United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., widow of G.A, Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION,
Denver, CO Employer
__________________________________________

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

Docket No. 08-373
Issued: November 4, 2008

Case Submitted on the Record

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

JURISDICTION
On November 13, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 30, 2007 denying the employee’s claim
for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether the employee sustained colon cancer or a respiratory condition
causally related to his federal employment.
FACTUAL HISTORY
On January 27, 2005 the employee, a 45-year-old safety specialist, filed an occupational
disease claim alleging that he sustained colon cancer causally related to his federal employment.
In an accompanying statement, he reported that on March 2, 2001 he inspected a medical wastetreatment facility where he was exposed to chemical fumes and developed mouth lesions and had

gastrointestinal bleeding. The employee also stated that during the week of Thanksgiving 2001
he worked at the World Trade Center (WTC), where he was exposed to carcinogens and
developed additional gastrointestinal bleeding.1 In a June 25, 2005 statement, he alleged that he
was exposed to high levels of asbestos while working at the WTC site. The employee began to
experience rectal bleeding in the spring of 2001, but an August 15, 2001 colonoscopy was
negative. He submitted an Environmental Protection Agency (EPA) documents regarding
asbestos sampling data for the WTC.
With respect to the medical evidence, the employee provided a hospital discharge report
dated January 21, 2005, which diagnosed colon cancer based on a computerized tomography
scan. In an undated report received by the Office on March 15, 2005, Dr. Daniel Teitelbaum, a
toxicologist, noted that the employee had performed inspections of facilities with toxic materials
and had been at the WTC after September 11, 2001. He stated that it was recognized that colon
cancer was increased in individuals with exposure to asbestos. Dr. Teitelbaum opined that it
“seems reasonable to me that there is a significant likelihood that asbestos exposure at the WTC
site had a promotional influence on what may have been a latent colon cancer.” By report dated
May 25, 2005, Dr. Christopher Gonzalez stated that based on his review of medical records, the
employee’s colon cancer was Stage 1 as of November 2001.
The Office prepared a statement of accepted facts and referred the employee for second
opinion examinations.
In a report dated September 12, 2005, Dr. Nuray Bilir, a
gastroenterologist, provided a history and results on examination. He indicated that the
employee had an early presentation of colon cancer and asbestos had been found to be associated
with an increased risk of colon cancer. Dr. Bilir opined asbestos “might have contributed to his
colon cancer formation.” In a report dated November 15, 2005, he stated that, while the medical
literature did not show direct evidence of a cause and effect relationship, there was enough
evidence to raise a suspicion of causal relationship and it could not be ruled out in the
employee’s case. In a December 9, 2005 report, Dr. Bilir stated that it was “with reasonable
medical probability that the claimant’s work-related asbestos exposure contributed to the
claimant’s colon cancer.”
The employee was also seen for second opinion examination by Dr. Scott Phillips, a
toxicologist. In a report dated October 10, 2005, Dr. Phillips provided a history and results on
examination. Based on his review of medical records and scientific literature, there was no
evidence to support causation of asbestos with the employee’s adenocarcinoma of the colon.
Dr. Phillips stated that, although the epidemiologic studies suggested a slightly positive
relationship between colon cancer and asbestos overall, there were other studies that did not
support such an association. He concluded, “On the long latency associated with solid tumors it
would be extraordinarily unlikely for this tumor to have appeared in such a short time period
following exposure. Furthermore, in studying the scientific literature there is no evidence to
support asbestos as a promot[e]r of adenocarcinoma of the colon or of a progresser for
adenocarcinoma of the colon.”
1

Appellant had filed a CA-2 form on June 25, 2002 alleging a respiratory condition causally related to the
February 21, 2001 inspection and exposure at the WTC site from November 19 to 23, 2001. This OWCP File No.
xxxxxx021, is a subsidiary file of the current case file on appeal.

2

The Office referred the employee for an additional second opinion examination by
Dr. Jan Gray, an oncologist. With respect to a colonoscopy in August 2001, Dr. Gray noted that
given the size of the current size of the tumor it would have been too small for detection in 2001.
He stated that there was “no mainline cancer literature” to support causal relationship between
asbestos and colon cancer. Dr Gray further opined “the exposure to various inhalants required
by his job is not related to the onset of carcinoma of the colon. Unfortunately, he has eventually
terminal metastatic carcinoma of the colon; however, it is unrelated to environmental exposures
as best one can determine. I find no evidence to support that association.” In a February 16,
2006 report, he stated that he had reviewed additional medical evidence and his opinion
remained unchanged.
By decision dated March 8, 2006, the Office denied the claim for compensation. It stated
that the weight of the medical evidence was represented by Dr. Gray.
The employee requested a hearing before an Office hearing representative, which was
held on November 6, 2006. Additional medical evidence was submitted. In a report dated
October 12, 2006, Dr. Richard Martin, a pulmonologist, stated that lung function testing had
shown a decrease in forced vital capacity (FVC) and forced expiratory volume in one second
(FEV1) after WTC exposure. He opined that the exposure had affected lung function. With
respect to colon cancer, Dr. Martin opined that hazardous exposure had compromised the
employee’s immune system, allowing cancer cells to rapidly expand.
In a report dated October 30, 2006, Dr. Andras Korenyi-Both, a pathologist, stated that
the employee developed Al Eskan disease after exposure to toxic dust at the WTC site. He
opined that the Al Eskan disease promoted his metastatic cancer. In a report dated November 2,
2006, Dr. Teitelbaum discussed both respiratory conditions and colon cancer. He stated that
there was little doubt that workers employed in the clean up of the WTC site were exposed to a
complex mixture that was likely to cause respiratory problems. Dr. Teitelbaum opined that the
employee developed occupational asthma as a result of his employment exposure. With respect
to colon cancer, he stated that cancer was a multi-stage disorder. Dr. Teitelbaum noted that most
researchers believe that asbestos functions as a promoter rather than as a genotoxic material and
if the employee had already developed some of the precursor steps toward a colon malignancy
prior to his work at the WTC, exposure to the aerosol and the particles such as asbestos,
chromium, cadmium and vanadium, would more probably than not have contributed to the
promotion of his colon cancer.
By decision dated January 19, 2007, the Office hearing representative set aside the
March 8, 2006 decision. The hearing representative found a conflict in medical opinion arose
between second opinions physicians Dr. Gray and Dr. Phillips and the attending physicians,
Drs. Teitelbaum, Korenyi-Both and Martin, regarding the causal relationship of colon cancer or a
respiratory condition with the federal employment exposures.
The Office referred appellant, a statement of accepted facts and medical records, to
Dr. Thomas Beller, a pulmonologist, and Dr. Michael Perry, an oncologist. In a report dated
August 21, 2007, Dr. Beller stated that he had reviewed the medical file and the statement of
accepted facts. He noted the employee’s exposure at the waste treatment plant and the WTC site,
finding that asbestos exposure required a lengthy exposure of months or years before the

