United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Palatine, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0352
Issued: June 16, 2017

Case Submitted on the Record

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

JURISDICTION
On December 5, 2016 appellant filed a timely appeal from a November 21, 2016 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 her burden of proof to establish a right shoulder
condition causally related to the accepted July 25, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence following the November 21, 2016 decision. However, the Board’s
jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision. Therefore, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57
ECAB 126 (2005).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as set forth in the
Board’s prior decision are incorporated herein by reference. The relevant facts follow.
On July 27, 2015 appellant, then a 32-year-old sales and distribution associate, filed a
traumatic injury claim (Form CA-1) alleging that on July 25, 2015 she sustained an injury to her
right shoulder when she lifted several tubs of mail weighing 50 pounds or more. She stopped
work on July 27, 2015 and returned on July 29, 2015.
Appellant was initially treated on July 27, 2015 by Dr. Timothy Trusowych, an osteopath
who specializes in occupational medicine. Dr. Trusowych diagnosed shoulder and trapezius
strain. He included a duty status report (Form CA-17), which outlined appellant’s work
restrictions.
Dr. Imran H. Kazmi, a Board-certified internist, also treated appellant. In July 29 and
August 5, 2015 work activity status reports, he diagnosed shoulder and upper arm strain,
trapezius strain, and cervical radiculopathy. Dr. Kazmi authorized appellant to return to work
with restrictions of no reaching above the shoulders and no lifting with the right upper extremity.
In a July 29, 2015 report, Dr. Greg White, a Board-certified diagnostic radiologist, noted
that appellant experienced an acute injury and shoulder pain. He observed acromioclavicular
joint osteoarthritis and a full-thickness supraspinatus tendon tear that extended into the
infraspinatus tendon. Dr. White also diagnosed subscapularis tendinosis, biceps tendon tear,
ganglion cyst, subcoracoid bursitis, possible loose body near the torn infraspinatus tendon, and a
likely degenerative-type labral tear.
On August 24, 2015 OWCP received appellant’s statement dated August 4, 2015.
Appellant related that on July 25, 2015 her supervisor asked her to empty three skids that
contained tubs full of catalogs weighing more than 70 pounds. She explained that while driving
home she felt a very sharp pain in her arm so she went to the emergency room. Appellant noted
that the emergency room physician informed her that she pulled a nerve. She reported that when
she returned to work the following Monday, she brought in a work restriction note that limited
her to work with only her left arm. The postmaster informed appellant that there was no work
within her limitations and advised her to go home.
Appellant was also treated by Dr. Kevin Tu, a Board-certified orthopedic surgeon, who
specializes in sports medicine. In reports dated August 19 and September 23, 2015, Dr. Tu
related that on July 25, 2015 she injured her right shoulder at work when she repetitively lifted
tubs of mail, causing subsequent right shoulder pain. He reviewed appellant’s history and noted
that a right shoulder magnetic resonance imaging (MRI) scan revealed a large full-thickness
rotator cuff tear with retraction present. Dr. Tu provided examination findings diagnosed right
shoulder acute-on-chronic rotator cuff tear. He explained that because appellant had failed
conservative treatment, surgery was her only remaining option to help her return to work and her
normal activities. On September 11, 2015 Dr. Tu submitted a request for authorization for right
3

Docket No. 16-0227 (issued April 1, 2016).

2

shoulder arthroscopy surgery. He provided work activity status reports dated August 19 and
September 23, 2015, which noted diagnoses of shoulder/upper arm strain, cervical radiculopathy,
and trapezius/rhomboid strain.
By letter dated September 18, 2015, OWCP advised appellant that, although her claim
was initially accepted as a minor injury, it was reopening her claim for review of the merits
because she had not returned to work. It requested that she respond to an attached questionnaire
and provide medical evidence to establish that she sustained a diagnosed condition as a result of
the July 25, 2015 employment incident. Appellant was afforded 30 days to submit the requested
information.
Appellant filed various claims for disability compensation (Form CA-7) for wage-loss
compensation for the period September 12 to October 2, 2015.
On September 25, 2015 appellant provided a detailed description of the July 25, 2015
employment incident and noted that she lifted tubs of mail weighing 70 pounds or more. She
related that she experienced significant pain in her right shoulder and sought treatment in the
emergency room. Appellant indicated that she was placed on limited duty, but the employing
establishment was unable to accommodate her restrictions. She described the medical treatment
she received and explained that her condition did not significantly improve. Appellant noted that
she was referred to an orthopedic surgeon who recommended surgery.
OWCP denied appellant’s claim in a decision dated October 23, 2015. It accepted that
the July 25, 2015 incident occurred as alleged and that she sustained a right shoulder condition,
but it denied her claim because the medical evidence of record failed to establish how her
diagnosed right shoulder condition was causally related to the accepted incident. OWCP found
that Dr. Tu did not sufficiently explain how the accepted July 25, 2015 incident caused or
contributed to the right shoulder condition.
Appellant appealed to the Board on November 13, 2015. By decision dated April 1,
2016, the Board affirmed OWCP’s October 23, 2015 decision which had denied her traumatic
injury claim. The Board found that the medical evidence of record was insufficient to establish
causal relationship between appellant’s right shoulder condition and the accepted July 25, 2015
employment incident. The Board determined that none of the medical reports contained a
rationalized medical opinion regarding the cause of her right shoulder condition.
While the case was on appeal before the Board, appellant had continued to submit
additional medical reports to OWCP from Dr. Tu dated November 4 to 11, 2015. Dr. Tu
indicated that he was treating her for right shoulder acute on chronic rotator cuff tear. He
provided examination findings of appellant’s right shoulder similar to previous examinations. In
a November 11, 2015 report, Dr. Tu explained that she injured her right shoulder while at work
on July 25, 2015 when she was performing lifting activities, which resulted in pain in her right
shoulder. He reported that appellant’s mechanism of injury was lifting tubs out of skids, which
caused an acute or chronic rotator cuff tear. Dr. Tu indicated that her physical examination was
consistent with a full thickness rotator cuff tear because she had weakness with overhead activity
and limitations in her range of motion.

3

OWCP received a work restriction note dated April 13, 2016 from Dr. Khadeer K.S.
Ahmed, a Board-certified internist. Dr. Ahmed indicated that appellant was under his care for
right rotator cuff injury and could return to work on April 18, 2016 with restrictions.
On July 20, 2016 OWCP received appellant’s July 1, 2016 request for reconsideration.
Appellant explained that she was still attempting to work, although use of her right hand was
restricted. She explained that she would begin to experience pain in her left arm after four to
five hours because she only worked with her left hand. Appellant stated that she wanted to
return to her regular, full-time work, which was why she hoped that OWCP would reconsider her
claim.
Appellant provided medical reports dated June 20 and 24, 2016 from Dr. Eugene Lopez,
a Board-certified orthopedic surgeon, who specializes in sports medicine. Dr. Lopez related her
complaints of right shoulder pain and noted a diagnosis of complete rotator cuff tear or rupture of
right shoulder. He reported that the onset of appellant’s symptoms was related to a July 25, 2015
employment injury when she was lifting heavy boxes at work. Dr. Lopez noted the medical
treatment appellant received. Appellant reported that her symptoms had worsened, including
severe, constant right side pain, weakness, limited range of motion, and sleep disturbances.
Dr. Lopez reviewed her history and diagnostic test findings. Upon examination of appellant’s
right shoulder, he observed moderate subacromial crepitus and tenderness, but no evidence of
any masses. Dr. Lopez reported weakness on testing of the rotator cuff. Range of motion was
full with pain on flexion over the head, horizontal adduction, and internal rotation. Drop Arm
testing and Impingement sign were positive.
After physical examination and review of appellant’s diagnostic test results, Dr. Lopez
diagnosed work-related right complete rotator cuff tear, right shoulder superior glenoid labrum
tear, right shoulder bursitis, right biceps rupture, and right biceps strain. He opined:
“All of the above diagnoses are work related and directly caused by aggravation
that is temporary due to heavy lifting at work. To my knowledge, Ms. Ahmed did
not have an injury to her right shoulder before July 25, 2015. It is with a
reasonable degree of medical certainty that because of her job duties that require
her to lift heavy boxes, she tore her right rotator cuff, ruptured her right biceps,
and tore her superior labral which requires medical treatment.”
Dr. Lopez indicated that without proper medical treatment appellant was permanently,
partially disabled.
In a letter dated September 16, 2016 and received by OWCP on November 3, 2016,
appellant again requested reconsideration of the April 11, 2016 decision. She asserted that her
right shoulder injury occurred while she worked at the employing establishment. Appellant
explained that she was experiencing financial problems due to her physician visits and reduced
work hours. She requested that workers’ compensation cover her surgery so that she could
return to work full duty. Appellant submitted a copy of the Board’s April 1, 2016 decision with
handwritten notations in the margins.

