United States Department of Labor
Employees’ Compensation Appeals Board
______________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Cols, OH, Employer
)
______________________________________ )
R.F., Appellant

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

Docket No. 08-1484
Issued: November 20, 2008

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 April 25, 2008 appellant filed a timely appeal from a March 27, 2008 decision of an
Office of Workers’ Compensation Programs’ hearing representative who affirmed a
September 19, 2007 decision denying his claim. 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 has met his burden of proof in establishing that he
developed a back condition while in the performance of duty.
FACTUAL HISTORY
On July 8, 2007 appellant, then a 38-year-old letter carrier, filed an occupational disease
claim alleging that he developed a back condition while walking, lifting, casing and standing at

work. He became aware of his condition on October 1, 2003. Appellant stopped work on
June 15, 2007.1
Appellant submitted a July 23, 2007 attending physician’s report from Dr. James H.
Uselman, a Board-certified neurologist, who noted that appellant injured his back on
October 1, 2003. Dr. Uselman diagnosed lumbar degenerative disc disease and low back pain.
He advised that appellant was scheduled for an L4-5 laminectomy on August 3, 2007 and would
be totally disabled from August 3 to December 1, 2007.
In a July 25, 2007 letter, the employing establishment controverted the claim noting that
appellant indicated on his claim form that his injury did not occur on the job.
In a letter dated July 31, 2007, the Office advised appellant of the factual and medical
evidence needed to establish his claim. It requested that he submit a physician’s reasoned
opinion addressing the relationship of his claimed back condition and specific employment
factors.
Appellant submitted a statement indicating that his work duties included prolonged
standing and walking, casing mail, bending, lifting and carrying a mailbag and repeatedly getting
in and out of his mail truck. He submitted a January 30, 2001 lumbar spine x-ray which revealed
mild spondylosis at L4-5. Appellant was treated by Dr. Edward S. Sadar, a Board-certified
neurologist, for low back pain.
In reports dated February 16 and 27, 2001, Dr. Sadar noted that appellant underwent an
electromyogram (EMG) which revealed left S1 root irritation and meralgia paraesthetica and he
diagnosed degenerative disc disease and obesity. He was hesitant in recommending that
appellant accept a new job with the employing establishment which included walking and
carrying a bag, because neither activity was good for his back. On March 1, 2004 Dr. Sadar
opined that appellant was 60 pounds overweight, which caused stress on his back, had increased
lumbar lordosis and changed body posture. He recommended that appellant lose 60 pounds and
strengthen his abdominal muscles which would help his low back condition. In a March 24,
2007 report, Dr. Uselman noted appellant’s treatment for low back pain with radiation into his
legs. He diagnosed degenerative disc disease at L4-5. Appellant reported working as a mail
carrier and noted that carrying his mailbag aggravated his back pain. Dr. Uselman performed a
discogram on June 15, 2007 which revealed normal discography at L3-4 and L5 and S1 with
diffuse degenerative disc disease. A May 2, 2007 magnetic resonance imaging (MRI) scan of
the lumbar spine revealed mild degenerative disc disease at L4-5 with mild right neural
foraminal stenosis due to annular disc bulge and facet disease.
In a decision dated September 19, 2007, the Office denied appellant’s claim, finding that
the medical evidence was not sufficient to establish that his back condition was caused by his
employment duties.
On October 3, 2007 appellant requested an oral hearing which was held on
February 6, 2008. He submitted an August 3, 2007 operative report from Dr. Uselman, who
1

Appellant noted on the CA-2 that his condition did not happen on the job.

2

performed an L4-5 bilateral transforaminal discectomy with interbody fusion. Dr. Uselman
diagnosed degenerative disc disease at L4-5. On October 30, 2007 he noted appellant’s fusion
was coming along nicely but he experienced a minor setback when he stepped off a curb at
church and jarred his back. Dr. Uselman advised that appellant was not ready to return to work
carrying mail because it would cause significant stress on his low back. On February 19, 2008
he noted that appellant’s physical examination revealed no weakness, intact reflexes and
sensation and a reduction in back pain. Dr. Uselman advised the fusion surgery was a success.
A computerized tomography (CT) scan of the lumbar spine dated February 14, 2008 revealed
changes of fixation and fusion at L4-5 without evidence of complication, minimal central
stenosis at L3-4 and facet arthropathy at L5-S1 with no significant spinal stenosis.
By decision dated March 27, 2008, the Office hearing representative affirmed the
September 19, 2007 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that the injury was
sustained in the performance of duty as alleged, and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.3

2

Gary J. Watling, 52 ECAB 357 (2001).

3

Solomon Polen, 51 ECAB 341 (2000).

3

ANALYSIS
It is not disputed that appellant’s duties as a letter carrier included prolonged standing,
walking, bending, lifting and carrying a mailbag. Appellant was diagnosed with degenerative
disc disease. However, he has not submitted sufficient medical evidence to support that his
degenerative disc disease was caused or aggravated by his employment factors. On July 31,
2007 the Office advised appellant of the medical evidence needed to establish his claim.
Appellant did not submit a rationalized medical report from a physician addressing how specific
employment factors may have caused or aggravated his claimed back condition.
Appellant submitted a July 23, 2007 attending physician’s report prepared by
Dr. Uselman, who noted that appellant injured his back on October 1, 2003. Dr. Uselman
diagnosed lumbar degenerative disc disease and low back pain. Appellant advised that he was
undergoing surgery and would be disabled commencing August 3, 2007. Dr. Uselman’s report is
insufficient to establish the claim as he did not provide a history of injury or specifically address
whether appellant’s employment activities had caused or aggravated a diagnosed medical
condition.4 On March 24, 2007 he noted appellant’s treatment for low back pain with radiation
into his legs. Dr. Uselman again diagnosed degenerative disc disease at L4-5. Appellant
reported working as a mail carrier and noted that carrying his mailbag aggravated his back pain.
However, Dr. Uselman merely repeated the history of injury as reported by appellant without
providing his own opinion addressing how appellant’s back condition was work related.5 He
failed to provide a rationalized opinion explaining how appellant’s work caused or aggravated
the diagnosed condition.6
On August 3, 2007 Dr. Uselman performed an L4-5 bilateral transforaminal discectomy
and noted that appellant was progressing well postoperatively. He noted that appellant was not
ready to return to work because it would cause significant stress on his low back. Dr. Uselman
did not provide an opinion regarding the causal relationship of appellant’s degenerative disc
disease and the factors of employment believed to have caused or contributed to such condition.
He did not explain the process by which activities such as carrying a mailbag would cause the
diagnosed back condition and why such condition would not be due to nonwork factors such as
the normal aging process. Therefore, these reports are insufficient to meet appellant’s burden of
proof.
Appellant submitted reports from Dr. Sadar dated February 16, 2001 to March 11, 2004.
Dr. Sadar treated appellant for low back pain and diagnosed degenerative disc disease and
obesity. He was hesitant in recommending that appellant accept a new job with the employing
establishment which required him to walk and carry a bag because these activities were not good
4

