United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
TENNESEE VALLEY AUTHORITY, PE-C F-H
MOD JOHNSONVILLE, Chattanooga, TN,
Employer
__________________________________________

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

Docket No. 09-371
Issued: August 24, 2009

Case Submitted on the Record

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

JURISDICTION
On November 4, 2008 appellant filed a timely appeal from a December 18, 2008
nonmerit decision of the Office of Workers’ Compensation Programs’ Branch of Hearings and
Review that denied his request for an oral hearing. The Board also has jurisdiction over the
October 2, 2008 merit decision of the Office that denied his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits and nonmerits of appellant’s
claim.
ISSUES
The issues are: (1) whether appellant’s hearing loss claim was timely filed; and
(2) whether the Office properly denied his request for an oral hearing as untimely.
FACTUAL HISTORY
On April 2, 2008 appellant, a 52-year-old boilermaker welder, filed an occupational
disease claim (Form CA-2) for hearing loss. He attributed his hearing loss to exposure to high

noise levels produced by machinery and tools. Appellant alleged that he first became aware of
his hearing loss and its relationship to his federal employment in August 1982. He alleged that
he did not file his claim within 30 days of realizing his hearing loss was caused or aggravated by
his federal employment because he did not know he could file a workers’ compensation claim
for hearing loss until recently.
Appellant submitted reports from physical examinations conducted between
September 27, 1978 and October 10, 1989. He also submitted results from three audiograms
conducted by the employing establishment between September 1978 and July 1986, when
appellant was employed by Tennessee Valley Authority (TVA).
Appellant submitted a letter dated May 13, 2008, containing a detailed history of work
and conditions which he alleged contributed to his hearing loss. He reported that he first
identified his hearing loss in August 1982 based on his inability to hear during normal
conversations. Appellant also reported that he was no longer exposed to hazardous noise and
that his date of last exposure was March 9, 2007.
Appellant’s employment history demonstrated that appellant was employed by the TVA
during intermittent periods October 2, 1979 through December 20, 1991. After December 20,
1991 he was employed by several nonfederal employers who had contracts to perform work at
TVA facilities.
By decision dated October 2, 2008, the Office denied appellant’s claim, finding that his
claim was not filed in a timely manner as required by the Federal Employees’ Compensation
Act.
Appellant disagreed and requested an oral hearing.
November 14, 2008.

His request was postmarked

In a note dated October 28, 2008, appellant asserted that the application of the 30-day
filing period for an oral hearing was unfair and did not reflect the reality of his experience. He
alleged that the Office’s October 2, 2008 decision was not mailed until October 10, 2008 and not
received by him until the following week.
By decision dated December 18, 2008, the Office denied appellant’s hearing request
because his request was untimely filed.
LEGAL PRECEDENT -- ISSUE 1
In cases of injury on or after September 7, 1974, section 8122(a) of the Act states that an
original claim for compensation for disability or death must be filed within three years after the
injury or death.1 Section 8122(b) of the Act provides that, in latent disability cases, the time
limitation does not begin to run until the claimant is aware or by the exercise of reasonable
diligence should have been aware, of the causal relationship between the employment and the

1

5 U.S.C. § 8122(b).

2

compensable disability.2 The Board has held that, if an employee continues to be exposed to
injurious working conditions after such awareness, the time limitation begins to run on the last
date of exposure.3
ANALYSIS -- ISSUE 1
In this case, the Office denied appellant’s occupational disease claim on the grounds that
it was not timely filed. Appellant indicated that he became aware of his hearing loss in
August 1982. His last exposure to factors of his federal employment was December 12, 1991,
the date he was last employed by TVA. Because appellant admits awareness of his hearing loss
as of August 1982, none of the exceptions tolling the 30-day filing period for an oral hearing
apply and appellant’s claim was untimely filed.
While the record reflects that appellant had subsequent employment at TVA facilities,
these exposures occurred during employment experiences when appellant was an independent
contractor or an employee of an independent contractor. The Act excludes from the definition of
“employee” independent contractors and individuals employed by an independent contractor.4
The Board has held that, if an employee continues to be exposed to injurious employing
establishment working conditions5 after such awareness, the time limitation begins to run on the
last date of this exposure.6 Because his contact with TVA facilities and exposure to
employment-related noise after December 12, 1991 was in the capacity of an employee of an
independent contractor, he does not qualify as an “employee” for purposes of the Act and,
therefore, his date of last exposure is December 12, 1991, the last day he was employed by TVA.
Therefore, the time limitations period began to run no later than December 12, 1991 and ended
December 12, 1994. As appellant’s hearing loss claim was filed on April 2, 2008, his claim was
filed outside the three-year time limitation period and was untimely.
In the case of a latent disability, as in this case, the time for filing the claim does not
begin to run until the employee has a compensable disability and is aware, or reasonably should
have been aware, that his disability is causally related to his employment.7 In such a case, the
time for giving notice of injury begins to run when the employee knows, or reasonably should
have known, that he has a condition causally related to his employment, whether or not there is a
compensable disability.8 Appellant, however, admits that he became aware of his hearing loss as

2

Garyleane A. Williams, 44 ECAB 441 (1993).

3

Larry E. Young, 52 ECAB 264 (2001). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter
2.801.3 (April 1995).
4

5 U.S.C. § 8101(1)(c).

5

Continued employment by another employer does not count as employing establishment exposure.

6

See Willis E. Bailey, 49 ECAB 511 (1998).

7

5 U.S.C. § 8122(b).

8

Id.

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early as 1982. Because he was aware of his hearing loss as of August 1982, the time for filing
his claim commenced in 1991 when he was last exposed to noise in his federal employment.
However, a claim may also be allowed notwithstanding the time limitation if the
employee’s immediate supervisor had actual knowledge of the injury within 30 days of its
occurrence, or if written notice of the injury was given within 30 days pursuant to 5 U.S.C.
§ 8119.9 The Board has held that a program of annual audiometric examinations conducted by
an employing establishment in conjunction with an employee testing program is sufficient to
constructively establish actual knowledge of a hearing loss such as to put the immediate
supervisor on notice of an on-the-job injury.10 The knowledge must be such as to put the
immediate superior reasonably on notice of an on-the-job injury or death.11 The Office’s
procedure manual, interpreting section 8122(a)(1) of the Act, states:
“If an agency, in connection with a recognized environmental hazard, has an
employee testing program and a test shows the employee to have positive findings
this should be accepted as constituting actual knowledge. For example, an agency
where employees may be exposed to hazardous noise levels may give annual
hearing tests for exposed employees. A hearing loss identified on such a test
would constitute actual knowledge on the part of the agency of a possible work
injury.”12
In the present case, audiograms were conducted by the employing establishment on
September 27, 1978, October 10, 1981 and July 29, 1986, during which time appellant was
employed by TVA. Again, the Board also notes that the district medical adviser reported that
review of these audiograms revealed they demonstrated normal bilateral hearing at all
frequencies. Because there is no evidence demonstrating that the employing establishment had
knowledge, constructive or otherwise, of a hearing loss possibly related his federal employment,
the constructive knowledge exception to the 30-day filing period does not apply. Appellant’s
claim for hearing loss was untimely filed.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that, before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.13 Section 10.615 of the federal regulations
implementing this section of the Act provides that a claimant shall be afforded a choice of an
9

