United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, KIRKWOOD POST
OFFICE, St. Louis, MO, Employer
__________________________________________

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Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0255
Issued: March 11, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 14, 2019 appellant, through counsel, filed a timely appeal from an
October 24, 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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the October 24, 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 appellant has met her burden of proof to establish a re currence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.
FACTUAL HISTORY
On April 19, 2004 appellant, then a 34-year-old city mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed metatarsalgia and chondromalacia of the
patella due to factors of her federal employment, including continuous walking, standing, stair
climbing, and carrying a mail satchel. She noted that she first became aware of her condition and
its relation to her federal employment on February 6, 2004. On the reverse side of the claim form,
appellant’s supervisor noted that she was placed on limited duty on February 7, 2014 with
restrictions of three hours of continuous walking. On October 5, 2007 OWCP accepted her claim
for bilateral plantar fibromatosis and bilateral tarsal tunnel syndrome.
On August 19, 2014 Dr. Shari L. Kaminsky, a podiatrist, provided permanent work
restrictions for an eight-hour day consisting of intermittent walking for one hour, intermittent
standing for two hours, and operating a motor vehicle for one hou r. She also provided lifting
restrictions of no more than 10 pounds.
In a December 16, 2014 form report, Dr. Kaminsky diagnosed plantar fasciitis as well as
tarsal tunnel syndrome and opined that appellant was totally disabled from work from
September 25, 2014 through January 9, 2015. She indicated that appellant could resume regular
work on January 9, 2015.
On December 28, 2014 and January 9, 2015 appellant filed claims for compensation (Form
CA-7) for total disability beginning September 25, 2014 through January 9, 2015.
In a January 16, 2015 development letter, OWCP advised appellant of the deficiencies of
her claim. It requested that she submit additional factual and medical evidence supporting her
claim for total disability beginning September 25, 2014. OWCP further provided appellant with a
questionnaire for completion and requested a report from her physician addressing the relationship
between her disability and her employment injury. It afforded her 30 days to submit the necessary
evidence. No response was received.
By decision dated March 6, 2015, OWCP denied appellant’s claim for a recurrence of total
disability commencing September 25, 2014.
On February 29, 2016 appellant requested reconsideration of the March 6, 2015 decision
and submitted additional evidence in support of her claim.
An August 20, 2014 electromyogram and nerve conduction velocity (EMG/NCV) study
demonstrated bilateral tarsal tunnel syndrome, mild on the right, and moderate on the left.
In notes dated October 16 and November 18, 2014, Dr. Kaminsky found appellant totally
disabled and released her to work without restrictions on November 3, 2014 and December 12,
2014, respectively. On January 29, 2015 she found appellant disabled from work for the period
September 25, 2014 through March 2, 2015.
2

In a January 29, 2015 treatment note, Dr. Kaminsky diagnosed tarsal tunnel syndrome. She
related that appellant felt her foot pain was extreme, but that she was spending very little time on
her feet at work. Dr. Kaminsky noted pain with palpation of the base of the right second toe and
the second metatarsal head as well as the right second intermetatarsal space. She also reported a
positive Tinel’s sign at the tarsal tunnel bilaterally, as well as pain upon palpation of the medial
tarsal area, the flexor halluces brevis, and the arch. Dr. Kaminsky found that she was experiencing
chronic changes from her long-term tarsal tunnel syndrome and recommended a tarsal tunnel
decompression. She noted that appellant was no longer taking prescribed pain medication, which
had relieved some of her foot pain.
On February 13, 2015 Dr. Kaminsky completed a form report diagnosing tarsal tunnel
syndrome and indicating that appellant was totally disabled from work through June 25, 2015. On
March 2, 2015 she again found that appellant was totally disabled from work for the period
September 25, 2014 through June 25, 2015.
On February 13, 2015 appellant responded to OWCP’s development questionnaire and
submitted additional medical evidence. She attributed her recurrence of total disability on
September 25, 2014 to chronic changes from tarsal tunnel syndrome.
On May 6, 2015 Dr. Kaminsky performed a surgical right tarsal tunnel decompression.
Appellant provided notes beginning June 11, 2015 from Brian Harthill, a physical therapist.
On June 24, 2015 Dr. Kaminsky found that appellant was totally disabled from work for
the period September 25, 2014 through September 1, 2015. In a follow-up note dated July 13,
2015, she indicated that appellant could return to light-duty work. Dr. Kaminsky found that
appellant was totally disabled from work for the period September 25, 2014 through July 13, 2015.
Through a separate July 13, 2015 form report, she found that she could returned to light-duty work
with her prior restrictions.
On July 15, 2015 the employing establishment offered appellant a permanent light-duty
position as an accounting support technician. Appellant accepted the position on that date.
In a February 22, 2016 attending physician’s report (Form CA-20), Dr. Kaminsky
diagnosed chronic changes from long-term tarsal tunnel syndrome, including EMG findings, a
positive Tinel’s sign, and musculoskeletal swelling. She checked a box marked “Yes” indicating
that appellant’s condition was caused or aggravated by employment activities and listed walking,
standing, and weight-bearing of postal equipment. Dr. Kaminsky found that appellant was totally
disabled for the period September 25, 2014 through July 13, 2015.
By decision dated May 27, 2016, OWCP denied modification of the March 6, 2015
decision.
On May 23, 2017 appellant resubmitted her August 20, 2014 EMG study. She also
provided a January 22, 2015 right foot magnetic resonance imaging (MRI) scan which
demonstrated mild intermetatarsal bursitis situated between the heads of the second and third
metatarsals.
On December 9, 2016 appellant provided additional physical therapy notes from
Mr. Harthill.
3

In a note dated April 13, 2017, Dr. Kaminsky reviewed appellant’s medical treatment for
tarsal tunnel syndrome. She opined that tarsal tunnel syndrome was caused by overuse from
walking, standing, or pedaling of an automobile for long periods of time. Dr. Kaminsky reviewed
her MRI scan and noted that her symptoms of pain in the right second and third intermetatarsal
spaces was consistent with pain that could radiate from tarsal tunnel syndrome. She noted that
appellant did not have a neuroma or mass on MRI scan. Dr. Kaminsky provided her findings on
physical examination including positive Tinel’s sign of the tarsal tunnel, bilaterally, and pain upon
palpation of the medial tarsal tunnel, flexor hallucis brevis, and the arch. She opined that appellant
was having chronic changes from the long-term tarsal tunnel syndrome and that she believed that
she had a neurological origin for her pain, which was why she recommended tarsal tunnel
decompression. Dr. Kaminsky noted that during the period of disability from September 25, 2014
through July 13, 2015 that she was unable to alleviate her foot pain and felt that keeping her off
work with rest and pain medication would help her functionally.
On May 24, 2017 appellant requested reconsideration of the May 27, 2016 decision.
By decision dated November 16, 2017, OWCP denied modification.
In an undated report, Dr. Kaminsky opined that appellant had experienced a spontaneous
worsening of her work-related tarsal tunnel syndrome due to chronic changes that rendered her
unable to work from September 25, 2014 until July 13, 2015. She noted that appellant had pain in
the right intermetatarsal space and the right third intermetatarsal space that was consistent with
radiating pain from tarsal tunnel syndrome. Dr. Kaminsky reported that on physical examination
she had symptoms consistent with chronic worsening of her tarsal tunnel syndrome including pain
upon palpation of the right second intermetatarsal space, and slightly to the right of the of the third
intermetatarsal space, positive Tinel’s sign of the tarsal tunnel, bilaterally, and pain upon palpation
of the tarsal tunnel, flexor hallucis brevis, and the arch.
On September 27, 2018 appellant, through counsel, requested reconsideration.
By decision dated February 25, 2019, OWCP denied modification.
OWCP continued to receive medical evidence. In a report dated April 16, 2019,
Dr. Kaminsky detailed appellant’s medical history, including her surgery on March 25, 2015. She
noted that appellant had persistent and worsening pain in her right foot. Dr. Kaminsky diagnosed
unspecified mononeuropathy of the right lower limb.
On August 26, 2019 appellant, through counsel, requested reconsideration of the
February 25, 2019 decision. She provided additional treatment notes from Dr. Kaminsky and
Dr. Jerry M. Liddell, a podiatrist and associate of Dr. Kaminsky, dated July 14 through
December 16, 2014. Counsel contended that Dr. Kaminsky’s notes were sufficient to meet
appellant’s burden of proof to establish a recurrence of total disability on September 25, 2014.
On July 24, 2014 Dr. Kaminsky noted appellant’s report of bilateral foot pain and that she
had not sought treatment for several years. She recounted that appellant reported throbbing,
shooting, radiating, burning, tingling, numbness, and stiffness in her feet, worse on the right.
Appellant’s pain continued to increase and was aggravated by walking and weight-bearing, but
noted that she continued performing light-duty work. On physical examination Dr. Kaminsky
noted no overt deformities and normal arch structure. She found pain upon compression of the
common peroneal nerve bilaterally, tarsal tunnel bilaterally, and under the metatarsal heads one
4

