United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Covington, KY, Employer
__________________________________________

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Docket No. 09-154
Issued: July 16, 2009

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

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 20, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated February 28 and September 16, 2008 denying
her claim for an employment-related injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant was injured while in the performance of duty on
January 7, 2008.
FACTUAL HISTORY
On January 25, 2008 appellant, a 53-year-old tax-examining technician, filed a traumatic
injury claim, alleging that on January 7, 2008 she sustained injuries to her knees, hands, left
shoulder and left muscle in her groin when she tripped on a loose floor tile in her “pod” 25
minutes before her shift began. She stated that she was unable to see the tile because the area
was dark, and that she tried to grab onto something in order to prevent falling. Appellant’s

supervisor indicated that appellant did not report an injury until the following day, noting that
she had “slipped a little” and that someone “could have been hurt.”
In a January 22, 2008 letter, the Office advised appellant that the information submitted
was insufficient to establish her claim and requested additional information regarding her
activities at the time of injury, her reasons for being at the employing establishment 25 minutes
prior to the start of her shift, and a physician’s narrative medical report with a firm diagnosis.
By decision dated February 28, 2008, the Office denied appellant’s claim, finding that the
evidence was insufficient to establish that the work-related event occurred as alleged. It also
found that there was no medical evidence which provided a diagnosis that could be connected to
the claimed incident.
On March 13, 2008 appellant requested an oral hearing. She submitted an undated
statement describing the claimed January 7, 2008 incident. Appellant noted that her legs slid
apart as she tried to catch herself after tripping on the loose tile. She stated that her daughter was
present but was unable to help her. Appellant indicated that she informed her “lead” that she had
been injured due to the loose tile. In a January 10, 2008 accident report, she repeated her
description of the alleged incident.
The record contains a daily attendance report dated January 7, 2008, which reflected that
appellant “clocked in” at 6:00 a.m. and “clocked out” at 3:30 p.m. on that date; a March 11, 2008
“Manager’s Statement” noting that appellant did not sign in for duty on January 7, 2008 until
6:00 a.m., 25 minutes after the alleged incident; a January 9, 2008 report of an x-ray of the left
knee; and a March 3, 2008 report of an MRI scan of the left lower extremity.
Appellant submitted medical reports from Dr. Matthew Barth, a Board-certified family
practitioner, for the period January 30 to February 27, 2008. On January 30, 2008 Dr. Barth
diagnosed left rotator cuff sprain, stating that appellant had injured her left arm and shoulder as a
result of a “broad fall.” On February 13, 2008 he stated that appellant had sustained injuries on
January 7, 2008 when she slipped on a tile. Dr. Barth diagnosed left shoulder pain, swelling and
rotator cuff sprain, as well as left knee pain. He prescribed a course of physical therapy and
provided work restrictions prohibiting climbing, kneeling, bending, stooping, pulling, pushing,
reaching above the shoulder, or lifting or carrying more than 5 pounds continuously or 10 pounds
intermittently. On February 27, 2008 Dr. Barth recommended that appellant be “off work” until
the week of March 10, 2008.
In a March 18, 2008 report, Dr. Daniel Terpesta, a treating physician, diagnosed left knee
medial/lateral meniscal tear and left shoulder impingement. He opined that appellant’s condition
was related to a work injury, but that some symptoms might be chronic and could be due to an
exacerbation of her osteoarthritis condition.
Appellant submitted a January 9, 2008 statement from Acting Manager Charles
Thompson, Jr., who reported that appellant arrived for work at 6:00 a.m. on the date in question,
indicating that she had stepped on a loose tile and “could have had an accident.” In a March 19,
2008 statement, Manager Jaquelin Ketola related that appellant informed her that she “could
have fallen” when she tripped on January 7, 2008 and that she almost “did the splits.”

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In a July 7, 2008 telephonic hearing, appellant testified that her 32-year-old daughter was
with her at the time of the claimed incident. She stated that she fell into her keyboard as she
tried to keep herself from falling when she tripped over a big hole in the tile in her office on
January 7, 2008. As appellant tried to maneuver her left knee, she allegedly slipped on the tile
and “did the splits.” She stated that she arrived at work 25 minutes early on the date in question,
as she usually does. In response to the hearing representative’s question as to why she arrived at
work 25 minutes early, appellant stated:
“I always come in and put my lunch box down and sometimes do my Bible study.
Sometimes I go up and get my coffee, get me something for breakfast and I chat
with my friends for a little while and then I come back down and start my work.”
Subsequent to the July 7, 2008 hearing, appellant submitted reports from Dr. Angelo J.
Colosimo, a treating physician, and Dr. Bruce E. Holaday, a chiropractor. On July 17, 2008
Dr. Holaday stated that appellant sustained a work-related “trip and fall” accident on January 7,
2008, which resulted in a moderate cervical sprain/strain; moderate lumbar sprain/strain;
moderate left knee sprain/strain; left meniscal tear; prepatellar bursitis of the left knee; and left
shoulder rotator cuff syndrome. He also stated that appellant’s conditions of lumbar and cervical
spondylosis and chondromalacia patella were aggravated by the work incident. On April 2, 2008
Dr. Colosimo diagnosed left knee medial/lateral meniscal tear and left shoulder impingement,
with decreased ROM and weakness. He opined that appellant was totally temporarily disabled.
On July 17, 2008 Dr. Colosimo indicated that appellant fell while working at her desk on
January 7, 2008. He opined that there was a causal relationship between her knee pathology and
the work incident.
In a July 10, 2008 statement, appellant indicated that she arrived at work early on
January 7, 2008 in order to find a good parking place. She stated that she was not working at her
station when she arrived at approximately 5:30 a.m., and that she did not start working until
6:00 a.m., when she signed in. Appellant noted that, upon arrival, she usually goes to her
cubicle, drops off her personal things and then goes to the canteen for coffee or hot tea or a
breakfast snack. She indicated that her daughter followed her to her work area on the morning in
question.
Appellant submitted a July 12, 2008 statement from her brother-in-law, a July 9, 2008
statement from her husband, and a July 10, 2008 statement from her daughter, who stated that
she and her mother usually ride to work together. On January 7, 2008 they arrived at the
employing establishment at approximately 5:30 a.m. Her daughter stated: “Mom likes to arrive
early to get a better parking place, and it also enables us to get our coffee, sodas, water, snacks or
breakfast prior to our shift.”
By decision dated September 16, 2008, the Office hearing representative affirmed the
February 28, 2008 decision on the grounds that appellant had failed to establish fact of injury.
The representative found that the evidence failed to establish that the claimed incident occurred
at the time, place and in the manner alleged. He also found that the claimed injury did not occur
in the performance of duty, as appellant was not performing the employer’s business at the time
of the alleged incident.

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LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides for the payment of compensation
for the disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 In deciding whether an injury is covered by the Act, the test is whether,
under all the circumstances, a causal relationship exists between the employment itself or the
conditions under which it is required to be performed and the resultant injury.3 The phrase while
in the performance of duty has been interpreted by the Board to be the equivalent of the
commonly found prerequisite in workers’ compensation law of arising out of and in the course of
employment.4 The phrase course of employment is recognized as relating to the work situation
and more particularly, relating to elements of time, place and circumstance. In addressing this
issue, the Board has stated the following:
“In the compensation field, to occur in the course of employment, in general, an
injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in his or her master’s business; (2) at a place where he or she may
reasonably be expected to be in connection with the employment; and (3) while
he or she was reasonably fulfilling the duties of his or her employment or engaged
in doing something incidental thereto.”5
The Board has noted that the course of employment for employees having a fixed time
and place of work includes a reasonable interval before and after official working hours while
the employee is on the premises engaged in preparatory or incidental acts and what constitutes a
reasonable interval depends not only on the length of time involved, but also on the
circumstances occasioning the interval and the nature of the employee’s activity.6 This alone is
not sufficient to establish entitlement to compensation. The employee must establish the
concurrent requirement of an injury arising out of the employment. Arising out of employment
requires that a factor of employment caused the injury. It is incumbent upon the employee to
establish that the claimed injury arose out of his or her employment; that is, the accident must be
shown to have resulted from some risk incidental to the employment. In other words, some
contributing or causal employment factor must be established.7
1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8102(a).

3

Julian C. Tucker, 38 ECAB 271, 272 (1986).

4

Charles Crawford, 40 ECAB 474, 476-77 (1989).

5

Mary Keszler, 38 ECAB 735, 739 (1987).

