United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION FACILITY, Santa Clarita, CA,
Employer
__________________________________________

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

Docket No. 12-1080
Issued: October 17, 2012

Case Submitted on the Record

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

JURISDICTION
On April 10, 2012 appellant filed a timely appeal from a March 1, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her claim for leave buyback.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant was disabled from May 24 to June 10, 2003 causally
related to her accepted employment injury.
FACTUAL HISTORY
On May 11, 2003 appellant, then a 52-year-old flat sorting machine operator, filed an
occupational disease claim alleging that she sustained bilateral carpal tunnel syndrome causally
1

5 U.S.C. § 8101 et seq.

related to factors of her federal employment. OWCP accepted the claim for bilateral carpal
tunnel syndrome.
In a May 21, 2003 disability certificate, Dr. John A. Vogel, a chiropractor, found that
appellant was disabled from May 23 to June 20, 2003. On May 23, 2003 he discussed her
history of repetitive work duties.
On June 2, 2003 the employing establishment indicated that appellant had used sick leave
from May 23 to June 2, 2003.
In a report dated June 9, 2003, Dr. Donna Meeks, a chiropractor, diagnosed carpal tunnel
syndrome with cervicalgia. She opined that appellant was totally disabled until July 1, 2003 and
had been on a “leave of absence since May 21, 2003.”
In a form report dated August 19, 2003, Dr. Meeks diagnosed employment-related
bilateral carpal tunnel syndrome and found that appellant was totally disabled from June 9, 2003
to the present.
On January 20, 2005 appellant requested leave buyback from May 24 to June 10, 2003.
She indicated that she used sick leave during this time.
By letter dated May 5, 2005, OWCP informed appellant that the evidence was
insufficient to show that she was disabled from May 24 to June 10, 2003. It advised her that a
chiropractor was not considered a physician under FECA for the purposes of treating carpal
tunnel syndrome. OWCP requested that appellant submit medical evidence to show that she was
disabled from work due to her carpal tunnel syndrome for the claimed period.
In a decision dated March 1, 2012, OWCP denied appellant’s request for leave buyback
from May 24 to June 10, 2003. It noted that she had not responded to its May 5, 2005 request for
supporting medical evidence.
On appeal, appellant alleges that she was disabled from May 24 to June 10, 2003 due to
her carpal tunnel syndrome.
LEGAL PRECEDENT
The term disability as used in FECA2 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.3 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.4 When the medical evidence establishes that the
residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in the employment held when injured, the employee is entitled to
2

5 U.S.C. § 8101 et seq; 20 C.F.R. § 10.5(f).

3

Paul E. Thams, 56 ECAB 503 (2005).

4

Id.

2

compensation for any loss of wage-earning capacity resulting from such incapacity.5 The Board
will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.6
In situations where compensation is claimed for periods where leave was used, OWCP
has the authority to determine whether the employee was disabled during the period for which
compensation is claimed.7 It determines whether the medical evidence establishes that an
employee is disabled by an employment-related condition during the period claimed for leave
buyback, after which the employing establishment will determine whether it will allow the
employee to buy back the leave used.8
Section 8101(2) of FECA provides that chiropractors are considered physicians and their
reports considered medical evidence only to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.9
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome. On
January 20, 2005 appellant filed a claim requesting leave buyback from May 24 to
June 10, 2003. OWCP must thus determine whether the medical evidence establishes that she
was disabled during this period due to her bilateral carpal tunnel syndrome.10
Appellant submitted reports dated May 21 and 23, 2003 from Dr. Vogel, a chiropractor,
and reports dated June 9 and August 19, 2003 from Dr. Meeks, also a chiropractor. As noted,
however, under section 8101(2) of FECA, chiropractors are only considered physicians and their
reports considered medical evidence to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.11 As chiropractors are considered physicians only to the extent
of treating spinal subluxations based on x-ray, a chiropractor is not competent to address other
conditions.12 Dr. Vogel and Dr. Meeks, as chiropractors, are not competent to render an opinion
on appellant’s disability due to her carpal tunnel syndrome and thus their reports do not
5

Id.

6

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

7

See Laurie S. Swanson, 53 ECAB 517 (2002); see also 20 C.F.R. § 10.425 (the employee may claim
compensation for periods of annual and sick leave which are restorable in accordance with the rules of the
employing establishment).
8

See Laurie S. Swanson, id.

9

5 U.S.C. § 8101(2); Paul Foster, 56 ECAB 208 (2004).

10

See supra note 7.

11

5 U.S.C. § 8101(2); Pamela K. Guesford, 53 ECAB 726 (2002).

12

See id. at § 8101(2)-(3); George E. Williams, 44 ECAB 530 (1993).

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constitute competent medical evidence.13 The remaining medical evidence of record does not
address disability May 24 to June 10, 2003.
By letter dated May 5, 2005, OWCP advised appellant of the limitations of a chiropractor
under FECA and requested that she submit a medical report from a physician addressing whether
she was disabled due to her accepted bilateral carpal tunnel syndrome from May 24 to
June 10, 2003. Appellant did not respond to OWCP’s request with supporting medical evidence.
The Board will not require OWCP to pay compensation for disability in the absence of any
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.14
On appeal, appellant maintains that she was disabled from May 24 to June 10, 2003 due
to her accepted work injury. She has the burden, however, to submit medical evidence showing
that any disability claimed is causally related to her employment injury.15 Appellant may submit
new evidence or argument with a written request for reconsideration to OWCP within one year
of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she was disabled from May 24 to
June 10, 2003 causally related to her accepted employment injury.

13

Ronald Q. Pierce, 53 ECAB 336 (2002) (as a chiropractor may qualify as a physician only in the diagnosis and
treatment of spinal subluxation, his or her opinion is not considered competent medical evidence in evaluation of
other disorders).
14

Fereidoon Kharabi, supra note 6.

15

See C.S., 59 ECAB 686 (2008); G.T., 59 ECAB 447 (2008).

4

ORDER
IT IS HEREBY ORDERED THAT the March 1, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 17, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 10-774
Issued: December 7, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 27, 2010 appellant filed a timely appeal from the October 26, 2009 decision
of the Office of Workers’ Compensation Programs denying his claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant established any permanent impairment for schedule award
purposes.
On appeal, appellant states that the Office’s decision was issued before he reached
maximum medical improvement and was denied due to this fact.
FACTUAL HISTORY
On December 17, 2005 appellant filed a traumatic injury claim alleging that on that day
he injured his lower back after he fell on a step delivering phone books. On February 28, 2006
the Office accepted his claim for fracture sacrum/coccyx, closed and displaced lumbar intervert

disc. The claim was also accepted for sprain/strain of lumbar region and lumbar radiculopathy.
The Office paid compensation benefits. On January 16, 2007 appellant had a left L4-5
laminectomy with decompression of nerve roots including partial facetectomy, foraminotomy
and/or excision of herniated disc performed.
In a March 31, 2009 report, Dr. William C. Watters, III, appellant’s treating Boardcertified orthopedic surgeon, stated that appellant had an impairment rating to the whole body of
18 percent.1 However, he noted that appellant was about to undergo a spinal cord stimulator
implant and so he was not at maximum medical improvement.
On June 1, 2009 appellant had a laminectomy for implantation of neural stimulator
electrodes and insertion or placement of spinal neural stimulator pulse generator.
On June 4, 2009 appellant filed a claim for a schedule award.
The Office medical adviser reviewed appellant’s case for an opinion with regards to
permanent impairment. In a report dated August 22, 2009, he noted that the Office does not
award impairment due to abnormalities of the spine or radiculopathy and that therefore the award
does not conform to the Office’s requirements and procedures. The Office medical adviser
further noted that instead of radiculopathy, awards can be based on peripheral nerves. He
recommended that the Office ask Dr. Watters to calculate the impairment of the lower
extremities using the peripheral nerves instead of the nerve roots.
By letter dated September 1, 2009, the Office asked Dr. Watters to render an opinion with
regards to appellant’s permanent impairment pursuant to the A.M.A., Guides (6th ed. 2009). In a
September 30, 2009 report, Dr. Watters noted that appellant had not yet reached maximum
medical improvement. He noted that appellant had implantation of a neural stimulator on June 1,
2009 and that adjustments are being made and his leg pain was decreasing.
In a decision dated October 23, 2009, corrected and reissued on October 26, 2009, the
Office denied appellant’s claim as he had not met the requirements of showing entitlement to a
schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing federal regulations,3 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
1

