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

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-296
Issued: May 5, 2014

Case Submitted on the Record

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

JURISDICTION
On November 20, 2013 appellant, through counsel, filed a timely appeal from a May 24,
2013 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 OWCP properly determined that appellant was not entitled to an
additional schedule award for her right leg.
FACTUAL HISTORY
On April 18, 2009 appellant, then a 58-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained an injury on August 11, 2009 when she fell in the

1

5 U.S.C. § 8101 et seq.

performance of duty while carrying a bin. OWCP accepted the claim for a right ankle sprain, left
knee contusion and sprain.
In a report dated September 22, 2010, Dr. Nicholas Diamond, an osteopath, provided a
history and results on examination. He opined that, under the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment, appellant had an 18
percent right leg permanent impairment. Dr. Diamond indicated that the impairment was based
on a right knee meniscal injury, right knee patellofemoral arthritis and right ankle instability. He
also opined that appellant had a 17 percent left leg impairment.2
By report dated June 9, 2011, an OWCP medical adviser concurred that the right leg
permanent impairment was 18 percent based on the right knee and ankle. The record also
contains a September 17, 2011 report from another OWCP medical adviser indicating that the
right leg impairment was 18 percent.
In a decision dated November 3, 2011, OWCP found appellant was not entitled to a
schedule award for the right leg. According to it, she had received a schedule award for a 38
percent right leg permanent impairment under another claim (OWCP File No. xxxxxx270).
Appellant requested a hearing before an OWCP hearing representative, which was held
on March 14, 2012. In a report dated November 2, 2011, Dr. Diamond again opined that
appellant had an 18 percent right leg impairment.
In a decision dated June 6, 2012, OWCP’s hearing representative stated that appellant
had received schedule awards for 50 percent to the right leg under the other claim, which had
been accepted for a bunion to the foot. The hearing representative indicated that the sixth edition
of the A.M.A., Guides was now in use and found that further review by an OWCP medical
adviser was warranted to determine if appellant was entitled to an additional award “for a
combined rating.”
In a report dated July 26, 2012, an OWCP medical adviser stated that there was no
evidence that the right knee was ever directly injured. He found the impairment for right ankle
instability was one percent. In a report dated November 28, 2012, an OWCP medical adviser
stated that appellant had sustained an injury on June 21, 2000, accepted for bunion of the right
foot and aggravation of bunionectomy. He reported that “apparently” appellant had received a
schedule award for a 50 percent right leg impairment. The medical adviser opined that
appellant’s current impairment based on the right knee and ankle was 18 percent.
By decision dated January 17, 2013, OWCP found appellant was not entitled to an
additional schedule award for the right leg. It noted that the November 28, 2012 report of
OWCP’s medical adviser found that she had an 18 percent right leg impairment, but she had
previously received schedule awards for 50 percent.
Appellant requested a review of the written record. In a decision dated May 24, 2013, an
OWCP hearing representative affirmed the January 17, 2013 decision.
The hearing
2

The decision on appeal discusses only the right leg; a permanent impairment to the left leg is not before the
Board on this appeal.

2

representative found that, while appellant currently had an 18 percent right leg impairment, she
had previously received an award for 50 percent impairment and was not entitled to an additional
award.
LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.3 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment
as the uniform standard applicable to all claimants.4 For schedule awards after May 1, 2009, the
impairment is evaluated under the sixth edition.5
It is well established under FECA regulations that benefits payable under section 8107(c)
shall be reduced by the period of compensation paid or payable under the schedule for an earlier
injury if: (1) compensation in both cases is for impairment of the same member or function or
different parts of the same member or function; and (2) the latter impairment in whole or in part
would duplicate the compensation payable for the preexisting impairment.6 The Board has held
that OWCP must adequately explain how the latter impairment duplicated the compensation the
claimant previously received under a separate file number.7
ANALYSIS
In the present case, OWCP found that appellant was not entitled to a right leg schedule
award resulting from her August 11, 2009 employment injury. It acknowledged that the medical
evidence established an 18 percent right leg impairment based on the right knee and ankle. The
stated reason for denying a schedule award was that appellant had previously received a schedule
award for a 50 percent right leg impairment under a prior 2000 claim, which is not
administratively associated with the current claim. Since the 18 percent current impairment is
less than 50 percent, OWCP found appellant was not entitled to an additional schedule award.
OWCP findings in this case are not in accord with the above legal precedent. To reduce
current entitlement to a schedule award, the prior schedule award must not only be for the same
member, but it must also duplicate the prior impairment. The information provided in the
current file indicated that the prior award was for a right foot bunion, while the current
3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(b).
4

A. George Lampo, 45 ECAB 441 (1994).

5

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

6

20 C.F.R. § 10.404(d).

7

T.S., Docket No. 09-1308 (issued December 22, 2009).

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impairment was based on the right knee and ankle. OWCP did not cite to the appropriate legal
precedent, did not properly develop the medical evidence on the issue or otherwise explain how
the current impairment duplicated the prior impairment.8
The case will be remanded to OWCP for proper findings on the schedule award issue
presented. To aid adjudication of the issue, OWCP should administratively combine the relevant
case files with respect to a right leg permanent impairment.9 After such further development as
OWCP deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds the case is not in posture for decision and is remanded to OWCP to
properly adjudicate the schedule award issue presented.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 24, 2013 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: May 5, 2014
Washington, DC

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

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

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

8

See, e.g., R.H., Docket No. 11-1754 (issued April 24, 2010) (where an OWCP medical adviser found that a
current carpal tunnel impairment did not duplicate a prior lateral epicondylitis impairment).
9

See R.B., Docket No. 13-792 (issued July 25, 2013) (OWCP was directed to combine case files with respect to
whether a prior schedule award duplicated a current impairment).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 09-557
Issued: October 1, 2009

Case Submitted on the Record

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

JURISDICTION
On December 22, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 17, 2008 merit decision concerning his wage-earning capacity.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation on
October 26, 2008 based on his capacity to earn wages as an information clerk.
FACTUAL HISTORY
The Office accepted that on April 24, 1999 appellant, then a 38-year-old casual clerk,
sustained a lumbar strain, lumbar subluxation and herniated lumbar disc at L5-S1 due to lifting a
heavy mail sack at work. Appellant stopped work on July 1, 1999 and has not returned. He
initially received care from a chiropractor but in July 1999, he came under the care of
Dr. Gerald Wahl, a Board-certified neurologist.

In October 2000, the Office referred appellant for vocational rehabilitation services.
Appellant started training in March 2001, for the target positions of cashier, night auditor and
audit clerk, each of which required occasional lifting up to 10 pounds and occasional walking
and standing. He stopped training in November 2001 due to reported back pain. Dr. Wahl
recommended back surgery, but appellant chose not to undergo such a procedure.
In May 2007, the Office referred appellant to Dr. Robert S. Ferretti, a Board-certified
orthopedic surgeon.1 In a June 27, 2007 report, Dr. Ferretti reviewed appellant’s medical history
including the treatment he received since his April 11, 1999 work injury. On examination,
appellant was able to walk on his heels and toes and fully squat without any difficulty. His back
had a normal contour with no muscular spasm, list or scoliosis. On digital palpation of
appellant’s back, Dr. Ferretti reported no areas of tenderness, including sciatic notches. During
active forward flexion of appellant’s back, he was able to touch his fingertips to the floor and
recover the erect position normally without complaint. Dr. Ferretti noted that the remainder of
the active range of motion testing was full without complaint, deep tendon reflexes of the legs
were present and equal bilaterally and there was no muscular atrophy, motor weakness or
sensory deficit of the legs. Girths of the thighs and calves are equal at the same points
bilaterally.
Dr. Ferretti advised that appellant continued to have subjective residuals of his April 11,
1999 work injury, including “poorly described periods of low back and pelvic region pain and
brief diffuse numb sensation of the left lower extremity, unrelated to any particular activity.” He
noted that there were no objectives findings of spinal nerve root involvement2 or any other
neurological abnormality and indicated that the remainder of the physical examination findings
regarding the low back and legs were unremarkable. Dr. Ferretti found that appellant was
capable of working eight hours per day with permanent restrictions, including lifting up to 20
pounds for four hours per day, pushing or pulling up to 30 pounds for four hours per day,
twisting, bending or stooping for four hours per day and squatting or climbing for two hours per
day.3 He indicated that appellant did not have any preexisting conditions that caused disability.
In July 2007, the Office again referred appellant for vocational rehabilitation services. In
a November 20, 2007 decision, it suspended appellant’s compensation for not cooperating with
vocational rehabilitation efforts. In a January 22, 2008 letter, appellant advised the Office that he
was willing to cooperate with vocational rehabilitation efforts and the Office reinstated his
compensation.4 He began working as a parking lot attendant for a private employer but was
subsequently fired when a background check disclosed that he had a conviction for assault with a
1