3

occurrence of respiratory disease. Dr. Beller also reported that, while asbestos exposure can
cause respiratory problems, it does not cause asthma or obstructive pulmonary disease. He stated
that the decrease in lung function was not clinically significant. Dr. Beller concluded that the
employee did not have any diagnosed condition causally related to his federal employment
exposures .
In a report dated August 28, 2007, Dr. Perry also reviewed the relevant evidence. He
stated:
“Given the growth rate of colon cancers (about 90 [to] 100 days) and his 6
[centimeters] tumor at diagnosis it is unlikely that he had a visible tumor that was
missed on the colonoscopy of 2001. While there is an interaction between
mutagen exposure and genetic constitution at this time we cannot tell whether his
exposures contributed in any way to the development of his colon cancer. He did
have a positive family history in his grandfather with polyps found in his father. I
am unaware of any textbook of oncology that considered asbestos, for example, as
a carcinogen for the development of colorectal cancer.”
Dr. Perry was also asked to discuss whether employee had a compromised immune
system. He opined that there was no objective evidence of a compromised immune system.
By decision dated August 30, 2007, the Office denied the claim for compensation. It
found that the weight of the evidence was represented by Drs. Beller and Perry and did not
establish colon cancer or a respiratory condition as employment related.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Ruby I. Fish, 46 ECAB 276, 279 (1994).

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Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.6
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and the claimant’s specific
employment factors.7
ANALYSIS
The employee filed two claims for compensation in this case, based on specific incidents
from 2001. He identified a February 21, 2001 inspection of a waste treatment plant as well as
the period November 19 to 23, 2001 when he worked at the WTC site. The employee alleged
that he was exposed to various chemicals during the inspection and to asbestos and other
substances at the WTC site. A January 29, 2007 statement of accepted facts indicated that the
employee was exposed to dioxin, mercury, HCL and toxic ash during the February 21, 2001
inspection. Regarding the WTC exposure, the Office accepted that the employee was exposed to
asbestos levels from .006 to .230 and was exposed to building materials and various metals. The
initial claim in 2002 was for a respiratory injury while the 2005 claim was for colon cancer.
An Office hearing representative found that there was a conflict in the medical evidence
under 5 U.S.C. § 8123(a) on the issue of whether there was an injury causally related to the
employment incidents.8 The employee submitted medical reports from Drs. Teitelbaum,
Korenyi-Both and Martin regarding causal relationship. Dr. Teitelbaum found an occupational
asthma, as well as the colon cancer, causally related to the employment exposure. Dr. Martin
found an impaired lung function resulting from the employment exposure, and Dr. Korenyi-Both
opined that the colon cancer developed after exposure to toxic dust at the WTC site. On the
other hand, second opinion physician, Dr. Gray, opined that the colon cancer was not
employment related. Second opinion physician Dr. Phillips also found no causal relationship
between the colon cancer and the employment exposure.
On the issue of causal relationship between the diagnosed colon cancer and the identified
employment factors, there was a conflict under 5 U.S.C. § 8123(a). The Board notes that
although the Office hearing representative appeared to find a conflict with regard to a respiratory
5

See Robert G. Morris, 48 ECAB 238 (1996).

6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

8

5 U.S.C. § 8123(a) provides that, if there is a disagreement between the physician making the examination for
the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make
the examination. The implementing regulation states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an Office medical adviser, the
Office shall appoint a third physician to make an examination. This is called a referee examination and the Office
will select a physician who is qualified in the appropriate specialty and who has no prior connection with the case.
20 C.F.R. § 10.321 (1999).

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condition, neither Dr. Gray nor Dr. Phillips had offered an opinion on this issue. There was no
conflict. Therefore, the referral to pulmonologist, Dr. Beller, was as a second opinion
physician.9
With respect to the colon cancer claming the question is whether Dr. Perry, the referee
physician, properly resolved the conflict. The Board finds that Dr. Perry did not provide an
unequivocal, rationalized medical opinion on the issue presented. Dr. Perry stated that it was
unlikely a visible tumor was missed by the 2001 colonoscopy, without fully explaining how this
related to the issue of causal relationship. He then stated, “While there is an interaction between
mutagen exposure and genetic constitution at this time we cannot tell whether his exposures
contributed in any way to the development of his colon cancer.” This equivocal statement does
not constitute a rationalized medical opinion. While Dr. Perry noted a positive family history for
cancer and the lack of an oncology literature establishing asbestos as a carcinogen for colon
cancer, he did not clearly state whether appellant’s colon cancer was causally related to the
accepted employment exposures. The second opinion physician Dr. Gray, for example, had
noted the family history but he stated that he did not believe it was a factor in the employee’s
cancer. If Dr. Perry felt the family history or other factors were important to the causal
relationship issue then he must provide some explanation. He did not have provide an opinion of
reasonable medical certainty. To resolve the conflict, however, Dr. Perry must provide a clearly
stated opinion that is supported by medical rationale. The case will be remanded to the Office to
request clarification from Dr. Perry. It should secure a rationalized medical opinion on the
causal relationship between the employee’s colon cancer and the identified employment factors.
After such further development as the Office deems necessary, it should issue an appropriate
decision.
As to the claim for a respiratory condition, the Board finds the weight of the evidence
was represented by Dr. Beller. Dr. Martin had described what he felt was a lung dysfunction,
without providing a clear diagnosis or a rationalized medical opinion. Dr. Teitelbaum referred to
occupational asthma in his November 2, 2006 report, without discussing in detail the relevant
medical history regarding a diagnosed asthma condition. He referred to both an aggravation of
preexisting asthma as well a new occupational asthma, without clearly explaining his opinion on
causal relationship with employment. Dr. Teitelbaum did not provide a rationalized medical
opinion based on a complete background. The second opinion physician, Dr. Beller, provided a
medical opinion with supporting medical rationale. He explained that asbestos required a long
exposure period, found the decrease in lung function to clinically insignificant and found no
diagnosed respiratory condition was causally related to the employment exposures. Dr. Beller’s
report therefore represents the weight of the evidence on this issue.
CONCLUSION
The case will be remanded to the Office to properly resolve the conflict in the medical
evidence on the issue on causal relationship between the employee’s colon cancer and federal
employment. The evidence of record does not establish a respiratory condition causally related
to the identified employment exposures.
9

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 30, 2007 is set aside on the issue of causal relationship
between colon cancer and federal employment and remanded for further action consistent with
this decision of the Board. The August 30, 2007 decision is affirmed with respect to a
respiratory condition.
Issued: November 4, 2008
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grosse Ile, MI, Employer
__________________________________________