through five, bilaterally. Dr. Kaminsky also found pain upon palpation of the heels plantarly
bilaterally. She diagnosed chronic tarsal tunnel syndrome, chronic plantar fasciitis, and chronic
ankle and foot pain. Dr. Kaminsky noted that appellant’s physical examination was normal except
for reports of pain, that her foot structure was good, and that she did not exhibit fat pad atrophy.
She also reported that her neurological examination was normal, but recommended an EMG study.
On August 5, 2014 Dr. Liddell noted that appellant had been unable to work lately because
of increased symptoms. On physical examination he found a positive Tinel’s sign on the dorsal of
her feet bilaterally which may be intermediate dorsal cutaneous nerve or deep peroneal nerve
distribution. Dr. Liddell found a negative Tinel’s sign over the tarsal tunnel bilaterally. He
reported tenderness with palpation in the intermetatarsal spaces centrally with the most intense
area being the second intermetatarsal space bilaterally.
In an October 16, 2014 treatment note, Dr. Kaminsky again recounted appellant’s
description of her foot pain. On physical examination, she found the same pain pattern as
demonstrated on July 24, 2014. Dr. Kaminsky noted that appellant’s EMG study showed tarsal
tunnel syndrome bilaterally. She again reported that, other than pain, appellant’s physical
examination seemed to be very normal. Dr. Kaminsky found that compression around the tarsal
tunnel was giving appellant pain at the ankle, heel, arch, and on the entire plantar service of the
feet bilaterally. She concluded that appellant had failed conservative care and needed to consider
surgical correction.
On November 18, 2014 Dr. Kaminsky reported that appellant had injured her right second
toe on a hard object one month earlier. She found that appellant had torn the dorsal ligament of
the distal interphalangeal joint of the right second toe. Dr. Kaminsky examined appellant on
December 16, 2014 and noted that she had traumatically torn a ligament in the dorsal capsule of
her right second toe. She opined that appellant’s problem was not caused by the injury to the right
second toe. Dr. Kaminsky recommended further electrodiagnostic testing to ensure that she was
not overlooking secondary signs of tarsal tunnel syndrome or capsular injury the right second
metatarsal phalangeal joint.
By decision dated October 24, 2019, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee ha s returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment. 4 This term also means an inability to work when a light-duty assignment, made
specifically to accommodate an employee’s physical limitations due to work-related injury or
illness, is withdrawn or altered so that the assignment exceeds the employee ’s physical limitations.
A recurrence does not occur when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties, or a reduction-in-force.5

4

20 C.F.R. § 10.5(x); T.J., Docket No. 18-0831 (issued March 23, 2020).

5

Id.

5

When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury -related
condition or a change in the nature and extent of the limited-duty job requirements.6 This burden
includes the necessity of furnishing evidence from a qualified physician who concludes, on the
basis of a complete and accurate factual and medical history, that for each period of disability
claimed, the disabling condition is causally related to the employment injury, and supports that
conclusion with medical reasoning. 7 Where no such rationale is present, the medical evidence is
of diminished probative value.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.
First, the Board notes that appellant did not allege, and the evidence does not establish, a
change in the nature and extent of appellant’s light-duty work requirements. Additionally, there
is no indication in the record that the employing establishment withdrew a light-duty work
assignment. The remaining issue is whether the medical evidence demonstrated a worsening of
appellant’s accepted bilateral foot conditions such that she could not perform limited -duty work.
After returning to part-time limited-duty work on May 22, 2010, appellant again sought
medical treatment from Dr. Kaminsky beginning on July 24, 2014. Thereafter, Dr. Kaminsky
diagnosed chronic tarsal tunnel syndrome, chronic plantar fasciitis, and chronic ankle and foot
pain. On August 19, 2014 she provided permanent work restrictions. Appellant also sought
treatment October through December 2014. In a December 16, 2014 form report, Dr. Kaminsky
diagnosed plantar fasciitis as well as tarsal tunnel syndrome and found that appellant was totally
disabled from September 25, 2014 through January 9, 2015. She did not, however, offer an
opinion on causal relationship between appellant’s claimed disability and factors of her federal
employment. The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition or disability is of no probative value. 9 As such, these reports
are of no probative value and do not establish appellant’s disability claim.
In a series of reports, she attributed appellant’s disability from work to chronic changes
from her long-term tarsal tunnel syndrome. Dr. Kaminsky noted that appellant’s symptoms of
pain in the right second and third intermetatarsal spaces were consistent with pain that could radiate
from tarsal tunnel syndrome. She also listed appellant’s findings on physical examination
6

S.D., Docket No. 19-0955 (issued February 3, 2020); Terry R. Hedman, 38 ECAB 222 (1986).

7

J.M., Docket No. 19-1517 (issued January 29, 2020); Ronald A. Eldridge, 53 ECAB 218 (2001); Mary A. Ceglia,
Docket No. 04-0113 (issued July 22, 2004).
8

Id.

9

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

6

including positive Tinel’s sign of the tarsal tunnel bilaterally and pain upon palpation of the medial
tarsal tunnel, flexor hallucis brevis, and the arch. The Board notes that pain is a symptom, not a
compensable medical diagnosis. 10 Dr. Kaminsky did not provide medical rationale supporting an
objective worsening of the accepted conditions between September 25, 2014 and July 14, 2015
such that appellant could no longer perform her modified-duty position. The Board has held that
reports are of limited probative value regarding causal relationship if they do not contain medical
rationale explaining how a given medical condition/disability was related to the accepted
employment injuries.11
In a February 22, 2016 attending form report, Dr. Kaminsky diagnosed chronic changes
from long-term tarsal tunnel syndrome, including EMG findings, a positive Tinel’s sign, and
musculoskeletal swelling. She checked a box marked “Yes” indicating that appellant’s condition
was caused or aggravated by employment activities and listed walking, standing and weight bearing of postal equipment. Dr. Kaminsky found that she was totally disabled from
September 25, 2014 through July 13, 2015. The Board has held that a report that addresses causal
relationship with an affirmative checkmark, without medical rationale explaining how the
employment injuries resulted in the period of disability, is of diminished probative value and
insufficient to establish causal relationship.12
On August 5, 2014 Dr. Liddell noted that appellant had been unable to work because of
increased symptoms. On physical examination he found a positive Tinel’s sign on the dorsal of
her feet bilaterally which may be intermediate dorsal cutaneous nerve or deep peroneal nerve
distribution. Dr. Liddell also found a negative Tinel’s sign over the tarsal tunnel bilaterally.
However, he did not address whether appellant was disabled from work during the claimed period.
As Dr. Liddell did not address the claimed dates of disability, his opinion is insufficient to establish
her claim.13
Appellant also submitted diagnostic studies. The Board has held, however, that diagnostic
studies, standing alone, lack probative value as they do not address whether the employment injury
caused any period of disability. 14 These reports are therefore insufficient to establish the claim.