5 U.S.C. §§ 8122(a)(1), 8122(a)(2).

10

See Joseph J. Sullivan, 37 ECAB 526, 527 (1986) (constructive knowledge of possible employment-related
hearing loss provided by annual employing establishment audiograms); see also Federal (FECA) Procedural
Manual, Part 2 -- Claims, Time, Chapter 2.801.3(c) (March 1993).
11

Kathryn A. Bernal, 38 ECAB 470 (1987).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2. 801.7(d) (September 1990).

13

5 U.S.C. § 8124(b)(1).

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oral hearing or a review of the written record.14 The Office’s regulations provide that the request
must be sent within 30 days of the date of the decision for which a hearing is sought and also that
the claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.15
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act,16 has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.17 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.18
ANALYSIS -- ISSUE 2
Appellant’s request for an oral hearing before the Branch of Hearings and Review was
dated November 18, 2008, more than 30 days after the Office’s October 2, 2008 decision.
Therefore, his request for an oral hearing was not timely and he was not entitled to a hearing as a
matter of right. The Branch of Hearings and Review exercised its discretion in denying
appellant’s request for an oral hearing by finding that he could request reconsideration and
submit evidence not previously considered that establishes his claim was filed in a timely
manner.
Appellant asserted that application of the 30-day filing period for an oral hearing was
unfair and did not reflect the reality of his experience. He alleged that the Office’s October 2,
2008 decision was not mailed until October 10, 2008 and not received by him until the following
week. The Branch of Hearings and Review, in its December 18, 2008 decision, properly
exercised its discretion in determining whether to grant appellant’s hearing request and noted
that it had reviewed his claim and found that the issues involved in his claim could be equally
addressed through submitting additional evidence and requesting reconsideration or appeal to the
Board.
Thus, the Board finds that the Branch of Hearings and Review did not abuse its
discretionary authority in denying appellant’s untimely request for a hearing.

14

20 C.F.R. § 10.615.

15

Id. at § 10.616(a).

16

5 U.S.C. §§ 8101-8193.

17

Marilyn F. Wilson, 52 ECAB 347 (2001).

18

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).

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CONCLUSION
The Board finds that appellant has not established that he filed a timely claim. The Board
also finds that the Branch of Hearings and Review properly denied appellant’s request for an oral
hearing as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the December 18 and October 2, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 24, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


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

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

Docket No. 18-1718
Issued: May 9, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 30, 2018 appellant filed a timely appeal from an August 20, 2018 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition causally related to the accepted compensable factor of her federal employment.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that appellant submitted additional evidence on appeal. 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.

FACTUAL HISTORY
On July 2, 2018 appellant, then a 29-year-old mail processing clerk, filed a traumatic injury
claim (Form CA-1) alleging that she developed an emotional condition due to an argument with
her supervisor that day while in the performance of duty. On the claim form, L.C., the manager
of customer services, acknowledged that the incident occurred in the performance of duty, but she
noted that appellant wanted to return to her former station and did not like that she was instructed
to throw mail.
In a July 2, 2018 statement, appellant alleged that her supervisor, called her a derogatory
name during a conversation that related to break times and throwing mail. She also alleged that
during the same conversation, her supervisor raised her voice and warned her that “you don’t come
at me like that, you don’t want to mess with me.” Appellant indicated that she felt threatened and
that Manager S.B. did not defuse the situation.
In a July 2, 2018 statement, appellant’s supervisor acknowledged calling her a derogatory
name that day. In a July 2, 2018 statement, an unidentified coworker confirmed that the supervisor
had called appellant the derogatory name.
In a July 2, 2018 report, Dr. Nicole Huntress, Board-certified in pediatric sports medicine,
noted a history that appellant felt stress after a supervisor used profane langue towards her that
day. Appellant indicated that she had worked at the current branch for one month, but with the
employing establishment since 2015. Dr. Huntress noted the events as reported by appellant and
provided an assessment of emotional stress reaction. She indicated that appellant could return to
work her regular shift, but that she could not work at the current location. In July 5 and 10, 2018
work status notes, Dr. Huntress opined that appellant was able to work her entire shift, but not at
the current location.
In a development letter dated July 17, 2018, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim and advised her of the type of evidence needed.
It asked her to respond to an attached questionnaire and provide a medical opinion from an
attending psychiatrist or clinical psychologist with a detailed description of findings and
symptoms, results of all psychological testing, diagnoses and clinical course of treatment followed,
and an opinion supported by a medical explanation regarding the cause of her emotional condition.
OWCP afforded appellant 30 days to respond.
In response, OWCP received July 10 and 24, 2018 reports from Dr. Huntress which
diagnosed emotional stress reaction. In the July 24, 2018 report and accompanying work status
note, appellant was provided a full-duty work status and released from care. In an August 2, 2018
physician’s report, Dr. Huntress indicated that appellant was released to full duty on July 24, 2018.
By decision dated August 20, 2018, OWCP denied appellant’s claim. It found that she was
called a derogatory name by her supervisor on July 2, 2018, but did not accept that she was
threatened by her. OWCP further found that the medical evidence was signed by Dr. Huntress,

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who was neither a psychiatrist nor a clinical psychologist, and was thus insufficient to establish a
diagnosed medical condition to the accepted work event.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties, or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.3 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.4
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.5 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors.6
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered.7 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.8
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by

3

See J.W., Docket No. 17-0999 (issued September 4, 2018); Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler,
28 ECAB 125 (1976).
4

See J.W., id.; J.F., 59 ECAB 331 (2008); Gregorio E. Conde, 52 ECAB 410 (2001).

5

Pamela R. Rice, 38 ECAB 838, 841 (1987).

