United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Canandaigua, NY, Employer
__________________________________________

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

Docket No. 18-0484
Issued: September 7, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 3, 2018 appellant filed a timely appeal from an August 29, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). After exercising its discretion, by order dated July 20, 2018, the Board denied the request as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 18-0484 (issued July 20, 2018).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the prior Board decision are incorporated herein by reference. The relevant facts are
as follows.
On January 9, 2013 appellant, then a 45-year-old lead police officer, filed an occupational
disease claim (Form CA-2) alleging that he sustained high blood pressure due to the “anxiety and
stress of the job.” He stopped work on January 2, 2013.
In a January 24, 2013 development letter, OWCP requested that appellant submit
additional factual and medical evidence in support of his claim, including a detailed description of
the implicated work factors and medical evidence describing his medical condition with an
explanation of the cause of any such condition.
Appellant submitted a January 2, 2013 emergency room report in which an attending
physician assistant reported blood pressure of 156/100 when he first arrived, and noted that it was
136/88 after he had settled down for a while. The physician assistant diagnosed mild anemia and
headache. In other notes from that visit, a registered nurse noted that appellant had a history of
hypertension.
By decision dated May 29, 2013, OWCP denied appellant’s emotional condition claim
because he failed to establish any compensable work factors and, therefore, did not establish an
injury as defined under FECA. It noted that he only provided a vague and general statement that
job-related stress caused his claimed medical condition.
By letter dated October 30, 2013 and received on November 7, 2013, appellant requested
reconsideration of his claim and described the incidents and conditions at work which he believed
caused a stress-related condition. He alleged that in late 2010, while suffering from bladder cancer
caused by his military service, the employing establishment mishandled his request for a transfer
to another position. Appellant asserted that he received his requested transfer to Canadaigua, NY,
in August 2011, but was immediately transferred again to Rochester, NY, based on a false
assertion by management that he did not have enough seniority to remain in the Canadaigua
position. He alleged that this action was part of retaliatory and discriminatory actions that lasted
for five months and that he was brought before an interview panel whose members attempted to
discredit his character. In a written report, management officials allegedly called appellant
unprofessional and accused him of being a liar. Appellant indicated that, in early December 2011,
during his yearly psychological evaluation he lost confidence in the ability and character of the
civilian contractor carrying out the evaluation. During an early March 2012 evaluation, the
civilian contractor misinterpreted a comment that appellant had made about a former supervisor’s
propensity for violence and reacted as though appellant had made an “emotionally unstable
remark.” Appellant indicated that the civilian contractor became visibly irate and requested that
he leave the room so that he could speak to the police chief. He stated that he was wrongly removed
from service the day after this evaluation, but that the civilian contractor denied that he was
3

Docket No. 15-0297 (issued May 12, 2015).

2

responsible for removing him from service. Appellant was placed on administrative leave until
March 14, 2012 when he was recommended for discontinued service.
In his October 30, 2013 letter, appellant further alleged that between March and
October 2012 he witnessed numerous criminal actions by employees and patients, but that
management did not take steps to prevent such actions. He filed complaints with the Office of the
Inspector General for the employing establishment concerning fraud, waste, and abuse, but the
response of the factfinders was that the employing establishment was “not responsible for the
actions of others.” Appellant’s promotion to the lieutenant rank in October 2012 had been
improperly delayed by a human resources official who made remarks that made him feel
uncomfortable. He alleged that after his promotion he was exposed to additional acts of retaliation
by management and placed in hostile environments. In early January 2013, appellant experienced
an emotional incident when he was abandoned at work after other officers called in sick and a
police officer assigned to the union office was hostile toward him. Beginning January 23, 2013,
he was wrongly placed on administrative leave for eight months, a situation which exacerbated his
prostate and bone cancers. Appellant alleged that he was placed in a hostile work environment
when he returned to work in August 2013, and that human resource officials stole his military
health records from the mail. Also, a union member stated that appellant belonged in a secured
unit for the mentally unstable. Appellant alleged that a number of employees who had harassed
him had been removed from their jobs or were being investigated.4
Appellant submitted an October 15, 2012 letter to the chief of his workplace in which he
asserted that management officials made misleading statements about his military-connected
health issues, mental health, and fitness for duty. He was subjected to harassment and
discrimination by these officials and the human resources office failed to notify him about
opportunities for advancement. In a November 25, 2012 e-mail, appellant discussed a tort claim
he filed with the Office of General Counsel of the employing establishment alleging that he
received improper medical care for his bladder cancer from a physician who worked for the
employing establishment.
In January 24 and May 6, 2013 e-mails to the then Secretary of the employing
establishment, appellant asserted that a human resources manager at the employing establishment
subjected him to sexual advances and that management illegally removed him from active service.
He generally alleged that he was subjected to harassment after he began working at the employing
establishment.
In a May 24, 2013 statement, a coworker described a meeting on that date with a
supervisor, a union official, and several others. He asserted that a supervisor called appellant
“crazy” and “nuts” and stated that he “could easily be a patient [in 3 Building].” The supervisor
also stated that appellant was “certifiable” and that coworkers felt unsafe around him. In a June 19,
2013 e-mail to the director of the employing establishment, appellant alleged that an unspecified
person used vulgar language to tell him to shut up when he was contacted regarding his return to
duty. He indicated that management officials subjected him to harassment, retaliation,

4
In a separate undated statement, appellant generally alleged that he had suffered numerous acts of discrimination,
harassment, hostility, false accusations and “administrative/managerial harassing actions.”

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discrimination, sexual harassment, privacy violations, civil rights violations, and unfounded
accusations.
Appellant submitted several medical reports of Dr. Aurelian Niculescu, an attending
Board-certified psychiatrist, including an October 8, 2013 report in which he diagnosed major
depressive disorder, generalized anxiety disorder, and anxiety disorder with mixed features of
panic disorder and agoraphobia. Dr. Niculescu posited that these conditions were aggravated by
appellant’s being placed on administrative leave at work.
By decision dated June 9, 2014, OWCP denied appellant’s emotional condition claim
because he failed to establish any compensable employment factors. It found that he had not
submitted sufficient corroborative documentation, such as witness statements or grievance
findings that documented his claims of harassment, discrimination, and other acts of wrongdoing
by the employing establishment.
Appellant appealed his case to the Board and, by decision dated May 12, 2015,5 it affirmed
OWCP’s June 9, 2014 decision. The Board found that appellant failed to meet his burden of proof
to establish an emotional condition in the performance of duty because he failed to establish any
compensable employment factors.
On May 10, 2016 appellant requested reconsideration of his emotional condition claim.
Appellant submitted a November 20, 2014 letter from the chief of police in Canandaigua
who indicated that appellant advised him on January 13, 2013 that he was required to work a tour
of duty and that he found out upon arriving for the tour of duty that no other officers had arrived
for duty.
In a May 18, 2015 statement, a coworker advised that on many occasions he had witnessed
“the misconduct the employing establishment has done to [appellant].” He indicated that on one
occasion he witnessed appellant in a panic after coming out of meeting where the director of the
employing establishment threatened his career and livelihood.
In a May 19, 2015 statement, a former coworker indicated that appellant suffered from
investigations into his complaints which caused him stress and prevented him from performing his
assigned duties at work.
Appellant submitted an undated statement in which he provided additional details about
incidents and conditions at work between mid-2010 and late-2013 that he believed caused his
claimed emotional conditions. He also submitted new reports of Dr. Niculescu from periodic
treatment sessions in 2015.
By decision dated August 4, 2016, OWCP denied appellant’s claim for an employmentrelated emotional condition. It found that appellant failed to establish a compensable employment

5

See supra note 3.

