United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
Frederiksted, VI, Employer
__________________________________________

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

Docket No. 18-0840
Issued: November 19, 2018

Case Submitted on the Record

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

JURISDICTION
On March 13, 2017 appellant filed a timely appeal from a November 6, 2017 merit decision
and a February 6, 2018 nonmerit 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 to consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an
occupational disease in the performance of duty; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C § 8128(a).
FACTUAL HISTORY
On April 26, 2017 appellant, then a 53-year-old supervisor, filed an occupational disease
claim (Form CA-2) alleging that she experienced dizziness, extreme lethargy, and headaches as
the result of mold spore exposure at work. She noted that she first became aware of her claimed
condition on March 23, 2017, but did not realize the connection to her work until later on
April 11, 2017, when she stopped work.
By development letter dated May 24, 2017, OWCP informed appellant that additional
information was necessary to establish her claim, including a detailed description of the
employment-related activities that she believed caused or contributed to her condition, as well as
rationalized medical evidence establishing causal relationship. It provided a questionnaire for her
completion and afforded appellant 30 days to submit the requested information. No response was
received.
By decision dated November 6, 2017, OWCP denied appellant’s claim, finding that she
failed to identify the work factors, duties, or exposure alleged to have caused or contributed to her
claimed injury. Additionally, it found that she had not submitted medical evidence containing a
medical diagnosis in connection with such work events.
On January 19, 2018 appellant requested reconsideration and submitted medical evidence
in support thereof.
An April 11, 2017 duty status form (Form CA-17) by Dr. John Charles Perez, a treating
physician specializing in internal medicine, noted that appellant was exposed to mold at work. He
diagnosed conjunctivitis, allergic reaction to mold, and nasal drainage. Appellant was released to
return to work with restrictions limiting her physical work activities and exposure to fumes and
noise, effective April 17, 2017.
Dr. Perez, in an August 4, 2017 attending physician’s report (Form CA-20), diagnosed
chronic rhinitis with occupational exposure to mold, hematuria, multinopolar thyroid goiter, and
hypertensive nephropathy. He checked a box marked “yes” to the question of whether the
conditions had been caused or aggravated by factors of her federal employment. In support of this
opinion, Dr. Perez noted that appellant had an insidious allergic reaction to environmental mold
exposure.
By decision dated February 6, 2018, OWCP denied appellant’s request for reconsideration
of the merits of her claim.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty, and that any disability or
specific condition for which compensation is claimed is causally related to the employment injury.4
These are the essential elements of each and every compensation claim regardless of whether the
claim is predicated 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) 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.6
Appellant’s burden of proof includes the submission of a detailed description of the
employment factors or conditions which he or she believes caused or adversely affected a condition
for which compensation is claimed.7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish an occupational
disease in the performance of her federal employment duties.
Appellant has not provided sufficient evidence to establish that an occupational exposure
occurred. Her claim form generally stated that she experienced dizziness, extreme lethargy, and
headaches due to mold spore exposure. Appellant provided no explanation as to where she was
exposed to mold at work or the length of time she was allegedly exposed. As she provided no
explanation as to how the duties of her federal employment exposed her to mold, she has not
established the factual component of her claim.8
By a May 24, 2017 development letter, OWCP informed appellant that the evidence
received was insufficient to establish that she experienced any employment factors that were
3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

T.C., Docket No. 17-0872 (issued October 5, 2017).

7

T.B., Docket No. 17-0444 (issued May 5, 2017).

8

See M.L., Docket No. 12-0957 (issued December 7, 2012).

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alleged to have caused an injury. It asked her to provide a detailed description of the employmentrelated activities that she believed contributed to her condition. OWCP provided a questionnaire
for appellant’s completion, so that she could substantiate the factual elements of her claim.
Appellant did not provide the necessary information prior to the issuance of OWCP’s November 6,
2017 decision.9 Accordingly, the Board finds that she has not met her burden of proof to establish
fact of injury in the performance of duty.10
As appellant has not established an injury in the performance of duty, she has not met her
burden of proof.
On appeal, appellant asserts the evidence submitted establishes her claim, as her physician
opined that she was very susceptible to mold exposure and testing showed the indoor air quality
was not acceptable where she was stationed. However, as she has not established the factual
component of her claim, the Board will not address the medical evidence with respect to causal
relationship.11
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,12
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.13
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.14 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.15 If the request is timely, but fails to meet at least one

9

See L.B., Docket No. 18-0411 (issued September 12, 2018).

10

Supra note 8.

11

S.S., Docket No. 18-0242 (issued June 11, 2018).

12

5 U.S.C. § 8128(a).

13

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
14

Id. at § 10.607(a).

15

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

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of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
On February 6, 2018 appellant requested reconsideration of OWCP’s November 6, 2017
decision which denied her occupational disease claim. The underlying issue on reconsideration is
factual in nature -- whether she established mold exposure at work.
In her December 21, 2017 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, or advanced a new and relevant legal
argument not previously considered. Thus, she is not entitled to a review of the merits of her claim
based on the first and second above-noted requirements under section 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of reconsideration. In support of the request for reconsideration OWCP received an
April 11, 2017 Form CA-17 and an August 4, 2017 Form CA-2. This evidence is not relevant to
the underlying factual issue as it does not address the underlying issue of whether appellant
established actual exposure to mold at work. Evidence which does not address the particular issue
under consideration does not constitute a basis for reopening a case.17
The Board accordingly finds that appellant failed to meet 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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an occupational
disease in the performance of duty. The Board further finds that OWCP properly denied her
request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

16

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

17

See K.T., Docket No. 15-1916 (issued February 1, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the February 6, 2018 and November 6, 2017
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 19, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
O.R., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Staten Island, NY,
Employer
___________________________________________

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

Docket No. 17-1735
Issued: January 2, 2018

Case Submitted on the Record

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

JURISDICTION
On August 7, 2017 appellant filed a timely appeal from a July 18, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a left leg injury in the
performance of duty on May 9, 2017, as alleged.

1
2

5 U.S.C. § 8101 et seq.

With his request for an appeal, appellant submitted additional evidence. The Board’s jurisdiction is limited to
reviewing the evidence that was before OWCP at the time of its final decision. Therefore, the Board may not
consider this additional evidence for the first time on appeal; 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On May 26, 2017 appellant, then a 35-year-old forestry technician, filed a traumatic
injury claim (Form CA-1) alleging that on May 9, 2017, he felt a tear in the back of his left leg
while participating in arduous work capacity test (WCT) exercises. He stopped work on May 22,
2017 and resigned from employment on July 19, 2017. Appellant’s manager, T.L., indicated that
appellant did not report an injury during or after the WCT and performed his job for 13
additional days before claiming an injury. He noted that appellant reported an injury when
confronted with performance issues.
Appellant was treated in the emergency room on May 22, 2017 by Dr. Rodrigo I. Kong,
Board-certified in emergency medicine. Dr. Kong provided emergency room discharge
instructions which diagnosed hamstring injury and provided discharge instructions for leg
cramps and muscle strain. Appellant also submitted a note from a physician assistant dated
May 22, 2017, who advised that appellant could return to work in three days and required
crutches until his condition improved.
By letter dated June 8, 2017,3 OWCP advised appellant to submit additional
information, including a response to a factual development questionnaire and submission of a
comprehensive medical report from his treating physician which included a reasoned explanation
as to how the specific work factors or incidents identified by appellant had caused or contributed
to his claimed injury. It indicated that medical evidence must be submitted by a qualified
physician.
On July 17, 2017 appellant submitted the completed development questionnaire,
indicating that he was in the state of New York and participating in a pack test for wildland
firefighters which consisted of wearing a 45-pound chest vest and hiking for three and a half
miles. He indicated that at the end of the physical test he felt a tear on the back of his leg in the
hamstring area. Appellant advised that the immediate effects were not noticeable, but after a few
days he felt soreness, muscle spasms, and he began to apply ice and heat to the area. He noted
that he sustained no other injuries and had no symptoms prior to this injury and explained that he
did not report the injury sooner because it was not immediately apparent that the injury was
severe and that it became more painful as time progressed. Appellant noted that he was required
to participate and pass the annual arduous fit test for wildland firefighters. He indicated that he
was cleared to participate in the activity and received a passing grade for the annual pack test.
Appellant noted that the injury occurred on employing establishment premises at approximately
2:00 p.m.
On June 14, 2017 appellant was treated in the emergency room by Dr. Anthony Vassallo,
Board-certified in emergency medicine. Dr. Vassallo submitted emergency department
discharge instructions which diagnosed thigh sprain. Appellant was also provided discharge
instructions for a general sprain.
In a letter dated June 19, 2017, T.L. indicated that on May 9, 2017 appellant participated
in a WCT at the arduous performance level. The WCT was performed at the Gateway National
3

OWCP later resent this letter to appellant’s new address on June 21, 2017.

