United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Raleigh, NC, Employer

)
)
)
)
)
)
)
)

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

Docket No. 07-1711
Issued: December 13, 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 June 13, 2007 appellant filed a timely appeal from a March 19, 2007 decision of the
Office of Workers’ Compensation Programs denying his request for a review of the written
record. The Board’s jurisdiction to consider final decisions of the Office extends only to final
decisions issued within one year prior to the filing of the appeal.1 Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over an October 4, 2005 decision
denying his claim for a schedule award.
ISSUE
The issue is whether the Office abused its discretion in denying appellant’s request for a
review of the written record.

1

20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
This is the second appeal in this case.2 By decision dated January 25, 2005, the Board
remanded the case for further development of the medical evidence. The facts of this case, as set
forth in the prior decision, are incorporated herein by reference.
On August 27, 1999 appellant, then a 32-year-old part-time flexible city carrier, filed a
claim for a traumatic injury alleging that on August 10, 1999 he stepped on a plant root in a yard
and twisted his left knee. The Office accepted his claim for a sprain of the left knee and leg and
a closed fracture and chondromalacia of the left patella. On May 28, 2002 appellant filed a claim
for a schedule award.
By decision dated May 11, 2004, the Office denied appellant’s claim for a schedule
award on the grounds that the evidence failed to establish that he had any permanent impairment
of his left knee, based on correct application of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), causally related to his August 10, 1999
employment injury.
On May 23, 2006 following the Board’s January 25, 2005 decision remanding the case,
the Office asked Dr. Roy A. Majors to obtain x-rays of appellant’s left knee and apply the
findings to Table 17-31, page 655, of the fifth edition of the A.M.A., Guides.
On June 6, 2005 Dr. Majors indicated that appellant had a 25 percent impairment of his
left knee based on the A.M.A., Guides. He declined to provide any additional information.
By decision dated October 4, 2005, the Office denied appellant’s claim for a schedule
award on the grounds that the medical evidence did not establish that he had any impairment due
to his accepted left knee conditions. It advised appellant that it would authorize him to be
examined by another physician of his choice to obtain an impairment rating correctly based on
the A.M.A., Guides. The Office advised that, if appellant disagreed with the denial of his
schedule award claim, he could exercise his appeal rights.
By letter postmarked February 2, 2007, appellant requested a review of the written
record.
By decision dated March 19, 2007, the Office denied appellant’s request for a review of
the written record on the grounds that it was not timely filed within 30 days of the October 4,
2005 decision. The Office exercised its discretion and determined that the issue in the case,
whether appellant had any impairment causally related to his accepted left knee conditions, could
be resolved equally well through a reconsideration request and the submission of additional
evidence.

2

See Docket No. 04-2024 (issued January 25, 2005).

2

LEGAL PRECEDENT
Any claimant dissatisfied with a decision of the Office shall be afforded an opportunity
for an oral hearing, or, in lieu thereof, a review of the written record.3 A request for either an
oral hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the decision for which the hearing is sought.4 A claimant is not entitled to a hearing or a
review of the written record if the request is not made within 30 days of the date of the decision
for which the hearing is sought.5 The Office has discretion, however, to grant or deny a request
that is made after this 30-day period.6 In such a case, the Office will determine whether a
discretionary hearing should be granted and, if not, will so advise the claimant with reasons.7
ANALYSIS
Appellant’s request for a review of the written record was postmarked February 2, 2007,
more than 30 days after the Office’s October 4, 2005 decision. Therefore, he was not entitled to
a review of the written record as a matter of right. The Office exercised its discretion and
determined that, the issue in the case, whether he had any permanent impairment of his left knee
causally related to his August 10, 1999 employment injury which entitled him to a schedule
award, could be resolved through a request for reconsideration and the submission of additional
evidence. The Board finds no evidence to indicate that the Office abused its discretion in
denying appellant’s untimely request for a review of the written record in its March 19, 2007
decision.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for a review of the written record.

3

5 U.S.C. § 8124(b) of the Federal Employees’ Compensation Act provides that, before review under section
8128(a), a claimant for compensation who is not satisfied with a decision of the Secretary of Labor is entitled to a
hearing on his claim, in a request made within 30 days after the date of issuance of the decision, before a
representative of the Secretary of Labor. Section 8124(b)(1) is unequivocal in setting forth the time limitation for
requesting a hearing; a claimant is not entitled to a hearing as a matter of right unless the request is made within the
requisite 30 days. See Charles J. Prudencio, 41 ECAB 499 (1990). See also 20 C.F.R. § 10.615 (a hearing includes
two formats: an oral hearing or a review of the written record).
4

20 C.F.R. § 10.616(a).

5

James Smith, 53 ECAB 188 (2001).

6

20 C.F.R. § 10.616(b).

7

James Smith, supra note 5.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 19, 2007 is affirmed.
Issued: December 13, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 20-1417
Issued: July 30, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 13, 2020 appellant filed a timely appeal from a May 14, 2020 nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days has elapsed from the last
merit decision dated June 18, 2019 to the filing of this appeal, pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the
merits of this case.3

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s
Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s
oral argument request, he asserted that oral argument should be granted because he should have been referred for a second
opinion evaluation of his permanent impairment. The Board, in exercising its discretion, denies his request for oral argument.
The Board notes that it does not have jurisdiction over the merits of this claim. As such, the arguments on appeal can adequately
be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance of
a Board decision and not serve a useful purpose. The oral argument request is therefore denied and this decision is based on
the case record as submitted to the Board.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the May 14, 2020 decision. 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 OWCP properly denied appellant’s request for reconsideration of the merits
of his claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 12, 2015 appellant, then a 57-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained bilateral hand injuries due to factors of his federal
employment, including repetitive work duties which required grasping mail and parcels to case and deliver
mail. He noted that he first became aware of his condition on January 5, 2015 and realized its relation to
his federal employment on September 8, 2015. Appellant did not stop work. OWCP accepted the claim
for bilateral carpal tunnel syndrome and bilateral thumb trigger finger. It paid appellant wage-loss
compensation for intermittent periods of disability.
On November 14, 2018 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In support of his schedule award claim, appellant submitted a January 24, 2017 report from
Dr. Mario Bustamante-Montes, a Board-certified orthopedic surgeon and anatomic and clinical
pathologist. Dr. Bustamante-Montes opined that, pursuant to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4 Table15-23, page
449, appellant had five percent permanent impairment of each upper extremity due to appellant’s accepted
bilateral carpal tunnel syndrome and trigger finger. He explained that the rating was based on a
QuickDASH disability score of 50 percent, a grade modifier for clinical studies (GMCS) of 1 for test
findings of conduction delay, a grade modifier for functional history (GMFH) of 3 for history of constant
symptoms, and a grade modifier for physical examination (GMPE) of 1 for physical examination findings.
Dr. Bustamante-Montes concluded that appellant had a net adjustment of 0, equaling five percent
permanent impairment of each upper extremity.
OWCP referred appellant’s medical record to Dr. Arthur S. Harris, a Board-certified orthopedic
surgeon serving as a district medical adviser (DMA). In a report dated February 4, 2019, Dr. Harris
advised that he agreed with Dr. Bustamante-Montes’ assessment of five percent left upper extremity
permanent impairment and five percent right upper extremity permanent impairment under the standards
of the sixth edition of the A.M.A., Guides.
By decision dated June 18, 2019, OWCP granted appellant a schedule award for five percent right
upper extremity permanent impairment and five percent left upper extremity permanent impairment. The
award was for 31.2 weeks and the period of the award ran from January 22 through August 28, 2017.
On October 21, 2019 appellant requested reconsideration. In support of his request, he submitted
physical therapy notes dated April 17 and 27, 2020, a functional capacity evaluation (FCE) referral, and a
December 13, 2019 manual muscle strength wrist examination.
By decision dated May 14, 2020, OWCP denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

