United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bell, CA, Employer
__________________________________________

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

Docket No. 19-1075
Issued: February 10, 2021

Case Submitted on the Record

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

JURISDICTION
On April 16, 2019 appellant filed a timely appeal from a March 12, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 12, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period October 16, 2017 through July 10, 2018 causally related to her accepted January 27,
2017 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On January 27, 2017 appellant, then a 59-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging an injury on that date when a box fell on her back while she was in
the performance of duty. On March 10, 2017 OWCP accepted her claim for strain of muscle,
fascia, and tendon at the neck level, and strain of muscle, fascia, and tendon at the right
shoulder/upper arm level. Appellant did not stop work, but she began working in a full-time
modified position without wage loss.5
In August 24, 2017 reports, Dr. Aaron Coppelson, a Board-certified orthopedic surgeon,
diagnosed several cervical and left shoulder conditions and indicated that appellant could perform
modified work with limited use of her left upper extremity, no overhead work, and lifting, pushing,
or pulling no more than 10 pounds. In October 5, 2017 reports, he advised that she was able to
maintain the same work status as delineated in his August 24, 2017 report.
On October 16, 2017 appellant began working in a modified mail handler position with the
employing establishment for four hours per day. The position involved walking around the
workplace to count mail and check mail quality. Appellant was restricted from lifting, pushing,
or pulling more than 10 pounds and from performing overhead work. She was allowed to sit and
prop up her arm under a pillow as needed.
On October 19, 2017 Dr. Coppelson advised that appellant’s work status should remain the
same.
On October 30, 2017 appellant filed a claim for compensation (Form CA-7) claiming
wage-loss compensation benefits for four hours each workday for the period October 16
through 27, 2017 due to disability caused by her January 27, 2017 employment injury.6
In support of her disability claim, appellant subsequently submitted November 16 and
December 14, 2017 reports from Dr. Coppelson, who continued to indicate that her work status
should remain the same. In November 20, 2017 reports, Dr. David Barba, a Board-certified
4

Docket No. 18-0672 (issued August 7, 2018).

5

OWCP initially administratively handled appellant’s claim to allow for payment of a limited amount of medical
expenses and it did not formally consider her claim until it issued its March 10, 2017 decision.
6
Appellant later filed additional claims for wage-loss compensation benefits, which collectively covered the period
October 28, 2017 through July 10, 2018.

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orthopedic surgeon, advised that she was restricted from lifting, pushing, or pulling more than 10
pounds and from engaging in overhead work. In December 11, 2017 reports, he indicated that
appellant could perform limited overhead work.
By decision dated December 27, 2017, OWCP found that appellant had not met her burden
of proof to establish disability from work commencing October 16, 2017, causally related to her
accepted January 27, 2017 employment injury. Appellant appealed to the Board and, by decision
dated August 7, 2018,7 the Board affirmed the December 27, 2017 decision.
In a December 17, 2018 letter received by OWCP on December 20, 2018 appellant,
through counsel, requested reconsideration of OWCP’s denial of her claim for disability.
Appellant subsequently submitted January 22, 2018 form reports from Dr. Barba who
diagnosed cervicalgia and advised that she could return to work without restrictions. Dr. Barba
noted that appellant’s medical condition had improved since her last examination and indicated
that he was referring her for pain management to address her neck pain.
In January 25, 2018 reports, Dr. Coppelson diagnosed neck pain, cervical strain with
spasm, and left C5-6 radiculopathy, and noted that appellant was restricted from lifting, pushing,
or pulling more than 20 pounds. In a February 22, 2018 narrative report, he provided the additional
diagnoses of left supraspinatus tendinitis/subacromial bursitis and left shoulder pain/strain with
partial tear, and restricted appellant from lifting, pushing, or pulling more than 20 pounds. In the
portion of the report entitled “Causation,” Dr. Coppelson opined that, based on his history and
current examination findings, appellant’s cervical spine and left shoulder conditions were
secondary to a speciﬁc trauma suffered at work on January 27, 2017. In the portion of the report
entitled “Apportionment,” he indicated, “As there is no history of previous injury or disability to
the cervical spine and left shoulder, apportionment is not indicated. In my opinion, 100 percent of
the patient’s present disability has been caused by the industrial injury of [January 27, 2017], and
0 percent has been caused by other factors.”8
In a May 9, 2018 work status form report, Dr. Arash Yaghoobian, a Board-certified
orthopedic surgeon, diagnosed cervical disc degeneration and indicated that appellant could return
to work with restrictions from lifting, pushing, or pulling more than 10 pounds. In a June 6, 2018
work status form report, he listed the diagnosis of cervical spondylosis with radiculopathy and
noted that her work restrictions remained the same as delineated in his May 9, 2018 report.
In a July 16, 2018 narrative report, Dr. Barba diagnosed cervicalgia with left-sided C6
radiculopathy (per electromyogram (EMG) testing, but without objective clinical findings) and
noted that appellant had a permanent restriction of lifting, pushing, and pulling no more than 40
pounds. In the portion of the report entitled “Causation,” he indicated, “In reviewing [appellant’s]
history and medical records and examination today, it appears that the patient did sustain an injury
7

Supra note 4.

8
In a work status form report of even date, Dr. Coppelson also restricted appellant from lifting, pushing, or pulling
more than 20 pounds. In a May 31, 2018 narrative report, he indicated that appellant suffered the accepted condition
of cervical strain (i.e., strain of the muscle at the neck level), a condition “which was one in the same with cervicalgia.”
Dr. Coppelson noted, “Cervicalgia, cervical strain, cervical pain, and strain of the neck muscle are all the same.”

3

to the neck arising out of and caused by the industrial exposure of [January 27, 2017].” In the
portion of the report entitled “Disability status,” Dr. Barba noted, “[Appellant] has reached
maximum medical improvement and is permanent and stationary.”9
In a July 18, 2018 narrative report, Dr. Yaghoobian diagnosed cervical multilevel disc
disease with upper extremity radiculitis, history of cervical disc protrusions/herniations, and left
shoulder internal derangement with impingement syndrome. He indicated that appellant had not
received authorization for a steroid injection and had not undergone pain intervention, and advised
that pain intervention was a reasonable next step for treatment. Dr. Yaghoobian noted, “I will
retain [appellant’s] at current work status, and allow her to finish any remaining therapy.” In a
July 18, 2018 work status form report, he diagnosed cervical spondylosis with radiculopathy and
indicated that appellant was restricted from lifting, pushing, or pulling more than 20 pounds.
In an August 13, 2018 narrative report, Dr. Barba diagnosed “neck strain, also known as
cervicalgia” and advised that appellant’s work status had been changed to “no restrictions.” In a
form report of even date, he noted that appellant could perform full-duty work.
In August 15 and September 12, 2018 narrative and work status form reports,
Dr. Yaghoobian indicated that appellant could perform full-duty work without restrictions.10
In a September 27, 2018 narrative report, Dr. Richard Feldman, a Board-certified
orthopedic surgeon, referenced appellant’s January 27, 2017 injury and diagnosed cervical
radiculopathy documented by EMG testing and left shoulder arthritis/impingement. In the section
of the report entitled “Causation,” he noted, “In reviewing [appellant’s] history and medical
records and examination today, it appears that the patient did sustain an injury to the cervical spine
and bilateral shoulders arising out of and caused by the industrial exposure of [January 27, 2017].”
In the section of the report entitled “Work status,” Dr. Feldman indicated that he concurred with
the recommendations of Dr. Yaghoobian. In a September 27, 2018 work status form report, he
noted, “Work status per [primary treating physician].”
By decision dated March 12, 2019, OWCP found that appellant had not met her burden of
proof to establish disability from work for the period October 16, 2017 through July 10, 2018
causally related to her accepted January 27, 2017 employment injury.

