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

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1516
Issued: May 14, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 8, 2019 appellant, through counsel, filed a timely appeal from a January 30, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 30, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as she no longer had residuals or disability causally related to
her accepted December 27, 2012 employment injury.
FACTUAL HISTORY
On December 27, 2012 appellant, then a 32-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on that date she sustained a neck injury as a result
of a motor vehicle accident while in the performance of duty. She stopped work on the date of
injury and was treated at a hospital emergency room. OWCP initially accepted appellant’s claim
for cervical, thoracic, and lumbar sprains. On June 20, 2013 it expanded the acceptance of the
claim to include post-concussion syndrome. OWCP paid appellant wage-loss compensation on
the supplemental rolls as of February 11, 2013, and on the periodic rolls as of June 30, 2013.
Appellant sought medical treatment from Dr. Avery Katz, a Board-certified neurologist.
In a February 25, 2015 report, Dr. Katz noted appellant’s history of a December 27, 2012 motor
vehicle accident and assessed post-concussion syndrome, memory loss, migraine, and anxiety.
In an August 4, 2015 report, Dr. Timothy Henderson, a Board-certified orthopedic
surgeon, noted that appellant reported that she lost consciousness as a result of the December 27,
2012 incident. He diagnosed lumbar sprain and cervical radiculopathy causally related to the
December 27, 2012 incident and opined that she could work full time with restrictions.
On August 24, 2017 Dr. Katz noted that appellant had been seen for several years with
dysfunctional headaches, fluctuating left-sided weakness and cognitive complaints after an
employment-related accident. He indicated that she frequently decompensated from minimal
emotional or physical stressors and that there were additional issues at home due to separation
from her husband. Dr. Katz reported essentially normal general examination and neurological
examination, with minimal give-way left weakness. He noted that appellant had a “longstanding
history of headaches worsened by prior accident and history of fluctuating left-sided weakness and
actually has been having more psychologic issues than other neurologic events.” Dr. Katz
diagnosed: chronic PTSD, for which he recommended a psychologist; migraine without aura; and
cognitive deficit in attention.
In April 2018, OWCP referred appellant, along with an updated statement of accepted facts
(SOAF), the medical record and a list of questions, to Dr. Jeffrey Lakin, a Board-certified
orthopedic surgeon, and Dr. Melvin P. Vigman, a Board-certified neurologist, for second opinion
evaluations. The SOAF indicated that on February 27, 2012 appellant was involved in a motor
vehicle accident and that she reported injury to the neck. It noted: the accepted conditions were
sprain of neck; sprain of back, thoracic region; sprain of back, lumbar region; and post-concussion
syndrome. OWCP requested that the physicians use the SOAF as a framework for their opinions
and evaluate whether appellant continued to have residuals/disability causally related to her
accepted December 27, 2012 employment injury.
In an April 24, 2018 report, Dr. Lakin reviewed the SOAF and appellant’s medical history
and records. He noted that she reported a loss of consciousness when describing the December 27,
2

2012 incident. Dr. Lakin opined that appellant’s cervical, thoracic, and lumbar spine sprains were
directly caused by the December 27, 2012 employment injury, but were no longer active. He
found no objective findings on physical examination with regard to the accepted orthopedic
conditions, reporting that the examination revealed minimal tenderness with excellent function of
the cervical spine, upper extremities, thoracolumbar spine, and the lower extremities. Dr. Lakin
opined that appellant had reached maximum medical improvement (MMI) as of April 24, 2018
and that she was able to return to full-time, full-duty work without restrictions.
In an April 30, 2018 report, Dr. Vigman provided a second opinion neurological evaluation
with regard to appellant’s accepted post-concussion syndrome. He reviewed appellant’s
neurologically relevant medical records along with the SOAF and indicated that she had no history
of head injury and no loss of consciousness from the December 27, 2012 incident.4 Dr. Vigman
also performed a detailed neurological examination, noting decreased cutaneous sensation in the
entire left side of the face and entire left upper and lower extremity areas, which he indicated was
outside any standard neurological boundary and was considered a factitious sensory loss. He
provided an impression of no neurological disease, damage, or dysfunction. Dr. Vigman opined
that since there was no head injury or loss of consciousness, appellant’s neurological diagnoses
related to cerebral functioning, including neuropsychological, and various headaches were not due
to the December 27, 2012 employment injury. He indicated that the headaches were migraine type
by history and that her mental dysfunction could not be considered due to the December 27, 2012
employment injury since there was no head injury. Dr. Vigman also noted that there was no
evidence of cervical radiculopathy on examination. He indicated that he saw evidence of factitious
sensory loss, a diagnosis that implied exaggerated symptom magnification. Dr. Vigman opined
that appellant had reached MMI with no neurological problems. He further opined that there was
no need for further testing or treatment and that she could return to her date-of-injury position.
Dr. Vigman indicated that the treatment of appellant’s migraines should continue, but it should not
be considered related to the December 27, 2012 employment injury. He completed a work
capacity evaluation (Form OWCP-5c), noting that she could perform full-time medium-type work
with no restrictions.
In a May 10, 2018 letter, OWCP advised appellant that it proposed to terminate her wageloss compensation and medical benefits because she ceased to have residuals/disability causally
related to her accepted December 27, 2012 employment injury. It advised her that the proposed
action was based on the opinions of its second opinion physicians, Drs. Lakin and Vigman, and
afforded her 30 days to submit additional evidence or argument challenging the proposed action.
OWCP subsequently received additional evidence, including an April 13, 2015 x-ray
report, an April 13, 2015 state Range of Motion chart, and an April 14, 2016 blood work report.
In an April 17, 2016 narrative report, Dr. Changaramk Sivadas, an internal medicine
specialist, indicated that appellant reported suffering a head injury in a December 2013 automobile
accident while driving her mail vehicle with complaints of headaches, anxiety, insomnia, and
memory problems since the accident. He indicated that her physical examination was
4
Dr. Vigman noted that December 27, 2012 hospital report indicated a history of motor vehicle accident with neck
pain and no serious injury. Appellant also denied any head injury and there was no visual change of paresthesia
reported at the time. Dr. Vigman further explained that there was no contemporaneous record of a head injury
associated with the December 27, 2012 employment injury.

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unremarkable and provided a diagnosis of post-concussion syndrome. Dr. Sivadas also diagnosed
blindness in the right eye and anemia.
In a June 29, 2017 attending physician’s report (Form CA-20), Dr. Katz diagnosed PTSD,
cervical radiculopathy and headache caused or aggravated by the December 27, 2012 employmentrelated motor vehicle accident. He opined that she could return to part-time, light-duty work, and
gradually work her way to full-time work.
In a May 18, 2018 mental residual functional capacity assessment Judith Hancox, a
licensed clinical social worker, diagnosed PTSD and post-concussion syndrome. She opined that
appellant was totally disabled from work.
By decision dated July 18, 2018, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective July 22, 2018. It found that the weight of the medical evidence
was represented by the well-rationalized medical opinions of Drs. Lakin and Vigman.
On July 24, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on December 12,
2018, during which appellant testified about the December 27, 2012 employment injury and her
treatment by various physicians. She noted that she had been awarded social security disability
benefits. Appellant testified that Dr. Vigman did not listen when she described the history of the
December 27, 2012 employment injury.
Additional evidence was received. In a February 1, 2018 report, Dr. Jerry Weber, a
chiropractor, noted that appellant had significant injuries from a 2012 motor vehicle accident. He
indicated that radiological findings were normal and diagnosed cervical radiculopathy and postconcussive syndrome.
In a March 5, 2018 report, Dr. Katz provided findings of vision loss, left-sided numbness,
and weakness that seemed to stem from an employment-related accident when appellant was
driving her mail truck in 2012. He indicated that no definitive abnormalities were seen on prior
testing and that she has had various medication trials in the past. Dr. Katz noted increased
symptoms and increased stressors. He diagnosed major depressive disorder, PTSD, tinnitus, vision
loss, and insomnia.
In a July 25, 2018 note, Dr. Katz opined that all of appellant’s symptoms were the direct
result of the December 27, 2012 employment incident and that her ongoing stressors continued to
cause her condition to fluctuate. He opined that she could work four hours per day with
restrictions.
In a December 12, 2017 report, Dr. Katz indicated that appellant had severe stressors. He
diagnosed complicated migraine, major depressive disorder, psychologic conversion disorder, and
chronic PTSD.
By decision dated January 30, 2019, an OWCP hearing representative affirmed OWCP’s
July 18, 2018 termination decision. The hearing representative amended the accepted conditions
to include cervical radiculopathy, based on Dr. Henderson’s 2015 second opinion examination,
but found it resolved as of April 30, 2018, the date of Dr. Vigman’s second opinion evaluation.