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factor, noting that the witness statements he submitted lacked sufficient detail to establish a
compensable employment factor.
On May 31, 2017 appellant requested reconsideration of OWCP’s August 4, 2016
decision.
Appellant submitted a May 17, 2016 statement in which an employee of the employing
establishment indicated that on May 14, 2016 another employee advised him that appellant was
suspected of making a bomb threat via telephone against the employing establishment premises.
In a statement from August 2016, another employee of the employing establishment discussed
May 2016 bomb threats via telephone against the employing establishment premises, but he did
not mention appellant’s name. Appellant also submitted an August 14, 2015 report from an
attending physician, a January 26, 2017 report from an attending social worker, and a May 23,
2017 report from an attending nurse practitioner.
By decision dated August 29, 2017, OWCP denied modification of its August 4, 2016
decision, noting that appellant failed to establish a compensable employment factor.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.6 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.7
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.8 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors.9
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
6

Lillian Cutler, 28 ECAB 125 (1976).

7

Gregorio E. Conde, 52 ECAB 410 (2001).

8

Pamela R. Rice, 38 ECAB 838, 841 (1987).

9

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

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factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered.10 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.11
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied his emotional condition claim because he
had failed to establish any compensable employment factors. The Board must, thus, initially
review whether these alleged incidents and conditions of employment are compensable
employment factors under the terms of FECA. The Board notes that appellant’s allegations do not
pertain to his regular or specially assigned duties under Cutler.12 Rather, appellant has alleged
error and abuse in administrative matters and harassment and discrimination on the part of his
supervisors.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s June 19, 2014 decision because the Board
has already considered this evidence in its May 12, 2015 decision and found that it failed to
establish a compensable employment factor. Findings made in prior Board decisions are res
judicata absent any further review by OWCP under section 8128 of FECA.13
Appellant has alleged that the employing establishment committed wrongdoing with
respect to administrative/personnel matters, including its investigation into suspicions that he made
a bomb threat to the employing establishment premises. Administrative and personnel matters,
although generally related to the employee’s employment, are administrative functions of the
employer rather than the regular or specially assigned work duties of the employee and are not
covered under FECA.14 However, the Board has held that, where the evidence establishes error or
abuse on the part of the employing establishment in what would otherwise be an administrative
matter, coverage will be afforded.15 In determining whether the employing establishment has erred

10

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

11

Id.

12

See supra note 6.

13

See B.R., Docket No. 17-0294 (issued May 11, 2018).

14

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
556 (1991).
15

William H. Fortner, 49 ECAB 324 (1998).

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or acted abusively, the Board will examine the factual evidence of record to determine whether the
employing establishment acted reasonably.16
The Board finds that appellant did not substantiate any error or abuse committed by the
employing establishment and therefore he did not establish a compensable employment factor with
respect to administrative or personnel matters. Appellant submitted a May 17, 2016 statement in
which an employee of the employing establishment indicated that on May 14, 2016 another
employee advised him that appellant was suspected of making a bomb threat via telephone against
the employing establishment premises. However, this statement does not provide any indication
that the employing establishment committed error or abuse in connection with its investigation of
appellant. The record does not contain the findings of a complaint or grievance showing that
management committed error or abuse with respect to any administrative or personnel matter.17
Appellant has alleged that supervisors subjected him to harassment and discrimination. To
the extent that disputes and incidents alleged as constituting harassment and discrimination by
supervisors and coworkers are established as occurring and arising from appellant’s performance
of his regular duties, these could constitute employment factors.18 The Board has held that
unfounded perceptions of harassment do not constitute an employment factor.19 Mere perceptions
are not compensable under FECA and harassment can constitute a factor of employment if it is
shown that the incidents constituting the claimed harassment actually occurred.20
The Board finds that appellant has not established a compensable employment factor with
respect to the claimed harassment and discrimination.21 Appellant has not submitted probative
evidence establishing such harassment or discrimination. In a May 18, 2015 statement, a coworker
advised that on many occasions he had witnessed “the misconduct the employing establishment
has done to [appellant].” He indicated that on one occasion he witnessed appellant in a panic after
coming out of a meeting where the director of the employing establishment threatened his career
and livelihood. The Board notes that these statements do not establish harassment or
discrimination by management given its lack of specific details. For example, the coworker did
not describe the nature of the “misconduct” to which appellant was subjected or the specific threats
made to appellant’s career and livelihood. In fact, it is unclear from the statement whether the
16

Ruth S. Johnson, 46 ECAB 237 (1994).

17

Appellant submitted a November 20, 2014 letter from the chief of police in Canandaigua who indicated that
appellant advised him on January 13, 2013 that he was required to work a tour of duty and that he found out upon
arriving for the tour of duty that no other officers had arrived for duty. In a May 19, 2015 statement, a former coworker
indicated that appellant suffered from unspecified investigations into his complaints which caused him stress and
prevented him from performing his assigned duties at work. However, these statements lack sufficient detail to
establish any wrongdoing by management with respect to administrative matters.
18

David W. Shirey, 42 ECAB 783, 795-96 (1991).

19

See F.K., Docket No. 17-0179 (issued July 11, 2017).

20

See id.

21

See generally C.T., Docket No. 08-2160 (issued May 7, 2009) (finding that some statements may be considered
abusive and constitute a compensable factor of employment, but that not every statement uttered in the workplace will
be covered by FECA).

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coworker actually witnessed the comments ostensibly made by the director of the employing
establishment or whether he heard them on a secondhand basis from appellant.22
For these reasons, appellant did not establish any compensable employment factors. Given
the Board’s finding on the factual aspect of her case, it is unnecessary to consider the medical
evidence of record.23
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 failed to meet his burden of proof to establish an
emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 29, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 7, 2018
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
22

See S.B., Docket No. 09-1654 (issued July 14, 2010).