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
5

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
6

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

4

for his back. Dr. Sadar noted that appellant was 60 pounds overweight which caused stress on
his back, increased lumbar lordosis and changed body posture. He did not directly address
causal relation and his restrictions on appellant’s return to work are prophylactic in nature. The
Board noted that fear of future injury is not compensable under the Act.7 Dr. Sadar also
attributed appellant’s back condition to his obesity and not his work duties. Therefore, these
reports are insufficient to establish appellant’s claim.
The remainder of the medical evidence, including x-ray of the lumbar spine dated
January 30, 2001, an MRI scan of the lumbar spine dated May 2, 2007 and a CT scan of the
lumbar spine dated February 14, 2008, fail to provide any opinion on causal relationship. For
this reason, this evidence is not sufficient to meet appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that the condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.8 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence, and the Office
therefore properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
developed an employment-related injury in the performance of duty.

7

See Mary Geary, 43 ECAB 300, 309 (1991); Pat Lazzara, 31 ECAB 1169, 1174 (1980) (finding that appellant’s
fear of a recurrence of disability upon return to work is not a basis for compensation).
8

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

5

ORDER
IT IS HEREBY ORDERED THAT the March 27, 2008 and September 19, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 20, 2008
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

6


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

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1598
Issued: January 7, 2020

Case Submitted on the Record

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

JURISDICTION
On August 20, 2018 appellant, through counsel, filed a timely appeal from a March 19,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the March 19, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant met her burden of proof to establish cervical and right
hand/wrist conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 7, 2015 appellant, then a 56-year-old mail processing clerk, filed a traumatic injury
claim (Form CA-1) alleging that on May 7, 2015, while in the performance of duty, she
experienced neck pain that radiated to her bilateral upper extremities when “scanning on the
platform.” She stopped work on May 7, 2015.
On May 7, 2015 an unidentified health care provider diagnosed right hand/wrist strain.
The treatment records also noted a prior history of cervical spine herniated nucleus pulposus
(C5-6).
Appellant was treated by a physician assistant on May 8 and 21and June 4 and 23, 2015,
who diagnosed right hand and wrist strain, rule out internal derangement. She was returned to
light duty and referred for physical therapy. In duty status reports (Form CA-7) dated June 4 and
23, 2015, the physician assistant diagnosed right hand and wrist strain, ruled out internal
derangement, and concluded that appellant was totally disabled. OWCP also received physical
therapy treatment records from May 8 to June 24, 2015.
On June 23, 2015 appellant was treated by Dr. Oleg Olshanetskiy, a family medicine
practitioner, for a right hand injury. She attributed her right hand pain to repetitive scanner use at
work. Appellant denied other trauma to the right hand or a history of a hand injury. Findings on
examination revealed limited right wrist range of motion and an inability to adduct the right fifth
digit. Dr. Olshanetskiy diagnosed right wrist and hand sprain, and ruled out internal derangement.
He recommended a magnetic resonance imaging (MRI) scan and physical therapy.
In a development letter dated July 30, 2015, OWCP advised appellant of the need to submit
factual and medical evidence in support of her claimed injury. It specifically noted that it appeared
that she was claiming an occupational disease which was produced by continued or repeated
exposure to work elements over a period longer than one workday or work shift. OWCP converted
appellant’s traumatic injury claim to an occupational disease claim. It further requested that she
submit a narrative medical report from a physician that included a medical diagnosis and an
explanation as to how the reported employment incident either caused or aggravated the claimed
medical conditions. OWCP also requested that appellant respond to a questionnaire to substantiate
the factual elements of her claim. In a development letter of even date, it also requested that the
employing establishment submit comments from a knowledgeable supervisor on the accuracy of
all statements provided by appellant, the tasks the employee performed, and precautions taken to
minimize the effects of the activities. OWCP afforded appellant and the employing establishment
30 days to respond.
In a July 10, 2015 report, Dr. Olshanetskiy treated appellant in follow up for right hand and
wrist injury that occurred on May 7, 2015. He diagnosed right hand and wrist sprain, and ruled
out internal derangement.

2

Appellant was treated by a physician assistant on August 4, 2015 who diagnosed right hand
and wrist sprain and noted appellant was totally disabled.
On August 13 and 26, 2015 appellant was treated by Dr. Ellen Edgar, a Board-certified
neurologist, for right arm pain and radiating neck pain. She reported an onset of pain and
numbness in her right hand in April 2015 which she believed was due to repetitive hand use at
work, lifting, and scanning with her right hand. Appellant reported progressive pain over the last
three months with minimal relief from physical therapy. Dr. Edgar noted findings on examination
and diagnosed unspecified arthropathy of the right hand “etiology uncertain,” and she ruled out
carpal tunnel syndrome.
In a statement dated August 25, 2015, appellant reported working for the employing
establishment since 1984. She performed various duties including keying mail, loading and
sweeping mail, and scanning mail. Appellant’s duties required repeated movement of the wrist
and hand. She performed these activities for eight hours a day and had no hobbies outside of work.
Appellant first noted her symptoms in April 2015 when the fingers on her right hand would hurt
and go numb.
By decision dated September 10, 2015, OWCP denied appellant’s claim for compensation
because the medical evidence did not establish that the claimed medical condition was related to
the established factors of her federal employment.
On September 23, 2015 appellant requested an oral hearing before an OWCP hearing
representative which was held on January 7, 2016.
In a state workers’ compensation form dated August 13, 2015, Dr. Kishan Patel, a Boardcertified neurologist, diagnosed arthropathy of the hand, unspecified, with a date of injury of
May 7, 2015. Appellant reported repetitive hand use at work including lifting and scanning with
her right hand. Dr. Patel checked a box marked “yes” in response to the question of whether the
incident appellant described was the competent medical cause of her illness and she remained
disabled.
On August 20, 2015 Dr. Michael Jurkowich, a Board-certified physiatrist, treated appellant
in follow up for right arm and hand pain and numbness. He noted findings of Heberden’s nodes
on the joints of the right thumb, positive Finkelstein’s test, and decreased range of motion of the
wrists. Dr. Jurkowich diagnosed unspecified arthropathy of the hand.
In state workers’ compensation forms dated August 20 and 26, 2015, Dr. Edgar diagnosed
arthropathy of the hand, unspecified, with a date of injury of May 7, 2015. She checked a box
marked “yes” in response to the question of whether the incident appellant described was the
competent medical cause of the illness. Dr. Edgar noted that appellant was totally disabled.
An electromyogram (EMG) dated September 28, 2015 revealed chronic bilateral C5 and
C6 radiculopathy without active denervation, no evidence of carpal tunnel syndrome, or peripheral
neuropathy.
On November 11, 2015 Dr. John Goutos, a Board-certified internist, treated appellant for
a flare-up of the right hand condition. He noted an EMG revealed chronic C5-6 radiculopathy
without active denervation. Dr. Goutos opined that based on the medical history provided,
3

