United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Memphis, TN, Employer
__________________________________________

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

Docket No. 10-163
Issued: July 13, 2010

Case Submitted on the Record

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

JURISDICTION
On October 19, 2009 appellant filed a timely appeal from a September 23, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her schedule award claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
decision.
ISSUE
The issue is whether appellant is entitled to a schedule award for an employment-related
permanent impairment.
FACTUAL HISTORY
On July 18, 2007 appellant, then a 56-year-old clerk, filed an occupational disease claim
alleging that she sustained degenerative disc disease, discitis, lumbar spasm and sciatica due to
factors of her federal employment. The Office accepted the claim for an aggravation of sciatica.

On August 6, 2008 appellant filed a claim for a schedule award. She submitted a July 29,
2008 report from Dr. Karen A. Purdy, Board-certified in family practice, who diagnosed
degenerative disc disease and anterior spondylosis at L2-3, L3-4 and L4-5. She stated:
“[Appellant] has L5 nerve root irritation from intervertebral disc disease at L4-L5.
She has disc protrusion at L5, and this results in some impingement upon the left
S1 nerve root. These abnormalities cause her to have pain, weakness, and
numbness if aggravated by inappropriate lifting or movement. These are
descriptions of her functional loss and impairment [and] are in accordance with
the [American Medical Association, Guides to the Evaluation of Permanent
Impairment, 5th ed. 2001) (A.M.A., Guides)] regarding the evaluation of
permanent impairment. I feel that she has reached maximum improvement of her
condition, and that her present limitations of 50 percent are allowing her to
continue working at this time.”
On August 11, 2008 the Office informed appellant that the Federal Employees’
Compensation Act1 (the Act) did not provide for a schedule award for the back. It advised that if
she claimed an impairment to an extremity due to her back injury she should specify the
extremity claimed and submit supporting medical evidence. On September 4, 2008 the Office
requested that Dr. Purdy provide an opinion regarding the extent of any permanent impairment
of the right lower extremity due to the accepted work injury.
By decision dated January 9, 2009, the Office denied appellant’s claim for a schedule
award.2 It noted that it had requested but not received additional information from appellant and
Dr. Purdy.
On June 19, 2009 appellant requested reconsideration. She submitted an April 13, 2009
electromyogram and nerve conduction study showing right L5-S1 radiculopathy.
On August 19, 2009 an Office medical adviser reviewed the evidence of record and
recommended a second opinion examination. On August 27, 2009 the Office referred appellant
to Dr. Bret Sokoloff, a Board-certified orthopedic surgeon, for a second opinion examination. In
a September 9, 2009 impairment evaluation, Dr. Sokoloff diagnosed a degenerative condition of
the lumbar spine with a “suggestion of L5-S1 radiculopathy on the right from [a] bulging
annulus fibrosis at L4-L5.” He noted that appellant indicated that she injured herself in
March 2007 “laying sod in her yard and lifting.” Dr. Sokoloff stated, “On questioning
[appellant] about her story, she actually only had an injury while at home working in the yard.
She did not note problems with her back prior to that or at work, but states that her physician told
her that the injury could not have come from a single episode.” On examination he found intact

1

5 U.S.C. §§ 8101-8193.

2

The Office resent the decision on June 2, 2009 to appellant’s new address.

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sensation and full motor strength in the bilateral lower extremities with some “tenderness in the
L3 region and on the right side.” Dr. Sokoloff stated:
“[Appellant] did not have any injury that arose from work. This is really external
to the work environment. This is degenerative in nature, and the preceding
accident happened at home while working in her yard. [Appellant] was led to
believe that chronic use of her back at work caused the problem, but [she] had
not, in her discussion with me, noted that previously.
“With regards to impairment rating for the lower extremities, there is no
impairment of the lower extremities. [Appellant] currently has full strength, full
sensation, no pain, no radicular findings, no atrophy, and full function. She is at
maximum medical improvement for her work-related injury, which was the
aggravation of sciatica. That currently is not present at all, and there is no
residual evidence for that.”
Dr. Sokoloff found that, pursuant to the sixth edition of the A.M.A., Guides, appellant
had no impairment.
On September 22, 2009 an Office medical adviser concurred with Dr. Sokoloff’s opinion
that appellant had no impairment of the lower extremities as she had no loss of strength,
sensation, atrophy or function.
By decision dated September 23, 2009, the Office denied modification of its January 9,
2009 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,3 and its
implementing federal regulations,4 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate
schedule awards.6

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

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It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.7 Office
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A., Guides.8
ANALYSIS
The Office accepted that appellant sustained an aggravation of sciatica due to factors of
her federal employment. On August 6, 2008 appellant filed a claim for a schedule award and
submitted a July 29, 2008 impairment evaluation from Dr. Purdy who diagnosed a disc
protrusion at L5 causing impingement of the left S1 nerve root. Dr. Purdy found that appellant
had 50 percent impairment according to the fifth edition of the A.M.A., Guides. She, however,
did not identify the part of the body that had 50 percent impairment or reference any tables or
pages of the A.M.A., Guides in reaching her conclusion. As Dr. Purdy’s opinion is not in
conformance with the A.M.A., Guides, it is of little probative value.9
In an impairment evaluation dated September 9, 2009, Dr. Sokoloff, an Office referral
physician, diagnosed a degenerative lumbar condition with possible right L5-S1 radiculopathy
from an L4-5 annulus fibrosis. He discussed appellant’s history of an injury at home in
March 2007. Dr. Sokoloff found that appellant had no loss of sensation or motor strength in
either lower extremity but had some tenderness at L3 on the right. He noted that appellant’s
injury arose at home rather than work. Dr. Sokoloff determined that appellant had no
impairment of the lower extremities based on his finding of “full strength, full sensation, no pain,
no radicular findings, no atrophy and full function.” He opined that she was at maximum
medical improvement for her accepted condition of an aggravation of sciatica and that she had
no evidence of any impairment under the sixth edition of the A.M.A., Guides. On September 22,
2009 an Office medical adviser reviewed and concurred with Dr. Sokoloff’s findings. The Board
finds that Dr. Sokoloff’s opinion constitutes the weight of the medical evidence as he submitted a
thorough report based upon a complete and accurate factual and medical history. He performed
a complete evaluation and found no evidence of an impairment of either lower extremity due to
the accepted condition of an aggravation of sciatica. As Dr. Sokoloff’s opinion represents the
weight of the medical evidence, the Office properly denied appellant’s claim for a schedule
award.

7

Tammy L. Meehan, 53 ECAB 229 (2001).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6(b) (January 2010).
9

Carl J. Cleary, 57 ECAB 563 (2006); Richard A. Neidert, 57 ECAB 474 (2006).

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CONCLUSION
The Board finds that appellant has not established that she is entitled to a schedule award
for an employment-related permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 23, 2009 is affirmed.
Issued: July 13, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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Appearances:
David Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2077
Issued: February 14, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 6, 2007 appellant, through her attorney, filed a timely appeal from the
January 18, 2007 decision of the Office of Workers’ Compensation Programs denying him a
schedule award for his hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he is entitled to a schedule award for
his employment-related hearing loss.
FACTUAL HISTORY
On May 2, 2006 appellant, then a 58-year-old electrician, filed an occupational disease
claim alleging that his hearing loss was caused by his federal employment.
On May 24, 2006 the Office requested additional information about appellant’s claim. In
an undated letter, he stated that he had been a federal employee from 1996 to the present, during
which time he was exposed to various pneumatic tools, chipping, grinding and other industrial