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

Docket No. 08-104
Issued: May 6, 2008

Case Submitted on the Record

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

JURISDICTION
On October 12, 2007 appellant filed a timely appeal from March 26 and September 11,
2007 decisions of the Office of Workers’ Compensation Programs denying her occupational
disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant has established that she sustained a lumbar condition in the
performance of duty.
FACTUAL HISTORY
On January 22, 2007 appellant, then a 51-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained lumbar pain radiating into her left leg and
left arm pain in the performance of duty on or before February 25, 2005. She attributed her
condition to casing mail, pulling heavy equipment, prolonged sitting, entering and exiting her
mail vehicle, twisting, turning, bending and reaching. Appellant noted first seeking medical care

in March 2005 and that she was scheduled for spine surgery on February 27, 2007. Appellant
had intermittent work absences while on light duty in 2006. Timekeeping forms show that she
checked a box indicating that December 2006 absences were not work related. Appellant
stopped work on January 24, 2007.
In a January 30, 2007 letter, an employing establishment official noted that, in
February 2005, appellant changed crafts from clerk to city carrier, a more physically demanding
job. It was at this time that she first sought medical attention for back problems. The employing
establishment submitted January 2007 statements from Pamela Collins, postmaster, and Linda
Butler and Linda Gersky, supervisors, asserting that appellant’s symptoms were due to “female
problems.” They alleged that appellant stated she would file a fraudulent compensation claim if
a request for advanced sick leave for back surgery was denied.1
In a February 13, 2007 letter, the Office advised appellant that supervisory statements
and timekeeping forms indicated that the claimed back condition was not work related. The
Office requested that appellant explain why she believed her back condition was related to work
factors. Also, appellant was directed to submit rationalized reports from her attending physician
explaining how and why the identified work factors would cause or aggravate the claimed
condition.
In a February 24, 2007 letter, appellant asserted that her supervisors misinterpreted her
remarks. She alleged that supervisors refused her leave requests to avoid work shortfalls that
would make them look bad. Appellant submitted medical evidence.
Dr. Shlomo S. Mandel, an attending Board-certified internist specializing in occupational
medicine, submitted reports regarding appellant’s degenerative disc disease from April 2006 to
January 24, 2007. He did not address causal relationship.
In a February 7, 2007 form report, Dr. Thomas Pinson, an attending osteopathic
physician specializing in family practice, provided a history of injury as “repetitive injury
February 2004 progressive.”2 He diagnosed degenerative joint disease of the lumbosacral spine,
with surgery scheduled for March 2007. Dr. Pinson checked a box “yes” indicating his support
for causal relationship.
In a February 8, 2007 form report, Dr. Stephen Bartol, an attending Board-certified
orthopedic surgeon, noted a two-year history of lumbar pain radiating into the left leg. He
diagnosed multilevel degenerative disc disease and disc bulging at L4-5 and L5-S1 with
compression of the L4 and L5 nerve roots. Appellant underwent a left L4-5 and L5-S1
decompression, laminectomy and foraminotomy on March 2, 2007.
By decision dated March 26, 2007, the Office denied appellant’s claim on the grounds
that causal relationship was not established. The Office accepted that the identified work factors
1

The employing establishment approved appellant’s Family and Medical Leave Act (FMLA) request on
February 23, 2007.
2

A June 9, 2005 lumbar magnetic resonance imaging (MRI) scan showed degenerative changes with central and
neuroforaminal compromise at L1-2, L4-5 and L5-S1.

2

occurred at the time, place and in the manner alleged. The Office found that appellant submitted
insufficient rationalized medical evidence supporting a causal relationship between the accepted
work factors and the claimed lumbar condition.
In a letter postmarked April 19, 2007, appellant requested an oral hearing, held
August 8, 2007. At the hearing, she asserted that she fell at work on September 12, 2006 but did
not file a claim as she was not injured. Appellant reiterated that she never told her supervisors
that she would file a fraudulent claim. She alleged that Ms. Butler, Ms. Collins and Ms. Gersky
were removed or reassigned due to managerial misconduct.
After the hearing, appellant’s supervisors submitted letters contending that appellant filed
a fraudulent claim and that they were not removed for cause. Appellant submitted statements
denying she filed a false claim and asserting that the supervisors were transferred due to
misconduct.
By decision dated and finalized September 11, 2007, the Office affirmed the March 26,
2007 decision, finding that appellant did not establish that she sustained a back condition in the
performance of duty on the grounds that causal relationship was not established. The Office
hearing representative noted the supervisory statements attributing appellant’s symptoms to
“female problems” and alleging that her December 2006 absences were not occupationally
related. The hearing representative found that, despite these protestations, the medical evidence
clearly established that appellant had a lumbar condition. However, appellant submitted
insufficient medical evidence to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/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 an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

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which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medial 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.6
ANALYSIS
Appellant alleged that she developed a back condition due to casing mail and delivering
mail on or before February 25, 2005. The Office accepted that appellant performed such duties,
but denied her claim on the grounds that the medical evidence was not sufficient to establish that
these work factors caused or aggravated the claimed condition.
In support of her claim, appellant submitted reports from three attending physicians.
Dr. Mandel, a Board-certified internist, diagnosed degenerative disc disease in reports from
April 2006 to January 2007. Dr. Bartol, a Board-certified orthopedic surgeon, in a February 8,
2007 form report diagnosed multilevel degenerative disc disease necessitating surgery.
However, neither physician addressed appellant’s work factors or discussed causal relationship.
Their opinions are insufficient to meet appellant’s burden of proof.7
Appellant also submitted a February 7, 2007 form report from Dr. Pinson, an osteopathic
physician specializing in family practice, who diagnosed progressive lumbosacral degenerative
joint disease, characterizing the condition as a “repetitive injury” with an onset in February 2004.
Dr. Pinson did not identify any work factors as the repetitive tasks that caused or contributed to
appellant’s back condition. Also, he stated that appellant’s condition began in February 2004
whereas she asserted it began in February 2005. This inaccuracy diminishes the probative value
of Dr. Pinson’s opinion.8 Dr. Pinson also checked a box “yes” indicating his support for causal
relationship. However, it is well established that the checking of a box yes in a form report,
without additional explanation or rationale, is not sufficient to establish causal relationship.9
Dr. Pinson’s opinion is thus insufficient to establish causal relationship.
The Board notes that appellant was advised by a February 13, 2007 letter of the
importance of submitting a rationalized report from her physician explaining how and why work
factors would cause the claimed condition. However, appellant did not submit such evidence.

6

Solomon Polen, 51 ECAB 341 (2000).

7

See Jimmie H. Duckett, 52 ECAB 332 (2001); Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
8

James R. Taylor, 56 ECAB 537 (2005).

9

Sedi L. Graham, 57 ECAB ___ (Docket No. 06-135, issued March 15, 2006).