An unsigned impairment rating of the same date indicates that the American Medical Association, Guides to the
Evaluation of Permanent Impairment A.M.A., Guides (6th ed. 2009) were applied and that appellant had a final
lower extremity impairment of 18 percent.
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

2

claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.4 For decisions issued after May 1, 2009, the sixth edition will be used.5
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the employment
injury. The Board has defined maximum medical improvement as meaning that the physical
condition of the injured member of the body has stabilized and will not improve further. The
determination of whether maximum medical improvement has been reached is based on the
probative medical evidence of record and is usually considered to be the date of the evaluation
by the attending physician which is accepted as definitive by the Office.6
Office procedures provide that maximum medical improvement must be reached before a
schedule award is made.7 After obtaining all necessary medical evidence, the file should be
routed to the Office medical adviser for a rationalized opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish entitlement to
a schedule award based on an employment-related impairment. Dr. Watters, appellant’s treating
orthopedic surgeon, opined on September 30, 2009 that appellant had not reached maximum
medical improvement. In fact, he noted that appellant had a neural stimulator implanted on
June 1, 2009, that adjustments were still being made and that his leg pain was decreasing. There
is no other medical evidence of record prior to the October 23, 2009 decision that indicates that
appellant had reached maximum medical improvement. Accordingly, as appellant had not yet
reached maximum medical improvement when the Office issued its decision, a schedule award
was not appropriate at that time.9

4

Id. at § 10.404(a).

5

FECA Bulletin No. 09-03 (issued March 15, 2009); see also Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
6

Mark A. Holloway, 55 ECAB 321 (2004).

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1)
(October 1990).
8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
9

Supra note 6.

3

CONCLUSION
The Board finds that appellant was not at maximum medical impairment and had not
established any permanent impairment for schedule award purposes.10
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

10

The Board notes that the record on appeal contains evidence which the Office received after its October 23,
2009 decision. The Board lacks jurisdiction to review this evidence for the first time on appeal. 5 U.S.C.
§ 501.2(c). This, however, does not preclude appellant from having such evidence considered by the Office as part
of a formal written request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jackson, MS, Employer
__________________________________________

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

Docket No. 10-2123
Issued: July 18, 2011

Case Submitted on the Record

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

JURISDICTION
On August 19, 2010 appellant filed a timely appeal from a March 30, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) which granted appellant a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than 10 percent permanent impairment of the
right upper extremity for which he received a schedule award.
FACTUAL HISTORY
On February 19, 2009 appellant, then a 69-year-old clerk, filed a Form CA-1, traumatic
injury claim, alleging that he slipped and fell injuring his right shoulder that day. OWCP

1

5 U.S.C. §§ 8101-8193.

accepted tear of the right rotator cuff. Appellant stopped work on February 19, 2009 and
returned to light duty in August 2009. He retired on October 31, 2009.
OWCP authorized surgery. On May 14, 2009 Dr. Jason A. Craft, a Board-certified
orthopedist, performed a right shoulder arthroscopic rotator cuff repair, subacromial
decompression, acromioclavicular joint resection, and limited debridement of labral fraying and
synovitis. He diagnosed right shoulder rotator cuff tear, acromioclavicular joint arthritis,
subacromial impingement and labral fraying and synovitis. In an October 19, 2009 report,
Dr. Craft noted edema around the rotator cuff with a tight shoulder capsule and diagnosed mild
arthrofibrosis and recommended manipulation under anesthesia. On November 4, 2009 he
performed a right shoulder arthroscopy, manipulation and debridement of adhesions and limited
debridement including biceps tendon release. Dr. Craft diagnosed right shoulder arthrofibrosis
status post rotator cuff repair.
On March 22, 2010 appellant filed a claim for a schedule award. In a January 12, 2010
report, Dr. Craft noted findings upon examination of soreness with occasional pain. Active
forward flexion was 160 degrees, external rotation was 90 degrees with a deficit of 10 degrees of
extension. Dr. Craft advised that appellant reached maximum medical improvement on
December 22, 2009. He opined that, pursuant to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment2 (A.M.A., Guides), appellant
sustained a seven percent impairment of the right upper extremity. Dr. Craft noted that in a class
1 right rotator cuff tear, appellant had five percent impairment. Due to appellant’s restrictions in
regard to pain and weakness and functional modifiers, he moved to a seven percent impairment
for the upper extremity.
OWCP referred Dr. Craft’s report to OWCP’s medical adviser. In a March 16, 2010
report, the medical adviser disagreed with Dr. Craft’s findings and stated that appellant had 10
percent impairment of the right arm. He noted that Dr. Craft found a seven percent impairment
of the right upper extremity based on pain, weakness and functional modifier which was
incorrect. The medical adviser explained that appellant’s impairment rating was based on a
diagnosis of acromioclavicular joint injury or disease, distal clavicle resection, which in
accordance with the A.M.A., Guides, Chapter 15, represented a class 1 impairment with a default
grade of C. The default grade C, for the Class of Diagnosis (CDX) was 10 percent impairment
based on the shoulder grid, Table 15-5, page 403, of the A.M.A., Guides. The medical adviser
applied the grade modifier for functional history, one, under Table 15-7 and for physical
examination, one, under Table 15-8 to the net adjustment formula to find no additional
impairment. He noted that the grade modifier for clinical studies was not applicable as the
A.M.A., Guides provide that, if a finding was used for placement of a diagnosis within a specific
class in a diagnosis-based impairments grid, that same finding cannot also be used as a grade
modifier. As the net adjustment formula yielded no additional impairment, the medical adviser
concluded that appellant had a total of 10 percent impairment of the right arm.

2

A.M.A., Guides (6th ed. 2008).

2

In a decision dated March 30, 2010, OWCP granted appellant a schedule award for 10
percent permanent impairment to the right upper extremity. The period of the award was for
31.2 weeks from December 22, 2009 to July 28, 2010.
LEGAL PRECEDENT
The schedule award provision of the Act3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 Effective May 1, 2009, schedule awards
are determined in accordance with the A.M.A., Guides (6th ed. 2008).6
ANALYSIS
Appellant’s claim was accepted by OWCP for right rotator cuff tear. OWCP authorized
arthroscopic surgery on the right shoulder which was performed on May 14 and November 4,
2009 for a distal clavicle resection of the right rotator cuff. The Board finds that the medical
evidence of record establishes 10 percent impairment to appellant’s right arm.
Appellant submitted a January 12, 2010 report from Dr. Craft who opined that appellant
had seven percent impairment of the right upper extremity pursuant to the A.M.A., Guides.
Dr. Craft opined that appellant had five percent impairment attributable to his rotator cuff tear
and found an additional two percent impairment attributable to pain weakness and functional
modifiers. He, however, did not specifically indicate how he applied the A.M.A., Guides, to rate
impairment. OWCP requested that its medical adviser review the medical record and determine
whether he sustained permanent impairment of the right arm.
The medical adviser reviewed Dr. Craft’s report and correlated his findings to provisions
in the A.M.A., Guides. He followed the assessment formula of the sixth edition of the A.M.A.,
Guides, Chapter 15, section 15-2, entitled Diagnosis-Based Impairment. The A.M.A., Guides,
provide that the diagnosis-based impairment is the primary method of evaluation of the upper
limb.7 The initial step in the evaluation process is to identify the impairment class by using the
corresponding diagnosis-based regional grid. The medical adviser utilized the Shoulder
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1
(January 2010).
7

A.M.A., Guides, 387, section 15.2.

