United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Salisbury, NC, Employer
__________________________________________

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

Docket No. 16-0876
Issued: May 2, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 23, 2016 appellant, through counsel, filed a timely appeal from a January 4,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to rescind its acceptance of
appellant’s claim for herniated disc at C4-5; (2) whether OWCP properly terminated appellant’s
wage-loss and medical benefits effective September 4, 2014 as she no longer had any residuals
causally related to her accepted February 3, 2013 employment-related injury; and (3) whether
appellant met her burden of proof to establish continuing residuals on or after September 4, 2014
due to her February 3, 2013 work injury.
FACTUAL HISTORY
On February 3, 2013 appellant, then a 43-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on that day she sustained pain on the left side of her neck
and left arm when she helped reposition a patient in a chair. She stopped work on
February 3, 2013. Appellant returned to limited duty on February 12, 2013 and resumed regular
duty on June 6, 2013. OWCP initially accepted the claim for left shoulder acromioclavicular
sprain. On January 31, 2014 it expanded the acceptance of the claim to include cervical
herniated disc at C4-5.
In a February 3, 2013 employee health note, appellant reported pain and swelling to her
entire left arm. She indicated that she had injured her arm at work in the past. Appellant later
reported her right arm being numb and hot.
A March 19, 2013 electrodiagnostic study revealed a mild C6 radiculopathy. In a report
dated April 28, 2013, Dr. James Johnson, the interpreting physician, indicated that the cervical
magnetic resonance imaging (MRI) scan revealed normal cervical alignment as well as
degenerative changes of the cervical region, congenital fusion of C7 and T1, and congenital
cervical spinal canal stenosis from C1 through C7. He noted that there was no disc space
narrowing at C4-5, but there was degenerative disc desiccation. There was diffuse disc bulge
with posterior lateral osteophyte and left greater than right uncovertebral osteophyte causing
severe canal stenosis with slight compression and impingement of the cord. There was no signal
change in the cord and mild bilateral foraminal stenosis was worse on the left side than right.
There was no herniation.
In September 2013, appellant transferred to the employing establishment in Atlanta,
Georgia. She began treatment with Dr. Murray D. Robinson, a Board-certified neurosurgeon. In
his initial report of November 7, 2013, Dr. Robinson noted that the trauma occurred while lifting
at work 10 months ago on February 3, 2013. He diagnosed cervical spinal stenosis and disc
disease. Dr. Robinson noted that appellant was pregnant and recommended that she undergo an
anterior cervical discectomy and fusion at C4-5 following her pregnancy. He took appellant off
work.
In a November 19, 2013 letter, OWCP requested that Dr. Robinson clarify his report and
explain, with medical rationale, how the conditions he diagnosed were caused or aggravated by
the February 3, 2013 work injury. In a December 18, 2013 response, Dr. Robinson opined that
per appellant’s history, her neck and arm pain and C4-5 herniated disc were secondary to her
February 3, 2013 work injury.

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On November 20, 2013 appellant filed Form CA-7 claim for compensation for leave
without pay for the period November 7, 2013 to January 9, 2014.
On January 31, 2014 OWCP accepted displacement of intervertebral disc without
myelopathy as causally related to the accepted injury.
By decision dated February 4, 2014, OWCP denied the claim for compensation for the
period November 7, 2013 to January 9, 2014. It found appellant had failed to provide evidence
that disability was as a result of the work injury sustained on February 3, 2013.
On March 5, 2014 OWCP received appellant’s February 2, 2014 request for
reconsideration and her letter dated February 28, 2014, in which she stated that she was off work
because her condition had worsened.
Evidence included a March 21, 2014 office visit note and an imaging requisition form
from Dr. Robinson discussing the treatment plan. In a February 25, 2014 letter, Dr. Robinson
indicated that he had seen appellant one time on November 7, 2013 and that he could not state
whether or not any of her symptoms had changed. He stated that his opinions were based on
“diagnostic studies that indicated stenosis and radiculopathy and a physical examination.”
By decision dated March 27, 2014, OWCP denied modification of its February 4, 2014
decision. It found that there was no medical evidence of record which established that appellant
was disabled due to the February 3, 2013 work injury for the period in question.
In March 2014, OWCP referred appellant’s medical records and Dr. Robinson’s surgery
request to an OWCP medical adviser. It requested that the medical adviser offer an opinion on
whether the February 3, 2013 work injury caused or contributed to appellant’s cervical
osteophyte, stenosis, and/or cervical radiculopathy conditions. In a March 20, 2014 report, the
medical adviser related that appellant had chronic, long-standing multilevel degenerative disc
disease at C3-4 and C6-7. He also noted that she had a congenital fusion at C7-T1 with
combined degenerative stenosis producing left-sided C6 radiculopathy. The medical adviser
stated that those changes have been present since birth and further evolved from day-to-day
activities of daily living, but they were not work related. He noted that osteophytes take years to
develop. The medical adviser indicated that the initial wrist/shoulder sprain diagnosis was
treated appropriately. He opined that the C4-5 herniated nucleus pulposus/displacement was not
related to the work injury of helping reposition a patient in a chair and would not cause or
contribute to the development of her cervical osteophyte, stenosis, or radiculopathy. The
medical adviser recommended that those conditions be denied.
On April 11, 2014 OWCP received appellant’s April 8, 2014 request for reconsideration
of its March 27, 2014 decision. In an April 8, 2014 letter, appellant indicated that she was
entitled to wage-loss compensation during the claimed period as she was taken off work due to
her injury, not her pregnancy.
In November 7, 2013 patient instructions Dr. Robinson advised appellant not to work.
In May 2014, OWCP referred appellant, a statement of accepted facts, the case record
and a series of questions, to Dr. Alexander N. Doman, a Board-certified orthopedic surgeon, for
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a second opinion evaluation. By decision dated June 5, 2014, OWCP again denied modification
of its February 4, 2014 decision. It found that appellant had not provided medical evidence with
objective findings to support her claimed disability for the period November 7, 2013 through
January 9, 2014. In a June 7, 2014 report, Dr. Doman reviewed the statement of accepted facts,
discussed his review of appellant’s medical records and described her examination findings. He
indicated that she was tender over the left side of her neck and left trapezius muscles.
Dr. Doman found no signs of muscular atrophy, deep tendon reflexes were symmetric, her grip
strength and manual dexterity were normal, her rotator cuff strength in the left shoulder was
excellent, there were no signs of muscular atrophy, there was no shoulder instability, and she had
a negative impingement sign. He diagnosed congenital cervical stenosis. Dr. Doman opined that
the accepted work-related conditions of left shoulder strain and the herniated cervical disc had
resolved. He stated that appellant’s current cervical condition had been documented as
representing a congenital condition of narrowing of the cervical canal resulting in a congenital
cervical stenosis that resulted in her present condition, including a left-sided radiculopathy.
Dr. Doman indicated that appellant was not symptomatic from the herniated cervical disc.
Rather, appellant’s present condition represented the natural history of her underlying disorder.
Dr. Doman opined that appellant’s work activities did not result in a temporary or permanent
aggravation of her underlying congenital and degenerative cervical condition. He opined that
appellant was capable of performing the duties of nursing assistant as the accepted work injuries
had resolved. Dr. Doman noted that appellant would have work restrictions for her congenital
and degenerative condition of the cervical spine.
In a July 1, 2014 report, Dr. Robinson provided an assessment of cervical spinal stenosis.
He related that appellant could not return to work and was being scheduled for surgery. In a
July 28, 2014 report, Dr. Robinson stated that per appellant’s history, her neck and arm pain
started after the February 3, 2013 work injury; therefore, he found that her C4-5 disc herniation
and need for surgery were secondary to the work injury.
A July 23, 2014 cervical spine magnetic resonance imaging (MRI) scan revealed that
appellant has multilevel cervical disc osteophyte complex resulting in moderate canal stenosis,
particularly on the left at C5-6 and on the right at C6-7 with neural foraminal narrowing. The
MRI scan also showed the C7-T1 congenital fusion.
On July 28, 2014 OWCP advised appellant that it proposed to terminate her medical and
wage-loss compensation benefits.3 It accorded the weight of the medical evidence to
Dr. Doman. Appellant was afforded 30 days to submit evidence and argument challenging the
proposed termination.
In a July 30, 2014 report, Dr. Tamara S. Greene, a Board-certified neurologist, diagnosed
cervical spinal stenosis and left arm pain. She indicated that appellant’s examination was
notable for giveaway weakness and limited volitional effort. Dr. Greene also suspected that
some of appellant’s findings were nonphysiologic. She noted that recent electrodiagnostic
testing was forthcoming.