6

See A.A., Docket No. 17-0127 (issued June 18, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

7

D.L., 58 ECAB 217 (2006); Jerald R. Gray, 57 ECAB 611 (2006); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

8

See J.W., supra note 3; Robert Breeden, 57 ECAB 622 (2006).

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medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition causally related to the accepted factor of her federal employment.
OWCP accepted one compensable factor of employment that appellant was called a
derogatory name during a conversation with her supervisor, on July 2, 2018. It denied her claim
that during the same conversation the supervisor threatened her. The Board has recognized that
verbal threats when sufficiently detailed by the claimant and supported by evidence, may constitute
compensable employment factors.10 Appellant has not, however, established with corroborating
evidence that a specific threat was made against her and has not alleged or established that
management ignored or tolerated alleged threats or that it failed to take preventative action.11
While OWCP accepted that appellant was called a profanity by her supervisor, to establish
the acceptance of her claim for an employment-related emotional condition, appellant must also
submit rationalized medical evidence establishing that she has an emotional or psychiatric disorder
and that such disorder was causally related to the accepted compensable employment factor.12
The only medical evidence of record were reports from Dr. Huntress, a physician Boardcertified in pediatric sports medicine. Dr. Huntress’ reports are of reduced probative value on the
relevant issue of this case because she does not specialize in a field particular to appellant’s claimed
condition. She is a pediatric specialist and does not specialize in evaluating emotional conditions.
The Board has held that the opinions of physicians who have training and knowledge in a
specialized medical field have greater probative value concerning medical questions peculiar to
that field than the opinions of other physicians.13 In addition, Dr. Huntress’ reports are of limited
probative value as she did not provide any medical rationale in support of her opinion that appellant
sustained an emotional reaction in response to the profanity from the July 2, 2018 employment
incident. The Board has held that a report is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining how an employment incident could
have caused or aggravated a medical condition.14 As her reports lack necessary rationale, they are
insufficient to establish her claim.
An award of compensation may not be based upon surmise, conjecture or upon appellant’s
belief that there is a relationship between her medical conditions and her employment. As
9

D.R., Docket No. 18-1592 (issued February 25, 2019).

10

See J.W., Docket No. 17-0999 (issued September 4, 2018); T.G., 58 ECAB 189 (2006).

11

C.G., Docket No. 15-0909 (issued April 5, 2016).

12

See M.D., 59 ECAB 211 (2007); William P. George, 43 ECAB 1159, 1168 (1992).

13

See A.A., supra note 6; Lee R. Newberry, 34 ECAB 1294, 1299 (1983).

14

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

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appellant has not submitted sufficient probative medical evidence to establish that she sustained
an emotional condition causally related to the accepted compensable employment factor, she has
not met her burden of proof.15
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 an emotional
condition causally related to the accepted compensable factor of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2019
Washington, DC

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

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

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

15

See C.A., Docket No. 18-0824 (issued November 15, 2018); S.R., Docket No. 14-0238 (issued May 6, 2014).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHALL SERVICE,
Coraopolis, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1379
Issued: March 10, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 5, 2009 appellant, through his attorney, filed a timely appeal from an April 22,
2009 merit decision of the Office of Workers’ Compensation Programs regarding a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the case.
ISSUE
The issue is whether appellant established that he has more than a four percent permanent
impairment of his lower extremity, for which he received a schedule award.
On appeal, appellant’s representative contends that, when there is more than one method
of evaluating impairment, the method yielding the highest rating is appropriate. As
Dr. Michael J. Platto, Board-certified in physical medicine and rehabilitation, determined that
appellant sustained either 20 percent or 10 percent lower extremity impairment, the correct
impairment rating should have been 20 percent.

FACTUAL HISTORY
On September 8, 2006 appellant, then a 47-year-old civil aviation security specialist and
instructor, filed a traumatic injury claim (Form CA-1) alleging that he sustained a left knee injury
on August 21, 2006 while running during a certification course at the employing establishment’s
training facility. He claimed that his left knee buckled during a one and a half mile run and that
he experienced severe pain and tightness. The Office accepted the claim for left knee medial
meniscus tear.
On November 28, 2006 appellant underwent a left knee arthroscopy and partial medial
meniscectomy. On December 11, 2007 he underwent a diagnostic left knee arthroscopy, revision
of partial medial meniscectomy, partial synovectomy and chondroplasty of Grade 4
osteochondral lesion of the medial femoral condyles.
On March 16, 2009 appellant filed a claim for a schedule award (Form CA-7).
In a February 24, 2009 medical report, Dr. Platto discussed appellant’s occupational and
medical history. Physical examination revealed thigh measurements, 10 centimeters above the
lateral joint line, of 46 centimeters on the right and 47 centimeters on the left. Range of motion
of the left knee showed flexion of 122 degrees and extension lacking 2 degrees. Appellant had
full range of motion of the right knee, no tenderness to palpation and no swelling, erythema or
warmth around the left knee. Dr. Platto noted that appellant did have a slight varus deformity of
the left knee at five degrees but no varus or valgus of the right knee. He diagnosed left knee
pain, status post partial medial meniscectomy on November 28, 2006 and revision of partial
medial meniscectomy with excision of loose bodies and partial synovectomy on
December 11, 2007. Dr. Platto opined that, in accordance with Table 17-10 on page 537 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001) (A.M.A., Guides), a 5 degree varus deformity of the knee would convert to 8 percent
whole person or 20 percent lower extremity impairment. Alternatively, according to Table 17-33
on page 546, a diagnosis-based rating for a partial meniscectomy would convert to 4 percent
whole person or 10 percent lower extremity impairment. Dr. Platto noted that the range of
motion impairment, based on the varus deformity, would give a higher rating. However, he
opined that the diagnosis-based impairment rating of four percent was the most clinically
accurate representation of appellant’s overall function as he was able to walk normally, squat
down and get up. Appellant also demonstrated a full range of motion and did not appear to
experience pain with palpation around the left knee. Dr. Platto concluded that the diagnosisbased rating was most accurate and that appellant sustained four percent whole person
impairment from his left knee injury.1
On April 7, 2009 the Office forwarded Dr. Platto’s medical report to Dr. Arnold T.
Berman, a Board-certified orthopedic surgeon and Office medical adviser, for an impairment
rating in accordance with the A.M.A., Guides.

1

Dr. Platto also provided impairment ratings for appellant’s right and left shoulder. As appellant’s claim was
only accepted for a left knee injury, impairments to his shoulders are not at issue in this appeal.