23
See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992) (finding that it is not necessary to consider the medical
evidence of record if a claimant has not established any compensable employment factors).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sierra Vista, AZ, Employer
__________________________________________

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

Docket No. 15-1958
Issued: January 28, 2016

Case Submitted on the Record

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

JURISDICTION
On September 25, 2015 appellant filed a timely appeal of a May 20, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
low back injury causally related to the accepted January 2, 2015 employment incident.
FACTUAL HISTORY
On January 22, 2015 appellant, then a 24-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on January 2, 2015 she sustained an injury to her low
back while working when she retrieved a parcel which weighed less than two pounds from a
piece of postal equipment and felt pain in her low back, felt light-headed, and “lost mobility and
1

5 U.S.C. § 8101 et seq.

control” of her body. She included with her claim form a coworker’s statement which repeated
appellant’s description of the occurrence and reported that the coworker drove appellant to the
hospital. The postmaster noted in the supervisor’s portion of the claim form that appellant had
first sought treatment on January 2, 2015. The claim noted that appellant worked Saturday only
and included a checked box to indicate that she had no lost time from work.
OWCP administratively approved appellant’s claim without a formal consideration of the
merits. Appellant’s claim had resulted in no lost time, or minimal lost time, and the employing
establishment did not controvert continuation of pay benefits or limited medical benefits.
On January 2, 2015 appellant was treated at the Sierra Vista Regional Health Center. In a
hospital report of that date, Dr. Warren Gluck, Board-certified in emergency medicine, noted that
she suffered moderate low back pain with acute onset that day when she lifted a package at work.
The pain was noted to increase with movement and was localized over the sacrum. Appellant
denied bladder or bowel incontinence, paresthesia, or paresis. After taking a history and
conducting a physical examination, Dr. Gluck provided pain management with medication. No
other procedures were performed. Appellant was discharged in good condition with instructions
to follow up with her personal physician if her symptoms did not resolve.
Dr. Gluck completed an attending physician’s report (Form CA-20) dated January 2,
2015 and diagnosed appellant with muscle spasm and severe tenderness in her low back. He
determined that she suffered a back strain due to lifting a package at work and referred her for
physical therapy. Dr. Gluck limited appellant’s lifting to no more than 5 pounds for the first
week after her treatment and no more than 20 pounds for the next three weeks. He did not keep
her off work.
On January 5, 2015 Dr. Ashley Price, Board-certified in family medicine, prescribed
physical therapy for appellant.
The record also contains three subsequent duty status reports (Form CA-17) completed
and signed by Dr. Price. The first duty status report dated January 23, 2015 diagnosed back
strain and restricted appellant’s climbing, bending, kneeling, stooping, twisting, pulling or
pushing, reaching above the shoulder, and driving a vehicle. It also referred her for physical
therapy. A subsequent duty status report dated February 27, 2015 provided the same diagnosis
of back sprain, noted that appellant’s restrictions are similar to the prior status report, and noted
that her physical therapy started on February 26, 2015. Finally, a duty status report dated
March 26, 2015 noted muscle spasm in her right lumbar region, mentioned her right thoracic
region, and referenced her ongoing physical therapy. All three duty status form reports have a
box checked by the physician to indicate that appellant had been advised not to return to work
and another box checked to indicate that she could perform her regular work duties with
restrictions.
On January 28, 2015 appellant was offered a light-duty assignment as a 204B Supervisor
of Customer Service working eight hours on Sundays. She accepted the offered employment and
commenced working in the position on February 1, 2015. Appellant’s duties consisted of
monitoring Sunday mail delivery, reviewing reports, and assigning carriers. The assignment met
her medical restrictions and allowed her to sit an average of one hour a day and write an average
of two hours a day.
2

Appellant had a radiologic study on February 6, 2015. A report by Dr. Moises Margolis2
found narrowing of the disc spaces at the L4-5 and L5-S1 levels of her spine. Dr. Margolis
suggested that the narrowing might be a result of degenerative disc disease. He found the rest of
appellant’s lumbar spine within normal limits.
Handwritten physical therapy notes for the period March and April 2015 document
appellant’s back symptoms and the treatment provided. Her pain appears to have waxed and
waned during the period of physical therapy, but she was never pain free.
By letter dated April 9, 2015, OWCP informed appellant that the case had originally been
handled as a minor injury with minimal or no lost time. As the medical expenses had exceeded a
$1,500.00, it explained that it was reopening the claim for a determination on the merits. The
letter listed the information already in file and identified the evidence she needed to provide to
complete her claim. The letter specifically requested a narrative report from appellant’s
attending physician. Appellant was afforded 30 days to submit the requested information.
In response to OWCP’s development letter, appellant submitted additional evidence. She
provided both her own undated statement and a duplicate copy of the statement provided by her
coworker, which was initially included with her claim for compensation. Appellant also
provided a copy of the previously referenced February 6, 2015 radiology report of Dr. Margolis
and additional physical therapy notes dating from April 1 to 29, 2015. The record also reflects
other physical therapy notes received by OWCP.
By decision dated May 20, 2015, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to show a causal connection between the accepted
employment incident and her claimed medical condition. It noted that the medical reports signed
by her treating physician do not state that her medical condition was caused by the work
activities as she described.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3
To determine whether an employee actually sustained an injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components, which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
2

The professional qualifications and specialty certifications of Dr. Margolis, were not available.

3

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

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employment incident or exposure, which is alleged to have occurred.4 The second component is
whether the employment incident caused a personal injury and generally can be established only
by medical evidence.5 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.6
ANALYSIS
There is no dispute that on January 2, 2015 the alleged incident of retrieving a parcel
weighing less than two pounds from a piece of postal equipment occurred. The Board finds,
however, that appellant did not submit sufficient medical evidence to establish that she sustained
a diagnosed medical condition causally related to this incident.
Dr. Gluck, Dr. Price, and Dr. Margolis each qualify as a physician,7 able to offer a
probative opinion on whether appellant’s diagnosed back strain was causally related to the
accepted employment incident on January 2, 2015. However, none of the physicians offered a
rationalized opinion, based on examination findings, with a complete medical and factual
background, explaining how or why lifting a package weighing approximately two pounds and
tossing it to a different location caused her back strain.
Dr. Gluck did not offer an opinion on causal connection in his treatment notes. In an
attending physician’s report (Form CA-17), he noted that appellant “injured back lifting package
at work.” Although Dr. Gluck provided a generalized history as related by appellant, he did not
provide a rationalized opinion as to the cause of her condition. The Board has held that a report
without an opinion as to causal relationship is of little probative value.8
The three handwritten reports by Dr. Price represent a follow up on appellant’s condition
and the progress of her physical therapy treatment. However, they did not contain a rationalized
opinion on the issue of causal connection between the accepted work incident and her back
sprain. The report of Dr. Margolis is merely an interpretation of radiographic testing and offers
no opinion on causal relationship. He mentioned in passing that appellant’s narrowed lumbar
disc spaces may be a sign of degenerative disc disease.
4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

7

5 U.S.C. § 8101(2), D.R., Docket No. 15-0026 (issued February 9, 2015). (The Board explained 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).
8

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).

