United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Swedesboro, NJ, Employer
__________________________________________

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

Docket No. 15-0599
Issued: June 7, 2016

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 January 26, 2015 appellant, through counsel, filed a timely appeal from a
November 5, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective March 27, 2014 as she no longer had any residual disability causally
related to her accepted employment-related injury.
FACTUAL HISTORY
On February 4, 2004 appellant, then a 30-year-old mail processing clerk, filed an
occupational disease claim alleging that the repetitive routine of her position caused or
1

5 U.S.C. § 8101 et seq.

aggravated her right lateral epicondylitis and medial epicondylitis conditions. OWCP initially
accepted the condition of lateral epicondylitis and later expanded the claim to include the
conditions of brachial plexus right arm, right radial nerve lesion, right brachial neuritis or
radiculitis, right styloid tenosynovitis, and other lesion of right median nerve.2
Appellant filed a separate claim (claim number xxxxxx811) which was accepted for right
lateral epicondylitis.3 She returned to work with limitations but stopped all work on June 12,
2006 and did not return. OWCP retained appellant on the periodic compensation rolls.
Appellant was initially treated by Dr. Nadine Rosenthal, a Board-certified internist, and
Dr. Thomas Stackhouse, a Board-certified orthopedic surgeon, for lateral epicondylitis and radial
tunnel syndrome of the right arm. Later in 2005 she came under the care of Dr. Scott Fried, a
Board-certified orthopedic surgeon, for right forearm lateral epicondylitis with radial tunnel,
repetitive right strain injury with flexor tenosynovitis, right medial neuropathy, and probable
proximal early radiculitis. Appellant also received injections from Dr. Steven M. Rosen, a
Board-certified anesthesiologist.
Appellant continued to treat with Dr. Fried and he continued to opine that appellant had
residuals of her accepted work-related conditions.
On February 2, 2010 appellant was referred to Dr. Franklin Draper, Jr., a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated March 4, 2010,
Dr. Draper reviewed her examination findings and concluded that her work-related conditions
had improved, but had not resolved. He concluded that appellant could work part time, with
restrictions. In a supplemental report dated July 14, 2010, Dr. Draper related that he had
reviewed additional evidence, including a March 18, 2010 functional capacity evaluation, and
DVD video surveillance of appellant from March 28 through April 10, 2009. He concluded that,
based upon his review of all of the evidence, she could work eight hours a day with restrictions
regarding repetitive use of the upper extremities.
OWCP found a conflict in medical evidence between Dr. Fried and Dr. Draper with
regard to whether she had continuing disability due to her accepted conditions.
By letter dated August 2, 2010, appellant was referred to Dr. David A. Bundens, a Boardcertified orthopedic surgeon, for an impartial medical examination. Counsel for appellant, by
letter dated August 11, 2010, requested a copy of the statement of accepted facts (SOAF) and a
copy of the referral letter to the physician, as well as the medical report. In a report dated
August 17, 2010, Dr. Bundens stated that he had conducted a physical examination and had
reviewed her extensive medical records, as well as the surveillance video. He concluded that

2

OWCP paid medical and wage-loss compensation benefits, including authorization for a right radial nerve
decompression on April 10, 2007 and anterior submuscular transposition of the right ulnar nerve on May 10, 2011,
right C7 and C8 transforaminal injections on August 7, 2012, right C6 and C7 transforaminal injections on
September 4, 2012, and right stellate ganglion injection on October 16, 2012.
3

This claim was combined under the current claim with the current claim as the master file.

2

appellant could work full time, with restrictions. Dr. Bundens also concluded that proposed right
cubital tunnel surgery was reasonable and work related.
By letter dated September 13, 2010, OWCP provided counsel a copy of Dr. Bundens’
report, along with the SOAF.
Following her May 10, 2011 right ulnar nerve transposition surgery, appellant underwent
a functional capacity evaluation on June 11, 2012. In a report dated July 16, 2012, Dr. Fried
related that he had reviewed the functional capacity evaluation and noted significantly increased
symptoms with repetitive upper extremity activity. Therefore he recommended permanent job
restrictions and retraining for a new occupation.
On July 19, 2012 OWCP referred appellant to Dr. Stanley Askin, a Board-certified
orthopedic surgeon, acting as a second opinion examiner for OWCP. In his August 3, 2012
report, Dr. Askin noted the history of injury and appellant’s treatment, listed his findings on
examination and concluded that the accepted conditions were no longer active or causing her
current symptoms. He diagnosed carpal tunnel syndrome which he opined was not causally
related to her employment as she had not worked in six years. Dr. Askin opined that appellant
could work her date-of-injury position with no limitations even with her nonindustrial carpal
tunnel syndrome. In a supplemental report of September 27, 2012, he elaborated on his opinion
that there was no causal relationship between appellant’s carpal tunnel syndrome and her work
duties or the accepted work-related conditions. Dr. Askin stated that carpal tunnel syndrome was
the most common peripheral neuropathy and was fairly endemic around the middle aged,
especially females. He advised that this condition occurred secondary to thickening of the
membranes surrounding the flexor tendon, which compresses the median nerve. Dr. Askin noted
that appellant’s pathological studies had not documented inflammation which should be present
if this was an overuse type of condition. He again noted that she had not worked for a significant
block of time and this supported the finding that her carpal tunnel syndrome was not work
related.
In an investigative report of November 5, 2012, the employing establishment’s Office of
Inspector General noted that appellant had been under surveillance from April 20 to
December 26, 2009 and from December 26, 2011 to October 19, 2012 and reported on its
findings. It verified that appellant had been performing various activities using both upper
extremities.
Dr. Fried continued to support that appellant had residuals of the upper extremity
conditions which prevented her from returning to her regular job.
Appellant was advised of a referral to Dr. Askin for another second opinion examination.
Counsel requested, by letter dated February 12, 2013, a copy of the SOAF and a copy of the
report.
In a February 15, 2013 report, Dr. Askin reevaluated appellant and reviewed the
surveillance videotapes of appellant’s activities. He discussed his findings on examination and
concluded that there was no diagnosis of a condition at the present time related to the accepted
work-related injury. Dr. Askin opined that appellant could return to work in her regular position

3

with no restrictions and completed a work capacity evaluation indicating such. He continued to
opine that she had no work-related residuals and the bilateral carpal tunnel condition was
nonindustrial.
By letter dated February 20, 2013, counsel was provided a copy of the SOAF and the
questions asked of Dr. Askin.
OWCP continued to receive reports from Dr. Fried and Dr. Rosen, which opined that
appellant’s conditions were work related.
Following a March 5, 2013 notice of proposed termination, OWCP received additional
reports from Dr. Rosen opining that appellant’s condition was work related. On March 18, 2013
appellant’s counsel advised OWCP that it had not yet received a copy of Dr. Askin’s
February 15, 2013 report. By letter dated April 5, 2013 a copy of the record was provided to
counsel by OWCP.
By decision dated April 8, 2013, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that day, finding that the weight of the medical opinion evidence
rested with Dr. Askin’s opinion that appellant no longer had residuals of the accepted workrelated conditions.
On July 25, 2013 the employing establishment advised that appellant had been removed
from his employment for improper conduct based on their investigation. Appellant had admitted
to misrepresenting her condition by omitting pertinent information to her physicians.
Appellant requested a hearing before an OWCP hearing representative, which was held
by video on August 22, 2013. She disputed the termination of benefits explaining that she
continued to have residuals of the accepted work injury. During the hearing, the surveillance
video was discussed and appellant testified that she had looked at the investigative video and the
report. She contended that the video showed her lifting most often with her left hand, not her
injured right hand. Appellant acknowledged that she could have been carrying a bag of bananas
with her right hand. She believed that much of the video evidence misrepresented the truth.
Several medical reports were received from Dr. Fried and Dr. Rosen discussing
appellant’s limitations and although they believed she continued to have residuals of the
accepted conditions, they acknowledged that she could work with restrictions. In an April 8,
2013 report, Dr. Rosen discussed appellant’s treatment since July 17, 2012. He opined that she
continued to have a brachial plexus injury, which was a repetitive nerve injury, and noted
examination findings of pain and tenderness with no motor or sensory changes and normal
reflexes. Dr. Rosen stated that, while appellant was capable of performing activities of daily
living, those activities would increase her symptoms.
In a March 19, 2013 report, Dr. Fried diagnosed flexor tenosynovitis right, flexor
tenosynovitis left, carpal tunnel median neuropathy (repetitive strain injury), bilateral upper
extremities, right radial neuropathy, brachial plexopathy/cervical radiculopathy, bilateral carpal
tunnel median neuropathy which he opined were secondary to work activities. He opined that
appellant remained symptomatic from those work injuries and could not return to her previous
level of activity or work duties.
4