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Recreation Area. T.L. indicated that appellant successfully completed the WCT. He advised
that appellant had not indicated during or after the WCT that he was experiencing any pain or
discomfort or that he had sustained any kind of injury as a result of the WCT. T.L. indicated that
appellant completed a quarter-mile run and a quarter mile cool down walk immediately after the
WCT. Appellant reported the injury on May 22, 2017 during a performance evaluation. He
indicated that between the WCT and May 22, 2017 he operated a chainsaw and removed debris
on two occasions. T.L. further advised that on May 19, 2017 appellant participated in a tire hose
deployment exercise. Appellant did not indicate before, during, or after any of these work duties
that he was injured or that he was experiencing any pain or discomfort. T.L. advised that
appellant was hired as a forestry technician (wildland firefighter) and was required to complete
the WCT in order to perform his position. He indicated that the WCT was the method for
assessing wildland fire fitness levels and interagency policy required that the WCT be
administered annually to all employees in wildland fire positions. T.L. noted that for the arduous
physical fitness level, the employee was required to take the arduous pack test involving a 3-mile
hike over flat terrain carrying 45 pounds of weight in 45 minutes or less. He reiterated that
appellant did not report the injury for 13 days while discussing performance issues. T.L. noted
the exact place and time the injury occurred could not be determined.4
By decision dated July 18, 2017, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that the injury occurred, as alleged. It also found
that the medical evidence of record was insufficient to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty, as alleged and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.7
4

With his submission, T.L. attached an April 7, 2017 medical determination letter from Dr. Olga Emgushov, a
Board-certified internist, a noting that appellant was qualified to perform the essential functions and work conditions
of arduous wildland firefighter duties.
5

Supra note 1.

6

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

7

T.H., 59 ECAB 388 (2008).

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An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.8
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. An employee has not met his or her burden of proof to establish the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.9
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.10
ANALYSIS
Appellant alleged that, on May 9, 2017, he felt a tear in the back of his left leg while
participating in arduous fit test exercises at work. OWCP denied his claim finding that he had
failed to establish that the claimed work incident occurred, as alleged. The evidence of record,
however, supports that on May 9, 2017 appellant participated in a WCT in the arduous
performance level at the Gateway National Recreation Area. The record documents that the
WCT for wildland firefighters consisted of wearing a 45-pound chest vest and hiking for three
and a half miles. There is no dispute that he was actually performing the WCT on May 9, 2017
when he alleges an injury. Appellant’s manager, T.L., confirmed in a June 19, 2017 letter that
appellant participated in the WCT on May 9, 2017 at the arduous performance level. Appellant
was required to take the arduous pack test involving a 3-mile hike over flat terrain carrying 45
pounds of weight in 45 minutes or less. While he noted that he did not believe appellant was
injured in the performance of duty, T.L. did not dispute that appellant was performing WCT on
May 9, 2017 in a manner consistent with what appellant alleges. The Board thus finds that the
factual evidence of record is sufficient to establish that appellant participated in a WCT on
May 9, 2017, as alleged.
The Board further finds, however, that the medical evidence of record is insufficient to
establish that the accepted May 9, 2017 work incident resulted in a left leg injury
Appellant was treated in the emergency room on May 22, 2017 by Dr. Kong who
provided emergency room discharge instructions and diagnosed hamstring injury. He was also
provided discharge instructions for leg cramps and muscle strain. Similarly, on June 14, 2017
8

R.T., Docket No. 08-0408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

9

Betty J. Smith, 54 ECAB 174 (2002).

10

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

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appellant was treated in the emergency room by Dr. Vassallo who diagnosed thigh sprain.
Dr. Vassallo was provided discharge instructions for a general sprain. However, these reports
are insufficient to establish the claim as the physicians did not provide a history of injury11 or
specifically address whether the accepted work incident had caused or aggravated a diagnosed
medical condition.12
Appellant submitted a note from a physician assistant dated May 22, 2017, who returned
appellant to work in three days and recommended crutches. The Board has held that treatment
notes signed by physician assistants13 have no probative value as these providers are not
considered physicians under FECA.14 Thus, this evidence is insufficient to meet appellant’s
burden of proof.
Consequently, the Board finds that appellant has failed to submit sufficient medical
evidence to establish that the accepted May 9, 2017 work incident caused or aggravated a
diagnosed medical condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left leg
injury causally related to the accepted May 9, 2017 employment incident.

11

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
12

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
13
See S.E., Docket No. 08-2214 (issued May 6, 2009) (reports of a physician assistant have no probative value as
medical evidence).
14

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses, and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).

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ORDER
IT IS HEREBY ORDERED THAT the July 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: January 2, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN DIEGO VA MEDICAL CENTER,
San Diego, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1065
Issued: March 30, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 9, 2021 appellant filed a timely appeal from a May 3, 2021 merit decision and a
July 1, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as Docket No. 21-1065.
On August 6, 2008 appellant, then a 31-year-old vocational nurse, filed an occupational
disease claim (Form CA-2) alleging that she sustained right upper extremity injuries as a result of
factors of her federal employment including repetitive use of a computer, keyboarding, and
extensive dressing changes for patients. She indicated that she first became aware of her condition
and its relationship to her federal employment on March 3, 2008. OWCP accepted the claim for
right-sided thoracic outlet syndrome, also known as brachial plexus lesions.
On November 18, 2009 appellant underwent a right first rib resection with right anterior
scalenectomy to treat her diagnosed right thoracic outlet syndrome.
In a report dated May 8, 2010, Dr. Christopher Chisholm, a pain medicine specialist,
diagnosed reflex sympathetic dystrophy (RSD), also known as complex regional pain syndrome
(CRPS), of the upper right limb, and myofascial myalgia and myositis.

In a report dated October 11, 2010, Dr. Marilyn Carlin, an internist, diagnosed RSD
secondary to thoracic outlet syndrome despite surgical intervention.
Dr. Carlin, in a report dated April 4, 2011, diagnosed thoracic outlet syndrome with failed
response to surgery, right upper extremity chronic pain syndrome, possibly RSD, and right
hemidiaphragm paralysis as a complication of thoracic outlet syndrome, causing dyspnea on
exertion.
In a report dated October 10, 2011, Dr. Carlin diagnosed thoracic outlet syndrome,
myofascial pain syndrome versus RSD secondary to thoracic outlet syndrome and right
diaphragmatic paralysis secondary to thoracic outlet surgery.
In a report dated June 10, 2013, Dr. Carlin diagnosed thoracic outlet syndrome with
increasing pain following surgical intervention, RSD, myofascial pain syndrome, diaphragmatic
paralysis causing dyspnea on exertion, and recurrent major depression exacerbated by chronic
pain. She opined that factors of appellant’s federal employment caused appellant’s increased pain.
Dr. Carlin recommended work restrictions.
In a report dated June 25, 2014, Dr. Carlin diagnosed cervicalgia, diaphragmatic paralysis,
myofascial pain syndrome, recurrent major depression in full remission, RSD of the right upper
extremity, and thoracic outlet syndrome. In a report dated September 22, 2014, she diagnosed
thoracic outlet syndrome with poor results after surgical intervention , flare-up of chronic
cervicalgia and myofascial pain syndrome, RSD of the right upper extremity, also in flare-up, and
recurrent major depression in remission. Dr. Carlin again diagnosed these conditions in progress
notes dated August 22, 2014.
In a letter dated February 2, 2015, Dr. Carlin requested that the acceptance of appellant’s
claim be expanded to include fibromyalgia. She explained that it had developed as a result of
appellant’s chronic neck, chest wall, and right arm pain, secondary to failed surgery for thoracic
outlet syndrome and secondary RSD.
In a report dated June 25, 2015, Dr. Carlin explained that appellant continued to suffer from
thoracic outlet syndrome with increased pain following failed surgical intervention, along with
RSD and a postsurgical right partially paralyzed diaphragm. She noted that appellant had been
diagnosed with fibromyalgia as a result of her chronic myofascial pain. Dr. Carlin stated that
appellant’s conditions continued to be medically present and disabling and that appellant was
permanently disabled from all work. She reiterated appellant’s diagnoses and disability status in
narrative medical reports dated June 27, 2016 and July 17, 2017.
In progress notes dated August 24, 2016, Dr. Carlin noted, as part of appellant’s history of
present illness, that appellant had been diagnosed with fibromyalgia, failed surgery for thoracic
outlet syndrome, and development of RSD of the right upper extremity.
In a report dated July 13, 2018, Dr. Carlin again diagnosed thoracic outlet syndrome with
increased pain following surgical intervention, RSD of the right upper extremity, which began
after the failed surgery, fibromyalgia, secondary to chronic pain, diaphragmatic paralysis causing
some dyspnea on exertion, also a result of the failed surgery , and recurrent major depression
exacerbated by her chronic pain syndromes. She stated that appellant’s conditions continued to be
2