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Appellant has not established that she sustained a back condition in the performance of
duty, as she submitted insufficient rationalized medical evidence to establish the asserted causal
relationship.
CONCLUSION
The Board finds that appellant has not established that she sustained a lumbar condition
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated and finalized September 11 and March 26, 2007 are affirmed.
Issued: May 6, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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Appearances:
C.B. Weiser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-285
Issued: May 8, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 20, 2013 appellant, through his attorney, filed a timely appeal from a
September 5, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant had employment-related disability after March 11, 2012.
FACTUAL HISTORY
On March 13, 2008 appellant, then a 38-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that he sustained injuries to his feet as a result
of walking and standing in federal employment.
OWCP accepted the claim on
February 24, 2009 for bilateral plantar fibromatosis and bilateral calcaneal spurs. In a report
1

5 U.S.C. § 8101 et seq.

dated February 12, 2010, Dr. Robert Moore, a podiatrist, advised that appellant underwent left
foot surgery.2 He received compensation for wage-loss on the periodic rolls as of
February 12, 2010.
OWCP referred appellant for a second opinion examination by Dr. Robert Fulford, a
Board-certified orthopedic surgeon. In a report dated July 1, 2010, Dr. Fulford opined that
appellant was capable of returning to his date-of-injury position. On August 9, 2010 Dr. Moore
disagreed with Dr. Fulford and stated that appellant could only work sedentary duty.
To resolve the conflict in medical opinion as to appellant’s employment-related
disability, OWCP selected Dr. Grant McKeever, a Board-certified orthopedic surgeon, as the
referee physician. In a report dated September 23, 2010, Dr. McKeever reviewed a history of
injury provided and results on examination. He diagnosed status post left foot plantar
fasciotomy release and calcaneal exostectomy. Dr. McKeever found that the left foot condition
did not prevent appellant from returning to his date-of-injury position.
On October 4, 2010 appellant submitted a September 30, 2010 functional capacity
evaluation (FCE). In a letter dated October 12, 2010, OWCP advised him that it proposed to
terminate compensation for wage loss based on the weight of the medical evidence. By decision
dated November 15, 2010, it terminated wage-loss compensation effective November 21, 2010.
Appellant requested a hearing before an OWCP hearing representative. By decision
dated February 7, 2011, the hearing representative reversed the November 15, 2010 termination
decision. The hearing representative found that Dr. McKeever did not specifically address the
right foot condition or the FCE findings.
On March 17, 2011 Dr. McKeever submitted an addendum report. He noted that,
although appellant originally claimed bilateral foot pain, all of the injections and surgeries were
performed on the left foot. Dr. McKeever stated that there were no objective findings on
examination and his opinion was unchanged.
By letter dated March 25, 2011, OWCP advised appellant that it proposed to terminate
his compensation for wage loss. In a decision dated April 27, 2011, it terminated wage-loss
compensation effective May 8, 2011.
Appellant again requested a hearing before an OWCP hearing representative. By
decision dated July 27, 2011, the hearing representative set aside the April 27, 2011 decision.
The hearing representative found Dr. McKeever did not address the FCE findings as requested in
the February 7, 2011 decision.
On August 25, 2011 Dr. McKeever submitted an additional report. He did not agree with
the FCE findings that showed appellant was capable of only sedentary duty. Dr. McKeever
stated that there were no significant physical findings on the physical examination, only slight
2

Dr. Moore described the surgery as a resection of plantar fascial band, left midfoot neuroplasty with release of
the adhesions, left midfoot and rearfoot/inferior release of the flexor digitorum brevis muscle belly origin, left
foot/resection of scar tissue, left foot.

2

tenderness over the sole with no calluses, bunions or hammer toe. He reported that appellant
walked with a normal heel to toe gait. Dr. McKeever concluded that his opinion remained
unchanged.
By letter dated August 29, 2011, OWCP again advised appellant that it proposed to
terminate wage-loss compensation based on the medical evidence. In a report dated
September 8, 2011, Dr. Moore indicated that left foot surgery was recommended. He stated that
the proposed surgery was a neuroplasty with release of adhesions, plantar fasciectomy with
excision of plantar fibroma.
OWCP referred the case to its medical adviser for an opinion as to the necessity for
surgery. In a report dated September 15, 2011, Dr. Ronald H. Blum, a Board-certified
otolaryngologist and OWCP medical adviser, opined that the proposed surgery was not within
accepted medical practice. He noted that appellant had two prior left foot surgeries that provided
no lasting improvement and the proposed surgery was essentially the same procedure. The
medical adviser recommended a second opinion evaluation on the issue.
Appellant was referred to Dr. Donald Mauldin, a Board-certified orthopedic surgeon, for
a second opinion examination. In a report dated October 27, 2011, Dr. Maudlin provided a
history and results on examination. He opined that there was no evidence that surgery was
necessary. Dr. Mauldin noted that the prior foot surgeries had failed to provide relief and there
was no indication that a third surgery would have any benefit.
OWCP found a conflict in medical opinion on the need for surgery and selected
Dr. Frank Barnes, a Board-certified orthopedic surgeon, as the referee physician. In a report
dated January 3, 2012, Dr. Barnes provided a history and results on examination, diagnosing
plantar fasciitis. He opined that a neuroplasty surgery was not indicated as there was no
demonstrable nerve problem. Dr. Barnes stated that an extensive fasciectomy would probably
not help, noting the lack of improvement with prior surgeries and would increase the risk of the
foot collapsing into a flatfoot deformity.
By letter dated January 20, 2012, OWCP advised appellant that it proposed to terminate
wage-loss compensation. Appellant was advised to submit evidence or argument within 30 days.
By decision dated February 22, 2012, OWCP terminated compensation for wage loss effective
March 11, 2012. It also denied authorization for the proposed surgery. On February 24, 2012
OWCP received additional evidence, including a September 26, 2011 report from Dr. Moore. In
the September 26, 2011 report, Dr. Moore stated that appellant had developed a plantar
fibromatosis and the accepted standard of surgical treatment was a complete plantar fasciectomy.
Appellant requested a hearing before an OWCP hearing representative, which was held
on June 11, 2012. Counsel argued that he had timely mailed evidence on February 19, 2012 that
OWCP did not consider in the February 22, 2012 decision.
By decision dated September 6, 2012, OWCP’s hearing representative affirmed the
termination of wage-loss compensation, finding that Dr. McKeever represented the weight of the
medical evidence. She reviewed all of the evidence of record, including evidence received after

3

February 22, 2012. The hearing representative also affirmed the denial of authorization for
surgery.
By letter dated December 7, 2012, appellant requested reconsideration of his claim. He
argued that OWCP had erred as the district office did not consider evidence mailed on
February 19, 2012. Appellant also argued that Dr. McKeever should not represent the weight of
the medical evidence as his findings were inconsistent with the FCE.
Appellant resubmitted a November 3, 2010 report from Dr. Jason Armstrong, a podiatrist,
who listed results on examination. In a report dated November 1, 2012, Dr. Jerry Miles, a
podiatrist, reported that appellant had symptoms consistent with scarred adhesion of the plantar
fascial band in the left foot. He stated that appellant was unable to return to work due to
difficulty wearing shoes and he stated that appellant needed the surgery proposed by Dr. Moore.
Appellant also submitted continuing reports from Dr. Moore regarding treatment for left foot
pain.
By decision dated March 11, 2013, OWCP reviewed the case on its merits and denied
modification. It found that the medical evidence did not establish a continuing employmentrelated disability.
In a letter dated June 17, 2013, appellant again requested reconsideration. He reiterated
that OWCP failed to consider evidence mailed on February 19, 2012 and that Dr. McKeever did
not represent the weight of the evidence. Appellant submitted reports from Dr. Moore dated
February 7, April 8 and 26 and June 6, 2013. Dr. Moore advised that appellant was limited to
light duty, with 2 hours of alternate sitting and 20 minutes standing/walking.
By decision dated September 5, 2013, OWCP reviewed the case on its merits. It found
that the evidence was not sufficient to modify the March 11, 2013 decision.
LEGAL PRECEDENT
After termination or modification of benefits clearly warranted on the basis of the evidence,
the burden for reinstating compensation benefits shifts to appellant. In order to prevail, appellant
must establish by the weight of the reliable, probative and substantial evidence that he had an
employment-related disability which continued after termination of compensation benefits.3
The Board has noted that in assessing medical evidence the weight of such evidence is
determined by its reliability, its probative value and its convincing quality. The factors which
enter in such an evaluation include the opportunity for and thoroughness of examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of the analysis manifested and the medical rationale expressed is support of the physician’s
opinion.4

3

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

4

Gary R. Sieber, 46 ECAB 215 (1994).