In a May 7, 2013 report, Dr. Rosen indicated that appellant had persistent neck, shoulder
and arm pain and noted examination findings. He opined that she suffered from a brachial
plexus injury and was symptomatic. In an October 17, 2013 report, Dr. Fried noted positive
findings on examination, which included positive Phalen’s and Tinel's testing, spasms in the
upper trapezius area bilaterally, and positive Roos and Hunter tests. He opined that appellant
continued to have residuals of the accepted conditions but that she could work with
modifications.
By decision dated November 12, 2013, an OWCP hearing representative affirmed the
April 8, 2013 termination decision as it was correct at the time it was issued. It found, however,
that, following the decision, additional medical evidence was received from Dr. Fried which
listed objective findings on examination, including positive Tinel’s of the ulnar nerve of the right
elbow, spasms, and positive Roos and Hunter testing at the elbow for thoracic outlet or brachial
plexus injury, which created a conflict in medical opinion with Dr. Askin as to whether appellant
continued to have residuals of the accepted work-related condition. The hearing representative
directed that an updated SOAF be prepared which listed the physical requirements of appellant’s
date-of-injury position, as well as a list of the accepted conditions. This SOAF was to be
provided to an impartial medical specialist with a copy of the entire file, including the video
surveillance evidence for review and comment.
OWCP referred appellant, along with a December 3, 2013 statement of accepted facts,
list of questions, and the medical record, to Dr. Gregory S. Maslow, a Board-certified orthopedic
surgeon, for an impartial medical evaluation. On January 7, 2013 appellant’s counsel requested
proof that Dr. Maslow had been properly selected, a copy of the SOAF and the letter to the
physician, as well as a copy of the report.
In a February 10, 2014 report, Dr. Maslow noted the history of injury, his review of the
statement of accepted facts, and appellant’s medical record. He then set forth examination
findings. Dr. Maslow found no palpable or visible cervical neck muscular spasm. In looking for
radicular signs and symptoms, he did a vertex compression test which did not show evidence of
abnormality. In evaluating thoracic outlet syndrome signs or symptoms, Dr. Maslow did an
overhead exercise testing and found it negative on left and right sides. The Adson’s maneuver
was also negative left and right. Dr. Maslow was unable to find tenderness in either the
supraclavicular or infraclavicular region at either shoulder. The shoulder girdle examination was
normal on left side, but the right shoulder showed tenderness both in the supraclavicular and
infraclavicular regions, but no Tinel’s over the brachial plexus. There was full range of motion
in all planes at the shoulder with no bony shoulder girdle tenderness and no shoulder instability
or crepitus. There was also negative O’Brien testing. Dr. Maslow noted excellent strength
testing of the cuff with no biceps tendinopathy or impingement. Appellant had full shrug
strength testing with no atrophy, spasm or droop in the musculature. The left upper extremity
examination had normal elbow examination with full supination/pronation. On the right side, the
elbow examination showed well-healed scars with no tenderness over the scars and full range of
motion with no instability, crepitus, synovitis, or tenderness over either the medial or lateral
epicondyle or over the olecranon region or at the radiocapitellar joint. There was full
supination/pronation without pain complaint.

5

Regarding the alleged carpal tunnel syndrome, Dr. Maslow found that the wrist showed
full range of motion in all planes bilaterally with no synovitis at either wrists or tendinitis or
synovitis. There was also no crepitus, no tenderness at the snuffbox, no tenderness at
de Quervain’s point, and no tenderness over the ulnar carpal articulation. Tendon function was
intact in both hands with normal color and temperature of the skin. A positive wrist compression
test was noted on the left side with positive Tinel’s at the right wrist and positive Phalen’s test.
A diminished pinch grip was noted on the right side with the rest of the examination normal.
Dr. Maslow concurred with Dr. Askin’s opinion that the bilateral carpal tunnel syndrome
apparent on his examination was not work related. He stated that appellant had not worked in
many years and there was no indication that the carpal tunnel syndrome would prohibit her
return to her previous employment and there was no evidence on examination that any of the
other diagnoses, which had been tendered by her physicians, were present or would interfere
with return to the previous employment.
Dr. Maslow opined that appellant was capable of full-duty, full-time work without
restrictions due to the accepted work-related conditions. He further opined that the carpal tunnel
syndrome was not causally related to work-related activities and would not prohibit her from
returning to employment. Dr. Maslow noted that his review of the surveillance tapes confirmed
his opinions.
On February 24, 2014 OWCP again proposed to terminate appellant’s wage-loss
compensation and medical benefits as there were no longer any residuals or continuing disability
from the accepted work-related medical conditions. Special weight was accorded to
Dr. Maslow’s impartial medical opinion. Appellant was afforded 30 days to submit additional
evidence or argument.
In response, appellant’s counsel argued Dr. Maslow’s report lacked sufficient detail to
establish resolution of the accepted conditions. He noted that Dr. Maslow failed to address
positive electrodiagnostic studies supporting the conditions.
In a March 6, 2014 letter to Dr. Maslow, OWCP noted that additional medical rationale
was needed to support his conclusions. It also asked him to identify the objective testing used
and to comment on the current diagnostic testing of record. In a March 13, 2014 addendum
report, Dr. Maslow noted that he had performed a neurologic examination of the upper
extremities which included specific testing for peripheral nerve impingement and entrapment,
namely Tinel’s and Phalen’s testing, as well as a strength testing examination. He stated that
there was normal strength testing, normal intrinsic function, and a normal sensory examination.
Dr. Maslow included the fact that there was no atrophy, which was an important factor in this
matter. He indicated that appellant’s range of motion at the elbows and wrists were normal and
provided measurements. Dr. Maslow stated that the only way to measure atrophy in the hand
was visualization at the thenar eminence and appellant had no atrophy in the interosseous or in
the thenar or hypothenar regions in either hand. He stated that, while appellant’s on-the-job
repetitive work may have caused carpal tunnel syndrome, she did not initially complain of it or
be judged by her physicians to have it. It was only after a prolonged period of time that a
diagnosis of carpal tunnel syndrome was made. Dr. Maslow opined that there was no evidence
that appellant suffered carpal tunnel syndrome at either extremity as a result of on-the-job
activity. He noted that her carpal tunnel syndrome was 70 percent idiopathic.

