve root at the time of Dr. Obianwu’s examination constituted the residuals
of appellant’s treatment on April 14, 2006 for severe low back pain radiating down her right
lower extremity and resultant disability for work. Dr. Clague noted that an acute herniated
intervertebral disc generally healed spontaneously and did not require surgical intervention.
Dr. Clague further disagreed with Dr. Obianwu’s opinion that appellant could return to
work with no restrictions and stated that she was totally and permanently disabled. He related
that repetitive physical activity would worsen the intensification of her underlying
symptomatology related to overuse syndrome.
In an October 4, 2010 decision, OWCP affirmed the denial of appellant’s occupational
claim. It found that Dr. Clague’s December 21, 2007 report was not sufficiently rationalized to
outweigh the special weight accorded to Dr. Obianwu’s impartial medical opinion.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of her claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; 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.5 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.6

4

5 U.S.C. §§ 8101-8193.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

6

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

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; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that 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.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which 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. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7 Neither the fact that appellant’s condition became apparent during a
period of employment nor her belief that the condition was caused by her employment is
sufficient to establish a causal relationship.8
Section 8123(a) of FECA provides that, when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.9 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
properly referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based on proper factual and
medical background, must be given special weight.10
ANALYSIS
The Board previously found that the report of Dr. Obianwu, a Board-certified orthopedic
surgeon and impartial medical specialist, was entitled to special weight and resolved the conflict
on medical opinion evidence regarding appellant’s claimed employment-related injury.
Appellant requested reconsideration before OWCP and submitted an additional report from
Dr. Clague, a neurologist and her attending physician, who was on one side of the conflict in
medical opinion that Dr. Obianwu resolved.
Dr. Clague opined that appellant
posterior thoracic area (mid and upper
neurogenic low back pain syndrome with
herniated intervertebral disc at L5-S1,

had overuse syndrome of the upper extremities,
back posterior torso) and neck regions, chronic
S1 radiculopathy on the right side secondary to a
and cervical and lumbosacral osteoarthritis and

7

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

8

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

9

5 U.S.C. § 8123(a). See also Raymond A. Fondots, 53 ECAB 637 (2002).

10

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

5

degenerative disc disease due to her repetitive work duties as a rural letter carrier for over 20
years. He further opined that she was totally disabled for work as repetitive physical activity
would worsen the underlying symptomatology related to her overuse syndrome. Dr. Clague
disagreed with Dr. Obianwu’s opinion that the changes in appellant’s cervical and lumbar spines
were age related, there was no causal relationship between her diagnosed conditions and
established work-related duties and she could return to work with no restrictions. While he
described his examination findings and diagnoses, and opined that these conditions were caused
by appellant’s employment, the Board finds that he failed to provide a sufficiently rationalized
medical opinion explaining why his diagnoses particularly, overuse syndrome were correct rather
than age-related degeneration as found by Dr. Obianwu. Dr. Clague acknowledged that his
primary diagnosis of overuse syndrome which resulted in appellant’s disability for work was
made without any objective physical findings. He further acknowledged that MRI scan findings
indicated that appellant’s lumbar herniated disc had resolved. Dr. Clague found that, if appellant
returned to work, her overuse syndrome would worsen. However, the Board has held that fear of
future injury is not compensable.11 Dr. Clague was on one side of the conflict that Dr. Obianwu
resolved. The additional report from Dr. Clague is insufficient to overcome the weight accorded
Dr. Obianwu as the impartial medical examiner or to create a new conflict.12
On appeal, appellant’s counsel contended, without explanation, that OWCP’s decision
was contrary to fact and law. For reasons stated above, the Board finds that appellant did not
submit sufficient evidence establishing that she sustained an injury causally related to the
established work duties.
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 establish that she sustained an injury in the
performance of duty causally related to factors of her federal employment.

11

I.J., 59 ECAB 408 (2008).

12

Jaja K. Asaramo, 55 ECAB 200, 205 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the October 4, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Muskegon, MI, Employer
__________________________________________

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

Docket No. 16-1477
Issued: December 16, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 11, 2016 appellant filed a timely appeal from a March 25, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established an additional cervical, left shoulder, or
back condition as a consequential injury from an October 16, 2013 fall.
FACTUAL HISTORY
OWCP has administratively combined three of appellant’s claims. In the first claim
appellant, then a 37-year-old carrier, filed a claim for traumatic injury (Form CA-1) alleging that
he sustained a left knee injury on June 6, 1978 as a result of striking a bolt head that protruded
1

5 U.S.C. § 8101 et seq.

from a dash panel. This claim was accepted for left knee meniscus derangement and left leg
traumatic arthropathy. On January 5, 1979 appellant underwent authorized left knee surgery that
included a total medial meniscectomy.
By decision dated July 17, 1990, OWCP issued a schedule award for 10 percent left leg
permanent impairment, based on loss of motion and pain. The date of maximum medical
improvement (MMI) was June 23, 1979. Appellant retired from federal employment on
November 2, 2002.
In a report dated December 10, 2011, an OWCP medical adviser, Dr. Brian Tonne, a
Board-certified orthopedic surgeon, opined that appellant had 28 percent left leg permanent
impairment. He used Table 16-3 of the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment, for left knee arthritis. By decision dated
January 9, 2012, OWCP issued a schedule award for an additional 18 percent permanent
impairment to the left leg.
OWCP also requested that Dr. Tonne provide an opinion as to whether appellant had
sustained a consequential right knee condition. By report dated April 19, 2012, an OWCP
medical adviser opined that it was reasonable to conclude that appellant’s degeneration of the
right knee meniscus was a consequential injury. On April 24, 2012 OWCP accepted bilateral
meniscus derangement, bilateral traumatic arthropathy of the lower legs, and right knee internal
derangement. By report dated September 6, 2012, an OWCP medical adviser opined that
appellant had 26 percent right leg permanent impairment, based on Table 16-3 of the A.M.A.,
Guides. In a decision dated February 6, 2013, OWCP issued a schedule award for a 26 percent
permanent impairment to the right leg.
In his second claim, appellant alleged that on March 18, 1991, he slipped and fell while
in the performance of duty and injured both shoulders. OWCP developed the claim as a claim
for traumatic injury.2 Under this claim it accepted bilateral shoulder strains, fractured left
humerus, lumbar strain, and C6-7 herniated disc. An OWCP medical adviser opined, in a June 9,
1995 report, that under the fourth edition of the A.M.A., Guides appellant had 19 percent
impairment to both arms. By decision dated December 12, 1995, OWCP issued a schedule
award for a 38 percent permanent impairment of the upper extremities due to his right and left
shoulder conditions.
Appellant’s third claim was a notice of traumatic injury (Form CA-1) filed on
December 18, 2000 for a November 21, 2000 injury. He alleged that he slipped on snow and ice
while in the performance of duty, and injured his right wrist, right shoulder, and low back.
OWCP accepted the claim for aggravation of right shoulder osteoarthritis on July 18, 2001. It
also accepted lumbar sprain and displacement of cervical intervertebral disc without myelopathy.
With respect to the 1990 accepted left leg claim, appellant requested reconsideration of
the January 9, 2012 decision in a March 3, 2012 letter and argued that OWCP had used an
incorrect date of MMI. OWCP issued a May 21, 2012 decision finding that he was not entitled
to an additional schedule award for the left leg. By letter dated May 26, 2012, appellant
2

Appellant had filed this claim on Form CA-2 as a recurrence of disability.

