United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.K., Appellant
and
DEPARTMENT OF THE ARMY, FORT RILEY
RANGE CONTROL, Fort Riley, KS, Employer
__________________________________________

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

Docket No. 09-1513
Issued: March 4, 2010

Case Submitted on the Record

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

JURISDICTION
On May 11, 2009 appellant filed a timely appeal of decisions dated May 28, 2008 and
May 5, 2009 of the Office of Workers’ Compensation Programs denying his schedule award
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant has established that he is entitled to a schedule award due
to an accepted employment injury.
FACTUAL HISTORY
On March 17, 2004 appellant, then a 48-year-old maintenance worker, filed a traumatic
injury claim alleging that on that day he fractured his vertebrae after sustaining a fall while
tightening ropes on a rope bridge. He stopped work that day. Appellant returned to light duty on
May 5, 2004. The Office accepted his claim for right L3 transverse process fracture and right

fourth, fifth and sixth posterolateral rib fractures. It subsequently accepted bilateral restless leg
syndrome and displacement of lumbar intervertebral disc without myelopathy.1
Appellant submitted an April 2, 2004 attending physician’s report from Dr. Todd Vento,
a Board-certified internist, who diagnosed multiple rib fractures, transverse process fractures of
the thoracic and lumbar vertebral bodies and subpleural hematoma. In reports dated July 29 and
August 17, 2004, Dr. Vento diagnosed restless leg syndrome due to withdrawal from morphine
that was prescribed following the rib fractures.
An October 13, 2004 report from Dr. Wade Welch, a Board-certified neurologist, noted
appellant’s complaint of low back pain and right chest pain. On examination, he found
coordination intact to gross and fine motor including gait and appendicular testing. Muscle bulk
and tone were normal without atrophy or fasciculations. Dr. Welch noted that appellant’s
restless leg syndrome was precipitated by morphine withdrawal and that his right flank
paresthesia was secondary to intercostals neuralgia from multiple rib fractures. Appellant also
submitted several physical therapy notes.
On January 23, 2005 appellant accepted a new position as a traffic management
specialist.2
In an October 24, 2005 report, Dr. Nanda Kumar, a Board-certified neurologist, noted
appellant’s complaint of pain in the midthoracic spine and over the upper and lower lumbar and
sacral region. Examination of the upper and lower extremities showed normal casual gait and no
focal muscular atrophy or fasciculations. Dr. Kumar also reported normal electromyogram
results. He opined that appellant’s symptoms were due to mechanical low back pain from his
previous trauma. Dr. Kumar also opined that appellant had musculoligamentous strain over his
back with previous transverse process fractures that must have healed by this time. Regarding
restless leg syndrome, he recommended diagnostic polysomnogram. In an October 13, 2005
lumbar spine magnetic resonance imaging (MRI) scan report, Dr. Gregory Welle, a Boardcertified diagnostic radiologist, found mild degenerative disc disease at L1-2, without stenosis or
nerve root impingement and degenerative disc disease and bulging, with a possible small annular
tear at L5-S1 but no stenosis or nerve root impingement. In a November 14, 2005 thoracic spine
MRI scan report, Dr. Kelly J. Ivestor, a Board-certified diagnostic radiologist, noted several
displaced rib fractures in the right rib cage but no other significant abnormalities. The spinal
cord was normal. Appellant also submitted reports from Dr. Roger Peck, a Board-certified
internist, dated between October 10, 2005 and May 9, 2006. Dr. Peck noted in a March 22, 2006
report that appellant continued having difficulty across the transverse fracture area and into the
right low thoracic area.

1

On January 21, 2005 appellant requested that the Office expand his claim to include treatment for spinal
manipulation for a subluxation of the spine. In its February 14, 2005 decision, the Office found that accepting
displacement of lumbar intervertebral disc without myelopathy allowed for the requested spinal manipulation
treatment.
2

In a June 28, 2005 decision, the Office reduced appellant’s wage-loss compensation to zero finding that his
actual earnings as a traffic management specialist fairly and reasonably represented his wage-earning capacity.

2

On January 31, 2008 appellant filed a schedule award claim. On February 5, 2008 the
Office advised him of the medical evidence necessary to establish permanent impairment of a
scheduled body member due to the accepted injury and allowed him 60 days to provide such
evidence. In particular, it requested a physician’s report indicating that appellant had reached
maximum medical improvement with an estimate of the extent of permanent impairment.
In a May 28, 2008 decision, the Office denied appellant’s schedule award claim finding
the evidence insufficient to establish that he sustained permanent impairment to a scheduled
member due to the accepted work injury.
On November 16, 2008 appellant requested reconsideration. He also noted that he
continued to be treated by Dr. Peck and Dr. Michael Schuster, a Board-certified physiatrist, for
intercostals nerve block injections.
In support of his request, appellant submitted a February 22, 2007 polysomnography
report from Dr. Steven Short, a Board-certified otolaryngologist, diagnosed obstructive sleep
apnea-hypopnea syndrome, periodic leg motions of sleep and restless leg syndrome. In reports
from Dr. Peck dated between August 6, 2007 and June 13, 2008, he diagnosed fatigue and
recommended male hormone replacement treatment.
In an October 15, 2007 report, Dr. Schuster noted appellant’s complaint of pain over his
right ribs. Upon examination, he found restricted range of motion of appellant’s thoracic spine
and pain to palpation over his anterior rib cage. Dr. Schuster diagnosed status post multiple rib
fractures, intercostals neuralgia and thoracic spondylosis with facet syndrome. He recommended
right intercostals nerve block. In reports dated between October 30, 2007 and June 11, 2008,
Dr. Schuster noted performing intercostals nerve block. On January 23, 2008 he diagnosed
intercostals neuralgia, thoracic and lumbar spondylosis and thoracic radiculopathy. Dr. Schuster
also recommended radio frequency ablation of the right thoracic and upper lumbar facet joints,
which was performed on February 14, 2008. On March 10, 2008 he indicated that appellant had
fatigue and joint pain. Dr. Schuster diagnosed costochondritis, intercostals neural and thoracic
spondylosis. He recommended reevaluation in four to six weeks as appellant’s symptoms
became more intense. In an April 14, 2008 report, Dr. Schuster found normal strength of the
bilateral major muscle groups of the bilateral upper extremities. He also found no spasticity or
rigidity, no tremors or involuntary movements and no swelling of the bilateral lower extremities.
Dr. Schuster recommended right intercostals nerve block of ribs 10 through 12. He also advised
reevaluation in three to four weeks and a possible repeat nerve block.
Appellant submitted several diagnostic reports of his spine and abdomen dated between
November 15, 2005 and July 10, 2007. He also submitted several medical reports already of
record. Included in the diagnostic testing reports was a July 6, 2007 lumbar spine MRI scan
report from Dr. Welle who noted no significant change from his prior examination. A July 5,
2007 thoracic spine MRI scan report from Dr. Michael Sheffield, a Board-certified diagnostic
radiologist, indicated that there were no changes from the previous November 14, 2005 study.
On February 14, 2009 an Office medical adviser reviewed the medical record, noted
appellant’s accepted condition and opined that the only accepted condition that would potentially
be a basis for a schedule award would be displacement of lumbar intervertebral disc without a

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myelopathy. He further determined that the medical evidence showed no indication of any lower
extremity radiculopathy that would be a basis for finding impairment under Chapter 15 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001) (A.M.A., Guides). The medical adviser noted that records contemporaneous with
appellant’s injury indicated that appellant had thoracic pain but no pain extending to the upper or
lower extremities. He noted that Drs. Welch and Kumar did not note findings that would be a
basis for an impairment rating due to the accepted conditions. The medical adviser found no
basis on which to attribute permanent impairment due to the accepted conditions.
In a March 5, 2009 decision, the Office denied modification of its May 28, 2008 decision
finding that the additional evidence submitted was insufficient to warrant modification.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. 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. A.M.A., Guides has been adopted by the Office for evaluating
schedule losses and the Board has concurred in such adoption.4
Not all medical conditions accepted by the Office result in permanent impairment to a
scheduled member.5 It is the claimant’s burden to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of an employment injury.6 Office
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail to include, where applicable, the loss in degrees of active and
passive motion of the affected member or function, the amount of any atrophy or deformity,
decreases in strength or disturbance of sensation or other pertinent description of the impairment
and the percentage of impairment should be computed in accordance with the A.M.A., Guides.7

3

5 U.S.C. §§ 8101-8193. See 5 U.S.C. § 8107.

4

See 20 C.F.R. § 10.404; R.D., 59 ECAB ___ (Docket No. 07-379, issued October 2, 2007).