10

R.S., Docket No. 19-1131 (issued April 2, 2020).

11

G.R., Docket No. 19-0940 (issued December 20, 2019); D.L., Docket No. 19-0900 (issued October 28, 2019);
Y.D., Docket No. 16-1896 (issued February 10, 2017); C.M., Docket No. 14-0088 (issued April 18, 2014).
12

J.B., Docket No. 18-1751, 19-0793 (issued May 6, 2019); S.C., Docket No. 18-1242 (issued March 13, 2019);
Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).
13

M.L., Docket Nos. 18-1058, 18-1224 (issued November 21, 2019); T.L., Docket No. 18-0934 (issued May 8,
2019); Sandra D. Pruitt, 57 ECAB 126 (2005).
14

M.J., Docket No. 19-1287 (issued January 13, 2020); see J.S., Docket No. 17-1039 (issued October 6, 2017).

7

Appellant also submitted notes from Mr. Harthill, a physical therapist. As physical
therapists are not considered physicians under FECA, his reports are insufficient to establish
entitlement to compensation benefits. 15
As the medical evidence of record is insufficient to establish a recurrence of disability from
work for the period September 25, 2014 through July 14, 2015 causally related to the accepted
employment conditions, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.

Section 8101(2) of FECA provides that a 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); J.B., supra note 12; T.K., Docket No. 19-0055 (issued
May 2, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician assistants,
and physical therapists are not competent to render a medical opinion under FECA).
15

8

ORDER
IT IS HEREBY ORDERED THAT the October 24, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Houston, TX, Employer
)
___________________________________________ )
L.L., Appellant

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

Docket No. 07-41
Issued: March 14, 2007

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 October 3, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 19, 2006, finding that she did not
sustain an injury in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the issues in this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained an injury in the performance of duty, causally related to factors of her federal
employment.
FACTUAL HISTORY
On June 24, 2006 appellant, then a 44-year-old mail handler, filed a traumatic injury
claim alleging that the constant lifting of mail trays and putting them into all-purpose containers
(APC’s) affected her right and left shoulders, right back, right leg and foot. She alleged that her
injury occurred on June 23, 2006. Appellant stopped work on June 24, 2006.

The Office received a June 20, 2006 physical therapy evaluation, part of an August 8,
2006 report, from an orthopedic surgeon whose name is illegible and nurses’ notes. In
emergency room records dated June 24, 2006, a physician whose signature is illegible, noted that
appellant was seen for complaints of back pain. Appellant related that she was at work lifting
and turning her body when she felt pain in her shoulder and back. The physician diagnosed
upper back pain and bilateral shoulder pain.
On July 29, 2006 the employing establishment controverted the claim noting that it was
not a traumatic injury.
Appellant submitted a June 28, 2006 report from Dr. Al Sardinas, a Board-certified
orthopedic surgeon, who noted appellant’s history of injury and treatment and conducted a
physical examination of the cervical spine. Dr. Sardinas indicated that appellant had tenderness
into the paravertebral musculature bilaterally and into both medial scapular border areas.
Regarding range of motion, he found that it was limited to 25 percent due to pain, in all
directions. Dr. Sardinas conducted a neurological examination of the upper extremities and
noted diminished superficial tactile sensation in the right hand and indicated that appellant’s
motor reflexes were bilaterally symmetrical and intact. Regarding the right shoulder, he
determined that appellant had tenderness in the subacromial space less than on the right, and
tenderness on abduction beyond 90 degrees. As to the left shoulder, he found tenderness in the
subacromial space area to a lesser extent than on the right and tenderness on abduction beyond
90 degrees. Dr. Sardinas also found tenderness in the paravertebral musculature bilaterally into
both posterior thighs and positive straight leg raising bilaterally at 20 degrees. He diagnosed a
traumatic strain of the cervical and lumbar spine. Dr. Sardinas completed disability certificates
dated June 28 and August 23, 2006, advising that appellant could not return to work.
By letter dated August 11, 2006, the Office advised appellant that it was developing her
claim as an occupational disease claim. The Office requested additional information and allotted
appellant 30 days within which to submit evidence. In a separate letter also dated August 11,
2006, the Office also requested additional information from the employing establishment.
On August 16, 2006 appellant filed a CA-7 form for compensation from July 28 to
September 28, 2006.
By letter dated September 7, 2006, appellant alleged that, on June 23, 2006, she was
constantly lifting heavy trays of mail off a conveyor belt, putting them into APC’s and
dispatching heavy APC’s. She alleged that, at approximately 6:00 p.m., she was lifting a tray of
mail that weighed about 45 pounds off the conveyor belt, when she turned and leaned into the
APC. Appellant felt a sharp pain in her shoulder, down her hand and in her lower back, leg and
left shoulder. She alleged that she had “no activities.” Further, appellant alleged that she had
continuous pain.
By decision dated September 19, 2006, the Office denied appellant’s claim on the
grounds that the medical evidence was not sufficient to establish causal relation.1
1

The Office denied appellant’s July 28, 2006 claim for compensation.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, 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.3 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS
Appellant submitted insufficient medical evidence to establish that her strain of the
cervical and lumbar spine was caused or aggravated by factors of her federal employment. The
medical evidence of record fails to provide any explanation of how her federal work duties
caused or contributed to her diagnosed conditions. The Office informed appellant of the
evidence needed to establish her claim in its letter of August 11, 2006.
In a June 28, 2006 report, Dr. Sardinas diagnosed a traumatic strain of the cervical and
lumbar spine. However, he did not provide an opinion regarding the cause of these diagnosed

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

5

Id.

3

conditions. Medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.6
Appellant submitted hospital and diagnostic reports regarding a back condition; however,
these reports do not contain a discussion on causal relationship. As noted, the requisite evidence
needed to establish the claim was a medical report from a physician explaining how her federal
employment contributed to her diagnosed conditions.7
The record also contains reports from physical therapists and nurses. However, health
care providers such as nurses and physical therapists are not physicians under the Act. Thus,
their opinions do not constitute medical evidence and have no weight or probative value.8
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.9
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.10 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
As there is no medical evidence explaining how appellant’s employment duties caused or
aggravated a condition, appellant has not met her burden of proof in establishing that she
sustained a medical condition in the performance of duty causally related to factors of her
employment.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty.

6

Michael E. Smith, 50 ECAB 313 (1999).

7

See supra note 4.