2

requested reconsideration and argued that he was not contesting the percentage of impairment,
but the date of MMI and corresponding pay rate. In a decision dated November 27, 2012,
OWCP denied modification. Appellant filed an appeal with the Board.
The Board reviewed the November 27, 2012 decision and in a July 8, 2013 decision
remanded the case to OWCP.3 The Board found that OWCP had failed to make proper findings
with respect to MMI and pay rate related to the schedule award for the left lower extremity.
Following remand, OWCP issued a nonmerit decision dated August 28, 2013 denying the
request. Appellant filed another appeal with the Board, and by Order dated April 3, 2014, the
Board remanded the case to OWCP.4 The Board found that the August 28, 2013 OWCP decision
had not complied with the directive of the Board’s remand. The record indicates that OWCP
subsequently issued a July 29, 2014 merit decision amending the July 17, 1990 schedule award
decision and finding that the date of MMI was March 19, 1990.
In addition to pursuing the issue of MMI and pay rate, appellant also claimed that he had
suffered consequential injuries from his left knee condition. In an October 24, 2013 letter, he
reported that his left knee condition had worsened. Appellant alleged that on October 16, 2013,
his left knee had buckled and he fell, striking the edge of a billiard table. He asserted that his left
shoulder and head also hit the floor and he was treated at the emergency room on
October 16, 2013.
In a hospital report dated October 16, 2013, Dr. Seth Jaskowiak, an osteopathic physician
specializing in emergency medicine, indicated that appellant reported that his left knee buckled
and he hit his head on the edge of a billiard table, with no loss of consciousness. He noted that
appellant reported left-sided neck pain. In a hospital report dated October 23, 2013, Dr. Bryan
Eadie, an osteopathic physician specializing in emergency medicine, indicated that appellant was
seen for removal of sutures above his left eyebrow, and appellant had reported angina-type chest
pain while walking into the hospital.
By report dated October 23, 2013, Dr. Fredric Levin, Board-certified in orthopedic
surgery, considered appellant a good candidate for bilateral knee replacements. He reported that
appellant had fallen and reinjured his neck, and that appellant felt this was an aggravation
secondary to the fall. Dr. Levin diagnosed bilateral knee degenerative joint disease.
Appellant was seen on December 5, 2013 by Dr. Yousif Hamati, a Board-certified
orthopedic surgeon. Dr. Hamati provided a history of stiff neck, low back pain, and bilateral
shoulder pain for the last 22 years. He reported that appellant’s knee buckled and he fell, hitting
his head on a pool table, and landing on his shoulder. Dr. Hamati provided results on
examination, and reviewed cervical x-rays, which showed multilevel cervical degenerative disc
disease, and lumbar x-rays which showed hypertrophic osteophytes at multiple levels.

3

Docket No. 13-0767 (issued July 8, 2013).

4

Docket No. 13-2135 (issued April 3, 2014).

3

OWCP referred the record to its medical adviser who reviewed the medical evidence and
opined, in a December 16, 2013 report, that bilateral knee surgery was appropriate for the
accepted conditions.
In a report dated February 25, 2014, Dr. Hamati reported that appellant had a history of
multiple injuries to neck and back. He wrote that appellant reported that his neck was “really
bad and [appellant] want[ed] something done for it soon.” Appellant asserted that walking and
the knee buckling, had aggravated neck pain, and Dr. Hamati advised appellant that the walking
and knee buckling could aggravate the cervical condition. Dr. Hamati recommended a cervical
magnetic resonance imaging (MRI) scan.
Dr. Hamati submitted a March 18, 2014 report, noting that appellant’s knee had buckled
on October 16, 2013. He wrote that appellant had a hyperextension injury that caused worsening
of his neck condition. Dr. Hamati indicated that appellant had a work-related injury in 1991, and
had “a skipped area in [appellant’s] fusion and now that is deteriorated. I agree with the
neurosurgeon who saw him, that this is completely work related, related to the previous injury
because of his current situation and the skipped joint in his neck.” He discussed the results of a
March 5, 2014 MRI scan, noting bone osteophyte complex in the midline compressing the spinal
cord resulting in mild spinal canal stenosis, with arthritis of the facet joints causing severe
bilateral neural foraminal narrowing. Dr. Hamati concluded that appellant had a bad knee, due to
the injury in the 1970s, which had deteriorated and was buckling on him, and “[appellant’s]
buckling injury definitely caused the problems he is having now.”
OWCP referred the case to an OWCP medical adviser for an opinion with respect to the
October 16, 2013 fall. The medical adviser was asked to provide an opinion as to whether
appellant’s head laceration or angina on October 23, 2013 were consequential injuries. In a
report dated March 26, 2014, OWCP’s medical adviser opined that the buckling of the knee was
related to the employment-related left knee condition and that appellant sustained a laceration on
the left side to the head/scalp. The medical adviser noted a history of angina, but found that the
angina episode on October 23, 2013 was related to having stiches removed from the October 16,
2013 fall.
On June 16, 2014 OWCP accepted a laceration to the left side of the scalp and a single
episode of angina. In a letter dated August 18, 2014, appellant alleged that he sustained
additional injuries on October 16, 2013 to his neck, left shoulder, and mid to low back.
By decision dated September 22, 2014, OWCP found that the evidence was insufficient
to establish additional consequential injuries. It found that the medical evidence did not establish
consequential injuries other than a laceration and a single episode of angina.
On October 10, 2014 appellant requested a review of the written record by an OWCP
hearing representative. He submitted an October 14, 2014 report from Dr. Hamati, which found
that appellant had a problem in his neck and that appellant “relates this all to the accident in
2013.” Dr. Hamati had progression of his arthritic changes, and “[t]he injury aggravated this
problem. He now has a ruptured biceps tendon.”

