United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF THE ARMY, ABERDEEN
PROVING GROUND, Aberdeen, MD, Employer
__________________________________________

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

Docket No. 11-2108
Issued: June 1, 2012

Case Submitted on the Record

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

JURISDICTION
On September 21, 2011 appellant filed a timely appeal from a June 10, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) affirming the denial of her
claim for leave buyback. 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 the decision.
ISSUE
The issue is whether appellant was entitled to leave buyback for 181.5 hours from
October 16 to November 22, 2006 due to her accepted employment injury.

1

5 U.S.C. §§ 8101-8193.

On appeal appellant generally asserted that she was disabled during the period claimed
due to her employment-related back condition.2
FACTUAL HISTORY
On May 16, 2006 OWCP accepted that on March 30, 2005 appellant, then a 35-year-old
chemist, sustained an employment-related lumbar sprain while moving boxes at work. Appellant
was granted leave buyback for 118 hours for the period June 27 through October 6, 2006. On
January 10, 2007 she applied for leave buyback for the 181.5 hours from October 16 to
November 22, 2006. A CA-7a form indicated that appellant took partial leave from October 16
to 25, 2006 for doctor visits and therapy, and medical leave for the period October 25 to
November 22, 2006.3 On June 14, 2007 OWCP accepted that she sustained a recurrence of
disability on April 26, 2007. Appellant’s claim was expanded to include lumbar neuritis and
lumbar disc displacement. On August 7, 2007 Dr. Hugo Benalcazar, a Board-certified
neurosurgeon, performed anterior discectomy at L4-5 and L5-S1. Appellant was placed on the
periodic compensation rolls. She returned to modified duty for four hours daily on
March 17, 2008.
Appellant had an initial physical therapy evaluation on August 14, 2006 and continued
with therapy through October 25, 2006. This included therapy sessions on October 16, 19, 24
and 25, 2006. On October 18, 2006 Dr. P.L. Sitaras, a Board-certified neurosurgeon, reported a
history that the previous weekend appellant was at a festival and had a difficult time with the
cold, damp weather and that she had two more festival weekends scheduled in North Carolina in
November. He advised that she was to continue her current physical restrictions. On
Wednesday, October 25, 2006 Dr. Sitaras reported that appellant was being seen as an
emergency. Appellant had helped her husband load his vehicle and bring his equipment home
from a weekend festival, noting that she made about 20 trips. She tried to carry light material
from the park to the vehicle and then into her home and experienced severe back pain with
radiation into her lower extremities. Dr. Sitaras advised that appellant was to remain off work
until November 15, 2006. An October 30, 2006 magnetic resonance imaging (MRI) scan of the
lumbar spine, when compared with a June 27, 2006 study, demonstrated an interval increase in
the degree of a left paracentral disc protrusion at L5-S1, which caused mild posterior

2

Appellant requested oral argument before the Board. The Board has duly considered the matter and finds that
the request should be denied. Pursuant to section 501.5(a) of the Board’s regulations, oral argument may be held at
the discretion of the Board. 20 C.F.R. § 501.5(a). Section 501.5(b) provides that the application for oral argument
must specify the issue or issues to be argued and provide a statement supporting the need for oral argument.
20 C.F.R. § 501.5(b). Although appellant’s request was timely filed, she failed to provide the need for oral
argument. On appeal she generally asserted that the evidence established her claim. In the opinion of the Board,
oral argument in this appeal would further delay issuance of a decision and not serve a useful purpose. As
appellant’s contentions on appeal can be adequately addressed in a decision based on the case record as submitted,
oral argument is denied.
3

Appellant claimed four hours for therapy on October 16, 2006, two hours for a doctor visit on October 18, 2006,
one and a half hours for therapy on October 19, 2006, one hour for therapy on October 20, 2006, four hours for
therapy on October 24, 2006, nine hours for therapy and a doctor visit on October 25, 2006, and eight or nine hours
medical leave daily for October 26 through November 22, 2006.

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displacement of the descending left S1 nerve root.4 On November 2, 2006 Dr. Sitaras advised
that appellant was unable to work until November 29, 2006.
By letter dated August 18, 2010, OWCP advised appellant that her claim for leave
buyback for the period October 16 to November 22, 2006 could not be processed because the
medical evidence did not support that the claimed disability was caused by the March 30, 2005
employment injury. Appellant was asked to provide a detailed narrative medical report from a
physician within 30 days that showed that her work stoppage was due to the accepted workrelated conditions.
On September 10, 2010 OWCP approved leave buyback for 20.5 hours for the period
November 29, 2006 to February 28, 2007 and for 19 hours for the period March 9 to
April 26, 2007.
An August 21, 2010 x-ray and MRI scan studies of the lumbar spine demonstrated
surgical changes and no evidence of acute abnormality. In a September 30, 2010 report,
Dr. Ritu T. Bhambhani, Board-certified in anesthesiology and pain medicine, reported that she
was awaiting authorization for additional surgery. He reviewed diagnostic studies, provided
physical examination findings, and diagnosed low back and left leg pain secondary to
postlaminectomy/fusion failed back syndrome, bulging lumbar disc and left lumbar
radiculopathy/radiculitis.
By decision dated October 8, 2010, OWCP denied appellant’s claim for leave buyback
for the period October 16 through November 22, 2006 on the grounds that the medical evidence
did not establish that her disability was due to the March 30, 2005 employment injury.
On October 26, 2010 appellant requested a hearing that was held on March 29, 2011. At
the hearing she complained about the delay in processing her claim for leave buyback. The
hearing representative explained that appellant needed to provide medical evidence explaining
that the claimed disability was caused by the employment injury. In a March 31, 2011 letter,
appellant stated that weather had a big impact on her level of pain, and that it would be difficult
for her to get an additional report from Dr. Sitaras after four years.
In a June 10, 2011 decision, an OWCP hearing representative affirmed the October 8,
2010 decision.
LEGAL PRECEDENT
In situations where compensation is claimed for periods when leave was used, OWCP has
the authority and the responsibility to determine whether the employee was disabled during the
period for which compensation is claimed.5 It determines whether the medical evidence
establishes that an employee is disabled by an employment-related condition during the period
4

The June 27, 2006 MRI scan study demonstrated a mild disc bulge at L3-4, mild spondylosis and disc bulge at
L4-5, and mild spondylosis, disc bulge and small left-sided disc herniation at L5-S1.
5

See Glen M. Lusco, 55 ECAB 148 (2003); see also 20 C.F.R. § 10.425 (1999).

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claimed for leave buyback, after which the employing establishment will determine whether it
will allow the employee to buyback the leave used.6
Under FECA, the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in FECA.7 Whether a particular injury
causes an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by a preponderance of the reliable, probative and substantial
medical evidence.8 When the medical evidence establishes that the residuals of an employment
injury are such that, from a medical standpoint, they prevent the employee from continuing in the
employment held when injured, the employee is entitled to compensation for any loss of wageearning capacity resulting from such incapacity.9 The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.10
OWCP’s procedure manual provides that no more than four hours of compensation or
continuation of pay should be allowed for routine medical appointments. Longer periods of time
may be allowed when required by the nature or the medical procedure and/or the need to travel a
substantial distance to obtain the medical care.11
ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain, lumbar neuritis and a lumbar
disc displacement on March 30, 2005 while moving boxes at work. Appellant filed claims for
leave buyback that were granted for the periods June 27 through October 6, 2006, November 29,
2006 to February 28, 2007 and March 9 to April 26, 2007. OWCP found that she was not
entitled to compensation, and thus leave buyback was denied, for the period October 16 through
November 22, 2006.
For the period beginning Monday, October 23 through November 22, 2006, appellant
submitted insufficient medical evidence to establish that she became disabled for work due to the
accepted March 30, 2006 employment injury. Dr. Sitaras explained on Wednesday, October 25,
6

Glen M. Lusco, id.

7

See 20 C.F.R. § 10.5(f) (1999); Cheryl L. Decavitch, 50 ECAB 397 (1999).

8

Fereidoon Kharabi, 52 ECAB 291 (2001).

9

S.D., Docket No. 10-1820 (issued March 18, 2011).

10

William A. Archer, 55 ECAB 674 (2004).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).

