United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Plains, NY, Employer
__________________________________________
Appearances:
Stephen Larkin, for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 17-1709
Issued: May 7, 2018

Case Submitted on the Record

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

On August 5, 2017 appellant, through her representative, filed a timely appeal from a
March 23, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). The
Board docketed the appeal as Docket No. 17-1709.
On February 1, 2016 appellant, then a 58-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she developed chronic regional pain syndrome (CRPS) as a result
of her federal employment duties.1 She first became aware of her condition on April 25, 2008 and
of its relationship to her federal employment on May 29, 2015. The record reflects that appellant
stopped work on November 9, 2013 and did not return.
In an October 29, 2015 narrative statement, appellant explained that she had sustained an
initial traumatic injury on November 29, 2007, which was accepted for contusion and sprain of the
right knee/leg, and that she subsequently developed CRPS.2 She explained that her CRPS was
caused by the repetitive motion of walking, standing, lifting, and carrying mail which contributed
1

The Board notes that the Form CA-2 was signed by appellant on October 30, 2015.

2
The record reflects that appellant had filed a traumatic injury claim (Form CA-1), under OWCP File No.
xxxxxx176, for an injury sustained on November 29, 2007 when she was walking on the workroom floor and a
plywood board that was leaning against a pole fell on her right leg. OWCP accepted the claim for right knee contusion
and right knee sprain. On May 29, 2015 it expanded acceptance of the claim to include CRPS of the lower right limb.

to excessive wear on her knee. Appellant reported that the condition of CRPS was not accepted
by OWCP until Dr. Joseph Laico, a Board-certified orthopedic surgeon, in a March 23, 2015
second opinion examination, determined that the condition was causally related to her
November 29, 2007 traumatic injury, under OWCP File No. xxxxxx176.3
By letter dated March 1, 2016, the employing establishment controverted the claim arguing
that CRPS had already been accepted under OWCP File No. xxxxxx176. It further argued that
appellant had not worked since September 9, 2013, and the modified assignment that she had
worked was not physically demanding in nature and did not consist of the duties she had described.
Appellant submitted a June 21, 2013 medical report from Dr. Richard Dentico, Boardcertified in physical medicine and rehabilitation, in support of her occupational disease claim.
Dr. Dentico reported that appellant sustained a right knee injury on November 29, 2007 and was
first evaluated by him on April 25, 2008. Over the course of her treatment, appellant was
diagnosed with type 2 CRPS which was associated with a traumatic injury or accident. Dr. Dentico
reported that appellant was totally disabled for a period of time and returned to work on
March 1, 2010. However, appellant’s condition continued to worsen as she had been walking and
carrying mail at her job. Dr. Dentico opined that appellant’s condition was causally related to her
accepted work injury.
By decision dated May 12, 2016, OWCP denied appellant’s claim finding that the medical
evidence of record failed to establish that her diagnosed condition was causally related to her
accepted federal employment factors. It instructed that she had failed to provide a well-reasoned
medical opinion supported by objective findings as to exactly how the claimed factors of her
federal employment either directly caused or aggravated the diagnosed medical conditions of a
right knee contusion and right knee sprain. OWCP further noted that the evidence of record
showed that she had a preexisting medical condition to her right knee and therefore she needed to
provide a detailed and well-rationalized medical report, based on a complete and accurate history,
explaining the medical mechanism of her claimed right knee injury and how the diagnosed
condition resulted from the claimed factors of her federal employment with differentiation shown
between the claimed injury and the symptoms of the preexisting condition. In noting the evidence
reviewed in its decision, OWCP noted that it has reviewed nine CA-17 forms dated from
September 9, 2013 to April 14, 2015, along with 18 medical notes of Dr. Dentico dated from

3

Appellant also filed a claim for recurrence of disability (Form CA-2a) on February 11, 2009 when she experienced
right knee pain while walking on the workroom floor. The claim was adjudicated by OWCP as a new traumatic injury
under File No. xxxxxx382. By decision dated April 10, 2009, OWCP denied the claim for failing to establish the
medical component of fact of injury. By decision dated September 30, 2009, an OWCP hearing representative
affirmed the April 10, 2009 decision. By decision dated September 27, 2010, OWCP denied appellant’s request for
reconsideration. On November 16, 2011 the Board affirmed the September 27, 2010 decision finding that OWCP
properly refused to reopen appellant’s case for further review of the merits of her claim under 5 U.S.C. § 8128(a).
Docket No. 11-0601 (issued November 16, 2011).
On May 4, 2013 appellant filed an occupational disease claim (Form CA-2) alleging an aggravation of CRPS in the
right knee which she attributed to repetitive walking and standing while working her modified assignment, OWCP
File No. xxxxxx160. By decision dated September 5, 2013, OWCP denied the claim as the medical evidence was
insufficient to establish that the claimed condition was causally related to the identified work duties. By decision
dated June 4, 2014, an OWCP hearing representative affirmed the September 5, 2013 decision.

2

September 9, 2013 through March 17, 2016. All of these reviewed documents were noted to be
from File No. xxxxxx176, a claim in which CRPS had already been accepted.
On May 26, 2016 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. A hearing was held on January 17, 2017 at which appellant testified in
support of her occupational disease claim.
By decision dated March 23, 2017, an OWCP hearing representative affirmed the May 12,
2016 decision, finding that the medical evidence of record failed to establish that appellant’s
diagnosed conditions, including CRPS, were causally related to her accepted factors of her federal
employment. She noted that the issue for determination was whether the claimed CRPS condition
is causally related to the identified federal employment. The hearing representative noted
counsel’s argument that appellant had filed four claims which were interrelated and should be
consolidated. She found, however, that the medical evidence was insufficient to establish causal
relationship.
The Board finds that the case is not in posture for decision.4 Pursuant to 20 C.F.R.
§ 501.2(c)(1), 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. Decisions on claims are based on the written record,
which may include forms, reports, letters, and other evidence of various types such as photographs,
videotapes, or drawings.5 Evidence may not be incorporated by reference, nor may evidence from
a claimant’s other case file be used.6 Evidence contained in another of the claimant’s case files
may be used, but a copy of that evidence should be placed into the case file being adjudicated.7
All evidence that forms the basis of a decision must be in that claimant’s case record.8
Furthermore, OWCP procedures provide for doubling case files when correct adjudication of the
issues depends on frequent cross-reference between files such as when a new injury case is
reported for an employee who previously filed an injury claim for a similar condition or the same
part of the body.9
The Board finds that the numerous CA-17 forms and the numerous medical notes signed
by Dr. Dentico in File No. xxxxxx176 have not been incorporated into the current File No.
xxxxxx739, nor have the files been doubled. This is especially important in light of the prior
acceptance of appellant’s condition of CRPS in File No. xxxxxx176. In the instant appeal, for a
full and fair adjudication, OWCP’s files pertaining to her accepted claims, including the condition
of CRPS, should be combined. The case will therefore be remanded to OWCP to combine case
File Nos. xxxxxx739, xxxxxx382, xxxxxx160, and xxxxxx176. Following this and such other

4

See C.R., Docket No. 17-1952 (issued February 9, 2018).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(1)
(January 2000); Chapter 2.800.5a (June 2011).
6

Id.

7

Id.

8

Id.

9

Id.

3

development as deemed necessary, OWCP shall issue a de novo merit decision on appellant’s
claim. Accordingly,
IT IS HEREBY ORDERED THAT the March 23, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: May 7, 2018
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, AIRPORT MAIL
CENTER, Jamaica, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2223
Issued: March 5, 2008

Oral Argument February 6, 2008

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JURISDICTION
On August 31, 2007 appellant filed a timely appeal of the July 26, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied her request for
reconsideration. The most recent merit decision is dated August 2, 2006. Because appellant
filed her appeal more than a year after the latest merit decision, the Board does not have
jurisdiction over the merits of her October 2, 1998 occupational disease claim.1
ISSUE
The issue is whether the Office properly declined to reopen appellant’s case for merit
review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 15, 1998 appellant, then a 39-year-old modified general expediter, filed a
claim for recurrence of disability (Form CA-2a) beginning October 2, 1998. At the time she
filed her claim, she had been off work since June 29, 1998. Appellant alleged that her ongoing
low back condition was causally related to an August 22, 1997 employment injury, which had
1