4

Dr. Lopez continued to treat appellant. In an October 12, 2016 Form CA-17, he noted a
date of injury of July 25, 2015 and clinical findings of right shoulder rotator cuff tear. Dr. Lopez
indicated that appellant was able to resume work on October 12, 2016 with restrictions.
By decision dated November 21, 2016, OWCP denied modification of the April 1, 2016
merit decision. It found that the medical evidence of record was insufficient to establish that
appellant’s right shoulder condition was causally related to the accepted July 25, 2015
employment incident. OWCP determined that Dr. Lopez’ opinion was of diminished probative
value to establish causal relationship as he did not provide any medical rationale for his
conclusion on causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.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.7
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.8 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.9 An employee may establish that the
employment incident occurred as alleged, but fail to show that his or her disability or condition
relates to the employment incident.10
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.11 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
4

Supra note 1.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

8

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

9

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

10

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

11

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

5

the employee.12 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.13
ANALYSIS
Appellant alleged that on July 25, 2015 she sustained a right shoulder injury as a result of
lifting heavy tubs filled with mail in the performance of duty. OWCP accepted that the July 25,
2015 incident occurred as alleged, but denied her claim by decision dated October 23, 2015,
finding that the medical evidence of record failed to establish that her right shoulder condition
was causally related to the accepted incident. The Board affirmed the October 23, 2015 denial of
appellant’s claim by decision dated April 1, 2016. The Board’s review of the previously
submitted medical evidence of record is res judicata and therefore need not be addressed again
in this decision.14
While the case was on appeal before the Board, appellant continued to submit medical
evidence to OWCP. She subsequently requested that OWCP reconsider her claim. By decision
dated November 21, 2016, OWCP denied modification of its prior decision.
The Board, following review of the new medical evidence submitted following its prior
decision, finds that appellant has failed to meet her burden of proof to establish that her right
shoulder condition was causally related to the accepted employment incident.
The Board has held that medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.15 Dr. Ahmed’s April 13, 2016 work restriction note was devoid of any opinion
relative to the cause of appellant’s right shoulder condition. It is therefore of limited probative
value.
Dr. Tu examined appellant subsequently on November 11, 2015 and described the
July 25, 2015 employment incident and indicated that the July 29, 2015 MRI scan report of her
right shoulder revealed a large full-thickness rotator cuff tear with retraction present. He
provided findings on examination and diagnosed right shoulder acute-on-chronic rotator cuff
tear. Dr. Tu related that appellant injured her right shoulder at work on July 25, 2015 when she
was performing lifting activities. He reported that her mechanism of injury which was lifting
tubs out of skids which caused acute or chronic rotator cuff tear.
The Board finds that Dr. Tu’s opinion fails to establish causal relationship because he did
not provide sufficient medical rationale explaining how appellant’s right shoulder rotator cuff
12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

13

James Mack, 43 ECAB 321 (1991).

14

E.L., Docket No. 16-0635 (issued November 7, 2016).

15

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

6

tear was caused by the accepted activity of lifting tubs of mail at work.16 Dr. Tu merely repeated
the physical activity that appellant performed at work without adequate medical rationale
explaining how or why that physical activity caused or contributed to appellant’s diagnosed
conditions.17 His report is therefore insufficient to establish appellant’s traumatic injury claim.
Appellant also provided medical reports by Dr. Lopez dated June 20 and 24, 2016.
Dr. Lopez related that on July 25, 2015 she sustained a right shoulder injury when she lifted
heavy boxes at work. He reviewed appellant’s history and diagnostic test findings. Dr. Lopez
provided physical examination findings and diagnosed work-related right complete rotator cuff
tear, right shoulder superior glenoid labrum tear, right shoulder bursitis, right biceps rupture, and
right biceps strain. He opined that appellant’s diagnosed conditions were “directly caused by
aggravation that is temporary due to heavy lifting at work.” Dr. Lopez noted that she did not
have an injury to her right shoulder before the July 25, 2015 incident. Although his reports
contain an accurate description of the July 25, 2015 employment incident and an affirmative
statement of causation, they do not contain a sufficient explanation, based on medical rationale,
of how lifting tubs filled with mail on July 25, 2015 would have physiologically caused or
contributed to her right shoulder conditions.18 Instead, Dr. Lopez attributes appellant’s medical
conditions to her employment based on the fact that she did not have a right shoulder injury
before July 25, 2015. The Board has held, however, that an opinion that a condition is causally
related because the employee was asymptomatic before the injury is insufficient, without
additional medical rationale, to establish causal relationship.19 Therefore, Dr. Lopez’ opinion is
insufficient to meet appellant’s burden of proof.
The issue of causal relationship is a medical question that must be established by
probative medical opinion from a physician.20 Because appellant has not provided such
probative medical evidence in this case, the Board finds that she did not meet her burden of proof
to establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right
shoulder condition causally related to the accepted July 25, 2015 employment incident.
16

A medical report is of limited probative value on the issue of causal relationship if it contains a conclusion
regarding causal relationship which is unsupported by medical rationale. S.E., Docket No. 08-2214 (issued
May 6, 2009); T.M., Docket No. 08-0975 (issued February 6, 2009).
17

K.W., Docket No. 10-0098 (issued September 10, 2010).

18

See M.M., Docket No. 15-0607 (issued May 15, 2015); M.W., Docket No. 14-1664 (issued December 5, 2014).

19

Michael S. Mina, 57 ECAB 379 (2006).

20

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, supra note 9.

7

ORDER
IT IS HEREBY ORDERED THAT the November 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 16, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
S.A., Appellant
and
U.S. POST OFFICE, POST OFFICE,
Bellmawr, NJ, Employer
________________________________________

)
)
)
)
)
)
)
)

Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1745
Issued: December 18, 2014

Case Submitted on the Record

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

JURISDICTION
On August 12, 2014 appellant filed a timely appeal of a May 13, 2014 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied her request for
reconsideration without conducting a merit review. Because more than 180 days elapsed since
the most recent merit decision, dated October 15, 2013, and the filing of this appeal on
August 12, 2014, the Board lacks jurisdiction to review the merits of the claim pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On June 20, 2013 appellant, then a 58-year-old automation clerk, filed a Form CA-1,
traumatic injury claim, alleging that on June 17, 2013 while sweeping mail from the top stackers
1

5 U.S.C. §§ 8101-8193.

she injured her right shoulder. She stopped work on June 17, 2013 and returned to a light-duty
position.
Appellant was treated by Dr. Warren K. Churgen, a Board-certified internist, for right
shoulder pain which appellant reported began on June 18, 2013. Dr. Churgen noted x-rays of the
right shoulder revealed calcified bicep tendon and diagnosed bicipital tendinitis.
Appellant submitted reports from Dr. Michael J. Cunningham, a Board-certified
orthopedist, who treated her from February 12 to March 28, 2013 for right wrist pain, numbness
and tingling. Dr. Cunningham diagnosed right de Quervain’s tenosynovitis and bilateral carpal
tunnel syndrome. In reports dated June 24 to July 10, 2013, he treated appellant for right
shoulder pain which flared up after several days of heavy, overhead work. Dr. Cunningham
diagnosed right shoulder impingement syndrome with acute flare, possible rotator cuff tear,
bilateral carpal tunnel syndrome, and right de Quervain’s tenosynovitis. He administered steroid
injections into the right shoulder and returned appellant to full-time work on March 28, 2013.
On June 20, 2013 appellant was treated by Dr. Johna Bingham, a Board-certified
surgeon, for joint pain in the right shoulder. She reported reaching over her head at work
repeatedly injuring her right shoulder. Dr. Bingham noted findings on examination of tenderness
of the right shoulder with active range of motion. He diagnosed right shoulder pain and
discharged appellant from his care. Appellant underwent physical therapy for the right shoulder
from July 8 to 19, 2013. A magnetic resonance imaging (MRI) scan dated July 12, 2013
revealed extensive fluid and hypertrophic change at the acromioclavicular joint space, rotator
cuff tear, and possible biceps peritendinitis.
On August 9, 2013 OWCP denied appellant’s claim for compensation on the grounds that
the medical evidence did not demonstrate that the claimed medical condition was causally
related to the established work-related events.
On August 27, 2013 appellant requested reconsideration. She submitted reports from
Dr. Cunningham dated July 18 and September 9, 2013. On September 9, 2013 Dr. Cunningham
noted that appellant presented on June 24, 2013 with a flare-up of right shoulder pain which
began three to four days earlier after a period of heavy, overhead work. He diagnosed right
shoulder rotator cuff tear with impingement and bicipital tendinitis, bilateral carpal tunnel
syndrome, and right de Quervain’s tenosynovitis. Dr. Cunningham opined to a reasonable
degree of medical certainty that the diagnosis of right rotator cuff tear was related to appellant’s
job activities noting she first experienced pain after performing repetitive duties at work.
In a decision dated October 15, 2013, OWCP denied modification of the decision dated
August 9, 2013.
On February 27, 2014 appellant’s representative requested reconsideration and asserted
that she had provided sufficient medical evidence to establish that her right shoulder injury was
causally related to her work duties. He referenced Dr. Cunningham’s September 9, 2013 report
which he alleged provided an accurate and detailed history of appellant’s condition and
demonstrated a thorough knowledge of her medical history. Appellant’s representative asserted
that Dr. Bingham provided a detailed and well-reasoned report and stated that to a reasonable