At the time of the referral, the record had been devoid of new medical reports from attending physicians for
about a year and a half.
2

Dr. Ferretti noted that diagnostic testing showed broad-based bulging or herniation at L5-S1 without
neurological structure compression.
3

Dr. Ferretti stated that he had reviewed the job descriptions for the cashier and audit clerk positions and posited
that appellant could perform these positions on a full-time basis.
4

Around this time, appellant obtained documentation of his resident alien status which allowed him to work
legally in the United States.

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deadly weapon. Appellant’s vocational rehabilitation counselor then pursued positions for which
his conviction would not be a barrier. Appellant did not receive any further offers for a job.
In October 2007, appellant’s vocational rehabilitation counselor determined that based
upon appellant’s experience, education, medical restrictions, and a labor market survey, he was
able to work as an information clerk. The position was sedentary in nature and involved
answering inquiries from visitors and coworkers. It required occasional lifting of up to 10
pounds, but did not require climbing, kneeling or crouching. A labor market survey revealed that
the position was reasonably available in appellant’s commuting area and that the average salary
was $420.00 per week.5
In a January 22, 2008 letter, the Office advised appellant that the information clerk
position was suitable to his restrictions and that he would receive 90 days of placement
assistance to help him locate work in such a position. Appellant’s compensation would be
reduced based upon the salary of the position at the end of these services. He did not obtain
employment during this 90-day period.
In an August 7, 2008 letter, the Office advised appellant of its proposed reduction of his
compensation based on his ability to work as an information clerk. It provided appellant with 30
days to provide evidence and argument if he disagreed with this proposed action. He did not
submit any evidence or argument.
In an October 17, 2008 decision, the Office reduced appellant’s compensation as of
October 26, 2008 based on his capacity to earn wages as an information clerk.6
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.7 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.8
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent his wage-earning capacity. If the actual earnings do not fairly and
reasonably represent wage-earning capacity, or if the employee has no actual earnings, his wageearning capacity is determined with due regard to the nature of his injury, his degree of physical
impairment, his usual employment, his age, his qualifications for other employment, the
5

Appellant’s vocational rehabilitation counselor provided an opinion that appellant’s criminal record would not
serve as a bar to working as an information clerk.
6

The Office applied the principles set forth in Albert C. Shadrick, 5 ECAB 376 (1953), to determine the
percentage of appellant’s loss of wage-earning capacity.
7

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

8

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

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availability of suitable employment and other factors and circumstances which may affect his
wage-earning capacity in his disabled condition.9 Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment
conditions.10 The job selected for determining wage-earning capacity must be a job reasonably
available in the general labor market in the commuting area in which the employee lives.11
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 his 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.12
In determining wage-earning capacity based on a constructed position, consideration is
given to the residuals of the employment injury and the effects of conditions which preexisted
the employment injury.13 In determining wage-earning capacity based on a constructed position,
consideration is not given to conditions which arise subsequent to the employment injury.14 The
fact that an employee has been unsuccessful in obtaining work in the selected position does not
establish that the work is not reasonably available in his commuting area.15
ANALYSIS
The Office accepted that on April 24, 1999 appellant sustained a lumbar strain, lumbar
subluxation and herniated lumbar disc at L5-S1 due to lifting a heavy mail sack at work.
Appellant stopped work on July 1, 1999 and did not return. In an October 17, 2008 decision, the
Office reduced his compensation effective October 26, 2008 based on his capacity to earn wages
as an information clerk.

9

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

10

Albert L. Poe, 37 ECAB 684, 690 (1986), David Smith, 34 ECAB 409, 411 (1982).

11

Id.

12

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick supra note 6.
13

See Jess D. Todd, 34 ECAB 798, 804 (1983).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(d) (December 1995).
15

See Leo A. Chartier, 32 ECAB 652, 657 (1981).

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The Office received information from Dr. Ferretti, an attending Board-certified
orthopedic surgeon, who served as an Office referral physician, advising that appellant could
work within specified restrictions.16 In a June 27, 2007 report, Dr. Ferretti noted that appellant
had some subjective complaints and indicated that he was capable of working eight hours per
day with permanent restrictions, including lifting up to 20 pounds for four hours per day, pushing
or pulling up to 30 pounds for four hours per day, twisting, bending or stooping for four hours
per day and squatting or climbing for two hours per day.17 He indicated that appellant did not
have any preexisting conditions that caused disability. Dr. Ferretti explained his opinion by
stating that, although appellant showed a herniated L5-S1 disc on diagnostic testing, there was no
evidence of neurogical involvement. He further noted that appellant had essentially normal
findings in his back and legs on physical examination. Appellant’s back had a normal contour
with no muscular spasm, list or scoliosis and he had good range of motion of the legs without
muscular atrophy or sensory or strength loss.18
In October 2007, appellant’s vocational rehabilitation counselor determined that based
upon appellant’s experience, education, medical restrictions and a labor market survey, he was
able to work as an information clerk. The position was sedentary in nature and involved
answering inquiries from visitors and coworkers. It required occasional lifting of up to 10
pounds, but did not require climbing, kneeling or crouching. A labor market survey revealed that
the position was reasonably available in appellant’s commuting area and that the average salary
was $420.00 per week.
The Board finds that the well-rationalized opinion of Dr. Ferretti establishes that
appellant was able to perform the information clerk position. The job duties and physical
requirements of the position are well within the work restrictions outlined by Dr. Ferretti. There
is no medical evidence establishing that appellant remains totally disabled or unable to
physically perform the information clerk position. His vocational rehabilitation counselor
properly determined that he was able to perform the position of information clerk position and
that state employment services showed the position was available in sufficient numbers so as to
make it reasonably available within his commuting area. The Office properly relied on the
opinion of the rehabilitation counselor that appellant was vocationally capable of performing the
information clerk position.19 Appellant did not submit any evidence or argument showing that
he could not vocationally or physically perform the information clerk position.

16

At the time of the referral to Dr. Ferretti, the record had been devoid of new medical reports from attending
physicians for about a year and a half.
17

Dr. Ferretti also stated that appellant could work as a cashier or audit clerk, positions which had physical duties
similar to those of the information clerk position.
18

On digital palpation of appellant’s back, he reported no areas of tenderness, including sciatic notches. During
active forward flexion of his back, he was able to touch his fingertips to the floor and recover the erect position
normally without complaint.
19

Appellant’s vocational rehabilitation counselor provided an opinion that appellant’s criminal record would not
serve as a bar to working as an information clerk. There is no evidence of record showing that it would in fact serve
as a bar.

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The Office considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the position of information clerk represented appellant’s wage-earning
capacity.20 The weight of the evidence of record establishes that appellant had the requisite
physical ability, skill and experience to perform the position of information clerk and that such a
position was reasonably available within the general labor market of his commuting area.21
Therefore, the Office properly reduced appellant’s compensation effective October 26, 2008
based on his capacity to earn wages as an information clerk.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
October 26, 2008 based on his capacity to earn wages as an information clerk.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 17, 2008 decision is affirmed.
Issued: October 1, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

20

See Clayton Varner, 37 ECAB 248, 256 (1985).