6

See Venicee Howell, 48 ECAB 414 (1997); Narbik A. Karamian, 40 ECAB 617 (1989). In the cases concerning
what constitutes a reasonable interval before or after work, the Board has been influenced by the activities engaged
in by the employees before or after work. In Howell, the Board found coverage when the employee was injured five
minutes after work while performing the incidental task of submitting a job bid. However, in Arthur A. Reid, 44
ECAB 979 (1993), the Board denied coverage when the employee was injured 45 minutes after work while
engaging in a private conversation.
7

See Venicee Howell, supra note 6.

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The Board has found that some actions are not job duties but are sufficiently related to
such duties or specific instructions to be considered incidental to the employment.8 In his
treatise on workers’ compensation, Professor Larson indicates that, if the ultimate effect of the
employee’s helping others is to advance her employer’s work by removing obstacles or
otherwise, it should not matter whether the immediate beneficiary of the helpful activity is a
co-employee, independent contractor, employee of another employer or a complete stranger.
Professor Larson described several cases where coverage was found when employees were
injured while attempting to rectify unsafe conditions.9 In other cases, the Board’s denial of
coverage has been at least partially due to the seemingly personal nature of the employee’s
actions.10
ANALYSIS
The Board finds that the incident in this case occurred as alleged on the premises of the
employing establishment. This factor alone, however, is not sufficient to establish entitlement to
benefits as the concomitant requirement of an injury “arising out of the employment” must be
shown, and this encompasses not only the work setting but also that the employment caused the
injury.11 In order for an injury to be considered as “arising out of the employment,” the facts of
the case must show some “substantial employer benefit or requirement” which gave rise to the
injury.12 It is incumbent upon appellant to establish that it arose out of his employment. In other
words, some contributing or causal employment factor must be established.
The Board finds that, at the time of the injury, appellant was on the employing
establishment premises solely for personal reasons. The record reflects that appellant’s injury
occurred 25 minutes before the start of her shift. Appellant testified at the July 7, 2008 hearing
that she usually arrived at work 25 minutes early to engage in Bible study, drink coffee, eat
breakfast, chat with friends and put her lunch away. In a July 10, 2008 statement, she indicated
that she arrived at work early on January 7, 2008 in order to find a good parking place.
Appellant stated that she was not working at her station when she arrived at approximately 5:30
a.m., and that she did not start working until 6:00 a.m., when she signed in. She noted that, upon
arrival, she usually goes to her cubicle, drops off her personal things and then goes to the canteen
for coffee or hot tea or a breakfast snack. Appellant’s daughter indicated that she and her mother
usually ride to work together, and that on January 7, 2008 they arrived at the employing
8

See Maryann Battista, 50 ECAB 343 (1999) (finding that delivering signs and a bad check list and checking on
a customer’s telephone request, while not the claimant’s job duties, were reasonably incidental to her job duties);
Venicee Howell, supra note 6 (finding that submitting a job bid, while not one of the claimant’s job duties, was
reasonably incidental to her job duties).
9

See A. Larson, The Law of Workers’ Compensation, § 27.02 (2008).

10

See Margaret Gonzalez, 41 ECAB 748, 751-54 (1990) (finding that pushing a coworker’s vehicle after the end
of a workday was not related to the claimant’s reasonable fulfillment of her employment duties or of something
incidental thereto); Narbik A. Karamian, supra note 6 (finding that changing a tire after the end of a workday was
not related to the claimant’s reasonable fulfillment of his employment duties or of something incidental thereto).
11

Narbik A. Karamian, supra note 6.

12

Catherine Callen, 47 ECAB 192 (1995).

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establishment at approximately 5:30 a.m. She stated: “Mom likes to arrive early to get a better
parking place, and it also enables us to get our coffee, sodas, water, snacks or breakfast prior to
our shift.” The Board notes that appellant did not identify any specific preparatory or incidental
activity related to her employment that required her to be present 25 minutes before her tour of
duty began. On the contrary, the activities appellant cited as the reasons for her early arrival
were purely personal in nature and unrelated to her employment.
What constitutes a reasonable interval depends not only on the length of time involved,
but also on the circumstances occasioning the interval and nature of the employment activity.13
Appellant’s supervisor reported that, on the date of the injury, appellant was not scheduled to be
at work prior to 6:00 a.m., nor did she advise her supervisor of any condition that required her to
be on the premises prior to her official hours in order to prepare for her daily activities.
Accordingly, the Board finds that appellant’s presence on the premises 25 minutes prior to the
commencement of her tour of duty on the morning of the claimed incident did not constitute a
reasonable interval before the start of the work shift, under the circumstances of this case.
Appellant’s arrival at the employing establishment prior to official starting time does not
automatically place her activities outside the scope of the employment.14 However, her activity
prior to work on January 7, 2008 did not further the employer’s business or provide a substantial
benefit to the employer. Appellant’s presence on the premises at the time of the claimed injury
was not required as a condition of his employment, nor was she involved in any preparatory
activity reasonably incidental to her employment activities on the morning of the claimed injury.
Only as a matter of personal convenience did appellant choose to arrive at the employing
establishment early.15
There is no evidence that appellant’s injury resulted from any employment-related
factors. Thus, the Board finds that appellant has failed to establish that she sustained an injury in
the performance of duty.

13

See Maryann Battista, supra note 8. See also Narbik A. Karamian, supra note 6 (citing Clayton Verner, 37
ECAB 248 (1985).
14

See James E. Chadden, 40 ECAB 312, 315 (1988) (stating that claimant’s arrival at the employing
establishment a half hour prior to his official starting time was not so early as to place the claimant’s activity outside
the scope of employment). But cf. Nona J. Noel, 36 ECAB 329, 331-32 (1984) (noting that an employee had stated
that she arrived at the employing establishment early in order to avoid traffic congestion and finding that the act of
having breakfast was not a preparatory activity reasonably incidental to the employee’s work activities).
15

See Timothy K. Burns, 44 ECAB 125 (1992) (Where the claimant sustained injury after tripping over an
elevated portion of a sidewalk on the employing establishment premises approximately 20 minutes prior to his
scheduled tour of duty, and while he was walking for exercise before beginning work, and noted his practice of
arriving early at work to avoid traffic congestion, the Board found that the employee failed to establish that his
injury arose in the performance of duty as he was on the premises of the employer for purely personal reasons and
not engaged in activities that could be characterized as reasonably incidental to the commencement of his work
duties.); see also Nona J. Noel, supra note 14.

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CONCLUSION
The Board finds that appellant was not injured while in the performance of duty on
January 7, 2008.16
ORDER
IT IS HEREBY ORDERED THAT the September 16 and February 28, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed as modified.
Issued: July 16, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

In light of the Board’s ruling on the issue presented, it is not necessary to address the Office’s finding that the
evidence failed to establish the occurrence of the incident at the time, place and in the manner alleged.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ATLANTA VETERANS ADMINISTRATION
MEDICAL CENTER, Decatur, GA, Employer
__________________________________________

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

Docket No. 13-1013
Issued: November 15, 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 March 20, 2013 appellant, through her attorney, timely appealed the February 14,
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 the claim.
ISSUES
The issues are: (1) whether appellant’s degenerative arthritis and January 2004 lumbar
surgery are causally related to her accepted employment injury; and (2) whether appellant has a
ratable impairment to a scheduled member.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 57-year-old retired licensed practical nurse (LPN), injured her lower back in
the performance of duty on June 22, 1994.2 OWCP initially accepted her claim for lumbosacral
strain. In February 1995, itaccepted a synovial cyst of the lumbosacral spine.3 OWCP
authorized the lumbar surgery.4 Appellant received wage-loss compensation. In April 1995, she
returned to work in a part-time, light-duty capacity. Appellant was released to resume her
regular, full-time LPN duties in late September 1995. OWCP paid wage-loss compensation for
intermittent periods of disability through August 1996.
Dr. Charles L. Clifton Jr., a Board-certified anesthesiologist, saw appellant on
January 10, 2000 and diagnosed spinal stenosis with radicular low back pain.5 It had been about
three and a half years since he last treated her. On January 21, 2000 Dr. Clinton administered a
lumbar epidural steroid injection.6
The record reflects a possible work-related back injury in October 2001, but there was no
record of a new claim having been filed. Appellant also underwent additional lumbar surgery on
or about January 7, 2004;but the surgical report is not part of the record. OWCP did not
authorize additional surgery under the current claim;moreover, there is no record of her having
sought OWCP’s approval regarding her January 2004 surgery.Appellant advised OWCP that the
Office of Personnel Management granted her disability retirement effective June 2004.
On December 7, 2010 appellant filed a claim for a schedule award (Form CA-7).In a
December 9, 2010 report, Dr. F. Daniel Koch, a Board-certified orthopedic surgeon,7diagnosed
severe degenerative arthritis and statuspost lumbar fusion/arthrodesis. He stated that
appellantexperienced chronic low back pain due to the severity of her condition and the hardware
in her lumbar spine.
By letter dated January 7, 2011, OWCP advised appellant that Dr. Koch’s December 9,
2010 report was insufficient to establish that the diagnosed conditions -- degenerative arthritis
and status post lumbar fusion/arthrodesis -- were causally related to her June 22, 1994
employment injury. Appellant was afforded 30 days to submit a rationalized medical opinion
addressing causal relationship. OWCP also requested a copy of the surgical report for her

2

Appellant reportedly injured herself transferring a patient from a bed to a wheelchair.