4

The physical therapy notes included in the record are also insufficient to meet appellant’s
burden of proof on the issue of causation. The physical therapy notes are not relevant evidence
because they are not the opinions of a physician.9 Consequently, the Board finds that appellant
has submitted insufficient medical evidence to meet her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish a low back
injury causally related to the accepted January 2, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 20, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 28, 2016
Washington, DC

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

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

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

9

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brandon, FL, Employer
__________________________________________

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

Docket No. 19-0290
Issued: June 18, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 20, 2018 appellant, through counsel, filed a timely appeal from an
October 12, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than 15 percent
permanent impairment of her right upper extremity for which she previously received a schedule
award.
FACTUAL HISTORY
OWCP accepted that on May 28, 2015 appellant, then a 63-year-old city carrier assistant,
sustained a right shoulder and upper arm acromioclavicular (AC) sprain as a result of picking up
a case of flats to load into her delivery vehicle while in the performance of duty.
In medical reports dated September 1, 2015, Dr. Stuart A. Goldsmith, an attending
orthopedic surgeon, noted that he had been treating appellant since her May 2015 right shoulder
injury. He indicated her current complaint of right and left shoulder pain. Dr. Goldsmith reported
examination findings, which included normal range of motion (ROM) of the cervical spine,
shoulders, elbows, wrists, and fingers. Appellant had pain in her left shoulder in the subacromial
region and with abduction and external rotation. The neurovascular status was normal. The
peripheral pulses were intact. There were no signs of instability demonstrated. Dr. Goldsmith
discussed the findings of shoulder x-rays. He provided a clinical impression of impingement
syndrome with sprain/strain and addressed appellant’s light-duty work restrictions. On October 1,
2015 Dr. Goldsmith noted that her right shoulder was better, but she had left shoulder pain. He
related that his physical examination did not demonstrate any true weakness or stiffness.
Dr. Goldsmith reported that appellant felt that she could not move her arm. He related, however,
that there was really nothing further for him to offer her now four months after her injury.
Dr. Goldsmith found that appellant had bilateral shoulder pain. He assessed her as having stable
unspecified rotator cuff tear/rupture of the unspecified shoulder, not trauma. Dr. Goldsmith
determined that appellant had reached maximum medical improvement (MMI). He concluded that
she had zero percent permanent impairment.
On December 9, 2015 appellant filed a claim for a schedule award (Form CA-7).3
OWCP subsequently received a medical report dated January 7, 2016 by Dr. Samy F.
Bishai, an orthopedic surgeon. Dr. Bishai noted a history of the accepted May 28, 2015
employment injury and appellant’s medical treatment. He indicated that she presented
complaining of a great deal of pain and restricted and limited ROM of her right and left shoulders.
On physical examination the right shoulder Dr. Bishai reported tenderness overlying the anterior,
lateral, and posterior aspects of the right shoulder joint. He also reported ROM measurements,
which included 80 degrees of flexion, 10 degrees of extension, 80 degrees of abduction, 15 degrees
of adduction, 40 degrees of external rotation, and 15 degrees of internal rotation. Dr. Bishai
reviewed right shoulder magnetic resonance imaging scan results. He diagnosed internal
derangement, rotator cuff syndrome, and degenerative arthritis of the AC joint of the right shoulder
joint and impingement syndrome of the right shoulder. Dr. Bishai determined that appellant had
reached MMI on the date of his examination. He evaluated her right shoulder permanent
3
A Notification of Personnel Action (PS Form 50) indicated that appellant voluntarily resigned from the employing
establishment effective February 11, 2016.

2

impairment using the ROM rating methodology found in Table 15-34, 475 of the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).4 Dr. Bishai found that 80 degrees of flexion yielded nine percent impairment, 10 degrees
of extension yielded two percent permanent impairment, 80 degrees of abduction yielded six
percent impairment, 15 degrees of adduction yielded one percent impairment, 15 degrees of
internal rotation yielded four percent impairment, and 40 degrees of external rotation yielded two
percent impairment. He added these impairment ratings to conclude that appellant had 24 percent
permanent impairment of the right upper extremity due to her accepted May 28, 2015 employment
injury.
On July 13, 2016 OWCP routed Dr. Bishai’s report, a statement of accepted facts (SOAF),
and the case file to Dr. Jovito Estaris, a physician Board-certified in occupational medicine serving
as an OWCP district medical adviser (DMA), for review to determine whether appellant sustained
permanent impairment of her accepted conditions and date of MMI in accordance with the sixth
edition of the A.M.A., Guides.
In a July 20, 2016 report, Dr. Estaris recommended an independent medical examination
based on the marked difference between the ROM findings and impairment ratings of
Dr. Goldsmith and Dr. Bishai.
On December 13, 2016 QTC Medical Services, OWCP’s scheduler, referred appellant,
together with a SOAF, the medical record, and a set of questions, to Dr. Glenn L. Scott, a Boardcertified orthopedic surgeon, for a second opinion regarding the extent of her employment-related
right upper extremity permanent impairment.
In a January 3, 2017 impairment evaluation, Dr. Scott related a history of the accepted
May 28, 2015 employment injury and appellant’s medical treatment. He discussed her complaints
of continued pain and stiffness in the right shoulder, particularly with stress at limits of motion and
with strenuous or repetitive exercise. On examination of the right shoulder Dr. Scott reported
tenderness to palpation over the AC joint and directly over the acromion. He found that appellant
was able to initiate and hold abduction against resistance, although she complained about pain in
doing so. Dr. Scott further found no significant difference in response to either the full can or
empty can test and no indication of instability about the shoulder. The right AC joint was mildly
hypertrophic with tenderness over the bicipital groove distally. Dr. Scott measured ROM on
several repetitions to better establish accurate range and found 95 degrees of flexion, 15 degrees
of extension, 80 degrees of abduction, 20 degrees of adduction, 65 degrees of external rotation,
and 35 degrees of internal rotation. He noted some guarding at times that was inconsistent.
Dr. Scott provided impressions of right AC arthritis and impingement, rotator cuff and biceps
tendinosis, traumatic aggravation of the above conditions, and adhesive capsulitis. He determined
that appellant had reached MMI. Dr. Scott opined that she had preexisting AC arthritis probably
with some degree of impingement, although there was no history of any previous injury or prior
treatment and the conditions upon which her impairment were based secondary to traumatic
aggravation of these conditions and causally related to the workplace injury in question. He
evaluated appellant’s right shoulder permanent impairment using the ROM rating methodology
4

A.M.A., Guides (6th ed. 2009).