noises for eight hours per day. Appellant stated that he was provided with and used earplugs at
work. On February 3, 2006 Alicia Peterson, an audiologist, stated that his pure tone screening
indicated bilateral severe-profound high frequency hearing loss.
She stated that the
configuration of the audiogram was consistent with a history of noise exposure.
On May 30, 2006 the employing establishment controverted appellant’s claim, stating
that he had not established that his hearing loss was related to his federal employment. It noted
that he began his employment on June 23, 1998 and that he had noise exposure at previous jobs
and in the military since 1966. The employing establishment and appellant’s supervisor agreed
that appellant was exposed to various pneumatic tools, chipping, grinding and other industrial
noises for 40 hours per week.
On July 17, 2006 the employing establishment submitted medical documentation related
to appellant’s annual hearing tests. On June 26, 2006 S.E. Lewis, an occupational audiologist
from the employing establishment clinic, reviewed appellant’s employment-related medical
records and stated that he had a preexisting bilateral hearing loss when he started with the
employing establishment and that it had not significantly changed. He noted that appellant
indicated that hearing loss was a problem on his entry physical examination papers, dated
June 12, 1998. Mr. Lewis stated that, beginning in 2001, appellant was restricted from working
in areas with noise greater than 85 decibels. In 2005, the work restriction was updated to include
no roaming work, no dry-dock work and no shipboard work. Appellant’s only personal noise
survey on file, conducted on May 9, 2000, showed an average exposure of 69.8 decibels. The
noise surveyor, Cheryl Lemmon, noted that the day of testing was not typical and that there was
much less noise than she had previously observed because so many people were absent from
work. On July 10, 2006 Dr. G.V. Blackwood, a senior medical officer at the employing
establishment’s clinic, stated that he reviewed Mr. Lewis’ findings and agreed with them. He
found that appellant had preexisting bilateral hearing loss and opined that, given the short time
that he had worked at the facility, his loss was not related to his employment.
On August 30, 2006 Dr. Duane Taylor, an Office medical adviser, stated that he could
not reach a decision in appellant’s case because the record did not contain information about the
calibration of the audiometers used in the two most recent audiograms. On September 28, 2006
the Office notified appellant and the employing establishment of the missing information and
requested that it be supplied within 15 days.1
By decision dated December 1, 2006, the Office denied appellant’s claim on the grounds
that he had submitted insufficient evidence to establish that the events occurred as alleged.
On December 8, 2006 the Office rescinded the December 1, 2006 decision and referred
appellant for a second opinion examination with Dr. Alan Keyes, a Board-certified
otolaryngologist. On January 12, 2007 Dr. Keyes found that appellant had sensorineural loss in
excess of what would be predicted on the basis of presbycusis and that his workplace exposure
was sufficient to have caused the loss. He noted that the loss pattern was characteristic of
noise-related hearing loss. Dr. Keyes found that, for 500, 1,000, 2,000 and 3,000 cycles per
1

On December 8, 2006 appellant submitted the requested information.
December 13, 2006.

2

It was received by the Office on

second, (cps) appellant had, respectively, 5, 10, 20 and 65 decibel losses for the right ear and 5,
10, 25 and 65 decibel losses for the left ear.2 Based on the formula from the American Medical
Association, Guides for the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed.
2001), he found that appellant had 0 percent monaural impairment for the right ear and
1.9 percent monaural impairment of the left ear.
By decision dated January 18, 2007, the Office accepted appellant’s claim for bilateral
sensorineural hearing loss. The Office authorized appellant to receive hearing aids, but stated
that, based on the opinion of Dr. Keyes, he was not eligible for a schedule award because his
hearing loss was not ratable.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act and its
implementing regulations sets forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of scheduled members or functions of
the body.3 However, the Act does not specify the manner in which the percentage of loss is to be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.6 Then, the fence of 25 decibels is deducted because,
as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability
to hear everyday speech under everyday conditions.7 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the

2

The results were identical for bone conduction losses, with the exception of 2,000 cps in the left ear, which had
a 20, rather than 25, decibel loss.
3

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.404.

4

20 C.F.R. § 10.404.

5

A.M.A., Guides at 246-51 (5th ed. 2001).

6

Id.

7

Id.

8

Id.

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amount of the binaural hearing loss.9 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.10
ANALYSIS
The Office found that appellant sustained hearing loss causally related to his federal
employment duties, but that it was not ratable. Therefore the issue to be resolved is whether his
hearing loss is substantial enough to entitle him to a schedule award.
On January 12, 2007 Dr. Alan Keyes, a Board-certified otolaryngologist, found that
appellant had a sensorineural hearing loss pattern characteristic of noise-related loss. He stated
that that the workplace exposure was sufficient to have caused the loss. Dr. Keyes measured air
conduction losses as, respectively, 5, 10, 20, and 65 decibels for the right ear and 5, 10, 25 and
65 decibels for the left ear at the frequencies of 500, 1,000, 2,000 and 3,000 cps. The right ear
decibel losses, added together, totaled 100 decibels, which, when divided by 4, resulted in an
average hearing loss of 25 decibels. Dr. Keyes reduced the average loss by the “fence” of
25 decibels to equal 0, which, when multiplied by the established factor of 1.5, resulted in a
0 percent monaural hearing loss for the right ear. Based on this same formula, Dr. Keyes found
that appellant had a 1.9 percent monaural impairment of the left ear. The Board finds that
Dr. Keyes properly followed the A.M.A., Guides when he found that appellant had 0 percent
monaural impairment for the right ear and a 1.9 percent monaural impairment of the left ear.
In its January 18, 2007 decision, the Office incorrectly stated that Dr. Keyes’ opinion
established that appellant had no ratable hearing loss. The Board notes that the record does not
contain the report of an Office medical adviser or other physician finding that Dr. Keyes
misapplied the A.M.A., Guides or that his findings were inaccurate. As the record establishes
that appellant has a ratable hearing loss in his left ear, the Board finds that the January 18, 2007
decision of the Office should be reversed in part and remanded for awarding of a schedule award
in the amount of a two percent monaural, left ear, loss of hearing.11
CONCLUSION
The Board finds that appellant has established that he is entitled to a schedule award for
two percent monaural, left ear, employment-related hearing loss.

9

Id.

10

Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No. 011570 (issued August 13, 2002).
11

The A.M.A., Guides provide that rounding off is to be to the nearest whole number. A.M.A. Guides at 20. See
e.g., Jesse Mendoza, 54 ECAB 802, 806 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 18, 2007 is affirmed in part and reversed in part and
remanded for action consistent with this decision.
Issued: February 14, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.R., Appellant
and
U.S. POSTAL SERVICE, NEW YORK
PRIORITY MAIL PROCESSING CENTER,
Bethpage, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1229
Issued: February 24, 2010

Case Submitted on the Record

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

JURISDICTION
On April 9, 2009 appellant through counsel filed a timely appeal from May 22, 2008 and
January 12, 2009 decisions of the Office of Workers’ Compensation Programs. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective June 8, 2008 on the grounds that she had no residuals of the
accepted low back strain; and (2) whether appellant established that she had any continuing
employment-related disability or condition after that date due to her accepted condition.
On appeal, counsel for appellant contends that she had residuals of the employment
injury at the time of termination and that the claim should be expanded to accept all conditions
outlined in the medical evidence.

FACTUAL HISTORY
On June 13, 2001 appellant, then a 35-year-old casual mail sorter, injured her low back
while loading sacks and flats of mail. She stopped work that day and returned to modified duty
on June 19, 2001. In a June 28, 2001 report, Dr. Rafael A. Rodriguez, an anesthesiologist
practicing pain management, noted the history of injury and appellant’s complaint of neck, and
bilateral shoulder, arm, hip and thigh pain. Lumbar spine examination demonstrated tenderness
and spasm with a negative straight-leg raising examination. Dr. Rodriguez diagnosed
cervicalgia, rule-out disc herniation, lumbago, lumbosacral sprain, rule-out lumbar disc
herniation, rule-out lumbar radiculopathy, right knee pain, and bilateral trochanteric bursitis. He
advised that appellant’s condition was causally related to “the events-accident that she sustained
on June 13, 2001.” Dr. Rodriguez recommended restrictions to her physical activity.
On September 18, 2001 the Office accepted that appellant sustained an employmentrelated low back sprain. Appellant sustained several recurrences of disability that were accepted
by the Office. An October 26, 2001 magnetic resonance imaging (MRI) scan of the lumbosacral
spine was limited due to an increase in image noise and demonstrated a large anterior extradural
defect at L5-S1. On October 29, 2001 Dr. Rodriguez reviewed the MRI scan and diagnosed
lumbago, lumbar disc herniation, lumbar spondylosis and lumbar radiculopathy. A December 7,
2001 computerized tomography (CT) scan of the lumbosacral spine showed posterior bulging
discs at L2-3 and L3-4, Grade I spondylitis spondylolisthesis of L5 with respect to S1 and a large
posterior herniated disc at this level deforming the anterior margin of the thecal sac with severe
narrowing of both foramina, due to a combination of spondylolisthesis and facet
osteoarthropathy. Appellant was released from employment by the employing establishment on
December 31, 2001 when her noncareer appointment expired. Thereafter, Dr. Rodriguez advised
that she was totally disabled.
On April 22, 2003 appellant filed a claim for compensation beginning on
December 28, 2001.1
The Office referred appellant for examination to Dr. Lester Lieberman, a Board-certified
orthopedic surgeon. In an April 29, 2003 report, Dr. Lieberman reviewed the history of injury
and noted a prior history of a back injury when appellant worked at an airport. He also reviewed
the statement of accepted facts and medical record. Dr. Lieberman noted appellant’s complaint
of pain in the neck, back, both shoulders and knees, right arm, hand, leg and foot. Examination
of the lumbar spine demonstrated no muscle spasm or tenderness. Dr. Lieberman diagnosed
obesity and degenerative disease of the cervical and lumbar spine.2 He found that appellant was
not totally disabled but could work full time with a four-pound lifting restriction. Dr. Lieberman
concluded that her condition was related to her obesity.
On April 19, 2004 the Office found a conflict in medical opinion between Dr. Rodriguez
and Dr. Lieberman regarding her residual disability and capacity for work. It referred her to
Dr. Ronald Richman, Board-certified in orthopedic surgery, for an impartial evaluation. In an
April 29, 2004 report, Dr. Richman reviewed a history of appellant’s prior injury while working
1