8

See Jan A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C. § 8101(2). This subsection defines the term
“physician.” See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).
9

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

10

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 19, 2006 is affirmed.
Issued: March 14, 2007
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
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Los Angeles, CA, Employer )
__________________________________________ )
S.B., Appellant

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

Docket No. 08-2157
Issued: July 21, 2009

Case Submitted on the Record

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

JURISDICTION
On July 31, 2008 appellant filed a timely appeal from a May 5, 2008 merit decision of the
Office of Workers’ Compensation Programs concerning her wage-earning capacity. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office properly reduced appellant’s benefits to zero effective
May 11, 2008 based on its determination that the constructed position of customer services clerk
represented her wage-earning capacity.
FACTUAL HISTORY
On December 8, 2003 appellant, then a 45-year-old transportation security screener, filed
an occupational disease claim (Form CA-2) alleging that on May 1, 2003 she began experiencing
hand pain, numbness and swelling from lifting bags to tables and from wanding. On
September 22, 2003 she stated that she previously underwent carpal tunnel surgery on her right

hand in 1996 and began experiencing the same problems with her left hand in May 2003. The
Office accepted appellant’s claim for bilateral carpal tunnel syndrome.1
Appellant stopped work on March 15, 2004 because the employing establishment could
not accommodate her work restrictions. She returned to light duty from May 2 through 15, 2004.
On June 2, 2004 appellant underwent left carpal tunnel release and she returned to full duty on
July 26, 2004.
In a medical report dated August 13, 2004, Dr. Yoav Gershon stated that appellant had
difficulty performing full duty without restrictions. He provided new work restrictions,
including no forceful gripping and a maximum lifting and carrying capacity of 25 pounds, and
stated that the restrictions will likely become permanent with the next visit. Dr. Gershon opined
that appellant would require vocational rehabilitation as she was unable to resume her usual and
customary duties.
In a September 3, 2004 medical report, Dr. Gershon diagnosed bilateral carpal tunnel
syndrome and opined that appellant’s work as a baggage screener was the probable cause of the
condition. He stated that she reached a permanent and stationary condition on September 3,
2004 and was permanently precluded from performing heavy lifting over 25 pounds. Physical
examination and nerve conduction studies found loss of grip strength and median nerve
entrapment at the wrist. Dr. Gershon reiterated that appellant was unable to resume her usual
and customary duties and was a candidate for vocational rehabilitation.2
By letter dated October 12, 2005, the employing establishment noted that appellant had
reached permanent and stationary medical conditions, preventing her from performing her usual
and customary duties. It notified the Office that it could no longer accommodate her permanent
work restrictions.
In a July 18, 2005 medical report, Dr. Dana R. Johnson, Board-certified in family
medicine, diagnosed bilateral carpal tunnel syndrome, status post carpal tunnel release, and
intermittent numbness at the bilateral wrists. She provided work restrictions of no lifting over 25
pounds but found that appellant could work modified duty. Diagnostic tests performed on
August 11, 2005 revealed findings consistent with mild-to-moderate median neuropathy of the
wrists consistent with carpal tunnel syndrome. On May 31, 2007 Dr. Johnson repeated the work
restrictions.
On January 19, 2006 the Office referred appellant to a rehabilitation counselor for
vocational rehabilitation.
The rehabilitation counselor reviewed appellant’s education,
transferable skills, prior work history and work restrictions of no lifting over 25 pounds. She
1

The Office initially denied appellant’s claim for fact of injury on February 25, 2004.

2

By decision dated January 10, 2005, the Office awarded appellant a schedule award for 10 percent permanent
impairment of the right upper extremity and 10 percent permanent impairment of the left upper extremity.
Appellant began receiving payment for her schedule award on January 27, 2005. On January 23, 2006 she stopped
receiving payment for her schedule award so that she could receive wage-loss compensation. By telephone
memorandum dated April 24, 2008, the Office notified appellant that she was eligible to obtain payment for the
remainder of her schedule award after termination of her wage-loss compensation.

2

noted that appellant had a high school education with an additional year of community college
general class work and that she had many transferable skills. The rehabilitation counselor
developed a rehabilitation plan, based on labor market research and a vocational assessment test.
She identified the positions of bank teller and customer service representative/complaint clerk as
vocational goals.
By letter dated October 19, 2007, the Office notified appellant that it reviewed the
rehabilitation plan and found that the positions identified were within her work limitations. It
advised that she had a probable wage-earning capacity of $25,000.00 per year and that her
compensation would likely be reduced by this amount at the end of the rehabilitation program
regardless of whether she gained employment.
In a closure report dated February 22, 2008, the rehabilitation counselor noted that
appellant did not obtain employment due to an inconsistent and less than proactive approach to
the job seeking process. She submitted job classifications for the positions of teller and customer
service clerk, which required only light physical requirements with no lifting, pushing or pulling
over 20 pounds. The rehabilitation counselor found that appellant was physically capable of
performing these positions within the restrictions provided by Dr. Johnson of a 25-pound weight
restriction for lifting.
By letter dated April 3, 2008, the Office proposed to reduce appellant’s wage-loss
compensation to zero on the basis that she had the capacity to earn $673.00 per week as a
customer services clerk. It discussed the job requirements for the positions of customer services
clerk, finding that the physical requirements were within the 25-pound lifting restriction
specified by Dr. Johnson. Based on the research provided by the rehabilitation counselor, the
Office determined that the entry level wages for a customer services clerk averaged $673.00 a
week and the entry level wages for a bank teller averaged $675.00 a week. Based on appellant’s
pay on the date of disability of $565.90 plus $35.37 night differential, the current salary of
appellant’s date-of-injury position of $612.07 per week plus $38.26 night differential and her
ability to earn $673.00 per week as a customer services clerk, the Office found that appellant had
no loss in wage-earning capacity. It advised appellant to submit additional evidence or argument
regarding her wage-earning capacity within 30 days. Appellant did not respond.
By decision dated May 5, 2008, the Office reduced appellant’s compensation to zero,
effective May 11, 2008, due to her capacity to earn $673.00 per week as a customer services
clerk.
LEGAL PRECEDENT
Section 8115(a) of the Federal Employees’ Compensation Act3 provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by her actual earnings if her actual earnings fairly and reasonably represent her
wage-earning capacity.4 If the actual earnings do not fairly and reasonably represent wage3

5 U.S.C. § 8115(a).

4

Id.; Loni J. Cleveland, 52 ECAB 171, 177 (2000).

3

earning capacity or the employee has no actual earnings, her wage-earning capacity is
determined with due regard to the nature of her injury, the degree of physical impairment, her
usual employment, her age, her qualifications for other employment, the availability of suitable
employment and other factors or circumstances which may affect her wage-earning capacity in
her disabled condition.5
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to her physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.6
ANALYSIS
The Board finds that the Office met its burden of proof to establish that appellant’s wageearning capacity was represented by her ability to work in the constructive position of a customer
services clerk effective May 11, 2008.
On July 18, 2005 Dr. Johnson appellant’s treating physician, diagnosed bilateral carpal
tunnel syndrome and provided work restrictions of no lifting over 25 pounds but found that
appellant was capable of working modified duty. In a subsequent medical report dated May 31,
2007, he found that appellant had reached permanent and stationary status and provided the same
restrictions of no lifting over 25 pounds. These restrictions were consistent with those provided
by Dr. Gershon in medical reports dating back to August 13, 2004.
The Board finds that the medical evidence establishes that appellant is partially disabled
with lifting restrictions of 25 pounds. As the identified positions of customer services clerk
requires only light physical requirements with no lifting, pushing or pulling over 20 pounds, the
medical evidence supports that appellant has the physical capacity to perform the duties of the
position.7
In assessing the claimant’s ability to perform the selected position, the Office must
consider not only physical limitations but also take into account her work experience, age,
mental capacity and educational background.8 In the instant case, the rehabilitation counselor
5

5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, 55 ECAB 465, 471 (2004); Robert H. Merritt, 11 ECAB
64, 65 (1959).
6

N.J., 59 ECAB ___ (Docket No. 07-45, issued November 14, 2007); Wilson L. Clow, Jr., 44 ECAB 157, 171-75
(1992); Albert C. Shadrick, 5 ECAB 376 (1953).
7

See M.A., 59 ECAB ___ (Docket No. 07-349, issued July 10, 2008).

8

See John E. Cannon, 55 ECAB 585 (2004).