medically present and disabling, noting that appellant’s physical restrictions were extensive and
unlikely to allow her to work effectively in any job. Dr. Carlin reiterated these diagnoses and
opinions in a letter dated August 20, 2019.
In progress notes dated February 10, 2021, Dr. Peter Weis, a Board-certified
rheumatologist, examined appellant to evaluate her for fibromyalgia. He diagnosed left hip
trochanteric bursitis, pain syndrome related to complications of thoracic outlet s urgery with
chronic neck pain, and CRPS of the right upper extremity, refractory to surgery.
In a development letter dated March 24, 2021, OWCP advised appellant that it had received
notification of a possible consequential condition of CRPS of the right upper extremity. It noted
receipt of Dr. Weis’ February 10, 2021 report, but indicated that it required a detailed description
of the newly diagnosed condition. OWCP afforded appellant 30 days to submit additional medical
evidence. No additional evidence was received by OWCP.
By decision dated May 3, 2021, OWCP denied appellant’s request to expand the
acceptance of her claim to include CRPS of the right upper extremity. It again referenced
Dr. Weis’ February 10, 2021 report. By appeal request form dated June 2, 2021, postmarked on
June 3, 2021 and received by OWCP on June 9, 2021, appellant requested an oral hearing before
a representative of OWCP’s Branch of Hearings and Review. By decision dated July 1, 2021,
OWCP denied her request for an oral hearing, as the request was untimely filed. It noted that
appellant’s case had been considered in relation to the issues involved and that the issues could be
equally well addressed by requesting reconsideration and submitting evidence not previously
considered establishing that she sustained a consequential injury due to her accepted injury of
March 3, 2008.
The Board has duly considered the matter and finds that th is case is not in posture for
decision.
In the case of William A. Couch,1 the Board held that when adjudicating a claim OWCP is
obligated to consider all evidence properly submitted by a claimant and received by OWCP before
the final decision is issued. As detailed above, OWCP received a report from Dr. Chisholm dated
May 8, 2010, containing a diagnosis of RSD, also known as CRPS. It also received numerous
reports, letters, and progress notes from Dr. Carlin beginning October 11, 2010 containing
diagnoses of RSD. OWCP, however, did not review this evidence in its May 3, 2021 merit
decision. It, thus, failed to follow its procedures by not considering all of the relevant evidence of
record.2

1

41 ECAB 548 (1990); see also K.B., Docket No. 20-1320 (issued February 8, 2021); R.D., Docket No. 17-1818
(issued April 3, 2018).
2

OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision.
Evidence received following development that lacks probative value also should be acknowledged. Whenever
possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Denials, Chapter 2.1401.5(b)(2) (November 2012).

3

As Board decisions are final with regard to the subject matter appealed, it is crucial that
OWCP address all relevant evidence received prior to the issuance of its final decision. 3 On
remand shall review and consider all evidence properly submitted by appellant prior to the issuance
of the May 3, 2021 OWCP decision. Following other such further development as deemed
necessary, OWCP shall issue an appropriate decision.
IT IS HEREBY ORDERED THAT the May 3, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board. 4
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

E.D., Docket No. 20-0620 (issued November 18, 2020); see also L.B., Docket No. 21-0140 (issued August 25,
2021); C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); William A.
Couch, supra note 1.
4

As this case is remanded for further proceedings, the July 1, 2021 denial of appellant’s request for an oral hearing
before an OWCP hearing representative is rendered moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Salt Lake City, UT, Employer
__________________________________________

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Appearances:
Jane E. Engelman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-405
Issued: August 18, 2010

Case Submitted on the Record

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

JURISDICTION
On November 30, 2009 appellant filed a timely appeal of a September 8, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs, finding that his request for
reconsideration was untimely and failed to show clear evidence of error.1 Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit decision. The last merit
decision in this case was the Office’s December 12, 2007 decision denying his claim for an
additional schedule award. The Board lacks jurisdiction to review the merits of the claim.2

1

The Board notes that on appeal appellant submitted medical records. Pursuant to 20 C.F.R. § 501.2(c), the
Board is precluded from reviewing new evidence for the first time on appeal.
2

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

ISSUE
The issue is whether the Office properly determined that appellant was requesting
reconsideration of a December 12, 2007 decision and that the request was untimely and failed to
show clear evidence of error.
FACTUAL HISTORY
On March 20, 2003 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim alleging that he sustained injuries to his neck and back when his postal vehicle was rearended. The Office accepted his claim for cervical strain, left L5 radiculopathy, L4-5 disc
herniation and L4-5 spinal stenosis.
By decision dated May 26, 2006, the Office granted a schedule award for a four percent
permanent impairment of the left lower extremity. The date of maximum medical improvement
was determined to be March, 1, 2006. The period of the award was from March 1 through
May 20, 2006.
On February 12, 2007 appellant underwent approved lumbar laminectomy and
discectomy.
Appellant submitted a report dated September 13, 2007 from Dr. Thomas W. Harris, a
Board-certified anesthesiologist, who provided examination findings and an impairment rating
based on the involved L5 nerve root, as well as diagnosis-based estimates, noting the history of
the two lumbar spinal procedures and lumbar radiculopathy. He opined that appellant had a 20
percent left lower extremity impairment.
In a merit decision dated December 12, 2007, the Office denied appellant’s request for an
additional schedule award.
In a January 9, 2008 report, Dr. Harris noted: appellant’s complaints of constant sharp,
stabbing pain; continuing numbness and tingling throughout his lower extremities; and difficulty
sleeping, secondary to pain. There was tenderness to palpation of the lumbar paraspinous region
and reduced range of motion.
On March 19, 2008 appellant filed a claim for a schedule award. In a March 27, 2008
letter, the Office informed him that “the filing of a CA-7 accomplishes nothing.” He was
advised to refer to the appeal rights attached to the December 12, 2007 decision denying his
request for an increase schedule award.
Appellant submitted reports of examinations dated December 5, 2007 through August 20,
2008 from Dr. Sam Maywood, a Board-certified anesthesiologist, who treated him for chronic
low back pain related to his accepted conditions. On March 6, 2008 Dr. Maywood stated that the
low back pain was constant, with radiation into the bilateral paraspinal muscles, left hip and
lateral thigh. He noted: tenderness at the left greater trochanteric and lateral thigh; limited range
of motion with flexion, extension, lateral bending and rotation; and decreased sensation in the
feet bilaterally.

2

On April 3, 2008 Dr. Maywood stated that there was an increase in neuropathic pain in
appellant’s lower extremities. On May 28, 2008 he noted that appellant was experiencing sciatic
pain radiating from the mid-left buttock down his left leg. Consideration was given to a sciatic
nerve block. On August 20, 2008 Dr. Maywood reported increased neuropathic pain in the lower
extremities.
Appellant submitted a January 10, 2008 report from Dr. Harris, who revised his opinion
as to degree of permanent impairment to the left lower extremity. Pursuant to the 5th edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), Dr. Harris opined that appellant had a 15 percent left lower extremity impairment. The
final impairment rating, included a 10 percent lower extremity impairment rating due to
radiculopathy and a 5 percent lower extremity impairment rating using a diagnosis-based
analysis, which equated to a 15 percent lower extremity impairment under the Combined Values
Chart.
In a September 13, 2008 letter, Jane E. Engelman appellant’s representative, reiterated his
request for reconsideration. She stated that appellant’s condition had worsened and that he was
experiencing additional pain and numbness in his lower extremities.
By decision dated September 26, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant merit
review.
On February 23, 2009 Ms. Engelman referenced appellant’s request for reconsideration.
She contended that medical reports from treating physicians indicated that his condition had
worsened, as they reflected that he was experiencing additional pain and numbness in his lower
extremities. Counsel asked the Office to “proceed to have the matter set for a hearing.”
Appellant submitted monthly reports from Dr. Maywood for the period September 17,
2008 through August 18, 2009.
On October 17, 2008 Dr. Maywood noted appellant’s
complaints of increased burning pain in his feet. On February 3, 2009 he stated that the
neuropathic pain in appellant’s lower extremities had been increasing in frequency.
Dr. Maywood’s March 31, 2009 report reflected complaints of increased radicular pain in both
extremities.
In an August 21, 2009 letter, counsel requested information regarding the status of the
“twice requested appeal of the rating in this matter.” Ms. Engelman noted that she was filing a
claim to formally add a back condition to appellant’s claim.3
By decision dated September 8, 2009, the Office determined that appellant’s August 21,
2009 application for reconsideration was untimely with respect to the December 12, 2007

3

On August 20, 2009 appellant filed an occupational disease claim alleging that he developed a back condition as
a result of the accepted January 25, 2005 motor vehicle accident. The Board notes that the Office accepted
appellant’s claim for cervical strain, left L5 radiculopathy, L4-5 disc herniation and L4-5 spinal stenosis. Therefore,
his CA-2 form is moot.