On April 2, 2004 appellant was paid wage-loss compensation for the period January 1, 2002 to April 22, 2003.

2

Appellant was described as 5 feet 10-1/2 inches tall and weighed 340 pounds.

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at an airport and her accepted injury of June 13, 2001. He reviewed the medical evidence of
record, including the MRI and CT scan studies and noted that appellant was markedly obese.
Lumbar spine examination demonstrated a painful response on palpation of the sacral area and
sacroiliac joints bilaterally. There was no spasm in the paravertebral musculature and
examination of the shoulders revealed a full range of motion that was pain free. Neurological
examination of the upper extremities was negative. Dr. Richman listed findings on range of
lumbar motion, noting no muscle spasm or painful response with movement. Straight-leg raising
test and lower extremity neurological examination were negative. Dr. Richman diagnosed
lumbosacral sprain, noting that the findings on diagnostic study were not clinically significant.
He also noted a minor fibromyositis of the left trapezius area. Dr. Richman advised that
appellant was capable of returning to work with restrictions to protect the low back. He provided
work restrictions for appellant.
On May 30, 2004 appellant filed a claim for compensation for the period commencing
April 23, 2003. She received wage-loss compensation for the period April 23, 2003 to
July 20, 2004 and was placed on the periodic rolls. Thereafter, Dr. Rodriguez submitted two
OWCP-5 work capacity evaluations advising that appellant was permanently disabled for her
lifetime. The forms were dated May 4 and December 22, 2006.
In May 2007, the Office referred appellant to Dr. Robert Israel, a Board-certified
orthopedic surgeon, for an updated examination and opinion on disability. In a June 5, 2007
report, Dr. Israel reviewed the history of injury and the medical record, including the diagnostic
studies, and statement of accepted facts. Appellant complained of pain to her neck, upper and
lower back, both shoulders, hips, knees and legs. Lumbar spine examination findings included
bilateral negative straight-leg raising, normal spine range of motion, no muscle spasms or
tenderness, and no atrophy, radiation of pain, numbness or tingling. Dr. Israel diagnosed
resolved sprain of the lumbar spine and advised that appellant had reached maximum medical
improvement. He advised that appellant was capable of returning to full-time work as a mail
sorter with no restrictions and required no further orthopedic treatment.
In a January 3, 2008 work capacity evaluation form, Dr. Rodriguez again advised that
appellant was permanently disabled for her lifetime.3
On April 17, 2008 the Office proposed to terminate appellant’s compensation benefits,
finding that the weight of medical opinion was represented by the report of Dr. Israel. Appellant
no longer had residuals or disability due to the June 13, 2001 employment injury and could
return to her regular job. The Office noted that Dr. Rodriguez’s form reports provided no new
findings based on a recent examination.
Appellant, through her attorney, disagreed with the proposed termination. In an April 22,
2008 note, Dr. Rodriguez advised that appellant was under evaluation for spinal stenosis and
degenerative disease of both knees. A May 13, 2008 note reiterated that appellant was
undergoing evaluation and that an MRI scan showed an L5-S1 herniated disc causing spinal
stenosis. Dr. Rodriguez stated appellant would be ready for surgery by mid-summer.

3

The form reports incorrectly state that the accepted conditions are lumbar radiculopathy with herniated discs and
bilateral knee degenerative joint disease.

3

In a May 22, 2008 decision, the Office terminated appellant’s compensation benefits
effective June 8, 2008.
On November 1, 2008 appellant, through her attorney, requested reconsideration,
contending that the Office failed to accept all conditions caused by the June 13, 2001
employment injury. She also argued that the weight of medical opinion was with the reports of
Dr. Rodriguez. In the alternative, appellant argued that a conflict in medical opinion existed
between Dr. Israel and Dr. Rodriguez. Appellant submitted a September 23, 2004 MRI scan of
the lumbar spine that demonstrated a very large central disc herniation at L5-S1 generating
extruded fragments and mild lower lumbar degenerative spinal stenosis. April 22, 2008 x-rays
demonstrated degenerative joint disease and disc space disease of the lumbosacral spine, a
negative pelvis/hips study, and degenerative joint disease of the knees, right worse than left. A
June 3, 2008 MRI scan of the left knee demonstrated advanced chondromalacia patella. In a
June 4, 2008 report, Dr. David L. Langer, a Board-certified neurosurgeon, noted that appellant
was injured at work in June 2001, had not worked since December 2001 and underwent gastric
bypass surgery and lost 175 pounds. He reported her complaint of refractory back pain, and
advised that an April 29, 2008 MRI scan revealed lumbar discogenic disease at L5-S1 with a
central disc herniation, no spondylolisthesis and a significant amount of degeneration and disc
space collapse at L5-S1. Dr. Langer recommended surgery.
In a January 12, 2009 decision, the Office denied modification of the May 22, 2008
decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.4
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits as of June 8, 2008. The accepted condition in this case is a low back
sprain due to the June 13, 2001 employment injury while loading sacks of mail.
Appellant was treated by Dr. Rodriguez who diagnosed a lumbar disc herniation,
spondylosis and radiculopathy which he attributed to the accepted injury. He advised that she
was totally disabled. An October 26, 2001 MRI scan indicated a defect at L5-S1. A
December 7, 2001 CT scan showed disc bulging at L2-3 and L3-4 and spondylolisthesis of
L5-S1. She was subsequently examined by Dr. Lieberman who advised that appellant’s lumbar
examination was not remarkable for spasm or tenderness. He attributed the findings on
diagnostic testing to degenerative disease which he attributed to appellant’s obesity.
Dr. Lieberman found that appellant could work full time with restrictions that where not related
4

Jaja K. Asaramo, 55 ECAB 200 (2004).

5

Id.