20 C.F.R. §§ 501.2(c), 501.3(d) (2007).

been accepted for lumbago and right shoulder sprain (02-0732578). She explained that she had
difficulty sitting and standing for long periods. Appellant also experienced back spasms, tingling
in her feet and a burning sensation in her hip area.
On May 12, 1998 appellant accepted a limited-duty assignment as a modified general
expediter. Her duties consisted of manually sorting letter-sized pieces of mail weighing less than
two pounds each. Appellant performed this work seated at a modified, desk-type case while
using a straight-back chair. The limited-duty assignment was consistent with the work
restrictions imposed by her treating physician, Dr. Anthony J. Spataro, a Board-certified
orthopedic surgeon.
On September 28, 1998 Dr. Spataro reiterated that appellant was able to perform lightduty work. He imposed a lifting restriction of 0 to 10 pounds, and a similar weight limitation
with respect to pushing and pulling. No other physical limitations were identified at that time.
In a report dated October 2, 1998, Dr. Harold K. Sirota, a family practitioner, diagnosed
sciatica and low back syndrome. He also indicated a need to rule out the possibility of herniated
disc, disc bulge and spinal abnormality. Additionally, Dr. Sirota reported that appellant’s lightduty assignment had been terminated in late June 1998. While appellant was eager to return to
light-duty work, apparently no such work was available. Dr. Sirota further noted that appellant
could perform sedentary work without any lifting.
On November 9, 1998 appellant accepted a limited-duty assignment that required her to
manually sort letter-sized pieces of mail, much like her prior assignment. The position
description indicated that her assigned duties would be in accordance with her medical
restrictions, which included sedentary duty and no lifting, pushing or pulling over 10 pounds.
Rather than treat appellant’s claim as a recurrence of her August 22, 1997 employment
injury, the Office determined that the October 15, 1998 filing should instead be developed as a
new occupational disease claim with an October 2, 1998 date of injury (02-2508616). The
decision to reclassify appellant’s claim as an occupational disease claim was based in part on
Dr. Sirota’s notation that appellant had “pain sitting and standing from injuring herself on
[October 2, 1998].”
Dr. Sirota further stated that appellant’s work was “continually
[aggravating] her lower back condition and sciatica.”
On October 25, 2005 the Office wrote to appellant requesting additional factual and
medical information. It advised appellant that it needed “the history of the [October 2, 1998]
injury.” The Office further noted that, while appellant previously filed several other claims, their
primary concern was “what occurred on [October 2, 1998] only.”2 Appellant responded by letter
dated November 13, 2005, however, she did not provide the requested information. Instead,
appellant referred the Office to two other claim files that purportedly included the “relevant
factors concerning the [October 2, 1998] incident.”
In a decision dated December 29, 2005, the Office denied appellant’s claim. By decision
dated August 2, 2006, the Office clarified that appellant’s claim was adjudicated as a new
2

Between 1997 and 2002 appellant filed at least nine separate workers’ compensation claims.

2

occupational disease claim, rather than a recurrence of her August 22, 1997 injury. The Office
denied appellant’s October 2, 1998 occupational disease claim because she failed to establish
fact of injury.
On July 8, 2007 appellant requested reconsideration. The request was accompanied by a
March 1998 report from Dr. Sirota and a May 4, 1998 letter from the Office asking Dr. Sirota to
submit a comprehensive medical report. Appellant also submitted a copy of a November 13,
2003 letter from the employing establishment inquiring about the status of two of appellant’s
recurrence claims. The Office also received a January 2, 2004 medical report from Dr. Spataro
and an October 12, 2006 report from Dr. Ernesto S. Capulong.
In a decision dated July 26, 2007, the Office denied appellant’s request for
reconsideration.
LEGAL PRECEDENT
The Office has the discretion to reopen a case for review on the merits.3 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.4
Section 10.608(b) provides that, when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.5
ANALYSIS
Appellant’s July 8, 2007 request for reconsideration neither alleged nor demonstrated that
the Office erroneously applied or interpreted a specific point of law. Additionally, she did not
advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(2).6
Appellant also failed to satisfy the third requirement under section 10.606(b)(2). She did
not submit any relevant and pertinent new evidence with her July 8, 2007 request for
reconsideration. Appellant’s claim was denied because she failed to provide sufficient factual
information regarding the circumstances that allegedly gave rise to her claimed injury of
October 2, 1998. Although she submitted new evidence with her request for reconsideration,
Dr. Capulong’s October 12, 2006 medical report did not address the relevant issue on
3

5 U.S.C. § 8128(a) (2000).

4

20 C.F.R. § 10.606(b)(2).

5

20 C.F.R. § 10.608(b).

6

20 C.F.R. § 10.606(b)(2)(i) and (ii).

3

reconsideration, which was fact of injury. The four other documents appellant submitted also did
not identify any particular employment activities appellant performed on or about
October 2, 1998. Her July 8, 2007 request for reconsideration did not include any additional
information that would assist in resolving the question of what particular employment activities
may have caused or contributed to her claimed October 2, 1998 injury. Accordingly, appellant is
not entitled to a review of the merits of her claim based on the third requirement under section
10.606(b)(2).7
Because appellant was not entitled to a review of the merits of her claim pursuant to any
of the three requirements under section 10.606(b)(2), the Office properly denied the July 8, 2007
request for reconsideration.
CONCLUSION
The Board finds that the Office properly declined to reopen appellant’s case for merit
review under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 26, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

7

20 C.F.R. § 10.606(b)(2)(iii).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1337
Issued: January 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 12, 2011 appellant, through her attorney, filed a timely appeal from a March 3,
2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying modification
of a December 30, 2010 decision terminating her compensation benefits. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to justify termination of
appellant’s compensation benefits for her accepted injury effective January 16, 2011; and
(2) whether appellant established that she had any continuing disability or residuals relating to
her accepted conditions after January 16, 2011.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 3, 2008 appellant, then a 37-year-old nurse, injured her back when a patient she
was assisting into bed fell. OWCP accepted her claim for lumbar strain and sacroiliac sprain and
strain of the right side. Appellant stopped work and returned to work four hours per day limited
duty.
Appellant came under the treatment of Dr. Dennis J. Mateya, a Board-certified
physiatrist, from May 20 to October 31, 2008, for a work-related back injury. Dr. Mateya
diagnosed lumbar strain and right sacroiliac strain and advised that she was totally disabled. He
advised that appellant had prior back surgery at L6-S1. On July 10, 2008 Dr. Mateya returned
her to light duty four hours per day and limited her driving to 15 minutes. A July 22, 2008
electromyogram (EMG) revealed no abnormalities. In reports dated August 22 and October 31,
2008, Dr. Mateya continued appellant’s work restrictions. A magnetic resonance imaging (MRI)
scan of the lumbar spine revealed postsurgical changes from a right-sided laminectomy, leftsided disc bulge at L4-5 and degenerative disc changes at L5-6.
On November 13, 2008 OWCP referred appellant to Dr. Victoria M. Langa, a Boardcertified orthopedist, for a second opinion. In a December 2, 2008 report, Dr. Langa indicated
that she reviewed the records provided and examined appellant. She diagnosed right L5
radiculopathy and status post L6-S1 disc surgery in 2001. Dr. Langa noted that examination
revealed a nonantalgic gait, well-healed midline surgical scar over the lumbar spine which was
minimally tender, no muscle spasm, tenderness over the right sciatic notch, there was no
swelling or atrophy of the lower extremities, reflexes were symmetric bilaterally, motor and
sensory examination was intact with some altered sensation at L5 nerve root and mild weakness
of the ankle dorsiflexors. She noted that appellant had clear findings of an L5 radiculopathy with
L5 sensory changes and motor weakness. However, the etiology of the L5 radiculopathy was not
identified and she recommended further diagnostic work up, specifically a lumbar CT
myelogram. Dr. Langa noted that appellant had not reached maximum medical improvement.
She opined that appellant could return to work full time with restrictions and also that she was
capable of driving.
On January 15, 2009 OWCP requested that Dr. Mateya review Dr. Langa’s report and
comment on whether he concurred with her opinion that appellant could return to full-time lightduty work.
In a January 30, 2009 report, Dr. Mateya disagreed with Dr. Langa’s finding that
appellant could return to work full time and advised that she could only work four hours per day
limited duty. He indicated that she was undergoing further evaluation and had not reached
maximum medical improvement. In a March 19, 2009 work capacity evaluation, Dr. Mateya
noted that appellant could work four hours per day with restrictions including no driving more
than 15 minutes. In reports dated April 21 and May 22, 2009, he noted that she continued to
have problems with her work-related injury and her examination had not changed. Dr. Mateya
opined that appellant was close to maximum medical improvement and recommended sacroiliac
injections. On March 5, 2009 appellant underwent a lumber myelogram which revealed disc
bulges at L3-4 and L4-5, hypertrophied facets at these levels, minimal symmetric bulging disc

2

left posterocentrally without nerve root defect and minimal central stenosis at L4-5 and L3-4
secondary to hypertrophied. On April 28, 2009 she underwent right sacroiliac joint injection
performed by Dr. M. Nicholas Senchyshak, an osteopath, who diagnosed right sacroiliitis right
sacral pain.2
OWCP found that a conflict of medical opinion existed between Dr. Mateya, who
indicated that appellant sustained residuals of her work-related injuries of lumbar strain and
sacroiliac sprain/strain and could work part time, four hours per day, with restrictions including
no driving over 15 minutes, and Dr. Langa, who determined that appellant could work full time
with restrictions and could drive.
To resolve the conflict, OWCP on May 15, 2009 referred appellant to a referee physician,
Dr. Eric D. Nabors, a Board-certified orthopedist. In a June 2, 2009 report, Dr. Nabors noted
reviewing the record, including the history of appellant’s work injury, and examining appellant.
Examination revealed normal gait, restricted lumbar range of motion, normal motor strength,
reflexes were symmetrical bilaterally, normal sensation in all dermatomes of the lower
extremities and minimal tenderness to palpation in the lower lumbar region with evidence of a
prior hemilaminotomy on the right. Dr. Nabors diagnosed lumbosacral strain with no evidence
of postlaminectomy syndrome, disc herniation or lumbar radiculopathy. He opined that any
sprain of the sacrum was resolved and that generally lumbosacral strains resolve in days to
months and that appellant was 13 months postinjury and that any lumbosacral strain was healed.
Dr. Nabors noted that appellant had a resolved lumbosacral strain and sprain of the sacrum and
that her current complaints were due to degenerative disease of the lumbar spine without disc
herniation. He opined that there had been no aggravation of the preexisting condition.
Dr. Nabors noted that appellant had a prior lumbar disc herniation which resolved after surgery
and was not contributory to her current complaints. However, appellant did have degenerative
disc disease as seen on her MRI scan. Dr. Nabors noted that appellant underwent extensive
nonoperative treatment including pain management and physical therapy without improvement.
He did not believe that ongoing treatments of this nature would be effective. Dr. Nabors opined
that appellant did not have any physical limitations and noted that she had mild degenerative disc
disease which should not cause her any disability or inability to perform any of her job duties
including riding in a car for an unlimited amount of time for commuting purposes. He opined
that she reached maximum medical improvement and did not require any further treatment for
her work-related injury. In a June 12, 2009 work capacity evaluation form, Dr. Nabors advised
that appellant could perform her usual job without restrictions.
Appellant submitted reports from Dr. Mateya, dated August 21 and November 17, 2009,
who noted that appellant continued to have problems with her work injury and showed
symptoms of sacroiliac dysfunction, lumbosacral spasm and lumbar radiculopathy. Dr. Mateya
noted that appellant’s examination was unchanged. In an August 22, 2009 work capacity
evaluation, he noted that she could work four hours per day with restrictions including driving
2