2

In an April 18, 2008 medical report, Dr. Berman agreed with Dr. Platto that there were
two different methodologies for calculating appellant’s impairment: the diagnostic-based
method for a medial meniscectomy and range of motion method for a varus deformity. He stated
that diagnosis-based estimates and range of motion ratings, which included the charts involving
varus and valgus deformities, cannot be combined according Table 17-2 on page 527 of the
A.M.A., Guides. Dr. Berman recommended that the diagnosis-based estimate be used to
calculate impairment due to Dr. Platto’s opinion that this was the most accurate representation of
appellant’s overall functioning. He noted Dr. Platto’s finding that appellant was able to walk
normally, squat, demonstrate a full range of motion of the left knee and did not have pain with
palpation around the left knee. Dr. Berman found that, according to Table 17-33 on page 546, an
impairment rating for a partial medial meniscectomy equates to 2 percent impairment or 4
percent if done twice. He concluded that appellant sustained four percent permanent impairment
of the left lower extremity. Dr. Berman noted a maximum medical improvement date of
January 23, 2009, the date of Dr. Platto’s examination.
By decision dated April 22, 2009, the Office granted appellant a schedule award for four
percent impairment of the left lower extremity for two medial meniscectomies according to
Table 17-33 on page 546 of the A.M.A., Guides. It noted a maximum medical improvement date
of January 23, 2009.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act2 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.3 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.4 The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.5
The A.M.A., Guides provides three separate methods for calculating the impairment of an
individual: anatomic; functional and diagnosis based.6 The anatomic method involves noting
changes, including muscle atrophy, nerve impairment and vascular derangement, as found during
physical examination.7 The diagnosis-based method may be used to evaluate impairments
caused by specific fractures and deformities, as well as ligamentous instability, bursitis and
various surgical procedures, including joint replacements and meniscectomies.8 The functional
2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8107.

4

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

5

20 C.F.R. § 10.404.

6

A.M.A., Guides 525.

7

Id.

8

Id.

3

method is used for conditions when anatomic changes are difficult to categorize or when
functional implications have been documented and includes range of motion, gait derangement
and muscle strength.9 The evaluating physician must determine which method best describes the
impairment of a specific individual based on patient history and physical examination.10 When
uncertain about which method to use, the evaluator should calculate the impairment using
different alternatives and choose the method or combination of methods that gives the most
clinically accurate impairment rating.11 If more than one method can be used, the method that
provides the higher impairment rating should be adopted.12
ANALYSIS
The Office accepted that appellant sustained a torn medial meniscus of the left knee. The
issue is whether he sustained greater than four percent permanent impairment to his lower
extremity due to this injury.
In a February 24, 2009 medical report, Dr. Platto, appellant’s treating physician,
diagnosed left knee pain, status post partial medial meniscectomy on November 28, 2006 and
revision of partial medial meniscectomy on December 11, 2007. Physical examination revealed
a slight varus deformity of the left knee at five degrees.13 Dr. Platto found that the diagnosisbased method was a more clinically accurate representation of appellant’s overall function than
the range of motion method as he was able to walk normally, squat down and get up. Appellant
also demonstrated a full range of motion of the left knee and did not have pain with palpation
around the left knee. Using Table 17-33 on page 546, Dr. Platto stated that appellant sustained 4
percent whole person impairment, the equivalent of a 10 percent lower extremity impairment.14
The Board finds that Dr. Platto did not properly apply the A.M.A., Guides. In applying
Table 17-33, Dr. Platto inverted the ratings provided for whole person and lower extremity
impairment.15 Moreover, it appears as though he incorrectly used the four percent impairment
rating for a partial medial and lateral meniscectomy, instead of the two percent rating for a

9

Id. at 525, Table 17-1.

10

Id. at 548, 555.

11

Id. at 526.

12

Id. at 527, 555.

13

The A.M.A., Guides includes the impairment ratings for varus and valgus deformities in Chapter 17.2f for
calculating range of motion impairments. Thus, these deformities are rated through the range of motion method. Id.
at 537.
14

Id. at 546.

15

Although the A.M.A., Guides provides impairment figures for the whole person, the Act does not authorize the
payment of schedule awards for the permanent impairment of the whole person. Payment is authorized only for the
permanent impairment of specified members, organs or functions of the body. See Ernest P. Govednick, 27 ECAB
77 (1975).

4

partial medial meniscectomy. As Dr. Platto did not provide an impairment rating in accordance
with the A.M.A., Guides, his rating is of reduced probative value.16
The Office properly referred Dr. Platto’s medical report to Dr. Berman, an Office medical
adviser, for an impairment rating in accordance with the A.M.A., Guides. In an April 18, 2008
report, Dr. Berman found that appellant’s impairment could be rated with either the diagnosticbased method or the functional method using range of motion based on a varus deformity. He
noted that these methods could not be combined in accordance with Table 17-2 on page 527 of
the A.M.A., Guides.17 Dr. Berman recommended that the diagnosis-based method be used to
calculate appellant’s impairment based on Dr. Platto’s opinion that this was the most accurate
representation of appellant’s overall function. He noted Dr. Platto’s findings that appellant was
able to walk normally, squat, demonstrate a full range of motion of the left knee and did not have
pain with palpation around the left knee.18 Dr. Berman stated that Table 17-33 on page 546 of
the A.M.A., Guides provided two percent impairment rating for a partial medial meniscectomy.19
As appellant underwent two partial medial meniscectomies, he sustained four percent permanent
impairment to the lower extremity.
It is well established that, when the treating physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, his opinion is of diminished probative value in
establishing the degree of any permanent impairment. The Office may then rely on the opinion
of its medical adviser to apply the A.M.A., Guides to the findings reported by the treating
physician.20 The Board finds that Dr. Berman correctly applied the A.M.A., Guides to
Dr. Platto’s findings in concluding that appellant sustained four percent impairment of his lower
extremity. The Office properly relied on his opinion in granting appellant a schedule award for
four percent impairment of her lower extremities.
On appeal, appellant’s representative contends that appellant is entitled to a schedule
award for 20 percent impairment of the lower extremity, as this was the highest impairment
rating by Dr. Platto. In accordance with the A.M.A., Guides, the highest impairment rating is to
be used where, in a given instance, there are two methods of rating an injury that both produce
clinically accurate impairment ratings.21 This is not the situation in this case. As noted, both
Drs. Platto and Berman determined that the diagnosis-based method provided a more accurate
rating due to appellant’s overall functional capabilities than the functional method. They
provided a reasoned explanation for finding that the diagnosis-based method was the most
16

See J.Q., 59 ECAB___ (Docket No. 06-2152, issued March 5, 2008).