3

Regional Grid, Table 15-5, A.M.A., Guides, page 403, and identified a class 1 impairment based
on acromioclavicular joint injury or disease, status post distal clavicle resection. Under Table
15-5, the default grade, C, for such a class 1 acromioclavicular joint injury or disease, status post
distal clavicle resection is 10 percent upper extremity impairment.
After determining the impairment class and default grade, the medical adviser determined
whether there were any applicable grade adjustments for so-called nonkey factors or modifiers.
These include adjustments for functional history, physical examination and clinical studies. The
grade modifiers are used in the net adjustment formula to calculate a net adjustment.8 The final
impairment grade is determined by adjusting the grade up or down from the default value C by
the calculated net adjustment. OWCP’s medical adviser identified two modifiers; one based on
the functional history and the other based on physical examination. For the functional history, he
assigned a grade modifier 1 and also found a grade 1 modifier based on appellant’s physical
examination findings which were essentially normal.9 Applying the net adjustment formula
resulted in a net modifier of zero which resulted in a net adjustment of zero.
The Board finds that OWCP’s medical adviser properly applied the A.M.A., Guides, to
the findings presented by Dr. Craft in rating impairment to appellant’s right upper extremity.
The medical adviser reviewed the medical evidence and fully explained how he determined
appellant’s rating for the right upper extremity in conformance with the A.M.A., Guides.
Although Dr. Craft offered an impairment rating, the Board notes that he did not fully explain
how it was calculated and that the rating provided by OWCP’s medical adviser supports a higher
impairment percentage than that proposed by Dr. Craft.
On appeal, appellant contends that the schedule award is not adequate as his shoulder
condition limits his daily activities, prohibits him from working and forced him to retire from his
position. Under the schedule, Congress has defined the number of weeks of compensation
payable for loss of use of a member.10 For 100 percent impairment, or total loss of use, of an
arm, FECA provides for 312 weeks of compensation.11 As appellant has 10 percent impairment
of the right arm, this represents 31.2 weeks of compensation (10 percent of 312 weeks) which is
what he was awarded. Factors such as limitations on daily activities or recreational activities do
not go into the determination of impairment under an award.12 The medical evidence of record
does not establish greater impairment in accordance with the sixth edition of the A.M.A., Guides.
Appellant has not established more than 10 percent impairment of the right upper extremity.

8

Net Adjustment = (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). A.M.A., Guides 411, section 15.3d.

9

The medical adviser indicated that a clinical studies modifier was not applicable as a clinical studies finding,
appellant’s surgery, was used to establish appellant’s diagnosis. See A.M.A., Guides 390 (if a physical examination
or clinical studies finding is used to define the diagnosis-based impairment, it cannot also be used as an adjustment).
10

See Brent A. Barnes, 56 ECAB 336 (2005).

11

5 U.S.C. § 8017(c)(1).

12

See E.L., 59 ECAB 405 (2008); Dennis R. Stark, 57 ECAB 306 (2006).

4

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has 10 percent impairment of the right upper extremity,
for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 30, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 18, 2011
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Houston, TX, Employer
__________________________________________

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

Docket No. 11-74
Issued: June 1, 2011

Case Submitted on the Record

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

JURISDICTION
On October 12, 2010 appellant filed a timely appeal from a September 8, 2010 merit
decision of the Office of Workers’ Compensation Programs denying her occupational exposure
claim. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed
shoulder impingement syndrome or subacromial bursitis impingement causally related to factors
of her employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 22, 2010 appellant, then a 52-year-old pharmacy technician, filed an
occupational disease claim (Form CA-2) alleging that she developed right hand, arm and
shoulder pain with numbness in her fingers. She noted that her injury was a result of the
repetitive motions of preparing numerous intravenous treatments (IVs) each day. Appellant first
became aware of her condition on January 29, 2010 and of its relationship to her employment on
February 5, 2010.
The employing establishment received notice of her injury on
February 22, 2010.
By letter dated February 26, 2010, the Office informed appellant that the evidence of
record was insufficient to support her claim. Appellant was advised of the medical and factual
evidence needed and directed to submit it within 30 days. In a letter of the same date, the Office
also requested additional factual information from the employing establishment.
In a February 23, 2010 back to work letter, Dr. Michael Shelton, Board-certified in
family medicine, noted that appellant was seen that day and could return to work on
February 26, 2010. In a February 25, 2010 return to work letter, appellant was restricted from
pushing, pulling or reaching with her right shoulder until March 25, 2010.
By letter dated February 26, 2010, the employing establishment controverted the claim
stating that there was no factual or medical evidence supporting that the alleged occupational
disease claim was caused by any employment activities.
By letter dated March 1, 2010, appellant’s supervisor, Patricia Williams, reported that
appellant informed her of her right shoulder condition on February 22, 2010, stating that it had
been painful for some time. By letter dated March 2, 2010, Ms. Williams placed appellant on
light duty. A pharmacy technician position description and application for the position were also
submitted.
By decision dated March 29, 2010, the Office denied appellant’s claim finding that the
evidence did not establish that she sustained an injury. It found that the evidence was
insufficient to establish that the work activities occurred as alleged and there was no medical
evidence that provided diagnoses which could be connected to the claimed events.
Appellant requested reconsideration on August 6, 2010. In support of her request, she
submitted her offer of light-duty assignment which was signed and accepted on March 5, 2010.
In duty status reports dated March 25 to April 12, 2010, Dr. Christina Walker, Boardcertified in family medicine, diagnosed right shoulder impingement syndrome and subacromial
bursitis impingement. She restricted appellant’s activities due to her conditions.
By decision dated September 8, 2010, the Office affirmed the March 29, 2010 decision,
as modified. While the medical evidence provided a diagnosis of right shoulder impingement

2

syndrome effusion and subacromial bursitis impingement, it was not sufficient to establish that
the diagnosed condition was causally related to the cited work factors.2
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of the Act; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
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 employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence.7 Rationalized medical opinion
2

The Board notes that appellant submitted additional evidence after the Office rendered its September 8, 2010
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 10.510.2(c)(1);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit
this evidence to the Office, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606(b)(2).
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

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

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

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

7

D.U., Docket No. 10-144 (issued July 27, 2010).

3

evidence must be based on a complete factual and medical background of the employee and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee. This
medical opinion must include an accurate history of the employee’s employment injury, and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
The Office denied appellant’s claim on the grounds that it lacked sufficient medical
evidence to support that the diagnosed right shoulder condition was causally related to the cited
work factors. The Board finds that the medical evidence of record is insufficient to establish that
appellant’s shoulder impingement syndrome and subacromial bursitis impingement are causally
related to factors of her employment.
In February 23 and 25, 2010 return to work notes, Dr. Shelton restricted appellant from
pushing, pulling or reaching with her right shoulder. He did not provide a specific diagnosis or
state what activities appellant was engaged in that caused or contributed to her condition. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.9 Thus,
Dr. Shelton’s report is insufficient to meet appellant’s burden of proof.
In duty status reports dated March 25 to April 12, 2010, Dr. Walker diagnosed appellant
with shoulder impingement syndrome and subacromial bursitis impingement. She also restricted
appellant’s activities due to her injury. While Dr. Walker diagnosed appellant’s injury, she did
not identify its cause and did not mention appellant’s employment activities. Without medical
reasoning explaining how appellant’s employment factors caused her right shoulder injury,
Dr. Walker’s reports are insufficient to meet appellant’s burden of proof.10
The remaining evidence of record is not sufficient to establish that appellant sustained
shoulder impingement syndrome and subacromial bursitis impingement causally related to
factors of her employment. Appellant failed to adequately describe her work factors and
specifically, what was physically required to make large volumes of IVs.11 Her light-duty
assignment, the official pharmacy technician position description and position application do not
establish that the work-related events occurred as alleged nor do they support that the right
shoulder injury was medically related to the cited work factors.
On appeal, appellant contends that the pain in her right shoulder and hand resulted from
making IVs over the years. Her belief that work caused her medical condition does not
8

James Mack, 43 ECAB 321 (1991).

9

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

10

C.B., Docket No. 08-1583 (issued December 9, 2008).