4

ANALYSIS
OWCP terminated wage-loss compensation, effective March 11, 2012 in a decision dated
February 22, 2012. This determination was reviewed by a hearing representative in a decision
dated September 6, 2012. The Board notes that appellant argued that OWCP erred because
evidence was mailed on February 19, 2012, which was within 30 days of a January 19, 2012
notice of proposed termination. The Board notes that OWCP regulations provide that a claimant
must be given notice that he or she has 30 days to submit relevant evidence or argument
regarding a proposed termination, and if he or she does not respond within 30 days of the written
notice, OWCP will issue an appropriate decision.5 Appellant did not respond within 30 days of
the January 20, 2012 notice, as the evidence was not received until February 24, 2012. Even so,
OWCP’s hearing representative reviewed all evidence of record prior to the September 6, 2012
decision. Therefore, OWCP took the evidence into consideration in a subsequent merit decision.
With regard to the September 6, 2012 hearing representative decision, appellant had an
opportunity to request a timely appeal of this decision. He did not request an appeal, but
requested reconsideration and submitted evidence relative to his continuing treatment. As noted
above, when compensation has been properly terminated, the burden shifts to appellant to
establish continuing employment-related disability after the date of termination. In this case it is
his burden of proof to establish that he had an employment-related disability after
March 11, 2012.
Appellant did not meet his burden of proof. The November 1, 2012 report from
Dr. Miles did not provide a complete history or an adequate factual and medical background.
Dr. Miles noted only that appellant had sustained a left foot injury and was treated by Dr. Moore.
The brief statement that appellant was unable to work due to difficulty with wearing shoes is not
sufficient to establish an employment-related disability after March 11, 2012.
Dr. Moore reiterated his opinion that appellant was capable of light duty with limitations
on sitting, standing and walking. These reports are not sufficient to establish a period of
employment-related disability after March 11, 2012. Dr. Moore had opined that appellant could
work only light duty since 2010, and had been on one side of the conflict under 5 U.S.C.
§ 8123(a).6 As noted by the hearing representative, the conflict was resolved by the reports from
Dr. McKeever, who found that appellant could return to his date-of-injury position. The
additional notes of Dr. Moore that appellant can only work with restrictions are not sufficiently
rationalized to establish employment-related disability after March 11, 2012.
On appeal, appellant argues that Dr. McKeever’s report was not sufficient to terminate
compensation as it was not a rationalized opinion and conflicted with the FCE. As noted above,
OWCP’s hearing representative reviewed the evidence of record on this issue and found that
Dr. McKeever represented the weight of the medical evidence. Appellant did not timely request
5

20 C.F.R. § 540, 541.

6

Additional reports from a physician on one side of the conflict that is properly resolved by a referee specialist
are generally insufficient overcome the weight accorded the referee’s report or create a new conflict. See Harrison
Combs, Jr., 45 ECAB 716 (1994); Dorothy Sidwell, 41 ECAB 857 (1990).

5

an appeal of the September 6, 2012 decision. For the reasons noted above, the Board finds that
he has not established an employment-related disability after March 11, 2012. Appellant may
submit new evidence or argument with a written request for reconsideration to OWCP within one
year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through
10.607.
CONCLUSION
The Board finds that appellant has not established an employment-related disability after
March 11, 2012.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 5, 2013 is affirmed.
Issued: May 8, 2014
Washington, DC

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

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

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

6


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

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

Docket No. 14-1786
Issued: December 10, 2014

Case Submitted on the Record

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

JURISDICTION
On August 11, 2014 appellant, through counsel, filed a timely appeal from the May 28,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has
permanent impairment entitling her to schedule award compensation.
FACTUAL HISTORY
OWCP accepted that on March 31, 2005 appellant, then a 49-year-old letter carrier,
sustained bilateral knee contusions due to a fall at work. She stopped work on April 1, 2005 and
received disability compensation on the periodic rolls. Appellant was referred by OWCP to a
vocational rehabilitation program in August 2008.
1

5 U.S.C. §§ 8101-8193.

In a December 11, 2009 decision, OWCP reduced appellant’s compensation to zero
effective December 20, 2009 under 5 U.S.C. § 8113(b) to reflect her loss of wage-earning
capacity had she continued to participate in vocational rehabilitation efforts. It determined that
she had failed, without good cause, to undergo vocational rehabilitation as directed. In a
May 11, 2010 decision, an OWCP hearing representative affirmed OWCP’s December 11, 2009
decision.
In an April 21, 2010 report, Dr. Albert Graziosa, an attending Board-certified orthopedic
surgeon, indicated that physical examination of appellant’s knees showed full extension and
flexion to 110 degrees bilaterally. He diagnosed “bilateral knee contusions with internal
derangement in today for scheduled losses” and stated that, based on the medical guidelines of
the New York State Workmen’s Compensation Board, appellant had a scheduled loss of
approximately 10 percent for a lack of full flexion, as well as an additional 10 percent for
chondromalacia of the patellas which was evident clinically. Therefore, she had a 20 percent
scheduled loss to both knees.2
On August 5, 2010 an OWCP medical adviser reviewed the April 21, 2010 report of
Dr. Graziosa and indicated that it had limited probative value regarding appellant’s claimed
permanent impairment because it did not contain an impairment rating that was carried out in
accordance with the standards of the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (6th ed. 2009) (hereinafter A.M.A., Guides).
On December 20, 2010 Dr. Graziosa noted that physical examination revealed tenderness
diffusely around portions of the medial joint lines of appellant’s knees bilaterally. He stated, in
the impression portion of the report, “Bilateral knee contusions, internal derangement with 20
percent scheduled loss of use.”
By decision dated May 11, 2011,3 the Board affirmed OWCP’s reduction of appellant’s
compensation to zero effective December 20, 2009 to reflect her loss of wage-earning capacity
had she continued to participate in vocational rehabilitation efforts.
In a June 7, 2011 report, Dr. David E. Lent, an attending Board-certified orthopedic
surgeon, stated that appellant had point tenderness over the medial joint line and patellar facet
tenderness on physical examination and diagnosed “left medial meniscus tear, still symptomatic
six years after the injury.” He indicated that appellant needed further treatment for her knees and
stated, “I cannot do an impairment rating as I do not believe the patient has reached her
[maximum medical improvement].”
In a July 19, 2011 report, Dr. Graziosa stated that appellant presented on that date for
reevaluation of ongoing bilateral knee pain secondary to a work-related injury from March 2005.
Appellant reported that she continued to have pain and discomfort which was worse at the
extremes and that her left knee was “really painful.” Dr. Graziosa stated that physical
examination on July 19, 2011 revealed a significant amount of tenderness around portions of the
2

An impairment form was signed by Dr. Graziosa on an unspecified date and received by OWCP on
July 7, 2010. The form was not completed and contained the notation “refer to medical note.”
3

Docket No. 10-1707 (issued May 11, 2011).