5

Thomas P. Lavin, 57 ECAB 353 (2006).

6

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

7

J.P., 60 ECAB ___ (Docket No. 08-832, issued November 13, 2008); see also Federal (FECA) Procedure
Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6 (August 2002).

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ANALYSIS
The Office accepted that appellant sustained right L3 transverse process fracture; right
fourth, fifth and sixth posterolateral rib fractures; bilateral restless leg syndrome and
displacement of lumbar intervertebral disc without myelopathy. However, the back is not listed
as a scheduled member under the Act.8 While an injury to the spine or back may cause
impairment in an extremity, such as an arm or a leg, the Board finds that the medical evidence is
insufficient to establish that appellant’s accepted back condition caused any permanent
impairment to a scheduled member of the body.9 It also finds insufficient medical evidence to
establish that appellant’s other accepted conditions entitles him to a schedule award.
The Board notes that none of the medical reports submitted by appellant support that he
has a permanent impairment of a scheduled member of the body or that he has reached maximum
medical improvement.10 Dr. Schuster’s reports noted appellant’s diagnosed conditions and
described the treatment methods for those conditions. However, he did not evaluate appellant for
schedule award purposes in any of these reports. For example, Dr. Schuster did not explain how
any of appellant’s accepted conditions caused a permanent impairment of a scheduled body
member, such as the arms or the legs, pursuant to the A.M.A., Guides. Similarly, the reports of
other physicians, such as Drs. Peck and Short, do not address whether appellant sustained any
permanent impairment, pursuant to the A.M.A., Guides, due to the accepted injuries.
The Office medical adviser, in his February 14, 2009 report, is the only physician who
addressed whether appellant has a permanent impairment of a scheduled body member causally
related to the accepted conditions. The medical adviser noted reviewing the medical record and
determined that the medical evidence did not indicate that any of the accepted conditions caused
impairment to scheduled members such as the arms or legs that was ratable under the A.M.A.,
Guides. He found that appellant had no permanent impairment due to any of his accepted
conditions.
On appeal, appellant asserts that his accepted conditions remain symptomatic requiring
regular treatment, that the Office is unresponsive to his inquiries about benefits and that his
quality of life has changed due to his accepted conditions. The Board notes that this appeal
pertains to whether the Office properly denied appellant’s claim for a schedule award. The
Office has not issued any decision regarding any other benefits. The Board only has jurisdiction
over final decisions of the Office.11 Furthermore, the Board notes that factors such as
8

See 5 U.S.C. § 8101(19); see also George E. Williams, 44 ECAB 530 (1993) (finding that as neither the Act nor
the regulations provide for the payment of a schedule award for the permanent loss of use of the back, no claimant is
entitled to such an award).
9

See J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008) (the schedule award provisions of the Act
include the extremities and a claimant may be entitled to a schedule award for permanent impairment to a lower
extremity even though the cause of such impairment originates in the spine).
10

See D.S., 60 ECAB ___ (Docket No. 08-885, issued March 17, 2009) (it is well established that a schedule
award cannot be paid until a claimant has reached maximum medical improvement). The Board has explained that
maximum medical improvement means that the physical condition of the injured member of the body has stabilized
and will not improve further. Mark A. Holloway, 55 ECAB 321 (2004).
11

See 20 C.F.R. § 501.2(c).

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employability or limitations on daily activities have no bearing on the calculation of a schedule
award.12
CONCLUSION
The Board finds that appellant has not established that he is entitled to a schedule award
due to an accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated May 5, 2009 and May 28, 2008 are affirmed.
Issued: March 4, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

J.H., 60 ECAB ___ (Docket No. 08-2432, issued June 15, 2009).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, Kennewick, WA, Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0062
Issued: December 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 17, 2016 appellant, through counsel, filed a timely appeal from a
September 2, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective September 19, 2015; and (2) whether
appellant met her burden of proof to establish continuing residuals or disability after
September 19, 2015.
FACTUAL HISTORY
On June 14, 2001 appellant, then a 39-year-old service representative, filed an
occupational disease claim (Form CA-2) alleging that on April 2, 2001 she first became aware of
her bilateral carpal tunnel syndrome.3 She stopped work on June 5, 2001 and returned to fullduty work on July 9, 2001. On July 24, 2001 appellant underwent left carpal tunnel release
surgery, which was followed by right carpal tunnel release surgery on August 15, 2001. On
September 17, 2001 OWCP accepted the claim for bilateral carpal tunnel syndrome. It paid
wage-loss compensation for the period June 3 to August 25, 2001.
On May 20, 2003 appellant filed a claim for a recurrence of disability (Form CA-2a)
beginning February 2002. She noted that she stopped work on May 16, 2003. By decision dated
May 11, 2004, OWCP denied appellant’s claim for recurrence of disability. Appellant thereafter
returned to full duty.
On March 28, 2004 appellant filed an occupational disease claim (Form CA-2) alleging
that on February 1, 2002 she first realized that her bilateral cubital tunnel syndrome was
employment related.4 The employing establishment noted that she was no longer employed.5
On May 12, 2004 OWCP accepted the claim for bilateral cubital tunnel syndrome and authorized
elbow ulnar revision and tennis elbow revision surgery, which was performed on
October 19, 2004. By letter dated August 14, 2007, it placed appellant on the periodic rolls for
temporary total disability with the first payment for the period August 5 to September 1, 2007.
By letters dated August 14 and September 20, 2007, OWCP referred appellant for a
second opinion evaluation with Dr. Chester S. McLaughlin, a Board-certified orthopedic surgeon
to determine her current disability status.
In an October 19, 2007 report, Dr. McLaughlin provided a history of appellant’s
condition, provided physical examination findings, and reviewed diagnostic testing and medical
evidence. He reported an inconclusive physical examination due to functional behavior and
opined that appellant might have chronic pain syndrome. Dr. McLaughlin recommended
evaluation at a medical facility to evaluate her carpal tunnel and cubital tunnel conditions and
3

This claim was assigned OWCP File No. xxxxxx865.

4

This was assigned OWCP File No. xxxxxx813. On May 17, 2007 OWCP administratively combined OWCP
File Nos. xxxxxx865 and xxxxxx813, with the latter serving as the master file.
5

At the time appellant filed her claim with the employing establishment, she was employed as a migrant home
visitor with Kennewick School District #17. Kennewick School District advised that she had been employed from
November 16, 2003 until she resigned on March 19, 2004 due to health reasons.