6

By decision dated March 27, 2014, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective March 27, 2014. Special weight was accorded to
Dr. Maslow’s reports.
On April 2, 2014 OWCP received appellant’s request for an oral hearing, which was held
on August 15, 2014. Appellant’s counsel presented arguments against Dr. Maslow’s opinion
carrying the weight of the evidence.
In a March 24, 2014 letter, Dr. Fried summarized examination findings of appellant over
the years of treatment. He last examined her on May 2, 2013. Dr. Fried reviewed Dr. Maslow’s
February 10, 2014 report and noted his disagreement, arguing that both clinical and diagnostic
evidence supported the continuance of every accepted condition and that she was capable of
sedentary, nonrepetitive type of work. In forming his opinions, Dr. Fried noted that he had not
seen any surveillance videos of appellant and that he relied upon her representations of the
evidence.
By decision dated November 5, 2014, an OWCP hearing representative affirmed
OWCP’s March 27, 2014 decision finding that appellant no longer had any residuals of the
accepted work-related conditions.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
her employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.4 OWCP’s burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.5 Furthermore, the right to medical benefits for an accepted
condition is not limited to the period of entitlement for disability. To terminate authorization for
medical treatment, OWCP must establish that a claimant no longer has residuals of an
employment-related condition that requires further medical treatment.6
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.7 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior

4

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

5

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

6

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

7

5 U.S.C. § 8123(a).

7

connection with the case.8 In situations where there exist opposing medical reports of virtually
equal weight and rationale and the case is referred to an impartial medical specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.9
ANALYSIS
OWCP accepted that appellant sustained right lateral epicondylitis, right brachial plexus
injury, right radial nerve lesion, right median nerve lesion and right styloid tenosynovitis as a
result of her employment and paid benefits, including surgical procedures of April 10, 2007 and
May 10, 2011. Appellant stopped work on June 12, 2006 and was eventually retained on
OWCP’s periodic compensation rolls. OWCP terminated her wage-loss compensation and
medical benefits on March 27, 2014 based on the reports of Dr. Maslow, the impartial medical
specialist. By decision dated November 5, 2014, an OWCP hearing representative affirmed
OWCP’s March 27, 2014 termination decision. The Board finds that OWCP met its burden of
proof.
OWCP properly referred appellant to Dr. Maslow for an impartial medical examination
to resolve the conflict in medical opinion evidence, pursuant to 5 U.S.C. § 8123(a). In reports
dated August 3 and September 27, 2012, and February 15, 2013, Dr. Askin, an OWCP second
opinion physician, opined that the accepted conditions were no longer active or disabling. He
found no objective findings on examination to support residuals of the accepted work-related
conditions and the activities demonstrated during video surveillance negated continued residuals.
Dr. Askin further diagnosed bilateral carpal tunnel syndrome which he opined was not causally
related to either her work duties or the accepted work-related conditions. He indicated that
appellant could return to work with no restrictions.
In his October 17, 2013 report, Dr. Fried, appellant’s treating physician, noted positive
findings on examination, which included positive Phalen’s and Tinel’s testing, spasms in the
upper trapezius area bilaterally, and positive Roos and Hunter tests. He opined that appellant
continued to have residuals of the accepted conditions and concluded that she could work with
modifications. Dr. Fried’s opinion was of sufficient probative value to create a conflict with
Dr. Askin’s opinion. While Dr. Rosen also submitted reports, his reports lacked detailed
examination findings or an opinion on causation.
The Board finds that OWCP met its burden of proof to terminate appellant’s medical and
wage-loss compensation benefits based on the February 10 and March 13, 2014 reports of
Dr. Maslow, who accurately summarized her medical history, reviewed an updated statement of
accepted facts, viewed the surveillance video, and examined appellant finding no objective
evidence to support ongoing employment-related residuals or disability due to the accepted
conditions of right lateral epicondylitis, right brachial plexus injury, right radial nerve lesion,
right median nerve lesion and right styloid tenosynovitis.

8

20 C.F.R. § 10.321.

9

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

8

In his February 10, 2014 report, Dr. Maslow conducted a neurologic examination of the
upper extremities, which was essentially normal with no findings of atrophy. He concurred with
Dr. Askin’s opinion that the bilateral carpal tunnel syndrome apparent on his examination was
not work related. Dr. Maslow stated that appellant had not worked in many years and there was
no indication that the carpal tunnel syndrome would prohibit her return to her previous
employment. There was also no evidence on examination that any of the other diagnoses were
present or would interfere with return to the previous employment. Dr. Maslow opined that
appellant was capable of full duty, full-time work without restrictions imposed by the previously
accepted work-related diagnoses. A review of the surveillance tapes confirmed his opinions.
In his March 13, 2014 addendum report, Dr. Maslow explained that he had performed a
neurologic examination of the upper extremities and included specific testing for peripheral
nerve impingement and entrapment, including Tinel’s and Phalen’s testing, along with strength
testing examination. He stated that there was no atrophy, which is an important factor in this
case, and there was normal strength testing, normal intrinsic function and a normal sensory
examination. Dr. Maslow noted range of motion was normal, and provided findings at the
elbows and wrists. He indicated that the only way to measure atrophy in the hand was
visualization at the thenar eminence and appellant had no atrophy in the interosseous or in the
thenar or hypothenar regions in either hand.
Dr. Maslow stated that there was no evidence that she suffered carpal tunnel syndrome at
either extremity as a result of on-the-job activity. He concluded that the carpal tunnel syndrome
was not causally related to work-related activities and would not prohibit her from returning to
employment.
The Board finds that Dr. Maslow’s reports are well rationalized and based on a complete
and accurate history, a complete statement of accepted facts and the entire case record, including
surveillance videos. Dr. Maslow examined appellant thoroughly, reviewed the medical records,
and reported accurate medical and employment histories and reviewed the surveillance video of
appellant. Thus, his opinion that the accepted conditions have resolved without residuals is
entitled to special weight.10
The additional medical evidence submitted in response to Dr. Maslow’s report is
insufficient to overcome the weight accorded to him as an impartial medical specialist regarding
this issue. While Dr. Fried submitted a March 24, 2014 report arguing that the clinical and
diagnostic evidence supported the continuance of every allowed condition and that the bilateral
carpal tunnel condition was casually related to appellant’s work duties, he had been on one side
of the conflict in medical opinion regarding whether there were any residuals of the employmentrelated conditions and whether they were disabling. Reports from a physician who was on one
side of a medical conflict that an impartial medical specialist resolved, are generally insufficient
to overcome the weight accorded to the opinion of the impartial physician or to create a new
conflict.11

10

See Bryan O. Crane, 56 ECAB 713 (2005).

11

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

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Regarding the request to expand the claim to accept the recently diagnosed bilateral
carpal tunnel syndrome, Dr. Fried did not provide the necessary medical rationale to accept that
this condition was causally related to appellant’s work duties. A mere conclusion without the
necessary medical rationale to explain how and why the physician believes that appellant’s
accepted exposure could result in a diagnosed condition is not sufficient to meet her burden of
proof. The medical evidence must also include rationale explaining how the physician reached
the conclusion he or she is supporting, which Dr. Fried failed to do.12 OWCP has not accepted a
bilateral carpal tunnel condition and appellant bears the burden of proof to establish that the
condition is causally related to specified conditions of employment. Causal relationship is a
medical issue and the medical evidence required to establish a causal relationship is rationalized
medical evidence.13 Dr. Fried has not explained how, physiologically, appellant would have
sustained carpal tunnel syndrome, from the work activities she ceased years ago. Accordingly,
his report is insufficient to cause a new conflict with Dr. Maslow.
Therefore, the Board finds that OWCP properly terminated appellant’s wage-loss and
medical compensation benefits effective March 27, 2014, as the weight of the competent medical
evidence established that the accepted conditions of right lateral epicondylitis, right brachial
plexus injury, right radial nerve lesion, right median nerve lesion, and right styloid tenosynovitis
had resolved without residuals.
On appeal, counsel contends that Dr. Maslow’s reports are insufficiently rationalized and
not based upon proper examination to be entitled to special weight. For the reasons enunciated
above, Dr. Maslow’s reports are entitled to special weight in this case.
Appellant may submit evidence or argument with a written request for reconsideration
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 OWCP met its burden of proof to terminate appellant’s
compensation benefits effective March 27, 2014 as she no longer had any residual disability
causally related to her accepted January 15, 2004 employment-related injuries.

12

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).
13

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the November 5, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 7, 2016
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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, Kingsville, TX, Employer
__________________________________________

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

Docket No. 07-640
Issued: July 24, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 5, 2007 appellant timely appealed the October 18, 2006 nonmerit decision
and the June 2, 2006 merit decision of the Office of Workers’ Compensation Programs.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.2

1

The Office determined appellant’s wage-earning capacity in the June 2, 2006 decision and later denied
reconsideration of that decision on October 18, 2006.
2

The record on appeal contains evidence that was received after the Office issued its October 18, 2006 decision.
The Board may not consider evidence that was not in the case record when the Office rendered its final decision.
20 C.F.R. § 501.2 (2007). The record also includes an April 24, 2006 final decision regarding a $2,964.00
overpayment, which falls within one year of the date of filing of the current appeal. However, the Board notes that
appellant did not challenge the Office’s March 21, 2006 preliminary determination regarding this overpayment, nor
has appellant specifically challenged the final overpayment decision in his January 5, 2007 appeal. Consequently,
the Board will not exercise jurisdiction over the April 24, 2006 overpayment decision.