11

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

4

constitute the medical evidence necessary to establish causal relationship. As noted, the record is
without rationalized medical evidence from a physician that addresses the causal relationship
between the shoulder impingement syndrome and subacromial bursitis impingement and the
cited work factors. Thus, appellant has failed to meet her burden of proof.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that shoulder
impingement syndrome and subacromial bursitis impingement is causally related to factors of
her employment as a pharmacy technician.
ORDER
IT IS HEREBY ORDERED THAT the September 8, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2011
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., JR., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Fort Dix, NJ, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-1603
Issued: December 3, 2020

Case Submitted on the Record

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

On July 22, 2019 appellant filed a timely appeal from a March 7, 2019 merit decision and
a July 8, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1
The Clerk of the Appellate Boards docketed the appeal as No. 19-1603.2
On January 31, 2018 appellant, then a 41-year-old chaplain, filed an occupational disease
claim (Form CA-2) alleging that on October 1, 2017 he sustained a broken left pinky finger and
1
Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, it was asserted that oral argument should be granted because of the facts
surrounding his assault while in the performance of duty. The Board, in exercising its discretion, denies appellant’s
request for oral argument because the arguments on appeal can adequately be addressed in a decision based on a
review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve
a useful purpose. As such, the oral argument request is denied and this order is based on the case record as submitted
to the Board.
2

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

aggravation of post-traumatic stress disorder (PTSD) when he was assaulted by a large group of
inmates with weapons while in the performance of duty. The case record reflects that under OWCP
File No. xxxxxx115, OWCP accepted a left pinky finger injury arising from this same incident on
October 1, 2017 as a traumatic injury. These claims have not been administratively combined.
By decision dated November 21, 2018, OWCP denied appellant’s claim for an emotional
condition. It determined that there was at least one accepted factor of employment, but the medical
evidence did not substantiate that the diagnosis was caused or aggravated by a compensable
employment factor.
On December 10, 2018 appellant requested reconsideration. By decision dated March 7,
2019, OWCP denied modification. It accepted that on October 1, 2017 appellant responded to
inmate activity and that several inmates with weapons charged at him injuring his left pinky finger.
However, the medical evidence of record did not substantiate that his preexisting PTSD and
anxiety conditions were aggravated by the compensable employment factor.
On April 8, 2019 appellant requested reconsideration. No additional evidence was
received. By decision dated July 8, 2019, OWCP denied appellant’s request for reconsideration
without conduction a merit review.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files.3 Its procedures
provide as an example of when cases should be doubled, if a new claim is filed for a separate injury
that occurred on the same date.4 In the instant claim, OWCP File No. xxxxxx926, appellant filed
an occupational disease claim for an aggravation of a preexisting emotional condition arising from
the October 1, 2017 event. OWCP had previously accepted appellant’s traumatic injury claim,
assigned OWCP File No. xxxxxx115, for fracture of the left little finger phalanx, arising from the
same injury on the same date. All evidence that forms the basis of a decision must appear in the
case record.5 The evidence pertaining to OWCP File No. xxxxxx115, however, is not part of the
case record presently before the Board.
As these files have not been administratively combined, the Board is unable to determine
whether all pertinent evidence submitted in OWCP File No. xxxxxx115 pertaining to the accepted
October 1, 2017 incident had been reviewed by OWCP in the instant claim.6 The Board thus finds
that this case is not in posture for decision as the record before the Board is incomplete and would
not permit an informed adjudication of the case.7

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.

5

D.B., Docket No. 19-0262 (issued December 31, 2019).

6

See T.L., Docket No. 18-0935 (issued February 25, 2020).

7

See Order Remanding Case, L.A., Docket No. 19-1248 (issued April 16, 2020).

2

For a full and fair adjudication, the Board finds that the case must be returned to OWCP to
administratively combine the current case record with OWCP File No. xxxxxx115 so it can
properly determine whether appellant has established that his emotional condition was causally
related to the alleged factors of employment.8 Following this and other such further development
as deemed necessary, OWCP shall issue a de novo decision on the merits of appellant’s claim.
IT IS HEREBY ORDERED THAT the July 8 and March 7, 2019 decisions of the Office
of Workers’ Compensation Programs are set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 3, 2020
Washington, DC

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

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

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

8
See Order Remanding Case, S.L., Docket No. 20-0208 (issued June 15, 2020); Order Remanding Case, J.N.,
Docket No. 19-1847 (issued April 30, 2020).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF AGRICULTURE, U.S.
FOREST SERVICE, SALMON-CHALLIS
NATIONAL FOREST, Challis, ID, Employer
__________________________________________

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

Docket No. 20-0597
Issued: July 21, 2021

Case Submitted on the Record

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

JURISDICTION
On January 23, 2020 appellant, through counsel, filed a timely appeal from a December 9,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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 OWCP has met its burden of proof to rescind its acceptance of
appellant’s claim for Lyme disease, toxic effect of venom, and cervical stenosis with radiculopathy
and myelopathy.
FACTUAL HISTORY
On July 5, 2005 appellant, then a 54-year-old wilderness ranger, filed a traumatic injury
claim (Form CA-1) alleging that on July 4, 2005 he sustained injury from a wood tick bite that he
found at the top of his right leg. He did not stop work at that time. On the reverse side of the form
appellant’s immediate supervisor indicated that appellant notified him that he had experienced a
tick bite on his upper right leg, which had become swollen and red.
On July 5, 2005 appellant sought treatment in an emergency department where Dr. Samuel
Gardner, an osteopath Board-certified in family medicine, noted that appellant reported that he
discovered that he had been bitten by a tick the day before. At the site of the bite, Dr. Gardner
noticed a circular erythematous rash or violet-purple area with a red central lesion of approximately
two centimeters in diameter. He diagnosed “questionable tick bite.” In an August 17, 2005 report,
Dr. Martha Buitrago, a Board-certified internist specializing in infectious diseases, indicated that
appellant probably suffered from a tick-related illness. She noted that Lyme disease was an
extremely difficult diagnosis to make in an area of very little to no incidence. The findings of an
August 31, 2005 western blot test revealed an overall negative result for Lyme disease, but also
showed two positive Immunoglobulin G (IgG) antibody bands. On August 31, 2005 Dr. Buitrago
noted that appellant was status post tick bite and had hypothyroidism, and indicated that the
possibility of Lyme disease was discussed, but “not fully diagnosed at this time.”
On September 15, 2005 OWCP accepted appellant’s claim for insect bite of the right
hip/leg and toxic effect of venom.
In an October 12, 2005 report, Dr. Buitrago indicated that appellant’s clinical picture was
very suspicious for Lyme disease. A western blot test performed on February 22, 2006 indicated
negative results. In a February 22, 2006 report, Dr. Thomas Rand, Board-certified in pediatric
infectious diseases, indicated that the diagnosis of acute Lyme disease was “quite strong” and
maintained that the antibody testing supported a diagnosis of Lyme disease. In a March 20, 2006
report, Dr. Carl D. Vance, a Board-certified internist specializing in endocrinology, noted, “The
patient does have Lyme disease and has documented titers.” He opined that appellant’s condition
was appropriately treated in its early stages “so his titers may never convert because of the rapid
treatment.”
On June 30, 2006 OWCP referred appellant’s case to Dr. Jean Weaver, a Board-certified
internist who served as an OWCP district medical adviser (DMA), and requested an opinion on
whether appellant’s claimed conditions were employment related. In a July 7, 2006 report,
Dr. Weaver provided a summary of the medical evidence of record and advised that it was highly
likely that appellant had employment-related Lyme disease.

2

On July 10, 2006 OWCP expanded the acceptance of appellant’s claim to include Lyme
disease. Appellant stopped work on July 23, 2006 and OWCP paid him wage-loss compensation
for periods of work stoppage.
On June 7, 2007 OWCP referred appellant’s case to Dr. Morley Slutsky, a Board-certified
occupational medicine physician serving as a DMA. In a June 14, 2007 report, Dr. Slutsky
indicated that Lyme disease had been responsible for severe fatigue and muscles aches, which had
reduced appellant’s ability to exercise his neck. He opined that, with such limited activity and
neck movement, the underlying arthritic changes developed more active inflammation, which in
turn limited neck movement further and accelerated spinal degeneration.
On June 21, 2007 expanded the acceptance of appellant’s claim to include cervical stenosis
with radiculopathy and myelopathy.
In response to appellant’s May 2018 request for physical therapy to treat employmentrelated muscle weakness per Dr. Buitrago’s recommendation, OWCP referred appellant’s case to
Dr. David I. Krohn, a Board-certified internist serving as a DMA. In an August 2, 2018 report,
Dr. Krohn asserted that Dr. Buitrago had not provided a well-reasoned narrative explanation as to
how appellant’s symptoms might have been caused Lyme disease, or the other accepted conditions.
On October 4, 2018 OWCP referred appellant, together with a statement of accepted facts
(SOAF) and series of specific questions, for a second opinion examination with Dr. Gabriela
Kaufman, a Board-certified internist specializing in infectious diseases. It requested that
Dr. Kaufman evaluate whether appellant had residuals of the accepted employment-related
conditions, including Lyme disease.
In a November 8, 2018 report, Dr. Kaufman discussed appellant’s factual and medical
evidence, noting that appellant reported that at work on July 4, 2005 he used a knife to remove a
tick (including its head) from his right upper thigh. She advised that appellant further reported
that the tick was not engorged and that, the next day, he noticed an area of redness around the bite
that looked like a bull’s eye. Dr. Kaufman indicated that a western blot test performed on
August 31, 2005 showed two IgG antibody bands, and a repeat western blot test performed on
February 22, 2006 was entirely negative. She reported the results of her physical examination,
noting that appellant did not exhibit any skin rash or edema of the extremities. Dr. Kaufman
diagnosed possible insect bite, febrile illness in 2005, arthritis, hypothyroidism, headaches, insulin
resistance, hypertension, hypercholesterolemia, skin desquamation on finger pad, and Agent
Orange exposure in Vietnam. She indicated that the diagnoses of possible tick bite, generalized
weakness, febrile illness, and fatigue “could be related to the 2005 work-related injury.”
Dr. Kaufman noted, “[u]nfortunately it is not clear what condition the patient had, if the patient
more likely than not had Lyme disease.” She indicated that appellant had an extensive work-up
that was negative and opined that he could have had a viral illness. Dr. Kaufman noted, “[w]ithout
deﬁnitive diagnosis though, it is impossible to tell if the symptoms the patient is still experiencing
are related to the original condition.” She advised that, with most viral illnesses, as well as Lyme
disease, the lingering symptoms tended to resolve within five years from the original infection. In
response to OWCP’s question regarding whether appellant continued to have residuals of the
accepted insect bite and effect of venom, Dr. Kaufman indicated that he did have residual
symptoms, including headaches, arthralgias, weakness, and fatigue, but advised that it was unclear