2

medial joint lines of her knees, that there was severe crepitus on the left side and that she was
able to fully extend and flex to about 120 degrees. He indicated that appellant’s disability was
“total” and stated in the impression portion of the report, “Bilateral knee contusions with internal
derangement, issued a 20 percent scheduled loss of use to both knees.”
On January 3, 2012 appellant filed a claim for a schedule award due to her March 31,
2005 work injury.
In a letter dated March 13, 2013, OWCP advised appellant that she needed to submit a
medical report which evaluated her claimed permanent impairment under the standards of the
sixth edition of the A.M.A., Guides. It enclosed an impairment rating worksheet for her
attending physician to complete and provided her 30 days to submit the requested evidence.
Counsel, on behalf of appellant, resubmitted a copy of the July 19, 2011 report of
Dr. Graziosa. In a cover sheet, he indicated that the July 19, 2011 report included a worksheet
but no such worksheet is in the record. On April 15, 2013 appellant contacted OWCP by
telephone and advised that her attending physician was unable to complete the impairment rating
worksheet it had provided.
In a September 20, 2013 decision, OWCP denied appellant’s schedule award claim on the
grounds that she did not submit sufficient medical evidence to show that she has permanent
impairment entitling her to schedule award compensation. It indicated that appellant had not
submitted a medical report that evaluated her claimed impairment under the standards of the
sixth edition of the A.M.A., Guides.4
Appellant requested a telephonic hearing with an OWCP hearing representative. During
the March 13, 2014 hearing, counsel indicated that appellant was in the process of obtaining an
impairment rating evaluation. He argued that the submission of the July 19, 2011 report of
Dr. Graziosa should have led to further development of the evidence by OWCP. OWCP hearing
representative indicated that the record would be held open for 30 days for the submission of
additional evidence.
By decision dated May 28, 2014, OWCP hearing representative affirmed its
September 20, 2013 decision denying appellant’s schedule award claim noting that she had not
submitted medical evidence showing that she has permanent impairment under the standards of
the sixth edition of the A.M.A., Guides.

4

With respect to the July 19, 2011 report of Dr. Graziosa, OWCP stated:
“Dr. Graziosa did not provide a description of any restriction of movement in terms of degrees of
retained active. [He] did not provide a description of all other pertinent objective findings -decrease of strength, atrophy, ankylosis, sensory changes, or other, as applicable. Dr. Graziosa did
not provide the description of subjective complaints causing impairment -- pain, discomfort, etc.
[He] did not show how he arrived at the figure using applicable tables in the [A.M.A., Guides].
Dr. Graziosa did not identify the specific sections and pages of the [A.M.A., Guides] he used to
arrive at your final percentage. [He] did not complete a QuickDASH worksheet. Dr. Graziosa did
not provide the date when maximum medical improvement was reached.”

3

LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, 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. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.8 It is well established that, in determining the amount of a
schedule award for a member of the body that sustained an employment-related permanent
impairment, preexisting impairments of the body are to be included.9 There is no basis for
including subsequently acquired conditions.10
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 509.11 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 grade modifier for
Functional History (GMFH), grade modifier for Physical Examination (GMPE) and grade
modifier for Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE
- CDX) + (GMCS - CDX).12
ANALYSIS
OWCP accepted that on March 31, 2005 appellant sustained bilateral knee contusions
due to a fall at work. Appellant filed a claim for a schedule award due to her March 31, 2005
work injury.
The Board finds that appellant did not submit sufficient medical evidence to meet her
burden of proof to establish that she has permanent impairment entitling her to schedule award
compensation. Although appellant’s treating physician attempting to provide a rating of her
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

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

9

D.F., 59 ECAB 288 (2007); Kenneth E. Leone, 46 ECAB 133 (1994).

10

R.G., Docket No. 13-220 (issued May 9, 2013).

11

See A.M.A., Guides 509-11 (6th ed. 2009).

12

Id. at 515-22.

4

permanent functional impairment, he failed to provide a rating under the sixth edition of the
A.M.A., Guides in accordance with OWCP regulations.
In an April 21, 2010 report, Dr. Graziosa, an attending Board-certified orthopedic
surgeon, indicated that physical examination of appellant’s knees showed full extension and
flexion to 110 degrees bilaterally. He diagnosed “bilateral knee contusions with internal
derangement in today for scheduled losses” and stated that, based on the medical guidelines of
the New York State Workmen’s Compensation Board, appellant had a 20 percent impairment in
each knee based on lack of full flexion and chondromalacia of the patellas. On December 20,
2010 Dr. Graziosa stated, in the impression portion of the report, “Bilateral knee contusions,
internal derangement with 20 percent scheduled loss of use.” In a July 19, 2011 report, he
indicated that physical examination on that date revealed a significant amount of tenderness
around portions of the medial joint lines of appellant’s knees, that there was severe crepitus on
the left side and, that she was able to fully extend and flex to about 120 degrees. Dr. Graziosa
noted in the impression portion of the report, “Bilateral knee contusions with internal
derangement, issued a 20 percent scheduled loss of use to both knees.”
Although Dr. Graziosa provided an opinion that appellant had a 20 percent permanent
impairment in each knee, this opinion is of limited probative value because he did not explain
how this rating was derived under the relevant standards for evaluating such impairment in this
case, i.e., the sixth edition of the A.M.A., Guides.13 The Board has held that an opinion on
permanent impairment is of limited probative value if it is not derived in accordance with the
standards adopted by OWCP and approved by the Board as appropriate for evaluating schedule
losses.14 The sixth edition of the A.M.A., Guides provides specific and detailed methods for
evaluating permanent impairment stemming from injury to the knee, including identifying a
diagnosis-based impairment and calculating grade modifiers for functional history, physical
examination and clinical studies. Clearly, Dr. Graziosa did not carry out any such evaluation
under the A.M.A., Guides for the reasons he specified. He did, however, note a diagnosis and
define his functional loss in narrative terms and consistent with state-based impairment rating
guidelines.15
Appellant did not submit medical evidence from any other physician showing that she
had permanent impairment under the standards of the sixth edition of the A.M.A., Guides. In a
June 7, 2011 report, Dr. Lent, an attending Board-certified orthopedic surgeon, diagnosed “left
medial meniscus tear, still symptomatic six years after the injury.” He did not provide an
impairment rating in that he stated, “I cannot do an impairment rating as I do not believe the

13

See supra notes 5 through 8.