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that functional capacity evaluation (FCE) test should be performed to determine her work
capacity. Subsequently, he completed a work capacity evaluation form (Form OWCP-5c) dated
July 24, 2007 from him indicating that appellant was capable of working with no restrictions.
On August 21, 2008 OWCP received the results from an FCE performed on July 15,
2008 indicating that appellant was capable of working in a light-duty job.
On September 5, 2008 OWCP issued a notice proposing to terminate appellant’s wageloss compensation based on Dr. McLaughlin’s opinion. By decision dated November 28, 2008,
it finalized the termination of her wage-loss compensation, effective November 21, 2008.
On December 5, 2008 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on March 25, 2009.
By decision dated June 26, 2009, OWCP’s hearing representative found that
Dr. McLaughlin’s opinion regarding appellant’s work capacity was inconsistent and
insufficiently rationalized and therefore insufficient for OWCP’s burden of proof to terminate
wage-loss compensation. OWCP vacated the November 28, 2008 termination decision and
remanded the case for referral to another second opinion physician.
On October 5, 2009 OWCP referred appellant for another second opinion evaluation with
Dr. Clarence Fossier, an orthopedic surgeon, to determine her work capability and the status of
her accepted employment conditions.
In a November 5, 2009 report, based upon a review of the medical evidence, a statement
of accepted facts (SOAF), and his physical examination findings, Dr. Fossier diagnosed bilateral
carpal tunnel and bilateral cubital tunnel conditions. A physical examination revealed positive
bilateral Tinel’s and Phalen’s signs at the wrist, positive bilateral elbow Tinel’s sign, bilateral
tenderness at medial epicondyle, full right elbow extension, and full wrist range of motion.
Dr. Fossier determined that appellant was at maximum medical improvement and required no
further medical treatment. He completed an OWCP 5c form indicating that she was capable of
working full time with restrictions.
In a March 30, 2010 supplemental report, Dr. Fossier reviewed additional medical
evidence and the position description for a contract service representative and concluded that
appellant was capable of performing the job as it was described. In an attached April 5, 2010
OWCP 5c form, Dr. Fossier indicated that she was capable of working full time with no
restrictions.
Due to Dr. Fossier’s inconsistent and contradictory opinion regarding appellant’s work
capability, OWCP referred appellant to Dr. Paul H. Reiss, a Board-certified orthopedic surgeon,
for a new second opinion evaluation.
In an August 11, 2010 report, Dr. Reiss reviewed the medical evidence, a SOAF, and
physical examination findings and diagnosed bilateral carpal tunnel and bilateral cubital tunnel
syndromes. He opined that no further medical treatment was recommended or indicated.
Dr. Reiss also opined that appellant was capable of performing her date-of-injury job. In an

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attached OWCP 5c form, he found no limitations or work restrictions. No further action was
taken by OWCP at that time.
On April 9, 2012 Dr. Ryan Luoma, a treating physician Board-certified in osteopathic
manipulative medicine, diagnosed lateral epicondylitis and ulnar nerve lesion, which he opined
rendered appellant totally disabled from any type of work. He further opined that no
improvement in her condition was anticipated. In an attached April 26, 2012 OWCP 5c form,
Dr. Luoma diagnosed bilateral ulnar nerve lesion and bilateral medial epicondylitis and
determined that appellant was permanently disabled from work.
In a June 5, 2014 SOAF, OWCP noted that the accepted conditions (under OWCP File
No. xxxxxx813) were bilateral cubital tunnel syndrome and bilateral medial epicondylitis and
(under OWCP File No. xxxxxx865) bilateral carpal tunnel syndrome. It noted that appellant’s
job duties as a contact service representative involved up to seven hours per day five days a week
of intermittent data entry, answering public inquiries, and manually filling out forms. Dates of
her surgeries were provided, as was information regarding her job working for the Kennewick
School District.
On June 10, 2014 OWCP again referred appellant for a second opinion evaluation with
Dr. Scott Kitchel, a Board-certified orthopedic surgeon, for an evaluation of her accepted
conditions and work capability.
Appellant subsequently submitted a May 28, 2014 report and OWCP 5c form from
Dr. Gerald B.R. Craigg, a treating Board-certified internist. Dr. Craigg detailed her medical and
employment injury history and provided examination findings. Diagnoses included carpal tunnel
syndrome, ulnar nerve lesion, and medial epicondylitis. In an attached OWCP5c form,
Dr. Craigg indicated that appellant was capable of working eight hours per day with restrictions
and recommended an occupational therapist assessment.
In a July 15, 2014 report, Dr. Kitchel reviewed appellant’s medical records and the
June 5, 2014 SOAF. He detailed the medical records reviewed and summarized the June 5, 2014
SOAF. Dr. Kitchel noted diagnoses of bilateral carpal tunnel syndrome, bilateral cubital tunnel
syndrome, and bilateral medial epicondylitis. He provided examination findings and thereafter
opined that the accepted conditions had resolved without residuals or disability. Physical
findings included nonreproducible two-point discrimination testing, 2+ bilateral radial pulses,
and positive Tinel’s sign at the right elbow at the medial and posterior aspect and her bilateral
wrists. Dr. Kitchel found that the objective evidence was not supportive of appellant’s subjective
complaints. He reported that it did not appear that she gave full effort with the range of motion
testing and the two-point hand discrimination testing could not be replicated. Dr. Kitchel
concluded that appellant was capable of performing the duties of contract service representative
with no restrictions. An attached OWCP 5c form indicated that she was capable of performing
her date-of-injury job with no restrictions.
An electromyography (EMG) and nerve conduction velocity (NCV) study performed on
July 17, 2014 reported normal findings. On September 10, 2014 a repeat EMG/NCV was
performed and again reported normal findings.

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OWCP received progress notes and reports covering the period August 12 to
December 5, 2014 from Dr. Craigg who noted appellant’s symptoms and treatment for carpal
tunnel syndrome. Dr. Craigg noted that recent EMG/NCV studies were negative. Diagnoses
included ulnar nerve lesion and carpal tunnel syndrome.
By letter dated March 16, 2015, OWCP sought clarification regarding appellant’s
condition from Dr. Craigg.
On April 2, 2015 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Kitchel’s opinion.
Following the April 2, 2015 proposed termination OWCP received a March 30, 2015
report from Dr. Craigg, which was unchanged from his prior reports. It also received
Dr. Craigg’s response to its March 16, 2015 letter. Dr. Craigg opined that appellant continued to
have residuals and disability from her accepted bilateral carpal tunnel and bilateral cubital tunnel
conditions. In support of this conclusion, he referred to examination findings including positive
Tinel’s and Phalen’s signs.
On May 5, 2015 OWCP reissued the proposal to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Kitchel’s opinion.
On July 16, 2015 OWCP referred appellant to Dr. Lowell Anderson, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence between Dr. Craigg,
appellant’s treating Board-certified internist, and Dr. Kitchel, a second opinion Board-certified
orthopedic surgeon, as to whether appellant continued to have residuals and disability due to her
accepted employment conditions.
OWCP provided Dr. Anderson with the SOAF dated June 5, 2014, which noted that the
accepted conditions under OWCP File No. xxxxxx813 were bilateral cubital tunnel syndrome
and bilateral medial epicondylitis and under OWCP File No. xxxxxx865 it had accepted bilateral
carpal tunnel syndrome. It noted that appellant’s job duties as a contact service representative
involved up to seven hours per day five days a week of intermittent data entry, answering public
inquiries, and manually filling out forms. The SOAF noted that appellant began a position as
Para-educator/Migrant Home Visitor on November 16, 2003 with the Kennewick School
District, Kennewick, WA. Duties of this position included approximately one hour per day of
data entry, completing logs, and correspondence; assisting families with filling out forms, which
involved some handwriting; and the remainder of the day was spent contacting district staff and
families. On March 8, 2004 appellant resigned this position. Next, OWCP noted that appellant
had undergone right ulnar nerve decompression and a partial epicondylar ostectomy with
reattachment of the flexor tendon origin on October 19, 2014. Under OWCP File No.
xxxxxx865, OWCP noted that appellant had undergone left carpal tunnel release surgery on
July 24, 2001 and right carpal tunnel release surgery on August 15, 2001.
In an August 6, 2015 report, Dr. Anderson, based on a review of the June 5, 2014 SOAF,
medical and injury histories, medical reports, and his physical examination findings, concluded
that appellant was capable of performing her date-of-injury job with no restrictions. In his
report, Dr. Anderson summarized the June 5, 2014 SOAF by noting the two claims and the