ISSUES
The issues are: (1) whether the selected position of dispatcher, maintenance clerk,
represents appellant’s wage-earning capacity; and (2) whether appellant established a basis for
modification of the Office’s June 2, 2006 wage-earning capacity determination.
FACTUAL HISTORY
Appellant, a 48-year-old firefighter, injured his lower back while in the performance of
duty on October 2, 1999. The Office initially accepted the claim for lumbar sprain, but later
expanded the claim to include herniated nucleus pulposus at L4-5, L5-S1 and right knee internal
derangement. Appellant returned to work on April 27, 2000. He worked part-time, limited duty
until May 21, 2000, when he stopped work entirely. The Office returned appellant to the
periodic compensation rolls effective August 13, 2000.
In a report dated January 11, 2005, appellant’s treating physician, Dr. Ernesto H. Guido, a
Board-certified neurologist, diagnosed lumbosacral degenerative disc disease and post-traumatic
lumbosacral radiculitis, particularly involving the left lower extremity. He also diagnosed posttraumatic right knee pain with degenerative changes. Dr. Guido advised that appellant was
unable to resume his prior duties as a firefighter, but was capable of performing light to moderate
work. Appellant could lift 15 pounds frequently and lift 25 pounds occasionally. Dr. Guido
anticipated an initial return to work at four hours a day, five days a week, with a potential
gradual increase in work hours. Appellant was to avoid working on uneven ground, and avoid
kneeling and squatting. Dr. Guido stated that appellant could occasionally bend and twist, but
could not climb stairs. He also noted that appellant could use his feet for limited operation of
foot controls, as long as it did not require repetitive high force. Dr. Guido further stated that
appellant needed to be able to change his body posture while seated and alternate between
standing and sitting, depending on which position was more comfortable.
In May 2005, the Office referred appellant to vocational rehabilitation, where a plan was
devised to facilitate his return to gainful employment as a dispatcher, cashier/clerk, night
watchman/guard, order clerk or telephone clerk. On June 27, 2005 appellant began working part
time at Buck’s Grocery & Meat Market as a cashier/clerk, earning $5.15 per hour.3
On February 14, 2006 the Office adjusted appellant’s wage-loss compensation based on
his weekly earnings of $103.00 as a clerk beginning June 27, 2005.
Dr. Walter A. Del Gallo, a Board-certified orthopedic surgeon and Office referral
physician, examined appellant on March 30, 2006. He found that appellant was incapable of
performing his prior duties as a firefighter, but was able to work part time in a limited-duty
capacity. Dr. Del Gallo imposed permanent restrictions of four hours of work per day.
Appellant was limited to two hours each of sitting, standing, walking, reaching and reaching
above the shoulder. He could also push and pull up to two hours a day, with a 10-pound weight
restriction. Appellant was able to lift for one hour each day, with a 20-pound restriction. Also,
3

Appellant found the position through his own personal contacts.

2

Dr. Del Gallo precluded squatting, kneeling, climbing, twisting, bending, stooping or operating a
motor vehicle at work.
The grocery store where appellant had been working for approximately nine months
closed on April 14, 2006, and thus, he was no longer employed.
In a decision dated June 2, 2006, the Office found that the selected position of dispatcher,
maintenance clerk, with part-time weekly wages of $165.00, was both medically and
vocationally suitable and represented appellant’s wage-earning capacity.4 Accordingly, the
Office adjusted appellant’s wage-loss compensation taking into account his ability to earn wages
as a dispatcher, maintenance clerk.
On October 4, 2006 appellant requested reconsideration. He submitted additional
medical records from Dr. Guido, including a June 29, 2006 permanent impairment rating. The
report briefly addressed appellant’s work status, noting that he was unable to return to his former
work as a firefighter. Dr. Guido also commented that, while appellant previously performed
some limited work activities, “most recently he had been unable to do any part-time work.” He
noted that appellant reported significant limitations in his activities of daily living due to
persistent ongoing pain and limited capacity for ambulation. Dr. Guido referred appellant to
Dr. Ryan N. Potter, a Board-certified anesthesiologist specializing in pain management.
Dr. Potter subsequently administered a series of lumbar epidural steroid injections.
By decision dated October 18, 2006, the Office denied appellant’s October 4, 2006
request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5
An injured employee who is either unable to return to the position held at the time of
injury or unable to earn equivalent wages, but who is not totally disabled for all gainful
employment, is entitled to compensation computed on loss of wage-earning capacity.6 Under
section 8115(a) of the Federal Employees’ Compensation Act, wage-earning capacity is
determined by the actual wages received by an employee if the earnings fairly and reasonably
represent his or her wage-earning capacity. If the actual earnings do not fairly and reasonably
represent the employee’s wage-earning capacity or if the employee has no actual wages, the
wage-earning capacity is determined with due regard to the nature of the injury, the degree of
physical impairment, the employee’s usual employment, age, qualifications for other
4

The Office previously issued a notice of proposed reduction of compensation on April 20, 2006.

5

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

6

20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

3

employment, the availability of suitable employment and other factors and circumstances which
may affect wage-earning capacity in his or her disabled condition.7
The Office must initially determine appellant’s medical condition and work restrictions
before selecting an appropriate position that reflects appellant’s vocational wage-earning
capacity. The medical evidence the Office relies on must provide a detailed description of
appellant’s condition.8 Additionally, a wage-earning capacity determination must be based on a
reasonably current medical evaluation.9
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position listed in the Department of Labor’s Dictionary of Occupational Titles, or
otherwise available in the open labor market, that fits the employee’s capabilities with regard to
his or her physical limitations, education, age and prior experience. Once this selection is made,
a determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in the Shadrick decision will result in the percentage of the employee’s loss
of wage-earning capacity.10
ANALYSIS -- ISSUE 1
The Board finds that the selected position of dispatcher, maintenance clerk is both
medically and vocationally suitable and represents appellant’s wage-earning capacity. The
position is sedentary in nature and involves receiving telephone and written orders from plant
departments for maintenance service, such as repair work, machine adjustments and renewals or
installation of other plant property. The information is then relayed to the appropriate
maintenance division. Additional responsibilities include recordkeeping and requisitioning
supplies for maintenance and clerical workers. Appellant would be expected to exert force to 10
pounds occasionally. The position also requires applying a negligible amount of force frequently
to lift, carry, push, pull or move objects. There is no climbing, balancing, stooping, kneeling,
crouching or crawling required. The physical requirements of the position are in keeping with
the limitations identified by Dr. Guido and Dr. Del Gallo on January 11, 2005 and March 30,
2006, respectively. The dispatcher, maintenance clerk position is identified as semi-skilled,
requiring 30 days to 3 months of specific vocational preparation. Appellant satisfied this criteria
based on his educational background and prior work experience. The record also indicates that
the position is being performed on both a part-time and full-time basis in appellant’s local labor
market so as to make it reasonably available.
The full-time weekly salary for a dispatcher, maintenance clerk ranges from $330.00 to
$770.00. The Office based its salary determination on the lowest weekly full-time rate
7

5 U.S.C. § 8115(a) (2000); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

8

Samuel J. Russo, 28 ECAB 43 (1976).

9

Carl C. Green, Jr., 47 ECAB 737, 746 (1996).

10

Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403(d).