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2006, that appellant was seen as an emergency. Appellant reported a history that the previous
weekend she made about 20 trips helping her husband load his vehicle to bring equipment home
from a weekend festival. She experienced severe back pain with radiation into her lower
extremities. Whether a particular injury causes an employee to be disabled for employment and
the duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.12 Dr. Sitaras clearly advised that
appellant’s condition worsened after helping her husband load equipment following a weekend
festival. There is no evidence that such activity was incidental to her federal employment as a
chemist. Appellant failed to meet her burden of proof to establish that she became disabled for
the period October 23 through November 22, 2006 due to the accepted March 30, 2006
employment injury.
The Board finds the case not in posture regarding whether appellant is entitled to
compensation for leave buyback for four hours on October 16, 2006, one and a half hours on
October 19, 2006, and one hour on October 20, 2006 for claimed physical therapy visits, or two
hours on October 18, 2006 for a physician visit. Appellant received regular physical therapy
treatments as of August 14, 2006, and she visited Dr. Sitaras on October 18, 2006. In an
October 25, 2006 report, Dr. Sitaras advised that she had been helping her husband carry
equipment the previous weekend. OWCP denied compensation for these visits in its October 8,
2010 and June 10, 2011 decisions. The case will be remanded to OWCP to determine if
appellant is entitled to compensation for eight and a half hours compensation for October 16, 18,
19 and 20, 2006 because she missed work on these days for medical treatment related to the
March 30, 2005 employment injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established entitlement to leave buyback for the
period October 24 through November 22, 2006, and that the case is not in posture for decision
for the dates October 16, 18, 19 and 20, 2006.

12

Fereidoon Kharabi, supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the June 10, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded to OWCP for proceedings consistent with this decision of the Board.
Issued: June 1, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 09-1585
Issued: March 1, 2010

Case Submitted on the Record

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

JURISDICTION
On May 29, 2009 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated February 3, 2009. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed
respiratory diseases due to her employment.
FACTUAL HISTORY
On February 16, 2008 appellant, then a 52-year-old clerk, filed an occupational disease
claim alleging that she developed sinusitis and acute bronchitis due to factors of her federal
employment. In her narrative statement, she alleged that the employing establishment did not
have enough ventilation to expel the dust generated by the automated flats sorting machine 100
(AFSM100) on which she worked. Appellant stated that her exposure to dust irritated her eyes,
nostrils and lungs resulting in sinusitis and bronchitis.

Dr. Anastasia Rowland-Seymour, an internist of professorial rank, completed a report on
February 15, 2008 and stated that appellant’s allergies were triggered by environmental
exposures at work. She noted that appellant had frequent exposure to dust from the mail sorting
machine causing allergic rhinitis, recurrent sinusitis and episodic bronchitis. Appellant also
developed headaches. Dr. Rowland-Seymour recommended that appellant limit her exposures to
allergens, by switching her station or seeking another position at the employing establishment.
She noted that appellant already used goggles and a mask and also recommended light duty for
12 weeks to reduce appellant’s headaches, chronic allergic rhinitis with postnasal drip and
recurrent sinusitis.
In a letter dated March 14, 2008, the Office requested additional factual and medical
evidence from appellant and allowed 30 days for a response. The employing establishment
submitted a description of the operation of the AFSM100. The employing establishment also
submitted results of an air quality study which found that dust at appellant’s workstation was 50
times below the permissible exposure limit.
Appellant responded on April 11, 2008 and stated that the AFSM100 operated three
feeders at high rate of speed which projected an “enormous amount of dust particles.” She stated
that in the work area dust was visible on the surfaces and in the air. Appellant alleged that at the
induction station the air suction was so strong that dust particles were expelled toward her face
and that mail trays moved over her head causing dust to fall on her. She noted that the
employing establishment initially installed a dust remover machine, but then had it removed.
Appellant also alleged that there was no ventilation at her workstation. She denied any exposure
to irritants outside of work. Appellant stated that she first became aware of her condition on
December 16, 2004.
In a report dated April 2, 2008, Dr. Rowland-Seymour stated that she first examined
appellant in March 2007. Appellant reported that her symptoms improved when she was away
from work on the weekend or vacation. Dr. Rowland-Seymour stated that appellant had
symptoms of sinus congestion, itchy eyes, post nasal drip, cough and headache.
Dr. Devish D. Kanjarpane, an employing establishment physician Board-certified in
occupational and environmental medicine and preventative medicine, stated that appellant was
allergic to dust mites and that there was no basis to causally link the workplace machine
operation and her reported symptoms. He stated that dust was pulled into the machine not
expelled as described by appellant.
On June 17, 2008 Dr. Peter S. Creticos, an allergist, noted that appellant believed that her
allergic symptoms were related to her job at the letter sorting machine. He found that appellant’s
skin test was positive for dust mites, insects, animals and tree pollens. Dr. Creticos diagnosed
perennial allergic rhinitis, seasonal allergic rhinitis, chronic sinusitis, episodic asthma and
hypertension.
By decision dated August 29, 2008, the Office denied appellant’s claim, finding that the
evidence did not establish that she was exposed to dust at work.
Appellant requested a review of the written record on September 24, 2008.

2

In a decision dated February 3, 2009, an Office hearing representative found that the
factual evidence was sufficient to establish exposure to dust at the employing establishment. The
air quality testing study, however, did not support the level of dust alleged or that sorting
machine expelled dust directly at appellant. Appellant did not submit sufficient medical opinion
evidence to establish a causal relationship between her diagnosed conditions and her
employment exposures.
On appeal, appellant contends that the medical evidence established that her conditions
are due to her employment.
LEGAL PRECEDENT
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.1 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of a disease or condition for which
compensation is claimed; (2) a factual statement identifying the employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; and
(3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The medical opinion must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.2
ANALYSIS
Appellant has submitted medical evidence that diagnosed rhinitis, sinusitis, bronchitis
and asthma. She established that she was exposed dust at the employing establishment, the
employment factor which she believed caused or contributed to her diagnosed condition.
However, the Board finds that appellant has not submitted sufficient rationalized medical
opinion to establish the causal relationship between her diagnosed conditions and her
employment exposures.
Dr. Rowland-Seymour, an internist of professorial rank, stated on February 15, 2008 that
appellant’s allergic symptoms were triggered by environmental exposures at work. She opined
that appellant had frequent exposure to dust from the mail sorting machine causing allergic
rhinitis, recurrent sinusitis and episodic bronchitis. Dr. Rowland-Seymour also noted that
appellant reported improvement in her symptoms when she was away from work on the weekend
or vacation. The record does not support the level of dust exposure alleged by appellant. The
employing establishment established that appellant’s workplace dust was 50 times less than that
allowed and submitted evidence that the machine appellant used inhaled rather than expelled
dust. Dr. Rowland-Seymour did not have an accurate factual description of appellant’s
employment-related dust exposure. Her opinion is of diminished probative value for this reason.
1

20 C.F.R. § 10.5(q).

2

Solomon Polen, 51 ECAB 341, 343-44 (2000).

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Dr. Creticos examined appellant and performed skin tests on June 17, 2008 to determine
her allergies. While he noted that appellant attributed her allergies to her employment-related
dust exposure, he did not offer any opinion on the causal relationship between appellant’s allergy
to dust mites and any employment exposure to dust. This report does not support appellant’s
claim. The medical evidence of record is not sufficient to establish that appellant’s employment
caused or aggravated her diagnosed conditions.
CONCLUSION
The Board finds that appellant has not established that her diagnosed conditions were
caused or aggravated by exposure to dust in the course of her employment.
ORDER
IT IS HEREBY ORDERED THAT the February 3, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, BRONX
TRANSPORTATION & NETWORKS,
Bronx, NY, Employer
__________________________________________