5

accepted conditions, the work duties that caused the accepted employment condition and the
surgeries performed, that she resigned from federal service on May 17, 2013, that on
November 16, 2003 she started work Para-educator/Migrant Home Visitor with the Kennewick
School District, Kennewick, WA, and that she quit this position on March 8, 2014. He also
noted appellant’s subjective complaints were unsupported by the objective evidence. A physical
examination revealed an unreliable two-point discrimination test, full active bilateral elbow
range of motion, bilateral normal intrinsic and open muscle strength, no bilateral radial tunnel,
flexor, or extensor tenderness, and mild bilateral nonspecific soft forearm tissue tenderness.
Appellant complained of burning pain, paresthesias radiating into the median nerve with a
Phalen’s test and with her elbow flexion test, and significant local tenderness in the ulnar nerve
region bilaterally.
Dr. Anderson reported appellant’s complaints of burning pain and
paresthesias were unsupported by any objective findings and that examination findings were
based on her subjective complaints. Based on the lack of any objective findings, normal grip
strength, and two normal EMG/NCV studies, he concluded that appellant was capable of
performing her job with no restrictions. In an attached OWCP-5c form, Dr. Anderson indicated
that appellant had no work restrictions.
By decision dated September 15, 2015, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective September 19, 2015. It found that the weight of the
evidence rested with the opinion of the impartial medical specialist, Dr. Anderson, who
concluded that appellant no longer had any residuals or disability due to the accepted conditions.
On October 7, 2015 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on June 20, 2016. At the hearing she was represented by counsel.
Counsel contended at the hearing that the SOAF provided to Dr. Kitchel was inaccurate with
respect to her job duties at the employing establishment and the accepted conditions.
Specifically, she argued that the SOAF failed to include bilateral medial epicondylitis as an
accepted condition and it failed to specify what appellant’s job duties were. Thus, counsel
argued that appellant should have been referred for another second opinion evaluation, rather
than for an impartial medical examination. She also argued that the SOAF provided to
Dr. Anderson failed to adequately describe appellant’s job duties.
In progress notes dated March 28, 2016, Dr. Hui-Juan Zhang, an examining Boardcertified neurologist, reported that appellant was seen for complaints of right arm paresthesia and
pain. Examination findings and a medical history were provided. Dr. Zhang noted that appellant
reported good results from her bilateral carpal tunnel release surgery, but no improvement
following her 2004 bilateral cubital tunnel ulnar release surgery. Diagnoses were noted as
bilateral cubital tunnel syndrome and bilateral carpal tunnel syndrome.
In progress notes dated April 5, 2016, Dr. Michael Turner, a treating Board-certified
physiatrist, reported that appellant had been seen for significant bilateral carpal tunnel syndrome
and right ulnar nerve surgeries.
In a June 20, 2016 report, Dr. Turner reported seeing appellant several times for her
cubital tunnel syndrome. A physical examination revealed claw hand deformity, atrophy,
weakness, and numbness. Dr. Turner opined that, despite a normal EMG/NCV, appellant
continued to have ulnar nerve symptoms. He attributed the continued symptoms to the failed

6

bilateral cubital tunnel surgery. Dr. Turner explained that failed surgeries can cause scarring,
traction, neuroma formation, or incomplete release.
In a July 18, 2016 report, Dr. Turner noted that he had been appellant’s treating physician
for the past several months. He opined that she continued to have residuals from her accepted
conditions and was disabled from performing her date-of-injury position as a contact service
representative. Dr. Turner based his opinion on objective findings of numbness, ulnar nerve
hand atrophy, decreased sensation, positive elbow flexion test, Tinel’s sign, and Phalen’s test,
and numbness to all digits. He recommended an updated FCE for an accurate measure of
appellant’s deficits and work capability. Dr. Turner indicated that she was capable of working
with restrictions including no lifting more than five pounds with her right hand, no repetitive
gripping or writing with her right hand, up to 5 minutes every 30 minutes of typing using her
right hand, and no repetitive right elbow pressure or pressure over the right elbow. Regarding
the normal EMG findings, he again explained that failed surgeries can cause scarring, traction,
neuroma formation, or incomplete release.
By decision dated September 2, 2016, OWCP’s hearing representative affirmed the
termination of appellant’s benefits. She found that the special weight of the medical opinion
evidence rested with the well-rationalized opinion of Dr. Anderson, the impartial medical
examiner, who found that appellant no longer had any residuals or disability from her accepted
employment conditions.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.6 After it has determined that an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.7 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.8
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.9 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.10
Section 8123(a) of FECA provides in pertinent part: if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
6

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

7

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

8

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

9

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

10

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

7

Secretary shall appoint a third physician who shall make an examination.11 Where a case is
referred to an impartial medical examiner for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.12
ANALYSIS -- ISSUE 1
OWCP accepted the conditions of bilateral carpal tunnel syndrome, bilateral cubital
tunnel syndrome, and medial epicondylitis. It authorized elbow ulnar revision, tennis elbow
revision surgery, and authorized bilateral carpal tunnel release surgery. OWCP placed appellant
on the periodic rolls for temporary total disability commencing August 14, 2007. In a decision
dated September 15, 2016, it terminated her wage-loss compensation and medical benefits based
upon the opinion of Dr. Anderson, the impartial medical examiner. An OWCP hearing
representative affirmed the termination of benefits by decision dated September 2, 2016.
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective September 19, 2015.
OWCP had referred appellant to Dr. Anderson for an impartial medical examination to
resolve the existing conflict in medical opinion evidence between Drs. Kitchel and Craigg,
pursuant to 5 U.S.C. § 8123(a).
In his August 6, 2015 report, Dr. Anderson explained that appellant’s subjective
complaints were unsupported by the objective evidence and that examination findings were
based on her subjective complaints. He reported an unreliable two-point discrimination test, full
active bilateral elbow range of motion, bilateral normal intrinsic and open muscle strength, no
bilateral radial tunnel, flexor, or extensor tenderness, and mild bilateral nonspecific soft forearm
tissue tenderness. Dr. Anderson concluded, based on the lack of any supporting objective
findings, normal grip strength, and two normal EMG/NCV studies, that appellant was capable of
performing her job with no restrictions. His findings and conclusions establish that she has no
employment-related disability or medical residuals due to her accepted conditions.
The Board finds that Dr. Anderson’s August 6, 2015 report is well rationalized and based
on a complete and accurate history, a complete SOAF and the entire case record. Dr. Anderson’s
report reflects a thorough examination, a review of the medical records, and an understanding of
appellant’s medical and employment histories. Thus, his opinion that the accepted conditions
have resolved without residuals is entitled to special weight.13
On appeal counsel argues that the June 5, 2014 SOAF provided to Drs. Anderson and
Kitchel was inaccurate with respect to appellant’s job duties. She also contends the SOAF did
not contain a complete and accurate medical history. The June 5, 2014 SOAF provided to both
physicians described the essential elements, including the accepted conditions, the job title and
11

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

12

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

13

See E.H., Docket No. 08-1862 (issued July 8, 2009); Bryan O. Crane, 56 ECAB 713 (2005).