2

degree of medical certainty appellant’s right shoulder cuff tear was the direct result of the workrelated activity of June 17, 2013. Appellant submitted a June 20, 2013 report from Dr. Bingham,
previously of record.
In a May 13, 2014 decision, OWCP denied appellant’s request for reconsideration on the
grounds that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,2 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.4
ANALYSIS
OWCP denied appellant’s traumatic injury claim as the medical evidence did not
demonstrate that the claimed medical condition was causally related to the established workrelated events. Thereafter, it denied her reconsideration request without a merit review.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In her request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. In her February 27, 2014 request, appellant’s representative
asserted that appellant had provided sufficient medical evidence to establish her right shoulder
injury was causally related to her work duties. Appellant argued that Dr. Cunningham’s
September 9, 2013 report provided a detailed and well-reasoned opinion that to a reasonable
degree of medical certainty appellant’s right rotator shoulder cuff tear was the direct result of the
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b).

3

work-related activity of June 17, 2013. These assertions do not show a legal error by OWCP or a
new and relevant legal argument. The underlying issue in this case is whether appellant
submitted medical evidence establishing that her right shoulder condition was causally related to
the accepted work-related events. That is a medical issue which must be addressed by medical
evidence.5 Appellant failed to submit any new and relevant medical evidence in support of her
claim.
Appellant submitted a June 20, 2013 report from Dr. Bingham. However, this report is
duplicative of evidence previously submitted and was considered by OWCP in its August 9,
2013 decision. Evidence that repeats or duplicates evidence already in the case record has no
evidentiary value and does not constitute a basis for reopening a case.6 Therefore, this report is
insufficient to require OWCP to reopen the claim for a merit review.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
Appellant did not submit any evidence or argument in support of her reconsideration
request that warrants reopening of her claim for a merit review under 20 C.F.R. § 10.606(b)(2).
On appeal appellant’s representative asserts that she submitted sufficient evidence to
establish a right shoulder condition causally related to her employment duties and that OWCP
improperly denied her reconsideration request. As explained, however, the Board does not have
jurisdiction to review the merits of the claim. Appellant did not submit any evidence or
argument in support of her reconsideration request that warrants reopening of her claim for a
merit review under 20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.

5

See Bobbie F. Cowart, 55 ECAB 746 (2004).

6

See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35
ECAB 1090, 1093-94 (1984).

4

ORDER
IT IS HEREBY ORDERED THAT the May 13, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 13-502
Issued: June 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 3, 2013 appellant,through her attorney, filed a timely appeal from a
September 21, 2012 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that her
bilateral shoulder condition was causally related to factors of her employment; and (2) whether
appellant has more than fourpercent permanent impairment of either upper extremity, for which
she received schedule awards.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 18, 2005 appellant, then a 48-year-old postal clerk, filed an occupational
disease claim alleging that she suffered from bilateral carpal tunnel syndrome as a result of
repetitive motion tasks of her employment.She first became aware of her condition on August 1,
2004 and realized it resulted from her employment on January 13, 2005. OWCP accepted
appellant’s claim for bilateral carpal tunnel syndrome. Appellantunderwent right carpal tunnel
release on May 22, 2006 and left carpal tunnel release on July 20, 2006.She was placed on the
periodic rolls. Appellant returned to light duty on October 17, 2006.
In a letter dated April 13, 2007, appellant, through counsel, requested that OWCP expand
her claim to include bilateral shoulder conditions and a right rotator cuff tear. She stated that she
was diagnosed with shoulder problems at the same time she was diagnosed with bilateral carpal
tunnel syndrome.
In a March 15, 2005 report, Dr. Todd Lipschultz, a Board-certified orthopedic
surgeon,related appellant’s complaints of numbness and discomfort in both her hands and a new
complaint of bilateral shoulder pain. Appellantstated that the shoulder pain began a few days
ago when she lifted some boxes above her head. Upon examination of her shoulders,
Dr. Lipschultz observed restrictions on the right and mildly positive impingement sign bilaterally
but no weakness. He diagnosed bilateral shoulder tendinitis, right greater than left.
In a June 22, 2005 magnetic resonance imaging (MRI) scan examination of the right
shoulder, Dr. David A. Roberts, a Board-certified diagnostic radiologist, observed a partial
articular surface tear of the distal infraspinatus tendon and a trace amount of fluid in the
subdeltoid bursa. He also noted mild changes of osteoarthritis in the acromioclavicular (AC)
joint with moderate inferior spur formation. No full-thickness tear or retraction was identified.
Dr. Roberts diagnosed partial infraspinatus tear and mild impingement.
In an August 23, 2005 report, Dr. Lipschultz examined appellant for complaints of
bilateral hand numbness and shoulder discomfort. He noted that anMRI scan examination of her
right shoulder revealed rotator cuff tendinitis with a probable tear. Dr. Lipschultz stated that
appellant worked at the employing establishment for at least seven years doing keyboard work
for five hours a day. He related that she was concerned that her shoulder symptoms could have
developedfrom the repetitive heavy lifting above her shoulders that she did at work.
Dr. Lipschultz opined that this certainly could be an etiology of her rotator cuff tear.
In an October 13, 2005 MRI scan of the left shoulder, Dr. William F. Muhr, a Boardcertified diagnostic radiologist, observed hypertrophic change at the AC joint causing anatomic
impression on the supraspinatus and tendinosis but no obvious cuff tear. He also noted mild
subdeltoid bursal effusion and tendinosis of the subscapularis. Dr. Muhr diagnosed tendinosis of
the supraspinatus and subscapularis and AC joint hypertrophic change.
By letter dated July 5, 2007, OWCP advised appellant that the evidence submitted
appeared to indicate that she sustained a traumatic injury to her bilateral shoulders and
recommended that she file a traumatic injury claim as it appeared that a new injury may have
occurred.

2

On March 11, 2008 appellant requested a schedule award. In a November 18, 2007
report, Dr. David Weiss, an osteopath reviewed her history and conducted an examination.
According to the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), heopined that appellant had 50 percent combined right
upper extremity impairment2 and 37 percent combined left upper extremity impairment.3
Dr. Weiss reported that she reached maximum medical improvement on November 18, 2007.In a
February 20, 2008 report, the district medical adviser (DMA)disagreed with Dr. Weiss’ report
and stated that appellant had 10 percent impairment of either upper extremity.4 He reported that
she reached maximum medical improvement on November 18, 2007.
OWCP determined that a conflict in medical opinion existed between Dr. Weiss and the
DMAand referred appellant’s claim to Dr. Gary Neil Goldstein, a Board-certified orthopedic
surgeon, for an impartial medical examination to determine the extent of appellant’s permanent
impairment in accordance with the fifth edition of the A.M.A., Guides.
In a November 25, 2008 report, Dr. Goldstein reviewed appellant’s history, including the
statement of accepted facts and noted that her claim was accepted for bilateral carpal tunnel
syndrome. He conducted an examination and disagreed with Dr. Weiss’ impairment rating.
Dr. Goldstein noted that, according to page 495 of the fifth edition of the A.M.A.,
Guides,appellant had five percent impairment of the right upper extremity and four percent
impairment of the left upper extremity. In a January 9, 2009 report, a DMA reviewed
hisimpartial medical report and agreed with his impairment rating of five percent impairment of
the right upper extremity and four percent impairment of the left upperextremity. He reported
the date of maximum medical improvement was November 28, 2008.
On June 3, 2009 OWCP requested an updated report from Dr. Goldstein and an
impairment rating according to the sixth edition of the A.M.A., Guides (2008).
In a September 9, 2009 report, Dr. Weissupdated his November 18, 2007 report with an
impairment rating according to the sixth edition of the A.M.A., Guides.He reviewed appellant’s
history and provided findings from the 2007 examination. Dr. Weiss noted a QuickDASH
disability score of 61 percent for each upperextremity. He diagnosed bilateral carpal tunnel
2

Dr. Weiss determined that appellant had 20 percent permanent impairment for right lateral pinch deficit based
on Table 16-33 and Table 16-34, page 509, 9 percent impairment for motor strength deficit based on Table 16-11
and Table 16-15, page 492 and 31 percent for Grade 2 sensory deficit of the right median nerve based on Table
16-10 and Table 16-15, page 492.
3

Dr. Weiss determined that appellant had 9 percent permanent impairment for motor strength deficit left thumb
abduction deficit based on Table 16-11 and Table 16-15, page 492 and 31 percent impairment for Grade 2 sensory
deficit left median nerve based on Table 16-10 and Table 16-15, page 492.
4

The DMA explained that according to the A.M.A., Guides, Grade 2 sensory deficits would not be recommended
because it was not consistent with appellant’s clinical functioning level. He recommended Grade 4 sensory level.
According to Table 16-15, page 492, the DMA rated appellant at 39 percent for median nerve below mid forearm
sensory deficit or pain “maximum.” Utilizing Table 16-10, page 482, he also determined that she had Grade 4 or 25
percent impairment for distorted superficial tactile sensibility and diminished light touch with or without minimal
abnormal sensations or pain that was forgotten during activity. The DMA determined that 25 percent of 39 percent
equaled 9.75 percent or 10 percent permanent impairment for each upper extremity.