In a January 15, 2009 investigative memorandum, the employing establishment noted that a criminal
investigation surveillance report revealed that appellant was observed driving in excess of the 10 minutes permitted
by her treating physician and she did not have any difficulty entering or exciting her vehicle, pushing a grocery cart
or loading packages into her vehicle. The investigator noted appellant’s actions revealed that she was not totally
disabled but could return to work.

3

limited to 15 minutes. Appellant was treated by Dr. Ashith Mally, a family practitioner, on
February 3, 2010 who diagnosed persistent low back pain with radiation.
On November 29, 2010 OWCP issued a notice of proposed termination of all benefits on
the grounds that Dr. Nabors’ report dated June 2, 2009 established no residuals of the workrelated lumbar strain and sacroiliac sprain and strain of the right side.
Appellant submitted a September 27, 2010 work capacity evaluation from Dr. Mateya
who noted that appellant could continue to work four hours per day with restrictions including
driving limited to 15 minutes. In a December 10, 2010 report, Dr. Mateya noted that appellant
continued to have long-term problems with her work-related injury including lumbar
radiculopathy, sacroiliac dysfunction, chronic lumbar strain and weakness in the lower extremity.
He disagreed with Dr. Nabors’ opinion that appellant’s condition had resolved and asserted that
she continued to have residuals of her work injury and should be limited to her prior work
restrictions. Dr. Mateya opined that appellant was at maximum medical improvement and
recommended a functional capacity evaluation.
By decision dated December 30, 2010, OWCP terminated appellant’s medical and
compensation benefits effective January 16, 2011 for the accepted conditions of lumbar strain
and sacroiliac sprain and strain of the right side on the grounds that the weight of the medical
evidence established that she had no continuing disability or residuals of the accepted
employment injuries.
On February 11, 2011 appellant requested reconsideration. In a letter of the same date,
she asserted that Dr. Nabors’ examination was brief and that she still had residuals of her work
injury. Appellant submitted reports from Dr. Mateya dated January 30 to November 17, 2009,
all previously of record. She submitted prescription notes from Dr. Mateya dated August 20 and
September 23, 2010 which recommended a functional capacity examination and joint blocks.
Appellant was treated in the emergency room on August 10, 2010 by Dr. Allan Tissenbaum, an
emergency room physician, for a fall with contusions to the right elbow, shoulder and cervical
strain. On January 25, 2011 she came under the treatment of Dr. Evgeniy A. Shchelchkov, a
Board-certified neurologist, for leg pain that began after a reported accident at work.
Dr. Shchelchkov diagnosed lumbosacral radiculopathy and recommended an MRI scan of the
lumbar spine and an EMG. He noted that appellant would be off work until a diagnoses was
established. In a February 8, 2011 report, Dr. Shchelchkov diagnosed lumbosacral radiculopathy
and possible right joint inflammation. A February 3, 2011 nerve conduction study revealed no
abnormalities and an EMG revealed chronic neurogenic findings in the right L4-5 and L5-S1
nerve root. Appellant submitted a news report about a police raid at Dr. Nabors’ house in
October 2009 regarding a party where underage teenagers were allegedly drinking alcohol. Also
submitted was an anonymous internet statement from a person who did not approve of treatment
by Dr. Nabors.
On March 3, 2011 OWCP denied modification of the decision dated December 30, 2010.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.5
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for lumbar strain and sacroiliac sprain and strain of the
right side. It reviewed the medical evidence and determined that a conflict in medical opinion
existed between appellant’s attending physician, Dr. Mateya, a Board-certified physiatrist, who
indicated that appellant remained partially disabled and unable to drive for more than 15 minutes
due to her work injury, and Dr. Langa, an OWCP referral physician, who determined that
appellant could work full time with restrictions. Consequently, OWCP referred appellant to
Dr. Nabors to resolve the conflict regarding the extent of appellant’s accepted condition.
The Board finds that, under the circumstances of this case, the opinion of Dr. Nabors is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant’s work-related lumbar strain and sacroiliac sprain
and strain of the right side has ceased. Where there exists a conflict of medical opinion and the
case is referred to an impartial specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background, is
entitled to special weight.6
In his report dated June 2, 2009, Dr. Nabors reviewed appellant’s history, reported
findings and opined that any lumbar strain and sacroiliac sprain was resolved. He noted that
typically lumbosacral strains resolve in days to months and appellant was 13 months from the
work injury and any lumbosacral strain would have healed with any continuing symptoms being
due to degenerative disc disease. Dr. Nabors indicated that appellant had a resolved lumbosacral
strain and sprain of the sacrum and that her current complaints were not work related but were
due to lumbar degenerative disease. He indicated that there had been no aggravation of the
preexisting condition. Dr. Nabors opined that appellant did not have any physical limitations and
noted that her mild degenerative disc disease should not cause her any disability or inability to
perform any of her job duties including commuting in a car. He opined that appellant reached
3

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

4

Mary A. Lowe, 52 ECAB 223 (2001).

5

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

6

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a).

5

maximum medical improvement and did not require any further treatment for her work-related
injury.
Thereafter, appellant submitted reports from Dr. Mateya dated August 21 and
November 17, 2009 who noted that appellant’s continued problems with her work-related injury
with symptoms of sacroiliac dysfunction, lumbosacral spasm and lumbar radiculopathy. In a
December 10, 2010 report, Dr. Mateya disagreed with Dr. Nabors and opined that appellant
continued to have residuals of her work injury and should be limited to her prior work
restrictions. In August 22, 2009 and September 27, 2010 work capacity evaluations, he noted
that appellant could work four hours per day with restrictions including driving limited to 15
minutes. However, Dr. Mateya did not specifically address how any continuing condition or
medical restrictions and disability were causally related to the accepted employment injuries.
Additionally, he was on one side of the conflict that Dr. Nabors resolved and this report is
insufficient to overcome that of Dr. Nabors to create a new medical conflict.7 Also submitted
was a February 3, 2010 report from Dr. Mally who treated appellant for persistent low back pain
with radiation. However, she did not address how any continuing condition or medical
restrictions and disability were causally related to the accepted employment injuries.
The Board finds that Dr. Nabors had full knowledge of the relevant facts and evaluated
the course of appellant’s condition. Dr. Nabors is a specialist in the appropriate field. At the
time benefits were terminated he clearly opined that appellant had absolutely no work-related
reason for disability. Dr. Nabors’ opinion as set forth in his report of June 2, 2009 is found to be
probative evidence and reliable. The Board finds that Dr. Nabors’ opinion constitutes the weight
of the medical evidence and is sufficient to justify OWCP’s termination of benefits for the
accepted conditions of lumbar strain and sacroiliac sprain/strain has ceased.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to appellant to establish that she had continuing disability causally related to her
accepted employment injury.8 To prevail, appellant must establish by the weight of the reliable,
probative and substantial evidence that she had an employment-related disability, which
continued after termination of compensation benefits.9
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that she has any continuing residuals of
her work-related lumbar strain and sacroiliac sprain/strain on or after January 16, 2011.