4

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

2

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether to review
an award for or against compensation. The Secretary of Labor may review an award for or against
compensation at any time on his own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must provide
evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.6
A request for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.7 If it chooses to grant reconsideration, it reopens and reviews the
case on its merits.8 If the request is timely, but fails to meet at least one of the requirements for
reconsideration, OWCP will deny the request for reconsideration without reopening the case for review
on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits
of his claim, pursuant to 5 U.S.C. § 8128(a).
Appellant’s request for reconsideration did not show that OWCP erroneously applied or
interpreted a specific point of law or advance a new and relevant legal argument not previously considered.
Thus, he is not entitled to a review of the merits of his claim based on the first and second above-noted
requirements under 20 C.F.R. § 10.606(b)(3).
With his request for reconsideration, appellant provided physical therapy notes, a referral for an
FCE, and a manual muscle wrist strength examination report. However, this evidence does not contain
an evaluation of permanent impairment under the protocols of the sixth edition of the A.M.A., Guides.
Therefore, it does not address the underlying issue of the present case, i.e., whether he submitted sufficient
medical evidence to establish increased employment-related permanent impairment of a scheduled
member or function of the body. The Board has held that the submission of evidence or argument which

5

5 U.S.C. § 8128(a); see J.D., Docket No. 19-1757 (issued April 15, 2020); L.D., Docket No. 18-1468 (issued February 11,
2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23,
2010); W.C., 59 ECAB 372 (2008).
6

20 C.F.R. § 10.606(b)(3); see J.D., id.; L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
7

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. For merit
decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP within one year of the
merit decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the request for reconsideration as indicated
by the received date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4(b).
8

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

9

Id. at § 10.608(b).

3

does not address the particular issue involved does not constitute a basis for reopening a case.10 As such,
appellant is not entitled to further review of the merits of his claim based on the third above-noted
requirement under 20 C.F.R. § 10.606(b)(3).11
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits
of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 30, 2021
Washington, DC

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

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

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

10

E.J., Docket No. 19-1509 (issued January 9, 2020); M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew
Diekemper, 31 ECAB 224-25 (1979).
11

Supra note 7 at § 10.606(b)(3).

12

See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020); Susan A.
Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review
on the merits).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.L., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
FACILITIES ENGINEERING COMMAND,
Colts Neck, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1660
Issued: January 26, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 1, 2019 appellant, through counsel, filed a timely appeal from a February 13,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the 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 February 13, 2019 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 has met his burden of proof to establish greater than 15
percent permanent impairment of his right lower extremity, for which he previously received
schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On July 28, 2003 appellant, then a 48-year-old welder/boiler plant operator, filed a
traumatic injury claim (Form CA-1), alleging that he injured his right knee on July 23, 2003 when
kneeling on the floor of a box car while in the performance of duty. OWCP accepted the claim for
right knee sprain, effusion of joint of the right lower leg, chondromalacia of right patella,
aggravation of osteoarthritis of right leg, and tear of right medial cartilage or meniscus. It paid
appellant intermittent wage-loss compensation on the supplemental rolls as of September 18, 2003,
and on the periodic rolls as of May 16, 2004.
On May 6, 2004 Dr. Marc S. Zimmerman, a Board-certified orthopedic surgeon, performed
arthroscopic and chondroplastic surgery.
On June 3, 2011 appellant filed a schedule award claim (Form CA-7) and submitted a
January 20, 2011 report in which Dr. David Weiss, an attending osteopath Board-certified in
orthopedic surgery, advised that appellant had reached maximum medical improvement (MMI).
Dr. Weiss noted his review of medical records and described right knee examination findings. He
advised that, in accordance with the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides),5 under Table 16-3, Knee Regional
Grid, appellant had a Class 2 right knee impairment, for grade IV chondromalacia, with a default
rating of 20 percent. Dr. Weiss found a grade modifier for functional history (GMFH) of 3, a grade
modifier for physical examination (GMPE) of 1, and a grade modifier for clinical studies (GMCS)
of 4. He applied the net adjustment formula and concluded that appellant had 24 percent
permanent impairment of the right lower extremity.
In a July 20, 2011 report, Dr. Craig Uejo, Board-certified in preventive and occupational
medicine serving as a district medical adviser (DMA) disagreed with Dr. Weiss’ impairment
rating. He advised that appellant’s rating should be based on a diagnosis of patellofemoral arthritis,
instead of chondromalacia. Dr. Uejo found that, using the findings of a November 17, 2009 right
knee magnetic resonance imaging (MRI) scan, under Table 16-3 for this diagnosis, appellant had
a Class 1 rating, which had a default score of three percent.

4

Docket No. 12-1209 (issued December 4, 2012).

5

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

2

By decision dated July 21, 2011, OWCP granted appellant a schedule award for three
percent permanent impairment of the right lower extremity, for a total of 8.64 weeks, to run from
January 20 to March 21, 2011.
On July 27, 2011 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review. He submitted additional evidence including a
November 8, 2011 x-ray that demonstrated moderate patellofemoral arthritis with no significant
joint space narrowing within the medial or lateral compartments and minimal chondrocalcinosis
within the medial compartment. No fracture, dislocation, or large suprapatellar joint effusion was
identified.
In an updated November 15, 2011 report, Dr. Weiss provided additional explanation and
advised that appellant’s impairment right lower extremity rating remained at 24 percent.
By decision dated January 18, 2012, an OWCP hearing representative affirmed the July 21,
2011 schedule award decision. He found the evidence submitted subsequent to the hearing was
repetitive in nature and that Dr. Uejo’s report constituted the weight of the medical evidence.
On May 9, 2012 appellant, through counsel, filed an appeal with the Board. By decision
dated December 4, 2012, the Board found the case not in posture for decision. The Board noted
that, after appellant submitted additional evidence, OWCP failed to forward this to its DMA for
review. The Board remanded the case to OWCP to forward the medical evidence submitted to an
appropriate DMA for an opinion on the degree of appellant’s right lower extremity impairment, to
be followed by a merit decision regarding whether appellant was entitled to an increased schedule
award.6
Following the Board’s remand, in a February 17, 2013 report, Dr. Arnold T. Berman, a
Board-certified orthopedic surgeon serving as DMA, agreed with Dr. Uejo that appellant had three
percent right lower extremity permanent impairment. By decision dated February 20, 2013,
OWCP found that appellant was not entitled to an increased schedule award.
On February 25, 2013 appellant, through counsel, requested a hearing with a representative
of OWCP’s Branch of Hearings and Review. By decision dated April 8, 2013, a hearing
representative noted that, after preliminary review, the case was not in posture for decision. She
found that the evidence of record required further development regarding appellant’s accepted
conditions. The hearing representative remanded the case for OWCP to schedule a second opinion
impairment evaluation.7
OWCP referred appellant to Dr. Jonathan Black, a Board-certified orthopedic surgeon, for
a second opinion evaluation. In a May 14, 2013 report, Dr. Black noted his review of the record,
including the statement of accepted facts (SOAF), and provided examination findings. He advised
that under Table 16-3 of the A.M.A., Guides, appellant had three percent right lower extremity
permanent impairment for a diagnosis of patellofemoral arthritis. In a June 4, 2013 report, a DMA

6

Supra note 4.

7

In 2013 appellant relocated from Pennsylvania to Florida.