3

syndrome, status post open right and left carpal tunnel releases, chronic rotator cuff tendinopathy
to the right shoulder with partial thickness rotator cuff tear, AC arthropathy with impingement to
the right shoulder, chronic rotator cuff tendinopathy to the left shoulder, ACarthropathy with
impingement to the left shoulder and biceps tendinitis to the right and left shoulder. Dr. Weiss
explained that pursuant to Table 15-5 on page 402 of the sixth edition of the A.M.A., Guides
appellant had class1 impairment due to right shoulder rotator cuff tear, which provided a default
value of three percent impairment.5 He utilized a grade modifier based on Functional History
(GMFH) of 3 because she had a QuickDASH score of 61.6 Dr. Weiss utilized a grade modifier
based on Physical Examination (GMPE) and Clinical Studies (GMCS) of two each.7 He applied
the net adjustment formula (GMFH-CDX) + (GMPE - CDX) + (GMCS - CDX)8 and found that
appellant had a net adjustment of four. Dr. Weiss concluded that she had seven percent upper
extremity for the right shoulder rotator cuff tear. For entrapment of the right wrist median nerve,
he determined that shehad a grade modifierof three for test findings, history and physical
examination, or a total of nine.9 Dr. Weiss found that appellant had an average of three for a
total of eight percent impairment for right carpal tunnel syndrome. He concluded that she had 14
percent combined right upper extremity impairment. For left shoulder rotator cuff tendinitis,
Dr. Weiss determined that according to Table 15-510appellant had class 1 diagnosis. He utilized
a grade modifierof three based on functional history,11one based on physical
examination12andtwo based on clinical studies,13which resulted in a net adjustment of three.
Dr. Weiss found that appellant had five percent upper extremity impairment of the left shoulder.
For her entrapment of the left wrist median nerve, he determined that she had a grade modifier of
three each for test findings, history and physical examination for a total of nine.14 Dr. Weiss
found that appellant had an average of 3 for a total of eight percent impairment for left carpal
tunnel syndrome. He concluded that she had 13percent combined left upper extremity
impairment.
OWCP referred Dr. Weiss’ report to OWCP’s DMA, along with a statement of accepted
facts. In a December 21, 2009 report, the DMAconcurred with Dr. Weiss that, pursuant to Table
5

The Board notes that Dr. Weiss noted a value of 5. However, Table 15-5, page 402, of the sixth edition of the
A.M.A., Guides provides a default value of three percent. Since Dr. Weiss’ correctly calculated a net adjustment of
seven percent after applying grade modifiers, the Board finds that this was harmless error.
6

A.M.A.,Guides 406.

7

Id. at408, 410.

8

Id. at 411.

9

Id. at 449.

10

Id. at 403.

11

Id. at 406.

12

Id. at 408.

13

Id. at 410.

14

Id. at 449.

4

15-23, page 449 of the A.M.A., Guides, sixth edition, for entrapment neuropathy appellant had a
grade modifier of three for history, physical findings of weakness of the thumb abductors and
clinical studies for positive testing findings. He calculated a total of nine and an average of
three, which provided an impairment rating of eight percent.The DMAconcluded that appellant
had eight percent impairment of either upper extremity.15 He noted, however, that because
OWCP did not accept her bilateral shoulder conditions as work related, he could not agree with
Dr. Weiss’impairment ratings for right shoulder rotator cuff tear and left shoulder tendinitis. The
DMAnoted the date of maximum medical improvement as November 18, 2007.
In a January 16, 2010 report, Dr. Goldstein stated that appellant was able to work at the
employing establishment without restrictions and passed every single one of the 11 quick
questions. According to Table 15-39, page 435, of the sixth edition of the A.M.A., Guides he
determined that she had approximately two to three percent impairment rating of each upper
extremity.
In a March 29, 2010 report, the DMA reviewed Dr. Goldstein’s January 16, 2010 report
and disagreed with his findings. He noted that Dr. Goldstein only addressed the quicktable on
page 435, which was not helpful in addressing the true permanent impairment of each upper
extremity in accordance with the sixth edition of the A.M.A., Guides. The DMA concluded that
the eight percent impairment of either upper extremity as calculated by Dr. Weiss was a correct
application of the sixth edition of the A.M.A., Guides.
OWCP referred appellant’s claim, along with a statement of accepted facts, to
Dr. Stanley R. Askin, a Board-certified orthopedic surgeon, for a second-opinion examination to
determine the extent of her permanent impairment according to the sixth edition of the A.M.A.,
Guidesand whether she sustained a bilateral shoulder condition as a result of her accepted
injury.In a July 7, 2010 report, Dr. Askin reviewed her history, including the statement of
accepted facts and noted that her claim was accepted for bilateral carpal tunnel syndrome. He
stated that there were no objective findings with respect to appellant’s accepted bilateral carpal
tunnel syndrome injury. Dr. Askin observed full range of motion of both shoulders despite
complaints of pain with overhead activity. He noted that MRIscans of both shoulders revealed
age-appropriate degenerative changes including partial rotator cuff tears. No crepitans on
motion and no winging of the shoulders were noted. Appellant tested negative for Neer and
Hawkins’ test. Dr. Askin also observed full range of motion for elbows, forearms, fingers and
thumbs. According to the sixth edition of Table 15-23 on page 449 of the A.M.A., Guides,he
determined that appellant did not have any permanent impairment. Dr. Askin also stated that
there was no reason to ascribe her shoulder complaints to the accepted bilateral carpal tunnel
condition.
In a July 28, 2010 report, the DMA reviewed Dr. Askin’s July 7, 2010 second-opinion
report and disagreed with his findings. He explained that Dr. Askin did not properly apply Table
15-23, page 449, of the sixth edition of the A.M.A., Guidesbecause he based his findings on the
fact that appellant told him her hands were pretty good presently and did not refer to the grade
modifiers of history, physical examination or clinical studies.
The DMA reported
15

The Board notes that the DMA stated that appellant had eight percent left lower extremity impairment, but this
typographical error was later corrected to reflect eight percent left upper extremity impairment.