17

A.M.A., Guides 527.

18

During the physical examination, Dr. Platto also noted one centimeter left thigh atrophy. According to Table
17-2 on page 526 of the A.M.A., Guides, muscle atrophy cannot be combined with the diagnosis-based method of
determining impairment. Thus, appellant’s muscle atrophy was properly excluded from the impairment rating. Id.
at 526.
19

Id. at 546.

20

Linda Beale, 57 ECAB 429 (2006).

21

A.M.A., Guides 527, 555.

5

clinically accurate rating method in appellant’s case. As such, appellant’s impairment rating was
properly based on this method.22 The Board finds that the Office properly awarded appellant a
schedule award for four percent permanent impairment of the lower extremity.
CONCLUSION
The Board finds that appellant did not establish that he has more than a four percent
permanent impairment to his lower extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

22

See James R. Hill, 57 ECAB 583 (2006).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.Y., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, Kansas City, MO,
Employer
__________________________________________

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

Docket No. 16-0012
Issued: May 17, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 2, 2015 appellant, through counsel, filed a timely appeal from an August 13,
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 the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he is entitled
to a schedule award for permanent impairment of his lower extremities.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts as set forth in the prior Board
decisions are incorporated herein by reference.2 The facts relevant to this appeal are as follows.
OWCP accepted that on July 6, 2005 appellant, then a 47-year-old clerk, sustained a lumbar
strain/sprain while sorting mail. Appellant initially stopped work and received continuation of
pay, he returned to full duty on July 20, 2005.
Appellant filed a claim for a schedule award (Form CA-7) on September 23, 2011. By
decision dated November 10, 2011, OWCP denied his schedule award claim as he had not
submitted medical evidence establishing permanent impairment.
On November 11, 2011 Dr. M. Stephen Wilson, appellant’s treating orthopedic surgeon,
applied the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (2009) and The Guides Newsletter (July/August 2009)
and found that appellant had a seven percent permanent impairment of both lower extremities.
By decision dated April 30, 2012, an OWCP hearing representative affirmed OWCP’s
November 10, 2011 decision, as Dr. Wilson had not explained how appellant’s accepted
condition of lumbar sprain/strain caused a permanent impairment. Appellant requested
reconsideration and provided a June 8, 2012 report wherein Dr. Wilson provided further support
for his conclusion.
OWCP referred appellant’s case to an OWCP medical adviser who, in an April 14, 2012
report, concluded that Dr. Wilson’s report was deficient, and that his findings did not provide a
reliable basis upon which to rate impairment. By decision dated September 21, 2012, it denied
modification of the April 30, 2012 decision. Appellant appealed to the Board.
On appeal, the Board found that Dr. Wilson’s impairment rating was in conformance
with the protocols of the sixth edition of the A.M.A., Guides and The Guides Newsletter, and that
the medical adviser rejected his opinion largely because other physicians who had examined
appellant had not reported radicular pain, sensory deficit, or weakness. The Board remanded the
case for OWCP to refer appellant to an appropriate medical specialist for examination and an
opinion as to whether he sustained permanent impairment of either leg due to the residuals of his
accepted injury.3 The Board did not remand the case for an impartial medical evaluation.
On June 20, 2014 OWCP referred appellant to Dr. David Clymer, a Board-certified
orthopedic surgeon, for an impartial medical examination to resolve the conflict between the
medical adviser and appellant’s treating physician, Dr. Wilson. In an August 4, 2014 medical
report, Dr. Clymer summarized his physical findings and concluded that appellant probably did
sustain a low back sprain or strain as a result of the lifting injury in 2005, and that this probably
resulted in some temporary aggravation of the degenerative disc process as there was evidence of
2

Docket No. 13-106 (issued March 18, 2014); Docket No. 10-1647 (issued March 1, 2011); Docket No. 09-1736
(issued January 22, 2010).
3

Docket No. 13-106 (issued March 18, 2014).

2

back irritability and magnetic resonance imaging (MRI) scan evidence of some disc bulging at
the L4-5 and L5-S1 levels. He noted that although appellant had ongoing subjective discomfort,
there was no clear evidence of significant objective radiculopathy. In addition, subsequent MRI
scan studies have revealed no progression of the degenerative disc disease and, in fact they
demonstrated significant improvement in the appearance of the discs in the low back.
Dr. Clymer noted that appellant’s most recent MRI scan of October 3, 2013 revealed some facet
degenerative change at L5-S1, but only a tiny signal irregularity in the annulus without any
significant disc protrusion or disc extrusion which might cause any ongoing nerve root
impingement. He concluded that appellant sustained only a temporary aggravation and that he
would expect the lumbar disc pathology and his subjective symptoms to gradually improve and
return to preinjury status. Dr. Clymer opined that, based on appellant’s normal MRI scan study
of October 3, 2013, appellant’s temporary aggravation had ceased. He noted that he did not find
objective evidence of ongoing radicular residuals in the lower extremities and noted that
appellant had only moderate vague dysesthesia in the lower extremities which appeared to be in
a nondermatomal distribution. Dr. Clymer noted no objective evidence of radiculopathy. He
noted that as he did not find evidence of recurrent radicular signs and symptoms which could be
related specifically to a current and active lumbar condition resulting from the July 6, 2005 work
injury, he would not offer any opinion with regard to a permanent impairment rating which
would correlate with specific radiculopathy at this time.
By decision dated October 28, 2014, OWCP denied appellant’s claim for a schedule
award.
By letter dated November 3, 2014 appellant, through counsel, requested a telephonic
hearing.
In an April 23, 2015 report, Dr. Wilson opined that appellant sustained 11 percent
permanent impairment to the right lower extremity due to chronic radicular symptoms in his
right lower extremity causing mild sensory and mild motor deficits of the L5 spinal nerve. He
noted that spinal impairment for the right lower extremity is based on the use of Table 2 of the
A.M.A., Guides, Spinal Nerve Impairment, based on lower extremity impairments and factors
causing sensory and motor deficits. Dr. Wilson observed permanent anatomical abnormalities
and loss of function, which resulted in a class 1 (mild sensory deficit) of the L5 nerve with a
mid-range default value of one percent, and a class 1 (mild motor deficit) of the L5 nerve with a
mid-range default value of five percent, determined by appellant’s history of injury with
continued complaints of pain, neuropathy, and weakness present at the time of the examination.
He found grade modifiers 1 for functional history secondary to a pain disability questionnaire, a
grade 2 modifier for physical examination with a positive straight leg raising test, and a grade 1
modifier for clinical studies. Dr. Wilson noted that the total score for the modifiers was
(2-1)+(2-1)+(1-1) =2, which shifted the rating to the E position of 2 percent for mild sensory
deficit and 9 percent for mild motor deficit per proposed Table 2 of the A.M.A., Guides, and
yielded an impairment of 11 percent to the right lower extremity due to L5 radiculopathy.
At the hearing held on June 12, 2015 appellant’s counsel argued that Dr. Clymer’s
opinion was unclear and that OWCP should have requested clarification. He also argued that the
medical adviser could not serve as a second opinion therefore a conflict remained in the medical
evidence between Dr. Wilson and Dr. Clymer necessitating an impartial medical examination.