evaluation, and test results, work-related causality was not established. He diagnosed C5-6
radiculopathy.
Appellant was treated by a physician assistant from November 13, 2015 to January 29,
2016 for bilateral arm and right hand pain. The physician assistant diagnosed cervical sprain,
cervical facet joints inflammation, and cervicobrachial syndrome.
On November 23, 2015 appellant was treated by Dr. Donghui Chen, a Board-certified
anesthesiologist, for neck, shoulder and bilateral hand pain. She reported working as a platform
clerk and on May 7, 2015 when she felt a sudden worsening of right hand pain and numbness to
the fourth and fifth digit. An EMG revealed chronic C5-6 radiculopathy with no evidence of carpal
tunnel syndrome. Dr. Chen noted findings on examination and diagnosed cervical sprain,
cervicobrachial syndrome, cervical facet joint inflammation, and cervical radiculopathy and
recommended physical therapy.
By decision dated March 21, 2016, an OWCP hearing representative affirmed the
September 10, 2015 decision.
In a report dated October 28, 2015, Dr. Olshanetskiy noted treating appellant for right wrist
and hand discomfort since May 2015. Appellant attributed her symptoms to many years of
working for the employing establishment repetitively using her hands. She reported some
improvement with physical therapy. Dr. Olshanetskiy diagnosed right wrist chronic sprain.
On July 11, 2016 appellant requested reconsideration.
Appellant was treated by a physician assistant on March 18 and April 22, 2016 and a nurse
practitioner on April 1, 2016 for neck, left arm/shoulder, and right hand pain. She reported
working as a platform clerk and on May 7, 2015 she experienced a sudden worsening of right hand
pain and numbness to the fourth and fifth digit. Both care providers diagnosed cervical sprain,
cervicobrachial syndrome, cervical facet joint inflammation, and cervical radiculopathy.
Appellant came under the treatment of Dr. Irfan Alladin, a Board-certified anesthesiologist,
from May 9 to July 8, 2016, for neck, left arm, shoulder, and right hand pain. She reported a
sudden worsening of right hand pain and numbness while working as a platform clerk. Appellant’s
duties included repetitively reaching to scan bar codes located on the sides of the platform bay
doors. Dr. Alladin noted findings on examination and diagnosed cervicobrachial syndrome,
cervical facet joint inflammation, shoulder pain, and cervical radiculopathy. He recommended
physical therapy.
On May 26, 2016 Dr. Michael J. Katz, a Board-certified orthopedist, treated appellant for
pain radiating into both hands. Appellant reported working as a postal platform clerk who was
responsible for scanning in trucks on the bays upon arriving at the employing establishment. Her
duties included cutting seals on the trucks, holding a scanner all day, and looking at the bottom of
trucks. Appellant began having neck pain radiating into both hands in April 2015. Findings on
examination revealed intact neurovascular examination, restricted range of motion, mild
tenderness at C5-6, mild spasm at the bilateral trapezius muscles, limited strength in the left hands,
and negative Tinel’s sign bilaterally. Dr. Katz recommended selective nerve blocks and physical
therapy. He opined that there was a causal relationship between appellant’s symptomatic cervical
radiculopathy and her job as a platform clerk which involved a lot of bending of her neck while
scanning trucks and taking seals off the bottom of trucks. Dr. Katz opined that the compression at
4

C5-6, degenerative changes of the cervical spine, and hand weakness were related to her job
because her job involved a lot of bending and movement of her neck to perform her job as a
platform clerk.
By decision dated January 6, 2017, OWCP denied modification of the March 21, 2016
decision.
A cervical spine MRI scan dated May 6, 2016 revealed reversal of the normal cervical
lordosis, disc herniations from C3-4 through C6-7, mild central canal stenosis, mild right C2-3
foraminal narrowing, C4-5 foraminal narrowing compressing the C5 nerve roots, bilateral C5-6
foraminal narrowing compressing the C6 nerve roots, and mild degenerative changes.
Appellant was treated by a physician assistant on March 3 and April 28, 2017. Both reports
document diagnoses of cervical sprain, cervicobrachial syndrome, cervical facet joint
inflammation, and cervical radiculopathy.
On March 26, 2017 Dr. Katz reiterated the history of injury and subsequent medical
treatment provided in his report dated May 26, 2016. Findings on examination were unchanged.
Dr. Katz noted that appellant’s job involved reaching and scanning inbound and outbound trucks
using a hand held scanning device weighing approximately three pounds. Her job required that
she reach over one foot more than 100 times a day. Dr. Katz opined that the reaching required in
the scanning duties resulted in the herniated discs pushing or pressing on the cervical nerves
causing pain to radiate along the nerve pathway down the arm. He opined that the diagnosed
condition of disc herniation at C4-5 to C7-T1 was causally related to the circumstances and duties
of her employment activities.
On March 31, 2017 Dr. Alladin treated appellant in follow-up for neck, left arm, shoulder,
and right hand pain. Appellant reported working as a platform clerk repetitively scanning bar
codes located on the sides of the platform bay doors. Dr. Alladin noted findings on examination
of restricted range of motion and hypoesthesia at C5-8. He diagnosed cervicobrachial syndrome,
cervical facet joint inflammation, shoulder pain, and cervical radiculopathy.
On June 20, 2017 appellant requested reconsideration.
By decision dated September 22, 2017, OWCP denied modification of the January 6, 2017
decision.
In state workers’ compensation forms dated May 22 and December 8, 2017, Dr. Alladin
diagnosed neck pain, cervical radiculopathy, shoulder impingement syndrome, and knee pain. He
checked a box marked “yes” noting his agreement that the incident appellant described was the
competent medical cause of the conditions.
Appellant was treated by a physician assistant on September 22 and December 8, 2017 for
neck, left arm, shoulder, and right hand pain. The physician assistant diagnosed cervical sprain,
cervical strain, shoulder pain, knee pain, cervicobrachial syndrome, cervical facet joint
inflammation, and cervical radiculopathy.
On November 15, 2017 Dr. Katz repeated the history of injury and subsequent medical
treatment found in his prior reports. He provided a generic summary on how hypermobility led to
bony hypertrophy and how cervical radiculopathy was often caused by wear and tear. Dr. Katz
5

opined that appellant had a combination of job induced and degenerative conditions of the cervical
spine. He noted appellant’s job duties including scanning required a lot of neck movement which
caused bony changes in the spine causing compression of the nerves and cervical radiculopathy.
Dr. Katz opined that the reaching required in the scanning duties resulted in the herniated discs
pushing or pressing on the cervical nerves causing pain to radiate along the nerve pathway down
the arm. He opined that the diagnosed condition of disc herniation at C4-5 to C7-T1 was causally
related to the circumstances and duties of her employment activities as described by appellant.
Also submitted were excerpts from articles on cervical radiculopathy.
On December 19, 2017 appellant requested reconsideration.
By decision dated March 19, 2018, OWCP denied modification of the September 22, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 The opinion of the physician must be based
on a complete factual and medical background of the employee, must be one of reasonable medical

4

Supra note 2.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

9

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).