3

Appellant was not in receipt of wage-loss compensation benefits at the time of the proposed termination.

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By letter dated August 28, 2014, OWCP advised appellant that it proposed to rescind its
acceptance of the C4-5 herniated disc. It discussed Dr. Doman’s opinion and stated that OWCP
had accepted the cervical condition in error, as there was no evidence that this condition was
related to the February 3, 2013 work injury. OWCP afforded appellant 30 days to submit
evidence and argument challenging the proposed rescission action.
By decision dated September 4, 2014, OWCP terminated appellant’s medical and wageloss compensation benefits for the accepted left shoulder sprain effective September 4, 2014.4 It
found that the weight of the medical evidence rested with Dr. Doman’s July 3, 2014 opinion that
there were no ongoing residuals or disability of appellant’s left shoulder sprain.
On September 12, 2014 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative.
In a September 24, 2014 statement, appellant outlined her contention that her cervical
herniated disc C4-5 was due to the February 3, 2013 work injury.
Also received were a July 23, 2014 admission record from DeKalb Medical, an electronic
mailing from the employing establishment in Salisbury, NC dated September 8, 2014,
appellant’s September 25, 2014 letter to a Mr. Fitzgerald which included her September 24, 2014
statement, and letters from the employing establishment in Salisbury, NC dated September 2, 5,
and October 8, 2014.
By decision dated October 21, 2014, OWCP rescinded its acceptance of the C4-5
herniated disc effective October 21, 2014. It found that, while appellant had a congenital
cervical condition and cervical herniated disc C4-5, the weight of the medical evidence
established that the condition was not related to the February 3, 2013 work injury.
On November 3, 2014 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative.
On April 7, 2015 a telephonic hearing was held before a hearing representative of
OWCP’s Branch of Hearings and Review with regard to OWCP’s September 4 and October 21,
2014 decisions. At the hearing, appellant testified that she had no problems with her neck prior
to February 2, 2013. She also indicated that she did not have the cervical surgery and she
continued to be treated by Dr. Robinson. Appellant also stated that, while she did return to work,
she reinjured her shoulder and the left side of her neck a couple of weeks ago and went to
employee health.5 No new medical evidence was submitted.
By decision dated June 2, 2015, an OWCP hearing representative affirmed OWCP’s
decisions of September 4 and October 21, 2014. She found that OWCP had met its burden of
proof to rescind acceptance of herniated cervical disc at C4-5. The hearing representative also
4

Id.

5

The hearing representative noted that OWCP assigned case number xxxxx968 to the claimed traumatic injury of
March 9, 2015. By decision dated May 7, 2015, OWCP denied the claim as the evidence did not establish causal
relationship.

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found OWCP had met its burden of proof to terminate appellant’s benefits for her accepted left
shoulder strain as the weight of the medical evidence rested with Dr. Doman.
A September 28, 2015 MRI scan report indicated that disc/osteophyte complexes were
flattening appellant’s spinal cord at C3-4, C5-6, and C6-7.
In an October 2, 2015 report, Dr. Fred Koch, a Board-certified orthopedic surgeon,
indicated that appellant’s history dated back to 2013 when she was working at an employing
establishment facility in North Carolina. He reported that she was injured when a patient
grabbed onto her arm and started pulling. Appellant complained of significant pain involving
her neck and left upper extremity. Dr. Koch noted her symptoms and that she had not undergone
cervical surgery. Appellant returned to work and was reinjured in March of this year, when a
patient again pulled on her arm. Dr. Koch provided examination findings and noted that the MRI
scan from September 2014 documented multilevel spinal stenosis and nerve root impingement.
He noted neck and left upper extremity pain following the two work-related injuries with fairly
severe spinal stenosis. Dr. Koch recommended surgery. He opined that appellant’s current
symptomology was multifactorial based primarily on her history of two work-related injuries.
Dr. Koch noted that she also had some preexisting evidence of degenerative changes, but that it
seems her initial problems began with her first injury in North Carolina and was aggravated by
her second injury here.
On November 12, 2015 OWCP received counsel’s November 6, 2015 request for
reconsideration.
By decision dated January 4, 2016, OWCP denied modification of its June 2, 2015
decision. It found the new evidence insufficient to establish that the February 3, 2013 work
injury caused a permanent aggravation of appellant’s cervical spine degenerative disc disease
and stenosis.
LEGAL PRECEDENT -- ISSUE 1
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.6 The Board
has upheld OWCP’s authority to reopen a claim at any time on its own motion under 5 U.S.C.
§ 8128 and, where supported by the evidence, set aside or modify a prior decision and issue a
new decision. The power to annul an award, however, is not an arbitrary one and an award for
compensation can only be set aside in the manner provided by the compensation statute.
OWCP’s burden of justifying termination or modification of compensation holds true where
OWCP later decides that it has erroneously accepted a claim for compensation. In establishing
that its prior acceptance was erroneous, OWCP is required to provide a clear explanation of its
rationale for rescission.7

6

5 U.S.C. § 8128.

7

G.C., Docket No. 15-0370 (issued December 2, 2015); K.H., Docket No. 13-1723 (issued June 17, 2014).