4

LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.5 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.6 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.8 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.9
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits for the accepted conditions of cervical sprain, thoracic sprain,
lumbar sprain, and cervical radiculopathy as she no longer had residuals or disability causally
related to her accepted December 27, 2012 employment injury.
OWCP accepted the conditions of cervical sprain, thoracic sprain, lumbar sprain, and postconcussion syndrome. In his January 30, 2019 decision, OWCP’s hearing representative expanded
the accepted conditions to include a cervical radiculopathy, resolved as of April 30, 2018. The
hearing representative also affirmed the termination of appellant’s wage-loss compensation and
medical benefits effective July 22, 2018 for the accepted conditions of cervical sprain, thoracic
sprain, lumbar sprain, and post-concussion syndrome based on the opinions of second opinion
examiners, Drs. Lakin and Vigman.
On April 24, 2018 appellant underwent a second opinion examination with Dr. Lakin with
respect to the accepted orthopedic conditions of cervical sprain, thoracic sprain, and lumbar
sprain.10 In his report, Dr. Lakin reviewed her medical history and presented findings on physical
examination. He opined that appellant’s employment-related conditions were no longer active
because of a normal physical examination with minimal tenderness on examination. Dr. Lakin
opined that she had no need for additional treatment as she reached MMI and she was capable of
5

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
7

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8
A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman and G. Peake, 41 ECAB 361, 364 (1990).
9

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

10

See 20 C.F.R. § 10.320.

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performing her usual job without restrictions. The Board has reviewed his opinion and finds that
it has reliability, probative value, and convincing quality with respect to its conclusions regarding
the relevant issue in the present case.11 Dr. Lakin’s opinion is based on a proper factual and
medical history and he thoroughly reviewed the SOAF and medical records.12 He also provided
medical rationale explaining that appellant no longer had residuals or disability caused by the
accepted sprain conditions. The Board thus finds that OWCP properly relied on Dr. Lakin’s
second opinion report in terminating her wage-loss compensation and medical benefits for the
accepted orthopedic conditions of cervical sprain, thoracic sprain, and lumbar sprain.13
As noted, OWCP’s hearing representative amended the accepted conditions to include
cervical radiculopathy, based upon appellant’s 2015 second opinion examination. The hearing
representative, however, found that appellant’s cervical radiculopathy had resolved as of
April 30, 2018, as Dr. Vigman did not find evidence of cervical radiculopathy. The Board notes
that the record contains 2018 treatment notes from Dr. Weber, a chiropractor, who diagnosed
cervical radiculopathy. Dr. Weber is only considered to be a qualified physician under FECA to
the extent he diagnoses a subluxation demonstrated by x-ray.14 Consequently, he is not considered
a physician under FECA and his opinions do not constitute probative medical evidence.15 Thus,
there is no current objective medical examination finding or diagnostic testing which establishes
evidence of a cervical radiculopathy. The Board accordingly finds that OWCP properly
determined that the accepted cervical radiculopathy condition had resolved.
The Board further finds that OWCP has not met its burden of proof to terminate her wageloss compensation and medical benefits for the accepted condition of post-concussion syndrome.
OWCP referred appellant for a second opinion neurological evaluation with Dr. Vigman
to determine whether she had ongoing residuals or disability with regards to the accepted postconcussion syndrome. It noted that it provided him with a SOAF, the medical record, and a list of
questions, which he acknowledged. In his April 30, 2018 report, Dr. Vigman noted the history of
the employment injury, reviewed the medical records and the SOAF and found that there was no
evidence of a head injury or loss of consciousness. He opined that since appellant had not
experienced a head injury or loss of consciousness, her neurological diagnoses related to cerebral
functioning, including neuropsychological and various headaches, were not due to the
11

C.E., Docket No. 19-0661 (issued October 1, 2019); see also R.W., Docket No. 12-0375 (issued
October 28, 2013).
12

See M.H., Docket No. 17-0210 (issued July 3, 2018); Melvina Jackson, 38 ECAB 443 (1987).

13

K.W., Docket No. 19-1224 (issued November 15, 2019).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); B.K., Docket No. 19-0829 (issued September 25, 2019); T.C.,
Docket No. 19-0227 (issued July 11, 2019); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006) (under FECA the term physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by the applicable
state law).
14

15

R.D., Docket No. 19-1528 (issued January 17, 2020); see Jay K. Tomokiyo, 51 ECAB 361 (2000).

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December 27, 2012 employment injury. Dr. Vigman concluded that she had reached MMI from
a neurological standpoint with no permanency and that she could return to her usual job without
any restrictions. OWCP’s hearing representative found that Dr. Vigman’s examination showed
that the accepted post-concussion syndrome condition, even if correctly diagnosed, was no longer
active.
The Board notes that the list of questions sent to Dr. Vigman directed him to refer to the
SOAF and to use the SOAFs as the framework for his answers. OWCP’s procedures dictate that
when an OWCP medical adviser, second opinion specialist, or referee physician renders a medical
opinion based on a SOAF which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is seriously diminished
or negated altogether.16 Dr. Vigman did not use the SOAF as the framework in forming his
opinion. Rather, as counsel properly alleged on appeal, Dr. Vigman based his opinion that
appellant no longer had residuals or disability from the accepted post-concussion syndrome as he
had concluded that since she did not suffer a head injury or loss of consciousness. As he did not
accept findings provided in the SOAF, which specifically noted the acceptance of the postconcussion syndrome condition, the probative value of his opinion is diminished and insufficient
to be afforded the weight of the medical evidence.17 The Board therefore finds that OWCP failed
to meet its burden of proof in terminating appellant’s wage-loss compensation and medical
benefits, effective July 22, 2018, for the accepted condition of post-concussion syndrome.
On appeal, counsel contends that OWCP’s decisions did not refer to the psychological
injuries that appellant also suffered as a result of the employment injury. For conditions not
accepted as being employment related, it is the employee’s burden to provide rationalized medical
evidence sufficient to establish causal relationship.18
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits for the accepted conditions of cervical sprain, thoracic
sprain, lumbar sprain, and cervical radiculopathy. However, the Board finds that OWCP did not

16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); see J.T., Docket No. 18-1300 (issued March 22, 2019); L.J., Docket No. 14-1682 (issued
December 11, 2015).
17

See J.T., id.; L.J., Docket No. 16-1852 (March 22, 2018).

18
See L.B., Docket No. 19-1380 (issued February 11, 2020); G.A., Docket No. 09-2153 (issued June 10, 2010);
Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51 ECAB 638 (2000).

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meet its burden of proof to terminate her wage-loss compensation and medical benefits for the
accepted condition of post-concussion syndrome.
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part.
Issued: May 14, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Edison, NJ, Employer
__________________________________________

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

Docket No. 15-573
Issued: May 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 13, 2015 appellant, through counsel, filed a timely appeal from a
September 15, 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 sustained a low back injury in the performance of duty on
July 31, 2012.
FACTUAL HISTORY
This is the second appeal before the Board. On August 7, 2012 appellant, then a 43-yearold clerk, filed a claim for traumatic injury alleging that he developed lower back pain and
numbness in both legs and feet due to twisting and turning while moving boxes and turning on a
1