7

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Mateya’s report did not contain new findings or rationale
on causal relationship upon which a new conflict might be based.
8

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

9

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

6

After the termination of benefits, appellant submitted reports from Dr. Mateya dated
January 30 to November 17, 2009, all previously of record. She submitted prescription notes
from Dr. Mateya dated August 20 and September 23, 2010 who recommended a functional
capacity examination and joint blocks. However, these reports fail to otherwise provide new
medical rationale sufficient to establish that any continuing condition or disability was causally
related to the work conditions. As noted, Dr. Mateya was on one side of the conflict that
Dr. Nabors resolved and this report is insufficient to overcome that of Dr. Nabors or to create a
new medical conflict.10
Appellant submitted an August 10, 2010 report from Dr. Tissenbaum who treated
appellant for a fall with contusions to the right elbow, shoulder and cervical strain. However,
this report does not support that appellant had continuing residuals due to her work injury; rather,
he addresses a separate nonwork-related fall. Appellant also submitted reports from
Dr. Shchelchkov dated January 25 and February 8, 2011, who diagnosed lumbosacral
radiculopathy and recommended an MRI scan of the lumbar spine and an EMG. Dr. Schelchkov
noted that appellant would be off work until a diagnoses was established. In his January 25,
2011 report, he related that she asserted that her pain began after an accident at work. However,
Dr. Shchelchkov indicated that if he was referring to the April 3, 2008 work injury and he failed
to provide a rationalized medical opinion11 explaining how any continuing condition or disability
was causally related to the work injury. These reports are insufficient to meet appellant’s burden
of proof.
None of the reports submitted by appellant after the termination of benefits included a
rationalized opinion regarding the causal relationship between her current condition and her
accepted work-related conditions. Consequently, appellant did not establish that she had any
employment-related condition or disability after January 16, 2011.
Appellant also asserted that Dr. Nabors’ examination of her was too brief to be thorough.
As explained, the record shows that Dr. Nabors reviewed appellant’s history, noted findings on
examination and determined that her work-related conditions had resolved. There is no evidence
establishing any bias or that he was unqualified to render an appropriate medical opinion
regarding appellant.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate benefits effective
January 16, 2011 and that appellant failed to establish that she had any continuing disability due
to her accepted condition after January 16, 2011.

10

See Michael Hughes, supra note 7. The Board notes that Dr. Mateya’s report did not contain new findings or
rationale on causal relationship upon which a new conflict might be based.
11

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 3, 2011 and December 30, 2010 are affirmed.
Issued: January 11, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0188
Issued: September 6, 2018

Case Submitted on the Record

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

JURISDICTION
On November 3, 2017 appellant, through counsel, filed a timely appeal from an August 16,
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 the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability commencing January 1, 2013 causally related to her accepted October 15, 2005
employment injury.
FACTUAL HISTORY
On October 15, 2005 appellant, then a 35-year-old full-time letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on that date a dog charged at her as she was delivering
mail. She explained that she sustained injuries to her right arm and wrist when she stepped
backwards and fell over a brick wall. On November 18, 2005 OWCP accepted appellant’s claim
for fracture of right distal radius.
On November 23, 2005 Dr. W. Hugh Baugher, a Board-certified orthopedic surgeon,
performed an OWCP-approved open reduction internal fixation of appellant’s wrist. Appellant
received continuation of pay until November 29, 2005. OWCP paid disability compensation on
the supplemental rolls from November 29, 2005 to January 21, 2006 and on the periodic rolls from
January 22 through May 13, 2006. On May 13, 2006 appellant returned to work full time with
restrictions and her wage-loss compensation on the periodic rolls ended. However, she still
received intermittent supplemental compensation.
On March 13, 2007 appellant filed claims for compensation (Form CA-7) for the period
October 14, 2006 to January 19, 2007 due to de Quervain’s tendinitis, which was not an accepted
condition.
In a medical report dated January 31, 2007, Dr. Baugher noted that appellant was postinjection for de Quervain’s tendinitis. He provided her restrictions indicating that she could
frequently lift only 5 to 10 pounds, she could lift occasionally up to 20 pounds with both hands,
and the maximum that she could occasionally carry with the right hand was 12 pounds.
Dr. Baugher opined that these restrictions would be permanent and were the direct result of her
employment injury. He noted that appellant had been unable to work starting October 22, 2006
due to her de Quervain’s tendinitis. Dr. Baugher noted that, after her injections, she was able to
return to work on January 15, 2007. He discharged her and advised her to return as necessary.
By decision dated March 26, 2007, OWCP determined that appellant sustained a
recurrence as of October 23, 2006. It expanded acceptance of the claim to include de Quervain’s
tendinitis.
In a May 15, and June 5 and 29, 2007 reports, Dr. Baugher noted that appellant had prior
injections for her de Quervain’s tendinitis and that it still was bothersome. He recommended a
first dorsal compartmental release. Dr. Baugher noted that he was awaiting authorization.
On June 20, 2007 OWCP approved surgery for the removal of appellant’s right support
implant and right incision of tendon sheath. On August 2, 2007 Dr. Baugher noted that appellant
had recovered from her July 11, 2007 surgical procedure. He recommended that appellant remain
on light duty.

2

On January 22, 2008 appellant accepted an offer of limited-duty employment from the
employing establishment. In a March 4, 2008 report, Dr. Baugher indicated that he saw no reason
that appellant could not continue to work light duty.
On June 17, 2013 Dr. Ibrahim Elsamanoudi, a Board-certified anesthesiologist, noted that
appellant had a flare up of sympathetic mediated pain, and that he performed a right stellate
ganglion block for appellant’s complex regional pain syndrome of her right upper limb. He noted
that appellant will follow up with a hand surgeon for evaluation of the recent onset of pain at the
carpometacarpal joint. In the meantime, Dr. Elsamanoudi recommended that appellant continue
with the same limitations set by Dr. Baugher. Appellant had previously received multiple
injections from Dr. Elsamanoudi, including those administered on April 19, May 17, June 1
and 15, 2006, April 7, 2009, and September 27, 2011.
On July 11, 2013 appellant underwent a magnetic resonance imaging (MRI) scan of her
right wrist. Dr. Robert VanBesien, a Board-certified radiologist, found deformity of the distal
radial metaphysis with irregularity of the articular surface which was consistent with an old healed
fracture. He also noted a narrowing of the radiocarpal joint consistent with secondary degenerative
change. Dr. VanBesien noted no avascular necrosis of the scaphoid or lunate, and no bone marrow
edema to suggest acute fracture. He also noted mild degeneration of the triangular fibrocartilage
complex without definite tear, distal radioulnar joint intact, and no definite tear of the scapholunate
or lunotriquetral ligament.
On July 21, 2014 appellant filed a notice of recurrence (Form CA-2a) dated July 10, 2014.
She alleged that the recurrence occurred on January 1, 2013, but that she had been in pain since
the original injury and that this pain was becoming more frequent and severe.
By development letter dated August 27, 2014, OWCP informed appellant that further
medical evidence was necessary to support her recurrence claim. It afforded her 30 days to submit
the necessary evidence.
In a statement received by OWCP on October 8, 2014, appellant alleged that her symptoms
had “come and gone,” but that they have been more frequent over the last two years. In further
response, she submitted copies of medical evidence from periods prior to the alleged recurrence.
Appellant also submitted reports of physicians already in the record and submitted reports relating
that she had multiple right stellate ganglion blocks.
In reports dated from January 20 through September 29, 2014, Dr. Brian Janz, a Boardcertified plastic surgeon specializing in hand surgery, noted that appellant had a complicated
history involving her right wrist. He indicated that she had an open reduction and internal fixation
of a distal radius facture followed by hardware removal and what sounded like de Quervain’s
release. Dr. Janz noted that appellant was then followed by Drs. Fisher and Baugher, who treated
her for continued wrist pain with conservative treatment, light duty, and anti-inflammatories. He
noted that despite the fact that appellant had been placed on long-term light duty a number of years
ago, her pain involving the upper extremity had worsened. Dr. Janz conducted a physical
examination and noted appellant’s range of motion findings. He noted that appellant did have pain
with manipulation of the radiocarpal joint. Dr. Janz concluded that appellant has radiocarpal
arthritis which was inhibiting her function. He noted that appellant had, by her account, received

3

over 10 injections with little relief, and that she would like to proceed with a wrist fusion to
decrease the pain. Dr. Janz further noted that appellant’s MRI scan showed radiocarpal arthritis.
He indicated that appellant did not have a dorsal or volar intercolated segment deformity on the
MRI scan, but that the radiocarpal arthritis was fairly significant, and that appellant’s x-rays
showed mild-to-moderate radiocarpal arthritis. In a September 29, 2014 report, Dr. Janz noted
that appellant’s radiocarpal arthritis had progressed and was symptomatic. He opined that
appellant was a candidate for a wrist fusion, which he believed was her best option.
By decision dated May 15, 2015, OWCP denied appellant’s claim for a recurrence. It
determined that she failed to establish that she was further disabled due to a material change or
worsening of her accepted condition. OWCP noted that there was no medical evidence provided
to bridge the gap of medical treatment from September 27, 2011 to July 11, 2013.
On April 18, 2016 appellant requested reconsideration.
In a July 8, 2013 report, Dr. Stephen N. Fisher, an orthopedic surgeon, noted that he had
given appellant a right wrist corticosteroid injection. In a September 26, 2013 report, he noted that
appellant came in for a follow up, and that the corticosteroid injection had given her very brief
relief of symptoms. Dr. Fisher noted that appellant’s right wrist had ongoing significant limitation
in motion. In a July 29, 2013 report, he noted that appellant’s MRI scan was reviewed, and that
there was a scapholunate diastasis. Dr. Fisher noted severe degenerative changes between the
lunate and radius with cystic changes. He also noted that there appeared to be some volar
subluxation of the lunate with volar intercalated segment instability. The distal radial ulnar joint,
otherwise, appeared intact. In a January 23, 2014 report, Dr. Fisher noted that he saw appellant
for a follow up, and that she was experiencing tingling over the dorsum of the right hand and pain
over the radial aspect of the wrist extending into the thumb. On physical examination he noted
that appellant had a positive Finkelstein’s test on the right side, and tenderness over the first
extensor compartment. Dr. Fisher noted no extensor subluxation. He further noted a positive
Tinel’s over the radial sensory nerve near the prior right wrist de Quervain’s release incision. In
an August 1, 2014 report, Dr. Fisher noted that appellant had radiocarpal arthritis which was
inhibiting her function. He noted that appellant was scheduled for a wrist fusion, and will follow
up as needed for either injections or conservative management until she had surgery. Dr. Fisher
noted that appellant’s multiple injections had not helped her pain.
In a January 20, 2015 report, Dr. Janz noted that appellant was still having pain involving
the radiocarpal joint and also had some generalized pain involving the upper extremity in that area
of the dorsal mid-forearm and also along the ulnar aspect. He noted that the vast majority of
appellant’s pain was in the area of the radiocarpal joint with manipulation and that appellant was
currently waiting for approval of a wrist fusion.
By decision dated May 15, 2015, OWCP denied appellant’s claim for a recurrence. It
determined that the evidence did not establish that she had a return or increase of disability due to
a change/worsening of her accepted work-related conditions because she did not submit medical
evidence addressing her gap in treatment, and there was no medical evidence as to how her work
injury of October 5, 2005 caused her alleged recurrence in 2013.