3

A July 19, 1994 lumbar magnetic resonance imaging (MRI) scan revealed L5-S1 mild degenerative disc disease.
There was also evidence of left-sided synovial cyst with significant compression of the exiting left S1 nerve root.
4

On January 13, 1995 Dr. Nettleton S. Payne II, a Board-certified neurosurgeon, performed an exploration and
decompression, excision of synovial mass and partial facetectomy.
5

Appellant had low-grade spinal stenosis dating back several years as evidenced by a May 10, 1996 lumbar MRI
scan.
6

OWCP did not pay for the treatment appellant received from Dr. Clifton on January 10 and 21, 2000.

7

Dr. Koch performed additional lumbar surgery on or about January 7, 2004.

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lumbar fusion/arthrodesis and any additional treatment records pertaining to the newly diagnosed
conditions.
In a separate letter also dated January 7, 2011, OWCP acknowledged receipt of
appellant’s December 7, 2010 claim for a schedule award. It explained that FECA did not
authorize schedule awards for permanent impairment of the spine; but to the extent her accepted
employment injury caused spinal nerve impairment to an extremity, a schedule award for any
affected extremities was possible. OWCP provided guidance on rating spinal nerve extremity
impairment under FECA and the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment(A.M.A., Guides) (2008). Appellant was afforded
30 days to submit the requested information in support of her schedule award claim.OWCP did
not receive any additional evidence in the allotted timeframe.
On February 15, 2011OWCP issued two separate decisions. It denied a schedule award
for permanent impairment related to appellant’s accepted claims and denial to expand her
June 22, 1994 traumatic injury claim to include degenerative arthritis and status post lumbar
fusion/arthrodesis.
Appellant requested an oral hearing from both decisions which was held on
June 10, 2011. She testified regarding the June 22, 1994 employment incident and her two
lumbar surgeries. Appellant explained that OWCP paid for the first surgery and Medicaid paid
for her subsequent lumbar fusion/arthrodesis. The hearing representative afforded appellant the
opportunity to submit additional evidence posthearing;however, appellant did not receive any
additional medical evidence.
By decision dated September 7, 2011, the hearing representative affirmed both decisions
dated February 15, 2011.
On October 7, 2011 appellant requested reconsideration. OWCP received additional
medical reports and treatment records dating back to November 2001.
Dr. David A. Schiff examined appellant on November 30, 2001 for complaints of leftsided lower back pain radiating down her left leg to her posterior and calf.8 He noted a history of
back surgery in 1995 due to an on-the-job injury. The surgery alleviated appellant’s pain, but
she continued to experience numbness. Appellant advised that she had four to five epidural
steroid injections since her surgery. Dr. Schiff also noted that in mid-October 2001 she“was
doing some heavy lifting at work” which seemed to provoke her symptoms. Recent x-rays
revealed moderate degenerative disc changes at L5-S1, with a left-sided laminectomy defect.
There was also evidence of subtle degenerative anterolisthesis. Dr. Schiff diagnosed left S1
radiculopathy, acute and chronic. He referred appellant for physical therapy and lumbar epidural
steroid injections.
On January 8, 2002 appellant saw Dr. Richard J. Stork, a Board-certified anesthesiologist
with a subspecialty in pain medicine,who noted that she was status post lumbar discectomy in
January 1995. Dr. Stork also noted that she“reinjured her back in [October 2001] ... following a
8

Dr. Schiff is a Board-certified physiatrist with a subspecialty in pain medicine.

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lifting incident....” He diagnosed lumbar degenerative disc disease and administered selective
nerve root blocks at left L5 and S1.
Appellant returned for a follow-up visit on February 4, 2002. The initial injection
provided pain relief for approximately two weeks. During the third week appellant experienced
severe left leg pain and was treated in the emergency room. She also reported having fallen at
some point between the January 8, 2011 injection and the recurrence of her left leg pain.
Dr. Stork referred appellant for a lumbar MRI scan and advised her to return for a second
selective nerve root blockafter the MRI scan.
A February 6, 2002 lumbar MRI scan revealed: (1) transitional lumbosacral junction;
(2) status post L5 hemilaminectomy; (3) moderate facet arthropathy at L5-S1; and (4) no
evidence of recurrent disc herniation.
On March 6, 2002 appellant received another selective nerve root block at L5, left.
On July 29, 2002 Dr. Stork performed discograms at L3-4, L4-5 and L5-S1. The results
revealed a normal disc at L3-4. Appellant’s L4-5 disc was reportedly nonpainful, but the
discogram showed a right annular tear. Dr. Stork also noted that appellant’s L5-S1 disc was
positive, painful and showed significant degeneration and annular tears with epidural leakage.
Following the discogram, appellant underwent a lumbar computed tomography (CT) scan that
same day. Her July 29, 2002 CT scan revealed extensive degenerative disc disease and
spondylosis at L5-S1. There was no definite focal disc herniation suggested at L3-4 and L4-5. It
is unclear what, if any, treatment appellant received immediately following her July 29, 2002
diagnostic studies.
Dr. Howard B. Krone, a Board-certified orthopedic surgeon, examined appellant on
May 29, 2003. He noted that in 1995, Dr. Payne performed a discectomy at L5-S1for left
radiculitis. Dr. Krone also noted that, in 2001, appellant reinjured her back while lifting at her
job. Appellant had not worked since 2001. X-rays of the lumbar spine showed some mild
degenerative changes at L4-5 and L5-S1. Dr. Krone’s initial impression was postlaminectomy
syndrome with possible scarring or re-herniation of the disc. However, he wanted to review
appellant’s previous lumbar MRI scan and discogram. Dr. Krone prescribed pain medication
and advised her to return once she obtained her previous medical records, including the
MRI scan and discogram.
Dr. Krone saw appellant in follow up on July 22, 2003. Appellant had forgotten to bring
the previously requested films, but she provided a copy of the discogram report. Dr. Krone
commented that it showed extensive arthritis involving L5-S1. There was not only loss of disc at
the area of appellant’s discectomy, but also severe facet arthritis. Dr. Krone advisedthat
appellant could not work due to the severity of her pain. He also noted that she might be a
candidate for fusion at L5-S1. Dr. Krone prescribed Darvocet for pain and referred appellant to
Dr. Koch for further evaluation.
Dr. Koch initially examined appellant on July 28, 2003.
At the time,
appellantcomplained of pain primarily across her back and into both legs. Dr. Koch noted that
there was no history of any weakness, numbness or neurological problems. He also noted that