3

Appellant also testified that Dr. Clymer did not perform a thorough evaluation. He indicated that
he has constant irritating pain in his lower back and had problems with his right knee, right
ankle, and right thigh.
In a decision dated August 13, 2015, the hearing representative noted that Dr. Clymer
was not an impartial medical examiner (IME) because he had not examined appellant and
therefore could not create a conflict in the evidence. However, he affirmed the denial of the
schedule award as he found that the referee opinion of Dr. Clymer was better rationalized and
based on an accurate factual and medical background.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.4 FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.5 The A.M.A., Guides, has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.7
Although the A.M.A., Guides include guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8 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.9
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairment of the extremities. Recognizing that FECA allows ratings for
extremities and precludes ratings for the spine, The Guides Newsletter, (July/August 2009),
offers an approach to rating spinal nerve impairments consistent with sixth edition

4

5 U.S.C. § 8107.

5

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

6

20 C.F.R. § 10.404.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).
8

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

9

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

4

methodology.10 OWCP has adopted this approach for rating impairment to the upper or lower
extremities caused by a spinal injury.11
Section 8123(a) of FECA provides, if there is a 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.12 In situations where there are
opposing medical reports of virtually equal weight and rationale and the case is referred to an
IME for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based on a proper factual background, must be given special weight.13
ANALYSIS
OWCP accepted that appellant sustained a lumbar strain/sprain on July 6, 2005 during the
course of his federal employment. It denied his claim for a schedule award based on the opinion
of Dr. Clymer who found no objective evidence of ongoing radicular residuals in the lower
extremities and only moderate vague dysesthesia in the lower extremities which appeared to be
in nondermatomal distribution. The Board finds that the case is not in posture for decision.
Appellant’s treating physician, Dr. Wilson, initially found that appellant had seven
percent permanent impairment to both of his lower extremities. The medical adviser found this
report deficient and OWCP denied appellant’s claim for a schedule award. However, the Board
on prior appeal, remanded the case finding that Dr. Wilson’s impairment rating was in
conformance with the sixth edition of the A.M.A., Guides, and instructed OWCP to further
develop the medical evidence by referral to an appropriate medical specialist. No conflict
existed in the medical opinion evidence at the time of the remand because, as explained by the
hearing representative in the August 13, 2015 decision, the district medical adviser’s opinion that
appellant had no physical examination findings to substantiate a schedule award did not create a
conflict with Dr. Wilson’s opinion, as the medical adviser had not examined appellant.14
On remand, OWCP referred appellant to Dr. Clymer as an IME physician. Dr. Clymer
determined that although appellant had ongoing subjective discomfort, there was no clear
evidence of significant objective radiculopathy and noted that subsequent MRI scan studies
revealed no progression of his disc problems and actually demonstrated significant improvement
in the appearance of the discs of the low back. He noted that appellant’s most recent MRI scan
revealed some facet degenerative change at L5-S1, but only a tiny signal irregularity in the
annulus without any significant disc protrusion or disc extrusion which might cause any ongoing
nerve root impingement. Dr. Clymer found no objective evidence of ongoing radicular residuals
10

L.J., Docket No. 10-1263 (issued March 3, 2011).

11

Supra note 7 at Chapter 3.700, Exhibit 4 (January 2010).

12

5 U.S.C. § 8123(a).

13

Barbara J. Warren, 51 ECAB 413 (2000); see also B.C., Docket No. 15-0992 (issued August 11, 2015).

14

See generally A.A., Docket No. 15-0898 (issued July 28, 2015); supra note 7 at Chapter 2.810.8g
(September 2010).

5

in the lower extremities and noted that appellant had only moderate vague dysesthesia in the
lower extremities which appeared to be in a nondermatomal distribution. He noted no objective
evidence of radiculopathy and found no evidence of recurrent radicular signs and symptoms
which could be related specifically to a current and active lumbar condition resulting from the
July 6, 2005 employment injury. Accordingly, Dr. Clymer stated that he would not offer any
opinion with regard to permanent impairment rating which would correlate with specific
radiculopathy.
The Board finds that a conflict did not exist at the time of OWCP’s referral to Dr. Clymer
as an IME physician. The Board in its March 18, 2014 decision found that Dr. Wilson’s findings
were in fact within the protocols of the A.M.A., Guides and The Guides Newsletter and
remanded the case to OWCP to refer appellant to an appropriate specialist for examination.
Following the Board’s decision, OWCP sent appellant to Dr. Clymer for an IME examination to
resolve the conflict between Dr. Wilson and the DMA, Dr. Daniel D. Zimmerman.
In his April 14, 2012 report, the DMA, Dr. Zimmerman, stated generally that
Dr. Wilson’s ratings were clouded by concerns regarding reliability and credibility and that as
such, based on his general conclusions, his rating should be rejected. Chapter 2.810 of the
Federal (FECA) Procedural Manual, Developing and Evaluating Medical Evidence makes clear
that at a times when the opinion of the DMA is not strong enough to constitute a conflict with the
opinion of the treating physician, but which is nevertheless of sufficient value, is sufficient to
warrant further action. The Board finds that DMA, Dr. Zimmerman’s opinion did not contain a
strong enough opinion to create a conflict. As such, the Board finds that Dr. Clymer should be
converted to a second opinion physician and the case be referred to a new IME.
The Board finds that the report from Dr. Clymer as a second opinion physician is now in
conflict with the opinion of Dr. Wilson, who initially opined in a November 11, 2011 report that
appellant had seven percent permanent partial impairment of both his lower extremities, pursuant
to the A.M.A., Guides, as well as Dr. Wilson’s new report dated April 23, 2015, wherein
Dr. Wilson opined that appellant sustained 11 percent permanent impairment to the right lower
extremity due to chronic radicular symptoms in his right lower extremity.
Therefore, the case must be remanded to OWCP for further development. This
development shall include the appointment of an IME in accordance with 5 U.S.C. § 8123(a) to
obtain a report regarding the percentage of permanent impairment of appellant’s lower
extremities, according to a correct application of the sixth edition of the A.M.A., Guides. After
this and any other development deemed necessary, OWCP shall issue an appropriate merit
decision in the case.
CONCLUSION
The Board finds that this case is not in posture for decision.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 13, 2015 is set aside and the case is remanded for further
development consistent with this opinion.
Issued: May 17, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tujunga, CA, Employer
__________________________________________