3

decision. It denied the request for reconsideration on the grounds that appellant failed to
establish clear evidence of error.
LEGAL PRECEDENT
As the Board explained in Linda T. Brown,4 a claimant may seek a schedule award if the
evidence establishes that she sustained an impairment causally related to the employment injury.
Even if the term “reconsideration” is used, when a claimant is not attempting to show error in the
prior schedule award decision and submits medical evidence regarding a permanent impairment
at a date subsequent to the prior schedule award decision, the claim should be considered a claim
for an increased schedule award. It should issue a merit decision on the schedule award claim,
rather than adjudicate an application for reconsideration.5
ANALYSIS
The Board finds that the Office improperly evaluated the August 21, 2009 letter as a
request for reconsideration of the December 12, 2007 schedule award decision, rather than as a
request for an increased schedule award. Accordingly, the case must be remanded for
consideration of the evidence of record as it bears on appellant’s request.
On March 19, 2008 appellant requested reconsideration of the Office’s December 12,
2007 decision denying his claim for an increased schedule award, contending that he had
experienced a worsening of his accepted condition. On September 26, 2008 the Office denied
appellant’s request on the grounds that the evidence was insufficient to warrant merit review.
On February 29, 2009 Ms. Engelman referenced appellant’s request for reconsideration,
again contending that medical reports from treating physicians reflected that his condition had
worsened and that he was experiencing additional pain and numbness in his lower extremities.
Counsel asked the Office to “proceed to have the matter set for a hearing.” On August 21, 2009
counsel requested information regarding the status of the “twice requested appeal of the rating in
this matter.” Appellant submitted numerous medical reports subsequent to the December 12,
2007 decision, including reports from Dr. Harris, who provided a revised impairment rating and
Dr. Maywood, who documented appellant’s chronic radicular pain, which he opined had
worsened. Although counsel used the term “reconsideration” in her request, it is evident that
appellant was not seeking reconsideration of the December 12, 2007 decision, but was seeking
an increased schedule award based on new and current medical evidence.6

4

51 ECAB 115 (1999). In Linda T. Brown, the Office issued a 1995 decision denying entitlement to a schedule
award as no ratable impairment was established. Appellant requested that it reconsider in 1997, submitting a current
report with an opinion that she had a 25 percent permanent impairment to the arms and legs. The Office determined
that appellant submitted an untimely request for reconsideration that did not show clear evidence of error. The
Board remanded the case for a merit decision.
5

Id.; see also Paul R. Reedy, 45 ECAB 488 (1994).

6

See supra note 5 and accompanying text.

4

Accordingly, the Office should have issued a merit decision with respect to the claim for
an additional schedule award, rather than a decision applying the clear evidence of error standard
for an untimely application for reconsideration. The case will be remanded to the Office for a
merit decision with respect to an additional schedule award.
CONCLUSION
Appellant submitted new medical evidence with respect to a permanent impairment and
was entitled to a merit decision on the issue.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 8, 2009 is set aside and the case is remanded for
further action consistent with this decision of the Board.
Issued: August 18, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Sacramento, CA, Employer
__________________________________________

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Appearances:
Jimmy K. Prshewlozky, for the appellant
No appearance, for the Director

Docket Nos. 07-1993; 08-829
Issued: October 14, 2008

Oral Argument May 14, 2008

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

JURISDICTION
On November 26, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 24, 2007 merit decision denying her claim for employmentrelated arm conditions other than those already accepted by the Office. The appeal was docketed
as 07-1993. On January 22, 2008 appellant filed a timely appeal from the Office’s
November 27, 2007 merit decision denying her claim for an employment-related heart condition

and recurrence of disability. The appeal was docketed as 08-829. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.1
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an employment-related arm, wrist or hand condition other than those already accepted
by the Office; (2) whether appellant met her burden of proof to establish that she sustained a
recurrence of disability due to her accepted arm and hand conditions; (3) whether appellant met
her burden of proof to establish that she sustained a heart condition in the performance of duty;
and (4) whether appellant met her burden of proof to establish that she sustained a recurrence of
disability due to an accepted heart condition.
FACTUAL HISTORY
On December 19, 2002 appellant, then a 58-year-old postal clerk, filed an occupational
disease claim alleging that her right hand condition was still deteriorating.2 She first became
aware of her condition on July 31, 2000 and of its relation to her employment on
October 19, 2002. Appellant did not stop work at the time she filed her claim, but continued
working in a light-duty position. She last worked for the employing establishment in April 2003.
In an accompanying statement, appellant indicated that the date of her injury was
February 2, 1998 when a steel cage door fell on the back of her right hand.3 She asserted that she
sustained four more right arm injuries between early 1998 and late 2002. Appellant claimed that
she sustained injury on or around March 8, 1999 due to unloading, lifting and carrying trays of
mail weighing up to 50 pounds for several days (known as breaking down mail), on July 25,
1999 due to breaking down mail, on July 31, 2000 due to sweeping heavy mail trays off tray
carriers and placing them into cages,4 and on or about October 19, 2002 when she realized her
right hand condition had deteriorated and she had to use her right hand as a stick to perform

1

At the oral argument, appellant asserted that the employing establishment retaliated against her for filing claims.
She also took issue with the manner in which the Office handled her claim. However, the Board does not have
jurisdiction to address these matters as the record does not contain any final decisions of the Office concerning these
matters which were issued in the year prior to appellant’s filing of the present appeal on March 20, 2007.
2

Appellant stated, “I use my right hand as a stick sometimes in conjunction with left hand which does all work.”
The claim was given file number 13-2070171.
3

In a February 20, 2003 statement, appellant asserted that all her right hand injuries were focused on the area of
the radial nerve where she was struck by the steel cage door on February 2, 1998.
4

Appellant asserted that one 50-pound tray fell into her hands as she pulled it out from under a ledge and that she
felt a tearing sensation in the back of her right hand. She indicated that after she dropped the tray she saw a
rectangular lump on the back of her hand without blood or bruising.

2

her work.5 She also suggested that she had work-related heart problems. Appellant indicated
that in June 2002 she had a fever of 102.5 degrees for three days and that laboratory testing from
July 2002 showed that she had heart problems.6
In a February 27, 2003 work status report, Dr. Stephen L. Mandaro, an attending Boardcertified occupational medicine physician, listed February 2, 1998 as the date of injury and
diagnosed right hand contusion.7 On March 4, 2003 Dr. Mandaro completed another form report
and listed the date of injury as October 19, 2002 and the mechanism of injury as “tray fell on
hand.” He diagnosed right hand contusion due to the October 19, 2002 injury.
In a March 26, 2003 decision, the Office denied appellant’s occupational disease claim
on the grounds that she did not submit sufficient medical evidence to establish that she sustained
an employment-related right arm condition other than those already accepted by the Office. It
found that the medical evidence was not based on a complete and accurate factual and medical
history. The Office discussed the accepted March 8, 1999 and July 31, 2000 employment
conditions but noted that these conditions had resolved.8
In a February 27, 2003 report, Dr. Mandaro stated that he first saw her on that date and
that she reported sustaining four right hand injuries, the first on February 2, 1998 when a cage
door fell on her hand and the last in October 1992. He indicated that appellant held her right
hand in a claw fashion, exhibited normal results on sensory examination and had good range of
motion except upon extension. Dr. Mandaro diagnosed right hand contusion and paresthesias.
In an April 3, 2003 report, Dr. Rosalind A. Hsia, an attending Board-certified neurologist,
stated that appellant might have a heart condition and that she should not be placed in physically
or mentally stressful situations. On April 8, 2003 she stated that appellant had work-related
“post-traumatic reflex sympathetic dystrophy (complex regional pain syndrome).” A January 31,
2003 treadmill test was positive for ischemia but it was noted that motion artifact made