9

In form reports of even date, Dr. Barba advised that appellant was restricted from lifting, pushing, or pulling more
than 40 pounds.
10
Dr. Yaghoobian further examined appellant on October 10 and November 7, 2018, and January 2 and 30, 2019.
He produced both narrative and work status form reports for each of these dates in which he advised that she could
perform full-duty work without restrictions. Dr. Yaghoobian also produced a December 5, 2018 work status form
report in which he reported that appellant had no disability from work.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.11
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.12 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.13 An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.14 When, however, the medical evidence
establishes that the residuals or sequelae of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for loss of wages.15
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. 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 claimed disability and the specific employment factors
identified by the claimant.16
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.17
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period October 16, 2017 through July 10, 2018 causally related to her accepted
January 27, 2017 employment injury.
As noted, the Board previously affirmed OWCP’s December 27, 2017 decision. Findings
made in prior Board decisions are res judicata absent any further review by OWCP under section
11

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

12

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

13

See L.W., Docket No. 17-1685 (issued October 9, 2018).

14

See D.G., Docket No. 18-0597 (issued October 3, 2018).

15

See D.R., Docket No. 18-0323 (issued October 2, 2018).

16

V.A., Docket No. 19-1123 (issued October 29, 2019).

17

J.B., Docket No. 19-0715 (issued September 12, 2019).

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8128 of FECA.18 Accordingly, the current analysis is limited to the relevant medical evidence
received since OWCP’s December 27, 2017 merit decision, which is the evidence that was not
before the Board when it last reviewed appellant’s claim on August 7, 2018.
In support of her claim for employment-related disability for the period October 16, 2017
through July 10, 2018, appellant submitted a February 22, 2018 narrative report from
Dr. Coppelson who diagnosed neck pain, cervical strain with spasm, left C5-6 radiculopathy, left
supraspinatus tendinitis/subacromial bursitis, and left shoulder pain/strain with partial tear. He
restricted her from lifting, pushing, or pulling more than 20 pounds, and opined that her cervical
spine and left shoulder conditions were secondary to the trauma she suffered at work on
January 27, 2017. In the portion of the report entitled “Apportionment,” Dr. Coppelson indicated,
“As there is no history of previous injury or disability to the cervical spine and left shoulder,
apportionment is not indicated. In my opinion, 100 percent of [appellant] present disability has
been caused by the industrial injury of [January 27, 2017], and 0 percent has been caused by other
factors.”
The Board finds that this report is of limited probative value with respect to appellant’s
claim for disability from work for the period October 16, 2017 through July 10, 2018 because
Dr. Coppelson’s opinion is vague with respect to the period of disability and he did not provide
medical rationale in support of his opinion on causal relationship. The Board has held that a report
is of limited probative value regarding causal relationship if it does not contain medical rationale
explaining how a given medical condition/period of disability has an employment-related cause.19
Dr. Coppelson only provided a mere conclusory opinion on causal relationship and the Board has
held that such an opinion is insufficient to meet a claimant’s burden of proof to establish a claim.20
He referenced conditions (e.g., left C5-6 radiculopathy and left supraspinatus tendinitis/subacromial
bursitis) as being due to the January 27, 2017 employment incident, but these conditions have not
been accepted as employment related and it is unclear to what extent Dr. Coppelson has implicated
these nonwork-related conditions as causing disability. For these reasons, Dr. Coppelson’s
February 22, 2018 report is insufficient to establish appellant’s disability claim.
In January 25, 2018 narrative and form reports, Dr. Coppelson diagnosed neck pain,
cervical strain with spasm, and left C5-6 radiculopathy, and noted that appellant was restricted
from lifting, pushing, or pulling more than 20 pounds. In a February 22, 2018 form report, he
restricted her from lifting, pushing, or pulling more than 20 pounds. In a May 31, 2018 narrative
report, Dr. Coppelson indicated that appellant’s accepted cervical strain was the same condition as
cervicalgia. However, the Board finds that these reports are of no probative value on the
underlying issue of this case because he did not provide an opinion that she had disability from
work for the period October 16, 2017 through July 10, 2018 causally related to her accepted
January 27, 2017 employment injury. The Board has held that medical evidence that does not offer
an opinion regarding the cause of an employee’s disability is of no probative value on the issue of

18

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

19

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

20

C.E., Docket No. 19-0192 (issued July 16, 2019); J.D., Docket No. 14-2061 (issued February 27, 2015).

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causal relationship.21 Therefore, these reports are insufficient to establish appellant’s disability
claim.
Appellant submitted several reports from Dr. Barba, including January 22, 2018 form
reports in which he diagnosed cervicalgia and advised that she could return to work without
restrictions. In a July 16, 2018 narrative report, Dr. Barba diagnosed cervicalgia with left-sided
C6 radiculopathy and noted that she had a permanent restriction of lifting, pushing, and pulling no
more than 40 pounds. He advised that appellant sustained a neck injury on January 27, 2017 and
maintained, in a section of the report entitled, “Disability status,” that she had reached maximum
medical improvement and that her condition was permanent and stationary. In form reports of
even date, Dr. Barba noted that she was restricted from lifting, pushing, and pulling more than 40
pounds. In an August 13, 2018 narrative report, he diagnosed “neck strain, also known as
cervicalgia” and advised that appellant’s work status had been changed to “no restrictions.” In a
form report of even date, Dr. Barba noted that she could perform full-duty work. The Board finds
that these reports are of no probative value regarding appellant’s disability claim because
Dr. Barba did not provide an opinion that she had disability from work for the period October 16,
2017 through July 10, 2018 causally related to her accepted January 27, 2017 employment injury.22
For this reason, his reports are insufficient to establish her disability claim.
Appellant also submitted reports from Dr. Yaghoobian, including a May 9, 2018 form
report in which he diagnosed cervical disc degeneration and indicated that she could return to work
with restrictions from lifting, pushing, or pulling more than 10 pounds. In a June 6, 2018 form
report, Dr. Yaghoobian diagnosed cervical spondylosis with radiculopathy and noted that her work
restrictions remained the same as delineated in his May 9, 2018 report. In a July 18, 2018 narrative
report, he diagnosed additional cervical and left shoulder conditions and indicated, “I will retain
[appellant] at current work status….” In a July 18, 2018 form report, Dr. Yaghoobian indicated
that she was restricted from lifting, pushing, and pulling more than 20 pounds. In reports dated
August 15, September 12, October 10, November 7, and December 5, 2018, and January 2 and 30,
2019, he advised that appellant could perform full-duty work without restrictions. However, the
Board finds that all of Dr. Yaghoobian’s reports are of no probative value regarding her disability
claim because they do not contain an opinion that she had employment-related disability during
the claimed period of disability, i.e., October 16, 2017 through July 10, 2018.23 Therefore,
Dr. Yaghoobian’s reports are insufficient to establish appellant’s disability claim.
In a September 27, 2018 narrative report, Dr. Feldman diagnosed cervical radiculopathy
and left shoulder arthritis/impingement, and asserted that appellant sustained injury to her cervical
spine and bilateral shoulders on January 27, 2017. He indicated regarding her work status that he
concurred with the recommendations of Dr. Yaghoobian. Dr. Feldman did not provide any further
details of this aspect of his report, but the Board notes that Dr. Yaghoobian indicated that around
this time that appellant could perform full-duty work. In a September 27, 2018 work status form
report, Dr. Feldman noted, “Work status per [primary treating physician],” but he did not provide
any additional details regarding this comment. The Board finds that Dr. Feldman’s reports are of
21

See H.J., Docket No. 20-0282 (issued July 21, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018).