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appellant had a laminectomy in the 1990s, but complained of severe pain since then. Dr. Koch
commented that she had epidurals and physical therapy since surgery with no real relief in her
pain. He stated that appellant’s x-rays, MRI scans and discograms showed what appeared to be a
spondylolisthesis of L5 on S1. Dr. Koch ratedthat she would benefit from decompression and
fusion.
In an October 10, 2003 follow-up report, appellant reportedly continued to experience
quite a bit of pain in her back and down her legs. Dr. Koch noted that, since their last meeting,
she had addressed some other medical concerns and she was now looking more seriously at
lumbar decompression and fusion. He indicated that, with spondylolisthesis and a positive
discogram, appellant was a good surgical candidate. The plan was to proceed with surgery after
January 1, 2004. Dr. Koch submitted an October 30, 2003 Medicaid precertification form
requesting authorization for a posterior decompression with spinal fusion and instrumentation to
be performed on January 7, 2004. The diagnosis was spondylolisthesis. No additional
information has been provided regarding appellant’s anticipated January 2004 lumbar surgery.
Also, there is no medical evidence of record regarding her postsurgery recovery period. The
next documented treatment with Dr. Koch was more than three years later.
In a December 29, 2006 report, Dr. Koch noted that appellant was a returning patient for
whom he performed a decompression and fusion several years ago. He indicated that she still
had some pain in her hip and was being treated with chronic pain medication. Appellant’s
physical examination was reportedly unchanged and she was neurologically stable. X-rays
showed that her fusion was likely solid. Dr. Koch recommended continued conservative
treatment. He prescribed pain medication (Lotrab) and a muscle relaxant (Soma) and advised
appellant to followup in six months. Dr. Koch continued to see her at six-month intervals over
the next five years.
At her June 15, 2007 follow-up examination, Dr. Koch diagnosed chronic mechanical
back pain status post lumbar fusion, stable. Hesaw appellant again on December 7, 2007 at
which time she requested a referral for evaluation for epidurals. Dr. Koch referred her to his
colleague, Dr. Leslie A. Cone-Sullivan, a Board-certified physiatrist.
In a January 8, 2008 report, Dr. Cone-Sullivan diagnosed left lumbar radiculopathy,
lumbar stenosis and lumbar degenerative disc disease. She also noted a history of lumbar
surgeries in approximately 1995 and 2001. Dr. Cone-Sullivan’s report did not include a history
of any employment-related back injuries. She scheduled appellant for left L5, S1 transforaminal
epidural steroid injections, which were administered on March 4, 2008.
Appellant followed up with Dr. Koch fromMarch 19 to December 4, 2009. A March 4,
2008 epidural reportedly took the edge off her pain and according to Dr. Koch, she seemed to be
doing reasonably well with no significant changes for more than 20 months.
In a February 4, 2010 report, Dr. Koch noted that appellant had been his patient for years
and was treated for injuries related to her back and subsequent chronic back pain. He further
noted that she had undergone lumbar decompression and fusion, but continued to complain of
chronic pain for which she was regularly prescribed medication. Dr. Koch indicated that

5

appellant had been entirely compliant with her treatment plan, however, she continued to suffer
incapacitating chronic lower back pain. He advised that she was presently totally disabled.
Dr. Koch’s treatment notes from July 7, 2010to August 10, 2011 reflect ongoing pain
medication management for appellant’s chronic lumbar complaints. Appellant’s latest x-rays
reportedly revealed an intact fusion at L5-S1. However, there was an apparent listhesis present
above the previous fusion. Dr. Koch also submitted a February 2, 2011 permanent impairment
rating of “15 [percent] total body.”
By decision dated February 14, 2013, OWCP denied modification of the hearing
representative’s September 7, 2011 decision.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.9 This burden includes the necessity of furnishing
evidence from a qualified physician who concludes that the diagnosed condition is causally
related to the employment injury.10 The physician’s opinion must be based on a complete and
accurate factual and medical history and supported by sound medical reasoning.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly declined to expand appellant’s June 22, 1994
traumatic injury claim to include degenerative arthritis and status post lumbar fusion/arthrodesis.
Three physicians -- Drs. Schiff, Stork and Krone --obtained a history that she reinjured her back
lifting at work in October 2001. Dr. Koch, who operated on appellant and saw her regularly for
several years, did not provide a particularly comprehensive history of injury. In fact, his various
reports did not reference her initial 1994 employment injury or her reported October 2001
reinjury. Dr. Koch’s colleague, Dr. Cone-Sullivan, did not include a history of any employmentrelated back injuries.No physician of record has specifically attributed appellant’s lumbar
degenerative arthritis and/or her 2004 lumbar fusion/arthrodesis to the accepted June 22, 1994
employment injury or OWCP-authorized January 13, 1995 lumbar surgery. Under the
circumstances, OWCP properly declined to expand her claim.
Regarding the acceptance of additional conditions, appellant may submit new evidence or
argument with a written request for reconsideration to OWCP within one year of this merit
decision.12

9

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

10

E.g., D.G., 59 ECAB 734, 737-38 (2008).

11

Id. at 738.

12

5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605-10.607.

6

LEGAL PRECEDENT -- ISSUE 2
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.13 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.14 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).15
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or in the implementing regulations.16 The list of schedule members includes
the eye, arm, hand, fingers, leg, foot and toes.17 Additionally, FECA specifically provides for
compensation for loss of hearing and loss of vision.18 By authority granted under FECA, the
Secretary of Labor expanded the list of schedule members to include the breast, kidney, larynx,
lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina and skin.19
Neither, FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back/spine or the body as a whole.20 However, a schedule award is
permissible where the employment-related spinal condition affects the upper and/or lower
extremities.21 The sixth edition of the A.M.A., Guides (2008) provides a specific methodology
for rating spinal nerve extremity impairment.22 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine.
The FECA-approved methodology is premised on evidence of radiculopathy affecting the upper

13
14

Id. at § 8107(c)(1).
20 C.F.R. § 10.404 (2012).

15

SeeFederal (FECA) Procedure Manual, Part 3-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims,Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
16
17
18
19
20

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).
5 U.S.C. § 8107(c).
Id.
5 U.S.C. § 8107(c)(22); 20 C.F.R. § 10.404(b).
Id. at § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

21

Federal (FECA) Procedure Manual, Part 2 -- Claims,Schedule Awards & Permanent Disability Claims, Chapter
2.808.6a(3).
22

The methodology and applicable tables were published in the July/August 2009 edition of The Guides
Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition.”

7

and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are
incorporated in the FECA Procedure Manual.23
ANALYSIS - ISSUE 2
Appellant bears the burden of establishing permanent impairment.24 In January 2011,
OWCP advised her of the necessity of submitting an impairment rating in accordance with the
A.M.A., Guides (6th ed. 2008). In light of her accepted lumbar condition, appellant received
specific instructions on rating spinal nerve extremity impairment. The medical evidence
submitted is not sufficient. Although Dr. Koch indicated that appellant had a permanent
impairment rating of “15 [percent] total body,” he did not otherwise address the basis for his
rating or provide a specific rating for lower extremity impairment consistent with both FECA
and the A.M.A., Guides (6th ed. 2008). FECA does not provide for impairment of the whole
body.25 Dr. Koch did not provide any specific findings from physical examiner that the district
medical adviser might rely upon in determining the existence and extent of impairment. Before a
case can be referred to the district medical adviser, the attending physician should describe the
impairment in sufficient detail to permit clear visualization of the impairment and the restrictions
and limitations which have resulted.26
The evidence of record does not support appellant’s claim for a schedule award with
respect to her June 22, 1994 employment injury. Accordingly, OWCP properly denied her
claim.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly declined to accept degenerative arthritis and
appellant’s latest lumbar surgery as being causally related to her June 22, 1994 employment
injury. Appellant also failed to establish that she has a ratable impairment of a scheduled
member.

23
24

SeeFederal (FECA) Procedure Manual, Part 3-- Medical, Schedule Awards, Chapter 3.700, Exhibit 4.
20 C.F.R. § 10.115(f).

25

See supra note 20.

26

Federal (FECA) Procedure Manual, Part 3-- Medical, Schedule Awards, Chapter 3.700.3a(2).

8

ORDER
IT IS HEREBY ORDERED THAT the February 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 15, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Pittsburgh, PA, Employer
)
___________________________________________ )
D.M., Appellant

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

Docket No. 07-2366
Issued: March 25, 2008

Case Submitted on the Record

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

JURISDICTION
On September 18, 2007 appellant filed a timely appeal from a merit decision of the
Office of Workers’ Compensation Programs dated April 6, 2007, in which an Office hearing
representative affirmed the Office’s October 10, 2006 decision finding that appellant’s right knee
and ankle conditions were not causally related to his employment. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
right knee and ankle condition causally related to factors of his federal employment.
FACTUAL HISTORY
On July 17, 2006 appellant, then a 57-year-old letter carrier, filed an occupational disease
claim alleging that he had pain and swelling in his right ankle and knee due to his work. He
alleged that his duties as a letter carrier included more stops, and routes that contained 20 to 30
blocks of street work, as well as numerous steps. Appellant indicated that he first became aware