5

The Office had previously accepted that in about March 1999 appellant sustained right arm tendinitis (file
number 13-1184162) and that on July 31, 2000 she sustained aggravation of preexisting osteoarthritis of her right
hand (file number 13-2016911). In an April 10, 2001 decision, it determined that appellant did not have residuals of
her July 31, 2000 injury after August 9, 2000. The Office based its termination on the opinion of Dr. Michael
Bugola, an attending Board-certified occupational medicine physician, who released appellant to work, with respect
to this condition, effective August 9, 2000. In a November 21, 2002 decision, it found that appellant did not have
residuals of her accepted right arm tendinitis condition after November 20, 2002. The Office based its termination
on a May 14, 2002 report of Dr. Jerrold M. Sherman, a Board-certified orthopedic surgeon who served as an Office
referral physician. Dr. Sherman indicated that appellant had normal examination findings and no longer had workrelated right arm tendinitis. In a May 3, 2005 decision, the Office determined that appellant did not show clear
evidence of error in its November 21, 2002 decision.
6

In other statements, appellant asserted that she also sustained work-related “viral infections” on December 27,
1999 and on four occasions in 2000 which affected her heart condition.
7

On January 26, 2004 Dr. Mandaro again listed February 2, 1998 as the date of injury and diagnosed right hand
contusion and on March 1, 2004 he stated that appellant had neuropathy of the right hand as a result of multiple
unspecified injuries.
8

The Office indicated that it had no prior claim for a February 2, 1998 or July 25, 1999 injury.

3

interpretation of the test difficult. The findings of an April 18, 2003 computerized tomography
(CT) scan of appellant’s heart showed no signs of coronary atherosclerotic plaque.
On May 14, 2003 Dr. Hsia stated that appellant reported having more trouble with her
right hand and was getting the same sensory symptoms in her left hand. She noted,
“[Appellant’s] exam[ination] was not able to be done due to time constraints caused by going
over her functional status forms” and diagnosed complex regional pain syndrome of the hands
and arms, probable cervical radiculopathy and lumbar spondylosis with asymptomatic S1
radiculopathy. On July 14, 2003 Dr. Hsia stated that appellant sustained injury when her right
hand was struck by a metal cage door. She advised that appellant’s history of symptoms
following the injury was consistent with the diagnosis of complex regional pain syndrome (reflex
sympathetic dystrophy) affecting the right hand and arm and concluded that “the blow to her
right arm and hand is directly, and without doubt, the cause of this chronic pain syndrome and
her disability.” Dr. Hsia stated that appellant had mirror symptoms involving her left arm and
hand and that this condition was also employment related.
On October 8, 2003 Dr. Hsia stated that appellant was first injured on February 2, 1998
when the back of her right hand was struck by a metal cage door. This injury was aggravated on
July 31, 2000 when she experienced a tearing sensation and weakness in her right hand at the site
of her original injury after a mail tray weighing about 50 pounds fell on her hands. Dr. Hsia
stated:
“Her symptoms were consistent with a diagnosis of complex regional pain
syndrome/reflex sympathetic dystrophy affecting her right hand and arm. The
force of the tray falling into her right hand is directly, and without doubt, the
cause of this chronic pain syndrome at the site of the injury and her disability.
Her disability was increased by her second aggravating injury at the same site on
her right hand, and her ability to grasp with her right hand substantially
diminished. Her left hand has certain symptoms which mirror some of those of
the right hand, but to a far lesser extent. These mirror symptoms occur very
commonly and therefore should also be considered directly caused by her
industrial injury. Because the direct physical injury was to her right hand, this
hand is significantly more impaired than the left.”9
On October 21, 2003 Dr. Asish Ghoshal, an attending Board-certified neurologist, stated
that appellant sustained an injury in February 1998 when a metal door struck her right hand and
that she sustained another injury on July 31, 2000 when a mail tray weighing approximately 50
pounds fell on her hands. Dr. Ghoshal reported normal findings upon examination and stated

9

Appellant submitted the findings of December 2001 magnetic resonance imaging (MRI) scan testing of the right
wrist which showed normal results. Bone scan testing from January 2002 showed no abnormalities of her right hand
and wrist which would explain her complaints. The findings of December 2003 MRI scan testing revealed small
cysts at the first and second metacarpal joints of the right hand, likely representative of osteoarthritis and mild joint
fluid in the second to fourth metacarpal phalangeal joints suggestive of possible rheumatoid arthritis. The findings
of November 2003 electromyogram (EMG) testing showed normal latencies in the right median, ulnar and radial
nerves.

4

that despite appellant’s subjective complaints he did not see any evidence of neurologic
impairment.
In a December 15, 2003 decision, an Office hearing representative affirmed the
March 26, 2003 decision. She noted that some medical evidence referred to a February 2, 1998
injury, but indicated that there was no record that appellant filed a claim for a February 2, 1998
injury and determined that this claimed injury was not accepted as having occurred. The hearing
representative stated that it was accepted that appellant lifted mail trays weighing up to 50
pounds but found that appellant did not submit sufficient medical evidence to show that she
sustained an additional injury due to these duties. She indicated that appellant made vague
allegations of a heart condition which she attributed to fevers, but determined that she had not
explained how this claimed condition was employment related or submitted medical evidence
which related it to specific employment factors.
On January 22, 2004 appellant filed an occupational claim (Form CA-2) alleging that she
sustained injury as a result of her federal employment. The claim form indicated that appellant
had a right hand crush injury in 1998 and now had a floating tendon. Appellant also noted that
her left hand was getting weaker.
By decision dated March 23, 2004, the Office denied appellant’s claim for compensation.
It found that appellant had not established an injury causally related to her federal employment
other than those already accepted.
On March 3, 2004 Dr. John W. Ellis, an attending Board-certified family practitioner,
diagnosed cystic structure on the dorsal aspect of the wrist, tendinitis/tenosynovitis of the right
wrist and “injury/impingement/irritation” of the radial nerve. He indicated that these conditions
were causally related to the “above-described accident” at work and recommended work
restrictions.10 On May 5, 2004 Dr. Ellis noted that appellant reported that she sustained right
hand injuries on February 2, 1998 and July 31, 2000 as well as on January 19, 2002 when she
used her left arm to remove heavy mail from a hamper. He diagnosed strains of the left thoracic
paraspinal musculature and the left forearm and indicated that these conditions were directly
related to appellant’s employment due to the fact that she overused her left arm. Dr. Ellis stated
that appellant reported that she had to rely on her left arm because of right arm injuries and
indicated that her overuse of her left arm was “causing the patient’s current complaints.” He
stated, “It is my opinion the patient’s left upper back and left upper extremity complaints are
directly and causally related to the patient’s job duties and employment with [the employing
establishment].”
On August 5, 2004 Dr. Ellis stated that appellant reported that on February 2, 1998 a steel
cage door fell on the back of her right hand and that on July 31, 2000 a 50-pound tray fell into
her hands causing her to feel a tearing sensation in the same area of the right hand. He diagnosed
a crush injury of the right hand resulting in nodule/cystic structure over the dorsal aspect of the
wrist, tendinitis/tenosynovitis of the right wrist, and irritation/impingement of the radial nerve of

10

Dr. Ellis noted that appellant reported sustaining right hand injuries on February 2, 1998 and July 31, 2000. On
April 15, 2004 he provided a similar opinion on appellant’s ability to work.

5

the right hand and concluded that these conditions were due to appellant’s February 2, 1998 and
July 31, 2000 employment injuries.11
In a February 28, 2005 decision, the Office affirmed its December 15, 2003 decision. It
determined that appellant’s claim that she sustained an injury on February 2, 1998 was barred by
the three-year time limitations of the Act. It noted that appellant first mentioned the February 2,
1998 injury in an April 2001 document submitted in connection with a claimed March 1999
injury (file number 13-1184162). The Office had previously been accepted under file number
13-1184162 that appellant sustained right hand tendinitis in March 1999 but compensation for
this condition was terminated effective November 3, 2002. It advised that it did not have a
record of a claim for a July 25, 1999 injury but found that this claimed injury was considered to
be part of the claim handled under file number 13-1184162. The Office stated that it was
accepted that on July 31, 2000 appellant sustained an aggravation of preexisting osteoarthritis of
her right hand, but that it was determined in a separate claim (file number 13-2016911) that this
condition had ceased by August 9, 2000. It stated that appellant was required to sort or break
down mail at least through January 2003, a task which required lifting and handling mail trays
weighing up to 50 pounds. The Office indicated that appellant’s left arm complaints were being
handled under another claim (file number 13-2097387) and that the only issue that remained was
whether appellant was entitled to compensation for any injury after November 20, 2002 which
was caused by her regular duties of breaking down mail. It determined that appellant had not
submitted sufficient medical evidence to establish such entitlement to compensation.
Appellant contended that she also sustained injury to her left arm because she overused
that arm due to the work-related injuries to her right arm. In a March 2, 2005 decision, the
Office affirmed its March 24, 2004 decision. The Office found that appellant did not establish
that she sustained a work-related injury to her left arm.12 In a July 3, 2006 decision,13 the Board
affirmed the Office’s March 2, 2005 decision.
In a November 4, 2005 decision, the Office denied appellant’s claim that she sustained an
employment-related injury on or about October 19, 2002. It indicated that appellant did not
clearly identify the work factors she believed caused injury on or about October 19, 2002. In an
August 4, 2006 decision, an Office hearing representative affirmed the Office’s November 4,
2005 decision.
On July 10, 2006 appellant filed an occupational disease claim (Form CA-2) alleging that
she sustained a heart condition due to employment factors. She claimed that an attending
physician advised her that she sustained a heart ischemia due to fevers which in turn were caused
11