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ANALYSIS -- ISSUE 1
OWCP accepted that on February 3, 2013 appellant sustained a left shoulder sprain when
she was helping a coworker reposition a patient in a chair and felt pain in the left side of her neck
and left arm. On January 31, 2014 it expanded the accepted conditions to include a cervical
herniated disc at C4-5, based upon the reports from Dr. Robinson.
In an October 21, 2014 decision, OWCP rescinded its acceptance of appellant’s condition
of cervical herniated disc at C4-5, based upon the second opinion of Dr. Doman. It explained
that the medical evidence of record contained rationalized medical opinion evidence showing
that appellant’s cervical herniated disc at C4-5 was not due to the February 3, 2013 work injury.
OWCP’s burden of proof to rescind requires rationalized medical opinion in support of its
decision.8 The Board finds that OWCP did not meet its burden of proof to rescind its acceptance
of cervical herniated disc at C4-5.9
In his July 3, 2014 report, Dr. Doman, a Board-certified orthopedic surgeon and OWCP
referral physician, detailed appellant’s factual and medical history and described the February 3,
2013 work incident. He stated that appellant’s “current cervical condition” had been clearly
documented as representing a congenital condition resulting in narrowing of the cervical canal
resulting in a congenital cervical stenosis. In discussing appellant’s current condition, he related
that appellant was not symptomatic from a herniated cervical disc. Dr. Doman thus found that at
the time of his evaluation appellant no longer had residuals of the accepted cervical disc
condition.
Dr. Doman determined that appellant never had a herniated C4-5 disc; rather he opined
that this accepted condition had resolved. Thus, OWCP failed to meet its burden of proof to
rescind benefits. There is no evidence that the C4-5 herniated disc was improperly accepted.10
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
her employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.11 OWCP’s burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.12 Furthermore, the right to medical benefits for an accepted
condition is not limited to the period of entitlement for disability. To terminate authorization for

8

D.H., Docket No. 13-1885 (issued May 12, 2014).

9

5 U.S.C. § 8128; G.C., supra note 7.

10

See Donald Henry, Docket No. 95-2251 (issued July 11, 1997).

11

Jason C. Armstrong, 40 ECAB 907 (1989).

12

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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medical treatment, OWCP must establish that a claimant no longer has residuals of an
employment-related condition that requires further medical treatment.13
The Board has noted that in assessing medical evidence the weight of such evidence is
determined by its reliability, its probative value, and its convincing quality. The factors which
enter in such an evaluation include the opportunity for and thoroughness of examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of the analysis manifested, and the medical rationale expressed is support of the physician’s
opinion.14 Medical rationale is a medically sound explanation for the opinion offered.15
ANALYSIS -- ISSUE 2
OWCP terminated appellant’s wage-loss compensation and medical benefits effective
September 4, 2014.16 The weight of the medical opinion evidence was given to Dr. Doman, the
referral physician, who opined that the left shoulder strain had resolved.
The Board finds that OWCP presented rationalized medical evidence from Dr. Doman,
based on a complete and accurate factual and medical history showing that by September 4,
2014, appellant ceased to have residuals of her February 3, 2013 work injury.
In his June 9, 2014 narrative report, Dr. Doman detailed appellant’s factual and medical
history and reported findings upon physical examination. He noted that, while appellant was
tender over the left side of her neck and left trapezius muscles, there was no objective evidence
of muscular atrophy, diminished grip or strength, or shoulder instability. Appellant also had a
negative impingement sign. In relevant part, Dr. Doman opined that the accepted work-related
conditions of left shoulder strain had resolved.
The Board finds that Dr. Doman’s opinion represents the weight of the medical evidence
on this issue. Dr. Doman provided a detailed medical report reviewing the numerous medical
reports and evidence of record. He unequivocally opined that appellant did not have continuing
residuals of an employment-related left shoulder condition and provided a medical explanation
supported by objective findings. Dr. Doman’s opinion was based on an accurate background.
The Board finds that his second opinion is probative and well rationalized and represents the
weight of the medical evidence.17

13

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

14

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

15

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB
641 (1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).
16

As previously noted, appellant was not in receipt of wage-loss compensation benefits at the time of the
proposed termination or the termination.
17

See M.K., Docket No. 15-1903 (issued May 6, 2016).

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Dr. Robinson opined that appellant had residuals from her work injury. However, he
failed to provide a well-rationalized opinion, with supporting objective evidence. Dr. Robinson
also did not address whether appellant had an ongoing work-related left shoulder sprain. His
reports do not contain a probative, rationalized medical opinion, with objective findings,
indicating that appellant still had residuals from the accepted conditions. For these reasons,
Dr. Robinson’s opinion is insufficiently rationalized to create a conflict with Dr. Doman’s
opinion.
In her July 30, 2014 report, Dr. Greene diagnosed appellant with cervical spinal stenosis.
However this is not an accepted condition. Dr. Greene did not provide an opinion, supported by
objective evidence that appellant had an ongoing left shoulder sprain due to her February 3, 2013
work injury.18
The Board finds that the medical evidence of record was sufficient to meet OWCP’s
burden of proof in this case. Dr. Doman provided a well-rationalized opinion that represents the
weight of the medical evidence that the left shoulder strain had resolved.
LEGAL PRECEDENT -- ISSUE 3
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation benefits shifts to appellant. In
order to prevail, appellant must establish by the weight of the reliable, probative, and substantial
evidence that she had an employment-related disability which continued after termination of
compensation benefits.19
ANALYSIS -- ISSUE 3
Following the termination of her compensation benefits, appellant submitted additional
medical evidence. The Board has found that the opinion of Dr. Doman justified the termination
of appellant’s compensation benefits effective September 4, 2014; therefore, the burden shifts to
appellant to establish disability after that date.20 The Board has reviewed the additional evidence
submitted by appellant and notes that it is not of sufficient probative value to establish
entitlement to further benefits.
Appellant submitted an October 2, 2015 medical report in which Dr. Koch provided an
impression of neck and left upper extremity pain following two work-related injuries (one in
2013 and another in March 2015) with fairly severe spinal stenosis. He provided examination
findings and recommended surgery based on the MRI scan from September 2014 which
documented multilevel spinal stenosis and nerve root impingement. Dr. Koch opined that
appellant’s current symptomology was multifactorial based primarily on her history of two workrelated injuries. He noted that she had some preexisting evidence of degenerative changes, but
18

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship).
19

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

20

Id.