5 U.S.C. § 8101 et seq.

machine on July 31, 2012. He also had previously accepted claims. OWCP file number
xxxxxx049, was accepted for injury of August 19, 2003, the nature of this injury is unclear. Its
file number xxxxxx692 was accepted for a back injury on November 8, 2009. Appellant
returned to work on May 25, 2012 following lumbar surgery for the November 8, 2009 injury.
In an August 7, 2012 statement, appellant asserted that on July 31, 2012 while at work he
experienced lower back pain and numbness down both legs beginning at 12:45 a.m., which
worsened until he went home three hours later. In an August 15, 2012 work capacity evaluation,
Dr. Frank M. Moore, a Board-certified neurosurgeon, found appellant disabled due to pain from
twisting following a lumbar fusion procedure. He stated that appellant might not be able to
return to his position until further notice.
Appellant submitted a narrative statement dated September 6, 2012, which noted that he
was working on a conveyor belt on July 31, 2012 lifting boxes that weighed between 5 and 70
pounds. He stated that he had to twist and reach to lift the boxes and place them on the belt.
Appellant stated that he had no pain when he began working on July 31, 2012, but at 3:30 a.m.
he asked to leave work due to his back pain. He stated that his supervisors required him to file a
new injury form despite his statements that his pain was the result of the prior November 8, 2009
injury, under case file number xxxxxx692.
By decision dated September 27, 2012, OWCP denied appellant’s claim because he failed
to submit any medical evidence to establish a diagnosed condition causally related to his July 31,
2012 employment incident.
On September 22, 2012 Dr. Moore performed a laminectomy/intervertebral fusion
procedure to ameliorate L3-4 and L4-5 spinal stenosis, discogenic disease, and instability by
fusing the L3-4 and L4-5 disc levels
In a February 6, 2013 report, Dr. Moore stated that he had examined appellant on
August 15, 2012, at which time he complained of increasing low back symptomatology. He
stated that appellant had symptoms of mechanical low back pain with radiculopathy and that he
was not fit to work in his current job description. Dr. Moore recommended that appellant be
taken off work. He opined that the July 31, 2012 lifting and twisting incident caused an
aggravation of appellant’s preexisting lower back condition. After performing surgery on
September 22, 2012 Dr. Moore reexamined appellant on September 24, 2012 and advised that he
had increasing low back symptomatology. Appellant underwent a computerized axial
tomography (CAT) scan of the lumbosacral spine, which showed that the area of surgery from
L3 to L5 had healed properly, but that he had degenerative changes and facet arthropathy at
L5-S1.
Dr. Moore related that appellant’s symptoms were progressively worsening and he
recommended a definitive myelogram and postmyelogram CAT scan to accurately diagnose
appellant’s condition. The myelogram was performed on December 4, 2012. Dr. Moore found
that the area of surgery from L3 to L5 was fully decompressed and he noted a progression of
stenosis and nerve root compression at the L5-S1 level. At this point he considered appellant to
be a candidate for extension of the decompression and fusion to include L5-S1.

2

On January 31, 2013 appellant underwent an “uneventful” removal of the instrumentation
with extension of decompression to L5-S1 and reinstrumentation at that level. Dr. Moore opined
that appellant’s job description entailed repetitive heavy lifting with a twisting motion, which
was responsible for his recurrent symptomatology of lumbar pain with lower extremity
radiculopathy, including weakness, and numbness in both legs. He concluded that this caused
the need for the surgical decompression which was performed on January 31, 2013.
By decision dated March 20, 2013, an OWCP hearing representative affirmed the
September 27, 2012 decision. He found that the evidence failed to establish the specific
employment incident on July 31, 2012 and that by August 15, 2012 his symptoms had improved.
In a March 19, 2014 decision,2 the Board found that the evidence was sufficient to
establish the incident on July 31, 2012, but that appellant had failed to provide sufficient medical
evidence to establish an aggravation of his low back condition as a result of the July 31, 2013
work incident. The Board, therefore, affirmed the March 20, 2013 decision. The complete facts
of this case are set forth in the Board’s March 19, 2014 decision and are herein incorporated by
reference.
Appellant requested reconsideration on April 28, 2014. In support thereof, he submitted
a report dated April 14, 2014 from Dr. Moore stated:
“In order to further complete [appellant’s] documentation, I would like to state
that my professional opinion is that there is a direct causal relationship between
[his] condition and his employment activities on July 31, 2012.
“Prior to that day, [appellant] had mild discomfort in the lumbosacral area.
Following that day he had acute exacerbation of his underlying symptoms with
debilitating pain and he is unable to return to his regular job description.
“As a result of this injury, [appellant] required additional care and surgery. This
care and surgery was related to this accident dated July 31, 2012.”
By decision dated May 9, 2014, OWCP denied modification of the prior decision.
On July 18, 2014 appellant again requested reconsideration. He submitted a July 14,
2014 report from Dr. Moore. In the July 14, 2014 report, Dr. Moore stated:
“The purpose of this letter is to further discuss the causal relationship between
[appellant’s] symptomatology and employment activities on July 31, 2012. On
that date, as noted on [appellant’s] statement, he noted increasing low back pain
as he was performing activities that included twisting, bending, and lifting. This
was an acute exacerbation of his underlying symptoms and he had to stop
working on that day and return home.

2

Docket No. 13-1372 (issued March 19, 2014).

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“[Appellant] is status post a prior L3-4, L4-5 decompression, fusion, and
instrumentation. I do believe that following the accident that occurred on July 31,
2012 he sustained disc herniation at stenosis at the L5-S1 level, an adjacent level
to prior fusion.
“Within a reasonable degree of medical certainty, I do believe that [appellant’s]
subsequent symptoms were related to this accident dated July 31, 2012.
Post-traumatic imaging did demonstrate disc disease with stenosis at the LS-S1
level. This eventually required further surgery at that level.
“Adjacent level disease is not uncommon following prior surgery and activities
performed on July 31, 2012 aggravated [appellant’s] low back condition requiring
additional treatment and surgery.”
By decision dated September 15, 2014, OWCP denied modification of the prior decision,
after merit review.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing that 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether “fact of injury” has been established. The
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The employee must also
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.5
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

3

Supra note 1.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

4

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.7
An award of compensation may not be based on surmise, conjecture or speculation.
ANALYSIS
In the prior appeal, the Board accepted that the alleged employment factors occurred on
July 31, 2012, but that appellant had not submitted sufficient evidence to establish an
aggravation of his back condition due to these factors. The Board finds that he has failed to
establish a back injury causally related to the accepted events of July 31, 2012.
Counsel argues on appeal that Dr. Moore’s April 14 and July 14, 2014 reports provided
sufficient medical evidence to establish a causal relationship between appellant’s July 31, 2012
work incident and the aggravation of his lower back condition. He contends that Dr. Moore’s
April 14, 2014 report specifically stated that the activities in which appellant engaged during the
July 31, 2012 work incident aggravated his low back condition. Counsel asserted that, in his
July 14, 2014 report, Dr. Moore clarified that appellant’s work activities on July 31, 2012,
including twisting, bending, and lifting, aggravated his low back condition.
Appellant claimed injury on August 7, 2012, alleging that he developed lower back pain
as well as numbness in both legs and feet due to twisting and turning while moving boxes and
turning on a machine on July 31, 2012. Evidence provided by him, which had not already been
reviewed by the Board was included in April 14 and July 14, 2014 reports from Dr. Moore.
In his April 14, 2014 report, Dr. Moore opined that there was a direct causal relationship
between appellant’s condition and his employment activities on July 31, 2012. He advised that,
prior to that day, appellant had mild discomfort in the lumbosacral area; following that day he
had acute exacerbation of his underlying symptoms, with debilitating pain, and was unable to
return to his regular job. As a result of this injury, appellant required additional care and surgery,
which was related to the July 31, 2012 work incident. Dr. Moore in essence was stating that
causal relationship existed between appellant’s July 31, 2012 work duties and his current
condition because appellant only had mild discomfort in his lumbosacral area before that day but
was symptomatic afterwards. A medical opinion regarding causal relationship based on the lack
of symptoms before the injury is insufficient, however, without supporting medical rationale, to
establish causal relationship.8 Dr. Moore did not explain, with medical rationale, how the
accepted events of July 31, 2012 actually caused or aggravated appellant’s diagnosed back
condition.
6

Id.

7

See Joe T. Williams, 44 ECAB 518, 521 (1993).

8

See M.D., Docket No. 14-1700 (issued December 1, 2014).

5

Dr. Moore reiterated in his July 14, 2014 report that there was a causal relationship
between appellant’s symptomatology and his employment activities on July 31, 2012. Appellant
indicated in his August 7 and September 6, 2012 statements that he had increasing low back pain
as he was performing activities which included twisting, bending, and lifting. Dr. Moore advised
that this was an acute exacerbation of appellant’s underlying symptoms and as a result he had to
stop working that day. He concluded that, following the July 31, 2012 work incident, appellant
sustained disc herniation and stenosis at the L5-S1 level, an adjacent level to prior fusion.
Dr. Moore opined that, within a reasonable degree of medical certainty, he believed that
appellant’s subsequent symptoms were related to the July 31, 2012 work incident and advised
that post-traumatic imaging did demonstrate disc disease with stenosis at the LS-S1 level, which
eventually required further surgery at that level. He stated that adjacent level disease was not
uncommon following prior surgery and that the activities performed on July 31, 2012 aggravated
appellant’s low back condition, requiring additional treatment and surgery. Again, Dr. Moore’s
reports do not explain how appellant’s work activities on July 31, 2012 would have
physiologically caused appellant’s diagnosed disc herniation and stenosis at the L5-S1 level.
Medical rationale is particularly important in establishing this claim, as it is clear from the record
that appellant had preexisting back conditions.
Neither the fact that appellant’s condition became apparent during a period of
employment, nor the belief that his condition was caused, precipitated, or aggravated by his
employment is sufficient to establish causal relationship.9 The Board finds that he has not
established that his current back conditions were caused by the accepted work incident on
July 31, 2012.
CONCLUSION
The Board finds that appellant has not met his burden of proof.