4

to the accepted back sprain. Based on a conflict in medical opinion between Dr. Rodriguez and
Dr. Lieberman, appellant was referred for an impartial examination by Dr. Richman on
April 19, 2004.
On examination, Dr. Richman provided findings related to appellant’s upper and lower
extremities, noting that appellant denied any history of pain radiating into her extremities. He
reviewed the diagnostic studies and noted that they were not clinically significant based on his
examination. He found no spasm of the paravertebral musculature, noting pain only on palpation
in the sacroiliac joints. Straight leg raising and neurological examination were reported as
normal. Dr. Richman diagnosed a lumbar sprain related to the employment injury and advised
that appellant was capable of returning to work with restrictions.
The record reflects that following the impartial examination, appellant remained in
receipt of compensation for total disability. As noted, Dr. Rodriguez submitted two OWCP-5
forms indicating that appellant remained totally disabled for her lifetime. He did not submit any
medical report providing any findings on examination of appellant’s low back. To obtain an
updated evaluation, appellant was referred by the Office to Dr. Israel in May 2007.
On June 5, 2007 Dr. Israel reviewed appellant’s history of injury and medical treatment.
He was provided a statement of accepted facts and addressed the medical evidence of record,
including the diagnostic studies. Examination of the lumbar spine demonstrated bilateral
negative straight-leg raising, normal spine range of motion, no spasms or tenderness, no atrophy,
radiation of pain, numbness or tingling. Dr. Israel found that appellant’s accepted lumbar sprain
had resolved and that she had reached maximum medical improvement. He advised that
appellant was capable of returning to regular full-time work as a mail sorter with no physical
restrictions and required no further orthopedic treatment.
Appellant was notified that the Office found the weight of medical opinion represented
by the report of Dr. Israel. She submitted several brief notes from Dr. Rodriguez. In a
January 3, 2008 work capacity evaluation, Dr. Rodriguez reiterated that appellant was disabled
for her lifetime with no further explanation. The notes of April 22 and May 13, 2008 reported
that she was being evaluated for spinal stenosis and degenerative joint disease of both knees,
again without further explanation. Dr. Rodriguez did not provide any narrative medical report
based on a complete or thorough examination to support his opinion of continuing disability due
to the accepted lumbar sprain.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
opinion addressing the causal relationship between a claimant’s diagnosed condition and the
accepted employment injury. To be probative, the opinion of a physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the employment factor accepted in the case.6 The evidence
from Dr. Rodriguez contemporaneous with the June 6, 2008 termination is not rationalized
medical opinion. He merely indicated that appellant was disabled for her lifetime. The Board
notes that his subsequent notes indicated evaluation for lumbar radiculopathy and degenerative
joint disease of the knees, neither of which were accepted as related to the June 13, 2001
6

Sedi L. Graham, 57 ECAB 494 (2006).

5

employment injury. There is no rationalized explanation from the physician as to how the
accepted low back injury caused or contributed to appellant’s continuing disability. At the time
of her examinations by Dr. Richman and Dr. Israel, no findings of lumbar radiculopathy were
made. Dr. Rodriguez did not address how appellant’s degenerative disease of the knees would
be related to the accepted injury to her low back in 2001. His notes are not sufficient to create a
conflict in medical opinion with the findings of Dr. Israel.
The weight of the medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.7 The Board finds that the weight of the medical evidence
rests with the June 5, 2007 report of Dr. Israel. He provided a comprehensive evaluation based
on his review of the statement of accepted facts and medical record, the history of injury,
appellant’s complaints of continued pain in multiple areas, and findings on physical examination.
Dr. Israel advised that appellant had no residuals of her accepted lumbar strain and that there was
no need for further treatment due to her June 13, 2001 employment injury. She was found
capable of returning to her usual job of mail sorter without restriction. The Board finds that the
Office properly terminated her compensation benefits effective June 8, 2008.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s wage-loss compensation on
February 24, 2003, the burden shifted to her to establish that she had any continuing disability
causally related to her accepted right shoulder injury.8 To establish a causal relationship between
the condition, as well as any attendant disability claimed and the employment injury, an
employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such a causal relationship.9 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical
evidence.10 Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.11
ANALYSIS -- ISSUE 2
The Board finds that appellant submitted insufficient medical evidence with her
November 1, 2008 reconsideration request to establish that she continued to be disabled after
June 8, 2008 due to the accepted low back strain. In a June 4, 2008 report, Dr. Langer noted that
7

C.B., 60 ECAB ____ (Docket No. 08-1583, issued December 9, 2008).

8

See Joseph A. Brown, Jr., 55 ECAB 542 (2004).

9

Jennifer Atkerson, 55 ECAB 317 (2004).

10

Id.

11

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

6

appellant had been injured at work in June 2001. He reviewed MRI scan findings and
recommended surgery. Dr. Langer did not provide any opinion regarding the cause of any
ongoing medical condition or how it related to the accepted injury. He did not provide any
opinion regarding her capacity for work. The diagnostic studies submitted on reconsideration
provide no opinion on disability. The Board finds that appellant did not submit sufficient
rationalized medical opinion to establish ongoing residuals or disability after June 8, 2008 due to
her accepted injury.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective June 8, 2008. Appellant failed to establish that she had any
disability after June 8, 2008 causally related to her accepted low back strain.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 12, 2009 and May 22, 2008 be affirmed.
Issued: February 24, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milledgeville, GA, Employer
__________________________________________

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

Docket No. 12-608
Issued: July 25, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On January 10, 2012 appellant, through her attorney, filed a timely appeal from July 18
and November 10, 2011 merit decisions of the Office of Workers’ Compensation Programs
(OWCP) and a December 16, 2011 nonmerit decision which denied her request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a back condition causally related to a
May 23, 2011 employment incident; and (2) whether OWCP properly denied her November 28,
2011 claim for reconsideration under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 31, 2011 appellant, then a 61-year-old sales and distribution associate, filed a
traumatic injury claim alleging that on May 23, 2011 she sustained a lower back injury when she
tried to move a wire cage but something around the wheel prevented it from moving. She
stopped work on May 27, 2011.2
By letter dated May 31, 2011, the employing establishment controverted appellant’s
claim alleging that she did not meet her burden of proof to establish that the alleged injury was a
result of her occupation.
In a May 31, 2011 attending physician’s report, a physician with an illegible signature
stated that appellant was having back pain and diagnosed back pain with radiculopathy.
In an unsigned duty status report, an unknown provider noted that appellant sustained an
injury on May 23, 2011 and worked as a sales, service and distribution associate. It was
indicated that she was not able to work at all.
On June 3, 2011 OWCP advised appellant that the evidence submitted was insufficient to
establish her claim and requested additional medical evidence to establish that she sustained a
diagnosed condition as a result of the May 23, 2011 employment incident.
In a May 27, 2011 diagnostic imaging report, Dr. Rashmi Hooda, a Board-certified
internist, noted appellant’s complaints of back pain. The examination revealed five nonrib,
lumbar-type vertebral bodies, narrowing in the facet joints throughout the lumbar spine and
severe disc space narrowing at the L4-5 level. Dr. Hooda also observed mild rotary
dextroscoliosis of the lumbar spine which appeared degenerative. She diagnosed degenerative
changes of the lumbar spine and recommended further evaluation with a magnetic resonance
imaging (MRI) scan examination.
In a June 13, 2011 MRI scan report, Dr. William Willoughby, a Board-certified
diagnostic radiologist, noted appellant’s history of back pain, radiculopathy and stenosis. He
observed dextroscoliosis and facet arthropathy at multiple levels. Appellant’s vertebral body
heights were well maintained with no abnormal motion on the flexion or extension views.
Dr. Willoughby diagnosed degenerative disc disease and grade 1 spondylolisthesis at L3-4.
In a June 13, 2011 report, Dr. George S. Stefanis, a Board-certified neurological surgeon,
noted appellant’s complaints of some axial back, left buttock and cheek pain going down into the
thigh and calf since a May 23, 2011 work incident. He related that she was pulling and pushing
a metal cage loaded with heavy magazines on a mail truck when she experienced pain in her
back. Dr. Stefanis reviewed appellant’s history and reported that the MRI scan revealed
degenerative changes of the lumbar spine with canal narrowing at L2-3, 3-4 and 4-5. He also
stated that there may be a small disc that was protruding to the left at L4-5 that might account for
her symptoms. Upon examination of appellant’s back, Dr. Stefanis observed some tenderness
between L3 and the sacrum and mild paravertebral spasms. Forward bending caused pain at 45
2

On June 28, 2011 appellant filed a claim for disability compensation for the period July 7 to 26, 2011.