4

By decision dated February 23, 2015, the hearing representative affirmed the
September 22, 2014 OWCP decision. The hearing representative found that there was no
rationalized medical opinion with respect to additional diagnosed conditions causally related to
the October 16, 2013 fall.
Appellant again requested reconsideration on April 8, 2015 and submitted a March 12,
2015 report from Dr. Hamati. Dr. Hamati related that appellant continued to have difficulty with
his neck, lower back, and left shoulder. He opined that “[t]his injury happened [October 16,
2013]. [Appellant] had a previous work-related injury to his left knee.” Dr. Hamati described
the fall on October 16, 2013 as resulting in appellant jamming his shoulder as he fell on the floor,
hurting his back. He wrote, “So obviously the fall had aggravated [appellant’s] neck, shoulder,
knee, and lower back.” According to Dr. Hamati, the recent MRI scan showed multiple bulging
discs from L1 to S1, with arthritic changes and narrowing of the canal. He opined that the basic
problem was arthritis, but a fall “could very easily aggravate” appellant’s neck, shoulder, back,
and knee problems. Dr. Hamati concluded that “because of that fall, it caused head injury, neck
injury, shoulder injury, and low back pain injury. There is no doubt that it has caused permanent
changes, which caused them to be very symptomatic and very painful.”
By decision dated July 7, 2015, OWCP reviewed the merits of the claim and denied
modification. It found that the medical evidence did not establish additional consequential
injuries causally related to the October 16, 2013 fall.
On November 3, 2015 appellant again requested reconsideration. He submitted a brief
November 3, 2015 report from Dr. Hamati, in which appellant was referred for an
electromyogram (EMG) of his upper and lower extremities.
Appellant submitted a December 14, 2015 report of electrodiagnostic examination from
Dr. Kate McCausland, an osteopathic physician, specializing in physical medicine.
Dr. McCausland noted that appellant worked as a mail carrier and had multiple injuries
throughout his career. The diagnoses included carpal tunnel syndrome, left ulnar neuropathy,
and lumbosacral radiculopathy. Dr. McCausland reported that today’s electrodiagnostic findings
of bilateral lumbar radiculopathy are consistent clinically with lumbar spinal stenosis.
In a report dated December 22, 2015, Dr. Hamati reviewed the EMG, which showed
moderate carpal tunnel syndrome on the right and left ulnar nerve neuropathy across the elbow.
He also noted sensory motor axonal polyneuropathy of both legs and lumbar radiculopathy at
L5-S1 consistent with spinal canal stenosis clinically. Dr. Hamati opined that these conditions
were secondary to a March 18, 1991 injury. He wrote that appellant “was a mailman for 40
years and [appellant] did a lot of sorting. Any repetitive work for 40 years is definitely a major
contributing factor to these symptoms and his diagnosis.”
By decision dated March 25, 2016, OWCP reviewed the merits of the claim and denied
modification. It found that the medical evidence did not establish a consequential back, left
shoulder, or cervical injury causally related to the October 16, 2013 fall.

5

LEGAL PRECEDENT
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.5 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.6
A claimant bears the burden of proof to establish a claim for a consequential injury.7 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
evidence is evidence, which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.8
ANALYSIS
In the present case, with respect to the June 6, 1978 claim, OWCP has accepted bilateral
meniscus derangement, bilateral traumatic arthropathy of the lower legs, right knee internal
derangement. It has also accepted bilateral shoulder strains, fracture left humerus, lumbar strain,
and C6-7 herniated disc, resulting from a March 18, 1991 slip and fall. In addition, there was a
November 21, 2000 slip and fall accepted for aggravation of right shoulder osteoarthritis, lumbar
sprain, and displacement of cervical intervertebral disc without myelopathy.
OWCP accepted that the fall on October 16, 2013 was the result of his employmentrelated left knee buckling. As a result of the fall, it accepted a laceration of the head/scalp, and a
single episode of angina pectoris.
The issue presented is whether appellant sustained any other consequential injuries to his
neck, back, or left shoulder as a result of that fall. It is appellant’s burden of proof to establish
any additional consequential injuries.9 The Board has reviewed the evidence and finds that it is
insufficient to meet his burden of proof.
Appellant was treated on October 16, 2013 and the initial hospital report from
Dr. Jaskowiak referred only to appellant hitting his head on the pool table. Dr. Levin noted on
5

Albert F. Ranieri, 55 ECAB 598 (2004).

6

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

7

J.A., Docket No. 12-603 (issued October 10, 2012).

8

Id.

9

Supra note 7.

6

October 23, 2013 that appellant felt he had injured his neck in the fall, without providing further
detail.
Where an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury. To establish a causal relationship between the
condition claimed and the employment event or incident, the employee must submit rationalized
medical evidence based on a complete medical and factual background supporting such a causal
relationship.10 The reports from Drs. Jaskowiak and Levin do not provide the factual
background necessary to establish that appellant sustained a diagnosed medical condition as a
consequence of his accepted injury.
Similarly, Dr. Hamati reported on December 5, 2013, that appellant had landed on his
shoulder in the fall. He did not provide a diagnosis of a shoulder injury. In a March 18, 2014
report, Dr. Hamati briefly referred to a hyperextension that caused appellant’s neck condition to
worsen. He does not provide a complete medical history regarding appellant’s neck, offer a
diagnosis for a cervical condition, or explain how the October 16, 2013 fall affected the neck.
Dr. Hamati then provided a March 12, 2015 report opining that the fall had aggravated
appellant’s neck, shoulder, knee, and lower back. Again, he does not provide a complete
medical history.11 As noted above, appellant presented with a complicated medical history that
involved three claims. Dr. Hamati does not explain the nature and extent of any aggravation to
the neck, back, or shoulder. No medical rationale was provided. An opinion with respect to
aggravation must differentiate between the effects of the work-related injury or disease and the
preexisting condition.12 The Board has held that the physician must clearly explain the nature
and extent of any aggravation, including whether temporary, or permanent.13
In his December 22, 2015 report, Dr. Hamati referred to repetitive work over 40 years.
That is not the medical issue on appeal. The claim in this case was for additional injuries from
the consequential fall on October 16, 2013.
It is appellant who has the burden of proof to establish additional consequential injuries.14
For the reasons discussed above, the Board finds that appellant did not meet his burden of proof
in this case.
On appeal, appellant argues that the medical evidence was sufficient to require further
development, such as referral to an OWCP medical adviser. He also argues that OWCP has the
burden of proof to modify or terminate compensation. The issue in this case is whether there
were any additional consequential injuries from the October 16, 2013 fall. OWCP has not
10

See L.C., Docket No. 08-2523 (issued May 15, 2009).

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e) (January 2013).

13

See R.H., Docket No. 15-1785 (issued January 29, 2016).

14

Supra note 7.