21

On appeal, appellant suggested that the adjustment of his compensation was improper because he remained
unemployed. However, the Board has held fact that an employee has been unsuccessful in obtaining work in the
selected position does not establish that the work is not reasonably available in his commuting area.
See supra note 15.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
DEPARTMENTOF VETERANS AFFAIRS,
SOUTHERN ARIZONA VETERANS
ADMINISTRATION HEALTHCARE
SYSTEMS, Tucson, AZ, Employer
__________________________________________

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

Docket No. 19-0679
Issued: April 6, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 7, 2019 appellant filed a timely appeal from September 13 and December 19,
2018 merit decisions 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

1
2

5 U.S.C. § 8101 et seq.

Appellant also indicated that she was filing an appeal from an OWCP April 24, 2018 decision. Under the Board’s
Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an OWCP decision. An
appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. § 501.3(e)-(f). One
hundred and eighty days from April 24, 2018, was October 21, 2018, a Sunday; consequently, the period for filing the
appeal ran to the next business day, Monday, October 22, 2018. See 20 C.F.R. § 501.3(f)(2). As appellant filed the
appeal on February 7, 2019, the Board is without jurisdiction to review the April 24, 2018 decision.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of disability commencing May 19, 2016 causally related to her accepted lumbar conditions; and,
(2) whether she met her burden of proof to establish entitlement to wage-loss compensation on
May 11, 2017 due to attendance at a medical appointment.
FACTUAL HISTORY
On August 4, 2011 appellant, then a 45-year-old registered nurse, filed an occupational
disease claim (Form CA-2) alleging that factors of her federal employment including continual
lifting, pulling, turning, and cleaning patients caused lumbar pain. She indicated that she first
realized she had the condition and its relationship to her federal employment on May 1, 2010.
Appellant stopped work on August 15, 2011. On September 12, 2011 Dr. Timothy K. Putty, a
Board-certified neurosurgeon, performed lumbar surgery. OWCP accepted aggravation of
synovial cyst, aggravation of acquired spondylolisthesis, and aggravation of spinal stenosis,
lumbar region. It paid retroactive compensation, effective September 1, 2011. Appellant returned
to work in a full-duty capacity on August 14, 2012. On March 1, 2013 Dr. Putty provided a 25pound lifting restriction. On March 19, 2013 appellant accepted a modified position within
Dr. Putty’s restrictions.3
On February 5, 2015 Dr. Putty limited appellant’s activity to lifting 25 pounds maximum,
with frequently and/or carrying objects up to 15 pounds. He limited standing and sitting to two
hours with no bending.
On June 13, 2016 appellant filed a notice of recurrence (Form CA-2a). She indicated that
the recurrence occurred on May 19, 2016, noting that her low back pain had been increasing, that
she had moderate carpal tunnel syndrome, and that she had a mental breakdown related to
workplace stress because management requested that she work outside her restrictions and
changed her job assignment. K.I., a workers’ compensation manager with the employing
establishment, wrote on the claim form that appellant had been working modified duty and was
never asked or required to work outside her restrictions. She indicated that appellant was
transferred to a sedentary position making telephone calls on February 8, 2016 because her former
position required someone who could perform work outside appellant’s restrictions. K.I. noted
that appellant stopped work that day and returned on May 19, 2016 when she had exhausted her
leave. She noted that appellant had provided a note from a mental health provider indicating that
she could only work part time due to stress, and she also provided a note from her primary care
physician indicating that she could only work four-hour days. Appellant continued to work fourhour days.4 She has not received FECA compensation.
In an April 29, 2016, Maria-Luanna Bozzolo, Ph.D., a licensed clinical psychologist noted
appellant’s complaint that her job was administrative with no nursing duties, and that she had been
3

Dr. Putty continued to treat appellant, but did not see her from November 25, 2013 to February 5, 2015.

4
In addition to the Form CA-2a, appellant also filed claims for compensation (Form CA-7) for the period May 19,
2016 to June 10, 2017.

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harassed. She further noted that her employment injury, which caused chronic back pain, led to
her mental health symptoms causing her to take leave under the Family and Medical Leave Act
(FMLA). Dr. Bozzolo indicated that appellant further reported that her anticipated return to work
caused anxiety, noting that she felt that her psychological symptoms were a result of her accepted
employment injury. She diagnosed persistent depressive disorder, unspecified anxiety disorder,
and provisional borderline personality features.
In reports dated May 23, 2016, Dr. Putty advised that appellant should maintain her current
restrictions, but decrease work to part time, 20 hours per week. He indicated that her chief
complaint was lower back pain which, she indicated, was related to stress at work, and asked that
she be able to work part time. Dr. Putty noted that appellant told him that she continued regular
nursing duties without modifications, and this was making her condition worse. He also reported
that she had problems with bilateral hand numbness and paresthesias, advised that a recent lumbar
magnetic resonance imaging (MRI) showed no lesion requiring surgery, and described physical
examination findings. Dr. Putty diagnosed spinal stenosis, lumbar region with chronic back pain,
made worse with stress, and bilateral carpal tunnel syndrome. He recommended follow up in one
year.
In correspondence dated June 6, 2016, K.I., an employing establishment program manager,
noted that she had reviewed Dr. Putty’s report and disagreed with appellant’s description that the
employing establishment had not accommodated her restrictions. She wrote that until
February 2016, appellant was performing modified duty in the urology department, but that the
needs for that work unit increased and a full-duty nurse was needed. Therefore, in February 2016,
appellant was moved to a temporary position in the gastrointestinal unit, until she could be placed
in a permanent light-duty job. However, when appellant was moved on February 8, 2016, she
immediately took 12 weeks of FMLA leave, and as the time approached for that to end, near midMay, she began to complain of stress and anxiety about returning to work and also reported that
she had been diagnosed with severe carpal tunnel syndrome. K.I. indicated that when appellant
returned to work, the employing establishment’s occupational health unit cleared her return, but
appellant told the occupational health nurse practitioner that, due to anxiety and stress, she needed
four-hour workdays. Appellant was allowed to work four-hour days for only two weeks and then
presented a note from her doctor who cited carpal tunnel syndrome, stress, and back pain, and
advised that she needed a 20-hour workweek. K.I. further indicated that appellant requested two
eight-hour days and one four-hour day, not five four-hour days, and she wanted to work beginning
at 10:00 a.m., maintaining that her anxiety, stress, and back pain were worse in the mornings. She
wrote that the employing establishment must consider its staffing needs and, therefore, appellant
was offered a four-hour workday. K.I. attached a job offer that appellant did not accept. She noted
that appellant was “perfectly happy” before she was assigned to her current light-duty location in
February 2016.
On June 9, 2016 appellant, through counsel, contacted OWCP and requested that the
acceptance of her claim be expanded to include emotional conditions of persistent depressive
disorder, unspecified anxiety disorder, and provisional borderline personality features.
In a development letter dated June 22, 2016, OWCP advised appellant of the deficiencies
of her recurrence claim and informed her of the type of factual and medical evidence needed. It

3

provided a questionnaire for her completion.
requested evidence.