2

degrees and lateral bending and tilt caused pain in both directions. Straight leg raise testing
demonstrated mild discomfort at 45 degrees on the left and at 60 degrees on the right. Clonus
and Babinski tests were negative. Dr. Stefanis recommended an electromyogram (EMG) nerve
conduction of the left lower extremity and reported that appellant was not able to work.
In a June 28, 2011 neurology report, Dr. Frederick W. Jennart, a Board-certified
psychiatrist and neurologist, conducted nerve conduction and EMG studies for appellant’s
complaints of left leg and low back pain. Nerve conduction studies revealed normal findings and
the EMG examination showed no signs of denervation of the left lower extremity. Motor units
also appeared normal and interference patterns were full.
Appellant also submitted a handwritten June 30, 2011 physical therapist report.
In a decision dated July 18, 2011, OWCP denied appellant’s claim finding insufficient
medical evidence to establish that she sustained any medical condition as a result of the May 23,
2011 employment incident.
On July 28, 2011 appellant submitted a request for a review of the written record.3 She
resubmitted Dr. Stefanis’ and Dr. Willoughby’s June 13, 2011 reports and Dr. Jennart’s June 28,
2011 report. Appellant also submitted handwritten physical therapy records dated June 30 to
July 11, 2011 by an unknown provider.
In a June 6, 2011 MRI scan report, Dr. John H. Penuel, a Board-certified diagnostic
radiologist, observed slight anterolisthesis of L3 on L4 and severe narrowing of the disc space at
L4-5. Severe bilateral neural foraminal narrowing and a left-sided disc bulge were also noted.
The examination further revealed extensive endplate signal changes at L4-5 which were
predominantly decreased on T1, increased on T2, suggesting Type 1 degenerative process. No
fluid signal was seen within the disc space and conus appeared normal. Dr. Penuel diagnosed
multilevel degenerative changes.
In a July 15, 2011 report, Dr. Stefanis noted appellant’s complaints of continued
discomfort in her lower back into her left leg. Appellant related that physical therapy helped
temporarily but she continued to experience pain with lateral bending and tilt. Dr. Stefanis
reported that the physical examination was essentially unchanged and noted that the EMG and
nerve conduction studies showed no nerve damage. He recommended interlaminar injections at
L3-4 and L4-5 and stated that appellant was unable to work.
In an August 1, 2011 report, Dr. Stefanis related that on May 23, 2011 appellant was
pushing and pulling a metal cage loaded with heavy magazines at work and that she denied any
prior history of trauma or injury except for an occasional back strain. He noted that x-rays
revealed a grade 1 spondylolisthesis at L3 and L4 and an MRI scan revealed canal narrowing at
3

On August 4, 2011 appellant, through her representative, submitted a request for a telephone hearing. OWCP
assigned the request as a review of the written record and sent her employer a letter informing them that a review of
the written record was requested. No response was received. By letter dated September 6, 2011, counsel objected to
the review of the written record and requested an oral hearing instead. He stated that since he was the representative
he was the one who made those decisions and alleged that a denial of the oral hearing would violate appellant’s due
process rights. The Board notes, however, that appellant has not challenged this decision on appeal.

3

L3-4 with subluxation. Dr. Stefanis felt that appellant did have a problem but stated that
regarding whether this was an accepted claim or not, it was a decision that OWCP would have to
make. He explained that appellant worked every day for a number of years until this injury
occurred and that this was the only traumatic event of which he was aware.
By decision dated November 10, 2011, OWCP’s hearing representative affirmed the
July 18, 2011 denial decision. He determined that appellant sustained a back condition but found
insufficient medical evidence to demonstrate that her back condition was causally related to the
May 23, 2011 employment incident.
In a letter dated November 28, 2011, counsel requested reconsideration. In an
October 24, 2011 report, Dr. Stefanis related that on May 23, 2011 appellant was pulling and
pushing a metal cage loaded with heavy magazines at work when she felt something happen to
her back. He explained that any type of activity where she bent forward, pulled or pushed could
cause an aggravation of an underlying problem. Dr. Stefanis reviewed appellant’s x-rays and
observed that she appeared to have spondylolisthesis, grade 1, at L3 and L4 and there may be a
small disc protrusion at L4-5. He noted that she definitely had degenerative changes.
Dr. Stefanis opined that the findings on the x-ray predated the problems on appellant’s MRI
scan, but stated that this type of injury could aggravate an underlying problem. He reported that
he could not tell how long her back problems were there and that the MRI scan did not give
information of what caused these problems. Dr. Stefanis concluded that based on appellant’s
history she did not have this type of problem until after the May 23, 2011 employment incident.4
In a decision dated December 16, 2011, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant further merit
review under 5 U.S.C. § 8128(a). It determined that the materials were cumulative to the
evidence previously submitted.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative and substantial evidence6
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.7

4

The Board notes that Dr. Stefanis’ October 24, 2011 report was on the record at the time that OWCP’s hearing
representative issued the November 10, 2011 decision, but the hearing representative did not address this report.
5

5 U.S.C. §§ 8101-8193.

6

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

7

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

4

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.8
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.9 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.10 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her disability or condition
relates to the employment incident.11
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.12 Rationalized medical opinion evidence is medical evidence which includes
a physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the specified employment factors or incident.13 The
opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the employee.14 The weight of the medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.15
ANALYSIS -- ISSUE 1
OWCP accepted that on May 23, 2011 appellant sustained a back injury when she tried to
move a wire cage filled with heavy magazines in the performance of duty but denied her claim
finding insufficient medical evidence to establish that her back condition was causally related to
the accepted incident. The Board finds that she did not meet her burden of proof to establish that
she sustained a back injury in the performance of duty.
Appellant submitted various reports by Dr. Stefanis, who noted her complaints of lower
back and left lower extremity pain following a May 23, 2011 incident at work when she
attempted to move a metal cage loaded with heavy magazines on a mail track. Dr. Stefanis
8

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

9

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

10

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

11

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

12

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

13

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

14

B.B., 59 ECAB 234 (2007); D.S., Docket No. 09-860 (issued November 2, 2009).

15

James Mack, 43 ECAB 321 (1991).

5

reported that an MRI scan revealed degenerative changes and canal narrowing at L3-4 with
subluxation. Upon examination, he observed some tenderness between L3 and the sacrum and a
small disc that may be protruding to the left at L4-5. Straight leg raise testing was positive for
mild discomfort. Dr. Stefanis concluded that appellant had a problem but explained that OWCP
would have to decide whether this was an accepted claim or not. The Board finds that, while he
provided an accurate history of injury and a diagnosis, he was unable to provide a rationalized
medical opinion regarding whether appellant’s back condition resulted from the accepted
May 23, 2011 employment incident. Dr. Stefanis found that appellant had a back condition but
failed to provide an opinion on the cause of this condition. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.16 Likewise, the diagnostic and
neurological reports of Drs. Hooda, Willoughby, Jennart and Penuel are insufficient to establish
causal relationship as they also do not provide any opinion regarding the cause of appellant’s
back condition. Thus, these reports are insufficient to establish appellant’s claim.
Appellant also submitted a May 31, 2011 attending physician’s report with an illegible
physician’s signature and an unsigned duty status report that noted her complaints of back pain
following a May 23, 2011 employment incident. The Board has previously held, however, that
unsigned reports or ones that bear illegible signatures cannot be considered as probative medical
evidence because they lack proper identification.17 Similarly, the physical therapy records also
fail to establish causal relationship as physicians’ assistants are not considered “physicians” as
defined by FECA.18 Because appellant has not provided probative medical evidence in this case,
the Board finds that she did not meet her burden of proof to establish her claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.19 OWCP’s regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise her right through a request to the district OWCP.20
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by
16

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

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

18

Section 8102(2) provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); see also Roy L. Humphrey, 57 ECAB 238 (2005).
19

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).
20

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).

6

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.21
A request for reconsideration must also be submitted within one year of the date of the
OWCP decision for which review is sought.22 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.23 If the request is timely but fails
to meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.24
ANALYSIS -- ISSUE 2
By decisions dated July 18 and November 10, 2011, OWCP denied appellant’s traumatic
injury claim. On November 28, 2011 appellant, through counsel, submitted a request for
reconsideration. In a decision dated December 16, 2011, OWCP denied her request for
reconsideration. The Board finds that OWCP improperly denied appellant’s request for
reconsideration.
In support of her request for reconsideration, appellant submitted an October 24, 2011
report from Dr. Stefanis. The Board concurs with OWCP’s finding that, while this report was
initially received by OWCP on November 7, 2011, days prior to the hearing representative’s
November 10, 2011 decision, this report was not reviewed by the hearing representative. The
Board also finds that this report is sufficient to warrant further merit review. In his prior report
of record dated June 13, 2011, Dr. Stefanis related appellant’s history of injury and diagnostic
findings, but offered no medical opinion regarding the cause of her condition. In his August 1,
2011 report, he again deferred to OWCP to determine the cause of appellant’s diagnosed
conditions. Pursuant to a request from counsel, Dr. Stefanis prepared his October 24, 2011
report to address the relationship between appellant’s May 23, 2011 employment event and her
diagnostic findings. The third regulatory requirement for reopening a claim for merit review
does not include the requirement that a claimant submit all evidence necessary to discharge his
or her burden of proof. The claimant need only submit evidence that is relevant and pertinent
and not previously considered.25 The October 24, 2011 report from Dr. Stefanis was clearly
relevant, pertinent and not previously considered, therefore this case will be remanded to OWCP
for merit review.