22

Id.

23

See D.K., Docket No. 17-1549 (issued July 6, 2018).

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no probative value regarding the underlying issue of this case because Dr. Feldman did not provide
a clear opinion that appellant had employment-related disability for the period October 16, 2017
through July 10, 2018.24 Thus, Dr. Feldman’s reports do not establish her disability claim for this
period.
As appellant has not submitted rationalized medical evidence establishing causal relationship
between her claimed period of disability and the accepted January 27, 2017 employment injury, the
Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period October 16, 2017 through July 10, 2018 causally related to her accepted
January 27, 2017 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.25
Issued: February 10, 2021
Washington, DC

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

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

24

Id.

25
Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board after January 20, 2021.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
GENERAL SERVICES ADMINISTRATION,
MID-ATLANTIC REGION, PUBLIC
BUILDING SERVICE, Kansas City, MO,
Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-827
Issued: November 15, 2011

Case Submitted on the Record

ORDER AFFIRMING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On February 15, 2011 appellant, through her attorney, filed a timely appeal from the
November 18, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which affirmed a May 26, 2010 schedule award claim.1
The Board has duly considered the matter and will affirm OWCP’s November 18, 2010
decision. Appellant’s attorney expresses no disagreement with the schedule award per se.
Rather, he argues only that OWCP delayed its adjudication of appellant’s schedule award claim
until the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (2009) became applicable on May 1, 2009, which deprived her of due
process rights regarding a determination under the fifth edition, and that a protected property
interest cannot be deprived without due process, citing Goldberg v. Kelly, 397 U.S. 254 (1970)
and Mathews v. Eldridge, 424 U.S. 319 (1976). He also asserted that appellant should have been
provided a hearing with regard to which edition of the A.M.A., Guides, should apply. The cases
cited by counsel hold only that a claimant who was in receipt of benefits (in Goldberg welfare
benefits and in Mathews social security benefits) could not have those benefits terminated
1

On February 2, 2005 appellant, a 46 year old procurement technician, injured her left ankle and right knee in the
performance of duty while stepping in a pothole in the parking lot while walking to her car. OWCP accepted her
claim for left ankle sprain and fracture of the left ankle.

without procedural due process. In this case, appellant simply made a claim for a schedule
award. She was not in receipt of schedule award benefits nor was OWCP attempting to
terminate benefits. Appellant had no vested right to a schedule award under the fifth edition of
the A.M.A., Guides. In Harry D. Butler,2 the Board noted that Congress delegated authority to
the Director of OWCP regarding the specific methods by which permanent impairment is to be
rated. Pursuant to this authority, the Director adopted the A.M.A., Guides as a uniform standard
applicable to all claimants and the Board has concurred in the adoption.3 On March 15, 2009 the
Director exercised authority to advise that as of May 1, 2009 all schedule award decisions of
OWCP should reflect use of the sixth edition of the A.M.A., Guides.4 The applicable date of the
sixth edition is as of the schedule award decision reached. It is not determined by either the date
of maximum medical improvement or when the claim for such award was filed. Accordingly,
IT IS HEREBY ORDERED THAT the November 18, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 15, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

43 ECAB 859 (1992).

3

Id. at 866.

4

FECA Bulletin No. 09-03 (issued March 15, 2009). The FECA Bulletin was incorporated in the Federal
(FECA) Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CENTER FOR MEDICARE &
MEDICAID SERVICES, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-1098
Issued: March 28, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 14, 2021 appellant filed a timely appeal from a January 21, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days elapsed
from OWCP’s last merit decision dated October 9, 2019, to the filing of this appeal, pursuant to

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, appellant asserted that oral argument should be granted because OWCP’s
decisions were based on inaccurate and incorrect information and the decisions failed to provide reasons why her
arguments and evidence submitted were insufficient to modify OWCP’s denial of her claim. The Board, in exercising
its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately be
addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance
of a Board decision and not serve a useful purpose. As such, the oral argument request is denied , and this decision is
based on the case record as submitted to the Board.

the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decisions and orders are incorporated herein by reference. The relevant facts
are as follows.
On June 9, 2005 appellant, then a 50-year-old management analyst, filed an occupational
disease claim (Form CA-2) indicating that years of repetitive typing, writing, and use of the adding
machine and computer caused or aggravated cervical spine arthritis and bilateral carpal tunnel
syndrome (CTS) while in the performance of duty. She first became aware of her claimed
conditions and its relationship to her federal employment on March 30, 2005. OWCP accepted
the claim for bilateral CTS, bilateral lesion of the ulnar nerve, and non-disabling mild dysthymic
disorder. Appellant underwent OWCP-approved left carpal tunnel and cubital tunnel release on
January 11, 2007 and right carpal tunnel and cubital tunnel release on June 7, 2007. She returned
to full-duty work with use of voice-activated software on February 14, 2008. OWCP paid
appellant intermittent wage-loss compensation on the supplemental rolls commencing
March 30, 2005.4
On June 22, 2010 appellant filed a notice of recurrence (Form CA-2a) claiming a
recurrence of the need for medical treatment due to a change or worsening of her accepted workrelated conditions. She noted that she received several accommodations, but she had been doing
“an overwhelming amount of keyboarding and using [her] hands to lift, turn pages, write, etc. at
work,” which aggravated her approved bilateral carpal and cubital tunnel syndrome conditions,
and caused stress and depression. Appellant indicated that the shooting finger and arm pain caused
her to take more daily pain medications, including prescription pain medications. She also
indicated that her doctors advised her to retire as she was totally disabled from performing her job.
In a July 12, 2010 letter, OWCP advised that, since appellant did not claim any lost time from

2

5 U.S.C. § 8101 et seq.

3

Docket No. 15-548 (issued May 13, 2015).

4

By decision dated October 22, 2008 and corrected on November 14, 2008, OWCP issued a schedule award for 25
percent permanent impairment of the right upper extremity and 26 percent permanent impairment of the left upper
extremity for which appellant received a requested lump-sum award on January 13, 2009. Appellant requested
increased schedule awards, which OWCP denied in decisions dated October 30, 2009 and February 17, 2010.