9

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the September 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Beckley, WV, Employer
__________________________________________

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

Docket No. 09-2231
Issued: May 14, 2010

Case Submitted on the Record

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

JURISDICTION
On September 8, 2009 appellant filed a timely appeal from the March 12 and August 20,
2009 decisions of the Office of Workers’ Compensation Programs that denied her claim for a
schedule award. 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 established that she sustained impairment to a scheduled
member due to her accepted lumbosacral strain.
FACTUAL HISTORY
On May 15, 2001 appellant, then a 48-year-old medical technician, sustained an
employment-related lumbosacral strain when she prevented a patient’s fall. A May 18, 2001
x-ray of the lumbosacral spine demonstrated degenerative changes in the facet joint between
L4-5 and L5-S1. March 21, 2002 electromyographic (EMG) and nerve conduction studies

(NCS) of the lower extremities and lumbar musculative were within normal limits. Appellant
returned to limited duty for four hours daily on October 1, 2001 and to full eight-hour duty on
December 7, 2001. She filed a recurrence claim on September 5, 2002. Appellant returned to a
full-time modified clerical position on March 19, 2003. In decisions dated from April 17, 2003
to March 7, 2007, the Office denied appellant’s recurrence claim.1
On February 1, 2009 she submitted a schedule award claim and, by letter dated
February 9, 2009, the Office informed her that she should provide a physician’s assessment,
based on loss of function of the lower extremities, in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides).2 She was provided a form letter to give her physician for a lower extremity
impairment evaluation and given 30 days to respond.
A January 21, 2007 magnetic resonance imaging (MRI) scan of the lumbar spine
demonstrated mild encroachment on the neural foramina at L3-4, concentric bulging of the L4-5
disc with possible nerve root impingement and mild concentric bulging at L5-S1 with possible
nerve root impingement, and a December 10, 2008 MRI scan report noted no interval change.3
By decision dated March 12, 2009, the Office denied appellant’s claim for a schedule
award, finding that she had not provided the requested medical evidence.
On March 18, 2009 appellant, through her attorney, requested a hearing and submitted a
March 2, 2009 report from Dr. Robert P. Kropac, an attending orthopedic surgeon. He noted the
history of injury and medical treatment and listed her complaints of low back pain. Physical
examination demonstrated tenderness from L2 to S1 with limited range of motion of the
lumbosacral spine and decreased sensation to light touch over the entire lateral aspect of the left
lower extremity from the trochanteric eminence to the lateral aspect of the left foot, not in a
dermatomal pattern, normal strength and no atrophy. Range of motion of all joints of the lower
extremities was full. Dr. Kropac diagnosed chronic lumbosacral musculoligamentous strain
secondary to the May 15, 2001 injury with subjective complaints, clinical findings and MRI scan
findings consistent with the diagnosis. He advised that appellant had reached maximum medical
improvement and had residuals of the employment injury. Dr. Kropac provided an impairment
evaluation, using Chapter 17 (The Spine and Pelvis), of the sixth edition of the A.M.A., Guides,
concluding that, based on Table 17-6, Table 17-7 and Table 17-9, appellant had a two percent
whole person impairment.4
1

In the most recent decision, dated March 7, 2007, the Office denied appellant’s January 23, 2007 request for
reconsideration of a January 25, 2005 decision on the grounds that she failed to establish clear evidence of error.
Appellant did not file an appeal with the Board of the March 7, 2007 decision.
2

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

3

Appellant also submitted MRI scan reports dated August 2, 2001 and February 20, 2003 and a November 19,
2001 lumbar myelogram and computerized tomography report that showed similar findings.
4

Dr. Kropac submitted reports dated from December 5, 2002 to December 1, 2008 describing appellant’s
complaints of back pain, provided physical examination findings, and diagnosed lumbosacral musculoligamentous
strain.

2

At the June 24, 2009 hearing, counsel inquired as to what conditions had been accepted
and requested that Dr. Kropac’s impairment evaluation be forwarded to an Office medical
adviser. Appellant testified that her medical condition had deteriorated. In a June 25, 2009
report, Dr. Kropac noted appellant’s complaint of persistent back pain, radiating to both
extremities with numbness and tingling. Physical examination findings included decreased
sensation in the great toe to light touch and diminished lumbosacral spine range of motion.
By decision dated August 20, 2009, an Office hearing representative found the medical
evidence insufficient to establish permanent impairment and affirmed the March 12, 2009
decision. She noted that strains were not typically considered permanent and that no impairment
of a scheduled member was described.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,5 and its
implementing federal regulations,6 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.7 For decisions from February 1, 2001 through April 30, 2009, the fifth edition of the
A.M.A., Guides was used to calculate schedule awards.8 For decisions issued after May 1, 2009,
the sixth edition will be used.9
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the spine.10 In
1960, amendments to the Act modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, a
claimant may be entitled to a schedule award for permanent impairment to an extremity even
though the cause of the impairment originates in the spine.11 In determining the amount of the
schedule award for a member of the body that sustained an employment-related impairment,

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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

9

FECA Bulletin No. 09-03 (issued March 15, 2009); see also Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
10

Pamela J. Darling, 49 ECAB 286 (1998).

11

Thomas J. Engelhart, 50 ECAB 319 (1999).

3

preexisting impairments are to be included in the evaluation of permanent impairment.12 The
Act does not authorize schedule awards for permanent impairment of the whole person.13
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.14
ANALYSIS
The Board finds this case is not in posture for decision. Dr. Kropac’s March 2, 2009
report included an impairment rating of appellant’s lumbar spine, but as noted, a schedule award
is not payable under the Act for injury to the spine.15 He rated a whole person impairment but
the Act does not authorize schedule awards for permanent impairment of the whole person.16
Dr. Kropac provided physical examination findings including decreased sensation to light touch
over the entire lateral aspect of the left lower extremity. In a June 25, 2009 report, he noted
decreased sensation in the great toe. A claimant may be entitled to a schedule award for
permanent impairment to an extremity even though the cause of the impairment originated in the
spine.17
In this case, the hearing representative made a medical determination as to the injury
appellant sustained not causing or contributing to any permanent impairment without the benefit
of medical advise or review by an Office medical adviser. Office procedures provide that, after
obtaining all necessary medical evidence, the file should be routed to the Office medical adviser
for an opinion concerning the nature and percentage of any impairment in accordance with the
A.M.A., Guides.18 In this case, none of the medical evidence was forwarded to an Office
medical adviser for review. For these reasons, the March 12 and August 20, 2009 decisions will
be set aside and the case remanded to the Office for review of the medical record by an Office
medical adviser. Following such development as the Office deems necessary, it shall issue an
appropriate merit decision.

12

B.P., 60 ECAB ____ (Docket No. 08-1457, issued February 2, 2009).

13

D.J., 59 ECAB ____ (Docket No. 08-725, issued July 9, 2008).

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
15

Pamela J. Darling, supra note 10.

16

D.J., supra note 13.

17

Thomas J. Engelhart, supra note 11.