8

work history, and the relevant medical history. Dr. Anderson, in his report, fully addressed
appellant’s job and medical history.14 He provided a thorough, exhaustive medical opinion
based on his examination findings, the SOAF, and her medical history. Dr. Anderson concluded
that appellant had no residuals from the accepted conditions of bilateral carpal tunnel syndrome,
bilateral cubital tunnel syndrome, and medial epicondylitis and opined that she was physically
capable of performing full duty at her date-of-injury job. OWCP relied on his opinion in its
September 15, 2015 decision, finding that she had no residual disability or impairment causally
related to her accepted bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, and
medial epicondylitis, and in the September 2, 2016 hearing representative’s decision affirming
the termination of her benefits.
Counsel has also alleged multiple errors regarding Dr. Kitchel’s opinion rendering it of
diminished probative value. She asserts that he erred in relying on an August 28, 2009 SOAF
and that the report was stale and insufficient to support termination. In terminating appellant’s
compensation, OWCP relied upon the opinion of Dr. Anderson, the impartial medical examiner.
Counsel argues that Dr. Anderson should be considered a second opinion physician instead of an
impartial examiner as Dr. Kitchel’s opinion was insufficient to create a conflict in the medical
opinion evidence.
Counsel also contends Dr. Kitchel’s opinion was not based on a review of the entire
medical record. Contrary to counsel’s assertions, Dr. Kitchel did not rely on the August 28, 2009
SOAF as he was provided the updated June 5, 2014 SOAF for review. The Board finds
counsel’s contention that Dr. Kitchel’s opinion was not based on a proper medical background to
be without merit as he reviewed the relevant medical records. Dr. Kitchel’s opinion was based
on a proper review of the medical evidence, physical examination, and updated SOAF and
sufficient to create a conflict in the medical opinion evidence as discussed above.
Counsel further contends that Dr. Kitchel’s opinion was insufficient to create a conflict as
it was stale. This contention of counsel is also without merit. Dr. Kitchel’s report was dated
July 15, 2014 with a physical examination of appellant performed that day. At the time of the
conflict of opinion in 2015, Dr. Kitchel’s July 15, 2014 report and Dr. Craigg’s March 19, 2015
were reasonably current and sufficient to establish a conflict of opinion. With respect to
Dr. Anderson’s opinion, counsel argues that due to the deficiencies with Dr. Kitchel’s report, that
Dr. Anderson should be treated as a second opinion physician and that a new conflict has arisen.
As discussed above, OWCP found a conflict in the medical opinion evidence between
Dr. Kitchel and Dr. Craigg and referred appellant to Dr. Anderson for resolution of this conflict.
As discussed above, the Board found OWCP properly accorded Dr. Anderson’s opinion the
special weight as it was well rationalized and based on an accurate and complete medical history.
LEGAL PRECEDENT -- ISSUE 2
As OWCP properly terminated appellant’s compensation benefits, the burden shifts to the
employee to establish continuing disability after that date causally related to his or her accepted
injury.15 To establish causal relationship between the accepted conditions as well as any
14

Darlene R. Kennedy, 57 ECAB 414 (2006).

15

Manuel Gill, 52 ECAB 282 (2001).

9

attendant disability claimed and the employment injury, the employee must submit rationalized
medical evidence based on a complete medical and factual background supporting such causal
relationship.16 Causal relationship is a medical issue and the medical evidence required to
establish causal relationship is rationalized medical evidence.17
ANALYSIS -- ISSUE 2
The Board finds that appellant failed to establish that she has any continuing residuals of
her accepted bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, and medial
epicondylitis, on or after September 19, 2015.
The issue of whether appellant remains entitled to compensation for continuing disability
and whether she continued to experience residuals from her accepted condition is a medical one,
based on the medical evidence of record.18 Following the telephonic hearing held on June 20,
2016, she submitted June 20 and July 18, 2016 reports from Dr. Turner and a March 28, 2016
report from Dr. Zhang. These reports did not provide a probative medical opinion as to whether
she was disabled or currently required medical treatment due to an employment-related
condition. Dr. Zhang and Dr. Turner both noted that appellant had normal EMG/NCV findings.
They did not explain why appellant would have continuing disability, while objective testing
revealed normal findings. The Board has found that medical reports that provide a conclusion,
but fail to offer any rationalized medical explanation, are of limited probative value.19
Neither Dr. Zhang nor Dr. Turner provided a well-reasoned and sufficiently supported
opinion that would vitiate OWCP’s September 15, 2015 determination that she did not have any
employment-related disability or residuals stemming from her accepted bilateral carpal tunnel
syndrome, bilateral cubital tunnel syndrome, and medial epicondylitis. Medical reports without
adequate rationale on causal relationship are of diminished probative value and do not meet
appellant’s burden of proof.20 Appellant did not provide a probative medical opinion as to
whether she was disabled or currently required medical treatment due to an employment-related
condition.
For the reasons discussed above, appellant has not met her burden of proof to establish
continuing disability after September 19, 2015.
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.
16

R.D., Docket No. 16-0982 (issued December 20, 2016); R.F., Docket No. 16-0845 (issued July 25, 2017).

17

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

18

Gary R. Sieber, 46 ECAB 215 (1994).

19

See generally, D.A., Docket No. 16-0408 (issued May 19, 2016).

20

See F.T., Docket No. 09-919 (issued December 7, 2009); Cecelia M. Corley, 56 ECAB 662 (2005) (a medical
opinion not fortified by rationale is of diminished probative value).

10

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective September 19, 2015, as she no longer had any
residuals or disability due to the accepted employment conditions. The Board further finds that
she has not met her burden of proof to establish any continuing residuals or disability after
September 19, 2015.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 2, 2016 is affirmed.21
Issued: December 11, 2017
Washington, DC

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

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

21

Colleen Duffy Kiko, Judge, participated in the original decision but was no longer a member of the Board
effective December 11, 2017.

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
PEACE CORPS, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)

Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 07-1075
Issued: May 21, 2008

Oral Argument March 6, 2008

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

JURISDICTION
On March 14, 2007 appellant filed a timely appeal from a March 14, 2006 merit decision
of the Office of Workers’ Compensation Programs denying reimbursement of expenses.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether the Office properly denied appellant’s request for reimbursement for
healing and recovery books and compact discs, meals, exercise clothing and yoga and meditation
sessions pursuant to 5 U.S.C. § 8103.
FACTUAL HISTORY
The Office accepted that appellant sustained psoriatic arthritis causally related to his
work for the employing establishment in the 1960s. The Office subsequently expanded
acceptance of his claim to include obesity, hypertension, malignant melanoma, squamous and
basal cell carcinoma, osteoarthrosis, lumbago, prostate cancer and obesity.

In a report dated July 10, 2003, Dr. Stephen E. Smiles, a Board-certified internist, related
that he had treated appellant beginning in 1987 for psoriatic arthritis. He noted that appellant
required exercise both at a health club and in the outdoors walking, swimming and bicycle
riding. Dr. Smiles explained that exercise improved appellant’s motor strength, range of motion,
cardiovascular system and helped control obesity. He described the medical treatment appellant
received for his accepted conditions and recommended psychiatric or psychological services to
improve his functioning.
On August 14, 2003 appellant submitted a request for reimbursement for medical care
activities from July 26 through August 14, 2003. He noted that he had “daily three or more
medically necessary health care activities each workday” since the end of his last submission on
July 25, 2003. Appellant listed his activities during this time period on a calendar. During this
time he walked outside, attended medical appointments and swam at Palm Beach and West Palm
Beach.
In another letter dated August 14, 2003, appellant related that he claimed medical care
from July 26 through August 14, 2003 and “per diem meal and travel expenses during that time
and other essential submissions.” He thanked the Office for paying his July 25, 2003 submission
for the same expenses. Appellant also submitted a description of the medical treatment,
activities and purchases for which he requested reimbursement. He noted that the Office had
authorized and paid for 7,978 medical treatments and activities from 1994 to the present,
including his exercise, physical therapy and rehabilitation sessions. From January to
August 2003, appellant participated in 619 “time intensive and medically necessary, required and
essential health care activities.” He described his visits in 2003 to physicians, physical therapists
and sports clubs and his participation in outdoor walking, swimming at West Palm Beach and
Palm Beach, bicycle riding, spiritual healing services, support groups, meditation sessions and
healing seminars. Appellant asserted that he purchased books, pharmacy supplies, exercise
clothes and equipment which were “medically required.” He also purchased music for healing
and recovery. From July 26 through August 29, 2003, appellant indicated that he engaged in
outdoor ambulation, swimming 12 times at Palm Beach and West Palm Beach, purchased books
and medical/pharmaceutical supplies and purchased medically required exercise clothing.
On August 29, 2003 appellant specified that from August 15 to 29, 2003 he claimed no
per diem compensation but $1,000.49 for meals and transportation. He incurred expenses for
healing and recovery books and compact discs (CDs) of $452.83 on August 26, 2003, $152.65
on August 28, 2003 and $67.00 on August 29, 2003. Appellant spent $488.79 at Paragon Sports
on August 27, 2003. He further incurred pharmaceutical and health club expenses.
By letter dated September 29, 2003, appellant requested that the Office reimburse him for
expenses of $4,634.23. He noted that such expenses were previously approved on a “pay as
billed” basis for the past nine years.1
In a report dated October 1, 2003, Dr. Jeffrey L. Marx, an attending Board-certified
dermatologist, diagnosed psoriasis, psoriatic arthritis, status post malignant melanoma and
1

On August 29, 2003 Dr. Smiles requested authorization for chiropractic and nutritional services by Dr. Linda Li,
a chiropractor. By letter dated September 2, 2003, the Office approved physical therapy treatments with Dr. Li.