2

work, she had not experienced a true recurrence. It noted her claim remained open for medical
treatment of her accepted conditions. 5
On December 2, 2010 appellant submitted a Form CA-2a claiming a recurrence of
disability and the need for medical treatment, wherein she listed the date of recurrence as June 22,
2010 and related that she had stopped work on July 27, 2010. By decision dated January 12, 2012,
OWCP denied the alleged recurrence of June 22, 2010. The weight of the medical evidence was
accorded to Dr. Stuart J. Gordon, a Board-certified orthopedic surgeon and OWCP second opinion
physician. The claim remained open for medical treatment of the accepted co nditions.
On January 30, 2012 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. By decision dated May 23, 2012, an OWCP hearing
representative vacated the January 12, 2012 decision and remanded the case for further
development, including the issuance of an updated statement of accepted facts (SOAF) and referral
to a Board-certified psychiatrist for examination and evaluation.
Following further development, appellant underwent a second opinion psychiatric
examination on December 19, 2012 by Dr. Dennis M. Young, a Board-certified psychiatrist, who
provided reports dated December 22, 2012 and February 7, 2013. Dr. Young opined that
appellant’s depression was not the result of pain associated with the work injury.
By decision dated March 28, 2013, OWCP denied appellant’s recurrence claim as she had
not established that she was disabled due to a material change/worsening of her accepted workrelated conditions. It also found that her diagnosed depression was not causally related to the
original occupational conditions, but rather was self-generated as a result of her perception that
she was an undervalued and marginalized employee.
On March 14, 2014 appellant, through counsel, requested reconsideration based on new
evidence from Dr. John R. Lion, a Board-certified psychiatrist. OWCP subsequently declared a
conflict in medical opinion between Dr. Young and Dr. Lion, who opined, in his February 3, 2014
report, that appellant’s depression was the result of her work injury.
OWCP referred appellant to Dr. Bruce M. Smoller, a Board-certified psychiatrist, for an
impartial medical examination and evaluation as to whether her employment-related conditions
contributed to or caused a psychiatric condition. In a July 27, 2014 report, Dr. Smoller, serving as
the impartial medical examiner (IME), reviewed a SOAF, examined appellant’s medical record
and appellant, and noted the history of injury. He recounted interview findings and provided an
impression of mild dysthymia on a fair to good level of functioning. Dr. Smoller opined that
appellant’s dysthymia did not need further medical treatment, that she had reached maximum
medical improvement, and that no further therapy treatment was required. He reiterated his
opinion that she was not disabled from work due to the psychiatric condition.

5

On July 31, 2010 appellant voluntarily retired.

3

By decision dated August 22, 2014, OWCP accepted the additional condition of nondisabling mild dysthymic disorder. Further treatment for the newly accepted condition was not
authorized based on Dr. Smoller’s July 27, 2014 impartial medical report.
Also, by decision dated August 22, 2014, OWCP affirmed the March 28, 2013 decision in
part to reflect that appellant had not established her recurrence claim due to a material change or
worsening of her accepted work-related conditions.
Appellant appealed to the Board on January 15, 2015. By decision dated May 13, 2015,
the Board affirmed OWCP’s August 22, 2014 decision. The Board found that Dr. Smoller’s
opinion was entitled to the weight of the medical evidence as an IME as he provided a rationalized
medical opinion, which established that while there was psychological component to appellant’s
work-related condition it did not disable her from working on July 27, 2010. The Board further
found that there was no probative medical opinion evidence, which established that appellant had
a material change in her medical condition such that she was totally disabled as a result of her
accepted work-related conditions beginning July 27, 2010.6
Appellant subsequently filed a series of requests for reconsideration. In decisions dated
April 10, 2017, August 10, 2018, and October 9, 2019, OWCP denied modification of the merits
of the claim. The decisions detailed appellant’s legal and factual arguments and found no error or
evidence to support the allegations raised. The decisions further found that the medical evidence
of record remained unsupported by rationalized medical evidence to demonstrate that the accepted
conditions prevented appellant from working on or after July 27, 2010 causally related to the
accepted March 30, 2005 employment injury.
On September 9, 2020 appellant requested reconsideration. In an accompanying letter also
dated September 2, 2020, she requested reconsideration and a “face to face hearing.” Appellant
contended that OWCP’s merit reviews were based on inaccurate and incorrect information and
that OWCP had failed to review the evidence and arguments she provided in all her reconsideration
requests. She argued that Dr. Young’s opinion was relevant and supported her disability claim,
the opinion of Dr. Lion, her physician, supported Dr. Young’s opinion, and Dr. Smoller’s report
was vague and speculative. Appellant also wanted to know why OWCP did not find certain facts,
circumstances and evidence relevant to the fact that she had to retire on disability. She alleged
that her supervisor and the employing establishment ignored her initial accommodation requests
only to grant the same request over a year later. The delay of such accommodation by appellant’s
supervisor and the employing establishment violated the law and the ineffective accommodations
caused appellant excruciating physical pain and mental anxiety, continued use of addicting drugs,
and having to perform repetitive motion that caused her recurrence. The only evidence submitted
in support of her reconsideration request was a petition for writ of certiorari in the Supreme Court
of the United States.
In November 18 and December 8, 2020 letters, OWCP informed appellant that, as her
September 2, 2020 letter indicated that she was requesting both a reconsideration and “face to face
hearing,” she could only request one method of appeal. Appellant was informed of her appeal
6

Supra note 3.

4

rights and provided 10 days to respond to the request. On December 11, 2020 she advised that she
was requesting reconsideration.
By decision dated January 21, 2021, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument which: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 10 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s August 22, 2014 merit decision. The Board
considered that evidence in its May 13, 2015 decision. Findings made in prior Board decisions

7

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
8

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
9

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
10

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

11

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

are res judicata absent further review by OWCP under section 8128 of FECA. 12 The Board,
therefore, will not review the evidence or arguments addressed in its prior appeal.
Appellant’s request for reconsideration neither alleged nor demonstrated that OWCP
erroneously applied or interpreted a specific point of law. Additionally, the Board finds that it did
not advance a relevant legal argument not previously considered by OWCP. Appellant’s
September 2, 2020 letter contained variations of legal and factual arguments previously
considered, which revolved around the conflict in medical evidence with Dr. Young and the fact
Dr. Smoller’s opinion was accorded the special weight provided an IME. The Board previously
reviewed the record, detailed the medical evidence as to how the conflict in medical arose and
discussed why the reports from appellant’s physicians were not sufficient to establish her
recurrence claim. The Board also specifically found that OWCP properly afforded the special
weight of the medical opinion evidence to Dr. Smoller who found that appellant had a nondisabling
dysthymic disorder. As noted above, the findings made in prior Board decisions are res judicata
absent further review by OWCP under section 8128 of FECA. 13 In its previous decisions OWCP
also addressed appellant’s contentions with regard to the employing establishment’s
accommodations, testimony, and alleged violations under other statues and found no evidence of
error as it related to the subject recurrence claim. Thus, appellant has not raised any new or
relevant legal and factual arguments not previously considered. Consequently, she is not entitled
to further review of the merits of her claim based on either the first or second above -noted
requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of her reconsideration request. The Board has held that the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case. 14 Appellant submitted a petition for writ of certiorari in the Supreme Court of
the United States. This evidence does not address the subject recurrence claim and, thus, does not
constitute a basis for reopening the claim. 15 No other evidence was submitted. As appellant failed
to provide relevant and pertinent new evidence, she is not entitled to a merit review based on the
third requirement under 20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

12

K.K., Docket No. 20-1394 (issued July 26, 2021); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

13

Id.