3

if these were in any way related to the original insect bite or effect of venom because she did not
believe that there was a definitive diagnosis from 2005.
In response to OWCP’s question regarding whether appellant continued to have residuals
of the accepted Lyme disease condition, she indicated that she did not believe that appellant had
Lyme disease. Dr. Kaufman noted that on July 4, 2005 appellant reported a tick bite on his right
upper thigh, followed by the appearance of a rash the next day, but that the tick was not engorged
at the time he removed it with his knife. She asserted that Lyme disease usually had a two-to-three
week incubation period before the onset of symptoms and that, for Lyme disease to be transmitted,
the tick had to be attached for at least 48 hours and had to become engorged as it fed. Dr. Kaufman
indicated that appellant had been appropriately treated with an initial course of 10 days of
doxycycline, followed later by a course of 30 days. She advised that appellant had not
seroconverted, meaning that his Lyme IgG antibody titers never became positive. Dr. Kaufman
opined that, when patients had residual Lyme disease problems, they seroconverted and had
positive western blot results with at least 5 out of 10 bands. She asserted that patients with Lyme
disease might not seroconvert if they were treated early, but indicated that the absence of
seroconversion meant that the infection was resolved. Dr. Kaufman noted that appellant’s western
blot results had two bands at most, which could potentially have shown a cross reaction from other
conditions. In response to OWCP’s question regarding whether appellant had residuals of the
accepted cervical spinal stenosis, she indicated that the condition seemed to have been controlled
after appellant underwent fusion surgery, but that OWCP might want to obtain an additional report
from appellant’s surgeon. Dr. Kaufman asserted that appellant’s current symptoms could be
related to a multitude of diagnoses. She maintained that appellant’s physical activity was likely
limited by his pain and fatigue, and advised that he could potentially beneﬁt from rheumatology
and physiatry evaluations to address his arthralgias, fatigue, and weakness.3 Dr. Kaufman
indicated that a physiatrist would be a more appropriate person to complete a work capacity
evaluation form (OWCP-5c).
Dr. Kaufman indicated that, given appellant’s symptomatology, he could potentially
benefit from physical therapy, but noted that she could state that the symptoms appellant was still
experiencing were related to his original injury in 2005. She advised that it might be worth
evaluating appellant for any potential effect of Agent Orange that he had been exposed to.
Dr. Kaufman maintained that appellant’s arthralgias could be due to multiple falls from his work
as a rancher while trying to tame horses and noted, “[w]hile I believe the symptoms are real, I
cannot state that they are related to his original injury.” She indicated that appellant could not
perform the full duties of his date of injury job because of the signiﬁcant physical demands of the
job. Dr. Kaufman noted that appellant had weakness, fatigue with physical activity, and pain, and
indicated that his age was likely also a limitation. She asserted that appellant might be able to
perform a less demanding job, likely on a part-time basis, but his fatigue might be a limiting factor.
Dr. Kaufman advised that appellant could beneﬁt from a physiatry evaluation to determine if he
has any potential for medical improvement which would allow him to return to work.

3
Dr. Kaufman advised that appellant’s impairing arthralgias and fatigue were not related to the accepted workrelated conditions.

4

On January 17, 2019 OWCP requested that Dr. Buitrago review Dr. Kaufman’s
November 8, 2018 report, and provide an opinion regarding appellant’s employment-related
conditions. In a February 13, 2019 report, Dr. Buitrago reported physical examination findings
and diagnosed joint pain, metabolic syndrome, and hypertensive disorder. She indicated that, after
the incident with the tick bite in 2005, appellant started feeling tired, and had headaches, joint
pains and malaise. Dr. Buitrago noted, “[a] lot of his symptoms resolved after oral Doxycycline
and IV Ceftriaxone. This leads me to believe that it is possible he has a tick borne illness. Not
sure which one. It could have been Lyme’s (sic) disease. We are not completely sure.”
In a March 21, 2019 letter, OWCP proposed to rescind its acceptance of appellant’s claim
for Lyme disease, toxic effect of venom, and cervical stenosis with radiculopathy and myelopathy.
It indicated that the weight of the medical opinion evidence with respect to whether appellant had
employment-related Lyme disease rested with the well-rationalized opinion of Dr. Kaufman, the
second opinion physician. OWCP asserted that, because the opinion of Dr. Kaufman “invalidates”
the original acceptance of Lyme disease, this opinion “also invalidates” the acceptance of cervical
stenosis with radiculopathy and myelopathy as Dr. Slutsky had determined that appellant’s
cervical spine condition developed as a consequence of his work-related duties and the limitations
placed upon his activity due to the accepted condition of Lyme disease. It afforded appellant 30
days to present evidence and argument challenging the proposed rescission action.
In April 3, 2019 statement, appellant argued that tick he saw imbedded in his right hip on
July 4, 2005 was so small that it would have been impossible to tell if had been engorged with
blood. He noted that he had been working in the woods for six days with no shower facilities when
he discovered the tick and suggested that, therefore, the tick had been attached to him for more
than 48 hours. Appellant asserted that many of the facts in Dr. Kaufman’s November 8, 2018
report were incorrect. He submitted a May 15, 2019 report from Dr. Buitrago who reported
physical examination findings and diagnosed joint pain, metabolic syndrome, and hypertensive
disorder. Dr. Buitrago provided a discussion of appellant’s medical problems since 2005 which
was similar to that contained in her February 13, 2019 report.
By decision dated August 8, 2019, OWCP rescinded its acceptance of appellant’s claim for
Lyme disease, toxic effect of venom, and cervical stenosis with radiculopathy and myelopathy. It
found that the weight of the medical opinion evidence rested with the opinion of Dr. Kaufman.
On August 13, 2109 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on
November 5, 2019, counsel argued that Dr. Kaufman’s opinion was not sufficiently rationalized
to serve as the basis for OWCP’s rescission action.
By decision dated December 9, 2019, OWCP’s hearing representative affirmed the
August 8, 2019 decision.