4

In a July 9, 2015 report, Dr. Janz noted that appellant had symptomatic radiocarpal arthritis
and had a long course of conservative management, light duty, and the use of anti-inflammatories.
In a November 4, 2015 report, he noted that she was doing well and improving and could return
to work light duty. Dr. Janz noted that, if appellant continued to have pain and discomfort about
the upper extremity beyond the acute injury with the sprain, then he would proceed with a right
wrist MRI scan.
In a March 21, 2016 report, Dr. Janz noted that appellant had an acute-on-chronic injury
involving the wrist with MRI scan showing arthrosis and irregularities involving the radius with
loss of cartilage, that appellant was symptomatic on a daily basis, and that she would benefit from
a wrist fusion. He noted that she would lose some extension and flexion, but that she did not have
great extension and flexion at this point. Dr. Janz opined that appellant would be able to do her
daily activities and return to normal activity with regard to her job without restrictions. He noted
that he would schedule a wrist fusion.
On April 18, 2016 appellant requested reconsideration. In an accompanying letter, she
stated that, since her initial injury, her doctor had related that the damage was irreversible and that
she could either live with the pain or get a fusion. Appellant noted that she decided to live with
pain. She noted that she tried a second opinion and Dr. Fisher recommended a “wrist
replacement.”
By decision dated May 13, 2016, OWCP denied modification. It determined that the
medical evidence of record did not explain how specific activities of appellant’s employment on
October 15, 2005 caused her condition of radiocarpal arthritis, which was not an accepted
condition.
On May 31, 2016 appellant requested reconsideration. She attached a copy of her letter,
previously received by OWCP on April 18, 2016. Appellant attached a copy of a previously
unreviewed October 15, 2015 report wherein Dr. Janz noted that she had a history of radiocarpal
arthritis and recently had a fall involving the wrist. Dr. Janz also noted that appellant would be off
work for several weeks while she recovered from the fall.
By decision dated June 14, 2016, OWCP determined that appellant’s reconsideration
request neither raised a substantive legal question nor included new and relevant evidence and
was, therefore, insufficient to warrant review of the May 13, 2016 decision.
On May 11, 2017 appellant, through counsel, requested reconsideration. In support
thereof, he submitted a May 10, 2017 report wherein Dr. Janz related that appellant’s postoperative
arthritis in her wrist was directly related to her employment injury of October 15, 2005. Counsel
noted that appellant objectively underwent a right wrist MRI scan on February 2, 2016 which
showed a deformity and prior surgery of the distal radius with narrowing of the radial carpal joint.
He noted that there were signs of osteoarthritis involving the joint shown on the MRI scan.
Dr. Janz noted that biomechanically appellant had arthrosis from the irregularities involving the
joint from the joint fracture, which led to irregularities in the radial carpal joint which caused
appellant pain and discomfort. He noted that these fractures could have arisen from the
employment injury of October 15, 2005 as this was an intra-articular fracture. Dr. Janz indicated
that it did not appear that other medical problems that she had or other injuries had contributed to

5

her injury in October 2005. He noted that biomechanically the irregularities of the joint wore down
the cartilage within the radial carpal joint, causing the arthritis and the advancement of the
discomfort and pain that appellant was currently experiencing. Dr. Janz opined that the objective
changes seen on appellant’s MRI scan were directly related to appellant’s injuries. He concluded
that in the setting of no other injuries occurring to the wrist with regard to fractures, or dislocations,
the irregularities and advancement of the arthritis were directly related to appellant’s employment
injury which occurred on October 15, 2005. In a May 10, 2017 follow up, Dr. Janz again opined
that appellant’s postoperative arthritis involving her wrist was directly related to appellant’s
October 15, 2005 employment injury.
In a handwritten note received by OWCP on May 18, 2017, appellant requested
reconsideration. She contended that OWCP was ignoring the medical opinions of three different
doctors.
By decision dated August 16, 2017, OWCP determined that the evidence of record was
insufficient to modify the decision dated May 13, 2016 because the medical evidence of record
did not support that appellant sustained a recurrence of disability as a result of a spontaneous
change or worsening of the accepted condition. The decision noted that the evidence reviewed in
support of the reconsideration request included medical reports from Dr. Janz dated May 10, 2017
and October 15, 2015, a letter from counsel dated May 11, 2017, a letter from appellant dated
May 18, 2017, and medical restriction notes dated March 21 and June 17, 2016.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work caused by a spontaneous change in a medical condition which resulted from a previous injury
or illness without an intervening injury or new exposure to the work environment that caused the
illness.3 Recurrence of disability also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.4
Absent a change or withdrawal of a light duty-assignment, a recurrence of disability
following a return to light duty may be established by showing a change in the nature and extent
of the injury-related condition such that the employee could no longer perform the light-duty
assignment.5
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that flows
from the injury is deemed to arise out of the employment, unless it is the result of an independent

3

20 C.F.R. § 10.5(x).

4

Id.

5

Theresa L Andrews, 55 ECAB 719, 722 (2004); see also C.S., Docket No. 17-1345 (issued May 24, 2018).

6

intervening cause which is attributable to the employee’s own intentional conduct.6 In discussing
the range of compensable consequences, once the primary injury is causally connected with the
employment, then a subsequent injury, whether an aggravation of the original injury or a new and
distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.7
When an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of establishing that the recurrence is causally related to the
original injury.8 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes that the condition is causally related to the employment injury.9 The
physician’s opinion must be based on a complete and accurate factual and medical history and
supported by sound medical reasoning.10
ANALYSIS
The Board finds that this case is not in posture for decision.
On November 18, 2005 OWCP accepted appellant’s claim for a fracture of the right distal
radius as a result of an October 15, 2005 employment incident. Appellant underwent an open
reduction internal fixation of the wrist on November 23, 2005. On March 26, 2007 OWCP
accepted her claim for a recurrence as of October 23, 2006. At that time, it expanded acceptance
of appellant’s claim to include the condition of de Quervain’s tendinitis. On July 11, 2007
appellant underwent surgery by Dr. Baugher for the removal of her right support implant and right
incision of the tendon sheath. On January 22, 2008 she accepted an offer of limited-duty
employment from the employing establishment.
Appellant filed a notice of a recurrence as of January 1, 2013, alleging that her accepted
injury had caused continued pain and limitation of her right wrist. Essentially, she claimed that
she developed right wrist radiocarpal arthritis as a consequence of the accepted injury.
There are notes indicating that Dr. Elsamanoudi administered numerous injections for the
treatment of appellant’s right wrist conditions from April 19, 2006 through June 17, 2013. In his
June 17, 2013 report, Dr. Elsamanoudi recommended that she follow up with a hand surgeon due
to pain in the carpometacarpal joint. He also recommended that appellant continue with the same
work limitations as set by Dr. Baugher. Dr. Fisher also provided injections for appellant starting
July 8, 2013. On July 11, 2013 Dr. VanBesien reviewed appellant’s right wrist MRI scan and
found deformity of the distal radial metaphysis with irregularity of the articular surface consistent
with old healed fracture. He also noted a narrowing of the radiocarpal joint consistent with
secondary degenerative change. In an August 1, 2014 report, Dr. Fisher noted that appellant had
6

Albert F. Ranieri, 55 ECAB 598, 602 (2004); A Larson, The Law of Workers’ Compensation § 10.01 (2000).

7

Charles W. Downey, 54 ECAB 421, 422-23 (2003).

8

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5
and Chapter 2.1500.6 (June 2013).
9

See S.S., 59 ECAB 315, 318-19 (2008).

10

Id. at 319.