7

accepted any cervical, or back conditions as consequential injuries. It is appellant’s burden of
proof and, for the reasons discussed, the medical evidence is of diminished probative value on
the issue presented.
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 established an additional cervical, left shoulder, or
back condition as a consequential injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 25, 2016 is affirmed.
Issued: December 16, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF THE ARMY, CIVILIAN
PERSONNEL OFFICE, Fort Ord, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Sylvia R. Johnson, for the appellant
Office of Solicitor, for the Director

Docket No. 15-0270
Issued: September 1, 2015

Case Submitted on the Record

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

JURISDICTION
On November 10, 2014 appellant, through his representative, filed a timely appeal from
an August 26, 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 established a recurrence of disability commencing
October 1, 1999.
FACTUAL HISTORY
This case involves several claims that have been combined by OWCP. Under File
No. xxxxxx754, OWCP accepted that on September 22, 1978 appellant, then a 44-year-old meat

1

5 U.S.C. § 8101 et seq.

cutter, sustained a lumbar sprain and ruptured L4 disc when deflecting a falling meat tree.2
Appellant underwent an L4 discectomy with exploration at L5 on October 26, 1978. Following
the surgery, he remained off work. Appellant received compensation for total disability on the
periodic rolls. He returned to work on February 22, 1982 as a meat cutter in his date-of-injury
job, with restrictions against heavy lifting. Under File No. xxxxxx167, OWCP accepted that
appellant sustained a traumatic aggravation of lumbar disc disease on September 18, 1982 while
performing his duties as a meat cutter.
Under the present claim File No. xxxxxx108, OWCP accepted that on August 7, 1985,
appellant sustained a lumbar sprain, thoracic sprain, and lumbosacral intervertebral disc
degeneration when he arose from a kneeling position. He stopped work at the time of the injury.
Appellant remained under medical care, receiving compensation for total disability at the 75
percent rate for claimants with dependents.3
Appellant returned to work on October 2, 1989 in a full-time, permanent position as a
clerk typist, with limitations on lifting, stair climbing, and prolonged sitting. Appellant’s
physicians found that the modified position was within his medical limitations. By notice dated
November 28, 1989 finalized December 6, 1989, OWCP found that appellant’s actual earnings
of $350.00 a week as a clerk typist fairly and reasonably represented his wage-earning capacity.
It reduced his compensation benefits to $161.50 a week.4
Under File No. xxxxxx033, OWCP accepted an August 31, 1990 lumbar strain with
lumbosacral intervertebral disc degeneration. Appellant stopped work shortly after the injury.
He received compensation for total disability. Following acceptance of the claim, OWCP
doubled File No. xxxxxx033 and File No. xxxxxx167, with the present claim. Appellant
remained under medical treatment for lumbar pain with radiculopathy into the left lower
extremity.
On November 6, 1995 appellant returned to full-time work in his prior position, which
had been reclassified as an office automation clerk, but with the same job duties. OWCP advised
him on November 16, 1995 that he was no longer entitled to wage-loss compensation as he had
returned to work with actual earnings equal to or greater than those of his date-of-injury position.
Appellant remained under medical treatment for left-sided lumbar radiculopathy.
Under File No. xxxxxx543, OWCP accepted that appellant sustained an aggravation of
preexisting lumbar degenerative disc disease on September 13, 1996 while vacuuming at work.

2

File No. xxxxxx754 was before the Board under Docket No. 82-1168. The Board’s decision and order issued
July 7, 1982, affirmed a November 13, 1981 wage-earning capacity determination. OWCP doubled File
No. xxxxxx754 under the present claim, File No. xxxxxx108.
3

Appellant participated in a vocational rehabilitation program in 1988 and 1989.

4

On November 1, 1989 OWCP calculated that appellant’s actual earnings as a clerk typist of $350.00 a week
were 62 percent of $563.70, the current pay rate for his job and step when injured. It determined that he was entitled
to $161.50 a week in wage-loss compensation. OWCP began paying compensation at the reduced rate on
October 22, 1989.

2

Appellant stopped work on the date of the injury and returned to his modified position on
February 3, 1997.
Beginning in February 1999, appellant’s work schedule was reduced to four hours a day.
In a March 16, 1999 letter, OWCP advised him that he was entitled to wage-loss compensation
beginning February 22, 1999, based on his actual earnings of $216.20 a week, working four
hours a day as an automation clerk. Appellant increased his schedule to six hours a day on
April 19, 1999, and resumed full-time modified duty on June 21, 1999. By letter dated July 23,
1999, OWCP advised him that his wage-loss compensation would be reduced to zero as his
actual earnings exceeded those of his date-of-injury position.
On January 12, 2000 under File No. xxxxxx108, appellant claimed a recurrence of
disability commencing September 17, 1999. He attributed his condition to rising from a chair.
The employing establishment indicated that appellant was on modified duty as of September 17,
1999, with limitations on lifting, sitting, and stair climbing.
In a September 28, 1999 report, Dr. Gerald F. Wahl, an attending Board-certified
neurologist, related appellant’s account of increased back pain after bending forward on
September 13, 1999. He held appellant off work, and prescribed medication, and physical
therapy.
Appellant used sick leave through September 30, 1999, then filed claims for total
disability compensation. OWCP paid total disability benefits beginning October 1, 1999 under
File No. xxxxxx033, based on his July 24, 1998 pay rate.
By letter dated February 17, 2000, OWCP advised appellant of the type of additional
evidence needed to establish his claim, including medical evidence establishing that the accepted
conditions had worsened such that he could not perform his office automation clerk position. It
afforded him 30 days to submit such evidence.
By decision dated February 29, 2000, OWCP found that appellant’s actual earnings of
$432.40 a week as an office automation clerk beginning on June 21, 1999 fairly and reasonably
represented his wage-earning capacity.
By notice dated April 11, 2005, OWCP advised appellant of its preliminary determination
that an overpayment of $78,404.63 was created under File No. xxxxxx108 as he received
compensation simultaneously under File No. xxxxxx108 and File No. xxxxxx033 from
October 1, 1999 through April 16, 2005 for the same occupational injury. It found that he was
not at fault in creating the overpayment. By letter postmarked June 13, 2005, appellant requested
a prerecoupment hearing.
By decision dated October 20, 2005, OWCP’s Branch of Hearings and Review found that
appellant’s request for hearing was not made within 30 days from OWCP’s decision, and so
denied his request for a hearing. Appellant appealed the October 20, 2005 decision to the Board.
By decision dated December 29, 2006, the Board found the October 20, 2005 decision was not