3

agreed with Dr. Black’s conclusion that appellant had three percent right lower extremity
permanent impairment.8
By decision dated June 6, 2013, OWCP found that appellant was not entitled to a right
lower extremity schedule award greater than the three percent previously awarded.
On June 17, 2013 counsel requested a hearing before a representative of OWCP’s Branch
of Hearings and Review. By decision dated August 6, 2013, a hearing representative noted that,
after preliminary review, the case was not in posture for decision. She remanded the case for
OWCP to ask its DMA to provide full calculations and explanation of the rating found, to be
followed by a de novo decision.
In an August 8, 2013 report, Dr. James W. Dyer, a Board-certified orthopedic surgeon
serving as a DMA, reviewed Dr. Black’s report. He provided calculations under Table 16-3 of the
A.M.A., Guides for a diagnosis of patellofemoral arthritis with full-thickness deficit, appellant had
three percent right lower extremity permanent impairment.
By decision dated August 12, 2013, OWCP found that appellant was not entitled to a right
lower extremity schedule award greater than the three percent previously awarded.
On August 19, 2013 counsel requested a hearing before a representative of OWCP’s
Branch of Hearings and Review that was held on January 16, 2014. At the conclusion of the
hearing, the hearing representative issued a summary decision, contained in the hearing transcript.
She found that a conflict in medical evidence had been created between the opinions of Dr. Weiss
and Dr. Black and remanded the case for OWCP to schedule an impartial evaluation regarding the
degree of appellant’s permanent impairment of his right lower extremity.9
On March 4, 2014 OWCP referred appellant to Dr. Robert B. McShane, a Board-certified
orthopedic surgeon, for an impartial medical evaluation.10 In a March 24, 2014 report,
Dr. McShane noted the history of injury and his review of the medical record, including diagnostic
studies. He noted that an August 14, 2003 right knee MRI scan revealed degenerative changes at
the patellofemoral compartment, which were seen again during the 2004 arthroscopic surgery and
MRI scans dated November 27, 2004 and January 24, 2007.11 Dr. McShane described lower
extremity physical examination findings and indicated that appellant’s current complaints were the
sequelae of significant preexisting degenerative process. He advised that he concurred with the
opinion of Dr. Black rather than Dr. Weiss. Dr. McShane referenced Table 16-3 of the A.M.A.,
Guides, and found that appellant had grade 1 full-thickness patellofemoral arthritis. He applied

8

The DMA’s signature is illegible.

9

In correspondence dated January 31, 2014, the hearing representative referenced a new report from Dr. Becan and
indicated that her summary decision began on page 22, line 22 of the January 16, 2014 hearing transcript. However,
a review of the hearing transcript indicates that no additional exhibits were received and that the summary decision
begins on page 14, line 22 of the transcript.
10

The record contains an ME023 form and bypass log.

11

Copies of the May 6, 2004 operative report and MRI scans dated August 14, 2003, November 17, 2004, and
January 24, 2007 are found in the case record.

4

the net adjustment formula and concluded that appellant had three percent right lower extremity
permanent impairment.
By decision April 8, 2014, OWCP found that appellant was not entitled to a right lower
extremity schedule award greater than the three percent previously awarded.
On April 14, 2014 counsel requested a hearing before a representative of OWCP’s Branch
of Hearings and Review.
June 14, 2014 x-rays of appellant’s right knee demonstrated medial compartment and
patellofemoral compartment osteoarthritis with joint space narrowing.
Following an August 14, 2014 hearing, counsel submitted a September 8, 2014 report in
which Dr. Weiss noted that he had reviewed June 16, 2014 x-rays which showed bone-on-bone
changes.12 He reiterated that, under Table 16-3 of the A.M.A., Guides, with grade modifiers,
appellant had 24 percent permanent impairment of the right lower extremity. Dr. Weiss did not
reexamine appellant.
By decision dated October 27, 2014, the hearing representative found the case not in
posture for decision. He noted that Drs. Weiss, Black, and McShane all calculated impairment
using the same diagnosed condition, patellofemoral arthritis, but whereas Drs. Black and McShane
identified a full-thickness articular cartilage defect with a default range of 1 to 5 percent, Dr. Weiss
determined that no cartilage interval remained, yielding a default range of 16 to 24 percent. On
remand OWCP was to secure the actual x-ray films from November 8, 2011 and June 16, 2014,
and return the record to Dr. McShane for further review, to be followed by a de novo decision.
On December 2, 2014 OWCP forwarded Dr. Weiss’ September 8, 2014 report and a disc
containing the November 8, 2011 and June 16, 2014 x-rays to Dr. McShane. In a December 11,
2014 report, Dr. McShane advised that, after review of the 2011 and 2014 x-rays, appellant had a
minimal remaining cartilage interval at the patellofemoral joint and only mild degenerative
changes in the weight-bearing portion.13 In a February 27, 2015 report, he again advised that,
under Table 16-3 of the A.M.A., Guides, appellant had patellofemoral arthritis with a fullthickness articular cartilage defect for three percent impairment.
On March 10, 2015 Dr. H.P. Hogshead, Board-certified in orthopedic surgery serving as a
DMA, agreed with Dr. McShane’s analysis under Table 16-3 of the A.M.A., Guides and concluded
that appellant had three percent right lower extremity permanent impairment.
By decision March 12, 2015, OWCP found that appellant was not entitled to a right lower
extremity schedule award greater than the three percent previously awarded.
On March 17, 2015 counsel requested a hearing before a representative of OWCP’s Branch
of Hearings and Review, which was held on September 24, 2015.

12

Dr. Zimmerman had continued to treat appellant following the May 2004 arthroscopic surgery. Serial right knee
x-rays were also done. Dr. Zimmerman did not provide an impairment rating.
13

Dr. McShane also reviewed x-rays of the left knee.

5

In a September 24, 2015 report, Dr. Weiss noted that he had reviewed Dr. McShane’s
March 24, 2014 and February 27, 2015 reports. He maintained that it was unclear whether
Dr. McShane had actually measured appellant’s remaining cartilage interval and that it was unclear
what diagnostic study he used in his analysis. Dr. Weiss indicated that he had used a November 8,
2011 x-ray which revealed bone-on-bone arthritis with no cartilage and this substantiated a class
2 impairment. He reiterated that, after net adjustment, appellant had 24 percent permanent
impairment of the right lower extremity.
In a November 1, 2015 report, Dr. Lisa Marie Sheppard, a Board-certified radiologist,
noted her review of the June 16, 2014 right knee x-ray. She indicated that standing erect images
were obtained and measurements taken of the joint spaces in the anteroposterior (AP) and lateral
projections of the right knee, with a lateral joint space superior to inferior measurement of 7.8
millimeters (mm), and a medial joint space of 7.9 mm. Dr. Sheppard continued that in the lateral
projection on the right side, the patellofemoral joint space was completely obliterated and the
measurement was zero.14
By decision dated December 9, 2015, the hearing representative remanded the case to
OWCP for further medical development. It was to obtain clarification from Dr. McShane with
regard to cartilage measurements.
In a January 6, 2016 report, Dr. McShane indicated that his opinion that appellant had three
percent permanent impairment of the right lower extremity was unchanged.
By decision dated February 8, 2016, OWCP found that appellant was not entitled to a right
lower extremity schedule award greater than the three percent previously awarded.
On February 17, 2016 counsel requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. Following a May 26, 2016 hearing, by decision dated August 5,
2016, an OWCP hearing representative found that a conflict in medical opinion remained and
remanded the case to OWCP for further development of the medical evidence. The hearing
representative found that Dr. McShane’s report did not fully evaluate all of appellant’s right knee
conditions, and he did not present his permanent impairment rating in accordance with the A.M.A,
Guides, which required citation to the applicable tables, and medical rationale in support of his
calculations.
On March 15, 2017 OWCP referred appellant to Dr. Robert W. Elkins, a Board-certified
orthopedic surgeon, for an impartial medical evaluation.15 In an April 26, 2017 report, Dr. Elkins
noted his review of the medical record including diagnostic studies, the SOAF, and appellant’s
complaints of right knee pain. He described right knee examination findings and advised that in
accordance with Table 16-3 of the A.M.A., Guides, for a diagnosis of patellofemoral arthritis,

14

Dr. Sheppard also provided measurements for appellant’s left knee.