7

radiocarpal arthritis which was inhibiting her function. There is therefore objective medical
evidence of record that appellant’s right wrist condition worsened.11
Dr. Janz started treating appellant on January 20, 2014. In an October 15, 2015 report, he
noted that she had a history of radiocarpal arthritis. In a March 21, 2016 report, Dr. Janz noted
that appellant had an acute-on-chronic injury involving the wrist with a right wrist MRI scan
showing arthrosis and irregularities involving the radius with loss of cartilage, that appellant was
symptomatic on a daily basis, and that she would benefit from a wrist fusion. In a May 10, 2017
report, he opined that appellant’s arthritis in her wrist was directly related to the injury of
October 15, 2005. Dr. Janz noted that appellant’s February 2, 2016 MRI scan showed a deformity
and prior surgery of the distal radius with narrowing of the radial carpal joint. He noted that there
were signs of osteoarthritis involving the joint shown on the MRI scan. Dr. Janz noted that
biomechanically the irregularities of the joint wore down the cartilage within the radial carpal joint,
causing the arthritis and the advancement of the discomfort and pain that appellant was currently
having. He opined that the objective changes seen on appellant’s MRI scan were directly related
to appellant’s injury, and noted that there were no other injuries occurring to the wrist with regard
to fractures or dislocations.
By decision dated August 16, 2017, OWCP denied modification of its denial of her
recurrence claim. It noted in its decision that appellant had submitted a May 10, 2017 medical
report from Dr. Janz, amongst other items, in support of her claimed recurrence. OWCP cited to
the specific findings of Dr. Janz as to the progression of her medical condition, noting his opinion
that “biomechanically the irregularities of the joint then wear down the cartilage within the radial
carpal joint, causing the arthritis and the advancement of the discomfort and pain that the patient
is currently having” and that “the irregularities and advancement of the arthritis are directly related
to the patient’s injury which occurred on October 15, 2005.” The Board finds that the decision
dated August 16, 2017 failed to explain why the medical opinion of Dr. Janz, as set forth in detail
in the decision, was deficient in it reasoning. OWCP’s regulations direct that decisions shall
contain findings of fact and a statement of reasons.12 The Board has held that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.13 Herein, OWCP did not explain why
the opinion of Dr. Janz was insufficiently rationalized or what further medical evidence was
required of appellant to establish her claim for recurrence of disability.
On remand OWCP shall make findings of fact and provide a detailed evaluation of the
sufficiency of the May 20, 2017 report of Dr. Janz. If it finds that the report of Dr. Janz is
insufficiently well rationalized to establish the claimed recurrence of disability, it shall set forth
such reasons in a manner that is clear enough for appellant to understand the precise defect of the
claim and the kind of evidence which would overcome it.
11

Supra note 5.

12

20 C.F.R. § 10.126. See O.R., 59 ECAB 432 (2008); Teresa A. Ripley, 56 ECAB 528 (2005); Tonja R. Hiebert,
55 ECAB 706 (2004) (it is a well-established principle that OWCP must make proper findings of fact and a statement
of reasons in its final decisions).
13

C.W., Docket No. 14-0693 (issued January 12, 2016).

8

After this and such further development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 16, 2017 is set aside and this case is remanded for further proceedings
consistent with this opinion.
Issued: September 6, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-368
Issued: October 28, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 6, 2012 appellant, through his attorney, filed a timely appeal from the
June 26, 2012 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 met his burden of proof to establish that he has more than
a one percent permanent impairment of his right leg and no permanent impairment of his left leg.
FACTUAL HISTORY
In mid-1976, OWCP accepted that appellant, then a 31-year-old part-time flexible letter
carrier, sustained bilateral aggravation of pes valgo planus due to the extensive walking and
standing required by his job.
1

5 U.S.C. §§ 8101-8193.

Appellant filed a claim for a schedule award due to his accepted work injury. OWCP
determined that there was a conflict in the medical opinion between Dr. Nicolas Diamond, an
attending osteopath, and an OWCP medical adviser regarding the extent of the permanent
impairment to appellant’s lower extremities.
To resolve the conflict, OWCP referred appellant in February 2010 to Dr. George P.
Glenn, Jr., a Board-certified orthopedic surgeon, for an impartial medical examination and
opinion on the extent of appellant’s lower extremity impairment under the standards of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (6th ed. 2009).
The record includes an MEO23 Integrated Federal Employees Compensation System
(iFECS) report indicating that appellant’s impartial medical appointment was scheduled with
Dr. Glenn.2 The record also contains iFECS screen shots of physicians who were bypassed
before Dr. Glenn was selected. One of the screen shots shows that Dr. Howard Zeidman, a
Board-certified orthopedic surgeon, was bypassed because he had previously examined appellant
in connection with the present claim. Dr. Ronald Gerson and Dr. Thomas O’Dowd, both Boardcertified physicians, were bypassed for selection, but the screen shots provide no reasons for the
bypasses.
In an April 6, 2010 report, Dr. Glenn determined that appellant had a one percent
permanent impairment of his right leg and a zero percent permanent impairment of his left leg
under the standards of the sixth edition of the A.M.A., Guides.
In a January 24, 2012 decision, OWCP granted appellant a schedule award for a one
percent permanent impairment of his right leg and determined that he had a zero percent
permanent impairment of his left leg. The award ran for 2.88 weeks from April 6 to 26, 2010.
The award was based on a determination that the opinion of Dr. Glenn represented the weight of
the medical evidence with respect to appellant’s lower extremity impairment.
In a June 26, 2012 decision, an OWCP hearing representative affirmed OWCP’s
January 24, 2012 schedule award decision. She found that the weight of the medical evidence
regarding appellant’s lower extremity impairment continued to rest with the opinion of
Dr. Glenn.
LEGAL PRECEDENT
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”3 In situations
where 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
2

The appointment was originally scheduled for March 25, 2010 but was changed to April 6, 2010 at appellant’s
request.
3

5 U.S.C. § 8123(a).

2

such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.4
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. The procedures
contemplate that the impartial medical specialists will be selected on a strict rotating basis in
order to negate any appearance that preferential treatment exists between OWCP and a particular
physician.5 OWCP has an obligation to verify that it selected an impartial medical specialist in a
fair and unbiased manner. It maintains records for this very purpose.6
OWCP’s procedures provide that the selection of impartial medical specialists is made
through a strict rotational system using appropriate medical directories. The procedure manual
provides that the Physicians Directory System (PDS) should be used for this purpose wherever
possible.7 The PDS is a set of stand-alone software programs designed to support the scheduling
of second opinion and impartial medical examinations. The PDS database of physicians is
obtained from the American Board of Medical Specialties, which contains the names of
physicians who are Board-certified in certain specialties.8
ANALYSIS
OWCP accepted that appellant sustained bilateral aggravation of pes valgo planus due to
the extensive walking and standing required by his job. It determined that there was conflict in
the medical opinion evidence regarding the extent of the permanent impairment of his lower
extremities and referred him in February 2010 to Dr. Glenn, a Board-certified orthopedic
surgeon, for an impartial medical examination and opinion on the matter. In an April 6, 2010
report, Dr. Glenn determined that appellant had a one percent permanent impairment of his right
leg and a zero percent permanent impairment of his left leg under the standards of the sixth
edition of the A.M.A., Guides. OWCP granted appellant a schedule award for a one percent
permanent impairment of his right leg and determined that he had a zero percent permanent
impairment of his left leg. The award was based on the opinion of Dr. Glenn.
The record includes a MEO23 iFECS report which states that appellant’s referee
appointment was scheduled with Dr. Glenn. The record also contains iFECS screen shots of
physicians who were bypassed before Dr. Glenn was selected and one of the screen shots shows
that Dr. Zeidman was bypassed because he had previously examined appellant in connection
with the present claim. But the Board notes that screen shots for other physicians provide no
reason for the bypasses. Dr. Gerson and Dr. O’Dowd were both bypassed but there is no
4

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

5

Raymond J. Brown, 52 ECAB 192 (2001).

6

M.A., Docket No. 07-1344 (issued February 19, 2008).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).
The Board notes that, as of July 2011, the Medical Management Application within iFECS replaced the prior PDS
selection procedure for an impartial medical specialist. Id. at Chapter 3.500.5 (July 2011).
8

Id. at Chapter 3.500.7 (September 1995, May 2003).

3

indication as to the reason. The Board cannot ascertain from the evidence of record the reasons
that the physicians were bypassed. The record does not establish the proper rotational referee
selection of Dr. Glenn.
The Board has placed great importance on the appearance as well as the fact of
impartiality and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist. OWCP has not met its affirmative obligation to establish that it properly
followed its selection procedures.9
Therefore, the Board finds that the case will be remanded to OWCP for selection of
another impartial medical specialist. After such development as it deems necessary, OWCP shall
issue an appropriate decision regarding appellant’s schedule award claim.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
has more than a one percent permanent impairment of his right leg and a zero percent permanent
impairment of his left leg.

9

See B.S., Docket No. 10-2343 (issued September 28, 2011); N.M., Docket No. 10-978 (issued November 9,
2010) (the Board that found OWCP failed to provide any plausible reason for bypassing a physician and that the
evidence of record was insufficient to establish that OWCP properly used the PDS in its selection of an impartial
medical specialist); D.K. Docket 09-1361 (issued September 8, 2010) (adequate rationale was not provided in
compliance with the rotational system using the PDS); A.R., Docket No. 09-1566 (issued June 2, 2010) (OWCP
procedures provide that impartial medical specialist must be selected from a rotational list of qualified Boardcertified specialists and reasons for the selection made must be documented in the case record).