3

properly issued and should be reissued.5 OWCP reissued the October 20, 2005 decision on
March 29, 2007.
By decision dated July 25, 2007, OWCP finalized the preliminary determination of
overpayment, finding that appellant was overpaid $78,404.63 from October 1, 1999 through
April 16, 2005 as he received benefits for the same injury under both the present claim and File
No. xxxxxx033. It found that he was not at fault in creating the overpayment, and waived
recovery on the basis of financial hardship.
On September 25, 2008 appellant claimed a recurrence of disability commencing
October 1, 1999 under File No. xxxxxx108. He attributed his back condition to work factors of
his clerical positions on and after October 2, 1989, including walking up and down steps, and
moving chairs and tables for conferences.
In a December 11, 2008 letter, OWCP explained that filing the recurrence claim was of
no effect, as appellant was already receiving total disability compensation under File
No. xxxxxx033 and indicated that he was not entitled to wage-loss compensation under more
than one claim for the same period. It noted that the total disability compensation he currently
received covered the full amount of wage loss attributable to the accepted injuries.
Dr. Wahl and his associate Dr. Theodore Kaczmar, Jr., an attending Board-certified
neurosurgeon, submitted periodic reports from February 11 through August 18, 2009 noting
increasing lumbar pain with radiculopathy into both lower extremities, and lumbar stenosis
confirmed on imaging studies. Dr. Kaczmar recommended bilateral L3-4 decompression and an
L4-5 decompression and reexploration on the left.
In June 12, 2009 and September 9, 2012 letters, appellant’s representative contended that
appellant’s wage-loss compensation should be based on his pay rate as of the claimed October 1,
1999 recurrence of disability. She also asserted that the automation clerk position was “illegal.”
The representative requested that OWCP adjudicate appellant’s September 25, 2008 claim for
recurrence of disability.
By decision dated September 19, 2012, OWCP denied appellant’s claim for recurrence of
disability, finding that he did not submit medical evidence establishing a spontaneous material
worsening of the accepted injuries began on October 1, 1999. It noted that he continued to
receive total disability compensation under File No. xxxxxx033, as he had since October 1, 1999,
as well as appropriate medical benefits.
Appellant disagreed and requested an oral hearing, held June 18, 2014. Appellant’s
representative represented him at the hearing. She asserted that appellant was entitled an
additional $1,000.00 a month under his combined claims as there was a standing wage-earning
capacity determination. Appellant’s representative submitted a June 6, 2014 note from
Dr. Wahl, opining that appellant never recovered from the L3-4 disc injury accepted under File
No. xxxxxx108, and that his subsequent injuries also concerned the L3-4 disc. Dr. Wahl agreed
with her statement that appellant’s “second injury was [an] aggravation of the first injury.”
5

Docket No. 06-1199 (issued December 29, 2006).

4

Appellant’s representative also submitted medical reports previously of record, dated from 1978
to 1990. These reports do not address appellant’s condition on and after the claimed October 1,
1999 recurrence of disability.
By decision dated and finalized August 26, 2014, an OWCP hearing representative
affirmed the September 19, 2012 decision, finding that appellant did not establish a recurrence of
disability. The hearing representative found that OWCP correctly determined that appellant
could not be compensated simultaneously for the same injury under two claims. The hearing
representative noted that October 1, 1999 was the date the overpayment began. The hearing
representative found that there was no evidence establishing that appellant’s “total disability
benefits which were previously paid to him in error should be paid to him again.” The hearing
representative noted that appellant’s representative did not present evidence or a clear argument
that appellant’s benefits had been underpaid.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as “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.”6
When an employee, who is disabled from the job he or she held when injured on account
of 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 and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.7 This includes the necessity of
furnishing medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the disabling condition is causally related to
employment factors and supports that conclusion with sound medical reasoning.8 An award of
compensation may not be made on the basis of surmise, conjecture, speculation, or on
appellant’s unsupported belief of causal relation.9
ANALYSIS
OWCP accepted that appellant sustained a series of occupational injuries from 1978 to
1996, causing an L4 disc herniation, lumbar and thoracic strains, and aggravation of preexisting
lumbar degenerative disc disease.
6

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.b
(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).
7

Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986).

8

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

9

Patricia J. Glenn, 53 ECAB 159 (2001); Ausberto Guzman, 25 ECAB 362 (1974).

5

On January 12, 2000 appellant claimed a September 17, 1999 recurrence of disability.
He used sick leave through September 30, 1999, then received total disability compensation
beginning on October 1, 1999. This resulted in an overpayment of compensation from
October 1, 1999 through April 16, 2005, as he received total disability compensation
simultaneously under File No. xxxxxx033 and File No. xxxxxx108 for the same lumbar injuries.
Under the present claim, on September 25, 2008, appellant claimed a recurrence of
disability commencing October 1, 1999, while he was off work. He attributed the recurrence to
work factors on and after October 2, 1989. OWCP explained in a December 11, 2008 letter that
appellant was receiving total disability compensation under File No. xxxxxx033, and could not
receive additional compensation due to the claimed recurrence. Nevertheless, in June 12, 2009
and September 9, 2012 letters, appellant’s representative requested a formal adjudication of the
September 25, 2008 recurrence claim, asserting improprieties in the development of his multiple
claims.
OWCP denied appellant’s claim for an October 1, 1999 recurrence of disability by
decisions dated September 19, 2012 and August 26, 2014, finding that the medical evidence did
not establish a spontaneous material worsening of his condition on October 1, 1999, while he
was off work.
Appellant attributed his back condition to work factors of his clerical positions on and
after October 2, 1989, including walking up and down steps, and moving chairs and tables for
conferences. In this regard, he implicates new work factors as an intervening cause, breaking the
chain of causation from the 1985 injury.10 Appellant did not claim that he sustained a
spontaneous worsening of the accepted injuries on October 1, 1999.
The only medical evidence contemporaneous to the claimed recurrence of disability is the
September 28, 1999 report from Dr. Wahl, an attending Board-certified neurologist, who noted
appellant’s account of increased back pain after bending forward on September 13, 1999.
Dr. Wahl did not indicate that the bending incident occurred at work or was otherwise related to
appellant’s federal employment. Also, he did not mention any incident occurring on
October 1, 1999. Similarly, Dr. Wahl’s June 6, 2014 note indicates that appellant’s second
injury was an aggravation of the first injury, but did not specify the date of either incident, or
include medical reasoning supporting a causal relationship between the claimed October 1, 1999
recurrence of disability and any work factors. Therefore, his opinion is insufficient to meet
appellant’s burden of proof.11
Thus, appellant attributed the claimed recurrence of disability to an intervening cause,
and the medical evidence does not support a spontaneous worsening of the accepted lumbar
injuries on October 1, 1999. Furthermore, even if the medical evidence established work-related
10

See Carlos A. Marrero, 50 ECAB 117 (1998) (the Board found that the claimant’s use of an exercise machine
constituted an intervening cause of appellant’s disability and thus OWCP properly denied his claim for recurrence of
disability); Clement Jay After Buffalo, 45 ECAB 707 (1994) (the Board found that the claimant’s knee injury
sustained while playing basketball broke the legal chain of causation from an accepted knee injury sustained in the
performance of his duties as a firefighter).
11

Ronald A. Eldridge, supra note 8.

6

disability, he would not be entitled to receive wage-loss compensation for a period in which he
had previously received wage-loss compensation.12 Under these circumstances, OWCP properly
denied appellant’s claim for recurrence of disability.
On appeal, appellant’s representative contends that appellant is entitled to additional
compensation, based either on his 1978 or 1999 pay rate, or because he was permanently
disabled due to a lumbar discectomy. However, she did not present a clear argument or
calculation indicating that he was underpaid. Appellant’s representative also contends that the
Board’s decisions in Patricia Peters13 and Wallace D. Ludwick14 preclude the selection of a
federal position as suitable work. The Board notes that the cases cited are not current law on the
issue of suitable work. The Board therefore finds appellant’s claim for additional compensation
was properly denied.
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 established that he sustained a recurrence of
disability commencing October 1, 1999.