3

found in Table 15-34, 475 of the sixth edition of the A.M.A., Guides. Dr. Scott determined that
95 degrees of flexion represented 3 percent impairment, 15 degrees of extension represented
2 percent impairment, 80 degrees of abduction represented 9 percent impairment, 20 degrees of
adduction represented 1 percent permanent impairment, 65 degrees of external rotation represented
0 percent impairment, and 35 degrees of internal rotation represented 4 percent permanent
impairment, totaling 20 percent permanent impairment of the right upper extremity. He advised
that the prominent difference in ROM noted on examinations by Dr. Goldsmith and later by
Dr. Bishai were related to the onset of adhesive capsulitis in the interim which persisted at the
present time.
On August 14, 2017 Dr. Estaris, the DMA, again reviewed the medical evidence of record,
including the reports of Dr. Bishai and Dr. Scott. He noted that the diagnosis-based impairment
(DBI) methodology of the A.M.A., Guides was not applicable in this case. Dr. Estaris advised that
the diagnoses of impingement syndrome and partial rotator cuff tear could not be used as the
criteria for the classes in these diagnosis required normal motion which was not found in this case.
He indicated that Dr. Scott had measured ROM several times, but only mentioned one set of
measurements in his report. Dr. Estaris also indicated that Dr. Scott’s ROM measurements did not
follow the recommendation of the A.M.A., Guides to round numbers ending in zero either up or
down. He evaluated appellant’s right shoulder permanent impairment using the ROM rating
methodology found in Table 15-34, page 475. Dr. Estaris found that 100 degrees of flexion yielded
3 percent impairment, 80 degrees of abduction yielded 6 percent impairment, 20 degrees of
extension yielded 1 percent impairment, 20 degrees of adduction yielded 1 percent impairment,
40 degrees of internal rotation yielded 4 percent impairment, and 70 degrees of external rotation
yielded 0 percent impairment, totaling 15 percent right upper extremity permanent impairment.
He noted that, under Table 15-35, page 477, the ROM grade modifier was grade 2. Dr. Estaris
assigned a grade modifier 2 for functional history adjustment due to pain on normal activity under
Table 15-7, page 406. He referenced Table 15-36, page 477 for functional history grade
adjustment for ROM. Dr. Estaris explained that, since the modifiers were both two, they were
equal and there was no change. He concluded that appellant had 15 percent permanent impairment
of her right upper extremity. Dr. Estaris determined that she had reached MMI on January 3, 2017,
the date of Dr. Scott’s impairment evaluation.
OWCP, by decision dated September 28, 2017, granted appellant a schedule award for
15 percent permanent impairment of the right arm based on the opinion of Dr. Estaris. The period
of the award ran for 46.8 weeks from January 3 to November 26, 2017.
On October 12, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
By decision dated January 10, 2018, an OWCP hearing representative set aside OWCP’s
September 28, 2017 decision and remanded the case for further development. He found that the
acceptance of appellant’s claim should be expanded to include right shoulder adhesive capsulitis,
aggravation of AC joint arthritis, shoulder impingement, and rotator cuff and bicep tendinitis based
on Dr. Scott’s report. The hearing representative further found that, as her accepted conditions
could alternatively be rated using the DBI methodology, OWCP should undertake further
development in compliance with FECA Bulletin No. 17-06.

4

On January 12, 2018 OWCP expanded the acceptance of appellant’s claim to include
primary osteoarthritis, adhesive capsulitis, impingement syndrome, and bicipital tendinitis of the
right shoulder.
In a report dated January 23, 2018, Dr. Estaris again reviewed the medical evidence and a
revised SOAF. He provided a DBI impairment rating of four percent permanent impairment citing
to Table 15-5, page 402 of the sixth edition of the A.M.A., Guides, for a diagnosis of right shoulder
rotator cuff tendinitis. Dr. Estaris noted that appellant’s diagnosis of right shoulder rotator cuff
tendinitis equated to a class 1 impairment with a default value of three for residual loss, functional,
and moderate motion deficit. Utilizing Table 15-7, page 406, he assigned a grade modifier 1 for
functional history (GMFH) due to pain on increased activity and stiffness of shoulder. Utilizing
Table 15-8, page 408, Dr. Estaris assigned a grade modifier 2 for physical examination (GMPE)
due to moderate limitation of ROM (total motion deficit of 20 percent). He noted that a grade
modifier for clinical studies (GMCS) was not applicable. Applying the net adjustment formula,
Dr. Estaris subtracted 1, the numerical value of the class, from the numerical value of the grade
modifier for each applicable component (functional history and physical examination) and then
added those values, resulting in a net adjustment of 1 ((1-1) + (2-1)).5 Application of the net
adjustment formula meant that movement was warranted one place to the right of class 1 default
value grade C to grade D or four percent permanent impairment based on Table 15-5, page 402.
Therefore, the DBI methodology of rating of permanent impairment for appellant’s right shoulder
rotator cuff tendinitis amounted to four percent of the right upper extremity. Dr. Estaris also
evaluated her permanent impairment under the ROM methodology found in Table 15-34 on page
475. He found that appellant’s flexion of 100 (95) degrees yielded 3 percent permanent
impairment, 20 (15) degrees of extension yielded 1 percent permanent impairment, 80 degrees of
abduction yielded 6 percent permanent impairment, 20 degrees of adduction yielded 1 percent
permanent impairment, 40 (35) degrees of internal rotation yielded 4 percent permanent
impairment, and 70 (65) degrees of external rotation yielded 0 percent permanent impairment,
totaling 15 percent right upper extremity permanent impairment. Dr. Estaris utilized Tables 1535 and 15-36, page 477, and assigned a grade modifier 2 for 15 percent permanent ROM
impairment. He noted that the grade modifier 1 for functional history was less than the ROM
grade modiﬁer. Dr. Estaris related that there was no change and, thus, concluded that appellant
had 15 percent right upper extremity permanent impairment, based on the higher ROM method.
He explained that the difference between his 15 percent right upper extremity impairment rating
and Dr. Scott’s 20 percent right upper extremity impairment rating was Dr. Scott’s error in
assigning impairment for abduction and extension. Dr. Estaris noted that, under Table 15-34, page
475, 20 to 80 degrees of abduction represented six percent impairment and not nine percent
impairment as found by Dr. Scott. He further noted that measured extension was 15 degrees which
he rounded up to 20 degrees. Dr. Estaris indicated that 20 degrees of extension was not contained
in Table 15-34. He maintained that Dr. Scott’s use of a two percent impairment rating for
extension was not an appropriate finding for 20 degrees of extension. Dr. Estaris related that his
use of a one percent impairment rating was the more appropriate number. He noted that the
measured ROM was closer to 30 degrees. Dr. Estaris reiterated that the date of MMI was
January 3, 2017.

5

Id. at 411.

5

By decision dated February 23, 2018, OWCP denied appellant’s claim for an increased
schedule award based on Dr. Estaris’ January 23, 2018 assessment.
On March 5, 2018 counsel, on behalf of appellant, requested a telephonic hearing before
an OWCP hearing representative, which was held on August 16, 2018.
By decision dated October 12, 2018, a second OWCP hearing representative affirmed the
February 23, 2018 schedule award decision. He found that the weight of the medical evidence
rested with Dr. Estaris’ January 23, 2018 report and established that appellant had no more than
15 percent permanent impairment of the right upper extremity.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing federal regulations7 set forth
the number of weeks of compensation payable to employees sustaining permanent impairment
from loss or loss of use, of scheduled members, functions, and organs of the body. FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.8 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).10 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.11
The sixth edition requires identifying the impairment class for the class of diagnosis
(CDX), which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE), and clinical studies (GMCS).12 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).13

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

9

Id.