4

identified, $330.00, and divided that amount in half to find appellant capable of earning $165.00
per week. The Board finds that the Office properly adjusted appellant’s wage-loss compensation
effective June 2, 2006 to reflect his ability to earn part-time wages as a dispatcher, maintenance
clerk.
LEGAL PRECEDENT -- ISSUE 2
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was erroneous.11 The burden of proof is on the party
seeking modification of the wage-earning capacity determination.12
ANALYSIS -- ISSUE 2
Although the Office’s October 18, 2006 decision did not reference any applicable
regulations, the wording of the decision indicates that the Office applied an incorrect legal
standard in evaluating appellant’s October 4, 2006 request for reconsideration.13 The Office
found that the medical evidence submitted did not specifically address appellant’s “ability or
inability to perform work….” However, Dr. Guido indicated in his June 29, 2006 report that
appellant previously performed some limited work activities, but “most recently he had been
unable to do any part-time work.” Because this information is relevant to the issue of whether
there is a material change in the nature and extent of appellant’s injury-related condition, the case
is remanded to the Office to apply the correct legal standard for determining whether
modification of the June 2, 2006 wage-earning capacity determination is warranted.
CONCLUSION
The Office properly determined that the selected position of dispatcher, maintenance
clerk represented appellant’s wage-earning capacity as of June 2, 2006. The Office, however,
failed to properly adjudicated appellant’s October 4, 2006 request for modification of the June 2,
2006 wage-earning capacity determination.

11

Tamra McCauley, 51 ECAB 375, 377 (2000).

12

Id.

13

The Office’s reference to a “one year” time limitation and appellant’s failure to raise “substantive legal
questions” or submit “new and relevant evidence” strongly suggests that the Office applied the standard for
reconsideration set forth under 20 C.F.R. §§ 10.606, 10.607 and 10.608.

5

ORDER
IT IS HEREBY ORDERED THAT the June 2, 2006 decision of the Office of Workers’
Compensation Programs is affirmed. The October 18, 2006 decision denying reconsideration is
set aside and the case is remanded to the Office for further action consistent with this decision.
Issued: July 24, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Las Vegas, NV, Employer
__________________________________________

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Appearances:
Lonnie L. Boylan, for the appellant
Office of Solicitor, for the Director

Docket No. 15-256
Issued: April 16, 2015

Case Submitted on the Record

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

JURISDICTION
On November 13, 2014 appellant, through his representative, filed a timely appeal from
an August 29, 2014 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 met his burden of proof to establish that his left shoulder,
thoracic, and cervical conditions were causally related to a September 6, 2012 employment
incident, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the August 29, 2014 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).

On appeal, appellant’s representative contended that the medical evidence submitted was
sufficient to establish causal relationship.
FACTUAL HISTORY
On February 12, 2013 appellant, a 27-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that he injured his left shoulder in September 2012 as a result
of lifting parcels into designated locations.
In a report dated February 13, 2013, Dr. Sushil Prabakaran, an attending physician,
diagnosed left shoulder, thoracic, and cervical strains and indicated that appellant was injured
due to lifting parcels and pitching them into their designated containers at work. He restricted
appellant from lifting, pushing, or pulling over 10 pounds and reaching above the shoulders.
In a February 28, 2013 letter, OWCP notified appellant of the deficiencies of his claim
and afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a November 15, 2012 report from Ruth Ramirez, a nurse
practitioner, who reported that he worked at the employing establishment moving packages up to
70 pounds and complained of back, shoulder, and neck pain for the past two months.
Ms. Ramirez diagnosed backache, left shoulder pain, and cervicalgia. Appellant also submitted
physical therapy notes dated February 15 through 25, 2013.3
In reports dated February 21 through March 19, 2013, Dr. Christopher Fisher, a Boardcertified physiatrist, diagnosed left shoulder pain. Appellant reported that he was lifting parcels
at the employing establishment and had an “onset of his current left shoulder symptoms.”
Dr. Fisher diagnosed left subacromial bursitis and restricted appellant from lifting, pushing, and
pulling over 20 pounds.
On March 9, 2013 appellant accepted a limited-duty assignment as a modified manual
distribution clerk with restrictions.
By decision dated March 29, 2013, OWCP denied appellant’s claim on the basis that the
medical evidence was not sufficient to establish a causal relationship between his left shoulder,
thoracic, and cervical conditions and the September 6, 2012 employment incident.
On May 2, 2013 appellant, through his representative, requested reconsideration and
submitted reports dated April 2 and 19, 2013 from Dr. Fisher who reiterated his diagnoses and
opinions.
By decision dated August 2, 2013, OWCP denied modification of its prior decision.
On May 20, 2014 appellant, through his representative, requested reconsideration and
submitted a magnetic resonance imaging (MRI) scan of the left shoulder dated September 24,
3

Appellant also filed wage-loss compensation claims for the period February 13 through March 8, 2013. In a
March 21, 2013 letter, OWCP notified him that no action could be taken on these claims until his case had been
adjudicated.

2

2013, an October 30, 2013 x-ray of the cervical spine which revealed a mild anterior
compression deformity of C6, and a November 13, 2013 MRI scan of the cervical spine, which
showed a mild reversal of the normal cervical lordosis.
In reports dated September 11, 2013 through May 1, 2014, Dr. John Champlin, a Boardcertified family practitioner, reported that appellant had an approximately one-year history of left
shoulder pain and had a steroid injection and physical therapy without relief in symptoms. He
diagnosed left shoulder derangement, left shoulder muscle spasm, acquired deformity of the
cervical spine, and cervicalgia. On May 1, 2014 Dr. Champlin noted that appellant’s duties
required lifting and pitching postal parcels into designated containers, lifting up to 70 pounds,
carrying up to 45 pounds, and reaching over the shoulder. He opined that appellant’s conditions
were “undoubtedly and proximately caused by the traumatic forces involving lifting and pitching
the postal parcels, weighing 45 pounds to 70 pounds, during his occupational activities” on
September 6, 2012.
By decision dated August 29, 2014, OWCP denied modification of its prior decision
noting that the work factors seemed to have occurred over a period of time but that there was no
evidence that appellant filed or intended to file an occupational disease claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury5 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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. 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. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.7
4

Supra note 1.

5

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
6

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
7

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

3

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable 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.8
ANALYSIS
OWCP has accepted that the employment incident of September 6, 2012 occurred at the
time, place, and in the manner alleged. The issue is whether appellant’s left shoulder, thoracic,
and cervical conditions resulted from the September 6, 2012 employment incident. The Board
finds that he did not meet his burden of proof to establish a causal relationship between the
conditions for which compensation is claimed and the employment incident.
In his reports, Dr. Champlin indicated that appellant had an approximately one-year
history of left shoulder pain and diagnosed left shoulder derangement, left shoulder muscle
spasm, acquired deformity of the cervical spine, and cervicalgia. On May 1, 2014 he indicated
that appellant’s duties required lifting and pitching postal parcels into designated containers,
lifting up to 70 pounds, carrying up to 45 pounds, and reaching over the shoulder. Dr. Champlin
opined that appellant’s conditions were “undoubtedly and proximately caused by the traumatic
forces involving lifting and pitching the postal parcels, weighing 45 pounds to 70 pounds, during
his occupational activities” on September 6, 2012. He failed to provide a rationalized opinion
explaining how lifting and pitching the postal parcels at work on September 6, 2012 caused or
aggravated appellant’s conditions. Dr. Champlin noted that appellant’s conditions occurred
while he was at work, but such generalized statements do not establish causal relationship
because they merely repeat his allegations and are unsupported by adequate medical rationale
explaining how his physical activity at work actually caused or aggravated the diagnosed
conditions.9 Thus, the Board finds that the reports from Dr. Champlin are insufficient to
establish that appellant sustained an employment-related injury.
Similarly, in a report dated February 13, 2013, Dr. Prabakaran diagnosed left shoulder,
thoracic, and cervical strains and indicated that appellant was injured due to lifting parcels and
pitching them into their designated containers at work. The Board finds that Dr. Prabakaran
failed to provide a rationalized opinion explaining how lifting and pitching the postal parcels at
work on September 6, 2012 caused or aggravated appellant’s conditions. Dr. Prabakaran
indicated that appellant’s conditions occurred while he was at work, but, as noted above, such
generalized statements do not establish causal relationship because they merely repeat
appellant’s allegations and are unsupported by adequate medical rationale explaining how his
physical activity at work actually caused or aggravated the diagnosed conditions.10 Thus,
appellant has not met his burden of proof with this submission.
8

Id. See Gary J. Watling, 52 ECAB 278 (2001).