12

See Lawrence J. Dubuque, 55 ECAB 667 (2004) (when a claimant receives a duplicative compensation
payment for a period that he has already received compensation for wage loss, an overpayment of compensation is
created).
13

34 ECAB 312 (1982).

14

38 ECAB 176 (1986).

7

ORDER
IT IS HEREBY ORDERED THAT the August 26, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 1, 2015
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Laurel, MT, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Kevin B. Duecker, for the appellant
No appearance, for the Director

Docket No. 10-1624
Issued: September 15, 2011

Oral Argument May 26, 2011

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

JURISDICTION
On June 3, 2010 appellant’s representative timely appealed the May 17, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied modification
of a series of decisions that denied wage-loss compensation for the period February 12, 2007
through February 21, 2009, and also terminated entitlement to future compensation effective
April 3, 2009. 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.2
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for the period
February 12, 2007 through February 21, 2009.
1
2

5 U.S.C. §§ 8101-8193.

The record on appeal contains evidence received after OWCP issued its May 17, 2010 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1) (2010).

FACTUAL HISTORY
Appellant, a 45-year-old rural carrier associate, was involved in a February 12, 2007
employment-related motor vehicle accident. After initially denying the claim, OWCP accepted
that she sustained a hip and thigh contusion, cervical (neck) and lumbar sprains, and right pelvic
sprain. Appellant has not worked since her February 12, 2007 employment injury. She
voluntarily waived continuation of pay in lieu of having received $100,000.00 from various
third-party insurance providers. In July 2008, appellant filed a claim for compensation (Form
CA-7) for the period February 12, 2007 through July 14, 2008. She subsequently filed additional
CA-7s claiming total disability through February 21, 2009.
On the date of her injury, appellant was treated in the emergency room at Billings Clinic
Hospital. Her chief complaints were low back pain, right hip pain and headache, status post
motor vehicle accident. Dr. James C. Miller noted that appellant had just been in a motor vehicle
accident where she was T-boned on the driver’s side.3 Appellant reportedly was not wearing a
seatbelt. At the accident scene her cervical spine was immobilized. Appellant was then
transported to the hospital via ambulance. Dr. Miller diagnosed concussion, cervical and low
back strains, pelvic contusion and hip contusion. Appellant was discharged later that evening
and advised to follow up with an orthopedist. Dr. Miller excused appellant from work for two
days.
On February 14, 2007 appellant followed up with Dr. Lori A. Forseth, a family
practitioner. She reported having been in a motor vehicle accident two days prior. Dr. Forseth
noted that appellant complained of right lower back pain, right hip pain and neck pain. She
diagnosed cervical strain, right inguinal ligament strain and right lumbar back sprain.
Dr. Forseth advised appellant to remain off work until further evaluation. Appellant returned for
follow up on February 20, 2007. Dr. Forseth advised that appellant could not work and she
recommended physical therapy. The employing establishment had offered appellant a limitedduty assignment, which Dr. Forseth disapproved of. Dr. Forseth submitted a duty status report
(Form CA-17) indicating that appellant was disabled until further notice.
In March 2007, appellant came under the care of Dr. John R. Dorr, a Board-certified
orthopedic surgeon. In a report dated March 21, 2007, Dr. Dorr diagnosed right hip bursitis. He
excused appellant from work and advised that she continue with physical therapy. During
follow-up visits on April 12, May 9 and May 30, 2007, Dr. Dorr continued to find appellant
totally disabled.4 He later referred appellant to Dr. Steven J. Rizzolo, a Board-certified
orthopedic surgeon, who examined appellant on June 12, 2007 and diagnosed lumbosacral
radiculitis, lumbar pain and trochanteric bursitis. Dr. Rizzolo attributed appellant’s low back and
right leg symptoms to her employment-related motor vehicle accident. He also noted that
appellant was not capable of gainful employment. In a July 11, 2007 report, Dr. Dorr indicated
that, pursuant to Dr. Rizzolo’s recommendation, he was referring appellant to occupational
3

Dr. Miller is Board-certified in emergency medicine.

4

Additional diagnoses: included cervical, thoracic and lumbar soft tissue injury, right wrist de Quervain’s
disease and lumbosacral degenerative disc disease. An April 23, 2007 lumbar magnetic resonance imaging (MRI)
scan revealed mild degenerative disc changes at L4-5 and L5-S1.

2

medicine with the focus on getting her back to some type of work. His diagnoses at the time
were lumbar radiculitis, lumbago and hip bursitis.
On October 2, 2007 Dr. Forseth advised that appellant was not to work until further
notice. She indicated that appellant was still undergoing physical therapy and was slowly
improving. Dr. Forseth also noted that appellant would soon see a general surgeon for possible
hernia. The next documented medical treatment was almost six months later.
In a report dated March 27, 2008, Dr. Michael H. Schabacker advised appellant that
recent x-rays of her right hand revealed no abnormality that would clearly explain the etiology of
her pain.5
Dr. Schabacker later submitted a May 23, 2008 work capacity evaluation (Form
OWCP-5c). The form report identified appellant’s purported accepted conditions as low back
pain, right wrist, hand and forearm pain and right hip pain. Dr. Schabacker checked the “No”
box indicating that appellant was incapable of performing her usual job. He explained that she
was incapable of repetitive use of the right upper extremity. Dr. Schabacker also indicated that
appellant was incapable of “lifting or twisting of the low back.” However, she was able to work
eight hours with restrictions. Dr. Schabacker advised that appellant may be capable of returning
to work, but her physical capabilities were very limited, including use of her dominant arm.
Appellant’s reported limitations included 6 hours sitting, ½-hour walking, 1-hour standing, 1
hour reaching, no reaching above shoulder, no twisting, no squatting, ½-hour bending/stooping,
½-hour operating a motor vehicle at work, ½-hour of kneeling and 1-hour climbing. Restrictions
specific to the right upper extremity included no repetitive wrist movements, and no pushing,
pulling or lifting.
On June 11, 2008 appellant was seen by Dr. Douglas W. Roane, a Board-certified
internist with a subspecialty in rheumatology. Dr. Roane diagnosed severe fibromyalgia,
attributable to the February 12, 2007 employment-related motor vehicle accident. He noted that
the onset of symptoms clearly occurred after appellant’s motor vehicle accident. Dr. Roane
explained that a third of patients with fibromyalgia may have a precipitating event like this that
sets off their symptoms. He also indicated that appellant’s right hand/wrist pain and swelling
could certainly be a manifestation of her fibromyalgia, however, swelling was certainly atypical.
Dr. Roane surmised that it could be complex regional pain syndrome, although appellant did not
have allodynia on examination. He indicated that appellant was completely disabled and
incapable of sustained employment on a continuing basis. Dr. Roane also submitted a duty
status report (Form CA-17).
In a July 15, 2008 follow-up examination, Dr. Roane reviewed recent x-rays of
appellant’s right hand/wrist, which showed “no abnormality.” He again diagnosed fibromyalgia,
with associated fatigue and sleep disturbances. Dr. Roane noted that based on patient history,
appellant’s symptoms were clearly precipitated by her February 2007 motor vehicle accident.
He also diagnosed right hand and wrist swelling suggestive of wrist tendinitis. Appellant also
complained of right groin pain and swelling. Dr. Roane provided a differential diagnosis of
5

Dr. Schabacker is a Board-certified physiatrist with a subspecialty in pain medicine.