4

found that appellant had the skills necessary to perform the position of customer services clerk
based on her vocational assessment test results, high school education and previous work
experience. He also found that the position was reasonably available within the commuting area
with wages of $673.00 a week. The Board finds that the Office considered the proper factors,
such as availability of suitable employment, appellant’s physical limitations and employment
qualifications, in determining that the position of customer services clerk represented her wageearning capacity.9 The weight of the evidence of record establishes that appellant had the
requisite skill, physical ability and training to perform the position and that such a position was
reasonably available within the general labor market of appellant’s commuting area.
The Board finds that the Office properly determined appellant’s loss of wage-earning
capacity in accordance with the formula developed in Albert C. Shadrick10 and codified at 20
C.F.R. § 10.403.11 The Office stated that her earning salary on the date of disability was $565.90
plus $35.37 night differential, or $601.27 per week; that the current adjusted pay rate for her job
was $612.07 plus $38.26 night differential, or $650.33 per week; and that she was currently
capable of earning $673.00 per week as a customer service clerk.12 The Office properly
concluded that appellant did not have a loss of wage-earning capacity.
CONCLUSION
The Board finds that the Office properly reduced appellant’s benefits to zero effective
May 11, 2008 based on its determination that the constructed position of customer services clerk
represented her wage-earning capacity.

9

See id.

10

See supra note 6.

11

20 C.F.R. § 10.403. See also M.A., supra note 7.

12

Night differentials should be included when determining wage-earning capacity. Joseph Haley, 46 ECAB
639 (1995).

5

ORDER
IT IS HEREBY ORDERED THAT the May 5, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 21, 2009
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 15-1792
Issued: January 14, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 31, 2015 appellant, through counsel, filed a timely appeal from an April 23,
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 met his burden of proof to establish a permanent
impairment of the right lower extremity and/or more than nine percent impairment of the left
lower extremity, for which he received schedule awards.
On appeal counsel asserts that the April 23, 2015 decision is contrary to facts and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In an August 3, 2011 decision, the
Board found that at that time appellant had failed to establish a permanent impairment of his
lower extremities and affirmed the July 15, 2010 OWCP decision.2 The findings of the previous
Board decision are incorporated herein by reference.
On September 7, 2011 appellant, through counsel, requested reconsideration with OWCP
and submitted an October 26 2012 report from Dr. M. Stephen Wilson, an orthopedic surgeon.
Dr. Wilson noted the history of injury, appellant’s medical and surgical history and treatment,
and reviewed medical evidence. He provided physical examination findings and opined that
appellant had a significant work injury to his lumbar spine that resulted in left lower extremity
radiculopathy. Dr. Wilson advised that, in accordance with proposed Table 2 of the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(hereinafter A.M.A., Guides),3 used for rating spinal impairment, appellant had three percent left
lower extremity impairment due to mild sensory and motor deficits of the L4 nerve, and 11
percent impairment of the left lower extremity due to moderate sensory and motor deficits of the
L5 nerve, which yielded a total 14 percent permanent impairment of the left lower extremity.
On November 15, 2012 Dr. H. Mobley, an OWCP medical adviser,4 reviewed
Dr. Wilson’s report and the medical evidence and recommended that appellant be referred for a
second opinion evaluation as to whether appellant had any permanent impairment of his lower
extremities.

2

Docket No. 10-2172 (issued August 3, 2011). On July 23, 2007 appellant, a 54-year-old distribution clerk,
injured his back lifting tubs of mail. OWCP accepted his traumatic injury claim for lumbar sprain, herniated lumbar
disc, and lower extremity mononeuritis. Dr. Howard B. Cotler, a Board-certified orthopedic surgeon, performed
L4-5 microdiscectomy on February 12, 2008. A July 15, 2015 lower extremity electrodiagnostic study was
interpreted as abnormal, with evidence of moderate left L5 radiculopathy. Dr. Cotler performed repeat lumbar
surgery on February 2, 2009. Appellant returned to modified duty on June 1, 2009, stopped work on
August 13, 2009, and retired effective March 5, 2010. He began treatment with Dr. Benjamin B. Tiongson, a pain
management practitioner on September 4, 2009. Dr. Tiongson diagnosed chronic pain syndrome and left L5
radiculopathy. He continued to submit reports, but did not provide an impairment evaluation. Appellant filed a
schedule award claim on November 10, 2009. In a January 28, 2010 report, Dr. Cotler referenced the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides, and advised that appellant had 11 percent whole person impairment. On February 26, 2010 OWCP referred
appellant to Dr. Gary C. Freeman, a Board-certified orthopedic surgeon, for a second opinion evaluation. In a
March 22, 2010 report, Dr. Freeman concluded that, with no objective physical evidence of injury or sequelae in
either leg, appellant did not have ratable permanent impairment in either leg. In a May 3, 2010 report, an OWCP
medical adviser concurred with Dr. Freeman’s opinion. On May 17, 2010 OWCP denied appellant’s schedule
award claim, finding the evidence insufficient to establish a permanent impairment of the legs. Appellant requested
reconsideration on June 11, 2010 and submitted a May 27, 2010 report from Dr. Steven M. Lovitt, a Board-certified
neurologist, who diagnosed thoracic and lumbar radiculopathy and peripheral neuropathy. Dr. Donald L. Mauldin, a
Board-certified orthopedic surgeon, performed a second opinion evaluation on June 24, 2010 to evaluate appellant’s
work abilities. He did not provide an impairment evaluation. On July 15, 2010 OWCP denied modification of the
May 17, 2010 decision.
3

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

4

Dr. Mobley’s credentials could not be ascertained.

2

Dr. Jerome Carter, a Board-certified physiatrist, performed a second opinion evaluation
and impairment rating on January 23, 2013. He provided a comprehensive report in which he
noted reviewing the medical record and described extensive examination findings. Dr. Carter
advised that, in accordance with proposed Table 2 for spinal nerve impairment, appellant had
zero percent impairment bilaterally due to sensory deficits. He found a mild, class 1, motor
deficit on the left and, after applying the net adjustment formula, concluded that appellant had
one percent left lower extremity impairment in the L3 distribution, two percent impairment in the
L4 distribution, and three percent impairment in the L5 distribution. Dr. Carter applied the net
adjustment formula and concluded that appellant had a total seven percent left lower extremity
impairment and no impairment on the right.
On February 14, 2013 Dr. Ronald Blum, a Board-certified orthopedic surgeon and
OWCP medical adviser, noted his review of the record and agreed with Dr. Carter’s findings and
conclusion that appellant had seven percent left lower extremity permanent impairment. He
found that maximum medical improvement was reached on October 26, 2012.
By decision dated February 20, 2013, OWCP granted appellant a schedule award for
seven percent permanent impairment of the left leg. It found no impairment for the right leg.
Appellant, through counsel, timely requested a hearing before an OWCP hearing
representative. Following a July 16, 2013 hearing, appellant submitted an August 15, 2013
report in which Dr. Wilson reported his disagreement with Dr. Blum’s report, noting that
Dr. Blum did not consider a June 15, 2008 electrodiagnostic study that revealed evidence of left
L5 radiculopathy. Dr. Wilson maintained that his October 26, 2012 conclusions were valid.
By decision dated September 19, 2013, an OWCP hearing representative set aside the
February 20, 2013 decision and remanded the case for an OWCP medical adviser to review
Dr. Wilson’s August 15, 2013 report, after which OWCP should issue a de novo decision.
On September 26, 2013 Dr. Michael M. Katz, a Board-certified orthopedic surgeon and
OWCP medical adviser, noted his review of the medical record. He recommended that a referee
opinion be obtained regarding appellant’s lower extremity impairment.
OWCP determined that a conflict in medical evidence had been created regarding
appellant’s lower extremity impairment, and on November 19, 2013 it referred appellant to
Dr. Philip E. Rosen, a Board-certified orthopedic surgeon, for an impartial evaluation. In a
December 5, 2013 report, Dr. Rosen described the history of injury, appellant’s current
symptoms, and his review of the medical record. He described physical examination findings
and diagnosed lumbar strain syndrome, herniated nucleus pulposus at L4-5 with L5
radiculopathy, status post laminectomy, discectomy, and lumbar fusion, failed back syndrome,
and chronic pain syndrome. Dr. Rosen advised that appellant had reached maximum medical
improvement on January 16, 2012, and provided an impairment rating in accordance with
proposed Table 2 of the sixth edition of the A.M.A., Guides. He found a class 1 impairment for
a mild left L5 motor deficit and, after applying the net adjustment formula, concluded that
appellant had seven percent left lower extremity impairment for the L5 motor deficit. Dr. Rosen
further found a class 1 impairment for a mild L5 sensory deficit, and, after applying the net
adjustment formula, concluded that appellant had two percent impairment for an L5 sensory