5

thatDr. Askin’s report was of no value in resolving the conflict in medical opinion between
Drs. Goldstein and Weiss.
In a September 1, 2010 supplemental report, Dr. Askin stated that appellant had no grade
modifiers for history because she did not report any symptoms about her hands. He reported that
she had a grade modifier 2 for physical examination because of decreased sensation. Dr. Askin
calculated that the average of the grade modifiers was 1 but that the QuickDASH score of 61
suggested a grade modifier 2. According to Table 15-23, page 449, of the sixth edition of the
A.M.A., Guides,he concluded that appellant had four percent impairment of either upper
extremity.
In a September 14, 2010 report, the DMA reviewed Dr. Askin’s September 1, 2010
supplemental report and agreed with his findingsthat appellant had four percent permanent
impairment of either upper extremity.
In a decision dated November 23, 2010, OWCP granted a schedule award for four
percent permanent impairment of each upper extremity. The award ran for a total of 24.96
weeks from September 24, 2009 to March 17, 2010.
On December 6, 2010 appellant’s counsel submitted a request for a hearing, which was
held on April 12, 2011. Appellant was represented by counsel,who requested that the issue of
whether she sustained bilateral shoulder conditions as a result of her employment duties also be
discussed. She stated that she began working at the employing establishment in February 1994
and did not have any problems with her wrists and shoulders. Appellant’s duties involved
processing mail on the machine with repetitive motions of loading the ledge, sweeping the mail
off and putting them into trays. She reported that when she initially filed her claim for bilateral
carpal tunnel syndrome she also experienced shoulder problems with lifting tubs of mail.
Appellant’s counsel noted that, in a September 24, 2009 report, Dr. Weiss provided an
impairment rating according to the sixth edition of the A.M.A., Guides of 8 percent for carpal
tunnel syndrome and 7 percent for appellant’s right shoulder condition for a combined rating of
15 percent of the right upper extremity. For the left upper extremity, Dr. Weiss determined that
she had 8 percent impairment for carpal tunnel syndrome and 5 percent for her left shoulder
condition for a combined rating of 13 percent of the left upper extremity. Appellant’s counsel
noted that although the DMA did not accept the impairment rating for her alleged shoulder
conditions, he concurred with Dr. Weiss’ finding of eight percent impairment of each upper
extremity for carpal tunnel syndrome. He alleged that an impairment rating of eight percent
should have been awarded around December 2009.
By decision dated July 12, 2011, an OWCP hearing representative set aside the
November 23, 2010 decision and remanded the case for referral to anotherimpartial medical
examinationbecause Dr. Goldstein’s January 16, 2011 impairment rating failed to resolve the
conflict in medical opinion regarding appellant’s degree of permanent impairment in accordance
with the sixth edition of the A.M.A., Guides. It also found that a conflict of medical opinion
existed between appellant’s physician and Dr. Askin regarding whether appellant sustained a
bilateral shoulder condition causally related to her employment duties and remanded the case for
referral to an impartial medical examination.

6

OWCP referred appellant’s case, along with a statement of accepted facts, to Dr. George
Glenn, Jr., a Board-certified orthopedic surgeon, to resolve the conflict in medical opinion. In a
January 19, 2012 report, Dr. Glennreviewed her history, including the statement of accepted
facts and noted that her claim was accepted for bilateral carpal tunnel syndrome. He stated that
appellant began working for the employing establishment in February 1994 and related that her
duties involved repetitive tasks with both of her hands and occasional lifting at or above shoulder
level. Appellant explained that she was not primarily required to lift overhead until she worked
the flat sorter machine in July 2002. She did not recall any specific history of trauma. Presently,
appellant complained of a constant ache involving both of her shoulders with the right more
severe than the left.
Examination of appellant’s shoulders revealed perfectly normal and painless range of
motion through all planes involving both shoulders. Internal rotation behind the back was to
about T10 on the left and T12-L1 on the right. Hawkins and Kennedy test for impingement
syndrome were normal bilaterally. Dr. Glenn stated that it appeared from the record that the
onset of appellant’s alleged bilateral shoulder problems began in March 2005. He reported that
subsequent MRIscans revealed mild spur formation about the AC joint of the left shoulder and
partial articular surface tear of the distal infraspinatus tendon with mild changes of osteoarthritis
in the AC joint with moderate inferior spur formation. Dr. Glenn opined that these were
manifestations of degenerative changes and not infrequently seen in individuals who did not
particularly engage in overhead activities. He stated that appellant’s current subjective
complaints and physical findings were completely consistent with a bilateral degenerative
osteoarthritis condition involving the AC joints. Dr. Glenn explained that the findings described
in the routine MRI scans suggested that they were present long before the reported March 2005
onset of symptoms of the shoulders and that one could not uncommonly find these changes in
individuals who did not indulge in repetitive or excessive overhead activities. He concluded that,
although a diagnosis was established, appellant’s bilateral shoulder condition was not causally
related by either direct presentation or material aggravation to her work duties.
Examination ofappellant’s elbows, wrists and fingers revealed active range of motion and
no areas of palpable tenderness involving either upper extremity distal to the shoulder areas. No
evidence of thenar or hypothenar atrophy or loss of muscle strength was found. Dr. Glenn
reported that appellant complained of numbness in both the right and left hand from the wrist
distal with the reverse Phalen’s test but did not complain with the standard Phalen’s test for
carpal tunnel syndrome. Compression test, Tinel’s response and Wright’s and Roo maneuvers
were normal. Dr. Glenn stated that it appeared from the history that appellant was treated
appropriately for bilateral carpal tunnel syndrome, including surgery, which produced no
residual symptoms involving the right hand and only some aching in the left wrist. He explained
that according to the sixth edition of the A.M.A., Guides,section 15.4f, page 432,a diagnosis of
entrapment neuropathy only needed grade modifiers to determine impairment rating. Under
Table 15-23, page 449, Dr. Glenn determined that appellant’s QuickDASH score provided a
functional scale grade modifier 2, which provided a default value of five percent. He reported
grade modifiersof two for electrodiagnostic testing, one for functional history because of her
responses to the Activities of Daily Living and Pain Disability questionnaires and zero for
physical findings because her examination was normal. Dr. Glenn calculated that these grade
modifiers provided an average of one. Thus, he concluded that appellant had four percent

7

permanent impairment of either upper extremity. Dr. Glenn reported that she reached maximum
medical improvement on November 18, 2007.
In a February 29, 2012 report, a DMA reviewed Dr. Glenn’s January 19, 2012 impartial
medical report. He noted a default value of twoand grade modifiers of two for electrodiagnostic
testing, one for functional history and zero for physical findings, which provided an average of
one. The DMA concurred with Dr. Glenn’s conclusion that, according to Table 15-23, page 449,
of the sixth edition of the A.M.A., Guides, appellant had four percent permanent impairment of
either upper extremity. He stated that the date of maximum medical improvement would be
January 19, 2012, the date of Dr. Glenn’s report.
By decision dated March 14, 2012, OWCP denied appellant’s request to expand her
claim to include a bilateral shoulder condition finding that the medical evidence failed to
establish that her bilateral shoulder condition was causally related to her employment duties. It
also found that the medical evidence did not establish that she had more than four percent
impairment of either upper extremity.
On March 20, 2012 appellant’s counsel submitted a request for a hearing, which was held
on July 13, 2012. Counsel alleged that Dr. Glenn’s report was based on an incomplete history
because he only had a general description of appellant’s work duties as described in the SOAF,
instead of specific time frames for how many hours a day and how many days a week the duties
were performed. He also pointed out that Dr. Glenn’s opinion was not wellrationalized because
he generally described her normal range of motion instead of providing exact measurements and
did not explain why her work duties could not have caused her bilateral shoulder condition.
Counsel further stated that there was no conflict to be resolved regarding permanent impairment
of carpal tunnel syndrome prior to the adoption of the sixth edition of the A.M.A., Guides.
In a July 10, 2012 report, Dr. Weiss reviewed Dr. Glenn’s January 19, 2012 impartial
medical report and disagreed with his findings. He contended that his September 24, 2009
impairment evaluation of eight percent permanent impairment of either upper extremity was
correct because he properly applied the impairment rating for carpal tunnel syndrome under page
449 of the sixth edition of the A.M.A., Guides. Dr. Weiss reported grade modifiers of three for
clinical findings according to electromyogram and nerve conduction studies; three for functional
history because of her activities of daily living; and three for physical examination because his
evaluation revealed grade 3 strength deficit in the left and right hand. He also alleged that he
properly determined an impairment rating of seven percent of the right shoulder for a partial
infraspinatus tendon tear and five percent impairment of the left shoulder for tendinitis.
In a decision dated September 21, 2012, an OWCP hearing representative affirmed the
March 14, 2012 decision denying appellant’s request to expand her claim and for increased
schedule award. It determined that OWCP properly found that the weight of the medical opinion
rested with Dr. Glenn’s report who found that her bilateral shoulder condition was not causally
related to her employment and that shedid not have more than four percent impairment of either
upper extremity.

8

LEGAL PRECEDENT-- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence16 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.17 In an occupational disease claim, appellant’s burden
requires submission of the following: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.18
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.19 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.20
If there is a disagreement between the physician making the examination for the United
States and the physician of an employee, the Secretary shall appoint a third physician (known as
a referee physician or impartial medical specialist) who shall make an examination.21 In cases
where OWCP has referred appellant to an impartial medical examiner to resolve a conflict in
medical evidence, the opinion of such specialist, if sufficiently well rationalized and based upon
a proper factual background, must be given special weight.22
ANALYSIS-- ISSUE 1
OWCP accepted that appellant sustained work-related bilateral carpal tunnel syndrome as
a result of her employment duties as a postal clerk, for which she underwent bilateral carpal
tunnel releases. In a letter dated April 13, 2007, appellant requested that OWCP expand her
claim to include bilateral shoulder conditions and a right rotator cuff tear.In an August 23, 2005
16

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

17

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
18

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

19

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

20

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

21

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
22

B.P., Docket No. 08-1457 (issued February 2, 2009); Gloria J. Godfrey, 52 ECAB 486 (2001).