of the injury and its relation to his work on June 12, 2006. The employing establishment
indicated that appellant was on restricted duties for his right shoulder and had nonoccupational
restrictions. The employing establishment also noted that he had been assigned to sedentary
work since June 30, 2006. Appellant did not stop work.
By letter dated August 10, 2006, the Office informed appellant of the type of evidence
needed to support his claim and requested that he submit such evidence within 30 days.
In a letter dated August 27, 2006, appellant advised the Office that he did not engage in
sports. He also noted that his hobbies were hunting and fishing; however, he was unable to do
these for more than two weeks in a year because of his “diminished capacity” from his injury and
several others. Appellant noted that he was hired with two disabilities which required him to
wear an ankle sock and an elastic knee brace. He alleged that on July 28, 2004 he injured his
right ankle while removing mail from a collection box. Appellant also noted that, on July 28,
2005, he twisted his right leg and right ankle on uneven ground while delivering parcels. He
included statements pertaining to these incidents.
Appellant also submitted reports dating from October 1, 2004 to January 12, 2005 from
his treating physician, Dr. Paul H. Steinfield, a Board-certified orthopedic surgeon. In his
October 20, 2004 report, Dr. Steinfield noted that a magnetic resonance imaging (MRI) scan of
the right ankle revealed severe degenerative joint disease (DJD) and an MRI scan of the right
knee was unremarkable. He recommended a right ankle injection; however, he indicated that
appellant refused the injection and he prescribed an ankle foot orthosis. In his November 17,
2004 treatment note, Dr. Steinfield found that appellant’s right knee pain persisted and indicated
that appellant had not picked up the ankle foot orthosis. He examined appellant’s knee and
advised that he did not have joint effusion, and noted that he had full range of motion, a painful
patellofemoral grind, and tenderness of the quadriceps tendon and posteromedial corner.
Dr. Steinfield advised that appellant had patellofemoral pain and prescribed a patellar stabilizing
knee sleeve. In his December 15, 2004 report, he noted that appellant was using his ankle foot
orthosis, which relieved some symptoms, but that he had not picked up his knee sleeve.
Dr. Steinfield conducted an examination of the knee and recommended an exercise program and
a knee sleeve. In his January 12, 2005 report, he noted that appellant indicated that the knee
sleeve and ankle brace helped and he was working full duty.
By decision dated October 10, 2006, the Office denied appellant’s claim, as the medical
evidence was insufficient to establish that his condition was caused by employment factors. The
Office accepted that appellant performed the duties of a letter carrier and had been diagnosed
with a right knee and ankle condition; however, the medical evidence did not establish a medical
condition arising from the claimed employment factors.
In a July 10, 2006 report, Dr. Steinfield stated that he first saw appellant in
November 2004 as a “private patient” for complaints of pain and swelling in the right knee and
ankle. He indicated that he prescribed an ankle orthosis and a stronger more supportive knee
sleeve. Dr. Steinfield recommended therapy for strengthening of the knee, and advised that
appellant still had restrictions because of instability in his right knee and ankle. He indicated that
appellant was not able to safely enter or exit a right hand drive vehicle and advised that hills,

2

ramps, steps and uneven ground should be avoided or kept to a minimum. Dr. Steinfield noted
that appellant could stand or walk for up to six hours in an eight-hour workday.
In a September 22, 2006 report, Dr. Craig Garfield, an osteopath, noted that appellant’s
job required that he go up and down long ramps and multiple flights of stairs in order to perform
his letter carrier duties. He indicated that these job activities caused an extreme increase in pain
in the right knee and less mobility. Dr. Garfield noted that appellant had an injury in 1997 to the
right ankle and knee, while working as a police officer. He noted that appellant returned to work
but experienced several incidents afterwards and he retired on disability. Dr. Garfield noted that
appellant sustained an injury on July 20, 2004, while working as a letter carrier and injured his
right knee and ankle, and again in July 2005 while walking on an uneven sidewalk while
delivering mail. He indicated that appellant was promoted to a regular carrier in June 2006 and
was transferred to a new station, which required different activities than he was “previously used
to.” Dr. Garfield advised that, on two occasions in June 2006, appellant had an extreme increase
in pain in his right knee and ankle, which he reported to his supervisor on June 30, 2006 and
related that he could not complete the assignment because of pain. He opined that appellant’s
right knee and ankle problems were aggravated by his letter carrier duties. Dr. Garfield
diagnosed end-stage osteoarthritis of the right ankle, and opined that it was permanent and would
not improve. He also diagnosed right patellofemoral pain syndrome and opined that appellant
had reached maximum medical improvement.
On October 23, 2006 appellant’s representative requested a hearing, which was held on
February 7, 2007.
In an October 25, 2006 statement, appellant alleged that he sustained injuries to his right
ankle, knee, and leg as a result of his employment activities as a letter carrier. He referenced a
July 28, 2004 incident that occurred when he stepped on uneven pavement and his right foot
turned sideways and subsequently twisted his right knee. Appellant alleged that he did not
submit a CA-1 at that time, although he verbally informed his supervisor, because he did not
believe it was severe enough to warrant medical attention. However, after continued pain and
swelling, he related that he sought medical treatment. Appellant alleged that he was given an
elastic ankle brace and knee brace, which allowed him to continue in his duties. He further
alleged that in July 2005 he lost his footing while crossing an area of broken concrete and
pavement and twisted his right leg and ankle, which he reported to his supervisor. Appellant
alleged that he continued to work, but also sought the services of an orthopedist on several
occasions. He alleged that he was promoted and transferred to a new station on June 10, 2006.
Appellant alleged that he was required to go up and down a long ramp over eight feet high and
that he had to climb multiple flights of steps, which caused him to experience an extreme
increase in pain in his right knee and ankle and which caused him to be less mobile. He alleged
that, on June 27, 2006, he had to walk up and down 30 steps each way to the garage to obtain a
vehicle and return it, so that he could deliver “express mail.” Appellant noted that he was given
a similar assignment on June 29, 2006 and had increased pain and swelling in his right knee and
ankle. He alleged that he notified his supervisor on June 30, 2006 that he could not complete an
assignment due to the pain. Appellant stated that, prior to July 28, 2004, the last time he required
specific medical treatment for his right knee and ankle was in 1985 or 1986. He noted that the
employing establishment was aware of his injury when he was hired on July 12, 2003.

3

By decision dated April 6, 2007, the Office hearing representative affirmed the Office’s
October 10, 2006 decision.
LEGAL PRECEDENT
In order to establish that an injury was sustained in the performance of duty in an
occupational disease claim, a claimant must submit the following: (1) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; (2) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; and (3) medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.1 Causal relationship is a medical question that can generally be resolved only
by rationalized medical opinion evidence.2
To establish causal relationship, appellant must submit a physician’s report in which the
physician reviews the factors of employment identified by appellant as causing his condition and,
taking these factors into consideration as well as findings on examination of appellant and
appellant’s medical history, state whether these employment factors caused or aggravated
appellant’s diagnosed conditions and present medical rationale in support of his opinion.3
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether appellant
sustained a right knee and ankle condition in the performance of duty.
The Office accepted and the evidence establishes that appellant performed the duties of a
letter carrier which required walking, including going up and down stairs. However, the Office
found that the medical evidence did not establish a medical condition arising from these
employment factors.
The Board notes, as set forth above, that the record contains medical evidence indicating
that there is a causal relationship between appellant’s employment activities and his right knee
and ankle conditions. Dr. Garfield’s September 22, 2006 report detailed the employment factors
and activities described by appellant in his statements. In particular, he noted that appellant
injured his right knee and ankle at work on July 20, 2004 and again on July 20, 2005, while
walking on uneven sidewalk. Dr. Garfield was also aware that appellant was transferred to a
new station, which required new activities other than what he was previously used to performing,
and included going up and down a long ramp with multiple flights of stairs to perform his letter
carrier duties. He opined that appellant’s right knee and ankle conditions were aggravated by his
duties as a letter carrier. Furthermore, Dr. Garfield noted that, despite having previous injuries
1

Solomon Polen, 51 ECAB 341 (2000); see also Victor J. Woodhams, 41 ECAB 345 (1989).

2

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background of the claimant. Victor J. Woodhams, supra note 1.
3

Donald W. Long, 41 ECAB 142, 146-47 (1989).

4

related to his duties as a police officer, appellant was able to perform his letter carrier duties until
he had several incidents at work that increased his symptomatology and discomfort and
exacerbated his symptoms.
The Board finds that the report from Dr. Garfield regarding the causal relationship
between appellant’s right knee and ankle conditions and the factors of employment, while not
fully rationalized, is sufficient to require further development of the case record by the Office.4
Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested arbiter.
While the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence to see that justice is done.5 Additionally, the
Board notes that in this case the record contains no contrary medical opinion. The case will be
remanded for the Office to refer appellant for a second opinion examination to determine causal
relationship. Following this and such further development as the Office deems necessary, an
appropriate decision should be issued.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not
appellant’s right knee and ankle conditions are causally related to factors of his employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 6, 2007 is set aside and remanded for further development
consistent with this decision.
Issued: March 25, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
4

See Felix Flescha, 52 ECAB 268 (2001); John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB
820 (1978).
5

Claudio Vazquez, 52 ECAB 496 (2001).