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Appearances:
Paul S. Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1889
Issued: July 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On September 14, 2015 appellant, through counsel, filed a timely appeal of an August 21,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation, effective
October 24, 2014, for refusing an offer of suitable work pursuant to 5 U.S.C. § 8106(c).
On appeal counsel argues that OWCP erred in terminating appellant’s compensation as
the offered position was unsuitable.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 29, 2009 appellant, then a 57-year-old motor vehicle operator, filed a
traumatic injury claim (Form CA-1) alleging that on November 28, 2009 he sustained injuries to
his upper right leg and knee and left lower leg as the result of stepping off a sidewalk to help a
driver back up. He stopped work on November 29, 2009, but returned to regular work on
August 31, 2010.
OWCP accepted the claim for right thigh contusion, right lateral collateral ligament and
knee sprain, right knee contusion, and other and unspecified right medial meniscus derangement,
and authorized right knee arthroscopic surgeries, which were performed on June 18, 2010 and
December 9, 2011. By decision dated July 13, 2012, it accepted appellant’s claim for a
recurrence of disability beginning October 5, 2011.2
Appellant continued to submit frequent progress notes from his treating physician,
Dr. Stuart T. Styles, Board-certified in orthopedic surgery, who continued to report that appellant
was unable to return to work.
On August 8, 2012 OWCP referred appellant to Dr. Leon Sultan, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine appellant’s disability status.
In a September 9, 2012 report, Dr. Sultan, based upon a review of the statement of
accepted facts, medical records and physical examination, concluded that appellant’s accepted
conditions had resolved. He noted that the accepted conditions were right knee and thigh
contusions, right knee sprain, and right knee derangement. Dr. Sultan opined that these
conditions had resolved by the June 2010 and December 2011 surgeries. He also opined that
appellant was capable of performing the duties of his date-of-injury job.
In a report dated September 24, 2012, Dr. Styles reported that appellant had chronic right
knee pain and developed quadriceps atrophy. He opined that appellant was disabled from his
date-of-injury job, but was capable of performing a light-duty or sedentary position.
In a January 2, 2013 report, Dr. Styles reported that appellant had intermittent difficulties
with his right knee and opined that appellant continued to be disabled from work.
In a March 11, 2013 progress report, Dr. Styles released appellant to return to work with
restrictions including no lifting or pulling more than 80 pounds.
The record reflects that appellant returned to full duty on May 6, 2013.
On June 27, 2013 appellant filed a claim for a recurrence of disability (Form CA-2a)
beginning May 9, 2013. He noted that he returned to two and one-half days of orientation on
May 6, 2013 and then to full-duty work on May 8, 2013. On May 9, 2013 appellant’s manager
2

A Notification of Personnel Action (Form SF-50) dated August 27, 2014 reported that the Office of Personnel
Management (OPM) had approved appellant’s disability retirement and that his retirement was effective
August 14, 2014.

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informed him that no work was available within the restrictions noted on a duty status report
(Form CA-17).
In a July 15, 2013 report, Dr. Styles noted that appellant had been released to return to
modified duty, but instead had returned to full-duty work. He indicated that at the time he
released appellant to return to work he had clearly noted appellant’s restrictions, which did not
include moving containers weighing hundreds of pounds or using ladders. Dr. Styles opined that
appellant was disabled from performing full-duty work, but was capable of working with
restrictions.
By decision dated August 16, 2013, OWCP accepted appellant’s recurrence claim as the
employing establishment failed to provide him a job offer within the restrictions set by his
physician.
In a January 9, 2014 letter, OWCP referred appellant for an impartial medical
examination to Dr. George Burak, a Board-certified orthopedic surgeon, due to an unresolved
conflict in the medical opinion evidence between Drs. Sultan and Styles on the issues of
diagnoses, necessity for surgery, continuing disability, and causal relationship between his
current condition and the accepted work-related injury.
By letter dated January 22, 2014, OWCP placed appellant on the periodic rolls for
temporary total disability, effective January 12, 2014.
In a report dated February 11, 2014, Dr. Burak, based upon review of a statement of
accepted facts, medical history, and medical evidence, concluded that appellant had a mild
disability due to the accepted right knee employment injury. A physical examination revealed
meniscal irritations, mild crepitus, a normal gait pattern, no instability, mild grinding at extremes
of motion, and no atrophy. Range of motion using a goniometer included 140 degrees
contralateral knee, 135 degrees right knee range of motion, and 30 degrees of flexion at the varus
and valgus. Based on his examination, Dr. Burak found no evidence supporting Dr. Styles
diagnosis of quadriceps atrophy. He concluded that appellant was capable of working full time
with restrictions which included avoiding excessive kneeling, climbing, and squatting, and no
pushing objects weighing more than 50 pounds on a regular basis.
In a June 25, 2014 supplemental report, Dr. Burak corrected several errors in his prior
report and noted that his opinion remained unchanged with respect to appellant’s work
restrictions.
On July 29, 2014 Dr. Burak completed a work capacity evaluation form (Form OWCP5c) containing work restrictions for appellant, which were permanent. He indicated that
appellant was capable of working eight hours per day with restrictions including eight hours per
day of sitting, reaching above the shoulder, and twisting; up to four hours per day of walking,
standing, bending/stooping, and pushing, pulling, and lifting up to 50 pounds; up to two hours of
operating a motor vehicle at work and operating a motor vehicle to and from work; and no
squatting, kneeling, or climbing.
On August 12, 2014 the employing establishment offered appellant the modified position
of garage man. The job was located at the Manhattan Vehicle Maintenance Facility with
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nonscheduled days off Saturday and Sunday. The job description listed duties to be performed
up to eight hours per day included lubricating trucks while trucks are on a lift; change filter
cleaners and crankcase oil and cleaning case conforming with vehicle mileage and instructions;
making necessary repairs and changing tires while trucks are on a lift; steam cleaning and
washing trucks; assisting in performing automotive repairs; oils and fuels trucks; cleans garage,
swing room, garage office, and washroom when assigned; performs other duties as assigned; and
follows established procedures, safety precautions, and safe work methods while performing job
duties. The work restrictions for the position included sitting up to eight hours per day; up to
four hours per day of walking, standing, bending, and stooping; up to two hours per day of
operating a motor vehicle at work and operating a motor vehicle to and from work; no climbing,
squatting, or kneeling; and up to four hours per day of lifting, pushing, and pulling up to 50
pounds.
In a letter dated August 28, 2014, OWCP advised appellant of its determination that the
garage man position offered by the employing establishment on August 12, 2014 was suitable. It
indicated that the position was based upon the opinion of Dr. Burak, an impartial medical
examiner, who opined that he was capable of working eight hours per day with restrictions. The
employing establishment confirmed that the position remained available to appellant. OWCP
instructed him that he must, within 30 days, either accept the position or provide a written
explanation of the reason he did not accept the position or he could lose his right to
compensation under 5 U.S.C. § 8106(c) of FECA.
On September 5, 2014 OWCP received an August 27, 2014 letter from appellant to the
employing establishing declining the August 12, 2014 job offer. Appellant attached a copy of a
letter from OPM approving his application for disability retirement. He argued that the position
exceeded the work restrictions set by Dr. Burak, which included no squatting, repetitive
kneeling, excessive climbing, and excessive pushing of objects weighing more than 50 pounds.
Appellant also contended that the duties noted in the position were vague as to putting the truck
on the lift, the weight restrictions for the tires, and that duties numbers 5 and 9 were nonspecific.
In September 23, 2014 letter, appellant stated that he refused the August 12, 2014 job
offer and provided his reasons in an August 27, 2014 letter to the employing establishment. He
informed OWCP that he had been approved for disability retirement by OPM and was separated
from the employing establishment, effective August 17, 2014.
In an October 3, 2014 letter, OWCP found that the reasons given by appellant for
refusing the offered position were invalid. It gave him 15 additional days to accept the position
or to make arrangements to report to this position. OWCP noted that if appellant did not accept
the position within 15 days of the date of the letter, his right to compensation for wage loss or a
schedule award would be terminated pursuant to section 8106 of FECA. It would not consider
any further reasons for refusal of the offered position.
By letter dated October 16, 2014, appellant’s counsel wrote that appellant was medically
and physically unable to accept the August 12, 2014 job offer as the assignment duties were
inconsistent with his medical restrictions.

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By decision dated October 24, 2014, OWCP terminated appellant’s eligibility for wageloss compensation benefits, effective that date, as it found that he had refused an offer of suitable
work pursuant to 5 U.S.C. § 8106(c).
In a January 27, 2015 letter, appellant’s counsel requested reconsideration. He contended
that the offered position was not suitable as it required lifting tires weighing between 92 and 197
pounds and excessive kneeling is required in order to set the arms to lift the trucks for lubrication
or changing oil. Counsel indicated that he was submitting the manufacturer’s specification
sheets. He provided the tire model numbers and weights for the four different size tires used by
the employing establishment’s light and heavy duty trucks. Counsel stated that appellant’s work
restrictions supported a more sedentary position. He also contended that the statement of
accepted facts was inaccurate as OWCP has failed to accept all conditions caused by the
November 28, 2009 employment injury including a right medial meniscus posterior horn tear,
partial tears of the posterior cruciate and lateral collateral ligaments, and femoropatellar joint
cartilage thinning. Counsel argued that Dr. Sultan’s opinion was stale and insufficient as a basis
for a determination of a conflict at the time of the referral to Dr. Burak. In support of his request,
appellant submitted a November 16, 2014 medical reports from Dr. Styles.
On November 6, 2014 Dr. Styles provided a history of appellant’s November 28, 2009
employment injury and the medical treatment provided. Based upon appellant’s right knee
condition, he noted that appellant had limitations on kneeling, lifting, long walking, and jumping.
Dr. Styles opined that working in a garage was not reasonable with appellant’s work restrictions
and to prevent arthritic changes. He concluded that appellant was capable of performing
sedentary work and that the job duties of the offered position were outside his work restrictions.
OWCP subsequently received progress notes from Dr. Styles including a March 31, 2014
report noting that appellant’s gait had altered and that he complained of shooting pain from the
knee to the hip. A June 30, 2015 progress note reported right leg radiculopathy due to changes in
appellant’s gait, which Dr. Styles attributed to the November 28, 2009 employment injury.
By decision dated August 21, 2015, OWCP denied modification of its prior decision. It
made findings regarding his arguments on reconsideration. OWCP specifically found that
neither appellant nor the employing establishment had provided proof that he would have to use
or lift any of the specified tires that exceeded his weight restrictions.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek
suitable work or refuses or neglects to work after suitable work is offered to, procured by or
secured for him is not entitled to compensation.3 Once OWCP accepts a claim, it has the burden
of justifying termination or modification of compensation benefits under section 8106(c) for
refusing to accept or neglecting to perform suitable work.4 The Board has recognized that

3

5 U.S.C. § 8106(c)(2).

4

Howard Y. Miyashiro, 51 ECAB 253 (1999).