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

Docket No. 09-972
Issued: December 14, 2009

Case Submitted on the Record

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

JURISDICTION
On March 3, 2009 appellant filed a timely appeal of a November 17, 2008 merit decision
of the Office of Workers’ Compensation Programs. 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 met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On April 26, 2005 appellant, then a 57-year-old sales associate, filed an occupational
disease claim alleging aggravated carpal tunnel syndrome due to continued use and repetitive
motions of her hands and wrists. She has a history of carpal tunnel syndrome since 1989 when
she worked as a distribution clerk. Appellant first realized that her condition was caused or
aggravated by employment activities on June 23, 2004. She did not immediately stop work
although the employing establishment advised that she previously stopped work as a distribution

clerk on September 15, 1995 and returned to work on February 2, 2003 as a sales associate. The
employing establishment controverted the claim indicating that appellant was not employed
between September 15, 1995 and February 3, 2003.1 The employing establishment noted that
appellant’s job as a sales associate did not require constant keyboard use.
Appellant submitted a December 5, 2004 statement noting that her carpal tunnel
syndrome symptoms first began in December 1989. She noted becoming a sales associate in
February 2003 and since had several episodes of carpal tunnel syndrome. In particular, appellant
indicated that using her right hand for keyboarding worsened her condition. She also submitted
several medical reports dated between 1992 and 2003. This included reports dated December 26,
2002 and January 31, 2003 from Dr. Glenn Takei, a Board-certified orthopedic surgeon, who
found moderately severe right carpal tunnel syndrome and possible underlying rheumatoid
arthritis. On January 16, 2003 Dr. Charles Imbus, a Board-certified neurologist, diagnosed
moderately severe carpal tunnel syndrome with some wallerian degeneration present.
After the Office requested additional factual and medical evidence, appellant submitted
several photographs of her work area.
In a July 13, 2005 decision, the Office denied appellant’s claim finding insufficient
medical evidence to establish causal relationship. In a September 12, 2005 decision, it denied
her oral hearing request as untimely filed.
Appellant subsequently submitted reports dated August 15 and 28, 2001 from
Dr. Raymond Gritton, a Board-certified physiatrist, who diagnosed very mild rheumatoid
arthritis and noted that appellant’s job as a distribution clerk required repetitive lifting and
sorting mail.
On May 15, 2006 appellant requested reconsideration. In a statement of the same date,
she noted that she had tested false positive for rheumatoid arthritis as a result of her hepatitis C
condition. Appellant was also diagnosed with acute tendinitis due to repetitive hand use as
required by her work duties. She described her job duties as a distribution clerk which required
repeated movement of her wrists, hands and fingers. Appellant also described her sales associate
duties that included keyboarding, reaching and lifting packages. She indicated that her condition
improved with cessation of activities and, therefore, she had been off work for several months.
Appellant also provided a list of previous diagnoses and physicians who had treated her.
Appellant submitted medical reports dated between December 17, 1991 and June 23,
1993 opining that her position as a distribution clerk caused bilateral chronic sub-acute tendinitis
of the hands and forearms and aggravated her rheumatoid arthritis. She also submitted more
contemporaneous reports including June 16, 2004 x-ray results of her left hand and wrist from
Dr. Michael Smith, a diagnostic radiologist, who diagnosed minor degenerative change with
slight narrowing of the radiocarpal joints. On November 22, 2004 Dr. Soon-Min Tan, a Board1

The employing establishment terminated appellant on September 15, 1995 for excessive absences. Appellant
has a prior claim, xxxxxx996, that the Office accepted for bilateral flexor tenosynovitis and temporary aggravation
of rheumatoid arthritis both wrists. This claim was accepted for medical treatment for the closed period of June 13,
1990 to May 31, 1992. Claim number xxxxxx996 is not presently before the Board.

2

certified internist, noted that appellant’s history of injury consisted of various joint pain since
1988 and a diagnosis of rheumatoid arthritis and tendinitis. He found that her examination was
remarkable for lack of synovitis. Dr. Tan diagnosed right carpal tunnel syndrome, right hand
pain and doubted that appellant had rheumatoid arthritis. On May 11, 2006 Dr. Marek Zdarzyl,
an internist, noted treating appellant since March 2006 for hyperlipidemia, depression and
hepatitis C. He noted that she requested his opinion as to whether her carpal tunnel syndrome
was caused by the type of work she used to do. Dr. Zdarzyl noted that the medical records
indicated the nature of appellant’s employment and repetitive use of her hands and fingers were
the causative factor. He also noted that all rheumatologists who treated her found she did not
have rheumatoid arthritis but had a positive rheumatoid factor test. Dr. Zdarzyl indicated that his
report was based solely on a review of the medical records presented by appellant.
In a July 6, 2006 decision, the Office denied modification of its July 13, 2005 decision
finding the medical evidence insufficient to establish causal relationship. It further found that, as
appellant was not employed by the employing establishment between September 15, 1995 and
February 3, 2003, the period of exposure began on February 4, 2003 when she began working as
a sales associate.
In a July 6, 2006 statement, appellant requested reconsideration. In a subsequent undated
statement, she noted that the present claim began in 1994. Appellant also noted working in 1994
as a dispatch clerk performing repetitive breakdown and throwing of mail. She indicated that she
was terminated in 1995 for an inability to perform her duties due to continuous symptoms and
pain. Appellant also noted that, prior to returning to work in 2003, she tested positive for carpal
tunnel syndrome. She indicated that she returned to work in 2003 as a window clerk, which
required repeated movement and flexing of her wrists, holding arms in the air, lifting above her
shoulders and rapid finger movement. Appellant had to take time off again due to severe pain.
On September 1, 2006 she stated that she was hired by the employing establishment in
August 1988. Appellant noted receiving compensation from January through May 31, 1992 for
right wrist acute tendinitis. She indicated that she separated from the employing establishment in
June 1992 for excessive absences. Appellant was rehired in 1994 and performed dispatch clerk
duties which caused her claimed condition. She stated that she was terminated in June 1995 for
excessive absences due to her condition and rehired in November 2002 as a sales associate.
Appellant reiterated that her sales clerk duties aggravated her carpal tunnel syndrome. On
July 15, 2007 she noted that she was waiting for her physician’s report on causal relationship.
On August 15, 2007 Dr. John Osterkamp, a Board-certified orthopedic surgeon, noted
that his examination revealed limited motion of the fingers and wrist. He diagnosed left colles
fracture with residual carpal tunnel syndrome and stiffness of hand.
Dr. Osterkamp
recommended surgery. In a September 26, 2007 report, Dr. Jean Ding, a Board-certified
orthopedic surgeon, noted appellant’s complaint of bilateral constant hand numbness right worse
than left, bilateral upper extremity pain and swelling. She noted that appellant’s examination
revealed normal range of motion of the right upper extremity and spine as well as a normal
neurological examination. Dr. Ding noted cumulative trauma from repetitive use of the upper
extremities for writing, lifting, pushing and pulling. She diagnosed bilateral carpal tunnel
syndrome and right ganglion cyst. Dr. Ding opined that appellant’s diagnosed conditions were
caused by industrial exposure and secondary to work activities based on appellant’s medical
history and records.