9

See K.W., Docket No. 10-98 (issued September 10, 2010).

10

Id.

4

In his reports, Dr. Fisher diagnosed left subacromial bursitis and indicated that appellant
was lifting parcels at the employing establishment and had an “onset of his current left shoulder
symptoms.” The Board finds that Dr. Fisher did not provide sufficient medical rationale
explaining how appellant’s left subacromial bursitis condition was caused or aggravated by
lifting and pitching the postal parcels at work on September 6, 2012. Thus, appellant failed to
meet his burden to establish a claim.
Appellant further submitted a November 15, 2012 report from a nurse practitioner,
physical therapy notes dated February 15 to 25, 2013, an October 30, 2013 x-ray, and MRI scans
dated September 24 and November 13, 2013. These documents do not constitute competent
medical evidence as they do not contain rationale by a physician relating appellant’s disability to
his employment.11 As such, the Board finds that appellant did not meet his burden of proof with
these submissions.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to a September 6, 2012 employment
incident, he has failed to meet his burden of proof to establish a claim for compensation.
On appeal, appellant’s representative contends that the medical evidence submitted is
sufficient to establish causal relationship. Based on the findings and reasons stated above, the
Board finds that the representative’s argument is not substantiated.
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 his burden of proof to establish that his left
shoulder, thoracic, and cervical conditions were causally related to a September 6, 2012
employment incident, as alleged.

11

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 16, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF THE NAVY, PICATINNY
ARSENAL, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1006
Issued: November 14, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 8, 2019 appellant, through counsel, filed a timely appeal from an October 30,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
causally related to his accepted March 30, 2017 employment incident.
FACTUAL HISTORY
On April 4, 2017 appellant, then a 68-year-old engineer, filed a traumatic injury claim
(Form CA-1) alleging that on March 30, 2017 he slipped and fell in the restroom during a power
outage as there was no emergency lighting at the employing establishment while in the
performance of duty. He alleged that he injured his back, leg, and hernia implants.
In April 3 and 5, 2017 notes, Dr. Anthony DePaola, an osteopath, reported appellant’s slip
and fall at work while in the restroom during a power outage and diagnosed pain and swelling of
the right lower leg, acute midline low back pain, and lower abdominal pain.
On April 6, 2017 appellant underwent a right lower extremity Venous Doppler which
demonstrated an abnormality in the popliteal vein, possibly a deep vein thrombosis (DVT).
In an April 18, 2017 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence from him and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
On April 19, 2017 appellant e-mailed the employing establishment and explained his health
status and the events of March 30, 2017. He noted that he had undergone back surgery, and had
experienced shingles from his left ear into his brain cavity such that his physician found him to be
a fall risk and, therefore, he was generally working from home with one or two days a week in the
office at the employing establishment. On March 30, 2017 around 2:30 or 3:00 p.m., there was a
power outage at the employing establishment while appellant was in the restroom. He alleged that
the restroom became a “black room” with no emergency lighting. Appellant rose from the toilet,
began to feel light-headed, slipped, landed back on the toilet, and used the handicap bars to pull
himself up. He then used his walking cane to feel his way out of the bathroom and saw light when
he reached the hall. Appellant then made his way to his desk and left for the day. He indicated
that he was experiencing pain in his stomach, legs, and back.
On April 19, 2017 Dr. DePaola diagnosed DVT and acute midline low back pain without
sciatica. He examined appellant on May 8, 2017 and diagnosed lumbar degenerative disc disease.
Dr. DePaola reported that, since appellant’s fall at work, his disc disease had been exacerbated
causing persistent back and right buttock pain. He noted that following appellant’s back surgery
he was pain free until the fall. Dr. DePaola diagnosed greater trochanteric bursitis and right wrist
sprain after falling at work.
In a May 10, 2017 attending physician report (Form CA-20) Dr. DePaola noted that
appellant slipped and fell while in the restroom during a power outage and diagnosed lumbar disc
disease exacerbation, severe trochanteric bursitis, and wrist pain. He indicated by checking a box
marked “yes” that appellant’s conditions were caused or aggravated by his employment activity
and noted that appellant fell off of a toilet and injured himself.

2

On May 10, 2017 appellant responded to OWCP’s development questionnaire. He
reiterated the history of the claimed March 30, 2017 employment incident noting that he was in a
restroom stall when the power failed. Appellant attempted to rise and dress in the dark, but slipped
on a slippery floor, fell back, and landed back on the toilet. He forced himself up by pulling on a
handicap bar and used his cane to feel his way from the restroom to his desk. Appellant alleged
reinjury to his back at his previous surgical site, right hip bursitis from landing on the toilet, as
well as right wrist and thumb pain from breaking his fall.
By decision dated May 19, 2017, OWCP accepted that the March 30, 2017 employment
incident occurred as alleged and that there was a diagnosed hernia condition. However, it denied
appellant’s claim finding that the medical evidence of record was insufficient to establish causal
relationship between his diagnosed conditions and the accepted March 30, 2017 employment
incident.
On June 15, 2017 appellant requested a review of the written record from an OWCP
hearing representative. He provided additional medical evidence including May 30, June 29, and
August 2, 2017 notes from Dr. DePaola repeating his previous diagnoses and conclusions.
In a May 31, 2017 note, Dr. Yevgeniy I. Khesin, a Board-certified neurologist, examined
appellant due to low back pain. He noted appellant’s history of injury on March 30, 2017 reporting
that appellant was sitting on the toilet when the lights went out. Appellant got up and lost his
balance falling backwards. He hurt his right hand trying to break his fall and injured his back by
hitting the edge of the toilet. Appellant was initially unable to get up from the floor. Dr. Khesin
reviewed appellant’s June 22, 2015 and April 29, 2017 lumbar magnetic resonance imaging scans
and found hardware from his 2015 lumbar surgery as well as herniated discs at L4-5 and L5-S1.
He diagnosed post-traumatic lumbar radiculopathy following the March 30, 2017 fall. Dr. Khesin
opined that appellant’s fall caused microtrauma in the area of the 2015 lumbar surgery and resulted
in exacerbation of pain.
On November 18, 2011 appellant underwent surgical repair of an incarcerated right
inguinal and scrotal hernia. On August 21, 2012 he underwent emergency repair of an incarcerated
left inguinal hernia. On July 14, 2015 appellant underwent an electromyogram (EMG) which
demonstrated bilateral L4-5 radiculopathy. On November 10, 2015 he underwent L3-4 and L4-5
interlaminar decompression and insertion of interspinous fixation device.
Appellant also provided additional factual statements addressing his accepted March 30,
2017 employment incident. He asserted that his injuries were reasonably and logistically related
to his employment incident.
By decision dated September 21, 2017, an OWCP hearing representative affirmed
OWCP’s May 19, 2017 decision finding that the medical evidence of record was insufficient to
establish appellant’s claim as it did not contain a rationalized physician’s opinion explaining how
his hernia was caused or aggravated by the accepted March 30, 2017 employment incident.
On February 21, 2018 appellant, through counsel, requested reconsideration of the
September 21, 2017 OWCP decision. In a note dated October 23, 2017, Dr. DePaola diagnosed
anxiety, low back pain, and hip pain.

3

On February 16, 2018 Dr. Richard N. Siegfried, Board-certified in anesthesiology and pain
management, reviewed appellant’s lumbar spine x-rays. He noted appellant’s history and
treatment of back pain since 2014. Dr. Siegfried reported that appellant was pain free for one year
following his 2015 spine surgery until his workplace fall. He concluded that appellant’s current
symptoms were causally related to his workplace accident. Dr. Siegfried noted that the fall from
standing height onto a hard surface could produce radicular pain from foraminal stenosis or facet
mediated pain in the lumbar levels. He found that appellant’s fall caused aggravation of his spinal
stenosis resulting in nerve root trauma or trauma to the lumbosacral facet joints. Dr. Siegfried
concluded that this was not the only potential cause for his pain, but was the “most likely.”
By decision dated May 21, 2018, OWCP denied modification of the September 21, 2017
decision, finding that appellant had not provided rationalized medical opinion evidence sufficient
to establish causal relationship between his diagnosed conditions and the accepted March 30, 2017
employment incident. It did not address Dr. Siegfried’s February 16, 2018 report.
On June 4, 2018 appellant, through counsel, requested reconsideration of the May 21, 2018
decision. In support counsel resubmitted Dr. Siegfried’s February 16, 2018 report.
By decision dated October 30, 2018, OWCP denied modification of the May 21, 2018
decision, finding that appellant had not provided rationalized medical opinion evidence sufficient
to establish causal relationship between his conditions and the accepted March 30, 2017
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish 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 FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 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.4 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.5
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. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
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).