5

section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future
compensation and, for this reason, will be narrowly construed.5
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of his refusal to accept such employment.6
According to OWCP’s procedure, a job offer must be in writing and contain a description of the
duties to be performed and the specific physical requirements of the position.7 Section 10.516 of
the Code of Federal Regulations8 provides that an employee who refuses or neglects to work
after suitable work has been offered or secured for the employee has the burden of showing that
such refusal or failure to work was reasonable or justified, and shall be provided with the
opportunity to make such showing before a determination is made with respect to termination of
entitlement to compensation.9
ANALYSIS
OWCP accepted that, as a result of the November 28, 2009 employment injury, appellant
sustained right thigh contusion, right lateral collateral ligament and knee sprain, right knee
contusion, and other and unspecified right medial meniscus derangement. It authorized two right
knee arthroscopic surgeries. Dr. Styles advised that appellant was capable of working with
restrictions and recommended a sedentary position. Appellant was referred for a second opinion
evaluation with Dr. Sultan who opined that appellant’s accepted condition had resolved and he
was capable of performing his date-of-injury job. OWCP found a conflict in the medical opinion
evidence and referred appellant to Dr. Burak for an impartial medical examination.
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA. The statute
provides that, if there is disagreement between the physician making the examination for the
United States and the physician of the employee, the Secretary shall appoint a third physician
who shall make an examination and resolve the conflict of medical evidence.10 This is called a
referee examination and OWCP will select a physician who is qualified in the appropriate
specialty and who has no prior connection with the case.11 The Board finds that, due to the
differing opinions on appellant’s disability and whether the accepted conditions had resolved
between Dr. Sultan and Dr. Styles, OWCP properly determined that there was a conflict of
medical evidence.
5

H. Adrian Osborne, 48 ECAB 556 (1997).

6

T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4(a)
(June 2013).
8

20 C.F.R. § 10.516.

9

See Camillo R. DeArcangelis, 42 ECAB 941 (1991).

10

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

11

R.C., 58 ECAB 238 (2006).

6

In a February 11, 2014 report, Dr. Burak concluded that appellant had a mild disability
due to the accepted right knee employment injury based on the physical examination findings.
He also found no evidence supporting a diagnosis of quadriceps atrophy. On July 29, 2014
Dr. Burak completed a work capacity evaluation form indicating that appellant could work eight
hours per day with restrictions of up to eight hours of sitting, reaching above the shoulder, and
twisting; up to four hours per day of walking, standing, bending/stooping, and pushing, pulling,
and lifting up to 50 pounds; up to two hours of operating a motor vehicle at work and operating a
motor vehicle to and from work; and no squatting, kneeling, or climbing. The Board finds that
Dr. Burak’s opinion is entitled to the special weight of the medical evidence accorded an
impartial medical examiner. Dr. Burak based his opinion on a proper factual background, review
of the medical evidence, and physical examination and opined that appellant was capable of
light-duty work.
On August 12, 2014 the employing establishment provided appellant with a limited-duty
position as a garage man. The employing establishment listed the duties of the position as
lubricating trucks while the trucks were on a lift, changing crankcase oil and filter cleaners,
making necessary repairs and changing tires while trucks are on a lift, steam cleaning and
washing trucks, assisting with automotive repairs, oiling and fueling trucks, cleaning the garage,
swing room, garage office and washroom as assigned, and performing other duties as assigned.
The work restrictions for the position included sitting up to eight hours per day; up to four hours
per day of walking, standing, bending, and stooping; up to two hours per day of operating a
motor vehicle at work and operating a motor vehicle to and from work; no climbing, squatting,
or kneeling; and up to four hours per day of lifting, pushing, and pulling up to 50 pounds. The
Board finds that the physical requirements of the offered position of garage man fell within
appellant’s work restrictions. The weight of the medical evidence establishes that he was no
longer totally disabled from work and had the physical capacity to perform the duties listed in the
August 12, 2014 job offer. Thus, OWCP properly relied on Dr. Burak’s opinion in finding the
garage man position suitable.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP
advised appellant on August 28, 2014 that it found the job offer of garage man to be suitable and
gave him an opportunity to provide reasons for refusing the position within 30 days. It advised
him in an October 3, 2014 letter that his reason for refusing based on OPM’s acceptance of his
claim for disability retirement was insufficient12 and that he had 15 additional days to accept the
offered position. The Board finds that OWCP followed the established procedures prior to the
termination of compensation pursuant to section 8106(c).
The Board finds that the position was medically and vocationally suitable and OWCP
complied with the procedural requirements of section 8106(c). OWCP therefore met its burden
of proof to terminate appellant’s compensation benefits based on his refusal to accept suitable
work.

12

The Board had long held that electing to retire is not a justifiable reason to refuse an offer of suitable work.
Robert P. Mitchell, 52 ECAB 116 (2000). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.5(c) (June 2013)

7

Subsequent to terminating appellant’s benefits, OWCP received a November 16, 2014
medical report from Dr. Styles, who advised that appellant could not perform the offered position
of garage man as he found the job duties were outside appellant’s work restrictions and could
cause arthritic changes. It also received progress notes dated March 31 and June 30, 2014 from
Dr. Styles noting a gait change and right leg radiculopathy due to the gait change, which the
physician attributed to the November 28, 2009 employment injury. Dr. Styles did not provide
any explanation supporting his opinion. In addition, Dr. Styles was on one side of the conflict in
the medical opinion that Dr. Burak resolved, and his report and progress notes are insufficient to
overcome the special weight accorded the impartial specialist or to create a new medical
conflict.13
The Board finds that Dr. Burak’s report established that appellant was capable of
performing the job offered and the position was suitable, and thereby OWCP was justified in its
October 24, 2014 termination of benefits as he refused an offer of suitable work.
On appeal appellant’s counsel argues that medical reports from appellant’s treating
physician clearly establish that the offered position was outside his restrictions. He also argues
that the referrals to a second opinion physician and to an impartial medical examiner were
unreasonable. The Board notes, however, that there is no indication of record that any of
OWCP’s medical referrals were improper and that OWCP has the discretion to have a claimant
submit to an examination by a physician designated by OWCP as frequently and at the times and
places as may be reasonably required.14 Counsel also contends that the medical evidence was
insufficiently rationalized, equivocal, and insufficient to constitute the weight of the medical
evidence. As discussed above, the Board finds that OWCP properly referred appellant to
Dr. Burak to resolve the conflict in the medical opinion evidence and that his opinion was well
rationalized and sufficient to establish that the offered position was suitable.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s monetary compensation
effective October 24, 2014 on the basis that he refused an offer of suitable work pursuant to
5 U.S.C. § 8106(c)(2).