9

report, Dr. Lipschultz stated that there could be a relationship between herright shoulder rotator
cuff tear and her work duties. In a July 7, 2010 report, Dr. Askin, a second opinion examiner,
determined that appellant’s bilateral shoulder condition was not causally related to her
employment duties. In a decision dated July 12, 2011, an OWCP hearing representative found
that a conflict in medical opinion existed between herphysician and Dr. Askin regarding whether
her bilateral shoulder condition was causally related to her employment and remanded the case
for referral to an impartial medical examiner. In a January 19, 2012 report, Dr. Glenn, selected
as the impartial medical examiner, determined that appellant’s bilateral shoulder condition was
not causally related to her employment duties as a postal clerk. By decisions dated March 14 and
September 21, 2012, OWCP found that the medical evidence was insufficient to establish that
she sustained a bilateral shoulder condition as a result of her employment.
The Board finds that Dr. Glenn’s January 19, 2012 report is sufficiently detailed and well
reasoned to constitute the weight of the medical opinion evidence. Dr. Glenn provided an
accurate history of injury and reviewed appellant’s records. He related that her duties involved
repetitive tasks with both of her hands and occasional lifting at or above her shoulder level.
Dr. Glenn noted that the onset of appellant’s alleged bilateral shoulder problems began in
March 2005 and that MRIscans revealed mild spur formation about the AC joint of the left
shoulder and partial articular surface tear of the distal infraspinatus tendon with mild changes of
osteoarthritis in the AC joint with moderate inferior spur formation. He explained that these were
manifestations of degenerative changes. Upon examination, Dr. Glenn observed normal and
painless range of motion. Hawkins and Kennedy testing for impingement syndrome were
normal bilaterally. Hestated that appellant’s current subjective complaints and physical findings
were completely consistent with a bilateral degenerative osteoarthritis condition involving the
AC joints. Dr. Glenn concluded that her bilateral shoulder condition was not causally related to
her work duties.
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.23
Dr. Glenn reviewed appellant’s history and had accurate knowledge of the relevant facts. He
conducted an examination and concluded that her bilateral shoulder condition was not causally
related to her employment duties. The Board finds that Dr. Glenn’s medical opinion, as set forth
in the January 19, 2012 report, was found to be probative and reliable evidence. Accordingly,
Dr. Glenn’s opinion constituted the special weight of evidence and is sufficient to deny
appellant’s claim.
On appeal, appellant alleges that Dr. Glenn’s impartial medical report was not
wellrationalized because he did not discuss her job duties and the physical requirements of the
clerk positions to determine if these job duties caused or aggravated her bilateral shoulder
condition.As noted above, however, Dr. Glenn accurately described her work duties and
provided a well-reasoned medical opinion explaining that her shoulder condition was
degenerative in nature and not causally related to her employment. The Board finds that

23

Id.

10

appellant has not provided reasoned medical opinion evidence to establish that her bilateral
shoulder condition was causally related to factors of her employment.
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
The schedule award provision of FECA24 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides, (sixth edition), has been adopted by OWCP as the appropriate standard for
evaluating schedule losses and the Board has concurred in such adoption.25 As of May 1, 2009,
the sixth edition of the A.M.A., Guides is used to calculate schedule awards.26
Impairment due to carpal tunnel syndrome is evaluated under the schedule found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.27 In
Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories
test findings, history and physical findings. The grade modifier levels are averaged to arrive at
the appropriate overall grade modifier level and to identify a default rating value. The default
rating value may be modified up or down by one percent based on functional scale, an
assessment of impact on daily living activities.28
If there is a disagreement between the physician making the examination for the United
States and the physician of an employee, the Secretary shall appoint a third physician (known as
a referee physician or impartial medical specialist) who shall make an examination.29 In cases
where OWCP has referred appellant to an impartial medical examiner to resolve a conflict in
medical evidence, the opinion of such specialist, if sufficiently well rationalized and based upon
a proper factual background, must be given special weight.30
24
25

5 U.S.C. §§ 8101-8193.
R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

26

FECA Bulletin No. 09-03 (issued March 15, 2009); see also Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
27

A.M.A.,Guides449 (6th ed. 2008).

28

Id. at 448-50.

29

Supra note 24.

30

Supra note 25.

11

ANALYSIS -- ISSUE 2
OWCP granted schedule awards for four percent permanent impairment of each upper
extremity. Appellant requested additional schedule award. By decision dated July 12, 2011, an
OWCP hearing representative remanded the case for referral to an impartial medical examination
to resolve conflict in medical opinion between Dr. Weiss, appellant’s physician and Dr. Askin,
the secondopinion examiner, regarding the degree of permanent impairment of appellant’s upper
extremities. In a January 19, 2012 report, Dr. Glenn, a Board-certified orthopedic surgeon and
impartial medical examiner, determined that appellant had four percent impairment of either
upper extremity. By decisions dated March 14 and September 21, 2012, OWCP determined that
she did not establish that she sustained greater than four percent impairment of either upper
extremity.
The Board finds that OWCP properly relied on the January 19, 2012 report of Dr. Glenn
in denying appellant’s request for increased schedule award. Dr. Glenn’s impartial medical
report is sufficiently detailed and well reasoned to constitute the weight of the medical opinion
evidence. In a January 19, 2012 report,he concluded that appellant had four percent impairment
of either upper extremity according to the sixth edition of the A.M.A., Guides. Upon
examination of her hands, Dr. Glenn observed active range of motion and no areas of palpable
tenderness in appellant’s elbows, wrists and fingers. Compression, Tinel’s response and
Wright’s and Roo maneuvers revealed normal testing. Dr. Glenn stated that although appellant
had developed bilateral carpal tunnel syndrome as a result of her employment, she was treated
appropriately, which included surgery and did not have any residual symptoms involving the
right hand and only some aching in the left wrist. According to Table 15-23, page 449, of the
sixth edition of the A.M.A., Guides, he determined that herQuickDASH score of 61 provided a
functional grade modifier 2, which provided a default value of five percent. Dr. Glenn reported
grade modifierof two for electrodiagnostic testing, one for functional history because of her
responses to the Activities of Daily Living and Pain Disability questionnaires and zero for
physical findings because her examination was normal. He calculated that these grade modifiers
provided an average of one. Dr. Glenn concluded that appellant had four percent permanent
impairment of either upper extremity.
As previously noted, where there exists a conflict of medical opinion and the case is
referred to an impartial specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, is entitled
to special weight.31 The Board finds that Dr. Glenn referred to the proper tables and determined
grade modifiers according to his examination findings and review of the medical record.
Because Dr. Glenn properly applied the relevant procedures of the sixth edition A.M.A.,Guides,
the Board finds that his opinion constituted the special weight of evidence and is sufficient to
deny appellant’s request for a schedule award greater than four percent of either upper extremity.
The Board further finds that the medical evidence submitted after Dr. Glenn’s impartial
medical report was insufficient to overcome the weight of this report or to create a conflict in
medical evidence. In a July 10, 2012 report, Dr. Weiss stated that appellant had eight percent
31

Solomon Polen, 51 ECAB 341 (2000).

12

permanent impairment of either upper extremity, seven percent impairment of the right shoulder
for a partial infraspinatus tendon tear and five percent impairment of the left shoulder for
tendinitis. Because he was on one side of the conflict which Dr. Glenn resolved, the additional
report is insufficient to overcome the weight accorded Dr. Glenn’s report as the impartial
medical examiner or to create a new conflict.32
On appeal, appellant alleges that Dr. Glenn’s impartial medical report was not
wellrationalized and was insufficient to carry the special weight of medical evidence. As
mentioned above, his opinion was based on accurate history and contained medical rationale in
support of his opinion on impairment. Appellant also alleges that OWCP should have relied on
the DMA’sDecember 21, 2009 and March 29, 2010 reports, which determined that she had eight
percent impairment of either upper extremity as calculated by Dr. Weiss because there was no
conflict in medical evidence regarding the eight percent impairment for bilateral carpal tunnel
syndrome.The record reveals, however, that at the time of these DMA opinions a conflict of
opinion did exist between appellant’s treating physician and the February 20, 2008 DMA report.
When a case is referred to a referee physician to resolve a conflict, it is the referee, not the DMA,
who must resolve the conflict. The weight of the medical evidence cannot rest with any
physician other than the referee physician.33 Accordingly, the DMA’s opinion that appellant had
eight percent impairment of either upper extremity for bilateral carpal tunnel syndrome did not
resolve the existing conflict in medical opinion and OWCP properly referred the case to another
impartial medical examiner in order to resolve the conflict.
The Board finds that appellant did not submit sufficient medical evidence to show that
she has more than four percent impairment of either upper extremity, for which she received
schedule awards.
Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
bilateral shoulder condition was causally related to factors of her employment. The Board also
finds that she did not meet her burden of proof to establish that she has more than four percent
permanent impairment of either upper extremity, for which she received schedule awards.