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that it seems her initial problems began with her first injury in North Carolina and was
aggravated by her second injury. Dr. Koch’s opinion is insufficient to establish that the
February 3, 2013 work injury resulted in a permanent aggravation of appellant’s preexisting
cervical degenerative disc disease and stenosis. He did not provide any medical reasoning in
support of his conclusions of additional injuries/worsening condition and merely concluded that
appellant’s extensive diagnosed conditions resulted from her employment. Dr. Koch did not
address the issue of appellant’s underlying congenital spinal condition or any changes which
would indicate an aggravation of her underlying condition caused by factors of her employment.
His explanation is both speculative and vague. Thus, Dr. Koch’s report is of diminished
probative value.21
The September 28, 2015 MRI scan report indicated that disc/osteophyte complexes were
flattening appellant’s spinal cord at C3-4, C5-6, and C6-7. However, diagnostic reports are
insufficient to discharge appellant’s burden of proof as they do not offer a physician’s opinion on
causal relationship.22
On appeal counsel contends that the “claim was rescinded on flimsy evidence and anticlaimant reasoning.” These general and quixotic contentions are baseless and consequently
without merit. For the reasons set forth above, while OWCP did not meet its burden of proof to
rescind its acceptance of cervical herniated disc at C4-5, it did meet its burden of proof to
terminate appellant’s wage-loss and medical benefits effective September 4, 2014 based on the
accepted left shoulder condition. Appellant did not meet her burden of proof to establish
continued disability after September 4, 2014 due to her February 3, 2013 work injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to rescind its acceptance of
cervical herniated disc at C4-5. The Board further finds that it met its burden of proof to
terminate appellant’s wage-loss and medical benefits effective September 4, 2014 based on the
accepted left shoulder condition. Appellant did not meet her burden of proof to establish
continuing disability after September 4, 2014 due to her February 3, 2013 work injury.

21

L.G., Docket No. 09-1692 (issued August 11, 2010).

22

See supra note 19.

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ORDER
IT IS HEREBY ORDERED THAT the January 4, 2016 decision of the Office of
Workers’ Compensation Programs is reversed in part and affirmed in part.
Issued: May 2, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 08-633
Issued: October 6, 2008

Case Submitted on the Record

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

JURISDICTION
On December 26, 2007 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ merit decisions dated August 6 and 29 and November 30, 2007. Under
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 met her burden of proof in establishing that she
sustained a right wrist condition in the performance of duty.
FACTUAL HISTORY
Appellant, a 50-year-old postmaster, filed a Form CA-2 claim for benefits on June 15,
2007, alleging that as of June 14, 2007 she became aware of a right wrist condition causally related
to factors of her employment.
In a work status report dated June 14, 2007, Dr. Stephen W. Mihalsky, a Board-certified
surgeon, diagnosed scapholunate advanced collapse of the right wrist. He outlined work
restrictions of limited gripping and no flexing with the right wrist for four weeks.

By letter dated July 3, 2007, the Office advised appellant that it required additional factual
and medical evidence to determine whether she was eligible for compensation benefits. It asked
appellant to submit a comprehensive medical report from her treating physician describing her
symptoms and the medical reasons for her condition and an opinion as to whether her claimed
condition was causally related to her federal employment. Appellant did not submit any
additional medical evidence.
By decision dated August 6, 2007, the Office denied appellant’s claim, finding that she
failed to submit sufficient medical evidence to establish that she sustained a right wrist condition
in the performance of duty.
On August 11, 2007 appellant requested reconsideration and submitted additional
evidence.
In a June 14, 2007 report, Dr. Mihalsky stated:
“[Appellant] is a 50-year[-]old right hand dominant female who is employed by
the employing establishment, where she performs hand stamping and sorting. She
reports that three to four years ago she had a right carpal tunnel release and what
sounds like a right cubital tunnel release with a possible anterior transition
performed.... [Appellant] reports that symptoms resolved following the surgery.
“Approximately one and one half years later, [appellant] awoke with right wrist
and hand pain. She saw her family physician, who obtained x-rays reported as
normal. Lab work was obtained and she was diagnosed with rheumatoid arthritis.
[Appellant] was subsequently evaluated by Dr. Seradge, who performed a
magnetic resonance imaging [MRI] scan of her right wrist. Arthroscopy of the
wrist was performed and she states that she was told she had a wrist ligament
injury. [Appellant] underwent a surgical procedure for scapholunate dissociation.
Following this, she has had pain in her right wrist with limited range of motion.
“In April 2007, [appellant] was evaluated by Dr. [Rick D.] Beller. An MRI scan
was obtained revealing fragmentation of the capitate proximally. The possibility
of osteonecrosis or reflex sympathetic dystrophy was entertained. [Appellant]
was sent to therapy with no improvement in her tenderness.... She indicates that
any motion of her wrist aggravates the pain.
“X-ray from Dr. Beller’s office dated April 3, 2007 reveals degenerative changes
at the lunatocapitate joint consistent with scapholunate advanced collapse.
[Appellant] does have evidence of a tunnel drilled through the distal pole of the
scaphoid most likely from the procedure performed by Dr. Seradge. No other
significant bone or joint abnormalities are identified.”
Dr. Mihalsky diagnosed scapholunate advanced collapse. He advised appellant that she
had degenerative changes in her right wrist with collapse of the alignment of the wrist bones.
Dr. Mihalsky indicated that, when conservative measures to treat her condition were no longer
helpful, a four corner wrist arthrodesis or total wrist fusion would become necessary. He advised

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that no significant radioscaphoid or radiounate abnormalities were identified by x-ray or MRI
scan.
In a report dated July 12, 2007, Dr. Mihalsky reiterated his prior report. He noted that
appellant had been wearing a wrist splint and reported less pain when wearing it; however, she
experienced limited range of motion when she removed the splint. Dr. Mihalsky related that he
discussed the possibility of the aforementioned surgery with appellant in the event conservative
measures did not improve her condition. In a report dated July 17, 2007, he stated:
“Without [appellant] describing a specific injury to her right wrist at work, it is
my opinion that her work activities as a postal clerk were not the cause of her
current degenerative changes in her right wrist. However, her work activities
could have contributed to the progression of the degenerative changes.
Specifically, activities such as hand stamping parcels and the wrist motion
associated with mail sorting as well as lifting activities could certainly contribute
to progression of the degenerative changes. Activities outside of work also would
contribute to this.”
By decision dated August 29, 2007, the Office denied modification of the August 6, 2007
decision.
On September 29, 2007 appellant requested reconsideration.
In a report dated September 20, 2007, Dr. Mihalsky noted that appellant had undergone a
procedure for right scaphoidectomy with four corner arthrodesis on August 9, 2007. He stated
that appellant’s four corner arthrodesis, plate and screws were all in good position. Dr. Mihalsky
advised that appellant reported good motion and no numbness in her fingers. In an additional
September 20, 2007 report, he reiterated his opinion that, because appellant did not sustain a
specific injury to her right wrist at work, her work activities were not the cause of the
degenerative changes in the right wrist, though work activities could have contributed to the
progression of the degenerative changes.
In a report dated October 25, 2007, Dr. Mihalsky noted that appellant continued to have
swelling following her right scaphoidectomy with four corner arthrodesis procedure, though he
expected her condition to improve. He released her to return to work with restrictions of no
lifting more than three pounds with her right hand and no working without a splint.
By decision dated November 20, 2007, the Office denied modification of the August 6,
2007 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
1

5 U.S.C. §§ 8101-8193.

3

was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.2 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed right wrist condition and her
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.5
ANALYSIS
The Board finds that appellant has failed to submit sufficient medical evidence containing
a rationalized, probative opinion relating her claimed right wrist condition to factors of her
employment. For this reason, she has not established her claim that this condition was sustained
in the performance of duty.
Appellant submitted reports from Dr. Mihalsky, but the physician did not provide an
adequate rationalized medical opinion that the claimed right wrist condition was causally related
to employment factors. In a June 14, 2007 report, Dr. Mihalsky noted a history of appellant’s
preexisting right wrist condition and diagnosed scapholunate advanced collapse of the right wrist.
2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

Id.