14

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment).
15

See supra note 12. It is also noted that on August 5, 2010 an OWCP medical adviser reviewed the April 21,
2010 report of Dr. Graziosa and indicated that it had limited probative value regarding appellant’s claimed
permanent impairment because it did not contain an impairment rating that was carried out in accordance with the
standards of the sixth edition of the A.M.A., Guides.

5

patient has reached her [maximum medical improvement].”16 During a March 13, 2014
telephonic hearing with an OWCP hearing representative, counsel argued that OWCP did not
adequately develop the medical evidence with respect to appellant’s claimed permanent
impairment. The Board notes that appellant was provided multiple opportunities to provide a
physician’s impairment rating derived under the relevant standards, but that she failed to provide
such evidence for the reasons set forth herein.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
permanent impairment entitling her to schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT May 28, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 10, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

16

The Board notes that it has not been accepted that appellant sustained a work-related left medial meniscus tear
or that this condition preexisted her March 31, 2005 work injury.

6


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

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

Docket No. 06-1910
Issued: March 23, 2007

Case Submitted on the Record

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

JURISDICTION
On August 16, 2006 appellant filed a timely appeal from a June 19, 2006 merit decision
of the Office of Workers’ Compensation Programs, finding that he did not sustain an injury
while in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an injury while in the
performance of duty.

FACTUAL HISTORY
On March 7, 2005 appellant, then a 59-year-old sales and services associate, filed a
Form CA-2 claim for an occupational disease.1 On November 22, 2004 he first realized that the
pain in his shoulders was caused by factors of his federal employment. In an accompanying
narrative statement dated March 7, 2005, appellant provided a history of his employment
beginning July 1, 1989. He described his work duties which included heavy lifting and workrelated injuries. Appellant contended that he was required to work outside his prescribed
physical restrictions.
Appellant submitted a January 27, 2005 medical report from Dr. I. Grant Orlin, a general
practitioner, who noted appellant’s employment history, including his work duties which
required heavy lifting and reported findings on physical examination. Dr. Orlin diagnosed
bilateral shoulder tendinitis with subacromial spur formation, acromioclavicular (AC) arthritis
and impingement syndrome with industrial acceleration. He opined that the physical
requirements of appellant’s work duties since 1989, which included heavy-duty lifting, pushing
and pulling, caused the acceleration of his arthritis. Dr. Orlin concluded that, since there was no
other history obtained regarding outside hobbies, sports activities or other nonindustrial injuries
that may have contributed to appellant’s arthritis, it was medically reasonable and historically
probable to infer that a causal relationship existed between the diagnosed conditions and
appellant’s employment.
In a February 2, 2005 report, Dr. James C. Thomas, Jr., a Board-certified orthopedic
surgeon, noted appellant’s employment history which included work duties that involved heavy
lifting, pushing and pulling. He reported findings on physical examination and diagnosed
chronic bilateral subacromial bursitis and impingement syndrome secondary to subacromial
spurring and AC joint hypertrophy bilaterally. Dr. Thomas opined that appellant’s shoulder
injuries were related to 14½ years of repetitive distribution of mail at or above shoulder level,
resulting in increased stress to the AC joint and causing the development of subacromial bone
spurs as repetitive trauma ensued with the repetitive work activity at or above shoulder level.
By letter dated March 22, 2005, the Office addressed the additional factual and medical
evidence appellant needed to submit to establish his claim. In a letter of the same date, the
Office requested that the employing establishment respond to the evidence submitted by
appellant.

1

Prior to the instant claim, appellant filed a Form CA-2 claim on January 5, 2004. He alleged that he sustained
injuries to his left upper extremity, hand and lower extremities that were caused by his federal employment.
The Office, by decisions dated April 13 and October 28, 2004, found that appellant did not sustain an injury while in
the performance of duty. In a decision dated June 13, 2006, the Office denied his May 30, 2006 request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of error. By decision dated
October 26, 2006, the Board affirmed the Office’s June 13, 2006 decision. Docket No. 06-1605 (issued
October 26, 2006).

2

In a letter dated March 8, 2005 and received by the Office on March 28, 2005, the
employing establishment controverted appellant’s claim. It described his work duties and
disputed his contention that he was required to perform heavy lifting, pushing and pulling. The
employing establishment denied that appellant was required to work outside his physical
restrictions.
In an April 12, 2005 letter, appellant further described the development of his shoulder
condition and his work duties. He first sought medical treatment for his shoulder condition in
October 2004 and diagnosed with bilateral tendinitis and tenosynovitis in the shoulders.
Appellant noted his treatment by Dr. Orlin. His work duties included repetitive motion of his
right hand, reaching above his head, deep bending, standing for long periods of time, heavy
lifting and keyboarding.
Duty status reports dated February 25 and March 24, 2005, from physicians whose
signatures were illegible indicated that appellant had bilateral shoulder problems and released
him to return to limited-duty work on the date of the report, respectively.
By decision dated June 2, 2005, the Office found that appellant did not sustain an injury
while in the performance of duty. The factual evidence failed to establish his work duties. The
Office found that the accuracy of appellant’s description of his work duties was unclear based on
the employing establishment’s description of his work duties. The Office further found that the
medical evidence of record failed to provide a rationalized opinion establishing a causal
relationship between appellant’s shoulder conditions and his employment.
In a letter dated June 30, 2005, appellant requested an oral hearing before an Office
hearing representative. At a December 14, 2005 hearing, he submitted statements from his
coworkers, which indicated that he performed heavy-duty work. In a March 8, 2005 letter,
appellant further described his work duties involving pitching mail and unloading cages.
In a July 15, 2005 report, Dr. Orlin stated that appellant’s stressful physical work duties
which involved pushing up to 700 pounds, repetitive and cumulative trauma six hours a day for
several years, frequent extension and reaching above the shoulders, lifting tubs of mail weighing
20 to 30 pounds repetitively added stress to his shoulders. He opined that there was no other
preexisting history of injury, accidents, recreational activities or problems resulting in treatment
for degenerative disease or arthritis. Dr. Orlin stated that, if appellant had preexisting
osteoarthritis, particularly at his age, then it would seem more likely that his condition was
accelerated by his work activities at the employing establishment. He further stated that, if
appellant had not worked at the employing establishment, then he would not have had this
amount of problems and symptoms. Dr. Orlin’s August 26, 2005 report reiterated the diagnoses
and opinion regarding causal relation set forth in his January 27, 2005 report.
In a September 7, 2005 report, Dr. Thomas stated that appellant sustained bilateral
shoulder impingement syndrome, shoulder disorders of the bursa and tendons and arthritis and
tendinitis of the shoulder.
By decision dated March 21, 2006, an Office hearing representative set aside the June 2,
2005 decision and remanded the case for further development of the medical evidence. The