21

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
22

Id. at § 10.607(a).

23

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

24

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

25

Billy B. Scoles, 57 ECAB 258 (2005).

7

The Board accordingly finds that appellant did meet a requirements of 20 C.F.R.
§ 10.606(b). Pursuant to 20 C.F.R. § 10.608, OWCP improperly denied merit review.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 10 and July 18, 2011 are affirmed and the
December 16, 2011 decision is set aside and the case is remanded for an appropriate decision.
Issued: July 25, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
INDEPENDENCE ANNEX, Charlotte, NC,
Employer
__________________________________________

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

Docket No. 20-0643
Issued: January 27, 2021

Case Submitted on the Record

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

JURISDICTION
On January 29, 2020 appellant filed a timely appeal from a January 17, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 17, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include binaural hearing loss, tinnitus, migraines, and vertigo
as causally related to her accepted August 12, 2017 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On August 15, 2017 appellant, then a 39-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on August 12, 2017 she injured her right ankle, right hip, and right
shoulder when she stepped out of her vehicle onto uneven pavement and fell, striking the side of
her vehicle, while in the performance of duty. She stopped work on August 13, 2017. In a
supplemental statement dated August 15, 2017, appellant indicated that she stepped out of her
vehicle and onto uneven pavement, which caused her to twist her ankle and hit the inside of her
vehicle with her hip and shoulder. OWCP accepted her claim for right ankle sprain and a sprain
of right rotator cuff capsule.
On August 12, 2017 Dr. Arthur A. Olyai, an osteopathic physician Board-certified in
emergency medicine, examined appellant immediately after her employment incident. He noted
that she complained of right ankle pain after falling while at work and that the pain radiated from
her ankle into her head. Appellant denied that she had hit her head and that this was not a syncopal
event.
In a report dated August 15, 2017, Sir Wesley Funchess Jr., a physician assistant, related
appellant’s history of injury as: “this past Saturday [appellant] stepped out of her work truck and
fell due to new construction on the street.”
On September 6, 2017 Dr. Everlyn L. Hall-Baker, Board-certified in family practice,
related appellant’s history of injury as: “[Appellant] stepped from vehicle to pavement and ankle
gave way and [she] fell backwards and body hit inside of door or postable vehicle.”
In an October 3, 2017 report, Dr. Jason Silva, a Board-certified orthopedic surgeon, noted
that “[o]n August 12, 2017 [appellant] fell getting out of a[n] [employing establishment] truck.
Her ankle twisted and she fell back in the truck hitting her shoulder and hip.”
In a report dated October 27, 2017, Larry P. Lease, a physician assistant, diagnosed lateral
vestibular neuronitis. He noted that appellant had a three-week history of intermittent vertigo and
a feeling of persistent imbalance, for which she had spent several days in a hospital for “stroke
protocol.”

3

Docket No. 19-0634 (issued September 19, 2019).

2

On December 30, 2017 appellant requested that the acceptance of her claim be expanded
to include injuries to her right hip, right shoulder, back, and inner ear as a result of the accepted
August 12, 2017 employment injury. She related that she hit her head inside her vehicle which
caused inner ear damage resulting in severe and “permanent” vertigo, and binaural hearing loss.
In a letter dated February 16, 2018, appellant indicated that, due to her inner ear damage,
hearing loss, severe vertigo, and migraines, she was unable to drive her mail vehicle and requested
reasonable accommodations from the employing establishment.4
In a report dated September 25, 2018, Dr. Karen E. Daniels-Mitchell, a Board-certified
family practitioner, examined appellant and diagnosed “bilateral hearing loss,” migraines, tinnitus,
and vertigo. Appellant was referred to an otolaryngologist for further evaluation.
By letter dated September 29, 2018, appellant requested that her accepted medical
conditions be expanded to include binaural hearing loss, tinnitus, vertigo, migraines, “vision
issues,” sinus tachycardia, elevated blood pressure, paresthesia, and depression.
In a development letter dated November 29, 2018, OWCP advised appellant that it was in
receipt of her request for alleged injuries. It informed her that the evidence submitted was
insufficient and requested additional medical evidence regarding her “mental health medical
conditions and sensorineural hearing loss.” This evidence was to include a rationalized medical
report from appellant’s treating physician explaining causal relationship between her alleged
conditions and the accepted employment injury. OWCP afforded appellant 30 days to submit the
necessary evidence.
A report dated December 18, 2018 by Dr. William H. Roberts, a Board-certified
otolaryngologist, revealed that he evaluated appellant who complained of binaural hearing loss.
He noted that she related that she was in an automobile accident on August 12, 2017 and struck
her head on the metal portion of her vehicle. Dr. Roberts indicated that appellant immediately
noticed the onset of hearing loss with tinnitus, and subsequently had episodes of vertigo with
headaches. He reviewed an audiogram from October 15, 2018 and diagnosed “bilateral”
sensorineural hearing loss. Dr. Roberts opined that there was causal relationship between
appellant’s hearing loss and her trauma.
By decision dated January 7, 2019, OWCP denied expansion of the acceptance of
appellant’s claim to include binaural hearing loss, finding that the evidence of record did not
demonstrate that the employment-related incident occurred as she described. It noted that she had
not mentioned a head injury when she initially filed her claim or in her initial narrative statement,
and that the medical evidence did not support a head injury.
On January 30, 2019 appellant filed an appeal with the Board. By decision dated
September 19, 2019, the Board set aside OWCP’s January 7, 2019 decision and remanded the case

4
By decision dated April 12, 2018, OWCP terminated appellant’s wage-loss compensation as her disability due to
the accepted employment injury had ceased. The claim remained open for medical benefits.

3

for OWCP to issue a de novo decision, which included findings of fact and a clear and precise
statement of reasons as to whether her claim should be expanded to include additional conditions.5
Following the Board’s decision, OWCP referred appellant and the case record, including a
statement of accepted facts (SOAF) and a list of questions, to Dr. John F. Ansley, a Board-certified
otolaryngologist.6
OWCP received evidence pertaining to appellant’s emotional conditions as well as
evidence relating to treatment of her binaural hearing loss, tinnitus, migraines and vertigo.
In a report dated October 5, 2018, Dr. Isaac F. Dingle, an otolaryngologist, diagnosed
migraine variant, dizziness, and bilateral sensorineural hearing loss. He reported that appellant’s
audiogram was unchanged from the prior year, and that he had informed her that he did not believe
that her dizziness was related to a peripheral inner ear disorder, but rather was all related to her
migraine.
In an undated report, received November 9, 2019, Dr. Roberts indicated that appellant was
injured in a work-related accident in August of 2017 during which she struck her head and resulted
in several permanent neurologic deficits of tinnitus, visual defect due to poor depth perception,
vertigo with head movements, and migraine headaches. He noted that her maximum date of
improvement was unknown, but that she was fit to return to duty with restrictions of no driving.
Dr. Roberts further indicated that appellant had 12 percent hearing loss. Copies of his October 30
and December 2, 2019 reports and October 30, 2019 audiograms were received.
In his October 30, 2019 report, Dr. Roberts reported that on August 12, 2017 appellant
struck her head on the metal portion of a mail truck while working. Appellant immediately noticed
the onset of hearing loss with tinnitus and subsequently had episodes of vertigo with migraines.
She also had three hospitalizations for vertigo and stroke-related symptoms. Appellant denied a
previous history of noise exposure, previous ear surgery trauma or infections. Dr. Roberts
diagnosed bilateral sensorineural hearing loss, tinnitus of both ears and vertigo. He opined that
there was a causal relationship between appellant’s permanent hearing loss and her August 12,
2017 head trauma, noting that she reiterated that she experienced a syncope event due to
dehydration, stress, anxiety, and hunger that day. Dr. Roberts opined that she reached maximum
medical improvement and that she needed hearing enhancements or amplification and reasonable
accommodations.
In a December 12, 2019 report, Dr. Ansley noted the history of the August 12, 2017 work
injury, as reported on the SOAF, was that appellant exited her vehicle near a curb, fell and hit the
side of the truck and hurt her hip and shoulder. There was no mention of a head injury on the
SOAF; however, appellant reported to him that she had in fact fallen backwards and struck her
head and suffered an injury at the time. Dr. Ansley performed an audiogram and indicated that
5
Supra note 3. The Board noted that OWCP had accepted that the August 12, 2017 fall occurred as alleged when
it initially accepted a right ankle strain and that appellant’s only burden when claiming additional conditions not
accepted by OWCP is to establish causal relationship to the employment injury.
6
Appellant filed claims for compensation (Form CA-7) for schedule award and wage-loss compensation effective
April 14, 2018 and continuing. These claims, however, have not been adjudicated.