5

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

He outlined work restrictions of limited gripping and no flexing with the right wrist for four
weeks. Dr. Mihalsky’s report, however, did not address how the alleged employment factors
caused or aggravated her claimed right wrist condition. His report is therefore of limited
probative value as it did not contain any medical rationale explaining how or why appellant’s
claimed right wrist condition was currently affected by or related to any of her work duties.6 The
weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.7 The June 14, 2007 report of Dr. Mihalsky is of diminished
probative value for the further reason that it is generalized in nature and speculative on the issue
of causal relation. He noted that appellant’s work activities could have contributed to or
exacerbated her right wrist symptoms.
Appellant requested reconsideration and submitted additional reports from Dr. Mihalsky.
However, these reports are similarly deficient on the issue of causal relation. Dr. Mihalsky
related a history of appellant undergoing right carpal tunnel release and a right cubital tunnel
release with a possible anterior transition. These symptoms resolved, but she subsequently
developed right wrist and hand pain which was diagnosed as rheumatoid arthritis. Dr. Mihalsky
noted that appellant underwent an MRI scan, an arthroscopy and x-rays of the wrist, which
revealed scapholunate dissociation and degenerative changes at the lunatocapitate joint
consistent with scapholunate advanced collapse. The degenerative changes entailed a collapse of
the alignment of the wrist bones. Dr. Mihalsky recommended conservative treatment and, if that
did not produce an improvement in her wrist, reconstructive surgery. He noted on his July 12,
2007 that appellant was wearing a wrist splint and reported less pain when wearing it; however,
she experienced limited range of motion when she removed the splint. On July 17, 2007
Dr. Mihalsky opined that, without her describing a specific work injury to her right wrist, he did
not believe that her work activities as a postal clerk were the cause of the current degenerative
changes in her right wrist. He stated that appellant’s work activities could have contributed to
the progression of the degenerative changes, but that activities outside of work could have also
contributed to them. In reports dated September 20 and October 25, 2007, Dr. Mihalsky noted
that appellant underwent surgery on August 9, 2007 for right scaphoidectomy with four corner
arthrodesis. He indicated that appellant was progressing reasonably well from this procedure and
released her to return to work. Dr. Mihalsky reiterated that, in the absence of any specific work
injury to her right wrist, appellant’s work activities were not the cause of her degenerative
changes in the right wrist but could have contributed to the progression of the degenerative
changes.
Dr. Mihalsky’s reports are not sufficient to establish appellant’s claim that her right wrist
condition is causally related to employment factors. He did not describe appellant’s work duties
in any detail or how they would have been competent to cause the claimed condition.
Dr. Mihalsky failed to submit a report which sufficiently described the medical process through
which appellant’s employment would have been competent to cause or aggravate her claimed
right wrist condition. In fact, although he stated that her work activities could have contributed
6

William C. Thomas, 45 ECAB 591 (1994).

7

See Anna C. Leanza, 48 ECAB 115 (1996).

5

to the progression of the degenerative changes, he stated that without a specific incident he did
not believe they were the cause of these changes. Dr. Mihalsky’s opinion on the possible
contribution of appellant’s work duties to the progression of her degenerative condition is
speculative.
The Office advised appellant of the evidence required to establish her claim; however,
she failed to submit such evidence. Appellant has not met her burden of proof in establishing
that her claimed right wrist condition is causally related to her employment.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that her
right wrist condition was caused or aggravated by her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the November 30 and August 29 and 6, 2007,
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: October 6, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Warren, OH, Employer
__________________________________________

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Appearances:
John P. Lutseck, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 09-944 & 09-1352
Issued: June 15, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On February 26, 2009 appellant, through counsel, filed a timely appeal of the April 2 and
November 18, 2008 merit decisions of the Office of Workers’ Compensation Programs regarding
a schedule award. The Board assigned Docket No. 09-944. On April 28, 2009 appellant,
through counsel, filed a timely appeal from merit decisions of the Office dated April 23, 2008
and February 18, 2009 that terminated his entitlement to wage-loss and schedule award
compensation benefits for refusing suitable work. The Board assigned Docket No. 09-1352.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
schedule award and termination issues.
ISSUES
The issues are: (1) whether appellant has more than nine percent permanent impairment
of the left lower extremity for which he received a schedule award; and (2) whether the Office
properly terminated his compensation effective May 11, 2008 on the grounds that he refused an
offer of suitable work, pursuant to 5 U.S.C. § 8106(c).

FACTUAL HISTORY
On June 15, 2004 appellant, then a 54-year-old letter carrier, filed a traumatic injury
claim alleging he injured his left ankle that day when he stepped into a depression in the grass.
The Office accepted the claim for left ankle fracture and sprain and accepted his October 2, 2004
claim for a recurrence of disability. It authorized left ankle surgery, which was performed on
April 25, 2005. By letter dated April 7, 2005, the Office placed appellant on the periodic rolls
for temporary total disability.
In an October 30, 2006 letter, Dr. Stephanie M. Galey, appellant’s treating physician,
requested authorization for a functional capacity evaluation to be performed to determine
appellant’s work capability and restrictions.
On April 20, 2007 the Office received an October 11, 2006 report from Dr. Galey, who
related that appellant stated he was unable to stand for more than 20 minutes without having
pain, that he was unable to go up stairs, has swelling in his ankle during the day and uses both a
cane and ankle brace. A physical examination revealed some venous discoloration, restricted
range of motion and some foot dysesthesias diffusely.
On June 12, 2007 the Office authorized a functional capacity evaluation. It was
performed on June 26, 2007 and a report issued on July 5, 2007. The report indicated that
appellant was capable of working four hours per day with restrictions. It noted restrictions of 25to 30-minute sitting duration during 4 hours; 5- to 10-minute standing duration for 1 hour;
occasional short distance walking for 1 hour; occasional above shoulder lifting of 12.6 pounds;
occasional lifting of 12.6 pounds from desk to chair; occasional pushing and pulling of 13.3
pounds and occasional carrying of 8.6 pounds.
On October 18, 2007 the Office referred appellant to Dr. Michael J. Jurenovich, an
orthopedic surgeon, to provide an opinion on whether appellant was capable of working an eighthour day. In a November 13, 2007 report, Dr. Jurenovich, based upon a physical examination,
review of the medical records, comprehensive functional capacity evaluation and statement of
accepted facts, concluded that appellant was capable of working an eight-hour day with
restrictions. A physical examination revealed negative drawer sign and fairly good left ankle
range of motion. Dr. Jurenovich reported appellant’s toe flexion and extension were fairly good.
In an attached work capacity evaluation form, he stated that appellant was capable of working an
eight-hour day with restrictions. The restrictions included three to four hours of standing,
bending/stooping, operating a motor vehicle at work and operating a motor vehicle to and from
work; four to five hours of reaching; three to four hours of pushing, pulling and lifting 10 to 20
pounds; three to four hours squatting and kneeling and two to three hours climbing.
On January 29, 2008 the employing establishment offered appellant the limited-duty
position of modified city letter carrier. The duties included two hours of scanning delivery
confirmation packages by route; four hours of casing and carrying auxiliary routes; one hour of
printing and verifying test reports from the prior day; and two to three hours of delivering late
arriving express mail. Physical restrictions of the position included two hours of standing; three
to four hours of walking, stooping and bending; and two to three hours of sitting and driving.