OWCP afforded appellant 30 days to submit the

In a development letter dated July 8, 2016, OWCP advised appellant that the evidence of
record was insufficient to support that her additional psychiatric diagnoses were related to the
accepted employment injury. It informed her of the type evidence needed to support that her
emotional condition was a consequence of the accepted lumbar conditions and afforded her 30
days to submit the requested evidence.
Appellant thereafter submitted medical evidence dated from October 26, 2010 to
April 27, 2016. She also submitted a statement indicating that her stress was from multiple causes,
including work.
A functional capacity examination (FCE) was completed on July 26, 2016. In an August 9,
2016 work capacity evaluation (Form OWCP-5c), Dr. Putty referenced the FCE, provided
limitations to appellant’s physical activity, and advised that she should only work modified-duty
for four to six hours a day.
By decision dated August 23, 2016, OWCP denied appellant’s recurrence claim, finding
that she had not established that she was disabled or further disabled due to a material change or
worsening of her accepted lumbar conditions.
On March 20, 2017 appellant, through counsel, requested reconsideration of OWCP’s
August 23, 2016 decision that denied her recurrence claim.
Medical evidence submitted subsequent to the August 13, 2016 decision included a
November 29, 2016 report in which Dr. Putty requested that appellant be allowed to work a flexible
schedule due to pain, but that she could work an eight-hour day.
In a January 26, 2017 report, Dr. Putty indicated that a lumbar spine MRI scan revealed
lumbar stenosis at the level adjacent to appellant’s September 12, 2011 surgery. He noted that
pain was her primary problem and was “directly proportional to the amount of physical activity
that she does.” Dr. Putty advised that, if appellant kept her physical exertion and activities low,
she could improve her pain, which was why he recommended part-time hours. He reiterated his
physical restrictions and provided a copy of the July 26, 2016 FCE, which he signed on
August 9, 2016.5 In a second report of that date, Dr. Putty described examination findings and
diagnosed cervical stenosis and chronic cervical and lumbar back pain with left-sided sciatica. He
also completed a work restriction evaluation Form OWCP-5c on January 26, 2017 wherein he
noted that appellant should be limited to four hours of work per day indefinitely. Dr. Putty also
noted pushing, pulling, and lifting restrictions.
On February 13, 2017 Dr. Putty noted that appellant had been his patient since
November 7, 2010. He described the history of injury, her medical treatment, and her complaints
of radiating low back pain, weakness, and fatigue. Dr. Putty diagnosed lumbar spinal stenosis,
chronic lumbar pain with left sciatica, lumbar synovial cyst, and acquired spondylolisthesis. He
5

This indicated that from a physical perspective appellant could work full time.

4

opined that appellant’s chronic pain began before 2010 and had slowly worsened over time,
exacerbated by the physical requirements of her work, which led to partial disability and a
reduction in work hours on May 23, 2016. Dr. Putty provided physical restrictions and indicated
that he did not foresee that appellant could return to full-time work.
In a letter dated February 14, 2017, Dr. Stephen Streitfeld, a Board-certified psychiatrist,
advised that he had seen appellant for psychiatric evaluation on November 21, 2016. He wrote
that she reported that her supervisor had harassed her because she had refused to do certain duties
outside her work restrictions, and that she had been harassed by an employing establishment
physician for a number of years. Dr. Streitfeld diagnosed major depressive disorder and anxiety
disorder, and opined that these conditions were aggravated by the stress at work and by appellant’s
chronic lumbar back pain.
In correspondence
duty for approximately six
maintained that appellant
submitted several reports
managers.

dated May 4, 2017, K.I. noted that appellant had been working light
years of her approximate seven and one-half years of employment. She
had never been forced to work outside her restrictions. K.I. also
of contact between appellant and various employing establishment

On June 9, 2017 appellant submitted additional claims for compensation (Forms CA-7) for
the period May 4 to 26, 2017. This included a claim for four hours on May 11, 2017 to attend pain
management treatment.
By decision dated June 16, 2017, OWCP denied modification of its August 23, 2016
decision. It found the medical evidence of record was insufficient to establish a recurrence of
disability.
In a development letter dated June 16, 2017, OWCP referenced appellant’s claim for
compensation for receiving medical care on May 11, 2017. It indicated that she had submitted no
medical documentation to support this claim and advised her of the evidence needed. OWCP
afforded appellant 30 days to submit the requested evidence.
By decision dated August 18, 2017, OWCP denied appellant’s claim for expansion, finding
that the evidence of record did not establish that the claimed emotional conditions were related to
the lumbar injury.
On September 14, 2017 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review from the August 18, 2017 decision.
In a letter dated September 26, 2017, Dr. Putty indicated that appellant continued to have
back pain and muscle spasms dating to a May 2010 injury that led to September 2011 surgery. He
opined that her symptoms were exacerbated by activity and that they traced back to the original
injury, and thus they were causally related.
A telephonic hearing was held before an OWCP hearing representative on
February 14, 2018. Appellant testified that she was harassed at work due to her accepted back
injury. She stated that after her surgery she returned to work and was doing well until 2015 when
a doctor began harassing her. The hearing representative informed appellant of the medical
5

evidence needed to establish her claim and held the record open for 30 days. Appellant did not
submit additional evidence.
By decision dated April 24, 2018, OWCP’s hearing representative affirmed the August 18,
2017 decision, finding the evidence of record insufficient to establish that appellant’s claimed
emotional conditions were causally related to the accepted lumbar conditions.6
In a report dated May 29, 2018, Dr. Putty indicated that appellant continued to have back
pain and spasms, which were made worse by bending, twisting, or activity. He noted that she was
working four hours per day, five days per week. Dr. Putty diagnosed chronic bilateral low back
pain with left-sided sciatica.
On June 14, 2018 appellant, through counsel, requested reconsideration of OWCP’s
June 16, 2017 decision denying her recurrence claim.
In correspondence dated June 30, 2018, Dr. Putty indicated that appellant’s accepted
conditions had a natural course of slow progression, which increased disability, and made it
difficult for her to sustain her work performance over long periods.
By decision dated September 13, 2018, OWCP denied modification of its prior decisions,
finding that she had not established a recurrence of disability on May 19, 2016.
By decision dated December 19, 2018, OWCP denied appellant’s claim for compensation
on May 11, 2017 due to time lost from work to obtain medical care for her accepted work-related
conditions finding that she had not submitted necessary medical documentation required to support
this claim for wage loss.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition that had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness. The term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related injury or
illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations.7
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the weight
of reliable, probative and substantial evidence a recurrence of total disability. As part of this

6

Appellant did not file a timely appeal with the Board from the April 24, 2018 decision. See supra note 2.

7

20 C.F.R. § 10.5(x); see D.T., Docket No. 19-1064 (issued February 20, 2020).

6

burden of proof, the employee must show either a change in the nature and extent of the injury related condition, or a change in the nature and extent of the limited-duty requirements. 8
An employee who claims a recurrence of disability resulting from an accepted employment
injury has the burden of establishing that the disability is related to the accepted injury. This
burden requires furnishing medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and supports that conclusion with sound medical reasoning. 9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing May 19, 2016 causally related to her accepted lumbar conditions.
In support of her claim for disability, appellant submitted a series of reports from Dr. Putty
from 2016 to 2018 who repeatedly diagnosed chronic bilateral low back pain with left-sided
sciatica. He consistently opined that appellant’s accepted lumbar conditions and postoperative
pain sequelae had been exacerbated by a requirement that she had to perform duties outside of her
physical restrictions. Appellant, however, submitted no evidence supporting this contention, and
K.I. explained that appellant had been working modified duty within her restrictions for years.
Dr. Putty further opined that as a result of this chronic pain and ongoing exacerbation, she
had been rendered partially disabled such that he reduced her work hours to part time in May 2016.
While he provided an opinion regarding disability, he did not sufficiently explain how she became
partially disabled on or after May 19, 2016 such that she was unable to perform full-time sedentary
duties due to a worsening of her accepted lumbar conditions or specifically explain whether she
sustained a recurrence of disability. 10 A cursory opinion without explanation is of limited
probative value.11 Without such an explanation, these reports are insufficient to establish a
recurrence of disability, as alleged. Furthermore, Dr. Putty exhibited no awareness of appellant’s
actual job duties. Appellant began a sedentary position in February 2016 in which she made
telephone calls, yet Dr. Putty indicated on May 23, 2016 that she reported that she continued
regular nursing duties without modifications. On January 26, 2017 he advised that if she kept her
physical activities and exertion low, she could improve her pain. As Dr. Putty did not discuss how
appellant’s sedentary duties impacted her accepted lumbar condition such that she could only work
part time, his reports are therefore insufficient to meet appellant’s burden of proof.12
The Board therefore finds that the record does not contain a medical opinion of sufficient
rationale to establish a recurrence of disability commencing May 19, 2016 causally related to
8

See R.N., Docket No. 19-1685 (issued February 26, 2020); Terry R. Hedman, 38 ECAB 222 (1986).

9

Id.

10

See J.P., Docket No. 18-1396 (issued January 23, 2020).

11

See L.B., Docket No. 07-1861 (issued December 13, 2007).

12

Supra note 8.