4

she has bilateral symmetric mild-to-moderate sensorineural hearing loss and tinnitus and that
hearing aids were needed. He opined that appellant’s bilateral symmetric mild-to-moderate
sensorineural hearing loss and tinnitus were not due to the work incident and that it was uncommon
to see bilateral symmetric hearing loss from trauma. Relying on the SOAF, Dr. Ansley opined
that the August 12, 2017 work incident was insufficient to cause a hearing loss. He explained that
hearing loss secondary to trauma typically required a significant blow to the head which was
sometimes accompanied by temporal bone fracture or ossicular dislocation. Dr. Ansley opined
that he would expect a head injury of significant severity to lead to a hearing loss, but, in this case,
it was less likely that the injury caused a hearing loss. He further noted that appellant suffers from
and has been treated for vestibular migraines. Dr. Ansley explained that vestibular migraines will
lead to vertiginous symptoms and headaches. He opined that it was more likely that appellant’s
vestibular symptoms are related to her migraines. Dr. Ansley further opined that, since there was
no head injury during the fall, then appellant’s tinnitus, vertigo or hearing loss were not caused or
worsened by the accepted work-related incident. Similarly, given the lack of evidence to support
direct trauma to appellant’s head, there was no symptomatic vertigo with a hearing loss.
Dr. Ansley concluded that, without history of a head injury of significant severity, her work-related
fall did not lead to the onset of hearing loss or tinnitus or worsened her conditions.
By decision dated January 17, 2020, OWCP denied appellant’s request to expand the
acceptance of her claim to include the conditions of binaural hearing loss, tinnitus, migraines and
vertigo. It found that the weight of the medical opinion rested with the December 12, 2019 report
of Dr. Ansley, OWCP’s second opinion examiner.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
employment injury.10 The weight of medical evidence is determined by its reliability, its probative

7
C.W., Docket No. 19-1747 (issued September 2, 2020); R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K.
Asaramo, 55 ECAB 200, 204 (2004).
8

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

Id.

5

value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include binaural hearing loss, tinnitus, migraines
and vertigo causally related to her accepted August 12, 2017 employment injury.
In his December 12, 2019 second opinion report, Dr. Ansley noted that the August 12,
2017 employment injury did not involve appellant hitting her head, as described in the SOAF, and
described his findings. He concluded that her bilateral symmetric mild-to-moderate sensorineural
hearing loss, tinnitus, and vertigo were not due to the employment incident. Dr. Ansley noted that
it was uncommon to see bilateral symmetric hearing loss from trauma. He explained that hearing
loss secondary to trauma typically required a significant blow to the head, which was sometimes
accompanied by temporal bone fracture or ossicular dislocation. Dr. Ansley further noted that
appellant suffers from vestibular migraines, which lead to vertiginous symptoms and headaches.
He opined that it was more likely that her vestibular symptoms are related to her migraines.
Dr. Ansley further opined that, since there was no head injury during the fall, then appellant’s
tinnitus, vertigo or hearing loss were not caused or worsened by the accepted work-related
incident. Similarly, given the lack of evidence to support direct trauma to her head, there was no
symptomatic vertigo with a hearing loss. Dr. Ansley concluded that, without history of a head
injury of significant severity, appellant’s work-related fall did not lead to the onset of hearing loss
or tinnitus or worsened her conditions. As his report is sufficiently rationalized and based on an
accurate factual history, his opinion constitutes the weight of the medical evidence.12
The Board finds that the earliest contemporary medical reports corroborate Dr. Ansley’s
opinion that appellant did not strike her head during the August 12, 2017 employment injury. In
his August 12, 2017 report, Dr. Olyai related that she complained of pain from her right ankle to
her head, but that she denied hitting her head during the employment incident. Dr. Hall-Baker
reported on September 6, 2017 and Dr. Silva reported on October 3, 2017 that appellant twisted
her ankle and fell backwards into her truck, striking her shoulder, and hip. Neither Dr. Hall-Baker,
nor Dr. Silva related that appellant struck her head. The remaining evidence of record is also
insufficient to establish causal relationship.
In her September 25, 2018 report, Dr. Daniels-Mitchell diagnosed “bilateral hearing loss,”
migraines, tinnitus, and vertigo. However, she did not provide an opinion on causation. In an
October 5, 2018 report, Dr. Dingle diagnosed migraine variant, dizziness, and giddiness,
sensorineural hearing loss of both ears. He opined that appellant’s dizziness was not related to a
peripheral inner ear disorder, but rather her migraines. However, Dr. Dingle did not address the
cause of her 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
11

D.R., Docket No. 19-0954 (issued October 25, 2019); H.H., Docket No. 16-0897 (issued September 21, 2016);
James Mack, 43 ECAB 321 (1991).
12

R.J., supra note 7.

6

relationship.13 Therefore, these reports are of no probative value and are insufficient to establish
appellant’s claim.
In his December 18, 2018, October 30, 2019 and undated reports, Dr. Roberts opined that
appellant had struck her head on August 12, 2017 which resulted in several permanent neurologic
deficits of bilateral sensorineural hearing loss, tinnitus, visual defect due to poor depth perception,
vertigo with head movements, and migraine headaches. He opined that there was a causal
relationship between her permanent hearing loss and her August 12, 2017 head trauma, noting that
she indicated that she experienced a syncope event due to dehydration, stress, anxiety, and hunger
that day. While Dr. Roberts provided an affirmative opinion on causal relationship, his reports are
based on an inaccurate history of injury. OWCP accepted the mechanism of injury, as reported by
appellant on her CA-1 form, that she had exited vehicle near curb, fell on the uneven pavement
and hit side of truck, injuring her hip, right shoulder, and right ankle. As previously noted, the
record does not substantiate that she hit her head during the employment incident. The Board has
held that medical reports must be based on a complete and accurate factual and medical
background. Medical opinions based on an incomplete or inaccurate history are of limited
probative value.14 Therefore, the reports from Dr. Roberts are insufficient to establish causal
relationship.
OWCP also received reports from physician assistants. However, these reports do not
constitute competent medical evidence because physician assistants are not considered physicians
as defined under FECA.15
As appellant has not submitted a rationalized medical opinion establishing that her
diagnosed conditions of binaural hearing loss, tinnitus, migraines, and vertigo are causally related
to her accepted August 12, 2017 employment injury, the Board finds that she has not met her
burden of proof.
On appeal, appellant asserts that the medical evidence supports that she suffered workrelated head trauma that caused tinnitus, visual deficit due to poor depth perception, vertigo with
head movements, migraine headaches, and sensorineural hearing loss. As explained above,
however, the medical evidence of record is insufficient 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.
13

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

A.W., Docket No. 17-0285 (issued May 25, 2018); C.L., Docket No. 14-1585 (issued December 16, 2014);
Douglas M. McQuaid, 52 ECAB 382 (2001).
15

Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
5 U.S.C. § 8101(2). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); see also C.K.,
Docket No. 19-1549 (issued June 30, 2020) (physician assistants are not considered physicians under FECA).