2

The hours were from 4:30 a.m. to 2:30 p.m. with a two-hour lunch and the position was located
at Warren Main Post Office.
On February 14, 2008 the Office received appellant’s undated letter refusing the offered
position on the grounds that it went against the restrictions noted by Drs. Galey and
Dr. Nasimullah Rehmatullah, an orthopedic surgeon.
On February 15, 2008 the employing establishment offered appellant the limited-duty
position of modified city letter carrier with modified restrictions. The duties included one hour
of scanning delivery confirmation packages by route; 30 minutes of printing and verifying
delivery confirmation reports from the prior day; and two to three hours of delivering late
arriving express mail and four hours of carrying/casing auxiliary routes with less than 10 pounds.
Physical restrictions of the position included four hours of standing; three hours of pushing,
pulling and lifting 10 pounds; two to three hours of bending, stooping, walking, sitting and
driving and no squatting or kneeling. The hours were from 4:30 a.m. to 2:30 p.m. and the
position was located at Warren Main Post Office.
On February 23, 2008 appellant declined the offered position as the duties were beyond
his capability.
On February 26, 2008 appellant informed the Office that he was electing to receive
retirement benefits from the Office of Personnel Management (OPM) in lieu of compensation
benefits effective March 16, 2008.
On March 3, 2008 the Office noted it had received appellant’s letter declining the offered
position, noting that he had retired and was unable to perform the duties of the offered position.
It notified appellant that it found the modified city letter carrier position to be suitable. The
Office advised appellant that he had 30 days to accept the offer or provide reasons why he
believed the position was not suitable. Appellant did not accept the offer within the 30-day
period.
Appellant filed a claim for a schedule award and submitted a February 8, 2006 report
from Dr. John J. Vargo, an osteopath, in support of his request. Dr. Vargo provided findings on
physical examination and diagnosed a left ankle fracture and left ankle sprain. He reported
appellant used a cane to walk and had an antalgic limp. Dorsiflexion was 5 degrees, plantar
flexion 20 degrees, inversion 10 degrees and eversion 0 degrees. Dr. Vargo stated that appellant
had reached maximum medical improvement. Using Table 17-5, page 528 of the fifth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), he calculated a total 20 percent whole person impairment based upon appellant’s gait.
Dr. Vargo noted that no other condition may be considered when basing an impairment solely on
gait disturbance. He noted that appellant had an 11 percent whole person impairment based on
his loss of range of motion. In reaching this determination, Dr. Vargo used Table 17-11, page
537 to find a three percent impairment for plantar flexion, a six percent impairment for flexion
contracture and a zero percent impairment for extension. Using Table 17-12, page 537, he
concluded that appellant had one percent impairment for eversion. Dr. Vargo then combined
these percentages to find a total 11 percent lower extremity impairment due to loss of range of

3

motion. In concluding, he found a 20 percent whole person impairment due to the gait
derangement.
On March 31, 2008 an Office medical adviser calculated a nine percent impairment of
appellant’s left lower extremity. He concluded that using the gait derangement to determine
appellant’s impairment was not the optimal method as set forth on page 529 of the A.M.A.,
Guides. As gait determination was not the optimal method, the Office medical adviser made his
impairment determination based upon appellant’s ankle range of motion. His determination was
based on a seven percent for 0 degrees of dorsiflexion and 20 degrees plantar flexion, based on
Table 17-11 at page 537 of the A.M.A., Guides, a two percent for 10 degrees of inversion and 0
degrees of eversion, based on Table 17-12 at page 537.
By decision dated April 2, 2008, the Office granted appellant a schedule award based on
a nine percent impairment of the left lower extremity for 181.44 days, from March 16 to
September 13, 2008.
By letter dated April 3, 2008, the Office advised appellant that he had failed to provide
valid reasons for refusing to accept the limited-duty job and that, if he had not accepted the
position and arranged for a report date within 15 days of the date of the letter, his entitlement to
wage-loss and schedule award benefits would be terminated. It stated that no additional reasons
for refusal would be accepted.
In an April 21, 2008 letter, appellant’s counsel requested an oral hearing on the schedule
award issue before an Office hearing representative, which was held on August 15, 2008.
By decision dated April 23, 2008, the Office terminated appellant’s wage-loss
compensation and schedule award benefits on the grounds that he declined an offer of suitable
work.
On May 28, 2008 appellant and his counsel requested an oral hearing on the termination
issue before an Office hearing representative, which was held on November 24, 2008.
By decision dated November 18, 2008, the Office hearing representative affirmed the
April 2, 2008 schedule award decision on the grounds that the evidence established that appellant
had no more than a nine percent impairment of his left lower extremity.
By decision dated February 18, 2009, a second Office hearing representative affirmed the
Office’s April 23, 2008 decision, finding that the evidence of record demonstrated that appellant
had refused, without justification, an offered position that was medically, vocationally and
educationally suitable. He found the weight of the evidence rested with the opinion of the
second opinion physician, Dr. Jurenovich, as no contrary medical evidence was submitted
subsequently. The hearing representative noted that Dr. Galey, in her October 11, 2006 report,
deferred her opinion regarding appellant’s work capability pending a functional capacity
evaluation and no further information was received from her.