15
An impartial evaluation was initially scheduled with Dr. Phuc Vo. A series of memoranda of telephone calls
(Form CA-110) indicated that Dr. Vo required prepayment for the examination. It was, therefore, cancelled. An
impartial medical evaluation was next scheduled with Dr. James D. Glenn. A Form CA-110 dated February 27, 2017
indicated that Dr. Glenn’s office manager cancelled the appointment due to the size of the case record. Both Dr. Vo
and Dr. Glenn are Board-certified orthopedic surgeons.

6

appellant had a class 2 impairment of 15 percent. Dr. Elkins indicated that there were no grade
modifiers.
In a June 7, 2017 report, Dr. James W. Butler, Board-certified in occupational medicine
serving as DMA, noted his review of the medical record including Dr. Elkins’ report. He advised
that Dr. Elkins did not correctly apply the criteria and tables of the sixth edition of the A.M.A.,
Guides. Dr. Butler specifically noted that Dr. Elkins based his impairment rating on a 1 mm
cartilage interval whereas Dr. Sheppard advised that appellant had zero cartilage interval which
would place appellant in class 2, level 2, for 20 percent permanent impairment. He also noted that
Dr. Elkins did not apply grade modifiers and did not measure atrophy. Dr. Butler also did not
indicate a date of MMI.
On June19, 2017 OWCP wrote Dr. Elkins, asking for clarification based on the DMA’s
report, which was attached. In a July 12, 2017 addendum report, Dr. Elkins advised that he did
not ignore appellant’s functional history, just questioned it because his functional complaints
outweighed his objective findings. He noted that appellant stated that he could only walk 10
minutes which would preclude him from most activities, and that his severe complaints of pain did
not jive with his objective findings on x-ray, which indicated severe patellar chondromalacia, but
the rest of his joint measured approximately eight mm of space in the medial and lateral
compartment. Dr. Elkins noted that other examiners disagreed on the degree of appellant’s
impairment, and that he classified appellant’s impairment based on weight bearing joint
measurements and patellar to femoral spacing. He advised that, while appellant’s weight bearing
joint spaces were decreased, they were not class 4. Dr. Elkins indicated that his evaluation was
based on objective findings, as any rating should be, noting that visual atrophy could not be judged
because of appellant’s obesity. He also opined that weakness was a subjective test with objective
corroboration, and he could not determine if appellant’s weakness was totally physiological.
Dr. Elkins wrote that, for this reason, he felt that data to be used for grade modifiers was inaccurate,
and therefore the modifiers were not used. He continued that he reviewed his calculations using
objective data only and, noting appellant’s lack of correlation between subjective complaints and
objective findings and symptom magnification, no modifiers were used. Dr. Elkins reiterated his
conclusion that, under Table 16-3 of the sixth edition of the A.M.A., Guides, for a diagnosis of
patellofemoral arthritis, the average rating for 1 mm cartilage interval was 15 percent. Dr. Elkins
concluded that his original calculation is accurate, based on the art of medicine as well as the
science, and that MMI was reached on August 7, 2013.
By decision dated August 10, 2017, OWCP granted a schedule award for an additional 12
percent permanent impairment of the right lower extremity, for a total of 34.56 weeks, to run from
August 7, 2013 to April 5, 2014.
On August 16, 2017 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review. Appellant was not present at the January 17, 2018
hearing. Counsel asserted that, even though the DMA found that Dr. Elkins misapplied the
A.M.A., Guides, he did not change his opinion in his supplemental report. Therefore, his report
was not sufficient to carry the special weight of the medical evidence, and the case should be
remanded for further development of appellant’s entitlement to an increased schedule award.
Counsel further maintained that Dr. Elkins was improperly selected as an impartial medical
specialist, noting that appellant had initially been scheduled for an appointment with Dr. Glenn,
but the appointment was cancelled with no justification provided. The record was held open for
30 days.
7

In a January 12, 2018 report, Dr. Weiss noted that Dr. Sheppard had found complete
obliteration of the right knee patellofemoral joint, which placed appellant in the “no cartilage
interval” category. He advised that a GMCS was not appropriate because it had been used to place
appellant in the appropriate class. Dr. Weiss found that appellant had a class 2 grade 4 permanent
impairment of the right lower extremity of 20 percent. He applied the net adjustment formula,
finding an adjustment of zero, and concluded that appellant’s total right lower extremity permanent
impairment was 20 percent.
By decision dated April 2, 2018, an OWCP hearing representative found that it had not
been established that Dr. Elkins had been improperly selected as an impartial medical specialist
Dr. Glenn had cancelled the appointment. She, however, set aside the August 10, 2017 decision.
The hearing representative remanded the case for OWCP to obtain an additional opinion from its
DMA as to whether Dr. Elkins correctly applied the criteria/tables of the A.M.A., Guides and
whether further information was needed from him.
In an April 28, 2018 report, Dr. Butler serving as DMA, noted his review of the reports of
Dr. Elkins and Dr. Weiss dated July 12, 2017 and January 12, 2018, respectively. The DMA noted
that Dr. Elkins was the last person to actually examine appellant and determined that appellant’s
functional history was not consistent with the examination ﬁndings and other history and,
therefore, disregarded functional history as a grade modifier. As to a GMPE, Dr. Butler noted that
Dr. Elkins indicated that appellant was so obese, he could not properly examine him, and that he
assigned a 1 mm cartilage interval, based on weight bearing joint measurements, which was criteria
of the A.M.A., Guides. The DMA concluded that Dr. Elkins appropriately discounted the physical
examination and functional history modifiers and correctly noted that the clinical studies modifier
could not be used. Dr. Butler set the date of MMI as July 12, 2017, indicating this was the date of
Dr. Elkins’ evaluation.
By decision dated May 30, 2018, OWCP found that appellant was not entitled to a right
lower extremity schedule award greater than the 15 percent previously awarded.
On June 7, 2018 appellant, through counsel, requested a hearing before a representative of
OWCP’s Branch of Hearings and Review. At the November 29, 2018 hearing, counsel asserted
that the opinion of Dr. Butler, the DMA, contradicted himself, noting that he in his initial report
found that Dr. Elkins misapplied the A.M.A., Guides, yet in his supplemental report found that he
appropriately applied the A.M.A., Guides.
Dr. Zimmerman, who had continued to follow appellant periodically submitted a
January 17, 2019 treatment note in which he noted appellant’s complaint of right knee pain,
particularly with increased activity. Right knee examination demonstrated no effusion, lack of 15
degrees of full flexion and 10 degrees of extension, with some pain on McMurray’s test and
positive patellar inhibition, but no click, no laxity, and a negative Lachman’s. He advised that
right knee x-rays that day demonstrated marked narrowing of the lateral portion of the
patellofemoral compartment and that the joint space was minimally narrowed medially.16
Dr. Zimmerman did not provide an impairment evaluation.

16

A copy of the x-ray report is found in the record.

8

By decision dated February 13, 2019, OWCP’s hearing representative affirmed the
May 30, 2018 decision. She found that the DMA provided medical rationale to support his
conclusion that appellant did not have greater right lower extremity impairment than the 15 percent
previously awarded.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.17 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law 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.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.18 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).19
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, the relevant portion of the leg for the present case, reference
is made to Table 16-3 (Knee Regional Grid) beginning on page 509.20 After the class of diagnosis
(CDX) is determined from the Knee Regional Grid (including identification of a default grade
value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).21
ANALYSIS
The Board finds this case is not in posture for decision because a conflict in medical opinion
remains regarding the degree of appellant’s right lower extremity impairment.
OWCP determined that a conflict arose between Dr. Weiss, who provided an impairment
evaluation for appellant, and Dr. McShane, the second opinion physician, regarding the extent of
appellant’s permanent impairment of the right lower extremity. It ultimately referred him to
Dr. Elkins, a Board-certified orthopedic surgeon, for an impartial medical examination.
Dr. Elkins indicated that his evaluation was based on objective findings, as any rating
should be, noting that visual atrophy could not be judged because of appellant’s obesity. He also
17

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

18

20 C.F.R. § 10.404; E.S., Docket No. 20-0559 (issued October 29, 2020); see also Ronald R. Kraynak, 53 ECAB
130 (2001).
19
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5 (March 2017).
20

Supra note 5 at 509-11.