4

ORDER
IT IS HEREBY ORDERED THAT the June 26, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: October 28, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Q., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kearny, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-2152
Issued: March 5, 2008

Case Submitted on the Record

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

JURISDICTION
On September 25, 2006 appellant filed a timely appeal from a September 19, 2006
schedule award of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant has more than 10 percent impairment of his right lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
On June 10, 2003 appellant, then a 40-year-old equipment handler, sustained injury to his
low back and right leg while trying to open a trailer door. The Office accepted his claim for a
lumbosacral strain with sacroiliitis and displaced intervertebral disc. Appellant underwent
surgery for a bilateral hemilaminotomy, discectomies at the L4-5 and L5-S1 levels with lumbar
fusion at those levels on February 20, 2004 and February 11, 2005. He was placed on the

periodic rolls in receipt of compensation for total disability. Appellant returned to limited-duty
work on November 8, 2005.
On March 30, 2006 appellant filed a claim for a schedule award. In a May 8, 2006
report, Dr. Emmanuel E. Jacob, Board-certified in physical medicine and rehabilitation, provided
an impairment rating. He noted a history of appellant’s medical treatment and surgery for his
low back condition and noted complaints of pain with walking and of sexual dysfunction.
Dr. Jacob provided findings on physical examination and noted range of motion of the lumbar
spine. He diagnosed chronic low back pain with radiculopathy and muscle weakness involving
the L5 nerve root to the right lower extremity. In rating appellant’s loss of strength, Dr. Jacob
provided reference to Table 16-11, page 484, and Table 16-13, page 498, of the American
Medical Association, Guides to the Evaluation of Permanent Impairment.1 He noted loss of
power of 4/5 which he said was equal to 20 percent strength deficit.2 Dr. Jacob identified the
“maximum upper extremity impairment” value as 35 percent under Table 16-13.3 Multiplying
the 20 percent deficit by the 35 percent maximum impairment resulted in 7 percent impairment
to the right lower extremity for loss of strength. Dr. Jacob rated sensory loss (pain) for
radiculopathy to the right leg, noting that he applied Table 16-10, page 482, to rate the sensory
deficit as Grade 3 for which he allowed a 40 percent deficit. He identified the maximum
impairment allowed as eight percent.4 By multiplying the 40 percent deficit with the maximum 8
percent allowed, Dr. Jacob found total sensory impairment of 3.2 percent. He also rated
impairment due to sexual dysfunction with reference to Table 13-21, page 342, stating that
appellant’s symptoms were equivalent to Class 1 impairment for which a nine percent whole
man impairment is allowed.5 Dr. Jacob also rated three percent whole man impairment for pain
under Chapter 18, page 573. He advised that appellant’s sensory and motor impairments to the
right leg totaled 10 percent, which he converted to 4 percent whole man impairment utilizing
Table 17-3, page 527.6 Dr. Jacob combined the 4 percent whole man motor/sensory loss with 9
percent whole man impairment for sexual dysfunction and 3 percent whole man impairment for
pain under Chapter 18 to find total whole man impairment of 16 percent.
On August 23, 2006 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and
Office medical consultant, reviewed the medical opinion of Dr. Jacob. He disagreed with the 16
percent whole man impairment rating, noting that Dr. Jacob identified diminished muscle
strength and pain over the L5 dermatome. Dr. Berman stated that, in making the impairment
rating, Dr. Jacob had referred to tables of the A.M.A., Guides in Chapter 16 which were
1

A.M.A., Guides (5th ed. 2001).

2

Id. at 484, Table 16-11, provides 20 percent motor deficit is Grade 4 for complete active range of motion against
gravity with some resistance.
3

The Board notes that the A.M.A., Guides at 489, Table 16-13, rates the cervical nerves, for which a maximum
motor deficit of 35 percent is provided for impairment at C6 and C7.
4

The Board assumes Dr. Jacob was again referring to Table 13, page 489, to rate the sensory impairment. The
table allows eight percent maximum sensory impairment for the C6 nerve root.
5

A.M.A., Guides at 342, Table 13-21.

6

Id. at 527, Table 17-3.

2

applicable to rating upper extremity impairment and not lower extremity impairment. He applied
Table 15-18, page 424, which provides maximum values for unilateral nerve root impairment
affecting the lower extremity. Table 15-18 provides a maximum of 5 percent impairment for
sensory loss (pain) and a maximum of 37 percent impairment for motor loss (strength) of the L5
nerve root. Dr. Berman rated impairment due to loss utilizing Table 15-15, page 424, to rate
appellant’s pain as Grade 4, which allows a 25 percent deficit. He multiplied the 25 percent
deficit by the 5 percent maximum allowed for pain at the L5 nerve root to find 1.25 percent
impairment, which he rounded down to 1 percent. Dr. Berman rated impairment for loss of
strength utilizing Table 15-16, page 424, to rate appellant’s muscle weakness as Grade 4, for
which a 25 percent deficit is allowed. He multiplied the 25 percent deficit by the 37 percent
maximum allowed for weakness at the L5 nerve root to find 9.25 percent impairment, which was
rounded down to 9 percent. Dr. Berman applied the Combined Values Chart to rate total
impairment to appellant’s right leg at 10 percent. He stated that he disagreed with the
impairment allowed for sexual dysfunction under Chapter 13 as there was no medical opinion
from an urologist addressing the issue. Moreover, as Dr. Jacob had identified the L5 nerve root
as the only nerve involved, the anatomic findings did not justify a schedule award for sexual
dysfunction. Dr. Berman concluded that appellant had 10 percent impairment to the right lower
extremity, advising that maximum medical improvement was reached as of the May 8, 2006
evaluation by Dr. Jacob.
On September 19, 2006 the Office granted appellant a schedule award for 10 percent
impairment to his right lower extremity. The period of the award ran for 28.80 weeks from
May 8 to September 2, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act, and its
implementing federal regulations, set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of schedule members or
functions of the body.7 However, the Act does not specify the manner in which the percentage
of impairment shall be determined. For consistent results and to ensure equal justice under the
law for all claimants, the Office has adopted the A.M.A., Guides (5th ed. 2001) as the uniform
standard applicable to all claimants.8
No schedule award is payable for a member, function or organ of the body not specified
under the Act or the implementing regulations.9 Neither the Act nor the regulations provide for a
schedule award for loss of use of the back or to the body as a whole.10 However, the schedule
award provisions of the Act include the extremities and a claimant may be entitled to a schedule

7

See 5 U.S.C. § 8107 and 20 C.F.R. § 10.404.

8

20 C.F.R. § 10.404(a).

9

See Patricia J. Horney, 56 ECAB 256 (2005).

10

See Guiseppe Aversa, 55 ECAB 164 (2003).

3

award for permanent impairment to a lower extremity even though the cause of such impairment
originates in the spine.11
ANALYSIS
The Board finds that appellant has no more than 10 percent impairment to his right lower
extremity, for which he received a schedule award.
The medical evidence of record consists of the May 8, 2006 report of Dr. Jacob, who
rated appellant’s impairment as 16 percent to the whole person. The Board notes that the
impairment rating provided by Dr. Jacob is of diminished probative value because it departs
from the A.M.A., Guides in several respects.
The whole person impairment rating found by the physician is not consistent with the
rating of impairment for a specific body member as listed under section 8107 of the Act.
Dr. Jacob described impairment to appellant’s right leg due to residuals associated with his
accepted low back condition. As noted, a schedule award is not payable for loss of use of the
spine or for impairment of the whole person.12 Section 8107(c)(2) provides that, for total loss of
use of a leg, 288 weeks of compensation is payable under a schedule award.13 The impairment
rating by Dr. Jacob, while first addressing strength and sensory loss to the right lower extremity,
was ultimately converted to 16 percent “whole person” impairment.14 This was error on the part
of the examining physician. Dr. Jacob also departed from the A.M.A., Guides by including three
percent whole man impairment with reference to Chapter 18, page 573. He did not give
recognition to the caveat found at Chapter 18.3b, page 571, that medical examiners should not
use this chapter to rate pain-related impairment for any condition that can be adequately rated on
the basis of the body and organ impairment rating systems provided in the other chapters of the
A.M.A., Guides. Having provided a sensory (pain) rating for the right lower extremity prior to
converting the impairment to a whole man rating, Dr. Jacob gave no recognition to the fact that
he was essentially rating sensory loss (pain) a second time. His medical report did not give any
explanation for doing so. Finally, Dr. Jacob’s impairment rating included a whole person
estimate for impairment of sexual dysfunction under Chapter 13, Table 13-21. The A.M.A.,
Guides note that spinal cord injuries may result in sexual dysfunction. In applying Table 13-21,
however, the examining physician is advised under Chapter 13.7d to address certain criteria as
outlined in Chapter 7, The Urinary and Reproductive System, in making an impairment rating.15
Dr. Jacob did not provide any narrative discussion of the factors that went into making his rating
11

See Vanessa Young, 55 ECAB 575 (2004).

12

The Act provides at section 8101(20) that the brain, heart and back are excluded under the term “organ.”
5 U.S.C. § 8101(20). See Jesse Mendoza, 54 ECAB 802 (2003).
13

5 U.S.C. § 8107(c)(2).

14

The Board notes that Dr. Jacob referred to Table 16-13, page 489, in assigning the maximum values for sensory
and motor impairment in this case. However, he identified impairment to the right lower extremity due to deficit
at L5. A.M.A., Guides, Table 16-13 rates impairment to specific cervical and thoracic spinal nerves, not the lumbar
nerve roots.
15

A.M.A., Guides 143-71, Chapter 7.

4

that conforms to the protocols of the A.M.A., Guides.
estimate is of reduced probative value.