5


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

)
)
)
)
)
)
)
)

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

Docket No. 15-0914
Issued: October 16, 2015

Case Submitted on the Record

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

JURISDICTION
On March 18, 2015 appellant, through counsel, filed a timely appeal from the January 14,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective May 22, 2013; and (2) whether appellant met his burden of
proof to establish that he had any condition or disability after May 22, 2013 causally related to
the October 21, 2010 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 21, 2010 appellant, then a 46-year-old mail handler, injured his back when
the tow motor he was driving hit a pothole.2 He stopped work on October 22, 2010. On
December 17, 2010 OWCP accepted the claim for lumbar strain and paid appellant
compensation for injury-related disability.
In an October 22, 2010 report, Dr. David Chen, Board-certified in family medicine,
diagnosed lumbar radiculopathy and lumbar strain. Dr. Warren Buck, a Board-certified internist,
placed appellant off work on October 22, 2010. A November 17, 2010 MRI scan read by
Dr. Charles Saniewski, a Board-certified diagnostic radiologist, revealed diffuse degenerative
findings, including several disc herniations; central to right-sided disc herniation with
impingement on the exiting nerve root at L4-5; and no spinal canal stenosis.
On January 11, 2012 Dr. Joseph Lombardi, a Board-certified orthopedic surgeon, noted
seeing appellant for low back pain with radiation and numbness that began with a work injury on
October 21, 2010. He diagnosed lumbar herniated nucleus pulposus (HNP) at L4-5 and L5-S1
and noted that surgery was recommended. A January 18, 2012 lumbar spine MRI scan read by
Dr. Gabriel Pivawer, a Board-certified diagnostic radiologist, revealed a decrease in size of the
disc herniations since a prior study for the herniations at L3-4 and L4-5. It also showed stable
right paracentral foraminal and left foraminal disc herniations at L5-S1 with no new herniation or
nerve root impingement identified. On October 3, 2012 Dr. Lombardi advised that appellant
could not work and diagnosed lumbar HNP and displacement of lumbar intervertebral disc
without myelopathy.
OWCP referred the request for surgery to an OWCP medical adviser. On September 17,
2012 the medical adviser explained that there were no significant changes in the discs due to the
minor injury that occurred. He recommended a second opinion examination.
On October 11, 2012 OWCP referred appellant for a second opinion, along with a
statement of accepted facts (SOAF), a set of questions, and the medical record to Dr. Kenneth
Heist, an osteopath and a Board-certified orthopedic surgeon. In a November 21, 2012 report,
Dr. Heist noted appellant’s history of injury and treatment. He noted that appellant had an MRI
scan in 2003 that showed a ruptured disc at L5-S1 and that he was treated for a back condition
since 2006. Dr. Heist examined appellant and diagnosed lumbar sprain and aggravation of
preexisting degenerative spinal disease. He found restriction of motion of the lumbar spine and
attributed it to appellant’s preexisting degenerative spinal disease. Dr. Heist opined that the
condition was not aggravated or affected by the accident of October 21, 2010. He explained that
MRI scan studies performed prior to the employment injury, as far back as 2003, and those
performed after October 21, 2010 documented no change. Dr. Heist opined that it was his
“medical opinion that the suffered sprains in the accident that have since resolved.” He further
advised that he believed the “disc pathology reported in the MRI scan studies are related to the
2

The record reflects that appellant had a low back condition for which he was receiving treatment since 2006.
An August 26, 2008 report from Dr. David Idank, a Board-certified physiatrist, noted treating appellant for chronic
low back pain and recurrent left sciatica. An August 26, 2008 magnetic resonance imaging (MRI) scan of the
lumbar spine revealed disc herniation/extrusion at L3-4, L4-5, and L5-S1.

2

degenerative changes and not due to the accident. The claim should not be expanded.” Dr. Heist
concluded that appellant could perform his full duties.
On December 14, 2012 OWCP found that Dr. Heist’s report created a conflict with the
opinion Dr. Lombardi on the issues of the need for surgery and the nature and extent of any
ongoing residuals of the work injury and appellant’s resulting ability to work.
On January 15, 2013 OWCP referred appellant along with a SOAF and the medical
record to Dr. Dean L. Carlson, a Board-certified orthopedic surgeon, to resolve the medical
conflict. In a January 31, 2013 report, Dr. Carlson noted appellant’s history of injury and
treatment. He found that appellant had symptoms to include “toothache-like” lumbosacral pain
radiating to both buttocks and lower extremities, with the right side 90 percent greater than the
left. Appellant related having constant pain, including severe night pain, and paresthesias to the
soles of both feet, worse on the right. Dr. Carlson noted that flexion and extension of the
dorsolumbar spine was voluntarily restricted to virtually zero degrees. Appellant could not put
his fingertips as far as his patellae, but he had no difficulty getting on and off the examining table
and turning over. Dr. Carlson found that prone thrust was negative at the lumbosacral junction
and there was severe resistance to bilateral hip flexion, which prevented lifting the right heel
from the examining table, and the left heel only four inches. This suggested an overreaction.
Sitting root signs were negative to 70 degrees, which was a nonorganic finding when associated
with the pronounced guarding of the supine straight leg raising. The right hip had full passive
range of motion when done slowly, with no local tenderness. The left hip had full range of
motion with no local tenderness. Dr. Carlson found that neurologic testing was normal and that
sensory testing was intact to touch over the lower extremities. He diagnosed a resolved
lumbosacral sprain. Dr. Carlson compared the August 26, 2008, November 17, 2010, and
January 18, 2012 MRI scans and explained that the multiple disc herniations identified on the
MRI scan studies preceded the October 21, 2010 trauma. He determined that the positive
findings were degenerative in nature. Dr. Carlson opined that the work injury temporarily
aggravated appellant’s condition, which had resolved, and advised that he reached maximum
medical improvement on November 17, 2012. He advised that the lumbar discectomy should not
be authorized and opined that appellant could return to full-time duty as a mail handler.
On March 4, 2013 OWCP provided Dr. Carlson with a revised SOAF3 and requested a
supplemental report regarding whether any continuing residuals or disability were due to the
October 21, 2010 employment injury. In a March 30, 2013 employment report, Dr. Carlson
reported that his opinion had not changed. He explained that appellant could resume his duties
as he found no objective signs of impairment on his examination. Dr. Carlson noted that
appellant exhibited exaggerated signs of severe low back pain and muscle spasm in the supine
position that were not confirmed with his sitting nerve root test. He explained that these
“nonorganic findings lead me to doubt the amount of pain and disability that [appellant]
genuinely has.” Dr. Carlson opined that the October 21, 2010 work injury temporarily
aggravated the preexisting disc herniations. He explained that there were three main reasons for
his conclusion: no believable objective evidence for physical impairment; most strained backs
recover after two years; and the follow-up lumbar MRI scan study of January 18, 2012 showed
3

The revised SOAF provided greater detail regarding appellant’s work duties.

3

“a decrease in size of the disc herniations since prior study.” Dr. Carlson opined that appellant
was fully able to perform his date-of-injury full-time, full-duty job as a mail handler equipment
operator despite having chronic lumbar spine issues which he was being treated for over a few
years up until October 20, 2010. He noted that this included the August 26, 2008 lumbar MRI
scan study, which was positive for multiple lumbar disc herniations. Dr. Carlson opined that he
found “no objective evidence on physical examination that could prevent him from returning to
this occupation.” He indicated that appellant did not require further treatment.
On April 10, 2013 OWCP proposed to terminate appellant’s compensation as the weight
of the medical evidence, as represented by Dr. Carlson, established that the residuals of the work
injury of October 21, 2010 had ceased.
Counsel for appellant submitted new evidence.
In an April 10, 2013 report,
Dr. Lombardi diagnosed lumbar HNP-displacement of lumbar intervertebral disc without
myelopathy and recommended surgery. He opined that the right-sided HNP at L4-5 and L5-S1
were related to the work accident.
By decision dated May 22, 2013, OWCP terminated appellant’s compensation benefits
effective May 22, 2013. On May 28, 2013 counsel for appellant requested a hearing, which was
held on September 24, 2013.
On June 27, 2013 appellant’s counsel argued that Dr. Carlson did not review the
objective testing before and after the work injury. In a June 19, 2013 report, Dr. Lombardi noted
that the 2008 MRI scan revealed a small focal right paracentral disc herniation at the L4-5 level
and that the November 17, 2010 MRI scan revealed “a central and right-sided disc herniation
which now presses slightly upon the thecal sac and on the exiting right L5 nerve root.” He
indicated at the L5-S1 level, appellant had a superimposed left greater than right foraminal disc
herniation with a moderate to severe left foraminal stenosis and problems with the left L5 nerve
root. Dr. Lombardi opined that the November 17, 2010 MRI scan clearly demonstrated that
appellant had now had mild bilateral neural foraminal narrowing and superimposed central and
right-sided disc herniation, and the right-sided disc herniation that was not present in the 2008
MRI scan. He explained that appellant never complained of right-sided sciatica and his
symptoms were always on the left. Dr. Lombardi concluded that the November 17, 2010 MRI
scan “clearly shows that [appellant] has a larger disc herniation at L5-S1 on the right and a new
disc herniation at L5-S1 on the right. The fact that the [appellant] had preexisting disc herniation
on the opposite side from where his pain was does not preclude the fact that this injury of
October 21, 2010 caused a new herniation at L5-S1 and aggravated a previous small herniation at
L4-5 now pressing on the descending nerve root.” He recommended that Dr. Carlson review the
MRI scans in detail since appellant had “new injuries to the right side of the disc at L4-5 and L5S1 causing [appellant’s] right sciatica which are clearly related to the accident of
October 21, 2010.”
In an October 18, 2013 report, Dr. Lombardi diagnosed disc herniations at L4-5 and L5S1. He opined that “To determine that appellant has suffered only a lumbosacral strain and not
aggravation of the preexisting herniations is a minimalization of [his] clinical and objective
findings.” He explained that appellant had “signs of nerve root impairment in that [appellant]
has a positive straight leg raising on the right side causing sciatic irritability which is consistent