14

L.M., Docket No. 20-0315 (issued October 8, 2021); A.J., Docket No. 20-0926 (issued January 26, 2021);
Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).
15

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the January 21, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Mary, FL, Employer
__________________________________________

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

Docket No. 16-1420
Issued: December 15, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 27, 2016 appellant filed a timely appeal from a June 6, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability commencing
November 6, 2015, causally related to accepted head and cervical spine injuries.
FACTUAL HISTORY
OWCP accepted that on April 8, 2013 appellant, then a 55-year-old clerk, sustained
postconcussion syndrome, post-traumatic headache, cervicocranial syndrome, intervertebral disc
disorder with myelopathy, and herniated discs at C3-4, C4-5, C5-6, and C6-7 when a metal
1

5 U.S.C. § 8101 et seq.

container door became unlatched and struck the left side of her head. The employing
establishment issued an authorization (Form CA-16) for appellant to seek medical treatment
immediately after the injury. Appellant stopped work on the date of injury and received
continuation of pay through May 23, 2013.
Dr. William E. Dalton, attending Board-certified family practitioner, noted examining
appellant on April 9, 2013 for complaints of vision changes in her left eye following a head
injury.2 He released her to work as of May 2, 2013.
Dr. Mark. I. Sharfman, an attending Board-certified neurologist, provided a May 20,
2013 report diagnosing post-traumatic headache due to activation of the trigeminal and greater
occipital nerves, postconcussion syndrome, and post-traumatic cervicocranial syndrome. He
held appellant off work and prescribed medication.
On June 12, 2013 appellant accepted a job assignment as a modified clerk, with no
climbing, and lifting and carrying limited to 10 pounds. She returned to work in the modified
position shortly after accepting the job offer. Appellant had intermittent work absences due to
headaches and medication side effects. She participated in cognitive behavioral therapy sessions
and physical therapy.
Dr. Sharfman provided periodic reports from July 25 to September 25, 2013, holding
appellant off work intermittently for severe headaches due to post-traumatic trigeminal nerve
trauma. He continued to restrict appellant from lifting or carrying more than 10 pounds. On
October 29, 2014 Dr. Sharfman noted that appellant resumed full-duty work but she continued to
have acute headaches. He later found that appellant had reached maximum medical
improvement by April 13, 2015. Dr. Sharfman provided periodic reports through June 25, 2015
finding appellant able to perform full duty although her headaches continued.
Dr. Robert R. Reppy, an attending osteopath specializing in family medicine, followed
appellant beginning on September 8, 2014. In reports through July 10, 2015, he diagnosed posttraumatic headaches, herniated cervical discs, and postconcussion syndrome that intermittently
disabled appellant from work.3 As of September 23, 2015, Dr. Reppy limited appellant to
working eight hours a day with no overtime, directing that she be allowed to leave work if her
headaches became severe. He explained in a September 25, 2015 report that overtime work
increased appellant’s head and neck pain.
On November 24, 2015 appellant claimed wage-loss compensation beginning
November 6, 2015 (Form CA-7). She did not return to work. OWCP developed the claim as
one for recurrence of disability.

2

On April 23, 2013 Dr. Victor Thomas, an attending Board-certified ophthalmologist, found no pathology related
to the April 8, 2013 injury.
3

Appellant sustained a left wrist contusion at work on August 7, 2015. She filed a separate claim for the injury.

2

In a November 6, 2015 report, Dr. Reppy held appellant off work for four weeks. He
alleged that appellant had been made to work outside of her restrictions by working more than
eight hours a day, causing increased headaches.
In a December 7, 2015 letter, OWCP advised appellant of the type of additional evidence
needed to establish her claim for a recurrence of disability, including medical evidence
establishing a spontaneous worsening of the accepted conditions. It afforded appellant 30 days
to submit such evidence.
In response, appellant provided a December 4, 2015 report from Dr. Reppy noting
continued cervical spine pain, daily headaches, and continued limited cervical motion and
paraspinal spasticity. He prescribed medication.
By decision dated January 12, 2016, OWCP denied appellant’s claim for recurrence of
disability, finding that she had not alleged or established withdrawal of her modified-duty
position, or that the accepted conditions had spontaneously worsened such that she was no longer
able to perform the modified position.
In a March 16, 2016 letter, appellant requested reconsideration, explaining that the
modified position had aggravated her symptoms and that she had returned to her original date-ofinjury position on her own initiative.4 She explained in a December 14, 2015 affidavit that she
was forced to work overtime on September 4, 7, 11, 17, and October 12, 2015, in violation of
Dr. Reppy’s restriction limiting her to working eight hours a day. Appellant alleged that because
her modified position required lifting tubs and sacks of mail weighing 20 pounds or more, she
voluntarily transferred back to her full-duty, date-of-injury position. However, in April 30 and
May 9, 2016 letters, appellant and her attorney at the time alleged that she had never been given
a modified-duty position.
The employing establishment submitted an April 14, 2016 letter contending that appellant
was not made to exceed her restrictions while working modified duty prior to September 2, 2013,
when she returned to full duty at her own request, as approved by Dr. Reppy.
Appellant also submitted medical evidence. Dr. Sharfman opined on June 25, 2015 that
appellant could not work with heavy machinery if she had a headache, and would require a
permanent four day a week schedule. In a September 21, 2015 report, Dr. Dalton limited
appellant to working eight hours a day, five days a week. He asserted in an April 25, 2016 letter
that “long hours of work activity” exacerbated appellant’s headaches.
Dr. Reppy provided January 8 and February 4, 2016 reports alleging that the employing
establishment violated appellant’s work restrictions by forcing her to work overtime. He
therefore held her off work. Dr. Reppy clarified, however, that it was “the nature of the job
itself” and not the overtime hours that exacerbated her symptoms. He noted symptomatic

4

Appellant also submitted leave records, and physical therapy notes from August 2015 to April 2016.

3

improvement on March 11 and April 22, 2016, and released appellant to part-time modified duty
as of May 20, 2016.5
By decision dated June 6, 2016, OWCP denied modification of its January 12, 2016
decision, finding that the evidence of record indicated that appellant sustained a new injury due
to additional occupational exposures, and not a recurrence of disability.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as “an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.”6
When a claimant claims a recurrence of disability due to an accepted employment-related
injury, he or she has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the recurrence of disability is causally related to the original injury.
This burden includes the necessity of furnishing evidence from a qualified physician, who on the
basis of a complete and accurate factual and medical history, concludes that the condition is
causally related to the employment injury and supports this conclusion with sound medical
reasoning.7
ANALYSIS
OWCP accepted that appellant sustained postconcussion syndrome, post-traumatic
headache, cervicocranial syndrome, intervertebral disc disorder with myelopathy, and herniated
discs at C3-4, C4-5, C5-6, and C6-7 due to an April 8, 2013 head injury. She performed
modified duty from approximately June 12 to September 2, 2013, at which time she resumed full
duty with the approval of Dr. Reppy, an attending family practitioner.
Appellant continued to perform full duty until she stopped work on November 6, 2015
and claimed compensation for total disability. She contended that working overtime on
September 4, 7, 11, 17, and October 12, 2015 increased her head and neck symptoms. Appellant
thus has the burden of providing sufficient evidence, including rationalized medical evidence, to
establish the causal relationship asserted.8
Dr. Sharfman, an attending Board-certified neurologist, noted on June 25, 2015 that
appellant would require a four-day-a-week schedule due to her headaches. However, he did not
5

On May 12, 2016 appellant claimed a schedule award. As there is no final decision of record regarding the
schedule award claim prior to the date appellant filed her appeal, the Board is without jurisdiction to address the
schedule award issue. See 20 C.F.R. § 501.2(c).
6

20 C.F.R. § 10.5(y); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.a
(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).
7

Ricky S. Storms, 52 ECAB 349 (2001); Helen Holt, 50 ECAB 279 (1999).

8

Ricky S. Storms, id.