7

appellant’s accepted lumbar conditions.13 Therefore appellant has not met her burden of proof to
establish her recurrence claim. 14
LEGAL PRECEDENT -- ISSUE 2
OWCP’s procedures provide that wages lost for compensable medical examination or
treatment may be reimbursed. 15 A claimant who has returned to work following an accepted injury
or illness may need to undergo examination, testing, or treatment and such employee may be paid
compensation for wage loss while obtaining medical services or treatment, including a reasonable
time spent traveling to and from the medical provider’s location.16 Wage loss is payable only if
the examination, testing, or treatment is provided on a day which is a scheduled workday and
during a scheduled tour of duty. Wage-loss compensation for medical treatment received during
off-duty hours is not reimbursable. 17 The evidence should establish that a claimant attended an
examination or treatment for the accepted work injury on the dates claimed in order for
compensation to be payable. For a routine medical appointment, a maximum of four hours may
be allowed. However, longer periods of time may be allowed when required by the nature of the
medical procedure and/or the need to travel a substantial distance to obtain medical care. 18
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish entitlement to
wage-loss compensation on May 11, 2017 due to attendance at a medical appointment.
In a letter dated June 16, 2017, OWCP indicated that appellant had submitted no medical
documentation to support her claim for disability compensation on May 11, 2017 and advised her
of the evidence needed. Although it afforded her 30 days to submit the requested evidence, she
did not respond.
Thus, as there is no evidence of record establishing that appellant underwent medical
treatment on May 11, 2017, the Board finds that she is not entitled to wage-loss compensation on
that day.19

13

Id.

14

Appellant’s recurrence claim was denied as to a claimed emotional condition, as an emotional condition was not
accepted in her prior claim. This decision of the Board does not preclude her from filing a claim for an emotional
condition based upon new factors of her federal employment.
15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment, Chapter
2.901.19 (February 2013).
16

Id. at Chapter 2.901.19a; M.B., Docket No. 19-1049 (issued October 21, 2019).

17

Id. at Chapter 2.901.19a(2).

18

Id. at Chapter 2.901.19c.

19

V.H., Docket No. 19-0807 (issued December 3, 2019).

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 appellant has not met her burden of proof to establish a recurrence of
total disability commencing May 19, 2016 causally related to her accepted lumbar conditions, and
that she has not met her burden of proof to establish entitlement to wage-loss compensation on
May 11, 2017 due to attendance at a medical appointment.
ORDER
IT IS HEREBY ORDERED THAT December 19 and September 13, 2018 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: April 6, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Janice B. Askin, 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
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND,
Great Lakes, IL, Employer
__________________________________________

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

Docket No. 13-499
Issued: May 14, 2013

Case Submitted on the Record

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

JURISDICTION
On January 2, 2013 appellant filed a timely appeal of a December 20, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying his occupational disease
claim. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed a
back condition due to factors of his federal employment.
FACTUAL HISTORY
On August 16, 2012 appellant, then a 50-year-old electrical worker, filed an occupational
disease claim alleging that he developed lower back pain, right leg and thigh pain and a pinched
1

5 U.S.C. § 8101 et seq.

nerve due to his employment duties of drilling, hammering, bending, twisting, pulling wires and
moving equipment. He stated that his medical evidence was submitted with a notice of
recurrence of disability.
In a letter dated October 10, 2012, OWCP advised appellant that he had not submitted
any documentation with his claim form. It requested additional factual and medical evidence in
support of his occupational disease claim within 30 days. Appellant did not respond.
By decision dated December 20, 2012, OWCP denied appellant’s claim finding that he
failed to submit any factual or medical evidence in support of his claim.2
LEGAL PRECEDENT
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 evidence required to establish causal relationship is rationalized medical opinion evidence,
based upon a complete factual and medical background, showing a causal relationship between
the claimed condition and identified factors. The belief of a claimant that a condition was caused
or aggravated by the employment is not sufficient to establish causal relation.3
ANALYSIS
Appellant submitted a claim for occupational disease alleging that he developed back and
leg pain due to his employment duties. He did not submit any evidence in support of his claim.
As appellant failed to submit factual and medical evidence in support of his claim, he has failed
to establish a prima facie claim for an occupational disease claim.4 The Board finds that
appellant has failed to meet his burden of proof to establish that he developed an occupational
disease as a result of his federal employment.
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.

2

On appeal to the Board appellant submitted new evidence. As OWCP did not consider this evidence in reaching
a final decision, the Board may not consider it for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
3

Lourdes Harris, 45 ECAB 545, 547 (1994).

4

See Donald W. Wenzel, 56 ECAB 390 (2005).

2

CONCLUSION
The Board finds that appellant failed to submit any evidence in support of his
occupational disease claim and therefore failed to meet his burden of proof.
ORDER
IT IS HEREBY ORDERED THAT the December 20, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 14, 2013
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINERING CMD-STATION,
San Diego, CA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0144
Issued: October 23, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 25, 2018 appellant, through counsel, filed a timely appeal from an August 27,
2018 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.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than one
percent permanent impairment of his left upper extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On January 27, 2014 appellant, then a 26-year-old high-voltage electrician apprentice, filed
a traumatic injury claim (Form CA-1) alleging that on that date he sustained a left shoulder injury
while in the performance of duty when he lifted a box above his head. On the reverse side of the
claim form, the employing establishment indicated that he stopped work on January 27, 2014. On
March 26, 2014 OWCP accepted appellant’s claim for left sprain/tear of glenoid labrum lesion.
On April 4, 2014 appellant underwent an authorized arthroscopic surgery for left shoulder
posterior labral tear. He received wage-loss compensation on the supplemental rolls from April 4
to 25, 2014.
On September 12, 2014 appellant underwent a second authorized left shoulder arthroscopic
procedure, by Dr. Anshuman Singh, a Board-certified orthopedic surgeon. He related that he had
debrided a large knot of labral sutures, and found no other loose bodies for debridement. Appellant
received benefits on the supplemental rolls for temporary total disability from September 12 to
October 3, 2014.
On April 5, 2015 appellant filed a claim for a schedule award (Form CA-7).
In a permanent impairment rating assessment dated October 21, 2015, Dr. Mesfin Seyoum,
a family medicine practitioner specializing in pediatrics, noted appellant’s left shoulder range of
motion (ROM) findings, but using the diagnosis-based impairment (DBI) methodology, he rated
her permanent impairment based upon his diagnosis of left shoulder loose body. Pursuant to Table
15-5 of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent impairment (A.M.A., Guides),3 he found that she had seven permanent impairment of
the left upper extremity. Dr. Seyoum related that appellant was classified as Class 1, grade C, for
five percent permanent impairment due to left shoulder loose body. He applied a grade 2 modifier
for functional history (GMFH) based on an upper limb questionnaire (QuickDASH) score of 54;
grade 1 modifier for physical examination (GMPE) based on mild tenderness on palpation and
mildly decreased left shoulder ROM; grade 2 modifier (GMCS) based on magnetic resonance
imaging scan findings of Bankart lesion and loose body; for a net adjustment of 2, and a total left
shoulder permanent impairment of seven percent.
In a report dated April 25, 2016, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon
and OWCP district medical adviser (DMA), indicated that he reviewed the medical record and
statement of accepted facts (SOAF). He rated appellant’s permanent impairment using the ROM
methodology and related that she had three percent left upper extremity permanent impairment for
loss of flexion, three percent impairment for loss of abduction, and one percent impairment for
loss of external rotation of the shoulder, resulting in seven percent permanent impairment of the
3

A.M.A., Guides (6th ed. 2009), page 405.