32

Dorothy Sidwell, 41 ECAB 857 (1990).

33

See C.K., Docket No. 11-2094 (issued July 2, 2012); W.C., Docket No. 11-659 (issued March 22, 2012).

13

ORDER
IT IS HEREBY ORDERED THATthe September 21, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 6, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

14


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bakersfield, CA, Employer
__________________________________________
Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 16-1088
Issued: August 10, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On April 27, 2016 appellant, through counsel, filed a timely application for review of a
January 21, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for reconsideration as the request was untimely filed and the evidence failed
to establish clear evidence of error. The appeal was docketed as No. 16-1088.
The Board notes that on October 24, 2014 an OWCP hearing representative affirmed a
March 11, 2014 decision which found that appellant had not established cervical disc disease,
chronic pain syndrome, and bilateral shoulder conditions causally related to her federal
employment. On October 26, 2015 counsel requested reconsideration and submitted additional
medical evidence in support of the request. OWCP received the reconsideration request on
October 26, 2015.
The Board has considered the matter and finds that the October 26, 2015 request
constituted a timely request for reconsideration. Section 10.607(a) of the implementing
regulations provides that an application for reconsideration must be received within one year of
the date of OWCP’s decision for which review is sought.2 In computing the time for requesting
1

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

20 C.F.R. § 10.607(a).

reconsideration, the date of the event from which the designated time period begins to run shall
not be included when computing the time period. However, the last day of the period shall be
included unless it is a Saturday, a Sunday or a legal holiday.3 In this case, the last OWCP merit
decision was dated October 24, 2014, and one year after this decision was Saturday,
October 24, 2015. It is well established that, when a time limitation expires on a nonbusiness
day, the limitation is extended to include the next business day.4 As October 24, 2015 was a
Saturday, appellant had until October 26, 2015 to request reconsideration. Because appellant’s
request for reconsideration was received on October 26, 2015, the Board finds that it was timely
filed.
Because appellant filed a timely reconsideration request, OWCP should have reviewed
her request under the standard for a timely request.5 The clear evidence of error standard utilized
by OWCP in its January 21, 2016 decision is appropriate only for untimely reconsideration
requests.6 The Board will set aside OWCP’s January 21, 2016 decision and remand the case for
an appropriate final decision on appellant’s timely request for reconsideration.
IT IS HEREBY ORDERED THAT the January 21, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: August 10, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3

Debra McDavid, 57 ECAB 149 (2005); see Donna M. Campbell, 55 ECAB 241 (2004); Angel M. Lebron, Jr.,
51 ECAB 488 (2000); John B. Montoya, 43 ECAB 1148 (1992).
4

J.L., Docket No. 14-0703 (issued September 16, 2014).

5

See 20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(b).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DETROIT VETERANS ADMINISTRATION
MEDICAL CENTER, Detroit, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-2430
Issued: March 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 25, 2007 appellant filed a timely appeal from December 7, 2006 and
August 29, 2007 merit decisions of the Office of Workers’ Compensation Programs denying his
traumatic injury claim. Pursuant to 20 C.F.R. §§ .501.2 and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant sustained a back injury while in the performance of duty
on September 29, 2006.
FACTUAL HISTORY
On October 2, 2006 appellant, a 57-year-old nurse, filed a traumatic injury claim alleging
that he injured his back on the afternoon of September 29, 2006, as he was descending a flight of
stairs at the employing establishment. He stated: “There was a prior injury to my back during

lifting and shooting pain and numbness to my legs. While going down A5N steps on 9/29 at
5:00 p.m. legs felt num[b] and gave way and fell on the first landing B5N.”
In a letter dated October 31, 2006, the Office informed appellant that the information
submitted was insufficient to establish his claim. It advised him to submit additional
information, including a detailed account of the alleged injury and a physician’s report, with a
diagnosis and a rationalized opinion, as to the cause of the diagnosed condition.
Appellant submitted urgent care notes dated September 29, 2006 from Dr. Horst Harold
Griesser, an emergency medicine physician, who stated that appellant presented with back pain
after lifting boxes. Dr. Griesser noted that appellant’s pain and weakness was more pronounced
on the left than on the right; that he experienced numbness in both legs; and that his pain was
intermittent and sharp. In an urgent care nursing assessment dated September 29, 2006,
Donna L. Booker, a registered nurse, provided an assessment of left leg pain with numbness. An
urgent care triage assessment reflected that appellant had arrived in a wheelchair and was
experiencing pain due to an injury.
Appellant submitted an October 2, 2006 report from Thresiamma Idichandy, a nurse
practitioner, who stated that he had fallen on his back on September 29, 2006 while walking
down stairs at work. Ms. Idichandy related that, after feeling numbness in his left thigh while
sitting at his unit, appellant decided to take the stairs to strengthen his legs. As appellant
descended the stairs, his legs went weak and he fell. Ms. Idichandy indicated that appellant was
experiencing lumbar back pain, numbness and tingling radiating to the left leg.
Appellant submitted a report of a magnetic resonance imaging (MRI) scan of the lumbar
spine dated August 19, 2006. The report reflected the development of annular fissuring in the
posterior margin of the disc at L4-5, since appellant’s January 21, 2006 MRI scan was
conducted. The record contains a job description for a nurse educator and a January 30, 2006
performance review.
In an August 29, 2006 report, Dr. Gregory Krol, an internist,1 noted that appellant had
been a long-standing patient. He stated that appellant had recently developed back pain while
lifting a mattress during a training session at work on July 25, 2006. Dr. Krol indicated that an
August 19, 2006 MRI scan revealed an annular tear of the lumbosacral disc at the L4-5 level,
which was not evident on an MRI scan performed the previous year. He opined that the new
annular tear was responsible for appellant’s low back pain and radicular symptoms. On
October 4, 2006 Dr. Krol treated appellant for bilateral extremity numbness and pain. Appellant
reported that, on the previous Friday, he was “bending over to pick some books up.” Dr. Krol
stated that appellant “must have injured himself.” His examination revealed decreased strength
in the left lower extremity; decreased deep tendon reflexes in the lower extremities bilaterally;
and decreased pinprick sensation in the sacral area. Straight leg testing was positive bilaterally at
30 degrees. Dr. Krol diagnosed “suspected cauda equina syndrome.” The record also contains
his work excuses for the period October 5 through December 4, 2006 and notes dated
November 27, 2006, reflecting that appellant received 12 sessions of physical therapy.
1

The record also contains a report from Dr. Krol dated September 7, 2006, which is a duplicate of his August 29,
2006 report.

2

On October 27, 2006 the employing establishment controverted appellant’s claim.
In a report dated November 22, 2006, Dr. Barbara Saul, a treating physician, stated that
appellant originally injured his back at the employing establishment while instructing nurses in
an emergency evacuation. A subsequent MRI scan revealed an annular tear in the L4-5 disc.
Dr. Saul noted that appellant had been experiencing numbness in his left leg. She diagnosed
lumbar radiculopathy with annular tear of L4-5 disc.
In an undated statement, appellant indicated that he sustained his initial injury during a
training exercise. At the end of his workday on September 29, 2006, his left leg felt numb. He
stated that he casually shared the information with a coworker, Rene Peterson. As appellant
descended the stairs to his car, his left leg went completely numb and he fell flat on his back,
landing on his buttocks first. He experienced severe pain in his back, left leg and buttocks and
was unable to pull himself up. Appellant summoned Ms. Peterson, who assisted him by
wheelchair to urgent care.
By decision dated December 7, 2006, the Office denied appellant’s claim, finding that the
medical evidence did not establish that his claimed medical condition was causally related to the
accepted work incident. The Office noted that, in a prior traumatic injury claim, File No.
0952074085, appellant alleged that he injured his back on July 25, 2006 during a training
session. This claim was denied on September 14, 2006 for lack of sufficient medical evidence.
Appellant submitted a December 13, 2006 report and accompanying work excuse from
Dr. Maria Samuel, an internist, who treated him for “recurrent and ongoing back discomfort.”
Dr. Samuel stated that appellant’s initial injury in July 2006, “when he overstepped,” was
followed by numbness in the left lower extremity. After a fall in September 2006, appellant
experienced severe back discomfort. Examination of the back revealed discomfort with no
significant spine tenderness. Straight leg raising (SLR) was negative on the right side, positive at
60 degrees on the left side. Crossed SLR was negative; plantar response was downgoing; muscle
strength was 5/5; tone was normal; and reflexes were diminished in both lower extremities.
Dr. Samuel provided an assessment of “low back discomfort, recent back injury and annular tear
at L4-5.” On December 29, 2006 she stated that appellant had been having back pain since
July 2006 and was status post fall and injury. Dr. Samuel assessed “low back discomfort
following a previous back injury, annular tear at L4-5.”
On January 11, 2007 Dr. Samuel stated that she treated appellant on that date for
recurrent back pain due to an annular tear of his L4-5 disc. She indicated that the initial injury
occurred on July 25, 2006 while he was “lifting.” Dr. Samuel related that, on September 29,
2006, while simultaneously leaning over a box and lifting books and folders, appellant’s left leg
became numb. Later that day, while descending stairs, appellant’s left leg again became numb
and he fell down the steps, reinjuring himself.
Appellant submitted a follow-up report dated January 15, 2007 from Dr. Krol, who
provided the following assessment: “Slowly resolving back pain related to an initial fall and
annular tear of his L4-5 disc in the stairwell during the training procedure and then subsequent
recurrent injury with low back pain after leaning forward to move books and files.”