5

LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.4 The Board
has upheld OWCP’s authority to reopen a claim at any time on its own motion under section 8128
of FECA and, where supported by the evidence, set aside or modify a prior decision and issue a
new decision.5 The Board has noted, however, that the power to annul an award is not an arbitrary
one and that an award for compensation can only be set aside in the manner provided by the
compensation statute.6
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory provision,
where there is good cause for so doing, such as mistake or fraud. Once OWCP accepts a claim, it
has the burden of proof to justify termination or modification of compensation benefits. This also
holds true where OWCP later decides that it erroneously accepted a claim.7
OWCP bears the burden of proof to justify rescission of acceptance on the basis of new
evidence, legal argument and/or rationale.8 Probative and substantial positive evidence or
sufficient legal argument must establish that the original determination was erroneous. OWCP
must also provide a clear explanation of the rationale for rescission.9
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to rescind its acceptance of
appellant’s claim for Lyme disease, toxic effect of venom, and cervical stenosis with radiculopathy
and myelopathy.
The Board finds that the evidence OWCP relied upon to rescind these medical conditions,
i.e., the November 8, 2018 report of Dr. Kaufman, the OWCP referral physician, is not sufficiently
rationalized to justify OWCP’s rescission action.
In her November 8, 2018 report, Dr. Kaufman indicated, in response to OWCP’s question
regarding whether appellant continued to have residuals of the accepted Lyme disease condition,
that she did not believe that appellant had Lyme disease. She noted that on July 4, 2005 appellant
reported a tick bite on his right upper thigh, followed by the appearance of a rash the next day, but
that the tick was not engorged at the time he removed it with his knife. Dr. Kaufman asserted that
4

5 U.S.C. § 8128.

5

See L.M., Docket No. 19-0705 (issued September 11, 2019); John W. Graves, 52 ECAB 160, 161 (2000). See
also 20 C.F.R. § 10.610.
6

D.W., Docket No. 17-1535 (issued February 12, 2018).

7

V.R., Docket No. 18-1179 (issued June 11, 2019).

8

See L.G., Docket No. 17-0124 (issued May 1, 2018).

9

See W.H., Docket No. 17-1390 (issued April 23, 2018).

6

Lyme disease usually had a two-to-three week incubation period before the onset of symptoms
and that, for Lyme disease to be transmitted, the tick had to be attached for at least 48 hours and
had to become engorged as it fed. She indicated that appellant had been appropriately treated with
an initial course of 10 days of doxycycline, followed later by a course of 30 days. Dr. Kaufman
advised that appellant had not seroconverted, meaning that his Lyme IgG antibody titers never
became positive. She noted that appellant had two positive bands on western blot testing and
opined that, when patients had residual Lyme disease problems, they seroconverted and had
positive western blot results with at least 5 out of 10 bands.
The Board notes, however, that Dr. Kaufman indicated in portions of her November 8,
2018 report that appellant could have had employment-related Lyme disease or some other insectvenom type disease. These portions render her opinion equivocal with respect to whether appellant
actually suffered the accepted employment conditions. The Board has held that an opinion which
is equivocal regarding a given medical matter is of limited probative value regarding that matter.10
Dr. Kaufman indicated that the diagnoses of possible tick bite, generalized weakness, febrile illness
from 2005, and fatigue “could be related to the 2005 work-related injury.” She noted,
“[u]nfortunately it is not clear what condition the patient had, if the patient more likely than not
had Lyme disease.” Dr. Kaufman advised that appellant had an extensive work-up that was
negative and opined that he could have had a viral illness. She noted, “[w]ithout deﬁnitive
diagnosis though, it is impossible to tell if the symptoms the patient is still experiencing are related
to the original condition.” While Dr. Kaufman suggested in one part of her report that appellant’s
lack of seroconversion showed the absence of Lyme disease, in another part of her report she
suggested that appellant could have had Lyme disease at some point despite such lack of
seroconversion. She noted that patients with Lyme disease might not seroconvert if they were
treated early, but indicated that the absence of seroconversion meant that the infection was
resolved. Dr. Kaufman’s discussion of the accepted condition of toxic effect of venom is similarly
equivocal in nature. In response to OWCP’s question regarding whether appellant continued to
have residuals of the accepted insect bite and effect of venom, Dr. Kaufman also provided an
equivocal statement. She indicated that appellant did have residual symptoms, including
headaches, arthralgias, weakness, and fatigue, but advised that it was unclear if these were in any
way related to the original insect bite or effect of venom because she did not believe that there was
a definitive diagnosis from 2005. The Board further notes that Dr. Kaufman did not directly
address whether appellant ever suffered employment-related cervical stenosis with radiculopathy
and myelopathy. As OWCP based its rescission of this condition on Dr. Kaufman’s discussion of
Lyme disease, the November 8, 2018 report also fails to provide adequate justification for
OWCP’s rescission of its acceptance of the condition of cervical stenosis with radiculopathy and
myelopathy.
For these reasons, OWCP did not present sufficient evidence to rescind its acceptance of
appellant’s claim for Lyme disease, toxic effect of venom, and cervical stenosis with radiculopathy
and myelopathy.11

10

See E.B., Docket No. 18-1060 (issued November 1, 2018); Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).

11

See supra notes 8 and 9.

7

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to rescind its acceptance of
appellant’s claim for Lyme disease, toxic effect of venom, and cervical stenosis with radiculopathy
and myelopathy.
ORDER
IT IS HEREBY ORDERED THAT the December 9, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 21, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
DEPARTMENT OF THE AIR FORCE,
MATERIEL COMMAND, TINKER AIR
FORCE BASE, OK, Employer
__________________________________________

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

Docket No. 15-1263
Issued: December 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 20, 2015 appellant filed a timely appeal of a February 10, 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.2
ISSUE
The issue is whether appellant established more than eight percent permanent impairment
to the right upper extremity, for which he received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the February 10, 2015 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
OWCP accepted that appellant, then a 46-year-old painter, developed right carpal tunnel
syndrome and right trigger finger as a result of his federal employment duties. He received
compensation benefits3 and OWCP authorized right hand surgery, which he underwent on
August 14, 2013.
On June 18, 2014 appellant filed a claim for a schedule award (Form CA-7).
In a June 24, 2014 letter, OWCP notified appellant of the deficiencies of his schedule
award claim. It afforded him 30 days to submit additional evidence, including a medical report
containing a detailed description of his permanent impairment based on the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).
In an August 29, 2014 report, Dr. Joel Tupper, a Board-certified orthopedic surgeon and
appellant’s attending physician, determined that appellant had eight percent permanent
impairment of the right upper extremity. He noted that appellant had a long history of issues
related to the upper extremities. Dr. Tupper documented that appellant had bilateral cubital
tunnel syndrome and right carpal tunnel syndrome based on an electromyography (EMG) dated
April 30, 2001. Appellant underwent a left ulnar nerve submuscular transposition in May 2001
and a right carpal tunnel release and ulnar nerve transposition in June 2001. He recovered well
and returned to full-duty work.
Appellant continued to have issues with dysesthesia and pain. He underwent an EMG
and nerve conduction velocity (NCV) study on November 13, 2012 which demonstrated bilateral
median nerve dysfunction at the carpal canal and bilateral decreased amplitude of the ulnar nerve
sensory action potentials, consistent with the previous surgery. Dr. Tupper opined that this likely
represented a permanent injury to the nerves.
Appellant developed increased carpal tunnel symptoms on the right along with a trigger
finger of the ring finger. He was treated with a revision carpal tunnel release and trigger finger
release on August 14, 2013. Appellant reported that the trigger finger was not painful and no
longer triggered, but had some catching. He reported “persistent numbness in the fingers, right
equal to left, that [was] mild most of the time, increased dramatically with power tools,
particularly vibratory tools and [had] been consistent for several years.” Appellant described no
problems with significant pain or limited range of motion of the elbow, bilaterally.
Dr. Tupper tested appellant with two point discrimination and light touch to determine
the degree of sensory loss. Appellant demonstrated sensory loss in all 10 digits, distal to the
mid-portion of the middle phalanx, with 2 point discrimination greater than 7 millimeters (mm).

3

Appellant filed claims for wage-loss compensation (Form CA-7) for intermittent periods commencing
August 11, 2013. On November 1, 2013 OWCP notified him that a compensation payment in the amount of
$1,914.47 would be issued to him for the period August 16 to September 7, 2013.