18

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

4

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 20 and March 12, 2009 decisions of the
Office of Workers’ Compensation Programs be set aside. The case is remanded to the Office for
proceedings consistent with this decision of the Board.
Issued: May 14, 2010
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 16-0364
Issued: June 22, 2016

Case Submitted on the Record

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

JURISDICTION
On December 21, 2015 appellant, through counsel, filed a timely appeal from a July 28,
2015 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 more than five percent permanent impairment of each
lower extremity, for which she previously received schedule awards.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board on nonmerit issues.2 The facts and
circumstances of the prior appeal are incorporated by reference. The relevant facts follow. On
September 14, 2005 appellant, then a 45-year-old associate advocate, filed a traumatic injury
claim (Form CA-1) alleging that on September 9, 2005 she injured her knees, left elbow, and
three fingers on her right hand when she slipped and fell while walking to her car in the
performance of duty. She stopped work on September 9, 2005. OWCP accepted appellant’s
claim for bilateral knee strain. Appellant was on and off work and received disability
compensation for intermittent periods.
On July 16, 2008 appellant filed a claim for a schedule award (Form CA-7).
By letter dated October 29, 2008, OWCP advised appellant that, under FECA, schedule
awards were not granted for soft tissue injuries such as sprains and strains and requested that she
provide medical evidence to establish that she sustained a bilateral knee injury causally related to
her September 9, 2005 employment injury, which warranted a schedule award.
In a December 4, 2008 report, Dr. Anuj Gupta, Board-certified in orthopedic surgery,
related appellant’s complaints of bilateral anterior knee pain and conducted an examination. He
observed mild swelling in both joints and maximum tenderness over the lateral facet of both
patellofemoral compartments with no tenderness or instability was noted medially and laterally.
Dr. Gupta diagnosed bilateral knee arthrosis and opined that the primary cause of appellant’s
knee pain was chronic arthrosis of both knees and significant loss of the patellofemoral cartilage.
He reported that appellant did not require surgery and had reached maximum medical
improvement. Dr. Gupta advised that appellant could continue working full duty.
Utilizing Table 17-31 of the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001), Dr. Gupta determined
that appellant had 4 percent whole person impairment and 10 percent impairment of the lower
extremity. He explained that because appellant merely exacerbated a preexisting condition as a
result of her work injury only 50 percent of the impairment rating was work related. Dr. Gupta
concluded, therefore, that appellant had 2 percent whole person permanent impairment and 5
percent impairment of the lower extremity for each knee for a total of 10 percent permanent
impairment of the lower extremities.
On September 2, 2009 appellant filed an additional claim for a schedule award.
In a letter dated September 9, 2009, OWCP requested that appellant’s physician provide
his opinion on whether appellant had reached maximum medical improvement and whether she
sustained any impairment in accordance with the sixth edition of the A.M.A., Guides. No
response was received.
By decision dated November 16, 2009, OWCP denied appellant’s schedule award claim
on the basis of insufficient medical evidence. It found that she did not submit a report from her
2

Docket No. 11-677 (issued September 26, 2011).

2

treating physician which established that she sustained a permanent impairment under the sixth
edition of the A.M.A., Guides due to her September 9, 2005 employment injury.
On November 5, 2010 OWCP received appellant’s request, through counsel, for
reconsideration. Appellant submitted an October 21, 2010 report by Dr. Gupta who related
appellant’s complaints of continued bilateral knee pain. Dr. Gupta noted that he recalculated his
previous impairment rating to the sixth edition. Referencing Table 16-3 of the sixth edition of
the A.M.A., Guides, he reported that appellant was a class 1 for osteoarthritis of both knee joints,
which correlated to 10 percent lower extremity impairment for each side, for a total of 20 percent
impairment of the bilateral lower extremities. Dr. Gupta reiterated that because appellant
aggravated a preexisting condition, only 50 percent of the impairment rating was attributable to
her work injury, which lowered appellant’s impairment rating to 10 percent permanent
impairment of the bilateral lower extremities.
By decision dated November 23, 2010, OWCP denied appellant’s request for
reconsideration finding that she did not submit any evidence that warranted further review of the
merits. It found that the medical evidence was either duplicative or immaterial to appellant’s
schedule award claim because the diagnosed condition was unrelated to appellant’s work injury.3
Appellant filed an appeal to the Board. In a decision issued on September 26, 2011, the
Board found that Dr. Gupta’s October 21, 2010 report constituted new evidence that was relevant
to appellant’s schedule award claim. The Board remanded the case to OWCP to review this
evidence and further develop the case as it deemed necessary.4
Following the Board’s September 26, 2011 decision, OWCP referred appellant’s claim to
an OWCP medical adviser to determine whether appellant had reached maximum medical
improvement and sustained permanent impairment to her lower extremities. In a handwritten
October 7, 2011 report, Dr. James W. Dyer, a Board-certified orthopedic surgeon and OWCP
medical adviser, noted that appellant’s claim was accepted for bilateral knee strain. He
recounted that appellant’s treating physician relied on Table 16-3 of the sixth edition of the
A.M.A., Guides and assigned 10 percent permanent impairment for each knee due to arthritis.
Dr. Dyer explained that he could not calculate impairment for appellant’s arthritis since this
condition was not accepted by OWCP. He related her complaints of bilateral knee pain as a
result of a fall at work and reported that x-rays revealed a small effusion with normal articular
cartilage and normal ligaments. Dr. Dyer referenced Table 16-2 of the sixth edition of A.M.A.,
Guides and opined that appellant had one percent impairment for each lower extremity. He
noted a maximum medical improvement of October 21, 2010.

3

On December 3, 2010 OWCP received appellant’s request for a telephone hearing before an OWCP Branch of
Hearings and Review hearing representative. Appellant resubmitted Dr. Gupta’s October 21, 2010 medical report.
In a decision dated December 22, 2010, OWCP advised appellant that she was not entitled to an oral hearing
regarding her schedule award claim because she had previously requested reconsideration on the same issue.
4

Docket No. 11-677 (issued September 26, 2011).

3

On December 5, 2011 OWCP granted appellant a schedule award of one percent
permanent impairment for each lower extremity. The award ran for 5.76 weeks from October 22
to December 1, 2010.
On December 14, 2011 OWCP received appellant’s request for a telephone hearing
before an OWCP hearing representative.
By decision dated January 24, 2012, the OWCP hearing representative determined that
Dr. Dyer did not adequately explain how he calculated appellant’s impairment rating as he did
not specify the diagnosis he used or default grade relied upon in his calculation of impairment.
He set aside the December 5, 2011 schedule award decision and remanded the claim for referral
to a second opinion examiner.
Following the December 14, 2011 decision, OWCP prepared a statement of accepted
facts (SOAF) and referred appellant’s claim to Dr. Eric S. Furie, a Board-certified orthopedic
surgeon and second opinion examiner. In a March 20, 2012 report, Dr. Furie described the
September 9, 2005 employment incident and noted that appellant’s claim was accepted for
bilateral knee strain. He related appellant’s complaints of continued bilateral knee pain when
performing activities. Dr. Furie reviewed appellant’s history and conducted an examination. He
observed decreased sensation to light touch in the bilateral feet and decreased sensation at the
level of the left ankle. Examination of appellant’s bilateral knees revealed normal alignment and
no effusion, abrasion, laceration, or ecchymosis. Dr. Furie also reported negative anterior
Lachman examination and negative posterior drawer. He observed tenderness on palpation of
her bilateral patellae, left worse on right, tenderness on palpation of the femoral condyles, and
minimal tenderness on palpation of both lateral joint lines. Dr. Furie recounted that x-rays
revealed no fracture, dislocation, or significant decrease in joint space of both lateral joint lines.
Dr. Furie reported that appellant’s current medical findings no longer supported the
diagnosis of bilateral knee strain but demonstrated a diagnosis of patellofemoral arthrosis. He
explained that her arthrosis may have been aggravated by the fall on her knees and the residual
from the injury was now increased articular cartilage, inflammation, and damage. Dr. Furie
opined that the September 9, 2005 employment injury caused a permanent aggravation of a
preexisting condition. He indicated that the aggravation may cease if appellant underwent
surgical treatment, but if appellant was not interested in surgical intervention then she had
reached maximum medical improvement. Utilizing table 16-3 of the sixth edition of the A.M.A.,
Guides, Dr. Furie noted that appellant’s diagnosis of patellofemoral osteoarthritis was a class 1
Class of Diagnosis (CDX) condition for a default three percent impairment. He assigned grade
modifiers of 2 for Functional History (GMFH), 2 for Physical Examination (GMPE), and 1 for
Clinical Studies (GMCS). Dr. Furie applied the net adjustment formula for a total adjustment of
2, which resulted in 5 percent permanent impairment rating of each lower extremity for a total of
10 percent impairment of the bilateral lower extremities.
In a May 2, 2012 medical adviser report, Dr. Dyer reviewed Dr. Furie’s March 20, 2012
second opinion report and concurred with his calculations that appellant had five percent
permanent impairment for each lower extremity due to her patellofemoral arthrosis. He
indicated that according to Table 16-3 of the sixth edition of the A.M.A., Guides, appellant was a
class 1 diagnosis for default three percent permanent impairment. Dr. Dyer provided grade