4

time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.6
The evidence required to establish causal relationship is rationalized medical opinion
evidence, based upon complete factual and medical background, showing a causal relationship
between the claimed condition and the identified factors.7 The belief of the claimant that a
condition was caused or aggravated by the employment is insufficient to establish a causal
relationship.8
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, 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.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to his accepted March 30, 2017 employment incident.
In support of his claim, appellant submitted a February 16, 2018 report from Dr. Siegfried,
in which he concluded that appellant’s current symptoms are causally related to his workplace
accident. Dr. Siegfried opined that the fall from standing height onto a hard surface could produce
radicular pain from foraminal stenosis or facet mediated pain in the lumbar levels. He determined
that appellant’s fall caused aggravation of his spinal stenosis resulting in nerve root trauma or
trauma to the lumbosacral facet joints. Dr. Siegfried concluded that this was not the only potential
cause for his pain, but was the “most likely.” The Board finds that this opinion is speculative in
nature and that he did insufficiently explain how the accepted incident caused or aggravated the
diagnosed condition.10 Without explaining how, physiologically, the movements involved in the
employment incident caused or contributed to a diagnosed condition, Dr. Siegfried’s opinion is of
limited probative value and insufficient to establish causal relationship.11
Dr. Khesin noted appellant’s history of injury on March 30, 2017 and diagnosed posttraumatic lumbar radiculopathy following the March 30, 2017 fall. He opined that appellant’s fall
6

Id.

7

R.R., Docket No. 18-1093 (issued December 18, 2018); Lourdes Harris, 45 ECAB 545 (1994); see Walter D.
Morehead, 31 ECAB 188 (1979).
8
M.J., Docket No. 17-0725 (issued May 17, 2018); see also Lee R. Haywood, 48 ECAB 145 (1996); Kathryn
Haggerty, 45 ECAB 383, 389 (1994).
9

A.W., Docket No. 19-0327 (issued July 19, 2019); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 45 ECAB
345 (1989).
10

S.R., Docket No. 18-1295 (issued March 20, 2019); G.M., Docket No. 18-0989 (issued January 3, 2019).

11

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019).

5

caused microtrauma in the area of the 2015 lumbar surgery and resulted in exacerbation of pain.
Medical evidence that states a conclusion, but does not offer a rationalized medical explanation
regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.12 The need for rationalized medical opinion based on medical rationale is especially
important in this case as the evidence suggests that appellant had preexisting lumbar and hernia
conditions.13 As Dr. Khesin did not provide a rationalized medical opinion regarding causal
relationship, his report is of limited probative value.14
In a series of notes, Dr. DePaola diagnosed DVT, acute midline low back pain without
sciatica, lumbar degenerative disc disease, greater trochanteric bursitis and right wrist sprain. He
reported that, since appellant’s fall at work, appellant’s disc disease had been exacerbated causing
persistent back and right buttock pain. Dr. DePaola noted that following appellant’s back surgery
he was pain free until the fall. The fact that a condition manifests itself during a period of
employment is insufficient to establish causal relationship. Temporal relationship alone will not
suffice.15 Thus, the Board finds that this report is insufficient to meet appellant’s burden of proof.16
In a May 10, 2017 form report, Dr. DePaola noted that appellant slipped and fell while in
the restroom during a power outage and diagnosed lumbar disc disease exacerbation, severe
trochanteric bursitis, and wrist pain. He indicated by checking a box marked “yes” that appellant’s
conditions were caused or aggravated by his employment activity and noted that appellant fell off
of a toilet and injured himself. Appellant’s burden of proof includes the necessity of furnishing an
affirmative opinion from a physician who supports his or her conclusion with sound medical
reasoning.17 Dr. DePaola provided no rationale for his opinion on causal relationship. The Board
has held that when a physician’s opinion on causal relationship consists only of checking “yes” to
a form question, without more by the way of medical rationale, that opinion is of limited probative
value and is insufficient to establish causal relationship.18 As such, Dr. DePaola’s May 10, 2017
report is also insufficient to discharge appellant’s burden of proof.19
Dr. DePaola completed notes on April 3 and 5, 2017 reporting that appellant’s slip and fall
at work while in the restroom during a power outage and diagnosing pain. The Board has held
that the assessment of pain is not considered a diagnosis as it merely refers to symptoms of the
12

M.E., Docket No. 18-0940 (issued June 11, 2019).

13

M.E., id.; S.H., Docket No. 17-1447 (issued January 11, 2018).

14

M.E., id.; A.M., Docket No. 10-0205 (issued October 5, 2010) (a physician’s opinion must be independent from
a claimant’s belief regarding causal relationship).
15

S.S., Docket No. 19-0675 (issued August 22, 2019); M.H., Docket No. 18-1737 (issued March 13, 2019);
Daniel O. Vasquez, 57 ECAB 559 (2006).
16

S.S., id.

17

J.P., Docket No. 19-0702 (issued August 23, 2019); J.A., Docket No. 18-1586 (issued April 9, 2019); Lillian M.
Jones, 34 ECAB 379, 381 (1982).
18

Id.

19

Id.

6

underlying condition.20 As such, the Board finds that these notes are insufficient to establish
appellant’s claim.
OWCP also received a number of diagnostic studies. However, the Board has explained
that diagnostic studies lack probative value as they do not address whether the accepted
employment incident caused any of the diagnosed conditions.21
Causal relationship is a medical question that must be established by probative rationalized
medical opinion evidence from a physician.22 As appellant has not submitted such medical
evidence, the Board finds that he has not met his burden of proof.
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 his burden of proof to establish a traumatic
injury causally related to his accepted March 30, 2017 employment incident.

20

T.A., Docket No. 19-0289 (issued June 21, 2019); T.J., Docket No. 18-1500 (issued May 1, 2019); M.V., Docket
No. 18-0884 (issued December 28, 2018). The Board has consistently held that pain is a symptom, rather than a
compensable medical diagnosis. P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102
(issued October 10, 2008).
21

F.H., Docket No. 18-0160 (issued August 23, 2019); K.S., Docket No. 18-1781 (issued April 8, 2019); G.S.,
Docket No. 18-1696 (issued March 26, 2019).
22

S.S., supra note 15; T.K., Docket No. 18-1239 (issued May 29, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the October 30, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redondo Beach, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1052
Issued: September 4, 2014

Case Submitted on the Record

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

JURISDICTION
On April 3, 2014 appellant filed a timely appeal from the December 11, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has more than a one percent impairment of her left lower
extremity causally related to her accepted employment injury.

1
2

5 U.S.C. § 8101 et seq.

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). The Board therefore has no jurisdiction to review the January 30, 2014 medical report appellant submits
on appeal.