2

Based on Table 15-23,4 page 449, the sixth edition of the A.M.A., Guides, Dr. Tupper
placed appellant in a class 1 diagnosis for bilateral median and ulnar nerve entrapment.
Dr. Tupper assigned a grade modifier 2 for clinical studies (GMCS) and physical examination
(GMPE) for both the ulnar and median nerve entrapment. Regarding the ulnar nerve entrapment,
he assigned a grade modifier 3 for functional history (GMFH) based on appellant’s constant
symptoms. Regarding the median nerve entrapment, Dr. Tupper assigned a grade modifier 2 for
functional history for appellant’s significant intermittent symptoms. He concluded that appellant
had five percent permanent impairment of the bilateral upper extremities based on his ulnar
nerve entrapment and five percent permanent impairment of the bilateral upper extremities based
on his median nerve entrapment. Dr. Tupper concluded that appellant had a combined
10 percent permanent impairment to his bilateral upper extremities.
On December 8, 2014 an OWCP medical adviser reviewed a statement of accepted facts
and the medical evidence of record. He found that appellant had reached maximum medical
improvement as of August 29, 2014, the date of Dr. Tupper’s report. The medical adviser
concurred with Dr. Tupper’s class 1E diagnosis of ulnar and median nerve entrapments based on
Table 15-23 of the sixth edition of the A.M.A., Guides and his impairment rating of five percent
permanent impairment of the right upper extremity for median nerve deficits and five percent
permanent impairment of the right upper extremity for ulnar nerve deficits. He, however,
explained that Dr. Tupper’s combined impairment rating was incorrect as multiple entrapments
were calculated by dividing the lesser impairment in half (five percent divided by two, equaling
three percent) and then using that and the greater impairment (five percent) to calculate an eight
percent combined impairment according to page 604 of the A.M.A., Guides.5
By decision dated February 10, 2015, OWCP granted appellant a schedule award for
eight percent permanent impairment to the right upper extremity for 24.96 weeks for the period
August 29, 2014 to February 19, 2015.
LEGAL PRECEDENT
The schedule award provisions of FECA6 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a matter which rests in the sound
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.7 For schedule awards after

4

Table 15-23, page 449, of the sixth edition of the A.M.A., Guides is entitled Entrapment/Compression
Neuropathy Impairment.
5

Appendix A, page 604, of the sixth edition of the A.M.A., Guides is entitled Combined Values Chart.

6

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

7

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also 5 U.S.C. § 8107.

3

May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides,
published in 2009.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability,
and Health.9 Under the sixth edition, the evaluator identifies the impairment Class of Diagnosis
(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS.10 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). Evaluators are
directed to provide reasons for their impairment rating choices, including the choices of
diagnoses from regional grids and calculations of modifier scores.11
ANALYSIS
The Board finds that appellant has not established that he sustained more than eight
percent permanent impairment to the right upper extremity, for which he received a schedule
award.
OWCP accepted that appellant developed right carpal tunnel syndrome and right trigger
finger as a result of his federal employment duties. In a February 10, 2015 award of
compensation, it granted him a schedule award for eight percent permanent impairment to the
right upper extremity. OWCP is appellant’s burden to submit sufficient evidence to establish the
extent of permanent impairment.12
In an August 29, 2014 report, Dr. Tupper determined that appellant had eight percent
permanent impairment of the right upper extremity. Appellant underwent EMG and NCV
studies on November 13, 2012 which demonstrated bilateral median nerve dysfunction at the
carpal canal and bilateral decreased amplitude of the ulnar nerve sensory action potentials,
consistent with the previous surgery. Dr. Tupper opined that this likely represented a permanent
injury to the nerves.
Appellant developed increased carpal tunnel symptoms on the right along with a trigger
finger of the ring finger. He was treated with a revision carpal tunnel release and trigger finger
release on August 14, 2013. Dr. Tupper tested appellant with two point discrimination and light
touch and found sensory loss in all 10 digits, distal to the mid-portion of the middle phalanx,
with two point discrimination greater than 7 mm.

8

See D.T., Docket No. 12-503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical,
Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
9

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

10

Id. at 494-531.

11

See R.V., Docket No. 10-1827 (issued April 1, 2011).

12

See Annette M. Dent, 44 ECAB 403 (1993).

4

Based on Table 15-23,13 page 449, the sixth edition of the A.M.A., Guides, Dr. Tupper
placed appellant in a class 1 diagnosis for bilateral median and ulnar nerve entrapment.
Dr. Tupper assigned a grade modifier 2 for clinical studies and physical examination for both the
ulnar and median nerve entrapment. For the ulnar nerve entrapment, he assigned a grade
modifier 3 for functional history based on appellant’s constant symptoms. Regarding the median
nerve entrapment, Dr. Tupper assigned a grade modifier 2 for functional history for appellant’s
significant intermittent symptoms. He concluded that appellant had five percent permanent
impairment of the bilateral upper extremities based on his ulnar nerve entrapment and five
percent permanent impairment of the bilateral upper extremities based on his median nerve
entrapment. Dr. Tupper concluded that appellant had a combined 10 percent permanent
impairment to his bilateral upper extremities.
In accordance with its procedures, OWCP properly referred the evidence of record to an
OWCP medical adviser who reviewed the clinical findings of Dr. Tupper on December 8, 2014
and determined that appellant had eight percent permanent impairment of the right upper
extremity under the sixth edition of the A.M.A., Guides. The medical adviser concurred with
Dr. Tupper’s class 1E diagnosis of ulnar and median nerve entrapments based on Table 15-23 of
the sixth edition of the A.M.A., Guides and his impairment rating of five percent permanent
impairment of the right upper extremity for median nerve deficits and five percent permanent
impairment of the right upper extremity for ulnar nerve deficits. He, however, explained that
Dr. Tupper’s combined impairment rating was incorrect as multiple entrapments were calculated
by dividing the lesser impairment in half (five percent divided by two, equaling three percent)
and then using that and the greater impairment (five percent) to calculate eight percent combined
impairment according to page 604 of the A.M.A., Guides.
The medical adviser discussed how he arrived at his conclusion by listing specific tables
and pages in the A.M.A., Guides. According to the sixth edition of the A.M.A., Guides, page
450,14 with multiple entrapments the nerve qualifying for the larger impairment is given the full
impairment. This is combined with 50 percent of the rating of the second nerve and the
combined value is determined by using the Combined Values Chart on page 604. OWCP’s
medical adviser properly interpreted Example 15-19 on page 450 and the Combined Values
Chart on page 604 to find that appellant qualified for eight percent permanent impairment to the
right upper extremity. The Board finds that the medical adviser in this case properly applied the
standards of the A.M.A., Guides. The medical adviser’s opinion is the weight of medical
evidence and supports that appellant does not have a greater right upper extremity impairment
than the eight percent previously awarded. Thus, the Board finds that OWCP properly relied
upon the opinion of its medical adviser in denying appellant’s claim for an additional schedule
award.
There is no probative medical evidence of record, in conformance with the sixth edition
of the A.M.A., Guides, establishing that appellant has more than eight percent permanent

13

Table 15-23, page 449, of the sixth edition of the A.M.A., Guides is entitled Entrapment/Compression
Neuropathy Impairment.
14

See Example 15-19, page 450, of the sixth edition of the A.M.A., Guides entitled Multiple Entrapments.

5

impairment to the right upper extremity. Accordingly, appellant has not established that he is
entitled to a schedule award greater than that previously awarded.15
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he sustained more than an eight
percent permanent impairment to the right upper extremity, for which he received a schedule
award.
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

15

FECA provides for reduction of compensation for subsequent injury to the same body member. It provides that
schedule award compensation is reduced by the compensation paid for an earlier injury where the compensation in
both cases are for impairment of the same member or function and where it is determined that the compensation for
the later disability in whole or part would duplicate the compensation payable for the preexisting disability.
5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Greenville, NC, Employer
__________________________________________