4

modifiers of 2 for functional history, 2 for physical examination, and 1 for clinical studies.
Applying the net adjustment formula, he determined that appellant had an adjustment of +2,
which totaled five percent permanent impairment for each lower extremity. Dr. Dyer reported
that since appellant previously received an award for one percent permanent impairment, she was
entitled to an additional four percent impairment for each lower extremity. He indicated that
appellant reached maximum medical improvement on March 20, 2012, the date of Dr. Furie’s
second-opinion report.
On May 7, 2012 OWCP expanded appellant’s claim to include permanent aggravation of
bilateral patellofemoral osteoarthritis of the knees. In a separate decision of the same date, it also
granted her an additional four percent permanent impairment for each lower extremity. The
award ran for 23.04 weeks from March 21 to August 29, 2012. Appellant did not appeal this
schedule award decision.
On March 27, 2014 appellant filed another schedule award claim (Form CA-7).
By letter dated April 7, 2014, OWCP requested that Dr. Gupta provide a medical report
based on a recent examination with his medical opinion on whether appellant had more than five
percent permanent impairment for each lower extremity in accordance with the sixth edition of
the A.M.A., Guides.
In a May 16, 2014 report, Dr. Gupta noted a diagnosis of bilateral knee degenerative joint
disease and related that appellant continued to complain of significant pain within both knee
joints. Upon examination, he observed full extension range of motion to roughly 110 degrees on
both sides and crepitus with the patellofemoral compartment on both sides. Dr. Gupta reported
that radiographs of both knee joints demonstrated fairly stable degenerative changes within both
knee joints. He explained that the symptoms appellant experienced were relatively stable and
that the conservative treatment measures did not provide very much relief in her symptoms.
Dr. Gupta indicated that because appellant’s condition appeared relatively stable, he was not in a
rush to have appellant undergo knee replacement surgery.
The employing establishment submitted a position description of her duties as a lead case
advocate.
OWCP referred appellant’s claim to Dr. Alexander N. Doman, a Board-certified
orthopedic surgeon, for a second opinion examination to determine whether appellant had
increased permanent impairment, in addition to her previously awarded five percent impairment
to each lower extremity, in accordance with the sixth edition of the A.M.A., Guides. In an
August 21, 2014 report, he described the September 9, 2005 employment injury and noted that
her claim was accepted for bilateral knee strain and aggravation of bilateral patellofemoral joint
arthrosis. Dr. Doman related appellant’s continued complaints of bilateral anterior-type knee
pain. Upon examination, he observed tenderness subjectively to pressure under the patellar facet
on both the left and right knee. Range of motion was full for appellant’s left knee and to 138
degrees for the right knee. Dr. Doman reported no knee effusion and no patellofemoral
instability. He recounted that x-rays of the left and right knee were normal and the
patellofemoral joint was well aligned.
Dr. Doman indicated that maximum medical
improvement occurred one year from the date of injury on September 9, 2006. He reported that

5

his impairment evaluation was based on aggravation of chondromalacia of the patella and
explained that this diagnosis was supported by her subjective complaints of knee pain and lack of
objective medical findings. Dr. Doman referenced Table 16-3 of the sixth edition of the A.M.A.,
Guides and determined that appellant was a class 1 injury for a criterion of soft tissue. He
recounted grade modifiers of 1 for functional history, 1 for physical examination, and 0 for
clinical studies, which resulted in a grade B classification. Thus, Dr. Doman concluded that
appellant had one percent permanent impairment of each lower extremity.
In a letter dated September 8, 2014, OWCP requested that Dr. Doman clarify whether his
impairment rating of one percent for each lower extremity was appellant’s total impairment
rating or in excess of the five percent permanent impairment that she already received.
On September 13, 2014 Dr. Doman provided a clarification report and explained that the
one percent impairment was a final, total impairment and was not in excess of the previously
given five percent impairment of each lower extremity.
In September 25 and 29, 2014 reports, Dr. Dyer reviewed Dr. Doman’s August 21, 2014
second opinion report and September 13, 2014 addendum. He related that in 2005 appellant had
a fall at work which resulted in a bilateral knee strain and aggravation of chondromalacia of her
bilateral knees. Dr. Dyer noted a date of maximum medical improvement of September 9, 2006,
approximately one year after appellant’s work injury. He indicated that a magnetic resonance
imaging (MRI) examination showed no fracture but a small effusion. Utilizing Table 16-3 of the
sixth edition of the A.M.A., Guides, Dr. Dyer opined that appellant was a class 1 B for knee
sprain, which resulted in one percent permanent impairment of each lower extremity. He noted
that he agreed with Dr. Doman that appellant had a class 1 diagnosis which resulted in one
percent impairment, not in excess of the previously awarded five percent permanent impairment.
In a decision dated September 29, 2014, OWCP denied appellant’s claim for an increased
schedule award. It found that the medical evidence failed to establish that appellant sustained
more than five percent impairment of each lower extremity as a result of her work injury.
On October 6, 2014 OWCP received appellant’s request, through counsel, for a telephone
hearing before an OWCP hearing representative, which was held on May 12, 2015. Appellant
was represented by counsel. She related that she had other injuries to her right foot, hip, and
back, but had not had any other injuries to her knees other than the September 9, 2005
employment injury. Counsel alleged that OWCP did not follow proper due process procedure
because it did not mail a “due process letter” to the medical adviser asking that he explain why
the second opinion report was more probative than appellant’s treating physician’s opinion. He
also asserted that OWCP should have referred appellant for an impartial medical examination as
a conflict in medical evidence existed between OWCP’s physicians and appellant’s physicians.
Appellant resubmitted Dr. Gupta’s May 16, 2014 report.
By decision dated July 28, 2015, the OWCP hearing representative affirmed the
September 29, 2014 OWCP decision.

6

LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim, including an injury was sustained in the performance of
duty as alleged and that an employment injury contributed to the permanent impairment for
which schedule award compensation is alleged.5 Where a claimant has previously received a
schedule award and subsequently claims an additional schedule award due to a worsening of his
or her condition, the claimant bears the burden of proof to establish a greater impairment
causally related to the employment injury.6
The schedule award provision of FECA7 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter 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 the appropriate standards for evaluating schedule
losses.8 Effective February 2009 the sixth edition of the A.M.A., Guides was adopted by
OWCP.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.10 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition, which is then adjusted by grade modifiers based on functional history,
physical examination, and clinical studies. The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).11 Evaluators are directed to provide reasons for their
impairment rating choices, including the choices of diagnoses from regional grids and
calculations of modifier scores.12
In determining impairment for the lower extremities, an evaluator must establish the
appropriate diagnosis for each part of the lower extremity to be rated. With respect to the knee,
5

See A.M., Docket No. 13-0964 (issued November 25, 2013).

6

Edward W. Spohr, 54 ECAB 806 (2003).

7

5 U.S.C. §§ 8101-8193.

8

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
10

A.M.A., Guides (6th ed. 2009), p. 3, section 1.3.

11

Id. at 494-531.

12

Id. at 23-28; see also R.V., Docket No. 10-1827 (issued April 1, 2011).

7

the relevant portion of the leg for the present case, reference is made to Table 16-3 (Knee Regional
Grid) beginning on page 509.13 After the class of diagnosis CDX is determined from the Knee
Regional Grid (including identification of a default grade value), the net adjustment formula is
applied using the grade modifier for functional history, grade modifier for physical examination
and grade modifier for clinical studies.14
ANALYSIS
OWCP initially accepted appellant’s claim for bilateral knee strain and later for
permanent aggravation of bilateral patellofemoral osteoarthritis of the knees. It previously
issued schedule awards totaling five percent for permanent impairment each of appellant’s left
and right lower extremity. On March 27, 2014 appellant filed a claim for an increased schedule
award. The Board has evaluated the evidence, and finds that appellant has not established
impairment greater than five percent impairment of each lower extremity, for which she was
previously awarded.
OWCP referred appellant’s claim to Dr. Doman for a second opinion examination to
determine whether appellant sustained additional impairment of her bilateral lower extremities in
excess of her previous five percent award according to the sixth edition of the A.M.A., Guides.
In an August 21, 2014 report, Dr. Doman accurately described the September 9, 2005
employment injury and noted that her claim was accepted for bilateral knee strain and
aggravation of bilateral patellofemoral joint arthrosis. Upon examination, he observed
tenderness to pressure under the patellar facet on both knees and no effusion or patellofemoral
instability. Range of motion was full for appellant’s left knee and to 138 degrees for the right
knee. Dr. Doman indicated that maximum medical improvement occurred one year from the
date of injury on September 9, 2006.
Utilizing Table 16-3 of the sixth edition of the A.M.A., Guides, Dr. Doman determined
that appellant was a class 1 injury for a criterion of soft tissue. He explained that his
classification was based on the diagnosis of aggravation of chondromalacia of the patella and
supported by appellant’s subjective complaints of knee pain with lack of objective medical
findings. Dr. Doman reported grade modifiers of 1 for functional history, 1 for physical
examination, and 0 for clinical studies, which resulted in a grade B classification. After applying
the net adjustment formula, he opined that appellant had one percent permanent impairment of
each lower extremity. In a September 13, 2014 addendum, Dr. Doman clarified that the one
percent permanent impairment was a final, total impairment and not in addition to the previously
awarded five percent. In September 25 and 29, 2014 report, Dr. Dyer, an OWCP medical
adviser, reviewed Dr. Doman’s August 21 and September 13, 2014 reports and agreed with his
evaluation and calculations that appellant had one percent permanent impairment of each
bilateral lower extremity.
The Board finds that Dr. Doman and the OWCP medical adviser properly applied the
A.M.A., Guides and determined that appellant had one percent permanent impairment of each
13

See A.M.A., Guides (6th ed. 2009) 509-11.