21

Id. at 515-22.

9

opined that weakness was a subjective test with objective corroboration, and he could not
determine if appellant’s weakness was totally physiological. Dr. Elkins wrote that, for this reason,
he felt that data to be used for grade modifiers was inaccurate, and therefore the modifiers were
not used. He continued that he reviewed his calculations using objective data only and, noting
appellant’s lack of correlation between subjective complaints and objective findings and symptom
magnification, no modifiers were used.
The record reflects that Dr. Weiss, who examined appellant on January 11, 2011, initially
advised that under Table 16-3, appellant had 24 percent permanent right lower extremity
impairment for patellofemoral arthritis. Dr. McShane calculated three percent permanent
impairment based on a class 1 full-thickness cartilage defect. On July 21, 2011 OWCP granted
appellant a schedule award for three percent permanent impairment of his right lower extremity.
Following further development of the claim, appellant was ultimately referred to Dr. Elkins
for an impartial medical examination to resolve the conflict in the case. On April 26, 2017
Dr. Elkins reported that under Table 16-3, appellant had a grade 2 impairment of 15 percent for a
diagnosis of patellofemoral arthritis. In a July 12, 2017 supplemental report, he provided further
explanation regarding why he did not apply grade modifiers to his calculation and indicated that
appellant had a 1 mm cartilage defect. Dr. Butler, serving as DMA, reviewed both of Dr. Elkins’
reports. OWCP then granted appellant a schedule award for an additional 12 percent right lower
extremity impairment by decision dated August 10, 2017.
Upon further reflection, in a January 12, 2018 report, Dr. Weiss indicated that appellant
had 20 percent total impairment based on a class 2 assignment for no cartilage interval. He based
this upon his evaluation and Dr. Sheppard’s review of a June 16, 2014 right knee x-ray. On April 2,
2018 an OWCP hearing representative vacated the August 10, 2017 decision. OWCP secured a
supplemental report from its DMA, Dr. Butler, and on May 30, 2018 found that appellant was not
entitled to schedule award compensation greater than the 15 percent previously awarded. By
decision dated February 13, 2019, an OWCP hearing representative affirmed the May 30, 2018
decision.
Although all physicians agree that appellant’s right lower extremity impairment should be
calculated under Table 16-3 for a diagnosis of patellofemoral arthritis, a difference in opinion
remains regarding the degree of the cartilage defect on which the class of impairment is based.
Dr. Weiss found that no cartilage remained, and Dr. Elkins indicated that appellant had a 1 mm
defect. As such, Dr. Elkins’ opinion cannot carry the special weight of the medical evidence and
serve as a basis for the schedule award.22 Consequently, the Board finds that further development
of the medical evidence is required to determine the extent of appellant’s permanent right knee
impairment for schedule award purposes.23 The Board will, therefore, remand the case to OWCP
to further develop the medical evidence as to the extent of appellant’s right lower extremity
permanent impairment. On remand it shall refer appellant to a specialist in the appropriate field
of medicine for an impartial evaluation and report which includes a rationalized opinion as to the

22

See V.H., Docket No. 18-0848 (issued February 25, 2019).

23

J.M., Docket No. 19-0114 (issued June 12, 2019).

10

extent of appellant’s right lower extremity permanent impairment. The specialist shall obtain right
knee x-rays and provide an opinion in accordance with section 16.3c of the A.M.A., Guides.24
Given the varying opinions provided in the application of the net adjustment formula,
OWCP should also request additional information pertaining to the use and assignment of grade
modifiers.25 Following this and such further development deemed necessary, OWCP shall issue a
de novo decision regarding appellant’s schedule award claim.26
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 13, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: January 26, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

24

Supra note 5 at 518. This section provides that imaging studies are used to grade arthritis, and indicates that
cartilage interval or joint space is the best indicator of disease stage and impairment of the lower extremity. It further
provides that the estimate for the patellofemoral joint is based on a “sunrise view” taken at 40 degrees flexion or on a
true lateral view.
25

M.M., Docket No. 18-0235 (issued September 10, 2019).

26

E.S., Docket No. 20-0559 (issued October 29, 2020).

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DORN VETERANS ADMINISTRATION
MEDICAL CENTER, Columbia, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1638
Issued: July 17, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On July 30, 2019 appellant, through counsel, filed a timely appeal from an April 10, 2019
merit decision and an April 22, 2019 nonmerit 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 April 22, 2019 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a diagnosed
medical condition causally related to the accepted February 11, 2019 employment incident; and
(2) whether OWCP properly denied her request for reconsideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 11, 2019 appellant, then a 44-year-old social worker, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her left shoulder, wrist, ankle, and arm
when she slipped and fell on spilled coffee while in the performance of duty. She stopped work
that day.
A February 11, 2019 emergency room treatment note from a nurse practitioner, noted the
history of injury as a trip and fall at work. The nurse noted diagnoses of left shoulder, left wrist,
right knee, and left ankle sprains.
X-rays of appellant’s left ankle obtained on February 11, 2019 revealed degenerative
changes and some diffuse swelling of the soft tissue. X-rays of the right knee showed mild
degenerative changes and x-rays of the left wrist and left shoulder were unremarkable.
In an unsigned note dated February 13, 2019, Dr. Cassandra Patterson, a Board-certified
internist, indicated that appellant had been seen in her clinic and requested that she be excused
from work from February 11 to 17, 2019. On February 15, 2019 she requested that appellant be
excused from work from February 15 to 24, 2019.
In a development letter dated March 8, 2019, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the requested information. No additional evidence was received.
By decision dated April 10, 2019, OWCP denied appellant’s traumatic injury claim finding
that she had not submitted medical evidence containing a diagnosis in connection with the accepted
February 11, 2019 employment incident, and thus had not met the requirements to establish an
injury as defined by FECA.
On April 17, 2019 appellant requested reconsideration. She maintained that she had only
received OWCP’s denial of her claim and no other communication.
Along with her reconsideration request, appellant resubmitted the February 11, 2019 note
from the nurse practitioner and the February 13 and 15, 2019 notes from Dr. Patterson.
Also received was a February 22, 2019 note by Dr. Patterson who evaluated appellant for
left shoulder pain. Dr. Patterson advised that appellant should be excused from work from
February 15 to March 10, 2019. In an unsigned note dated March 7, 2019, she excused appellant
from work from March 7 through 12, 2019.
In an after-visit summary dated March 12, 2019, Dr. Kevin K. Nahigian, a Board-certified
orthopedist, noted diagnoses of chronic left shoulder pain, subacromial impingement of the left
2

shoulder, and chronic frozen shoulder for which he administered an injection and prescribed
medication. He advised that appellant should remain off work until March 28, 2019.
By decision dated April 22, 2019, OWCP denied appellant’s request for reconsideration of
the merits of her claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
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 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.8
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. The first component is whether the employee actually experienced the employment
incident that allegedly occurred.9 The second component is whether employment incident caused
a personal injury.10 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.11
Causal relationship is a medical issue and the medical evidence 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 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 incident.12

4

Id.