4

address her condition on and after November 6, 2015. Similarly, Dr. Dalton, an attending Boardcertified family practitioner, noted on April 25, 2016 that work activity exacerbated appellant’s
headaches, but did not report any worsening of her condition as of November 6, 2015. As
Dr. Sharfman and Dr. Dalton did not address the specific time period at issue, their opinions are
insufficient to meet appellant’s burden of proof.
Dr. Reppy opined on November 6, 2015 that working overtime caused increased
headaches and disabled her from work. However, he asserted on February 4, 2016 that
appellant’s job duties aggravated her symptoms, independent of overtime work. Dr. Reppy thus
attributes appellant’s symptoms on and after November 6, 2015 to new work exposures, and not
to a spontaneous worsening of the accepted conditions. His opinion negates appellant’s
contention that she sustained a recurrence of disability. Also, the equivocal nature of
Dr. Reppy’s reasoning diminishes the probative value of his reports.9
OWCP advised appellant by December 7, 2015 letter to submit rationalized medical
evidence regarding whether the accepted conditions worsened on November 6, 2015 as claimed.
Appellant did not submit such evidence. Therefore, OWCP properly denied her claim for
recurrence of disability.
On appeal, appellant contends that Dr. Reppy’s February 4, 2016 report is sufficient to
establish her claim. As stated, she did not submit sufficient medical evidence to establish that
the accepted head and cervical spine injuries spontaneously worsened on November 6, 2015 as
alleged. Therefore, OWCP properly found that appellant failed to establish the claimed
recurrence of disability.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability commencing
November 6, 2015, causally related to accepted head and cervical spine injuries.

9

See Steven S. Saleh, 55 ECAB 169 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 6, 2016 is affirmed.
Issued: December 15, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plainview, NY, Employer
__________________________________________

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Appearances:
William Bothwell, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0289
Issued: June 9, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 21, 2016 appellant, through his representative, filed a timely appeal from
an October 3, 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.3

1

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

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument before the Board. By order dated April 20, 2017, the Board exercised
its discretion and denied the request finding that the issues could properly be adjudicated based on the evidence of
record. Order Denying Oral Argument, Docket No. 17-0289 (issued April 20, 2017).

ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to the accepted December 9, 2014 employment incident.
FACTUAL HISTORY
On December 9, 2014 appellant, then a 49-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his lower back when he slipped on mud.
On the claim form a supervisor noted that, during an investigation, no mud was found.
In a letter dated December 17, 2014, the employing establishment challenged appellant’s
claim. It noted that before the incident appellant had been involved in an argument with
supervisors over being tracked on his route and the time he could take a lunch break. An hour
into appellant’s route he claimed that he slipped on mud and hurt his back. An investigation was
completed by supervisors who found no mud at the described location or on his clothing. The
supervisors also noted that the date of injury was appellant’s first day back to work after being
on leave due to nonwork-related sciatica.
On December 12, 2014 Dr. Matthew Goldstein, Board-certified in orthopedic surgery,
examined appellant and diagnosed a coccygeal fracture and trace retrolisthesis at L4-5 with
extension. He noted that appellant reported a fall at work on December 9, 2014, landing on his
backside.
By letter dated December 22, 2014, OWCP informed appellant of the evidence needed to
establish his claim. It noted that he had not submitted sufficient medical or factual evidence in
support of his claim. Appellant was afforded 30 days to submit this additional evidence.
In a report dated December 26, 2014, Dr. Goldstein examined x-rays of appellant’s
lumbosacral spine and diagnosed lumbar pain with radiculopathy, L4-5 trace retrolisthesis, and a
coccygeal fracture. He also noted that appellant was out of work because no light-duty positions
were available with the employing establishment. Dr. Goldstein recommended that appellant
stay out of work until further notice.
By decision dated January 30, 2015, OWCP denied appellant’s claim. It found that he
had failed to establish that the incident of December 9, 2014 occurred as described, due to
discrepancies in his statement regarding how he fell.
In a work status note dated January 16, 2015, Dr. Goldstein diagnosed a fractured coccyx,
degenerative lumbar spondylolisthesis, and lumbar radiculopathy. He recommended that
appellant stay out of work until further notice.
On February 20, 2015 appellant requested an oral hearing before an OWCP hearing
representative. The hearing was held on July 21, 2015. At the hearing appellant described the
events of December 9, 2014 stating that he had been instructed to take all obvious shortcuts.
Walking alongside a flower bed on a dirt path, while it was raining, he stepped on wet dirt and
slipped. Appellant noted that he was wearing his rubber raincoat, rubber boots, and rubber rain
pants at the time, and that the reason his clothes were clean after the incident was that they were
2

made of rubber and it was raining, so the dirt washed off. He explained that he never claimed
that he fell on a concrete walkway or sidewalk.
In a report dated August 13, 2015, Dr. Goldstein reiterated appellant’s history of injury,
noting that he sustained a fall at work on December 9, 2014 and landed on his backside. He
noted that since that time appellant had experienced severe low back and buttock pain, mostly on
the left.
By decision dated September 8, 2015, the hearing representative affirmed OWCP’s prior
decision of January 30, 2015. She concurred with OWCP’s prior determination that the facts
surrounding appellant’s fall were suspect.
By letter dated July 6, 2016, appellant, through his representative, requested
reconsideration of OWCP’s September 8, 2015 decision. He argued that the employing
establishment had made contradictory factual claims, noting that the employing establishment
first claimed that the event did not occur, then disciplined appellant for committing an unsafe act
leading to his fall and injury. The representative reiterated appellant’s statement as to how the
injury occurred. He noted that the only condition claimed to have been caused by the fall was
the coccygeal fracture.
By letter dated May 5, 2016, Dr. Goldstein opined that appellant sustained a fall at work
on December 9, 2014 that resulted in a coccygeal fracture. He described appellant falling at
work and landing on his backside. Dr. Goldstein noted that x-rays revealed a coccygeal fracture,
and explained that appellant sustained the fracture following the fall. He noted, “In my opinion,
[appellant’s] current condition/coccygeal fracture is causally related to the work-related
injury/fall which occurred on December 9, 2014.”
By decision dated October 3, 2016, OWCP noted that the employing establishment was
no longer disputing that the slip and fall occurred as alleged, but rather was disputing whether
appellant worked in a safe manner. It therefore found that he had established the factual
components of his claim, but denied his claim finding that he had not submitted sufficient
medical evidence to establish a causal relationship between the fall on December 9, 2014 and his
claimed conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA, that an injury5 was sustained in the performance of
4

Supra note 1.

5

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

3

duty as alleged, and that any disability or medical condition for which compensation is claimed
is causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he actually experienced the employment incident at the time,
place, and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged,
but fail to show that his or her condition relates to the employment incident.7
The claimant has the burden of proof to establish by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.11 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.12
ANALYSIS
Appellant alleged that on December 9, 2014 he sustained a fall at work that resulted in a
fractured coccyx. OWCP denied his claim finding that he had failed to submit sufficient medical
6