Appellant also submitted reports dated between March and September 1999 in which Dr. Michael Bugola, an
attending Board-certified occupational medicine physician, indicated that she had right wrist tendinitis. By early
August 2000, Dr. Bugola no longer diagnosed appellant with right wrist or arm tendinitis and he released her to
work, with respect to this condition, effective August 9, 2000. On March 28, 2001 Dr. Bugola diagnosed chronic
right hand pain of uncertain etiology with secondary left shoulder girdle strain.
12

The Office’s March 24, 2004 decision focused on appellant’s claims regarding her left arm, but its March 2,
2005 decision focused on her claims regarding her left arm.
13

Docket No. 06-863 (issued July 3, 2006).

6

by her federal employment. Appellant indicated that she first realized that her heart condition
was related to employment factors on June 21, 2006.
In an August 26, 2006 statement, appellant asserted that she sustained work-related fevers
which caused her to sustain a heart condition. She contended that her heart condition was caused
or aggravated by a dog bite on her right calf which occurred at work on August 8, 199814 and/or
an incident on February 22, 2000 when a supervisor, Bernadette Viernes, grabbed both her
hands.
On September 26, 2005 appellant again claimed that she sustained injury on February 2,
1998 when a steel cage door fell on the back of her right hand. In a September 29, 2006
decision, the Office again determined that her claim for a February 2, 1998 right hand injury was
untimely.
On November 9, 2006 appellant filed a claim for recurrence of disability (Form CA-2a)
due to an employment-related heart condition. She alleged that the recurrence of disability
occurred on October 26, 2006 and constituted a continuation of her heart ischemia condition
which was diagnosed on January 31, 2003.
In a November 14, 2006 decision, the Office denied appellant’s claim for a recurrence of
disability due to an employment-related heart condition. In support of this determination, the
Office stated, “As you know, your case has been denied. A denied claim cannot recur.
Therefore, no further action will be taken concerning your claim for recurrence.”
In a March 28, 2007 decision,15 the Board set aside the Office’s February 28, 2005
decision and remanded the case to the Office for further development to include proper
assemblage of the case record. The Board found that the case record was missing documents
relevant to appellant’s claim that she sustained an employment-related right arm condition or
period of disability other than those already accepted by the Office.
In an October 4, 2007 decision,16 the Board set aside the Office’s November 14, 2006
decision and remanded the case to the Office for further development. The Board determined
that the Office did not issue a decision containing adequate findings of fact and reasoning to
explain its finding that appellant had not established a recurrence of disability due to an
employment-related heart condition.
In an October 24, 2007 decision, the Office found that appellant did not meet her burden
of proof to establish that she sustained an employment-related right arm condition or period of

14

It appears that the Office accepted that appellant sustained a dog bite on her left calf on August 8, 1998.

15

Docket No. 06-1344 (issued March 28, 2007).

16

Docket No. 07-1135 (issued October 4, 2007).

7

disability other than those already accepted by the Office which it also found that appellant did
not sustain a work-related injury to her left arm.17
In a November 27, 2007 decision, the Office found that appellant did not meet her burden
of proof to establish that she sustained a recurrence of disability due to an accepted right arm
condition. It determined that appellant had not established that she sustained a heart condition
due to the claimed employment factors. The Office also found that she had not shown that she
sustained a recurrence of disability due to an employment-related heart condition.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act18 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.19
To establish that an injury was sustained in the performance of duty in a traumatic injury
or 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 diagnosed condition is causally related to the employment factors identified
by the claimant.20
The medical evidence required to establish a causal relationship between a claimed
period of disability and an employment injury 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 compensable 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.21
17

In a May 31, 2007 decision, the Office found that appellant did not meet her burden of proof to establish that
she sustained an employment-related right arm condition or period of disability other than those already accepted by
the Office. However, in an October 9, 2007 order remanding case, the Board set aside the Office’s May 31, 2007
decision and remanded the case to the Office for addition of documents to the record concerning this matter. On
remand, the Office added numerous relevant documents to the case record.
18

5 U.S.C. §§ 8101-8193.

19

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

20

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

21

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

8

ANALYSIS -- ISSUE 1
Appellant alleged that she sustained various employment-related injuries to both arms,
wrists and hands, although most of her claims have centered on her right upper extremity. She
attributed these injuries to the performance of her duties over a period of time and to specific
employment incidents.22 The Board will consider whether appellant has sustained an
occupational disease or traumatic injury due to employment factors other than those already
accepted.23
The Office accepted that in about March 1999 appellant sustained right arm tendinitis
(file number 13-1184162). In a November 21, 2002 decision, it found that appellant did not have
residuals of her accepted right arm tendinitis condition after November 20, 2002.24 In a May 3,
2005 decision, the Office determined that appellant did not show clear evidence of error in its
November 21, 2002 decision.25 It also accepted that on July 31, 2000 appellant sustained
aggravation of preexisting osteoarthritis of her right hand (file number 13-2016911). In an
April 10, 2001 decision, the Office determined that appellant did not have residuals of her
July 31, 2000 injury after August 9, 2000.26
In a February 27, 2003 work status report, Dr. Mandaro, an attending Board-certified
occupational medicine physician, listed February 2, 1998 as the date of injury and diagnosed
right hand contusion.27 This report is of limited probative value because Dr. Mandaro did not
provide a complete and accurate medical history or explain how appellant could have sustained
such an injury.28 The Board notes that in a February 28, 2005 decision, the Office determined
that appellant’s prior claim that she sustained an injury on February 2, 1998 was barred by the
22

The Office has accepted that appellant was required to sort or break down mail at least through January 2003, a
task which required lifting and handling mail trays weighing up to 50 pounds.
23

A traumatic injury refers to injury caused by a specific event or incident or series of incidents occurring within a
single workday or work shift whereas an occupational disease refers to an injury produced by employment factors
which occur or are present over a period longer than a single workday or work shift. 20 C.F.R. § 10.5(ee), (q);
Brady L. Fowler, 44 ECAB 343, 351 (1992).
24

The Office based its termination on a May 14, 2002 report of Dr. Sherman, a Board-certified orthopedic
surgeon who served as an Office referral physician. Dr. Sherman indicated that appellant had normal examination
findings and no longer had work-related right arm tendinitis.
25

There is no rationalized medical evidence in the record indicating that appellant continued to have residuals of
the accepted right arm tendinitis after November 20, 2002. The record does not contain an Office decision
concerning this matter within the jurisdiction of the Board.
26

The Office based its termination on the opinion of Dr. Bugola, an attending Board-certified occupational
medicine physician, who released appellant to work, with respect to this condition, effective August 9, 2000. There
is no rationalized medical evidence in the record indicating that appellant continued to have residuals of the accepted
July 31, 2000 injury after August 9, 2000. The record does not contain an Office decision concerning this matter
within the jurisdiction of the Board.
27

Appellant had alleged that a steel cage door fell on the back of her hand on February 2, 1998.

28

In a January 26, 2004 report, Dr. Mandaro listed February 2, 1998 as the date of injury and diagnosed right
hand contusion. This report is also deficient due to its lack of medical rationale.