6

certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment factors identified by the employee.10
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish cervical and
right hand/wrist conditions causally related to the accepted factors of her federal employment.
In reports dated June 23 to October 28, 2015, Dr. Olshanetskiy treated appellant for right
wrist and hand discomfort since May 2015. He diagnosed right wrist and hand sprain and ruled
out internal derangement. Similarly, reports from Dr. Edgar dated August 13 and 26, 2015, noted
that she treated appellant for right arm pain and radiating neck pain. Dr. Edgar diagnosed
unspecified arthropathy of the right hand etiology “uncertain” and ruled out carpal tunnel. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.12 These reports,
therefore, are insufficient to establish appellant’s claim.
In state workers’ compensation form reports, Drs. Edgar and Patel both noted by checking
a box marked “yes” that the incident appellant described was the competent medical cause of the
arthropathy of the hand. The Board has held that when a physician’s opinion on causal relationship
consists only of checking “yes” to a form question, without explanation or rationale, that opinion
is of diminished probative value and is insufficient to establish a claim.13 These reports are
therefore insufficient to establish causal relationship in this claim.
On August 20, 2015 Dr. Jurkowich treated appellant in follow-up for right arm and hand
pain and numbness. He diagnosed unspecified arthropathy of the hand. However, he did not
specifically provide an opinion regarding whether appellant’s condition was work related.14 As
such, Dr. Jurkowich’s opinion is insufficient to establish causal relationship.
An EMG dated September 28, 2015 revealed chronic bilateral C5 and C6 radiculopathy
without active denervation. The Board has held that reports of diagnostic tests lack probative value

10

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345, 352 (1989).
11

M.S., Docket No. 19-0913 (issued November 25, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3e (January 2013).
12

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

13

Sedi L. Graham, 57 ECAB 494 (2006); D.D., 57 ECAB 734 (2006).

14

Supra note 12.

7

as they do not provide an opinion on causal relationship between appellant’s employment duties
and a diagnosed condition.15
On November 11, 2015 Dr. Goutos treated appellant for a flare-up of the right hand injury.
However, his report failed to establish causal relationship as he diagnosed C5-6 radiculopathy and
opined that based on the medical history provided, evaluation, and test results, the work-related
causality was not established.
On November 23, 2015 appellant was treated by Dr. Chen. He noted diagnoses and
documented the history of injury as provided by appellant. Similarly, in reports dated May 9, 2016
to December 8, 2017, Dr. Alladin provided diagnoses and documented appellant’s history of injury
of working as a platform clerk repetitively scanning barcodes. Regarding causal relationship,
Drs. Chen and Alladin repeated the history of injury as reported by appellant without providing
their own opinion regarding whether appellant’s condition was work related. The mere recitation
of patient history does not suffice for purposes of establishing causal relationship between a
diagnosed condition and the employment incident.16 Without explaining physiologically how the
accepted employment incident caused or contributed to the diagnosed conditions, the physician’s
reports are of limited probative value.17
Appellant submitted reports from Dr. Katz dated May 26, 2016 and March 26, 2017.
Dr. Katz noted that appellant reported working as a postal platform clerk and was responsible for
scanning in trucks, cutting seals on the trucks, and looking at the bottom of trucks. He opined that
there was a causal relationship between appellant’s symptomatic cervical radiculopathy and her
job as a platform clerk, which involved a lot of bending of her neck and repetitive reaching when
scanning trucks and taking seals off the bottom of trucks. Dr. Katz further opined that the
degenerative changes of the cervical spine and disc herniations at C4-5 through C7-T1 were related
to her job because it involved a lot of bending and movement of the neck. The Board finds that,
although Dr. Katz supported causal relationship, he did not provide medical rationale explaining
the basis of his conclusory opinion regarding the causal relationship between appellant’s cervical
radiculopathy and disc herniation at C4-5 to C7-T1 and the factors of employment.18 Therefore,
these reports are insufficient to meet appellant’s burden of proof.
On November 15, 2017 Dr. Katz provided a generic summary on how hypermobility could
lead to bony hypertrophy and how cervical radiculopathy is often caused by wear and tear. He
opined that appellant had a combination of job-induced and degenerative conditions of the cervical
spine. As noted above, Dr. Katz did not provide medical rationale explaining how bending and
moving her neck directly caused or aggravated the diagnosed medication conditions. Also
Dr. Katz noted that appellant had a combination of job-induced and degenerative conditions of the

15

See J.M., Docket No. 17-1688 (issued December 13, 2018).

16

See J.G., Docket No. 17-1382 (issued October 18, 2017).

17

See A.B., Docket No. 16-1163 (issued September 8, 2017).

18

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).

8

cervical spine, but he failed to specifically differentiate between the effects of the preexisting
conditions and the symptoms of the job-related factors.19
Appellant’s initial May 7, 2015 treatment records do not clearly identify the healthcare
provider who examined and treated her that day. The Board has previously held that unsigned
reports or reports that bear illegible signatures cannot be considered as probative medical evidence
because they lack proper identification that the author is a physician.20 Therefore, these reports
are of no probative value and are insufficient to establish appellant’s claim.
The record also includes numerous reports and treatment records provided by physician
assistants, nurse practitioners, and physical therapists. Certain healthcare providers such as
physician assistants, nurse practitioners, and physical therapists are not considered “physician[s]”
as defined under FECA.21 Consequently, their medical findings and/or opinions will not suffice
for purposes of establishing entitlement to FECA benefits.22
On appeal counsel argues that Dr. Katz’s November 15, 2017 report is sufficient to
establish causal relationship or at least sufficient to warrant further medical development by
OWCP. As discussed above, the medical evidence of record, including Dr. Katz’s various reports,
is insufficient to establish causal relationship. Because appellant has not submitted rationalized
medical evidence to establish causal relationship, the Board finds that she has not met her burden
of proof to establish her occupational disease claim.23
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish cervical and
right hand/wrist conditions causally related to the accepted factors of her federal employment.

19

Supra note 11.

20

G.N., Docket No. 19-0184 (issued May 29, 2019); Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams,
55 ECAB 343 (2004).
21

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

22

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
23

See M.C., Docket No. 19-0673 (issued September 6, 2019).