4

with his disc herniations on the right side.” Dr. Lombardi noted that there was no neurological
loss, but he indicated that the disc herniations were causing significant pain precluding appellant
from working. He further explained that, while the new MRI scan revealed the size of the discs
were smaller, there was an increase in the size of the foraminal disc herniations at L5-S1 causing
severe foraminal stenosis, which would result in fairly severe sciatic irritability of the nerve
roots. Dr. Lombardi opined that appellant was unable to perform his normal duties due to his
fairly constant and severe right sciatica. He explained that the residual sciatic pain due to the
work injury contributed to appellant’s inability to work. Dr. Lombardi noted that appellant failed
conservative treatment and was a candidate for microdisc excision at L5-S1.
By letter dated November 1, 2013, appellant’s counsel provided additional evidence to
include a November 1, 2013 electromyogram (EMG) in which Dr. Idank found evidence of
subacute chronic bilateral L5 radiculopathies.
By decision dated December 11, 2013, an OWCP hearing representative affirmed the
May 22, 2013 decision with regard to the termination. However, she found that the new medical
evidence from Dr. Lombardi after the termination was sufficient to require additional
development with regard to expansion of the claim, residuals, and appellant’s ability to work.
The hearing representative remanded the case to the district office for further development of the
new medical evidence.
On December 27, 2013 OWCP requested that Dr. Carlson review the additional evidence
since his examination to include the diagnostic MRI scan reports from August 26, 2008,
November 17, 2010, and January 18, 2012.
In a January 16, 2014 reply, Dr. Carlson noted that he had reviewed the new medical
evidence. He explained that while Dr. Lombardi indicated that the L5-S1 HNP on November 17,
2010 was not present, the August 26, 2008 lumbar MRI scan from Dr. Pivawer revealed a
diagnosis of disc herniation/extrusion L3-4, L4-5, and L5-S1. Dr. Carlson advised that,
regarding the November 17, 2010 MRI scan study, the right L5-S1 HNP did not appear to exert
any mass effect on the exiting nerves and the January 18, 2012 study revealed a stable right
paracentral and left foraminal herniated disc at L5-S1 and no new disc herniation or new root
impingement. He noted that it would be helpful if an angle of elevation was noted in
Dr. Lombardi’s report of a positive straight leg raising on the right. Dr. Carlson indicated that he
was unable to pry appellant’s right leg off the examining table to perform straight leg raising. He
also explained that the most recent lower extremity EMG and nerve conduction study (NCS)
performed by Dr. Idank on November 1, 2013 indicated subacute/chronic bilateral L5
radiculopathies. Dr. Carlson explained that “[t]his sounds serious except that [appellant] had
normal EMG/NCS lower extremities performed on March 2 and May 6, 2011 post-trauma. He
further explained that the findings of November 1, 2013 revealed chronic electrical changes with
the less symptomatic left leg exhibiting the more noted electrical change (peroneal nerve latency)
and it did it correspond to a dermatomal pattern of his clinical complaints to the soles of both
feet. Dr. Carlson concluded that appellant never showed objective neurologic findings by
Dr. Lombardi or any other examiner. He further explained that appellant’s bilateral leg pain did
not follow a dermatomal pattern. Dr. Carlson indicated that appellant’s positive straight leg
raising was “nonorganic” and synonyms would include “functional, hysteric, psychosomatic, or
if monitory gain is invo1ved, malingering).” He explained that the November 1, 2013 EMG did

5

not change his professional opinion that appellant should not undergo lumbar microdiscectomy
and that he could return to work.
By decision dated March 20, 2014, OWCP denied the claim. It found that the evidence
failed to establish a medical basis for further entitlement or for further development by OWCP.
On March 25, 2014 counsel for appellant requested a hearing, which was held on
June 10, 2014.
By decision dated July 29, 2014, an OWCP hearing representative affirmed the
March 20, 2014 decision. She found that Dr. Carlson’s supplemental report established that
appellant could resume his full duties without the need for further medical treatment.
On October 2, 2014 counsel requested reconsideration and submitted further evidence
from Dr. Lombardi. In an undated report received on October 22, 2014, Dr. Lombardi explained
that he treated appellant for injuries sustained in the October 21, 2010 accident. He noted
reviewing Dr. Carlson’s most recent comments and disagreed. It was Dr. Lombardi’s “medical
opinion that this [appellant’s] diagnosis is that of disc herniations at L4-5 and L5-Sl. To
determine that [he] has suffered only a lumbosacral strain and not aggravation of the preexisting
herniations is a minimization of [appellant’s] clinical and objective findings.” Dr. Lombardi
opined that appellant had signs of nerve root impairment based on a positive straight leg raising
on the right side causing sciatic irritability, which was consistent with his right-side disc
herniations. He explained that, while appellant did not have neurological loss, the disc
herniations caused significant pain that precluded him from performing his normal duties.
Dr. Lombardi also explained that while the new MRI scan revealed that the size of the discs were
smaller there was an increase in the size of the foraminal disc herniations at L5-S1 causing
severe foraminal stenosis, which resulted in fairly severe sciatic irritability of the nerve roots.
He referred to the November 1, 2013 EMG and advised that it was objective evidence that
appellant had chronic radiculopathies, which were related to his work injury on
October 21, 2010. Dr. Lombardi opined that appellant was unable to perform his normal duties
due to the fact that he had fairly constant and severe right sciatica. He explained that this
residual sciatic pain due to the employment injury was contributing to appellant’s disability.
Dr. Lombardi reiterated that appellant failed conservative therapy and was a candidate for a
micro disc excision at L5-S1.
In a January 14, 2015 decision, OWCP denied modification of the July 29, 2014 decision.
It also found that Dr. Lombardi did not explain how the accepted work injury caused or
aggravated any disc herniations.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
4

Curtis Hall, 45 ECAB 316 (1994).

6

employment.5 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.6 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.7
Furthermore, FECA provides that if there is disagreement between the physician making
the examination for OWCP and the employee’s physician, OWCP shall appoint a third physician
who shall make an examination.8 In cases where OWCP has referred appellant to an impartial
medical examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.9
ANALYSIS -- ISSUE 1
OWCP determined that a conflict of medical opinion existed regarding the nature and
extent of any ongoing residuals of the work injury of October 21, 2010, accepted for a lumbar
strain, based on the opinions of Dr. Lombardi, appellant’s physician who opined that appellant’s
work-related condition was disabling, included herniated discs, and required surgery, and
Dr. Heist, a second opinion physician who opined that appellant’s accepted condition had
resolved without residuals. Therefore, it properly referred appellant to an impartial medical
examiner, Dr. Carlson, a Board-certified orthopedic surgeon, pursuant to 5 U.S.C. § 8123(a).
In a January 31, 2013 report, Dr. Carlson noted appellant’s history and current symptoms
of lumbosacral pain radiating to both buttocks and lower extremities, with the right side being
more symptomatic. He found flexion and extension of the dorsolumbar spine movement was
voluntarily restricted to virtually zero degrees. While appellant could not put his fingertips as far
as his patellae, he had no difficulty getting on and off the examining table and turning over.
Prone thrust was negative at the lumbosacral junction and he had very severe resistance to
bilateral hip flexion, which prevented lifting the right heel from the examining table. Dr. Carlson
opined that this was an overreaction and also noted that the sitting root signs being negative to 70
degrees was a nonorganic finding when associated with the pronounced guarding of the supine
straight leg raising maneuvers. Neurologic testing was normal. Dr. Carlson concluded that the
mechanism of injury was consistent with a resolved lumbosacral sprain. He compared the
August 8, 2008 MRI scan with the November 17, 2010 MRI scan and the most recent
January 18, 2012 MRI scan and explained that the multiple disc herniations identified on the
MRI scan studies preceded the trauma on October 21, 2010 and the positive findings were
degenerative in nature. Dr. Carlson opined that the injury temporarily aggravated appellant’s

5

Jason C. Armstrong, 40 ECAB 907 (1989).