10
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a
(March 2017).
11

Isidoro Rivera, 12 ECAB 348 (1961).

12

A.M.A., Guides 383-492.

13

Supra note 5.

6

Regarding the application of the ROM or DBI methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. [If the
[A.M.A.,] Guides allow for the use of both the DBI and ROM methods to calculate
an impairment rating for the diagnosis in question, the method producing the
higher rating should be used.”] (Emphasis in the original.)14
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”15
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.16
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than 15
percent permanent impairment of her right upper extremity for which she previously received a
schedule award.
OWCP received a January 7, 2016 report from Dr. Bishai, an attending physician, who
opined that appellant had 24 percent right upper extremity permanent impairment based on the
loss of ROM methodology for the evaluation of permanent impairment. In a January 3, 2017
report, Dr. Scott, an OWCP referral physician, also used the ROM methodology for calculating
appellant’s 20 percent right upper extremity permanent impairment. However, neither physician

14

FECA Bulletin No. 17-06 (issued May 8, 2017).

15

Id.

16

See supra note 10 at Chapter 2.808.6(e) (March 2017).

7

provided three sets of ROM measurements as provided in FECA Bulletin No. 17-06.17 As a result,
the reports of Dr. Bishai and Dr. Scott do not comply with the A.M.A., Guides and their reports
are of limited probative value.18
The Board finds that Dr. Estaris, OWCP’s DMA, properly determined that appellant had
no more than 15 percent permanent impairment of her right upper extremity. Utilizing the ROM
methodology found in Table 15-34, page 475 of the Guides, Dr. Estaris found that 100 (95) degrees
of flexion represented 3 percent impairment, 20 (15) degrees of extension represented 1 percent
impairment, 80 degrees of abduction represented 6 percent impairment, 20 degrees of adduction
represented 1 percent permanent impairment, 40 (35) degrees of internal rotation represented
4 percent impairment, and 70 (65) degrees of external rotation represented 0 percent impairment,
totaling 15 percent right upper extremity permanent impairment. He explained that the difference
between his 15 percent impairment rating and Dr. Scott’s 20 percent impairment rating was due to
Dr. Scott’s error in assigning impairment ratings for loss of abduction and extension. Dr. Estaris
noted that, according to Table 15-34 on page 475, 20 to 80 degrees of abduction represented six
percent impairment and not nine percent impairment as found by Dr. Scott. He further noted that
he rounded up the measured extension of 15 degrees to 20 degrees while Dr. Scott’s finding of
20 degrees of extension was not contained in Table 15-34. Dr. Estaris maintained that his finding
of one percent impairment for loss of extension, rather than Dr. Scott’s two percent impairment
was appropriate as the measured ROM was closer to 30 degrees. Furthermore, he provided a DBI
impairment rating of four percent permanent impairment for appellant’s diagnosis of right shoulder
rotator cuff tendinitis. Dr. Estaris found that the diagnosis of right shoulder rotator cuff tendinitis
under Table 15-5, page 402, yielded a class 1 impairment with a default value of three for residual
loss, functional, and moderate motion deficit. He assigned grade modifiers for functional history
(GMFH 1)19 and physical examination (GMPE 2),20 and the net adjustment (1) resulted in a change
from the default value of one percent (grade C) to four percent (grade D) permanent impairment
of the right upper extremity.21 Dr. Estaris explained that the ROM rating resulted in the greater
percentage of permanent impairment than the DBI rating and, under the A.M.A., Guides, the
method producing the higher rating must be used. He concluded that this resulted in 15 percent
right upper extremity permanent impairment based upon the ROM rating method.
The Board finds that appellant has not established more than 15 percent permanent
impairment of her right upper extremity, for which she previously received a schedule award.
On appeal counsel contends that OWCP’s October 12, 2018 decision is contrary to fact and
law. For the foregoing reasons, the Board finds that the weight of the medical evidence establishes

17

Supra note 14.

18

See S.R., Docket No. 18-1307 (issued March 27, 2019).

19

A.M.A., Guides 406, Table 15-7.

20

Id. at 408, Table 15-8.

21
Net Adjustment (1) (GMFH 2 - CDX 1) + (GMPE 1 - CDX 1). See Section 16.3d, A.M.A., Guides 518-21
(6th ed. 2009).

8

that appellant had no more than 15 percent permanent impairment of her right upper extremity for
which she received a schedule award.
Appellant may request a schedule award or an increased schedule award at any time based
on evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 15
percent permanent impairment of her right upper extremity for which she previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 12, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 18, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rochester, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Docket No. 09-512
Issued: October 2, 2009

Appearances:
Robert R. Snashall, Esq., for the appellant
Office of Solicitor, for the Director

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 December 15, 2008 appellant filed a timely appeal from May 19 and September 19,
2008 merit decisions of the Office of Workers’ Compensation Programs terminating her
compensation and medical benefits and denying her claim for consequential injuries. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this appeal.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits effective April 18, 2008 on the grounds that she no longer had any residuals or disability
causally related to her employment-related injuries; and (2) whether appellant has established
that she sustained a shoulder or neck condition as a consequence of her accepted injury.
On appeal, appellant’s representative does not contest that the evidence established that
appellant’s accepted conditions had resolved by April 18, 2008. However, he contends that the
evidence establishes that appellant sustained injuries to her neck and shoulder as a result of the
accepted incident.