5

J.W., Docket No. 18-0678 (issued March 3, 2020); 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.S., Docket No.18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

R.R., Docket No.18-0914 (issued February 24, 2020); Delores C. Ellyett, 41 ECAB 992 (1990).

8

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388 (2008).

9

E.M., Docket No. 18-1599 (issued March 7, 2019); Bonnie A. Contreras, 57 ECAB 364 (2006).

10

Id.

11

D.V., Docket No. 19-1642 (issued June 4, 2020); Shirley A. Temple, 48 ECAB 404 (1997).

12

See S.S., supra note 8; H.B., Docket No. 18-0781 (issued September 5, 2018).

3

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted February 11, 2019 employment incident.
In reports dated February 13 and 15, 2019, Dr. Patterson noted treatment of appellant and
indicated that she was disabled from February 15 to 24, 2019. However, she provided no opinion
regarding whether appellant sustained an injury causally related to her accepted employment
incident. Medical evidence that does not offer an opinion regarding the cause of an employee’s
condition or disability is of no probative value on the issue of causal relationship.13 Therefore,
these reports are insufficient to establish appellant’s claim.
Appellant submitted emergency room notes and a work excuse note dated February 11,
2019 from a nurse practitioner. While the nurse practitioner did provide diagnoses of left shoulder,
left wrist, right knee, and left ankle sprains, the Board has held that medical reports signed solely
by a nurse practitioner are of no probative value as such healthcare providers are not considered
“physician[s]” as defined under FECA.14 Consequently, this evidence is insufficient to establish
appellant’s claim.15
Appellant also submitted several diagnostic studies of the knee, ankle, shoulder, and wrists.
The Board has explained, however, that diagnostic studies, standing alone, lack probative value as
they do not address whether the employment incident caused any of the diagnosed conditions.16
As the medical evidence of record was insufficient to establish a medical condition in
relation to the accepted February 11, 2019 employment incident, the Board finds that she has not
met her burden of proof to establish her claim.17
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.

13

See A.S., Docket No. 19-0915 (issued November 22, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
14
5 U.S.C. § 8102(2) of FECA provides that the term physician “includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.” 5 U.S.C. § 8101(2). See also S.L., Docket No. 19-0607 (issued January 28, 2020); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not
competent to render a medical opinion under FECA); M.C., Docket No 19-1074 (issued June 12, 2020) (nurse
practitioners are not considered physicians under FECA).
15

M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket No. 19-0221 (issued July 15, 2019).

16

T.S., Docket No. 18-0150 (issued April 12, 2019).

17

H.A., Docket No. 18-1253 (issued April 23, 2020).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.18
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.19
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.20 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.21 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.22
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
In her April 17, 2019 request for reconsideration, appellant contended that she had not
received any correspondence from OWCP other than its decision denying her claim. However,
the March 8, 2019 development letter from OWCP was properly addressed to her. Absent
evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business
is presumed to have been received. This is known as the mailbox rule.23 Appellant has not
submitted evidence of non-delivery of OWCP’s development letter such that the presumption
would be rebutted.24 The Board therefore finds that on reconsideration, appellant did not show
that OWCP erroneously applied or interpreted a specific point of law, nor did she advance a new
and relevant legal argument not previously considered. Accordingly, she is not entitled to a review
of the merits of her claim based on the first or second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).

18

5 U.S.C. § 8128(a).

19

20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

20

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees Compensation System (iFECS). Id. at Chapter 2.1602.4b.
21

Id. at § 10.608(a); see also A.P., Docket No 19-0224 (issued July 11, 2019).

22

Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

23

See C.Y., Docket No. 18-0263 (issued September 14, 2018).

24

See D.R., Docket No. 19-1899 (issued April 15, 2020).

5

However, with respect to the third above-noted requirement under 20 C.F.R.
§ 10.606(b)(3), appellant submitted an after-visit summary dated March 12, 2019 from
Dr. Nahigian. In this report Dr. Nahigian noted diagnoses of chronic left shoulder pain,
subacromial impingement of the left shoulder, and chronic frozen shoulder for which he
administered an injection and prescribed medication. He advised that appellant should remain off
work until March 28, 2019. OWCP denied her claim as the medical evidence did not provide a
diagnosis of a medical condition in connection with the accepted employment injury. This report
from Dr. Nahigian does in fact provide medical evidence of a diagnosis.
The Board, thus, finds that OWCP improperly denied appellant’s request for
reconsideration of the merits, as the evidence she submitted in support of her reconsideration
request is relevant and pertinent new evidence not previously considered.25
As appellant has submitted relevant and pertinent new evidence not previously considered
by OWCP, she is entitled to a review of the merits of her claim pursuant to 20 C.F.R.
§ 10.606(b)(3) of OWCP’s regulations.26 Following such further development as may be deemed
necessary, OWCP shall issue an appropriate merit decision on her claim for disability
compensation.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted February 11, 2019 employment incident. The Board
further finds that OWCP improperly denied her request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).

25

20 C.F.R. § 10.606(b)(3); P.M., Docket No. 19-1253 (issued January 23, 2020).

26

T.P., Docket No. 18-0608 (issued August 2, 2018). See L.K., Docket No. 15-0659 (issued September 15, 2016).

6

RDER
IT IS HEREBY ORDERED THAT the April 10, 2019 decision is affirmed. IT IS
FURTHER ORDERED THAT the April 22, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: July 17, 2020
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE AIR FORCE, OGDEN
UTAH -- OAMA, RANDOLPH AIR FORCE
BASE, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Lennin V. Perez., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1506
Issued: October 26, 2015

Case Submitted on the Record

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

JURISDICTION
On July 6, 2015 appellant, through his representative, filed a timely appeal from a
May 26, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed
head and neck injuries as a result of his federal employment duties.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant has two other occupational disease claims which are currently on appeal before
the Board, claim File Nos. xxxxxx584 Docket No. 15-1501 (issued October 19, 2015) and xxxxxx820 Docket
No. 15-1507 (issued October 26, 2015). The findings in this claim File No. xxxxxx967, pertain to appellant’s head
and neck injuries only.

FACTUAL HISTORY
On April 21, 2014 appellant, then a 60-year-old sheet metal mechanic, filed an
occupational disease claim (Form CA-2) alleging that he developed head and neck pain as a
result of having to work with his arms over his head and look up. He first became aware of his
condition on January 1, 1987 and of its relationship to his employment on January 10, 2014.3
Appellant first sought medical treatment for the head and neck pain on November 15, 2002. The
claim form did not indicate that he had stopped work. In support of his claim, appellant
submitted an official position description for a sheet metal mechanic.
By letter dated May 6, 2014, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised of the factual and medical evidence
needed and was afforded 30 days to respond.
By letter dated May 12, 2014, the employing establishment controverted the claim.
In a May 16, 2014 narrative statement, appellant provided a detailed description of his
employment duties and the tools he used. He stated that he worked full time Monday through
Thursday, 10 hours daily. Appellant stated that he was constantly exposed to harmful chemicals
and used pneumatic tools which were heavy, loud, and vibrated in his hands. His duties also
entailed going up and down stairs, lifting heavy equipment, bending, stooping, twisting, and
turning. Appellant stated that his employment duties resulted in his injuries which forced him to
start cutting back his hours. He provided official position descriptions, pictures of the tools he
used, and explanations pertaining to the frequency and mechanics of each of his work-related
tasks. Appellant also provided numerous x-ray images of the cervical and lumbar spine. The
images were not accompanied by a medical report interpreting the findings and did not identify a
physician or note the date of study.
Documentation was also provided dated July 16, 2014 indicating that appellant was to be
separated from his employment as a sheet metal mechanic, effective July 25, 2014, due to his
physical inability to perform the duties of that position.
OWCP received medical evidence in support of appellant’s claim. In a February 6, 2013
medical report, Dr. Eryn Stansfield, Board-certified in occupational medicine, reported that
appellant complained of right shoulder and elbow pain. Appellant stated that earlier that
morning he was performing work as a sheet metal mechanic and felt immediate pain in his
posterior right shoulder girdle when lifting a heavy part. He also complained of pain radiating to
his right elbow. Appellant denied prior injuries to the shoulder and noted a history of chronic
neck pain. Dr. Stansfield diagnosed work-related right sided tendinitis rotator cuff with signs of
impingement.
In a May 21, 2014 medical report, Dr. Jeffery Lee DeGrauw, Board-certified in family
medicine, reported that appellant was his patient for several years and was permanently disabled.
3

By letter dated May 19, 2014, appellant informed OWCP that he mistakenly noted January 1, 1987 as the date
he became aware that his condition was caused by his employment. He stated that the correct date was
January 10, 2014.