2

surgery for squamous and basal cell carcinoma. He requested that the Office authorize appellant
“to continue to purchase books and CDs on an ongoing basis for his medically required healing,
recovery and rehabilitation process for his multiple [Office] authorized and approved medical
conditions. These healing books and CDs are medically essential to [his] healing, health and
well-being process.”
On October 7, 2003 appellant asserted that the Office had approved obesity treatment
with Dr. Louis Aronne, a Board-certified internist, beginning May 2001. Dr. Aronne prescribed
a nutritional program. Appellant requested reimbursement for the nutritional program and cited
past Office practice. In another letter dated October 7, 2003, he requested reimbursement for
healing lectures and events in the amount of $105.00 from January to May 2003. Appellant
submitted an updated description of his treatment, activities and purchases for the year to date.
On October 28, 2003 he requested reimbursement for expenses claimed from July 26 through
August 29, 2003 in the amount of $4,634.23 and expenses from August 30 through October 7,
2003 in the amount of $2,167.74. Appellant again noted that the Office had previously paid
similar claimed expenses.
In a report dated October 29, 2003, Dr. Smiles described appellant’s medical treatment by
various physicians necessitated by his accepted conditions. He related that it was “medically
necessary” for appellant to use a health club and participate in “outdoor ambulation exercise,
bike riding exercise and swimming.” Dr. Smiles stated, “[Appellant] continues to medically
require, on a specific prescription basis, the continuing of his [Office] ongoing reimbursement
for particular exercise equipment, specialized athletic/exercise clothing and shoes for his
medically necessary daily exercise program.” He further noted that he required continuing
reimbursement for Dr. Aronne’s weight maintenance program and for books, CDs and events
that promoted healing, meditation and recovery.
On November 17, 2003 appellant requested a written explanation describing why his
previously paid expenses were now denied.
By decision dated November 19, 2003, the Office denied appellant’s request for
reimbursement for “healing/recovery CDs and books, per diem costs (meals), athletic and
exercise clothing and healing/meditation (yoga) sessions.” The Office determined that the
Federal Employees’ Compensation Act2 did not provide authorization for these types of
expenses.3
On November 25, 2003 appellant submitted a calendar of expenses incurred from 2003 to
date. On December 18, 2003 he requested an oral hearing before an Office hearing
representative. By decision dated January 29, 2004, the Office denied appellant’s request for a
hearing under 5 U.S.C. § 8124. The Office noted that as appellant’s injury occurred before
July 4, 1966 he was not entitled to an oral hearing or review of the written record as a matter or
right, and found that the matter could be equally well addressed through the reconsideration
process.
2

5 U.S.C. §§ 8101-8193.

3

On November 21, 2003 the Office placed appellant on the periodic rolls.

3

In a report dated May 28, 2004, Dr. Smiles asserted that appellant required exercise,
physical therapy and rehabilitation sessions at a health club and outdoor swimming, and outdoor
walking and biking. The exercise increased appellant’s strength, flexibility, cardiovascular
system and helped control his obesity. He required exercise clothing to participate in the
exercise and rehabilitation. Dr. Smiles noted that appellant required “reimbursement for per
diem (meals) to exclusively pay for his medically necessary unique physician prescribed
nutritional regimen.” In another letter dated May 28, 2004, Dr. Smiles noted that Dr. Aronne last
evaluated him in 2001 and requested authorization for appellant to see the physician again for a
nutritional consultation.4
On November 16, 2004 appellant requested reconsideration. He maintained that his
healing and recovery books, CDs and meditation sessions benefited his health. Appellant noted
that the Office previously paid for a nutritional program prescribed by Dr. Aronne in 2001. He
requested that the Office pay per diem meal costs to reimburse him for the nutritional program.
By decision dated December 10, 2004, the Office denied modification of the
November 19, 2003 decision.5 It found that the services for which appellant requested
reimbursement were not for medical treatment and thus required advanced authorization. The
Office found that, while a claimant may have an expectation for a continuation of medical
treatment, he did not have an expectation of reimbursement for ancillary services. It further
determined that there was no basis for paying meal expenses as appellant received local medical
treatment.
In a report dated December 6, 2005, Dr. Smiles described the medical benefits of losing
weight. He also explained that appellant needed physical exercise, including outdoor exercise.
Dr. Smiles indicated that he used “high technology performance clothing in his medically
necessary athletic club environment” and compressible, waterproof, insulated, layered clothing
for outdoors. He recommended acupuncture, acupressure, mind-body medicine, imagery and
visualization techniques, meditation, massage, tai-chi, yoga, sound healing and music therapy.
Dr. Smiles generally described the benefit of each activity and maintained that they would
reduce the degree of appellant’s disability. He further recommended medically required CDs
which he asserted would have a “positive impact on the quality of [appellant’s] life.” Dr. Smiles
stated:
“I have previously prescribed various medically necessary books which will give
[appellant] relief and reduce his degree of disability. [He] should be retroactively
reimbursed for these expenses. [Appellant] uses the books on healing, recovery,
meditation, contemplation and assorted other related books as part of his daily
healing and recovery practice; and as a means to help him relax and to reduce his
endemic stress.”

4

The record does not contain a 2001 report from Dr. Aronne.

5

On October 11, 2005 Dr. Smiles requested authorization for a health club membership for appellant. On
October 21, 2005 the Office approved a six-month gym membership, a personal trainer and a heart rate monitor.

4

On December 9, 2005 appellant again requested reconsideration. He maintained that the
Office had the burden of proof to terminate previously reimbursed services. Appellant submitted
prescriptions from Dr. Smiles dated July 25, 2003 for books and CDs for healing and recovery
hardware for outdoor exercise and a jacket.6
By decision dated March 14, 2006, the Office denied modification of its December 10,
2004 decision.7 The Office noted that it had denied per diem costs for meals as appellant sought
local medical treatment. The Office noted that medical expenses for a prescribed diet may be
paid if supported by medical evidence.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act8 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree of the period of disability or aid in
lessening the amount of monthly compensation.9 In interpreting this section of the Act, the
Board has recognized that the Office has broad discretion in approving services provided under
section 8103, with the only limitation on the Office’s authority being that of reasonableness.10
Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment or actions taken which are contrary to both logic and probable deductions
from established facts. It is not enough to merely show that the evidence could be construed so
as to produce a contrary factual conclusion.11 In order to be entitled to reimbursement for
medical expenses, a claimant must establish that the expenditures were incurred for treatment of
the effects of an employment-related injury.12
Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence. Thus, in order for a surgery to be authorized, appellant must submit evidence
to show that the requested procedure is for a condition causally related to the employment injury
and that it is medically warranted. Both of these criteria must be met in order for the Office to
authorize payment.13

6

Dr. Smiles July 25, 2003 prescriptions are nearly illegible.

7

The Office cited “clear evidence of error” language, applicable to untimely requests for reconsideration, in its
March 14, 2006 decision. The Office, however, found that the evidence submitted did not possess “substantive
probative value” and denied modification of the December 10, 2004 decision, thereby conducting a merit review.
8

5 U.S.C. §§ 8101-8193.

9

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

10

Joseph P. Hofmann, 57 ECAB 456 (2006); James R. Bell, 52 ECAB 414 (2001).

11

Claudia L. Yantis, 48 ECAB 495 (1997).