9

ORDER
IT IS HEREBY ORDERED THAT the March 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baton Rouge, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0474
Issued: October 3, 2018

Case Submitted on the Record

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

JURISDICTION
On January 8, 2018 appellant filed a timely appeal from a December 1, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish total disability for
the period October 8 through 12, 2017 due to her accepted August 23, 2017 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its December 1, 2017 decision.
The Board’s jurisdiction is limited to the evidence in the case record that was before OWCP at the time of its final
decision. Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal.
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 29, 2017 appellant, then a 39-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 23, 2017 she was involved in a motor vehicle accident
while in the performance of duty when a vehicle collided into the backside of her postal vehicle.
She stopped work on August 28, 2017. By decision dated October 10, 2017, OWCP accepted the
claim for other myositis, multiple sites. Appellant initially received continuation of pay.
On October 12, 2017 appellant filed a claim for compensation (Form CA-7) for the period
October 8 through 12, 2017.
In support of appellant’s claim for wage-loss compensation, OWCP received medical
reports and duty status reports (Form CA-17) from Dr. Tyrone Girod, an internal medicine
specialist. In his reports, Dr. Girod diagnosed myositis secondary to the motor vehicle accident.
In the August 25, 2017 report, he noted the history of the August 23, 2017 motor vehicle accident.
Dr. Girod indicated that appellant ambulated very slowly. Appellant had full range of motion of
the back with some discomfort. She was also tender to firm palpation of the right interscapular
area. Dr. Girod took appellant off work for one week. In the accompanying duty status report, he
noted that appellant had muscular pain and stiffness. Dr. Girod recommended no work. In his
August 29, 2017 report, he indicated that appellant had significant pain secondary to motor vehicle
accident and noted that she requested a referral to an orthopedist. Appellant had soreness of the
posterior trapezius interscapular and down into the lower back. He also advised that she was
unable to work. An August 29, 2017 duty status report diagnosed myositis due to the injury and
recommended no work. In a September 5, 2017 report, Dr. Girod reported that she ambulated very
slowly and had limited range of motion to the back. In his accompanying September 5, 2017 duty
status report, he recommended no work. In duty status reports of September 18 and 27 and
October 12 and 18, 2017, Dr. Girod reported muscle pain and stiffness and recommended no work.
By development letter dated October 26, 2017, OWCP informed appellant that the
evidence received in support of her claim for wage-loss compensation was insufficient as the
reports failed to provide a reason why appellant was off work. It afforded her 30 days to submit
the requested information to establish that disability for the dates claimed was due to her accepted
work-related medical condition.
In a November 2, 2017 report, Dr. Girod noted that he initially evaluated appellant for the
injuries incurred on August 23, 2017. However, as an internal medicine specialist, he did not feel
that he could accurately evaluate the extent of the injuries, so he referred appellant to an orthopedic
specialist for further evaluation. Dr. Girod noted that, in the interim, he felt that appellant would
not be able to return to work and that he had instructed her not to work until she was seen by the
specialist.
In a November 15, 2017 duty status report, an unidentified pain management specialist
reported that appellant was working in an alternate position.
OWCP also received copies of appellant’s diagnostic studies from September 27, 2017.
No evidence of vertebral compression fracture, subluxation, or other acute osseous abnormality in

2

the x-rays of the cervical, thoracic, and lumbar spine were found. Early degenerative changes at
multiple levels were noted.
By decision dated December 1, 2017, OWCP denied appellant’s claim for compensation
for the period October 8 through 12, 2017.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden proof to establish the essential
elements of his or her claim by the weight of the evidence.4 For each period of disability claimed
the employee has the burden of proof to establish that he or she was disabled from work as a result
of the accepted employment injury.5 Whether a particular injury caused an employee to become
disabled from work and the duration of that disability, are medical issues that must be proved by
a preponderance of probative and reliable medical opinion evidence.6
The claimant must submit medical evidence showing that the condition claimed is
disabling.7 The evidence submitted must be reliable, probative, and substantial.8 The physician’s
opinion must be based on the facts of the case and the complete medical background of the
employee, must be one of reasonable medial certainty, and must include objective findings in
support of its conclusions.9 Subjective complaints of pain are insufficient, in and of themselves,
to support payment of continuing compensation.10 Likewise, medical limitations based solely on
the fear of a possible future injury are also insufficient to support payment of continuing
compensation.11
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.12 Rationalized medical evidence is medical evidence
which includes a physician’s detailed medical opinion on the issue of whether there is causal
relationship between the claimant’s diagnosed condition and the implicated employment injury.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
3

Supra note 1.

4

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).

5

Id.

6

See Edward H. Horton, 41 ECAB 301 (1989).

7

20 C.F.R. § 10.115(f).

8

Id. at § 10.115.

9

Id. at § 10.501(a)(2).

10

Id.

11

Id.

12

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

3

rationale.13 Neither the fact that a disease or condition manifests itself during a period of
employment nor the belief that the disease or condition was caused or aggravated by employment
factors or incidents is sufficient to establish causal relationship.14
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she was
totally disabled from work during the period October 8 through 12, 2017 causally related to her
accepted employment injury.
In support of her claim, appellant submitted multiple reports and duty status reports from
Dr. Girod, who took appellant off work after her initial visit of August 25, 2017. Dr. Girod noted
that appellant had full range of motion of the back with some discomfort and was tender to firm
palpation of the right interscapular area and ambulated very slowly. He also reported soreness of
the posterior trapezius interscapular and down into the lower back. In his September 5, 2017
report, Dr. Girod reported that appellant had limited range of motion to the back. In his duty status
reports, he reported muscle pain and stiffness. However, none of the reports from Dr. Girod
contained medical rationale which explained how or why the worsening of appellant’s symptoms
had been caused or aggravated by the accepted myositis condition. As noted, subjective
complaints of pain are insufficient, in and of themselves, to support payment of compensation.16
Furthermore, in his November 7, 2017 letter, Dr. Girod offered no medical explanation as to why
he felt appellant would not be able to return to work due to her August 23, 2017 accepted condition.
His reports, therefore, do not establish that appellant was totally disabled from work during the
claimed period due to her accepted condition.17
None of the other medical evidence of record, including the diagnostic studies, address
appellant’s claimed disability during the period in question.18 The medical evidence does not
establish that she was totally disabled from October 8 through 12, 2017 due to the accepted
condition of myositis.19 Appellant has therefore not met her burden of proof.

13

Leslie C. Moore, 52 ECAB 132 (2000).

14

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

15

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

16

See supra note 9.

17

Supra note 7.

18

Supra note 15.

19

See E.B., Docket No. 17-1155 (issued January 26, 2018); J.S., Docket No. 14-0818 (issued August 7, 2014).