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LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.3 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.4
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a left ankle fracture in the performance of
duty on June 15, 2004. Appellant underwent a left ankle surgery on April 25, 2005. He filed a
claim for a schedule award on March 12, 2008 and has the burden to establish by the weight of
the medical evidence that his employment injury caused permanent impairment to his right leg.
On appeal appellant’s counsel contends that the Office erred in failing to base his schedule award
on his gait disturbance which was higher than his loss of range of motion.
On February 8, 2006 Dr. Vargo found that appellant had a 20 percent whole person
permanent impairment due to gait abnormality using Table 17-5 and an 11 percent impairment
due to decreased range of motion using Tables 17-11 and 17-12 page 537. In reaching the 11
percent impairment determination, he used Table 17-11, page 537 to find a 3 percent impairment
for plantar flexion, a 6 percent impairment for flexion contracture and a 0 percent impairment for
extension. Using Table 17-12, page 537, Dr. Vargo concluded that appellant had one percent
impairment for eversion. He then combined these percentages to find a total 11 percent lower
extremity impairment due to loss of range of motion. Dr. Vargo noted that no other condition
may be considered when basing an impairment solely on gait disturbance. Thus, his
determination of a 20 percent whole person impairment was based solely on appellant’s gait
disturbance. The Board notes that a schedule award is not payable for an impairment of the
whole person.5 As Dr. Vargo’s opinion does not conform to the A.M.A., Guides, it is of
diminished probative value.6

1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

20 C.F.R. § 10.404.

3

5 U.S.C. § 8107(c)(19).

4

20 C.F.R. § 10.404; see I.F., 60 ECAB ___ (Docket No. 08-2321, issued May 21, 2009); A.A., 59 ECAB ___
(Docket No. 08-951, issued September 22, 2008).
5

See A.L., 60 ECAB ___ (Docket No. 08-1730, issued March 16, 2009); D.H., 58 ECAB 358 (2007); Marilyn S.
Freeland, 57 ECAB 607 (2006) (the Act does not authorize schedule awards for permanent impairment of the whole
person).
6

Mary L. Henninger, 52 ECAB 408 (2001).

5

The Office medical adviser properly reviewed the medical record and found a nine
percent left lower extremity impairment. He concluded that using the gait derangement to
determine appellant’s impairment was not the optimal method as set forth on page 529 of the
A.M.A., Guides. As gait determination was not the optimal method, the Office medical adviser
made his impairment determination based upon appellant’s ankle range of motion. His
determination was based on a seven percent for 0 degrees of dorsiflexion and 20 degrees plantar
flexion, based on Table 17-11 at page 537 of the A.M.A., Guides, a two percent for 10 degrees of
inversion and 0 degrees of eversion, based on Table 17-12 at page 537. The Office medical
adviser properly combined the impairment ratings for loss of ankle range of motion.
The Board finds that the medical adviser properly applied the A.M.A., Guides to the
findings of Dr. Vargo in calculating an impairment rating of nine percent permanent impairment
of the left lower extremity. There is no other evidence of record, conforming with the A.M.A.,
Guides, indicating that appellant has any greater impairment.
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation.7 Under section 8106(c)(2) of the Act, the Office may terminate
the compensation of a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for the employee.8 To justify termination, the Office
must show that the work offered was suitable and must inform appellant of the consequences of
refusal to accept such employment.9 Section 8106(c) will be narrowly construed as it serves as a
penalty provision, which may bar an employee’s entitlement to compensation based on a refusal
to accept a suitable offer of employment.10
Office regulations provide that, in determining what constitutes suitable work for a
particular disabled employee, the Office should consider the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.11 It is well
established that the Office must consider preexisting and subsequently acquired conditions in the
evaluation of suitability of an offered position.12 The issue of whether an employee has the
physical ability to perform a modified position offered by the employing establishment is
primarily a medical question that must be resolved by the medical evidence.13
7

A.W., 59 ECAB ___ (Docket No. 08-306, issued July 1, 2008).

8

5 U.S.C. § 8106(c)(2); see also Mary E. Woodard, 57 ECAB 211 (2005); Geraldine Foster, 54 ECAB
435 (2003).
9

T.S., 59 ECAB ___ (Docket No. 07-1686, issued April 24, 2008); Ronald M. Jones, 52 ECAB 190 (2000).

10

Richard P. Cortes, 56 ECAB 200 (2004); Joan F. Burke, 54 ECAB 406 (2003).

11

20 C.F.R. § 10.500(b).

12

Richard P. Cortes, supra note 10.

13

Id.; Bryant F. Blackmon, 56 ECAB 752 (2005).

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ANALYSIS -- ISSUE 2
As noted above, the Office accepted appellant’s claim for left ankle fracture and sprain
and authorized left ankle surgery, which was performed on April 25, 2005. By letter dated
April 7, 2005, it placed appellant on the periodic rolls for temporary total disability. Appellant
notified the Office by letter dated February 28, 2008 that he was electing to receive retirement
benefits from the OPM.
On appeal appellant’s counsel contends that the issue is not whether appellant refused an
offer of suitable work as he preferred to retire. He contends the issue is whether he is entitled to
monetary compensation for his schedule award. Contrary to appellant’s contention the issue of
whether he refused an offer of suitable work is relevant to the issue of whether he is entitled to
monetary compensation for his schedule award claim. As noted above, the penalty provision of
section 8106(c) of the Act bars a claim for a schedule award for the period after the termination
of compensation based on a refusal to accept an offer of employment.
The only relevant medical evidence in the record regarding the issue of appellant’s work
capability is a November 13, 2007 report from Dr. Jurenovich, a second opinion Board-certified
orthopedic surgeon. Dr. Galey, appellant’s treating physician, recommended a functional
capacity evaluation be performed to determine appellant’s work capability. She offered no
opinion as to appellant’s work capability or a report indicating she reviewed the June 26, 2007
functional capacity evaluation.
In a November 13, 2007 report, Dr. Jurenovich, a second opinion Board-certified
orthopedic surgeon, based upon a physical examination, review of the medical records,
functional capacity evaluation and statement of accepted facts, concluded that appellant was
capable of working an eight-hour day with restrictions. A physical examination revealed
negative drawer sign and fairly good left ankle range of motion. Dr. Jurenovich also reported
appellant’s toe flexion and extension were fairly good. He provided a comprehensive review of
the factual and medical evidence, detailed his findings on physical examination of appellant and
provided discussion for the conclusions he reached. Dr. Jurenovich concluded that appellant was
capable of working with restrictions of three to four hours of standing, bending/stooping,
operating a motor vehicle at work and operating a motor vehicle to and from work; four to five
hours of reaching; three to four hours of pushing, pulling and lifting 10 to 20 pounds; three to
four hours squatting and kneeling; and two to three hours climbing. The Board notes that there is
no other contemporaneous medical evidence of record relevant to the issue of appellant’s ability
to perform the duties of the position offered by the employing establishment. On the basis of
Dr. Jurenovich’s report, the employing establishment offered appellant the limited-duty position
of modified city letter carrier. The physical restrictions of the position included four hours of
standing; three hours of pushing, pulling and lifting 10 pounds; two to three hours of bending,
stooping, walking, sitting and driving and no squatting or kneeling, which were within
appellant’s work restrictions. In addition, the offer was in writing, included a description of the
duties of the position, the physical requirements of those duties and the date by which appellant

7

was to either accept the offer or submit his reasons for refusal.14 The Board finds that the Office
met its burden to establish that the position was suitable.
The issue of whether an employee has the physical ability to perform the duties of a
modified position offered by the employing establishment is primarily a medical question that
must be resolved by the medical evidence.15 The medical evidence provided by Dr. Jurenovich
establishes the suitability of the offered position, in that the job offered satisfied appellant’s
physical limitations.
In light of the foregoing, the Board finds that the job offered was medically and
vocationally suitable and the Office followed its procedures prior to termination of
compensation. Accordingly, the Board finds that the Office met its burden of proof to terminate
compensation.
CONCLUSION
The Board finds that the Office properly determined that appellant had no more than a
nine percent permanent impairment of the left lower extremity, for which he received a schedule
award. The Board further finds that the Office met its burden of proof to terminate appellant’s
compensation and schedule award benefits as of May 11, 2008, based on appellant’s refusal to
accept suitable work.