6

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

7

Calvin S. Mays, 39 ECAB 993 (1988).

8

5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

9

Gloria J. Godfrey, 52 ECAB 486 (2001); Gary R. Sieber, 46 ECAB 215, 225 (1994).

7

condition, which had resolved. He advised that the lumbar surgery should not be authorized and
that appellant could return to full time full duty to his job.
On March 4, 2013 OWCP requested a supplemental report from Dr. Carlson to further
address whether any continuing condition or disability was due to the October 21, 2010 work
injury.10 On March 30, 2013 Dr. Carlson advised that appellant could again resume his duties
and explained that he found no objective signs of impairment on examination. He noted that
appellant exhibited exaggerated low back pain and muscle spasm in the supine position that was
not confirmed with his sitting nerve root test. Dr. Carlson explained that these “nonorganic
findings” caused him “to doubt the amount of pain and disability that [appellant] genuinely has.”
He opined that the October 21, 2010 work injury temporarily aggravated appellant’s preexisting
disc herniations. Dr. Carlson noted three reasons for his conclusion: lack of believable objective
evidence of physical impairment; most strained backs resolve within two years; and a
January 18, 2012 MRI scan showed that the size of the disc herniations had decreased. He
explained that appellant was fully capable of performing his date-of-injury job despite having
chronic lumbar spine issues for which he was treated for years before the October 2010 work
injury. Dr. Carlson noted an August 26, 2008 lumbar MRI scan was positive for multiple lumbar
disc herniations. He found “no objective evidence” on examination that would preclude
appellant from returning to his job. Dr. Carlson indicated that appellant did not require further
care or treatment. The Board finds that his report is sufficiently well rationalized and based upon
a proper factual background such that it is entitled to special weight in establishing that residuals
of appellant’s employment injury had ceased. Dr. Carlson provided an extensive review of
appellant’s medical history, reported his examination findings, and determined that there were no
objective findings to correspond with appellant’s subjective complaints. He found no objective
evidence of any work-related disability.
In these circumstances, OWCP properly accorded special weight to Dr. Carlson’s
findings. When an impartial medical specialist is asked to resolve a conflict in medical evidence,
his opinion, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.11 The Board finds that Dr. Carlson’s report represents the special weight
of the medical evidence and establishes that there were no ongoing residuals of the October 21,
2010 accepted lumbar strain. Dr. Carlson explained the reasons for his conclusion and found no
basis on which to attribute any continuing condition or disability to the work injury.
Subsequent to the evaluation by Dr. Carlson, but prior to the termination of benefits,
OWCP received an April 10, 2013 report from Dr. Lombardi. However, Dr. Lombardi merely
reiterated previously stated findings and conclusions regarding appellant’s condition. As he had
been on one side of the conflict in the medical opinion that the impartial specialist resolved, the

10

See Guiseppe Aversa, 55 ECAB 164 (2003) (where OWCP secures an opinion from an impartial medical
specialist for the purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental report from the specialist
for the purpose of correcting the defect in the original opinion).
11

See supra note 9.

8

treating physician’s report was insufficient to overcome the special weight accorded the impartial
specialist, or to create a new medical conflict.12
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative, and substantial evidence
that he had an employment-related disability, which continued after termination of compensation
benefits.13
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.14
ANALYSIS -- ISSUE 2
Following the termination of compensation, appellant submitted several reports from
Dr. Lombardi. These reports are insufficient to meet his burden of proof to establish that he has
any continuing condition or disability causally related to the October 21, 2010 work injury.
On June 19, 2013 Dr. Lombardi explained that the 2008 MRI scan revealed a small focal
right paracentral disc herniation at L4-5 while an MRI scan right after the accident revealed a
central and right-sided disc herniation that pressed slightly on the thecal sac and the exiting right
L5 nerve root. He opined that this “clearly demonstrated mild bilateral neural foraminal
narrowing and superimposed central and right[-]sided disc herniation present” on the
November 17, 2010 MRI scan that was not on the 2008 MRI scan. Dr. Lombardi explained how
the work injury occurred and that it caused right-sided sciatica. He advised that appellant had
not previously complained of right-sided sciatica. Dr. Lombardi opined that November 17, 2010
MRI scan showed a worsening of the right-sided disc herniation at L4-5 and a new herniation
L5-S1 on the right and indicated that it “clearly shows that he has a larger disc herniation at L5S1 on the right and a new disc herniation at L5-S1 on the right.” He stated that a preexisting disc
herniation on the opposite side did not preclude him from having a new herniation caused by the
October 21, 2010 injury. Dr. Lombardi suggested that Dr. Carlson review the MRI scans in
detail and contended that appellant had new injuries to the right side of the disc at L4-5 and L5S1 which were “clearly related to the accident of October 21, 2010.” On October 18, 2013 he
12

Barbara J. Warren, 51 ECAB 413 (2000).

13

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

14

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

9

diagnosed disc herniations at L4-5 and L5-S1 and opined that the finding that appellant only had
a lumbosacral strain minimalized his clinical and objective findings. Dr. Lombardi explained
that appellant had a positive straight leg raising on the right which was consistent with his disc
herniations on the right side. He opined that while appellant did not have neurological loss, the
disc herniations caused significant, and disabling pain.
On December 27, 2013 OWCP asked Dr. Carlson to review the new evidence and offer
an opinion.15 In a January 16, 2014 report, Dr. Carlson explained that while Dr. Lombardi
indicated that the L5-S1 HNP on November 17, 2010 was not present, this was not correct as the
August 26, 2008 lumbar MRI scan diagnosed disc herniation/extrusion L3-4, L4-5, and L5-S1.
He explained that the right L5-S1 HNP did not appear to exert any mass effect on the exiting
nerves in the November 17, 2010 MRI scan study. Furthermore, the January 18, 2012 MRI scan
study revealed a stable right paracentral and left foraminal herniated disc at L5-S1 and no new
disc herniation or new root impingement. Dr. Carlson explained that Dr. Idank’s November 1,
2013 EMG revealed subacute/chronic bilateral L5 radiculopathies which “sounds serious except
that [appellant] had normal” EMGs on March 2 and May 6, 2011, post-trauma. He opined that
the November 1, 2013 EMG findings did not correspond to a dermatomal pattern of appellant’s
clinical complaints to the soles of both feet and appellant never exhibited objective neurologic
findings. Dr. Carlson observed that appellant’s bilateral leg pain did not follow a dermatomal
pattern. He indicated that appellant’s positive straight leg raising was “nonorganic.” Dr. Carlson
reiterated that the November 1, 2013 EMG did not change his opinion.
While Dr. Lombardi provided a report received on October 22, 2014 he essentially
repeated his previous findings and conclusions. As he had been on one side of the conflict in the
medical opinion that Dr. Carlson resolved, his subsequent similar reports are insufficient to
overcome the weight accorded the impartial specialist or to create a new medical conflict.16
Dr. Lombardi also did not sufficiently explain the medical process by which the accepted lumbar
strain caused disc herniations at L4-5 and L5-S1.17 The need for medical reasoning on this point
is particularly important since appellant had a preexisting history of low back problems.
On appeal, appellant’s counsel asserts that OWCP did not establish that appellant’s
accepted condition had resolved and that OWCP should have accepted a lumbar disc herniation.
As explained, the opinion of Dr. Carlson represents the special weight of the medical evidence
and appellant has not established that any other condition is causally related to his work injury.
Consequently, appellant has not met his burden of proof to establish that his condition on
and after May 22, 2013 was causally related to his accepted employment injury.

15

See supra note 10.

16

Id.

17

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, he bears the burden of proof to establish that the condition is
causally related to the employment injury).

10

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective May 22, 2013. The Board also finds that he did not meet his
burden of proof to establish that he had any condition or disability after May 22, 2013 causally
related to the October 21, 2010 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2015
Washington, DC

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

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

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

11