3

hearing representative found the evidence of record sufficient to establish that appellant
performed strenuous physical work duties from 1989 to 1997, which included unloading heavy
containers of mail from trucks, dumping sacks of mail weighing up to 70 pounds, pitching
parcels into gurneys and taking trays of letters and tubs of flats to the carrier area. He found that
the medical opinions of Drs. Orlin and Thomas, that appellant’s bilateral shoulder conditions
were causally related to his work duties, were not based on a fully accurate history or sufficiently
rationalized, but they were uncontroverted. On remand, the hearing representative instructed the
Office to refer appellant, together with a statement of accepted facts and the case record, to a
Board-certified orthopedic surgeon for a second opinion medical examination.
By letter dated May 17, 2006, the Office referred appellant to Dr. H. Harlan Bleecker, a
Board-certified orthopedic surgeon, for a second opinion medical examination. In a June 6, 2006
report, Dr. Bleecker reviewed the statement of accepted facts and appellant’s medical records.
He provided a history of his medical, social and family background. Dr. Bleecker reported
limited range of motion of the neck and full internal and external rotation, both actively and
passively of the shoulders. Appellant had positive Phalen’s test and Tinel’s sign results in both
wrists and normal range of motion of the fingers. Dr. Bleecker reported findings on motor and
sensory examination. He diagnosed right C6-7 radiculopathy, bilateral carpal tunnel syndrome
and bilateral AC degenerative arthritis. Dr. Bleecker stated that the diagnoses were due to
nonindustrial, degenerative preexisting conditions including degenerative disc disease of the
cervical spine and degenerative AC arthritis. Based on his objective neurological findings the
limitation of motion of shoulder abduction and elevation was a voluntary inhibition in view of
the fact that appellant had full internal and external rotation that was done easily both actively
and passively. Dr. Bleecker opined that his shoulder complaints related to bilateral posterior
trapezil which referred from the neck and were manifestations of the underlying degenerative
condition. He also opined that appellant’s shoulder symptoms appeared to be secondary to the
degenerative disease in the cervical spine with C6-7 radiculopathy and bilateral carpal tunnel
syndrome. Dr. Bleecker stated that the prognosis was somewhat poor as appellant had
degenerative changes that would continue to progress. He related that surgical intervention was
not necessary for any work-related conditions and provided appellant’s physical limitations. In
an accompanying work capacity evaluation (Form OWCP-5c), he stated that appellant was
unable to perform his usual job but that he could work eight hours per day within specified
physical restrictions.
By decision dated June 19, 2006, the Office found that appellant did not sustain an injury
while in the performance of duty based on Dr. Bleecker’s June 6, 2006 medical report.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
2

5 U.S.C. §§ 8101-8193.

4

compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS
The Office referred appellant and the medical evidence of record to Dr. Bleecker, a
Board-certified orthopedic surgeon, for a second on whether appellant sustained an injury
causally related to factors of his federal employment. In a report dated June 6, 2006,
Dr. Bleecker reported limited range of motion of the neck, full range of motion of the shoulders
both actively and passively and fingers and positive Phalen’s and Tinel’s sign results. He
diagnosed right C6-7 radiculopathy, bilateral carpal tunnel syndrome and bilateral AC
degenerative arthritis. Dr. Bleecker opined that appellant’s degenerative disc disease of the
cervical spine and degenerative AC arthritis were preexisting nonindustrial conditions. Based on
his objective neurological findings, he stated that the limitation of motion of the shoulder
abduction and elevation was voluntary inhibition in view of the fact that appellant had full
internal and external rotation that was done easily both actively and passively. Dr. Bleecker
further stated that his shoulder complaints were manifestations of the underlying degenerative
condition and that his shoulder symptoms were secondary to his C6-7 radiculopathy and bilateral
carpal tunnel syndrome. He completed a Form OWCP-5c, which indicated that appellant could
work eight hours per day with physical restrictions.

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

5

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

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The Board finds that Dr. Bleecker’s report is detailed, well rationalized and based upon a
complete and accurate history. While he reported a limited range of motion, he did not attribute
it to the accepted factors of appellant’s federal employment in his capacity as a sales and services
associate. Dr. Bleecker’s opinion represents the weight of the medical evidence in finding that
appellant did not sustain an injury causally related to factors of his federal employment.
The medical evidence submitted by appellant in support of his claim is insufficient to
overcome the weight accorded to Dr. Bleecker’s report. Dr. Orlin’s January 27, July 15 and
August 26, 2005 reports found that the physical requirements of appellant’s work duties which
included heavy-duty lifting, pushing and pulling, repetitive reaching above the shoulders caused
the acceleration of his bilateral shoulder tendinitis with subacromial spur formation, AC arthritis
and impingement syndrome. He stated that there was no other history of hobbies, sports or
recreational activities and nonindustrial or industrial injuries that may have contributed to
appellant’s arthritis. The Board has held that an opinion that a condition is causally related to an
employment injury merely because the employee was asymptomatic before an incident but
symptomatic after it is insufficient, without supporting rationale, to establish causal relation.6
Dr. Orlin did not provide sufficient rationale explaining how appellant’s bilateral shoulder
tendinitis or arthritis with impingement were caused or contributed to by his employment duties.
The Board finds that Dr. Orlin’s opinion is not sufficient to establish appellant’s claim.
Dr. Thomas’ February 2, 2005 report stated that appellant’s work duties involved heavy
lifting, pushing and pulling. He made the same diagnoses as reported by Dr. Orlin. Dr. Thomas
opined that appellant’s conditions were caused by 14½ years of repetitive distribution of mail at
or above shoulder level. However, he did provide any medical rationale explaining how the
onset of the diagnosed conditions was caused to appellant’s work duties over the stated period of
time. Dr. Thomas’ February 2, 2005 opinion is insufficient to establish appellant’s claim. In a
September 7, 2005 report, Dr. Thomas noted that appellant sustained bilateral shoulder
impingement syndrome, shoulder disorders of the bursa and tendons and arthritis and tendinitis
of the shoulder. He did not address the issue of whether the diagnosed conditions were caused
by factors of appellant’s employment. The Board finds that Dr. Thomas’ September 7, 2005
report is insufficient to establish appellant’s claim.
The February 25 and March 24, 2005 reports from physicians whose signatures are
illegible have no probative value because the authors cannot be identified as a physician.7 As the
reports lack proper identification, they do not constitute probative medical evidence sufficient to
establish appellant’s burden of proof.8
The Board, therefore, finds that the reports of Drs. Orlin and Thomas and physicians
whose signatures are illegible are not of such probative value that they are sufficient to overcome
the weight accorded to Dr. Bleecker’s June 6, 2006 report. Because appellant has not submitted
6

John F. Glynn, 53 ECAB 562 (2002).

7

Ricky S. Storms, 52 ECAB 349 (2001).

8

Vickey C. Randall, 51 ECAB 357 (2000); Merton J. Sills, 39 ECAB 572 (1988) (Reports not signed by a
physician lack probative value).

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sufficiently rationalized medical evidence establishing that he sustained an injury while in the
performance of duty, he has failed to meet his burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an injury while in
the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the June 19, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2007
Washington, DC

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

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

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

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