2

He noted that appellant experienced numbness, tingling, and pain involving the tips of his fingers
and earlobes. In March 2011, Dr. DeGrauw diagnosed appellant with Raynaud’s syndrome. He
reported that appellant had no prior similar symptoms and opined that Raynaud’s syndrome was
caused by the use of pneumatic tools. Dr. DeGrauw further noted that the continual use of these
pneumatic tools could eventually lead to amputation of the fingers due to its effect on circulation.
He further diagnosed chronic degenerative joint disease in multiple areas of the body including
the lower back, upper back, neck, shoulders, wrists, and elbows. Chronic problems related to the
neck and back stemmed back to 2002. Dr. DeGrauw explained that appellant’s work as a sheet
metal mechanic for the past 30 years involved lifting heavy items weighing 150 to 175 pounds,
frequent bending and stooping approximated at 80 degree angles for 70 to 80 percent of the day,
and frequent bending over using pneumatic bands to apply sheet metal. He noted that the
repetitive heavy lifting involved multiple aspects of his body including his lower back, upper
back, neck, shoulders, wrists, and elbows.
Dr. DeGrauw also diagnosed tendinitis and carpal tunnel syndrome in the hands and
elbows, stemming back to 2013. He explained that appellant’s job involved gripping and
handling tools 100 percent of the time. Dr. DeGrauw further noted issues with chronic migraine
and tension headaches. He reported that over the past several years, appellant had been seen and
treated for the various above mentioned-illnesses by neurology, orthopedics, and primary care
physicians which were too numerous to be documented. Dr. DeGrauw concluded that appellant
was unable to work and was permanently disabled.
By decision dated July 30, 2014, OWCP denied appellant’s claim finding that the
evidence did not establish that the occupational exposure occurred as alleged. It also found that
he failed to establish a firm medical diagnosis which could be reasonably attributed to the
alleged occupational exposure.
On August 4, 2014 appellant, through his representative, requested an oral hearing before
an OWCP hearing representative.
In support of his claim, appellant submitted a January 27, 2015 medical report from
Dr. DeGrauw. Dr. DeGrauw reported that appellant presented with tendinitis, shoulder pain, and
follow-up regarding multiple medical concerns. He noted that appellant was limited due to
chronic pain and immobility involving his hands, elbows, and neck with resulting paresthesia.
Dr. DeGrauw was further limited from standard activities like typing or fine motor motion due to
his radiculopathy of the neck and arthralgia. He reported that appellant was hard of hearing as a
result of his loud work environment and disabled due to progressive Alzheimer’s-type dementia,
the cause of which was unconfirmed as being chemical or environmental exposure related.
Dr. DeGrauw found appellant to be permanently disabled based on repetitive ongoing physical
examination history. He provided findings on physical examination and noted a history of sinus
surgery in 2001 and 2003 as well as bilateral shoulder surgery in 2013. Dr. DeGrauw diagnosed
cervicalgia stemming back to November 14, 2007 and opined that appellant’s neck pain was
related to abnormal exposures associated with work. He also diagnosed Alzheimer’s dementia
and generalized degenerative joint disease of the hand, noting severe limitations of functional
ability with his upper extremities.

3

A hearing was held on March 11, 2015. Appellant’s spouse testified as a witness on
behalf of the claim. At the hearing, appellant testified regarding his federal employment and
work exposure. He stated that he worked 10 hours a day and overtime two days a week,
averaging about 50 to 60 hours a week. Appellant noted he was a sheet metal mechanic since
1985 and began to experience head and neck pain soon after he started working. He explained
that he did bench work which meant he had to sit on a bench and keep his head bent over for
most of the day as he worked on tools. Appellant described his employment duties and stated
that he sought treatment for his neck and head pain beginning in 1986. In 1989, he was in a
nonindustrial hot air balloon accident which caused him greater head and neck pain. Appellant
stated that he sought treatment with Dr. DeGrauw in 1999 and was subsequently referred to a
neurologist who found arthritis in the neck and post disc based on magnetic resonance imaging
(MRI) scan findings. In 2014, he filed an occupational disease claim after Dr. DeGrauw
informed him that his head and neck injuries were from years of work-related repetitive motion.
The hearing representative advised appellant and his representative of the evidence needed to
establish his claim. The record was held open for 30 days.
By decision dated May 26, 2015, OWCP hearing representative affirmed the July 30,
2014 decision finding that appellant failed to establish a firm medical diagnosis which could be
reasonably attributed to the accepted federal employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability or specific condition for which compensation is claimed are 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 on a traumatic injury or occupational disease.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.6 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
4

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

5

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

6

Elaine Pendleton, supra note 4.

4

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 employee.7
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.8 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. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.9
ANALYSIS
OWCP accepted that appellant engaged in repetitive activities as a sheet metal mechanic.
The issue, therefore, is whether he submitted sufficient medical evidence to establish that the
employment exposure caused head and neck injuries. The Board finds that appellant did not
submit sufficient medical evidence to support that he sustained head and neck injuries causally
related to factors of his federal employment as a sheet metal mechanic.10
In support of his claim, appellant submitted medical reports from his treating physician
dated May 21, 2014 and January 27, 2015 from Dr. DeGrauw. The Board notes that he is
alleging neck and head injuries in this occupational disease claim, File No. xxxxxx967.
Specifically, appellant has alleged that repetitive bench work caused him neck and head pain due
to constantly having to keep his head bent when working on tools. Thus, Dr. DeGrauw’s
opinions pertaining to other conditions not claimed as work related in this claim are irrelevant
and of no probative value to the issue of whether appellant’s head and neck injuries are caused
by his occupational employment duties.
In his May 21, 2014 report, Dr. DeGrauw provided various diagnoses including
Alzheimer’s-type dementia,11 Raynaud’s syndrome, chronic degenerative joint disease in
multiple areas of the body including the lower back, upper back, neck, shoulders, wrists, and

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

9

James Mack, 43 ECAB 321 (1991).

10

See Robert Broome, 55 ECAB 339 (2004).

11

The Board notes that appellant has not alleged a neurological disorder in this claim. Thus, the Board will not
address findings made pertaining to his Alzheimer’s-type dementia.