3

lymphadenopathy versus muscle or hip joint inflammation. The latter condition he noted would
not generally be associated with fibromyalgia.
Dr. Allan R. Wilson, an orthopedic surgeon and OWCP referral physician, examined
appellant on August 6, 2008. He diagnosed chronic functional pain behavior, nonorganic. He
further noted “report of fibromyalgia producing pain behaviors.” Dr. Wilson indicated that,
while appellant had multiple subjective complaints, there was nothing on objective examination
to indicate that she sustained permanent injury as a result of the February 12, 2007 motor vehicle
accident. He explained that fibromyalgia might be appellant’s best diagnosis. However,
Dr. Wilson did not believe that her “[f]unctional pain behaviors” was causally related to the
claimed injury.6 He further noted that appellant could not return to her date-of-injury position as
a rural carrier.
OWCP declared a conflict between its referral physician, Dr. Wilson, and appellant’s
physician, Dr. Schabacker. A September 19, 2008 OWCP memorandum described the conflict
between the two above-noted physicians as being “about work[-]related residuals and work
capacity.”
Dr. Michael A. Sousa, a Board-certified orthopedic surgeon and impartial medical
examiner (IME), authored an October 30, 2008 report in which he recommended obtaining
additional diagnostic studies. In essence, Dr. Sousa believed that appellant’s previously accepted
orthopedic conditions “should have resolved or returned to baseline.”7 However, he did not
provide a specific timeframe for when those conditions should have resolved. Dr. Sousa also
noted that appellant sustained a chronic aggravation of a preexisting depression. She also
developed chronic widespread tenderness and a chronic pain syndrome not specifically limited to
a diagnosis of fibromyalgia. Dr. Sousa noted that appellant’s chronic depression and chronic
pain syndrome were spatially related in time to her February 2007 motor vehicle accident. He
recommended a forensic psychiatric assessment to help separate out the functional from
objective physical findings. Dr. Sousa also recommended an MRI scan of the right hip, and
plain x-rays of the lumbar spine, pelvis and sacroiliac (SI) joints. Lastly, he noted it was unlikely
appellant would be able to return to her rural carrier duties.
OWCP requested clarification from the IME regarding whether there were any residuals
of the accepted conditions.
Dr. Sousa provided two supplemental reports dated January 22 and February 19, 2009.
The January 22, 2009 report discussed the results of a recent pelvic MRI scan and x-rays of the
lumbar spine, SI joints and right hip. With the exception of the lumbar spine films, which
revealed degenerative changes at L3-4 and L4-5, all other studies were essentially normal.

6

Dr. Wilson did not provide an explanation. He merely responded “No” to the question posed by OWCP.
Dr. Wilson also responded “No” to the question of whether there was evidence of nonwork-related conditions.
7

Dr. Sousa did not believe appellant’s right wrist de Quervain’s tendinitis and bilateral plantar fasciitis were
related to the February 12, 2007 motor vehicle accident.

4

In his February 19, 2009 report, Dr. Sousa stated that appellant had “residuals” which
would best fit under (DSM-IV Code 307.8) “pain disorder associated with psychological factors,
i.e., depression.”
By decision dated April 3, 2009, OWCP denied wage-loss compensation for total
disability for the period February 12, 2007 through February 21, 2009. It found that appellant
failed to establish that her claimed disability was work related. In a separate decision, also dated
April 3, 2009, OWCP terminated compensation benefits. It found that appellant no longer had
residuals of her accepted orthopedic conditions, and that her current disability was due to a pain
disorder associated with psychological factors of depression. OWCP based this finding on
Dr. Sousa’s (IME) opinion. It did not terminate medical benefits.
Appellant requested an oral hearing, which was held on August 11, 2009. She also
submitted an August 13, 2009 attending physician’s report (Form CA-20) from Dr. Roane who
diagnosed fibromyalgia, which he attributed to appellant’s February 12, 2007 motor vehicle
accident. Dr. Roane also indicated that appellant was currently disabled and had been totally
disable since February 2007.
By decision dated November 24, 2009, the Branch of Hearings and Review affirmed
OWCP’s April 3, 2009 decisions. The hearing representative found that Dr. Roane’s August 13,
2009 report did not constitute a rationalized medical opinion on causal relationship. She noted
that Dr. Roane had not explained how appellant’s current problem and disability for the period
claimed was related to the accepted work injury. The hearing representative further found that
Dr. Sousa’s opinion constituted the weight of the medical evidence and established that
appellant’s current condition and disability was not related to the accepted work injury.
Appellant requested reconsideration and submitted additional medical evidence from
Dr. Roane, which included treatment notes from December 17, 2008, March 18 and July 21,
2009, as well as a January 6, 2010 report. Appellant also submitted a list of medical
appointments she attended from February 2007 to August 2009.
Dr. Roane’s treatment notes reflected a diagnosis of severe fibromyalgia with symptom
onset after a work-related motor vehicle accident in February 2007. In his latest report dated
January 6, 2010, Dr. Roane specifically addressed the issue of causal relationship. He stated that
there was a “definite temporal relationship” between appellant’s onset of symptoms and her
work-related injury. Dr. Roane was not dissuaded by the lack of “good scientific data to prove
an association between physical or other trauma and the onset of fibromyalgia.” He noted that
he had numerous patients with fibromyalgia who attributed the onset of their condition to workrelated injuries. Dr. Roane further explained that, although one could not scientifically prove
that the injury precipitated diffuse myofascial pain, in a patient that did not have significant pain
prior to the injury, it was his professional opinion that the injury precipitated fibromyalgia. He
concluded that it was more likely than not that appellant’s fibromyalgia was precipitated by her
work-related injury.
In a decision dated May 17, 2010, OWCP reviewed the claim on the merits, but denied
modification of the previous decisions. It found that Dr. Sousa’s (IME) opinion continued to
represent the weight of the medical evidence.