3

On August 19, 2007 appellant, through his representative, requested reconsideration of
the December 7, 2006 decision. In a September 7, 2006 report, Dr. Krol stated that appellant
developed back pain following a July 25, 2006 injury, which occurred in a training session. He
indicated that an August 19, 2006 MRI scan showed a newly-developed annular tear at the L4-5
level. Dr. Krol’s August 28, 2006 examination of appellant revealed persistent back pain, with
radiculitis to both lower extremities and tenderness over the lower lumbar spinous processes. He
opined that appellant’s symptoms “were likely due to [the] new annular tear of his L4-5 disc.”
Dr. Krol stated that appellant had known facet degenerative joint disease, which was
asymptomatic until his July 25, 2006 injury.
By decision dated August 29, 2007, the Office denied modification of its December 7,
2006 decision. The Office found that the medical evidence was insufficient to establish that
appellant’s current medical condition was causally related to the September 29, 2006
employment incident.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.3
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the
United States within the meaning of the Act, that the claim was timely filed within the applicable
time limitation period of the Act, that an injury was sustained in the performance of duty as
alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.4 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
2

5 U.S.C. § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum,
1 ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004).

5

See also Tracey P. Spillane, 54 ECAB 608 (2003); Deborah L. Beatty, 54 ECAB 340 (2003). Betty J. Smith,
54 ECAB 174 (2002). The term “injury,” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q)(ee).

4

specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship.7 Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.8 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion 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 established incident or factor of employment.10
ANALYSIS
The Office accepted that appellant was a federal employee, that he timely filed his claim
for compensation benefits and that the September 29, 2006 workplace incident occurred as
alleged. The issue, therefore, is whether appellant has submitted sufficient medical evidence to
establish that the employment incident caused an injury. The medical evidence presented does
not contain a rationalized medical opinion establishing that the work-related incident caused or
aggravated any particular medical condition or disability. Therefore, appellant has failed to
satisfy his burden of proof.
On September 29, 2006 Dr. Griesser stated that appellant presented with back pain after
lifting boxes. He noted that appellant’s pain and weakness was more pronounced on the left than
on the right; that he experienced numbness in both legs; and that his pain was intermittent and
sharp. Dr. Griesser did not provide a definitive diagnosis or render an opinion as to the cause of
appellant’s condition. The Board has long held that medical evidence which does not offer an
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.11 Moreover, Dr. Griesser did not obtain a history of the September 29,

6

Katherine J. Friday, 47 ECAB 591, 594 (1996).

7

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

Id.

9

20 C.F.R. § 10.303(a).

10

John W. Montoya, 54 ECAB 306 (2003).

11

A.D, 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006); Michael E. Smith, 50 ECAB
313 (1999).

5

2006 fall at work. A diagnosis of pain does not constitute a basis of payment for compensation,
as pain is considered to be a symptom rather than a specific diagnosis.12
Dr. Krol’s reports are also insufficient to establish appellant’s claim. As his August 29
and September 7, 2006 reports predate the accepted incident, they are irrelevant to appellant’s
condition after September 29, 2006. On October 4, 2006 Dr. Krol diagnosed “suspected cauda
equina syndrome,” stating that appellant “must have injured himself” the previous Friday, when
he was “bending over to pick some books up.” This history does not address the accepted fall at
work. On January 15, 2007 Dr. Krol indicated that appellant’s “slowly resolving back pain [was]
related to an initial fall and annular tear of his L4-5 dis[c] in the stairwell during [a] training
procedure and [a] subsequent recurrent injury with low back pain after leaning forward to move
books and files.” Neither of these reports provides a specific diagnosis. Further, they are based
on an inaccurate factual history. The reports are vague and equivocal and fail to explain the
causal relationship between appellant’s condition and the September 29, 2006 work-related
incident.13 Therefore, they are of diminished probative value.
In November 22, 2006 report, Dr. Saul stated that appellant originally injured his back at
the employing establishment while instructing nurses in an emergency evacuation. A subsequent
MRI scan revealed an annular tear in the L4-5 disc. Noting that appellant had been experiencing
numbness in his left leg, she diagnosed lumbar radiculopathy with annular tear of L4-5 disc.
Dr. Saul did not acknowledge or express an opinion on the September 29, 2006 incident. She did
not relate appellant’s current condition to the fall at work. Therefore, Dr. Saul’s report is of
limited probative value.
Dr. Samuel’s reports are also insufficient to establish appellant’s claim.
On
December 13, 2006 she stated that she was treating appellant for “recurrent and ongoing back
discomfort.” Dr. Samuel noted that appellant’s initial injury, which occurred in July, 2006,
“when he overstepped,” was followed by numbness in the left lower extremity. After a fall in
September 2006, appellant experienced severe back discomfort. Dr. Samuel provided an
assessment of “low back discomfort, recent back injury and annular tear at L4-5.” On
December 29, 2006 she stated that appellant had been having back pain since July 2006 and was
status post fall and injury. Dr. Samuel assessed “low back discomfort following a previous back
injury, annular tear at L4-5.” The only definitive diagnosis provided by her in either report was
annular tear. However, Dr. Samuel failed to opine when or how the tear occurred. She did not
provide a detailed history of injury or explain how appellant’s current back condition is causally
related to the September 29, 2006 incident. Therefore, these reports are of diminished probative
value.
On January 11, 2007 Dr. Samuel stated that she treated appellant on that date for
recurrent back pain due to an annular tear of his L4-5 disc. She indicated that the initial injury
occurred on July 25, 2006 while he was “lifting.” Dr. Samuel related that, on September 29,
2006, while simultaneously leaning over a box and lifting books and folders, appellant’s left leg
became numb. Later that day, while descending stairs, his left leg again became numb and he
12

Robert Broome, supra note 4.

13

See Michael E. Smith, supra note 11.

6

fell down the steps, reinjuring himself. The Board notes that the history of injury provided by
Dr. Samuel is inconsistent with that provided by appellant, who indicated that he collapsed on
his back on September 29, 2006 while in a stairwell. Moreover, Dr. Samuel offered no opinion
as to whether appellant’s annular tear was due to the September 29, 2006 incident, as opposed to
a prior injury. She did not explain how the incident caused or contributed to any other diagnosed
condition. Accordingly, Dr. Saul’s report lacks probative value.
The record does not contain an opinion by any qualified physician, supporting appellant’s
contention that his back condition was causally related to the accepted employment incident.
While appellant has submitted chart notes and other medical documents which track his
treatment, he has not provided a narrative report containing a physician’s rationalized opinion on
whether there is a causal relationship between his condition and the established September 29,
2006 work incident. The Board notes that appellant submitted notes and reports signed by a
nurse and a physician’s assistant. As these reports were not signed by individuals that qualify as
“physicians” under the Act, the Board finds that they do not constitute probative medical
evidence.14
Appellant expressed his belief that his back condition resulted from the September 29,
2006 employment incident. The Board has held that the mere fact that a condition manifests
itself during a period of employment does not raise an inference that there is a causal relationship
between the two.15 Neither the fact that the condition became apparent during a period of
employment, nor the belief that the condition was caused or aggravated by employment factors
or incidents, is sufficient to establish causal relationship.16 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Therefore, his belief that his condition was caused by the work-related incident is not
determinative.
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to submit
appropriate medical documentation in response to the Office’s request. As there is no probative,
rationalized medical evidence addressing how his claimed back condition was caused or
aggravated by his employment, appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty causally related to factors of his federal
employment.

14

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2). § 8101(2) of the Act provides as
follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law.” See Merton J. Sills,
39 ECAB 572, 575 (1988).
15

See Joe T. Williams, 44 ECAB 518, 521 (1993).

16

Id.

7

CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on September 29, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 29, 2007 and December 7, 2006 are affirmed.
Issued: March 18, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8