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
7

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

8

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
11

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

12

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

evidence to establish a causal relationship between his claimed condition and the fall of
December 9, 2014. The Board finds that appellant has not met his burden of proof.
Dr. Goldstein initially reported on December 12, 2014 that appellant had fallen at work
on December 9, 2014, landing on his backside. He diagnosed coccygeal fracture and trace
retrolisthesis at L4-5. OWCP received reports dated December 26, 2014 and January 16, 2015
wherein Dr. Goldstein reiterated these diagnoses. He did not however offer any opinion
regarding causal relationship in these reports.13 By report dated May 5, 2016, Dr. Goldstein
opined that appellant sustained a fall at work on December 9, 2014 that resulted in a coccygeal
fracture. He described appellant falling at work and landing on his backside. Dr. Goldstein
noted that x-rays revealed a coccygeal fracture, and explained that appellant sustained the
fracture following the fall. He noted, “In my opinion, [appellant’s] current condition/coccygeal
fracture is causally related to the work-related injury/fall which occurred on December 9, 2014.”
Appellant alleged that he slipped in mud while walking alongside a flower bed. He
specifically stated that he did not fall on concrete or a sidewalk. It is unclear from
Dr. Goldstein’s report whether he had a complete factual history regarding appellant’s fall as he
did not describe appellant’s fall in any detail. As his report does not contain an accurate and
complete history of appellant’s injury, his opinion is of limited probative value.14
The Board has also held that a medical report is of limited probative value on the issue of
causal relationship if it contains a conclusion regarding causal relationship which is unsupported
by medical rationale.15 Dr. Goldstein provided a conclusory opinion, but did not explain how the
December 9, 2014 work incident could have caused or aggravated the diagnosed conditions. His
May 5, 2016 report contains a medical opinion that the fall caused the fracture and a brief
explanation of the fall itself. This is insufficient to establish appellant’s claim because
Dr. Goldstein’s opinion lacks a detailed explanation as to how the fall caused the coccygeal
fracture.16
As appellant has not submitted any sufficiently rationalized medical evidence to support
his allegation that he sustained an injury causally related to a work-related incident of
December 9, 2014, he has not met his burden of proof to establish his claim.17
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

13

The Board has found that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition or disability is of limited probative value. C.B., Docket No. 09-2027 (issued May 12, 2010);
J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).
14

See Robert L. Lawson, Jr., Docket No. 95-2933 (issued September 23, 2997).

15

N.L., Docket No. 17-0454 (issued April 6, 2017).

16

See W.N., Docket No. 16-1722 (issued March 22, 2017).

17

Id.

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted December 9, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 3, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 9, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1361
Issued: January 8, 2018

Case Submitted on the Record

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

JURISDICTION
On June 2, 2017 appellant, through counsel, filed a timely appeal from a February 10,
2017 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 more than five percent permanent impairment of his
left upper extremity and three percent permanent impairment of his right upper extremity, for
which he previously received schedule awards.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows:
On November 13, 2014 appellant, then a 56-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he developed bilateral carpal tunnel syndrome due to
factors of his federal employment. OWCP accepted the claim for bilateral carpal tunnel
syndrome, tenosynovitis of the right hand and wrist, and synovitis and tenosynovitis of the left
hand.
An electromyogram (EMG) and nerve conduction velocity (NCV) study performed on
September 10, 2014 revealed moderately severe bilateral carpal tunnel syndrome especially on
the right side. An October 22, 2014 EMG study revealed moderate bilateral carpal tunnel
syndrome.
On April 23, 2015 appellant underwent authorized left carpal tunnel release and flexor
tenosynovectomy and on June 25, 2015 he underwent authorized right carpal tunnel release and
flexor tenosynovectomy.
In an impairment evaluation dated December 17, 2015, Dr. Michael Platto, a Boardcertified physiatrist, measured range of motion of appellant’s wrists and found decreased twopoint discrimination of the left thumb, middle, and index fingers. Referencing the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),4 he opined that appellant had three percent impairment due to tenosynovitis as
a result of bilateral loss of wrist range of motion according to Table 15-32 on page 473. For the
right side, using Table 15-23 on page 473, Dr. Platto applied a grade modifier of three due to test
findings of axon loss, a grade modifier of one for normal physical findings with intermittent
symptoms, and a grade modifier of one for physical examination, which rounded to a grade
modifier of two. He found a grade modifier of zero based on a QuickDASH (Disabilities of the
Arm, Shoulder, and Hand) score of 15.9. For the left side, Dr. Platto advised that he performed
an NCV study due to appellant’s complaints of continued numbness, which revealed axon loss
with “decreased motor median amplitude of less than [five]” and a delay in median sensory peak
latency, for a grade modifier of three for test results. He applied a grade modifier of one for a
history of mild intermittent symptoms and a grade modifier of two for physical findings of
decreased two-point discrimination, for an average grade modifier of two, or four percent
3

Docket No. 16-1101 (issued November 4, 2016).

4

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

2

impairment. Dr. Platto opined that appellant had three percent permanent impairment of each
upper extremity due to tenosynovitis and four percent permanent impairment of each upper
extremity due to carpal tunnel syndrome, for seven percent combined permanent impairment of
each arm.
Appellant, on January 8, 2016, filed a claim for a schedule award (Form CA-7).
On January 20, 2016 OWCP referred appellant to Dr. Shaka Walker, a Board-certified
orthopedic surgeon, for a second opinion examination regarding the extent of any permanent
impairment due to the accepted work injury. In an impairment evaluation dated February 1,
2016, Dr. Walker reviewed his history of hand numbness and pain treated with carpal tunnel
releases and flexor tenosynovectomies. On examination, he found no atrophy and a negative
Tinel’s sign and Phalen’s test. Dr. Walker measured range of motion of the wrists and
performed pinch and grip strength testing. He measured normal wrist motion, for a grade
modifier of zero. Dr. Walker found no impairment due to tenosynovitis as a result of reduced
motion. Referencing Table 15-23 on page 449 of the A.M.A., Guides, for the right side he found
that EMG findings in the September 10, 2014 study showed axonal loss, for a grade three
modifier. Dr. Walker applied a grade modifier of zero for functional history and physical
examination. He declined to use the QuickDASH score due to reliability issues. Dr. Walker
found an average modifier of one and a final right arm impairment rating of one percent. For the
left wrist, he determined that a postoperative EMG showed median motor amplitude of less than
five, or axonal loss, for a grade three modifier. Dr. Walker applied a grade two modifier for
decreased sensation and a grade modifier of three for history. He found an average grade
modifier of three and a resulting seven percent permanent impairment of the left arm.
An OWCP medical adviser reviewed the medical records on March 21, 2016. He advised
that diagnostic testing performed September 10, 2014 did not show axonal loss and that grip and
pinch strength were nonspecific findings. The medical adviser concurred with Dr. Walker’s
finding of no impairment due to tenosynovitis. Using Table 15-23, he applied a grade modifier
of one bilaterally due to electrodiagnostic testing. The medical adviser further applied a grade
modifier of zero on the right and two on the left for physical findings of loss of two-point
discrimination of the left hand and a grade modifier of zero for history on the right and one on
the left. He found that the functional history was not applicable because of the unreliable
QuickDASH score. The medical adviser opined that appellant had two percent permanent
impairment of each upper extremity due to carpal tunnel syndrome.
By decision dated March 23, 2016, OWCP granted appellant schedule awards for two
percent permanent impairment of each upper extremity. The period of the award ran for 12.48
weeks from February 1 to April 28, 2016.
Appellant appealed to the Board. By decision dated November 4, 2016, the Board set
aside the March 23, 2016 decision after finding a conflict in medical opinion between Dr. Platto
and Dr. Walker regarding the extent of appellant’s permanent impairment of the upper
extremities. It remanded the case for OWCP to refer appellant to an impartial medical examiner
for resolution of the conflict.