9

three-year time limitations of the Act.29 In a September 29, 2006 decision, the Office again
determined that her claim for a February 2, 1998 right hand injury was untimely.30
On March 4, 2003 Dr. Mandaro completed another form report and listed the date of
injury as October 19, 2002 and the mechanism of injury as “tray fell on hand.” He diagnosed
right hand contusion due to the October 19, 2002 injury. However, this report is of limited
probative value because there is no indication in the record that a tray fell on appellant’s right
hand on October 19, 2002.
In several reports dated between May and October 2003, Dr. Hsia, an attending Boardcertified neurologist, indicated that appellant had complex regional pain syndrome of both hands
and arms. She seemed to attribute this condition to either a cage door falling on appellant’s right
hand on February 2, 1998 or a heavy tray falling into her hands on July 31, 2000. Dr. Hsia did
not provide medical rationale explaining how appellant sustained a work-related complex
regional pain syndrome of both hands and arms. As noted it was accepted that on July 31, 2000
appellant sustained aggravation of preexisting osteoarthritis of her right hand which resolved by
August 9, 2000. Dr. Hsia did not explain how appellant sustained complex regional pain
syndrome on July 31, 2000 which continued to cause residual symptoms in 2003. She stated that
appellant had “mirror symptoms” involving her left arm and hand and that this condition was
also employment related. However, Dr. Hsia also did not explain how these left-sided symptoms
were caused by employment factors.
In a March 3, 2004 report, Dr. Ellis, an attending Board-certified family practitioner,
diagnosed cystic structure on the dorsal aspect of the wrist, tendinitis/tenosynovitis of the right
wrist and “injury/impingement/irritation” of the radial nerve. He indicated that these conditions
were causally related to either a February 2, 1998 or July 31, 2000 incident, but he did not
provide any explanation or medical rationale in support of this opinion.31 As noted above, the
residuals of the July 31, 2000 injury resolved by August 9, 2002. On May 5, 2004 Dr. Ellis
diagnosed strains of the left thoracic paraspinal musculature and the left forearm and indicated
that these conditions were directly related to appellant’s employment due to the fact that she
overused her left arm. This report is of limited probative value because Dr. Ellis did not describe
appellant’s employment duties in any detail or explain how they could have caused such injury.
Appellant has not submitted sufficient rationalized medical evidence to show that she
sustained an employment-related condition of her arms, wrist or hands other than those already
accepted. For these reasons, the Office properly denied appellant’s claims for these conditions.

29

The Office indicated that appellant first mentioned the February 2, 1998 injury in an April 2001 document
submitted in connection with a claimed March 1999 injury. There is no medical evidence in the record from around
February 1998 indicating that appellant sustained such an injury on February 2, 1998.
30

The record does not contain an Office decision concerning this matter within the jurisdiction of the Board.

31

Dr. Ellis provided a similar opinion in an August 5, 2004 report but this report is defective for similar reasons.

10

LEGAL PRECEDENT -- ISSUE 2
An individual who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the disability for which compensation is claimed is causally related to the
accepted injury.32 This burden includes the necessity of furnishing rationalized medical evidence
relating the claimed recurrence of disability to the accepted employment injury.33 Where no
such rationale is present, medical evidence is of diminished probative value.34
ANALYSIS -- ISSUE 2
The Office accepted that in approximately March 1999 appellant sustained right arm
tendinitis, but it has been determined that appellant did not have residuals of this condition after
November 20, 2002. It also accepted that on July 31, 2000 appellant sustained aggravation of
preexisting osteoarthritis of her right hand, but it has been found that appellant did not have
residuals of this condition after August 9, 2000.
Appellant claimed that she sustained a recurrence of disability due to her accepted
employment injuries, but she did not submit sufficient rationalized medical evidence to establish
this claim. As noted, Dr. Hsia suggested in several reports dated between May and October 2003
that appellant had complex regional pain syndrome of both hands and arms which was at least
partially related to the July 31, 2000 employment injury. In March 3 and August 5, 2004 reports,
Dr. Ellis indicated that appellant’s right wrist and arm problems were partially related to the
July 31, 2000 employment injury. However, neither physician provided a rationalized opinion
addressing how appellant’s disability was due to the July 31, 2000 employment injury.35
For these reasons, appellant did not meet her burden of proof to establish that she
sustained a recurrence of disability due to her accepted arm and hand conditions.
LEGAL PRECEDENT -- ISSUE 3
An employee seeking benefits under the Act has the burden of establishing 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 compensation is claimed are causally related to the employment injury. To establish
that an injury was sustained in the performance of duty in a traumatic or occupational disease
32

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986).

33

Mary S. Brock, 40 ECAB 461, 471-72 (1989); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

34

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

35

Dr. Ellis also diagnosed tendinitis/tenosynovitis of the right wrist but did not provide an opinion that this
represented a recurrence of disability due to the tendinitis condition accepted in early 1999. No physician provided
a clear opinion that appellant sustained a recurrence of disability due to this condition.

11

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 diagnosed
condition is causally related to the employment factors identified by the claimant.36
ANALYSIS -- ISSUE 3
In connection with her December 12, 2002 claim, appellant suggested that she had workrelated heart problems. She indicated that in June 2002 she had a fever of 102.5 degrees for
three days and that laboratory testing from July 2002 showed that she had heart problems.37 In a
December 15, 2003 decision, an Office hearing representative indicated that appellant made
vague allegations of a heart condition which she attributed to fevers, but determined that she had
not explained how this claimed condition was employment related or submitted medical
evidence which related it to specific employment factors. In August 2006, appellant again
asserted that she sustained work-related fevers which caused her to sustain a heart condition.
She indicated that her heart condition was caused or aggravated by a dog bite on her right calf
which occurred at work on August 8, 199838 and/or an incident on February 22, 2000 when a
supervisor grabbed both her hands. In a November 27, 2007 decision, the Office found that
appellant had not established that she sustained an employment-related heart condition.39
The Board finds that the Office properly determined that appellant did not establish
employment factors with respect to fevers as she did not adequately describe which employment
duties or conditions caused these fevers. The Office appears to have acknowledged that
appellant was bit by a dog at work on August 8, 1998 and that a supervisor grabbed her arm in
February 2000, but appellant has not submitted medical evidence relating these or other
employment factors to her claimed heart condition.
In an April 3, 2003 report, Dr. Hsia stated that appellant might have a heart condition and
indicated that she should not be placed in physically or mentally stressful situations. A
January 31, 2003 treadmill test was positive for ischemia but it was noted that motion artifact
made interpretation of the test difficult.40 These medical reports do not indicate that appellant
had a heart condition due to employment factors. For these reasons, the Office properly denied
appellant’s claim for a work-related heart condition.

36

See supra notes 19 and 20 and accompanying text.

37

In other statements, appellant asserted that she also sustained work-related “viral infections” on December 27,
1999 and on four occasions in 2000 which affected her heart condition.
38

It appears that the Office accepted that appellant sustained a dog bite on her left calf on August 8, 1998.

39

The Office also found, therefore, that appellant had not shown that she sustained a recurrence of disability due
to an employment-related heart condition.
40

The findings of an April 18, 2003 CT scan of appellant’s heart showed no signs of coronary atherosclerotic
plaque.

12

LEGAL PRECEDENT -- ISSUE 4
An individual who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the disability for which compensation is claimed is causally related to the
accepted injury.41
ANALYSIS -- ISSUE 4
Appellant alleged that she sustained a recurrence of disability due to a work-related heart
condition. For the reasons noted appellant did not meet her burden of proof to establish that she
sustained a work-related heart condition based on probative medical opinion evidence. Given
that she has not established such a work-related condition, there is no basis to find that she
sustained a recurrence of disability due to a work-related heart condition.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an employment-related arm, wrist or hand condition other than those already accepted
by the Office. The Board further finds that appellant did not meet her burden of proof to
establish that she sustained a recurrence of disability due to her accepted arm and hand
conditions. Appellant did not meet her burden of proof to establish that she sustained a heart
condition in the performance of duty or a recurrence of disability due to a work-related heart
condition.

41

See supra notes 32 through 34 and accompanying text.

13

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 27 and October 24, 2007 decisions are affirmed.
Issued: October 14, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY,
)
Aberdeen, MD, Employer
)
___________________________________________ )
L.M., Appellant

Appearances:
Jeffery P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2088
Issued: February 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 9, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ schedule award decision dated July 25, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award decision.
ISSUES
The issue on appeal is whether appellant met her burden of proof to establish that she
sustained more than a three percent permanent impairment of her right arm and a three percent
permanent impairment of her left arm, for which she received schedule award.
FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In an April 1, 2005 decision,
the Board found that the Office did not meet its burden to terminate appellant’s compensation
effective November 21, 2003 on the grounds that she refused an offer of suitable work. The
facts and history contained in the prior appeal are incorporated by reference.
1

Docket No. 04-2037 (issued April 1, 2005).