12

Cathy B. Mullin, 51 ECAB 331 (2000).

13

Id.

5

Pursuant to this delegation of statutory authority, the Office has promulgated regulations
implementing this section of the Act. Section 10.310(a) of the pertinent federal regulation,
states:
“The employee is entitled to receive all medical services, appliances or supplies
which a qualified physician prescribes or recommends and which [the Office]
considers necessary to treat the work-related injury. The employee need not be
disabled to receive such treatment. If there is any doubt as to whether a specific
service, appliance or supply is necessary to treat the work-related injury, the
employee should consult [the Office] prior to obtaining it.”14
Regarding the authorization of nonmedical equipment, the Office’s procedure manual
provides:
“Items such as waterbeds, saunas, weight-lifting sets, exercise bicycles [etc.,] may
be authorized only if recommended by the attending physician and if [the Office]
finds that the item is likely to cure, give relief, reduce the degree or the period of
disability, or aid in lessening the amount of monthly compensation. Procedures
for developing and adjudicating requests for such equipment are provided in
[Procedure Manual Chapter 2.810.15].”15
Regarding the authorization of special equipment and furnishings, section 2.810.15 of the
Procedure Manual provides:
“The [claims examiner] should obtain the following information:
(1) From the treating physician:
(a) A full, specific description of the basic equipment/furnishing required to
treat effects of the job-related condition;
(b) An explanation of how the item will address the effects of the job-related
condition, and an opinion as to the anticipated effectiveness of the item in
treatment;
(c) The anticipated duration of the need for the item (to determine whether
rental or purchase is appropriate);
(d) A suggested supplier, if any.

14

20 C.F.R. § 10.310.

15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3(d)
(September 1995).

6

(2) From the claimant:
(a) The full name and address of two or three suppliers:
(b) From each potential provider, a signed statement describing in detail the
basic, unadorned item meeting the physician’s specifications, and a
breakdown of all costs, including delivery, installation, etc….”
ANALYSIS
Appellant requested reimbursement for activities and purchases beginning July 26, 2003
which he asserted were required due to his accepted employment conditions. He maintained that
he spent $4,634.23 from July 26 through August 29, 2003 and $2,167.74 from August 30
through October 7, 2003 on meals, books and CDs. Appellant also requested reimbursement for
healing lectures and sessions he attended from January to May 2003.
Appellant also contends that he was entitled to reimbursement for meals associated with a
nutritional program recommended by Dr. Aronne in 2001. In its decisions, the Office denied
reimbursement for per diem meal expenses associated with medical treatment as he did not seek
medical treatment outside his geographical area. Appellant has not claimed per diem meal
expenses but instead claimed reimbursement for his nutritional program. The Board’s
jurisdiction, however, is limited to reviewing final decisions of the Office.16 As the Office has
not addressed this issue, it is not before the Board at this time.
Appellant also claimed reimbursement for books and CDs on healing, exercise clothing
and various healing activities such as meditation. He did not, however, obtain authorization
from the Office before purchasing the claimed items, provide a description of the actual items
purchased or fully document his expenses by providing receipts. In prescription pads notes dated
July 25, 2003, Dr. Smiles found that appellant required healing books and CDs and various other
items. In a report dated October 1, 2003, Dr. Marx requested that the Office allow appellant to
purchase books and CDs which he opined were “medically essential to his healing, health and
well-being process.” Neither Dr. Smiles nor Dr. Marx, however, provided adequate medical
opinion describing the specific healing book or CD recommended or rationale for their opinions.
A medical opinion not fortified by rationale is of diminished probative value.17
On October 29, 2003 Dr. Smiles opined that it was medically necessary for appellant to
ambulate, bike ride and swim outdoors. He asserted that he required specialized exercise
clothing for that purpose and also required continued reimbursement for books, CDs and other
events that promoted healing and meditation. In a report dated May 28, 2004, Dr. Smiles
described the health benefits of exercise, swimming, outdoor walking and biking. He again
noted that appellant required exercise clothing to participate in these activities. Dr. Smiles,

16

20 C.F.R. § 501.2(c).

17

Mary E. Marshall, 56 ECAB 420 (2005).

7

however, did not explain why he required specific clothing for exercise or the exact items to be
purchased. As discussed, without rationale a medical opinion has little probative value.18
On December 6, 2005 Dr. Smiles opined that appellant required “high technology
performance clothing” for use in athletic clubs and waterproof, lightweight clothing for outside.
He did not recommend any specific item or explain why a specific article of clothing was
necessary due to an accepted condition. Dr. Smiles also recommended that appellant participate
in acupuncture, acupressure, mind-body medicine, imagery and visualization techniques,
meditation, massage, tai-chi, yoga, sound healing and music therapy as an aid to reducing the
degree of disability. He did not, however, prescribe any specific program for appellant but
instead generally commented on the benefits of such activities. Dr. Smiles further recommended
medically required CDs to reduce disability and books on healing to reduce stress and improve
quality of life. The procedure manual provides that the attending physician, in recommending
special equipment or furnishings, should provide a full description of the equipment or
furnishings, how it will affect the job-related condition and the anticipated duration of the need
for the item.19 Dr. Smiles failed to specifically identify the items or quantity to be purchased or
the anticipated duration of the need for the items.
As discussed, the Office has the discretion to authorize medical services, appliances and
supplies pursuant to section 8103.20 The function of the Board on appeal is to determine whether
there has been an abuse of discretion. Generally, abuse of discretion is shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logical and probable deductions from known facts.21 The Board finds that the Office acted
within its discretion in denying appellant’s request for reimbursement for various expenses
beginning July 26, 2003.
On appeal, appellant argues that, as the Office had previously reimbursed him for similar
expenses, it had the burden of proof to terminate authorization for services. This is not the case.
Appellant seeks reimbursement for nonmedical expenses such as books, music, meditation and
yoga sessions, and incidental expenses such as exercise clothing. He must establish that the
expenditures are for treatment of his accepted conditions by submitting rationalized medical
opinion evidence that it is necessary and reasonable.22
Appellant further contends that an Office medical adviser should have reviewed his
request for reimbursement for expenses. As discussed, however, the Office acted within its
discretion in denying his requests for reimbursement for undocumented expenses beginning
July 26, 2003.

18

Id; see also Willa M. Frazier, 55 ECAB 379 (2004).

19

See supra note 15.

20

See Joseph P. Hofmann, supra note 10.

21

See Lottie M. Williams, 56 ECAB 302 (2005).

22

See Glen E. Shriner, 53 ECAB 165 (2001).

8

CONCLUSION
The Board finds that the Office properly denied appellant’s request for reimbursement for
healing and recovery books and compact discs, meals, exercise clothing and yoga and meditation
sessions pursuant to 5 U.S.C. § 8103.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 14, 2006 is affirmed.
Issued: May 21, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rock Island, IL, Employer
__________________________________________

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

Docket No. 15-1169
Issued: December 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 28, 2015 appellant filed a timely appeal from a March 10, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a right knee injury
causally related to an April 22, 2014 employment incident.
On appeal appellant contends that the medical evidence established his claim. He also
argues that his physician initialed all of the reports by nonphysicians.
1