13

Alice J. Tysinger, 51 ECAB 638 (2000); Barbara J. Warren, 51 ECAB 413 (2000)

14

J.C., Docket No. 09-609 (issued January 5, 2010); S.B., 58 ECAB 267 (2007); William B. Webb, 56 ECAB
156 (2004).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 21, 2015 is affirmed.
Issued: July 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE/L.O.C.,
Charlotte, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1471
Issued: July 27, 2018

Case Submitted on the Record

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

JURISDICTION
On June 27, 2017 appellant, through counsel, filed a timely appeal from two May 1, 2017
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its May 1, 2017 decisions. The
Board’s jurisdiction is limited to a review of the evidence that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUES
The issues are: (1) whether appellant has established total disability during the period
June 11 through October 4, 2016 causally related to the accepted June 7, 2015 employment injury;
(2) whether OWCP met its burden of proof to terminate appellant’s wage-loss compensation and
medical benefits, effective October 13, 2016, as he no longer had any residuals or disability
causally related to his accepted employment injury; and (3) whether appellant has established
continuing residuals or disability from the accepted employment-related injury after
October 13, 2016.
FACTUAL HISTORY
On June 7, 2015 appellant, then a 54-year-old flats sequencing systems (FSS) clerk, filed
a traumatic injury claim (Form CA-1) alleging that he injured his right shoulder that day while in
the performance of duty. He indicated that a tub of mail had slipped off the canister he was holding
and he injured his right shoulder when he tried to push the canister back up. The employing
establishment noted that appellant had previously complained of shoulder pain. OWCP accepted
the claim for sprain of the right rotator cuff capsule and complete right rotator cuff rupture.
Appellant stopped work on November 28, 2015. On November 30, 2015 he underwent an
OWCP-approved right shoulder arthroscopic subacromial decompression of the right shoulder,
right shoulder biceps tenodesis, and mini open repair of the right rotator cuff, performed by
Dr. Robert McBride, a Board-certified orthopedic surgeon. OWCP paid appellant wage-loss
compensation based on temporary total disability for the period November 28, 2015 through
June 10, 2016.
Dr. McBride submitted progress notes regarding appellant’s condition following his right
shoulder surgery. In a March 31, 2016 note, he noted that appellant continued to have pain on
range of motion and that he had a history of cervical spine damage, for which he was treated by
Dr. Paul Segebarth, a Board-certified orthopedic surgeon. Dr. McBride indicated that appellant’s
physical therapist was concerned with persistent nerve damage from the cervical spine as he was
not showing improvement. He kept appellant off work for an additional six weeks.
In a June 23, 2016 report, Dr. McBride provided an impression of status post right rotator
cuff repair, right shoulder brachial plexopathy, and cervical spondylosis radiculopathy. He
indicated that he had reviewed Dr. Segebarth’s notes, who advised that appellant had foraminal
stenosis and was under consideration for an anterior cervical discectomy and fusion (ACDF)
surgery with foraminotomies.
On June 28, 2016 appellant filed a claim for compensation (Form CA-7) for wage loss
during the period June 11 to 24, 2016.
In a July 5, 2016 development letter, OWCP advised appellant of the medical evidence
needed to support disability during the period claimed. It afforded him 30 days to submit the
requested evidence. Appellant continued to file CA-7 forms thereafter claiming wage-loss
compensation through October 4, 2016.

2

On July 14, 2016 OWCP received an unsigned July 11, 2016 work status report from
Dr. McBride’s office which indicated that appellant should not work from June 11 through 24,
2016 due to right shoulder pain.
On July 19, 2016 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a list of questions, and the medical record, to Dr. Joseph Estwanik, a Board-certified
orthopedic surgeon, for a second opinion evaluation about the extent and degree of appellant’s
injury-related disability.
By decisions dated August 8 and 11, 2016, OWCP denied appellant’s claim for wage-loss
compensation for the period June 11 through 24, 2016. By decision dated August 22, 2016, it
denied his claim for wage-loss compensation for the period June 25 to July 8, 2016 as the evidence
of record was insufficient to support disability during the period claimed, due to the accepted
conditions.
Following the issuance of its August 22, 2016 decision, OWCP received an August 10,
2016 report from Dr. Estwanik, OWCP’s second opinion physician, who noted appellant’s history
of injury on June 7, 2015, reviewed the medical record, and provided detailed physical
examination findings. He noted that appellant reported right shoulder issues since 2012 and that
he had not been able to lift over 15 pounds since that time. Appellant denied any specific injuries
to the right shoulder prior to the June 7, 2015 work injury. Dr. Estwanik also noted that the June 7,
2015 emergency room records indicated that appellant had been diagnosed with pneumothorax
and rib fractures after a recent fall at home. A diagnosis of status post rotator cuff repair, right
shoulder brachial plexopathy, and cervical spondylosis radiculopathy was provided.
Dr. Estwanik opined that the accepted conditions of right shoulder sprain and complete
rotator cuff tear had resolved. He pointed out that a November 30, 2015 operative note indicated
that the claimant appeared to have had an excellent repair. Dr. Estwanik also indicated that a
March 8, 2016 note revealed that the surgery was successful in regards to correction of the rotator
cuff tear, but appellant was weak and painful due to atrophy and neurological problems. He
explained that appellant had significant preexisting trauma with falls at home and significant
preexisting cervical and rotator cuff abnormalities. Dr. Estwanik reported that the July 19, 2015
magnetic resonance imaging (MRI) scan of the right shoulder revealed diffuse rotator cuff atrophy,
which would not have existed at only six weeks’ post injury. The July 6, 2012 MRI scan of the
cervical spine confirmed severe right foraminal narrowing and cord compression at C4-5 and C56, which explained the significant atrophy. Dr. Estwanik further reported that Dr. McBride had
confirmed in his October 8, 2015 note that appellant had experienced shoulder pain for the prior
two years and had deferred the recommended surgery.
Dr. Estwanik opined that appellant was able to return to his regular job as it related to the
resolved accepted work injury. However, he was disabled from work due to significant preexisting
conditions unrelated to work: severe spinal cord and nerve root abnormalities and severe brachial
plexus abnormality. Dr. Estwanik recommended that appellant follow up with a spine or brachial
plexus specialist and obtain electromyogram (EMG) studies, but noted that this would be unrelated
to the work injury.

3

In an August 19, 2016 report, Dr. Bryan Loeffler, a Board-certified orthopedic surgeon,
noted that appellant was treated by Dr. Segebarth and had undergone a cervical spine MRI scan
on May 26, 2016, which showed severe bilateral foraminal narrowing at C5-6. He noted that
Dr. Segebarth did not feel that those findings could sufficiently explain the degree of weakness
and appellant was referred back to him. Dr. Loeffler noted that EMG studies on June 30, 2016
were significantly worse than those performed in 2012. He diagnosed right upper trunk brachial
plexopathy with no evidence of recovery of the axillary and suprascapular nerves with profound
weakness to the biceps and brachialis. Dr. Loeffler opined that appellant was too far removed
from his brachial plexus injury for consideration of nerve transfer. The muscles appeared too
atrophic and appellant was not a good candidate for nerve reanimation. Dr. Loeffler recommended
right shoulder triple trapezial transfer as well as bipolar pedicled latissimus transfer to improve
shoulder function. He noted that when appellant had sufficiently recovered from the shoulder
transfers, a Steindler flexorplasty or pectoralis major flexorplasty needed to be performed to
improve elbow flexion strength.
On August 23, 2016 OWCP received appellant’s August 16, 2016 request for a telephonic
hearing before an OWCP hearing representative regarding its August 8, 2016 decision denying
wage-loss compensation benefits. On August 31, 2016 it received appellant’s August 30, 2016
request for a telephonic hearing before an OWCP hearing representative regarding its August 22,
2016 decision denying wage-loss compensation benefits.
By decision dated September 6, 2016, OWCP denied appellant’s claim for wage-loss
compensation for the period July 9 to 22, 2016 as the evidence of record was insufficient to support
disability during the period claimed.
On September 8, 2016 OWCP notified appellant of its proposal to terminate his wage-loss
compensation and medical benefits based on Dr. Estwanik’s second opinion report of
August 10, 2016. Dr. Estwanik had found that appellant no longer had any residuals or disability
causally related to the June 7, 2015 employment injury as his accepted conditions of right shoulder
sprain and right rotator cuff tear had resolved. Rather, he found that appellant was suffering from
preexisting conditions which were unrelated to appellant’s federal employment. OWCP provided
appellant 30 days to submit additional evidence or argument.
By decision dated September 12, 2016, OWCP denied appellant’s claim for wage-loss
compensation for the period July 23 to August 9, 2016 as the evidence of record was insufficient
to support total disability during the period claimed.
In a letter dated September 14, 2016, received on September 15, 2016, appellant requested
a telephonic hearing before an OWCP hearing representative regarding the September 6, 2016
decision.
In a letter dated September 20, 2016, received on September 21, 2016, appellant requested
a telephonic hearing before an OWCP hearing representative regarding the September 12, 2016
decision.
By letter dated September 25, 2016, OWCP requested that Dr. Loeffler explain how the
proposed muscle transfer procedures were related to the accepted June 7, 2015 work injury.