2

left upper extremity. Dr. Harris related that appellant’s seven percent permanent impairment of
the left upper extremity was the sole impairment resulting from the accepted January 27, 2014
employment incident, and her date of maximum medical improvement (MMI) was October 21,
2015, the date of Dr. Seyoum’s evaluation.
In a report dated June 21, 2016, a second DMA, Dr. David H. Garelick, a Board-certified
orthopedic surgeon, indicated that, based on Dr. Seyoum’s October 21, 2015 report, appellant had
no ratable impairment based on DBI as the evidence did not indicate that she still had a left
shoulder loose body. He also found that Dr. Seyoum’s report related that she had full ROM of his
left shoulder, with no weakness or instability. Dr. Garelick concluded that, based upon the lack of
objective findings, appellant had no residual permanent impairment of the left shoulder.
By decision dated September 27, 2016, OWCP denied appellant’s schedule award claim,
finding that the evidence of record was insufficient to establish permanent impairment to a
scheduled member or function of the body due to his accepted January 27, 2014 employment
injury.
On October 3, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
By decision dated March 28, 2017, OWCP’s hearing representative vacated the
September 27, 2016 decision and remanded the case to OWCP for a second opinion evaluation.
On April 3, 2017 OWCP referred appellant to Dr. Jon P. Kelly, a Board-certified
orthopedic surgeon, for a second opinion evaluation to evaluate her employment-related condition
and any resulting permanent impairment, in accordance with the sixth edition of A.M.A., Guides.
In a May 24, 2017 report, Dr. Kelly noted that appellant had undergone left shoulder
arthroscopic procedures on April 4 and September 12, 2014. He described his review of the SOAF
and medical record. Dr. Kelly indicated that appellant complained of inability to abduct or forward
flex his left shoulder past 90 degrees and general pain in his left shoulder. Examination findings
revealed no atrophy of the trapezius, deltoid, biceps, triceps, supraspinatus, or infraspinatus
muscles. Dr. Kelly also noted that appellant had full ROM except for loss of approximately 5
degrees of internal rotation in his left shoulder. He then utilized the DBI method and rated
appellant’s left shoulder impairment under Table 15-5 for labral lesion. 4 While the default rating
was three percent Dr. Kelly concluded that appellant had one percent permanent impairment as
appellant had regained full function of the left shoulder. He also noted that the loose body in
appellant’s left shoulder had been removed.
By letter dated July 3, 2017, OWCP requested clarification of Dr. Kelly’s May 24, 2017
second opinion report as he had only provided one ROM measurement, but OWCP now required
three ROM measurements for evaluation of permanent impairment.
In a report dated August 22, 2017 and in response to OWCP’s letter dated July 3, 2017,
Dr. Kelly clarified his initial second opinion evaluation dated May 24, 2017. He related that he
4

Table 15-5 at page 404.

3

had performed three ROM measurements and that appellant had 75 degrees of internal rotation of
the left shoulder, therefore, appellant had one percent permanent impairment of the left shoulder
using the ROM rating methodology. 5 Dr. Kelly concluded that appellant had an upper extremity
permanent impairment rating of three percent, based upon DBI methodology under Table 15-5.
He related that under Table 15-5 appellant’s class of diagnosis (CDX) for the diagnosis of labral
lesion would be Class 1 for residual symptoms, with a default rating of three percent impairment.
Applying grade 1 modifier factors for mild findings regarding functional history, physical
examination, and clinical studies, he concluded that appellant had a three percent permanent
impairment of the upper extremity. Dr. Kelly also noted that appellant reached MMI on
November 3, 2014.
In a report dated October 10, 2017, Dr. Garelick, serving as a DMA, indicated that he had
reviewed the SOAF and medical records provided by OWCP. He related that appellant’s physical
examination demonstrated well-healed arthroscopic portals, and that there was no mention of any
residual instability. Dr. Garelick noted that there was no atrophy of the shoulder musculature, the
left shoulder ROM demonstrated 180 degrees of forward flexion, 50 degrees of extension, 180
degrees of abduction, 50 degrees of adduction, 60 degrees of external rotation, and 75 degrees of
internal rotation. He utilizing a DBI rating method, recommended zero percent left upper
extremity permanent impairment because there were no residual findings associated with any
residual disability as noted in Table 15-5 of the A.M.A., Guides. When utilizing a ROM
measurement, Dr. Garelick found one percent left upper extremity permanent impairment, and
because the ROM method awarded more than the DBI method, the ROM method should be used.
He found an impairment rating of one percent, and noted that appellant reached MMI on
August 22, 2017.
By decision dated October 20, 2017, OWCP granted appellant a schedule award for one
percent permanent impairment of the left upper extremity. The period of the award ran from
August 22 to September 12, 2017. OWCP found that, in reviewing the evidence, the DMA,
Dr. Garelick, determined that Dr. Kelly had incorrectly applied the A.M.A., Guides to the findings
on examination. It found, therefore, that the weight of the medical evidence regarding the
percentage of permanent impairment rested with Dr. Garelick, serving as the DMA, as he had
correctly applied the A.M.A., Guides to the examination findings.
On November 2, 2017 appellant, through counsel, requested a telephonic hearing with an
OWCP hearing representative.
In a report dated December 6, 2017, Dr. Seyoum indicated that the DBI calculation could
be used in appellant’s case, because she had residual symptoms of mild left shoulder pain
aggravated by activities such as overhead reaching, lifting, or with cold weather; as well as
limitations of his activities of daily living. He found that, upon recalculation, according to the
CDX, appellant was classified as having Class 1 with grade C, three percent upper extremity
impairment due to left shoulder labral lesion; according to the GMFH, appellant had grade
modifier 2 based on his QuickDASH score of 54; according to the GMPE adjustment, appellant
had grade modifier 1 due to mild tenderness on palpation and mildly decreased left shoulder ROM;
5

Table 15-34 at page 475.

4

and a net adjustment of 1. Dr. Seyoum found that she had four percent left upper extremity
permanent impairment based on the three percent upper extremity impairment for the CDX of the
left shoulder plus the net adjustment of one percent. He also found that regarding the ROM criteria
there was one percent upper extremity impairment due to appellant’s limitation in internal rotation
of his left shoulder. Dr. Seyoum argued that the DBI method’s calculation of four percent left
upper extremity permanent impairment should be used because the ROM method resulted in a
lower impairment rating.
By decision dated March 5, 2018, OWCP’s hearing representative set aside the October 20,
2017 decision and remanded the case to OWCP for further development. It indicated that OWCP
should refer the case back to the DMA to review Dr. Seyoum’s December 6, 2017 report and for
further consideration of Dr. Kelly’s DBI impairment rating.
In a report dated March 16, 2018, Dr. Garelick, serving as the DMA, indicated that he had
reviewed the SOAF and medical records provided by OWCP. In utilizing a DBI rating method,
he recommended zero percent left upper extremity permanent impairment because there were no
residual findings associated with any residual disability as noted in Table 15-5 of the A.M.A.,
Guides. When utilizing a ROM measurement, Dr. Garelick found one percent left upper extremity
permanent impairment, and because the ROM method awarded more than the DBI method, the
ROM method should be used. He concluded that appellant had one percent permanent impairment
of the left shoulder, and noted that appellant reached MMI on August 22, 2017. In addressing
Dr. Seyoum’s DBI rating from his December 6, 2017 report, Dr. Garelick responded that the
A.M.A., Guides did not state that the DBI which awarded the highest percent permanent
impairment be chosen, but rather stated that the most significant diagnosis was the one that should
be used. He contended that appellant had a posterior labral repair, did not have a superior labrum
anterior posterior tear, and given that appellant had no residual instability, a zero percent left upper
extremity permanent impairment rating was awarded for this particular DBI as noted under the
“Unidirectional shoulder instability” section in Table 15.5, p.404 of the A.M.A., Guides.
By decision dated March 27, 2018, OWCP relying on the opinion of the DMA, granted
appellant a schedule award for one percent permanent impairment of the left upper extremity. The
period of award ran from August 22 to September 12, 2017.
On April 4, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. The hearing was held on July 24, 2018.
By decision dated August 27, 2018, OWCP’s hearing representative affirmed OWCP’s
March 27, 2018 decision denying appellant’s claim for additional schedule award. It found that
the schedule award determination complied with the requirements of FECA Bulletin 17-06
because Dr. Garelick calculated impairment ratings using both the DBI and ROM methods. The
hearing representative also found that the evidence supported that the DMA provided a wellrationalized impairment rating according to the appropriate portions of the A.M.A., Guides, and,
therefore, constituted the weight of the medical opinion evidence.