5

LEGAL PRECEDENT
A claimant has the burden of establishing the essential elements of her claim, including
that the medical condition for which compensation is claimed is causally related to the
employment injury.8 For wage-loss benefits, the claimant must submit medical evidence
showing that the condition claimed is disabling.9 The evidence submitted must be reliable,
probative and substantial.10 Benefits are available only while the effects of a work-related
condition continue.11 Compensation for wage loss due to disability is available for periods
during which an employee’s work-related medical condition prevents her from earning the wages
earned before the work-related injury.12 The employee is responsible for providing sufficient
medical evidence to justify payment of any compensation sought.13
An injured employee may also be entitled to compensation for lost wages incurred while
obtaining authorized medical services.14 This includes the actual time spent obtaining the
medical services and “a reasonable time spent traveling to and from the [medical] provider’s
location.”15 As a matter of practice, OWCP generally limits the amount of compensation to four
hours with respect to routine medical appointments.16 However, longer periods of time may be
allowed when required by the nature of the medical procedure and/or the need to travel a
substantial distance to obtain the medical care.17

8

20 C.F.R. § 10.115(e); see Tammy L. Medley, 55 ECAB 182, 184 (2003). Causal relationship is a medical
question, which generally requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris,
48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between the diagnosed
condition and the implicated employment factors must be based on a complete factual and medical background.
Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms
of a reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and appellant’s specific employment factors. Id.
9

20 C.F.R. § 10.115(f).

10

Id. at § 10.115.

11

Id. at § 10.500(a).

12

Id.

13

Id. at § 10.501(a).

14

See 5 U.S.C. § 8103(a); Gayle L. Jackson, 57 ECAB 546, 547-48 (2006). An employee who is eligible for COP
may similarly claim lost time due to the need for medical examination and treatment. 20 C.F.R. § 10.205(a)(1).
15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16a
(December 1995).
16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).
17

Id.

6

ANALYSIS
Appellant was involved in an employment-related motor vehicle accident on February 12,
2007 and OWCP accepted her claim for a hip and thigh contusion, cervical (neck) and lumbar
sprains, and right pelvic sprain. In addition to the above-noted accepted conditions, appellant
has also been diagnosed with de Quervain’s tendinitis, plantar fasciitis, lumbar degenerative disc
disease, fibromyalgia, and pain disorder associated with psychological factors (depression).
Appellant’s rheumatologist, Dr. Roane, believed that her fibromyalgia was causally related to the
February 12, 2007 motor vehicle accident. Based in large part on Dr. Sousa’s opinion, OWCP
denied wage-loss compensation for the period February 12, 2007 through February 21, 2009, and
terminated compensation effective April 3, 2009. However, appellant’s entitlement to medical
benefits for her accepted conditions continued undisturbed.
With respect to appellant’s entitlement to compensation for the claimed period, the Board
finds that the case is not in posture for decision.18 OWCP deferred action on appellant’s CA-7s
pending the results of Dr. Wilson’s second opinion examination. However, it never asked
Dr. Wilson to address any claimed period of disability with respect to the accepted orthopedic
conditions. When the case was later referred to an impartial medical examiner, OWCP similarly
neglected to ask Dr. Sousa to address the claimed period of disability beginning
February 12, 2007.19 In his October 30, 2008 report, Dr. Sousa indicated that appellant’s
previously accepted orthopedic conditions “should have resolved or returned to baseline.”
However, he was not asked nor did he provide a specific timeframe for when those conditions
resolved.
The reports of Dr. Sousa and Dr. Wilson also fail to resolve the issue of whether
appellant’s fibromyalgia and/or pain disorder is causally related to her accepted employment
injury. Appellant’s physician, Dr. Roane, first diagnosed employment-related fibromyalgia on
June 11, 2008. Dr. Wilson noted in his August 6, 2008 report that “fibromyalgia might be
[appellant’s] best diagnosis.” However, he did not specifically address the etiology of this
condition. The cause of appellant’s diagnosed “[f]unctional pain behaviors” was similarly
muddied. In one instance, Dr. Wilson stated that appellant’s current symptoms were not causally
related to her claimed injury. He also indicated that there was no evidence of nonwork-related
conditions. Dr. Wilson did not provide a basis for either statement, and OWCP did not seek
clarification. Instead, OWCP erroneously declared a conflict in medical opinion and referred the
case to Dr. Sousa. However, Dr. Sousa’s reports provided few definitive answers and raised
18

The April 3, 2009 decision terminating compensation was superfluous given that medical benefits were not
similarly terminated and OWCP had not previously accepted any period of disability dating back to the February 12,
2007 employment injury. Moreover, appellant did not claim wage-loss compensation after February 21, 2009.
19

OWCP referred appellant to Dr. Sousa to resolve a purported conflict between Dr. Wilson, who diagnosed
nonorganic functional pain behavior, and appellant’s physician, Dr. Schabacker. It characterized the conflict as
“about work[-]related residuals and work capacity.” For a conflict to arise the opposing physicians’ viewpoints
must be of “virtually equal weight and rationale.” Darlene R. Kennedy, 57 ECAB 414, 416 (2006).
Dr. Schabacker’s May 23, 2008 work capacity evaluation (Form OWCP-5c) is unsubstantiated and pales in
comparison to Dr. Wilson’s August 6, 2008 narrative report. Moreover, Dr. Schabacker did not provide a specific
diagnosis or address the cause of appellant’s low back, right hip and right upper extremity pain. Contrary to
OWCP’s finding, there was no true conflict in medical opinion between Dr. Wilson and Dr. Schabacker.

7

additional questions regarding disability and the cause and extent of appellant’s current
condition. In his October 30, 2008 report, he indicated that appellant sustained a chronic
aggravation of a preexisting depression and also developed chronic widespread tenderness and a
chronic pain syndrome not specifically limited to a diagnosis of fibromyalgia. Dr. Sousa stated
in his February 19, 2009 supplemental report that appellant had “residuals” which would best fit
under (DSM-IV Code 307.8) “pain disorder associated with psychological factors, i.e.,
depression.” He recommended referral to a forensic psychiatrist, but OWCP did not follow
Dr. Sousa’s recommendation.
Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.20 Neither Dr. Sousa
nor Dr. Wilson adequately addressed whether there were any specific periods of disability
associated with appellant’s accepted orthopedic conditions. Their respective reports are also
insufficient to resolve the issue of whether appellant’s fibromyalgia and/or pain disorder is
employment related. As the medical evidence developed by OWCP does not adequately address
the above-noted issues, the case will be remanded for further development. After OWCP has
developed the case record to the extent it deems necessary, a de novo decision shall by issued.
On remand, OWCP should also obtain further information regarding appellant’s thirdparty recovery. Appellant reported having received at least $100,000.00 from various insurance
carriers. Generally, third-party recoveries are subject to adjustment by OWCP.21 Lastly, the
Board notes that appellant may be entitled to compensation for lost wages as a result of attending
various medical appointments for treatment of her accepted employment injury. Appellant
provided a list of appointments she attended from February 2007 to August 2009. To date,
OWCP has not specifically addressed this particular issue.
CONCLUSION
The Board finds that the case is not in posture for decision regarding appellant’s
entitlement to wage-loss compensation for the period February 12, 2007 through
February 21, 2009.

20

Richard F. Williams, 55 ECAB 343, 346 (2004).

21

See 5 U.S.C. § 8132; 20 C.F.R. §§ 10.710, 10.711 and 10.712; R.G., 58 ECAB 227 (2006).

8

ORDER
IT IS HEREBY ORDERED THAT the May 17, 2010 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision of the Board.
Issued: September 15, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9