3

deficit. He combined the motor and sensory deficits, and concluded that appellant had a
combined nine percent left leg impairment.
In reports dated December 20, 2013 and January 23, 2014, Dr. Katz noted his agreement
with Dr. Rosen’s findings and conclusion that maximum medical improvement had been reached
on January 15, 2012 and that appellant had a combined nine percent permanent impairment of
the left lower extremity.
By decision dated February 25, 2014, appellant was granted a schedule award for an
additional two percent permanent impairment of the left leg, for a combined left leg impairment
of nine percent. OWCP found no ratable impairment of the right leg.
Appellant, through counsel, timely requested a hearing, that was held on
September 11, 2014. On November 3, 2014 an OWCP hearing representative affirmed the
February 25, 2014 decision.
Appellant, through counsel, again requested reconsideration on December 10, 2014 and
submitted a November 12, 2014 report from Dr. Wilson. Dr. Wilson noted that he had examined
appellant on October 26, 2012. He discussed the reports of Dr. Blum, Dr. Rosen, and Dr. Katz,
and asserted that his conclusion in 2012 was correct.
Following an OWCP request, Dr. Rosen reviewed Dr. Wilson’s November 12, 2014
report. On January 13, 2015 he advised that, after careful review of all medical documentation
and his clinical examination of appellant, his opinion remained as previously determined.5
In a merit decision dated April 23, 2015, OWCP denied modification of the prior
decision.
LEGAL PRECEDENT
The schedule award provision of FECA,6 and its implementing federal regulations,7 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,
FECA 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, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is to be used.9

5

Dr. Tiongson continued to submit reports describing appellant’s pain management.

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

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).

4

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment for the Class of Diagnosis (CDX) condition, which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE), and
Clinical Studies (GMCS).11 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).12
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.13 In
1960, amendments to FECA 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, as
the schedule award provisions of FECA include the extremities, 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.14
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.15 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables outlined in the
July/August 2009 The Guides Newsletter.16
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.17 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.18 When there exist opposing medical reports of virtually equal weight
10

Supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.”
11

Id. at 385-419.

12

Id. at 411.

13

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

14

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

15

Rozella L. Skinner, 37 ECAB 398 (1986).

16

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 1, n5 (January 2010); The Guides Newsletter is included as Exhibit 4.
17

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

18

20 C.F.R. § 10.321.

5

and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.19
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.20 While an OWCP medical
adviser may review the opinion of a referee specialist in a schedule award case, the resolution of
the conflict is the specialist’s responsibility. An OWCP medical adviser cannot resolve a
conflict in medical opinion.21
ANALYSIS
The Board initially finds that appellant failed to establish a permanent impairment of the
right lower extremity. There was no medical evidence finding permanent impairment of the
right lower extremity. The Board further finds that appellant did not establish more than nine
percent permanent impairment of the left lower extremity for which he received schedule
awards.
The accepted conditions in this case are lumbar sprain, herniated lumbar disc, and lower
extremity mononeuritis. On February 20, 2013 appellant was granted a schedule award for seven
percent permanent left lower extremity impairment and no impairment on the right. Following
further development, in November 2013 OWCP determined that a conflict in medical evidence
had been created between the opinions of Dr. Wilson, an attending orthopedist, and Dr. Carter,
an OWCP referral physician, regarding the degree of appellant’s lower extremity impairment,
and referred him to Dr. Rosen, a Board-certified orthopedic surgeon, for an impartial evaluation.
Regarding the accepted lumbar conditions, as noted above, the approach for rating
impairment of the upper or lower extremities caused by a spinal injury is provided in section
3.700 of OWCP procedures, which memorializes proposed tables outlined in the
July/August 2009 The Guides Newsletter.22
In his December 5, 2013 report, Dr. Rosen described the history of injury, appellant’s
current symptoms, and his review of the medical record. He described physical examination
findings and diagnosed lumbar strain syndrome, herniated disc at L4-5 with L5 radiculopathy,
status post two surgical procedures, failed back syndrome, and chronic pain syndrome.
Dr. Rosen advised that appellant had reached maximum medical improvement on
January 16, 2012. He provided an impairment rating in accordance with proposed Table 2 of the
sixth edition of the A.M.A., Guides, used for rating spinal nerve impairment. Dr. Rosen found a
19

V.G., 59 ECAB 635 (2008).

20

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
21

Richard R. Lemay, 56 ECAB 341 (2005); Federal (FECA) Procedure Manual, id. at Chapter 2.808.6(g)

22

Supra notes 16 and 17.

6

class 1 impairment for a mild left L5 motor deficit and, after applying the net adjustment
formula, concluded that appellant had seven percent permanent left lower extremity impairment
for the L5 motor deficit. He further found a class 1 impairment for a mild L5 sensory deficit,
and, after applying the net adjustment formula, concluded that appellant had two percent
impairment for a L5 sensory deficit. Dr. Rosen combined the motor and sensory deficits, and
concluded that appellant had nine percent permanent left lower extremity impairment.
In a January 13, 2015 supplemental report, Dr. Rosen advised that, based on his clinical
examination and after careful review of all medical documentation, including Dr. Wilson’s
November 12, 2014 report, his opinion remained as previously determined.
The Board finds that Dr. Rosen’s opinion is thorough and well rationalized and represents
the special weight of the medical evidence.23 The Board has carefully reviewed his reports and
finds that his opinion has reliability, probative value, and convincing quality with respect to its
conclusions regarding the extent of appellant’s permanent impairment. Dr. Rosen’s opinion is
based on a proper factual and medical history and he thoroughly reviewed the factual and
medical history and accurately summarized the relevant medical evidence.24 He provided
medical rationale for his opinion by explaining that, after careful review of all medical
documentation and his clinical examination of appellant, appellant had nine percent left lower
extremity impairment. Dr. Rosen’s opinion is entitled to special weight as the impartial medical
examiner and establishes that appellant has not established entitlement to a left lower extremity
impairment greater than that previously awarded.
As noted, in the November 12, 2014 report, Dr. Wilson merely asserted that his prior
conclusion regarding appellant’s impairment was correct. He did not reexamine appellant.
Reports from a physician who was on one side of a medical conflict that an impartial specialist
resolved are generally insufficient to overcome the weight accorded to the report of the impartial
medical examiner, or to create a new conflict.25 Dr. Wilson had been on one side of the conflict
resolved by Dr. Rosen. As such, his November 12, 2014 report is insufficient to establish that
appellant is entitled to a left leg impairment greater than the nine percent found by Dr. Rosen.26
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an
impairment of the right lower extremity and more than nine percent permanent impairment of the
left lower extremity, for which he received schedule awards.