5

LEGAL PRECEDENT
The schedule award provisions 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 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 9
The sixth edition requires identifying the impairment class for the diagnosed condition
CDX, which is then adjusted by GMFH, GMPE, and GMCS. 10 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the A.M.A.,
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)11
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the [claims examiner] CE.”12

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017).
10

A.M.A., Guides 383-492.

11

FECA Bulletin No. 17-06 (May 8, 2017).

12

Id.

6

FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 13
For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and
rationale.”14
ANALYSIS
The Board finds that this case is not in posture for decision due to a conflict in medical
opinion.
In his May 24, 2017 second opinion evaluation, Dr. Kelly noted that appellant had full
ROM except for loss of approximately 5 degrees of internal rotation in his left shoulder. He then
utilized the DBI method and rated appellant’s left shoulder impairment under Table 15-5 for labral
lesion.15 While the default rating was three percent Dr. Kelly concluded that appellant had one
percent permanent impairment as he had regained full function of the left shoulder. On August 22,
2017 in response to OWCP’s letter dated July 3, 2017, Dr. Kelly clarified his May 24, 2017 second
opinion evaluation. He related that he had performed three ROM measurements and that appellant
had 75 degrees of internal rotation of the left shoulder, therefore, appellant had one percent
permanent impairment of the left shoulder using the ROM rating methodology. 16 Dr. Kelly also
clarified that appellant had an upper extremity permanent impairment rating of three percent, based
upon DBI methodology under Table 15-5. He explained that the default rating for a Class 1, grade
C, labral lesion was three percent, and that application of the net adjustment formula for appellant’s
mild residuals symptoms for GMFH, GMPE, and GMCS resulted in the three percent default
permanent impairment rating.
In his report dated December 6, 2017, Dr. Seyoum found that, upon recalculation,
according to the CDX, appellant was classified as having Class 1 with grade C, three percent upper
extremity impairment due to left shoulder labral lesion; according to the GMFH, appellant had
grade modifier 2 based on his QuickDASH score of 54; according to the GMPE adjustment,
appellant had grade modifier 1 due to mild tenderness on palpation and mildly decreased left
shoulder ROM; and a net adjustment of 1. He found that appellant had four percent left upper
extremity permanent impairment based on the three percent upper extremity impairment for the
CDX of the left shoulder plus the net adjustment of one percent. Dr. Seyoum also found that
regarding the ROM criteria there was one percent upper extremity impairment due to appellant’s
limitation in internal rotation of his left shoulder. He argued that the DBI method’s calculation of
four percent left upper extremity permanent impairment should be used because the ROM method
resulted in a lower impairment rating.
The Board finds that a conflict was created between Dr. Kelly, who assigned appellant’s
left shoulder labral tear a GMFH of 1, based upon mild findings, and Dr. Seyoum who assigned a
13

5 U.S.C. § 8123(a); see A.G., Docket No. 18-0815 (issued January 24, 2019).

14

See A.G., id.

15

Table 15-5 at page 404.

16

Table 15-34 at page 475.

7

GMFH of 2, based upon appellant’s QuickDASH score. As noted above, if there is a disagreement
between an employee’s physician and an OWCP referral physician, OWCP will appoint a referee
physician or impartial medical specialist who shall make an examination. 17 The Board finds that
there is an unresolved conflict in the medical evidence between Dr. Kelly and Dr. Seyoum
regarding the calculated percentage of permanent impairment for appellant’s labral region;
Dr. Kelly determined a three percent permanent impairment rating and Dr. Seyoum determined a
four percent permanent impairment rating. Therefore, the case must be remanded to OWCP for
referral of appellant to an IME for resolution of the conflict in medical opinion evidence in
accordance with 5 U.S.C. § 8123(a).18 After such further development as OWCP deems necessary,
it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 27, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: October 23, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

17

G.W., Docket No. 19-0063 (issued June 21, 2019).

18

Id.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Tacoma, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1310
Issued: February 16, 2010

Case Submitted on the Record

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

JURISDICTION
On April 22, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 30, 2009 merit decision denying his occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2 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 that he sustained an
injury causally related to factors of his federal employment.
FACTUAL HISTORY
This case is before the Board for the second time. In a decision dated May 19, 2008, the
Board affirmed the Office’s March 7, 2007 decision denying his January 29, 2007 occupational
disease claim, in which he alleged that he developed a lower back herniated disc and groin hernia
as a result of his duties as a nursing assistant, which included washing, changing and dressing
patients and lifting them into wheelchairs. The Board found that there was no probative,

rationalized medical evidence of record establishing how employment factors caused or
aggravated a diagnosed condition. The Board also affirmed the Office’s July 27, 2007 nonmerit
decision denying appellant’s request for reconsideration.1 The facts and the law contained in the
Board’s May 19, 2008 decision are incorporated herein by reference.
On July 25, 2008 appellant, through his representative, submitted a request for
reconsideration. In support of his request, he provided a September 18, 2007 report from
Dr. Steven Litsky, a Board-certified physiatrist, who noted that appellant’s duties as a nursing
assistant involved patient care and lifting requirements of up to 150 pounds. Dr. Litsky indicated
that appellant had injured his back on January 5, 2005, when he tried to catch a patient who had
fallen, and that his pain continued to increase over the next two years and now radiated to the
right lower extremity. Appellant’s pain was exacerbated by lifting, carrying, twisting, sitting,
standing, walking or stair climbing. An August 1, 2007 magnetic resonance imaging (MRI) scan
showed degenerative disc disease at the L4-5 level, right more severe than the left, neural
foraminal stenosis, caused by a circumferential disc bulge, left facet hypertrophy, some mild dual
decompression and a lipoma. Dr. Litsky’s neurological examination revealed slightly decreased
sensation on the right to pinprick and light touch. Cranial nerves 2 to 12 were intact bilaterally,
with no focal deficit. Coordination was intact bilaterally. Reflexes were 2/4 at the biceps,
triceps, and left patella, and 1/4 at both Achilles. Forward range of motion was to 25 degrees,
forward flexion was 15 degrees and extension was only a few degrees. Straight leg raises were
negative on the left, but positive on the right. Appellant exhibited an antalgic gait, favoring the
right side. There was a paraspinal tendency going into the sciatic notch area on the left.
Dr. Litsky diagnosed: chronic lower back pain with probable right L4-5 radiculopathy;
degenerative disc disease, more severe at the L4-5 level; lumbar stenosis; facet arthropathy and
vocational dysfunction. Based on his examination findings, the clinical history and MRI scan
results, he opined that appellant’s condition was due to his occupational injury. In an
accompanying work capacity evaluation, Dr. Litsky restricted appellant to light duty two days
per week. He stated that appellant was unable to meet the lifting requirements of his position.
Appellant submitted a September 23, 2008 report in which Dr. Thomas J. Young, a
chiropractor, diagnosed long-standing degenerative disc disease and degenerative joint disease of
the lower lumbar spine, with overt disc failure secondary to a January 5, 2005 work injury.
Dr. Young opined that the degenerative disc changes to appellant’s lower lumbar spine
preexisted the January 5, 2005 work injury, and that he had likely undergone multiple injuries
contributing to his condition. In an accompanying work capacity evaluation, he indicated that
appellant was unable to work. On December 19, 2008 Dr. Young opined that appellant was
permanently disabled. He stated that appellant’s preexisting lumbar degenerative condition was
merely exacerbated by heavy lifting, and that the January 2005 work incident was the
“provocative event.”
Appellant submitted a November 21, 2008 report of a functional capacity evaluation from
Marsha K. Hiller, a physical therapist, who opined that he was unable to work as a nursing
assistant, as he was unable to lift more than five pounds. Noting that the date of injury was

1

Docket No. 08-159 (issued May 19, 2008).