By letter dated December 13, 2005, appellant claimed a schedule award. In an
October 20, 2005 report, Dr. Donald I. Saltzman, a Board-certified orthopedic surgeon, reviewed
appellant’s history of injury and treatment and utilized the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001).
Dr. Saltzman advised that appellant had bilateral carpal tunnel syndrome that was accepted by
the Office. He noted that surgery was suggested, but that appellant had not elected to undergo
the procedure. Dr. Saltzman conducted a physical examination of the right wrist and indicated
that she had a negative Tinel’s sign and a “questionably positive Phalen’s sign.” Appellant had
no intrinsic atrophy, slight weakness in grip, no specific weakness in oppositional pinch and no
evidence of atrophy in the thenar eminence. Dr. Saltzman related that appellant complained of
tingling in the thumb and index fingers, but advised that there was no specific sensory deficit.
He indicated that the left wrist had similar findings. Dr. Saltzman stated that appellant had
dorsiflexion of 70 degrees and flexion of 70 degrees in both wrists, full radial and ulnar deviation
and full pronation and supination without any restriction. He reviewed an electromyography
(EMG) scan from 2001 and advised that they revealed mild sensory slowing in the median nerve.
Dr. Saltzman referred to Table 16-15,2 Table 16-103 and Table 16-11.4 He noted that appellant
had tingling, mainly in the thumb and index finger and appointed a Grade 4 for sensory or pain
according to Table 16-10. Dr. Saltzman noted that this would yield seven percent impairment
for each arm as the findings were similar. He indicated that, for motor deficit, appellant had
subjective weakness in grip strength but no obvious atrophy. Dr. Saltzman opined that this
would result in 2.5 percent arm impairment when combined with Table 16-11 and Table 16-15.
He advised that 2.5 percent combined with 7 percent would result in 9.5 percent impairment of
both the right and left upper extremities.
On March 13, 2006 the Office advised appellant that additional information was needed
to determine her entitlement to compensation. The Office also indicated that current EMG
studies were needed to evaluate appellant’s claim for a schedule award.
An October 13, 2006 nerve conduction study and EMG read by Dr. Salim Mansoor, a
Board-certified physiatrist, revealed a delay of the distal motor latency for the median nerve at
the wrist bilaterally, 4.3 milliseconds for the right and 4.2 milliseconds for the left as compared
to the upper range of normal of 4.0 milliseconds. He indicated that there was a delay of the
sensory latency for the median nerve at the wrist bilaterally of 3.9 milliseconds bilaterally, as
compared to the upper range of normal of 3.2 milliseconds. Dr. Mansoor concluded that the
EMG of both upper extremities was within normal limits. He opined that appellant had moderate
bilateral carpal tunnel syndrome with no signs of denervation. In an October 26, 2006 report,
Dr. David Dorin, a Board-certified orthopedic surgeon, reviewed Dr. Mansoor’s EMG findings
and noted appellant’s history of injury and treatment. He conducted an examination of the hands
and determined that appellant had satisfactory range of motion, a positive Tinel’s test on the
volar aspect of the wrist, an exacerbation of the numbness and dysesthesia to the median nerve
with innervated digits in the thumb, index and the long finger.
2

A.M.A., Guides 492.

3

Id. at 482.

4

Id. at 484.

2

In a January 20, 2007 report, the Office medical adviser reviewed the medical record. He
explained that, while Dr. Saltzman had utilized the appropriate tables in the A.M.A., Guides, he
would amend the impairment rating based on the dearth of objective findings. The Office
medical adviser noted that there should be no motor loss in the median nerve and that there were
no motor findings, either on examination or by EMG. The sensory deficit was corroborated by a
mildly positive nerve conduction test. The Office medical adviser referred to Table 16-105 rate
sensory deficit at 10 percent to the affected nerve. He noted that the affected part of the median
nerve included the index finger and thumb. The Office medical adviser referred to Tab1e 16-156
and indicated that a complete sensory loss to those areas would equal 27 percent for the upper
extremity. He opined that appellant’s deficit should be calculated to 2.7 percent for each
affected extremity. The Office medical adviser opined that appellant reached maximum medical
improvement on October 27, 2003 the date that she was released to return to work.
By decision dated July 25, 2007, the Office granted appellant a schedule award for three
percent permanent impairment of both the and left right upper extremity and three percent
permanent impairment of the left upper extremity.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act7 and its
implementing regulations8 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.9
Office procedures10 specifically provide that upper extremity impairment secondary to
carpal tunnel syndrome and other entrapment neuropathies should be calculated using section
16.5d and Tables 16-10, 16-11 and 16-15.11

5

Id. at 482.

6

Id. at 492.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

A.M.A., Guides (5th ed. 2001).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808 (August 2002) (March 1995).
11

A.M.A., Guides 495; Joseph Lawrence, Jr., 53 ECAB 331 (2002).

3

Regarding carpal tunnel syndrome, the A.M.A., Guides provide:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesia and/or difficulties in
performing certain activities, three possible scenarios can be present -(1) Positive clinical findings of median nerve dysfunction and
electrical conduction delay(s): the impairment due to residual CTS
[computerized tomography scan] is rated according to the sensory
and/or motor deficits as described earlier.
(2) Normal sensibility and opposition strength with abnormal
sensory and/or motor latencies or abnormal EMG
[electromyogram] testing of the thenar muscles: a residual CTS is
still present and an impairment rating not to exceed five percent of
the upper extremity may be justified.
(3) Normal sensibility (two-point discrimination and SemmesWeinstein monofilament testing), opposition strength and nerve
conduction studies: there is no objective basis for an impairment
rating.”12
ANALYSIS -- ISSUE 1
The Board notes that appellant did not undergo surgery to relieve the symptoms of her
accepted carpal tunnel syndrome. The October 20, 2005 report of Dr. Saltzman provided an
impairment rating of 9.5 percent impairment of both the right and left upper extremities.
However when he applied the A.M.A., Guides, he relied upon a four-year-old EMG scan
from 2001. The A.M.A., Guides specifically require both positive clinical findings of medical
nerve dysfunction and electrical conduction delays, prior to evaluating impairment due to carpal
tunnel syndrome.13 Therefore, the impairment rating Dr. Saltzman provided was not based on
current objective findings. The Board further notes that he provided findings for decreased grip;
however section 16.5d of the A.M.A., Guides provides that in rating compression neuropathies,
additional impairment values are not given for decreased grip strength.14
Dr. Mansoor obtained a current EMG. On January 20, 2007 the Office properly referred
the medical evidence for review by an Office medical adviser. The medical adviser indicated
that, while Dr. Saltzman had utilized the appropriate tables in the A.M.A., Guides, appellant’s
impairment rating shall be based on the more current objective findings of the October 13, 2006
EMG. He explained that appellant had no motor loss in the median nerve and that there were no
motor findings, either on examination or by EMG. The medical adviser rated the extent of
12

Id.

13

Id. at 493, 495.

14

Id. at 494.

4

permanent impairment due to sensory loss under Chapter 16. Applying Table 16-15,15 he noted
that the A.M.A., Guides, provide a maximum impairment value of 27 percent for sensory loss of
the median nerve below the forearm affecting the thumb and index finger. The medical adviser
referred to Table 16-1016 and utilized a Grade 4 for sensory loss, to allow a 10 percent sensory
deficit (27 percent times 10 percent) or a total 2.7 percent impairment due to pain. The Board
notes that, according to Table 16-10, a Grade 4 would encompass a range of 1 to 25 percent for
sensory deficit. As the Office medical adviser utilized the findings of Dr. Saltzman and the more
current EMG by Dr. Mansoor which showed a mildly positive nerve conduction test, the
selection of the Grade 4 deficit was proper. He noted that his review differed with that of
Dr. Saltzman due to the “dearth of objective findings.” The medical adviser explained that
appellant had no motor loss as related in the EMG findings of Dr. Mansoor. He concluded that
appellant had a 2.7 percent total impairment of each upper extremity. The Office medical
adviser then rounded the 2.7 percent up to 3 percent17 and determined that appellant reached
maximum medical improvement on October 27, 2003, the date she was released to return to
work.
The Board finds that appellant has not established more than three percent impairment of
the right upper extremity and three percent of the left upper extremity. On appeal, counsel
contends that she has greater impairment based on the findings provided by Dr. Saltzman.
However, as noted Dr. Saltzman’s impairment rating was based, in part, on a four-year-old
EMG. Appellant has not submitted any other medical evidence conforming with the A.M.A.,
Guides establishing that she has greater impairment of her upper extremities.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
greater than the three percent impairment of the right upper extremity and three percent
impairment of the left upper extremity, for which she received a schedule award.

15

Id. at 492.

16

Id. at 482.

17

See Marco A. Padilla, 51 ECAB 202 (1999); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter, 3.700.3.b. (October 1990) (the policy of the Office is to round the calculated percentage of
impairment to the nearest whole point).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 25, 2007 is affirmed.
Issued: February 22, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6