23

Barry Neutuch, 54 ECAB 313 (2003).

24

See Melvina Jackson, 38 ECAB 443 (1987).

25

I.J., 59 ECAB 471 (2008).

26

S.S., 59 ECAB 315 (2008).

7

ORDER
IT IS HEREBY ORDERED THAT the April 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 14, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE NAVY,
CHARLESTON NAVAL SHIPYARD,
Charleston, SC, Employer
__________________________________________

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

Docket No. 07-1482
Issued: November 1, 2007

Case Submitted on the Record

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

JURISDICTION
On May 10, 2007 appellant filed a timely appeal of the April 27, 2007 nonmerit decision
of the Office of Workers’ Compensation Programs, which denied his request for a hearing.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board does not have jurisdiction over the
merits of the claim.1
ISSUE
The issue is whether the Branch of Hearings and Review properly denied appellant’s
March 21, 2007 request for an oral hearing.

1

The last merit decision in the claim was issued on October 29, 1993, which is more than one year prior to the
filing of the current appeal.

FACTUAL HISTORY
Appellant, a 63-year-old wharf building worker, sustained an employment-related
traumatic injury on August 24, 1987 when he was struck by a falling scaffold. His claim was
accepted for contusions to the left shoulder, forearm and hip, as well as aggravation of
preexisting disc herniation at L4-5. The Office also accepted that appellant sustained a
recurrence of disability on October 14, 1987. Appellant subsequently underwent a May 5, 1988
laminectomy and discectomy at L4-5.
On September 27, 1991 appellant filed a claim for a recurrence of disability beginning
June 26, 1991. The Office denied the recurrence claim by decision dated February 21, 1992.
Appellant requested an oral hearing, but failed to appear for the August 20, 1992 hearing. On
September 2, 1992 the Office found that appellant had abandoned his request for a hearing. In a
decision dated October 29, 1993, the Board affirmed the Office’s February 21, 1992 decision
denying appellant’s claim for recurrence of disability.2 The Board also affirmed the Branch of
Hearings and Review’s finding that appellant abandoned his request for an oral hearing.
The last time this case was before the Board, appellant had filed an
June 20, 2003.3 He indicated that he was appealing a June 14, 2003 Office decision.
the Office had not issued a final decision on June 14, 2003, nor had they issued any
decisions within a year of the June 20, 2003 appeal. Accordingly, the Board
August 27, 2003 order dismissing the appeal for lack of jurisdiction.4

appeal on
However,
other final
issued an

On March 15, 2007 the Office provided appellant a copy of the various appeal rights
available under the Federal Employees’ Compensation Act, 5 U.S.C. §§ 8101-8193 (2000). On
March 21, 2007 appellant requested an oral hearing regarding a decision reportedly dated
“[April 13, 2007].”
On April 27, 2007 the Branch of Hearings and Review denied appellant’s request for an
oral hearing. The hearing representative noted that the last decision issued in the case was the
Board’s August 27, 2003 order dismissing the June 20, 2003 appeal. Appellant was correctly
advised that the Branch of Hearings and Review lacked the authority to review Board decisions.
The hearing representative also informed appellant that he was not entitled to an oral hearing as a
matter of right; presumably based on the timing of his request. Lastly, the hearing representative
declined to grant a discretionary hearing, noting that appellant could address whatever concerns
he had by filing a request for reconsideration with the Office.

2

Docket No. 93-71 (issued October 29, 1993).

3

Docket No. 03-1659. The Board’s August 27, 2003 order and its October 29, 1993 decision are incorporated
herein by reference.
4

20 C.F.R. §§ 501.2(c), 501.3(a), (d) (2007).

2

LEGAL PRECEDENT
A claimant dissatisfied with an Office decision regarding his claim is entitled, upon
timely request, to a hearing before a representative of the Office.5 A request for either an oral
hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the Office’s decision for which a hearing is sought.6 If the request is not made within 30
days, a claimant is not entitled to a hearing or a review of the written record as a matter of right.
Although a claimant may not be entitled to a hearing as a matter of right, the Office has
discretionary authority with respect to granting a hearing and the Office must exercise such
discretion.7
ANALYSIS
The last time the Office addressed the merits of appellant’s claim was February 21, 1992,
when it denied a recurrence of disability beginning June 26, 1991. Appellant subsequently
requested an oral hearing, which he failed to attend, and thus, was found to have abandoned his
request. He then sought review of both decisions before the Board, which the Board affirmed by
decision dated October 29, 1993. The Board’s last encounter with this claim was in 2003, when
appellant requested review of a nonexistent June 14, 2003 Office decision. The Board dismissed
the appeal on August 27, 2003.
When he requested a hearing on March 21, 2007, appellant again identified a nonexistent
Office decision as the subject of his hearing request. In fact, the decision he identified,
“[April 13, 2007],” would have been three weeks premature at the time of the request. As there
was no Office decision issued within 30 days of appellant’s March 21, 2007 request, he is not
entitled to a hearing as a matter of right. While the Branch of Hearings and Review has the
discretionary authority to grant a hearing, appellant has not identified a proper Office decision or
any specific issues for which a hearing might otherwise be appropriate. The hearing
representative surmised that appellant might be seeking review of the Board’s August 27, 2003
order dismissing an earlier appeal. He further indicated that this issue could be equally well
addressed by filing a request for reconsideration with the Office, presumably to determine if
there were any final adverse Office decisions issued within a year of the June 20, 2003 appeal. It
seem imprudent to pursue a dismissed appeal given that the Board’s August 27, 2003 order did
not address any substantive issues regarding appellant’s entitlement to benefits under the Act,8
but appellant has not made his present intentions clear, and he has a history of obfuscating the
issues by filing appeals and hearing requests for nonexistent Office decisions. Given the
circumstances, the Board finds that the Branch of Hearings and Review properly exercised its
discretion by denying appellant’s request for a hearing.
5

5 U.S.C. § 8124(b) (2000).

6

20 C.F.R. § 10.616(a).

7

See Herbert C. Holley, 33 ECAB 140 (1981).

8

Appellant might have been better served had the hearing representative explained that the previously denied
June 26, 1991 recurrence claim could be revisited were appellant to file a specific request for reconsideration with
the Office.

3

CONCLUSION
The Branch of Hearings and Review properly denied appellant’s March 21, 2007 request
for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 13-2049
Issued: February 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 29, 2013 appellant, through her attorney, filed a timely appeal from the
March 7, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
terminating her compensation.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Board. One hundred and eighty days from
March 7, 2013, the date of OWCP’s decision, was September 3, 2013. Since using September 5, 2013, the date the
appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is
considered the date of filing. The date of the U.S. Postal Service postmark is August 29, 2013, which renders the
appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. §§ 8101-8193.