4

By decision dated October 12, 2016, OWCP denied appellant’s claim for wage-loss
compensation for the period August 6 to 19, 2016 as the evidence of record was insufficient to
support total disability during the period claimed. It noted that he was previously advised to submit
medical evidence supporting disability during the period claimed, but he had responded.
By decision dated October 13, 2016, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective the same date, finding that the weight of the evidence
rested with Dr. Estwanik who found that appellant no longer had any residuals or disability
causally related to the accepted work injury.
In an October 19, 2015 letter, appellant requested a telephonic hearing before an OWCP
hearing representative regard to the October 12, 2016 decision. In an October 20, 2016 letter, he
requested a telephonic hearing before an OWCP hearing representative with regard to the
October 13, 2016 decision.
By decision dated November 1, 2016, OWCP denied appellant’s wage-loss compensation
claim for the period September 20 to October 4, 2016 as the evidence of record was insufficient to
support disability during the period claimed.
In November 1 and 2, 2016 reports, Dr. McBride noted that appellant had recently retired
from his job. He provided an impression of right upper trunk brachial plexopathy and an
impairment rating.
In a November 10, 2016 letter, appellant requested a telephonic hearing before an OWCP
hearing representative of its November 1, 2016 decision.
On November 21, 2016 OWCP received an October 23, 2016 letter from Dr. Loeffler.
Dr. Loeffler indicated that the diagnosis for the proposed surgery was chronic C5 denervation of
the deltoid, supraspinatus, infraspinatus, biceps, and brachialis. He indicated that it was unclear
how this diagnosis related to the June 7, 2015 work injury. However, Dr. Loeffler noted that it
was clear from the June 30, 2016 EMG and nerve conduction studies that there was significantly
worsening when compared to earlier studies done in 2012. He indicated that appellant was doing
fairly well with regard to his right shoulder prior to the June 2015 work injury. However, as
appellant’s atrophy increased significantly since his MRI scan done on July 15, 2015 and
Dr. McBride’s initial evaluations, Dr. Loeffler suggested that the June 2015 work injury further
exacerbated or increased the injury to his right shoulder and C5 nerve root, which resulted in severe
atrophy in the above-mentioned muscles.
In a November 29, 2016 letter, Dr. McBride noted that there had been significant interval
worsening in the June 30, 2016 EMG and nerve conduction studies as compared to the studies
done in 2012. He also noted that appellant had a significant increase in atrophy since the July 15,
2015 MRI scan, which suggested that the June 2015 work injury had increased the injury to his
right shoulder and C5 nerve root which resulted in the severe atrophy in the C5 denervation of the
deltoid, supraspinatus, biceps, and brachialis. Dr. McBride also provided a permanent impairment
rating to the right upper extremity.
On February 16, 2016 a telephonic hearing was held with regard to the termination of
appellant’s wage-loss compensation and medical benefits, effective October 13, 2016, and his
5

claims for wage-loss compensation for the period June 11 through October 4, 2016. Appellant
testified that he had not worked since his approved right shoulder surgery on November 30, 2015
as his doctor told him he could not use his right arm or shoulder. He indicated that he retired on
October 24, 2016. Appellant noted that he underwent the additional surgery Dr. Loeffler had
recommended on January 27, 2016. He stated that, while he had problems with his shoulder since
2012, he believed that his ongoing problems with the neck, shoulder, and elbow were a result of
the work-related injury. Counsel argued that the acceptance of the claim should be expanded to
allow for additional medical conditions.
Following the hearing, OWCP received a March 9, 2017 report from Dr. Loeffler.
Dr. Loeffler opined that the June 7, 2015 work injury caused a rotator cuff tear and a nerve injury
to the C5 nerve root. He noted that the nerve injury to the C5 nerve root resulted in atrophy and
dysfunction in the deltoid supraspinatus, infraspinatus, biceps, and brachialis.
By decision dated May 1, 2017, OWCP’s hearing representative affirmed the October 13,
2016 decision terminating appellant’s wage-loss compensation and medical benefits.
By separate decision dated May 1, 2017, OWCP’s hearing representative affirmed
OWCP’s August 8, 11, 22, September 6, 12, October 12 and November 1, 2016 decisions finding
that appellant was not entitled to wage-loss compensation for the claimed period June 11 through
October 4, 2016.
LEGAL PRECEDENT -- ISSUE 1
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.4 Furthermore, whether a particular injury
causes an employee to be disabled from employment and the duration of that disability are medical
issues which must be proved by a preponderance of the reliable, probative, and substantial medical
evidence.5 Causal relationship is a medical issue, and the medical evidence required to establish
causal relationship is rationalized medical evidence.6
The issue of disability from work can only be resolved by competent medical evidence.7
The issue of whether a claimant’s disability is related to an accepted condition is a medical question
which must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to employment factors and

4

See 20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

5

Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

R.C., 59 ECAB 546 (2008).

6

supports that conclusion with sound medical reasoning.8 A physician’s opinion on causal
relationship between a claimant’s disability and an employment injury is not dispositive simply
because it is rendered by a physician. To be of probative value, the physician must provide
rationale for the opinion reached. Where no such rationale is present, the medical opinion is of
diminished probative value.9 The Board will not require OWCP to pay compensation for disability
in the absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.10
ANALYSIS - ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that he had
employment-related total disability for the period June 11 through October 4, 2016 causally related
to the accepted June 7, 2015 work injury.
In his report dated March 31, 2016, Dr. McBride explained that appellant would be
disabled for another six weeks due to residuals of his accepted right shoulder surgery. OWCP
therefore paid appellant wage-loss compensation through June 10, 2016. In an unsigned July 1,
2016 work status report, Dr. McBride indicated that appellant should not work from June 11
through 24, 2016 due to right shoulder pain. When a physician’s statements consist only of a
repetition of the employee’s complaints that excessive pain caused an inability to work, without
an objective finding of disability being shown, that physician has not presented a rationalized
medical opinion establishing disability or a basis for payment of compensation.11
In his August 19, 2016 report, Dr. Loeffler failed to offer any opinion supporting that
appellant was suffering from or disabled from work due to the accepted right shoulder sprain and
right rotator cuff rupture. Rather, he opined that appellant’s ongoing treatment and disability from
work were due to medical conditions that were not accepted by OWCP as work related, but offered
no medical reasoning to support this opinion.12 Dr. Loeffler diagnosed right upper trunk brachial
plexopathy and recommended muscle transfers. However, he provided no reasoned opinion
explaining how the additional medical conditions and proposed surgeries were the result of the
accepted work injury. Because he failed to provide any medical rationale for his conclusion, his
opinion regarding appellant’s inability to work is of diminished probative value.13

8

See Sandra D. Pruitt, 57 ECAB 126 (2005).

9

Thaddeus J. Spevack, 53 ECAB 474 (2002).

10

S.P., Docket No. 16-1384 (issued February 1, 2017).

11

See G.T., 59 ECAB 447 (2008).

12

See supra note 8.

13

See S.B., Docket No. 13-1162 (issued December 12, 2013).

7

Appellant has not submitted reasoned medical opinion evidence sufficient to establish total
disability for the claimed period June 11 through October 4, 2016 as a result of his June 7, 2015
accepted work injury. Accordingly, the Board finds that appellant has not met his burden of proof.
On appeal counsel contends that the May 1, 2017 decision affirming the denial of
appellant’s claims for compensation is contrary to fact and law. As explained above, the medical
evidence of record is insufficient to establish total disability from work during the claimed period.
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
Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to
justify modification or termination of benefits.14 Having determined that an employee has a
disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing either that the disability has ceased or that it is no longer related
to the employment.15
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.16 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.17 OWCP’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits as of October 13, 2016.
In its termination decision, OWCP determined that the weight of the medical evidence
rested with Dr. Estwanik, a Board-certified orthopedic surgeon serving as the second opinion
physician. The Board has carefully reviewed the opinion of Dr. Estwanik and finds that it has

14

Bernadine P. Taylor, 54 ECAB 342 (2003).

15

Id.

16

Roger G. Payne, 55 ECAB 535 (2004).

17

Pamela K. Guesford, 53 ECAB 726 (2002).

18

T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 351 (1975).