Appellant requested oral argument before the Board. By order dated October 6, 2015, the Board denied
appellant’s request for oral argument as the issue on appeal required evaluation of the medical evidence and could
be adequately addressed in a decision based on a review of the case record.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 22, 2014 appellant, then a 49-year-old city letter carrier, filed a traumatic injury
claim alleging that on April 22, 2014 he injured his right knee when, after delivering mail at a
resident’s mailbox, he continued down the stairs and his knee popped.
In progress reports dated April 22 and 23, and May 5, 2014, Jane Anderson, a physician
assistant, diagnosed sprain/strain to the knee and leg, listed the date of injury as April 22, 2014,
and released appellant to return to work on a sit down basis only. In a duty status report of the
same date, Ms. Anderson checked a box indicating that this injury was due to his occupation.
On April 30, 2014 appellant was seen by William Morris, a nurse, who diagnosed right
knee sprain. Mr. Morris noted that appellant injured his right knee on April 22, 2014 and was
seen by Ms. Anderson on that date. On May 9, 2014 he diagnosed sprain/strain of the right knee
and tear, lateral cartilage/meniscus of knee.
On May 2, 2014 appellant was seen by Dr. Rick Garrels, a physician Board-certified in
occupational medicine, who diagnosed sprain/strain of the right knee and released him to return
to work on a modified basis, sit down work only. Dr. Garrels noted that appellant twisted his
right knee while descending stairs, and listed the date of injury as April 22, 2014. He indicated
in a June 26, 2014 report that appellant also had a lateral cartilage tear/meniscus of knee.
Dr. Garrels noted that surgery was delayed to get proper clearance from appellant’s cardiologist.
In a May 7, 2014 report, Dr. Waqas M. Hussain, a Board-certified orthopedic surgeon,
discussed appellant’s history as feeling a pop in his right knee on April 22, 2014 while delivering
mail. He noted that he reviewed x-rays of the right knee, which showed minimal hypertrophic
spurring without significant medical or lateral joint space narrowing. Dr. Hussain noted that it
was difficult to assess patellofemoral joint space narrowing. He also noted that he reviewed a
magnetic resonance imaging scan of the right knee which demonstrated degenerative cyst in the
lateral femoral condyle. Dr. Hussein noted a small osteochondral defect in the medial femoral
condyle with cartilage changes and that the medial meniscus showed a tear of the posterior horn.
He diagnosed with right knee pain, mechanical symptoms with right knee arthritis, and a tear of
the medial meniscus. Dr. Hussein administered an injection of 40 milligrams of Kenalog. He
recommended physical therapy, rest, ice, elevation, compression, activity modification, and oral
medication for pain control. Dr. Hussein gave appellant a prescription for a cane at his request.
He noted that appellant should continue with a desk or seated job only.
Ms. Anderson saw appellant again on May 29, 2014 and at that time she listed diagnoses
of sprain/strain right knee and tear of the lateral cartilage/meniscus of the knee. She released
him to return to work on a modified basis.
Appellant also submitted progress notes from physical therapists dated from
December 20, 2013 through May 30, 2014.
On June 6, 2014 OWCP received a request for authorization of right knee arthroscopy.

2

In July 16 and 18, 2014 reports, Dr. Geeta Mahadevia, a physician specializing in
occupational medicine, diagnosed sprain/strain of appellant’s right knee; and tear, lateral
cartilage/meniscus of knee. She released him to return to work light duty.
By decision dated July 29, 2014, OWCP denied appellant’s claim as the medical
evidence did not demonstrate that the claimed medical condition was causally related to the
established employment-related event.
In a July 31, 2014 report, Dr. Garrels diagnosed sprain/strain of the right knee and tear of
the lateral cartilage/meniscus of knee. In an August 15, 2014 report, he noted that appellant had
left knee surgery on July 7, 2014 and was doing very well, and that he would see Dr. Hussain in
August 2014 to address the right knee. Dr. Garrels listed diagnoses of status post left knee
partial meniscectomy and right knee pain.
On August 28, 2014 appellant requested review of the written record. Also, he
resubmitted numerous documents by Ms. Anderson, which now contained an illegible initial. In
one of these reports, the April 22, 2014 report by Ms. Anderson, there is a handwritten indication
that there was a direct causal relationship between the onset of the right knee pain and going
down the step and feeling the pop. This entry on the report is followed by an illegible initial or
signature.
In a letter received by OWCP on September 4, 2014, appellant described the
circumstances of the employment incident and noted that he was seen in the occupational health
clinic about 15 minutes after the injury. He argued that Dr. Garrels had now signed all the
documents, and therefore the documents establish a causal relationship between his diagnosed
conditions and the employment incident. Appellant also submitted additional physical therapy
notes.
In a March 10, 2015 decision, the hearing representative affirmed the July 29, 2014
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained 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. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
3

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.4
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place, and in the manner
alleged.5
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.6 The medical evidence required to
establish causal relationship is usually rationalized medical 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
ANALYSIS
The Board finds that appellant has failed to meet his burden of proof establishing a right
knee injury causally related to an April 22, 2014 employment incident. OWCP has accepted that
the employment incident occurred as alleged. Appellant has submitted evidence that he was
diagnosed with sprain/strain of the right knee and tear of the lateral cartilage/meniscus of the
knee. However, his claim was denied because he failed to submit medical evidence establishing
a causal relationship between the accepted incident of employment and the medical diagnosis.
Dr. Mahadevia diagnosed sprain/strain of the right knee and tear, lateral
cartilage/meniscus of knee, but she did not address causal relationship. Dr. Hussain discussed
appellant’s history and noted right knee pain and mechanical symptoms with right knee arthritis
and a tear of the medial meniscus. However, he did not make a supportive statement on causal
relationship. As such, these opinions are insufficient to establish causal relationship.8
Dr. Garrels diagnosed sprain/strain of the right knee on May 2, 2014, and on June 26,
2014 also diagnosed a lateral cartilage tear/meniscus of the knee. Appellant had reports that he
had told Dr. Garrels that he had twisted his right knee coming down stairs on April 22, 2014.
Although Dr. Garrels’ reports generally support causal relationship, he did not make an
affirmative statement with regard to causal relationship and support it by adequate medical
rationale explaining the basis of the relationship. He did not explain the process by which
4

See Elaine Pendleton, 40 ECAB 1143 (1989).

5

Linda S. Jackson, 49 ECAB 486 (1998).

6

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

7

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

8

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

appellant’s walking down stairs on April 22, 2014 would have caused or contributed to the
diagnosed condition. The Board notes in this regard that medical rationale is especially
important to explain why this incident caused appellant’s right knee injury, as the evidence of
record also indicates that he has a similar left knee condition, for which he underwent surgery on
July 7, 2014. As such, Dr. Garrels’ reports are insufficient to meet appellant’s burden of proof.9
Appellant also submitted multiple reports by physical therapists, physician assistants, and
an advanced practice nurse. These reports do not constitute probative medical opinion evidence
as physician assistants, nurse practitioners, and physical therapists are not considered physicians
as defined under FECA.10 Appellant argues that Dr. Garrels initialed these reports. The Board
has held that reports lacking proper identification do not constitute probative medical evidence.11
As the initials are illegible, this evidence is not probative to the underlying medical issue.
Furthermore, even had the reports contained an identifiable signature, the report must still
explain the process by which appellant’s particular work duties caused or contributed to his
diagnosed condition.12
A medical diagnosis and an opinion on causal relation must be based on rationalized
medical opinion evidence.13 A physician must accurately describe appellant’s work duties and
medically explain the process by which these duties would have caused or aggravated his
condition.14 An award of compensation may not be based on surmise, conjecture, or speculation.
Neither, the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that the condition was caused by his employment is sufficient to
establish causal relationship.15 Because he has not provided medical opinion evidence clearly
explaining how his accepted employment incident resulted in a specific medical diagnosis,
thereby resulting in an employment injury, he failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
9

J.S., Docket No. 14-818 (August 7, 2014).

10

L.B., Docket No. 13-1253 (issued September 18, 2013) (physician assistants, physical therapists, physical
therapy assistants, and nurse practitioners do not qualify as physicians under FECA and therefore their medical
reports do not qualify as probative medical evidence supportive of a claim for federal workers’ compensation, unless
such medical reports are countersigned by a physician). See 5 U.S.C. § 8101(2) (defines the term physician as used
in FECA); see also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).
11

M.R., Docket No. 12-1136 (issued December 5, 2012).

12

Supra note 8.

13

M.E., Docket No. 14-1064 (issued September 29, 2014).

14

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to claimant’s condition, with stated reasons by a physician). See also V.S., Docket No. 142028 (issued June 3, 2015).
15

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
injury causally related to an April 22, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 10, 2015 is affirmed.
Issued: December 9, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6