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

Docket No. 10-2103
Issued: July 5, 2011

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 August 10, 2010 appellant filed a timely appeal from a June 14, 2010 merit decision
of the Office of Workers’ Compensation Programs which denied her traumatic injury claim and a
July 22, 2010 decision which denied her request for reconsideration. Pursuant to the Federal
Employees’ Compensation Act1 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 appellant sustained a back injury on May 3, 2010 in the
performance of duty; and (2) whether the Office properly denied her request for reconsideration
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 4, 2010 appellant, then a 45-year-old health technician, submitted a claim for
traumatic injury alleging that on May 3, 2010 she sprained or strained her low back. She bent
over to draw blood from a patient and felt a shooting pain down the left side of her body and
thigh. Appellant stopped work on May 3, 2010.
On May 11, 2010 the Office advised appellant that the evidence submitted was
insufficient to support her claim because she failed to provide evidence of a firm medical
diagnosis resulting from her May 3, 2010 employment incident. It requested that she provide a
detailed, narrative medical report from her physician which included a history of the injury,
examination and treatments received, results of examinations and tests, medical diagnosis and
the physician’s opinion, supported by medical rationale, explaining how the employment
incident caused or aggravated the alleged low back condition.
In a May 10, 2010 letter, the employing establishment controverted appellant’s claim as
the medical evidence failed to provide a diagnosis of any condition resulting from the May 3,
2010 incident. It noted that appellant’s supervisor stated on the incident report that appellant
previously complained of back problems, which were caused and aggravated by working hard on
the alleged incident date.
In a May 3, 2010 handwritten health record, Dr. Stephen Lynch, a Board-certified family
practitioner, saw appellant for complaints of back pain. She stated that her back bothered her for
sometime and believed that positioning at work aggravated her back pain.
In a May 10, 2010 medical form, a nurse practitioner noted appellant experienced
musculoskeletal pain in her back and diagnosed her with herniation.
In a May 10, 2010 form, appellant complained of ongoing lower back pain since
May 3, 2010. She stated that she felt acute pain when she stood up from drawing blood at work.
Appellant tested positive for urinary frequency and nocturia.
Appellant provided handwritten chart records with an illegible signature dated from
September 16, 2009 to May 3, 2010. On May 3, 2010 she complained of low back pain radiating
down her left leg and stated she was injured at work. Appellant also submitted several work
excuse slips. On May 4, 2010 Dr. Quentin Mewborn, Jr., a Board-certified family practitioner,
confirmed that on May 3, 2010 she was seen in his office and would be unable to work until
further notice. In May 10, 21 and 28, 2010 work excuse slips, a nurse practitioner stated that
appellant was treated in their office that day and was still unable to work.
By decision dated June 14, 2010, the Office denied appellant’s claim on the grounds of
insufficient evidence establishing fact of injury. It accepted that the May 3, 2010 work incident
occurred as alleged, but the medical evidence failed to provide a medical diagnosis that could be
connected to the employment incident.
On July 15, 2010 appellant submitted a request for reconsideration and submitted a
July 15, 2010 work capacity evaluation form by Dr. Mewborn, which limited appellant to
working six hours a day with restrictions. Dr. Mewborn noted that she had not reached
2

maximum medical improvement and also explained that her treatment was interrupted because
she had an unrelated surgery. Appellant also resubmitted the September 16, 2009 to May 3,
2010 notes of Dr. Mewborn.
In a July 22, 2010 decision, the Office denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a). It found that the evidence submitted was irrelevant and
immaterial because it did not address the specific medical issue in appellant’s claim. The Office
determined that, because appellant’s request did not meet any of the requirements for obtaining
reconsideration, she was not entitled to merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Act2 has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative and substantial evidence3
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.7 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her disability or condition
relates to the employment incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.9 Rationalized medical opinion evidence is medical evidence which includes
a physician’s rationalized opinion on whether there is a causal relationship between the

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

3

employee’s diagnosed condition and the specified employment factors or incident.10 The
opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the employee.11
ANALYSIS -- ISSUE 1
The Office accepted that the May 3, 2010 employment incident occurred, as alleged. The
Board finds that appellant failed to meet her burden of proof to establish that she sustained a
back condition causally related to the accepted employment incident.
The medical evidence of record fails to provide a history of injury, medical diagnosis or a
physician’s opinion explaining how low back or any low back condition resulted from the
accepted May 3, 2010 incident. In a May 3, 2010 record, Dr. Lynch failed to describe the
employment incident. He only noted that appellant complained of back pain that had bothered
her for some time. The Board has held generally that pain is a symptom, not a firm medical
diagnosis.12 Furthermore, Dr. Lynch did not provide any opinion regarding the cause of
appellant’s back pain or explain how it resulted from the May 3, 2010 employment incident.
Dr. Mewborn’s May 4, 2010 work excuse slip also failed to provide a medical diagnosis or
medical opinion regarding causal relationship. These reports fail to meet appellant’s burden of
proof.
The only evidence containing a medical diagnosis was of a herniation in a May 10, 2010
medical form signed by a nurse practitioner. Section 8101(2) of the Act provides, however, that
the term “physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by State
law.13 As a nurse practitioner is not a physician as defined under the Act, appellant’s diagnosis
of herniation does not constitute competent medical opinion.14 The Office, therefore, properly
found that the medical evidence failed to establish that appellant sustained an injury in the
performance of duty.
Appellant also submitted a May 10, 2010 medical form without a physician’s signature or
other proper identification, which stated that she complained of lower back pain radiating down
her left leg. The Board has held that a medical report with no indication that the person
completing the report qualifies as a physician as defined in 5 U.S.C. § 8102(2) or without proper

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

11

B.B., 59 ECAB 234 (2007); Victor J. Woodhams, supra note 10; D.S., Docket No. 09-860 (issued
November 2, 2009).
12

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

13

5 U.S.C. § 8101(2).

14

I.D., 59 ECAB 648 (2008); Vicky L. Hannis, 48 ECAB 538 (1997).

4

identification of who provided the signature does not constitute probative medical evidence.15
This medical form did not contain any information from which it could be inferred that a
physician completed the form and signed the paper. Thus, it is of no probative value to establish
that appellant sustained any injury on May 3, 2010.
On appeal, appellant contends that she submitted sufficient evidence to support her claim.
She points out that the magnetic resonance imaging (MRI) scan demonstrated her back
condition, which she sustained at work, and that she did not have any back problems prior to the
May 3, 2010 employment incident. The record, however, is void of any MRI results. In the
absence of probative medical opinion from a physician, appellant’s lay opinion is not relevant to
the medical issue in this case.16
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether to review an award for or against compensation.17 The Office’s regulations provide that
the Office may review an award for or against compensation at anytime on its own motion or
upon application. The employee shall exercise her right through a request to the district Office.18
To require the Office to reopen a case for merit review pursuant to the Act, the claimant
must provide evidence or an argument that: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.19
A request for reconsideration must also be submitted within one year of the date of the
Office decision for which review is sought.20 A timely request for reconsideration may be
granted if the Office determines that the employee has presented evidence or provided an
argument that meets at least one of the requirements for reconsideration. If the Office chooses to
grant reconsideration, it reopens and reviews the case on its merits.21 If the request is timely but

15

D.D., 57 ECAB 734 (2006); Richard J. Charot, 43 ECAB 357 (1991); E.K., Docket No. 09-1827 (issued
April 21, 2010).
16

Gloria J. McPherson, 51 ECAB 441 (2000).

17

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).
18

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
19

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
20

Id. at § 10.607(a).

21

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

5

fails to meet at least one of the requirements for reconsideration, the Office will deny the request
for reconsideration without reopening the case for review on the merits.22
ANALYSIS -- ISSUE 2
In a decision dated June 14, 2010, the Office denied appellant’s claim on the grounds of
insufficient medical evidence establishing that any diagnosed condition resulted from the May 3,
2010 employment incident.
On July 15, 2010 appellant filed a timely request for
reconsideration. By decision dated July 22, 2010, the Office denied her request for
reconsideration.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring the Office to reopen the case for review of the merits of the
claim. In her July 15, 2010 application for reconsideration, appellant did not show that the
Office erroneously applied or interpreted a specific point of law. She did not advance a new and
relevant legal argument. Appellant resubmitted the September 16, 2009 to May 3, 2010
handwritten medical notes, which were merely duplicative evidence already considered by the
Office and does not constitute a basis for reopening a case.23 She provided a July 15, 2010 work
capacity form by Dr. Mewborn limiting her workday to six hours with restrictions. The
underlying issue in this case was whether appellant sustained any back injury causally related to
the May 3, 2010 employment incident. That is a medical issue which must be addressed by
relevant medical evidence.24 A claimant may be entitled to a merit review by submitting new
and relevant evidence, but appellant did not submit any new and relevant medical evidence in
this case, actually addressing the issue of whether she sustained an injury causally related to the
accepted employment incident.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that the Office erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by the
Office, or submit relevant and pertinent evidence not previously considered. Pursuant to 20
C.F.R. § 10.608, the Office properly denied merit review.
CONCLUSION
The Board finds that appellant did not establish that her left shoulder condition was
causally related to the May 3, 2010 employment incident.25 The Board also finds that the Office
properly denied appellant’s request for reconsideration.
22

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

23

See D.K., 59 ECAB 141 (2007); E.M., Docket No. 09-39 (issued March 3, 2009).

24

See Bobbie F. Cowart, 55 ECAB 746 (2004).

25

The Board notes that appellant submitted additional evidence following the July 22, 2010 decision nonmerit
decision. Since the Board’s jurisdiction is limited to evidence that was before the Office at the time it issued its final
decision, the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D.
Pruitt, 57 ECAB 126 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the July 22 and June 14, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 5, 2011
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

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