3

In an October 3, 2007 decision, the Office denied modification of its July 6, 2007
decision finding that the medical evidence did not establish causal relationship between
appellant’s wrist and hand condition and her work activities from 2003.
On October 2, 2008 appellant requested reconsideration. In an October 1, 2008
statement, she indicated that she was submitting additional medical evidence. Appellant also
noted that she underwent carpal tunnel release surgery. She submitted an electromyogram
(EMG) report dated April 8, 2008 without a physician’s name. The EMG report noted findings
and advised that the study was consistent with extremely severe right carpal tunnel syndrome and
very severe left carpal tunnel syndrome. It also suggested further clinical correlation.
In a November 17, 2008 decision, the Office denied modification of its October 3, 2007
decision finding the medical evidence insufficient to establish an injury causally related to
appellant’s federal duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act 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 filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.2
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
diagnosed condition is causally related to the employment factors identified by the claimant.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,

2

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

3

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

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and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.4
ANALYSIS
The record supports that the duties of appellant’s sales associate position included
keyboarding, reaching and lifting packages. However, appellant has not provided sufficient
medical evidence to establish that her preexisting carpal tunnel syndrome has been aggravated
due to these employment activities.
On September 26, 2007 Dr. Ding diagnosed bilateral carpal tunnel syndrome and right
ganglion cyst. She noted that appellant sustained cumulative trauma from repetitive use of her
upper extremities for writing, lifting, pushing and pulling. Dr. Ding opined that appellant’s
diagnosed conditions were secondary to work activities and caused by industrial exposure.
Although she supports causal relationship, she does not provide any medical rationale explaining
how appellant’s repetitive duties as a sales associate specifically aggravated her carpal tunnel
condition and was not a natural progression of her preexisting hand and wrist conditions.5
Dr. Ding’s report did not demonstrate a familiarity with any particular work duties in appellant’s
job as a sales associate that she performed since 2003. This distinction is particularly important
as the medical evidence demonstrates that appellant has a history of hand and wrist conditions
since 1988.6 Thus, Dr. Ding’s report is insufficient to establish appellant’s claim for aggravation
of carpal tunnel syndrome due to her duties as a sales associate.
In a May 11, 2006 report, Dr. Zdarzyl noted that he treated appellant for hyperlipidemia,
depression and hepatitis C. He further noted that appellant requested his opinion regarding the
cause of her carpal tunnel syndrome. Dr. Zdarzyl opined that based on the medical records that
appellant presented to him, repetitive use of hands and fingers were the causative factor in her
condition. Despite providing some support for causal relationship, his opinion is of little
probative value as he did not provide any medical rationale to explain the reasons for his opinion
and did not appear to be familiar with particular duties of appellant’s sales associate job.7
Dr. Tan’s November 22, 2004 report noted appellant’s history of joint pain since 1988.
She also diagnosed right carpal tunnel syndrome and right hand pain. He did not, however,
attribute a cause of appellant’s condition or explain whether it was caused or aggravated by
appellant’s duties as a sales associate. The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
5

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009); George Randolph Taylor, 6 ECAB 986, 988
(1954) (where the Board found that a medical opinion not fortified by medical rationale is of little probative value).
6

See Vernon R. Stewart, 5 ECAB 276, 280 (1953) (where the Board held that medical opinions based on histories
that do not adequately reflect the basic facts are of little probative value in establishing a claim).
7

See id.

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the issue of causal relationship.8 Similarly, the reports of Drs. Smith and Osterkamp diagnosed
appellant’s hand and wrist condition but did not address the issue of causal relationship. As
noted, medical evidence without an opinion on causal relationship is of little probative value.
Appellant has also submitted various medical evidence from her prior claim that predates the
current claim and the duties that she began performing in 2003.
The record also contains an EMG report dated April 8, 2008 that diagnosed severe
bilateral carpal tunnel syndrome. The report did not contain the name or signature of a physician
who performed the EMG. The Board has held that a medical report may not be considered as
probative medical evidence if there is no indication that the person completing the report
qualifies as a physician as defined in 5 U.S.C. § 8102(2), and reports lacking proper
identification do not constitute probative medical evidence.9 Consequently, appellant has not
submitted sufficient medical evidence to establish a causal relationship between her carpal tunnel
condition and her duties as a sales associate.
On appeal, appellant asserts that her condition began in 1994 but was misdiagnosed as
rheumatoid arthritis. She further asserts that most of her treating physicians did not feel they
were qualified to show causal relationship as they did not treat her for carpal tunnel syndrome.
The Board notes that the medical evidence of record reflects that appellant has been diagnosed
with carpal tunnel syndrome, and accordingly, her claim has been treated as an occupational
disease claim for aggravated carpal tunnel syndrome. However, appellant has the burden of
establishing by the weight of the reliable, probative and substantial evidence that the condition for
which she claims compensation was caused or adversely affected by factors of her federal
employment.10 As noted, she has not submitted sufficient medical evidence to meet this burden.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an occupational disease in the performance of duty.

8

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

9

See D.D., 57 ECAB 734 (2006) (medical reports lacking proper identification cannot be considered as probative
evidence in support of a claim).
10

B.F., 60 ECAB ___ (Docket No. 09-60, issued March 17, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 17, 2008 is affirmed.
Issued: December 14, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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