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
during the period October 8 through 12, 2017 causally related to her accepted August 23, 2017
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 3, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-239
Issued: August 19, 2010

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 November 2, 2009 appellant filed a timely appeal from the October 16, 2009 merit
decision of the Office of Workers’ Compensation Programs concerning her entitlement to
schedule award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has permanent impairment due to her accepted bilateral
carpal tunnel syndrome.
FACTUAL HISTORY
This case has previously been before the Board. The Board issued a decision on June 1,
2009 affirming the January 24 and August 6, 2008 decisions of the Office finding that appellant

did not establish that she sustained permanent impairment due to her accepted bilateral carpal
tunnel syndrome.1 The Board noted that Dr. Raymond Noellert provided an opinion that
appellant did not have such impairment. In a September 5, 2007 report, Dr. Noellert stated that
she had reached maximum medical improvement in May 2007. On exanimation, appellant had
no active triggering, no measurable loss of motion and no measurable irreversible median nerve
damage.
On July 31, 2007 Dr. Noellert indicated that the Tinel’s sign was negative over
appellant’s median nerve bilaterally and that the record contained no electromyogram (EMG) or
nerve conduction results showing median nerve dysfunction or abnormal results in the thenar
muscles. On December 24, 2007 an Office medical adviser agreed with Dr. Noellert’s opinion
that appellant did not have impairment of her arms. The facts of the case are set forth in the
Board’s prior decision and are incorporated herein by reference.
In an August 4, 2009 letter, appellant requested reconsideration of her claim. In a
July 30, 2009 report, Dr. Dee A. Bialecki-Haase, an attending Board-certified family
practitioner, provided a history of appellant’s work activities with the employment
establishment. She indicated that on examination there were surgical scars over the volar aspect
of both wrists. There was no atrophy of the thenar musculature in either hand. Tinel’s and
Phalen’s tests were negative on the right and there was a positive Phalen’s test on the left.
Dr. Bialecki-Haase stated that there was a loss of normal two-point discrimination over the left
palmar index and middle fingers and over the ulnar aspect of the thumb. Two-point
discrimination was five millimeters over the palmar aspect of the right index, middle and little
fingers and the ulnar aspect of the thumb. Dr. Bialecki-Haase concluded that under the standards
of the fifth edition of the A.M.A., Guides appellant had a 14.5 percent impairment of her left arm
and a 3.6 percent impairment of her right arm due to sensory loss.2
On October 7, 2009 the medical evidence on file was reviewed by Dr. Nabil F. Angley, a
Board-certified orthopedic surgeon and Office medical adviser. He applied the standards of the
sixth edition of the A.M.A., Guides to the findings of Dr. Bialecki-Haase. Dr. Nabil indicated
that, after reviewing the record, he was unable to provide an impairment rating due to incomplete
information. Dr. Angley stated:
“Dr. Bialeski-Hasae stated that the [maximum medical improvement] was reached
on the date of her examination. She also provided the impairment rating based on
the A.M.A., Guides 5th Edition, which is no longer acceptable. The calculations,
the numbers used, the tables or figures, including the class number, the modifiers
and the final adjustments from the A.M.A., Guides 6th Edition must be clearly
stated in showing how the break down of the impairment rating figures were
1

Docket No. 08-2413 (issued June 1, 2009). On July 15, 2000 the Office accepted that appellant, then a 40-yearold mail processor, sustained bilateral carpal tunnel syndrome. On April 13, 2005 Dr. Raymond Noellert, an
attending Board-certified orthopedic surgeon, performed right carpal tunnel release surgery and on August 23, 2006
he performed left carpal tunnel release surgery. The Office authorized both procedures. It denied appellant’s
schedule award claim noting that no such impairment was found by Dr. Noellert and Dr. Jason D. Eubanks, a Boardcertified orthopedic surgeon, who served as an Office medical adviser.
2

Dr. Bialecki-Haase made reference to Chapter 16.5 of the fifth edition of the A.M.A., Guides.

2

obtained as required by [the Office] regulations. Therefore, I suggest that you
write to Dr. Bialecki-Haase and ask her to supply an addendum to her report
showing the detailed breakdown of how she reached the [permanent partial
impairment] rating figures using the A.M.A., Guides 6th Edition.” (Emphasis in
original).
In an October 16, 2009 decision, the Office determined that appellant had not established
that she had sustained permanent impairment due to her accepted bilateral carpal tunnel
syndrome. It noted that the July 30, 2009 report of Dr. Bialecki-Haase did not show that
appellant had such permanent impairment under the relevant standards for evaluating loss.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation 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 The
effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.6
A proceeding under the Act is not adversary in nature nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, it shares
responsibility in the development of the evidence. The Office has the obligation to see that
justice is done.7 Accordingly, once it undertakes to develop the medical evidence further, the
Office has the responsibility to do so in the proper manner.8
ANALYSIS
The Office accepted that appellant sustained work-related bilateral carpal tunnel
syndrome, but denied her claim for a schedule award for her arms. In a July 30, 2009 report,
Dr. Bialecki-Haase, an attending Board-certified family practitioner, provided findings on
examination of appellant’s arms and an opinion on permanent impairment based on the standards
of the fifth edition of the A.M.A., Guides. The Office properly referred the claim to Dr. Angley, a
Board-certified orthopedic surgeon serving as an Office medical adviser, to evaluate the findings of
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

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

7

Russell F. Polhemus, 32 ECAB 1066 (1981).

8

See Robert F. Hart, 36 ECAB 186 (1984).

3

Dr. Bialecki-Haase under the standards of the sixth edition of the A.M.A., Guides. The effective
date of the sixth edition of the A.M.A., Guides is May 1, 2009.9 On October 7, 2009 Dr. Angley
recommended that Dr. Bialecki-Haase be asked to provide an additional report evaluating her
findings under the standards of the sixth edition of the A.M.A., Guides.
The Board notes that no attempt was made to have Dr. Bialecki-Haase or some other
appropriate physician evaluate impairment under the standards of the sixth edition of the A.M.A.,
Guides. Appellant’s claim was denied without the recommended action being taken. As noted,
once the Office undertakes to develop the medical evidence further, it has the responsibility to do
so in the proper manner.10 It should request Dr. Bialecki-Haase to address whether appellant
sustained permanent impairment to her arms under the standards of the sixth edition of the
A.M.A., Guides. If Dr. Bialecki-Haase is unable or unwilling to provide such report, the Office
should refer her to an appropriate specialist for examination. After such development as it deems
necessary, the Office shall issue an appropriate decision regarding appellant’s entitlement to a
schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
has any permanent impairment due to her accepted bilateral carpal tunnel syndrome.

9

See supra note 6.

10

See supra notes 7 and 8.