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective July 5, 2012 on the grounds that she had no
residuals of her accepted work injury after that date.
FACTUAL HISTORY
On June 23, 2011 appellant, then a 38-year-old mail handler, filed an occupational
disease claim alleging that she sustained a lumbar sprain due to her work duties over time which
included engaging in lifting, pushing and bending. She indicated that she first became aware of
her claimed condition on June 13, 2011. Appellant stopped work on June 14, 2011 and returned
to limited-duty work on July 23, 2011. OWCP accepted that she sustained aggravation of
thoracic or lumbosacral radiculitis/neuritis and paid disability compensation on the daily
compensation rolls.
In a January 10, 2012 report, Dr. Allen Glushakow, an attending Board-certified
orthopedic surgeon, indicated that appellant had lumbosacral tenderness without spasm on
examination. Straight leg raising was negative, there were no focal findings on neurological
examination and all spheres of range of motion were decreased by 10 percent. Dr. Glushakow
diagnosed lumbosacral radiculitis, herniated L5-S1 disc and significant bulging at L4-5.
OWCP referred appellant to Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, for
a second opinion examination and opinion regarding whether she continued to have residuals of
her accepted work injury.
In a February 17, 2012 report, Dr. Lakin detailed appellant’s factual and medical history,
including the findings on diagnostic testing and physical examination. He noted that she
currently complained of low back pain with prolonged positions, especially with twisting and
standing. Dr. Lakin reported findings on physical examination, noting that appellant had
minimal tenderness in her lower paralumbar musculature bilaterally with no spasms. Appellant
was nontender in the bilateral sciatic notches and in the bilateral sacroiliac joints. She was able
to stand on her heels and toes without difficulty and her gait was normal. Dr. Lakin indicated
that the motor examination of appellant’s legs revealed 5/5 strength upon hip flexion, knee
extension, ankle dorsiflexion and plantar flexion, inversion and eversion of the feet. Appellant
had negative straight leg raising in the sitting and supine positions and sensation was intact to
light touch in both legs. Dr. Lakin indicated that she had a normal neurological examination
with only some minimal tenderness in the lumbar spine. He posited that appellant’s work-related
lumbar radiculitis had resolved as she was neurologically intact and had no signs of any radicular
findings in her legs. Appellant’s complaints of right leg pain were subjective in that
electrodiagnostic testing done on April 27, 2010 revealed a mild left L5-S1 radiculopathy with
no mention of any radiculopathy on the right side. Dr. Lakin stated:
“The patient is neurologically intact and has no signs of radiculopathy on clinical
evaluation…. As of this date, she has reached maximum medical improvement.
[Appellant] is neurologically intact, has excellent function of the spine and lower
extremities and the patient is at maximum medical improvement and the claimant

2

does not have any concurrent nonwork[-]related disability…. There is no need
for any restrictions, as the patient has an unremarkable orthopedic examination
and there is no reason why [appellant] cannot return back to work regular duty.”
In a May 15, 2012 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits on the grounds that she ceased to have residuals of
her accepted work injury. It indicated that the proposed termination action was based on the
well-rationalized opinion of Dr. Lakin, an OWCP referral physician. Appellant was provided 30
days to submit evidence or argument challenging the proposed action.
In an April 17, 2012 progress note, Dr. Glushakow stated that his examination of
appellant’s back revealed lumbosacral tenderness and spasm. Appellant lacked 15 percent range
of motion in all spheres of her back, straight leg raising was painful at 83 degrees and the
neurological examination revealed no focal findings. Dr. Glushakow diagnosed lumbosacral
radiculitis, herniated L5-S1 disc and probable disc protrusion at L4-5. In a May 24, 2012 form
report, he provided work restrictions, including no lifting more than 10 pounds. Dr. Glushakow
listed the date of injury as June 13, 2011. In a June 8, 2012 report, he reported examination
findings and diagnosed lumbosacral radiculitis, herniated L5-S1 disc and probable disc
protrusion at L4-5. Dr. Glushakow stated, “In my opinion, [appellant’s] diagnoses are causally
related to the accident of June 13, 2011 and represent an aggravation of a previous condition as
well.”
In a July 5, 2012 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits effective July 5, 2012 on the grounds that she had no residuals of her accepted
work injury after that date. It indicated that the weight of the medical evidence with respect to
work-related residuals rested with the opinion of Dr. Lakin. The reports of Dr. Glushakow did
not contain a rationalized opinion that appellant had residuals of her accepted work injury.
Appellant submitted November 13 and December 12, 2012 reports in which
Dr. Glushakow posited that her herniated lumbar disc and lumbar radiculopathy conditions were
greatly accelerated by the performance of her repetitive work duties overtime. Dr. Glushakow
indicated that she continued to have disability due to the effects of this work-related aggravation.
In a March 7, 2013 decision, OWCP’s hearing representative affirmed the July 5, 2012
termination decision, finding that OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective July 5, 2012 based on the well-rationalized
opinion of Dr. Lakin. She further found that, after OWCP’s proper termination, appellant
submitted additional medical evidence, i.e., the November 13 and December 12, 2012 reports of
Dr. Glushakow, which required additional development of the medical evidence. The case was
remanded to OWCP for medical development to include obtaining a clarifying report from
Dr. Lakin.3

3

The record contains an August 8, 2013 letter advising appellant about the reinstatement of her compensation.
This does not constitute a final adverse decision of OWCP reviewable by the Board. See 20 C.F.R. § 501.2(c).

3

LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.4 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6
ANALYSIS
OWCP accepted that appellant sustained aggravation of thoracic or lumbosacral
radiculitis/neuritis due to her repetitive work duties overtime and paid disability compensation on
the daily compensation rolls. It terminated her wage-loss compensation and medical benefits
effective July 5, 2012 based on the February 17, 2012 report of Dr. Lakin, a Board-certified
orthopedic surgeon serving as an OWCP referral physician.
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective July 5, 2012 on the grounds that she had no
residuals of her accepted work injury after that date. The weight of the medical evidence is
represented by the thorough, well-rationalized opinion of Dr. Lakin. The February 17, 2012
report of Dr. Lakin establishes that appellant had no disability due to her accepted work injury
after July 5, 2012.
In his February 17, 2012 report, Dr. Lakin reported findings on physical examination,
noting that appellant had minimal tenderness in the lower paralumbar musculature bilaterally
with no spasms. Appellant was nontender in the bilateral sciatic notches and in the bilateral
sacroiliac joints and her motor examination of the legs revealed 5/5 strength upon hip flexion,
knee extension, ankle dorsiflexion and plantar flexion, inversion and eversion of the feet. She
had negative straight leg raising in the sitting and supine positions and sensation was intact to
light touch in both legs. Dr. Lakin indicated that appellant had a normal neurological
examination with only some minimal tenderness in the lumbar spine and posited that her workrelated lumbar radiculitis had resolved as she was neurologically intact and had no signs of any
radicular findings in her legs. Appellant’s complaints of right leg pain were subjective in that
electrodiagnostic testing done on April 27, 2010 revealed a mild left L5-S1 radiculopathy with
no mention of any radiculopathy on the right side. Dr. Lakin reiterated that her work injury had
resolved and indicated that she could return to regular work.
The Board has carefully reviewed the opinion of Dr. Lakin and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Lakin provided a thorough factual and medical history and

4

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

5

Id.

6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

accurately summarized the relevant medical evidence.7 He provided medical rationale for his
opinion by explaining that appellant exhibited no objective findings showing that she continued
to have work-related leg radiculitis.
Before OWCP and on appeal, counsel argued that the reports of Dr. Glushakow showed
that OWCP’s termination of compensation effective July 5, 2012 was improper. However, the
reports of Dr. Glushakow submitted prior to the July 5, 2012 termination were of limited
probative value on the main issue of the present case. In a June 8, 2012 report, Dr. Glushakow
diagnosed lumbosacral radiculitis, herniated L5-S1 disc and probable disc protrusion at L4-5 and
stated, “In my opinion, her diagnoses are causally related to the accident of June 13, 2011 and
represent an aggravation of a previous condition as well.” This report is of limited probative
value because Dr. Glushakow did not provide any rationale in support of his opinion on causal
relationship.8
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective July 5, 2012 on the grounds that she had no
residuals of her accepted work injury after that date.

7

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical
rationale is of little probative value). Dr. Glushakow indicated that appellant sustained an injury on June 13, 2011,
but her accepted condition was actually sustained due to exposure to work factors over a period of time.

5

ORDER
IT IS HEREBY ORDERED THAT the March 7, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6