14

Id. at 515-22.

8

bilateral lower extremity. Both physicians referenced the appropriate tables concerning the
nature of appellant’s condition based on examination findings and provided medical rationale for
the percentage of impairment in accordance with the A.M.A., Guides. As appellant has
previously received a schedule award in this amount, she is not entitled to an additional schedule
award.
The only other current medical evidence of record was a May 16, 2014 report by
Dr. Gupta. Dr. Gupta related appellant’s complaints of significant pain with both knee joints and
noted a diagnosis of bilateral knee degenerative joint disease. Upon examination, he observed
full extension range of motion to roughly 110 degrees on both sides and crepitus with the
patellofemoral compartment. Dr. Gupta reported that appellant’s symptoms were relatively
stable and that conservative treatment measures did not provide much relief. The Board notes
that Dr. Gupta’s report did not address the extent of any permanent impairment due to
appellant’s injury, provide a description of any impairment in accordance with the A.M.A.,
Guides, or opine on whether appellant reached maximum medical improvement. OWCP
procedures provide that to support a schedule award, the file must contain medical evidence
which shows that the impairment has reached a permanent and fixed state and describes the
impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A., Guides.15 Appellant did not submit
such evidence. Accordingly, the Board finds that since there is no current medical report that
provides an impairment rating there is no medical basis to support appellant’s claim for an
additional schedule award.16
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment.
CONCLUSION
The Board finds that appellant has not established more than five percent permanent
impairment of each lower extremity, for which she previously received schedule awards.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.7 (February 2013).
16

W.T., Docket No. 15-214 (issued March 26, 2015).

9

ORDER
IT IS HEREBY ORDERED THAT the July 28, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 22, 2016
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, El Toro, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Ronald S. Webster, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1484
Issued: April 27, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 6, 2020 appellant, through counsel, filed a timely appeal from a February 20,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 20, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained
heart attacks in 2003 and 2007 as a consequence of his accepted employment conditions.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts
are as follows.
In July 1991 OWCP accepted that appellant, then a 37-year-old environmental protection
specialist, sustained an anxiety disorder and an episode of medication dependency, resolved. In
accepting this condition, it acknowledged that appellant had experienced stress due to his job duties
which included establishing required record keeping procedures, reconciling on-hand quantities of
hazardous substances with inventory records, and receiving, storing, and processing hazardous
substances on a daily basis.
Appellant stopped work on July 2, 1990 and later returned to light-duty work.
Appellant subsequently claimed that his angina had been aggravated by his accepted
anxiety disorder. On June 3, 1996 he stopped work when his claim was accepted for a
consequential temporary aggravation of angina. In mid-2003, appellant had a heart attack and, in
August 2003, he underwent triple bypass surgery. In late 2007, he had a second heart attack and
in November 2007 and January 2008, he underwent additional surgical procedures, including a
left heart catheterization and a stent of the saphenous vein graft. Appellant claimed that his 2003
and 2007 heart attacks were causally related to his accepted work conditions.5
In support of his claim, appellant had submitted a March 10, 2008 report of Dr. David H.S.
Iansmith, an attending Board-certified cardiologist, and a March 17, 2009 report of Dr. Frank A.
McGrew, III, an attending Board-certified cardiologist. In August 12 and December 3, 2008
reports, Dr. Matthew Smolin, a Board-certified cardiologist, serving as an OWCP referral
physician, determined that appellant’s accepted work factors had not contributed to his subsequent
two heart attacks.
By decision dated February 6, 2009, OWCP denied appellant’s claim, finding that he had
failed to submit sufficient medical evidence to establish that his heart attacks in 2003 and 2007
were due to his accepted conditions. Appellant requested reconsideration and, by decision dated
June 4, 2009, OWCP denied modification of the February 6, 2009 decision.

4

Docket No. 09-1864 (issued May 7, 2010); Docket No. 12-0906 (issued February 15, 2013); Docket No. 14-0743
(issued September 11, 2014); and Docket No. 16-1582 (issued May 1, 2017).
5

At the time of his 2003 and 2007 heart attacks, appellant was not working for the employing establishment.

2

Appellant appealed to the Board and, by decision dated May 7, 2010,6 the Board affirmed
OWCP’s February 6 and June 4, 2009 decisions.
Appellant requested reconsideration of his claim and submitted a February 2, 2011 letter
from Dr. McGrew who opined that appellant’s angina pectoris and anxiety disorder were related
and were contributing factors to his 2003 and 2007 heart attacks. He also submitted two
January 28, 2011 reports from Dr. Robert Buchalter, an attending Board-certified psychiatrist, who
also opined that appellant’s anxiety disorder contributed to his heart attack.
By decision dated May 23, 2011, OWCP denied modification of its prior decisions.
Appellant again requested reconsideration and submitted a June 21, 2011 report from
Dr. McGrew who indicated that appellant had a stress anxiety disorder, which aggravated and
increased his episodes of angina. Dr. McGrew noted that, based on the affidavit of appellant’s job
description, his work with the employing establishment was stress inducing and constituted
contributing factors to his health.
By decision dated November 16, 2011, OWCP denied modification of the May 23, 2011
decision.
Appellant appealed to the Board and, by decision dated February 15, 2013,7 the Board
affirmed the November 16, 2011 decision.
On November 11, 2013 appellant, through counsel, requested reconsideration of OWCP’s
denial of his claim and submitted an October 30, 2013 report from Dr. McGrew who again opined
that appellant’s accepted condition of aggravation of angina was a contributing factor in the
development and occurrence of his heart attacks.
By decision dated November 18, 2013, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant appealed to the Board and, by decision dated September 11, 2014,8 the Board
set aside OWCP’s November 18, 2013 decision noting that OWCP improperly denied appellant’s
request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). The Board
remanded the case to OWCP and directed it to conduct a proper merit review of his claim pursuant
to 5 U.S.C. § 8128(a), to be followed by a merit decision regarding his claim that his heart attacks
in 2003 and 2007 were related to his accepted work conditions.
On remand OWCP further developed the medical evidence of record. In December 2015,
it referred appellant to Dr. Aftab Shaik, a Board-certified cardiologist, who submitted reports dated
December 31, 2015, March 17, and June 3, 2016. Dr. Shaik advised that tobacco abuse and
hypertension and being overweight were the main risk factors. In March 2016, OWCP referred
appellant to Dr. Melvin Goldin, a Board-certified psychiatrist, who submitted an April 29, 2016
6

Supra note 4.

7

Supra note 4.

8

Supra note 4.