2

January 5, 2005, she stated that appellant had a three-year history with the military, where he
performed a lot of repetitive lifting and carrying activities.
The record contains largely illegible physicians’ notes from the Army medical clinic from
January 22 to August 29, 1980, which reflect appellant’s complaints of back pain. The record
also contains a report of a December 4, 2008 x-ray of the lumbar spine and a December 12, 2008
report of an MRI scan of the lumbar spine.
Appellant submitted a report dated March 11, 2009 from Dr. Richard Wohns, a Boardcertified neurological surgeon, who related appellant’s report that his low back pain had begun in
the military as a result of heavy lifting requirements. On January 5, 2005 appellant felt a pop in
his back while helping a patient who was falling. He advised that his pain had progressed since
that time and was aggravated by activities such as sitting, standing, walking, lifting and bending.
Dr. Wohns diagnosed: right proximal medial lower extremity pain; severe neural foraminal
narrowing bilaterally at the L4-5 disc space; posterior disc bulge with an annular tear producing
mild dual compression at L4-5; lumbar degenerative disc disease; low back pain, lumbar stenosis
and lumbar herniated disc.
By decision dated March 30, 2009, the Office denied modification of its previous
decision, finding that there was no evidence of a diagnosed condition that was causally related to
factors originally identified by appellant. It noted that the alleged January 5, 2005 incident was
not accepted as factual and that a claim for traumatic injury would not be considered under this
claim.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that an injury was
sustained in the performance of duty as alleged,3 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.5 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 the employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; and
2

5 U.S.C. §§ 8101-8193.

3

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). “When an
employee claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the manner alleged. He
must also establish that such event, incident or exposure caused an injury.” See also 5 U.S.C. § 8101(5) (“injury”
defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (“Occupational disease or Illness” and “Traumatic injury” defined).
4

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

5

20 C.F.R. § 10.5(q).

3

(3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.6 The medical evidence required to establish a
causal relationship, generally, is rationalized medical opinion evidence, i.e., medical evidence
presenting a physician’s well-reasoned opinion on how the established factor of employment
caused or contributed to claimant’s diagnosed condition. To be of probative value, the opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.7 The Board has held that the mere diagnosis of
pain does not constitute a basis for the payment of compensation.8
Additionally, the Board has consistently held that unsigned medical reports are of no
probative value9 and that any medical evidence upon which the Office relies to resolve an issue
must be in writing and signed by a qualified physician.10 Lay individuals such as physician
assistants, nurse practitioners and social workers are not competent to render a medical
opinion.11
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty.
An employee who claims benefits under the Act has the burden of establishing the
essential elements of his or her claim. The claimant has the burden of establishing by the weight
of reliable, probative and substantial evidence that the condition for which compensation is
sought is causally related to a specific employment incident or to specific conditions of the
employment. As part of this burden, the claimant must present rationalized medical opinion
evidence, based upon a complete and accurate factual and medical background, establishing
causal relationship.12 However, it is well established that proceedings under the Act are not
adversarial in nature and while the claimant has the burden of establishing entitlement to
compensation, the Office shares responsibility in the development of the evidence to see that
justice is done.13
6

Michael R. Shaffer, 55 ECAB 386 (2004). See also Solomon Polen, 51 ECAB 341, 343 (2000).

7

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

8

Robert Broome, 55 ECAB 339, 342 (2004).

9

Merton J. Sills, 39 ECAB 572, 575 (1988).

10

James A. Long, 40 ECAB 538, 541 (1989).

11

Janet L. Terry, 53 ECAB 570 (2002).

12

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).
13

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, supra note 12; Dorothy L. Sidwell, 36
ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

4

Following the Board’s May 19, 2008 decision, appellant submitted additional medical
evidence. In his September 18, 2007 report, Dr. Litsky provided a history of injury and
treatment, detailed examination findings and a definitive diagnosis, which included degenerative
disc disease and lumbar stenosis. His report reflected an understanding of appellant’s duties as a
nursing assistant, which involved patient care and lifting requirements of up to 150 pounds.
Noting that appellant had injured his back on January 5, 2005, when he tried to catch a patient
who had fallen, Dr. Litsky stated that his pain continued to increase over the next two years, and
now radiated to the right lower extremity. Appellant’s pain was exacerbated by lifting, carrying,
twisting, sitting, standing, walking or stair climbing. Based on his examination findings, the
clinical history and MRI scan results, he opined that appellant’s condition was due to his
occupational injury. While Dr. Litsky’s report is not completely rationalized, it strongly supports
appellant’s claim that he sustained a lumbar condition as a result of his employment activities.
Dr. Wohns noted that appellant felt a pop in his back when helping a patient who was
falling January 5, 2005, and that his pain had progressed since that time and was aggravated by
activities such as sitting, standing, walking, lifting and bending. He diagnosed: right proximal
medial lower extremity pain; severe neural foraminal narrowing bilaterally at the L4-5 disc
space; posterior disc bulge with an annular tear producing mild dual compression at L4-5;
lumbar degenerative disc disease; low back pain, lumbar stenosis and lumbar herniated disc.
Dr. Wohns’ report does not contain an opinion as to the cause of appellant’s condition and,
therefore, is of limited probative value.14 However, it is consistent with appellant’s claim that he
sustained a back condition due to factors of his federal employment.
The remaining medical evidence submitted in support of appellant’s request consists of
1980 illegible physicians’ notes from the Army medical clinic; a November 21, 2008 report of a
functional capacity evaluation from Ms. Hiller, a physical therapist, and reports dated
September 23 and December 19, 2008 from Dr. Young, a chiropractor. While these notes do not
constitute competent medical evidence, they corroborate appellant’s claim.15
The Office found that there was no evidence of a diagnosed condition that was causally
related to factors originally identified by appellant, namely washing, changing and dressing
patients and lifting them into wheelchairs. It further stated that the alleged January 5, 2005
incident was not accepted as factual, and that a claim for traumatic injury would not be
considered under this claim. The Board finds, however, that Dr. Litsky’s report does support a
14

Medical evidence which does not offer an opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship. A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB
313 (1999).
15

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 under section 8101(2) of the Act, which provides: “(2) ‘physician’
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law.” Therefore, the November 21, 2008 physical
therapist’s report lacks probative value. Section 8101(2) of the Act further provides: “The term ‘physician’
includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of
manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist, and subject to
regulation by the secretary.” As Dr. Young did not diagnose subluxation by x-ray, he is not considered a
“physician” under the Act. Illegible physicians’ progress notes, lacking proper identification, also cannot be
considered as probative evidence. See Merton J. Sills, 39 ECAB 572, 575 (1988).

5

causal relationship between appellant’s diagnosed conditions and those work factors identified
by appellant. Dr. Litsky did not state that appellant’s diagnosed conditions were due entirely to
the January 5, 2005 work incident. His discussion of appellant’s lifting requirements and other
activities which exacerbated his condition, generally supports that the January 5, 2005 incident
was merely a significant event, in a series of events, which caused appellant’s current back
condition. The fact that appellant has recently identified the January 5, 2005 incident as an
additional event contributing to his claimed condition, does not preclude its consideration by the
Office or the Board.16
The Board notes that, while none of the reports of appellant’s attending physicians is
completely rationalized, they are consistent in indicating that he sustained an employmentrelated low back condition, and are not contradicted by any substantial medical or factual
evidence of record. While the reports are not sufficient to meet his burden of proof to establish
his claim, they raise an uncontroverted inference between appellant’s claimed conditions and the
identified employment factors, and are sufficient to require the Office to further develop the
medical evidence and the case record.17
On remand the Office should prepare a statement of accepted facts which includes a
detailed employment history, job descriptions for each position held, and specific functions
performed by appellant in each position. It should submit the statement of accepted facts to
appellant’s treating physician, or to a second opinion examiner, in order to obtain a rationalized
opinion as to whether his current condition is causally related to factors of his employment,
either directly or through aggravation, precipitation or acceleration.
CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant
sustained an injury in the performance of duty.

16

The Board notes that the appellant’s claim is not necessarily undermined by the fact that he had a preexisting
lumbar degenerative condition. See supra note 6 and accompanying text. Appellant must, however, submit medical
evidence establishing that the diagnosed condition is causally related to the identified employment factors, either
directly or through aggravation, precipitation or acceleration.
17

See Virginia Richard, supra note 12; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41
ECAB 354 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: February 16, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7