3

On December 17, 2016 OWCP referred appellant to Dr. Victoria Langa, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a report dated January 23, 2017,
Dr. Langa reviewed the history of injury and the results of diagnostic testing. She discussed
appellant’s complaints of numbness and tingling intermittently more on the left side and loss of
strength bilaterally. On examination, Dr. Langa found no tenderness of the wrist or hands and a
negative Tinel’s sign and Phalen’s test bilaterally. She measured range of motion of the wrists as
symmetrical bilaterally with 44 degrees of palmar-flexion, 55 degrees of dorsiflexion, 30 degrees
of ulnar deviation, and 20 degrees of radical deviation. Dr. Langa found no crepitation, thenar
atrophy, or weakness, normal two-point discrimination on the right and borderline two-point
discrimination on the left, and full range of motion of the digits without triggering. She
diagnosed status post left and right carpal tunnel releases with flexor tenosynovectomies and
opined that appellant had reached maximum medical improvement. Dr. Langa found no
evidence of residual digital flexor tenosynovitis and thus no impairment. She attributed
appellant’s minimal loss of motion at the wrists to early arthritis rather than carpal tunnel
syndrome.
Referencing Table 15-23 on page 449 of the A.M.A., Guides, Dr. Langa found, for the
right side, that he had a grade two modifier for preoperative test findings based on his motor
conduction block, a grade one modifier for history due to mild intermittent symptoms, and a
grade one modifier for physical findings of normal two-point discrimination and no atrophy or
weakness, for a total of four. She divided the four by three as set forth on page 448 on the
A.M.A., Guides to find a category one impairment, which she modified to three percent
impairment based on the QuickDASH score of 50. For the left side, Dr. Langa applied a grade
three modifier for test results showing axon loss, a grade modifier of one for history, and a grade
modifier of two for altered sensation, which she added and divided by three to find category two
impairment. She found no adjustment based on the QuickDASH score as the rating was already
in category two, and concluded that appellant had five percent left upper extremity impairment.
In a report dated January 24, 2017, Dr. Platto provided findings on examination and
determined that appellant had a QuickDASH score of 34. He concluded that appellant had three
percent permanent impairment of each upper extremity due to tenosynovitis of the wrists, and
four percent permanent impairment of each upper extremity for carpal tunnel syndrome, for a
combined seven percent permanent impairment of each upper extremity.
By decision dated February 10, 2017, OWCP granted appellant a schedule award for an
additional three percent left upper extremity permanent impairment and an additional one percent
right upper extremity permanent impairment. It noted that he had previously received a schedule
award for two percent permanent impairment of each upper extremity. The period of the award
ran for 12.48 weeks from May 1 to July 27, 2016.
On appeal counsel contends that Dr. Langa did not adequately document her range of
motion measurements, in contrast to the detailed findings by Dr. Platto. He notes that she
attributed the motion loss to a condition other than carpal tunnel syndrome and asserts that
preexisting and subsequently-acquired conditions are included in schedule awards. Counsel
questions why Dr. Langa used the test results on the right side that were obtained prior to surgery
and failed to rate the conditions of tenosynovitis and synovitis.

4

LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulation,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
The sixth edition requires identifying the impairment Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE), and Clinical Studies (GMCS).9 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.10 In
Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories of
test findings, history, and physical findings. The grade modifiers are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value.
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.11
ANALYSIS
On prior appeal, the Board found a conflict in medical opinion between Dr. Platto and
Dr. Walker regarding the extent of appellant’s permanent impairment of the upper extremities.
On remand OWCP referred him to Dr. Langa, a Board-certified orthopedic surgeon, for an
impartial medical examination.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

A.M.A., Guides 494-531.

10

Id. at 449, Table 15-23.

11

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

5

Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical examiner for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.12 On January 23, 2017 Dr. Langa discussed the
history of injury and considered the results of diagnostic testing. She found no wrist tenderness,
crepitation, thenar atrophy, or weakness, a negative Tinel’s sign and Phalen’s test bilaterally, and
no triggering or loss of motion of the digits. Dr. Langa measured minimal loss of wrist motion
bilaterally with the loss of only five degrees of dorsiflexion, which she attributed to early
arthritis. She found no evidence of tenosynovitis based on appellant’s finger range of motion
and lack of triggering, and thus no ratable impairment. Regarding impairment due to carpal
tunnel syndrome, Dr. Langa applied the provisions Table 15-23 on page 449 of the A.M.A.,
Guides. For the right side, she applied a modifier of two due to a motor conduction block, a
grade modifier of one for a history of mild intermittent symptoms and a grade modifier of one
for physical findings of normal two-point discrimination with no atrophy or weakness, for a class
one impairment and an impairment range of one to three percent. Dr. Langa found three percent
right arm impairment based on appellant’s QuickDASH score of 50. For the left side, she
applied a grade modifier of three for test results showing axon loss, a grade modifier of one
based on his history, and a grade modifier of two for physical findings of altered sensation,
which yielded class 2 impairment under Table 15-23 and an impairment range of four to six
percent. Dr. Langa found five percent permanent impairment due to the QuickDASH score of
50.
The Board has carefully reviewed Dr. Langa’s report and finds that it is based on a proper
factual background and supported by rationale. Dr. Langa further explained how her impairment
rating comported with the standards of the sixth edition of the A.M.A., Guides. Consequently,
her report is entitled to the special weight of the evidence as the impartial medical specialist and
establishes that appellant has no more than five percent permanent impairment of the left upper
extremity and three percent permanent impairment of the right upper extremity.13
In a report dated January 24, 2017, Dr. Platto opined that appellant had three percent
permanent impairment of each upper extremity due to tenosynovitis of the wrists, and four
percent permanent impairment of each upper extremity for carpal tunnel syndrome, for a
combined seven percent permanent impairment of each upper extremity. He, however, was on
one side of the conflict resolved by Dr. Langa. A medical report from a physician on one side of
a conflict resolved by an impartial medical examiner is generally insufficient to overcome the
special weight accorded the report of an impartial medical examiner or to create a new conflict.14
Dr. Platto’s report is thus insufficient to overcome the special weight accorded to Dr. Langa’s
opinion or to create a new conflict in medical opinion.15

12

See N.D., Docket No. 15-1392 (issued December 9, 2015); Gloria J. Godfrey, 52 ECAB 486 (2001).

13

See G.W., Docket No. 16-0525 (issued August 2, 2017).

14

See Jaja K. Asaramo, 55 ECAB 200 (2004); Michael Hughes, 52 ECAB 387 (2001).

15

See K.R., Docket No. 16-0542 (issued December 21, 2016).

6

On appeal counsel asserts that Dr. Langa did not sufficiently describe her measurements
for range of motion and attributed motion loss to a nonemployment-related condition. He
maintains that preexisting and subsequently acquired conditions were included in calculating a
schedule award. Dr. Langa, however, found minimal motion loss of the wrists, which she related
to mild arthritis. She properly rated appellant’s wrist impairment using the provisions of
Table 15-23, applicable to rating entrapment/compression neuropathy, the accepted condition.
The A.M.A., Guides, provide that entrapment neuropathy is determined using the standards set
forth in section 15.4f, which includes Table 15-23, and that additional impairment is “not
permitted for decreased grip strength, loss of motion, or pain.”16
Counsel questions why Dr. Langa used the test results on the right side that were obtained
prior to surgery and failed to rate the conditions of tenosynovitis and synovitis. Dr. Langa
specifically found, however, no impairment due to tenosynovitis and provided appellant with a
grade two modifier for his preoperative motor conduction block for test findings. As discussed,
her report is detailed and reasoned and thus entitled to the special weight of the evidence.17
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than five percent permanent impairment of
his left upper extremity and three percent permanent impairment of his right upper extremity
impairment, for which he received schedule awards.

16

A.M.A., Guides 433.

17
Furthermore, the A.M.A., Guides, advise that in most situations preoperative electrodiagnostic testing should
be used in impairment ratings under Table 15-23. Id. at 448.

7

ORDER
IT IS HEREBY ORDERED THAT the February 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2018
Washington, DC

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

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

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

8