FACTUAL HISTORY
In a March 11, 2008 traumatic injury claim, appellant, then a 51-year-old letter carrier,
alleged that she sustained injuries to her head, torso and upper extremities when she slipped and
fell on the ice while delivering mail on March 10, 2008. The Office accepted her claim for
concussion without loss of consciousness; contusions of the chest wall and left elbow; and a
black eye.
Appellant was treated by Dr. George W. Anstadt, Board-certified in the area of
occupational medicine. In a report dated March 10, 2008, Dr. Anstadt stated that appellant
injured her left knee, left elbow and left eyebrow when she slipped on the ice and fell on that
date. In March 10, 2008 progress notes, he diagnosed resolved closed head injury and indicated
that appellant was experiencing left shoulder pain due to the impact of the fall, from the elbow
through the shoulder. Dr. Anstadt recommended a magnetic resonance imaging (MRI) scan to
rule out a glenoid tear. On March 14, 2008 he noted that appellant’s condition had improved
significantly, except for a left shoulder contusion and tenderness in the left anterior ribs.
Dr. Anstadt found full range of motion (ROM) and strength in the left shoulder.
In an April 18, 2008 report, Dr. Anstadt opined that all of appellant’s injury-related
conditions had resolved, but for persistent discomfort and clicking in the left shoulder.
Examination revealed a nontender spine, with normal ROM without discomfort; no ecchymosis
of the face; and normal ROM in the left knee and elbow. On examination of the left shoulder,
Dr. Anstadt found full range of motion with pain on abduction; mild anterior and moderate
posterior glenoid tenderness; mild tenderness in the supraspinatus portion of the rotator cuff; and
mild tenderness in the trapezius. He recommended an MRI scan to rule out a glenoid tear and
provided work restrictions which precluded lifting more than 15 pounds due to left shoulder
pain.
On May 9, 2008 Dr. Anstadt stated that appellant had no pain or tenderness in her ribs,
spine or knees; however, she was experiencing mild supraspinatus tenderness in the left rotator
cuff area. He stated that the acromioclavicular (AC) joint discomfort was the only significant
residual of appellant’s complex injury. Dr. Anstadt indicated that appellant could work eight
hours with restrictions, which included no lifting, pushing or pulling more than 10 pounds. The
record contains a report of a May 15, 2008 MRI scan of the left shoulder, reflecting the absence
of a rotator cuff or labial tear and a preexisting mild hypertrophic change at the AC joint, with
lateral acromial downsloping.
In a decision dated May 19, 2008, the Office terminated appellant’s compensation and
medical benefits effective April 18, 2008 on the grounds that her accepted conditions had
resolved as of that date. It noted that it had not accepted a shoulder condition and that the
evidence did not establish that her claimed shoulder condition was causally related to the
accepted injury.
In a May 23, 2008 report, Dr. Anstadt diagnosed a resolving left shoulder AC sprain. He
stated that the shoulder sprain was previously masked by other injuries, including a C6 left-sided
disc herniation. Dr. Anstadt’s examination revealed full shoulder ROM and a nontender left
rotator cuff.

2

In a narrative report dated May 23, 2008, Dr. Anstadt stated that appellant did not have
shoulder pain at the time of her March 10, 2008 injury. However, appellant had a significant
chest wall injury, which limited the use and motion of her left arm and led to a condition similar
to a frozen shoulder. She began experiencing left shoulder pain several weeks after the accepted
injury when she began trying to use her left arm. Dr. Anstadt opined that the left shoulder injury
was causally related to her accepted fall.
On June 16, 2008 appellant requested reconsideration. She alleged that she developed
left shoulder pain due to elbow impact and chest wall compression resulting from the accepted
injury.
In an undated report received by the Office on June 23, 2008, Dr. Todd Stein, an
orthopedic surgeon, diagnosed rotator cuff sprain and tenderness. He stated that appellant had
injured her left knee, chest wall and elbow when she fell at work on March 10, 2008.
Examination revealed shoulder stiffness, weakness and mild tenderness. Dr. Stein opined that
appellant’s shoulder pain was due to the March 10, 2008 fall, and that the stiffness was
secondary to disuse resulting from injury-related pain.
Appellant submitted reports from Dr. Anstadt for the period May 23 through
July 7, 2008. On May 23, 2008 Dr. Anstadt stated that appellant’s left shoulder injury was
resolving. He indicated that he realized for the first time on that date that appellant probably had
C6-7 disc herniation with C7 radiculopathy. On May 30, 2008 Dr. Anstadt stated that
appellant’s March 10, 2008 work injury was the cause of her left shoulder AC joint strain and her
left-sided disc herniation with nerve root compression. On June 20, 2008 he opined that
appellant’s left shoulder and neck conditions had essentially resolved, although she experienced
left arm pain at times. On July 11, 2008 Dr. Anstadt released appellant to regular duty. He
diagnosed left rotator cuff sprain and stated that appellant continued to experience left shoulder
pain and stiffness. Dr. Anstadt indicated by placing a checkmark in the “yes” box, that
appellant’s shoulder condition was causally related to her employment. He opined that
appellant’s cervical disc, head, rib and left knee conditions had resolved.
The record contains physical therapy notes for the period May 9 through July 28, 2008.
The record also contains a May 5, 2008 MRI scan report.
In a decision dated September 19, 2008, the Office denied modification of its May 19,
2008 decision. It found that the medical evidence established that appellant’s accepted
conditions had resolved as of April 18, 2008. The Office further found that the evidence was
insufficient to establish that the accepted injury caused or aggravated appellant’s cervical or left
shoulder condition.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.1 After it has determined that an employee has disability
causally related to her federal employment, the Office may not terminate compensation without
1

Harold S. McGough, 36 ECAB 332 (1984).

3

establishing that the disability has ceased or that it is no longer related to the employment.2 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.3
As used in the Act, the term “disability” means incapacity because of an injury in
employment to earn the wages the employee was receiving at the time of the injury, i.e., a
physical impairment resulting in loss of wage-earning capacity. The general test in determining
loss of wage-earning capacity is whether the employment-resulted impairment prevents the
employee from engaging in the kind of work she was doing when she was injured.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.5 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition, which requires further medical treatment.6
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to establish that appellant was no
longer disabled and that her accepted conditions had resolved by April 18, 2008. Therefore, the
Office properly terminated appellant’s compensation and medical benefits.
The evidence reflects that appellant was not disabled as of April 18, 2008. The Office
accepted appellant’s claim for concussion without loss of consciousness, contusions of the chest
wall and left elbow and a black eye. The medical evidence of record submitted prior to the
May 19, 2008 decision consisted of MRI scan reports and reports from appellant’s treating
physician. On April 18, 2008 Dr. Anstadt reviewed the history of injury and treatment and
opined that all of appellant’s accepted conditions had resolved. He provided detailed
examination findings supporting his conclusion. Dr. Anstadt’s report does not reflect that
appellant was disabled; rather, he opined that appellant was able to work with minimal
restrictions due to left shoulder pain, namely that she lift no more than 15 pounds. Follow-up
reports through May 9, 2008 also reflect his opinion that appellant was able to work eight hours
per day with restrictions. The Board notes that the restrictions imposed were not causally related
to appellant’s accepted condition, but rather were related to a shoulder condition. Therefore, any
inability to perform the duties of her date-of-injury job resulting from her shoulder condition
would not be considered “disability” under the Act.7

2

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
3

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

4

Frazier V. Nichols, 37 ECAB 528 (1996).

5

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

6

Wiley Richey, 49 ECAB 166 (1997); Furman G. Peake, supra note 5.

7

See Frazier V. Nichols, supra note 4.