8

reliability, probative value, and convincing quality with respect to its conclusions regarding the
relevant issue in the present case.19
Dr. Estwanik’s opinion is based on a proper factual and medical history and he thoroughly
reviewed the SOAF and medical records.20 He provided medical rationale for his opinion that the
accepted work-related conditions of right shoulder sprain and complete rotator cuff tear had
resolved. Dr. Estwanik indicated that the right shoulder sprain had long since resolved and the
right rotator cuff rupture had resolved based on a successful surgery on November 30, 2015. On
this basis, Dr. Estwanik opined that the accepted work injury had fully resolved and appellant was
no longer disabled from work due to the accepted work injury.
Dr. Estwanik also opined that the brachial plexopathy of appellant’s right shoulder and
cervical spondylosis radiculopathy were related to a preexisting cervical nerve injury that was
unrelated to work. He noted that appellant’s severe brachial plexus abnormality was due to his
documented preexisting medical condition. Dr. Estwanik also explained that the treatment records
following appellant’s work injury provided no evidence to support that the work injury worsened
the preexisting condition. His opinion thus establishes that appellant was no longer experiencing
residuals or disability causally related to the accepted June 7, 2015 employment injury.21
The Board finds that Dr. Estwanik’s well-rationalized report, which was based upon a
proper factual and medical background, represents the weight of the medical evidence and
establishes that appellant’s accepted conditions of sprain of the right rotator cuff capsule and right
rotator cuff rupture had ceased and he was no longer experiencing residuals related to the June 7,
2015 employment injury.22
There is no other medical evidence contemporaneous with the termination of appellant’s
benefits which supports that he has any continuing residuals or disability causally related to his
accepted work-related injury.23 As such, OWCP properly terminated appellant’s medical benefits
effective October 13, 2016.24
On appeal counsel contends that the May 1, 2017 termination decision is contrary to fact
and law. For the reasons set forth above, OWCP properly accorded weight of the medical opinion
evidence to the second opinion physician, Dr. Estwanik, who opined that the accepted conditions
had resolved and that the additional diagnosed conditions were not work related to warrant
payment of wage-loss compensation during the claimed period.

19

J.S., Docket No. 12-1237 (issued September 9, 2013).

20

See Melvina Jackson, 38 ECAB 443 (1987).

21

Supra note 19.

22

J.F., Docket No. 15-0536 (issued August 3, 2015).

23

D.R., Docket No. 12-1697 (issued January 29, 2013).

24

G.I., Docket No. 13-0019 (issued April 2, 2013).

9

LEGAL PRECEDENT -- ISSUE 3
After OWCP has met its burden of proof to terminate compensation benefits, the burden
for reinstating compensation benefits shifts to appellant to establish that he has residuals or
disability causally related to the accepted employment injury.25 Causal relationship is a medical
issue. The opinion of the physician must be based on a complete factual and medical background
of the claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.26
ANALYSIS -- ISSUE 3
The Board finds that appellant has not established continuing residuals or disability
causally related to the accepted employment injury after October 13, 2016.
In his October 23, 2016 letter, Dr. Loeffler indicated that it was unclear how the diagnosis
of chronic C5 denervation of the deltoid, supraspinatus, infraspinatus, biceps, and brachialis were
related to the work injury of June 7, 2015. Although he opined that atrophy had increased and the
objective findings had worsened based on his review of MRI scans and EMG studies, he failed to
explain how any worsening of the underlying, preexisting condition was related to the accepted
work injury. While the opinion supporting causal relationship does not have to reduce the cause
or etiology of a disease or condition to an absolute certainty, the opinion must be one of reasonable
medical certainty, and not speculative or equivocal in character. A medical opinion not fortified
by medical rationale is of diminished probative value.27 A well-rationalized opinion is particularly
warranted when there is a history of preexisting condition.28 Dr. Loeffler opined that based on his
review of MRI scans and EMG studies, appellant’s atrophy had increased and his objective
findings had worsened. He opined that this suggested that the June 2015 work injury further
exacerbated or increased the preexisting injury to appellant’s right shoulder and C5 nerve root.
However, Dr. Loeffler failed to discuss whether appellant’s preexisting injury had progressed
beyond what might be expected from the natural progression of that condition or explain how the
June 7, 2015 work injury caused a nerve injury to the C5 nerve root in the period following the
June 7, 2015 work injury.29 Because he failed to provide any medical rationale for his conclusion,
his opinion regarding appellant’s inability to work is of diminished probative value.30
Dr. Loeffler subsequently opined in his March 9, 2017 report that the June 7, 2015 work
injury caused a rotator cuff tear and a nerve injury to the C5 nerve root, but he offered no medical
25

Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001); George Servetas, 43 ECAB 424,
430 (1992).
26

T.M., Docket No. 08-0975 (issued February 6, 2009).

27

W.W., Docket No. 09-1619 (issued June 2, 2010).

28

See A.W., Docket No. 17-0285 (issued May 25, 2018).

29

R.E., Docket No. 14-0868 (issued September 24, 2014).

30

See supra note 13.

10

reasoning to support his opinion. He did not discuss whether appellant’s preexisting injury had
progressed beyond what might be expected from the natural progression of that condition or
explain how the June 7, 2015 work injury caused a nerve injury to the C5 nerve root.31
In his March 9, 2017 report, Dr. Loeffler opined, without explanation, that the June 7, 2015
employment injury caused rotator cuff tear and a nerve injury to the C5 nerve root, which resulted
in atrophy and dysfunction in the deltoid supraspinatus, infraspinatus, biceps and brachialis.32
In his November 1 and 2, 2016 reports, Dr. McBride offered no opinion on disability
during the claimed period or whether appellant’s current medical conditions were related to the
employment injury of June 7, 2015. In his November 29, 2016 report, he noted that the worsening
seen in the June 30, 2016 EMG and nerve conduction studies and significant increase in atrophy
seen on the July 15, 2015 MRI scan suggested that the June 2015 employment injury had increased
the injury to his right shoulder and C5 nerve root, which resulted in the severe atrophy in the C5
denervation of the deltoid, supraspinatus, biceps, and brachialis. Dr. McBride, however, failed to
provide an unequivocal opinion pertaining to the cause of appellant’s worsening right shoulder
and C5 nerve root conditions. He failed to provide a rationalized opinion explaining how and why
the June 2015 employment injury caused the worsening of appellant’s preexisting right shoulder
and C5 nerve root conditions.33 Dr. McBride’s reports also fail to provide support for work-related
disability on or after October 13, 2016. As he failed to provide support for a work-related
condition or disability, Dr. McBride’s reports are of limited probative value.34
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established total disability for the period June 11
through October 4, 2016 as a result of his accepted June 7, 2015 employment injury. The Board
also finds that OWCP met its burden of proof to terminate appellant’s wage-loss compensation
and medical benefits, effective October 13, 2016. Appellant has not established continuing
residuals or disability causally related to the accepted June 7, 2015 injury after October 13, 2016.

31

Supra note 29.

32

Id.

33

See supra note 26.

34

S.T., Docket No. 11-1316 (issued January 25, 2012).

11

ORDER
IT IS HEREBY ORDERED THAT the May 1, 2017 decisions of the Office of Workers’
Compensation Programs are affirmed.
Issued: July 27, 2018
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF DEFENSE, EDUCATION
AGENCY, Guantanamo Bay, Cuba, Employer
__________________________________________

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

Docket No. 19-1425
Issued: February 6, 2020

Case Submitted on the Record

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

JURISDICTION
On June 17, 2019 appellant, through counsel, filed a timely appeal from a March 28, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right ankle
condition causally related to the accepted January 29, 2018 employment incident.
FACTUAL HISTORY
On February 22, 2018 appellant, then a 52-year-old teacher, filed a traumatic injury claim
(Form CA-1) alleging that on January 29, 2018 she twisted her ankle and foot on a broken portion
of the sidewalk and experienced numbness and swelling while in the performance of duty. She
stopped work on January 30, 2018 and returned on February 2, 2018.
In a February 15, 2018 statement, an employing establishment nurse, Nakeha Russell,
explained that when she went to visit appellant in her classroom after she fell for a second time,
she observed her hopping back and forth on her noninjured ankle and appellant advised that she
slipped and fell on a wet spot while on the way to the bathroom. She then suggested that appellant
make an appointment with her physician for evaluation, rather than an emergency room visit, as
there was no evident deformity in her ankle.
In a development letter dated February 23, 2018, OWCP advised appellant of the
deficiencies of her claim. It informed her of the type of factual and medical evidence necessary to
establish her claim, including a narrative medical report from her treating physician which
provided a diagnosis and a physician’s rationalized medical explanation as to how the alleged
employment incident caused the diagnosed condition. OWCP afforded appellant 30 days to submit
the necessary evidence. No additional evidence was received.
By decision dated March 29, 2018, OWCP denied appellant’s claim, finding that she had
not submitted medical evidence containing a medical diagnosis in connection with the accepted
January 29, 2018 employment incident. It concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA.
Thereafter, OWCP continued to receive evidence. In a February 2, 2018 medical report,
Dr. Edward Wiemholt, Board-certified in internal medicine, diagnosed a significant right ankle
sprain and lower back strain. He noted that appellant should not perform any prolonged standing,
walking or carry heavy objects for two weeks as she recovers.
Appellant submitted the first page of a February 26, 2018 authorization for examination
and/or treatment (Form CA-16) in which the employing establishment noted that appellant rolled
her foot and sprained her ankle due to employment incidents occurring on January 29 and
February 3, 2018.
On June 14, 2018 appellant requested reconsideration of the March 29, 2018 decision. She
indicated that she suffered two separate injuries to the same leg, while working on January 29 and
February 5, 2018. Appellant noted that she had previously uploaded medical evidence in support
of her claim and a report from Fort Belvoir Medical Center attributed prolonged swelling to a distal
fibular fracture.