4

ORDER
IT IS HEREBY ORDERED THAT the October 16, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: August 19, 2010
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
C.S., Appellant
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Leavenworth, KS, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-214
Issued: October 5, 2010

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 October 23, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated October 8, 2009, which denied modification of the
Office’s February 6, 2009 decision. 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 met her burden of proof to establish that her neck, thoracic
and right shoulder conditions are consequential to her accepted injuries.
FACTUAL HISTORY
This case has previously been before the Board.1 In a March 26, 2007 decision, the
Board found that appellant did not meet her burden of proof to establish that her L5-S1 condition
1

Docket No. 06-1555 (issued March 26, 2007). Appellant also has a pending appeal on a separate issue in
another claim under Docket No. 10-421.

or need for surgery were consequential to her accepted lumbar strain and lumbar microdisc
surgery at L4-5. The facts and history contained in the prior appeal are incorporated by
reference.
The record reflects that the Office accepted appellant’s claim for a lumbar sprain,
displacement of a lumbar intervertebral disc without myelopathy, bilateral chondromalacia
patellae and bilateral tear of the lateral meniscus of the knee. In medical reports from
January 2002, Dr. Mark Strehlow, Board-certified in family medicine, diagnosed a lumbar strain
with a bulging disc.2
In a work status report dated October 5, 2007, Dr. S.R. Reddy Katta, a Board-certified
physiatrist, advised that appellant fell on October 3, 2007 while walking at work when her knees
suddenly gave away. Appellant sustained a neck, back, elbow, knee and shoulder conditions.3
On October 14, 2007 appellant requested that the Office accepted her claim for her
shoulders, neck, right elbow and mid back.
In a January 20, 2008 report, an Office medical adviser determined that the medical
evidence was insufficient to establish that appellant sustained injuries to her cervical spine,
thoracic spine or shoulders on October 3, 2007. He noted that the medical evidence indicated
that she sustained an abrasion to her right elbow and bilateral knee bruises.
In a letter dated February 9, 2008, appellant reiterated her request to expand her claim.
She submitted a January 3, 2008 report from Dr. Frank P. Holladay, a Board-certified
neurosurgeon, who advised that, as to her cervical and thoracic problems, the best course would
be for additional diagnostic evaluation to include a cervical and thoracic MRI scan. On
January 18, 2008 cervical and thoracic spine MRI scan testing was obtained by Dr. Craig Bruner,
a Board-certified diagnostic radiologist, who noted mild degenerative changes in the lower
cervical spine. Treatment notes from Dr. Ann Y. Lee, a Board-certified physiatrist, dated from
February 4 to May 23, 2008, diagnosed left shoulder pain. In a report dated March 20, 2008,
Dr. Brian Jones, a Board-certified anesthesiologist, diagnosed lumbar radiculopathy with lumbar
spinal stenosis and degenerative disc disease with low back pain.
In a February 4, 2008 report, Dr. Katta diagnosed chronic low back pain from
degenerative joint disease and degenerative disc disease with lumbar radiculitis. He noted that
on October 3, 2007 appellant fell and sustained cervical, thoracic and lumbar sprains and a right
ankle sprain. Dr. Katta also advised that she sprained her shoulders, right elbow and both knees.
On April 17, 2008 the Office accepted the claim for right elbow abrasion and bilateral
knee contusions.

2

In claim number xxxxxx010, doubled with the present claim, appellant sustained an injury on June 9, 1998 that
was accepted for left shoulder strain and impingement syndrome, aggravation of degenerative osteoarthritis, neck
strain and lumbar strain. It was determined that the neck and low back strains had resolved by July 10, 1998. The
case was expanded to accept a left shoulder arthroscopy.
3

The report is partially illegible.

2

On April 25, 2008 the Office referred appellant to Dr. Edward J. Prostic, a Boardcertified orthopedic surgeon, for a second opinion regarding the extent of her work-related
conditions including those sustained in the October 3, 2007 fall. In a May 12, 2008 report,
Dr. Prostic diagnosed degenerative disc disease of the cervical, thoracic and lumbar spine. On
examination appellant had mild loss of motion and irritability of her left rotator cuff with mild
lateral epicondylitis and patellofemoral instability of both knees. Dr. Prostic did not find any
abnormalities of the right shoulder. He advised that, when appellant fell on October 3, 2007,
there was no evidence of permanent worsening to any other areas of her body. Dr. Prostic
recommended a thyroid function test to rule out hypothyroidism as a cause of numbness and
tingling of her hands and feet. He opined that surgery or injections would not alleviate any of
her orthopedic complaints. Dr. Prostic recommended that appellant use gripping exercises for
her elbow complaints and spinning exercises on a stationary bicycle with the seat elevated and
no resistance for her knees and low back.
On May 30, 2008 the Office requested that Dr. Prostic clarify his opinion. In a June 3,
2008 supplemental report, Dr. Prostic advised that the degenerative disc disease of the cervical
and thoracic spine was unrelated to the work-related injuries of June 9, 1998, January 7, 2002 or
October 3, 2007. He also found that appellant’s mild left lateral epicondylitis did not appear
related to any of the three work-related accidents. Dr. Prostic explained that the irritability of the
left rotator cuff was contributed to by the June 9, 1998 accident and the patellofemoral instability
to both knees was caused or contributed to by the October 3, 2007 work-related incident.
By decision dated June 30, 2008, the Office found that appellant’s cervical, thoracic and
shoulder conditions were not related to her accepted injuries.
By letter dated November 30, 2008, appellant requested reconsideration. On July 14,
2008 Dr. Katta opined that appellant had chronic cervical, thoracic and lumbosacral sprain from
a fall in October 2007. He advised that she also sprained her right ankle. Dr. Katta noted that
appellant had chronic low back pain from degenerative disc disease and degenerative joint
disease of the lumbar vertebrae with lumbar radiculitis and degenerative joint disease of both
knees with tendinitis in the medial aspect of the knees and reflex sympathetic dystrophy in both
lower extremities. In reports dated September 15 and November 17, 2008, he reiterated his
opinion that appellant had chronic cervical, thoracic and lumbosacral sprains from the fall in
October 2007.
In an August 20, 2008 report, Dr. Alexandra Strong, a Board-certified orthopedic
surgeon, diagnosed bilateral knee pain. In reports dated from April to September 18, 2008,
Dr. Lee diagnosed left shoulder pain, neck pain, history of fibromyalgia, thoracic pain and midthoracic back pain. On September 15, 2008 she noted that appellant presented for follow up for
thoracic back pain. Dr. Lee indicated that appellant had recently vacationed in Cabo, Mexico,
and recommended continuing therapy for four more weeks. In reports dated November 17 and
December 19, 2008, Dr. Mark A. Greenfield, a Board-certified anesthesiologist, diagnosed
cervical radiculopathy.
By decision dated February 6, 2009, the Office denied modification of its prior decision.