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The Board finds that Dr. Anstadt’s April 18, 2008 well-rationalized report represents the
weight of medical evidence and establishes that appellant was no longer disabled due to her
accepted injury as of April 18, 2008. Appellant did not submit any medical reports from a
physician who, on the basis of a complete and accurate factual and medical history, concluded
that she was totally disabled as of April 18, 2008 due to residuals of her accepted injury.
The evidence also establishes that appellant’s accepted conditions had fully resolved as of
Dr. Anstadt’s April 18, 2008 examination. Dr. Anstadt’s findings revealed a nontender spine,
with normal ROM without discomfort; no ecchymosis of the face; and normal ROM in the left
knee and elbow. He opined that all of appellant’s injury-related conditions had resolved, but for
persistent discomfort and clicking in the left shoulder. Dr. Anstadt noted shoulder pain on
abduction; mild anterior and moderate posterior glenoid tenderness; mild tenderness in the
supraspinatus portion of the rotator cuff; and mild tenderness in the trapezius. He recommended
an MRI scan to rule out a glenoid tear and provided work restrictions which precluded lifting
more than 15 pounds due to left shoulder pain. On May 9, 2008 Dr. Anstadt stated that the only
significant residual from her accepted injury was AC joint discomfort. However, as appellant’s
claim was not accepted for a shoulder condition, associated pain and work restrictions to
accommodate the shoulder condition are not injury related. Moreover, the record does not
contain a medical report received prior to the Office’s termination of benefits which explains
how appellant’s shoulder condition was causally related to the accepted injury. As the evidence
establishes that appellant no longer suffered residuals from her accepted employment injury, the
Board finds that the Office properly terminated her medical benefits.8
LEGAL PRECEDENT -- ISSUE 2
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.
Once the work-connected character of any injury has been established, the subsequent
progression of that condition remains compensable so long as the worsening is not shown to
have been produced by an independent nonindustrial cause and so long as it is clear that the real
operative factor is the progression of the compensable injury, associated with an exertion that in
itself would not be unreasonable under the circumstances.9
Proceedings under the Act are not adversarial in nature, and while the claimant has the
burden of establishing entitlement to compensation, the Office shares responsibility in the
development of the evidence to see that justice is done.10
8

The Board notes that the Office terminated appellant’s benefits without having provided notice of an intent to
terminate. However, Office procedures provide that notice is not required to terminate benefits if the claim has not
been placed on the periodic rolls. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter
2.1400.6(c) (March 1997).
9

See Robert J. Wescoe, 54 ECAB 162 (2002).

10

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, 53 ECAB 430 (2002); Dorothy L.
Sidwell, 36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

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ANALYSIS -- ISSUE 2
The Office accepted appellant’s claim for concussion without loss of consciousness,
contusions of the chest wall and left elbow and a black eye. Although he stated that appellant’s
accepted conditions had resolved as of April 18, 2008, Dr. Anstadt opined that appellant
developed shoulder and neck conditions as a result of her chest wall and elbow injuries. The
Board has held that, when the primary injury is shown to have arisen out of and in the course of
employment, every natural consequence that flows from the injury is deemed to arise out of the
employment, unless it is the result of an independent intervening cause which is attributable to
the employee’s own intentional conduct.11 The Board finds that this case is not in posture for
decision regarding whether appellant sustained a shoulder or neck condition as a consequence of
her accepted injury.
The medical evidence of record, which consisted primarily of reports from appellant’s
treating physician, supports appellant’s claim that her shoulder and neck conditions were
causally related to the accepted injury. On March 14, 2008 four days after the date of injury,
Dr. Anstadt noted that appellant had a left shoulder contusion. In his April 18, 2008 report, he
opined that all of appellant’s injury-related conditions had resolved, but for persistent discomfort
and clicking in the left shoulder. Dr. Anstadt provided examination findings and recommended
an MRI scan to rule out a glenoid tear. On May 9, 2008 he stated that appellant was
experiencing mild supraspinatus tenderness in the left rotator cuff area and opined that the AC
joint discomfort was the only significant residual of her complex injury. While these reports do
not address causal relationship, they do reflect the existence of a shoulder condition immediately
following the accepted injury.
On May 23, 2008 Dr. Anstadt diagnosed a resolving left shoulder AC sprain. He stated
that, as the shoulder sprain was previously obfuscated by other injuries, including a C6 left-sided
disc herniation, it was unrecognized. Dr. Anstadt indicated that appellant did not have shoulder
pain at the time of her March 10, 2008 injury. However, appellant had a significant chest wall
injury, which limited the use and motion of her left arm and led to a condition similar to a frozen
shoulder. She began experiencing left shoulder pain several weeks after the accepted injury
when she began trying to use her left arm. Dr. Anstadt opined that the left shoulder injury was
causally related to her accepted fall. On May 30, 2008 he stated that appellant’s March 10, 2008
work injury was the cause of her left shoulder AC joint strain and her left-sided disc herniation
with nerve root compression. On July 11, 2008 Dr. Anstadt diagnosed left rotator cuff sprain
and indicated by placing a checkmark in the “yes” box, that appellant’s shoulder condition was
causally related to her employment. The Board has previously found that a report that addresses
causal relationship with a checkmark, without a medical rationale explaining how the work event
caused the alleged injury, is of diminished probative value and is insufficient to establish causal
relationship.12 However, in this case, the opinion expressed by the physician is supported by his
treatment of appellant’s injuries and is consistent with the opinion expressed in previous reports.

11

See Robert J. Wescoe, supra note 9.

12

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

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Dr. Stein diagnosed rotator cuff sprain and tenderness, stating that appellant had injured
her left knee, chest wall and elbow when she fell at work on March 10, 2008. Examination
revealed shoulder stiffness, weakness and mild tenderness. Dr. Stein opined that appellant’s
shoulder pain was due to the March 10, 2008 fall, and that the stiffness was secondary to disuse
resulting from injury-related pain. While he did not provide sufficient rationale for his opinion,
his report provides support for appellant’s claim that her shoulder condition was caused by the
March 10, 2008 accepted injury.
The Board notes that, while none of the reports of appellant’s attending physicians is
completely rationalized, they are consistent in indicating that her shoulder and neck conditions
were causally related to her accepted injury, and are not contradicted by any substantial medical
or factual evidence of record. While the reports are not sufficient to meet her burden of proof to
establish her claim, they raise an uncontroverted inference between appellant’s claimed
conditions and the accepted employment incident, and are sufficient to require the Office to
further develop the medical evidence and the case record.13 On remand the Office shall obtain a
rationalized opinion from a qualified physician as to whether appellant’s shoulder and neck
conditions are causally related to the accepted incident, and shall issue an appropriate decision in
order to protect her rights of appeal.
Appellant’s representative contends that Dr. Anstadt’s failure to identify the shoulder and
neck condition immediately following the accepted event should not be reason to deny expansion
of appellant’s claim. The Board agrees that a delayed diagnosis is not determinative, particularly
if the conditions were consequential to the original accepted conditions. However, the medical
evidence of record is presently insufficient to make such a determination and requires further
development.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective April 18, 2008 on the grounds that she no longer had any residuals or disability causally
related to her accepted employment injuries. The Board further finds that the case is not in
posture for a decision as to whether appellant developed a neck or shoulder condition as a
consequence of her accepted injury.

13

See Virginia Richard, supra note10; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone,
41 ECAB 354 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 19 and May 19, 2008 decisions are affirmed in part and set aside in part. The case is
remanded to the Office for action consistent with the terms of this decision.
Issued: October 2, 2009
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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