3

report. Dr. Goldin opined that there was no continuing personality disorder nor mental condition
related to his work injury.
By decision dated June 13, 2016, OWCP determined that appellant failed to meet his
burden of proof to establish that his heart attacks were due to his accepted work conditions.
Appellant appealed to the Board and, by decision dated May 1, 2017,9 the Board affirmed the
June 13, 2016 decision.
Appellant, through counsel, requested reconsideration of his claim and submitted a May 2,
2017 report from Dr. Mark Luttrell, a Board-certified psychiatrist, who noted that appellant was
currently under his care for psychotherapy treatment. He also submitted a May 2, 2017 treatment
note from Dr. Luttrell in which he diagnosed depressive disorder and anxiety.
In a May 10, 2017 report, Dr. James Klemis, a Board-certified cardiologist, indicated that
appellant had a history of coronary artery disease with prior bypass surgery and prior percutaneous
intervention. He noted that appellant had chronic angina exacerbated by anxiety and indicated that
there had been a clear correlation between appellant’s prior stressful job and his coronary disease
as was well documented by Dr. McGrew who had followed him since 2009. Dr. Klemis indicated
that he reviewed a note from Dr. McGrew that clearly indicated that appellant met the criteria for
disability and which indicated that his coronary disease likely related, in at least a large degree, to
his prior very stressful job.
In a July 3, 2017 report, Dr. Nadish Garg, a Board-certified cardiologist, indicated that
appellant had a history of myocardial infarction in 2003 and 2007, as well as a history of
hypertension likely related to stress and anxiety, prior tobacco abuse, severe anxiety disorder, and
medication dependence. He reported that previous evaluations by Dr. McGrew had noted that
stress/anxiety had made a significant contribution to appellant’s symptoms of angina, shortness of
breath with exertion, previous myocardial infarction, and coronary artery disease. Dr. Garg
indicated that, upon review of the medical evidence and his own examination on July 3, 2017, he
concurred with Dr. McGrew that recurrent angina and exertional shortness of breath was related
to severe stress and anxiety.
By decision dated November 1, 2017, OWCP found that appellant had not met his burden
of proof to establish that he sustained heart attacks in 2003 and 2007 as a consequence of his
accepted employment conditions.
Appellant, through counsel, requested reconsideration of the November 1, 2019 decision
and submitted a January 26, 2018 report of Dr. Jim Pang, a Board-certified psychiatrist, who noted
that he supported the diagnoses and ﬁndings set forth by Dr. McGrew, which indicated that
appellant’s history of stress anxiety disorder aggravated and increased his episodes of angina and
was a contributing factor to his 2003 and 2007 heart attacks. Dr. Pang noted that he also concurred
that appellant’s continuing anxiety reaction necessarily continued to aggravate and compromise
his cardiovascular condition. He found that appellant was totally and permanently disabled.
In a February 12, 2018 report, Dr. Garg indicated that appellant’s cardiac condition
(coronary artery disease and hypertension) was attributed to severe anxiety disorder. He agreed
9

Supra note 4.

4

with Dr. McGrew and Dr. Buchalter that severe stress “was deemed to be the cause of [appellant’s]
cardiac condition.” Dr. Garg indicated that the relationship of stress to appellant’s heart condition
was ascertained by clinical history and physical examination at time of his initial evaluation and
subsequent follow-up evaluations. He requested that appellant’s application for compensation be
reconsidered and noted, “I believe that his employment was [the] cause of his previous heart
attacks and is contributing to the current cardiac condition.”
By decision dated June 15, 2018, OWCP denied modification of the November 1, 2017
decision.
Appellant, through counsel, requested reconsideration and submitted a July 31, 2018 report
from Dr. Pang who maintained that appellant still had post-traumatic stress disorder after stopping
work for the employing establishment. Dr. Pang indicated that appellant’s acute reaction to stress
and his angina collectively caused his cardiac system to be overworked and caused an increase in
blood pressure. He concluded that appellant’s acute stress reaction was a factor in his 2003 and
2007 heart attacks.
By decision dated November 27, 2018, OWCP denied modification of the June 15, 2018
decision.
Appellant, through counsel requested reconsideration and submitted a February 11, 2019
report of Dr. Pang, which was substantially similar to that contained in his January 26, 2018 report.
He again noted that he supported the diagnoses and ﬁndings put forth by Dr. McGrew, which
indicated that appellant’s history of stress anxiety disorder aggravated and increased his episodes
of angina and was a contributing factor to his 2003 and 2007 heart attacks.
By decision dated February 20, 2020, OWCP denied modification of the November 27,
2018 decision.
LEGAL PRECEDENT
The claimant bears the burden of proof to establish a claim for a consequential injury.10 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. 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.11
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.12 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was

10
V.K., Docket No. 19-0422 (issued June 10, 2020); A.H., Docket No. 18-1632 (issued June 1, 2020); I.S., Docket
No. 19-1461 (issued April 30, 2020).
11

K.W., Docket No. 18-0991 (issued December 11, 2018).

12

G.R., Docket No. 18-0735 (issued November 15, 2018).

5

caused or aggravated by employment factors or incidents, is sufficient to establish causal
relationship.13
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury.14 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.15 When an
injury arises in the course of employment, every natural consequence that flows from that injury
likewise arises out of the employment, unless it is the result of an independent intervening cause
attributable to the claimant’s own conduct.16 Thus, a subsequent injury, be it an aggravation of
the original injury or a new and distinct injury, is compensable if it is the direct and natural
consequence of a compensable injury.17
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he sustained
heart attacks in 2003 and 2007 as a consequence of his accepted employment conditions.
In January 26, 2018 and February 11, 2019 reports, Dr. Pang noted that he supported the
diagnoses and ﬁndings put forth by Dr. McGrew, which indicated that appellant’s history of stress
anxiety disorder aggravated and increased his episodes of angina and was a contributing factor to
his 2003 and 2007 heart attacks. In a July 31, 2018 report, he maintained that appellant still had
post-traumatic stress disorder after stopping work for the employing establishment. Dr. Pang
indicated that appellant’s acute reaction to stress and his angina collectively caused his cardiac
system to be overworked and caused an increase in blood pressure. He concluded that appellant’s
acute stress reaction was a factor in his 2003 and 2007 heart attacks.
The Board finds however, that Dr. Pang’s reports are of limited probative value regarding
appellant’s claim for consequential heart attacks in 2003 and 2007, because he did not provide his
own adequate medical rationale in support of his opinion on causal relationship. Dr. Pang did not
describe appellant’s accepted work conditions in any detail or adequately explain how they could
have contributed to the occurrence of his 2003 and 2007 heart attacks supported by the record. He
noted that his review of the medical records, including the reports of Dr. McGrew, led him to his
conclusion that work conditions contributed to the occurrence of appellant’s 2003 and 2007 heart
attacks, but he did not provide any notable description of the medical records or explain how they
supported his conclusion on causal relationship. The provision of medical rationale is especially
necessary in the present case as appellant had not been exposed to stress in the workplace since he
stopped work in June 1996. Dr. Pang further failed to explain why appellant’s notable nonwork
13

Id.

14

K.S., Docket No. 17-1583 (issued May 10, 2018).

15

Id.

16

A.M., Docket No. 18-0685 (issued October 26, 2018); Mary Poller, 55 ECAB 483, 487 (2004).

17
A.T., Docket No. 18-1717 (issued May 10, 2019); Susanne W. Underwood (Randall L. Underwood), 53 ECAB
139 (2001).

6

risk factors, such as hypertension, overweight status, and past tobacco abuse, were not the sole
cause of his 2003 and 2007 heart attacks. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition has an employment-related cause.18 Therefore, Dr. Pang’s reports are
insufficient to establish appellant’s claim.
In a February 12, 2018 report, Dr. Garg indicated that the relationship of stress to
appellant’s heart condition was ascertained by clinical history and physical examination at the time
of his initial evaluation and subsequent follow-up evaluations. He requested that appellant’s
application for compensation be reconsidered and noted, “I believe that his employment was [the]
cause of his previous heart attacks and is contributing to the current cardiac condition.” In a July 3,
2017 report, Dr. Garg reported that previous evaluations by Dr. McGrew had noted that
stress/anxiety had made a significant contribution to appellant’s symptoms of angina, shortness of
breath with exertion, previous myocardial infarction, and coronary artery disease. He indicated
that, upon review of the medical evidence and his own examination on July 3, 2017, he concurred
with Dr. McGrew that recurrent angina and exertional shortness of breath was related to severe
stress and anxiety. However, Dr. Garg’s opinions in these reports also are of limited probative
value regarding appellant’s claim for consequential heart attacks in 2003 and 2007 because he did
not provide his own adequate medical rationale in support of his opinion on causal relationship.19
Therefore, the July 3, 2017 and February 12, 2018 reports of Dr. Garg are insufficient to establish
appellant’s claim.
Appellant also submitted a May 2, 2017 report from Dr. Luttrell who noted that appellant
was currently under his care for psychotherapy treatment, as well as a May 2, 2017 treatment note
from Dr. Luttrell in which he diagnosed depressive disorder and anxiety. In a May 10, 2017 report,
Dr. Klemis indicated that appellant had a history of coronary artery disease with prior bypass
surgery and prior percutaneous intervention. He indicated that he reviewed a note from
Dr. McGrew that clearly indicated that appellant met the criteria for disability and which indicated
that his coronary disease likely related, in at least a large degree, to his prior very stressful job.
The Board finds that these reports are of no probative value with regard to appellant’s
consequential injury claim because they do not provide an opinion that appellant sustained heart
attacks in 2003 and 2007 as a consequence of his accepted employment conditions. The Board has
held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.20 Therefore, these reports are
insufficient to establish appellant’s claim.
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.

18

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

19

See id.

20

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

7

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he sustained
heart attacks in 2003 and 2007 as a consequence of his accepted employment conditions.
ORDER
IT IS HEREBY ORDERED THAT the February 20, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 27, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8