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On April 20 and June 1, 2009 appellant requested reconsideration. She submitted
additional reports from Dr. Katta from June 15 and October 5, 2009. Dr. Katta treated appellant
and reiterated that she had chronic low back pain due to degenerative joint disease and
degenerative disc disease of the lumbar vertebrae with lumbar radiculitis. In an August 19, 2009
report, he again advised that appellant had chronic low back pain from degenerative joint disease
and degenerative disc disease of lumbar vertebra with left lumbar radiculitis with increased pain
since the fall at work on July 8, 2009. Appellant also submitted several diagnostic tests and
physical therapy reports.
On September 1, 2009 the Office referred appellant, together with a statement of
accepted facts, and the medical record to Dr. Garth Russell, a Board-certified orthopedic
surgeon, for an impartial medical evaluation. It found a conflict in medical opinion between
Dr. Katta and the Office medical adviser pertaining to the causal relationship of the claimed
consequential medical conditions to her accepted injuries.4
In a September 9, 2009 report, Dr. Katta diagnosed chronic lower back pain from
degenerative disc disease and degenerative joint disease of the lumbar vertebrae with left lumbar
radiculitis and left trochanteric bursitis. He advised that appellant’s MRI scan did not reveal any
significant new problems but that it showed multilevel degenerative disc disease without any
herniation or spinal stenosis.
In a September 24, 2009 report, Dr. Russell reviewed appellant’s history of injury and
medical treatment. He noted appellant’s work-related injury to her left shoulder on June 9, 1998
when she was bumped in the elevator, nonwork-related slip and fall on ice in January 2002
which involved a low back injury and a nonwork-related bike accident at appellant’s home on
September 6, 2002, in which her legs gave out after riding her bicycle.5 On examination the
neck had spasm in the upper trapezius muscles, particularly on the left. On range of motion, the
neck revealed normal range of motion with 60 degrees of rotation to the right and left and 20
degrees of hyperextension with 50 degrees of forward flexion and 30 degrees lateral deviation.
Dr. Russell determined that appellant had normal motion in her right and left shoulders. The
thoracic and lumbar spine had mild muscle spasm and excessive lordosis in the lumbar area.
Dr. Russell reviewed diagnostic testing of the cervical spine and noted degenerative disc disease
associated with genetics and the natural aging process. He opined that the injury to appellant’s
left shoulder was secondary to her job-related injuries. Regarding her back, neck, upper back
and knees, Dr. Russell determined that these conditions resulted from the fall from her bicycle on
September 6, 2002, which was not job related. He explained that the presence of a lumbar strain
which was more than six months old would not have any relation to the injuries to her back,
knees or neck. Appellant had chondromalacia and degenerative changes in her knees and spine
which contributed to the pain in her neck, her upper and lower back, as well as in her hips and
4

The Office initially referred appellant to another physician for the impartial examination. Appellant was
referred to Dr. Russell after the first selected physician cancelled two scheduled appointments and indicated to the
Office that he did not wish to examine appellant.
5

A September 6, 2002 treatment note from Dr. Strehlow indicated that appellant rode her bike around the block
the previous evening. Appellant related that, when she dismounted from the bike, her legs gave out and she landed
on her left knee. Dr. Strehlow assessed left knee contusion and bilateral leg weakness.

4

knees. Dr. Russell advised this would occur with activities of daily living and normal motion
and which were not due to her employment.
By decision dated October 8, 2009, the Office denied modification of its February 6,
2009 decision. It found that the report of Dr. Russell was entitled to receive special weight.
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.6
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury.7 With respect to consequential injuries, the Board has stated that, where an
injury is sustained as a consequence of an impairment residual to an employment injury, the new
or second injury, even though nonemployment related, is deemed, because of the chain of
causation to arise out of and in the course of employment and is compensable.8
The Federal Employees’ Compensation Act9 provides that, if there is disagreement
between the physician making the examination for the Office and the employee’s physician, the
Office shall appoint a third physician who shall make an examination.10 In cases where the
Office has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.11
ANALYSIS
The Office accepted that appellant sustained a lumbar sprain, displacement of lumbar
intervertebral disc without myelopathy, bilateral chondromalacia patellae bilateral, tears of the
lateral meniscus of both knees, right elbow abrasion and bilateral knee contusions. Appellant
contends that she also sustained consequential neck, thoracic and right shoulder conditions due to
her accepted injuries. She submitted reports from Dr. Katta supporting that these conditions
were work related while Dr. Prostic, an Office referral physician, found her conditions were not
work related. To resolve the conflict in medical opinion, the Office properly referred her to
Dr. Russell, a Board-certified orthopedic surgeon.

6

Albert F. Ranieri, 55 ECAB 598 (2004).

7

Id.; Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

8

Kathy A. Kelley, 55 ECAB 206 (2004). A claimant bears the burden of proof to establish a claim for a
consequential injury. J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009).
9

5 U.S.C. §§ 8101-8193, 8123(a).

10

Id. at § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

11

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

5

In a September 24, 2009 report, Dr. Russell set forth findings on examination and
reviewed the medical record, including results of prior diagnostic testing. He noted that
appellant sustained a nonwork-related slip and fall on ice in January 2002 which caused a low
back injury and a nonwork-related bike accident at her home on September 6, 2002. On
examination Dr. Russell found that appellant had normal motion in her right shoulder. He noted
that the left shoulder had lost some range of motion which he attributed to the previously
accepted June 9, 1998 incident. Dr. Russell reviewed diagnostic testing of the cervical spine and
noted that appellant had degenerative disc disease associated with genetics and the natural aging
process. Regarding her back, neck, upper back and knees, he opined that these occurred
following the fall from her bicycle on September 6, 2002, which was not job related. Dr. Russell
explained that the presence of a lumbar strain which was more than six months old would not
have any relation to the injuries to appellant’s back, knees or neck. He advised that she had
continued chondromalacia and degenerative changes with her knees and spines, and would
continue to have pain in her neck, her upper and lower back, as well as in her hips and knees.
However, Dr. Russell explained that this was due to activities of daily living and normal motion
and would not be due to her employment-related injuries. He found no basis on which to
attribute the claimed neck, thoracic and right shoulder conditions to appellant’s employment
injuries.
The Board finds that the report of Dr. Russell is well rationalized and based upon a
proper factual background such that it is entitled to special weight. The Office properly relied on
his medical opinion to find that appellant’s neck, thoracic and right shoulder conditions were not
due to her employment-related injuries.
On appeal, appellant noted that the Office medical adviser stated that there was a causal
relationship between her bilateral knee condition and her accepted low back conditions. The
Board notes that these conditions are accepted. As noted, appellant has not met her burden of
proof to establish that the neck, thoracic and right shoulder conditions are a consequence of her
accepted conditions.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her claim
should be expanded to include a consequential neck, thoracic and right shoulder condition.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 8, 2009 is affirmed.
Issued: October 5, 2010
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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