FACTUAL HISTORY
On April 29, 2008 appellant, a 39-year-old letter carrier, sustained a traumatic injury in
the performance of duty when she lifted a tray of mail into her postal truck. OWCP accepted her
claim for a lumbosacral ligament sprain and left groin strain/sprain.
In 2012, appellant filed a claim for a schedule award. Dr. Charles F. Xeller, the attending
Board-certified orthopedic surgeon, found that she was exquisitely tender in the left inguinal
canal with no discrete lump. Left hip flexion was painful but full. All other findings were
normal. “So, with regards to her hernia, apparently I consider that [appellant] has an inguinal
strain.” Clinical studies were normal; they did not show an inguinal hernia. Appellant had
occasional mild discomfort that did not preclude most activities of daily living. She did have
palpable pain and, at times, swelling.
Dr. Xeller diagnosed a left groin strain and left inguinal hernia. Using Table 6-10, page
122, of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(6th ed. 2009), under the chapter entitled “The Digestive System,” he evaluated a three percent
impairment of the whole person due to a left inguinal hernia.
In an addendum report, Dr. Xeller clarified that appellant had no frank herniation but a
rather significant inguinal strain with ongoing pain. Nonetheless, he reaffirmed that Table 6-10
of the A.M.A., Guides, relating to herniation, was the appropriate table for rating her
impairment.
An OWCP medical adviser reviewed Dr. Xeller’s impairment evaluation and
recommended that the accepted left inguinal strain be considered equivalent to a left hip strain
with palpatory findings, under Table 16-4, page 512 of the A.M.A., Guides. The default
impairment value for such a diagnosis was one percent of the lower extremity. The medical
adviser made no adjustment for functional history, a +1 adjustment for physical findings and a -1
adjustment for clinical studies, resulting in no net adjustment of the default impairment value.
On May 1, 2013 OWCP issued a schedule award for a one percent impairment of the left
lower extremity.
Dr. Xeller advised in a May 13, 2013 report that he did not know how OWCP’s medical
adviser arrived at a one percent impairment rating. He stood by his three percent rating of the
whole person for an inguinal hernia and noted that appellant found it hard to bend over and to
reach and twist due to her groin pain.
Appellant requested reconsideration.
OWCP’s medical adviser stood by his one percent rating in a September 27, 2013 report.
In a decision dated December 11, 2013, OWCP reviewed the merits of appellant’s claim
and denied an additional schedule award.

2

LEGAL PRECEDENT
The schedule award provision of FECA3 and the implementing regulations4 set forth the
number of weeks of compensation payable for the loss or loss of use, of scheduled members,
functions and organs of the body. FECA, however, does not specify the manner in which the
percentage of loss shall be determined. The method used to make such a determination is a
matter that rests within the sound discretion of OWCP.5
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. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.6 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.7
Diagnosis-based impairment is the primary method of evaluating the lower limb.
Impairment is determined first by identifying the relevant diagnosis, then by selecting the class
of the impairment (no objective problem, mild problem, moderate problem, severe problem, very
severe problem approaching total function loss) and finally by adjusting the default rating up or
down slightly for grade, which is based on modifiers or nonkey factors such as functional
history, physical examination and clinical studies.8
No schedule award is payable, however, for a member, function or organ of the body not
specified under FECA or in the regulations.9 Because neither FECA nor the regulations
authorize a schedule award for the permanent loss of use of the spine or back,10 no claimant is
entitled to such an award.11
ANALYSIS
OWCP accepted that appellant sustained a lumbosacral ligament sprain and a left groin
strain/sprain when she lifted a tray of mail into her postal truck on April 29, 2008. Appellant
later filed a claim for a schedule award. As such, the question is whether the accepted diagnoses
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

6

20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).
8

A.M.A., Guides 497.

9

William Edwin Muir, 27 ECAB 579 (1976).

10

FECA specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

11

E.g., Timothy J. McGuire, 34 ECAB 189 (1982).

3

caused any permanent impairment to a member or function or organ of the body as specified in
FECA or its implementing regulations.
The accepted lumbosacral ligament sprain is located in appellant’s lower spine or back.
As the Board noted, no schedule award is payable for the permanent loss of use of the spine or
back because neither is a specified member, function or organ of the body. No claimant may
receive such an award. Further, Dr. Xeller, the attending orthopedic surgeon, evaluated no
impairment of the lower extremities resulting from the accepted lumbosacral ligament sprain.
As for the accepted left groin strain/sprain, Dr. Xeller evaluated a three percent whole
person impairment using Table 6-10, page 122 of the A.M.A., Guides. Table 6-10 provides
criteria for evaluating impairment due to abdominal herniation but OWCP did not accept
appellant’s claim for a hernia. A schedule award cannot be granted for a hernia because hernia is
not listed in FECA or the regulations as a scheduled member or organ of the body. The terms of
FECA are specific as to the method and amount of payment of compensation. Neither OWCP
nor the Board has the authority to enlarge the terms of FECA or to make an award of benefits
under terms other than those specified in the statute.12
Imaging studies revealed no inguinal hernia and Dr. Xeller clarified that what she
actually had was a rather significant inguinal strain. In the absence of a protrusion or palpable
defect in the supporting structures of the abdominal wall, it is unclear whether Table 6-10 can
apply.
Lastly, Dr. Xeller evaluated an impairment of the “whole person.” FECA does not
authorize schedule awards for permanent impairment of the whole person.13 Payment is authorized
only for permanent impairment of specified members, organs or functions of the body, such as the
upper and lower extremities, the hands and feet, the fingers and toes, hearing, vision, the eye, the
lung, larynx and the kidney. Accordingly, Dr. Xeller’s rating for the whole person provides no
basis under the law for the payment of a schedule award.
Nonetheless, Dr. Xeller’s findings may be compared with appropriate tables in the A.M.A.,
Guides to determine appellant’s entitlement. Chapter 16 of the A.M.A., Guides provides criteria
for determining impairment of the lower extremities, which are scheduled members of the body.14
Table 16-4, the Hip Regional Grid, provides criteria for determining impairment due to various
diagnoses of the hip area, from the articular cartilage of the acetabulum to the mid shaft of the
femur.15 It was OWCP’s medical adviser’s opinion that the accepted left groin strain/sprain
condition was medically equivalent to a strain in the left hip region.

12

K.S., Docket No. 14-0133 (issued April 1, 2014) (no schedule award payable for hernia).

13

Ernest P. Govednick, 27 ECAB 77 (1975).

14

5 U.S.C. § 8107(c)(2) (for the total loss of a lower extremity, as with amputation, an employee may receive up
to 288 weeks of compensation).
15

A.M.A., Guides 500.

4

The first step in determining an impairment rating is to choose the diagnosis that is most
appropriate for the region being assessed.16 OWCP medical adviser’s opinion that the accepted
left groin strain/sprain may be evaluated as a soft-tissue strain in the hip region under Table 16-4
appears reasonable under the circumstances. Dr. Xeller diagnosed a left groin strain in addition
to a left inguinal hernia. He found that appellant had palpable pain and that left hip flexion was
painful but full. Palpatory findings and the absence of motion deficits are sufficient to classify
the accepted left groin strain as class 1 or mild, under Table 16-4. The default impairment value
is one percent of the left lower extremity.
Appellant’s occasional mild discomfort did not preclude most activities of daily living,
but Dr. Xeller clarified that she did find it hard to bend over and to reach and twist due to her
groin pain. In the absence of any need for assistive devices such as a cane or crutch, her
functional history appears to be mild, warranting no adjustment of the default impairment
value.17
If a grade modifier or nonkey factor was used for primary placement in the regional grid,
it may not be used again in the impairment calculation.18 This applies in appellant’s case
because palpatory findings and the absence of motion deficits placed her diagnosis in the mild
category. Physical examination findings, therefore, may not be used again to adjust the default
impairment value.
Dr. Xeller noted that imaging studies were normal. As they did not confirm a diagnosis
or even mild pathology, they are indicative of no problem.19 This normally adjusts the default
impairment value slightly lower, but under Table 16-4, the default impairment value and the next
milder value are the same: one percent of lower extremity. This represents appellant’s final
rating.
Accordingly, the Board finds that appellant has no more than a one percent impairment of
her left lower extremity causally related to her accepted employment injury. The Board will
therefore affirm the December 11, 2013 decision denying modification of her schedule award.
CONCLUSION
The Board finds that appellant has no more than a one percent impairment of her left
lower extremity causally related to her accepted employment injury.

16

Id. at 499.

17

Id. at 516 (Table 16-6, Functional History Adjustment, Lower Extremities).

18

Id. at 515-16.

19

Id. at 519 (Table 16-8, Clinical Studies Adjustment, Lower Extremities).

5

ORDER
IT IS HEREBY ORDERED THAT the December 11, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 4, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6