5

elbows, tendinitis and carpal tunnel syndrome in the hands and elbows, and chronic migraine and
tension headaches.
The Board finds that Dr. DeGrauw’s report is insufficient to establish that appellant’s
head and neck injuries resulted from his federal employment duties.12 Dr. DeGrauw failed to
provide a detailed medical history, review of diagnostic reports, or findings on physical
examination. While he generally noted that he treated appellant for several years, the record
does not contain medical examination findings and reports which actually establish the various
diagnoses provided. Moreover, it appears that Dr. DeGrauw did not base his opinion on his own
findings on examination as the physician vaguely noted treatment and findings by neurology
orthopedics, and primary care physicians which were too numerous to document. Greater
probative value is given to a medical opinion based on an actual examination. An opinion based
on a cursory or incomplete examination will have less value compared to an opinion based on a
more complete evaluation.13
The Board notes that Dr. DeGrauw failed to cite specific objective evidence documenting
appellant’s head and neck injuries. Dr. DeGrauw noted that appellant’s job involved gripping
and handling tools 100 percent of the time and diagnosed chronic migraine and tension
headaches. The record contains no other medical reports documenting treatment of these
conditions, making it unclear what diagnostic reports or examination findings he utilized to
ascertain the various diagnoses. An explanation not supported by physical findings does not
constitute a well-rationalized medical opinion.14 Moreover, Dr. DeGrauw failed to provide any
opinion on the cause of these conditions. His vague inference provided by noting appellant’s
occupational duties is insufficient to establish a firm medical diagnosis which can be related to
appellant’s occupational duties.15
Dr. DeGrauw further diagnosed chronic degenerative joint disease in multiple areas of
the body including the lower back, upper back, neck, shoulders, wrists, and elbows. With
respect to degenerative joint disease of the neck, the record fails to contain any objective
evidence or physical examination findings to establish a firm medical diagnosis. Dr. DeGrauw’s
general statement that repetitive lifting involved multiple aspects of the body is equivocal in
nature. He noted a history of issues related to neck pain since 2002. Dr. DeGrauw failed to
provide an adequate and detailed medical history and did not address why appellant’s complaints
were not caused by a preexisting degenerative condition. His report provided no discussion
regarding whether preexisting degenerative joint disease had progressed beyond what might be
expected from the natural progression of that condition.16 A well-rationalized opinion is

12

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

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.6(a)(4) (September 2010).
14

Id. at Chapter 2.810.6(a)(2).

15

S.Y., Docket No. 11-1816 (issued March 16, 2012).

16

R.E., Docket No. 14-868 (issued September 24, 2014).

6

particularly warranted when there is a history of a preexisting condition.17 While Dr. DeGrauw
had some understanding of appellant’s employment duties,18 he failed to establish a firm medical
diagnosis and did not provide a rationalized opinion on causal relationship. Thus, his medical
report does not constitute probative medical evidence because he fails to provide a clear
diagnosis and does not adequately explain the cause of appellant’s injury.19
Dr. DeGrauw’s January 27, 2015 report is also insufficient to establish appellant’s claim.
He noted that appellant was limited due to chronic pain and immobility involving his hands,
elbows, and neck with resulting paresthesia. Appellant was further limited from standard
activities like typing or fine motor motion due to radiculopathy of the neck and arthralgia.
Dr. DeGrauw found appellant to be permanently disabled based on his repetitive and ongoing
physical examination history. He diagnosed cervicalgia stemming back to November 14, 2007
and opined that his neck pain was related to abnormal exposures associated with work.
While Dr. DeGrauw’s report noted current physical examination findings, he failed to
provide a thorough review of appellant’s medical history. He reported that the cervicalgia
stemmed back to November 14, 2007 yet failed to provide any other information pertaining to
the history of injury involving the neck. Furthermore, it appears that Dr. DeGrauw did not have
an accurate medical history as his report failed to mention the 1999 nonindustrial hot air balloon
accident which appellant reported caused him greater neck and head pain. Medical conclusions
based on an incomplete or inaccurate factual background are of limited probative value.20
The Board further notes that Dr. DeGrauw’s diagnoses of chronic neck pain with
resulting paresthesia and arthralgia are of no probative value. The Board has consistently held
that pain and spasm are generally descriptions of symptoms and are not, in themselves,
considered firm medical diagnoses.21 Dr. DeGrauw’s diagnoses of radiculopathy of the neck and
cervicalgia are also insufficient to establish a firm medical diagnosis as the physician failed to
detail any objective findings and diagnostic reports to establish these conditions.22 When noting
appellant’s cervicalgia diagnosis, he opined that appellant’s neck pain was related to abnormal
exposures associated with work. Furthermore, Dr. DeGrauw failed to detail appellant’s
employment duties and only generally noted abnormal exposures associated with work. His
statement on causation fails to provide a sufficient explanation as to the mechanism of injury
17

The Board has held that an opinion that a condition is causally related because the employee was asymptomatic
before the injury is insufficient, without adequate rationale, to establish causal relationship. T.M., Docket
No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).
18

Dr. DeGrauw explained that appellant’s work as a sheet metal mechanic for the past 30 years involved lifting
heavy items weighing 150 to 175 pounds, frequent bending over and stooping approximated at 80 degree angles for
70 to 80 percent of the day, and frequent bending over using pneumatic bands to apply sheet metal.
19

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

20

S.R., Docket No. 14-1086 (issued February 26, 2015).

21

See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued
October 10, 2008) (regarding pain); J.S., Docket No. 07-881 (issued August 1, 2007) (regarding spasm).
22

C.F., R.G., Docket No. 14-113 (issued April 25, 2014).

7

pertaining to this occupational disease claim, namely, how repetitive bending, stooping, or bench
work would cause or aggravate appellant’s cervicalgia.23 Dr. DeGrauw’s reports are insufficient
to establish appellant’s claim as the physician failed to provide examination findings, a detailed
medical history, description of the employment incident, review of diagnostic studies, and an
explanation of how appellant’s conditions were caused or aggravated by his repetitive
employment duties.24 Any medical opinion evidence appellant may submit to support his claim
should reflect a correct history and offer a medically sound explanation by the physician of how
the specific employment incident, in particular physiologically, caused or aggravated his head
and neck injury.25 Dr. DeGrauw’s reports do not meet that standard and are thus insufficient to
meet appellant’s burden of proof.
The remaining medical evidence of record is also insufficient to establish appellant’s
claim. Dr. Stansfield’s February 6, 2013 report pertains to right shoulder and elbow pain as a
result of a work-related traumatic injury. Findings made pertaining to the right shoulder
tendinitis rotator cuff are irrelevant and have no bearing on this occupational disease claim for
head and neck pain as a result of his repetitive employment duties.26 As noted above, additional
diagnoses provided by Dr. DeGrauw that do not relate to the head and neck injuries alleged by
appellant in this claim are also of no probative value.27 It is appellant’s burden to specify the
nature of his claim.28
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.29 An award of compensation may not
be based on surmise, conjecture, speculation, or on the employee’s own belief of causal
relation.30 To establish a firm medical diagnosis and causal relationship, appellant must submit a
physician’s report in which the physician reviews those factors of employment alleged to have
caused his condition and, taking these factors into consideration, as well as findings upon
examination and his medical history, explain how these employment factors caused or
aggravated any diagnosed condition, and present medical rationale in support of his opinion.31
23

S.W., Docket 08-2538 (issued May 21, 2009).

24

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., supra note 22; K.M., Docket No. 13-1459 (issued
December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
25

T.G., Docket No. 14-751 (issued October 20, 2014).

26

The Board notes that at the March 11, 2015 hearing, appellant’s representative testified that he had a previous
work-related shoulder injury for which he underwent surgery. The record before the Board contains no other
information pertaining to this claim.
27

The Board notes that Dr. DeGrauw’s January 27, 2015 report also provided diagnoses of Alzheimer’s dementia
and degenerative joint disease of the hand.
28

O.S., Docket No. 13-438 (issued July 15, 2014).

29

Daniel O. Vasquez, 57 ECAB 559 (2006).

30

D.D., 57 ECAB 734 (2006).

31

Supra note 6.

8

In the instant case, the record is without rationalized medical evidence establishing a
diagnosed medical condition causally related to the accepted federal employment duties. OWCP
advised appellant of the type of medical evidence required to establish his claim; however, he
failed to submit such evidence. Thus, appellant has failed to meet his burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
developed neck and head injuries as a result of his federal employment duties.
ORDER
IT IS HEREBY ORDERED THAT the May 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 26, 2015
Washington, DC

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

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

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

9