14

20 C.F.R. § 10.507.

15

See Maurissa Mack, 50 ECAB 498 (1999).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 18, 2009 and November 18 and April 23, 2008 are
affirmed.
Issued: June 15, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
DEPARTMENT OF THE INTERIOR,
SEQUOIA NATIONAL PARK SERVICES,
Three Rivers, CA, Employer
__________________________________________

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

Docket No. 14-631
Issued: August 6, 2014

Case Submitted on the Record

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

JURISDICTION
On January 27, 2014 appellant filed a timely appeal from a January 15, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has greater than four percent left upper extremity
permanent impairment, for which he received a schedule award.
On appeal appellant contends that his impairment is greater than the four percent he was
awarded.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 28, 2009 appellant, then a 38-year-old lead forestry technician, injured his left
shoulder and arm while throwing boxes of paper away from the back of a truck. OWCP
accepted the claim for left bicipital tenosynovitis, left shoulder calcifying tendinitis and a left
shoulder and upper arm sprain. It authorized left shoulder arthroscopic surgeries, which were
performed on March 23, 2010 and January 26, 2011.
On May 9, 2013 appellant filed a claim for a schedule award.
OWCP referred appellant on September 16, 2013 for a second opinion evaluation to
Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, to determine whether he had any
permanent impairment due to his accepted employment injury.
In a September 30, 2013 report, Dr. Swartz reviewed the medical evidence and statement
of facts and conducted a physical examination. The physical examination revealed tenderness
posteriorly and anterolaterally in the left shoulder, negative impingement test, and pain with the
O’Brien test and Abbot-Saunders test. Dr. Swartz noted 5/5 bilateral flexion, abduction,
adduction and external rotation strength and 4+5/ left shoulder internal strength. He noted left
shoulder range of motion as 125 degrees for flexion, 115 degrees for abduction and 30 degrees
for adduction, which was less than the right shoulder. Dr. Swartz noted that appellant was status
post two operations on his left shoulder. He rated a four percent left upper extremity permanent
impairment under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). Using Table 15-5, page 404,
Dr. Swartz placed appellant under a class 1 with a three percent default impairment for labral
lesions. For functional history he assigned a grade modifier of 1 for painful symptoms with
vigorous or strenuous activities pursuant to Table 15-7, page 406. Under physical examination
findings, Dr. Swartz assigned a grade modifier of 2 pursuant to Table 15-8, page 408. As
imaging studies were not required for the diagnosis, he determined that an adjustment for clinical
studies was not applicable. Dr. Swartz noted a QuickDASH score of 32, pointing out that this
was a grade modifier of 1 which was consistent with his findings. Using the net adjustment
formula, he explained that the default position was modified by +1 moving to the right to grade
D which represented four percent impairment.
In a November 4, 2013 report, Dr. Ellen Pichey, an OWCP medical adviser, reviewed
appellant’s claim. She agreed with Dr. Swartz’s application of the A.M.A., Guides and the
impairment rating of four percent for the left upper extremity.
By decision dated January 15, 2014, OWCP granted appellant a schedule award for four
percent impairment of the left upper extremity. The award covered a period of 12.48 weeks and
ran from February 7 to May 5, 2013.
LEGAL PRECEDENT
Under section 8107 of FECA2 and section 10.404 of the implementing federal
regulations,3 schedule awards are payable for permanent impairment of specified body members,
2

5 U.S.C. § 8107.

2

functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.4
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).5 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).6 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.8
ANALYSIS
OWCP accepted appellant’s claim for left bicipital tenosynovitis, left shoulder calcifying
tendinitis and left shoulder and upper arm sprain. It authorized two arthroscopic surgeries, which
were performed on March 23, 2010 and January 26, 2011. On May 9, 2013 appellant requested
a schedule award.
OWCP referred appellant for a second opinion evaluation to Dr. Swartz who provided a
September 30, 2013 report. In accordance with Table 15-4, shoulder regional grid, page 404,
Dr. Swartz rated appellant’s class 1 with a three percent default impairment for labral lesions.
He applied the modifiers for functional history and physical examination found in Table 15-7,
page 406 and Table 15-8, page 408, respectively. Dr. Swartz found that the clinical studies
adjustment was not applicable. He assigned a grade modifier of 1 for painful symptoms with
vigorous or strenuous activities pursuant to Table 15-7, page 406 under functional history.
Under physical examination findings, Dr. Swartz assigned a grade modifier of 2 pursuant to
Table 15-8, page 408. Using the net adjustment formula, he explained that the default position
was modified by +1 moving to the right to grade D and an impairment of four percent under the
sixth edition of the A.M.A., Guides.
3

20 C.F.R. § 10.404

4

D.J., 59 ECAB 620 2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

5

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
6

Id. at 383-419.

7

Id. at 411.

8

Tommy R. Martin, 56 ECAB 273 (2005).

3

Dr. Swartz properly explained his calculations under the sixth edition of the A.M.A.,
Guides. Dr. Pichey, an OWCP medical adviser, reviewed his report and agreed with his
impairment rating. There is no other medical evidence of record in accordance with the A.M.A.,
Guides supporting a higher impairment. The Board finds that the weight of the medical evidence
establishes that he has a four percent left shoulder impairment.
On appeal appellant contends that he has greater impairment rating due to his limited
motion and pain. He alleged that Dr. Swartz provided an incorrect impairment rating as he was
only seen by the doctor for 10 minutes, which he believed was insufficient to evaluate his
impairment. As noted, Dr. Swartz and OWCP’s medical adviser properly applied the A.M.A.,
Guides to determine appellant’s left upper extremity impairment rating. The number of weeks of
compensation for a schedule award is determined by the compensation schedule at 5 U.S.C.
§ 8107(c). For complete loss of use of an arm, the maximum number of weeks of compensation
is 312 weeks. Since appellant has four percent impairment to his left arm, he is entitled to four
percent of 312 weeks or 12.48 weeks of compensation as granted in the January 15, 2014
decision.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds appellant has failed to establish greater than four percent left upper
extremity permanent impairment.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 15, 2014 is affirmed.
Issued: August 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5