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include binaural hearing loss, tinnitus, migraines,
and vertigo causally related to her accepted August 12, 2017 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 27, 2021
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1941
Issued: August 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 25, 2011 appellant filed a timely appeal from a March 16, 2011 decision of
the Office of Workers’ Compensation Programs’ (OWCP) denying his claim for an employmentrelated injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty causally related to a December 16, 2009 employment incident,
as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the March 16, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant argued the merits of his case and stated that he injured his right knee
twice since the date of injury, in December 2010 and on August 16, 2011 and has a limp almost
all the time.
FACTUAL HISTORY
On December 16, 2009 appellant, then a 50-year-old building equipment mechanic, filed
a traumatic injury claim (Form CA-1) alleging that he sustained a right ankle and knee injury
while descending a ladder and stepping on a broken broom head while in the performance of
duty that day.
In December 16 and 21, 2009 reports, Dr. Ahmet K Percinel, a Board-certified
orthopedic surgeon, diagnosed internal derangement of the right knee. He indicated that
appellant stepped on a broom at work and twisted his right knee. Dr. Percinel reported that an xray of the right knee did not reveal any significant pathology.
Appellant submitted a December 21, 2009 magnetic resonance imaging (MRI) scan of
the right knee, which was normal and negative for post-traumatic abnormality or internal
derangement.
On December 23, 2009 Dr. Percinel reviewed the MRI scan and diagnosed a contusion of
the right knee. He indicated that there was some degenerative change in the posterior medial
meniscus but no tear. Dr. Percinel stated that appellant’s medial joint line pain was pretty much
gone and he reported mostly distal patellar pain and that it had locked up on him once. In a
January 7, 2010 progress report, he reiterated his diagnosis of right knee contusion. On
examination, Dr. Percinel found no joint effusion, full extension, full flexion, no tenderness in
the mediolateral joint line and no instability. Appellant also submitted physical therapy notes
dated January 7 to 20, 2010.
By letter dated February 19, 2010, OWCP informed appellant that his claim was
originally received as a simple, uncontroverted case administratively handled to allow medical
payments up to $1,500.00. However, since his medical bills exceeded $1,500.00, it would
formally adjudicate the merits of the claim. After review, OWCP advised appellant that the
evidence of record failed to establish causal relationship between appellant’s knee condition and
the employment incident. It allotted 30 days for him to submit additional evidence and respond
to its inquiries.
Appellant submitted reports by Dr. Percinel dated January 7 and March 4, 2010.
Dr. Percinel reiterated the diagnoses and indicated that appellant had no tenderness in the patella
and was working his regular activities.
By decision dated March 31, 2010, OWCP denied appellant’s claim finding that the
medical evidence submitted was insufficient to establish causal relationship between the
diagnosed conditions and the December 16, 2009 employment incident.
On April 29, 2010 appellant requested reconsideration. He submitted additional
evidence, including a narrative statement explaining that he was climbing down steps that were

2

only made for one foot on each rung when he stepped down with his right foot onto a small
wooden broom head and twisted his right ankle and knee.
In two reports dated April 15, 2010, Dr. Percinel reiterated the right knee contusion
diagnosis. He reported tenderness in the posteromedial joint line right over the meniscus and a
positive McMurray test for torn medial meniscus. Dr. Percinel provided a similar report on
April 29, 2010 adding that appellant was not able to squat. On May 27, 2010 he advised that
right knee surgery was required.
By decision dated August 4, 2010, OWCP denied modification of its March 31, 2010
decision.
By letter received by OWCP on December 20, 2010 appellant requested reconsideration.
Appellant submitted a November 16, 2010 report by Dr. Percinel, who indicated that appellant
stepped on a broom at work and twisted his right knee. Dr. Percinel stated that appellant
underwent a right knee arthroscopy on May 21, 2010 and was found to have Grade 3
chondromalacia or early arthritis, of the right knee. He reported that appellant had no joint
effusion of the right knee, full flexion and full extension but still medial joint line and medial
patellofemoral facet pain. Dr. Percinel opined that appellant had reached maximum medical
improvement and had approximately eight percent permanent physical impairment of his right
lower extremity. Appellant also submitted a December 28, 2010 report by Dr. Percinel, who
advised that appellant was still symptomatic and had discomfort with his knee on an off-and-on
basis. Dr. Percinel opined that appellant’s right knee problem was definitely related to his workrelated injury as he stepped on a broom at work and twisted his right knee.
In a January 28, 2011 letter, OWCP requested additional medical opinion from
Dr. Percinel.
Subsequently, appellant submitted a May 21, 2010 operative report and two reports by
Dr. Percinel dated September 2, 2010 and February 22, 2011. Dr. Percinel noted that appellant’s
job as a mechanic required walking, standing and checking computers and did not require much
lifting, pushing or pulling-type activities. Appellant was released to work as of June 21, 2010.
Dr. Percinel stated that he was unable to make a comment regarding permanency of the injury
since appellant did not keep a follow-up appointment. On February 22, 2011 he opined that
appellant’s knee symptoms were related to the work-related incident because appellant indicated
that he had no problems until he stepped on a broom at work and twisted his right knee.
Dr. Percinel noted that appellant was seen by another physician on January 21, 2011 after he
slipped and hit his right knee on a flat bed while carrying a 50-pound bag of salt.
By decision dated March 16, 2011, OWCP denied modification of its August 4, 2010
decision finding that the evidence submitted failed to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
3

5 U.S.C. §§ 8101-8193.

3

States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. 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. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS
OWCP accepted that the employment incident of December 16, 2009 occurred at the
time, place and in the manner alleged. The issue is whether appellant sustained a right knee
injury on that day. In contemporaneous reports, Dr. Percinel diagnosed a right knee contusion
and opined that appellant’s injury was causally related to his stepping on a broom at work. The
Board finds that the medical evidence is sufficient to sustain a right knee contusion on
December 16, 2009 as a result of descending a ladder and stepping on a broom. The medical
evidence submitted by appellant is not sufficient, however, to establish a causal relationship
between the Grade 3 chondromalacia or internal derangement related to the December 16, 2009
employment injury.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

T.H., 59 ECAB 388 (2008).
1143 (1989).

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB

6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

Id. See Gary J. Watling, 52 ECAB 278 (2001).

4

Appellant was treated on December 16, 2009 the date of the employment injury, by
Dr. Percinel who diagnosed internal derangement and meniscus tear but noted that an x-ray of
the right knee did not reveal any significant pathology. Based on an MRI scan of December 21,
2009 taken in close proximity to the December 16, 2009 employment injury, the physician
diagnosed contusion of the right knee. Although there were some degenerative changes in the
posterior medial meniscus, there was no actual meniscus tear. On November 16, 2010
Dr. Percinel indicated that appellant underwent right knee surgery on May 21, 2010 and was
found to have Grade 3 chondromalacia of the right knee. He did not provide adequate medical
rationale explaining how appellant’s chondromalacia was caused or aggravated by the
December 16, 2009 incident. The Board has held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.8 Furthermore, Dr. Percinel did not provide sufficient medical opinion to
establish that the injury aggravated or accelerated the Grade 3 chondromalacia which was found
on May 21, 2010, six months following the December 16, 2009 employment injury. Lacking
thorough medical rationale on the issue of causal relationship, Dr. Percinel’s reports are of
limited probative value and insufficient to establish that appellant sustained an employmentrelated injury in the performance of duty on December 16, 2009. The Board finds that appellant
did not meet his burden of proof to establish a causal relationship between the diagnosed
conditions of Grade 3 chondromalacia internal derangement and the December 16, 2009
employment injury.
The December 21, 2009 MRI scan is diagnostic in nature and therefore does not address
causal relationship. Moreover, the MRI scan was normal and negative for post-traumatic
abnormality or internal derangement. As such, the Board finds that it is insufficient to establish
appellant’s claim.
The physical therapy notes dated January 7 to 20, 2010 do not constitute medical
evidence as they were not prepared by a physician.9 As such, the Board finds that appellant did
not meet his burden of proof with these submissions.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to a December 16, 2009 employment
incident, he has failed to meet his burden of proof.
On appeal, appellant argues the merits of his case and indicates that he injured his right
knee twice since the date of injury, in December 2010 and on August 16, 2011 and has a limp
almost all the time. The issue in this case is whether appellant met his burden of proof to
establish that he sustained an injury in the performance of duty on December 16, 2009, which the
Board has found resulted in a right knee contusion. The December 2010 and August 16, 2011
incidents are irrelevant to the issue at hand. For the reasons stated above, the Board finds that
appellant’s arguments are not substantiated.

8

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

9

Physical therapists are not physicians under FECA. See 5 U.S.C. § 8101(2).

5

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 established that he sustained a right knee contusion in
the performance of duty on December 16, 2009. He did not establish that the Grade 3
chondromalacia or internal derangement resulted from the December 16, 2009 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the March 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: August 9, 2012
Washington, DC

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

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

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

6