For these reasons, his impairment

Dr. Berman, the Office medical consultant, reviewed the findings provided by Dr. Jacob
and noted disagreement with the 16 percent whole man impairment rating. He advised that
reference to Chapter 16 was not appropriate, as the tables cited by Dr. Jacob were applicable to
rating upper extremity impairment and not the lower extremity. Dr. Berman noted that
appellant’s sensory and motor impairments were described by Dr. Jacob as involving the L5
nerve root. He indicated disagreement in making an impairment rating for any sexual
dysfunction based on this anatomic finding, pending any review by a specialist in urology.16 As
the L5 nerve root was the only nerve root involved, he applied Table 15-18, which provides
maximum percentages for impairment of unilateral spinal nerves affecting the lower extremities.
Dr. Berman multiplied the 5 percent maximum impairment for pain by the 25 percent Grade 4
sensory deficit found under Table 15-15, to find impairment of 1.2 percent, which he rounded
down to 1 percent.17 In determining motor loss, Dr. Berman multiplied the 37 percent maximum
impairment for loss of strength by the 25 percent Grade 4 deficit found under Table 15-16, to
find 9.25 percent impairment, which he rounded down to 9 percent. He utilized the Combined
Values Chart to combine the sensory and motor impairments, finding a total 10 percent
impairment to appellant’s right leg.
It is well established that, when the examining physician does not provide an estimate of
impairment conforming to the A.M.A., Guides, the Office may rely on the impairment rating
provided by a medical adviser.18 As Dr. Berman properly explained the 10 percent rating made
in this case, appellant properly received 10 percent of 288 weeks of compensation under the
September 19, 2006 schedule award. There is no evidence of greater impairment.
CONCLUSION
The Board finds that appellant has 10 percent impairment of his right lower extremity, for
which he received a schedule award.

16

Id. at 551, Table 17-8, notes that the genital region is enervated by the L1 and L2 nerve roots.

17

The policy of the Office is to round the calculated percentage of impairment to the nearest whole number. See
Robert E. Cullison, 55 ECAB 570 (2004).
18

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

5

ORDER
IT IS HEREBY ORDERED THAT the September 19, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 5, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Las Vegas, NV, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1491
Issued: November 7, 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 July 13, 2016 appellant filed a timely appeal from an April 12, 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.2
ISSUE
The issue is whether appellant has established employment-related disability,
commencing December 30, 2015 causally related to her November 15, 2015 injury.

1
2

5 U.S.C. § 8101 et seq.

On appeal appellant submitted additional evidence. The Board can review only evidence that was before
OWCP at the time of the final decision on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On November 20, 2015 appellant, then a 27-year-old city carrier assistant, filed a
traumatic injury claim (Form CA-1) alleging that she sustained injuries in the performance of
duty on November 15, 2015. She reported that she was driving an employing establishment
vehicle while delivering mail, lost consciousness, and hit a parked car. Appellant indicated that
she was taken to an emergency room, and her injuries included a swollen jaw and pain in the
knees. The record indicates that she stopped work on November 15, 2015.
Appellant received hospital treatment on November 15, 2015. Dr. Randall Miller, Boardcertified in pediatric emergency medicine, indicated that appellant was seen following a syncopal
episode while driving an employing establishment vehicle, resulting in her vehicle hitting a
parked vehicle. He noted no preceding symptoms or prior syncopal episodes. Dr. Miller
provided results on examination. The diagnostic testing performed included a computerized
tomography (CT) scan of the brain, reported as normal by Dr. Keir Hales, a radiologist.
In a report dated November 16, 2015, Dr. Warren Magnus, an osteopath, provided results
on examination and diagnosed syncope and collapse. As to “activity status and restrictions” he
wrote: appellant was released from care, with no work until follow up with primary care
physician. Dr. Magnus also completed a work activity form report stating appellant was released
to regular duty on November 16, 2015. In a brief note dated November 17, 2015, Dr. Andrea
Dempsey, a Board-certified internist, wrote that she recommended appellant not drive until
evaluated by a neurologist. She noted that appellant reported jaw swelling and was referred for a
facial x-ray.3
On November 23, 2015 OWCP accepted the claim for syncope and collapse. Appellant
was advised to submit a claim for compensation (Form CA-7) to claim periods for any disability.
On February 19, 2016 appellant submitted a Form CA-7 for the period December 30,
2015 to January 19, 2016. A March 1, 2016 memorandum of telephone call (Form CA-110)
indicated that appellant had not returned to work, but received continuation of pay (COP)
through December 30, 2015. In a separate Form CA-110 dated March 1, 2016, appellant
reported that she had not returned to work as she had suffered a seizure on February 4, 2016.
With respect to medical evidence, appellant submitted a note dated December 8, 2015
from Dr. Morton Hyson, a Board-certified neurologist, indicating that appellant was totally
disabled from December 8, 2015 to January 19, 2016. Dr. Hyson did not provide results on
examination or any other information. In an attending physician’s report (Form CA-20) dated
January 8, 2016, Dr. Hyson reported a concurrent or preexisting diagnosis of migraines, and he
diagnosed migraines, cephalgia, rule out seizures. He checked a box marked “no” relating that
the conditions were caused or aggravated by the employment injury.
By letter dated March 1, 2016, OWCP requested that appellant submit additional medical
evidence with respect to her claimed disability from work. On March 11, 2016 appellant
3

The record contains a November 19, 2015 facial bone x-ray report from Dr. Skyler Greene, a radiologist,
reporting no facial fractures.

2

submitted a February 27, 2016 report from Dr. Ahmed Mohamed, an internist, indicating that she
was admitted to the hospital on February 26, 2016 for seizures. On April 8, 2016 appellant
submitted reports of February 4, 2016 diagnostic testing, including a CT scan of the brain and
cervical area, chest x-ray, liver ultrasound, and carotid duplex study, as well as a February 5,
2016 renal ultrasound. She also submitted a January 21, 2016 brain magnetic resonance imaging
(MRI) scan report.
In a decision dated April 12, 2016, OWCP denied the claim for an employment-related
disability from December 30, 2015 to January 19, 2016. It found that the medical evidence of
record was insufficient to establish the claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden 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, that an injury was sustained in
the performance of duty as alleged, and that any disability or medical condition for which
compensation is claimed is causally related to the employment injury.4
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues.5 The issue of whether a particular injury causes
disability for work must be resolved by competent medical evidence.6 To meet this burden, a
claimant must submit rationalized medical opinion evidence, based on a complete factual and
medical background, supporting a causal relationship between the alleged disabling condition and
the accepted injury.7
ANALYSIS
In the present case, OWCP accepted that on November 15, 2015 appellant was in the
performance of duty, driving an employing establishment vehicle, when she sustained a syncopal
episode and was involved in a motor vehicle accident. Appellant stopped work and claimed
compensation for disability commencing December 30, 2015. As noted above, it is her burden
of proof to establish a period of disability.8
The medical evidence of record is insufficient to establish the claimed period of
disability. Dr. Magnus indicated in his November 16, 2015 report that appellant should be off
until follow up with a primary care physician, without further explanation. He also wrote in a
4

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

5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

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

7

C.S., Docket No. 08-2218 (issued August 7, 2009); see also R.M., Docket No. 16-0807 (issued
August 26, 2016).
8

Supra note 4.

3

November 16, 2015 note that she was released to full duty. Dr. Dempsey reported in a
November 17, 2015 note that appellant should not drive until seen by a neurologist. She did not
provide further detail other than to note jaw swelling. The neurologist, Dr. Hyson, provided a
December 8, 2015 note indicating that appellant was disabled through January 19, 2016.
Dr. Hyson did not provide a medical or factual history, results on examination, or any
explanation as to the period of disability and its relationship to the employment injury. In a
January 8, 2016 Form CA-20, he checked a box “no” with respect to causal relationship between
diagnosed conditions and employment.
Dr. Mohamed did not address an employment-related disability from work in the
February 27, 2016 report, noting only a diagnosis of seizures. The brain CT scan dated
January 21, 2016 and the diagnostic studies dated February 4, 2016 do not address disability
from the accepted syncope and collapse on November 15, 2015.
It is appellant’s burden of proof to establish that she was disabled from work during the
claimed period due to her accepted conditions. The record does not contain rationalized medical
opinion evidence, based on a complete factual and medical background, supporting causal
relationship between the accepted November 15, 2015 syncope and collapse and a period of
disability.9 The Board thus finds that the evidence of record is insufficient to meet appellant’s
burden of proof.
On appeal, appellant argues that her neurologist advised her not to drive until he found
out the cause of her syncope, and her job involved driving to deliver mail. As noted above, the
neurologist, Dr. Hyson, provided a brief note on December 8, 2015 that appellant was disabled
from work through January 19, 2016, without providing any results on examination, findings, or
explanation.10 As explained above, the medical evidence of record is insufficient to establish
disability from work during the claimed period causally related to her accepted conditions.
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 employment-related disability
commencing December 30, 2015 causally related to her November 15, 2015 employment injury.

9

Supra note 7.

10

The Board also notes that the possibility a future injury is not a basis for compensation. See Gaetan F.
Valenza, 39 ECAB 1349 (1988); see also Coralisia Sims, 46 ECAB 963 (1995).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 12, 2016 is affirmed.
Issued: November 7, 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

5