2

By decision dated September 12, 2018, OWCP modified its prior its March 29, 2018
decision to accept that the January 29, 2018 employment incident occurred as alleged and that the
medical evidence was sufficient to establish diagnoses of right ankle sprain and a lower back strain.
However, it denied appellant’s claim because the medical evidence of record was insufficient to
establish that her diagnosed conditions were causally related to the accepted employment incident.
OWCP subsequently received the second page of a December 16, 2018 Form CA-16 from
Dr. O.A. Akintonde, Board-certified in family medicine, where he opined that appellant suffered
a high ankle sprain while at work on January 29, 2018.3 Dr. Akintonde also noted appellant’s
preexisting Achilles tendinitis and plantar fasciitis.
On January 4, 2019 appellant, through counsel, requested reconsideration of the
September 12, 2018 decision.
By decision dated March 28, 2019, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7 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 sufficient evidence to establish that the employment incident caused a personal injury.9

3

The form notes January 28, 2018 as the date of injury, which appears to be a typographical error.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

3

To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.10 The opinion of the physician
must be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right ankle
condition causally related to the accepted January 29, 2018 employment incident.
In his December 16, 2018 Form CA-16, Dr. Akintonde diagnosed a high ankle sprain and
attributed it to an injury that appellant had suffered at work on January 29, 2018. He also noted
her preexisting Achilles tendinitis and plantar fasciitis. However, Dr. Akintonde did not provide
sufficient rationale explaining his conclusion that her condition was caused by the accepted
January 29, 2018 employment incident. A mere conclusion without the necessary rationale
explaining how and why the physician believes that a claimant’s accepted incident resulted in the
diagnosed condition is insufficient to meet appellant’s burden of proof.12 Moreover, the need for
a rationalized medical opinion based on medical rationale is especially important in this case as
the evidence suggests that appellant had a preexisting medical condition.13 For these reasons,
Dr. Akintonde’s report is insufficient to meet appellant’s burden of proof.
In his February 2, 2018 medical report, Dr. Wiemholt diagnosed a significant right ankle
sprain and lower back strain and provided appellant with work restrictions to follow for two weeks.
However, he offered no opinion regarding the cause of her medical conditions. The Board has
held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.14 For this reason,
Dr. Wiemholt’s medical report is also insufficient to meet appellant’s burden of proof.
Appellant also provided a February 15, 2018 statement from Nakesha Russell, an
employing establishment nurse. Certain healthcare providers such as physician assistants, nurse
practitioners, physical therapists, and social workers are not considered physicians as defined

10

K.V., Docket No. 18-0723 (issued November 9, 2018).

11

I.J., 59 ECAB 408 (2008).

12

See Y.T., Docket No. 17-1559 (issued March 20, 2018).

13

See M.E., Docket No. 18-0940 (issued June 11, 2019); E.V., Docket No. 17-0417 (issued September 13, 2017).

14
R.Z., Docket No. 19-0408 (issued June 26 2019); P.S., Docket No. 18-1222 (issued January 8, 2019); L.B., Docket
No. 18-0533 (issued August 27, 2018).

4

under FECA.15 Consequently, their medical findings and/or opinions will not suffice for purposes
of establishing entitlement to FECA benefits.16
As appellant has not submitted rationalized medical evidence establishing that her
conditions are causally related to the accepted January 29, 2018 employment incident, the Board
finds that she has not met 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 ankle
condition causally related to the accepted January 29, 2018 employment incident.

15

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

16

See M.F., Docket No. 17-1973 (issued December 31, 2018); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006). Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013).

5

ORDER
IT IS HEREBY ORDERED THAT the March 28, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2020
Washington, DC

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

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

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

6


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

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

Docket No. 09-1345
Issued: January 11, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 30, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 18, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the September 18, 2008 Office decision.
ISSUE
The issue is whether appellant has a permanent impairment to his right leg entitling him
to a schedule award under 5 U.S.C. § 8107.
FACTUAL HISTORY
On August 18, 2004 appellant filed a traumatic injury claim (Form CA-1) alleging that he
sustained a right ankle injury on that date when he stepped on a rock while in the performance of
his federal duties as a letter carrier. The Office accepted the claim for right ankle
contusion/sprain. On March 21, 2007 appellant filed a claim for a schedule award.
In a report dated November 6, 2006, Dr. Howard Grant, an internist, reported that he had
treated appellant until October 27, 2006 and diagnosed lateral collateral ligament strain. He

stated that appellant had 9 degrees of ankle plantar flexion, resulting in a 7 percent leg
impairment, and 14 degrees of extension, for a 14 percent leg impairment under the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.) at page 78.
Dr. Grant noted that appellant had a functional capacity evaluation on October 24, 2006.1
The case was referred to an Office medical adviser. In a report dated August 18, 2007,
the medical adviser stated that Dr. Grant’s estimate was not probative, as a sprain was not
permanent in nature and the page reference in the A.M.A., Guides was incorrect. The Office
medical adviser recommended referral for a second opinion evaluation. Appellant was referred
to Dr. James Hood, an orthopedic surgeon.
In a report dated October 31, 2007, Dr. Hood provided a history and results on
examination. With respect to right ankle range of motion, he found 40 degrees plantar flexion,
15 degrees extension, 30 degrees inversion and 20 degrees eversion. Dr. Hood noted normal
strength and found no impairment under the A.M.A., Guides. By report dated December 17,
2007, an Office medical adviser concurred that there was no ratable impairment.
In a decision dated September 18, 2008, the Office found appellant was not entitled to a
schedule award for the right leg as he had no ratable permanent impairment.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.2 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.3 As of February 1, 2001, the fifth edition of the A.M.A., Guides was
to be used to calculate schedule awards.4
ANALYSIS
In this case, an attending physician, Dr. Grant, provided a brief November 6, 2006 report
indicating that he believed appellant had a 21 percent right leg impairment based on loss of ankle
motion. The Board finds that Dr. Grant’s report is of diminished probative value to the issue
presented. Dr. Grant provided brief range of motion results without providing any further
1

The functional capacity evaluation reported that appellant had 51 degrees of plantar flexion and 34 degrees of
extension.
2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

4

FECA Bulletin No. 01-05 (January 29, 2001). For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition. FECA Bulletin No. 09-03 (March 15, 2009).

2

information as to when and how these results were obtained. He referred to an October 24, 2006
functional capacity evaluation, but the ranges of motion results in this report were significantly
different from those reported by Dr. Grant. There was no explanation as to the inconsistent
results or other supporting information. In addition, Dr. Grant did not properly identify or apply
the relevant tables under the A.M.A., Guides.5 For these reasons, the November 6, 2006 report
from Dr. Grant is not sufficient to support a schedule award.
The second opinion physician, Dr. Hood, provided results on examination and a reasoned
opinion that there was no ratable impairment to the right leg. With respect to range of motion for
the right ankle, he reported 40 degrees of plantar flexion, 15 degrees of extension, 30 degrees
inversion and 20 degrees eversion. Under Table 17-11, 40 degrees of plantar flexion and 15
degrees of extension do not result in leg impairment.6 Similarly, under Table 17-12, 30 degrees
of inversion and 20 degrees of eversion do not result in leg impairment.7
The Board accordingly finds the weight of the medical evidence rests with Dr. Hood. On
appeal, appellant indicates that he had received a schedule award for the left leg, and the
“process was the same and performed by the same doctor….” The issue in this case is right leg
impairment from the August 18, 2004 injury, and to the extent the “same doctor” was Dr. Grant,
his report is of little probative value for the reasons stated above.
CONCLUSION
The Board finds the weight of the medical evidence does not establish a ratable
permanent impairment to a scheduled member or function of the body entitling appellant to a
schedule award under 5 U.S.C. § 8107.

5

Under Table 17-11, 14 degrees of extension results in no impairment, and 9 degrees of plantar flexion is 15
percent leg impairment. A.M.A., Guides 537.
6

Plantar flexion of 20 degrees or less warrants impairment from 7 to 30 percent, while extension of 0 to 10
degrees is 7 percent leg impairment. Id.
7

Id., A.M.A., Guides, Table 17-12.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 18, 2008 is affirmed.
Issued: January 11, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4